Decent Work and Economic Growth

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Recruitment and Use of Child Soldiers in International Law: Prohibition and Elimination

  • Deborah CasalinEmail author
Living reference work entry
DOI: https://doi.org/10.1007/978-3-319-71058-7_4-1

Synonyms

Definitions

The Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (2007) define a “child associated with an armed force or armed group” as “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, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities.”

This definition builds upon an earlier definition of “child soldier” in the Cape Town Principles and Best Practices on the Prevention of Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa (1997).

It should be noted that the age threshold of 18 years and the scope of child soldiers’ participation in conflict (i.e., direct/indirect) have been subjects of discussion. These issues are examined in the entry.

Recruitment and Use of Child Soldiers in International Law: Prohibition and Elimination

Under Sustainable Development Goal 8, one of the defined objectives is to “secure the prohibition and elimination of the worst forms of child labor, including recruitment and use of child soldiers.” The classification of child soldiering as one of the worst forms of child labor is motivated by its severe consequences for children, which may include death or injury, negative psychosocial impacts, and loss of education and longer-term economic opportunities (Blattman and Annan 2010, 895–896).

Significant efforts are being made to engage with armed forces and armed groups toward this objective, with some success; however, the recruitment and use of child soldiers is continuing and even increasing in a number of conflict contexts. Furthermore, current release and reintegration programs are unable to keep up with demand (United Nations General Assembly & Security Council 2018).

This entry will firstly examine existing international normative frameworks prohibiting the recruitment and use of child soldiers and map a number of contentious issues. It will then outline prevailing approaches to the elimination of the recruitment and use of child soldiers, introducing their normative frameworks and the related question of child soldier accountability.

International Prohibitions on the Use and Recruitment and Use of Child Soldiers

A number of prohibitions on the recruitment and use of child soldiers are in place at the international level in a range of overlapping legal frameworks, namely, in international humanitarian, human rights, criminal, and labor law. Significant implementation measures have also been adopted in the framework of the United Nations Security Council (UNSC) (Vandenhole et al. 2011).

International Humanitarian Law (IHL)

The earliest such prohibitions, in the field of international humanitarian law, are to be found in the Fourth Geneva Convention (1949), which prohibits the recruitment of children by an occupying power, and the Additional Protocols to the 1949 Geneva Conventions (1977), which generally prohibit the recruitment of children under 15 into armed forces or groups or their participation in hostilities. The rules enshrined in the Protocols apply in both international and non-international armed conflicts (i.e., in both inter-State and civil wars). They are considered to be part of customary international humanitarian law and therefore also binding on non-signatories to the Protocols (Waschefort 2015; Vité 2011; Henckaerts and Doswald-Beck 2005).

International Criminal Law (ICL)

Reflecting its status as a serious violation of international humanitarian law, the conscription, enlistment, or use in hostilities of children under 15 is criminalized as a war crime in instruments such as the Statute of the International Criminal Court (ICC) (2000) and the Statute of the Special Court for Sierra Leone (SCSL) (2002) and is applicable in both international (i.e., inter-State) and non-international (i.e., civil) conflicts (Henckaerts and Doswald-Beck 2005). One scholar has argued that the forced recruitment of child soldiers constitutes the “forced genocidal transfer of children,” a manifestation of the international crime of genocide (Grover 2012). The growing focus on criminalization has been part of a shift from norm-setting to ensuring compliance, as well as the resurgence of ICL in the 1990s. Based on the case law of the SCSL, there are strong grounds to assert that the crime as expressed in these instruments reflects customary international law and thus also applies to non-signatories to these instruments (Happold 2011).

International Human Rights Law (IHRL)

The general prohibition on the recruitment or participation of children under 15 has also been confirmed (and extended to peacetime) in IHRL by the Convention on the Rights of the Child (1989). At the regional level, the African Charter on the Rights and Welfare of the Child (1990) raises the age limit to 18. The global Optional Protocol to the Convention on Children’s Rights on the Involvement of Children in Armed Conflict (OPAC) (2000) raises the age limit to 18 for all non-State armed groups and for compulsory recruitment by States, but only requires States to raise their voluntary enlistment age from 15 and apply special safeguards to children under 18 (Vité 2011; Hanson 2011).

International Labor Law (ILL)

In the field of international labor law, International Labour Organization (ILO) Convention 182 on the Worst Forms of Child Labour (1999) – one of the eight ILO core conventions which guarantee fundamental rights – is the first instrument to address child soldiering specifically. It prohibits forced or compulsory recruitment of children under 18, under the rubric of prohibiting slavery and similar practices. The inclusion of the issue of child soldiering was in particular strongly supported by worker representatives, as well as some employer representatives and a majority of States. Children enlisting in the military may also fall under ILO Convention 138 concerning the Minimum Age for Admission to Employment (1973), which prohibits the use of children under 18 for any employment or work which might endanger their “health, safety, or morals.” Children recruited by force may be covered by ILO Convention No. 29 on Forced Labour (1930). However, the former convention has not been widely supported by States, while the latter has been viewed as only partially addressing the issue (Cullen 2011).

UNSC Framework

The recruitment and use of child soldiers has additionally been condemned by the Security Council. Although the Council has not created new substantive prohibitions in this regard, it has made an important contribution in terms of implementation. Starting in 1999, the UNSC adopted a series of resolutions on children and armed conflict, which led to the establishment of the UNSC Working Group on Children and Armed Conflict to address a list of grave violations against children. The recruitment and use of child soldiers is among these. As a highly developed element of the international legal framework on children in armed conflict, this issue has been central to the practice of the UNSC Working Group. The focus of this mechanism has been on monitoring and reporting, publicizing violations and making targeted recommendations to perpetrators, and developing action plans with armed forced and groups (Nylund 2011).

Complementarity of the Various Frameworks

This multiplicity of legal frameworks is generally complementary – for example, in the case of States which are parties to various relevant treaties (or which have stricter rules in national law), the Children’s Rights Convention and its Optional Protocol both state that the provisions will apply which are most conducive to realizing children’s rights. The frameworks also complement each other in terms of their scope of application. For example, IHL complements IHRL through its particularity of addressing the duties of non-State armed groups directly; the UNSC Working Group has also aided in implementing these obligations through action plans. Conversely, IHRL and international labor law complement IHL and ICL by reflecting evolving views on age limits, as well as through their applicability in peacetime, wartime, and post-conflict recovery (rather than only during armed conflict). ICL, in turn, provides a framework for holding individuals (as opposed to States) accountable for violating of the prohibition on recruitment or use of child soldiers. Overall, these various frameworks have also brought child soldiering under the auspices of multiple international monitoring, reporting, enforcement, and technical assistance mechanisms which tackle the issue via various angles and approaches, e.g., the International Committee of the Red Cross, the UN Committee on the Rights of the Child, the UNSC Working Group on Children and Armed Conflict, the ICC, and the ILO Committee of Experts and its International Programme on the Elimination of Child Labour (Vandenhole et al. 2011; Vité 2011; Hanson 2011; Cullen 2011; Happold 2011; Nylund 2011).

Contentious Issues Relating to the Prohibitions

Despite apparent consensus on the principle of prohibiting the recruitment and use of child soldiers, a number of contentions remain about certain aspects of these prohibitions, which have sometimes been dealt with differently in the abovementioned legal frameworks. These debates reflect issues relating to some States’ continuing use of underage volunteers, locally differing concepts of childhood, tensions between children’s protection and participation rights, and the accountability of armed groups. Four main debates are outlined below: the age threshold for child soldiers, the distinction between forced/compulsory recruitment and voluntary enlistment, the distinction between children’s direct and indirect participation in hostilities, and the nature of obligations on armed groups.

Age Threshold

Child protection provisions in the 1949 Geneva Conventions frequently make explicit reference to children under 15. This age threshold was carried over into the prohibition on child soldier recruitment and use in the 1977 Additional Protocols. The First Additional Protocol – applicable to inter-State conflicts – does stipulate that when States recruit children between 15 and 18, preference should be given to older children. This was included in response to States which already felt that the age limit was too low. This preference rule is, however, viewed as virtually unenforceable (Waschefort 2015; Vité 2011; Henckaerts and Doswald-Beck 2005).

The age limit of 15 is also maintained for purposes of individual criminal responsibility in the 2000 ICC Statute, owing to its close link to the Additional Protocols as an instrument criminalizing serious violations of IHL. However, this decision was criticized in light of the intervening debates in the context of the Convention on the Rights of the Child and its Optional Protocol (Happold 2011).

As views on childhood and child protection changed, the 1989 Convention on the Rights of the Child, which also maintained the age limit of 15, was criticized by advocates and some States as being too weak on this point and thus failing to protect children fully. State consensus had already been building toward an age limit of 15 for recruits and 18 for direct participants in hostilities, but this did not materialize, inter alia owing to the US position in favor of the age limit of 15. The 1990 African Convention on the Rights and Welfare of the Child subsequently adopted an overall age limit of 18 at the regional level (Hanson 2011; Henckaerts and Doswald-Beck 2005).

A general age threshold of 18 was more broadly supported by NGOs advocating child protection, the Committee on the Rights of the Child, and the International Red Cross/Red Crescent Movement in the run-up to the OPAC negotiations. The UN Secretary-General also announced a minimum age of 18 for soldiers in UN peacekeeping operations (and a preference for those over 21). However, as a number of States were unwilling to change their practice of admitting volunteers under 18, OPAC resulted in a compromise position: the age limit is 18 for any recruitment or use of children by armed groups and for compulsory recruitment by States. For their own voluntary recruitment, States are only required to raise the age limit from 15 and make a binding declaration on their minimum age (which can later be raised, but not lowered). States must also install safeguards to ensure that enlistment of children under 18 is truly voluntary and subject to the informed consent of parents/guardians, as well as proof of age. An age limit of 15 remains permissible for voluntary enrolment in military schools (Hanson 2011; Henckaerts and Doswald-Beck 2005).

ILO Convention 182 applies an age limit of 18, building on an earlier consensus that children under 18 should not be exposed to the most hazardous and abusive forms of work. The age debate has been largely side-stepped in this context, however, as the text only addresses forced or compulsory recruitment. States which allow voluntary enlistment of children under 18, such as the United States and the United Kingdom, have clarified that they do not consider this to constitute one of the worst forms of child labor. Other States Parties to the Convention, however, consider that it can be interpreted more broadly to include this (Cullen 2011; Dennis 1999).

A continuing evolution in favor of a general “straight 18” age limit has been reflected in the 2007 Paris Principles, which directly build upon the earlier 1997 Cape Town Principles adopted by UNICEF and the NGO Working Group on the Convention on the Rights of the Child (Drumbl 2012). Several conclusions of the Security Council Working Group have also made references to an age limit of 18 (Nylund 2011).

While the trend toward a “straight 18” position has been lauded by child protection advocates, this humanitarian “protectionist” approach has been criticized from an “emancipatory” children’s rights perspective, backed by interdisciplinary and empirical insights. These criticisms hold that forced recruitment is only part of the picture and that viewing children only as victims overlooks their agency, lived experiences, and local understandings of childhood. Instead, a universal definition of childhood is assumed and instituted, without the involvement of children themselves. In common with children who take up other forms of child labor, those who enlist as child soldiers have heterogenous motivations, which may include consciously responding to a dire situation in order to ensure a future for themselves and their families. It has been argued that children’s participation rights and autonomy – recognized in human rights frameworks and other areas of law more generally – have been too easily dismissed in this context. In this sense, there appears to be a gap between the normative approach of legal/human rights literature and empirical perspectives. It has therefore been proposed that normative frameworks need to take local context and children’s agency further into account to have a meaningful impact on the problems of child soldiering (Derluyn et al. 2015; Drumbl 2012; Hanson 2011; Lee 2009; Rosen 2007).

Forced, Compulsory, and Voluntary Recruitment

The texts of the prohibitions on the recruitment and use of child soldiers in the Additional Protocols to the Geneva Conventions, the Children’s Rights Convention, and the African Convention on the Rights and Welfare of the Child do not differentiate between forced or compulsory recruitment and voluntary enlistment (Vité 2011; Hanson 2011). While OPAC also makes no distinction in respect of armed groups, it differentiates between compulsory and voluntary recruitment by State armed forces, allowing a lower age limit for the latter. This was mainly motivated by the interests of those States which did not wish to abandon the practice of enlisting children between 15 and 18, rather than any considerations of the agency of children (Vité 2011; Hanson 2011).

ICL distinguishes between “conscripting” and “enlisting” children – however, both are considered as subcategories of recruitment. The lower age limit of 15 applies to both, and both are considered war crimes. “Conscription” encompasses all kinds of compulsion, whether through force of law or not, and “enlistment” entails the acceptance of volunteers. The latter entails that the consent of the enlisted child under 15 is not a defense (Graf 2012; Happold 2011). A number of judgments of the SCSL, as well as the Lubanga judgment of the ICC, have offered further concrete interpretation of “conscription” and “enlistment” of child soldiers for purposes of ICL (Graf 2012; Waschefort 2010).

In the field of international labor law, ILO Convention 182 only explicitly addresses the forced or compulsory recruitment of children. Some States took the position that voluntary enlistment was clearly not covered by the text, while others expressed their regret that it was not explicitly mentioned, and took the view that it was implicitly covered by the Convention. The issue of voluntary enlistment was left to the ILO Committee of Experts for interpretation (Cullen 2011).

On an individual level, child recruitment or enlistment may result from a range of causes – from coercive acts such as abduction and violence, to social and economic pressures (e.g., poverty, the need for social protection, or social expectations), to children’s desire for better educational or economic opportunities, or their own reported ideological commitment. At the latter end of the spectrum from coercion to choice, children’s capacity to make an informed decision with such serious implications is contested (Derluyn et al. 2013; Lee 2009). Legal instruments largely align with humanitarian discourse, which tends to focus on forced recruitment and explain “voluntary” enlistment in terms of desperation or lack of options. While ethnographic studies document cases where, with little adult pressure, children have consciously decided to fight for their future and/or enlisted as a strategic choice, this is admittedly an “agency of the weak within structural confinements” (Lee 2009).

Direct/Active and Indirect Participation

Most IHL and IHRL treaties generally prohibit children’s direct or active participation in hostilities and do not clearly address situations where children play more indirect roles, e.g., performing support tasks. Interpretations of the Committee on the Rights of the Child have, however, to an extent elided the distinction between direct and indirect participation in the context of the prohibition on using child soldiers (Hanson 2011; Happold 2011). The Security Council Working Group also appears to adopt a broad definition of prohibited child participation (Nylund 2011). While this broadening of the definition of prohibited participation has been criticized as failing to differentiate between the various types of work children perform in the military, and thus their range of experiences (Lee 2009), it has also been deemed important for highlighting the situation of girls, who often serve in support roles (Nylund 2011).

In the child labor context, ILO Convention 182 also does not distinguish between the use of children in combat-related and other roles in armed forces or groups, as the latter are also viewed as potentially exploitative and dangerous forms of child labor. Children in conflict and post-conflict contexts are also a broader area of concern when monitoring compliance with the Convention, as they are also considered to be at particular risk of becoming involved in other “worst forms of child labor,” such as prostitution or drug trafficking (Cullen 2011).

Even if a broader definition of participation is accepted on a practical level (e.g., for purposes of prevention or reintegration), this is nevertheless difficult to translate directly into ICL for purposes of prosecution, owing to the principle of legality (Nylund 2011). The SCSL and ICC Statutes both prohibit children’s “active participation in hostilities.” This concept has been extensively (and sometimes divergently) interpreted in the case law of the SCSL and ICC. The SCSL, while examining whether a number of functions constituted “active participation,” has stressed that this determination will need to be made case by case, depending on the context of the conflict and the operating methods of the armed force/group. A central concern about broadening the scope of prohibited children’s participation in the context of punishing the use of child soldiers (and also in IHL more generally) has been the possibility that this may also have the effect of broadening the category of people who may be lawfully attacked. This concern arises in light of the connection of “active participation” to the concept of “direct participation in hostilities,” an IHL criterion determining a person’s status as a lawful target (Wagner 2013; Vité 2011; Waschefort 2010).

Obligations of Armed Groups

As the obligations in most international treaties and instruments are addressed to States, there is debate over the nature of the obligations which the abovementioned international prohibitions place on armed groups, which are significant users and recruiters of child soldiers. According to one view, human rights instruments – which are addressed to States – merely express the view of States and regulate their responsibilities vis-à-vis armed groups’ conduct. Another view holds that the prohibition in human rights treaties sets a general standard of conduct which must be adhered to by all. However, IHL imposes obligations not only on States but on the parties to a conflict – therefore, during non-international armed conflict, armed groups are necessarily included among the addressees of IHL (Vité 2011). The prohibition in ILO Convention 182 is also considered to apply in principle to armed groups – however, the responsibilities of States in curbing armed groups’ recruitment of children are emphasized (Cullen 2011). For purposes of individual criminal responsibility via ICL, it is irrelevant whether the accused acted for a State or an armed group. This approach is viewed as practical given the relative lack of clarity on how armed groups are bound by IHL, what their precise responsibilities are, and the relative dearth of mechanisms to hold the groups as such accountable (Happold 2011).

Regardless of the precise legal nature of the obligations on armed groups, it is clear that there is an expectation on and a need for them to act in compliance with the international prohibitions. Efforts to engage with non-State armed groups have resulted in a number of them formally committing not to recruit or use child soldiers (Their Words Directory 2018; Hofmann 2006). The UNSC Working Group has also developed action plans with a number of groups to end their use of child soldiers. The legal status of these action plans is unclear, but they mainly refer to other international law standards and at least indicate the commitment of the group. It is relevant to note that while IHL requires armed groups to have a certain level of organization in order to apply to them, the UNSC Working Group is also able to engage with groups falling under this threshold, although a minimum of organization is still needed for meaningful negotiations (Nylund 2011).

Elimination: Prevention and Reintegration

In terms of eliminating the recruitment and use of child soldiers, prevention and disarmament, demobilization, and reintegration (DDR) are the prevailing approaches supported by international human rights instruments and humanitarian best practice. This section will outline the normative frameworks underlying prevention and DDR, as well as the associated debate regarding the accountability of child soldiers.

Prevention

In terms of prevention obligations imposed by IHL, the First Additional Protocol (applicable in inter-State conflicts) obliges States to “take all feasible measures” to prevent children under 15 from directly participating in hostilities – an obligation of means, not result. On the other hand, in non-international conflicts, a direct obligation of result is applied by the prohibition in the Second Additional Protocol (Vité 2011). The customary rule determined by the ICRC, however, imposes a straightforward prohibition (“[c]hildren must not be allowed to take part in hostilities”), without reference to the level of effort to be undertaken (Henckaerts and Doswald-Beck 2005).

IHL further aims to prevent child soldiering by addressing some of the root causes, e.g., through rules which generally protect civilians, requirements that families not be separated during evacuations or in internment, special provisions relating to the care and protection of children (especially those separated from their families), and provisions on facilitating reunification and education. Instruments of soft law, such as the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, also provide further guidance on prevention at the domestic level (Vité 2011).

In the field of IHRL, the Children’s Rights Convention also generally adopts the “all feasible measures” formulation while also imposing a direct obligation on States to refrain themselves from recruiting children under 15. As applied to efforts against recruitment by non-State armed groups, this appears to set a weaker standard than the obligation of result set by the Second Additional Protocol. In OPAC, besides the prohibition on recruitment and use of child soldiers by States, States are further obliged to prevent armed groups from recruiting and using children in hostilities (Hanson 2011).

ILO Convention 182 requires States to take “immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.” The Convention also sets out a range of other prevention obligations, including establishing monitoring mechanisms and programs of action, time-bound steps to prevent the worst forms of child labor, and the removal of children from such situations. In this process, States must take a proactive approach to children at risk and foresee criminal sanctions for persons using children for these forms of child labor. In practice, the ILO has treated these provisions as obligations of result, with the exception of the obligation on States to assist one another through international cooperation. Recommendation 190 by the ILO Committee of Experts sets out further details on implementation (Cullen 2011).

Through ICL, the prosecution of adult recruiters has taken on a high profile – it was the subject of the first prosecution at the ICC and formed part of every case at the SCSL. However, the deterrent effect of such prosecutions has not yet been determined (Happold 2011). Furthermore, it has been expressed that a disproportionate focus on such prosecutions may potentially distract from other means of deterrence which address underlying power structures, such as State responsibility and other collective sanctions (Drumbl 2012).

As States remain among the main recruiters and users of child soldiers (either directly or via proxy forces), this means that the full range of international enforcement options is available to ensure compliance with the duty to prevent the recruitment or use of child soldiers (Waschefort 2015). The UNSC Working Group and some humanitarian actors have also had a level of successful engagement with armed groups on commitments to prevent the use or recruitment of children (Their Words Directory 2018; Nylund 2011; Hofmann 2006). However, a limitation of the legal prevention approach is that while it addresses the “demand side” of child soldiering (i.e., recruiters and users), it is constrained in its ability to deal with the “supply side,” which is often rooted in deep systemic problems (Waschefort 2015). It has also been emphasized that some forms of child soldiering are continuations of long-standing practices – in both Northern and Southern contexts – which have only more recently been problematized and which are rooted in local peacetime social and cultural norms on childhood (Lee 2009; Rosen 2007).

Disarmament, Demobilization, and Reintegration (DDR)

The Optional Protocol to the Children’s Rights Convention requires States to take “all feasible measures” to have children demobilized or released from armed forces or groups and to ensure that they “receive the necessary assistance for their physical and psychological recovery and their social reintegration.” Best practices and operational guidance for this process are set out in the Paris Principles and the associated Paris Commitments and in the ICRC Guiding Principles for the Domestic Implementation of a Comprehensive System of Protection for Children Associated with Armed Forces or Armed Groups. States are also required to cooperate internationally on this issue, including through technical and financial assistance. More generally, regarding the worst forms of child labor, ILO Convention 182 also requires States to remove children from such situations to ensure rehabilitation and reintegration. Going beyond State obligations, a number of armed groups have committed to the release and reintegration of children in the context of action plans developed with the UNSC Working Group (Vité 2011; Hanson 2011; Cullen 2011; Nylund 2011).

In the past, children were not routinely included in DDR programs, or else their needs were not specifically addressed. Child-centered DDR programs have now become more common – however, issues remain, for example, around the effective inclusion of girls and addressing of their particular situation and experiences. In addition, general questions around local perceptions of childhood, as well as the agency and accountability of children, play a role in the effectiveness of child-centered DDR (Haer 2017). For example, it has been reported that the separate treatment of former underage combatants as children – rather than on a par with former comrades – has influenced the success of DDR can be experienced as disrespectful and disempowering, as well as overlooking the frustrations involved in renouncing the relative power of combatant status (Lee 2009).

Child-focused DDR programs indeed focus on the three key areas specified in the OPAC: social reintegration (including family reunification), educational and economic reintegration, and psychological/psychosocial reintegration (Banholzer and Haer 2014). They differ from adult-focused programs in that children do not have to hand in a weapon, nor do they receive cash assistance. The reintegration phase starts in transit facilities which provide care, support, and services tailored to children and aimed at preparing them for their return. This also allows time for families and communities to be prepared – in this sense, community-based efforts are viewed as important in reducing stigma and ensuring that resources are available to care for children. Children are then reunited with their families and placed in educational programs (Haer 2017). The need for a holistic and balanced approach to psychosocial and economic aspects has been emphasized, as well as the importance of longer-term follow-up and a conscious, careful application of community-based approaches (Derluyn et al. 2013).

While broader contextual factors (e.g., economic and political) may impact on the success of reintegration, the child soldier’s particular experience during conflict (e.g., duration, nature and strength of attachment to an armed group, exposure to violence, age of recruitment) also has an effect (Banholzer and Haer 2014). The intersection between individual and collective post-conflict recovery is also not to be neglected (Derluyn et al. 2015). In this sense, the suspected commission of atrocities by a child soldier – and accordingly, the broader question of child soldiers’ accountability – has been identified as relevant to the issue of reintegration, although this is not often addressed in child-focused DDR programs (Haer 2017).

The prevailing view within the UN and among international humanitarian and human rights is that child soldiers are primarily victims of adult coercion and should in principle not be detained or prosecuted for acts which they committed in the context of their association with an armed force or group (Haer 2017). Indeed, the ICC Statute excludes persons under the age of 18 from its prosecutorial jurisdiction. It has been asserted that this amounts to a substantive norm-setting a minimum age for accountability for international crimes, in light of child soldiers’ status as victims of a serious international crime (Grover 2012).

However, the status of such a norm in customary international law is seriously disputed, as neither IHL or IHRL prohibit the prosecution of children or set a minimum age; on the contrary, they implicitly recognize this possibility by setting out specific rights for children facing criminal justice. Children under 18 can also be prosecuted for war crimes in a number of national and hybrid jurisdictions (the latter including Bosnia and East Timor). It has been argued that the relative rarity of such prosecutions in practice is not attributable to any sense of obligation on the part of States. Preparatory documents from the ICC Statute negotiation process also seem to indicate that the age limit of 18 was not set in terms of any legal obligation but rather for reasons of policy linked to the complications of prosecuting children (Quénivet 2017).

It has also been argued that the characterization of child soldiers solely as victims or witnesses overlooks their varying motivations for engaging in violent acts (beyond coercion), as well as the often devastating impacts of their actions, including on other children. Nevertheless, the utility of criminal prosecutions of child soldiers for retribution, rehabilitation, and deterrence is questioned, except as a last resort. Rather, restorative transitional justice processes (incorporating alternatives to prosecution) have been stressed as important for both individuals and communities in terms of removing barriers to reintegration (Quénivet 2017; Drumbl 2012). Truth commissions and community dialogues, combined with a juvenile justice approach similar to that in many domestic legal systems, have been put forward as appropriate methods in this regard (Derluyn et al. 2015).

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Copyright information

© Springer Nature Switzerland AG 2019

Authors and Affiliations

  1. 1.Law and Development Research GroupUniversity of Antwerp Law FacultyAntwerpBelgium

Section editors and affiliations

  • Tony Wall
    • 1
  1. 1.International Thriving at Work Research CentreUniversity of ChesterChesterUK