WANTED: Multi-faceted Solution to End Impunity for Perpetrators of Children in Armed Conflict By Kathryn Rich It is immoral that adults

should want children to fight their wars for themThere is simply no excuse, no acceptable argument for arming children. -Archbishop Desmond Tutu1 1. Introduction Today will be remembered as a dark time in the history of humanity the day the world neglected child soldiers. An estimated 300,000 children2 in 19 countries3 struggle to survive the reality of actively participating in armed conflict. Those that live through the experience have stories so horrific they are almost unbelievable.4 There are often obvious physical injuries from fighting, training exercises, and beatings.5 Mental and emotional damage to these young psyches
1

The Children and Armed Conflict Unit, Themes: Child Soldiers, at http://www.essex.ac.uk/armedcon/themes/child_soldiers/index.html (last visited November 7, 2008) (quoting Archbishop Desmond M. Tutu). 2 Ball, Howard, War Crimes and Justice 240 (2002) (noting that the number of child soldiers has increased from a 1996 United Nations report estimating 250,000 child soldiers). 3 See Press Release, Amnesty International, Child Soldiers: A Global Issue, 5 (Sept. 8, 2007), available at http://mediaforfreedom.com/ReadArticle.asp?ArticleID=4474; also Coalition to Stop the Use of Child Soldiers, Child Soldiers Global Report 12 (2008), available at http://www.childsoldiersglobalreport.org/files/country_pdfs/FINAL_2008_Global_Report.pdf (stating that although the number of conflicts that have documented use of child soldiers has dropped from 27 in 2004 to 19 in 2007, the decrease is primarily the result of conflicts ending rather than initiatives to stop the use of child soldiers). The 19 countries include Afghanistan, Burundi, Central African Republic, Chad, Colombia, Cote dIvoire, Democratic Republic of the Congo, India, Indonesia, Iraq, Israel/Occupied Palestinian Territory, Myanmar (Burma) Nepal, Philippines, Somalia, Sri Lanka, Sudan, Thailand, and Uganda. Also, note that use and recruitment of child soldiers still exists, though not in active conflicts, at less drastic levels in 86 countries. 4 Coalition to Stop the Use of Child Soldiers, Voices of Young Soldiers (2007), at http://www.childsoldiers.org/childsoldiers/voices-of-young-soldiers (various recounts by children from different countries of their experiences as soldiers). 5 Coalition to Stop the Use of Child Soldiers, Child Soldiers (2007), at http://www.childsoldiers.org/childsoldiers/child-soldiers (injuries are often complicated by the harsh living conditions and

will impact these children for the rest of their lives. The global community has become so interconnected that the devastation resulting from the use of child soldiers will affect everyone. The use and recruitment of child soldiers is a problem the world can no longer afford to approach haphazardly. Political, judicial, and cultural systems are developing and expanding on an unprecedented international level. The speed of change has resulted in advancements including the ability to rapidly share technology, news, and creative ideas. However, this growth has also led to confusion as problems develop faster than solutions. The problem of child soldiers is no exception. To make the situation even more difficult, it is a complex issue existing in a web of cultural, political, societal, and judicial deficiencies. The causes and consequences of child soldiers are being felt in all these areas. Many positive steps have been made towards accountability, particularly in the last 12 years with the creation of the International Criminal Court (ICC). Currently, a landmark case is in front of the ICC, with the defendant being charged with the war crime of recruitment of child soldiers. This Court, coupled with numerous sources of law criminalizing the use of child soldiers, demonstrates that the world is legally able to end the use of child soldiers in armed conflict. The ICC and international criminal law still present challenges, however, as advocates continue to fight for the freedom of children and for the punishment of those who would use them to fight the battles begun by adults. This paper offers a comprehensive examination of the complexities of this situation, with an emphasis on ending impunity for perpetrators of child soldiers. It is not meant to overwhelm, but rather to demonstrate the attention and cooperation needed to address all the intertwined issues of the situation. The examination begins with the causes that result in child soldiers, followed by the legal aspects of holding adults criminally responsible. The role of the United Nations and
minimal access to health care).

international community is also addressed. The use and recruitment of child soldiers is a multifaceted problem that must to be approached from a variety of perspectives simultaneously if it is going to be overcome. 2. Definition of a Child Soldier In the international community, a child generally refers to a person under the age of eighteen.6 This age, however arbitrary it may appear, has been customarily followed because the law assumes a basic capacity to make responsible choices is a prerequisite to the meaningful exercise of choice rights.7 Setting an age restriction is an attempt to protect children not yet mentally developed enough to make significant decisions.8 Prevailing international law, however, sets fifteen as the minimum age for military recruitment and participation in armed conflict.9 A standard age for recruitment continues to be debated in the international forum.10 The law should be uniformly changed to eighteen because children are enlisted as soldiers because they are easily manipulated, are not fully aware of the dangers and have unformed notions of right and wrong.11 In many places, especially those with weak administrative systems, identifying the age of some recruits has been difficult.12 Children may not know how old they are or have any
6

See The Convention on the Rights of the Child (1989), available at http://www.unhchr.ch/html/menu3/b/k2crc.htm; African Charter (1981), available at http://www.africaunion.org/root/au/Documents/Treaties/Text/Banjul%20Charter.pdf. 7 Abrams, Douglas E. & Sarah H. Ramsey, Children and the Law: Doctrine, Policy and Practice 110 (3d. Ed. 2007). 8 Singer, P.W., Children at War 7 (2005) (stating that eighteen years old is the generally accepted transition point to adulthood). 9 See Convention, supra note 6, at Article 38. 10 Coalition to Stop the Use of Child Soldiers, Questions and Answers (2007), at http://www.childsoldiers.org/childsoldiers/questions-and-answers (noting that the debate centers around societal and military practices of different cultures). 11 International Committee of the Red Cross, Child Soldiers 4 (June 2003), available at http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/p0824/$File/ICRC_002_0824.PDF!Open. 12 Machel, Graca, Promotion and Protection of the Rights of Children: Impact of Armed Conflict on Children 36 (1996), available at http://www.unicef.org/graca/a51-306_en.pdf.

documentation of their birth. In some situations, though, it remains frustratingly obvious that children are being used as soldiers. Children as young as nine years old have been documented combatants.13 Therefore, adopting the higher age of eighteen would decrease the ability to hedge on the age of recruits. In reality, regardless of what age is set by international law, a difficulty in accurately identifying compliance with an age threshold will remain challenging. In addition to an established age for defining a child soldier, the role the child plays in the conflict must also be addressed. Children can be involved in armed conflict in a variety of capacities. They can actually be armed with guns or other weapons and sent to fight. They might be used as part of a security detail or as guards.14 Children have also proven, regrettably, to be effective in espionage due to their small size and unobtrusive appearance.15 Perhaps the most fortunate of children that are involved contribute in the form of manual labor: cooks, messengers, porters, and mine sweeps.16 The role of girls in armed conflict is particularly troubling.17 Girls are often used as sexual slaves, wives and concubines to soldiers.18 When these young girls become pregnant, the resulting children are often stigmatized and labeled as rebel babies.19 Rape and sexual violence is a favored war tactic that has gone relatively unpunished. In the Democratic Republic of the Congo,
13

Coalition to Stop the Use of Child Soldiers, Some Facts (2007), at http://www.childsoldiers.org/childsoldiers/some-facts (noting that the majority of child soldiers are between fourteen and eighteen). 14 Human Rights Watch, Background Briefing to the Child Soldiers and the Child Labor Convention (1999), available at http://www.hrw.org/backgrounder/crp/labor615.htm. 15 Yoong, Mary Yong Meng, Child Soldiers: Problems of Definition, Role and Factors for Recruitment, Journal of the Royal Malaysia Police Senior Officers College, 4 (2004), available at http://mpk.rmp.gov.my/jurnal/2004b/childsoldiers.pdf. 16 Id. 17 United Nations, The Suffering of the Girl Soldier (2007), at http://www.un.org/events/tenstories/07/girlsoldier.shtml (as part of its Ten Stories the World Should Hear More About series the United Nations highlighted the particular problems girls have when forced to be soldiers). 18 Yoong, supra note 15, at 6. See Suffering of the Girl Soldier, supra note 17 (describing the additional difficulties of reintegration for girls who have had children during their times as soldiers). 19 Suffering, supra note 17.

children account for an appalling 33 percent of all rape victims.20 With so many horrendous atrocities going on in these conflict areas, punishment for these increasingly commonplace sexual violence crimes has decreased due to lack of resources and other challenges. Regardless of the manner in which a child is used during armed conflict, the child should be considered a recruit and soldier for purposes of criminal punishment of those who oversee them. Any of these capacities contribute to the effort of the armed group that they are assisting. In this paper all children under the age of fifteen, whether or not they are positively identified as to their age, will be referred to as a child soldier irrespective of their particular role in the conflict. 3. Root of the Problem - How do children become soldiers? Perhaps the most critical of advance in eliminating the use of child soldiers is identifying the avenues that cause children to become involved. Steps can be made to address the underlying catalysts of such an outcome once they are detected. Poverty and an unstable society contribute to creating the type of environment that produces child soldiers. Parents, recruiters, and the children themselves are left with fewer options in tumultuous societies. Forcible abduction, abandonment, persuasive recruitment, or volunteering are also primary avenues for a child to become a soldier. Poverty is a primary underlying factor in armed conflicts. Combined with other environmental influences, poverty creates a power vacuum, leading to widespread frustration.21 In addition to the creation of the conflict itself, poverty is also a common denominator in the recruitment of the child soldiers. Destitution ripens the conditions for all of the possibilities of child soldier recruitment. Most child solders are from poor societies and disadvantaged families.22 Regardless of how a child ends up in the service, the children affected are generally those already
20 21

Id. Goodhand, Johnathan, Violent Conflict, Poverty and Chronic Poverty 4 (May 2001), available at http://www.chronicpoverty.org/pdfs/06Goodhand.pdf. 22 Yoong, supra note 15, at 6.

dealing with impoverished circumstances. Forced abduction is the most obvious means of recruitment of child soldiers.23 A group commits compulsory induction using threats or physical force.24 Particularly in prolonged conflicts, armed groups become desperate to fill their ranks.25 The result is wars being fought today by children.26 Such abduction occurs right off the streets and out of the schools.27 Children have been removed from buses, cars, churches, and marketplaces while being held at gunpoint.28 The children are quickly taken away and compelled into service. Even parents who find out about the abduction of their child are often powerless to stop the course of events. Not all inductions of children are forcibly compelled. Some voluntarily join, seeking to prove themselves to their family or other adults.29 Others are motivated by revenge for prior atrocities they endured. Often cultures glorify war and teach children to view fighting as prestigious.30 Older children may begin to understand the reasons for the conflict and want to contribute to the cause. Some children join out of sheer desperation in exchange for the promise of protection, food, clothes, or medical assistance.31 In an effort to provide for their childs basic survival needs, some parents have offered children for the service. In exchange, the family usually receives a promise of aid from the armed
23 24

Ressler, Everett M., Torture, Abuse, Imprisonment, Recruitment 117 (Children in War, UNICEF, 1993). International Committee of the Red Cross, supra note 11, at 4. 25 Udombana, Nsongurua J., War is Not Childs Play! International Law and the Prohibition of Childrens Involvement in Armed Conflicts, 20 Temp. Intl & Comp. L. J. 57, 64 (2006) (describing the need for child soldiers in extended conflicts). 26 Silva, Jennifer R., Child Soldiers: A Call to the International Community to Protect Children From War, 31 Suffolk Transnatl L. Rev 681, 687 (2008). 27 Groome, Dermot & Judge Donald E. Shaver, International Legal Developments in Review: 2007, 42 Intl Law 399, 400 (2008). 28 Silva, supra note 26, at 685. 29 See Amy Beth Abbot, Child Soldiers: The Use of Children as Instruments of War, 23 Suffolk Transnatl L. Rev. 499, 516 (2000) (explaining enlistment prompted by need for security in culture of violence and other recruitment influences). 30 Silva, supra note 26, at 686. See also Abbot, supra note 29, at 517. 31 Silva, supra note 26, at 686.

group, whether it is a formal military or other entity.32 Girls are often given up for use in armed conflict to increase their marriage prospects.33 Other children have been abandoned by their parents out of desperation in a poverty-stricken economy. Sometimes extended family has given up children they are unable to care for because parents have died either by disease or as part of the conflict. Still, other children might have been literally sold into the service for profit.34 How children enter into the service of an armed group can have a significant impact in the prosecution of a perpetrator for two reasons. First, peoples idea of legitimacy varies by cultures, political structures, and local history.35 If a society views child soldiers as acceptable, any attempt at prosecution may be met with hostility and, at the very least, confusion and disapproval. Second, it has been a point of debate whether recruitment must be by force in order to be punishable. The answer to such a question could have a significant impact on who is determined to be a potential violator. An expansive interpretation could be construed to include parents who give their children into service in addition to military recruiters. Whether the interpretation is narrow or broad, monitoring the recruitment tactics will be very challenging. A parallel consideration is whether someone can be punished simply for knowledge of the use of child soldiers when it is within his or her power to stop it. Neither of these questions has an obvious right answer. There will be ramifications no matter what is decided. It is possible that different entities may settle on different answers. There may be a creative solution to allowing for the facts of particular situations to influence the prosecution decisions. It is important that, whatever the decision may be, both the international and
32 33

Yoong, supra note 15, at 7. Id. 34 See Human Rights Watch, Sold to Be Soldiers: The Recruitment and Use of Child Soldiers in Burma (2006), available at http://www.hrw.org/reports/2007/burma1007/index.htm. 35 Lamborn, Alan C. & Joseph Lepgold, World Politics Into the Twenty-First Century: Unique Contexts, Enduring Patterns 381 (1st ed. 2003).

local community views it as legitimate. 4. Gravity Threshold A gravity threshold simply asks whether the situation at hand has risen to a level sufficient to warrant international intervention. In other words, has the use and recruitment of child soldiers reached such a level as to validate some level of interference by the global community. There are various components to consider when examining whether a threshold has been met. First, is it necessary that the use and recruitment of child soldiers surpass a certain tolerance in and of itself or can the situation as a whole warrant attention for human rights violations? Second, how will a threshold adapt for different types of involvement, such as intervention by the United Nations and private organizations as compared to the ICC? Establishing a gravity threshold is important for several reasons. First, countries and other actors want to be sure that their involvement will be perceived as legitimate. Second, establishing a gravity threshold ensures that international action does not usurp the role of possible national criminal prosecutions. The drafters of the Rome Statute recognized this problem. In an effort to address it, several precautions were taken. The Rome Statue specifically established the ICC as complementary to national judicial systems.36 Also, the ICC was given limited jurisdiction over only the most serious crimes at an international level.37 Finally, the drafters included various procedural safeguards in Article 17 that would allow the Court to reject jurisdiction on grounds of insufficient gravity.38

36

Rome Statute of the International Criminal Court, Article I, 17 July 1998, available at http://untreaty.un.org/cod/icc/statute/romefra.htm. 37 SCouto, Susana & Katherine Cleary, The Gravity Threshold of the International Criminal Court, 23 Am. U. Intl L. Rev. 807, 808 (2008) (jurisdiction is limited to crimes of genocide, crimes against humanity, war crimes, and crimes of aggression). 38 SCouto, supra note 37, at 809 (this was also seen as a method for the court to manage its caseload and resources, but indicates the framers intent that the ICC be limited in its application).

A primary concern of international actors is to maintain the sovereignty39 of a nation, especially those whose status is imperiled by conflict. International concern about an appropriate response may be slightly less complicated if there has been a declared war.40 If that has been done, then there is often general acceptance that the laws of armed conflict apply. It is important to note that the use and recruitment of child soldiers is consistently classified as a war crime.41 A war crime is defined as a grave or serious violation of the customs of war, now commonly referred to as international humanitarian law.42 Other nations can determine their responses within the context of war when there has been some sort of designation, and therefore have an idea of how it will be accepted by other international entities. However, when a nation is in the midst of a conflict in which international humanitarian law does not apply, the situation becomes more precarious.43 Historically, international human rights law only applies during time of peace.44 There is a need now for law that applies in times of declared war, which is increasingly uncommon, as well as in times of peace.45 Clarifications and expansions are being made in the details of relevant language in order to adapt to the worlds changing perception of conflict. As this continues to happen, the key goal is to ensure there is at least some type of law that will be available for potential individual prosecution.46
39

Janis, Mark W., An Introduction to International Law 186 (4th ed. 2003) (a sovereign state is one that is free to independently govern its own population in its own territory and set its own foreign policy.) 40 deThan, Claire & Edwin Shorts, International Criminal Law and Human Rights 124 (1st ed. 2003) (stating that this term has expanded to include unresisted military occupation, occupation following hostilities, and non-international armed conflicts). 41 Rome Statute supra note 36, at Article 8 War Crimes, section (2)(b)(xxvi); Article 8 War Crimes, section (2)(e)(vii) 42 de Than, supra note 40, at 117. 43 deThan, supra note 40, at 124 (IHL does not apply in situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature). 44 Id. 45 Id. 46 Id. (demonstrating that the Rome Statute says if there is a protracted [non-international] armed conflict between governmental authorities and organized armed groups or between such groups international humanitarian law (and in particular, the rules on war crimes will apply).

Defining a gravity threshold is a rather elusive task in itself. Even if crimes are specified, the necessary severity of those crimes becomes the next step. It can be difficult to ascertain the gravity of a situation happening entirely on an internal level or in the midst of a complex and dangerous situation. Many countries and private organizations are ill equipped to know the number of children being used in a soldier capacity. The widespread use and recruitment of child soldiers is hard to recognize until it reaches some indeterminate climatic level. Because intervention can often be met with equally strong praise and criticism, many nations are hesitant to get involved too soon, and when they do, it is often too late for many children.47 5. Sources of Law for the Protection of Children in Armed Conflict There is certainly no shortage of available law to punish the recruitment and use of child soldiers. This body of law can be broken down into two overarching categories: customary and explicit. The customary aspect refers to the area of jus cogens, i.e. the compelling law.48 The explicit law varies, but provides an assortment of written options for many possible entities to punish perpetrators. This category includes written forms of legislation, such as international treaties and protocol, domestic statutes, and UN resolutions. Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation and binds nations that have not dissented from the rule while it was developing.49 Crimes that fall under customary international law, but are of a higher status are part of jus cogens because they are viewed as the most important norms of international law.50 It is widely accepted that crimes at this level threaten the security, peace or
47

Janis, supra note 39, at 191. See also B. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (2002) (discussing the debate about the legality of humanitarian intervention). 48 deThan, supra note 40, at 9. 49 Abrams, supra note 7, at 107 (citing Restatement (Third) Foreign Relations Law of the United States 102 & cmt d). 50 International Tribunal for the Prosecution of Persons Responsible for Serious

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essential values of society as a whole and thus stand to be redressed by the international community as a matter of urgency.51 There is not agreement as to what crimes reach such a level, but war crimes are routinely included.52 Explicit international law is, for purposes of this paper, referring to a general category of written agreements either by states themselves, or on an international level. First, the Convention on Rights of the Child (Convention) was unanimously adopted by the United Nations General Assembly,53 and has become the most widely ratified human rights treaty in history.54 It is the first international instrument to comprehensively cover childrens civil, political, economic, social and cultural rights.55 The Convention provides in Article 38 that States party shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities. It also prohibits recruitment of children under the age of fifteen and calls for states to protect and care for children who are affected by armed conflict.56 Although the Convention itself creates no authority to compel nations to comply with its terms and imposes no sanctions for noncompliance,57 it is still influential in the course of punishing those who perpetrate child soldiers. It demonstrates a widely held international belief
Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgement, 10 Dec. 1998, at 153, available at http://www.un.org/icty/furundzija/trialc2/judgement/fur-tj981210e.htm (Because of the importance of the values [the rule against torture] protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even "ordinary" customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.) 51 deThan, supra note 40, at 10. 52 Id. 53 Abrams, supra note 7, at 98 (this action was taken in 1989). 54 Abrams, supra note 7, at 97. 55 Abrams, supra note 7, at 98. 56 Convention, supra note 6, at Article 38. 57 Abrams, supra note 7, at 106.

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that using children as soldiers is not to be tolerated. The Convention created the Committee on the Rights of the Child (Committee) in an effort to stress conformity with the principles. Each ratifying State has a member on the Committee, and it is required that they all file a detailed compliance report within two years of ratification and every five years thereafter.58 The United States has not ratified the Convention as a whole, but it has ratified two optional protocols.59 The first is the Optional Protocol on the Involvement of Children in Armed Conflict, signed in 2000.60 It outlaws compulsory recruitment of children under eighteen into armed forces, and creates additional burdens states party must meet to ensure service is voluntary for those under eighteen.61 It also requires nations to take all feasible measures to insure that members of their armed forces under eighteen do not take a direct part in hostilities.62 The second optional protocol protects children under eighteen from sale, child pornography and child prostitution.63 While the second protocol does not directly address child soldiers, it can assist in charging perpetrators who are also engaging in sale or prostitution of the child soldiers. The world has repeatedly provided other legislation against the use and recruitment of child soldiers. The International Labour Organization Convention 182 adopted the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour in 1999.64 The African Union has also developed a regional level agreement, the African Charter on the Rights and

58 59

Id. Abrams, supra note 7, at 99. 60 Optional Protocol on the Involvement of Children in Armed Conflict (2002), available at http://www.unhchr.ch/html/menu2/6/protocolchild.htm. 61 Optional Protocol, supra note 60, at Article 3. 62 Optional Protocol, supra note 60, at Article 38(2). 63 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (2000), available at http://www.unhchr.ch/html/menu2/dopchild.htm. 64 International Labour Organization Convention 182, Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (1999), available at http://www.un.org/children/conflict/keydocuments/english/iloconvention1828.html.

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Welfare of the African Child, also in 1999.65 Of course, the Geneva Conventions, originally passed in 1949, and its Additional Protocols66 are imperative for providing a foundation to the treatment of all parties in various types of armed conflict.67 The most recent of all global agreements relating to child soldiers was the international coalition gathering in Paris, France in 2007, which resulted in the Paris Principles.68 This body came up with two ways to address the issue: (a) build a serious international commitment to abolish the practice, and (b) make sure that commitment is translated into real, ongoing protection for children and families as they reintegrate into society.69 An overarching plan such as this is important in reminding nations of their promises and strongly encouraging compliance through accountability. National laws can also be used to prosecute individuals.70 Some countries may have domestic laws specifically prohibiting the use and recruitment of child soldiers. For example, the United States passed the Child Soldiers Accountability Act of 2008, which was recently signed into law by President George W. Bush on October 3, 2008.71 Existing national laws may not be
65

African Charter on the Rights and Welfare of the African Child (1999), available at http://www.africaunion.org/official_documents/Treaties_%20Conventions_%20Protocols/A.%20C.%20ON%20THE %20RIGHT%20AND%20WELF%20OF%20CHILD.pdf. 66 Geneva Conventions and Their Additional Protocols (1949, 1977), available at http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions. 67 See Ball, supra note 2, at 187 (providing a summary of the various aspects of the Geneva Conventions and Additional Protocols). 68 Paris Principles (2007), available at http://www.diplomatie.gouv.fr/en/IMG/pdf/Paris_Conference_ Principles_English_31_January.pdf. 69 Suffering, supra note 17. 70 Some national laws adopt customary international law, which makes prosecution for use and recruitment of child soldiers easier in theory. The Supremacy Clause in the United States Constitution allows customary international law to supersede inconsistent state law or policy. The United States Supreme Court does not often include international law positions in its opinions, but has recognized its importance in some key areas. For example, in Roper v. Simmons, 543 U.S. 551, 578 (2005), the Court found the Eighth Amendment and Fourteenth Amendment forbid imposition of death penalty on offenders who were under 18 when they committed their crimes, saying it was proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty. See also Abrams, supra note 7, at 108. 71 Press Release, White House, President Bush signs . . . S.2135 . . . Into Law, available at

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directly on point, but most countries likely will have something applicable, such as child employment restrictions or kidnapping. The problem with national laws is that countries in a state of conflict may not be in a position to judicially enforce such laws through prosecution. 6. Objective in Prosecuting Perpetrators The international community has chosen to address impunity for human rights violations, including the use of child soldiers, primarily through criminal prosecutions.72 It is important to decide what the objectives, or purposes, are going to be for the prosecution. There are many traditional objectives available, but this is an area where room remains for creative collaboration. Focusing the prosecution on a visionary combination of objectives will determine such things as who is charged, where the trial, if there is one, is held, the involvement of victims and families in the process, and the sentence. How the actual prosecution is conducted can have lasting effects on future legal developments and healing for both countries and victims. Some objectives will overlap and serve as overarching umbrella themes during prosecutions. Victims are entitled to justice. Offenders deserve punishment. The world needs to establish a historic record of major international crimes, if for no other reason that to establish the truth and to educate future generations. Maybe then we can deter potential criminals and avoid the repetition of those crimes. Otherwise, we are condemned to repeat the mistakes of the past.73 An example of one such theme is promoting progress in human rights. A trial can be conducted on a foundation of recognizing rights already espoused. Criminal prosecution of an individual for using child soldiers is a significant international breakthrough. Acknowledgment by the international community is paramount no matter how the details are carried out, so long as they are
http://www.whitehouse.gov/news/releases/2008/10/20081003-9.html. 72 Oko, Okechukwu, The Challenges of International Criminal Prosecutions in Africa, 31 Fordham Intl L.J. 343, 347 (2008) (discussing options for dealing with divergence in achieving accountability). 73 Bassiouni, Cherif, An Idea Whose Time Has Come, International Criminal Court Monitor 12 (July/August 1996), available at http://www.iccnow.org/documents/monitor01.199607.pdf.

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legitimate. The media and positive government attention to such efforts will help reinforce this goal. A parallel theme is developing a historical record. A trial and its results can serve as a reminder so the world does not forget the atrocities surrounding child soldiers. Prosecution can commemorate the day that a government, international community, or the ICC stood up to say that recruiting and using child soldiers is unacceptable.74 Deterrence is a common objective in virtually every criminal prosecution, regardless of the political system in which it is conducted. As the result of a prosecution, the international community would be on notice of what penalty has been established for the crime of recruiting and using child soldiers.75 Of course, people, and particularly future possible perpetrators, must know about the result of a prosecution. In order for deterrence to be effective, it is critical for the prosecution itself to be accepted as legitimate. This can cover a variety of aspects of the prosecution, including the evidence, witnesses, sentencing, or any other component that could be perceived as affecting the validity of the outcome. If people see and believe that the process was fair, then deterrence may help protect some children from becoming soldiers in the future. Retribution is another alternative in a criminal prosecution. It establishes personal responsibility for violations. The commonly accepted proposition is that those convicted should suffer in proportion to the suffering they have caused their victims.76 This is the typical designation of most national criminal law systems, as it also will generally remove the perpetrator from society as part of the judgment. Because this approach has been followed historically, and because a trial for use and recruitment for child soldiers will likely have favorable public support, retribution is an option that will not likely encounter much opposition.
74 75

Janis, supra note 39, at 284. Janis, supra note 39, at 283. 76 Lamborn, supra note 35, at 396.

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Rehabilitation or restoration is an objective that focuses on healing. It seeks to make victims whole.77 For some children, this may mean some type of involvement in the trial, which may include giving a deposition-like statement, or testifying. It may include participation in a group commemorative process. Traditional avenues may also be necessary, such as therapy, for dealing with conditions like Post-Traumatic Stress Disorder. It is important to remember that these children are dealing with witnessing, and possibly committing, atrocious acts of violence. The emotional effect has likely been debilitating. These children, who may now be adults, need to learn how to function in society. There may also be physical injury requiring appropriate medical treatment. Girls who were forced into motherhood and now have rebel babies need assistance in caring for these children. A system focused on rehabilitation pays closer attention to these other societal issues as part of the trial approach. The degree of involvement victims have in the process will vary depending on the particular situation. In the case of recruitment and use of child soldiers, the sheer number of victims may make this level of interaction difficult logistically. Also, depending on who the defendant is and where the case is brought, a confrontation may not be emotionally beneficial to the children. A whole country may need to go through a healing process in addition to, and along with, the victims. Restorative justice is a concept that embraces accountability without vengeance.78 An example is the South African Truth and Reconciliation Commission.79 Particularly in situations where thousands of children and a country have been going through an armed conflict, this approach can be necessary in working towards social peace. A national apology may be

77 78

Id. Id. 79 Id.

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appropriate after the conflict has been resolved.80 Depending on the particular facts of a situation, this may be a creative tool to use in the context of healing a generation. Restorative justice may also come in the form of money or supplies. Article 75 of the Rome Statute specifically deals with reparations to victims, which includes restitution, compensation and rehabilitation. The Court is given fairly broad authority to award appropriate reparations to, or in respect of, victims.81 Also, the countries that have ratified the ICC have established a voluntary trust fund for victims, with disbursements overseen by a Board.82 When the average person thinks about holding someone criminally responsible, it sounds like a job for lawyers and judges. While they are correct, healing the wounds left by situations involving child soldiers may benefit from a more collaborative framework. There is an opportunity to create a sort of team that encompasses the needs of children, families, and the nation. That is why it is significant not only to have lawyers involved, but also government officials and spokespersons, the media, and counselors. In many judicial systems, lawyers act as advocates for the victims, the social good, and for the defendant. The judge is there to ensure a fair trial. It is important however, that the victims and the world recognize the importance of such proceedings to assist in obtaining a just outcome. It is part of the healing process to place responsibility on those who are rightfully culpable. Defining the objectives in prosecuting an alleged perpetrator of child soldiers is imperative in developing a consciousness in the world about the plight of children in societies of conflict. The

80

Modern examples of national apologies include the Australian and Canadian governments apologizing to indigenous groups for persecution suffered at the hands of the government historically. See [Prime Minister] Cites Sad Chapter in Apology for Residential Schools, CBCNews.ca (8 June 2008), available at http://www.cbc.ca/canada/story/2008/06/11/aboriginal-apology.html; also Apology to Australias Indigenous Peoples (13 February 2008), available at http://www.pm.gov.au/media/Speech/2008/speech_0073.cfm. 81 Rome Statute supra note 36, at Article 75(2). 82 International Criminal Court Victims Trust Fund, available at http://www.icc-cpi.int/vtf.html.

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objectives will set a path for beginning to help these children and their countries recover from being victimized. Many of the objectives explored above will overlap, leaving space for imaginative alternatives. Approaches to criminal prosecution will appropriately vary in order to take account of differences in societies.83 7. Legal Challenges of Prosecution At a very basic level, the crime consists of actively recruiting and using children during an armed conflict.84 Once a situation arises, however, the reality is that prosecuting such a crime in the face of many defenses is not as straightforward as it may seem. There are considerable complexities in prosecuting due to defenses and immunities. The international community has not agreed on issues such as sentences and who should be considered an appropriate defendant. Finally, there are a number of alternatives available for venues and obtaining jurisdiction. a. Defenses and Immunities Articles 31 and Article 32 of the Rome Statute have instituted a list of available defenses, including mental disease or defect, intoxication, self-defense, duress, and mistake negating mens rea. Superior orders and prescription of law have been specifically excluded as possible defenses under Article 33. The position of the ICC differs slightly from previous ad hoc tribunals, which allowed consideration of superior orders.85 Foreign sovereign immunity, the act of state doctrine and diplomatic immunity are prevailing immunities considered for international affairs.86 Maintaining friendly relations is the
83

Oko, supra note 72, at 353 (noting that causes of violence in Africa differ from behavior in more developed nations, and can be difficult to address in criminal trials). 84 Rome Statute, supra note 36, at Article 8, 2(e)(vii) and Article 8, 2(b)(xxvi) ([f]or the purpose of this Statute, war crimes means . . . other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, [including] . . . conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.) 85 deThan, supra note 40, at 10. 86 Janis, supra note 39, at 347-362.

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theory underlying foreign sovereign immunity.87 However, this immunity is unlikely to be recognized if there is a prosecution for the war crime of use and recruitment of child soldiers, as relations have probably been harmed already. The act of state doctrine is not technically an immunity, but rather indicates that deference should be given to the public acts of foreign states done within their own territories.88 This doctrine is also unlikely to be a deterrent to prosecution, as the use and recruitment of child soldiers has likely reached a threshold level that will overcome such deference. Diplomatic immunity is customary international law that screens foreign diplomats from jurisdiction.89 Appropriately, the framers of the Rome Statute have completely removed the shield of diplomatic immunity.90 The Statute applies equally to all persons without any distinction based on official capacity.91 It goes even further by saying, immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a crime.92 b. Defendants Although the elements of a crime traditionally implicate the defendant, in the world of international criminal law it can sometimes operate in reverse. By deciding the breadth of who should be held responsible, laws can be written to reflect those decisions. The international community has already begun to determine whom it wants to hold responsible for such atrocious crimes. This approach has the benefit of identifying realistically enforceable standards of who will possibly be regarded as a defendant. Historically, the use of child soldiers has been used in settings
87

Janis, supra note 39, at 347 (this immunity has been codified in the Foreign Sovereign Immunities Act of 1976). 88 Janis, supra note 39, at 353. 89 Janis, supra note 39, at 360. 90 Rome Statute, supra note 36, at Article 27. 91 Rome Statute, supra note 36, at Article 27(1). 92 Rome Statute, supra note 36, at Article 27(2).

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on a larger scale. Holding potentially hundreds or thousands of people responsible for human rights violations may not be appropriate or possible.93 Individuals were not held individually accountable for crimes against humanity at an international level until after World War II in the esteemed Nuremberg Tribunal.94 Today, the world is more willing to hold individuals liable for crimes committed on a grander scale. The Rome Statute provides that a person may be criminally liable for crimes committed jointly, for ordering or inducing the commission of a crime, or for aiding it is commission or attempted commission.95 In a provision that allows for an even broader interpretation, the Rome Statue indicates responsibility for those who contribute to the commission or attempted commission of such a crime by a group of persons acting with a common purpose.96 This inclusive language will allow recruiters, trainers, and national leaders to be considered possible defendants for prosecution. In yet another demonstration of the many different levels of complexity surrounding child soldiers is the issue of what to do with the children who commit atrocities while serving as a soldier. These children might have even recruited other child soldiers. The ICC has specifically excluded jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.97 Some communities may impose a local form of justice. The current tendency seems to be against punishing these children or holding them criminally responsible. There is not yet a consensus, however, in the international community regarding the appropriate manner in which to deal with their offenses. c. Venue
93

Amstutz, Mark R., Is Reconciliation Possible After Genocide: The Case of Rwanda, 48 J. Church & St. 541, 554 (2006). 94 deThan, supra note 40, at 273, 315. 95 Rome Statute, supra note 36, at Article 25(a) (c). 96 Rome Statute, supra note 36, at Article 25(d). 97 Rome Statute, supra note 36, at Article 26.

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It is vital for nations to cooperate in choosing an appropriate venue, or location, for a prosecution. Each option will have its own unique advantages and downfalls. A lack of consensus may result in discouraging delays of the trial, which will influence the perceived and actual quality of the prosecution. The newest option is the International Criminal Court, established in 1998. There are many benefits of the ICC including its permanence, ability to prosecute individuals, and judicial independence.98 It has also been reserved for only the gravest humanitarian and human rights crimes committed globally. The ICC functions as complementary to national systems, covers internal conflicts as well as international, and operates independently from the United Nations. Additionally, the Chief Prosecutor for the ICC has the ability to initiate investigations on his own, and there is a detailed framing statute that requires the law be incorporated into member States.99 As a potential downside, because the ICC is relatively new, there are still questions as to how it will function in practice. Another option is the national court system of individual States. Assuming a national court has jurisdiction over recruitment and use of child soldiers, actually prosecuting a case can still be very difficult in the face of extreme opinions by the public or government. A State would have to invest major amounts of time, money, and diplomatic and political capital.100 Cooperation in obtaining evidence and witnesses could be problematic as well. If the defendant is a foreigner, the complications become even more challenging.101 Ad hoc tribunals are yet another venue possibility. A prime example is the Special Court
98

Sifris, Ronli, Weighing Judicial Independence Against Judicial Accountability: Do the Scales of the International Criminal Court Balance?, 8 Chi.-Kent J. Intl Comp. L. 88, 92 (2008) (discussing how judicial independence is vital to the concept of accountability and the ICC has established the appropriate degree of independence from both national judicial systems and the United Nations). 99 deThan, supra note 40, at 317. 100 Lamborn, supra note 35, at 398. 101 Id.

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for Sierra Leone, which first convicted offenders for recruiting and using child soldiers in 2007.102 However, these tribunals are not without criticism. The ad hoc tribunals have been too costly, too inefficient, and too ineffective. As a mechanism for dealing with justice in post-conflict societies, they exemplify an approach that is no longer politically or financially viable.103 Whether an ad hoc tribunal is an appropriate venue will depend on the situation and choices of the government after a conflict is over. d. Jurisdiction Jurisdiction is traditionally defined as the legal power or competence of states to exercise governmental functions.104 The source of jurisdiction is rooted in the concept of sovereignty. In the ever-evolving field of international law, this customary notion of how jurisdiction operates is adapting. In keeping with the proposition that prosecuting those who support the recruitment and use of child soldiers should be streamlined and more commonplace, the use of any of the following jurisdiction options is encouraged. Territorial jurisdiction is rooted in the idea of state sovereignty, because it stems from a governments right to act in response to events that happen within its boundaries.105 It is also known as subjective jurisdiction, which means the subject, or actor responsible for the crime, gives the court authority over the event by being within the borders of the country. This is a universally accepted theory of jurisdiction and unlikely to be contested in the prosecution for use and recruitment of child soldiers. Jurisdiction can be gained as a result of the nationality of the defendant. Under this
102 103

Groome, supra note 27, at 400. Zacklin, Ralph, The Failings of Ad Hoc International Tribunals, 2 J. Intl Crim. Just. 541, 542 (2004) (quoting the U.N. Assistant Secretary-General for Legal Affairs expressing views shared by scholars and human rights practitioners). 104 Janis, supra note 39, at 318. 105 Id. (discussing the importance of territorial sovereignty as a result of the Peace of Westphalia in 1648).

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principle, States laws are applied extraterritorially to its citizens, individuals or corporations.106 The principle underlying this commonly acknowledged theory is that a state should have jurisdiction over the activities, interests, status, or relations of its nationals outside as well as within its territory.107 Other theories of jurisdiction are much more controversial. Jurisdiction based on effects, for example, is grounded on the principle of territorial jurisdiction.108 It provides that a State has authority over extraterritorial conduct when that conduct has an effect within its territory.109 It is also known as objective jurisdiction, in the sense that it is the object of conduct that is its realm.110 A similar form of effects jurisdiction is the protective principle. It targets extraterritorial conduct directed against crucial State interests, especially State security.111 The passive personality principle allows jurisdiction when acts affect, not the national territory, but subjects of the state now asserting authority.112 These principles may be useful in prosecuting perpetrators of child soldiers in distinctive factual situations where neighboring countries want to bring a legal action that other States are unwilling to do.113 Finally, the universality principle of jurisdiction is defined as providing every state with jurisdiction over a limited category of offences generally recognized as of universal concern, regardless of the location of the offense and the nationalities of the offender and victims.114 The

106

Janis, supra note 35, at 321 (explaining that the State possess the power inherent in its sovereignty over defendant because he or she is a citizen). 107 American Law Institute, Restatement (Third) of Foreign Relations Law of the United States 402(2) (1987). 108 Janis, supra note 39, at 322. 109 Id. 110 Id. 111 Janis, supra note 39, at 324. 112 Janis, supra note 39, at 325. 113 See Restatement, supra note 107, at Article 18. 114 Zahar, Alexander & Gran Sluiter, International Criminal Law 496 (1st ed. 2008) (internal citations omitted).

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defendant is considered a hostis humani generis, translated as an enemy of all mankind.115 Today, it is most common that this principle be used in reference to obtaining jurisdiction over those who commit human rights violations.116 e. Sentencing Sentencing issues can become points of contention in prosecutions at an international level. Societies have differing views of what is an appropriate punishment. Some nations have the death penalty, while others have strong opposition against it. However, the Rome Statute prohibits capital punishment.117 Where a sentence of imprisonment would be served and for how long will need to be discussed and resolved. The framers of the Rome Statute laid out States roles and enforcement guidelines in the event of imprisonment so that nations would be aware of possibilities before ratifying.118 Sentencing is an aspect of the prosecution that does not necessarily have a right answer and therefore remains highly contentious. A criminal justice system needs to be set up so that cases can be tried sooner and faster while still taking necessary precautions. The consequences of child participation in armed conflict are absolutely appalling and infectious, so there needs to be an established and immediate response in dealing with those situations involving child soldiers. The world can no longer sit back and remark on how terrible a conflict is and then try to determine what to do with the perpetrators. 8. International Criminal Court A prominent criticism of the United Nations has always been that it lacks enforcement

115

Janis, supra note 39, at 325 (citing a U.S. case, Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980), that compares torturers to the traditional hostis humani generis of pirates and slave traders). 116 Id. 117 Rome Statute, supra note 36, at Article 78(3). 118 See Rome Statute, supra note 36, at Article 103 Role of States in enforcement of sentences of imprisonment, Article 105 Enforcement of the sentence, and Article 106 Supervision of enforcement of sentences and conditions of imprisonment.

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mechanisms.119 There are almost no real penalties for violations of the systematic human rights that have been highlighted by the organization.120 A major reason for the creation of the ICC was to have an established court to take on such complicated cases involving many issues in international criminal law. Once the ICC has a few cases finished, the world and the ICC itself will gain a clearer understanding of how to prosecute complicated and high profile, high-stakes crimes, such as recruitment of child soldiers. Of the current situations in front of the ICC, there are two dealing with the crime of use and recruitment of child soldiers.121 The Democratic Republic of the Congo (DRC) was a situation referred to the ICC after a war in Africa involving eleven nations lasting from 1998-2002.122 In March 2006, Chief Prosecutor Luis Moreno-Ocampo announced an indictment against Thomas Lubanga Dyilo, the founder and leader of the Union of Congolesee Patriots.123 The Lubanga trial is the first war crimes trial to focus exclusively on punishment for recruiting and using child soldiers.124 DRC has also had a parallel national prosecution and conviction for recruitment and use of children in armed conflict of Major Jean-Pierre Biyoyo of the Mudundo Forty armed group by the National Military Tribunal in South Kivu.125 Depending on how this seminal case is handled, the result could serve as legitimizing the

119 120

Lamborn, supra note 35, at 390. Id. 121 This paper will only address the situation in the Democratic Republic of the Congo. For more information on other situations currently before the ICC, please visit http://www.icc-cpi.int/home.html. 122 Press Conference in relation with the surrender to the Court of Mr. Thomas Lubanga Dyilo, Statement by Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court (18 March 2006), available at http://www.icccpi.int/library/organs/otp/speeches/LMO_20060318_En.pdf. 123 Id. 124 Groome, supra note 27, at 401. 125 United Nations, Office of the Special-Representative of the Secretary-General for Children and Armed Conflict, Actions (last visited 8 November 2008), available at http://www.un.org/children/conflict/english/actions.html.

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ICC. The Court has already faced several questions of law and procedure regarding the case.126 For example, the ICC ruled that there was no need to establish actual knowledge of the violated statute by the defendant, following the traditional common law rule that ignorance of a law is no defense.127 The ICC also held that voluntary enlistment is not a defense.128 Resolving questions of first-impression will clarify the course for future prosecutions. 9. Cooperation To successfully prosecute defendants, there is a strong need for judicial cooperation both in choosing a venue and recognition and enforcement of the judgments of foreign courts. Due to the nature of armed conflict, which often has people from many countries involved and extensive ripple effects, it is likely that many countries would be able to assert some type of jurisdiction over potential defendants. This cooperation is best clarified by the principle of erga omnes, which are obligations owed towards all other members of the international community and result from the breach of correlative rights, or rights violated by crimes that have achieved the level of jus cogens.129 Comity is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.130 It is time for the same recognition to be given to international courts, as has been happening with the International Court of Justice. Another important reason for comity is not only respect for foreign or international courts,
126

See Weigend, Thomas, Intent, Mistake of Law, and Co-Perpetration in the Lubanga Decision on Confirmation of Charges, 6 J. Intl Crim. Just. 471 (2008) (providing an overview of the particular questions the Pre-Trial Chamber has answered in the Lubanga case). 127 Groome, supra note 27, at 401. 128 Id. 129 deThan, supra note 40, at 10 (quoting from the Furundzija judgment, para. 151). 130 Janis, supra note 39, at 327, citing Hilton v. Guyot, 159 U.S. 113, 163-64 (1895).

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but also recognition of judgments.131 This acknowledgment solidifies the principle of res judicata, a thing already decided.132 A prosecution will only be possible if a venue receives assistance in extradition, investigation, fact-finding and gathering evidence. The framers of the Rome Statute recognized the immense importance of such cooperation and devoted an entire section to ensure compliance by ratifying States.133 10. Role of the United Nations As an umbrella entity, the basic function of the United Nations (UN) is promotion of human rights within appropriate forums.134 For all of its advantages, however, [t]he United Nations is an inter-governmental body. It is made up of member states, and it can only be as effective as its member states allow it to be.135 Fortunately, member States are facilitating the use of the UN in various capacities that all contribute towards ending the use and recruitment of child soldiers. The different roles adopted by the UN include conflict prevention, increasing global awareness, lobbying for international standards, research and monitoring. The UN is viewed today as a pseudo-global government with foundations in such admirable ideas as peace, cooperation, and harmony. Therefore, general prevention of the conflicts is an important role for the UN. Although the criminal process is an important tool, it cannot resolve many of the causes of conflict alone.136 Logic dictates that if there are fewer conflicts, there are going to be less child soldiers. The UN Security Council has been systematically engaged by member States and entities, resulting in the repeated placement of children and armed conflict on
131 132

Janis, supra note 39, at 339. Id. 133 Rome Statute, supra note 36, at Part IX. 134 Lamborn, supra note 35, at 382. 135 Statement by Secretary General Kofi A. Annan, Urging end to impunity, Annan sets forth ideas to bolster UN efforts to protect human rights (8 December 2006), available at http://www.un.org/News/ossg/sg/stories/statments_full.asp?statID=39. 136 Oko, supra note 72, at 350 (discussing systemic and environmental factors that have undermined the influence of international criminal prosecutions in Africa).

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the international peace and security agenda.137 The UN is not alone in this arena. The Chief Prosecutor for the ICC, Luis Moreno-Ocampo, has said that to make the world a better place, we must teach young people everywhere how to deal with conflict better. For the ones passionate about peace and justice, we must give them the ideas and the skills to make a difference.138 There are a variety of collaborative methods available, including alternative dispute resolution, mediation, and peacekeepers. The UN can continue to act as a neutral resource for providing tools of peace to prevent armed conflict. The UN has been crucial in developing and strengthening international norms and standards for the protection of children.139 Because the UN does not have political interests in the same way that countries do, the organization can advocate and lobby for human rights in a different manner than administrations.140 Officials can engage countries, individuals, other nonand inter-governmental organizations, and even celebrities.141 The UN also serves as an established forum for human rights discussions, where issues can be debated, international standards can be set, and those standards are then publicly disseminated.142 Raising awareness among constituents can create domestic pressure on foreign heads of state to stand against the use of child soldiers.143 Technological advancements and an increasing interconnectedness politically, economically, and even culturally144 have opened up the world to view abuses such as recruitment of child soldiers. In the increased connectivity of the age through
137 138

UN Actions, supra note 125. Seibel, David G. & Julia Gegenheimer, Tomorrows Peacemakers: How to Encourage the Next Generation of Conflict Management Professionals, Dispute Resolution Magazine, Spring/Summer 2008, at 55. 139 UN Actions, supra note 125. 140 Lamborn, supra note 35, at 382. 141 UN Actions, supra note 125. 142 Lamborn, supra note 35, at 382. 143 Lamborn, supra note 35, at 392. 144 See Sterio, Milena, The Evolution of International Law, 31 B.C. Intl & Comp. L. Rev. 213 (Spring 2008) (discussing the reshaping effect of globalization on international law, including human rights).

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Internet and 24-hour news channels, there is little shortage of information.145 The effectiveness of international criminal prosecutions depends on support from the public in order to be successful.146 The broadening of the global circle of stakeholders and action on children and armed conflict through strategic and concerted advocacy has been critical in [advancing the plight of child soldiers].147 The UN has played an essential role in raising awareness and must continue to do so. The UN Security Council has been important in providing awareness to the issue of child soldiers. First, the UN Security Council has passed Resolutions regarding child soldiers in 1999, 2000, 2001, 2003, 2004, and 2005.148 Secondly, a significant step occurred in establishing a Special Representative of the Secretary-General for Children and Armed Conflict to coordinate a UN approach to this problem.149 Currently, this position is held by Radhika Coomaraswamy of India, who presents periodic reports to the General Assembly regarding the status of child soldiers around the world, as well as conducting country visits.150 This office also serves to coordinate efforts made by various branches of the UN and centralize information and statistics regarding children and armed conflict. Research and monitoring is another important function of the UN.151 In some situations, the simple presence of observers on country visits may deter flagrant violations.152 Timely knowledge
145

See Coalition to Stop the Use of Child Soldiers at www.child-soldiers.org for ways to get involved and raise awareness. 146 Oko, supra note 72, at 354 (discussing Africas historically low public and state government support of international criminal prosecutions due to negative attitudes towards the West). 147 UN Actions, supra note 125. 148 United Nations, Engagement of the Security Council on Children and Armed Conflict (last visited 11 November 2008), available at http://www.un.org/children/conflict/english/security-council.html. 149 See Office of the Special Representative of the Secretary-General for Children and Armed Conflict, available at http://www.un.org/children/conflict/english/index.html (providing information on the duties and actions undertaken by this position). 150 Niles, Chris, UNICEF, Child protection from violence, exploitation and abuse, Machel plus 10 review says war becoming even more dangerous for children (17 October 2007), at http://www.unicef.org/protection/index_41265.html (discussing new developments in the use and recruitment of child soldiers, as well as responses by the international community) 151 Lamborn, supra note 35, at 384. 152 Id.

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of the abuses against children allows for the UN, particularly the Special Representative, to call for swift action by the international community. Also, the information gathered by observers and peacekeepers is often used later on for reports.153 The UN has a role in the disarmament, demobilization, and reintegration of child soldiers.154 This is critical as a way to stop the cycle of violence, secure the long-term sustainability of interventions, and to support and invest in the capacity of national authorities to assume their lead responsibility.155 Major progress has been made in this area with the establishment of international norms, found in the Integrated Disarmament, Demobilization and Reintegration Standards of 2006 and the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups in 2007.156 The process will be different for each child, but generally includes building emotional trust, reconciling with family and community, providing access to education, and developing a means of livelihood.157 Programs that provide comprehensive health, legal and psychological care to both victims and their families have proven the most successful.158 In a fight to save children, everyone has a role and a responsibility. Some entities have filled their role better than others. There is no lack of written law against the use and recruitment of child soldiers. There has been, however, a failure in enforcement up to this point. Depending on the country in violation, political situations can be delicate. Particularly, dealing with criticism of
153

Office of the Special Representative of the Secretary-General for Children and Armed Conflict, The Office (last visited 1 November 2008), at http://www.un.org/children/conflict/english/machel10.html (providing examples of such reports, which include the Machel Study in 1996, and its Ten Year Review, released in 2007). 154 Coalition to Stop the Use of Child Soldiers, DDR (2007), available at http://www.childsoldiers.org/childsoldiers/ddr (providing a general overview of DDR and its funding through memorials). 155 Office of the Special Representative of the Secretary-General for Children and Armed Conflict, Incorporation of best practices in disarmament, demobilization and reintegration programmes for children (2008), at http://www.un.org/children/conflict/english/ddrforchildren.html. 156 Id. 157 Id. 158 Id.

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how a state treats its people tends to raise international emotional temperatures.159 There are always other issues that must also be attended to in addition to the use of child soldiers.

11. Related Problems The issue of use and recruitment of child soldiers is linked to a variety of other catalysts that lead into a collection of new problems. These other complications include child trafficking, which establishes links to elaborate international criminal networks.160 Furthermore, a link has unfortunately been established between child soldiers and landmines, which kill an estimated 8,000 10,000 children each year.161 There has also been a new twist or variation on arms trafficking and development to increase availability and provide smaller lightweight weapons for use by children.162 Underneath all of these issues are ever-changing international relations. There is a vital need for recognition by all countries of the importance of this problem. Unfortunately, the reality is that the use and recruitment of child soldiers has a certain amount of competition with concerns such as terrorism, international security, and nuclear proliferation. In a world based on intertwined relationships, however, solving some of these other problems will help prevent child soldiers. As is the case with ripple effects though, the opposite is also true. If these other problems continue to get worse, so will the use and recruitment of child soldiers. 12. Conclusion Child participation in armed conflict on any level is simply unacceptable. ICC Chief Prosecutor Luis Moreno-Ocampo stated, [f]orcing children to be killers jeopardizes the future of
159

Lamborn, supra note 35, at 394. Office of the Special Representative of the Secretary-General for Children and Armed Conflict, Situations of Concern (last visited 28 October 2008), at http://www.un.org/children/conflict/english/conflicts.html. 161 Id. 162 Id.
160

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mankind.163 Ideally, the use and recruitment of child soldiers would cease through preventive efforts. Until that can be done, there needs to be an effective system in punishing those who are responsible for such a horrific crime. The international community has begun to end impunity for the perpetrators, but there remains much more to be done. There are many levels of complexities in the issue. International criminal prosecutions will not solve the problem of use and recruitment of child soldiers alone, but it is a significant step. In sum, there is little hope for the future when children are being succumbed by conflict. They must be shown respect by the world for their human dignity by punishing those who preyed on them. One former child soldier asserts the desperate plea of her comrades all around the world saying, "I would like you to give a message. Please do your best to tell the world what is happening to us, the children. So that other children don't have to pass through this violence."164

163

See Press Conference, supra note 22 (indicating the first of many indictments in Africa for the use and recruitment of child soldiers). 164 Coalition, supra note 5 (as stated by a 15 year old girl who was abducted into the Lords Resistance Army in Uganda and forced to kill other children trying to escape).

32