Criminal liability of former child abductees under International Criminal Law : a case of the Lord’s Resistance Army (LRA)

Abstract

The study examines child soldiers/abductees and their criminal liability under International Criminal Law and the Rome Statute. The study looks at the Lord’s Resistance Army (LRA) as a case study for understanding the liability of child soldiers under the Rome Statute. The general objective of this study was to analyze the criminal liability of child soldiers or former child soldiers in particular those forcefully abducted and conscripted under the International Criminal Law, and justice mechanisms where the law is silent. In this respect, the study sought: to examine the case for criminal prosecution of child soldiers under International Criminal Law; to assess the dilemma of victim-perpetrator in the criminal prosecution of child soldiers under international law; and to examine the possibility of finding a balance between the rights of the child soldier to protection and the rights of the victim to justice. Data was collected through review of relevant documents in the libraries and the internet. A descriptive and qualification method of data analysis was used. The key findings of this study reveal that although International law provides for protection of rights of children during conflict and against conscription, it is silent on their criminal liability. There is overwhelming argument against the idea of blanket immunity of child soldiers under the guise of their involuntary participation and age, arguing for some form of culpability for the horrendous crimes committed during their military participation and find appropriate justice measures to deal with them, preferably restorative justice. The findings also acknowledge that in some ways, the common law criminal liability approach although deals with culpability, falls short of delivering the justice that war victims seek, that is; satisfying both punitive and reparative aspects of justice. The study therefore explored the restorative justice approach and the findings indicate that it is indeed the best alternative to the criminal prosecution, which only seeks to punish the perpetrator without offering any sort of reparation to the victims. Reparation/restorative justice in such complex cases, focuses on child rights protections by putting into consideration the age and method of conscription of these children, which is their abduction and forceful conscription in military combat. The study concluded that since conflict will always form part and parcel of our existence, the use of children will also continue to grow despite various international laws calling for their protection. We shall therefore see former child soldiers, in adulthood being brought before international and national court systems for war crimes and crimes against humanity. This is seen by the precedent set by the trial of Dominic Ongwen. Prudence should thus be taken to find a permanent and standard procedure to deal with former child soldiers accused of horrendous crimes putting into consideration their victim perpetrator status vis-a vis justice for their victims. The recommendations include: i) amendment of the Rome Statute of the International Criminal Court to set the minimum age for criminal responsibility for war crimes and crimes against humanity at 15 years; ii) qualifying duress as a complete legal defense for child soldiers who were forcefully abducted; iii) provide a clear definition of the aspect of ‘most responsible’ to mean those who are truly in position to make enforceable directives during war; iv) consideration of the child soldiers’ victimization (the victim-perpetrator element) as a mitigating factor in sentencing; and v) use of the restorative justice approach as a mechanism for justice for both victims and perpetrators for long term peaceful resettlement and coexistence of the child perpetrators and their victims.