By:
Ogbewekon Ruth, Llb
Abstract
Since the conviction of Thomas
Lubanga Dyilo of the war crime of using child soldiers by the International Criminal
Court (ICC), there has been an increased debate on the criminal liability of
child soldiers. While the international community has repeatedly considered
child soldiers as victims because they were enlisted involuntarily, one cannot
turn a blind eye to the fact that these children participated in committing the
most heinous crimes known to man. In international criminal justice, individual
players are either considered victims or perpetrators. Consequently, there is a
question as to which category child soldiers belong. International criminal law,
that is the Rome Statute, has sought to address this question by placing an age
below which one is considered a victim, and above which, one is considered a
perpetrator. However, in doing so, an impunity gap has been created. These are
the issues that this article seeks to address.
Who are Child Soldiers?
Incidences of child soldiers are neither
new nor uncommon in the world as they date as far back as the First World War
and the events thereafter. However, since 1998, there has been increased
involvement of child soldiers in at least 36 countries.[1]
One of such cases was the situation in the Democratic Republic of Congo, which
led to the conviction of Lubanga for War Crimes by the ICC. It was alleged that
30 percent of the militia controlled by Lubanga were child soldiers.[2] Article 1 of the Convention on the Rights of
the Child (CRC) defines a child as anyone below the age of 18; therefore, any
soldier below the age of 18 is a child soldier. Furthermore, a child soldier is
one who has not attained the age, above which they can voluntarily join an
armed force. The age for joining the military varies from
jurisdiction-to-jurisdiction, as it is often determined by a State’s Municipal
laws. For instance, Tajikistan has by average, the lowest enlistment age at
fifteen, whereas Argentina has the highest enlistment at age twenty one.
Furthermore, the United Nations Children’s
Education Fund (UNICEF) defines a child soldier as any person under the age of
18 who is part of any kind of regular or irregular armed force or armed group
in any capacity.[3]
In International Criminal law, the Rome statute[4] sets
the minimum recruitment age at fifteen and makes it a war crime to recruit,
enlist or conscript persons under the aforementioned age. Impliedly, a person
below the age of fifteen who was or is currently recruited, is thereby a child
soldier under the statute.
Child Soldiers as Victims
It has been argued that any sort of
military service, even voluntarily, by children below the age of 15 is a
violation of the child’s welfare rights; and as such is contrary to their best
interests. The International community has repeatedly shown reluctance to
prosecute persons below the minimum age for crimes, opting to regard them as
victims rather than perpetrators. This is evidenced by international laws which
address armed conflicts, including International Human Rights law and
International Humanitarian law emphasizing child soldiers as victims. The
Convention of the Rights of the Child,[5]
including the optional protocol, the African Charter on the rights and welfare of the child and the Geneva
Convention’s additional protocols I[6]
and II[7]
all suggest that children below the age of 15 have a right not to be recruited to take part in
hostilities. Therefore, those who are recruited have had their rights violated
and by reason of this violation, are thereby considered victims. These provisions
found their way into International Criminal law and practice. The statute of
the Special Court for Sierra Leone (SCSL)[8]
and the 1998 statute of the ICC[9]
both made it a crime to recruit and enlist persons below the age of 15.
Additionally, Article 30 of the Rome
statute is very clear where it provides that a person can only be criminally
responsible where they committed a crime under the statute with intent. This
brings in the issue of the mens rea,
and the question therefore that should be asked is whether children have the mental
capacity required to commit these international crimes. Karl Marx argues that
one who is not free cannot be held responsible for their actions.[10]
Extending his arguments to this context, a child soldier can only be regarded
as a perpetrator where he has acted as a free being. This brings us back to the
argument of whether child soldiers are really victims. Since children below the
age of 15 are considered incapable of making a voluntary decision to join the
armed force, it is assumed that acts committed whilst under that force are
committed involuntarily and in the presence of vitiating factors, due to the
absence of mens rea. Consequently,
child soldiers cannot be considered perpetrators by reason of evidence of
capitalization and manipulation by the adult, which puts them in the realm of
victims.
Criminal Responsibility of Child Soldiers
It has been
argued that the humanitarian approach which categorizes child soldiers as
victims is normative and incomplete.[11]
This is because it was developed without a true understanding of the nature of
children.[12] According to David Rosen,
one really cannot tell where childhood ends and where adulthood begins. This
transition differs by context and is not as easily identifiable as
international human rights and humanitarian laws make it out to be.[13]
Rosen also argues, albeit controversially, that the majority of child soldiers
join armed forces voluntarily, and as such are in control of their actions.[14]
Consequently, the argument that child soldiers lack mens rea because vitiating factors such as duress are involved is a
notion as opposed to being factual.
Another reason
why child soldiers ought to be held criminally responsible is because it is in
the interest of justice.[15]
In as much as child soldiers may be considered victims, what cannot be ignored
is the fact that they are perpetrators of heinous crimes. Amnesty International
argues that any person who has been responsible for the commitment of
international crimes ought to be held criminally responsible.[16]
The rationale being that victims of these atrocious crimes want justice for
their suffering, and failure to prosecute child soldiers who are responsible inadvertently
is the promotion of impunity. A
demonstration of this argument was seen in Rwanda, where there was a widespread
view in favor of prosecuting child soldiers responsible for the 1994 genocide.
A Rwandan Save the Children Federation study found that the majority of public
opinion supported the view that child soldiers ought to be brought to account
for their actions during the genocide.[17]
The desire for justice against child soldiers was strong, particularly from
those who had fallen victim to child soldiers. It has been established that the
underlying principle of the prosecution of persons responsible for
international crimes is justice. Therefore, in achieving the said justice, we
must not favor one category of perpetrators over another. No one wants to see
persons; whether children or adults, responsible for the death of a loved one
out, of the reach of justice, or protected by the very same law that ought to
promote justice.
The gap in International Law
As mentioned earlier, International
law does not consider children as perpetrators, and this position has
influenced the reaction of the international justice system over child
soldiers. In the past, the statutes establishing the ad hoc International Criminal Tribunals for the former Yugoslavia
and Rwanda are silent on the subject of whether those under the age of 18 can
be tried. As such, the eventual prosecution was on the discretion of the
prosecutor. Although the Special Court for Sierra Leone was the first
international source of law that allowed for prosecution of children charged
with international crimes, the Court’s mandate that it would prosecute only
those who ‘bore the greatest responsibility for crimes committed in Sierra Leone’
did not extend to child soldiers. In fact, the Prosecutor stated that he would
not pursue child soldiers for crimes they had committed. These instances
reflect the reluctance of the international courts to prosecute child soldiers.
This position influenced the making
of the Rome Statute. Article 26 of the statute provides that the ICC has no
jurisdiction over persons who when committing international crimes, were below
the age of 18. In light of the
definition of a child by the CRC, the ICC has no plan to prosecute child
soldiers. While Article 26 of the Rome Statute allows for impunity, when read
together with Article 8, a gap in international criminal law is created.
Article 8(2)(b) and Article 8(2)(e) of the Rome Statute makes it a crime to use
persons below the age of 15 as soldiers in warfare. The implications of these
provisions are that persons above the age of 15 can be recruited into armed
groups. Considering that Article 26 of the statute only considers persons above
the age of 18 criminally responsible, the question then is what is to be done about soldiers between the ages
of 15 and 18, who are responsible for serious international crimes.
In an attempt to create an
international age for which children will be held criminally liable, the Rome Statute
has created an even bigger issue. Following the victims’ argument on child
soldiers, the statute has left a category of persons vulnerable to
exploitation. Considering that it is not a crime to recruit persons aged 16 and
17, this age group is potentially at a risk of become the target of warlords
and commandeers in armed conflict. What the Rome Statute has done is to push
the jurisdiction to prosecute child soldiers between the ages of 15 and 18 to
domestic courts; where the primary jurisdiction rests. It is important to note
that this gap may be one which would be detrimental to the ICC. Bearing in mind
that the jurisdiction of the court is complementary to those of individual
states, where states cannot prosecute domestically, the ICC steps in. In light
of this, we would have a category of persons who because of their age, are essentially
above the law. This gap in the
International Criminal justice system is one which must be resolved if the ICC
is to fulfill its mandate.
Conclusion
The question on whether child
soldiers are victims or perpetrators is one which remains a contentious issue
to date. They cannot be victims because this would impair justice and neither
can they be perpetrators because, objectively due to age, they lack the mental
capacity to commit crimes and are ultimately susceptible to violation of their
rights. Scholars have suggested that perhaps we ought to have a special status
in international criminal law for child soldiers. However, this may be
problematic because it must be decided, whether the special status is an
extension of the victims’ status or the perpetrators’ status. International
Criminal law in a bid to resolve this debate has created an impunity gap for
persons aged between 15 and 18. There is
grave need for the international justice system to address this issue, lest it
commits grave injustices to both victims and the perpetuators.
[1]
According to Child soldiers.org
[2]
http://www.iccnow.org/?mod=drctimelinelubanga – Accessed 15the July 2015
[3]
http://www.unicef.org/emerg/files/childsoldiers.pdf - Accessed 15th July 2015
[4]
Art. 8(2)(b)(xxvi) and Art. 8(2)(e)
[5]
Article 38(2) Convention on the Rights of
the Child
[6]
Article 77(2) of Additional protocol I of the Geneva convention of 1977
[7]
Article 4(3)(c) of the Additional protocol II of the Geneva Convention of 1977
[8]
Article 4(c) of the 2002
[10]
J Angelo Corlett,
Responsibility and Punishment, 3d ed (Dordrecht, Netherlands: Springer, 2006)
[12]
ibid
[13]
David Rosen, ‘Child
Soldiers, International Humanitarian Law, and the Globalization of Childhood’
(2007) 109(2) American Anthropologist 296, 302
[14]
ibid
[15]“
Liability of Child
Soldiers under international criminal law” by Fanny Leveau (Osgode Hall Review
of Law and Policy, 2014) 43
[16] Child Soldiers; Criminals or Victims? By Amnesty
International (December 2000) 6
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