The Interaction between International Refugee Law and International Criminal Law with respect to Child Soldiers

Abstract

While children may seek asylum to obtain protection from persecution relating to armed conflict, they may also face exclusion from refugee status pursuant to Article 1(F)(a) of the Refugee Convention if they are used as child soldiers and commit international crimes. Yet, according to international standards, children should not be held individually criminally responsible if they are under the age of criminal responsibility. However, since this minimum age is not settled in international criminal law, states apply the age of individual criminal responsibility established in their respective national legislations. This implies that the same child soldier might legally qualify as a refugee in certain states, while being excluded in others. This contribution explores: (i) whether transposing international criminal law into international refugee law with regard to both the inclusion and exclusion clauses embodied in the Refugee Convention is desirable with respect to child soldiers; (ii) the consequences of this approach when facing unsettled norms of international criminal law; and (iii) whether there are possible remedies to the gaps in the protection of child soldiers resulting from the interaction between international refugee law and international criminal law.