Victims or perpetrators? Claiming Protection and Refugee Status for Child Soldiers
Madalena Dória[1]
Introduction
Every year, thousands of children serve as child soldiers across the world. In 2019, some 7.747 children were verified as recruited and used as young as six years old. Among them, 90 per cent were used by non-State actors.[2]
Even though there is no agreed definition in international law, the term usually refers to any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls, used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities.[3]
Observing the situation of child soldiers, we come across a unique duality. On the one hand, they are still children and, therefore, vulnerable, impressionable, frequently irrational, and worthy of protection. On the other, they are soldiers.[4] The central question is whether these children, especially when involved in heinous crimes, are victims or perpetrators.
Legal Regimes
Despite the progress achieved with the provisions approved for protecting children in armed conflict, children keep being victims of grave violations of their rights and are still affected. The international legal framework developed by the international community to protect children from recruitment, albeit addressing both the criminal liability of the recruiters and the need for protection of these children, is insufficient.
Regarding the condemnation of the conscription of children, international criminal law and international humanitarian law[5][6] hold as follows: Rome Statute of the International Criminal Court recognizes in its Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) that conscription or enlistment of children under the age of 15 into armed forces or groups or their use in hostilities constitutes a war crime, entailing criminal responsibility.[7] At the same time, article 77(2) of Additional Protocol I and Article 4(3)(c) of Additional Protocol II state that children who have not attained the age of 15 years shall not take a direct part in hostilities.[8][9] The rule that states that children must not be recruited into armed forces or armed groups is also recognized under customary international law.[10]
The Convention on the Rights of the Child includes further provisions to protect children from taking part in armed conflict. Article 38(2) provides that “States Parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities”, and article 38(3) calls on States to refrain from recruiting children under the age of 15 into their armed forces. The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict raises the age concerning participation in hostilities to 18[11], prohibiting the compulsory recruitment of children under the age of 18 into the armed forces of States parties,[12] requiring States parties to raise the minimum age for voluntary recruitment from 15,[13] and prohibiting the recruitment or use in hostilities of persons under the age of 18 by armed groups.[14][15]
The Convention, being the most ratified human rights treaty, has an insufficient age limit by permitting the recruitment and participation in armed conflict of children who have attained 15. The Optional Protocol sets a higher age for participation in hostilities. However, it is not as widely ratified as the Convention.[16] Regarding non-state actors, article 4(1) states a moral rather than legal obligation for armed groups not to “recruit or use in hostilities persons under the age of 18 years”. Armed groups are not parties in treaties and, since they have not ratified them, there is no sanction if they do not comply.
The international criminal law framework suggests that only children under the age of 15 are victims of child soldier-related crimes committed by the adults who recruit and abuse them. Still, though, there is a grey area of children between the ages of 15 and 18 who are not formally perceived as victims of the specific offences but are nonetheless victims of a practice that violates their human rights.[17]
The minimum age of criminal responsibility varies between domestic systems. In Iraq, children linked to ISIS, as old as nine years old, have been prosecuted.[18]
Recruitment Practices
The dilemma of whether child soldiers are perpetrators or victims, in our opinion, can be clarified by observing the methodology of the recruiters.
To this discussion, the example of children recruited by ISIS can offer valuable insight since the practices of both children and their recruiters can be observed.
While there is no reliable data on the actual number of young people employed by ISIS, it is considered to have enlisted children in a systematic and organized manner[19] there are still reliable sources that describe the methods followed by the recruiters.
Their usual methods aim to either coerce or persuade children to join the war. These can be either forced – by kidnapping, beatings until submission or drug use- or voluntary. When voluntary, factors that play a significant role may be poverty, lack of economic and educational opportunities, or even a will to avenge the death of loved ones. Growing up in ISIS-held territories means living in intense and extreme conditions, with children exposed to multiple forms of violence, experiencing deaths, in some cases, even participating publicly in them.[20] This permanent exposure to a culture of violence leads to a desensitization of children. Additionally, the education system propagates the indoctrination and militarization of youth, being more vigilant to orphans and foreign children, to create the next generation of ISIS’ fighters.[21]
Raised in violence, child soldiers are often at the forefront of armed battles, causing massive displacements, being themselves brutalized and forced to commit heinous acts of violence and human rights abuses.[22] As such, these children are already victims from the start.
The recruitment of children by armed groups is always illegal. Hence, the prosecutions should focus exclusively on the recruiters.[23] All children under the age of 18 who become associated with parties to an armed conflict should be regarded primarily as victims. Also, children recruited and used in hostilities are often doubly victimized since they are may subsequently be detained for their former association with armed groups.[24]
The help for these children to rebuild their lives can come through disarmament, demobilization, and reintegration (DDR) programs. These programs contribute to security and stability in a post-conflict recovery context by removing weapons from the hands of combatants, taking them out of military structures, and helping them integrate socially and economically into society.[25] Still, some may face prosecution, even though the priority should be reintegration and rehabilitation,[26] especially in younger children, hence why the perception of these children as victims is essential.
These projects, moreover, are implemented only in the countries of origin. When these children flee to another country, an additional vulnerability emerges through the migratory experience.
Refugee Status
Often, child soldiers seek protection from persecution outside their country of origin. They recur to refugee law to regularize their status -a legal regime fierce against perpetrators of international crimes. Especially when involved in atrocities upon servitude, child soldiers are susceptible to a precarious life, whilst their traumatic experiences obstruct them from integrating with the host community and render them prone to gang recruitment.
Refugee law provides that, to receive refugee status, a person has to show that (s)he has a: “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”[27] Such an assessment is in general future-oriented but may also connect to past persecution.[28] This so-called ‘inclusion clause’ also applies to children fleeing armed conflict.
The persecutory factor, especially for countries with widespread child recruitment practices, either in the official military of the State or other armed groups, might be, among else, recruitment or re-recruitment of children. At the same time, children are not safe from other acts of persecution relating to the military service, such as (but not limited to) harassment, humiliation, psychological abuse, serious bodily and mental harm, and inhumane and degrading treatment.[29]
Participation in hostilities with the lawful military forces of the State, as we saw, is not prohibited for children between 15 and 18. However, this lack of prohibition leaves a grey zone for adolescents who may be ineligible for international protection. The assessment of their protection needs should be ad hoc, including concurrent dangers, as mentioned above.
Regarding the grounds for persecution, child soldiers may be eligible for international protection for any of the five reasons stated in the inclusion clause. In cases where children are systematically recruited, child soldiers (or future child soldiers) may also constitute members of a particular social group, with this social group being composed of “children from a particular country or region who, by reasons of their age are potential recruits”.[30][31]
At the same time, refugee law precludes perpetrators of international crimes from refugee status, even if they are subject to persecution. Article 1F(a) of the Refugee Convention, also referred to as the exclusion clause, states that refugee status “shall not apply to any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime, or a crime against humanity”.
In cases where children are perpetrators of international crimes, as in the cases of the DRC War or the Rwandan genocide, the dilemma reemerges. Is this child a victim or a perpetrator?
From a literal reading, it would appear that States must exclude persons suspected of committing international crimes from refugee status, and there is no distinction between children and adults.[32] As such, children have been, in practice, excluded.[33] Being excluded from refugee status practically means living a life in limbo, unable to work, raising a family, or benefiting from social security. A life in exclusion does not even allow the person to return to their country of origin. In our view, this fate may lead an already victimized child to neverending despair. In this sense, even when children commit international crimes, their victimhood should prevail, especially when prior victimization is proven. [34]
This argument is further validated when examining how these children were involved in atrocities. The discussion of exclusion proceedings showcased that it was usual for children to be under the influence of drugs or alcohol or acting under duress.[35]
Children should not be held individually criminally responsible if they are under the age of criminal responsibility established in national legislation since there is no minimum age settled in international criminal law. In cases of inconsistent national legislation, the same child soldier might legally qualify as a refugee in certain states while being excluded in others.[36] The emotional, mental and intellectual maturity of any child over the relevant national age limit for criminal responsibility has to be evaluated to determine whether the child had the mental capacity to be held responsible for a crime within the scope of Article 1F.[37]
Conclusion
Graça Machel argues that “the dilemma of dealing with children who are accused illustrates the complexity of balancing culpability, community’s sense of justice and the best interest of the child. The severity of the crime involved does not justify to suspend or to abridge the fundamental rights and legal safeguards afforded to children under the Convention.”[38]
These children can be profoundly traumatized and should be, therefore, treated as the victims since they have a higher prevalence of post-traumatic stress disorder, depressive disorders, and low self-esteem.[39] The EU Action Plan on Human Rights and Democracy (2020-2024) has recognized this need by developing humanitarian projects in countries like South Sudan, Syria, Yemen and Pakistan to prevent and respond to violence, provide psychosocial support, assist in family tracing and reunification, and support the reintegration of children associated with armed forces and groups.[40] Equally, we argue that specialized rehabilitation programs and trained professionals should also be made available for former child soldiers -now refugees- within the EU. It is of the utmost importance to grant them refugee status and use rehabilitation processes to assist their physical, psychological and social recovery, in line with article 40 of the Convention of the Rights of the Child.
Rehabilitation might be a long process,
but a lack of protection for these children is to risk them being re-recruited
and becoming a future generation of ideologically indoctrinated militants.
HOW TO CITE:
M. Dória, Victims or perpetrators? Claiming Protection and Refugee Status for Child Soldiers, NOVA Refugee Clinic Blog, April 2021, available at <https://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=victims-or-perpetrators-claiming-protection-and-refugee-status-for-child-soldiers>
[1] Madalena is a Master’s student in International and European Law at NOVA School of Law. She holds a Law Degree from the Faculty of Law of the University of Lisbon and a postgraduate degree in International Humanitarian Law and Human Rights in Conflict Situations. She is currently a member of the Migration and Armed Conflict Research Line of the NOVA Refugee Clinic.
[2] UN Secretary-General’s Report on children and armed conflict of 9 June 2020, available at https://www.un.org/sg/sites/www.un.org.sg/files/atoms/files/15-June-2020_Secretary-General_Report_on_CAAC_Eng.pdf
[3] Principles and Guidelines on Children Associated with Armed Forces or Armed Groups available at https://www.unicef.org/mali/media/1561/file/ParisPrinciples.pdf
[4] Shelly Whitman, Tanya Zayed, Carl Conradi, Julie Breau, Child Soldiers: A Handbook for Security Sector Actors, October 2012, The Roméo Dallaire Child Soldiers Initiative, Dalhousie University
[5] Nina Jorgensen, Children Associated with Terrorist Groups in the Context of the Legal Framework for Child Soldiers, June 2019, available at http://www.qil-qdi.org/children-associated-with-terrorist-groups-in-the-context-of-the-legal-framework-for-child-soldiers/
[6] Previously, children associated with armed conflict were subject of limited humanitarian law provisions contained in the 1977 Protocols I and II Additional to the Geneva Conventions
[7] Rome Statute of the International Criminal Court, 1 July 2002, art.8
[8] Protocol I Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, art 77(2)
[9] Protocol II Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, art 4(3)(c)
[10] ICRC, Customary International Humanitarian Law (online IHL database), Rule 136. Recruitment of Child Soldiers, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule136
[11] Optional Protocol to the Convention on the Rights of the Child on the involvement
of children in armed conflict, 25 May 2000, art 1
[12] Ibid, art 2
[13] Ibid, art 3(1)
[14] Ibid, art 4(1)
[15] Nina Jorgensen, Children Associated with Terrorist Groups in the Context of the Legal Framework for Child Soldiers, June 2019, available at http://www.qil-qdi.org/children-associated-with-terrorist-groups-in-the-context-of-the-legal-framework-for-child-soldiers/
[16] Ratification status of the Optional Protocol, available at https://childrenandarmedconflict.un.org/tools-for-action/opac/ratification-status-of-the-optional-protocol/
[17] Nina Jorgensen, Children Associated with Terrorist Groups in the Context of the Legal Framework for Child Soldiers, June 2019, available at http://www.qil-qdi.org/children-associated-with-terrorist-groups-in-the-context-of-the-legal-framework-for-child-soldiers/
[18] Human Rights Watch, Tunisia: Scant Help to Bring Home ISIS Members’ Children, February 2019, available at https://www.hrw.org/news/2019/02/12/tunisia-scant-help-bring-home-isis-members-children
[19] Kathleen Ebbitt, Child Soldiers are Being Used as an Integral Part of ISIS’s army, June 2015 available at https://www.globalcitizen.org/de/content/child-soldiers-are-being-used-as-an-integral-part/
[20]Asaad Almohammad, ISIS Child Soldiers in Syria: The Structural and Predatory Recruitment, Enlistment, Pre-Training Indoctrination, Training, and Deployment
[21] RAN Policy & Practice Event, Common P/CVE challenges in the Western Balkans and European Union, April 2018, available at https://ec.europa.eu/home-affairs/sites/default/files/what-we-do/networks/radicalisation_awareness_network/ran-papers/docs/ran_policy_practice_common_pcve_challenges_sofia_04042018_en.pdf; Asaad Almohammad, ISIS Child Soldiers in Syria: The Structural and Predatory Recruitment, Enlistment, Pre-Training Indoctrination, Training, and Deployment
[22] Lysanne Rivard, Child Soldiers and Disarmament, Demobilization and Reintegration Programs: The Universalism of Children’s Rights vs. Cultural Relativism Debate, August 2010, available at https://sites.tufts.edu/jha/archives/772
[23] Jo Becker, Some Child Soldiers Get Rehabilitation, Others Get Prison, March 2019 available at https://www.hrw.org/news/2019/03/04/some-child-soldiers-get-rehabilitation-others-get-prison
[24] Nina Jorgensen, Children Associated with Terrorist Groups in the Context of the Legal Framework for Child Soldiers, June 2019, available at http://www.qil-qdi.org/children-associated-with-terrorist-groups-in-the-context-of-the-legal-framework-for-child-soldiers/
[25] Glossary: terms and definitions, United Nations Disarmament, demobilization and reintegration resource center, available at https://www.unddr.org/modules/IDDRS-1.20-Glossary.pdf
[26] Christophe Paulussen, Kate Pitcher, Prosecuting (Potential) Foreign Fighters: Legislative and Practical Challenges, January 2018, available at https://icct.nl/app/uploads/2018/01/ICCT-Paulussen-Pitcher-Prosecuting-Potential-Foreign-Fighters-Legislative-Practical-Challenges-Jan2018-1.pdf
[27] Convention and Protocol Relating to the Status of Refugees, art1(A)(2)
[28] Joseph Rikhof, Child Soldiers and Asylum – Duality or Dilemma?, February 2019, Washington & Lee Public Legal Studies Research Paper Series
[29] Magali Maystre, The Interaction between International Refugee Law and International Criminal Law with respect to Child Soldiers, Journal of International Criminal Justice, 2014
[30] Matthew Happold, Excluding Children From Refugee Status: Child Soldiers and Article 1F of the Refugee Convention, American University International Law Review, Volume 17, Issue 6, 2002
[31] Magali Maystre, The Interaction between International Refugee Law and International Criminal Law with respect to Child Soldiers, Journal of International Criminal Justice, 2014
[32] Matthew Happold, Excluding Children From Refugee Status: Child Soldiers and Article 1F of the Refugee Convention, American University International Law Review, Volume 17, Issue 6, 2002
[33] Matthew Happold, Excluding Children From Refugee Status: Child Soldiers and Article 1F of the Refugee Convention, American University International Law Review, Volume 17, Issue 6, 2002
[34] UNHCR, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, December 2009, available at https://www.unhcr.org/publications/legal/50ae46309/guidelines-international-protection-8-child-asylum-claims-under-articles.html
[35] Joseph Rikhof, Child Soldiers and Asylum – Duality or Dilemma?, February 2019, Washington & Lee Public Legal Studies Research Paper Series
[36] Magali Maystre, The Interaction between International Refugee Law and International Criminal Law with respect to Child Soldiers, Journal of International Criminal Justice, 2014
[37] UNHCR, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, December 2009, available at https://www.unhcr.org/publications/legal/50ae46309/guidelines-international-protection-8-child-asylum-claims-under-articles.html
[38] Graça Machel, Impact of Armed Conflict on Children, 1996 available at https://sites.unicef.org/graca/a51-306_en.pdf
[39] Anne Speckhard, Molly Ellenberg, Perspective: Can we repatriate the ISIS children?, July 2020, available at https://www.hstoday.us/subject-matter-areas/counterterrorism/perspective-can-we-repatriate-the-isis-children/
[40] Access to Education and Reintegration, Key to Support Children in Armed Conflicts, Delegation of the European Union to Norway, February 2021, available at https://eeas.europa.eu/delegations/norway/93004/access-education-and-reintegration-key-support-children-armed-conflicts_en