Note: The Prosecution of Child Soldiers: Balancing Accountability with Justice

I saw some other SBU [Small Boys Unit] boys coming closer to me with another small boy and the boy was crying, screaming.  He asked them, “What have I done?”  They didn’t say anything to him, but the boy was screaming.  At first they had to put his right arm on a log.  They took a machete and amputated it at the wrist.  The boy was screaming and they took the left arm again and put it on the same log and sliced it off.  He was still screaming and shouting.  They took the left leg and put it on the same log and cut it off at the ankle.  At last they took the right leg again and put it on the same log and cut it off with a machete.  Some held him by his hand at that time now and I am speaking about the same SBU boys.  They are the same people doing this.  Some held his other hand, legs.  They were swinging the boy.  They threw him over into a toilet pit.  I was there, I saw it myself.[1]

Children are capable of committing atrocious crimes.  With an estimated 300,000 child soldiers currently participating in armed conflict around the world,[2] children are undoubtedly responsible for numerous deaths, rapes, mutilations, and other crimes.  However, the international community has failed to set an age at which these children can be held legally responsible for their actions.  In contrast, domestic courts have further complicated the issue by setting the minimum age of criminal responsibility anywhere from seven to eighteen-years-old.

The Convention on the Rights of the Child (“CRC”) provides the most widely accepted definition of childhood:[3]  a child “means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”[4]  Unfortunately, the CRC lacks support from any international treaties binding this definition as the proper age of criminal responsibility.  Nonetheless, it correctly appears to allow for a lower age of majority taking into account individual cultures and domestic laws.

In determining the proper age at which a child can be held criminally liable, many factors must be considered, including physical and mental maturity, traditions, and culture.  Victims of these atrocities must also receive proper consideration.  Their quest for justice cannot be secondary to the rehabilitation and forgiveness of a child soldier.  This delicate balance is difficult to accommodate and certain non-judicial mechanisms, such as truth and reconciliation commissions and cultural cleansing rites, have provided some relief for both the victims and perpetrators.

While rehabilitative measures are preferable to judicial measures for all individuals under eighteen, both international and domestic courts must continue to retain their discretion to prosecute juveniles for the most atrocious crimes.  To properly ensure these judicial systems promote equality and justice, not simply retribution, it is crucial that the international community determine a uniform age at which a child can be held responsible in a global forum and consequently begin to set a precedent for domestic courts.

Part I of this Note introduces the basic concepts of international law, including international criminal law and the legal protections that have been established for individuals under eighteen-years-old.  Part II examines the difficulties that arise when determining the roles of children in armed conflict and the extent to which they can be held responsible for their actions.  Additionally, this section suggests several possible defenses that should be made available to juveniles if they are prosecuted in an international tribunal.  Part III provides a case study of the only person under eighteen years of age who has been prosecuted for a war crime since World War II and further evaluates the United States’ role in this trial and their general perspective towards the treatment of minors in combat.  Finally, Part IV emphasizes the need for an international consensus regarding the minimum age of criminal responsibility in international courts.

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Erin Lafayette: Syracuse University College of Law, J.D. 2013.

[1].  Transcript of Record ¶¶ 699-700, Prosecutor v. Taylor, SCSL 2003-01 (Jan. 8, 2008).  The SBU was a group of approximately 10,000 children, generally between the ages of 8-10, who were recruited by the Revolutionary United Front as militants during the civil war in Sierra Leone.  This was a common form of mutilation by children.

[2].  Children of Conflict:  Child Soldiers, BBC, (last visited Jan. 12, 2012).  This number is unclear due to the difficulty in accurately counting children recruited into armed conflict.

[3].  Matthew Happold, Child Soldiers:  Victims or Perpetrators?, 29 U. La Verne L. Rev. 56, 62 (2008).  The CRC has been ratified by every State except the United States, Somalia, and South Sudan.

[4].  Convention on the Rights of the Child, art. 1, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].

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