Childhood is a term which generally stirs up images of innocence and life, yet approximately 300,000 children are being used as soldiers, participating in activities that many children around the world would not be able to imagine. Although international action has targeted many individual incidents, the overall impact remains limited and there are still many children who have to face the realities of war. Child soldiers represent a complicated issue since they can be viewed as both victims and perpetrators of crime. Unfortunately, this impacts heavily upon the type of protection a child soldier can expect to receive. This essay will focus on the definition of child soldiers under the ICC and how this definition affects the perception of child soldiers in receiving effective reintegration into their society.
Part I of this essay will introduce an understanding of child soldiers and discuss the international context in which child soldiers are found. Part II elaborates on the international development regarding the protection of child soldiers, and focuses on the response of the ICC and the application of the Rome Statute in the Lubanga case. Finally, Part III focuses on the reintegration issues surrounding child soldiers, especially the emphasis on psychological rather than social reintegration. It offers criticism of the failure of the law to provide adequate measures, particularly for female soldiers.
Child soldiers have come to the forefront of international literature mainly due to the atrocities committed in Africa. However, children being used as soldiers is by no means a recent occurrence.Many children participated in the “Children’s Crusade” of 1212, during WWII and in the Soviet Army. Following the Cold War this practice expanded further.According to the report, “Impact of Armed Conflict on Children” by Graça Machel, of the estimated 300,000 child soldiers, 120,000 are in Africa. However, the recent increase in the numbers of child soldiers means that it is certainly no longer a developing world issue. Despite this well recognised use of child soldiers, the law has only recently begun to develop in this area. The problem with protecting child soldiers is protection can only be afforded once those soldiers are recognised; however, the definitional ambiguity surrounding child soldiers makes it difficult to identify them.
The weakness of the law in identifying child soldiers takes many forms, such as its lack of clarity regarding the definition of a child. Currently, there are three main legal texts regulating the issue of child soldiers: the two Additional Protocols of 1977 to the fourth Geneva Convention of 1949,the 2000 Optional Protocol and the Rome Statute of the ICC. Under the Fourth Convention of 1949, childhood ends at 15 years. In the US, recruitment is allowed at 17, Canada at 16 and the UK at 16.5 years (all with parental permission).The term “child” clearly does not have a universal definition.
Social and cultural understandings of the distinction between adults and children also play a significant role. In Africa, tribal, cultural, religious and political views influence the age of childhood. Traditionally such communities look for external signs of mental and physical maturity. It is, therefore necessary to unify the law so that there is a common understanding of what constitutes a child without discriminating on the grounds of social differences. While agreeing to ratify international treaties is a welcome step in creating consistent domestic legislation, at the same time, such legislation should aim to promote the best interests of the child and recognise their vulnerability. Adults find themselves in a compromising position when it comes to international law since they lack the political power to address or rectify their situation: children find it even more so. UN Secretary General, Kofi Annan, stated that “children depend even more than adults on the protection afforded in peacetime by family, society and law.”
Understanding the circumstances under which a child becomes a soldier is also vital. Currently, there is a widely held assumption that only children who have been abducted or coerced become soldiers. This is not the case. Many are officially recruited because of the convenience of using children: their size makes them better suited for activities such as planting landmines, spying and, in fact, children are more easily persuaded to commit atrocities than adults. Conversely, many growing up in a war-torn area prefer to become soldiers simply because it offers a better alternative. In Africa, children are rendered vulnerable by a lack of education, too few employment opportunities and domestic problems and they feel that there is no other option but to turn to armed conflict. However, even if is shown that they voluntarily consented to becoming a soldier, it is doubtful whether the consent could have been informed and genuine. Freedom is almost always dependant on other factors and in the case of armed conflict it is no different. It is doubtful whether children have the capacity to make the decision to enlist, considering they would have never faced the reality of war. In the Democratic Republic of Congo, children are often encouraged by their parents to join the army and, in fact, many are praised as heroes if they do so. As children are unaware of the fact that participating in war is anything but heroic, their decision to join can hardly be informed.
Clearly, there is disparity in the law concerning child soldiers. The ICC, therefore, has unified many of the traditional aspects of the law while bringing in modern understandings of armed conflict.
The Rome Statute
The most significant development in the area has been the criminalisation of child recruitment under the Rome Statute. Under Article 8, child recruitment can be by conscription, enlistment and using children to participate actively in hostilities. The focus of the Statute, therefore, is on the child as a victim rather than a perpetrator. Although, the Statute does not specifically define child soldiers it does clarify many issues in the area. It ends the distinction between international and domestic conflicts, a distinction which previously provided minimal protection for those involved in non-international conflicts under the Geneva Convention. The advantage of the ICC is that it has the capacity to implicate high-ranking officials. Thomas Lubanga Dyilo was the first person to be arrested under Article 8 of the Rome Statute. Neither the ICC Statute nor the Elements of Crimes define conscription, enlistment or use, preferring to follow the jurisprudence of the Special Court for Sierra Leone. The presence of consent provides some guidance in the area – in the AFRC case it was held that enlistment entails “volunteering to join an armed force”. Yet, as discussed above, it is doubtful whether children are capable of consenting due to their “limited understanding of the consequences of their action.” In fact, Lubanga was convicted for only one offence, simply because he only had the one offence. Some of the changes that ensued from this case will be discussed below.
Initially, the question of active participation created many problems, especially for female soldiers, as it prevented many child soldiers who performed indirect activities from receiving protection. The preparatory committee stated that the words “used” and “participate” cover a wider scope than just participating as a combatant. However, there is still disagreement regarding whether international law is meant to protect only child combatants who directly participate or whether protection should be extended to all children involved in the conflict. Unlike the Rome Statute, other international instruments restrict the definition of child soldiers. Because Article 77 of the Geneva Convention Additional Protocol only provides protection to those who are combatants in enemy hands, the law is not designed to protect all child soldiers. Ultimately, there are those children who face the same atrocities as others, but simply because they do not fit the criteria under international law, they are not granted the same privileges.
The judgement that indirect participation is to be treated as active participation if “the support provided by the child exposed him/her to real danger as a potential target” certainly encourages a more holistic approach to protecting the child. Specifically, the case focused on the ruling of the Special Court for Sierra Leone in Prosecutor v Alex Tamba Brima that actively participating in hostilities is not confined to children taking up arms only. The case leads the courts towards a more teleological approach, keeping in mind that the purpose of the Statute was to protect children in armed conflict.
The Special Court for Sierra Leone confirmed in Prosecutor v Norman that the prohibition on the abduction and forced recruitment of children younger than 15 years has crystallised into customary international law. Hence, non-state actors are also bound by the prohibition. Once again, the law fails to protect a significant section of child combatants, i.e., those who voluntarily participate in armed conflict. It is important that the law take into account the circumstances under which a child becomes a soldier rather than a prima facie assumption that those who force recruitment are more culpable than those who participate voluntarily.
The ICC Statute is certainly an incremental development in the law. The previous problem of ambiguity regarding the language of the Additional Protocols of the Geneva Convention has been dismantled along with the confusion regarding age. Despite this, international law continues to focus on the perpetrator, in this case Lubanga, rather than the victims of the crime. Very little, therefore, has been done concerning the future prospects of the victims following the end of the conflict.
Couna Thioye, Chair of the Child Rights Department, revealed that using children as soldiers is the worst form of child labour because the effects remain long after that conflict ends. One of the most difficult yet overlooked considerations of child soldiers is their post-conflict reintegration. Post-conflict efforts made for child soldiers often fall under the categories of disarmament, demobilisation and reintegration. In 2002, the World Bank partnered with UK peacekeeping forces to establish the Multi-Country Demobilization and Reintegration Programme that has to date successfully demobilised over 30,000 children in Africa. In order to be involved in any reintegration schemes, the child needs to be disarmed and taken out of conflict zones. The narrow definition of combatants means that only those who handle armed weapons receive this protection and conflicting standards under treaties make it difficult to decide who actually should receive protection. Even then, many undergo “spontaneous demobilization” when they return home of their own accord and outside the official processes. It is important, therefore, that instead of following rigid guidelines, the law should focus on trying to reach out to as many war-affected children as possible, taking into account the various situations and backgrounds for which they require aid.
Despite the outrages faced by children, there are many people who still believe that without punishment, justice cannot be achieved. The Pan African Centre for Peace and Conflict Resolution, Liberia, helped children who had been rejected by their families because of their involvement in the war. Characterising child soldiers as victims rather than perpetrators allows them easier access to reparations and alleviates the suspicion and hatred they often experience from their own communities when they return. In Sierra Leone, for example, those children involved with the Revolutionary United Front found it difficult to reintegrate into their society, due to the extreme conditions under which they were recruited. Many had been required to kill their family members to prevent them from returning. It is therefore important to understand the children’s social context to understand what type of reintegration is required.
Cultural differences amongst communities need to be taken into account too. Most communities emphasise the need for providing jobs, apprenticeship training and education, whereas a study in Mozambique indicated the importance of “farming and other income earning opportunities to enable them to earn money for the family instead of returning to school”. In some societies, there is the need for cultural sensitisation to ensure effective reintegration. Differing from the Western notion of cultural acceptance, African countries often require practices that will enable a returning child to become “culturally acceptable”. Psychosocial programmes “do not exist in a vacuum and are affected by social and cultural contexts”.
The focus on psychological reintegration serves to escalate the problem further since it fails to take into account a wider understanding of reintegration.Applying Western psychological approaches and definitions of stress and trauma to societies that are significantly different to Western ones can only serve to exacerbate ignorance of the situation. In countries such as Angola, war-related psychological trauma is linked to the anger of the spirits of the dead. Therefore, it is important to create reintegration programmes in a way that would make it easier for the child to reintegrate into that particular society.
The issue of female child soldiers is particularly problematic. In addition to performing the same duties as the boy soldiers, girl soldiers have to cook, clean and perform sexual services. Reintegration of female soldiers presents a significantly more difficult problem than the reintegration of male soldiers. In a world that is male dominated and where girls are socially and domestically disadvantaged, returning from participation in war has extra complications.As Webster states: “the problem of child soldiers disproportionately harms girls who often stomach the additional indignity of sexual slavery and forced marriage to the leaders of armed forces”. The only international document that directly considers female soldiers is the 2007 Paris Principles, which addresses the issue of sexually based violence. Female soldiers pose a paradox in terms of male and female advantages. Defining a male soldier as a victim is more advantageous for them when it comes to reintegration; however, defining a female soldier as a victim suggests a passive role in the armed conflict and hence they are often not eligible for government reintegration programmes. Again, international law develops around assumptions about women, rather than the current reality which is that girls are playing an active role in the conflict. In fact, many communities automatically assume that any girl participating in the conflict must have been subjected to sexual abuse and so she is instantly segregated.
However, many women, are used primarily for sexual purposes which, apart from its abhorrent nature, carries many problems. The main question to be asked is whether the activities of girl soldiers fall under the definition of active/direct participation. The travaux preparatoires of the ICC Statute states that direct participation requires “a direct causal relationship between the activity engaged in and the harm done to the enemy”. Many girls have never used weapons and were recruited specifically for prostitution or domestic services, thereby disqualifying them from the status enjoyed by male soldiers. Given the abundance of witness testimony about sexual exploitation, especially in Lubanga, the courts should re-examine the understanding of active participation from the perspective of girl soldiers. An interesting approach could be to view the taking of wives and sexual exploitation as incidental to being a child soldier in the same way as combat training is.
Even if they are allowed to participate in reintegration programmes, society refuses to accept those who have been treated as “bush wives” and who may have children. Many communities, in dealing with their own challenges, prefer to treat the children and young mothers as though they were invisible. It is, unfortunate that the role of a female soldier, during and after the conflict, is to remain practically invisible. Being used for sexual purposes does not identify them as soldiers and even after facing such discrimination, they are overlooked during the post-conflict reparation processes. Regrettably, girls are the ones who need more support as many return with sexually transmitted diseases including the HIV virus. As well as the psychological trauma of war they have to deal with the trauma of rape and abuse and the fact that many are ostracized by the community only serves to perpetuate this trauma. In Acholi, for example, war is seen as a breaking of taboos and social pollution. Girls who have been used for sexual purposes are seen as spiritually polluted and have to undergo cleansing rituals in order for the society to accept them.
Currently, reintegration processes for both male and female child soldiers are being hampered by the focus being placed on psychological rather than the social reintegration. As Fiona Shanahan said, it is important to “devote more time to local beliefs and practices… more relevant within the longer processes of reintegration, resettlement and re-establishment”. Many children participating in DDR Programmes are vulnerable to abuse and re-recruitment which defeats the purpose of protecting child soldiers. In Afghanistan, although the children were demobilised after the defeat of the Taliban, many still worked under the warlords and risked being recruited instantly. Focusing on child reintegration requires a simultaneous focus on strengthening the legal situation of the society into which they are reintegrating.
In an international legal system which concentrates on the perpetrator rather than the victim, in a world in which children are already vulnerable, and a crime which in itself is difficult to define, child soldiers will always be at a disadvantage. Even more so are the female child soldiers at a disadvantage. Understandings of child soldiers are so varied that it is necessary to construe them in broad terms in order to afford as many children as possible with protection. A holistic approach is therefore required. Yet the international law remains vague, with those responsible not wishing to bind themselves to absolute rules against the use of child soldiers. Even those who are members of the UN Security Council are reticent about adopting a strict interpretation of child soldiers. The US and UK have only recently stopped enlisting soldiers who are younger than 18, but Russia continues to do so. It seems that only incremental improvements can be expected in this area in the hope that international law will soon focus on the impact on child soldiers outside of the courts and the war zone.
Treaties/ Statutes/ International Documents
 Mark A Drumbl. Reimagining Child Soldiers in International Law and Policy (Oxford University Press, 2012: 9).
 Matthew Happold. Child Soldiers in International Law (Manchester University Press, 2005:3).
 Rome Statute
 Prosecutor v Lubanga Dyilo (Thomas) Unreported March 14, 2012 (ICC)
 Michael G Wessells. Child Soldiers: From Violence to Protection. (Harvard University Press, 2006: 14).
 Timothy Webster. ‘Babes with Arms: International Law and Child Soldiers.’ The Geo Wash Int Review, 39, 2005, 229
 Ibid at 231
 Joseph N Madubuike- Ekwe. ‘The international legal standard adopted to stop the participation of children in armed conflict.’ Annual Survey of International and Comparative Law, 11:29, 2005, 32
 Additional Protocols of 1977
 Alexandre J Vautravers. ‘Why child soldiers are such a complex issue.’ Refugee Survey Quarterly, 27 (4), 2009, 101
 Matthew Happold. ‘Child recruitment as a crime under the Rome State of the International Criminal Court.’ 2004, 1
 Alexandre (n11 above) 107
 Fanny Leveau. ‘Liability of Child Soldiers under International Criminal Law.’ Osgoode Hall Review of Law and Social Policy, 4(1), 2013, 42
 Dunson Donald. Child Victim Soldier: The Loss of Innocence in Uganda. (Orbis Books, 2014) 23
 Janet McKnight. ‘Child soldiers in Africa: a global approach to human rights protection, enforcement and post conflict reintegration.’ African Journal of International and Comparative Law. 18(2), 2010, 114
 Joseph (n9 above)
 Michaela Fruili. ‘Are Crimes against Humanity more serious than war crimes?’ 2001,EJIL, 12
 Timothy (n7 above) 233
 G Michael. ‘Impact of armed conflict on children: a review of progress since the 1996 UNI report on the impact of armed conflict on children.’ UN Doc, 48/157, 1996, 9
 Farkhanda Zia Mansoor. ‘The Dilemma of Child Soldiers: Who is Responsible?” The King’s College Law Journal, 16 (188) 2005, 397
 Dorina Bekoe and Christina Parajon. ‘Healing and reintegrating the victims of Congo’s war.’ USIP Press, 2007, 2
 Matthew (n12 above) 2
 David Rosen. ‘Who is a child? The legal conundrum of child soldiers.’ Connecticut Journal of International Law, 25 (81), 89
 Thomas R Lieflander. ‘The Lubanga Judgement of the ICC: more than just the first step.’ Cambridge Journal of International and Comparative Law, 2012, 195,
 Roman Graf. ‘The International Criminal Court and Child Soldiers: an appraisal of the Lubanga Judgment.’ Journal of International Criminal Justice, 2012, 951
 Kai Ambos. ‘The first judgement of the International Criminal Court (Prosecutor v Lubanga): A comprehensive analysis of the legal issues.’ International Criminal Review, 2012, 123
 Amy Beth Abbott. ‘Child soldiers–the use of children as instruments of war.’ Suffolk Transnational Law Review, 23:2, 1999, 522
 Janet (n17 above) 114
 Protocol addition to the Geneva Conventions of 12 August 1949, and relating to the
protection of victims of international armed conflicts (Protocol I), adopted in 1977
 Ibid at 116
 The Prosecutor vs. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (the AFRC Accused), SCSL-04-16-T, Special Court for Sierra Leone, 20 June 2007
 Bernd Beber and Christopher Blattman. ‘The logic of child soldiering and coercion.’ International Organization, 67(10< 2013, 89
 Prosecutor v. Samuel Hinga Norman (31 May 2004), Case No. SCSL-2004-14-AR729E, Special
Court for Sierra Leone (Appeals Chamber),
 Theresa Stichick Betancourt, Robert T Brennan, Theodore H Whitfield, Marie de la Soudiere, John Williamson and Stephen E Gilman. ‘Sierra Leone’s former child soldiers: a follow up study of psychosocial adjustment and community reintegration.’ Child Development, 81:4, 2010, 1080
 Joseph N Madubuike-Ekwe. ‘The international legal standards adopted to stop the participation of children in armed conflicts.’ Annual Survey of International and Comparative Law, 11(29) 2005, 48
 Sara Anoushirvani. ‘The future of the International Criminal Court: the long road to legitimacy begins with the trial of Thomas Lubanga Dyilo.’ Pace International Law Review, 22 (213), 238
 Theresa Betancourt, Stephanie Simmons, Ivelina Borisova, Stephanie Brewer and Uzo Iweala. ‘High hopes, grim reality: reintegration and the education of former child soldiers in Sierra Leone.’ Comparative Education review, 52(4), 2008, 6
 Janet (n17 above) 130
 Dr Michael Wessells, ‘Psychosocial Issues in Reintegrating Child Soldiers.’ Cornell International Law Journal, 37 (513), 2004, 515
 Ibid at 516
 Ann Davison. ‘Child soldiers no longer a minor incident.’ Williamette Journal of International and Comparative Law, 12:124, 2004, 128
 John Williamson, ‘The disarmament, demobilization and reintegration of child soldiers: social and psychological transformation in Sierra Leone.’ Intervention 2006, 4(3), 187
 Ibid at 189
 Benyam Dawit Mezmur. ‘Children at both ends of the gun: towards a comprehensive legal approach to the problem of child soldiers In Africa.’ at the Faculty of Law, the University of the Western Cape, South Africa, 2005, 16
 Fiona Shanahan. ‘Cultural responses to the reintegration of formerly abducted girl soldiers in Northern Uganda.’ Psychology and Society, 1(1), 2008, 3
 Alcina Honwana. Negotiating post war identities of child soldiers in Mozambique and Angola. (Westview Press Colorado, 2002)
 Ibid at 5
 Noelle Quenivet, ‘Girl soldiers and participation in hostilities.’ African Journal of International and Comparative Law, 16(2), 2008, 223
 The Principles and Guidelines on Children Associated with Armed Forces or Armed Groups 2007
 Kristin Gallagher. ‘Towards a gender inclusive definition of child soldiers: The Prosecutor v Thomas Lubanga.’ Eyes on the ICC, 7(1), 121
 Dara Kay Cohen. ‘Female combatants and the perpetration of violence.’ World Politics, 65(3), 383
 Ibid at 386
 Ibid at 231
 Kristin (n61 above) 126
 Miranda Worthen, Angela Veale, Susan McKay and Michael Wessells. ‘I stand like a woman: Empowerment and human rights in the context of community based reintegration of girl mothers formerly associated with fighting forces and armed groups.’ Journal of Human Rights Practice Advance Access, 2010
 Christy C Fujio, ‘Invisible soldiers: How and why post conflict processes ignore the needs of ex-combatant girls.’ Journal of Law and Social Challenges, 10 (1), 2008, 11
 Ibid at 14
 Fiona (n55 above) 12
 Michael (n43 above) 521
 Tracey B C Begley. ‘The extraterritorial obligation to prevent the use of child soldiers.’ Am U International Law Review, 27(3), 2011-2012, 641
 Timothy (n7 above) 254