Academic journal article Denver Journal of International Law and Policy

Rehabilitation & Reintegration of Juvenile War Criminals: A De Facto Ban on Their Criminal Prosecution?

Academic journal article Denver Journal of International Law and Policy

Rehabilitation & Reintegration of Juvenile War Criminals: A De Facto Ban on Their Criminal Prosecution?

Article excerpt

I. INTRODUCTION

Although child soldiers that commit acts of atrocity and war crimes constitute a minority (1) of the estimated 250,000 child soldiers worldwide, (2) the question of their prosecution, as yet unsettled in international law, raises complex issues of "culpability, a community's sense of justice and the 'best interests of the child'." (3) International law does not define the term "child soldier," and, given the lack of a single or discrete instrument specifically concerned with this issue, no consensus exists as to who falls within that category; (4) the main issues being the minimum age of lawful participation in armed conflict, and the level of participation required for the child to be considered a soldier. One operational definition is that which can be extricated from Article 1 of the Optional Protocol on Children in Armed Conflict, which raises the minimum age of lawful participation in armed conflict to eighteen years and refers to child soldiers as those children who take a "direct part in hostilities." (5) Since this paper is concerned with child war criminals, there is no need to define the scope of the notion of taking a direct part in hostilities, as it can be assumed that any child soldier who commits a war crime has, in fact, taken a direct part in the armed conflict. (6)

The ban on recruiting or using any individual under the age of fifteen in armed forces or armed groups is settled international law, (7) and, although it is still ambiguous for armed forces, the minimum age is now considered to be eighteen for armed groups. (8) However, the question remains of what is to be done with child soldiers who themselves have committed war crimes. International law provides no explicit guidelines for whether, or at what age, child soldiers should be prosecuted for war crimes. (9) In an international armed conflict ("IAC"), child soldiers are combatants and will therefore benefit from the 'combatant privilege,' which ensures that they cannot be prosecuted for actions taken during an armed conflict that comply with the rules of International Humanitarian Law ("IHL"). (10) However, no such concept exists in non-international armed conflicts ("NIACs"), where child soldiers are most often used, and in any case, no child soldier who has committed a war crime, in an IAC or a NIAC, will be immune from prosecution under IHL. (11) The only provisions relating to criminal prosecution of child war criminals are Articles 77(5) of Additional Protocol I to the 1949 Geneva Conventions (12) and 6(4) of Additional Protocol II (13) that ban the death penalty for crimes committed by individuals when under the age of eighteen. IHL, along with International Human Rights Law ("IHRL") and International Criminal Law ("ICL"), contain little guidance and no express prohibition on the prosecution of child soldiers for war crimes. (14)

Despite the absence of a ban on the criminal prosecution of child soldiers, none have ever been prosecuted by an international court. (15) Much of the reticence to trying child war criminals in criminal courts stems from the fact that, given their young age, they lack the necessary mental and moral development, and are therefore more easily coerced or influenced into committing atrocities. (16) Indeed, they are less socialized, more malleable, and more docile than adults. (17) As the U.S. Supreme Court in Roper v. Simmons held, children have a "lack of maturity and an underdeveloped sense of responsibility," which makes them more susceptible to be influenced by outside pressures. (18) Furthermore, it is common for commanders to give child soldiers either drugs or alcohol, (19) thereby further lowering their inhibitions. Alongside these concerns, the criminal prosecution of child soldiers for war crimes also gives rise to more juridical issues. Directly related to this question of a child's development is the difficulty of proving the child soldier's mens rea. Does he or she possess the mens rea sufficient to be held responsible for his or her war crimes? …

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