Child Soldiers - Both Victims and Combatants: Is There Anything IHL Can Do?

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The proliferation of child soldiers has raised a number of troubling questions for the laws of war. These children are the victims of international crimes committed by those who unlawfully enlist and deploy them. These children are also “combatants” under international law and like all combatants they lose the many protections afforded civilians. Apart from the physical and psychological harm caused to children by exposure to combat, child soldiers have also been the intentional victims of crimes perpetrated by members of the armed formation that incorporated them. Crimes specifically directed at them such as rape, sexual slavery and inhuman treatment. Some children have been summarily executed for indiscipline or attempting to escape. Yet, others have been used as disposable weapons in an emerging trend to use children as suicide bombers, sometimes remotely detonated by their adult handlers.This article examines the unique situation of child soldiers, and the several simultaneous yet inconsistent characterizations they embody. A child soldier can be at the same time: a lawful target of the enemy, an individual with the potential to commit international crimes, a victim of the international offense of child conscription and finally, often the intended victim of other acts constituting war crimes but for their unlawful conscription. This article examines the relevant laws and customs of war and questions whether International Humanitarian Law’s (IHL) rigid binary classification of actors as either combatants or civilians appropriately reflects the reality for children, the most vulnerable victims of contemporary conflicts.The article makes the argument that IHL must develop a third status in addition to the combatant/civilian distinction. A hybrid status for children unlawfully incorporated into an armed force or group. This hybrid status retains the child’s combatant status vis-a-vis belligerent forces as defined by well-established tests, yet treats them as civilians vis-a-vis members of the armed force that has unlawfully incorporated them. Perpetrators of crimes against child soldiers should not be able to strip children of the protections intended for them by committing the crime of unlawful conscription against them. The laws of war should be interpreted to deny them the ability to insulate themselves from criminal liability by virtue of their commission of another crime. There is no theoretical or conceptual barrier preventing an interpretation of IHL that affords children this hybrid status. This proposed hybrid status preserves the clarity necessary for the effective application of IHL and ensures that these children remain within the protections of international law.