The ICC’s Child Soldier Provisions: Time to Close the Three-Year Gap

Danya Chaikel (@DanyaChaikel) is a Canadian lawyer and independent legal consultant specializing in international criminal law and human rights. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

Until they reach the age of 15, ICC suspects like Dominic Ongwen are potential child soldier victims pursuant to Article 8 of the Rome Statute. Then from the age of 15 through 17 they have no status as child soldier victims or as potential perpetrators, nor can they be considered the subject of child soldier crimes. However, according to the Rome Statute’s legal fiction, the moment Ongwen turned 18 he became a potential perpetrator of mass atrocities, since this is the earliest age a person can be prosecuted before the Court.

 As Dominic Ongwen, a senior commander in the rebel Lord’s Resistance Army (LRA), awaits his confirmation of charges hearing at the International Criminal Court (ICC) in The Hague, the thorny issue of prosecuting former child soldiers has come to the forefront. On January 17, 2015, Ongwen was transferred from the Central African Republic to ICC custody, where he currently faces seven charges of war crimes and crimes against humanity, including murder and enslavement, for crimes allegedly committed during Uganda’s deadly civil war that dates back to the late 1980s. According to ICC Prosecutor Fatou Bensouda: “For more than a quarter of a century, the LRA under Joseph Kony and his high command, that includes Ongwen, have terrorised the people of Northern Uganda and neighbouring countries,” with the LRA having “reportedly killed tens of thousands and displaced millions of people, terrorised civilians, abducted children and forced them to kill and serve as sex slaves.” More recently, the prosecution indicated that ongoing investigations may lead to further charges against Ongwen, including sexual and gender-based violence and even child soldier crimes.

The Ongwen case is far from straightforward, since Ongwen says he too was abducted at the tender age of 14 by the LRA and “taken to the bush.” He arguably had little choice in becoming an alleged LRA commander and mass criminal―even potentially towards other child soldiers abducted years after he was. Much has been written about the complex cycle of violence that child soldiers such as Ongwen face (here, here, and here), as victimhood and criminal perpetration coalesce in a way which international criminal justice struggles to grapple with.

What is also problematic―but fortunately more easily remedied by ICC member states―is a three-year accountability/victimhood gap created by the Rome Statute that renders this demographic invisible at the ICC. Under Article 8 of the Statute, war crimes against child soldiers include conscripting or enlisting children under the age of 15 years, or using them to participate actively in hostilities. When the Rome Statute was being drafted, state representatives heard a proposal by UNICEF and other organizations to set the age threshold for child soldiers at under the age of 18, but it was not supported by a majority of states.

Therefore, soldiers older than 15 are not considered “child” soldiers in terms of being the subject of the crimes of conscription, enlistment, and use of child soldiers in hostilities, and therefore they are also denied the possibility of being recognised as child soldier victims before the ICC. Yet fighters aged 15 to 17 fall outside of the prosecutor’s jurisdictional reach, since Article 26 of the Rome Statute prohibits the prosecutor from investigating and prosecuting individuals who commit crimes when they are under the age of 18. This creates a legal vacuum whereby a 16 year-old soldier who commits mass atrocities falls through the cracks of the ICC’s legal framework and is neither a victim nor a perpetrator of war crimes.

While arguably a 16 year-old soldier who commits atrocities could be tried (or protected, depending on how the issue is legally framed) nationally, a domestic remedy is a mere possibility. Moreover, the Rome Statute is broadly considered the ideal model that states can replicate through domestic implementing legislation. Therefore this statutory gap results first in the ICC’s being ill-equipped to fully address child soldier crimes, and second in the Rome Statute’s failing to provide a comprehensive legislative model on the issue for States Parties.

The statutory gap may even be perilous: in the worst case scenario it could provide an incentive for armed groups to recruit and use persons between the ages of 15 and 18, given their legal invisibility before the ICC, which renders their criminal activities neutral before the Court.

Fortunately the 3-year gap can be remedied by an amendment to the Rome Statute in accordance with Article 121, by raising the child soldier age criteria to under the age of 18 instead of under 15 (or as some argue by potentially lowering the minimum age for criminal liability to 15). Such an amendment to the child soldier provisions is supported by an international trend towards raising the age to 18, whereas the outdated Rome Statute provisions are drawn from the 1977 Additional Protocols I (Article 77(2)) and II (Article 4(3)(c)) to the Geneva Conventions (1949) and the Convention on the Rights of the Child (1989) which set 15 as the minimum age for recruitment or use in armed conflict.

Support has been steadily growing towards raising the minimum age. The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2000) provides in Article 1 that States Parties must ensure that members of their armed forces directly participating in hostilities are at least 18 years of age. On a regional level, the Organisation of African Unity (now the African Union) adopted the African Charter on the Rights and Welfare of the Child (1990) which defines children as all persons below the age of 18, and Article 22.2 stresses that “no child shall take a direct part in hostilities” and that States Parties to the Charter shall “refrain in particular, from recruiting any child.” 

Most recently, the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (2007) which have been endorsed by over 100 countries, define a child soldiers in Article 2.1 as “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.”

The UN’s Office for the Special Representative of the Secretary-General for Children and Armed Conflict, established in 1996, also uses the Paris Principles’ definition, therefore applying the under 18 criteria. The current Special Representative Leila Zerrougui, together with UNICEF, launched the campaign Children, Not Soldiers in 2014, which “seeks to galvanize support to end and prevent the recruitment and use of children by national security forces by 2016” and which was endorsed by UN Security Council in Resolution 2143 (2014). Strikingly, paragraph 5 of Resolution 2143 exposes the ICC’s outdated provisions by recalling that the conscription, enlistment, and use of children under the age of 15 may constitute a war crime under the Rome Statute and then noting that the provisions of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict requires a minimum age of 18 for compulsory recruitment and participation in hostilities.

The ICC is lagging behind internationally, and according to a leading human rights organisation, Child Soldiers International, there is already wide acceptance that 18 years of age should be the universal international legal threshold―otherwise known as the “straight 18 ban.” Moreover, “nearly two thirds of UN members states have established in law or otherwise committed to a minimum military recruitment age of 18 years.” Professor Mark Drumbl, an international law expert has observed that this notion is spreading and “international law’s trend-line arcs towards the Straight 18 horizon.”

Tragically, the recruitment and use of child soldiers continues in great numbers today. UNICEF estimates that approximately 300,000 children, defined as boys and girls under the age of 18, are involved in over 30 conflicts worldwide. The case against Dominic Ongwen prompts the call for a fresh discussion on the Rome Statute’s age gap and the need to amend the Rome Statute in order to reflect the growing international consensus towards prohibiting the recruitment and use of child soldiers under the age of 18. This may also encourage ICC member states to address the complexities of child soldiers’ experiences as victims and perpetrators―sometimes simultaneously―and how rigid age criteria maintain a legal fiction which does not respond meaningfully to the realities that many child soldiers endure.

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