Tuesday, July 19, 2011

Child Soldiers: Cultural Challenges

This topic has been one I’ve wanted to explore for a while now.  This is the opportune time to do so and get some insights on the matter. It relates to the dilemma international law and more importantly, the International Criminal Court will likely be facing in the future, with regard to the issue of child soldiering. In particular, I am referring to the cultural perception of the crime as viewed from a non-Western interpretation.

There are various factors which may be seen as obstacles to the universal qualification of the concept ‘child’ soldier for one, and the implications which attach thereto under international criminal law. According to the famous American anthropologist and lawyer David Rosen, in his article entitled Child Soldiers, International Humanitarian Law and the Globalisation of Childhood an impasse is reached in understanding the concept of childhood.  I refer to a modern interpretation of the concept as understood from an international perspective. The current interpretation under international humanitarian, criminal and human rights law posits a single, universal understanding of the concept.

A distinction must be drawn between ‘a child in culture’ and ‘a child in law’. The latter definition holds fast to the position that children falling under the age category of 18 and who are recruited into or are attached to any regular or irregular armed group qualifies as a child soldier. This is referred to as the straight 18 position and exemplifies the view that the recruitment or deployment of any individual under the age of 18 is criminally punishable under international law. There is clearly an expected difference when you examine the concept ‘child in culture’. I will use the case of child soldiering in Sierra Leone as an example. The Poro and Sande culture in Sierra Leone holds that ‘to be a warrior is to be an adult’ and part of this culture involves initiation ceremonies where boys between the ages of ten or eleven, are kidnapped and taken into seclusion into the bush where they are prepared for the ways of adulthood.  This forms a distinct marker for their transition into adulthood.

Susan Shepler, in her article, also clearly explains and understands the phenomenon of child soldiering in Sierra Leone as opposed to a Western understanding of the phenomenon.  She defines child labour as an embedded part of Sierra Leonean society and in fact goes as far as to mention that it is not unusual for Sierra Leoneans to use children in their fighting forces as children have always been part of the labour force there. She also refers to the common practice of child fostering. Where Westerners perceive separating children from their nuclear family as being traumatic, many Sierra Leoneans, may in fact, according to her not perceive this in the same way. This practice is quite common within the family unit in Western Africa, where children have often been subject to the practice of exchange as a way to better further the development of the child. So according to her, abduction of children by RUF forces should be seen as an extension of fosterage.

Also, the realities of recruitment are not as clear cut as one would like to think. Not all children are abducted or removed from their families by force.  Interestingly enough, an in-depth study conducted in Burundi, Congo and the DRC, Liberia and Sierra Leone in 2003 revealed that two out of three present or former child soldiers took the initiative of voluntarily joining the armed forces themselves. Many authors have listed lack of food, lack of income, closure of schools, presence of armed groups in the vicinity, revenge, family protection and political motives as some of the risk factors which contribute to them joining voluntarily.   Prevailing current opinion stresses however, that these individuals should be seen as victims rather than criminals who through physical force and abduction have been transformed into brutal killing machines.

 History, however proves otherwise, and has shown that children have in the past taken up arms voluntarily, as was and is in the cases of Nazi Germany, Palestine and Iraq, but because Western armies have moved away from the practice of using children in war it increasingly became acceptable to label it as morally deplorable and barbaric. In fact attention to the problem of child soldiers under Human Rights Law is relatively recent.  The latter was verified in the Hinga Norman case, in the dissenting opinion of Judge Robertson. The opinion is significant since it addresses the issue whether child recruitment, was a crime under customary international law in Sierra Leone at the time it was committed by the defendant in question. Although the Appeals Chamber decided by a 3:1 majority that the recruitment and use of child soldiers was a crime under customary international law, a few points Judge Robertson makes raises some interesting thoughts. He explains that the defendant did not understand there to be a criminal law against enlisting children who volunteered to serve in the militia at the time in question. Although, ignorance of the law is no defence, it was ascertained that the defendant was not in a position to know that his conduct would have penal consequences, this because of the lack of state and international practice of criminalising the offence at the time in question (1996).

Of more significant mention, was that the Government of Sierra Leone acknowledged, in a report drawn up for the Committee on the Rights of the Child, that there was no minimum age set for the recruitment of persons into the armed forces, except for the Geneva Conventions.  Additionally, a UNICEF global report published in 2001 stated that the Sierra Leonean position was that children could be recruited at any age with the consent from parents and guardians under article 16(2) of the Royal Sierra Leone Military Forces Act, of 1961.

These points are revealing and provide strong support for the inferences made in the Shepler article I refer to above.  If child soldiering was in fact being perceived as a crime under Sierra Leonean law then would it not at that stage (1996) already have been criminalised as such? Furthermore, if there were no minimum age requirements set for persons entering the armed forces at that stage, then why would the recruitment of children be perceived as criminal under Sierra Leonean national law? If, in fact it was considered a crime by the government, would not an age limit be set to ban the use of children in its armed forces? It is also noticeable that by 2001 the sentiment had not really changed in Sierra Leone, the practice of recruiting persons of any age still was acceptable the only difference being the parental consent requirement. The truth of the matter is that having children form part of an army or irregular armed force is by no means uncommon in Sierra Leone and instead of cloaking it as something other than cultural in nature will not adequately address the case.

These and more cultural challenges like them are bound to come up before the International Criminal Court, as it did before the SCSL. Although the Rome Statute is landmark in its approach and in the strides it has made to the crime of conscription and enlistment of children (Article 8 (e) vii), since it is the first time that children are provided with legal protection in both international and non-international armed conflicts, there still is the issue of how to prosecute those responsible for the crime if the crime is not perceived as a crime by the offender and also under the national laws  and  culture of the offender? In other words, how to prove the mental element of a guilty intention if the mens rea requirement is lacking? Even though the crime may be prosecuted and a conviction sealed at the international level, the ICC will have to be satisfied with nothing less than ‘victor’s justice’ if it neglects to address these and other related cultural problems in the field of international criminal law.

If the International Criminal Court ignores culture, it might compromise its legitimacy both in Africa and internationally. Perhaps, it would be wise to consider cultural issues as a mitigating factor when meting out punishment against a particular defendant. This would naturally hinge on a strong cultural defence, an issue I will leave for a subsequent blog commentary.

Posted by Ingrid Roestenburg-Morgan

1 comment:

  1. Thank you Ingrid for this very relevant posting. I sincerely support your warning for ‘victor’s justice’ and wholeheartedly agree with your indirect call for a more pluralist view in the study of international criminal law. However, noting that ‘cloaking it – Child Soldiers in Sierra Leone– as something other than cultural in nature will not adequately address the case’, does not necessarily mean that the international legal community should consider a cultural defense for the crime of the conscription and enlistment of children for those being part of such culture.

    What if the crime is not perceived as a crime by the alleged offender? Well, to answer this question as brief as possible: the fact that the alleged offender holds the opinion that he could legally conscribe and enlist children, does not change the nature of the crime under international criminal law. It is and remains a war crime, which should be punished accordingly.

    Moreover, there are many other ways to address the cultural aspects of a case instead of a cultural defense. For example, Dutch criminal courts have referred to culture – in particular in cases on honour killing - with regard to appeals on force majeure or in measuring the punishment. However, just as honour killing remains murder, conscribing and enlisting children continues to be a war crime which deeply shocks, or at least should shock, the conscience of humanity.

    If this is considered a dissatisfying outcome, than the most obvious suggestion would indeed be to amend the Rome Statute. For example, one could amend article 8 section 2.b.(xxvi) part 2 of the Rome Statute into: ‘(C)onscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities, if done forcibly with no cultural traditional basis’ (as suggested on: http://debatewise.org/debates/2288-the-icc-should-allow-a-defence-of-cultural-relativism-to-the-crime-of-recruiting-and-using-child-soldiers)

    I am quite curious whether you would support such an amendment?