Should child soldiers be prosecuted for their crimes?
JOHANNESBURG, 6 October 2011 (IRIN) - International human rights law meanders between the vague and the hazy when it comes to its stance on the age of criminal responsibility and what, if any, punishments should be imposed on child soldiers guilty of war crimes.
The godfather of human rights laws, the Geneva Conventions, oblige all member states to act on grave breaches of human rights, but does not stipulate the age of criminal responsibility.
Robert Young, deputy permanent observer and legal adviser to the International Committee of the Red Cross (ICRC) based in New York, told IRIN international humanitarian law (IHL) remains “silent” on the age of responsibility for perpetrators of grave human rights abuses, such as wilful killing, torture and inhumane treatment.
International Criminal Court (ICC) Article 26 prevents the court from prosecuting anyone under the age of 18, but not because it believes children should be exempt from prosecution for international crimes, “but rather that the decision on whether to prosecute should be left to States,” says the Office of the Special Representative of the Secretary-General (SRSG) for children and armed conflict (Working Paper Number 3: Children and Justice During and in the Afte..., September 2011). “[The] exclusion of children from the ICC jurisdiction avoided an argument between States on the minimum age for international crimes,” it noted.
The age of criminal responsibility varies from country to country, from 7-16, but the bar is most commonly set at 14.
Although IHL does not set a minimum age for criminal responsibility for international crimes, it is argued that a yardstick has been laid down for some form of indemnity through IHL’s recognition that recruitment of child soldiers under 15 was a war crime.
The Children and Justice During and in the Aftermath of Armed Conflict report says: “If a child under the age of 15 is considered too young to fight, then he or she must also be considered too young to be held criminally responsible for serious violations of IHL while associated with armed forces or armed groups.”
“Children are often desired as recruits because they can be easily intimidated and indoctrinated. They lack the mental maturity and judgment to express consent or to fully understand the implications of their actions… and are pushed by their adult commanders into perpetrating atrocities,” the report said.
That children should be held accountable for their crimes during conflicts was acknowledged by the report, but “more effective and appropriate methods, other than detention and prosecution are encouraged, enabling children to come to terms with their past and the acts they committed.”
The report said child soldiers should not be prosecuted “simply for association with an armed group or for having participated in hostilities… There are instances where children are accused of crimes under national or international law and are prosecuted before a criminal court. Prosecution of a child should always be regarded as a measure of last resort and the purpose of any sentence should be to rehabilitate and reintegrate the child into society.”
Victims and perpetrators
The International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) did not cite a minimum age for criminal responsibility, but no one under 18 appeared before the tribunals. The Statute of the Special Court for Sierra Leone (SCSL) provided the court with jurisdiction over any person above 15, but the court’s prosecutor decided against indicting children for war crimes because of their dual status as both victims and perpetrators.
The godfather of human rights laws, the Geneva Conventions, oblige all member states to act on grave breaches of human rights, but does not stipulate the age of criminal responsibility.
Robert Young, deputy permanent observer and legal adviser to the International Committee of the Red Cross (ICRC) based in New York, told IRIN international humanitarian law (IHL) remains “silent” on the age of responsibility for perpetrators of grave human rights abuses, such as wilful killing, torture and inhumane treatment.
International Criminal Court (ICC) Article 26 prevents the court from prosecuting anyone under the age of 18, but not because it believes children should be exempt from prosecution for international crimes, “but rather that the decision on whether to prosecute should be left to States,” says the Office of the Special Representative of the Secretary-General (SRSG) for children and armed conflict (Working Paper Number 3: Children and Justice During and in the Afte..., September 2011). “[The] exclusion of children from the ICC jurisdiction avoided an argument between States on the minimum age for international crimes,” it noted.
The age of criminal responsibility varies from country to country, from 7-16, but the bar is most commonly set at 14.
Although IHL does not set a minimum age for criminal responsibility for international crimes, it is argued that a yardstick has been laid down for some form of indemnity through IHL’s recognition that recruitment of child soldiers under 15 was a war crime.
The Children and Justice During and in the Aftermath of Armed Conflict report says: “If a child under the age of 15 is considered too young to fight, then he or she must also be considered too young to be held criminally responsible for serious violations of IHL while associated with armed forces or armed groups.”
“Children are often desired as recruits because they can be easily intimidated and indoctrinated. They lack the mental maturity and judgment to express consent or to fully understand the implications of their actions… and are pushed by their adult commanders into perpetrating atrocities,” the report said.
That children should be held accountable for their crimes during conflicts was acknowledged by the report, but “more effective and appropriate methods, other than detention and prosecution are encouraged, enabling children to come to terms with their past and the acts they committed.”
The report said child soldiers should not be prosecuted “simply for association with an armed group or for having participated in hostilities… There are instances where children are accused of crimes under national or international law and are prosecuted before a criminal court. Prosecution of a child should always be regarded as a measure of last resort and the purpose of any sentence should be to rehabilitate and reintegrate the child into society.”
Victims and perpetrators
The International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) did not cite a minimum age for criminal responsibility, but no one under 18 appeared before the tribunals. The Statute of the Special Court for Sierra Leone (SCSL) provided the court with jurisdiction over any person above 15, but the court’s prosecutor decided against indicting children for war crimes because of their dual status as both victims and perpetrators.
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