BY: Tamia Brito, RESEARCH ASSOCIATE, PILPG-NL
On the anniversary of the International Day against the Use of Child Soldiers, the issue of child soldiers in armed conflict remains as relevant as ever. The conscription and enlistment of children continue to deny boys and girls a healthy development process. By stripping them of their childhood and pushing them to the harsh setting of armed conflict, children’s particular needs, vulnerability, and age-related necessities are ignored, making them the primary victims of war. International law has granted them special protection, setting a rich framework to prevent and end child recruitment in conflict. This framework includes the criminal prosecution of perpetrators in breach of the protective duty.
This post addresses the issue of child soldiers by linking children’s rights with the accountability brought by criminal proceedings. It starts with a contextualization of the issue, followed by an overview of the international legal framework ensuring children’s protection. The post then looks at the case of Dominic Ongwen, a former child soldier who went on to become a commander of the Lord’s Resistance Army (LRA) and was recently convicted at the International Criminal Court (ICC) for crimes against humanity and war crimes.
Child recruitment in conflict settings
“It is the singular characteristic of armed conflict in our time that children suffer most.”
Graça Machel
In critical times, protective measures are often disregarded. Conflict weakens institutions and undermines compliance with law and policy and, as a result, civilians struggle the most. In conflict, there is potential for abuses and violations, as monitoring and reporting the breaches becomes more difficult.
This setting is particularly troubling for children. They have unique vulnerabilities and needs that make them easy targets for abuse. During the period of childhood, boys and girls are more susceptible in their physical, social, and mental development. They have limited means to protect themselves and their rights take into account their specificities and age-appropriate needs. Yet, when exposed to the impacts of war, children not only suffer from the same struggles as adults but also experience another level of deprotection due to their particular vulnerabilities. Today, one out of five children are affected by armed conflict. Thousands are being killed, subjected to sexual violence, and instrumentalized in conflict, which entails treating them as tools of a given party. Part of this instrumentalization is using children as soldiers, recruiting or enlisting them, and making them participate in conflict.
The rich legal framework
Under international law, children enjoy special protection even in the direst of circumstances. This is regulated by International Humanitarian Law (IHL), International Human Rights Law (IHRL), General International Law (PIL), and International Criminal Law (ICL).
Through two Additional Protocols (I and II), IHL explicitly prohibits the instrumentalization of child soldiers in the form of recruitment, conscription, or enlisting in both international and non-international armed conflicts. Additionally, the IHL study on custom conducted by the International Federation for the Red Cross also concluded the prohibition as a duty of customary nature.
The IHRL framework protects children and prohibits the recruitment and instrumentalization of children through the International Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, the Convention on the Worst Forms of Child Labour, the Paris Principles, the Safe Schools Declaration, and the Vancouver Principles. The main instrument on this issue, however, is the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Now ratified by 170 state parties, the Optional Protocol marks a paradigmatic development to the issue of child soldiers. The day it entered into force in 2002, February 12th is now the day known as the International Day against the Use of Child Soldiers.
Efforts on PIL got traction in 1996 when, under the request of the UN General Assembly, an independent expert report uncovered that children are the primary victims of conflict. In 1999, the UN Security Council released its first resolution on the issue, placing the issue within its mandate of international peace and security. It also highlighted the gravest violations affecting children, like child recruitment. By 2001, the Council determined that the recruitment of child soldiers would not be tolerated and started requesting the UN Secretary-General to list armed conflict parties that would instrumentalize children.
The ICL framework uses the above-mentioned protective framework to focus on individuals and secure accountability. The establishment of the ICC, adoption of the Rome Statute, and institution of criminal proceedings under ICL norms, embody the international community’s commitment to protect children. The Rome Statute, for instance, specifically precludes atrocity crimes targeting children. That is the case for the conscription or enlisting of children into armed forces or groups, a war crime in both international and non-international armed conflicts. It also incorporates particular measures to protect children when they participate as victims or witnesses during proceedings, and it explicitly requires ICC staff to be adequately trained on children’s issues. It also gives the Prosecutor the duty to take similar measures in the course of the investigations. The ICC’s Rules of Procedure and Evidence also include provisions designed to protect children throughout investigations and proceedings.
A unique case
In the case of Dominic Ongwen, the ICC deals with a particular defendant. Ongwen is a former Commander in the Sinia Brigade of the LRA, active since the 1980s in Northern Uganda and South Sudan. He was abducted by the LRA as a child when he was approximately 11-13 years old. He spent the entire period between his abduction and the beginning of the period relevant for the ICC’s charges (July 2002) in the LRA, being trained and rising in the ranks. When he was approximately 24-27 years old, he participated in the attacks on former Internally Displaced People’s camps, which constituted the basis for his indictment. Ongwen was accused of 70 counts of war crimes and crimes against humanity, including the war crimes of conscripting and using children under the age of 15 to participate actively in hostilities. In other words, he was charged with the crime of which he was a victim.
In its judgment, the ICC acknowledged Ongwen’s background as a former child soldier, but it also highlighted Ongwen’s direct and indirect participation in the conscription and use of children in conflict. The Court determined there was an agreement to conduct these actions among LRA brigade leaders and concluded that Ongwen provided both, an “essential contribution” to the crimes and the intent for children to be abducted. Thus, the defense’s arguments on grounds to exclude criminal responsibility (due to mental incapacity and duress) were dismissed. Ongwen was found guilty beyond reasonable doubt of 61 out of the 70 crimes he was charged with, including the conscription and use of children under the age of 15 years and their use in armed hostilities (Counts 69-70).
Ongwen’s case can be viewed as unique as it constitutes a reminder that failing to end impunity for atrocity crimes affecting children can create a vicious cycle of violence. Thus, in addition to complying with states’ commitment to uphold children’s rights, criminal proceedings have the potential to end the violation of children’s rights as well as prevent future breaches.
Conclusion
The ICC set an example for accountability in the Ongwen case. The verdict stands by the rich protective framework to prevent and end child recruitment while recognizing the extent of victimization of children affected by atrocity crimes. Guaranteeing children a safe developing process, especially in conflict, is a complex process involving law, policy, and accountability. Failing to put together all elements can draw children back into the dire circumstances of armed conflict, thus protracting violence and creating future breaches and victims. That was the case for Dominic Ongwen. Yet, through this judgment, the international community can find the mission of protecting children from forced recruitment revitalized, as Ongwen’s conviction draws a line in the potentially vicious cycle of exposing more children to the horrid circumstances of combat and conflict. With challenges still ahead, this mission is as valid today as it was in 2002 when the International Day against the Use of Child Soldiers was first commemorated.