Rehabilitation or Revenge: Prosecuting Child Soldiers for Human Rights Violations
Grossman, Nienke, Georgetown Journal of International Law
International law provides no explicit guidelines for whether or at what age child soldiers should be prosecuted for grave violations of international humanitarian and human rights law such as genocide, war crimes, and crimes against humanity. Due to increasing numbers of children participating in armed conflict and engaging in serious human rights breaches, (1) a coherent policy response consistent with international legal standards, including states' duties to promote children's well-being and to prevent and prosecute human rights abuses, is necessary. This paper argues that the hundreds of thousands of children under age eighteen (2) participating in armed conflicts around the globe should be treated primarily as victims, not perpetrators, of human rights violations and that international law may support this conclusion. In the case of children, the world community should choose rehabilitation and reintegration over criminal prosecution because of children's unique psychological and moral development, (3) the Convention on the Rights of the Child's emphasis on promoting the best interests of the child, (4) and the damaging psychological effects that trials may have on children forced to recount violence done to them and others. (5)
The political science paradigms of Liberalism and Institutionalism are instructive in crafting a strategy to achieve specific policy goals, (6) such as setting an age of criminal responsibility for child soldiers engaged in human rights abuses and promoting their rehabilitation. If, as Institutionalism posits, institutions or international norms have an independent impact on states' policy choices, (7) creating explicit, uniform standards at the international level for the disposition of child soldiers accused of human rights violations may encourage states to better promote the welfare of former child soldiers. Under the Liberal weltanschauung, (8) non-state actors such as international child advocates and non-governmental organizations may play a role in both shaping and encouraging compliance with these new standards at the domestic and international levels. Further, both Liberals and Institutionalists may undercut the problem of prosecuting former child soldiers by focusing increased efforts on eradicating the use of child soldiers altogether.
After providing background information on child soldiers in Part I, Part II of this Article analyzes the current legal framework under international humanitarian, human rights, and criminal law, and the international law of the child, considering both a state's duty to prosecute perpetrators of international crimes and its affirmative obligations to rehabilitate and reintegrate former child soldiers into society. Next, Part III formulates a policy proposal for filling lacunae in the law, suggesting in particular that children under age eighteen should not be prosecuted for international crimes, and instead, should be treated primarily as victims of armed conflict. Part III also examines how the differing assumptions of the international relations paradigms of Liberalism and Institutionalism affect strategies for achieving this policy goal, and it provides other solutions for addressing the problem of child soldiers who commit atrocities. In conclusion, this paper emphasizes our responsibilities to make this a world "fit for children." (9)
PART I. THE BASICS ON CHILD SOLDIERS
We are the world's children. We are the victims of exploitation and abuse. We are street children. We are the children of war. We are the victims and orphans of HIV/AIDS. We are denied good-quality education and health care. We are victims of political, economic, cultural, religious and environmental discrimination. We are children whose voices are not being heard: it is time we are taken into account. We want a world fit for children, because a world fit for us is a world fit for everyone. …