Prosecution of crimes committed by child soldiers under international criminal law

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.