Document Type

Article

Disciplines

International Law

Abstract

The pressing and much publicized problem of child soldiers in international law involves two related and interlocking issues: the criminal liability of those who recruit child soldiers, and the culpability of child soldiers for war crimes. Contention over the age at which a person is no longer considered a child comprises an important part of the international legal discourse surrounding these two issues. Even where there is general agreement that children should not be used as soldiers, the understanding of who precisely is a child remains an unsettled issue. For example, the Convention on the Rights of the Child, which defines childhood as beginning at birth and ending at age eighteen, also provides an explicit exception to this general definition by setting age fifteen and below as the prohibited age of recruitment for child soldiers.

Much of the discourse about child soldiers is dominated by the global focus on the need to offer an umbrella of protection to "children."2 Although very young people have served in armed forces and armed groups for centuries, the increase in attention to the problem derives from the widely held belief that the recruitment of children is a uniquely modem form of child abuse and exploitation.' In this context, child soldiers are seen as innocent victims of adult abuse who require legal and humanitarian protection.

This article examines the issues surrounding the initial recruitment of child soldiers and the potential war crime liability those children may face. The analysis will focus on the importance of the age at which a young person is considered to be a child. Section I describes the conflict between sovereign states and the humanitarian and human rights organizations that challenge them, regarding the lawful age of recruitment and the criminal liability of child soldiers. Section II reviews current patterns in the recruitment of child soldiers and shows that nonstate actors, such as insurgent groups and terrorist organizations, are now the primary users of children in armed conflict. Section III outlines the way the issue of age came to be incorporated into the laws of war. Section IV examines attempts by human rights and humanitarian groups to incorporate a universal definition of childhood into the laws of war. Section V looks at the ways international trial courts, specifically the Special Court for Sierra Leone and the International Criminal Court, have applied new statutory definitions of child soldiers in war crimes trials. Section VI describes the failure of international law to properly address the problem of child soldiers' culpability for war crimes.

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