International law provides no explicit guidelines for whether or at what age child soldiers should be prosecuted for grave violations of international humanitarian and human rights law such as genocide, war crimes, and crimes against humanity. Due to increasing numbers of children participating in armed conflict and engaging in serious human rights breaches, (1) a coherent policy response consistent with international legal standards, including states' duties to promote children's well-being and to prevent and prosecute human rights abuses, is necessary. This paper argues that the hundreds of thousands of children under age eighteen (2) participating in armed conflicts around the globe should be treated primarily as victims, not perpetrators, of human rights violations and that international law may support this conclusion. In the case of children, the world community should choose rehabilitation and reintegration over criminal prosecution because of children's unique psychological and moral development, (3) the Convention on the Rights of the Child's emphasis on promoting the best interests of the child, (4) and the damaging psychological effects that trials may have on children forced to recount violence done to them and others. (5)
The political science paradigms of Liberalism and Institutionalism are instructive in crafting a strategy to achieve specific policy goals, (6) such as setting an age of criminal responsibility for child soldiers engaged in human rights abuses and promoting their rehabilitation. If, as Institutionalism posits, institutions or international norms have an independent impact on states' policy choices, (7) creating explicit, uniform standards at the international level for the disposition of child soldiers accused of human rights violations may encourage states to better promote the welfare of former child soldiers. Under the Liberal weltanschauung, (8) non-state actors such as international child advocates and non-governmental organizations may play a role in both shaping and encouraging compliance with these new standards at the domestic and international levels. Further, both Liberals and Institutionalists may undercut the problem of prosecuting former child soldiers by focusing increased efforts on eradicating the use of child soldiers altogether.
After providing background information on child soldiers in Part I, Part II of this Article analyzes the current legal framework under international humanitarian, human rights, and criminal law, and the international law of the child, considering both a state's duty to prosecute perpetrators of international crimes and its affirmative obligations to rehabilitate and reintegrate former child soldiers into society. Next, Part III formulates a policy proposal for filling lacunae in the law, suggesting in particular that children under age eighteen should not be prosecuted for international crimes, and instead, should be treated primarily as victims of armed conflict. Part III also examines how the differing assumptions of the international relations paradigms of Liberalism and Institutionalism affect strategies for achieving this policy goal, and it provides other solutions for addressing the problem of child soldiers who commit atrocities. In conclusion, this paper emphasizes our responsibilities to make this a world "fit for children." (9)
PART I. THE BASICS ON CHILD SOLDIERS
We are the world's children. We are the victims of exploitation and abuse. We are street children. We are the children of war. We are the victims and orphans of HIV/AIDS. We are denied good-quality education and health care. We are victims of political, economic, cultural, religious and environmental discrimination. We are children whose voices are not being heard: it is time we are taken into account. We want a world fit for children, because a world fit for us is a world fit for everyone. (10) Over 300,000 (11) children under age eighteen actively participate in armed conflict in 41 (12) countries across the globe, according to the Coalition to Stop the Use of Child Soldiers, a group of six nongovernmental organizations ("NGOs") including Amnesty International and Human Rights Watch. An additional 200,000 children are recruited into paramilitary and guerilla groups and civil militias in more than 87 countries. (13) Paramilitary groups in Colombia have recruited children as young as eight years old; eleven-year olds have been drafted into the Northern Alliance in Afghanistan; and teenage boys are frequently forced from their villages into the national army in Myanmar. (14) Despite demobilizations of child soldiers in Sierra Leone and Southern Sudan, (15) the use of child soldiers is most prevalent in Africa, with more than 120,000 children engaged in active combat. (16) Children are involved in soldiering in the developed world as well; about 7,000 children under the age of eighteen were in the British Armed Forces in June 2001. (17) Children are increasingly participating in internal armed conflicts, (18) and the more protracted the conflict, the higher the likelihood of child participation. (19)
Children enter armed conflicts either involuntarily, through the threat or use of violence against them or their loved ones, (20) or "voluntarily," due to dire poverty, feelings of helplessness and vulnerability, peer pressure, or the desire for revenge. (21) In Northern Uganda from 1995 to 1997, between five and eight thousand children were abducted by the Lord's Resistance Army to serve as child soldiers (22)--some were even taken directly from school. (23) Similarly, the army surrounded and forcibly conscripted groups of school children in Burma between the ages of fifteen and seventeen, according to a U.N. report. (24) Young soldiers may be abducted or recruited from the conflict areas themselves, second countries, refugee communities, ethnic Diasporas or by trafficking across borders. (25) Children are considered particularly desirable recruits because they are more easily intimidated and physically vulnerable than adult soldiers. (26)
Once they become soldiers, children may suffer from a variety of physical health risks, as they are frequently given the most dangerous jobs. Many fight on the front lines, facilitated by increasingly lightweight weapons that they can carry, (27) facing the conventional dangers of injury and death during armed conflict. Of the 140 Liberation Tigers Tamil Eelaam (LTTE) soldiers killed during a battle at Ampakamam, Sri Lanka in October 1999, 49 were children; 32 of those children were girls between the ages of eleven and fifteen. (28) Other children are used as spies, messengers, porters, and servants. (29) In Myanmar, children were used to sweep roads with tree branches or brooms to detect landmines. (30) One child soldier in Uganda innocently recounts how he was trained to place landmines:
I was not trained in their names--I was shown how to use them. There are three different kinds. Small ones, which open like a mathematical set, for use against people. Then there are round ones, which are set off by 70-80 kilos--a bicycle will make them explode. And big ones, the size of a small washing basin, which are for heavy vehicles.... (31) In addition to engaging in combat and other tasks the boys participate in, girls are also frequently victims of sexual exploitation through rape, sexual slavery, and abuse. (32) Younger children often are malnourished and may suffer from respiratory and skin infections. (33) It is likely that child soldiers are at higher risks of drug and alcohol abuse, sexually transmitted diseases, pregnancy, and auditory and visual impairments from frequent exposure to landmines. (34)
The psychological trauma of soldiering is undoubtedly severe. Robbed of their childhood, these children witness the worst of humanity on a daily basis. One thirteen-year-old from Sierra Leone described his first day of combat with children eight and nine years old, dragging their AK-47's because they were too heavy to carry:
I was in an ambush and bullets were flying back and forth, people were shooting. I didn't want to pull the trigger at all but when you watch kids ... being shot and killed and ... dying and crying and their blood was spilling all over your face you just moved beyond, something just pushed you and you start pulling the trigger. (35) A Ugandan girl abducted by the Lord's Resistance Army in Uganda was forced to kill a boy who tried to escape, witnessed another boy hacked to death, and was beaten when she dropped a water container and ran for cover under gunfire. (36) Brutal hazing practices include everything from torture and beatings inflicted upon the new recruit to forcing him or her to commit these atrocities on others. The Mozambican Resistance Organization's (RENAMO) training regimen included physical abuse, punishment for showing sympathy for victims of violence, and forced participation in killing. (37) Children exposed to rampant violence and death through involvement in armed conflict may suffer flashbacks, nightmares, sleep disorders, and post-traumatic stress disorder, in addition to desiring revenge and fearing retribution from the communities they have hurt. (38)
Although these children are themselves victims of violence, they are also perpetrators of atrocities. Once they become child soldiers, these children murder, maim, and plunder. Graca Machel, a former Expert of the Secretary General of the U.N. on the impact of armed conflict on children, wrote that children from countries including Afghanistan, Mozambique, Colombia, and Nicaragua, sometimes committed atrocities against their own families and communities. (39) The children in Uganda's Lord's Resistance Army were both brutally abused and abusive, killing attempted escapees, captured government soldiers, and civilians, using everything from stones to axes. (40) Children as young as five were accused of participating in the...