Children in Armed Conflicts: Inconsistency of the Laws, Culpability and Criminal Responsibility of Child Soldiers
Autor: Kevin Ryu
Originally Published at Peace and Conflict Monitor on: 06/07/2016
The international community is currently confronting complex issues related to the involvement of children in armed conflict. We all know that the interests and safety of children should be prioritized, however, children in armed conflicts around the globe continue to be at risk of being violated, abused, recruited into armed factions, and convicted for their participation in violent activities. This article’s objective is to clarify the phenomena of child soldiery, analyze the inconsistencies relating to the issue under international law, and further investigate the culpability and criminal responsibility of child soldiers.
Part II of this article defines who child soldiers are and what they do to be labeled as such, and explore the reasons behind the forcible recruitment of these children. Part III examines the international legal norms which deal with child soldiery. Chronologically, this article will study the First and Second Additional Protocols to the Geneva Convention, the 1989 Convention on the Rights of Child, the 1998 Rome Statue of the International Criminal Court, and the 2002 Optional Protocol to the Convention on the Rights of Child, to understand the inconsistency in the laws regarding child soldiering. Part IV analyzes the international legal frameworks and investigates whether child soldiers can be prosecuted, convicted and punished. Thus, the central question of this part will be whether they are victims or perpetrators. The Article will survey the individual criminal responsibility under the international laws to discuss whether they should be accountable for their criminal actions. To conclude, the article presents five suggestions that may help to advance the efficiency of current international law concerning child soldiers.
To create a world where children may freely enjoy their rights and privileges that come along with being a child, the international community must work together to mitigate the myriad abuses that children currently face. Graca Machel, the former First Lady of South Africa, points out that “Children are dropping out of childhood. We must envision a society free of conflict where children can grow up as children, not weapons of war” (1996). After all, children are our hope.
Part II. Child Soldiers and Recruitment
To fully understand the child soldier, we must first understand the parameters of such a title, as well as the background of what is happening and why. According to United Nations Children’s Fund, a child soldier is “any person under the age of eighteen who is or has been associated with any kind of regular or irregular armed group, including non-combatants those who serve as porters, spies, cooks or messengers, including boys and girls recruited for sexual purposes, forced marriage and many others”. Thus, the definition of a child soldier is not contained to a child who is directly or indirectly involved. It is considered that there are more than 300, 000 children involved in armed conflicts around the world (UNICEF, 2004). The United Nations Charter’s preamble says that “we the people of the United Nations determined to save succeeding generations from the scourge of war” (UN Charter, 1945). Are we really determined to save them? Despite the fact that there is a plethora of international laws banning child recruitment, child soldier usages are skyrocketing every year. The recruiters are seldom sanctioned, prosecuted or convicted. Accordingly, they do not fear the punishment and continue with the practice. The situation is hurting children’s innocence, damaging their future and destroying their lives.
To begin, we must first carefully consider the reason children are being enlisted. It is logical to divide the reasons into two main subsections; the “forced recruitment” and “voluntary recruitment”. First, child soldier recruiters force children to join the armed groups against their will. Armed conflicts need manpower, which may be expensive or unavailable. Commanders often turn to forced child recruitment to remedy this issue, predominantly because of the ease at which children may be targeted. To their eyes, children are light, cheap, susceptible to manipulation, and easy to receive orders and to follow without disobedience.
Besides direct recruitment, there are also cases of ‘voluntary recruitment’. Yet this begs the question as to whether children truly join armed groups voluntarily? What are the contributing factors and underlying motivations for those children? Often, they are experiencing extreme poverty and see the armed forces as a way to survive, to protect their families, to cope the feeling of helplessness and sometimes to seek vengeance (Ilene Cohn, 2001). When there are no other ways than to join the army to fulfill their basic needs, they will participate in armed forces ‘voluntarily’. As a result, “a gun is often a meal ticket” to them (Ilene Cohn, 1994). The conflict itself often feeds into this narrative. Children in conflict may be separated from their families, may become orphaned, or deemed unaccompanied children. They may be economically and socially deprived children, such as street children, refugees, internally displaced children and certain minorities (Working Group on a draft Optional Protocol to the Convention on the Rights of Child, 1995). These elements make them more likely to fall into the traps set by child soldier recruiters. Therefore, we must look critically at whether they actually had a choice in making the decision to “voluntary” recruitment.
Part III. Inconsistency in the International Laws
The international legal field is no stranger to attempt to combat the problem of child soldier recruitment. Yet there are many issues that these laws have not been able to address sufficiently. The first inconsistency in the laws is the minimum age where children can be voluntarily recruited. According to Article 1 of the Convention on the Rights of Child, “child means every human below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier”. However, according to Article 38 (3) of the Convention, it has set the minimum age at fifteen years for the recruitment of child soldiers in hostilities. It means that under the Convention on the Rights of Child, children who are over the age of fifteen can voluntarily participate in the hostilities, outside of the label of child soldiers (Hyndman, 2010). In the case of the Optional Protocol to the Convention of the Rights of the Child, it has set the minimum age at eighteen years for coerced enlistment but the Article 3 allows national forces to recruit voluntary child soldiers under the age of eighteen. Article 77 (2) of the first Additional Protocol to the Geneva Convention has set the minimum age at fifteen years for the participation in hostilities which means that children aged between 15 and 18 are legally allowed to participate in armed conflicts. There is no uniformly set minimum age for ‘voluntary recruitment’. We have to break this inconsistency by setting uniform minimum age of the child recruitment preferably not younger than twenty-one years of age, but in no case less than eighteen years of age (ICRC, 2015).
The second inconsistency in the laws is where children are allowed or not allowed in ‘direct’ and ‘indirect’ participation of hostilities. Both Additional Protocol I and II to the Geneva Convention are specifically focused on the child protection and treatment. According to Article 77 (2) of the Additional Protocol I to the Geneva Convention, children under the age of fifteen should not be participating in “direct” hostilities. This provision imposes an obligation to prevent children under the age of fifteen from getting recruited. However, in other words, this provision is allowing children under the age of fifteen to take part in “indirect” participation. According to Article 4 of the Additional Protocol II to the Geneva Convention, children under the age of fifteen are protected from participating in both “direct” and “indirect” hostilities because it did not specify anything. Article 1 of Optional Protocol to the Convention on the Rights of Child prohibits children from taking part in “direct” hostilities. This discordance worsens the situation of child soldiers because the recruiters can turn the provisions to their advantage. Even though UNICEF defines non-combatants such as porters, spies, cooks or messengers, including boys and girls recruited for sexual purposes, as child soldiers, they will not be considered as “direct” participation and children’s rights will still be violated.
The third inconsistency in the laws regards whether the armed groups or forces are considered as “international”, “non-international” or “non-State”. It is considerably difficult to impose obligations of non-recruitment of children on non-international and non-State armed groups because they are not a party to the conventions, and they are not recognized by the international community. Article 4 of Additional Protocol II, as above mentioned, does not specify any participation type. Because of this, the provision can be applicable both to “international”, “non-international” armed conflicts. However, in the case of the Convention on the Rights of Child, it cannot prevent “non-State” and “non-international” armed forces from recruiting children because it only deals directly with States Parties. This disharmony within the international laws makes it harder to put an end to child recruitment. Not like the past, recent armed conflicts are mostly “internal” conflicts with “non-State” and “non-international” armed forces such as mercenaries, terrorist and rebel groups. In spite of illegitimacy of “non-international” armed groups, they would still be considered criminals and would be convicted under national law, which makes it difficult to persuade them to comply with international standards (David M. Rosen, 2009).
Part IV. Victim or Perpetrator?
It is well accepted that when crimes are committed, the perpetrator has to be prosecuted and convicted, and few would deny that child soldiers have frequently committed serious international crimes. Then, are child soldiers accountable for their crimes? Are they really perpetrators? The culpability and criminal liability of child soldier issues have been persistently ignored by the international community because it has been notoriously contentious. On one side, it can be argued that by joining the armed forces, children lose their innocence, and therefore, should be responsible for what they have committed (Milla Emilia Vaga, 2009). Similarly, Matthew Happod, professor of Public International Law at the University of Luxembourg, raises a question as to whether child soldiers’ rights have really been violated. He argues that, if they are old enough to fight, then they are old enough to be prosecuted for international crimes (2006).
On the other side of the debate, however, is the understanding that children normally lack the mental capacity to make rational choices due to their dependence upon adults. Thus, child soldiers are not making any rational decisions and are not aware of the potential consequences of their actions. The United States Supreme Court has ruled that juveniles are “categorically less culpable” than adult criminals (1982). Moreover, according to Article 40 (3) (a) of the Convention on the Rights of Child, children below the age of eighteen shall be presumed not to have the capacity to infringe the penal law. By this presumption, children do not have criminal liability for their actions. Thus, criminal responsibility should not be imposed on child soldiers because they lack sufficient awareness and mental capacity to commit the crimes.
Furthermore, according to Article 30 of the Rome Statue of International Criminal Court, criminal responsibility may be imposed only if a person committed the crimes with intent and knowledge. Again, children are not mentally mature enough to be aware of a circumstance and consequence as adults. Of course, children may know that it is wrong to hit another person, however they are not able to connect the consequence to individual’s potential death. Even though they have predicted such a consequence, they might not be able to connect the action as a violation of society’s norms (Megan Nobert, 2011). Article 31 of the Rome Statute of International Criminal Court goes on to show other ways in which, children may be excluded from criminal responsibility. Article 31 (1) (a) refers to a person with a mental disease or defect. Do you think children under the age of eighteen can make rightful decisions if they have witnessed their entire family raped and killed in front of their eyes? Article 31 (1) (b) refers to the state of intoxication. Child soldiers are often drugged and intoxicated with alcohol by adult comrades. This causes them to have a lesser understanding of the consequences of their actions, to feel invincible, and to be more likely to follow commands. Article 31 (1) (c) and (d) refers to self-defense and duress. It would be nonsense to say that they are not acting under self-defense and duress. Finally, according to Article 33 of the Rome Statute of International Criminal Court, children may have the defense of superior orders because following orders is not enough to convict children as a grave crime perpetrator.
Then, the question might be raised whether exception of criminal responsibilities would increase the child soldier recruitment. For example, not prosecuting child soldiers for their crimes may lead to their being used by military commanders to do the worst work, so the commanders themselves can stay protected from the repercussions of the law (Rose Grogan, 2009). But in reality, individual criminal responsibility is a core legal concept in international criminal law (Megan Nobert, 2011). Victims of crimes committed by child soldiers have a right to have their attacker be held accountable. Current international law does allow children to be prosecuted for war crimes. It is logical that they should be held accountable, but it should be done through mechanisms targeted specifically towards child soldiers. According to Article 40 of the Convention on the Rights of Child, the process should focus on the promotion of the child’s sense of dignity, worth, rehabilitation and reintegration. Both the Convention and International Covenant on Civil and Political Rights stipulate for a juvenile justice system with specialized judges, prosecutors, and counsel with a focus on rehabilitation and reintegration (Human Rights Watch, 2007). Article 7 of the Special Court for Sierra Leone also allowed prosecution but simultaneously emphasized rehabilitation and social reintegration of child soldiers.
The international laws also put limits on the criminal adjudication process for children. Article 77 (5) of the Additional Protocol I to Geneva Convention says that “penal proceedings shall not be taken against, and sentence not pronounced on, persons who were under sixteen years at the time the offense was committed.”. According International Covenant on Civil and Political Rights, “Detention of a child must be used as a last resort for the shortest period of time possible and that the case be resolved as quickly as possible”. Article 26 of the Rome Statute says that “the Court shall have no jurisdiction over any person who was under the age of eighteen at the time of the alleged commission of the offence. Finally, Article 37 (a) of the Convention on the Rights of Child limits the capital punishment and lifetime imprisonment under the age of 18. However, it may be neither practical nor effective for international criminal law to let all persons under the age of eighteen stands outside the judicial system (David M. Rosen, 2009). Real justice will be achieved when we standardize and set uniform international criminal law regarding child soldiers. It is critical to keep in mind that the purpose of juvenile justice is rehabilitation and societal reintegration because child soldiers who commit war crimes such as torture, maiming, rape and killing in the conflicts are the ones who have no other choice but to be abducted, forcibly recruited and subjected to sustained abuse against their will (Matthew Happold, 2008).
Child soldiers should be cared and protected for, not convicted and punished. It always has been and it always will be the hands of misguided adults who push and force children into the horrific situations. When children are placed there, they often do not understand why they have to fight, or the repercussions of committing crimes. They cannot follow the reality of what is happening. In this situation, they are incredibly vulnerable, and chances that they will violate the rules of war increase. They are being used as mere instruments at war. If they had not been forcibly, unwillingly and unintentionally recruited or joined the armed groups, they would not be in violation of any international laws; rather they would likely be recognized as the vulnerable group in need of protection that they truly are. Child soldiers should be provided with warm care, attention and special protection for them to grow and become functioning, responsible and successful members of the society and the world.
Recruiting children into conflicts has brought severe damage to the global future and peace (Wasantha Seneviratne, 2003). In order to create a more humane world for the status of children, the international community should gather their collective power and authority to encourage good faith in an international effort. Firstly, massive amendments to the existing treaties are needed. There are numerous flaws, loopholes and inconsistencies as aforementioned that jeopardize the well-being of children involved. Secondly, the terms used in the provisions concerning child soldiers are very vague. Almost all the provisions use the term “all feasible measures” which can be interpreted as “if possible”. It is not promoting a complete prohibition if the provisions use the term “feasible”. Steps must be made to move this language to word which command for something to be done, such as “all necessary measures”. Thirdly, the States must accept the norms and rules regarding child soldiers as customary international law. Many countries in the world did not sign and ratify the conventions. A law that is not enforceable is not an effective law. Simply adopting a new series of conventions and paper threats will not alleviate the situation. However, the customary international law is binding to all countries in the world. Therefore, the states should, with the principle of opinio juris, accept and follow the norms as customary international law. Fourthly, there is an urgent need to create an international monitoring mechanism that can ensure, observe and oversee State practices, relevant national legislation and policies. Finally, the international community should mobilize a movement of pressure such as naming and shaming, refusing support for armed forces and sanctioning economically on perpetrating countries (The report of the Special Representative, 1998). From the perspective of child soldiers, the world is still tough and rigid to them. They should and ought to be in a better and suitable situation where they can enjoy promising peace. It is our responsibility to ensure their peace and accordingly it should be very much accountable to them.
Bio: Kevin Gil Hwan Ryu is currently a candidate for Dual M.A. both in International Law and the Settlement of Disputes and International Law and Human Rights at United Nations University for Peace and Hankuk University of Foreign Studies. His study and work interests focus on the legal support for undocumented and stateless children in Asian countries