This article first appeared on Le Temps on the 6th of May

How can child soldiers be tried for crimes committed as adults?

On the 6th of May, the judges of the International Criminal Court (ICC) will sentence Dominic Ongwen, a former Ugandan rebel commander and a former child soldier. His guilty verdict has already been handed down in February. The conviction raises questions. Few would dispute the extreme severity of Dominic Ongwen’s atrocities, detailed in 70 counts. But he was also abducted and recruited at the age of 9 or 10 by an extremely cruel armed group, the Lord’s Resistance Army, and for years endured possibly the worst that a child can endure in terms of violence and abuse. At the very least, the judges in The Hague will have to explain how, and to what extent, his nightmarish childhood as a child soldier can or should mitigate the many crimes committed in adulthood.

This is a highly topical issue. In 2021, 426 million children around the world are living in contexts of armed conflict. Deprived of their right to education, conscripted as child soldiers (and sometimes tried for war crimes for those who have grown up and continued to commit crimes), children are victims of war on many levels. They would have every right to assert their rights and be parties to proceedings before courts or UN mechanisms. Yet this is rare or non-existent. The recent report by Save The Children and Oxford University, “Advancing Justice for Children”, identifies the invisibility of children in both war and the judicial processes that sometimes follow as a major obstacle. Indeed, children do not carry weight as a collective, with little or no representation in either legal and political bodies or civil society organisations.

Some progress to highlight

Véronique Aubert Bell from Geneva is one of the world’s leading experts on the impact of war on children and has been working on this issue for 25 years. After many years with Amnesty International, she joined Save The Children and co-chairs a unique inter-agency coalition formed in 2010 to protect education from targeted attacks during armed conflict, “The Global Coalition to Protect Education from Attacks“. Since 2015, the coalition has developed “The Safe Schools Declaration”, an intergovernmental commitment signed to date by 107 states to protect students, teachers, schools and universities from harm during armed conflict.

It is crucial that ICC judgements are consistent with each other

But the most publicised aspect remains that of child soldiers. In this respect, both the judgments handed down by several chambers of the Special Court for Sierra Leone and the one issued by the ICC against Thomas Lubanga for crimes committed in the Democratic Republic of the Congo (DRC) have made progress in condemning these practices. According to Véronique Aubert Bell, who documented the crimes of recruitment of child soldiers in the Democratic Republic of the Congo (DRC) between 1998 and 2006, these convictions have led to a decrease in the recruitment of child soldiers in the DRC, or at least a reluctance to recruit the youngest among them. Switzerland is also participating in the effort to bring justice to the alleged crimes of child soldiers recruitment with the trial of former Liberian commander Alieu Kosiah before the Swiss Federal Criminal Court (FCC), which is expected to issue its judgment shortly. One of the charges brought by the Office of the Attorney General of Switzerland was the recruitment of a child soldier.

Conflicting judgements

One of the major challenges for justice is how to judge former children who are kidnapped and then recruited by armed groups and who often live a long nightmare of violence and abuse when, as adults, they become militia commanders themselves. For often the cycle of violence continues and they in turn commit atrocities against civilians, including children. The ICC judges, in the above-mentioned judgment against Thomas Lubanga, concluded that what child soldiers were subjected to during armed conflict was so atrocious that they could never function normally again, that they in fact remained child soldiers forever, and that their abused childhood defined their adult lives. Will they decide otherwise for Dominic Ongwen?

As expert Mark Drumbl points out on the blog “Justice in Conflict“, it is crucial that the ICC judgments are consistent with each other. The conclusion of these conflicting ICC rulings would then be that child soldiers, in addition to being victims of the crime of recruitment, have a duty to disobey. And that from the age of 18 onwards, they must suddenly be able to break free and behave differently from the authority figures around whom they have grown up and to whom they have had to obey for years. Such a conclusion will not help the cause of children caught up in wars.

One thought on “How can child soldiers be tried for crimes committed as adults?

  1. If the ICC intended to establish a new standard and status for child soldiers in armed conflicts then it has caused so much harm to international law which should protect children in armed conflicts and should have protected Ongwen. This judgement is a set back to international law and the protections afforded children in armed conflicts. Ongwen was abducted at the age of 9 and was charged and convicted as for crimes committed when he was an adolescent between 22 and 27 years. The Chamber did not explain the status of victim/perpetrator it ascribed to him. It found that the abduction of Ongwen at a young age was irrelevant to the case. That finding is an affront to the objectives of international justice and another slur on the image of the ICC. The Chamber ignored the Beijing rules and the recommendations of the Prosecutor in imposing its sentence. It must be reversed lest it comes to define the image of the ICC and compromise the efforts made to protect child soldiers victims world wide. Dominic Ongwen during his plea said that he was not the LRA and was not Joseph Kony who abducted him. The ICC by this Judgement has sacrificed him to compensate its inability to capture and bring Joseph Kony to book. If any one were doubt Dominic Ongwen, let it be Known that he was convicted in the essentially for indirect co-perpetration for his essential contribution to the crimes he committed in the context of a common plan or agreement with Joseph Kony and unspecified LRA commanders. In other words, he entered into an agreement to commit crimes with his abducted using the criminal structure that abducted, enslaved and indoctrinated him. This is international criminal justice on its head.

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