Statutory Age or Biological Determination: Examining the Conundrum of Culpability of Child Soldiers under International Criminal Law

Authored by Bolaji Alade

Abstract

This paper examines the roles child soldiers play in armed conflicts, their primary modes of enlistment, and the need for a robust approach to justice that recognises their unique developmental stages. While determining criminal culpability based on age is a common legal practice, it is often flawed due to variations in individual maturity influenced by genetic, nutritional, and environmental factors. This paper explores the progressive alternative of complementing age-based evaluations with forensic and biological analyses to assess maturity and criminal responsibility more accurately. The debate over the reliability of these methods is highlighted, with the United States Supreme Court advocating for their consideration. The Court emphasizes that several minors process information differently, necessitating standards that account for these differences. The paper proposes that the integration of forensic age estimation in determining the culpability of child soldiers can strengthen the principles of fairness and justice in the international legal order while ensuring that the unique developmental stages and rights of children are respected and protected.

1.????? Who is a child soldier?

A Child soldier can be defined as a "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”[i]? The recruitment and use of child soldiers are considered a grave violation of international humanitarian law and human rights. They are a form of child abuse – especially because these children are incapable of consent, and the practice can cause long-lasting physical and psychological harm.[ii]?

States that violate these international laws can be held accountable by international courts and tribunals, including the International Criminal Court.[iii] Additionally, the U.N. Security Council has made a resolve to impose sanctions on states that violate the prohibition on the recruitment and use of child soldiers.[iv] Overall, the use of child soldiers is illegal under international law, and states are required to take measures to prevent the recruitment and use of children in armed conflict. The involvement of children in armed conflict is either at the behest of the state or non-state actors.

2.????? State Actors' Conscription of Child Soldiers?

Conscription is simply the compulsory enrollment of persons, especially for military service.[v] And when it comes to conscription of child soldiers, government officials or members of a government's armed forces may conscript child soldiers for the government, especially when involved in armed conflict.[vi] This categorization can also be extended to include state-allied armed groups – armed groups not directly under the control of states but receive remote support in funding, and access to arms etc.[vii]

When any of these situations is in place, it can be established that there are state actors involved in child soldiers’ conscription. It is to discourage this practice that the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict[viii] which has been introduced to discourage the recruitment and use of children under the age of 18 in armed conflicts. States that have been indicted for active participation in child soldier conscription include Myanmar (formerly known as Burma). The Myanmar military has been accused of using child soldiers since the 1990s. In 2012, the United Nations identified Myanmar as one of the countries with the highest number of child soldiers in the world.[ix] In 2019, the International Criminal Court authorized an investigation into allegations of crimes against humanity committed by the Myanmar military, including the use of child soldiers.[x] Additionally, in 2018 the United Nations reported that over 19,000 children had been recruited by armed groups and government forces in South Sudan since the start of the civil war in 2013.[xi]

2.1 Non-state Actors Conscription of Child Soldiers?

Holding non-state actors accountable for child soldiers' conscription is not as easy as holding state actors accountable. This is primarily because most of the treaty obligations do not bind them directly – as only states are parties to a treaty –, even though they are often implicated in recruiting child soldiers.[xii] However, the Optional Protocol to the convention on the Rights of the child on the Involvement of Children in Armed Conflict (2000) in its Article 4[xiii] Has extended the duty to refrain from conscripting children under 18 non-state actors. Similarly, the Rome Statute equally provided penal provisions for state and non-state actors.[xiv] Equally, Rule 136 of Customary International Humanitarian Law[xv] prohibits conscription of children into state and non-state armed groups in international and non-international armed conflicts.?

Since its inception, the ICC has indicted and convicted a number of non-state actors for violating the rules against the conscription of children into armed conflict. They include but? are not limited to; Germain Katanga, former leader of the Patriotic Resistance Forces in Ituri? (FRPI) militia in the Democratic Republic of Congo, who was convicted by the ICC in 2014 of war crimes, including the use of child soldiers.[xvi] Furthermore, Dominic Ongwen, former commander of the Lord's Resistance Army (LRA) rebel group, was convicted by the ICC in 2021 of war crimes, including the use of child soldiers, committed in Uganda between 2002 and 2005.[xvii]

3.????? Various Roles played by a child soldier

Child soldiers are often forced into various roles, which are dangerous and exploitative. For ease of classification, this research adopts two broad classifications of the roles of child soldiers to wit: Combatants and Non-Combatants. Combatants in this context refer to young children who are forced to take a direct part in hostilities by bearing arms to attack or defend enemy forces. This also includes children suicide bombers sent to cause havoc in enemy camps. Non-combatants undertake support roles, on the other hand.? They are equally forced to function in assistive roles that ensure smooth operations of active?participants in the hostilities and all-around effectiveness of the entire armed group or armed forces. These roles include but are not limited to porters, messengers, cooks, and spies.[xviii] Other severe categories of support roles are sex slaves and human shields or hostages. As sex slaves, commanders and combatants rape children, especially girls, and subject them to all forms of sexual violence.[xix]

As hostages, these children are placed in front of military targets to deter enemy attacks or to prevent their own forces from being targeted. It's important to note that whatever role a child soldier may place, either as a combatant or non-combatant, it is still a violation of extant international laws.

4.????? Determination of Culpability of a Child Soldier

Determining a child's age under international law and municipal laws of different states is a function of international instruments and state legislation. Therefore, it is important to consider legal instruments to establish the age threshold for distinguishing a child from an adult. Although it is important to note that for monist states,[xx] their municipal laws age of majority is usually the same as the provisions in the treaties they are a party to. According to Article 1 of the United Nations Convention on the Right of the Child[xxi] "For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”. Similarly, according to Article 2 of the African Charter on the Rights and Welfare of the Child, a child means "every human being below the age of eighteen years."[xxii]

Notably, Article 26 of Rome Statute states that ‘The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.’ That is, the court shall have no jurisdiction over a perpetrator of international crime under the age of 18.

4.1 Analysis of the Determination of Culpability based on the Age Vis a Vis Biological Determination?(consider voluntary child Soldiers)

As established extensively above, several state laws determine culpability for criminal acts and omissions based on the age of the person.[xxiii] This norm is nevertheless not without criticism, especially as the period each child attains maturity may differ based on genetic, nutritional, and environmental factors inter alia.[xxiv] ?Also, the issue becomes complicated when one considers that there are instances where children voluntarily submit themselves to join armed groups as combatants for various reasons, primarily maltreatment and financial reasons in Africa.[xxv]

Therefore consideration ought to be being given to forensic and biological analysis as alternatives to evaluating maturity and, consequently, criminal culpability of humans.[xxvi] However, opinions seem to be divided with regard to the reliability of forensic and biological evaluation methods. The US Supreme Court[xxvii] taking sides with the imperative need to recognize forensic and biological evaluation in determining culpability of minor states that:

“The suspect's age is a relevant component of the objective custody analysis, as it would?affect "how a reasonable person in the suspect's position 'would perceive his or her freedom to leave.'…the court found the cognitive attributes and characteristics of juveniles to be sufficiently distinct as to require a standard of reasonableness that acknowledged and accounted for this difference. In short, the silence of the standard? itself did not undo the pervasive reality that teens process information and arrive at? conclusions in ways that are not only dictated by their immaturity and their level of? development but in ways that are different than those of adults…”[xxviii]

The court's rationale for favoring forensic and biological age determination is supported by solid justification, particularly in how forensic age estimation allows courts and government authorities to establish the official age of individuals, specifically unaccompanied refugee minors.[xxix] To fulfill this mandate, the utilization of forensic and biological examination may be deemed necessary. In this sense, the method's objective is to ensure the proper execution of age-dependent legal procedures in adherence to the principles of the rule of law[xxx] – Chiefly, fair treatment to all in light of their unique circumstance.

There cannot be a holistic analysis of the desirability of forensic and biological determination without highlighting its limitations. And since there is no one cap that fits all models for biological examination, the different methods have their limitations.[xxxi] An anthropologist, Kyra Stull[xxxii] acknowledging the method specific challenges faced in applying forensic psychology states that:

“The problem of estimating age is much more challenging with sub adults. The key issue is the error rate associated with forensic age estimations. While a five-year age? range is good for adult skeletal remains — determining that a person was between ages? 35 and 40 at death, for example — for sub adults that five-year range equals a? significantly larger relative error rate and loses much of its usefulness…There is no best? age indicator. From birth to [age] 20 there are a lot of changes and depending on where you are [on the timeline] one may be more informative than another.”

The submission above establishes inter alia that forensic methods are not infallible. Also of great concern is the fact that despite the growing focus on forensic evidence in recent years, there remains a scarcity of published empirical data that identifies the common types of evidence collected[xxxiii]. Thus, a complementary approach appear to be a progressive alternative. Overall, it must be noted that children's maturity is multifaceted and beyond biological development – it includes but is not limited to physical, emotional, social, intellectual, and ethical morality.[xxxiv]

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5.????? Conclusion

In conclusion, while age-based determinations of criminal culpability remain the extant position of international law, they are not without their limitations due to the varying factors influencing individual maturity. Embracing a dual approach of forensic and biological analyses offers a progressive alternative, particularly for cases involving voluntary child soldiers. The U.S. Supreme Court's recognition of these methods underscores the importance of distinguishing the distinct cognitive capacities and level of maturity of persons under 18 in legal proceedings. By expanding the framework of international law to recognize forensic age estimation, international criminal court and states domestic courts can ensure accurate assessments of mens rea thereby upholding the principles of fairness and justice in international law and ensuring that the unique developmental stages and rights of children are respected and protected.

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Bolaji Alade is a graduate of law from the University of Ibadan and an aspirant to the largest bar in Africa, the Nigerian Bar Association. You can contact him @ [email protected].

[i]International Committee of the Red Cross. (2012). Child soldiers - and other children associated with Armed Forces and Armed Groups. Retrieved April.. 24, 2023, from https://www.icrc.org/en/doc/assets/files/other/icrc-002- 0824.pdf?

[ii]UNICEF. (2022). Children recruited by Armed Forces or armed groups. Retrieved April. 24, 2023, from https://www.unicef.org/protection/children-recruited-by-armed-force. This definition adopted the 2007 Paris?Principles and Guidelines on Children Associated with Armed Forces or Armed Groups.

[iii] Article 5 of the Rome Statute

[iv] OHCHR. (2003). Secretary-general says using child soldiers can no longer be done with impunity, as Security Council holds day-long debate on children and armed conflict. . Retrieved April.. 25, 2023, from? https://www.ohchr.org/en/press-releases/2009/10/secretary-general-says-using-child-soldiers-can-no-longer-be done-impunity

[v] ?Merriam-Webster. (2023). Conscription definition & meaning. Merriam-Webster. Retrieved April.. 25, 2023,?from https://www.merriam?webster.com/dictionary/conscription.??

[vi] UNICEF. (2022). Children recruited by Armed Forces or armed groups. Retrieved April.. 24, 2023, from?https://www.unicef.org/protection/children-recruited-by-armed-force.??

[vii] Ruys, T. (2014). Of Arms, Funding and “Non-lethal Assistance”—Issues Surrounding Third-State

Intervention in the Syrian Civil War. Chinese Journal of International Law, Vol.13: 13-53

[viii] United Nations. (2000). Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. Retrieved April.. 25, 2023, from https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.22_crc-conflict.pdf??

[ix]Human Rights Watch. Oct. 16, 2002. Burma: World's highest number of child soldiers. Retrieved April.. 25,

2023, from https://www.hrw.org/news/2002/10/16/burma-worlds-highest-number-child-soldiers

[x] International Criminal Court (2019). ICC Pre-Trial Chamber I authorises the opening of an investigation into

the situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar. Retrieved April.. 24, 2023,

from https://www.icc-cpi.int/sites/default/files/itemsDocuments/QandA-bangladesh-myanmar-eng.pdf

[xi] United Nations. (2018). Report of the Secretary-General on children and armed conflict in South Sudan. Retrieved from https://undocs.org/S/2018/865?

[xii]International Review of the Red Cross. (2019). Engaging Armed Non-State Actors on the Prohibition of Recruiting and Using Children in Hostilities: Some Reflections from Geneva Call's Experience. Retrieved April..? 25, 2023, from https://library.icrc.org/library/docs/DOC/irrc-911-bongard.pdf??

[xiii]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”.?

[xiv] Article 8(2)(e)(vii) of the Rome Statute

[xv] International Humanitarian Law Databases. (n.d.). Rule 136. Recruitment of Child Soldiers. IHL. Retrieved? April. 25, 2023, from https://ihl-databases.icrc.org/en/customary-ihl/v1/rule136

[xvi] International Criminal Court. (2014). ICC Trial Chamber II delivers verdict in Germain Katanga case. Retrieved?April.. 25, 2023, from https://www.icc-cpi.int/sites/default/files/CaseInformationSheets/KatangaEng.pdf

[xvii] International Criminal Court. (2021). Dominic Ongwen declared guilty of war crimes and crimes against humanity committed in Uganda. Retrieved April.. 25, 2023, from https://www.icc-cpi.int/news ????

[xviii] United Nations. (n.d.). Child recruitment and use – office of the special representative of the secretary-general?for children and armed conflict. Retrieved April. 25, 2023, from https://childrenandarmedconflict.un.org/six-grave violations/child?soldiers/

[xix] Ibid

[xx]Fernando, C. (2014). Dualist and Monist theory. Academia.edu. Retrieved April.. 24, 2023, from? https://www.academia.edu/7796107/Dualist_and_Monist_Theory ?

[xxi]Convention on the Rights of the Child, Adopted and opened for signature, ratification, and accession by General?Assembly resolution 44/25 of 20 November 1989. Entered into force 2 September 1990

[xxii]African Charter on the Rights and Welfare of the Child. (1990). African charter on the rights and welfare of the child. Entered into force in 1999. Retrieved April.24, 2023,? from https://au.int/sites/default/files/treaties/36804-treaty-african_charter_on_rights_welfare_of_the_child.pdf

[xxiii] Gümü?, B., Karava?, E., & Tayda?, O. (n.d.). Can forensic radiological skeletal age estimation be performed?by examining ischiopubic-ilioischial-iliopubic synchondrosis in computed tomography. Retrieved Junee. 9, 2023,?from images?.https://journals.plos.org/plosone/article?id=10.1371%2Fjournal.pone.0266682

[xxiv]Silvano, M. and Lodovico, B. 2019. Why We Can't Determine Reliably the Age of a Subject on the Basis of His Maturation Degree. Journal of Forensic and Legal Medicine Vol. 61. P. 97-101?

[xxv] Ndongo, T. O., & Derivois, D. 2022. Understanding voluntary enrollment of child soldiers: A key to?reintegration. In Annales Médico-psychologiques, revue psychiatrique Vol. 180: No. 2. Elsevier Masson. P. 145- 148.?

[xxvi]Peterson, J., Sommers, I., Baskin, D., & Johnson, D. 2006. The role and impact of forensic evidence in the criminal justice process. Retrieved Junee. 9, 2023, from https://www.ojp.gov/pdffiles1/nij/grants/231977.pdf

[xxvii] In J.D.B. v. North Carolina, 131 S. Ct. 2394, 2403 (2011)?

[xxviii] Carroll, J.E. 2016. Brain Science and the Theory of Juvenile Mens Rea. North Carolina Law Review. Vol. 94? N.C. L. Rev. 539

[xxix]Schmeling, A., Dettmeyer, R., Rudolf, E., Vieth, V., & Geserick, G. 2016. Forensic Age Estimation. National? Library of Medicine – National Center for Biotechnology Information. Retrieved Junee. 9, 2023, from? https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4760148/?

[xxx] Ibid

[xxxi] Spradley, M. K. 2016. Metric methods for the biological profile in forensic anthropology: Sex, ancestry, and?stature. Academic forensic pathology. Retrieved Junee. 9, 2023, from? https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6474557/??

[xxxii] Kyra Stull: Anthropology. University of Nevada, Reno. Full profile Retrieved on June. 10, 2023, from? https://www.unr.edu/anthropology/faculty/kyra-stull?

[xxxiii] Spradley, M. K. 2016. Metric methods for the biological profile in forensic anthropology: Sex, ancestry, and?stature. Academic forensic pathology. Retrieved June. 9, 2023 from? https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6474557/??

[xxxiv] The Center for Parenting Education. (n.d.). Maturity Levels. Retrieved on June. 10, 2023, from? https://centerforparentingeducation.org/library-of-articles/child-development/maturity-levels/?

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