Child Soldiers & Truth Commissions: Issue of Prosecuting Child Soldiers

Introduction:

The court of public opinion has condemned forcing children to participate in hostilities, particularly as soldiers. The public also demands those responsible for war crimes are held accountable for the atrocities they commit. What happens when those who commit atrocities are the same group both the public and court systems have determined should be protected? This paper scrapes the surface on the issue of children who commit war crimes. The prosecution of child solders for war crimes is immoral, illogical, and legally problematic. I will argue that the state/non-state actors should be held liable as culpable for the crimes committed by child soldiers. I will begin by determining the child’s legal rights and responsibilities through discussion of the international legal foundation. I will then describe real-world events concerning child soldiers. Finally, I will suggest an efficient alternative to the court system.

1. Foundation Through International Law

There are many thousands of child soldiers actively serving in hostilities around the world.[1]               Legally, a child soldier is any “. . . member of [the] armed forces who have not attained the age of 18 years . . ..”[2] The definition of a child soldier includes children outside of, though still connected with, the hostilities because of the fundamental fact that children are vulnerable.[3] UNICEF defines a child soldier as:

A child associated with an armed force or armed group is any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity – including, but not limited to, combatants, cooks, porters, messengers and anyone accompanying such groups, other than family members. The definition includes girls recruited for sexual purposes and for forced marriage.[4]

The question of how long children have been involved in warfare relies less on a temporal line and more on the development of the concept of childhood.[5] Since what constitutes a child varies across cultures, it is extremely difficult to set an exact and culturally relevant definition of child soldiers. The range of legal conscription varies from state to state. Although Paraguay currently has the youngest acceptable legal conscription age at fourteen years old, Turkey, Albania, and Senegal require the child to be nineteen years old before he can conscript.[6] What may be one group’s children could be another’s warriors.

Early international law assumed active players were men of legal age.[7]  Unfortunately, that assumption led to a lack of legal protection for child soldiers involved in hostilities.[8] It was not until the end of World War II during the draft of the Geneva Conventions of 1949 that societies began to emphasize the need for protecting children who take up arms.[9] Protection for child soldiers was furthered in the Geneva Conventions Protocols I and II by the restrictions surrounding child conscription.[10] During this time, the issue of child soldiers became a global focus point of concern.[11] In 1989, the Convention on the Rights of the Child (CRC) and the Optional Protocol to the CRC brought more light to the issue.[12]

1. Do the Children Have a Legal Right?

State and non-state actors have an obligation to forgo the conscription, enlistment or the use of children to actively participate in hostilities in both international and non-international conflict.[13] The obligation to state and non-state actors identifies a child’s right not to participate in hostilities under international law.[14] The argument has been made that children under eighteen years old do not objectively have the mental capacity to understand and abide by legal obligations directed at combatants through International Humanitarian Law.[15] These children should not be allowed in active combat in order to protect surrounding people as well as the child himself. The obligation to the states and non-state actors are in multiple treaties and the treaties are signed and ratified by a wide array of states.[16]

Protocol I, article 77(2) of the Geneva Conventions establishes an obligation to all parties involved in a conflict to:

. . . take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavor to give priority to those who are oldest.[17]

Article 77 specifically addresses the obligation to restrict children from participating “directly” in hostilities.[18] After Protocol I was initiated, children under fifteen were still allowed to partake in indirect participation such as, but not limited to, cooks, messengers, reporters, and assistants. It is not until Protocol II, article 4(3)(c), that children under the age of fifteen “shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities.”[19] Therefore, in the ideal world, the Geneva Conventions and Protocols I and II provided children with arguably the best protection possible when it came to the effects of war.

Protocol I of the Geneva Conventions and the CRC are practically identical in the sense that they lay out the same position.[20] Unfortunately, they also manifest identical escape routes.[21] The Optional Protocol of the CRC is the first time in international law where we see a restriction to the minimum age of recruitment.[22] Other than imposing an obligation on the states to raise the minimum age of recruitment to eighteen, the Optional Protocol simply reiterates the CRC. Thus, it allows indirect participation of children under fifteen in hostilities. Nonetheless, the Optional Protocol pushes child soldier regulation by establishing another duty of the states to “. . . take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices.”[23]

The Optional Protocol not only tries to fill existing gaps relating to the issue of child soldiers, but it also creates an area for children who want to serve voluntarily. By restricting compulsory recruitment of children under the age of eighteen, the vagueness addressing children who seek out enlistment creates an area for voluntary recruitment never seen before in any of the prior legal international instruments. Although the Optional Protocol opens the door to voluntary recruitment, it restricts states to “not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.”[24] This can therefore be seen as a dual standard endorsed within international law through the duty on state and non-state actors concerning the recruitment of children under eighteen years of age into combatant forces.

The International Labor Organization on Worst Forms of Child Labor further imposes the duty on states to “. . . take immediate and effective measures to secure the prohibition and elimination of . . . forced or compulsory recruitment of children for the use in armed conflict . . .” as one of the “worst forms of child labor.”[25] Similarly to the Optional Protocol of the CRC, the International Labor Organization leaves room for recruitment under a pretense of voluntary enlistment.

The International Criminal Court recognizes as a war crime (under the Rome Statue) the recruitment of children under the age of fifteen directly into combatant forces or supportive groups, as well as using the children to actively participate in hostilities in any kind of conflict.[26] The International Criminal Court has acted upon such crimes in several instances primarily against state and non-state violators in Africa who recruit children to participate in active combat during hostilities.[27]  It is now, not only humanitarian law, but also customary law to restrict the recruitment of children under fifteen and their direct placement in armed conflict.[28]

The United Nations Guidelines on International Displacement also draws attention to child soldier conscription.[29] There is a further concern that displaced children are being easily coerced into armed forces. The United Nations dictates an obligation on state actors to safeguard displaced children by making sure there are no displaced children recruited or involved in hostilities.[30] Following the United Nations Guidelines on International Displacement, there have been multiple United Nations Security Council Resolutions passed in respect to addressing the problem of child conscription and recruitment.[31]

As laid out above, we can see there are many different treaties, guidelines, and international statutes that have taken various approaches to addressing the issue of child soldiers. The overarching universal component addressed by all of these organizations, legal strategists, and drafters is the commitment to the duty placed on the state and the non-state actors to limit or ban conscription of child soldiers. There is a universal understanding and push for the protection of child soldiers through the restriction of specific recruiting and, further, active involvement in combat and hostilities. Therefore, an international right of the child can be drawn: children have the right not to take part in hostilities. The children’s rights correspond with the duty directed at the parties involved in armed conflict (to neither conscript child soldiers nor involve the ‘voluntary’ child soldier in direct hostilities).

2. What if a Child Decides to Voluntarily Enlist?

Children involved in hostilities are entitled to special protections which, in turn, allow the child more protection than adult combatants. Provisions within various international legal documents cast a duty on states and non-state actors to guarantee interminable special provisions for the children.[32] The special protections are always in effect, favoring the child. If the child enters the battlefield despite the provisions of the various legal duties cast upon the parties to the conflict, the law favors the child with the benefit of the doubt.

For instance, captured child soldiers retain their special protection despite the violation of “direct involvement” clauses.[33] Once the child soldier is captured, he automatically falls under the conventions of the Prisoner of War and awarded this status.[34] Unlike adult combatants, the Prisoner of War status granted to the captured children cannot be withheld via International Humanitarian Laws for violating crimes against humanity or other equivalent crimes.[35] Furthermore, children have the right, and the state has the duty, to provide children with special care and aid.[36] Child soldiers have a right to, but not limited to, education, reunification with their families, recreation, and health necessities. Thus, the special protections of child soldiers are a significant and important variance compared to the general protections of combatants.

2. What is Actually Happening

Although there are many international documents aiding with the restriction of child conscription, the issue of child soldiers still exists globally and on a large scale. There are many incentives to use children in armed conflicts. For instance, compared to people of age, children are much cheaper, they genuinely do not have as high of a regard for their health, and they are more compelled to follow orders without questioning the morality or ethics.[37] The problem of children soldiers is wide spread and includes reports from various countries around the world.[38] In 2018, the primary countries using child soldiers includes Afghanistan, Myanmar, Somalia, South Sudan, Sudan, Syria, and Yemen.[39] Children are recruited into many different groups involved in armed conflict. Such groups are militias, governmental military groups, paramilitary groups, armed groups in opposition of state policies, etc. There are also a wide variety of roles the child can serve within these groups, such as a combatant, support roles (cook, custodian, receptionist, etc.), messenger or carrier, and even sex workers.

Historically, child conscription was predominately done within state borders between non-state actors and miscellaneous children.[40] Now, it is not uncommon, especially in Africa, for state and non-state actors to travel across the borders and recruit children from other states as a resource to build their numbers while using vulnerable children that belong to another state.[41] Essentially, this is a win-win for these actors because there are more children available while the death of these out-of-state child recruits mean nothing to the actors the children are fighting for; the children are expendable.

Globally, it has become a problem that children are forced to conscript by means of abduction or coercion.[42] It is common for families to be threatened with murder charges or displacement charges to push the parents into giving up the child to the armed forces.[43] Powerful factors such as these can influence a child soldier to be even more unpredictable or uncontrollable in combat situations. Lately, reports indicate the majority of child soldiers serving are ‘voluntary’ enlistments between the ages of 14 through 18 years old.[44] But the question arises, what do these reports mean by ‘voluntary.’

It is concerning to connect the term ‘voluntary’ in with child soldiers. One of the reasons the use of ‘voluntary’ is concerning is because the child’s intent to voluntarily enlist is not motivated by free will.[45] Black’s Law Dictionary defines “voluntary act” as “a bodily movement that is a product of the effort or determination of the actor, either conscious or habitual . . ..”[46] A customary universal understanding of anything being voluntary involves free will. If a child is faced with the decision to enlist in the arm forces while holding the belief there is a lack of a better alternative, then is his act truly ‘voluntary?’

A large number of children who voluntarily enlist regard the decision as situationally rational because they do not have many alternatives.[47] In many countries, especially third-world countries, children do not have a right or a means to education.[48] Depending on the child’s condition he may not be able to obtain a job other than through enlistment.[49] There are many other pressing motivations persuading the child, such as destruction of his family, abandonment, socio-economic policies, not having the tools necessary to survive, poverty, or simply the dire desire to break away from violence or abuse.[50]

Another reason to argue the child’s decision to enlist is not voluntary is when his decision is driven by emotion rather than reason. For instance, a child may be inclined to enlist because of his desire for revenge against the opposition forces when they killed his father. He could be motivated by a want for a social status, or a status that includes power and control. He may be driven through jealousy as he sees enlisted members walking through the village sporting a gun. The child’s decision may be driven through an emotional attachment via heritage, such as family peer pressure, the honor associated with martyrdom, or continuing furthering political policies. The child may choose to enlist simply in light of a common characteristic of children, the desire to obey authority, or pursue approval. Whatever the underlying emotion may be, as a consequence of immaturity linked to adolescence and youth tied with emotion driven decisions, it is arguable the child’s decision was adequately thought through. Therefore, the child’s arguably poorly informed decision should not equate into a voluntary decision.

Despite whether the child voluntarily or involuntarily enlists, it does not change the reality; children are actively on the battlefield. Each day, children commit atrocities and war crimes while serving as combatants. Unfortunately, what the majority of societies overlook is the fact that behind every child soldier and his actions is a commander’s voice and command. Thus, begging the question, who is at fault for the actions committed.

3. Who Should Answer for Child Soldiers’ Criminal Actions?

Child soldiers are held just as responsible as soldiers of age when it comes to facing charges for breaking laws and customs of war during conflict.[51] International humanitarian law remains silent on what age can be held criminally liable for war crimes.[52] In Article 26 of the International Criminal Court, it restricts the court from prosecuting any person under the age of eighteen.[53]  Domestic laws hold the power and recognizes the responsibility of child soldiers who violate laws in international and domestic armed conflict.[54] Similar to accused adults, children who have been accused of committing war crimes do not hold the same freedoms as individuals who have never been accused. For example, any country that has ratified the Convention of the Status of Refugees of 1951, will refuse the status of refugee to any individual who has undergone a serious inquiry as to whether he committed a war crime.[55] The denial of refugee status is despite whether the child is convicted or simply accused of the crime.[56] Therefore, the effects from allocation, let alone convictions of war crimes, have a significant impact on a child legally, mentally, and in extreme cases (such as execution), physically.

When a child combatant under the age of eighteen is captured by opposition forces, the child cannot be prosecuted through international law for being directly involved in active hostilities. Throughout the international treaties, the duty to restrict child soldiers from being directly or actively involved in hostilities belongs to the state or the non-state actor involved in the armed conflict.[57] The state or non-state actor who placed the child combatant directly into hostilities is the culpable party responsible for violating the treaty. While the child directly participated in the hostilities after conscripting does not mean the child is the actor who violated the International Humanitarian Law.

The child soldier as the conscriptee belongs to the conscriptor immediately after the act of conscription. The conscriptor, that is the state or non-state actor, now holds the power to determine where and what the conscriptee/child will do. The duty to keep the child soldier out of direct hostilities lies with the state/non-state actor. The power to place or withhold a child from the direct hostilities belongs to the state/non-state actor. If the state/non-state actor has a duty and is in full control over the child, along with the discussion of the various coercive motivators that drive children to enlist, it begs the question: how logical and/or morally acceptable is it to hold child soldiers criminally responsible for their actions during war?

1. Prosecutions of Child Soldiers are Problematic:

Child soldiers are merely an expendable means to the state/non-state actor in achieving a win. The child soldiers were trained by the state/non-state actor to commit the war crimes simultaneously as they were likely coerced to enlist and then forced into direct involvement in active hostilities. In any other circumstance, should a person (despite his age) face charges for his actions that he was forced to do while undergoing a position he was strong-armed to take up, notwithstanding the reality that he has a right not to take up such position? Do general criminal law defenses, such as infancy or duress, negate the circumstances seeing as how the issue associates children placed under special circumstances?

1.                  Problematic on moral grounds:

To discipline child soldiers for war crimes, despite their unique circumstances of coercive conscription and a lack of autonomy within a hostile environment, seems wrong from both a moral and a logical context. An individual, despite his or her age, should have an absolute ability to exert free will in choosing what is right compared to what is wrong all while he has been susceptible to agreed-upon customs of behavior and morality of his culture before he should be held accountable for his actions. It is common for children who are conscripted at young ages to not have had the culture exposure required to gain an understanding of what standards are acceptable in social conduct.[58] How can society hold such children responsible for their actions when the children have yet to have the ability to learn what is acceptable

Prosecuting child soldiers of war crimes can be considered as retrospective criminal jurisdiction. Bearing in mind the international law that bars underage conscription of children into armed conflicts, the children facing prosecution are being tried for actions that were void from the beginning. Not only are the states who conscripted the child soldier answerable for breaching the conscription law, but under the Convention of the Rights of the Child, the states are accountable for breaching their duty to safeguard children in connection with the administration of retrospective disciplinary laws.[59]

2.                Problematic on logical grounds:

The international treaties and laws addressing child conscription specifically place the duty to refrain from conscripting minors on the adults.[60] All of the international conventions hold the adults responsible. Although the focus is on the child in the respect that society wants to keep children out of involvement in hostilities, the law penalizes conscription, not participation.[61] Here lies an argument of drafters’ intent. The drafters clearly see the adults as the people responsible for protecting children by keeping the children out of armed conflicts. If they wanted the children to face penalties, the drafters could have added a clause specifying a child’s duty to refrain from conscription or participation in the first place. As a result from the drafters decision to refrain from an added clause of an obligation directed at a child, instead, it can be derived as a right for the child to not have to conscript. As a right, the child is now faced with a decision to refrain from conscription rather than an obligation one way or another. Courts should not punish a child for his second-order right to decide whether to serve in the armed forces. It is clear the drafters left indirect affirmation of the necessity to inhibit the unfavored reaction of prosecuting child soldiers who violate war crimes.

3.             Problematic on legal grounds:

If courts prosecuted child soldiers for their actions, while the children were powerless, following the orders of their commanders, it would defy a main objective of criminal law: deterrence. In criminal law, the deterrence effect is accomplished merely through the prosecution of the individuals that the law names as being accountable for a specific criminal action.[62] The commanders hold the initial accountability through the power of creating or refraining from violations of the law. Therefore, it is counter-productive to hold the children responsible for and punish the children for their criminal actions ensuing from the coercion of their commanders. When the children are punished in place of the commanders who originally gave the orders to act in a manner that violates war law, the commanders are hold a form of impunity, or freedom, to act any way they desire. This sense of impunity is a heavy incentive for commanders to continue illegal conscription, knowing the child soldiers will take the fall for the war crime, but only after the child commits the crime. Therefore, the commander keeps his clean hands while still indirectly accomplishing his criminal act through an expendable child.

2. Three General Criminal Law Defenses:

Child soldiers are being charged with criminal war crimes. That being said, it is worth analyzing general criminal law defenses and the relation to child soldiers. Are child soldiers legally culpable if they can prove a lack of mens rea?[63] There are three general criminal defenses that are most related to child soldiers: infancy; duress; and intoxication.

1.                  Infancy:

Lack of mens rea for infancy is centered around the idea that children have not adequately developed their mental capacities in such a way to understand what they are doing is socially not acceptable.[64] There is much debate between states on when a person is mentally mature.[65] There currently is not a clear-cut answer to the international problem of determining a universal minimum age for responsibility of criminal actions. While the Convention of the Rights of the Child acknowledges the dispute and grants individual states the right to decide what age is appropriate to criminally punish, the Geneva Conventions and all of the Protocols are simply silent and do not refer to a minimum age. [66]

The International Criminal Court follows a procedural rule via statute that “[t]he Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.”[67]  It is possible the drafters’ intent by including this clause is to recognize the minimum age disputes and stay clear of the disagreements and instead pass matters relating to child soldiers on to the national courts who have jurisdiction.[68] While the International Criminal Court outright forbids the prosecution of children under the age of eighteen in their courts, both the International Criminal Tribunals of the former Yugoslavia and Rwanda neither have a statue forbidding such prosecutions, but neither tribunals have prosecuted any person under eighteen years old for criminal actions within their jurisdictions.[69]

In the Sierra Leone civil war of 1991-2002, there were approximately 50,000 casualties.[70] Although there are no exact numbers, it is estimated that there were between 5,000 and 10,000 child soldiers directly involved as participants in the atrocity.[71] The child soldiers committed horrifying crimes in massive numbers. The Special Court created to address the atrocity of Sierra Leone created a distinct procedural rule in regard to age; no child under the age of fifteen will be prosecuted or appear before the court, however children between the ages of fifteen and eighteen can be prosecuted.[72] Interestingly enough, there is no record that anyone under the age of eighteen was prosecuted.

The European Court of Human Rights references a connection made by the Beijing Rules when making the holdings in T v. United Kingdom and V v. United Kingdom. In both cases, the European Court of Human Rights held that notwithstanding universal agreement, the ideology that there is a problem with fixing the age for prosecution of child soldiers too low expresses a connection between criminal responsibility and a lack of maturity.[73] Therefore, depending on the jurisdiction and state trying the war crimes, a general defense of infancy is possible to safeguard child combatants.

2.                Duress:

When a person commits a crime in duress, he has intention, but it is an intention that manifests solely from an inescapable threat. As discussed above, it is possible and highly probably the child was coerced into conscription. The coercion, however, is not prima facie evidence of duress. As seen by the European Court of Human Rights, the law requires more evidence for a duress claim. Specifically, the law requires a direct threat causing him to commit the crime he is being tried of.[74] Although the initial coercion into the armed forced does not meet the required evidence to qualify as actions under duress, many child soldiers are faced with additional coercive measures forcing the child to commit atrocities and other war crimes.[75] It would not be very difficult to construct an argument and the proper evidence to support a duress defense.

3.             Intoxication:

The third general criminal defense a child soldier is likely to apply is the defense of intoxication. The child soldier must provide evidence to support the defense that the child was involuntarily drugged or intoxicated so that the child would carry out the criminal action. The key to this defense is the word ‘involuntary.’ A child must be forced into the intoxication without the power to stop it or was unaware of the intoxication. If a child soldier voluntarily becomes intoxicated or is voluntarily drugged, the child cannot rely on an intoxication defense. This includes if the child soldier only took the drugs or became intoxicated because he wanted to limit his drive to not fulfill an order he generally would be unwilling to perform.

All three general criminal defenses are possible and probable defenses the defense counsel will likely raise at trial. Each of these defenses can and will support the idea that child soldiers should not be held responsible for their criminal actions because of various degrees of lacking mens rea. Put simply, a child is not generally mature, has no power to do otherwise, or is not in control of his body, and therefore should not be responsible.

3. Criticisms:

It is important to note that it is easy to analyze the actions of child soldiers and whether or not the child soldiers should be held accountable when the analyst is not directly connected to the war atrocities. The public who underwent an atrocity carried out by child soldiers may find a lack of persecution of child soldiers as illogical. For instance, the civilians effected by Sierra Leone held this view. The public argued that the children who committed the crimes were competent enough to identify which people were friendly to their cause and which people were in opposition to their cause.[76] The children were capable of handling and accurately discharging firearms, killing the opposition.[77] The child soldiers were no different than the other men constituting their army. According to the public directly affected, the child soldiers should and must face the same charges of-age combatants faced. In situations such as these, if the courts or tribunals do not bring child soldiers in front of the bench, the public, or other individuals directly affected by the child’s actions make seek independent justice through other illegal actions.

Emotional claims of individuals directly connected to atrocities or war crimes can be impartial. These individuals are genuinely biased with revenge over powering logical thoughts. The revenge, and other pressing emotions, overlooks and rejects the bleak reality encompassing child soldiers. Manipulation and coercion ‘brain-wash’ the majority of child soldiers. Children in a general sense are easily persuaded. It does not take long to wipe a child’s mind from their cultural ethics and in turn the child can no longer distinguish between right and wrong. Instead of a child being socialized, the child is now stripped from a common society into a society where the weapons and the sporters of the weapons determine what is or is not acceptable. If the child does not quickly conform and learn how the new, combative society operates, he will quickly be killed.

Another argument against not holding child soldiers responsible for their war crimes is that the state/non-state actors who conscripted the children will see conscription as an opportunity. There is an embedded incentive for the conscriptor to conscript as many child soldiers as possible and assign the children the tasks of committing all of the atrocities or war crimes. If the child commits the crime, the task is completed and neither the conscriptor who ordered the criminal action nor the child who committed the action gets punished. Within this system, the child soldiers are now in even more dangerous positions on the battlefield.

If the conscriptors are the people being punished for the conscription of the children and the direct placement of the children into active hostilities, it is likely this incentive will not exist. Instead, the international law, itself, will act as a deterrence effect against conscription and illegal placement of children in armed conflicts in the future.

4. Alternative to Prosecution:

A child’s motivations to enlist are various and perplexing. Once a child has enlisted, he is stuck. If he attempts to get out of his contract, both his life and his family’s lives would likely be targeted. In response, the child is vulnerable to and pressured into grave dangers. The dangers the child is exposed to leave long-lasting psychological and physical impacts. If the child commits a war crime, which is ordered by his conscriptors, and is convicted (or in some cases is merely accused), he will be forever denied rights and privileges. It only makes sense to regard and apply the special protections of child soldiers in a practical sense as well as the blackletter legal instruction.

All parties to a conflict hold the responsibility to protect child soldiers’ special protections while involved in arms. The state/non-state actor has the direct primary responsibility, while opposing forces hold a secondary responsibility. Statutes and law are, arguably, the public’s conscious in light of socioeconomic and political purpose to the society. The public’s ideologies must have political backing prior to constituting a legally binding document. To take a public opinion and navigate it through the political maze in a way to implement it as law is a daunting task. It is important to recognize the demand for the International Humanitarian Law to evolve in addition to customarily defined classifications of protected persons to mirror the progress in modern warfare. The ‘children’ historically conceptualized referred to children who were victims of war and worthy of protection. In modern society, ‘children’ refer to varying degrees of children involved in combatants as well as violators of crime, however, deserving of continuous protection as a result of their special status as children.

The Convention on the Rights of the Child dictates a duty on states to:

. . . take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.[78]

It follows this duty with guidance that states should attempt to advance:

. . . measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programs and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.[79]

It is possible that children who face prosecution for their actions are doing so as being in their best interests. One material fact in determining if the child should be held responsible is his level of maturity. Or, in the scenario of a child under the age of fourteen years old, it can be more constructive for him to become involved in a rehabilitative system rather than join in the procedure of being held responsible. Despite the context, children should not face punishment from a court.

1. Child Soldiers & Truth Commissions:

A court should strictly try the architects of war crimes. Child soldiers, acting to carry out the orders of the conscriptors, are simply a means to the culpable masterminds. Instead of appearing before a court, child soldiers should answer to a truth commission.[80] It is possible transitional justice means such as truth commissions are the best ways to address child soldiers who have allegedly committed war crimes while keeping the child’s best interest in mind.

Truth commissions are a restorative system of transitional justice.[81] Restorative justice systems are distinguished from prosecution-based systems in that it focuses on the victim rather than retribution, deterrence, and rehabilitation of the accused.[82] The accused is not always solely the perpetrator; he can simultaneously be an additional victim. Prosecutions may be the best solution for situations where the perpetrator and the victim are clearly distinguished, but restorative systems, such as truth commissions, are arguably better suited for situations where the distinction is not always as clear.[83] In the course of war and committing mass atrocities, a person can have many different ever-changing roles. It will not always be clear when the accused is at fault or is simply a victim himself.[84]

Truth commissions and the procedures of truth commissions vary, however there are some key aspects to all truth commissions. Truth commissions fundamental features are that it:

(1) focuses on the past; (2) investigates a pattern of abuses over a period of time, rather than a specific event; (3) is a temporary body, typically operating between six months and two years; (4) completes its work with a report; and (5) is officially sanctioned, authorized, or empowered by the states and sometimes by the armed opposition.[85]

Truth commissions are capable of focusing on the victims, develop a holistic understand of the events that occurred that will help create the necessary changes for the future, and actively involve the victims, perpetrators, and the affected society.[86]

Observers regard child soldiers as both the victim and the perpetrator. I suggest the International Criminal Court should hold states criminally accountable for violating their sole obligation to restrict the conscription and involvement of minors under the age of 15 in active hostilities and simultaneously hold child soldiers accountable to truth commissions. Rather than focusing on whether the child soldier is the person responsible for the criminal acts committed, the truth commission can get to the heart of the matter and address the causes of, and the violations committed within a conflict as well as identify the overarching responsibility of the state.[87] Through condemnation, the truth commissions will likely deter future abuses by the child in front of the committee, lessen the desire for vigilante justice, give the victims (including the accused perpetrator/victim) a voice, and most importantly truth commissions will foster forgiveness that will aid in the reacceptance of the accused into society as the state moves past the atrocities toward a better future.[88]

The overall goal of a child soldier prosecutions should be to create a system devoted to aiding a former child, soldier cultivate individuality, and promote reintegration into civilization. It is extremely important that people who judge these child soldiers on their lack of maturity and responsibility of their actions have knowledge and be understanding of the public framework that envelopes the children. Furthermore, the feelings and cultural background of the states and societies directly involved must play a role in deciding what to do.

Conclusion:

A child soldier is arguably a victim of war in the sense that he is not only a threat to opposing forces, but also a threat to himself. Therefore, punishment of child soldiers for atrocities committed within hostilities warrant careful attention and consideration of the specific facts involved. The law does not work alone. There is a gap between the law and social relationships necessary to generate change that lasts. The gap can be filled through sociological, political, and economical elements. Child soldiers are profoundly ingrained in both economic and social aspects of the countries that utilize children in this way. Although international law and customary international law provide the special protections to child soldiers involved in hostilities, the effort to combat the issue will be pointless if the gap is not filled. Children have a right to not be conscripted into armed forces and society has an implied obligation to provide the children with their right.

[1] Siddharth Chatterjee, For Children Soldiers, Everyday Is A Living Nightmare, Forbes, (2012), https://www.forbes.com/sites/realspin/2012/12/09/for-child-soldiers-every-day-is-a-living-nightmare/#1383e26127bd. This paper is not intended to revolve around linguistics or semantics. Within this paper, the term ‘hostilities’ simply means armed conflict.

[2] UN General Assembly, Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000, at art. 3(1), http://www.refworld.org/docid/47fdfb180.html.

[3] See UNICEF, Child Protection From Violence, Exploitation, and Abuse, Child Recruitment By Armed Forces Or Armed (Mar. 22, 2011), https://www.unicef.org/protection/57929_58007.html.

[4] See generally UNICEF, supra note 3.

[5] UN General Assembly, Convention on the Rights of the Child (CRC), 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, art. 1, http://www.refworld.org/docid/3ae6b38f0.html.

A child is any person under the age of 18. The Convention on the Rights of the Child (1989) is the first document to define a child.

[6] See Child Soldiers Int’l, Index, https://www.child-soldiers.org/accountability (last visited Sept. 23, 2018).

[7] M.K. Balachandran et al, Introduction To International Humanitarian Law 216 (1997).

[8] The lack of legal protection includes children who have an active role in conflict as a soldier, but also as civilians.

[9] See generally Int’l Comm. of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 12 August 1949, 75 UNTS 31, http://www.refworld.org/docid/3ae6b3694.html; see generally Int’l Comm. of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 12 August 1949, 75 UNTS 85, http://www.refworld.org/docid/3ae6b37927.html; see generally Int’l Comm. of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 135, http://www.refworld.org/docid/3ae6b36c8.html; see generally Int’l Comm. of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, http://www.refworld.org/docid/3ae6b36d2.html.

[10] See Int’l Comm. of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, http://www.refworld.org/docid/3ae6b36b4.html; See Second Geneva Convention, supra note 9.

[11] See Int’l Comm. of the Red Cross, The Geneva Conventions of 1949 and Their Additional Protocols, https://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm (last visited Sept. 23, 2018).

[12] CRC, supra note 5, art. 38; and see generally supra note 2.

[13]See generally UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, http://www.refworld.org/docid/3ae6b3a84.html; see generally Geneva Convention, supra note 7; Protocol I, supra note 8, at art. 77(2); Protocol II, supra note 8, at art. 4(3)(c); CRC, supra note 5, at art. 38(2) and (3);and see generally Optional Protocol, supra note 2 at art. 3(1), art. 4(1) and art. (2).

[14] ‘Participating in hostilities’ includes taking part in hostilities either actively or directly.

[15] Leveau, supra note 35, at38.

[16] See generally Rome Statute, supra note 13; see generally Geneva Convention, supra note 7;CRC, supra note 5, at art. 38(2) and (3); Protocol I, supra note 8, at art. 77(2); Protocol II, supra note 8, at art. 4(3)(c); and see generally Optional Protocol, supra note 2.

[17] Protocol I, supra note 8, at art. 77(2).

[18] Nils Melzer, Interpretive Guide On The Notion Of Direct Participation In Hostilities Under International Humanitarian Law, ICRC (2009), https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf (last visited Oct. 24, 20118). International humanitarian law does not define ‘direct participation’. The Interpretative Guidance Recommendations of the ICRC define ‘direct participation’ as, “. . . specific acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict.”

[19] Protocol II, supra note 8, at art. 4(3)(c).

[20] CRC, supra note 5, at art. 38(2) and (3); and Protocol I, supra note 8, at art. 77(2).

[21] The escape routes are that children can partake in indirect participation and if a child is between the ages of 15 and 18, the clause does not pertain to them.

[22] See Optional Protocol, supra note 2, at art. 3(1). “State parties shall raise the age for the voluntary recruitment of persons into their national armed forces . . . and recogani[ze] that under the Convention persons under 18 are entitled to special protection.”

[23] Id. at art. 4(2).

[24] Id. at art. 4(1).

[25] Int’l Labour Organization (ILO), Worst Forms of Child Labour Convention, C182, 17 June 1999, C182, art. 1 and 3(a), http://www.refworld.org/docid/3ddb6e0c4.html.

[26] See generally Rome Statute, supra note 13.

[27] See Child Soldiers Int’l, supra note 5; also see Ongwen Case (Prosecutor v. Dominic Ongwen), Case No. ICC-02/04-01/15 Confirmation of Charges, (Mar. 23, 2016).Ongwen has been charged for various crimes against humanity and war crimes, including the conscription and use of children under the age of 15 to participate actively in hostilities in the insurgency of the Lord’s Resistance Army against the Government of Uganda and the Ugandan Army from 2002 – 2004.

[28] Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2004-14-AR72(E), ¶ 31 and 33 (The Spec. Ct. for Sierra Leone May 31, 2004). Customary international law are statutes that are derived from a general practice agreed on as law. Customary international law is independent of treaties and applies to both international and domestic conflicts.

[29] U.N. Secretary-General, Guiding Principles on International Displacement, Principle 13 (1998).

[30] Id.

[31] See generally G.A. Res. 1261 (Aug. 30, 1999); See generally G.A. Res. 1314 (Aug. 11, 2000); see generally G.A. Res. 1379(Nov. 20, 2001); see generally G.A. Res. 1460 (Jan. 30, 2003); see generally G.A. Res. 1539 (Apr. 22, 2004); see generally G.A. Res. 1612 (Jul. 26, 2005); see generally G.A. Res. 1882 (Au. 04, 2009); see generally G.A. Res. 1998 (Jul. 12, 2011); see generally G.A. Res. 2225 (Jun. 18, 2015); see generally G.A. Res.2427 (Jul. 09, 2018).

[32] Rome Statute, supra note 13, at art. 26; see generally Geneva Convention, supra note 7; see generally Protocol I, supra note 8; see generally Protocol II, supra note 8.

[33] Protocol I, supra note 8, at art. 77(3); Protocol II, supra note 8, at art. 4 (3)(d).

[34] Geneva Convention III, supra note 7, at art. 4(1) and 16.

[35] Protocol I, supra note 8, at art. 77(3) and (4), 45(3), and 75; Geneva Convention IV, supra note 7, at art. 50, 51, 76, 82, 85, 89, 94.

[36] Protocol I, supra note 8, at art. 77; Protocol II, supra note 8, at art. 4(3); Geneva Convention IV, supra note 7, at art. 132, 133; Geneva Convention III, supra note 7, at art. 117, 118, 119.

[37] Child Soldiers Int’l, supra note 5, Who are Child Soldiers? https://www.child-soldiers.org/who-are-child-soldiers (last visited Sept. 26, 2018); also Id. at The world Watches on as Child Soldier Recruitment Flourishes. In 2017, Boko Haram use 83 children as human bombs by August. Fifty-four of the child-soldier human-bombs were young girls.

[38] Id. at Where are Child Soldiers? https://www.child-soldiers.org/where-are-there-child-soldiers (last visited Sept. 26, 2018). There are currently fourteen countries who are guilty of recruiting child soldiers and using the child soldiers in combat. Those countries are: Afghanistan, Central African Republic, Colombia, Democratic Republic of Congo, Iraq, Mali, Myanmar, Nigeria, Philippines, Somalia, South Sudan, Sudan, Syria, and Yemen.

[39] Id.

[40] UNICEF, Children as Soldiers, https://www.unicef.org/sowc96/2csoldrs.htm (last visited Sep. 30, 2018).

[41] See Id.

[42] Child Soldiers Int’l, supra note 5, at How is Recruiting Children Harmful? https://www.child-soldiers.org/how-is-recruiting-children-harmful (last visited Sept. 26, 2018).

[43] See Id.

[44] See Id. at Where are Children Soldiers?; also see Id. at World Index.

[45] Within this paper, the term ‘free will’ is defined as the child’s ability to determine his own actions in a way that excludes external motivating factors or fate.

[46] Voluntary Act, Black’s Law Dictionary (10th ed. 2014).

[47] Matthew Happold, Child Soldiers in International Law 31 (2005).

[48] UNICEF, supra note 40.

[49] Id. Some children are born with physical abnormalities or mental conditions that can get in the way of employment. Parties actively recruiting children for armed forces are looking for numbers rather than function. Thus, it is much easier for a child to be conscripted when he does not fit the mold of his habitual society.

[50]Id.

[51] See generally Prosecutor v. Dominic Ongwen, supra note 27.

[52] See generally Protocol I, supra note 8; see generally Protocol II, supra note 8; see generally Geneva Convention I, supra note 7; see generally Geneva Convention II, supra note 7; see generally Geneva Convention III, supra note 7; see generally Geneva Convention IV, supra note 7.

[53] Rome Statute, supra note 13, at art. 26.

[54] Johannesburg, Should Children Soldiers Be Prosecuted for Their Crimes?, IRIN (Oct. 06, 2011), http://www.irinnews.org/analysis/2011/10/06/should-child-soldiers-be-prosecuted-their-crimes.

[55] U.N. Secretary General, Convention on the Status of Refugees, Resolution 429 (V) (1951), art. 1F(a).

[56] Id.

[57] Optional Protocol, supra note 2, at art. 1; CRC, supra note 5, at art. 38; Protocol I, supra note 8, at art. 77(3); Protocol II, supra note 8, at art. 4 (3)(c); Rome Statute, supra note 13, at art. 8(2)(b); Int’l Comm. of the Red Cross (ICRC), Customary International Humanitarian Law , 2005, Volume I: Rules, rule 136 and rule 137 http://www.refworld.org/docid/5305e3de4.html.

[58] See UNICEF, supra note 40.

[59] CRC, supra note 5, at art. 40(2)(a).

[60] Rome Statute, supra note 13, at art. 26; see generally Geneva Convention, supra note 7; Protocol I, supra note 8, at art. 77(2); Protocol II, supra note 8, at art. 4(3)(c); CRC, supra note 5, at art. 38(2) and (3);and see generally Optional Protocol, supra note 2 at art. 3(1), art. 4(1) and (2).

[61] See Child Soldiers Int’l, supra note 5.

[62] Fanny Leveau, Liability of Child Soldiers Under International Criminal Law, 4 Osgoode Hall Rev. of L. & Pol’y. 36, 45 (2013).

[63] Mens rea is defined as the intent to commit an action.

[64] Leveau, supra note 35, at39.

[65] Id.

[66] CRC, supra note 5, at art. 40(3)(a); see generally Geneva Convention, supra note 7; see generally Protocol I, supra note 8; see generally Protocol II, supra note 8.

[67] Rome Statute, supra note 13, at art. 26.

[68] Happold, supra note 42, at 148.

[69] Leveau, supra note 35, at36; see generally G.A. Res. 808 (Feb. 22, 1993); see generally G.A.Res. 955 (Nov. 08, 1994).

[70] Sierra Leone Truth and Reconciliation Commission, Volume 3 B Chapter Four, Children and the Armed Conflict of Sierra Leone, http://www.sierraleonetrc.org/index.php/view-report-text-vol-3b/item/volume-three-b-chapter-four (last visited Sept. 23, 2018).

[71] Id.

[72] Statute of the Special Court for Sierra Leone, Res. 1315, Art. 7 (Aug. 14, 2000). “The Special Court shall have no jurisdiction over any person who was under the age of 15 at the time of the alleged commission of the crime. Should any person who was at the time of the alleged commission of the crime between 15 and 18 years of age come before the Court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child.”

[73] See generally T v. United Kingdom, App. No. 24724 Eur. Ct. H.R. 94 (1999); and see generally V v. United Kingdom, App. No. 24888 Eur. Ct. H.R. 94 (1999).

[74] See Customary Int’l Humanitarian Law, supra note 57, at art. 778.

[75] Leveau, supra note 35, at47.

[76] Id. at 49.

[77] See Id.

[78] CRC, supra note 5, at art. 39.

[79] Id. at art. 40(3)(b).

[80] Chen Reis, Trying The Future, Avenging The Past: The Implications Of Prosecuting Children For Participation In International Armed Conflict, 28 Colum. Hum. Rts. L. Rev. 629, 631 (1997). David Luban et al, Alternatives to Prosecution After Atrocity: Extraordinary Evil, Ordinary Crime: A Frame For Understanding Transnational Justice, in International and Transnational Criminal Law 1298, (Harv. Hum. Rts. J. 2002). Truth commissions do not have the power to adjudicate criminal culpability or impose criminal punishment, but they can be used in combination with prosecutions.

[81] Luban, supra note 80 at 1307. Restorative systems of transitional justice are a more conflict resolution approach to justice while compensating victims and recognizing more complicated factors that motivate the criminal behavior. The purpose of restorative systems is to reconcile the violator, victim, and the community.

[82] Id.

[83] Id. at 1310.

[84] Id.

[85] Id. at 1280.

[86] Id. at 1309.

[87] Id. at 1281.

[88] Id. at 1285.