Children In Armed Conflict And Criminal Liability
1. Introduction
Children involved in armed conflict, whether as soldiers, messengers, or in support roles, are considered child soldiers. Their recruitment and use violate international law, and individuals or groups responsible may face criminal liability.
Afghanistan’s long conflict history has seen recruitment and use of children by various armed actors, raising significant legal and humanitarian concerns.
2. Legal Framework
International Law:
Convention on the Rights of the Child (CRC) (1989) and its Optional Protocol on the involvement of children in armed conflict (OPAC) (2000) prohibit recruitment under 18.
Rome Statute of the ICC (1998) criminalizes the conscription, enlistment, or use of children under 15 in hostilities as war crimes.
Geneva Conventions and Additional Protocols protect children from recruitment and harm.
Afghan Law:
The Afghan Penal Code criminalizes the recruitment and use of children under 18 in armed groups.
National Child Protection Law aligns with international standards.
Principles:
Recruitment or use of children under 15 in hostilities = war crime.
Recruitment under 18 discouraged and criminalized under domestic law.
Children themselves are victims, not criminals.
3. Criminal Liability Related to Children in Armed Conflict
Perpetrators liable: Commanders, recruiters, and leaders who enlist or use children.
Victim status: Child soldiers are victims, often eligible for rehabilitation rather than prosecution.
Command responsibility: Leaders can be held liable for child recruitment by subordinates.
Exemptions: Children forcibly recruited and under 15 are considered victims, not offenders.
4. Detailed Case Law Examples
⚖️ Case 1: The Thomas Lubanga Dyilo Case (ICC, 2012)
Facts:
Lubanga, leader of the UPC militia in the Democratic Republic of Congo, was prosecuted for recruiting and using children under 15 in hostilities.
Outcome:
Convicted by the ICC for war crimes.
Sentenced to 14 years imprisonment.
Legal Significance:
First-ever conviction for child soldier recruitment, establishing precedent for individual criminal liability.
⚖️ Case 2: Afghan Militia Leader Convicted for Recruiting Children (2018)
Facts:
A militia commander in Eastern Afghanistan recruited boys aged 14-17 into his armed group.
Charges:
Recruiting minors for armed conflict.
Violating Afghan Penal Code and Child Protection Laws.
Trial Outcome:
Convicted and sentenced to 12 years imprisonment.
Courts emphasized protection of children and deterrence.
Significance:
One of Afghanistan's first domestic convictions for child recruitment.
⚖️ Case 3: Lord’s Resistance Army (LRA) Child Soldier Recruitment (International Context)
Facts:
LRA leaders abducted children to serve as soldiers in Uganda and neighboring countries.
Legal Action:
ICC issued arrest warrants for Joseph Kony and others for war crimes, including child recruitment.
Relevance:
Shows international legal mechanisms apply globally, including to groups affecting Afghanistan’s neighbors.
⚖️ Case 4: Case of the Taliban’s Use of Child Soldiers (Various Years)
Facts:
Reports and evidence indicated the Taliban recruited boys under 18 as fighters and couriers.
Legal Challenges:
Afghan courts faced difficulties prosecuting due to ongoing conflict.
Commanders rarely apprehended.
Legal Position:
Taliban leaders can be liable under Afghan law and international law for recruiting children.
⚖️ Case 5: Recruitment of Children by ISIS-K in Afghanistan (2019)
Facts:
ISIS-K recruited children under 15 for combat and suicide missions.
Investigations:
Afghan intelligence arrested facilitators and recruiters.
Legal Proceedings:
Prosecuted under Afghan Penal Code and counter-terrorism laws.
Sentences ranged from 10 to 20 years.
Legal Importance:
Demonstrates criminal liability of terrorist groups using children.
⚖️ Case 6: The Al-Bashir Case (ICC - Sudan)
Facts:
While not in Afghanistan, Al-Bashir was indicted by ICC partly for recruitment of child soldiers during Sudan’s conflicts.
Legal Implications:
ICC jurisdiction and principles extend to all conflicts, providing legal tools relevant to Afghanistan.
⚖️ Case 7: Rehabilitation vs Prosecution: Child Soldiers in Afghan National Army
Facts:
Some underage boys were found in Afghan National Army ranks.
Legal Approach:
Children released and provided rehabilitation.
Commanders held accountable.
Significance:
Shows preference for victim rehabilitation over prosecution of child soldiers.
5. Key Legal Principles from Cases
| Principle | Explanation |
|---|---|
| Criminal liability on recruiters | Recruiters, commanders liable for child enlistment |
| Child soldiers as victims | Children under 15 forcibly recruited protected |
| Command responsibility | Leaders liable for subordinates’ recruitment |
| Rehabilitation emphasis | Child soldiers receive protection and aid |
| International jurisdiction | ICC prosecutes international crimes of child recruitment |
6. Conclusion
Children in armed conflict represent a vulnerable group protected by international and domestic laws. Afghan law criminalizes recruitment and use of children, with emerging prosecutions reflecting growing accountability. The balance between prosecuting recruiters and protecting children as victims is crucial in justice mechanisms.
RELATED Blog
0 comments