HOSTILITIES 1 5.1 Introduction
5.5 Prosecuting under-aged child soldiers recruited into non-State- armed groups
In terms of IHL, civilians who participate in hostilities without authorisation, or combatants who are found in breach of the laws of war, can face criminal prosecution. However, given that the recruitment of children under fifteen years of age is unlawful, under both treaty and customary IHL, the drafters of the AP I, through article 77(3), attempted to soften the application of this normal IHL consequence for unauthorised participation in hostilities - in instances where children under fifteen years of age are recruited to participate in hostilities and are captured. At the very least they might be spared the death penalty for their crimes.
Dutli argues that the rationale for this special allowance made for children under fifteen years of age stems from the fact that ‘a child combatant under age fifteen, who is captured cannot be sentenced for having borne arms’ since the breach of AP I article 77(2) lies at the door of the recruiting
party, not on the shoulders of the under-aged child’342. As Grover argues, it would be unjust to prosecute children under fifteen years of age for their participation in hostilities, given that IHL prohibits the recruitment of under fifteen’s, and as civilians the State is obliged to protect these children against involvement in the conflict343.
Neither the CRC nor the OP-AC (the two international treaties dealing specifically with the rights of children in conflict situations) contain ‘a universal minimum age of criminal culpability for committing conflict-related
international crimes’ 344. Neither does either of these treaties contain
directives on when child soldiers should be ‘prosecuted for having committed conflict-related international crimes, or having been part of any armed groups that did so’345. For the most part States set the minimum age for full criminal responsibility at eighteen years of age in their domestic legislation346. In light of this virtually universal position, Grover argues that children involved in armed conflicts under eighteen years of age, should enjoy blanket immunity from criminal prosecution. Grover argues that this same principle of
guiltlessness should apply to child soldiers who were ‘compulsorily recruited or recruited by non-State armed forces (as both are also breaches of
international law)’347. Certainly, any practice that favours the non-prosecution of child soldiers under fifteen years of age endorses the IHL aim of shielding children from the horrors of war. I am not wholly convinced that a similar ban on prosecution applies in cases of child soldiers aged between fifteen and eighteen years of age. Certainly, AP I article 77(3) limits the special leniency afforded children found participating directly in hostilities, to those under fifteen years of age348.
In examining recent judicial practice we find that neither the International Criminal Tribunal for the former Yugoslavia (ICTY), nor the International Criminal Tribunal for Rwanda (ICTR), prosecuted any one under eighteen years of age, despite the fact that there was no provision precluding the prosecution of under eighteens in their statutes. The statute of the SCSL allowed for the prosecution of child soldiers over fifteen years of age.
However the Prosecutor for the SCSL ‘announced that child soldiers would not be prosecuted, as they were not legally liable for acts committed during the conflict’349. Instead, these types of cases were referred to the Sierra Leone Truth and Reconciliation Commission (TRC), because it was felt that a rehabilitative focus was more in tune with the prevailing international legal
342 Dutli ‘Captured Child Combatants’.
343 Grover ‘”Child Soldiers”’ as ‘”Non-Combatants”’: The Inapplicability of the Refugee Convention Exclusion Clause’ at 57.
344 Grover ‘”Child Soldiers”’ as ‘”Non-Combatants”’: The Inapplicability of the Refugee Convention Exclusion Clause’ at 55.
345 Ibid.
346 UNICEF Guide to the Optional Protocol on the Involvement of Children in Armed Conflict.
347 Grover ‘”Child Soldiers”’ as ‘”Non-Combatants”’: The Inapplicability of the Refugee Convention Exclusion Clause’ at 57.
348 The definitive answer to the plight of those between fifteen and eighteen years of age will lie in whether or not this practice of non-prosecution, for want of criminal capacity, can be said to have achieved customary international law status.
349 David Crane ‘Prosecuting Children in Times of Conflict: The West African Experience’
(2008) 15:3 Human Rights Brief 11 at 15. University of Toronto (Law Faculty) ‘Omar Khadr as Child Soldier’ available at
norm350. This ‘rehabilitative’ focus is favoured in the Paris principles which maintain that ‘children accused of crimes under international law, allegedly committed while they were associated with armed forces or armed groups, should be considered primarily as victims of offences against international law, not only as perpetrators’351.‘They must be treated in accordance with international juvenile justice standards and norms, and within a framework of restorative justice and social reintegration’352. The ICC, for their part, has specifically limited its jurisdictional reach to those over eighteen years of age, as ‘those who are universally accepted as not being children under
international law’353.
The existing jurisprudence from the ICTY, ICTR, SCSL and ICC, suggests ‘that children under age eighteen can expect to avoid criminal responsibility before international tribunals for grave violations of IHL’354. Moreover, ‘no international criminal tribunal established under the laws of war, from Nuremberg forward, has prosecuted a former child soldier for violating the laws of war’355. Moodrick-Even Khen argues that this fact is
‘owing to the belief that the factors which influence a child’s participation in hostilities mitigate the requisite mens rea necessary for criminal culpability’356.
Despite this historic leniency shown towards children under eighteen years of age caught up in conflict situations, there is no explicit IHL provision which would legally ‘exclude penal proceedings in respect of serious
breaches of IHL committed by children’357. Unfortunately this leniency has also made child soldiers the ideal type of combatant - their age allows them to feign protected civilian status, and they have little incentive to observe the laws of war if they are unlikely to face prosecution. Brett and McCallin argue that the ‘greater suggestability of children, and the degree to which they can be normalised into violence, means that child soldiers are more likely to commit atrocities then adults’358. Those fighting child soldiers can expect little respect for IHL from these children. Instead they should expect ‘false
surrenders, hiding among civilians, and POW executions’359. Singer reports that child soldiers often fail to observe the legal protections afforded hors de combat, and they have been known to target humanitarian workers and journalists360. In fact Amnesty International argues that where child soldiers have been voluntarily recruited, and satisfy the State’s domestic law for criminal culpability, they should in fact face criminal prosecution for their actions361.
While it may be compelling to make a case for the non-prosecution of child soldiers under eighteen years of age (regardless of whether the
350 David Crane ‘Prosecuting Children in Times of Conflict: The West African Experience’ at 14. 351 UNICEF ‘Machel Report’ at 76; Francioni and Ronzitti War by Contract: Human Rights, Humanitarian Law and Private Contractors at 267.
352 UNICEF ‘Machel Report’ at 76.
353 Freeland ‘Mere Children or Weapons of War - Child Soldiers and International Law’ at 51.
354 UNICEF ‘Machel Report’ at 203 and 205.
355 University of Toronto ‘Omar Khadr as Child Soldier’.
356 Moodrick-Even Khen ‘Children as Direct Participants in Hostilities’ at 3036-3044.
357 Crimes of War Child Soldiers; Dutli ‘Captured Child Combatants’.
358 Brett and McCallin Children the Invisible Soldiers at 25.
359 Singer Children at War at 168.
360 Idem at 102.
recruitment was voluntary or forcible), until the straight-eighteen ban can be said to have achieved customary status, the voluntary recruitment of over fifteen’s is technically not unlawful: an argument that has been used by those facing prosecution before the ICC for child recruitment362. Without an element of force at the time of recruitment, there might very well be a legitimate case to be made for prosecuting children over fifteen years of age who participate in hostilities without authorisation, or who are found to be in breach of the laws of war. I would argue that any special practice of not actively
prosecuting363 children under fifteen years of age under IHL364, must logically be extended to children under eighteen years of age where they are forcibly recruited, even in instances where the straight-eighteen ban is not legally applicable. This conclusion is supported by the jurisprudence from the ICTY, ICTR, SCSL and ICC. Unfortunately those over fifteen years of age, who voluntarily sign up to participate in hostilities, should be aware that there is no international legal prohibition against their prosecution.
While child rights advocates may disagree on whether to prosecute or not, there is generally agreement that in the event of such prosecutions, child soldiers ‘should always be evaluated according to their age, and as a general rule educational measures, rather than penalties, will be decided
on’365. ‘There is no doubt that if children involved in military operations are captured, they must receive the special treatment and protections366
appropriate to their age, meaning that such children should be treated with pity rather than detestation’367. Even if children take part in hostilities and fall foul of the IHL requirements for combatant status368, API article 75 sets out the basic minimum humanitarian guarantees and fair judicial procedures which they are entitled to upon capture369 - for the protection of all persons including children. Despite these guarantees, in a number of countries
(Burundi, DRC and Myanmar) child soldiers, some as young as nine years of age, have been arbitrarily detained, tortured and sentenced to death for participating in hostilities370.
The one thing that both sides of the debate can agree upon, however, is that international criminal law must be seen to be prosecuting those, like Lubanga, Ntaganda, Kony, Katanga and Chui - found recruiting child soldiers371. Mercifully both the ICC372 and the SCSL have insisted that
362 It was the submission of the Special Representative before the ICC in the Lubanga trial, that the psychological voluntariness of these actions were questionable (Wakabi ‘Lubanga Trial Highlights Plight of Child Soldiers’).
363 Ipsen (1995) ‘Combatants and Non-combatants’ at 73.
364 Ibid.
365 Crimes of War ‘Child Soldiers’; Dutli ‘Captured Child Combatants’.
366 IHL specifically precludes the ‘imposition of the death penalty on anyone under the age of eighteen at the time of the offences’ (GC IV article 68, AP I article 77(5); Crimes of War ‘Child Soldiers’).
367 Udombana ‘War is Not Child’s Play! International Law and the Prohibition of Children’s Involvement in Armed Conflicts’ at 76 and 77.
368 ‘Even if child soldiers, as members of irregular forces which fall foul of the GC III requirements, and are deemed unlawful belligerents’ (Ipsen (1995) ‘Combatants and Non- combatants’ at 68).
369 AP I article 75; GC III articles 99-108; Ipsen (1995) ‘Combatants and Non-combatants’ at 68).
370 Coalition against Child Soldiers Child Soldiers Global Report at 18.
371 Cynthia Chamberlain (2010) ‘Children and the International Criminal Court’ in Noëlle
children under fifteen are unable to consent out of the international law protection afforded them against recruitment373. In light of the circumstances in which child soldiers are frequently ‘enlisted’ into non-State-armed groups, to ‘accept consent as a defense would be to negate the whole policy behind such prohibitions’374. If a child lies about their age, or claims to truly volunteer - does this negate the unlawfulness of their recruitment and thereby make them vulnerable to prosecution?
In the words of Radhika Coomaraswamy, the U.N. Secretary-General’s Special Representative for Children and Armed Conflict, ‘leaders of armed groups could not hide behind the excuse of a child having joined their groups voluntarily’375.‘Failure to refuse the voluntary enlistment of children to the armed force is thus a war crime’376. Sadly, those child soldiers over fifteen years of age are still legally able to consent to recruitment, and without
domestic legislation to the contrary (pursuant to the ACRWC or OP-AC), their participation is strictly speaking not prohibited.