Child Soldiers and Prosecutorial Transitional Justice

Abstract

Criminal responsibility can be described as the traditional and most common form of legal accountability for criminal conduct. Despite the fact that the International Criminal Court does not have jurisdiction over persons under the age of 18 years, child soldiers can be held criminally responsible for crimes under international law both on a domestic as well as on an international level, provided that they meet the preconditions of criminal responsibility. This legal reality stands in contrast to the passive victim narrative and corresponding international policy on child soldiers. The third chapter begins with an analysis of the statutes of various international and internationalized courts and then considers the relevant jurisprudence and legislation on a domestic level. Hereafter, it discusses the effects of international humanitarian law and international human rights law on child soldiers’ criminal responsibility and establishes whether there exists a norm of customary international law on this issue. Subsequently, the chapter focuses on the duty to prosecute crimes under international law, before turning to selected issues of substantive international criminal law, such as the mental element of crimes under international law, the principle of culpability, grounds for excluding criminal responsibility, and superior responsibility. It ends with an analysis of the procedural rights of children accused of having committed crimes under international law and of the sentencing process as applicable to child soldiers.