© Photo by Michael Coghlan via Flickr
12 February marks Red Hand Day for Child Soldiers, an annual commemoration drawing attention to the children forced to serve as soldiers in armed conflicts. This important date has been memorialized since the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict came into force in 2002.
Since the Protocol, there has been a limited change in the number of child soldiers used in combat. According to UNICEF between 2005 and 2020, more than 93,000 children were recruited and used by both States and armed groups in conflict, although the real number is believed to be much higher. In accordance with the UN Special Representative for Children and Armed Conflict, the vast majority of child soldiers are used as fighters, however, many of them are also destined to send messages, act as spies, be sexual slaves, and carry out acts of terror, including as suicide bombers. Child soldiers experience different forms of violence, as participants, witnesses and victims, including violent initiation ceremonies, participating in military training, undergoing dangerous labor and engaging in hostilities, and are often faced with the risk of injury or death.
According to War Child, while in many cases children are abducted by the State, armed groups and militias, some are lured to join such groups in exchange for the promise of education, refuge and status. As a result of constant brainwashing or threats, child soldiers become agents of atrocities who are convinced to carry out heinous crimes. The case of child soldiers is a clear example of role reversals, where victims become perpetrators. In many cases, these children start as victims of war crimes and end up becoming offenders of similar crimes to the ones they suffered before.
In the light of the above, this article analyzes the protection of children from being recruited or voluntarily enlisted in the army as child soldiers under International Human Rights Law (IHRL), International Humanitarian Law (IHL) and International Criminal Law (ICL). In doing so, this paper also addresses the criminal accountability of child soldiers for crimes committed in the context of an armed conflict, with a specific focus on the Dominic Ongwen case.
International Human Rights Law
Based on designations in the Paris Principles on the Involvement of Children in Armed Conflict 2007, child soldiers are defined as,
“A child associated with an armed force or armed group refers to 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, spies or for sexual purposes.”
The protection granted by IHRL to children in the context of armed conflicts is primarily provided by the Convention on the Rights of the Child which came into force in 1990. According to Article 38 of the Convention,
“States shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities. States shall refrain from recruiting any person who has not attained the age of fifteen years 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, States shall endeavour to give priority to those who are oldest.”
In addition to the above, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict further expands on existing provisions by establishing, in Article 3 that,
“States Parties shall raise the minimum age for the voluntary recruitment of persons into their national armed forces from that set out in article 38, paragraph 3, of the Convention on the Rights of the Child, taking account of the principles contained in that article and recognizing that under the Convention persons under the age of 18 years are entitled to special protection.”
If a State allows an individual under the age of 18 years to join the army as a voluntary recruit, then it must establish safeguards to ensure that this recruitment is in fact voluntary. On the other hand, when it comes to armed groups the restrictions differ, Article 4 establishes that “Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.”
If a non-state armed group is recruiting children, the State who has jurisdiction over the territory where the armed group operates must take all the feasible measures to prevent children from being used or recruited by these groups, to separate those who have been recruited and offer them proper assistance and protection, as determined by the UN/Colombia, Human Rights Committee (2016) (para. 41).
International Humanitarian Law and International Criminal Law
In both international (IAC) and non-international (NIAC) armed conflicts, there is a special protection for children established under Article 77 of the Additional Protocol I and Article 4 of the Additional Protocol II, which, respectively, prohibit armed forces and armed groups recruiting or accepting children under the age of fifteen. In the case of an IAC, Article 77 determines the prohibition against the direct participation in hostilities by children, while in non-international armed conflicts, Article 4 covers any type of participation in hostilities. Additionally, according to Article 50 of the Geneva Convention IV relative to the Protection of Civilian Persons in Time of War, in the context of belligerent occupation, the Occupying Power must not enlist children below the age of 15 on the occupied territory.
Furthermore, under the Rome Statute, conscripting or enlisting children under the age of fifteen years into national armed forces or groups or using them to participate actively in hostilities is considered a war crime according to Article 8 (b)(xxvi), (e) (vii).
Criminal Accountability of Child Soldiers
The involvement of children in armed conflict poses the question of accountability for the commission of war crimes. From the perspective of international law, child soldiers are considered passive victims of adult crimes and therefore not responsible for their actions. According to The Stockholm Centre for the Ethics of War and Peace, this view of child soldiers as victims is widespread amongst international actors. However, considering child soldiers unaccountable for the commission of war crimes could be an incentive for their commanders to task them with the commission of war crimes resulting in impunity and increasing the recruitment of children (leading to privation of justice to the victims).
The statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) did not specify a minimum age for criminal responsibility, but no one under 18 was prosecuted. The Statute of the Special Court for Sierra Leone (SCSL) states in Article 7, regarding jurisdiction over any person above 15, that,
“The Special Court shall have no jurisdiction over any person who was under the age of 15 at the time of the alleged commission of the crime. Should any person who was at the time of the alleged commission of the crime between 15 and 18 years of age come before the Court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation (…)”.
Nevertheless, the prosecutor decided not to indict children for war crimes because of their dual status as both victims and perpetrators. (Reliefweb). Besides the ad hoc tribunals, the Rome Statute established in Article 26 the exclusion of the ICC’s jurisdiction over persons under the age of 18 at the time of the alleged commission of the crime.
“I liked it in the army because we could do anything we liked to do. When some civilian had something I liked, I just took it without him doing anything to me. We used to rape women. Anything I wanted to do [I did]. I was free.”Former child soldier reflecting on his wartime experiences in Sierra Leone. (Wessells, Michael G. 2006. Child Soldiers: From Violence to Protection. Cambridge, MA: Harvard University Press).
As the cited example above exemplifies, some children have a lack of moral compass and it demonstrates how a child associated with an armed group can, by his own will, carry out war crimes. According to Amnesty International, in cases where children under 18 acted entirely voluntarily, and where they were in control of their actions, they should be held to account via a suitable trial that considers certain factors, such as if they were kidnaped and brutalized by their recruiters. The assessment of a child’s awareness of the choices available, their willingness to commit the crime, the use of drugs for the perpetration of the atrocities and whether they were threatened, are all key elements that should be taken into account when determining a children’s vulnerability and understanding of the situation.
The Case of Dominic Ongwen
Dominic Ongwen was one of the 25,000 children abducted by members of the Lord’s Resistance Army (LRA) in Uganda. According to the report “Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen”, at around the age of 10 Dominic was kidnapped and sent to the house of a Senior Commander. The commander told children to forget about their past, that escape was impossible and lectured them about the “virtues” of the LRA. The commanders used tactics to exhaust and intimidate new child soldiers, such tactics included physical labor, long marches, disorientation and initiation rituals, including beatings from 10-250 strokes. Many youths were forced to kill those who attempted to escape using logs and branches or forced to witness these killings. In this extremely violent context, Dominic distinguished himself from the rest because of his will to conduct raids on military attaches, capture soldiers and abduct children. As a young commander, Ongwen participated in the military operations in South Sudan, where he started indoctrinating, conducting raids and directing abductions. This led to his promotion to lieutenant at the age of 18. In 2004, the LRA launched offensives and massacres, in which numerous civilians were massacred and thousands of children were abducted. Ongwen participated in the vast majority of these military operations and in the perpetration of war crimes. In 2005, the ICC issued warrants for five LRA commanders, Ongwen was received into Central African Republic and surrendered to the ICC in 2015. The trial began on 6 December 2016, the charges included a total of 61 counts of crimes against humanity and war crimes allegedly committed after 1 July 2002 in Northern Uganda. On 4 February 2021, Trial Chamber IX found Dominic Ongwen guilty and sentenced him to 25 years of imprisonment. On 21 July 2021, Ongwen’s Defence filed its appeal briefs against the conviction and the sentence. The crimes for which he was sentenced include some of the following: conscription of children under the age of 15 into the Sinia brigade and using them to participate actively in hostilities, sexual and gender-based crimes and attacks against the civilian population.
In words of Elise Keppler, Associate Director of Human Rights Watch, “To date, this is the only case involving crimes by an LRA leader at the ICC, and pretty much anywhere in the world.” According to Human Rights Watch, to have an international court able to bring justice and accountability to perpetrators will act as a salve for several victims of LRA’s crimes.
Was Ongwen’s abduction by the LRA when he was a child considered at trial? In short, yes. However, based on the evidence provided (234 hearings) the Chamber concluded in the sentence (para. 69) that Ongwen committed these crimes as a fully responsible adult and as a commander of the LRA in his mid-twenties. The Defence claimed (page 5) he suffered from a mental disease during the period relevant to the charges and that he committed these crimes under threats, however, the Chamber couldn’t find (para. 81) the evidence to support this claim. Though, during the trial, the Judges did acknowledge (para. 83) that Ongwen himself was abducted in 1987 around the age of 9 and that he was a victim (and that he had experienced much suffering in his childhood and youth as a child soldier).
Although, under both IHRL and IHL, children are protected from being recruited or voluntarily enlisted as child soldiers, in 2019, more than 7,740 children were still recruited and used as combatants around the world. The consequences for child soldiers are uncertain, the way they are indoctrinated and brainwashed determines their future actions during and after the conflict, directly affecting the civilians immersed in the hostilities. The accountability of child soldiers for the crimes committed remains a divided issue. However, the importance of establishing criminal responsibility of perpetrators is a key element of both national and international justice systems, letting crimes go unaccountable (or without prosecution) would be a violation of the principles where justice resides. Therefore, when determining whether to bring child soldiers before a court, the following elements must be taken into consideration: if they were kidnaped and brutalized by their recruiters, the child’s awareness of the choices available, their willingness to commit the crime, the use of drugs for the perpetration of the atrocities and if they were threatened. Dominic Ongwen’s trial is the first case in the situation of Uganda to be tried before the International Criminal Court, with more than 1,400 of the 2,026 victims participating in the case. His case represents a historic step towards the establishment of how being a victim and then a perpetrator is not a cause for exclusion for responsibility for actions committed as an adult. In the words of Elise Keppler, “fair trials, including appropriate punishments for those convicted, can help build greater respect for rule of law and hopefully contribute to a brighter future – in Uganda and beyond.”
Victor Calero is a final year law student at the Universidad de las Americas in Quito, Ecuador. He serves as a Blog writer at Platform for Peace and Humanity. He interned at Ortega y Grijalva Ecuadorian law firm, Lawyers in Palestine Program and Clooney Foundation for Justice. He is an assistant at the Organization of American States. His areas of interest include International Criminal Law, Humanitarian Law and Human Rights.