THE USE OF CHILD SOLDIERS IN ARMED CONFLICT AS WAR CRIME UNDER INTERNATIONAL LAW

ABSTRACT

This dissertation entitled “The Use of Child Soldiers in Armed Conflict as War Crime under International Law”is premised on an appraisal of the legality of the atrocities visited upon children during armed conflicts, especially as coerced active participants. This is approached from the perspective of the menace being a form of child abuse and exploitation of such children, and how international justice combats such illegality and impunity to justice of their commanders and recruiters. Despite a catalogue of laws – both national and international– which prohibits and protects against the illegal use of children as active participants in armed conflicts, it is sadly observed that children find themselves forced into different armed conflicts all over the world. The illegal use of child soldiers has manifest negative effects on both the children and the society at large. Apart from causing deaths and injuries, this menace depletes the society of its real resource and future – children. The purpose of this study therefore include among other things, enhancing access to appropriate information and knowledge about the protection of the fundamental human rights of children during armed conflicts, and how the law de-mystifies the aura of impunity to justice of their recruiters and commanders. This also entails an appraisal of the level of culpability or otherwise of child soldiers in the commission of grave crimes during armed conflicts. Our study revealed that this menace is a problem of both developed and developing countries of the world, though at varying levels. The study also showed that there are various laws and regulations protecting against the illegal use of child soldiers, and it is therefore the lack of the political will and the non-implementation of obligations under these laws that has provided this aura of impunity to justice of the perpetrators of these atrocities and war crimes. Based on our research, we realized that individual criminal responsibility for war crimes does not depend on a person’s status, and even states can be liable for grave crimes and reparations under international humanitarian law. Child soldiers may also be liable for their actions and misdeeds, though age may be a mitigating factor when the question of their responsibility is raised. Consequently, perpetrators of grave crimes must be punished in order to satisfy the victims and prevent the commission of further atrocities, and the responsibility for this task falls on states, their citizens and the international community. It is therefore advocated that this can also be achieved or reduced, through non penal modes of justice as alternative and complement to the penal system of justice as a means of combating, preventing and reducing the menace of war crimes and atrocities.

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Chapter One

1.0. BACKGROUND

Armed conflicts with devastating effects have been part of mankind since

time immemorial and these days, there are easily accessible light weapons and even more destructive weapons, leaving a large number of the wounded, maimed and dead in their wake. Children all over the world constitute the largest and most powerless members of society and; it used to be assumed that adults had the best interests of children at heart and there was no need to think in terms of children’s rights or their protection. This idealized perception of the adult-child relationship ignored the grim realities of our world today.It is virtually impossible to watch international television stations like Cable News Network (CNN) or British Broadcasting Corporation (BBC) without hearing or seeing the sufferings of children in one part of the world or the other.

On these international television stations, the glares of child soldiers with their oversize ‘AK-47’ weapons from war-torn countries, calls out to the world to end these endless and senseless wars. Luckily, Nigeria has not experienced these horrors although she had had to contend with refugees from war-torn countries, faced her own various communal, ethnic and sectarian clashes. The Niger Delta insurgency readily comes to mind; and in all these situations, the people who are most affected are innocent children. It is children who are increasingly becoming the principal victims of hostilities and acts of violence perpetrated in the course of armed conflicts. Children are often in greater danger than adults during armed conflicts – the danger and form of harm to which children are subjected to is specific to them due to their innocence, vulnerability, and age.

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In order to prevent the use of children and ensure their protection during armed conflicts and most especially, to bring to justice all those engaged in such callous acts, preventive and countermeasures must be perfected. This work is an inquiry into the consequences of traumatic man-made actions which were borne out of flawed leadership and greed for money and power and, of political failure by our leaders to prevent the tragedy that has befallen an entire, defenseless population and; how international justice is confronting the aura of impunity to justice of all those involved in this unlawful creation, called Child Soldiers or Child Combatants (which shall be used interchangeably throughout this research work).

1.1. STATEMENT OF THE RESEARCH PROBLEM

The use of child soldiers poses a challenge to moral norms and legal

regulations guiding the conduct of warfare. The direct involvement of children in armed conflicts has dire implications for the development of children and society as a whole.1 Child soldiering is a relatively new phenomenon even though it has quickly gained notoriety, and it is not restricted to any continent or region of the world but fortunately, Nigeria has been spared such horrors. There is however the scarcity of relevant authorities on the subject, either in our public or private libraries, and even those found on the internet are restricted or too costly.

Most of the available authorities on child soldiers were not focused on the liability of child soldiers, and their recruiters and commanders. With the foregoing, several research questions, therefore, beg for answers: Who are combatants? Are child soldiers liable for their actions? What are the legal

1Sesay, A., Civil Wars, Child Soldiers & Post Conflict Peace Building in West Africa, College Press, Ibadan (2003) p. 4, (hereinafter called Sesay’s Civil Wars).

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prohibitions of the use of child soldiers? Are the recruiters and commanders of child soldiers liable? How is international justice combating the aura of impunity to justice of the recruiters and commanders of child soldiers? Answers to these and other important questions are the bedrock of this study.

1.2. OBJECTIVES OF THE RESEARCH

This work attempts to focus on how international justice is used to protect the fundamental human rights of children during armed conflicts, most especially, as active participants. And how it is also been used to confront and combat the atrocities of their recruiters, commanders and the perpetrators of these callous atrocities in order to de-mystify the aura of impunity surrounding such misdeeds. We shall attempt to answer the above questions and many more, posed in our statement of the research problem, and this shall be done with reference to relevant laws, practical applications and thereafter, proffer our findings and recommendations to the issues so raised.

1.3. SIGNIFICANCE OF THE STUDY

Many victims of atrocities were denied justice for such crimes and many

more, continue to suffer gross human rights violations during armed conflicts. The aura of impunity surrounding such atrocities has provided a fertile ground for the commission of new horrendous crimes, which must not be left unpunished.2 It is noticed that not much research had been done on how perpetrators of war crimes are dealt with, in order to avert further atrocities and help reduce and stop it.

2Ladan, M.T., “An Overview of International Criminal Law: The Work of the Rwandan Tribunal”, A Paper presented at the 9th African Human Rights Workshop, Ota, Nigeria, Sept. 28-O

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