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Reimagining the Unimaginable? Reflections on Mark A. Drumbl’s Vision of Child Soldiers

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Abstract

The existence of child soldiers is a problem of the ages, and there are no positive signs that it is abating. The difference now is that, with the development of modern weapons technology, children can be involved in large scale and horrific acts during conflicts. The circumstances surrounding the use of children to wage war will vary from situation to situation. Yet, it has been suggested that many people seem to have a ‘single focussed’ view of what child soldiers look like, what their motivations are, and why they are engaged in activities associated with conflict. This article reflects on the recent views expressed by Mark A. Drumbl, who argues that we should ‘reimagine’ child soldiers, and offers some further views as to how this issue should best be addressed.

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Notes

  1. See, for example, Drumbl (2000).

  2. See, for example, BBC News (2013): United Nations Organization Stabilization Mission in the DR Congo (MONUSCO) (2013).

  3. 1577 United Nations Treaty Service (UNTS) 3.

  4. Article 1 of CROC provides as follows: ‘For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.’

  5. In many countries, there is a rebuttable presumption (doli incapax) that a child is ‘incapable of crime’. Thus, in certain (admittedly rare) circumstances, children as young as 10 years may be deemed as having formed the requisite intent to commit a crime under national law. Drumbl makes reference to a number of examples. Indeed, it is rare that national criminal law will set a minimum age for criminal liability, and certainly not at 18 years of age. International criminal law has tended to gloss over these very difficult issues.

  6. Page 46.

  7. This applies to both males and females. For example, female children who served in the Destracemento Feminino (Female Detachment) of the Liberation Front of Mozambique (FRELIMO) during the fight for independence ‘saw their participation in combat as empowering and liberating and continue to see it this way as adults’: Rosen (2007, p. 299).

  8. Page 46.

  9. Page 202.

  10. Page 209.

  11. Page 209.

  12. See ICC Website (2005).

  13. 2187 UNTS 90.

  14. ICC Statute, article 26.

  15. Ibid, articles 8(2)(b)(xxvi), 8(2)(e)(vii).

  16. Page 92.

  17. Page 179.

  18. Ibid, preamble paragraph 4.

  19. Page 127.

  20. Page 133.

  21. Page 133.

  22. See, for example, Freeland (2012).

  23. 2178 UNTS 138, 145.

  24. SCSL Statute, article 7(1).

  25. Ibid, article 7(2).

  26. SCSL Statute, article 19(2).

  27. Emphasis added.

  28. Page 123.

  29. See, for example, United Nations Security Council Resolution 1966 (2010), which established the Mechanism for International Criminal Tribunals (MICT) to carry out essential functions of the ICTY and ICTR, paragraph 11; and the MICT Statute, article 1(2). The Arusha Branch of the United Nations MICT was launched on 2 July 2012, and The Hague Branch on 1 July 2013.

  30. Page 165.

  31. See Prosecutor v. Brima, Kamara and Kanu (Armed Forces Revolutionary Council (AFRC) Trial) (sentences of 50, 45 and 50 years respectively); Prosecutor v. Sesay, Kallon and Gbao (Revolutionary United Front (RUF) Trial) (sentences of 40 years and 52 years for the first two accused—Gbao was found not guilty on charges related to children, but was sentenced to 25 years for other crimes). Refer also to Prosecutor v. Charles Ghankay Taylor, where the former President of Liberia was sentenced to 50 years for aiding and abetting various crimes, including those relating to the recruitment, conscription or use of children.

  32. ICC Statute, preamble paragraphs 2 and 3.

  33. Page 135.

  34. 2173 UNTS 222.

  35. See 1999 International Labour Organization (ILO) Convention No. 182 on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, ILO No. C182; 1990 African Charter on the Rights and Welfare of the Child, Organization of African Union (OAU) Doc CAB/LEG/24.9/49 (1990).

  36. For a discussion of some of the shortcomings of the 2010 Optional Protocol, see Freeland (2008).

  37. For a discussion of the applicability of so-called ‘soft law’ instruments within the broader context of international law, see, for example, Freeland (2011) and the references therein.

  38. Page 9.

  39. Page 214.

  40. Page 215.

  41. Freeland (2008, p. 54).

References

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Authors and Affiliations

  1. University of Western Sydney, Sydney, NSW, Australia

    Steven Freeland & Pernille Walther

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  1. Steven Freeland
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  2. Pernille Walther
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Correspondence to Steven Freeland.

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Freeland, S., Walther, P. Reimagining the Unimaginable? Reflections on Mark A. Drumbl’s Vision of Child Soldiers. Criminal Law, Philosophy 11, 37–48 (2017). https://doi.org/10.1007/s11572-014-9335-0

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