THE USE OF CHILD SOLDIERS IN ARMED CONFLICT AS WAR CRIME UNDER INTERNATIONAL LAW

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THE USE OF CHILD SOLDIERS IN ARMED CONFLICT AS WAR CRIME UNDER INTERNATIONAL LAW

CHAPTER ONE

INTRODUCTION

1.0. BACKGROUND

Armed conflicts with devastating effects have been part of mankind since time immemorial and thesedays, there are easily accessible light weapons and even more destructive weapons, leaving a large number of the wounded, maimed and dead in their wake. Children all over the world constitute the largest and most powerless members of the society and; it used to be assumed that adults had the best interests of children at heart and there was no need to think in terms of children’s rights or their protection. This idealized perception of adult-child relationship ignored the grim realities of our world today.It is virtually impossible to watch international television stations like Cable News Network (CNN) or British Broadcasting Corporation (BBC) without hearing or seeing the sufferings of children in one part of the world or the other.

On these international television stations, the glares of child soldiers with their oversize ‘AK-47’ weapons from war torn countries, calls out to the world to end these endless and senseless wars. Luckily, Nigeria has not experienced these horrors although she had had to contend with refugees from war torn countries, faced her own various communal, ethnic and sectarian clashes. The Niger Delta insurgency readily comes to mind; and in all these situations, the people who are most affected are the innocent children. It is children who are increasingly becoming the principal victims of hostilities and acts of violence perpetrated in the course of armed conflicts. Children are often in greater danger than adults during armed conflicts – the danger and form of harm to which children are subjected to, is specific to them due to their innocence, vulnerability and age.

In order to prevent the use of children and ensure their protection during armed conflicts and most especially, to bring to justice all those engaged in such callous acts, preventive and counter measures must be perfected.This work is an inquiry into the consequences of traumatic man made actions which were borne out of flawed leadership and greed for money and power and, of political failure by our leaders to prevent the tragedy that has befallen an entire, defenseless population and; how international justice is confronting the aura of impunity to justice of all those involved in this unlawful creation, called Child Soldiers or Child Combatants (which shall be used interchangeably throughout this research work).

1.1. STATEMENT OF THE RESEARCH PROBLEM

The use of child soldiers poses a challenge to moral norms and legal regulations guiding the conduct of warfare. The direct involvement of children in armed conflicts has dire implications for the development of children and the society as a whole.[1] Child soldiering is a relatively new phenomenon even though it has quickly gained notoriety, and it is not restricted to any continent or region of the world but fortunately, Nigeria has been spared such horrors. There is however scarcity of relevant authorities on the subject, either in our public or private libraries, and even those found on the internet are restricted or too costly.

Most of the available authorities on child soldierswere not focused on the liability of child soldiers, and their recruiters and commanders. With the foregoing, several research questions therefore beg for answers:Who are combatants? Are child soldiers liable for their actions? What are the legal prohibitions of the use of child soldiers? Are the recruiters and commanders of child soldiers liable? How is international justice combating the aura of impunity to justice of the recruiters and commanders of child soldiers? Answers to these and other important questions are the bedrock of this study.

1.2. OBJECTIVES OF THE RESEARCH

This work attempts to focus on how international justice is used to protect the fundamental human rights of children during armed conflicts, most especially, as active participants. And how it is also been used to confront and combat the atrocities of their recruiters, commanders and the perpetrators of these callous atrocities in order to de-mystify the aura of impunity surrounding such misdeeds.We shall attempt to answer the above questions and many more, posed in our statement of the research problem, and this shall be done with reference to relevant laws, practical applications and thereafter, proffer our findings andrecommendations tothe issues so raised.

1.3. SIGNIFICANCE OF THE STUDY

Many victims of atrocities were denied justice for such crimes and many more, continue to suffer gross human rights violations during armed conflicts. The aura of impunity surrounding such atrocities has provided a fertile ground for the commission of new horrendous crimes, which must not be left unpunished.[2] It is noticed that not much research had been done on how perpetrators of war crimes are dealt with, in order to avert further atrocities and help reduce and stop it.

This issue must be investigated and given appropriate attention, especially with post-war or post-conflict reconstruction and peace building efforts.

Our work is designed to address some of the salient issues which many other authorities have so far ignored. Considering the lack of good relevant materials on this issue in Nigeria, ourresearch will be of great value to judges, legal academics, private practitioners, students, legislators, sociologists, social workers and, would hopefully help in shaping policy and judicial thrust. We shall try to highlight the nature, forms, causes and effects of child soldiering on both children and the society. We shall examine the culpability of both child soldiers and their recruiters and; how the law prohibits this phenomenon, and how the law is been used to bring justice to all concerned.

1.4. SCOPE OF THE RESEARCH

This study is not restricted to any country or region of the world, but it rather encompasses recent developments of the law in this area within a global perspective. We have triedto depart from previous studies by examining the roles and restriction placed on the use of children in armed conflicts, and the aura of impunityto justice surrounding their recruiters. We shall highlight the provisions of the law designed to combat the illegal use of child soldiers and, focus on those aspects of the law that has direct relevance to the illegal use of child soldiers, and how international justice redresses such impunity to justice.

1.5. RESEARCH METHODOLOGY

A doctrinal research methodology is adopted in the conduct of this work. Some of the information in this research work are from primary sources like statutes, conventions, protocols, and case law. The bulk of the information however, consist of secondary sources from relevant and authoritative books, writings and opinion of leading experts in articles, journals, magazines, newspapers, periodicals and the internet. The footnote method of referencing shall be used while all sources will be duly acknowledged, with a bibliography of all the materials consulted made at the end of chapter five.

1.6. LITERATURE REVIEW

Armed conflicts are meant to be conducted with some form of civility under international humanitarian law. There are codes which all warring groups are expected to obey during armed conflicts. With regards to these laid down procedures on how armed conflicts are to be conducted, this research work tries to highlight the special provisions of international justice designed to protect and prevent the use of children during armed conflicts. Dramatic changes in the conduct of armed conflicts in recent times has however taken on a new dimension, including killing and raping of innocent women and children, children forced into combat and yet, no culprits are held responsible for these crimes. Although there is now a worldwide focus on the subject of child soldiers, the lack of many relevant authorities on the liability of child soldiers and, on the impunity and culpability of their recruiters and commanders is noticed.

Most available authorities on child soldiers focuses mainly on issues such as the use of children as combatants, deprivation of their childhood, the societal effects, post conflict reconstruction, peace building and reintegration of such societies.All these taken as a whole, dictated our approach, in which we have aimed not only to examine and appreciate what others have done in this area and of course, to benefit from their work, but also to examine the liability of child soldiers and, the culpability and impunity of recruiters of child soldiers under the international justice system. Most of the available authorities cover hypothetical issues, while we have tried to cover more practical issues. The central themes of some of our consulted books as serialized below are briefly highlighted:

(a). The book,The Use of Children as Soldiers in Africa,[3] is basically a report of country by country analysis of child recruitment and participation in armed conflicts in Africa. The report provides details of national legislations governing recruitment into the armed forces, national recruitment practices and, where armed conflicts were ongoing, the extent of child participation in hostilities, whether as part of government armed forces, government sponsored armed groups or militia, or non-governmental armed groups or militia. It included basic demographic data and the estimated size of governmental armed forces and nongovernmental armed groups.

(b). Whilethe book, Child Soldiers: The Role of Children in Armed Conflicts,[4] has a lot of pictorials and is one of the earliest books on child soldiers.  It dealt with the status of child soldiers in international law and, highlighted the ways in which international humanitarian law fails to provide effective protection, particularly in internal armed conflicts which are now more common. The book is based on empirical data gathered from different parts of the world, examined the reasons and forms of recruitment of child soldiers, effects of child soldiering on the children, their families, and the larger society and also, examines the treatment of children who had participated in acts of violence.

(c). In “A Critical Examination of Crimes Against Humanity Under International Law”,[5] the writer examined the nature of various war crimes and the challenges facing the existing laws in this area. It dealt with the judicial and procedural practices of the various international courts, and the challenges facing them. There were also definitions and explanations of various terms in the thesis.

(d).Thearticle, “The Law of Warfare: Non-International Armed Conflicts and Respect for the Law”,[6]   is mainly concerned with striving to determine the quantum of international humanitarian law applicable in non-international armed conflicts and their conditions of applicability. It also analyses the rules or norms that regulate non-international armed conflicts.

(e). In “An Overview of International Criminal Law: The Work of the Rwandan Tribunal”,[7] the writer examined the purpose of sanctions in international criminal law; the contribution of international tribunals to the development of the law and the challenges facing international criminal law especially, the conceptual clarifications or definitions of international crimes. The writer was of the view that the future of international criminal justice and the effective enforcement of international criminal law lies in an invigorated domestic justice system. A description of the provisions regarding the minimum age for child combatants was made within the context of the International Criminal Tribunal for Rwanda. (f). The GracaMachel Study,The Impact of War on Children,[8] which has since become the basis of global action on child soldiers was mainly concerned with the effects of war on children. It examined both the psychosocial and physical effects of war on children and, made recommendations on the way forward. It examined some threats to children in armed conflicts like HIV/AIDS, landmines, small arms, the peace process, media and security.

(g).The book, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy,[9] appraised the issue of individual accountability for human rights atrocities under international law. It considered the development of the law and, the mechanisms of accountability for violations of the law with the promises and pitfalls of individual responsibility. Procedural, evidential and prosecutorial issues were also examined in the book.

(h). The book, Civil Wars, Child Soldiers and Post Conflict Peace Building in West Africa,10centers on linking the nature of civil wars to post-conflict reconstruction in Liberia and Sierra Leone. The book examined the impact of the civil wars in these countries on children as combatants and, the implications for post-conflict peace building and reconstruction in those societies, and West Africa as a whole.  The book also dealt with the actual roles assigned to children in those wars and, the role of multilateral agencies in post conflict reconstruction.The noticed themes and gaps in all our reviewed literatures are however found in one way or the other, individually and/or collectively to be premised on:

  1. Legislations concerning recruitment of children into different armed forces, report and analysis of the extent of child participation in hostilities.
  2. Post-conflict treatment of child soldiers and the failure of international law to provide effective protection to children during armed conflicts.
  3. Judicial, evidential, procedural issues and practices of the various international courts and their challenges.
  4. Determination of international humanitarian law applicable in non-international armed conflicts and their conditions of applicability.
  5. Effects of war on children during and after armed conflicts; the role of multilateral agencies in post-conflict reconstruction and, the effects of child soldiering on post-conflict peace building and reconstruction.
  6. The effects and purposes of sanctions in international criminal law and, the contribution of international tribunals to the development of the law.

The approach adopted in this study is however different but complementary to our reviewed literatures, as it is geared towards focusing on the following:

  1. Analysis of the nature, causes, effects and forms of child soldiers as a form of child abuse and exploitation.
  2. Nature of war crimes, and the legal provisions on the use of child soldiers and, the jurisdiction of international tribunals over war criminals and the fight to combat the menace of child soldiers.
  3. The culpability or otherwise of child soldiers and the liability of recruitersof child soldiers and, how international justice deals with their ‘aura’ of impunity to justice.

It should be noted that we have not dwelled on the theoretical, practical challenges and requirements of engaging the mechanisms of actual prosecution like the judicial, procedural and evidential requirements; the mensrea elements of the crimes, nor the elements that confine nor define the scope of these crimes. The essence of this work is to focus on the illegal use of children as combatants under the law, their culpability if any; whilst stressing how international justice protects children by making their recruiters and commanders accountable. We shall try to focus globally on relatively recent developments and we shall highlight the key features of these new mechanisms of justice and identified some of the major issues. We hope that our work will help fill in some of the gaps, if any, in earlier authorities and encourage more debate and awareness on this subject.

1.7. STRUCTURE OF THE THESIS

Our work is divided into five distinct and separate chapters. Chapter one is the introductory chapter and it introduces the concept, background and objectives of the study. This chapter deals with the study’s literature review, methodology, research problem and structure of the thesis.

The second chapter is the ‘actual’ start of our study and deals with issues such as child abuse and exploitation. The chapter also covers the nature and forms of war crimes under international humanitarian law.

Chapter three has to do with topics such as the nature and prohibitions against the use of child soldiers. This chapter examines the meaning, forms, recruitment methods, functions, involvement, nature and scope of child combatants. This examination also extends to the meaning and distinctions between combatants and civilians.

Chapter four examines issues relating to criminal responsibility and liability for war crimes; state responsibility; individual criminal responsibility; superior responsibility and the liability or otherwise of child soldiers.

Chapter five is the conclusion of our effort and it encompasses a summary of our observations, recommendations, and the general conclusion of this work.

The research bibliography and appendix are inserted at the end of this chapter.

[1] Sesay, A., Civil Wars, Child Soldiers & Post Conflict Peace Building in West Africa,  College Press,  Ibadan  (2003) p. 4, (hereinafter called Sesay’s Civil Wars).

[2] Ladan, M.T., “An Overview of International Criminal Law:  The Work of the Rwandan Tribunal”, A Paper presented at the 9th African Human Rights Workshop, Ota, Nigeria, Sept. 28-Oct.17, 2003, p.2, (hereinafter called Ladan’s Article).

[3] Coalition to Stop the Use of Child Soldiers, 1st ed.,  London (1999).

[4] Cohn, I., Goodwin-Gill, G.S.,  Clarendon Press,  Oxford  (1994) (hereinafter called Cohn’s  Child Soldiers).

[5] Fatuyi, Y., LL.B. Thesis (Unpublished), Faculty  of Law, O.A.U., Ife (2005) (hereinafter called Fatuyi’s Thesis).

[6] Galega, S., Nguimaisa, B., JPCL (2006), Vol.1, No.1., p.99 (hereinafter called Galega’s Article).

[7] Ladan’s Article, op.cit.

[8] Machel, G., UN (A/51/306) (2001) (hereinafter called Machel’s Report).

[9]   Ratner, S.R., Abrams, J.S.(2nded) Oxford (2001) (hereinafter called Ratner’s Accountability). 10Sesay’s  Civil Wars,  op.cit.

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