Prosecution Of Child Soldiers Under International And Domestic Law
1. International Legal Framework for Child Soldiers
Rome Statute of the International Criminal Court (ICC), 1998
Recruiting or using children under 15 in armed conflict is a war crime (Article 8(2)(b)(xxvi) and 8(2)(e)(vii)).
Applicable in both international and non-international armed conflicts.
Optional Protocol to the Convention on the Rights of the Child (OPAC), 2000
Prohibits compulsory recruitment under 18 years and participation in hostilities.
Encourages rehabilitation and reintegration rather than prosecution of child soldiers as criminals.
Geneva Conventions and Additional Protocols
Recruitment of children under 15 in hostilities is prohibited under Protocol I and II.
Key Principle: Child soldiers are generally considered victims, not perpetrators, in criminal prosecutions. International law prioritizes their protection and rehabilitation, while those who recruit or use them are prosecuted.
2. Case Law Examples
Case 1: Prosecutor v. Thomas Lubanga (ICC, DRC, 2012)
Facts:
Lubanga, a Congolese warlord, was the leader of the Union of Congolese Patriots (UPC).
He recruited and used children under 15 to participate actively in hostilities during the Ituri conflict (2002–2003).
Legal Issues:
First ICC case concerning child soldiers.
Charges: War crimes for conscripting and enlisting children under 15 and using them to participate actively in hostilities.
Outcome:
Lubanga was convicted and sentenced to 14 years’ imprisonment.
ICC emphasized that using children under 15 in hostilities is a serious war crime.
Significance:
Landmark case establishing accountability for the recruitment of child soldiers.
ICC jurisprudence clarified the definition of “active participation” in hostilities for children.
Case 2: Prosecutor v. Bosco Ntaganda (ICC, DRC, 2019)
Facts:
Ntaganda, a Congolese rebel commander, recruited and used child soldiers under 15 in the Ituri region.
Children were trained, armed, and deployed in combat.
Legal Issues:
Charges: War crimes (enlistment of children under 15) and crimes against humanity.
Focus on forced recruitment and participation in hostilities.
Outcome:
Convicted of war crimes related to child soldiers and sentenced to 30 years’ imprisonment.
ICC held him criminally responsible even though children were coerced by local commanders.
Significance:
Reinforced the principle that commanders are responsible for recruiting child soldiers.
ICC jurisprudence shows enhanced penalties for systemic child recruitment and use.
Case 3: Prosecutor v. Dominic Ongwen (ICC, Uganda, 2021)
Facts:
Ongwen, a senior commander in the Lord’s Resistance Army (LRA), used abducted children in military operations in northern Uganda.
Legal Issues:
War crimes: Recruitment and use of children under 15 in hostilities.
Ongwen himself was abducted as a child, raising complex issues about victim-perpetrator duality.
Outcome:
Convicted of war crimes involving child soldiers, among other charges.
Sentenced to 25 years’ imprisonment.
Significance:
Showed complexities when perpetrators were themselves former child soldiers.
ICC recognized nuanced treatment: child soldiers as victims but held commanders accountable.
Case 4: Prosecutor v. Charles Taylor (Special Court for Sierra Leone, 2012)
Facts:
Former Liberian President Charles Taylor was accused of aiding and abetting the Revolutionary United Front (RUF) in Sierra Leone.
The RUF recruited children under 15 to fight in the civil war.
Legal Issues:
Taylor was not directly recruiting children but aiding and abetting the recruitment and use of child soldiers.
Charges: Crimes against humanity and war crimes, including enslavement and recruitment of children.
Outcome:
Convicted for aiding and abetting war crimes and crimes against humanity, including child recruitment.
Sentenced to 50 years’ imprisonment.
Significance:
Established command responsibility and liability for aiding groups that recruit child soldiers.
Reinforced that political leaders can be held accountable for child recruitment in armed conflict.
Case 5: Domestic Law Example – Nepal Civil War (1996–2006)
Facts:
During the Maoist insurgency in Nepal, children under 18 were recruited by the Maoist forces for combat and support roles.
After the conflict, Nepal enacted the Children Act 1992 (amended 2007) and the Juvenile Justice Act 2000, prohibiting recruitment of children under 18.
Legal Issues:
Domestic prosecution focused on commanders who recruited children.
Children themselves were treated as victims; they were not prosecuted.
Outcome:
High-ranking Maoist commanders faced criminal proceedings for recruitment of children.
UNICEF and UN monitored rehabilitation programs for former child soldiers.
Significance:
Domestic law in Nepal aligned with international standards.
Prioritized protection, rehabilitation, and reintegration of child soldiers.
Demonstrates trend in domestic courts to avoid criminalizing child soldiers themselves.
Case 6: Prosecutor v. Radovan Karadžić (ICTY, Bosnia, 2016)
Facts:
Karadžić, former Bosnian Serb leader, oversaw forces that recruited and used minors in armed conflicts during the Bosnian War (1992–1995).
Legal Issues:
Charges: Crimes against humanity and war crimes, including enlistment and use of child soldiers.
Outcome:
Convicted for multiple war crimes including recruitment and use of children.
Sentenced to life imprisonment.
Significance:
Reinforced that high-ranking political and military leaders can be held criminally liable for using child soldiers.
Shows international prosecutions are consistent in condemning child recruitment.
Key Legal Principles
Child soldiers are primarily victims: They are not criminally liable for participation in hostilities.
Command responsibility: Leaders who recruit or use children are criminally responsible.
International and domestic law alignment: Domestic law increasingly mirrors ICC/OPAC standards.
Aggravating factors: Forced recruitment, cross-border abduction, and systematic use increase criminal liability.
Rehabilitation priority: Legal systems focus on reintegration programs rather than prosecution of child soldiers themselves.
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