Abstract:
This study intends to discuss on the issue of child soldiers and whether international law has
been legally formulated to narrow the question of whether child soldiers should be prosecuted or
reasoned as victims. Despite of the fact that some of child soldiers involve in the commission of
inhumane acts during wartime, are considered as invulnerable persons who are being victimized
by their recruiters due to heinous and unfavorable system of conscription. Since child soldiers
are exposed to witness or experience monstrous acts during hostilities, their survival remains in
question because some of them are injured and even feebly killed. Furthermore, under
international criminal law, it is unlawful to actively recruit child soldiers while involving them in
perpetration of war crimes. The view that child soldiers are perpetrators stems from the reality
that they have harmed members of their community and that, given their age; it is challenging to
ignore the atrocities they have perpetrated. And the question that follows is whether of the two
points of view are more conducive to achieving justice, and if so, what would be the best defense
that a former adult child soldier like Ongwen, whose case will be covered in the following
chapters, could conceivably make as an accused in the ICC. When it comes to its position on the
age of criminal accountability and what, if any, sanctions should be meted out to child soldiers
who commit war crimes, international human rights law veers between the foggy and the
nebulous. The Geneva Conventions, [the founding document of human rights legislation],
require all signatories to take action in response to serious human rights violations but leave the
legal age of criminal liability open-ended. In pursuant to article 33 of ICC, acting on orders from
superiors was not a defense to criminal culpability, although there are mitigating circumstances,
one of which is that a person may be exempt from prosecution if they were unaware that the
order was illegal. In addition, "if minors who have committed significant war crimes are not
brought to justice, this could serve as motivation for their commanders to give them the dirtiest
orders with the goal of impunity. Because of this, the ICC and former SCSL placed a particular
emphasis on those people who have committed the most abuses of IHL and human rights,
applying the idea of command responsibility to political and military leaders. When conducting
this research, the author had an intention to come up with final analysis and recommendations for
the recently raised issue of whether child soldiers’ atrocities are subject to prosecution under
international criminal law.