It is common cause that children should be shielded from participating in armed conflicts. The reality, however, is that children, defined as persons under the age of 18 years old,1 actively engage in conflicts across the world and are involved in duties, such as fighting,2 portering,3 gathering information,4 caretaking,5 cooking,6 looting,7 acting as bodyguards or military guards,8 manning checkpoints,9 providing medical care10 and abducting and training other children.11 Consequently, as some children take a direct part in the hostilities12 they are likely to commit international crimes.13 Indeed, child soldiers commit some of the most egregious crimes under international law since they are often used by armed groups at the frontline of armed conflicts.14 However, they are usually not prosecuted for such crimes and are rehabilitated once they have been disarmed and demobilised.15 While some child soldiers are rehabilitated when they are still children, many child soldiers are not demobilised and become adult soldiers because often they cannot escape from the armed group or simply decide to stay with the group.16 Many of these children even become military commanders, such as Dominic Ongwen. In the past few years Ongwen has become the face of a former child soldier turned commander17: abducted at a young age and forced to commit horrendous crimes he moved up the ranks of the Lord’s Resistance Army headed by the infamous Joseph Kony,18 and is now facing prosecution before the International Criminal Court (ICC), though for crimes committed as an adult. Another ‘poster boy’ of this terrible conflict that engulfed northern Uganda for almost 30 years is Thomas Kwoyelo who suffered the same fate as Ongwen as a child but, unlike him, is now being prosecuted on the national level before the High Court of Uganda. It must however be pointed out that whilst they might both be the face of these former child soldiers, they are prosecuted for crimes committed as adults and not as children. Yet, both symbolise the fate of hundreds of thousands of children around the world and have caught the Western world’s imagination.19 Such attitude is partially due to the fact that they epitomise the cross-breed of victims and perpetrators and challenge a number of binary models. Firstly, they blur the established moral norm that divides those caught in an armed conflict between, on the one hand, victims who are innocent and pure and, on the other, perpetrators who are guilty and evil.20 Secondly, international criminal law (and any criminal law for that matter) is based on this victim-perpetrator dichotomy21 as ‘international courts are meant to deliver messages about the values and norms, which are assumed to characterize humanity’22: much of their life story shows that they are both. The victim-perpetrator narrative is an immense disruptive power that, it is argued, the International Criminal Court has recognised.23 Thirdly, they shatter the binary model of adults-bad and children-good that dominates modern legal discourse.24 Child soldiers struggle to fit into this idealised vision of childhood as a ‘period of play and innocent experimentation’.25 Although ‘[c]hild soldiers carry the burden of simultaneously being recipients and perpetrators of violence’26 they are quintessentially viewed as ‘innocent’, ‘pure’ victims.27 Yet, ‘while the perception of young people as victims of forced conscription and unscrupulous warlords might be correct for many of the very young children, the quantitatively more significant number of older child and youth combatants often do not fit this picture.’28 Indeed, the prosecutions of Ongwen and Kwoyelo irremediably challenge this Western liberal idea that child soldiers should be viewed as victims only. This book provides numerous examples of children having committed crimes, thus supporting a more nuanced and complex understanding of the role that children play in armed conflicts.
Whilst the concept of a child soldier might conjure up in the general public’s mind archetypal pictures of very young boys holding AK47s, it is used in law and social sciences to cover a much wider set of individuals, including girls and children who are not fighting. Indeed, although there is no legally binding definition neither in treaty nor in customary law, soft law instruments, such as the 1997 Cape Town Principles, state that child soldiers are ‘[a]ny person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. It includes girls recruited for sexual purposes and forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms.’ The 2007 Paris Principles heavily draw upon this definition too.29 In addition, Graça Machel30 who penned the...