QUESTION. SHOULD CHILD SOLDIERS BE HELD CRIMINALLY RESPONSIBLE FOR BREACHES OF INTERNATIONAL LAW.

Abstract. This paper investigates the issues of criminal responsibility of child soldiers. After preliminary remarks on the definition of a child soldier in international law, the first part of the paper will discuss whether international law permits the prosecution of child soldiers. The age of criminal responsibility is then considered. Reference is also made to how Ad hoc International Tribunals have dealt with the matter of prosecution of child soldiers. The fourth part of the paper examines possible defences for child soldiers avoiding prosecution for international crimes. The last part of the paper offers alternatives to the criminal prosecution of child soldiers.

INTRODUCTION.

As the end of wars in Sierra Leone, Angola, and elsewhere freed thousands of former child soldiers from active armed conflict, new conflicts in Liberia and Cte dIvoire drew in thousands of new child recruits, including former child soldiers from neighbouring countries. In some continuing armed conflicts, child recruitment increased alarmingly. In Northern Uganda, abduction rates reached record levels in late 2002 and 2003 as over 8,000 boys and girls were forced by the Lords Resistance Army to become soldiers, labourers, and sexual slaves. In the neighbouring Democratic Republic of Congo (DRC),

where all parties to the armed conflict recruit and use children, some as young as seven, the forced recruitment of children increased so dramatically in late 2002 and early 2003 that observers described the fighting forces as armies of children1 Child soldiers are actually preferred by some army commanders because they are easier to manage and manipulate than adults. They aren't as likely to question orders. So, in the case of children, the commanding officer is clearly the power behind the guns, whereas adult soldiers are more likely to disobey orders, thereby detracting from the authority of the commander. Children are also more likely to carry out suicide missions than are adults2.

Accountability for atrocities is at the core of laying the foundation for the rule of law and respect for human rights in conflict and post-conflict societies3. Perpetrators of genocide, war crimes, and crimes against humanity must be prosecuted to advance the cause of justice and the rule of law by ensuring that justice is done4. Child soldiers commit crimes of brutality during armed conflicts, in most cases there are threatened or intimidated to commit these crimes. They could also be under the influence of drugs or alcohol or have a genuine lack of understanding of their actions.

A dilemma is created in international law, On one side children are not supposed to have, in theory, the sufficient capacity of understanding to hold them fully responsible for the crimes which they could have committed in a
1 2

Jo Becker, Children as Weapons of War published in Human Rights Watch world report. Miller, Rose, Child Soldiers , the Humanist, July-August, 2002. 3 Debate on Justice and the Rule of law, Human Rights Watch statement to the United Nations. September 30, 2004. 4 Ibid.

situation of war. On the another side should child soldiers be tried under international law for crimes they have committed during armed conflict.

The purpose of this paper is to study the questions of criminal responsibility related to the crimes of child soldiers in armed conflicts.

CHILD SOLDIERS IN INTERNATIONAL LAW.

Until the adoption of United Nations Convention on the Rights of the Child (UNCRC) in 1989, there was no universal definition of the 'child'. Article 1 of the Convention subsequently provides that "a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier5." According to child soldiers global report of 20046 a child soldier is any person under the age of eighteen who is a member of or attached to government armed forces or any other regular or irregular armed forces or armed group, whether or not an armed conflict exists. Child soldiers perform a wide range of tasks including participation in combat, laying mines and explosives, scouting, spying, acting as decoys, couriers or guards, training , drill or other preparations, logistics and support functions, cooking and domestic labour. Similarly The Cape Town Principles and Best Practices7 defines a child soldier as any person under eighteen years who is part of any part of any kind of regular or irregular armed forces in any
5

Fontana, Barbara, Child Soldiers and International Law published in African Security Review, Vol 6, No/ 3, 1997. 6 Full report can be accessed from www.child-soldiers.org/resources/global-report.
7

The Cape Town Principles on the Prevention of Recruitment of children into the Armed Forces and on Demobilisation and Social Reintegration of Child Soldiers adopted at a joint UNICEF/NGO symposium on 30 April 1997.

capacity, including but not limited to cooks, porters, messenger and anyone accompanying such groups other than family members. This includes girls recruited for sexual purposes and for forced marriage. As child soldiers are carrying out their various roles in armed conflicts they end up committing violence crimes against humanity that amount to international crimes. Whether they are liable for the crimes that they have committed is a question being considered further in this paper. Several issues are raised like whether child soldiers are old enough to be capable of committing these crimes or whether those responsible for recruiting these child soldiers should be held responsible. Before we consider such issues I now proceed to look at the international legal standards governing child soldiers.

INTERNATIONAL LEGAL STANDARDS GOVERNING CHILD SOLDIERS.

1977 Additional Protocols to the four Geneva Conventions and the Convention on the Rights of the Child (CRC) (1989) both use a 15-year minimum age for recruitment and participation in hostilities. Article 38 of the CRC is derived from Article 77(2) of Additional Protocol I of 1977 to the four Geneva Conventions of 1949. It states:
1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child. 2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities. 3. States Parties shall refrain from recruiting any person who has not attained the age of 15 years into their armed forces. In recruiting among those persons who have

attained the age of 15 years but who have not attained the age of 18 years, States Parties shall endeavour to give priority to those who are oldest.

Additional Protocol II (applicable in non-international armed conflicts) is similar. Article 4(3)(c) states: "children who have not attained the age of 15 years shall neither be recruited in the
armed forces or groups nor allowed to take part in hostilities."

The CRC's Article 38 is an anomaly in using a 15-year age minimum because the CRC's general definition of a child is any person under the age of 188. The CRC applies to all children in all circumstances with the exceptions to the United States and Somalia - the two countries not yet parties to it. The African Charter on the Rights and Welfare of the Child (1990) provides that a "child" is anyone below 18 years of age without exception 9. It goes on to state: "States parties to the present Charter shall take all necessary measures to ensure
that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child10."

The Rome Statute of the International Criminal Court (1998) gives the court jurisdiction over the war crime of conscription or enlisting children under 15 years into national armed forces or armed groups, or using them to participate actively in hostilities11. Although the Statute uses the terminology of "conscription" or "enlistment" of under-15s, this is accepted as meaning the same as "recruitment" in the other treaties.

unless under the law applicable to the child, majority it attained earlier. (Article 1)

Article 2. Article 22(2). 11 Article 8.

10

International Labour Organisation (ILO) Worst Forms of Child Labour Convention 182 (1999) commits each state which ratifies it to "take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency12". The term "child" applies to all persons under the age of 18 years13 and the worst forms of child labour include: "all forms of slavery or practices similar to slavery, such as the sale and trafficking of
children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict14".

Recommendation 190 accompanying Convention 182 encourages states to make such recruitment a criminal offence. This was the first time that an 18year minimum age limit was set in relation to child soldiering in an international treaty. It was also the first specific, legal recognition of child soldiering as a form of child labour. The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000). The protocol sets 18 as the minimum age for direct participation in hostilities, for recruitment into armed groups and for compulsory recruitment by governments. The ratification of the optional protocol has brought additional changes by governments around the world. Once the U.S. ratified the Optional Protocol in December 2002, it changed its deployment practices to exclude seventeenyear-old troops from combat positions. Other governments have continued to recruit and use children in armed conflict, including Burma, Burundi, the DRC,
12 13

Article 1. Article 2. 14 Article 3 (a)

Liberia, Sudan, and Uganda. Burmas national army has an estimated 70,000 child soldiers and routinely sends children as young as twelve into battle against armed ethnic opposition groups. Both Uganda and the DRC have ratified the optional protocol but do not follow their obligations by using child soldiers. The government of DRC maintains children in its ranks despite a 2000 presidential decree calling for the demobilization of child soldiers15.

WHETHER

INTERNATIONAL

LAW

PERMITS

THE

PROSECUTION OF CHILD SOLDIERS.

The Age of Criminal Responsibility. In international law there is no presumption that persons under 18 cannot be held criminally responsible. However, the Convention on the Rights of the Child requires states parties to establish ''a minimum age below which children shall be presumed not to have the capacity to infringe the penal law16,'' The Committee on the Rights of the Child has not specified a general appropriate age for criminal responsibility, but has proposed eighteen as the recommended age. Furthermore the age of criminal responsibility should not be set too low by states.

The Beijing Rules (Rule 4) require that:

15 16

Jo Becker, Children as Weapons of War published in Human Rights Watch world report. Article 40(3)(a).

''In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age should not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.''

International law has not addressed directly the issue of whether child soldiers should face prosecution for atrocities they committed during armed conflict. The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict does not contain any specific provisions on whether child soldiers should be prosecuted. That is the age when a young person is considered to appreciate right from wrong actions and to have some measure of responsibility for his or her acts. The question to consider is the appropriate age for a criminal investigation to be started for a child soldier.

However, the CRC Child does allow for young people to be prosecuted if the procedure can be fair and take into account the particular needs and vulnerabilities of young people17. Article 3 of the CRC requires that any legal action taken by the authorities must have the best interests of the child as a primary consideration. The principle of the best interests of the child requires that any criminal process involving children must have their needs at the heart. Other international standards require that ''The well-being of the juvenile shall be the guiding factor in the consideration of his or her case.18

17 18

Article 40. Article 17(1)(d) United Nations Standards Minimum Rules for the Administration of Juvenile Justice, GA Resolution 44/33 (29 NOV 1985) known as the Beijing Rules.

Where a child soldier acted with full awareness of what he was doing then it would be in his best interests that the criminal process adopted be specially adapted in his interests.

International tribunals response to child soldiers. The ad hoc tribunals of ICTY and ICTR have not sought to prosecute children. Child soldiers did not play a large part in the conflicts in the former Yugoslavia therefore no individuals under the age of eighteen at the times of their crimes have been called yet to face the ICTY19. In contrast child soldiers were involved in the genocide in Rwanda. It was decided by the ICTR that under fourteens being the national age of criminal responsibility of Rwanda would not be prosecuted but those aged over fourteen at the time of the crime would be prosecuted. However those children would be prosecuted in local national courts rather than in an international tribunal. Gacacas were established to deal with children accused of committing acts of genocide. Gacacas are traditional local courts where problems within the community are discussed and resolved20. It is felt that national courts are most suitable than international tribunals to try child soldiers.

The Rome statute to the International Criminal Court limits its jurisdiction to individuals who were over eighteen at the time of the alleged commission of the crime21. Child soldiers therefore cannot be held criminally responsible in the international criminal court. National courts are left with that responsibility

19

Harvey Rachel, A guide to International Humanitarian and Human Rights Law. The Children and Armed Conflict Unit. University of Essex. 20 Morrill, Constance, The Perceptions and Peace Building Potential of Rwandan Youth Detainees. 21 Article 26.

but it is should be done within established legal standards. Some countries have executed child soldiers for example DRC executed a fourteen-year-old shortly after being sentenced in January 2000. The execution of individuals for crimes committed below age eighteen violates the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, international human rights treaties to which Congo is a party22. .Iran, Nigeria, and the United States are the only other countries known to have imposed the death penalty on juvenile offenders. Iran executed a seventeen-year-old in 1999; Nigeria carried out a death sentence against a seventeen-year-old in 1997 for an offence committed at the age of fifteen. The United States has executed eight juvenile offenders since 199823.

CRIMINAL INTENT OF CHILD SOLDIERS.

Article 130 of the third Geneva convention of 1949 lists among the grave breaches of the convention to include the wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power or wilfully depriving a prisoner of war of the rights of fair and regular trial as prescribed in the Convention. The word wilful refers to criminal intent in the convention that is the intention to bring the consequences of the act prohibited by international rule. A child soldier must be aware of the risk that his actions bring about serious consequences for the victims of killings. As the ICTY Appeals chamber held in the Tadic24 case the perpetrator needs to know that there is an attack on the
22 23

Congo, Dont execute child soldiers, four children to be put to death, May 2, 2001. Ibid. 24 Dusko Tadic case No/ IT-94-1-AR72, ICTY Appeals Chamber decision of 2 October 1995.

civilian population and that his acts comprise part of the attack or as held in the Blaskic25 case the Appeals Chamber reiterated the mens rea for crimes against humanity as requiring knowledge on the part of the accused that there is an attack on the civilian population, as well as knowledge that his act is part thereof. Therefore a child soldier who was clearly in control of his or her actions and not coerced, drugged or forced into committing atrocities can be found guilty of committing a crime against humanity.

A mental element is required in some way to be directly or linked with the commission of the crime. Art 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide provides that genocide as an international crime requires that there be intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. Similarly Art 1 of the 1984 UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment prohibits torture when it is among other things intentionally inflicted. Article 85(3), (4) of Protocol 1 1977 makes it punishable a host of violations so long as they are committed wilfully. Before a child soldier is prosecuted for committing crimes as a breach of international law it must be proved that he had the wilful intent to commit the crimes. Although the Rome statute does not apply to persons under eighteen it has a provision in relation to the individual criminal responsibility of a person when committing a crime against humanity. Article 30(1) stipulates that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent

25

Prosecutor V Tihomir Blaskic case No/ IT-95-14-T decision of March 2000.

and knowledge. Thus as a condition for criminal liability, mens rea must accompany the physical act of the crime26. Criminal liability should be imposed only on child soldiers who are aware of what they are doing and of the consequences that their actions. Article 30 does not only codify but seeks to standardize the mens rea requirement for crimes under international law. It appears to establish a common mental element applicable to all crimes within the jurisdiction of the ICC which are in fact all crimes under international law.

However in international criminal law no customary rule has emerged on this matter of dealing with crimes of child soldiers. The only provision that deals with criminal responsibility of a child is found in the Rome statute. Under Art 26 the court has no jurisdiction over any person who was under the age of eighteen at the time of the alleged commission of the crime. This provision appears to be referring to the courts jurisdiction and not criminal responsibility of a child. It would be lawful for a state to bring a trial before its national court persons under eighteen for allegedly committing war crimes, if this is allowed under the relevant national legislation27.

In many national legal systems it is normally considered that persons under a certain age do not possess full individual understanding of the crime there are

26

Gerhard Werle and Florian Jessberger Unless otherwise provided Article 30 of the ICC Statute and the Mental Elements of Crimes under International Criminal Law. J.Int.Crim.Justice Journal, March 2005. Vol 3, 35-55. 27 Cassesse Antonio, International Criminal Law, Oxford University Press, 2000.

committing. Therefore may not freely decide how to act a child is regarded as unable to entertain criminal intent28. Children are normally considered exempt from criminal responsibility if they engage in criminal conduct.

Trials for children are normally held before special courts. In case a child soldiers is held accountable for their actions international fair trial standards must be respected. For a fair trial to take place for persons under eighteen the best interests of the child are of paramount interest. The CRC states that arrest, detention or imprisonment of a child must be in accordance with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time29.

Any child who is detained should be held separately from adults unless it is in the childs interest to remain with a particular adult for example a parent. As seen earlier some countries like Rwanda are dealing with child soldiers in special courts called Gacacas. Having considered whether child soldiers have the criminal intent I now proceed to look at the possible defences for child soldiers in international criminal trials.

POSSIBLE DEFENCES FOR CHILD SOLDIERS .

Forceful recruitment.
28 29

Ibid. Article 37(b).

Existing international standards have underlined that the use of children as soldiers is an abuse of human rights30. The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict prohibits absolutely any forced recruitment of children under 18 into the armed forces31. It allows those under 18 to be recruited voluntarily to state armed forces under certain strict conditions to ensure that such recruitment is voluntary32. Article 4 of the Optional Protocol to the Convention on the Rights of the Child states that ''armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.'' This is an absolute prohibition.

ILO Convention No.182 on the Prohibition and Immediate Action for the Elimination of the Worst Form of Child Labour includes the prohibition of forced or compulsory recruitment of children under eighteen for use in armed conflict. These provisions in various international instruments follow the prohibitions on the use of children under fifteen in Additional Protocols I and II of 1977 to the Geneva Conventions of 1949. Both protocols forbid the recruitment of children under fifteen to armed forces and the use of children under fifteen in hostilities.

For instance the Ugandan government had to drop treason charges against two boys who had been forcibly recruited by the Lord's Resistance Army, a rebel group that has abducted approximately 20,000 children from Northern

30

Child Soldiers, Criminals or Victims? published in Amnesty International Library. AI Index: IOR 50/002/2000, 22 DEC 2000. 31 Article 2. 32 Article 3.

Uganda for use as soldiers, labourers, and sex slaves. Human rights Watch pressurized the government to drop the charges. Human Rights Watch argued that treason is a serious charge that should not be used against children particularly when children have been abducted by force and compelled to commit acts of violence33.

In a situation where crimes have been committed by children, particularly when they have been terrorized and brutalised into submission complex questions about their criminal responsibility are raised. For example in some cases in Sierra Leone, child soldiers were drugged and not in control of their actions, or were forced under threat of death to commit atrocities. It makes little sense to hold someone criminally responsible for their actions in such circumstances. Those who were threatened would be able to argue that they acted under duress either as a defence or in mitigation of punishment34.

Principle of command individual responsibility. This principle of command individual responsibility makes commanders criminally responsible for the actions of their subordinates where they gave a command to commit atrocities. The validity of this legal doctrine was confirmed in the Rome Statute under Article 28. The ICTY made a historical decision during the Blaskic case when it found a commander guilty of a war crime for the first time. At the time of the commission of the war crimes General Blaskic was a commander in the armed forces of Bosnia. The prosecutor alleged that the individual criminal
33 34

Treason Charges Against Former Child Soldiers Dropped. April 30 2003. Child Soldiers, Criminals or Victims? published in Amnesty International Library. AI Index: IOR 50/002/2000, 22 DEC 2000.

responsibility of General Blaskic for the alleged crimes was based on Art 7(1) and 7(3) of the ICTY statute. General Blaskic was not prosecuted for having personally committed any of the alleged crimes but rather having under Art 7(1) planned, instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of the alleged crimes. General Blaskic was also charged under Art 7(3) of the ICTY statute which provides that a superior will be held individually criminally responsible for crimes if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

The ICC currently pursuing high profile cases against those responsible for child recruitment. The ICC prosecutor has identified the DRC as a likely source of first cases for the court. Child recruitment has been a common feature of the war in the DRC. Prosecuting the top leadership of the armed groups in DRC for their recruitment and use of children would send a powerful message to others who seek children for their forces35. The commanders who controlled and gave orders to the child soldiers who committed atrocities should be prosecuted for the atrocities committed by those child soldiers under the doctrine of command responsibility.

Recruiters not child soldiers should be held responsible. "Recruitment36" covers any means by which a person becomes a member of the armed forces or of an armed group therefore it includes conscription
35 36

Jo Becker, Children as Weapons of War published in Human Rights Watch world report. See Junod in commentary on the Additional Protocols, Art 4, No/ 4557, Pg 1380.

(compulsory/obligatory military service), voluntary enlistment and forced recruitment. The understanding of the meaning of "participation in hostilities" was explained in relation to the provisions in the Rome Statute of the International Criminal Court as: "The words "using" and "participate" cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase or the use of domestic staff in an officer's married accommodation. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included within the terminology37." In its definition of war crimes the statute includes "conscripting or enlisting children under the age of fifteen years into national armed forces or using them to participate actively in hostilities38" and in the case of an internal armed conflict, "conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities39"

The CRC also contains specific provisions for the protection of children under fifteen years from recruitment into armies. As discussed earlier The Optional Protocol to Convention on the Rights of the child in Armed conflict outlaws compulsory recruitment of children under 18 years of age by armed forces (government and non-government). States have to ensure that members of
37 38

UN Document A/CONF 183/2/Add 1. Article 8(2)(b)(xxvi). 39 Article 8(2)(e)(vii).

their armed forces under age 18 do not take direct part in combat. It raised the minimum age for voluntary enlistment into armed forces to 16 years and included specific measures requiring proof of a wish to enlist by the volunteer and his/her parents. Finally it prohibited the recruitment or participation of anyone under 18 years in insurgency groups and rebel forces "under any circumstances"

There have been calls for the UN to "name and shame" offending parties in all conflicts on a yearly basis, in order to keep the spotlight on the international agenda and spur punitive action against those who continue to abuse children in this way. Such measures might include diplomatic isolation, curtailment of arms supplies or sources of financing, and criminal prosecution40. The May 2004 decision of the Appeals Chamber of the Special Court for Sierra Leone in Hinga Norman (Hinga Norman Child Recruitment Decision)

was a milestone in the enforcement of the crime of child recruitment41. The Appeals Chamber of the Special Court held that the recruitment of child soldiers, namely the conscription, enlistment and use to participate actively in hostilities of children aged under fifteen was a crime under customary international law attracting individual criminal responsibility. The Appeals Chamber elaborated in its decision that the recruitment and use of child soldiers was a crime under customary international law since at least November 1996, when the Special Court's temporal jurisdiction starts. In reaching this decision, the Court focused specifically on the relevant provisions of the 1949 Geneva Conventions and their 1977 Additional
40 41

Too Small to be fighting in anyones war, Child Soldiers IRIN Web Special, DEC 2003. Smith, Alison, Child Recruitment and the Special Court, Journal of Int Criminal Justice, 2004.

Protocols, as well as the Convention on the Rights of the Child 1989. From these sources the Appeals Chamber identified a customary international law norm that 'recruiting children was a criminal act in violation of international humanitarian law ... certainly by November 1996'.

The Appeals chamber acknowledged the principles set in the Rome Statute as reflecting customary international law. The relevant principles for the purposes of this discussion are the perpetrator conscripted or enlisted one or more persons into an armed force or group or use one or more persons to participate actively in hostilities and such person or persons were under the age of fifteen years42.

ALTERNATIVES TO CRIMINAL PROSECUTION OF CHILD SOLDIERS .

Truth and Reconciliation commissions. The Truth and reconciliation process enables abuses to be documented and provides an opportunity for children to tell their story and participate in the process of reconciliation. Children had played a huge part as victims and perpetrators of violence in the struggle against apartheid in South Africa.
42

Elements of Crimes for the International Criminal Court, UN doc. ICC-ASP/1/3, Art. 8(2)(e)(vii), emphasis added. The other elements are: the perpetrator knew or should have known that such person or persons were under the age of 15 years; the conduct took place in the context of and was associated with an armed conflict not of an international character; and the perpetrator was aware of factual circumstances that established the existence of the armed conflict.

Reflecting their significant role during the apartheid years children were involved in the truth and reconciliation process in South Africa headed by Archibishop Desmond Tutu . following the success of truth and reconciliation in South Africa, a commission was also established in Sierra Leone. The commission was established by the Truth and Reconciliation Act in February 2000. The commission provides a forum for hearing testimony of experiences of children in the armed conflict. It recognises the part children played in the conflict as perpetrators of atrocities, victims and witnesses43.

But not many countries are willing to follow the example set in South Africa and Sierra Leone. For instance the peace agreement in Liberia provides for a truth and reconciliation commission but the Liberian government was not in its favour arguing that they would not be justice and accountability for crimes committed by child soldiers. Many have also argued that justice is a luxury given the enormousness of Liberia's needs or that those who insist on accountability for heinous war crimes are spoilers, saboteurs of peace. But the price of a future cycle of violence is even higher44. Considering all the best interests of former child soldiers a truth and reconciliation process would be the best means of finding justice and accountability for crimes committed. The children will not feel victimised but be willing to share their experiences and deal with the emotional pain they went through during the armed conflicts.

43

Harvey Rachel, A guide to International Humanitarian and Human Rights Law. The Children and Armed Conflict Unit. University of Essex 44 Dufka Corinne, Liberia: Do not Forget the Crimes published in International Herald Tribune, Feb 6, 2004.

Rehabilitation. The rehabilitation of child soldiers is a paramount concern of international law: Article 6(3) of the Optional Protocol to the Convention on the Rights of the Child requires that ''States parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to this Protocol are demobilised or otherwise released from service. States parties shall, when necessary, accord to these persons all appropriate assistance for their physical and psychological recovery and social reintegration.'' International juvenile justice standards emphasize the rehabilitation of children and not punishment45.

Article 40 of the CRC emphasises that a person under eighteen

who is

undergoing a criminal investigation or trial must be treated with dignity and respect, and the aim of the criminal process is to increase the child's respect for human rights of others, and to promote his or her reintegration into society.

Thousands of children who have taken part in as soldiers in armed conflicts should be able to receive rehabilitation assistance and to return to their communities. Rehabilitation will foster a healing process for the communities involved in the armed conflicts and after rehabilitation children will end up not making the same mistakes as those who forced them into taking part in atrocities.

CONCLUSION.
45

Article 40(1) CRC.

In this paper I tried to clear up certain questions of criminal responsibility related to the crimes of child-soldiers in armed conflicts. The international law brings a relatively clear answers to these questions. The recruitment of children of less than fifteen years and their use to make them take an active part in hostilities constitute a war crime, confirmed in various international laws which engages the individual criminal responsibility for the recruiters. The responsibility for the States and the groups armed for violations with the international rules prohibiting recruitment with the children and their participation in hostilities is also well established. These violations can constitute a threat with international peaces and safety, which would allow - at least in theory - the imposition of sanctions on behalf of the Security Council of the United Nations. The principal inherent difficulties in these aspects rest on the application of the right, rather than on the interpretation of its provisions. The question of the criminal responsibility of the child-soldiers who have them committed crimes of international law is of a completely different nature and finds answers less direct. The examination of the international standards as regards youthful justice provides us important indications nevertheless. The solution which seems to best serve the best interests of the child should be directed towards non legal procedures, such as the activity of the commissions of truth and reconciliation, accompanied by programs of rehabilitation and social rehabilitation.

REFERENCES.
1. Additional Protocol I to the Geneva Convention (1977). 2. Additional Protocol II to the Geneva Convention (1977). 3. African Charter on the Rights and Welfare of the Child (1990). 4. Becker .J. Children as Weapons, Human Rights Watch World Report (2004). http://hrw.org/wr2k4. 5. Cassese. A. International Criminal Law ( Oxford University Press, New York, 2003).

6. Child Soldiers, Criminals or Victims, Amnesty International, AI Index: 10R50/002/2000, 22nd Dec 2000. www.anmesty.org/library. 7. Child Soldiers Global Report 2004 found at www.child-

soldiers.org/resources/global-reports. 8. Child Soldiers: Too Small to be Fighting in Anyones war, UN The Integrated Regional Information Networks (IRIN) web special Dec 2003. www.irinnews.org/webspecials/childsoldiers. 9. Coalition to Stop the Use of Child Reports. www.child-

soldiers.org/childsoldiers. 10. Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour. Otherwise known as The International Labour Organisations Convention 182 (1999). 11. Congo: Dont Execute Child Soldiers, Four Children to be Put to Death, News Releases, Human Rights Watch, May 2, 2001. www.hrw.org/children. 12. Convention on the Prevention and Punishment of the Crime of Genocide (1948). 13. Convention on the Rights of the Child (1989). 14. Cote dIvoire: Stop the Use of Child Soldiers Report by Amnesty International, AFR 31/003/2005. http://web.amnesty.org/library/eng364/index. 15. Debate on Justice and the Rule of the Law, Human Rights Watch Statement to the UN September 30 2004. found at www.hrw.org under international Justice documents.

16. Dufka. C. Liberia, Do Not Forget the Crimes, International Herald Tribune, February 6, 2004. 17. Faulkner. F. Kindergarten Killers: Morality, Murder and the Child Soldiers Problem, Third World Quarterly, Vol 22, No 4 (2001). Pg 491504. 18. Fontana. B. Child Soldiers and International Law, African Security Review, Vol 6, No 3, (1997). 19. Geneva Conventions of 1949. 20. Harvey. R. A Guide to International Humanitarian and Human Rights Law, Children and Armed Conflict unit. www.essex.ac.uk/armcon. 21. Hinga Norman Child Recruitment Decision. SCSL-2004-14-AR72(E) 31 May 2004. 22. How to Fight, How to Kill, Child Soldiers in Liberia, Report by Human Rights Watch 2004. http:hrw.org/reports/2004/liberia0204. 23. International Legal Standards Governing Child Soldiers , Human Rights Watch. www.hrw.org/campaigns/crp/intlaw. 24. Miller .R. Child Soldiers the Humanist, July-August 2002. 25. Morrill. C. F. Reconciliation and the Gacaca: The Perceptions and Peace Building Potential of Rwandan Youth Detainees.

www.trinstitute.org/ojpcr. 26. Mundis. D. A and Gaynor. F. Current Developments at the Ad Hoc International Criminal Tribunals, Journal of International Criminal Justice, 3(2005) pg 35-55. 27. Optional Protocol to the Convention on the Rights of the Child on the Involvement of the Child of Armed Conflict (2000).

28. Rome Statute of the International Criminal Court (1998). 29. Saroohi. D. Decisions of International Tribunals: Command

Responsibility and the Blaskic Case

edited by M.D Evans.

International Comparative Law Quarterly 50(2001) pg 456-465. 30. Smith. A. Child Recruitment and the Special Court for Sierra Leone, Journal of International Criminal Law (2004) 1141. 31. Steiner. H. J and Alston. P. International Human Rights in Context, Law, Political, Morals, (Oxford University Press, New York, 2000). 32. Treason Charges against Former Child Soldiers Dropped, News Releases, Human Rights Watch, April 30, 2003. 33. Uganda: Letter to the Minister of Justice, News Releases, Human Rights Watch, February 19, 2003. 34. United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Ga Resolution 44/33 , 29 Nov 1985 known as the Beijing Rules. 35. UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984). 36. Wells .S. Crimes against Child Soldiers in Armed Conflict Situations: Applications and Limits of International Humanitarian Law, Tulsa Journal of International and Comparative Law, 12(2004) 287. 37. Werle. G. and Jessberger. F. Unless Otherwise Provided: Article 30 of the ICC Statute and the Mental Elements of Crime Under International Criminal Law, Journal of International Criminal Justice, 3(2005) pg 268-295.