Ever since the 1996 Machel Report on the impact of armed conflict on children by Graça Machel shed light on the phenomenon of child soldiering, the topic has remained controversial. Children participate in armed conflicts throughout the world and the numbers are unlikely to decrease. However, the appropriate legal response is yet to be found. In this post, I suggest that the conventional approach on child soldiering has significant shortcomings and is dominated by narratives that do not fully capture the complexity and diversity of child soldiering. In addition to the need for a (more) contextual approach that includes the acknowledgment of juveniles’ criminal responsibility, notions of “terrorism”/“violent extremism” and its ramifications for minors allegedly having committed “terrorist” acts demand a re-examination of whether the international level would be a more appropriate forum for dealing with the criminal responsibility of juveniles for international crimes.

The initial reaction to child soldiers’ participation in hostilities

Human rights scholars and activists overwhelmingly claim that children associated with armed groups or armed forces (CAAGAF) are being coerced, drugged, and are susceptible to a multitude of injustices. In this vein, these children are first and foremost perceived as traumatized victims, in need of special protection. However, this perception inevitably precludes their criminal responsibility.

Instead, according to this prevailing view, their recruiters should be called to account. This approach is manifested in several policies and soft law instruments, and has been understood to particularly exclude the international sphere as an appropriate forum for dealing with any criminal responsibility of CAAFAG. If at all, children should be brought before national courts. This interpretation is endorsed by the practice whereby international(ized) courts overwhelmingly refrain from adjudicating cases concerning juveniles, despite the theoretical possibility to do so under international law.

It could be argued that such policies and soft-law instruments are indicative of an emerging lex ferenda. However, it is questionable whether this rather policy-based practice is indeed turning into a lex ferenda, and more so, whether it should be.

A changing lex ferenda?

Despite the severe suffering and traumatizing experiences that CAAFAG endure, the one- sided image of the ever-lasting and victim-only view has been criticized and challenged.

The first critique relates to the understanding of childhood. The understanding of this concept originates from the Western conception of childhood, which defines every person under the age 18 as a child and characterizes children by innocence and vulnerability. This perspective engenders racial and colonialist lines of reasoning. It disregards the child soldier’s agency. However, by acknowledging their agency and by granting victims the full right to justice, the reintegration, rehabilitation and reconciliation of CAAFAG within their community, their active role in rebuilding and reconstructing their society, and their political role may be encouraged. The denial of full accountability to juveniles paternalizes and incapacitates juveniles on different levels. However, the supporters of a more contextualized approach to accountability of juveniles have favored transitional or restorative justice measures over punitive measures.

Secondly, at the international level, the one-sided image of innocence and vulnerability is also crumbling. The ICC convicted Dominic Ongwen, a former child soldier in the Lord’s Resistance Army in Uganda who had been abducted at age 9. The chambers ruled that no rule exists in international human rights law that would immunize persons who suffer human rights violations from responsibility for all similar human rights violations that they may themselves commit (para. 2672). Admittedly, in the quite debatable conviction of Ongwen the ICC did not have to deal with crimes committed by a child soldier as a minor but as an adolescent, age 24-27.

Nevertheless, these developments point at the inappropriateness and unsustainability of the contemporary approach to child soldiering, inasmuch as it does not cover the phenomenon comprehensively, and it discounts its dichotomy in terms of a dual role as victims and perpetrators. Furthermore, the general preclusion of CAAFAG’ criminal responsibility under the age of 18 was never entirely convincing as it does not reflect the legal frameworks and practice at the national level. Most importantly, the increase of children associated with so- called terrorist and violent extremist groups (“T/VEG”) renders the “innocent victim only” presumption of CAAFAG neither feasible, nor arguably still desired. As opposed to “conventional” CAAFAG, the view on children associated with “T/VEG” is less lenient. The latter are seen as radicalized and dangerous potential threats. Under the guise of anti-terrorism laws, they are usually held fully responsible, are detained, sentenced harshly, and even tortured, notwithstanding their young age. This may be exacerbated by the seriousness of the alleged crimes.

The recognizable difference in perception may be explained by many different reasons, such as the (non-)existence of a post-conflict context or the different nature of the crimes. Terrorism is delocalized, and thereby affects Western countries and societies directly.Presumably, the latter causes a negative perception of the allegedly involved CAAFAG as dangerous perpetrators within the society. This stands in opposition to a post-conflict context in which the society is acting as “buffer” between the punitive system and CAAFAG, which is not the case for children associated with “T/VEG”.

Irrespective of potential explanations, taken from the point of view of the conduct by the child and the status of the child, there is no (legal) difference between the types of child soldiering. Hence, there is no legal gap for children associated with “T/VEG” as the international legal framework continues to apply to them. However, discrepancies arise between different types of CAAFAG and the applicable legal frameworks, when overlapping different legal frameworks on “terrorism”, nationally and internationally, come into play. By having neglected the child soldiering issue and by not differentiating sufficiently between adults and minors, the international legal framework on terrorism has become a gateway for states to violate children’s and human rights as well as international juvenile justice standards. Furthermore, it has supported, sometimes even engendered, the negative narratives on
children being demons, potential threats and radicalized, all under the guise of the fight against “terrorism”. Therefore, “terrorism” and its legal framework with states’ focus on security evoked a problematic double standard with regards to CAAFAG.

In response to this double standard, Security Council Resolution 2427 (2018) affirms that all CAAFAG should be treated equally as victims regardless of the group’s characterization, albeit to little or no avail. The notion of “terrorism” makes it even more challenging to enforce children’s guarantees and rights. Despite attempts by international actors to align the best interest of the child with security measures, the security approach of states poses a great obstacle to pathways other than criminal in approaching CAAFAG. Hence, it is unlikely to assume a lex ferenda in the foreseeable future that excludes the criminal accountability of CAAFAG entirely.

The re-examination of the international sphere

Generalized assumptions about child soldiering and different perceptions in terms of categorizations such as child soldiers versus child “terrorists” do not match empirical findings and do not do justice to the complexity and diversity of the phenomenon. Therefore, I argue in favor of a comprehensive approach that, among other tools, includes criminal responsibility for juveniles having committed core crimes. Further, notwithstanding a notable opposition to regulating accountability of juveniles at the international level, the Ongwen case has undoubtedly revealed that the westernized approach, which precludes criminal responsibility until the age of 18 creates a problematic adult-child-dichotomy as it overwhelmingly imposes responsibility on persons above this age irrespective of gradual shifts in human development.

This should prompt us to rethink this strict demarcation line at the international level. The fragility of the current conceptualization of child soldiering and its proneness to instrumentalization with consequential children’s rights violations, should further impel us to re-examine the international sphere as an appropriate forum for dealing with juveniles’ criminal responsibility. In that vein, the international sphere could be seen as protective tool for CAAFAG, militating away from a less protective domestic approach, instead of damaging and intimidating. This should not contravene the primary jurisdiction of national courts and the subsidiary role of international courts but is rather in accordance with the continuous growth of international(ized) courts and increased cooperation between international criminal justice and national criminal justice organs. International(ized) courts could guarantee equal treatment of any type of CAAFAG, warrant their human rights and international juvenile justice standards that are oriented towards rehabilitation and reintegration. Additionally, they would ensure the proper application of international humanitarian law. Moreover, an international minimum age of criminal responsibility (MACR) could finally be established. Thereby, arbitrary results that may occur due to the lack of an internationally recognized MACR and great variances in domestic systems could be prevented.

The contours of such a regulation at the international remains to be discussed. However, the search for an appropriate response to the phenomenon of CAAFAG should not categorically exclude a regulation at the international level.

LinkedIn: In case of interest, please contact Dilken Çelebi via LinkedIn.