Human Rights

Child soldiers are the victims of horrific war crimes under international law

SuhasaniRao-Kashyap.jpgThe history of the presence of children in armed conflict is as old as human civilisation. From Ancient Greece to the Middle Ages in Western Europe, children as young as ten have been actively conscripted into armies. They have been present in armed conflict in three roles — as baggage, that is, as members of families that tagged along with armed forces on military campaigns; as providers of services to armed forces in various capacities such as cooks, charioteers, and servants; and lastly, as direct participants in hostilities. Whether participants in armed conflict or just suffering its effects, children are the victims.

Why are children drawn into armed conflicts? To start with, they are very obedient. They are docile and do not question orders. Fear induced by threats of abuse and physical and sexual intimidation works far is far more effective on young and impressionable minds. More disturbingly, child soldiers are often drugged to create dependency-induced obedience. Children also need less food. With modern lightweight weaponry, children can also be armed to the teeth and require far less training than adults. The most soul-wrenching aspect of this evil however, is that children do not have a developed sense of morality. Morality is a product of conditioning and development. Children deprived of circumstances that provide this very necessary moral compass can be moulded into ruthless killing machines, remorseless and empty of guilt. Using children in armed conflict is unfortunately, a very profitable exercise.

Image above is from Wikimedia Commons and has been published under a Free Art License.
Image above is from Wikimedia Commons and has been published under a Free Art License.

Modern international law prohibits the presence of children in armed hostilities. Since the Second World War, humanitarian law and the law of armed conflict have evolved constantly to provide greater protection to the most vulnerable and most affected members of society during war.

Today, it is generally accepted that children are not to be recruited into armed forces for any reason. However, international law remains divided on the issue of who exactly a child is.

On one hand, the First Additional Protocol to the four Geneva Conventions of 1949, at Article 77 (2), applicable to international armed conflict states:

“The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest.”

Similarly, the Second Additional Protocol to the Geneva Conventions, at Article 4 (3) (applicable to non-international armed conflicts), states:

Children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities”.

These Protocols, read with the four Geneva Conventions, form the core of modern international humanitarian law.

Apart from humanitarian law, the prohibition on the conscription of children below the age of fifteen has also found distinct mention in international criminal law. The Rome Statute that governs the ICC, at Article 8(2)(b)(xxvi), regards “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities” as a war crime.

The African Charter on the Rights and Welfare of the Child, at Article 2, on the other hand, unequivocally defines a child as “every human being below the age of 18”. At Article 22(2), it clearly mandates State Parties to ensure that children do not participate in armed hostilities. Further, children cannot be recruited into armed forces.

In 2007, under the aegis of UNICEF, seventy-six member countries adopted the Paris Principles and Guidelines on Children Associated with Armed Conflict or Armed Groups. At Principle 2, a child is defined as “any person less than 18 years of age”. This is in keeping with the United Nations Convention on the Rights’ of the Child that entered into force in 1990. At the outset, in Article 1, the Convention defines a child as one who has not attained the age of eighteen or the age of majority under the law to which the child is subject.

As is evident, international opinion is divided on the age at which children achieve majority. In spite of these differences however, it can be said that it is now a principle of customary international law that children must not be recruited into armed forces and must not be permitted to participate in hostilities – directly or indirectly.

A child in a rebel camp in the Central African Republic. Image above is from Wikimedia Commons and has been published under a CC BY-SA 2.0 license.
A child in a rebel camp in the Central African Republic. Image above is from Wikimedia Commons and has been published under a CC BY-SA 2.0 license.

The past three years have seen a resurgence of public interest in the involvement of children in armed hostilities. On July 10, 2012, Thomas Lubanga Dyilo became the first person to be convicted by the International Criminal Court (“ICC”) for war crimes, crimes against humanity, and the conscription of child soldiers in armed conflict. He is serving the last eight years of his fourteen-year sentence.

Last year, a short film based on child soldiers and the hostilities in Uganda created ripples in the international online community. It brought to light Uganda’s Joseph Kony and his Lord’s Resistance Army.

In 2009, Human Rights Watch published its Global Report on the situation of child soldiers. You can read more about it here. Similarly, UNICEF publishes an annual Fact Sheet on the phenomenon, and tracks governmental response to the situation across the world. Interestingly, it is Burma (Myanmar) that seems to have the largest number of child soldiers – about 70,000 of them in its army of almost 350,000 members.

Most recently, the Appeals Chamber of the Special Court of Sierra Leone upheld the conviction of Charles Ghankay Taylor of Liberia on eleven counts of war crimes, crimes against humanity, and other violations of international law, including the use of child soldiers in armed conflict. Charles Taylor was one of the first leaders of armed forces in Africa to not only conscript children (mostly between the ages of five and seventeen) but to have dedicated armed Small Boys’ Units and Small Girls’ Units in his army.

Under international humanitarian law and international criminal law today, child soldiers are not seen as perpetrators of war crimes but as the victims of the most heinous of such crimes. While the international community debates the exact definition of a child, these young ones suffer in the midst of some horrific armed hostilities.

(Suhasini Rao-Kashyap is part of the faculty on

Human Rights

15 years of Prosecutor v. Akayesu, where rape became genocide

Today (September 2) marks the fifteenth anniversary of the landmark case of Prosecutor v. Akayesu. This case was a triumph of sorts for humanity. It was the first time that the 1948 Convention on the Prevention and Punishment of the Crime of Genocide  (“the Geneva Convention”) was enforced by an international judicial body for the conviction of the crime of genocide. This judgment also finally got rid of the overpowering requirement of direct action in the crime of rape, which has been a form of intimidation on the battlefield since time immemorial.

The International Criminal Tribunal for Rwanda building in Kigali. Image from Wikimedia Commons, published under a CC BY-SA 3.0 license.
The building housing the International Criminal Tribunal for Rwanda in Kigali. Image from Wikimedia Commons, published under a CC BY-SA 3.0 license.

For purists in particular, it is still hard to reconcile the presence of mens rea in the absence of direct and personal actus reus. This line of argument sees rape as a genocidal offence only when committed in person. Prosecutor v. Akayesu elevated the discussion. At a very basic level, it attributed the multiple acts of sexual violence (including rape), carried out in times of armed conflict under the orders or with the knowledge of a commander, to the commander.

Genocide, defined under Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide is one of the crimes under international law. The subject area of heinous crimes committed during and in the course of armed conflict developed into a substantial body of jurisprudence in its own right after the Second World War. The emergence of the Geneva Conventions brought about world-wide awareness of the atrocities that human beings are known to inflict on each other in times of war. International criminal law now consists of the conventions and rules of armed conflict — both international and non-international — and the rules that govern the conduct of hostilities.

After it was first coined in 1944, the term “genocide” came to be used with terrifying frequency. It refers to various acts carried out with the intent of exterminating an entire population, based among other things, on identities associated with race, religion, ethnicity, language, and nationality.

During the Rwandan genocide, Jean-Paul Akayesu, a Rwandan born in 1953, was the mayor of the commune of Taba. As a Hutu politician of the Democratic Republican Movement, his was a story of extreme forms of hatred and ethnic violence. In October 1995, Mr. Akayesu was arrested and extradited from Zambia, to stand trial for fifteen counts of various acts of genocide, crimes against humanity, and other violations of the Geneva Convention, including rape under the theory of command responsibility. Acts of rape, it was argued, could be read into the words “causing serious bodily or mental harm to members of the group” in Article 2 (b).

The International Criminal Tribunal for Rwanda defined the act of rape in the following decisive and clear terms.

“598. The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence which includes rape, is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive. This act must be committed:

(a) as part of a wide spread or systematic attack;

(b) on a civilian population;

(c) on certained catalogued discriminatory grounds, namely: national, ethnic, political, racial, or religious grounds.

This was a milestone in international criminal jurisprudence because for the first time, it was openly acknowledged that rape is a form of intimidation and coercion. For hundreds of thousands of survivors of rape and other sexual crimes from those genocidal one hundred days in Rwanda, the statement signaled the beginning of the painful journey to recovery.

In the context of armed conflict or a situation of extreme turmoil, the International Criminal Tribunal for Rwanda provided context to the act of rape as an offence of genocide as follows.

A painting from the Széchényi National Library in Budapest depicting the Mongols (on the left, with captured women) in Hungary. The Hungarians, with one saved woman, are on the right.
A painting from the Széchényi National Library in Budapest depicting the Mongols (on the left, with captured women) in Hungary. The Hungarians, with one saved woman, are on the right.

Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

In the context of a Government official such as Mr. Akayesu, this exposition of the law contained potentially massive implications. For as long as the jurisprudence of sexual violence has existed, it has been an uphill struggle for the victim to prove complicity or instigation on the part of a perpetrator when the perpetrator has had no personal, direct, or immediate involvement in the actual act of rape.

On September 2, 1998, the Tribunal found him guilty for nine of the fifteen counts and sentenced him to life imprisonment for each of the nine offences. The sentences run concurrently as he serves his time in Mali.

(Suhasini Rao-Kashyap is part of the faculty on

International Law

India and the new aggression – Part 1

Sanhita Ambast writes about international law and international relations.Map Reproduction Courtesy of the Norman B. Leventhal Map Center at the Boston Public Library.

Map Reproduction Courtesy of the Norman B. Leventhal Map Center at the Boston Public Library.

An extremely interesting enquiry today is the Indian state’s engagement with international law. Despite its growing stature in the international community, India is still not signatory to several important international instruments and does not implement several other treaties that it is signatory to. This exceptionalism warrants examination, especially when India’s oft-stated reason for not signing and complying with international law is the regime’s inherent politicisation and prevalent hypocrisy. The contest between international law and international politics is not new, and recent developments – from the war against Iraq to the failure of the Bashir arrest warrants – raise the following crucial question: is there really an international law distinct from international politics?

I hope to explore both these questions –of India’s engagement with international law and of the line between international law and politics – in a series of pieces dedicated to the result of the recent Review Conference on the Rome Statute of the International Criminal Court (ICC) which took place in Kampala, Uganda earlier this year. Here the international community, by consensus, adopted a definition for the crime of aggression and agreed to a plan for its implementation. Resultant notable amendments to the Rome Statute include the definition of a ‘crime of aggression’ being linked to an ‘act of aggression … constituting a manifest violation of the United Nations Charter’ [article 8 bis]; the ability of the ICC to prosecute aggression independent of the Security Council in certain circumstances [article 15 bis]; more leeway to states in terms of accepting ICC jurisdiction and an increased role for the prosecutor.

It is interesting that that these amendments impact India’s four reasons for not signing the Rome Statute, which are explained here. First¸ India has been concerned about the wide range of powers conferred on the Security Council in the Rome Statute and the control a political body will exercise on what should be a purely legal process. This, prior to the Review Conference, included the Security Council’s monopoly over acts of aggression and article 16 of the Rome Statute (which allows the Security Council to delay ICC prosecutions indefinitely). Second, India is opposed to certain crimes under the jurisdiction of the Rome Statute – in 1998, the Rome Statute did not criminalise the use of nuclear weapons and other weapons of mass destruction. Furthermore, crimes against humanity and war crimes were defined too broadly for India’s liking and included ‘internal’ matters that should fall within the ‘domestic’ jurisdiction of states. Linked to this is India’s third objection to the Rome Statute, the idea of complimentarity and the jurisdiction of the ICC to decide when a country was ‘able and willing’ to prosecute (article 17, Rome Statute). And finally, India is suspicious about the strength of the office of the prosecutor as this power may be used in a politically motivated, arbitrary and unfair manner.

While I shall address the various impacts of the Kampala amendments in subsequent pieces, the same broad argument will run through all of them. The landscape of public international law, international humanitarian law, and international criminal law has evolved in the past decade. As a result, many of India’s concerns regarding the ICC have changed, have become irrelevant, or would be better served by engagement not boycott. This is not to say that India must sign the Rome Statute. Instead, the recent amendment to the Rome Statute, read with legal developments in the past decade, provides an important opportunity for India to reassess its policy towards the ICC, attempt reframing its objections in a more contemporary language, and consider engaging more actively with it.