Abstract
The international community strives to eradicate the scourge of child soldiering. Mostly, though, these efforts replay the same narratives and circulate the same assumptions. This chapter, which takes a second look at these efforts, aspires to refresh law and policy so as to improve preventative, restorative, and remedial initiatives while also vivifying the dignity of youth. As a starting point, this chapter proposes that the dominant language used to characterise child soldiers—that of passive victimhood—be revisited so as to better recognise the potentiality of child soldiers to participate in and lead post-conflict reconstructive efforts. This chapter suggests a variety of reforms to the content and trajectory of law and policy in light of the complex, variegated realities of child soldiering. International lawyers and policymakers are predisposed to dissemble these complexities. Although understandable, this penchant ultimately is counterproductive. Along the way, this chapter also questions central tenets of contemporary humanitarianism, rethinks elements of international criminal justice, and aspires to embolden the rights of the child.
The author is Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University. This contribution herein, which reflects remarks delivered at the “Victims of International Crimes” Conference held at Philipps-Universität Marburg on October 7, 2011, integrally reproduces Chapter 1 of Drumbl 2012. All rights reserved in the original published work. Full development of the arguments introduced in this contribution is found in Drumbl 2012.
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Notes
- 1.
Cape Town Principles and Best Practices 2007 April 27–30, 1997, Definitions. Available at http://www.unicef.org/emerg/files/Cape_Town_Principles(1).pdf. A child soldier is ‘any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members’. The definition explicitly includes girls recruited for sexual purposes and forced marriage and affirms that it ‘does not, therefore, only refer to a child who is carrying or has carried arms’ (hereinafter Cape Town Principles).
- 2.
The Paris Principles: Principles and Guidelines on Children Associated with Armed Forces or Armed Groups 2007, Prin. 2.1. Available at http://www.icrc.org/eng/assets/files/others/parisprinciples-en[1].pdf. Accessed 13 April 2013 (hereinafter Paris Principles). As of September 2010, ninety-five states have endorsed the Paris Commitments, which the Paris Principles accompany.
- 3.
Yet another term of art circulated by experts is ‘children associated with fighting forces.’
- 4.
For example, UNICEF ‘joins other organizations, child rights advocates and NGOs in advocating a “straight 18 ban” on all recruitment, compulsory or voluntary and participation of children under 18 in hostilities.’ UNICEF (2010) Adult Wars, Child Soldiers: Voices of Children Involved in Armed Conflict in the East Asia and Pacific Region, p. 12; see also Human Rights Watch (2007) Sold to be Soldiers: The Recruitment and Use of Child Soldiers in Burma, p. 14, calling on the Burmese government to cease recruiting and to demobilize children younger than eighteen from armed forces, and also to ‘[d]evelop and impose effective and appropriate sanctions against individuals found to be recruiting children under 18 into the armed forces’.
- 5.
The term ‘best practices’ (also, ‘good practices’) initially arose within corporate planning and has now entered the lexicon of domestic and international administrative law. Best practices are not formally binding rules. They refer to consensually agreed upon regulatory measures and processes, often informal in nature, that over time crystallize into preferential models. Because of their iterated use and replication, best practices acquire a quasi-legal character.
- 6.
Coalition to Stop the Use of Child Soldiers (2008) Child Soldiers Global Report 2008, p. 12.
- 7.
Referencing the Lord’s Resistance Army (LRA), a notorious rebel group in Northern Uganda, Ben Mergelsberg notes: ‘The narrative of the LRA abducting young, innocent children, brainwashing them and forcing them to fight is common in the media. It evokes a generalized image of the child soldier as a vulnerable innocent without any agency, brutally abducted, drugged and turned into a monster.’ Mergelsberg 2010, p. 156. Mergelsberg, however, adds that: ‘[T]he view of helpless children without agency in what has happened to them often does not correspond to their actual experiences. Passive victims on first sight, they turned out during my fieldwork to be active survivors with a good sense of why they were fighting, how they survived and what they needed most after their return.’ Id. at 156–157.
- 8.
Denov 2010, pp. 5–14, elegantly discusses portrayals and representations of the child soldier, which she chides for their extremism and exoticism.
- 9.
Otunnu 2000, pp. 48, 49. Available at http://www2.lse.ac.uk/internationalDevelopment//pdf/WP05.pdf. Otunnu, an eminent public servant, served as the UN Special Representative for Children and Armed Conflict from 1997 to 2005.
- 10.
Dallaire 2010, pp. 3, 12, 15, 150, also referring to former child soldiers as ‘immature souls in small bodies’. Dallaire, now a Senator in Canada, is well-known for his outspoken role as commander of the UN Assistance Mission for Rwanda during the country’s 1994 genocide. He recently has oriented his efforts to eradicating child soldiering. To this end, he founded the Child Soldiers Initiative.
- 11.
Singer 2006, p. 38.
- 12.
Denov 2010, pp. 9–10, noting also the celebrity status of some high-profile child soldiers viewed as heroically transcending from violence to redemption.
- 13.
UNICEF Innocenti Research Centre in cooperation with the International Center for Transitional Justice (2010) Children and Truth Commissions, p. 47 (citation omitted), hereinafter Children and Truth Commissions.
- 14.
Denov 2010, p. 6; see also Blattman and Annan 2010, p. 882, reporting on and critiquing the use of this imagery; Wessells 2006, p. 45 (first paperback 2009) noting that ‘this portrayal contradicts much evidence and does injustice to the rich interplay between personal and situational influences on decisions to become soldiers’.
- 15.
Wessells 2006, p. 9, citing a 2005 Save the Children Report.
- 16.
Cf. Utas 2003, pp. 7–8, noting that ‘the perspective of humanitarian aid agencies (Save the Children/UNICEF, in particular) will often describe child soldiers, and deal with them, solely as victims’; Boyden and de Berry 2004, pp. xi, xv, ‘[C]hildren and adolescents are portrayed as the passive recipients of adult agency, the victims of wars waged by others and of brutality that is alien and imposed.… Personal volition is denied and emphasis given to their vulnerability and helplessness …’; Ben-Ari 2009, pp. 1, 13: ‘Even a cursory review of the websites devoted to young soldiers reveals the extent to which visual representations in photographs or drawings are designed to evoke images of blamelessness and helplessness.’
- 17.
These actors may participate in conferences in which states negotiate and adopt major multilateral treaties.
- 18.
The term ‘international legal imagination’ is not coined herein as a neologism, but no other scholarship appears to meaningfully address, define, or deploy it as an analytic tool. Among a tiny handful of unrelated references thereto in the published literature is Landauer 2011, p. 557, mentioning this term in passing without definition or deployment.
- 19.
For use of such language, see, e.g., Lonegan 2011, p. 71.
- 20.
Denov 2010, p. 14.
- 21.
For a typical presentation, see Spiga 2010, pp. 183, 192: ‘It is common knowledge that children are often forced to take up arms and have little choice on whether or not to enlist; after their recruitment, they are coerced to commit actions, of which—in most cases—they have little understanding.’. The international legal imagination, however, stiffly balks at generalizing this explanatory account in cases of perpetrators aged 18 or older. For this group ‘following orders’ is a paltry defense.
- 22.
Dallaire 2010, pp. 3, 138, also describing some child soldiers as ‘zombies’. Noting that Dallaire’s book ‘[p]arallel[s] [his] own childhood, in which he spun fictional worlds in the forests beyond his family’s log cabin … [and is] inspired by Antoine de Saint-Exupéry’s Le Petit Prince,’ one reviewer lauded it for ‘perfectly captur[ing] the innocence and experience of childhood that war so savagely steals from them.’ Nutt S (2005) Arms and the child, The Globe and Mail (November 5, 2010).
- 23.
This impulse even arises in the work of Jeff McMahan, a leading moral philosopher, in his otherwise brilliantly nuanced discussion. McMahan 2007, pp. 9–10 (cited with permission) offering the following as an illustrative hypothetical case: an eight year-old boy, forced by a group of armed men to kill his best friend in view of his entire village, and then abducted to a camp; after several years of indoctrination, brutalisation, and training, he is administered drugs, given a light automatic weapon, and sent to fight for an unjust cause at the age of eleven or twelve.
- 24.
I draw the concept of social navigation from Mats Utas. See Utas 2005, pp. 403, 408, 426.
- 25.
See, e.g., http://www.warchild.org.uk/issues/child-soldiers (accessed on June 24, 2011).
- 26.
Hart 2006, pp. 5, 7: ‘The authors of global accounts of “child soldiers”… have little time for the idea that children may be capable of exercising any real measure of choice about recruitment.…[T]he very notion of voluntary recruitment is largely an illusion.’
- 27.
Over time, as hardships weigh on them, these children may come to regret their decision. Some of them then exit, while others are compelled to stay; others persist and remain with the group; some advance within the ranks. Longitudinally, these latter cases become considerably more ambiguous.
- 28.
Singer 2006, p. 62. Singer’s book relies heavily on humanitarian and human rights reports, journalistic accounts, psychology scholarship, and military/security studies literature. It makes only marginal reference to ethnographic or anthropological work. See also generally Office of the Special Representative of the Secretary-General for Children and Armed Conflict (2011) Children and Justice During and in the Aftermath of Armed Conflict (Working Paper No. 3, September 2011), p. 10: ‘Children … lack the mental maturity and judgment to express consent or to fully understand the implications of their actions.’ (hereinafter Children and Justice).
- 29.
I very occasionally turn to the phrases ‘child combatant’ or ‘child ex-combatant’ specifically to refer to child soldiers who have materially (as opposed to incidentally) fulfilled combat roles.
- 30.
Wessells 2006, p. 71: ‘Contrary to popular conceptions, many child soldiers never fight, and many neither carry their own weapon nor know how to use one.’; Ben-Ari 229, p. 1, reporting that children ‘sometimes act as combatants who directly participate in hostilities [but] more often they are deployed as auxiliaries … or in various support roles’.
- 31.
Honwana 2005, pp. 31, 37.
- 32.
This is the title of a prominent novel which tracks the story of Agu, a fictional child soldier, Iweala 2005. On this note, many documentaries, movies, novels, memoirs, and autobiographies evoke the vicissitudes of the child soldier. For a handful of examples, see Kourouma 2000; Keitetsi 2002; McDonnell and Akallo 2007; Blood Diamond (2006, dir. Edward Zwick); Wit Licht (2008, recut as The Silent Army, dir. Jean van de Velde).
- 33.
Kamara with McClelland 2008, pp. 40–41, Sierra Leonean author Kamara describes how, as a child, she became a double amputee: ‘Two boys steadied me as my body began to sway. As the machete came down, things went silent. I closed my eyes tightly, but then they popped open and I saw everything. It took the boy two attempts to cut off my right hand. The first swipe didn’t get through the bones, which I saw sticking out in all different shapes and sizes.’.
- 34.
Wessells 2006, p. 74: ‘The lives of child combatants exhibit significant diversity, cautioning against stereotypes of child combatants as bloodthirsty predators or innocents herded onto the killing fields.’.
- 35.
Paris Principles (2007) Prin. 3.8 (also adding the stipulation that child participation must be by informed consent of both the child and parent or guardian where appropriate and possible) and 8.16.
- 36.
Id. Prin. 8.15.
- 37.
See, e.g., REDRESS Trust (2006) Victims, Perpetrators or Heroes? Child Soldiers before the International Criminal Court, p. 1: ‘It is recommended that the ICC should follow suit and raise the legal age of child recruitment, enlisting or “use” from fifteen to eighteen.’; UNDDR (2006) Integrated Disarmament, Demobilization and Reintegration Standards (IDDRS) Sect. 5.30, p. 23, available at http://www.unddr.org/iddrs/05/download/IDDRS_530.pdf: ‘It is a serious breach of international humanitarian law, human rights law and international criminal law to use children as soldiers under the age of 15, and in most circumstances to use children under 18.’.
- 38.
Fuller 1967, p. 9, a fiction is ‘either (1) a statement propounded with a complete or partial consciousness of its falsity, or (2) a false statement recognized as having utility’.
- 39.
Id., p. 5.
- 40.
- 41.
Id.
- 42.
Together with their adult counterparts, many—but certainly not all, and in some jurisdictions only few—child soldiers may return to their communities of origin through disarmament, demobilization (release), and reintegration (DDR) programs. Disarmament involves the collection of weapons. Demobilization means the discharge of individuals from fighting forces. Reintegration is the step through which the former fighter transitions to a civilian role.
- 43.
I borrow political scientist Phil Clark’s unorthodox use of the term ‘endogenous’ to describe ceremonies, rites, and rituals that arise, often informally, at the local level to promote social repair and purification following wrongful conduct. I also deploy the more conventional terms ‘traditional’ and ‘customary’ in this regard. I recognize the contested meaning and use of these terms, but turn to them only descriptively and purely out of convenience. I do not aim to theorise these terms.
- 44.
In October 2010, a US Military Commission convicted Khadr through a plea bargain of charges that included violating the laws of war. Khadr pleaded guilty to five charges—including throwing a grenade in a 2002 firefight that killed a US combatant, Christopher Speer, in Afghanistan—as well as various other crimes in connection with terrorist activity. He was formally sentenced by a military jury to forty years’ imprisonment. Because of a diplomatic agreement, however, Khadr will likely be repatriated to Canada to serve out seven years of his sentence (which the agreement capped at eight years in total) in accordance with Canadian law. Savage C (2010) Guantánamo Detainee’s Guilty Plea Averts Trial, N.Y. Times (October 25, 2010), on file with author. Khadr was not credited for the eight years he had spent in detention prior to his conviction. Khadr was fifteen years old at the time of his capture by US forces. In addition to his age, his lengthy pre-trial detention by the US at Guantánamo Bay (he was twenty-four years old at the time he pleaded guilty), and the problematic conditions he faced while in custody, Khadr’s situation is controversial owing to evidence that confessions he allegedly made had been secured following implicit threats of gang rape. Savage C (2010) U.S. Wary of Example Set by Tribunal Case, N.Y. Times (August 27, 2010).
- 45.
Drumbl 2007, pp. 149–180.
- 46.
Id.
- 47.
Regarding transitional justice and resistance to atrocity, see Leebaw 2011.
- 48.
Boyden and de Berry 2004, p. xv.
- 49.
Shepler 2005, pp. 197, 198.
- 50.
Children and Truth Commissions, pp. x–xi, 65; Parmar et al. 2010 Annex (Key Operational Principles); Children and Justice, pp. 27, 39, encouraging restorative, rehabilitative, and traditional justice processes.
- 51.
Aptel C (2010) International Criminal Justice and Child Protection. In Parmar et al., pp. 67, 107–111.
- 52.
For example, Human Rights Watch’s suggestion that former child soldiers ‘participat[e] in restorative justice processes to help the child acknowledge their actions and gain reacceptance by the community’ is hampered by the very foundational images Human Rights Watch disseminates about children as choicelessly coerced into fighting and unthinkingly committing violent acts. Human Rights Watch (2008) Coercion and Intimidation of Child Soldiers to Participate in Violence, p. 15. The IDDRS encourages more robust connections between transitional justice and DDR programming—including for child soldiers, for whom restorative mechanisms notably are discussed. Notwithstanding their innovative nature, the IDDRS recommendations also remain cabined by the IDDRS’s depiction that ‘[f]ormer child soldiers are victims of criminal policies for which adults are responsible.’ UNDDR (2006) Integrated Disarmament, Demobilization and Reintegration Standards (IDDRS) Sect. 5.30, p. 9.
References
Ben-Ari E (2009) Facing child soldiers, moral issues, and “real soldiering”: anthropological perspectives on professional armed forces. Scientia Militaria: S Afr J Mil Stud 37(1):1–24
Blattman C, Annan J (2010) The consequences of child soldiering. REStat 92(4):882–898
Boyden J, de Berry J (2004) Introduction. In: Boyden J, de Berry J (eds) Children and youth on the front line: ethnography, armed conflict and displacement. Berghahn Books, Oxford
Cape Town Principles and Best Practices (2007) April 27–30, 1997, Definitions. http://www.unicef.org/emerg/files/Cape_Town_Principles(1).pdf. Accessed 13 April 2013
Dallaire R (2010) They fight like soldiers, they die like children. Random House UK, London
Denov M (2010) Child soldiers: Sierra Leone’s revolutionary united front. CUP, Cambridge
Drumbl MA (2007) Atrocity, punishment, and international law. CUP, New York
Drumbl MA (2012) Reimagining child soldiers in international law and policy. OUP, Oxford
Fuller LL (1967) Legal fictions. Stanford University Press, Stanford
Hart J (2006) Saving children: what role for anthropology? AT 22(1):5–8
Honwana A (2005) Innocent and guilty: child-soldiers as interstitial and tactical agents. In: Honwana A, de Boeck F (eds) Makers and breakers: children and youth in Postcolonial Africa. James Currey, Oxford, pp. 31–51
Iweala U (2005) Beasts of no nation: a novel. HarperCollins, New York
Kamara M, McClelland S (2008) The bite of the mango. Annick Press, New York
Keitetsi C (2002) Child soldier: fighting for my life. Jacana, Johannesburg
Kourouma A (2000) Allah n’est pas obligé. Seuil, Paris
Landauer C (2011) Regionalism, geography, and the international legal imagination. CJIL 11:557–595
Leebaw B (2011) Judging state-sponsored violence, imagining political change. CUP, New York
Lonegan B (2011) Sinners or saints: child soldiers and the persecutor bar to asylum after Negusie v. Holder. BCTWLJ 31:71–99
McDonnell FJH, Akallo G (2007) Girl soldier: a story of hope for Northern Uganda’s children. Chosen Books, Grand Rapids, MI
McMahan J (2007) Child soldiers: the ethical perspective. Working Paper, Ford Institute for Human Security
Mergelsberg B (2010) Between two worlds: former LRA soldiers in Northern Uganda. In: Allen T, Vlassenroot K (eds) The Lord’s resistance army: myth and reality. Zed Books, London
Otunnu O (2000) Keynote Address: The Convention and Children in Situations of Armed Conflict. In: Carlson L, Mackeson-Sandbach M, Allen T (eds) Children in extreme situations, Working Paper Series No. 00–05, LSE Development Studies Institute, p. 48–57. http://www.lse.ac.uk/internationalDevelopment//pdf/WP05.pdf. Accessed 13 April 2013
Parmar S, Roseman MJ, Siegrist S, Sowa T (eds) (2010) Children and transitional justice: truth-telling, accountability and reconciliation. UNICEF Innocenti Research Centre and Human Rights Program at Harvard Law School
Shepler S (2005) The rites of the child: global discourses of youth and reintegrating child soldiers in Sierra Leone. JHR 4:197–211
Singer PW (2006) Children at war. University of California Press, Berkeley
Spiga V (2010) Indirect victims’ participation in the Lubanga trial. JICJ 8:183–198
The Paris Principles: principles and guidelines on children associated with armed forces or armed groups (2007), Prin. 2.1. http://www.icrc.org/eng/assets/files/others/parisprinciples_en[1].pdf. Accessed 13 April 2013
Utas M (2003) Sweet battlefields: youth and the Liberian civil war. Uppsala University Dissertations in Cultural Anthropology, Uppsala
Utas M (2005) Victimcy, girlfriending, soldiering: tactic agency in a young woman’s social navigation of the Liberian war zone. AQ 2(78):403–430
Vaihinger H (1920) Die Philosophie des Als Ob, 4th edn. Verlag Felix Meiner, Leipzig
Wessells M (2006) Child soldiers: from violence to protection. Harvard University Press, Cambridge, MA
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Drumbl, M.A. (2013). Transcending Victimhood: Child Soldiers and Restorative Justice. In: Bonacker, T., Safferling, C. (eds) Victims of International Crimes: An Interdisciplinary Discourse. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-912-2_8
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