The Use Of Child Soldiers In Armed Conflict As War Crime Under International Law

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The Use Of Child Soldiers In Armed Conflict As War Crime Under International Law


Abstract


This dissertation entitled “The Use of Child Soldiers in Armed Conflict as War Crime under International Law”is premised on an appraisal of the legality of the atrocities visited upon children during armed conflicts, especially as coerced active participants. This is approached from the perspective of the menace being a form of child abuse and exploitation of such children, and how international justice combats such illegality and impunity to justice of their commanders and recruiters. Despite a catalogue of laws – both national and international– which prohibits and protects against the illegal use of children as active participants in armed conflicts, it is sadly observed that children find themselves forced into different armed conflicts all over the world.

The illegal use of child soldiers has manifest negative effects on both the children and the society at large. Apart from causing deaths and injuries, this menace depletes the society of its real resource and future – children. The purpose of this study therefore include among other things, enhancing access to appropriate information and knowledge about the protection of the fundamental human rights of children during armed conflicts, and how the law de-mystifies the aura of impunity to justice of their recruiters and commanders. This also entails an appraisal of the level of culpability or otherwise of child soldiers in the commission of grave crimes during armed conflicts. Our study revealed that this menace is a problem of both developed and developing countries of the world, though at varying levels.

The study also showed that there are various laws and regulations protecting against the illegal use of child soldiers, and it is therefore the lack of the political will and the non-implementation of obligations under these laws that has provided this aura of impunity to justice of the perpetrators of these atrocities and war crimes. Based on our research, we realized that individual criminal responsibility for war crimes does not depend on a person’s status, and even states can be liable for grave crimes and reparations under international humanitarian law. Child soldiers may also be liable for their actions and misdeeds, though age may be a mitigating factor when the question of their responsibility is raised.

Consequently, perpetrators of grave crimes must be punished in order to satisfy the victims and prevent the commission of further atrocities, and the responsibility for this task falls on states, their citizens and the international community. It is therefore advocated that this can also be achieved or reduced, through non penal modes of justice as alternative and complement to the penal system of justice as a means of combating, preventing and reducing the menace of war crimes and atrocities.


Chapter One


1.0. Background

Armed conflicts with devastating effects have been part of mankind since time immemorial and these days, there are easily accessible light weapons and even more destructive weapons, leaving a large number of the wounded, maimed and dead in their wake. Children all over the world constitute the largest and most powerless members of society and; it used to be assumed that adults had the best interests of children at heart and there was no need to think in terms of children’s rights or their protection. This idealized perception of the adult-child relationship ignored the grim realities of our world today.It is virtually impossible to watch international television stations like Cable News Network (CNN) or British Broadcasting Corporation (BBC) without hearing or seeing the sufferings of children in one part of the world or the other.

On these international television stations, the glares of child soldiers with their oversize ‘AK-47’ weapons from war-torn countries, calls out to the world to end these endless and senseless wars. Luckily, Nigeria has not experienced these horrors although she had had to contend with refugees from war-torn countries, faced her own various communal, ethnic and sectarian clashes. The Niger Delta insurgency readily comes to mind; and in all these situations, the people who are most affected are innocent children. It is children who are increasingly becoming the principal victims of hostilities and acts of violence perpetrated in the course of armed conflicts. Children are often in greater danger than adults during armed conflicts – the danger and form of harm to which children are subjected to is specific to them due to their innocence, vulnerability, and age.

In order to prevent the use of children and ensure their protection during armed conflicts and most especially, to bring to justice all those engaged in such callous acts, preventive and countermeasures must be perfected. This work is an inquiry into the consequences of traumatic man-made actions which were borne out of flawed leadership and greed for money and power and, of political failure by our leaders to prevent the tragedy that has befallen an entire, defenseless population and; how international justice is confronting the aura of impunity to justice of all those involved in this unlawful creation, called Child Soldiers or Child Combatants (which shall be used interchangeably throughout this research work).


1.1. Statement of the Research Problem

The use of child soldiers poses a challenge to moral norms and legal regulations guiding the conduct of warfare. The direct involvement of children in armed conflicts has dire implications for the development of children and society as a whole.1 Child soldiering is a relatively new phenomenon even though it has quickly gained notoriety, and it is not restricted to any continent or region of the world but fortunately, Nigeria has been spared such horrors. There is however the scarcity of relevant authorities on the subject, either in our public or private libraries, and even those found on the internet are restricted or too costly.

Most of the available authorities on child soldiers were not focused on the liability of child soldiers, and their recruiters and commanders. With the foregoing, several research questions, therefore, beg for answers: Who are combatants? Are child soldiers liable for their actions? What are the legal

1Sesay, A., Civil Wars, Child Soldiers & Post Conflict Peace Building in West Africa, College Press, Ibadan (2003) p. 4, (hereinafter called Sesay’s Civil Wars).

Prohibitions of the use of child soldiers? Are the recruiters and commanders of child soldiers liable? How is international justice combating the aura of impunity to justice of the recruiters and commanders of child soldiers? Answers to these and other important questions are the bedrock of this study.


1.2. Objectives of the Research

This work attempts to focus on how international justice is used to protect the fundamental human rights of children during armed conflicts, most especially, as active participants. And how it is also been used to confront and combat the atrocities of their recruiters, commanders and the perpetrators of these callous atrocities in order to de-mystify the aura of impunity surrounding such misdeeds. We shall attempt to answer the above questions and many more, posed in our statement of the research problem, and this shall be done with reference to relevant laws, practical applications and thereafter, proffer our findings and recommendations to the issues so raised.


1.3. Significance of the Study

Many victims of atrocities were denied justice for such crimes and many more, continue to suffer gross human rights violations during armed conflicts. The aura of impunity surrounding such atrocities has provided a fertile ground for the commission of new horrendous crimes, which must not be left unpunished. It is noticed that not much research had been done on how perpetrators of war crimes are dealt with, in order to avert further atrocities and help reduce and stop it.

This issue must be investigated and given appropriate attention, especially with post-war or post-conflict reconstruction and peace building efforts.

Our work is designed to address some of the salient issues which many other authorities have so far ignored. Considering the lack of good relevant materials on this issue in Nigeria, ourresearch will be of great value to judges, legal academics, private practitioners, students, legislators, sociologists, social workers and, would hopefully help in shaping policy and judicial thrust. We shall try to highlight the nature, forms, causes and effects of child soldiering on both children and the society. We shall examine the culpability of both child soldiers and their recruiters and; how the law prohibits this phenomenon, and how the law is been used to bring justice to all concerned.


1.4. Scope of the Research

This study is not restricted to any country or region of the world, but it rather encompasses recent developments of the law in this area within a global perspective. We have tried to depart from previous studies by examining the roles and restriction placed on the use of children in armed conflicts, and the aura of impunity to justice surrounding their recruiters. We shall highlight the provisions of the law designed to combat the illegal use of child soldiers and, focus on those aspects of the law that has direct relevance to the illegal use of child soldiers, and how international justice redresses such impunity to justice.


1.5. Research Methodology

A doctrinal research methodology is adopted in the conduct of this work. Some of the information in this research work are from primary sources like statutes, conventions, protocols, and case law. The bulk of the information however, consist of secondary sources from relevant and authoritative books, writings and opinion of leading experts in articles, journals, magazines, newspapers, periodicals and the internet. The footnote method of referencing shall be used while all sources will be duly acknowledged, with a bibliography of all the materials consulted made at the end of chapter five.


1.6. Literature Review

Armed conflicts are meant to be conducted with some form of civility under international humanitarian law. There are codes which all warring groups are expected to obey during armed conflicts. With regards to these laid down procedures on how armed conflicts are to be conducted, this research work tries to highlight the special provisions of international justice designed to protect and prevent the use of children during armed conflicts. Dramatic changes in the conduct of armed conflicts in recent times has however taken on a new dimension, including killing and raping of innocent women and children, children forced into combat and yet, no culprits are held responsible for these crimes. Although there is now a worldwide focus on the subject of child soldiers, the lack of many relevant authorities on the liability of child soldiers and, on the impunity and culpability of their recruiters and commanders is noticed.

Most available authorities on child soldiers focuses mainly on issues such as the use of children as combatants, deprivation of their childhood, the societal effects, post conflict reconstruction, peace building and reintegration of such societies. All these taken as a whole, dictated our approach, in which we have aimed not only to examine and appreciate what others have done in this area and of course, to benefit from their work, but also to examine the liability of child soldiers and, the culpability and impunity of recruiters of child soldiers under the international justice system. Most of the available authorities cover hypothetical issues, while we have tried to cover more practical issues. The central themes of some of our consulted books as serialized below are briefly highlighted:

  1. The book, The Use of Children as Soldiers in Africa, is basically a report of country by country analysis of child recruitment and participation in armed conflicts in Africa. The report provides details of national legislations governing recruitment into the armed forces, national recruitment practices and, where armed conflicts were ongoing, the extent of child participation in hostilities, whether as part of government armed forces, government sponsored armed groups or militia, or non-governmental armed groups or militia. It included basic demographic data and the estimated size of governmental armed forces and nongovernmental armed groups.
  2. While the book, Child Soldiers: The Role of Children in Armed Conflicts, has a lot of pictorials and is one of the earliest books on child soldiers. It dealt with the status of child soldiers in international law and, highlighted the ways in which international humanitarian law fails to provide effective protection, particularly in internal armed conflicts which are now more common. The book is based on empirical data gathered from different parts of the world, examined the reasons and forms of recruitment of child soldiers, effects of child soldiering on the children, their families, and the larger society and also, examines the treatment of children who had participated in acts of violence.
  3. In “A Critical Examination of Crimes Against Humanity Under International Law”, the writer examined the nature of various war crimes and the challenges facing the existing laws in this area. It dealt with the judicial and procedural practices of the various international courts, and the challenges facing them. There were also definitions and explanations of various terms in the thesis.
  4. The article, “The Law of Warfare: Non-International Armed Conflicts and Respect for the Law”, is mainly concerned with striving to determine the quantum of international humanitarian law applicable in non-international armed conflicts and their conditions of applicability. It also analyses the rules or norms that regulate non-international armed conflicts.
  5. In “An Overview of International Criminal Law: The Work of the Rwandan Tribunal”, the writer examined the purpose of sanctions in international criminal law; the contribution of international tribunals to the development of the law and the challenges facing international criminal law especially, the conceptual clarifications or definitions of international crimes. The writer was of the view that the future of international criminal justice and the effective enforcement of international criminal law lies in an invigorated domestic justice system. A description of the provisions regarding the minimum age for child combatants was made within the context of the International Criminal Tribunal for Rwanda. (f). The Graca Machel Study, The Impact of War on Children, which has since become the basis of global action on child soldiers was mainly concerned with the effects of war on children. It examined both the psychosocial and physical effects of war on children and, made recommendations on the way forward. It examined some threats to children in armed conflicts like HIV/AIDS, landmines, small arms, the peace process, media and security.
  6. The book, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, appraised the issue of individual accountability for human rights atrocities under international law. It considered the development of the law and, the mechanisms of accountability for violations of the law with the promises and pitfalls of individual responsibility. Procedural, evidential and prosecutorial issues were also examined in the book.
  7. The book, Civil Wars, Child Soldiers and Post Conflict Peace Building in West Africa,10centers on linking the nature of civil wars to post-conflict reconstruction in Liberia and Sierra Leone. The book examined the impact of the civil wars in these countries on children as combatants and, the implications for post-conflict peace building and reconstruction in those societies, and West Africa as a whole. The book also dealt with the actual roles assigned to children in those wars and, the role of multilateral agencies in post conflict reconstruction.

The noticed themes and gaps in all our reviewed literatures are however found in one way or the other, individually and/or collectively to be premised on:

  1. Legislations concerning recruitment of children into different armed forces, report and analysis of the extent of child participation in hostilities.
  2. Post-conflict treatment of child soldiers and the failure of international law to provide effective protection to children during armed conflicts.
  3. Judicial, evidential, procedural issues and practices of the various international courts and their challenges.
  4. Determination of international humanitarian law applicable in non-international armed conflicts and their conditions of applicability.
  5. Effects of war on children during and after armed conflicts; the role of multilateral agencies in post-conflict reconstruction and, the effects of child soldiering on post-conflict peace building and reconstruction.
  6. The effects and purposes of sanctions in international criminal law and, the contribution of international tribunals to the development of the law.

The approach adopted in this study is however different but complementary to our reviewed literatures, as it is geared towards focusing on the following:

  1. Analysis of the nature, causes, effects and forms of child soldiers as a form of child abuse and exploitation.
  2. Nature of war crimes, and the legal provisions on the use of child soldiers and, the jurisdiction of international tribunals over war criminals and the fight to combat the menace of child soldiers.
  3. The culpability or otherwise of child soldiers and the liability of recruiters of child soldiers and, how international justice deals with their ‘aura’ of impunity to justice.

It should be noted that we have not dwelled on the theoretical, practical challenges and requirements of engaging the mechanisms of actual prosecution like the judicial, procedural and evidential requirements; the mensrea elements of the crimes, nor the elements that confine nor define the scope of these crimes. The essence of this work is to focus on the illegal use of children as combatants under the law, their culpability if any; whilst stressing how international justice protects children by making their recruiters and commanders accountable. We shall try to focus globally on relatively recent developments and we shall highlight the key features of these new mechanisms of justice and identified some of the major issues. We hope that our work will help fill in some of the gaps, if any, in earlier authorities and encourage more debate and awareness on this subject.


1.7. Structure of the Thesis

Our work is divided into five distinct and separate chapters.

  • Chapter one is the introductory chapter and it introduces the concept, background and objectives of the study. This chapter deals with the study’s literature review, methodology, research problem and structure of the thesis.
  • The second chapter is the ‘actual’ start of our study and deals with issues such as child abuse and exploitation. The chapter also covers the nature and forms of war crimes under international humanitarian law.
  • Chapter three has to do with topics such as the nature and prohibitions against the use of child soldiers. This chapter examines the meaning, forms, recruitment methods, functions, involvement, nature and scope of child combatants. This examination also extends to the meaning and distinctions between combatants and civilians.
  • Chapter four examines issues relating to criminal responsibility and liability for war crimes; state responsibility; individual criminal responsibility; superior responsibility and the liability or otherwise of child soldiers.
  • Chapter five is the conclusion of our effort and it encompasses a summary of our observations, recommendations, and the general conclusion of this work.
  • The research bibliography and appendix are inserted at the end of this chapter.

Chapter Five


5.0. Conclusion

There has been a catalogue of atrocities and the loss of millions of innocent lives in armed conflicts at the hands of individuals and oppressive regimes, in flagrant violation of international humanitarian and customary laws. The nonfulfillment of obligations accepted by the majority of the international community to prevent, prosecute and punish serious crimes and grave breaches of international humanitarian law, has created a safe environment for the perpetrators of such heinous acts. The atrocities and forms of violence which are now too frequently encountered in armed conflicts has given rise to an increase in the number of civilian victims, particularly children, who on account of their special vulnerability, are the most affected.

This is compounded by such children having been coerced and made active participants during hostilities.2 The active participants in armed conflicts used to be primarily the regular troops, but since the emergence of new types of conflicts involving regular troops against guerrillas – we have frequently been seeing children forced into combat theatres, brandishing weapons and ready to use them indiscriminately. Such immature children, who are forced to lose their childhood and even their lives, are a deadly threat to both the society and themselves.3


5.1. Observations and Recommendations

It is evident that despite the extensive protections and prohibitions against the use of child soldiers, they continue to be forced into taking part in hostilities. The commanders of these child soldiers easily force them into committing a variety of horrendous atrocities – for their own selfish reasons. Child soldiers do commit atrocities, but the reality is that, they are pawns in a deadly game played by their commanders. The law is however catching-up with the perpetrators of these crimes, who have no regard for such young lives nor the effects of their actions on these children and the larger society – this is a serious illegality deserving of punishment.

International humanitarian case law shows that perpetrators of war crimes no matter how highly placed cannot escape punishment. We are not unmindful that this viewpoint might be contested in some quarters, because it might appear that in actual practice, international justice (for example, the ICC) is been directed towardspeople from some ‘countries’ rather than those of the western world. Thus, despite lots of claims and protests from international non-governmental organizations, UN Resolutions and international condemnations; many westerners’ especially British, American, Russian and Israeli citizens and leaders who are accused of serious crimes are yet to answer for such charges.

This is buttressed by allegations made against people like the former American president, George Bush and former British prime minister, Tony Blair for their parts in atrocities committed in conflict zones such as, Iraq and Afghanistan. A strong case is also made against the several alleged Israeli atrocities committed against the Palestinians. It is strongly argued that with so much evidence and/or allegations against such people, no action has ever been taken against them. We are aware that they are not likely to face international prosecution for such misdeeds, and the best that can realistically be expected from such countries are belated ‘apologies’ or ‘explanations’ or ‘denials’ for such alleged atrocities. While accepting the truth of some of such claims, we believe that the fight against impunity to atrocities must start from somewhere. Moreover, even if some people from some 3rd World countries appear to be the main targets of international justice, the allegations made against them are generally believed to be true. Thus, despite existing laws and prohibitions, the international community has lacked the commitment and political will to bring perpetrators of atrocities to justice. This has fostered an aura of impunity and encouraged more atrocities – impunity is not a natural phenomenon but rather the failure to enforce the law.

It is imperative and safer for states and militia groups, to acknowledge and enforce their obligations and responsibilities to children and the international community. Individual criminal responsibility does not depend on a person’s status civilians, combatants, militia leaders and government officials are all equally capable of committing and being prosecuted for war crimes and grave breaches of the international humanitarian law, either in international or internal armed conflicts. Even states, militia groups and non-state actors can also be accountable for violations of human rights and war crimes.

The use of children in armed conflictsis morally callous and a war crime which has grave multiplier effects on future generations (and it is noteworthy, that we didn’t come across any evidence of the use of child soldiers in Nigeria, especially in the volatile Niger Delta area). Because of the grave impact of such war crimes on children and the society, the impunity of the perpetrators must not be allowed to continue. Increased international awareness about the illegal involvement of children in armed conflicts has ensured that the concern for child soldiers is on the international agenda.

There can be no peace without justice and as such, perpetrators of war crimes should be punished, regardless of the position they occupy, in order to satisfy the victims and prevent the commission of further crimes. Responsibility for prosecuting the perpetrators falls first and foremost to the states, but if they do not wish or are not in a position to do so, then other willing states or international institutions shall step in; so that those engaging in such prohibited conduct can account for it through ‘penal’ or ‘non-penal’ means, no matter the context in which the criminal conduct took place.

Many countries like Nigeria with a history of traditional justice have not encouraged the use of such alternative modes of justice as a complement to their western-type justice system. Rwanda with its ‘gacaca’ justice system has however, started a trend towards the use of such traditional modes of justice, and hopefully other countries will follow along the same path. The sad reality in many 3rd World Countries is a poor western-type judicial system, compounded by insufficient and unskilled personnel, which invariably leads to delay in justice or no justice at all. As an outcome of our research work, we recommend the following:

  1. Explicit prohibition of child soldiering and non-recruitment of under 18 year olds into armed forces or armed groups, since non-recruitment is the most effective means of preventing this menace.
  2. Increase respect and adherence to humanitarian law by enhancing and increasing combatants’ instruction in humanitarian law and the fighting forces should have legal advisers available to assist and advise them.
  3. Establishment of a worldwide system of compensation and reparation for victims of past human rights abuses and; enactment, implementation, and domestication of international laws and treaties like the Rome Statute.
  4. The defence of duress should be available to child soldiers and as such, there should be a determination of the requisite mensrea for committing war crimes.
  5. There should be increased banking and financial co-ordination and cooperation between countries, in order to monitor and control the financial resources of perpetrators of war crimes.
  6. Due to its flexibility and easy accessibility there should be increased use of alternative and complementary modes of justice in tackling pre-conflict, conflict and post-conflict issues, especially for people in the rural areas; and prosecution of perpetrators on the basis of universal jurisdiction should be pursued.

5.2. Conclusion

The global rules and system that enforces human rights at the international level has become significant tools to prevent conflicts, prevent atrocities, promote peace and justice. International justice is essential to deter those contemplating human rights crimes, to enable victims and their families to obtain justice and redress, to punish perpetrators, to rebuild nations ravaged by armed conflicts and to support post-conflict reconciliations. States can only address the effects of war crimes and atrocities like the illegal use of child soldiers by confronting them, and reflecting on the fact that their communities find such crimes totally unacceptable.

It is the duty of states and the international community at large to put a stop to atrocities and all inhuman practices. And this, they can do by putting mechanisms in place and, enforcing such mechanisms, in order to ensure that the violators of international law are held responsible. The victims who suffer these grave crimes and their families deserve nothing less. The illegal use of children as active participants in armed conflicts is a grave form of child abuse and exploitation, and a war crime, which has far-reaching effects on both the children and the society. Grave breaches of international law constitute war crimes that incur the individual criminal responsibility of those who commit them – by their actions or inactions.

The impunity with regard to the illegal use of child soldiers is the result of an apparent lack of political will to combat the violators of humanitarian law, and is not the result of an international legal vacuum with regard to these illegalities.

Responsibility for tackling this menace falls first and foremost to states; but this responsibility does not rest on the individual criminal perpetrators and the commanders of these child soldiers, but rather on the whole society at large. There can be no compromise over the fact that criminal sanctions must be imposed in the case of serious violations, to show that the prohibitions are absolute and that no departure from them will be tolerated. There must be the political will, determination and co-operation of both governments and citizens, in order to bring criminal perpetrators of grave atrocities to justice.


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