Rehabilitation & reintegration of juvenile war criminals: a de facto ban on their criminal prosecution?

• Author: Debarre, Alice S.

1. INTRODUCTION

   Although child soldiers that commit acts of atrocity and war crimes constitute a minority (1) of the estimated 250,000 child soldiers worldwide, (2) the question of their prosecution, as yet unsettled in international law, raises complex issues of "culpability, a community's sense of justice and the 'best interests of the child'." (3) International law does not define the term "child soldier," and, given the lack of a single or discrete instrument specifically concerned with this issue, no consensus exists as to who falls within that category; (4) the main issues being the minimum age of lawful participation in armed conflict, and the level of participation required for the child to be considered a soldier. One operational definition is that which can be extricated from Article 1 of the Optional Protocol on Children in Armed Conflict, which raises the minimum age of lawful participation in armed conflict to eighteen years and refers to child soldiers as those children who take a "direct part in hostilities." (5) Since this paper is concerned with child war criminals, there is no need to define the scope of the notion of taking a direct part in hostilities, as it can be assumed that any child soldier who commits a war crime has, in fact, taken a direct part in the armed conflict. (6)

   The ban on recruiting or using any individual under the age of fifteen in armed forces or armed groups is settled international law, (7) and, although it is still ambiguous for armed forces, the minimum age is now considered to be eighteen for armed groups. (8) However, the question remains of what is to be done with child soldiers who themselves have committed war crimes. International law provides no explicit guidelines for whether, or at what age, child soldiers should be prosecuted for war crimes. (9) In an international armed conflict ("IAC"), child soldiers are combatants and will therefore benefit from the 'combatant privilege,' which ensures that they cannot be prosecuted for actions taken during an armed conflict that comply with the rules of International Humanitarian Law ("IHL"). (10) However, no such concept exists in non-international armed conflicts ("NIACs"), where child soldiers are most often used, and in any case, no child soldier who has committed a war crime, in an IAC or a NIAC, will be immune from prosecution under IHL. (11) The only provisions relating to criminal prosecution of child war criminals are Articles 77(5) of Additional Protocol I to the 1949 Geneva Conventions (12) and 6(4) of Additional Protocol II (13) that ban the death penalty for crimes committed by individuals when under the age of eighteen. IHL, along with International Human Rights Law ("IHRL") and International Criminal Law ("ICL"), contain little guidance and no express prohibition on the prosecution of child soldiers for war crimes. (14)

   Despite the absence of a ban on the criminal prosecution of child soldiers, none have ever been prosecuted by an international court. (15) Much of the reticence to trying child war criminals in criminal courts stems from the fact that, given their young age, they lack the necessary mental and moral development, and are therefore more easily coerced or influenced into committing atrocities. (16) Indeed, they are less socialized, more malleable, and more docile than adults. (17) As the U.S. Supreme Court in Roper v. Simmons held, children have a "lack of maturity and an underdeveloped sense of responsibility," which makes them more susceptible to be influenced by outside pressures. (18) Furthermore, it is common for commanders to give child soldiers either drugs or alcohol, (19) thereby further lowering their inhibitions. Alongside these concerns, the criminal prosecution of child soldiers for war crimes also gives rise to more juridical issues. Directly related to this question of a child's development is the difficulty of proving the child soldier's mens rea. Does he or she possess the mens rea sufficient to be held responsible for his or her war crimes? According to Article 8(2)(a) of the Rome Statute, the mens rea required for war crimes is the proof that "[t]he perpetrator was aware of the factual circumstances that established the existence of an armed conflict" and that the victim was a protected person under one or more of the Geneva Conventions, (20) which would have to be proven in addition to the traditional mens rea required by the particular crime committed. Further juridical issues arise, even were it to be found that the child soldier met the substantive intent requirements for the commission of a war crime, as the court would likely then have to look at the defenses of duress, (21) intoxication, (22) and superior orders. (23) Finally, the major problem with child soldier prosecution for war crimes is that, while Article 40 of the Convention on the Rights of the Child calls on state parties to set a minimum age of criminal responsibility, (24) the little guidance that international law provides leaves states with a considerable amount of discretion on the question. (25) The current lack of consensus of the different state laws on this issue is an important obstacle, as it is unclear who may or may not be prosecuted for war crimes under international law.

   The reaction of the global community to this judicial uncertainty has been to create and uphold what Mark Drumbl has described as the "faultless passive victim" image of the child soldier, one of the goals of which is to curb punitive policies and harsh measures. (26) Despite this, and while it is clear in international law that, when dealing with child soldiers, the standard is the "best interests of the child," (27) it cannot as yet be said that there exists a customary international law banning the prosecution of child soldiers. The Rome Statute is the only international law instrument precluding the prosecution of an individual under the age of eighteen at the time the offence was committed; (28) and, although the Rome Statute plays a powerful trendsetting role, (29) only a minority consider this to be a substantive, fundamental rule of international law. (30) However, not only is there no precedent in international law for the prosecution of war child criminals, examples of such prosecutions in national courts are also extremely rare. (31) More than exemplifying the reticence to try child soldiers, this seems to point towards an emerging customary ban.

   As opposed to the incertitude concerning prosecution, international law is clear on the fact that states have an obligation both to rehabilitate and reintegrate all child soldiers. (32) Reintegration has been defined as a "long-term process which aims to give children a viable alternative to their involvement in armed conflict and help them resume life in the community." (33) Measures of rehabilitation and reintegration include Truth and Reconciliation Commissions ("TRCs"), Disarmament Demobilization and Reintegration ("DDR") programs, and local traditional and cultural rites. (34) Although the particular context will determine which measure is the most appropriate, it is clear that both family reunification and education are key aspects of the rehabilitation and reintegration objectives. (35)

   Assuming the existence of such a customary international norm obligating states to reintegrate and rehabilitate child soldiers, would this not, in fact, prohibit their criminal prosecution? Considering that the purpose of such an obligation is to reintegrate the child war criminals and other child soldiers into their communities and to help them heal, (36) how does criminal prosecution fit into this process? The existence of international standards and protections for accused juveniles, as well as the possibility, at the sentencing phase, to order purely rehabilitative measures, would seem to argue for the compatibility of criminal prosecution of child soldiers with their rehabilitation and reintegration. However, this is in tension with the idea that a criminal trial undoubtedly leads to the increased stigmatization of child soldiers, while causing them further trauma. (37) Moreover, the nature of the available safeguards and the supposedly rehabilitative nature of a juvenile criminal trial are ill defined and insufficiently provided for in international law. (38) Finally, accountability does not necessarily have to involve criminal responsibility. Therefore, there is a strong argument to be made according to which a state's obligation to rehabilitate and reintegrate child soldiers, who have committed war crimes, is incompatible with their criminal prosecution, thereby creating a de facto ban on criminally trying these child soldiers.

2. THE EMERGING CUSTOMARY INTERNATIONAL NORM BANNING THE PROSECUTION OF CHILD SOLDIERS FOR WAR CRIMES

   In conventional international humanitarian, human rights, and criminal law, there is no clear prohibition on the criminal liability of individuals for war crimes committed while they were under the age of eighteen. The 1949 Geneva Conventions and their Additional Protocols (hereinafter AP I and AP II) contemplated both possibilities that minors could commit war crimes, (39) and that they could lawfully be prosecuted for their acts. (40) In the context of an IAC, article 77(5) of AP I prevents the execution of the death penalty on a person who had not yet reached the age of eighteen years at the time the offence related to such an armed conflict was committed. (41) Although Brazil's delegate had sought during the AP I negotiations to include the prohibition on penal prosecution of children under sixteen in article 77, the decision not to address this issue and to leave it to state discretion prevailed. (42) In NIACs, Article 6(4) of AP II similarly prohibits the pronouncement of the death penalty on persons under eighteen. (43) The Geneva Conventions, therefore, do not set a minimum age of criminal responsibility, and apart from...