The Use of Child Soldiers in Armed Conflict as War Crime Under International Law
Chapter One
OBJECTIVES OF THE RESEARCH
This work attempts to focus on how international justice is used to protect the fundamental human rights of children during armed conflicts, most especially, as active participants. And how it is also been used to confront and combat the atrocities of their recruiters, commanders and the perpetrators of these callous atrocities in order to de-mystify the aura of impunity surrounding such misdeeds. We shall attempt to answer the above questions and many more, posed in our statement of the research problem, and this shall be done with reference to relevant laws, practical applications and thereafter, proffer our findings and recommendations to the issues so raised.
Chapter Two
EXPLOITATION OF CHILDREN AND WAR CRIMES
Children constitute the most vulnerable members of the society but, the concept that children have specific rights deserving of enforcement and protection is a comparatively modern development. Concern for the protection of the dignity, equality and basic human rights of children have since come to the forefront of public consciousness subsequent to the various reform movements of the 19th century. Children are now a constituency in their own right on whose behave, laws have been made, and are being made for their protection against the abuse of parents, other adults, social neglect and economic exploitation.
Children face various problems of neglect, maltreatment, exploitation and abuse due to their tender ages, immaturity and dependence on adults. These problems revolve round welfare, food, health, shelter, education and other necessaries for their proper growth and development. This sorry state of affairs however takes on a more terrible dimension during armed conflicts. Armed conflicts are as old as man but the use of children as active participants in such conflicts either as combatants or non-combatants is a relatively new and scary dimension found across conflict zones of the world. This pathetic situation is caused by the adult-older generation, without regard to the effectsof their actions on the innocent-younger generation.
CHILD ABUSE AND EXPLOITATION
A happy and healthy child with a sound mind, body and spirit is an asset to the society. But unfortunately in this ever changing world of ours, so many children are denied attainment of this fundamental state due to one form of child abuse or the other. According to Gil, child abuse and exploitation is any act of commission or omission by individuals, institutions or society as a whole, and any conditions resulting from such acts or inaction, which deprive children of equal rights and liberties, and/or interfere with their optimal development, while to Dr. Alan Gilmour, it occurs when any avoidable act, or avoidable failure to act, adversely affects the physical, mental or emotional wellbeing of a child.
The Convention on the Rights of the Child (Art.32) recognizes“the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education or to be harmful to the child’s health or physical, mental, spiritual, moral or social development”. This is echoed by the Child Rights Act [S.28(a)]which states inter aliathat no child shall be subjected to any forced or exploitative labour. While the Oxford Advanced Learner’s dictionary however, simply defines child abuse and exploitation as, the crime of harming a child in a physical, sexual or emotional way.
Child abuse and exploitation therefore takes many forms, amongst which are:
(a). CHILD LABOUR
This is the employment of children and ILO estimates that around 250 million children worldwide, aged between 5-14 years old are working part-time or on a full-time basis. Children can be engaged to work in several ways such as, scavengers in the streets to sort out useable materials in rubbish dumps. This can be dangerous to their health because of toxic chemicals, radiation, and injuries from scrap metals.Children may also be employed as miners in underground mines which can lead to dangerous health conditions, injuries and death. Domestic workers, bus conductors and child porters also come under this category. See S.28 & 29 of CRA & S.22, TPA.
(b). STREET TRADING
This refers to the hawking of petty goods and services on the streets of both urban and rural areas by children. This may involve the selling of items to motorists stuck in traffic jams (‘go-slows’) with the attendant hazards. Young children are mandated by their family members and at times on their own free will, to sell petty goods to supplement the family income, at the detriment of their education, youth and overall development. See S. 30&33, CRA.
(c). STREET BEGGING
In some parts of Nigeria, there is in operation the “Almajiri System”, in which young children are left to roam the streets. These children were mostly entrusted to Islamic teachers who in turn, rather than care for them, send them out to ‘beg’ and do menial jobs. These children are expected to bring back part of the proceeds of their activities to such teachers.4 Children also ‘beg’ on behalf of themselves or could be engaged in leading other blind or handicapped adult beggars. See S. 30, CRA.
(d). APPRENTICES
This is where children are contracted to an employer for a period to learn a trade, handicraft or skill. The employer is paid a fee by the child’s parent or guardian for the “training” he impacts.
Chapter Three
NATURE OF CHILD COMBATANTS
The 20th century will be remembered for the millions of innocent children, women and men who needlessly perished in armed conflicts. The words “genocide”, “war crimes”, “crimes against peace” and “crimes against humanity”, were coined so as to express the horrors of these crimes. Children regularly face forced participation in armed conflicts, social violence, murder and torture, as well as the destruction of their families, communities and the civilian infrastructures meant to support them. Under international humanitarian law in both international and internal armed conflicts, children are accorded ‘general’ protection as civilians, and ‘special’ protection as children.
But with all these corpus sets of laws and protections against the use of children in hostilities, they are still forced into armed conflicts in a variety of ways and due to a number of factors.International humanitarian law places limits on children’s participation in hostilities, and even those children that do take part in hostilities, still retain the ‘special’ protection enjoyed by children, but only lose the ‘general’ protection applicable to civilians. Tabulated below inter alia at the Appendix on page 86 are some of the legal provisions applicable to children for their protection under international humanitarian law.
Chapter Four
RESPONSIBILITY FOR WAR CRIMES
Children have the right to and require special protection from and during armed conflicts and, this protection is essential to allow conflict-affected communities a chance to survive, rebuild and maintain a sustained peace. One of the main effects of armed conflicts and dictatorship can often be a lack of accountability for grave crimes – such as war crimes, genocide and crimes against humanity. This situation often arises from a complete breakdown of the national legal system directly affected. When crimes of lesser magnitude are committed within a state, good governments use their criminal justice system to hunt down and punish the perpetrators. The domestic crime rate in any country is directly in proportion to the efficiency of policing and the system of criminal justice. The more efficient those systems are, the lower the crime rate will become.
Chapter Five
CONCLUSION
There has been a catalogue of atrocities and the loss of millions of innocent lives in armed conflicts at the hands of individuals and oppressive regimes, in flagrant violation of international humanitarian and customary laws. The nonfulfillment of obligations accepted by the majority of the international community to prevent, prosecute and punish serious crimes and grave breaches of international humanitarian law, has created a safe environment for the perpetrators of such heinous acts. The atrocities and forms of violence which are now too frequently encountered in armed conflicts has given rise to an increase in the number of civilian victims, particularly children, who on account of their special vulnerability, are the most affected.
This is compounded by such children having been coerced and made active participants during hostilities.2 The active participants in armed conflicts used to be primarily the regular troops, but since the emergence of new types of conflicts involving regular troops against guerrillas – we have frequently been seeing children forced into combat theatres, brandishing weapons and ready to use them indiscriminately. Such immature children, who are forced to lose their childhood and even their lives, are a deadly threat to both the society and themselves.3
OBSERVATIONS AND RECOMMENDATIONS
It is evident that despite the extensive protections and prohibitions against the use of child soldiers, they continue to be forced into taking part in hostilities. The commanders of these child soldiers easily force them into committing a variety of horrendous atrocities – for their own selfish reasons. Child soldiers do commit atrocities, but the reality is that, they are pawns in a deadly game played by their commanders. The law is however catching-up with the perpetrators of these crimes, who have no regard for such young lives nor the effects of their actions on these children and the larger society – this is a serious illegality deserving of punishment.
International humanitarian case law shows that perpetrators of war crimes no matter how highly placed cannot escape punishment. We are not unmindful that this viewpoint might be contested in some quarters, because it might appear that in actual practice, international justice (for example, the ICC) is been directed towardspeople from some ‘countries’ rather than those of the western world. Thus, despite lots of claims and protests from international non-governmental organizations, UN Resolutions and international condemnations; many westerners’ especially British, American, Russian and Israeli citizens and leaders who are accused of serious crimes are yet to answer for such charges.
This is buttressed by allegations made againstpeople like the former American president, George Bush and former British prime minister, Tony Blair for their parts in atrocities committed in conflict zones such as, Iraq and Afghanistan. A strong case is also made against the several alleged Israeli atrocities committed against the Palestinians. It is strongly argued that with so much evidence and/or allegations against such people, no action has ever been taken against them. We are aware that they are not likely to face international prosecution for such misdeeds, and the best that can realistically be expected from such countries are belated ‘apologies’ or ‘explanations’ or ‘denials’ for such alleged atrocities. While accepting the truth of some of such claims, we believe that the fight against impunity to atrocities must start from somewhere. Moreover, even if some people from some 3rd World countries appear to be the main targets of international justice, the allegations made against them are generally believed to be true. Thus, despite existing laws and prohibitions, the international community has lacked the commitment and political will to bring perpetrators of atrocities to justice. This has fostered an aura of impunity and encouraged more atrocities – impunity is not a natural phenomenon but rather the failure to enforce the law.
It is imperative and safer for states and militia groups, to acknowledge and enforce their obligations and responsibilities to children and the international community. Individual criminal responsibility does not depend on a person’s status civilians, combatants, militia leaders and government officials are all equally capable of committing and being prosecuted for war crimes and grave breaches of the international humanitarian law, either in international or internal armed conflicts. Even states, militia groups and non-state actors can also be accountable for violations of human rights and war crimes.
The use of children in armed conflictsis morally callous and a war crime which has grave multiplier effects on future generations (and it is noteworthy, that we didn’t come across any evidence of the use of child soldiers in Nigeria, especially in the volatile Niger Delta area). Because of the grave impact of such war crimes on children and the society, the impunity of the perpetrators must not be allowed to continue. Increased international awareness about the illegal involvement of children in armed conflicts has ensured that the concern for child soldiers is on the international agenda.
There can be no peace without justiceand as such, perpetrators of war crimes should be punished, regardless of the position they occupy, in order to satisfy the victims and prevent the commission of further crimes. Responsibility for prosecuting the perpetrators falls first and foremost to the states, but if they do not wish or are not in a position to do so, then other willing states or international institutions shall step in; so that those engaging in such prohibited conduct can account for it through ‘penal’ or ‘non-penal’ means, no matter the context in which the criminal conduct took place.
Many countries like Nigeria with a history of traditional justice have not encouraged the use of such alternative modes of justice as a complement to their western-type justice system. Rwanda with its ‘gacaca’ justice system has however, started a trend towards the use of such traditional modes of justice, and hopefully other countries will follow along the same path. The sad reality in many 3rd World Countries is a poor western-type judicial system, compounded by insufficient and unskilled personnel, which invariably leads to delay in justice or no justice at all. As an outcome of our research work, we recommend the following:
- Explicit prohibition of child soldiering and non-recruitment of under 18 year olds into armed forces or armed groups, since non-recruitment is the most effective means of preventing this menace.
- Increase respect and adherence to humanitarian law by enhancing and increasing combatants’ instruction in humanitarian law and the fighting forces should have legal advisers available to assist and advise them.
- Establishment of a worldwide system of compensation and reparation for victims of past human rights abuses and; enactment, implementation, and domestication of international laws and treaties like the Rome Statute.
- The defence of duress should be available to child soldiers and as such, there should be a determination of the requisite mensrea for committing war crimes.10
- There should be increased banking and financial co-ordination and cooperation between countries, in order to monitor and control the financial resources of perpetrators of war crimes.
- Due to its flexibility and easy accessibility there should be increased use of alternative and complementary modes of justice in tackling pre-conflict, conflict and post-conflict issues, especially for people in the rural areas; and prosecution of perpetrators on the basis of universal jurisdiction should be pursued.
CONCLUSION
The global rules and system that enforces human rights at the international level has become significant tools to prevent conflicts, prevent atrocities, promote peace and justice. International justice is essential to deter those contemplating human rights crimes, to enable victims and their families to obtain justice and redress, to punish perpetrators, to rebuild nations ravaged by armed conflicts and to support post-conflict reconciliations.States can only address the effects of war crimes and atrocities like the illegal use of child soldiers by confronting them, and reflecting on the fact that their communities find such crimes totally unacceptable.
It is the duty of states and the international community at large to put a stop to atrocities and all inhuman practices. And this, they can do by putting mechanisms in place and, enforcing such mechanisms, in order to ensure that the violators of international law are held responsible. The victims who suffer these grave crimes and their families deserve nothing less.The illegal use of children as active participants in armed conflicts is a grave form of child abuse and exploitation, and a war crime, which has far-reaching effects on both the children and the society. Grave breaches of international law constitute war crimes that incur the individual criminal responsibility of those who commit them – by their actions or inactions.
The impunity with regard to the illegal use of child soldiers is the result of an apparent lack of political will to combat the violators of humanitarian law, and is not the result of an international legal vacuum with regard to these illegalities.
Responsibility for tackling this menace falls first and foremost to states; but this responsibility does not rest on the individual criminal perpetrators and the commanders of these child soldiers, but rather on the whole society at large. There can be no compromise over the fact that criminal sanctions must be imposed in the case of serious violations, to show that the prohibitions are absolute and that no departure from them will be tolerated. There must be the political will, determination and co-operation of both governments and citizens, in order to bring criminal perpetrators of grave atrocities to justice.
BIBLIOGRAPHY
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