Many of the children who were recruited into armed groups or one of the conflict parties have participated in the hostilities, and as a result, many of them have committed different types of crimes. However, two main approaches are still leading the issue of child soldiers’ responsibility for the crimes they committed during their recruitment, between treating those children as victims all the time and holding them responsible in some cases. In this article I argue that child soldiers can be held responsible for crimes they committed in some cases, however, criminal justice may not be the best option to deal with these crimes.
Child soldiers, Restorative Justice, Criminal Liability, Criminal Law.
Child soldiers were defined in Paris Principle 2007 for children who are associated with an armed force or armed group which is “Any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls, used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities”.
In a warzone, child soldiers commit many crimes during their recruitment periods, such as killing, looting rape (Drumbl, 2012). ISIS used children in Syria and Iraq to fight in the front lines (Sommerfelt& Taylor, 2015), and some of them were trained to kill and execute people and prisoners in ISIS special unit for children cups of the caliphate (Almohammad, 2018; Children in armed conflict in the Syrian Arab Republic, 2018). In Libya, the Berber children who fight alongside the National Transitional Council were cast aside; many of them have joined the Jihadi group or used their weapons to survive (Amusan, 2013).
The Arab countries are suffering multiple problems that reflect on their way of dealing with child soldiers. Most countries like Syria, Iraq, Sudan, and Yemen do not have any Disarmament, Demobilization, and Reintegration programs (Al-Maliki, 2020; Al-Zain, 2020; Al-Adrawe, 2020). This situation leaves the governments with one solution which is using criminal law and courts.
Children Criminal Liability in Law
The Individual criminal responsibility was disputable within the international criminal law; the first approach did not consider individuals to be an international members (Yadkar, 2009), while the second sees individuals as international members considering that international members like states and organizations recognize them to have rights and duties within the international law (Malekian, 1990).
However, after the atrocity that was committed during wars at the hand of individuals by the name of the state, the international community starts to embrace the second one. Individual criminal responsibility was adopted within the international criminal law for the first time in the Treaty of Versailles, in order to prosecute the First World War criminals. Since then, individual criminal responsibility becomes an essential principle that appeared in the special criminal court that has been established after the Second World War, in both articles 6 of the Nuremberg Tribunal and article 5 of the International Military Tribunal for the Far East. As a result of these legal provisions, individual criminal responsibility become inveterate rules in the later criminal tribunals like the International Criminal Tribunal for Rwanda (ICTR), The Special Court for Sierra Leone (SCSL), International Criminal Tribunal for the former Yugoslavia (ICTY), and finally the International Criminal Court (ICC).
Children Criminal Responsibility at the International Level
The international community has not reached an understanding about the optimum age of international criminal responsibility for children. Although the Convention on the Rights of the Child is the primary reference for the rights of the child in the world, its provisions did not include a reference to set an age for criminal responsibility and left this matter open to the national legislator (Kabano, 2016).
However, in article 40/1, the child rights convention states the possibility of children being subjected to litigation before criminal courts, considering that children are not completely protected from standing before the judiciary and facing the consequences of the criminal acts that they commit, within clear limits that guarantee the protection of their rights, and taking his best interest as the main address for his criminal prosecution.
Notwithstanding, the convention did not set a maximum age for child criminal responsibility age, whereas the Committee on the Rights of the Child considered that the age of 12 is the most appropriate age for criminal responsibility, denouncing the possibility of it being below this limit, as in some countries (Frostad, 2013), and at the same time encouraging the possibility of raising the age of criminal responsibility to 14, 16, or perhaps 18 years, as the age of childhood in a numerous number of countries (PRI, 2013).
At the international judicial level, the age of criminal responsibility has not been determined in relation to children in general, including child soldiers. Neither the Charter of ICTY nor the ICTR referred to the age of criminal responsibility, both courts referred to criminal responsibility as a general concept.
However, the Charter of the SCSL came as an exception to this rule, as the founding charter stipulated its authority to try child soldiers up to the age of fifteen (Humanium, 2014), thus granting the court the authority to try child soldiers from the age of fifteen (Musila, 2005).
In spite of that explicit text, what happened on the ground was completely different, as the court’s public prosecutor declared that no child under the age of eighteen would be tried before the special criminal trial. The public prosecutor considered that these children are not responsible for the actions that they committed during the hostilities, thus there was a clear approach towards considering children under the age of eighteen outside the scope of the criminal court Jurisdiction (Crane, 2008; Drumbl, 2012).
The ICC followed the same path that previous courts had followed with regard to criminal responsibility, distancing itself from this sensitive case (Kabano, 2016). Article 26 of the Rome Statute explicitly affirmed that child soldiers are not subject to the personal jurisdiction of the court, as it stated that “The 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.
With the lack of clarity regarding the age of international criminal responsibility for child soldiers for the crimes they committed during the period of their recruitment and the international criminal courts’ approach of exclusion themselves from being involved in the issue of criminal responsibility for children, it has become certain that the international criminal justice does not have the power to prosecute child soldiers.
As a result, the only way in this situation is to return to the national laws of states in order to determine the age of criminal responsibility on the one hand, and the mechanism for subjecting the child to criminal accountability on the other hand.
Children Criminal Responsibility at the National Level
The dilemma surrounding the issue of trying child soldiers within the national legal systems is the diversity that hangs over these systems, and the lack of clear agreement on a specific age for criminal responsibility, between the ages of seven and eighteen years. This difference is due to differences in the legal and environmental cultures of each country separately, just as the age of maturity and childhood differ in national legislation, the age of responsibility differs due to the nature of the cultural, economic, and political environment, which makes the determination difficult to reach, and at the same time, it is very diverse from one country to another, which in itself constitutes a violation of the rights of the child.
For instance, the Iraqi Juvenile Law 1983 stated that the criminal responsibility age is 9 years old, while the Syrian Law 1974 sets it at 7 years, the Sudanese Law 1983 sets the age at 10 years, and the Yemeni Law 1992 sets the age for criminal responsibility at 15 years old. In various Arab countries, as mentioned previously, many child soldiers are detained based on criminal laws such as the penal code and counter-terrorism law.
In addition, the issue of trial in the national criminal judiciary differs from one country to another (Musila, 2005). Article 40/2 of the child rights convention set a number of fair trial guarantees to organize the legal procedures in order for it to protect children; however, adherence to these principles is not the same in all countries.
For instance, prison sentences for more than 15 years have been issued against children associated with ISIS without any fair trial guarantees being provided in Iraq (HRW, 2018). In Somalia, children are often subjected to military trials and unlawful detention without any guarantees to protect their rights to defense or secrecy, and at the same time, they are exposed to ongoing attacks and violence (HRW, 2018). While in Kurdistan, 150 children were arrested because of their relationships with ISIS, they were exposed to ill-treatment and a lack of respect for their rights, as they remained in detention without knowing the charges against them and subjecting them to torture in order to force them to confess (HRW, 2017).
Child Soldiers Criminal Liability
In various Arab countries, many child soldiers were detained and prosecuted in prisons under penal laws or counter-terrorism laws. The UN stated that 984 children are still detained in Iraq on charges related to national security and their association with ISIS, Lebanon 20 new cases for children arrestment were registered, while 236 children were detained in Somalia, and around 218 cases in Syria, all accused with the same charges related to their association with armed groups that threaten the national security (Children in Armed Conflict, 2020). Nonetheless, an important question arises when discussing child soldiers’ prosecution; are they criminally responsible for the atrocities they committed?
Two main perspectives address this issue. The first considers child soldiers as victims, therefore they cannot be prosecuted, and instead, they should be rehabilitated and reintegrated, while the second states that child soldiers in some cases are eligible and aware of the actions they do, hence prosecuting this category is possible.
Against Prosecuting Child Soldiers
Several scholars, UN agencies, and NGOs believe that child soldiers should be treated as victims; hence they should not be prosecuted in front of courts for the atrocities they committed (Quénivet, 2017).
Grossman argues that “children underage eighteen participating in armed conflicts around the globe should be treated primarily as victims, not perpetrators” (Grossman, 2007, p 323). Sonja Grover also argues that child soldiers cannot be seen as perpetrators, she states that they “must be considered as ‘non-combatants’ in that they, unlike adult soldiers, do not have an unqualified right under international law to directly participate in armed conflict” (Steinl, 2017, p 192).
Even in the cases of children voluntarily joining the armed groups, it is not accurate to be described as real voluntarily, especially in the light of the insecurity and the harsh circumstances that push children to join the armed groups, in order to feel safe and protected (Musila, 2005), as stated by the UN report “While young people may appear to choose military service, the choice is not exercised freely. They may be driven by any of several forces, including cultural, social, economic or political pressures” (Stauffer, 2020, p. 44)
To have a criminal liability the mense rea should exist. The men’s rea principle for criminal culpability demands the existence of the intent to commit the act, and the knowledge about it being illegal. Norbert says that the ability of child soldiers to differentiate between right and wrong from one hand and their ability to expect and understand their action consequences, from another hand differ from one child to another, moreover, it is hard for children to connect between their actions and its violation to the legal and social norms (Nobert, 2011). Furthermore, he sees that it is hard for child soldiers to possess the legal requirements for international crimes, he states that child soldiers are “generally incapable of forming the requisite men’s rea to be convicted of genocide, crimes against humanity and war crimes” (Nobert, 2011, p 38). In line with this opinion, Kabano states that “a child is unable to express his free will while choosing or abducted to be a soldier” (Kabano, 2016, p. 22).
Article 30 from the Rome Statute of the International Criminal Court presents the mental element requirements for the crimes under the court jurisdiction, which is going similarly with the national criminal law approach.
The article defines knowledge as “awareness that a circumstance exists or a consequence will occur in the ordinary course of events”, while the intent is defined in the light of:
1 – The action itself as the person must mean to engage in the conduct.
2 – The result of the action as the person must mean to cause that consequence or is aware that it will occur in the ordinary course of events.
The use of coercion by the armed groups on children leads to disabling their free will, which is essential in the existence of the intent for both the conduct and the result, therefore the criminal responsibility. This absence of the “intent” which is the second component of the mental elements, leads to the inapplicability of Article 30.
The availability of the mental element of the crime is necessary at two-level, the first is the child intention to commit the conducts that make up the crime like shooting or hitting the victim, while the second the child intention should be directed towards completing the criminal result like the death of the victim or having ownership over the stolen goods.
In their article Fagan, Hirstein and Sifferd stated that children under the age of 18 should not be prosecuted on the ground of “an irrefutable presumption of incapacity to form the requisite men’s rea for such crimes”, they see that children under the age of 15 do not have the mental capacity to commit the crime according to article 30, and children between 15 and 17 should also have the same presumption, however, in some cases, this assumption can be appealable (Fagan &Hirstein&Sifferd, 2016)
During wars, children are forced to commit atrocities. Many of the children are forced to join the armed groups in the first place, as the UN reports show a massive number of children are being abducted (Children in Armed Conflict, 2020), whereby they are coerced to commit atrocities and obey orders, which reflects the methods used by many of armed groups. Diverse methods are used on children to force obedience, for instance, the use of alcohol, drugs, and threatening their safety by imposing physical and psychological violence (Musila, 2005; Nobert, 2011; Capone, 2017), which can lead to the lack of the criminal intent and the criminal capacity to be held responsible for their action.
Moreover, the longer the children stay inside the armed groups the more they adapt to the new life comprising the committed of atrocities (Baines, 2009; Steinl, 2017). Naomi Cahn explains the change in children behavior and thinking in her study “when children are abused or neglected, their brains may develop so that they overact to situations that are threatening so that delinquent behavior results from the brain using these early lessons of fear to defend itself.” (Kabano, 2016, p 24), while Jeff MecMahan sees child soldiers as people who are not responsible for their actions as a result in the trauma they experienced through recruitment, he stated that child soldiers can be “understood ‘as people who have a diminished capacity for morally responsible agency and who act in conditions that further diminishes their personal responsibility for their actions in war” (Baines, 2009, p 178).
Furthermore, international crimes like genocide, war crimes, and crimes against humanity need specific intent in addition to the general men’s rea. For instance, genocide need next to the general mental element stated in article 30 to a special intent. Article 6 of the Rome Statute of the ICC stated that “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group”, hence for child soldiers to be responsible for this crime they should have a clear intent towered destroying the groups based on its ethnicity, religion, etc. As a result, that will require children to understand the concepts about race, ethnicity, religion which can be so complicated for them, therefore it is hard for children to be able to fulfill this intent taking into consideration its complicity and high requirements (Nobert, 2011).
In this perspective, the commander who gave the orders to the child soldiers is the one who should be responsible for the committed atrocities (Kabano, 2016). Article 25 from Rome Statute states that the military commander or the person who acts effectively as military commander “shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control”. According to this, the commander is responsible for the crimes if he/she “knows” or “should have known” about committing it, further, in the case of child soldiers many of them have committed the atrocities based on their commander’s orders (Kabano, 2016).
However, although the commander shall bear the criminal responsibility for their subordinates’ actions that do not mean that the subordinate shall not be held responsible. This rule aims basically to prevent the high position commanders from disclaimer from the responsibility of their orders, even if they were not the ones who commit the conducts themselves. Consequently, if the mental element exists the subordinates shall be held responsible for their actions alongside their commander (Bigi, 2010).
Allowing Prosecuting Child Soldiers
In war many phenomenons cannot be clear as crystal, for instance, are child soldiers only victims, or they can be perpetrators? During killing and looting there is a possibility that every human can be a victim and perpetrator at the same time in order to protect and defend themselves, within the context child soldiers are not an exception, they are victims to the war and to the recruitment, and at the same time, they can be perpetrators when obeying their leaders’ orders and instruction during hostilities (Derluyn, et al, 2015). Drumbl set four categories to how people see child soldiers, the first is the victim image, where the child is helpless and clueless who is an easy tool to use and manipulated, the second sees the children as “irreparably damaged goods” and a lost generation, the third one is child soldiers as a hero that fight without any fear the fourth one is the demon and the perpetrator image (Drumbl, 2012, p 6-8). In the same context, Baines presents the concept of complex political perpetrators that describe “generation of victims in the setting of chronic crisis who not only adapt to violence to survive but thrive by becoming a perpetrator” (Baines, 2009, p. 180)
Within this approach, child soldiers can be held responsible for their actions. Drumbl argues that child soldiers cannot be seen either as victims or perpetrators; he is calling for a change in the image of child soldiers in the world and moving from the passive victim position for the children (Drumbl, 2012). He states that some of the child soldiers do join the armed group voluntarily without any type of coercion, and in some cases, children go against their parents to join them for various reasons, and in some cases, they do commit atrocities with full control over their actions (Drumbl, 2012). Wessells identifies four dynamics behind committing atrocities “the will to survive, obedience, the normalization of violence, the satisfaction derived from killing, and ideology” (Drumbl, 2012, p 81), Drumbl sees the relationship between the child soldiers and their environment as an interactive relation that needs to be addressed within the conflict context, in one-day child soldiers will refuse to commit the crimes, but in the next day they will commit it, to understand why child soldiers do those actions there should be an analytical understanding to the circumstances that pushed child soldiers to commit or refuse to commit atrocities (Drumbl, 2012). For instance, the level of danger, the state of the armed groups’ commanders, can shape the circumstances surrounding the children. For him, the issue is more complicated than the normal image of the passive victim (Drumbl, 2012).
In some cases when child soldiers do join the armed groups voluntarily and commit atrocities under no conceive but with their full conciseness and control over their actions (Ursini, 2015), therefore in some cases, children must be held criminally responsible for the actions that they have committed which can be, in some cases, war crimes, crimes against humanity, or genocide (Amnesty, 2000). Some also see in the Security Council’s reference to “the necessity to bring perpetrators of crimes against children to judicial accountability” in an absolute manner without specifying their age or restricting it to those over the age of eighteen, as a trend towards holding child soldiers criminally responsible in some cases for the crimes they committed against adults or the children themselves (Frostad, 2013). In these situations, prosecuting child soldiers may be needed under the guarantee of a fair trial, and respect the principle of child best interest, and for the purpose of rehabilitation and reintegration (Amnesty, 2000).
Another issue arises about how granting immunity to children for their actions can help them or their relationship with their society. In some places the community demand for the children to be prosciuttos for their crimes, moreover some communities like the Iraqi societies refuse to let the children who were affiliated with ISIS go back to the communities, and they even demand to deport them out of the country (Al-Ardawe, 2020; Baines, 2009).
In some cases, children do join the armed groups with free will, and they do committee atrocities against others with no corrosion or force. At the same time, other children get abducted and forced to join the groups, they are ill-treated and being abused in order to obey the order and instructions. However, the issue is more complicated when going deep into the children action itself, some children will want to the committee the crime one day and refuse the next one, some of them can play dump in order to look helpless and unable to avoid doing what they have been told, while other committees the crimes in order to have respect and power within their groups (Baines, 2009; Drumbl, 2012; Stauffer, 2020).
As a result, there should not be one stander to treat all children, on the contrary, dealing with child soldiers need to follow case by case approach according to the conflict context.
It’s Not About Prosecuting Child Soldiers
Using criminal justice is not the most suitable resolution for child soldiers, criminal justice aims in the first place to accomplish both general and specific deterrence, in order to prevent committing crimes in the future through punishing by the state (Quénivet, 2017). Nevertheless, the particularity of child soldiers requires a different approach.
In the first place, the existence of the phenomenon itself occurred during an abnormal situation of conflict where the entire community is participating in violence. In this situation, the society who is responsible for protecting and guarding these children have become the source of danger that threatens them, the community members from parties, political groups, armed groups, and even families and tribes are the one who recruits children into their armed forces and shove them towered participating in hostilities. And so on, resolving the phenomenon of child soldiers requires intervention from amongst the community itself. In his study, Kiyala identifies the society to be the former responsible for work with and reintegrate child soldiers. He stated that “Society is responsible for the involvement of children in armed conflict because adults, parents, leaders, governments, and local authorities deceive young people and children. They fail to provide for their needs, leaving them without a choice but to become soldiers” (Kiyala, 2019, p. 232). In his argument, Baines see that in the absence of the state and its role in protecting its people, the war become “opens space for social, economic and political innovation into which exclude children and youth can be either forced or willingly enter and become upwardly mobile” (Baines, 2009, p 180).
As a result, the communities need to take responsibility for the children participating and the atrocities they committed during the conflict. Instead of reject, stigmatize, and discard these children for something they have done under their communities’ watch, there should be a bath to forgive and accept them back to the community, and instead of prosecuting them, punish them, and isolate them in prison for without real rehabilitation and reintegration, there should be a new way to reintegrate them and restore their relationship with the community.
To achieve that, a new approach of justice needs to take place in dealing with child soldiers, an approach that builds upon taking into consideration not only the interest of one party over the other but the interest of the community as one which includes child soldiers and the victims together.
The prosecuting of child soldiers should be, in the opinion of Cecile Aptel, replaced with restorative justice approach that “promote diversion, mediation, truth-telling and reconciliation” (Aptel, 2010, p 20), in the same way, Grossman believes that “the world should choose rehabilitation and reintegration over criminal prosecution” (Grossman, 2007, p 323), taking into account the principle of child best interest that the Child Right convention adopted in article 3.
The focal point we focus on is that holding child soldiers responsible for their actions do not mean they should be prosecuted in front of criminal courts. Admitting responsibilities is the first step in the process of rehabilitation and reintegration subsequently reconciliation with their communities. In places like Syria and Iraq where sectarian played an important role in the recruitment process, child soldiers are being seen as a danger, they are kept in isolated camps or jails without any future plans (Al-Zain, 2020), even their families refuse to take them back due to their affiliation with ISIS (Al-Ardawe, 2020).
The Arab countries and governments need to adopt a new approach to work with child soldiers, even if child soldiers were prosecuted in criminal courts that do not mean they will be able to restore their relationships with their communities. Spending years in jail will benefit nor the children neither the community, on the contrary, it will reinforce the gap between the two parties. In this situation, Restorative Justice can be the most suitable approach for all parties, taking into consideration that its foremost objective is restoring the relationships between the conflict parties.
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