The military use of children takes three distinct forms: children can take direct part in hostilities (child soldiers), or they can be used in support roles such as porters, spies, messengers, look outs, and sexual slaves; or they can be used for political advantage either as human shields or in propaganda.
Throughout history and in many cultures, children have been extensively involved in military campaigns even when such practices were supposedly against cultural morals. Since the 1970s, a number of international conventions have come into effect that try to limit the participation of children in armed conflicts, nevertheless the Coalition to Stop the Use of Child Soldiers reports that the use of children in military forces, and the active participation of children in armed conflicts is widespread. International human rights law
The United Nations Convention on the Rights of the Child, Article 38, (1989) proclaimed: "State parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities." However, people who are over the age of 15 but still remaining under the age of 18 are still voluntarily able to take part in combat as soldiers. The Optional protocol on the involvement of children in armed conflict to the Convention that came into force in 2002 stipulates that its State Parties "shall take all feasible measures to ensure that persons below the age of 18 do not take a direct part in hostilities and that they are not compulsorily recruited into their armed forces".
The Optional Protocol further obligates 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." (Art 4, Optional Protocol.) Likewise, under the Optional Protocol States are required to demobilize children within their jurisdiction who have been recruited or used in hostilities, and to provide assistance for their physical and psychological recovery and social reintegration.
(Art 6(3) Optional Protocol.) Under Article 8(2)(b)(xxvi) of the Rome Statute of the International Criminal Court (ICC), adopted in July 1998 and entered into force 1 July 2002; "Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities" is a war crime. International humanitarian law
According to Article 77.2 of the Additional Protocol I to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted in 1977: The Parties to the conflict shall 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 endeavour to give priority to those who are oldest. As the ICRC commentary on Protocol I makes clear, this is not a complete ban on the use of children in conflict.
The ICRC had suggested that the Parties to the conflict should "take all necessary measures", which became in the final text, "take all feasible measures" which is not a total prohibition on their doing so because feasible should be understood as meaning "capable of being done, accomplished or carried out, possible or practicable". Refraining from recruiting children under fifteen does not exclude children who volunteer for armed service.
During the negotiations over the clause "take a part in hostilities" the word "direct" was added to it, this opens up the possibility that child volunteers could be involved indirectly in hostilities, gathering and transmitting military information, helping in the transportation of arms and munitions, provision of supplies etc. Article 4.3.c of Protocol II, additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, adopted in 1977, states "children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities".
Under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which was adopted and signed in 2002, National armed forces can accept volunteers into their armed forces below the age of 18, but "States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities". Non-state actors and guerrilla forces are forbidden from recruiting anyone under the age of 18 for any purpose. War crimes
Opinion is currently divided over whether children should be prosecuted for committing war crimes. International law does not prohibit the prosecution of children who commit war crimes, but the article 37 of the United Nations Convention on the Rights of the Child does limit the punishment that a child can receive including "Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age."
Many child soldiers fought in the Civil war in Sierra Leone. In its wake the UN sanctioned the Special Court for Sierra Leone (SCSL) to try the participants for war crimes and other breaches of humanitarian law. The statute of the SCSL gave the court jurisdiction over persons aged 15 and older, however the Paris Principles state that children who participated in armed conflict: ... who are 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.
They must be treated in accordance with international law in a framework of restorative justice and social rehabilitation, consistent with international law, which offers children special protection through numerous agreements and principles. and this was reflected in the wording of article 7 of the SCSL statute which did not rule out prosecution but emphasized rehabilitation and society's reintegration.
David Crane the first Chief Prosecutor of the Sierra Leone tribunal chose to interpret the statute so that the tribunal's policy was to prosecute those who recruited the children rather than the children themselves no matter how heinous the crimes they had committed. In the United States, prosecutors take a different view from David Crane and have repeatedly stated that they intend to try Omar Khadr, on several serious charges including murder, for offences they allege he committed in Afghanistan while fighting for the Taliban against United States forces while he was under sixteen years old. If found guilty under US law such a crime carries a maximum penalty of life imprisonment.
On 25 October 2010, Khadr pleaded guilty to murder in violation of the laws of war, attempted murder in violation of the laws of war, conspiracy, two counts of providing material support for terrorism and spying.
This was agreed as part of a plea bargain, which would see Khadr deported to Canada after one year to serve the remaining seven years there. In a letter to the U.S. military commission at Guantanamo after the plea of guilty had been heard but before the announcement of sentence, Radhika Coomaraswamy, the UN secretary-general's special representative for children and armed conflict, wrote that Khadr represents the "classic child soldier narrative: recruited by unscrupulous groups to undertake actions at the bidding of adults to fight battles they barely understand", and suggested that
Khadr to be released into a rehabilitation program. One year after his sentencing Khadr was still a US prisoner and was likely to remain so for another 18 months before being transferred to a Canadian prison. SCSL v. ICC
In light of the recent first decision ever at the International Criminal Court (ICC) I will compare and contrast the courts reasoning and law application on child soldiers with that of the Special Court of Sierra Leone (SCSL).
Special Court of Sierra Leone: The SCSL is an independent judicial body set up to "try those who bear greatest responsibility" for the war crimes and crimes against humanity committed in Sierra Leone after 30 November 1996 during the Sierra Leone Civil War. The Statute of the Special Court for Sierra Leone outlines four different types of crimes with which the Court can charge individuals. They are crimes against humanity, violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (war crimes), other serious violations of international humanitarian law, and crimes under Sierra Leonean law.
Summary of Law: The question of whether this crime is recognized as a crime entailing individual responsibility under customary international law was examined by the Appeals Chamber in Prosecutor v. Norman, which found that, prior to November 1996, the crime had crystallized as customary law, regardless of whether committed in internal or international armed conflict, and held that.
[c]hild recruitment was criminalized before it was explicitly set out as a criminal prohibition in treaty law and certainly by November 1996, the starting point of the time frame relevant to the indictments. As set out above, the principle of legality and the principle of specificity are both upheld.
Elements of the Crime: Guided by the Rome Statute, the Trial Chamber adopted the following elements of the crime of conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities: 1.The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities; 2.Such person or persons were under the age of 15 years;
3.The perpetrator knew or should have known that such person or persons were under the age of 15 years; 4.The conduct took place in the context of and was associated with an armed conflict; 5.The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
The Trial Chamber believes that this has gained the status of customary international law, which is not contingent on domestic practice in one given country. Hence, it cannot be argued that national practice creating an appearance of lawfulness can be raised as a defense of conduct violating international norms. The actus reus of the crime can be satisfied by ‘conscripting’ or ‘enlisting’ children under the age of 15, or by ‘using’ them to participate actively in the hostilities.
‘Conscription’ implies compulsion, in some instances through the force of law. While the traditional meaning of the term refers to government policies requiring citizens to serve in their armed forces, the Trial Chamber observes that Article 4(c) allows for the possibility that children be conscripted into “[armed] groups’. While previously wars were primarily between well-established States, contemporaneous armed conflicts typically involve armed factions, which may not be associated with, or acting on behalf, a State. To give the protection against crimes relating to child soldiers its intended effect, it is justified not to restrict ‘conscription’ to the prerogative of States and their legitimate Governments, as international humanitarian law is not ground on formalistic postulations. Rather, the Trial Chamber adopts an interpretation of ‘conscription’, which encompasses acts of coercion, such as abductions and forced recruitment, by an armed group against children, committed for the purpose of using them to participate actively in hostilities.
‘Enlistment’ entails accepting and enrolling individuals when they volunteer to join an armed force or group. Enlistment is a voluntary act, and the child’s consent is therefore not a valid defense. ‘Using’ children to “participate actively in the hostilities” encompasses putting their lives directly at risk in combat. As a footnote attached to the Preparatory Conference on the establishment of the International Criminal Court states:
The words “using” and “participate” have been adopted in order to cover both participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and use of children as decoys, couriers or at military checkpoints.
The SCSL’s view that the use of children to participate actively in hostilities is not limited to participation in combat. An armed force requires logistical support to maintain its operations. Any labor or support that gives effect to, or helps maintain, operation in a conflict constitutes active participation. Hence carrying loads for the fighting fraction, finding and/or acquiring food, ammunition or equipment, action as decoys, carrying messages, making trails or finding routes, manning checkpoints or acting as human shields are some examples of active participation as much as actual fighting and combat.
SCSL Judgments: AFRC On 20 June 2007, the three suspects in the Armed Forces Revolutionary Council trial, Brima, Kanu, and Kamara, were each convicted of eleven of 14 counts. These were acts of terrorism; collective punishments; extermination; murder – a crime against humanity; murder – a war crime; rape; outrages upon personal dignity; physical violence – a war crime; conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities; enslavement; and pillage. They were found not guilty of three counts: sexual slavery and any other form of sexual violence; other inhumane act – forced marriage; and other inhumane acts – a crime against humanity.
These were the first judgments from the SCSL, as well as the first time ever that an international court ruled on charges related to child soldiers or forced marriage, and the first time an international court delivered a guilty verdict for the military conscription of children. Therefore this was a landmark decision, by which the Special Court for Sierra Leone has created a major legal precedent in international criminal law. On 19 July 2007, Alex Tamba Brima and Santigie Borbor Kanu were sentenced to 50 years in jail, while Brima Kamara was sentenced to 45 years imprisonment. On 22 February 2008, the Appeals Chamber denied their appeal and reaffirmed the verdicts. CDF
On 2 August 2007, the two surviving CDF defendants, Kondewa and Fofana, were convicted of murder, cruel treatment, pillage and collective punishments. Kondewa was further found guilty of use of child soldiers. The CDF trial was perhaps the most controversial as many Sierra Leoneans considered the CDF to be protecting them from the depredations of the RUF. On 9 October 2007, the Court decided on the punishment. Kondewa was sentenced to eight years imprisonment, Fofana got six years.
These sentences were considered a success for the defence as the prosecutors had asked for 30 years imprisonment for both. The Court imposed a lesser sentence because it saw some mitigating factors. These included the CDF’s efforts to restore Sierra Leone’s democratically elected government which, the Trial Chamber noted, “contributed immensely to re-establishing the rule of law in this Country where criminality, anarchy and lawlessness (...) had become the order of the day”.
On appellate judgements announced on 28 May 2008, the Appeals Chamber overturned convictions of both defendants on the collective punishments charge as well as Kondewa's conviction for the use of child soldiers. However, the Appeals Chamber also entered new convictions against both for murder and inhumane acts as crimes against humanity. The Appeals Chamber also enhanced the sentences against the two, with the result that Fofana will serve 15 years and Kondewa will serve 20 years. RUF
On 25 February 2009, convictions of each of the three RUF defendants were handed down. Issa Sesay and Morris Kallon were each found guilty on 16 of the 18 counts on which they had been charged. Augustine Gbao was found guilty of 14 of the 18 charges. Convictions were entered on charges including murder, enlistment of child soldiers, amputation, sexual slavery and forced marriage.
The three were all convicted on charges of forced marriage, the first such convictions ever handed down in an international criminal court. All three had pleaded not guilty and shook their heads as the judgment was read. Sentences were handed down on 8 April 2009. Sesay received 52 years, Kallon 40 years and Gbao 25 years. The convictions and sentences were appealed and, on October 26, 2009, the Appeals Chamber handed down an opinion denying that appeal.
International Criminal Court: The ICC is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although it cannot, until at least 2017, exercise jurisdiction over the crime of aggression). It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force—and it can only prosecute crimes committed on or after that date. The Court's official seat is in The Hague, Netherlands, but its proceedings may take place anywhere.
Summary of Law: Article 8(2)(e)(vii) of the Rome Statute, the first treaty to include these offences as war crimes, provides: 2. […] (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: […]
(vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; […] The corresponding elements of the crime (5 elements) are exactly what the SCLC adopted and are listed above. The Trial Chamber considered the jurisprudence of the SCSL. Although the decisions of other international courts and tribunals are not part of the directly applicable law under Article 21 of the Statute, the wording of the provision criminalizing the conscription, enlistment and use of children under the age of 15 within the Statute of the SCSL is identical to Article 8(e)(vii) of the Rome Statute, and they were self-evidently directed at the same objective.
The SCSL’s case law therefore potentially assists in the interpretation of the relevant provisions of the Rome Statute. The Chamber accepts the approach adopted by the Pre-Trial Chamber that “conscription” and “enlistment” are both forms of recruitment, in that they refer to the incorporation of a boy or a girl under the age of 15 into an armed group, whether coercively (conscription) or voluntarily (enlistment). The word “recruiting”, which is used in the Additional Protocols and in the Convention on the Rights of the Child, was replaced by “conscripting” and “enlisting” in the Statute.
This interpretation gives the relevant provisions of the Statute their plain and ordinary meaning. It is to be noted that “enlisting” is defined as “to enrol on the list of a military body” and “conscripting” is defined as “to enlist compulsorily”. Therefore, the distinguishing element is that for conscription there is the added element of compulsion.
The ICC pulled these plain definitions from the Oxford Dictionary (2002, 5th ed.). Bearing in mind the use of the word “or” in Article 8(2)(e)(vii), in the Chamber’s view the three alternatives (viz. conscription, enlistment and use) are separate offences.
They sited to three SCSL cases, AFRC Trial Judgment, para 733; CDF Appeal Judgment, para. 139, and Dissenting Opinion of Justice Robertson, para. 5. It follows that the status of a child under 15 who has been enlisted or conscripted is independent of any later period when he or she may have been “used” to participate actively in hostilities, particularly given the variety of tasks that he or she may subsequently be required to undertake. Although it may often be the case that the purpose behind conscription and enlistment is to use children in hostilities, this is not a requirement of the Rome Statute.
If Article 8(2)(e)(vii) is taken on its own, the position is potentially ambiguous, given it reads “[conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities” (emphasis added). However, the Elements of Crimes clarify the issue by requiring “1.
The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities” (emphasis added). The Chamber therefore rejected the defense contention that “the act of enlistment consists in the integration of a person as a soldier, within the context of an armed conflict, for the purposes of participating actively in hostilities on behalf of the group.”
The Chamber heard from an expert witness in regards to the psychological point of view children cannot give “informed” consent when joining an armed group, because they have limited understanding of the consequences of their choices. The Chamber endorsed the conclusions of the expert witness, in the sense that it will frequently be the case that girls and boys under the age of 15 will be unable to give genuine and informed consent when enlisting in an armed group or force. In determining if a child’s consent does not provide a valid defense to enlistment.
The Chamber noted that the Appeals Chamber of the SCSL opined that “where a child under the age of 15 years is allowed to voluntarily join an armed force or group, his or her consent is not a valid defense.” In addition, the SCSL’s Trial Chamber in the case of the Prosecutor v. Fofana and Kondewa (“CDF” case) concluded: [T]he distinction between [voluntary enlistment and forced enlistment] is somewhat contrived. Attributing voluntary enlistment in the armed forces to a child under the age of 15 years, particularly in ta conflict setting where human rights abuses are rife, is […] of questionable merit.
In all the circumstances, the Chamber was persuaded that the Statute in this regard is aimed at protecting vulnerable children, including when they lack information or alternatives. The manner in which a child was recruited, and whether it involved compulsion or was “voluntary”, are circumstances which may be taken into consideration by the Chamber at the sentencing or reparations phase, as appropriate. However, the consent of a child to his or her recruitment does not provide an accused with a valid defense.
Therefore, under the provision set out above, the offences of conscripting and enlisting are committed at the moment a child under the age of 15 is enrolled into or joins an armed force or group, with or without compulsion. As with “conscripting” and “enlisting“ children under the age of 15 into armed forces or groups, the prohibition against “using them to participate actively in hostilities” is generally intended to protect children from the risks that are associated with armed conflict. The prohibition against using children under the age of 15 to participate actively in hostilities is not dependent on the individuals concerned having been earlier conscripted or enlisted into the relevant armed force or group.
Therefore, consistently with Article 22(2) of the Statute, a child can be “used” for the purposes of the Statute without evidence being provided as regards his or her earlier “conscription” or “enlistment” into the relevant armed force or group. The Elements of the Crimes require that “the conduct took place in the context of and was associated with an armed conflict”. The preparatory works of the Statute suggest that although direct participation is not necessary, a link with combat is nonetheless required. The Preparatory Committee’s draft Statute had postulated a broader interpretation in one of the footnotes:
The words “using” and “participate” have been adopted in order to cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase or the use of domestic staff in an officer’s married accommodation. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included within the terminology. (emphasis added)
The Pre-Trial Chamber, by reference to the approach of the Preparatory Committee, decided that a child does not actively participate in hostilities if the activity in question was “clearly unrelated to hostilities.” The Pre-Trial Chamber distinguished between two categories of participation, first: “Active participation” in hostilities means not only direct participation in hostilities, combat in other words, but also covers active participation in combat-related activities such as scouting, spying, sabotage and the use of children as decoys, couriers or at military check-points.
In the Pre-Trial Chamber’s formulation, guarding military objectives or acting as a bodyguard were also activities related to hostilities, inter alia, when “they have a direct impact on the level of logistic resources and on the organization of operations required by the other party to the conflict”.
Second, the Pre-Trial Chamber considered that children who were engaged in activities “clearly unrelated to hostilities” and carry out tasks such as “food deliveries to an airbase or the use of domestic staff in married officer’s quarters” do not actively participate in hostilities. As indicated above, the SCSL has examined the scope of active participation in hostilities in a number of decisions when applying Article 4(c) of its Statute, which is identical to Article 8(e)(vii) of the Rome Statute. In the AFRC case, seemingly relying on the approach of the Preparatory Committee, the SCSL determined that the use of children to participate actively in hostilities is not restricted to children directly involved in combat, noting: An armed force requires logistical support to maintain its operations.
Any labor or support that gives effect to, or helps maintain, operations in a conflict constitutes active participation. Hence carrying loads for the fighting faction, finding and/or acquiring food, ammunition or equipment, acting as decoys, carrying messages, making trails or finding routes, manning checkpoints or acting as human shields are some examples of active participation as much as actual fighting and combat. The SCSL therefore held that the concept of “using” children to participate actively in hostilities encompasses the use of children in functions other than as front line troops (participation in combat), including support roles within military operations.
The use of the expression “to participate actively in hostilities”, as opposed to the expression “direct participation” (as found in Additional Protocol I to the Geneva Conventions) was clearly intended to import a wide interpretation to the activities and roles that are covered by the offence of using children under the age of 15 actively to participate in hostilities. It is noted in this regard that Article 4(3)(c) of Additional Protocol II does not include the word “direct”.
The extent of the potential danger faced by a child soldier will often be unrelated to the precise nature of the role he or she is given. Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants.
All of these activities, which cover either direct or indirect participation, have an underlying common feature: the child concerned is, at the very least, a potential target. The decisive factor, therefore, in deciding if an “indirect” role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target. In the judgment of the Chamber these combined factors – the child’s support and this level of consequential risk – mean that although absent from the immediate scene of the hostilities, the individual was nonetheless actively involved in them.
Given the different types of roles that may be performed by children used by armed groups, the Chamber’s determination of whether a particular activity constitutes “active participation” can only be made on a case-by-case basis. The Chamber came to this conclusion my referencing many books on the impact of armed conflict on Children, Children at war, and the role of children in armed conflict.
ICC Judgment: UPC/FBLC The Chamber found that between 1 September 2002 and 13 August 2003, the armed wing of the UPC/FPLC was responsible for the widespread recruitment of young people, including children under the age of 15, on an enforced as well as a “voluntary” basis. The evidence of witnesses, coupled with the documentary evidence establishes that during this period certain UPC/FPLC leaders, including Thomas Lubanga, Chief Kahwa, and Bosco Ntaganda, and Hema elders such as Eloy Mafuta, were particularly active in the mobilisation drives and recruitment campaigns that were directed at persuading Hema families to send their children to serve in the UPC/FPLC army.
In all the circumstances, the evidence has established beyond reasonable doubt that children under the age of 15 were conscripted and enlisted into the UPC/FPLC forces between 1 September 2002 and 13 August 2003.
The evidenced proved that children were deployed as soldiers in Bunia, Tchomia, Kasenyi, Bogoro and elsewhere, and they took part in fighting, including at Kobu, Songolo and Mongbwalu. The evidence of witnesses established that the UPC used children under the age of 15 as military guards. Evidence revealed that a special “Kadogo Unit” was formed, which was comprised principally of children under the age of 15, as well as the video footage, demonstrates that commanders in the UPC/FPLC frequently used children under the age of 15 as bodyguards.
The accounts of witnesses, along with the video evidence, clearly prove that children under the age of 15 acted as bodyguards or served within the presidential guard of Mr Lubanga. In all the circumstances, the evidence has established beyond reasonable doubt that children under the age of 15 were conscripted, enlisted and used by the UPC/FPLC to participate actively in hostilities between 1 September 2002 and 13 August 2003. The sentence will be pronounced at a separate hearing. Mr Lubanga Dyio is detained, for the time being, at the Detention Centre in The Hague. He is faces the maximum sentence of life imprisonment.
Conclusion: Putting aside the procedural aspects ICC’s first trial, at minimum this case has done the tremendous job of elevating the devastating reality of child soldiers in the international legal and political arena. There will now be substantive jurisprudence on the war crime of enlisting, conscripting and using children in hostilities. And at best, the increased global awareness will lead to prevention if and when military commanders think twice about this practice in light of their potential prosecution at the ICC.