Transitional Justice for Child Soldiers

Accountability and Social Reconstruction in Post-Conflict Contexts

K. Fisher

• Publisher: Palgrave Macmillan
• Year: 2013
• Print ISBN: 9781349440450, 9781137030498
• eBook ISBN: 9781137030504
• Topic: Politics & International Relations
• Subtopic: Criminal Law
• Index: Politics & International Relations

This book examines and offers suggestions for how post-conflict practices should conceptualize and address harms committed by child soldiers for successful social reconstruction in the aftermath of mass atrocity. It defends the use of accountability and considers the agency of youth participants in violent conflict as responsible moral entities.

1

Child Soldiering

Consider these three accounts:

They are forcing to kill people. And they killed many. Not only me, they are in the group, and they will give four people, ten people. They will say ‘kill this one’. When you refuse, then they kill you. So, we’ve been doing that – to kill, and to keep your own self.

(Formerly Abducted Soldier, Uganda, Interview with author)¹

‘I joined the FARC in a rage,’ she says, referring to the Revolutionary Armed Forces of Colombia, Latin America’s longest-standing rebel army. ‘I wanted to get revenge on the people who killed my father.’

(Biderman 2012)

‘I was going to liberate my country.’

(Former Child Soldier, in what is now newly established South Sudan, quoted in Green 2013)

The stories are not as uncommon as they ought to be: all over the world, children and youths are drawn or abducted from lives of poverty, uneasiness, or insecurity to ones even more perilous, as active members of armed fighting groups. Worldwide, at any point in the contemporary post-Cold War era, hundreds of thousands of persons under the age of 18 are associated with armed fighting groups – either armed forces or armed groups. As mentioned in the introductory chapter of this book, it is estimated that about 250,000–300,000 children are serving as soldiers, guerrilla fighters, or in support roles in combat in more than 25 countries globally, in the Americas, Africa, Asia, Europe, and the former Soviet Union.² For many, the reality of child soldiering is intimidation, pressure, brutalization, and the commission of violent and cruel actions against civilians and enemy combatants, and against other recruits.

Despite different media attempts to portray one or other of a few fairly uniform depictions of child soldiering,³ the concept and the individual experiences of child soldiers are far from consistent or standardized. The manner of recruitment, the level of identification with the cause and the fighting group, and what it means to be a child soldier differ drastically from context to context and from individual to individual within the same environment. While there are some commonalities in the experiences of child soldiers globally, there are also significant distinctions based not only on the nature of the conflict or on geographical considerations, but also on personal temperaments, individual goals, and personal manners of interpreting alternatives and the choices of the child soldiers themselves. So emotionally charged are the issues of atrocity and child soldiers that extreme positions and solutions surface. One extreme regards child soldiers as included in a despised group of illegal actors and enemies who deserve unique treatment that can abandon even basic human rights standards and protections usually afforded criminals (see: Singer 2005: 154; Jamison 2008); the other extreme views all children active in violent conflict, regardless of age or circumstances and without exception, as lacking any capacity for moral responsibility. To truly grapple with the scope of the problem of child soldiering for post-conflict social reconstruction, the very rudimentary depictions of child soldiers as monsters or unconditionally as pure innocents must be abandoned for a more nuanced understanding of the variety of actors who are child soldiers. For transitional justice to be effective, it must acknowledge the distinctions, and, it will be argued in the following chapters, offer a wide range of mechanisms for accounting for harms of which child soldiers were causal agents.

This chapter offers a varied picture of the child soldiering experience, drawing primarily from the experiences of boys and girls who are or were associated with fighting groups in Colombia, Sri Lanka, the Democratic Republic of the Congo (DRC), Sierra Leone, and Uganda. According to the strict 18 principle that defines a child soldier as anyone who is associated with a fighting force and who is below the age of 18, included in the many states that recruit child soldiers are North American and European states in which child soldiers are, or have been, associated with national armies, including the UK, the US, and Canada. The recruitment and use of these military personnel is, depending on individual stances, either considered acceptable if the minor individual freely volunteers and his or her involvement is parentally supported, or it is seen as morally reprehensible and at odds with international conventions and the law that ‘is moving, albeit somewhat unevenly, towards eighteen as the threshold age of permissible military service’ (Drumbl 2012: 135). This is an issue for another book.

Despite the variety of experiences of child soldiers formally defined, there is a common, particularly troubling, problem: many child soldiers globally engage in the commission of atrocious harms against their fellow human beings, often fellow citizens – harms that fall well outside the parameters of behaviour permissible during war. There are two strands of international law that govern aspects of international and intrastate armed conflict. International humanitarian law (IHL) and international criminal law (ICL) define acceptable and non-permissible conduct. Many fighting forces that engage in the illegal recruitment of child soldiers also engage in other conduct not permissible under international law, including acts of war crime and crimes against humanity. Many child soldiers associated with these groups engage in these actions.

Part of transitional justice is the more limited jus post bellum (justice after war), the pursuit of accountability, and the denial of impunity, for those who commit serious human rights abuses in armed conflict. Jus post bellum concerns the principled approaches to achieving justice after conflict and helping a society transition well from conflict to peace (Orend 2002; DiMeglio 2006; Stahn and Kleffner 2008; May and Forcehimes 2012; May 2012). Access to formal justice to address such crimes is considered an essential element in ensuring transition to peace and democracy after mass violations of human rights (UNDP 2004), and the promotion of rule of law and the end to impunity are increasingly regarded as imperatives (Rome Statute; UN Human Rights Council 2009), both theoretically and as a matter of law. This book is above all interested in how to best assess and address the actions of child soldiers who perpetrate acts of atrocity but who, as a category of perpetrator, are generally treated according to extremes – either overlooked as responsible agents or punished harshly for their contribution to one side of a conflict.

Understanding the basic experiences of an assortment of child soldiers allows us to better assess the range of responsibility that child soldiers might bear for their individual contribution to harms committed and also acknowledge the fact that the homogeneous picture of child soldiers as young boys wielding automatic weapons too large for their small frames is unrepresentative and unhelpful in many ways. The category of child soldier is much more diverse and deserves a more nuanced approach to transitional justice than the non-responsible child narrative suggests. The aim of this chapter is to assuage vagueness and conflation of concepts and impressions in order to better understand the experiences and needs of (former) child soldiers. First, it offers definitions of the terms used in order to render the arguments in this book clear and accessible. Then it examines some of the different experiences that child soldiers face, demonstrating that recruitment, treatment and activity, and post-conflict demobilization and response vary across conflicts and geography. It then engages with the claim that no person under the age of 18 can voluntarily join a fighting force, arguing that this general position, espoused by much of the humanitarian discourse, is itself unhelpful and potentially detrimental to the social reconstruction process.

Definitions

Despite the growing legal norms surrounding the conception of a child soldier, it is a label that has surprisingly ambiguous and broad meaning, referring to a range of experiences and therefore often conveying different things to different audiences. What constitutes a child soldier is the topic of considerable historic and contemporary debate. Despite heated deliberation to reach their decision (Renteln n.d.), the drafters of the Convention on the Rights of the Child (CRC), in which much relevant international law is grounded, settled on 15 years of age as the minimum acceptable age for the recruitment of young persons into war (CRC: Article 38). Some states, however, dissatisfied with the outcome of the difficult negotiations of 1989 that led to the age of 15 being stipulated in the CRC manifestly expressed their discontent in reservations to the treaty, to the extent that some self-imposed the minimum age of 18.⁴ Eventually, the Optional Protocol for the United Nations Convention on the Rights of the Child (Article 3) officially clarified that 18 was the minimum age of compulsory recruitment and 15 the minimum age of voluntary recruitment (United Nations 2002). Some critics, however, argue that a child (a person under the age of 18) does not have the capacity to volunteer for military activity.⁵

This book employs the definition of a child soldier provided by the Paris Principles, the most current internationally recognized definition of a child implicated in war: ‘a child associated with an armed force or armed group’

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 (Paris Principles).

By this definition, then, a child soldier is anyone who was recruited, abducted, or conscripted under the age of 18 to contribute to armed conflict. This definition does not take into account the method by which the child was recruited, and says nothing about whether a child is capable or incapable of volunteering for soldiering. It is important to note that the designation ‘child soldier’ is not equivalent to that of ‘child combatant’, which would refer to young ‘combatants’ as defined under international law, denoting someone who is not a protected civilian and who has an unqualified right to directly participate in hostilities and whose participation is therefore lawful (ICRC 1977a: Article 43). ‘The term “child soldier”, in contrast, as defined under the Cape Town Principles (1977) [and also the Paris Principles], reveals nothing about whether the child’s involvement is, or is not, in accord with international law provisions regarding the involvement of children in armed conflict’ (Grover 2008: 54 emphasis original).

A challenge to defining child soldiers for theory and the practice of law and transitional justice is the question of what is the consequence of an individual’s 18th birthday. Childhood is generally regarded as a period when children, still dependent on caregivers, are afforded the opportunity to grow and develop into moral human beings and productive members of their communities; it is generally conceived of as a period that ‘implies a safe space in which children can grow, play and develop’ (Angucia 2009: 79). Despite arguments that childhood is a social construction and one that primarily reflects Western conceptions of developmental stages according to age (Denov 2010: 2), it is reasonably compatible with universal understandings of human development and human freedom to argue that persons who were abducted as children or youths to engage in armed conflict have lost, or have had negatively impacted, an important developmental stage, the loss or impact of which is likely to affect them greatly. For the purposes of this book, an ex-fighter who is over the age of 18 when he or she departs from the conflict is considered to be, and referred to, as a child soldier if recruitment, initiation into warfare, and the commission of acts of serious harm happened before he or she reached the age of 18.

In this text, the terms ‘child’ and ‘young person’ are used broadly, and ‘adolescent’ and ‘youth’ are used somewhat interchangeably throughout. In international law and treaties, there is considerable inconsistency and overlap in respect to defining these stages.⁶ While adolescents and youths are generally considered to be young people who are older than ‘children’ and younger than ‘adults’ (Barber 2009:6), therefore assigning the title of ‘children’ to persons younger than adolescents, this text generally regards ‘children’ as does the Convention on the Rights of the Child (CRC), as ‘every human being below the age of eighteen’ (CRC: Article 1). This text, then, makes no distinction, unless explicit, between older children (who might elsewhere be referred to as ‘youths’) and younger children. The titles ‘adolescent’ and ‘youth’ are used when making specific distinctions between older child soldiers and those who are younger.

The use of the term ‘child soldier’ is contentious for another reason, in that it suggests and can produce stigmatization for the use of the title ‘soldier’. Margaret Angucia claims to prefer the term ‘war-affected children’ since the term ‘child soldiers’ ‘has an ambiguous representation in terms of soldiering as a chosen profession and children who do not have the capacity to make the choice of soldiering as their profession’ (Angucia 2009: 78). Angucia’s explanation of the terms highlights a significant debate in the discourse regarding children in conflict; with her choice of term, she underscores her position that no child (person under the age of 18) has the capacity to decide to contribute to armed conflict.⁷ However, the more common term ‘child soldier’ denotes distinctions between the ways children can be affected by war. The term ‘child soldier’ represents one way among many in which children are affected by war by denoting involvement in the armed conflict and the likelihood of being implicated in the commission of violent acts against other human beings. This effect of war on children is different from others, such as displacement, the trauma that comes from living in the midst of war, insecurity, poverty, loss of education, the disruption of health or other social services, or being orphaned. The category of child soldier is not a homogeneous group, but it is a unique subset of a broader group of children affected by conflict.

The Paris Principles also shy away from the term ‘child soldier’, using instead the term ‘a child associated with an armed force or armed group’ (Paris Principles 2007). This definition might better reflect a more nuanced understanding of the roles of young persons who contribute to and support the fighting group. Not all child soldiers are fighters; as mentioned, many engage in supportive roles such as porters or cooks. This book uses the term ‘child soldier’ because it is the label that is most widely understood to refer to persons under the age of 18 who have participated in the activities of a fighting group. This book is most interested in the phenomenon of young persons implicated in collective violent action. While it will reference peripherally the responsibility of those who only participate in supportive roles, the focus of this discussion is on those young persons who played, or are suspected of playing, an active role in the commission of atrocity.

Other terms used in this book that require attention are ‘returnee’, ‘victim’, and ‘perpetrator’. ‘Accountability’ is also defined here for use in this book. For the purposes of this text, a returnee is an ex-soldier who has returned to civilian life. This could be because the conflict has ended, or because the returnee has voluntarily left, escaped, been released, or been rescued. The use of the word ‘returnee’ to refer to ex-soldiers is not to be confused with civilians who were displaced because of the conflict and are returning home.

For the purposes of this book, the term ‘victim’ is used to refer to any person who was directly wounded (physically, mentally, psychologically) or harmed emotionally or psychologically by wounds inflicted on a loved one due to the conflict. To reflect reality, this text will refer to civilians who were targeted and harmed by the armed group or armed force as victims, and it will also refer to child soldiers as victims.

A ‘perpetrator’, for the purposes of this text, is any person who was a causal agent of an injury suffered by another. This label is devoid of any judgement of the criminal or moral responsibility of the perpetrator for his or her actions; it simply denotes the fact that the individual committed an action that resulted in harm to another.

‘Accountability’ takes many forms; and for the purposes of this text, accountability refers to a process of acknowledgement and explanation of actions taken that involves the actor assuming responsibility when appropriate. Accountability means that the agent accepts the consequences of his or her actions. A process of accountability must allow for the possibility of penalty for wrongful acts when suitable.

Experiences

Child soldiers are active in a variety of roles as members of fighting groups around the world. Each experience is unique. The aims, cultures, and compositions of fighting groups differ across wars and geography. The experiences of individual child soldiers are not homogeneous across the conflicts, or even within particular contexts. The following subsections of this chapter are meant to reveal some of the variety of experiences that child soldiers live in some conflicts, as a way to both offer a glimpse into life as a child soldier and to highlight the fact that broad generalities that ground the strict 18 tenet miss important distinctions that demand consideration.

The conflicts

As mentioned in the introductory chapter, there are different reasons for why child soldiers are attractive to architects of war and atrocity. Children can be appealing in some cases because their size, pliability, and desire to please (among other reasons) can render them easy recruits who are easily manipulated. They may also be in good supply when there is a need to compensate for a dearth of adult soldiers because in a protracted war adult numbers are reduced due to conflict-related death and/or because the conflict, or one side of the conflict, is unpopular. Children make up the majority demographic in many conflict-affected countries resulting in a constant supply of potential recruits (War Child n.d.).

Many of these conflicts originated out of genuine attempts to correct injustices or perceived injustices, but the parties to the conflicts grew over time to lose sight of the original goals and/or to use unjust tactics in pursuit of their aims. Colombia is a good example of a protracted conflict that developed over time to rely on child soldiering that involves activities outside the parameters of generally accepted conduct during war. The armed conflict in Colombia, which began in the mid-1960s, is an intractable low-intensity, multi-party conflict between the government of Colombia and peasant guerrilla groups, such as the Ejército de Liberación Nacional (ELN) and the Fuerzas Armadas Revolucionarias de Colombia (FARC), and also includes the involvement of other paramilitary groups such as the pro-government, Auto-defensas Unidas de Colombia (AUC). What is sometimes viewed as a war solely about drugs, is also about class, economics, and power; and FARC and ELN were created, in 1964 and 1965, respectively, by communist insurgents to fight against wealthy landowners and the conservative government (Briggs 2005: 41). In Colombia, child soldiers being members of the guerrilla and paramilitary groups was a relatively late phenomenon that did not exist until the 1990s (Human Rights Watch 2003: 19).

Sri Lanka’s civil war between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE, also called Tamil Tigers) was also a long conflict that relied on child soldiering. The LTTE was a separatist militant group that sprung from tensions between Sri Lanka’s two largest ethnic groups, the Sinhalese and the Tamils. Since Sri Lanka gained independence from Britain in 1948, the Tamil minority has felt increasingly marginalized and politically disenfranchised. Created in 1975, the LTTE has two wings – the political and the military wings. For almost 30 years, between 1983 and 2009, the Tamil Tigers fought a civil war for the creation of an independent state for the Tamil people (Wang 2011). Initially founded partly from student discontent, the Tamil Tigers always had a predominantly young base, and the recruitment of children and females to ‘make up for the heavy shortfall in [adult] male combatants killed in battle’ was a pronounced characteristic of this group (Krishnan 2011: 138). The LTTE was considered one of the most organized, effective, and brutal terrorist groups in the world (Pickert 2009; Wang 2011: 100).

African child soldiers represent to most the general practice of child soldiering. Most media depictions of child soldiers present an image of a young African boy with a large weapon.⁸ Children have participated in violent conflict in Angola, Burundi, the Central African Republic (CAR), Chad, Cote d’Ivoire, the DRC, Mozambique, Rwanda, Sierra Leone, Somalia, Sudan, Uganda, and Zimbabwe. In many of these conflicts, the majority of children were kidnapped and forced into fighting.

In Sierra Leone, corruption, poor governance and mismanagement, high unemployment, and the gradual erosion of civil society ‘led to mounting disillusionment, particularly among the young, and were a recipe for rebellion and an eventual brutal civil war’ (Denov 2010: 49). Interestingly, while Myriam Denov includes a rebellious youth culture in her list of factors contributing to the civil war (Denov 2010: 50), she points out that

the initial recruitment drive did not involve children … [but that] as the rate of attrition among adult RUF combatants increased, with factors such as the prolongation of the war, the horrible conditions of service, the lack of salary (whereby many soldiers augmented their pay through looting or mining), the high death toll and the overall senselessness and brutality of the war, the RUF needed to devise another recruitment strategy.

Denov (2010: 63)

In the end, as was the case with the guerrilla FARC and ELN in Colombia and the Tamil Tigers in Sri Lanka, the predominance of children in the fighting force became a conspicuous characteristic of the Revolutionary United Front (RUF).

In Uganda, the latest period in a long history of brutal human rights abuses is the recent conflict in the north of the country. A run of successive deposed leaderships ended in...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Acknowledgements
• List of Abbreviations
• Introduction
• 1. Child Soldiering
• 2. The Difficult Reintegration
• 3. Moral and Legal Responsibility of Child Soldiers
• 4. The Expressive Value of Post-Atrocity Accountability
• 5. Accountability and Social Reconstruction
• 6. Trauma, Truth-Telling, and Post-Atrocity Justice
• 7. Accountability for Child Soldiers
• 8. Distinctly Girl Soldiers
• Conclusion
• Notes
• Bibliography
• Index