The Prohibition of Prosecution of Child Soldiers: a Desirable Emerging Rule of Customary International Law

Abstract

Abstract Children taking part, directly or indirectly, in hostilities commit war crimes. Moreover, in many cases, child soldiers are not in control of their actions when forced under threat of death to commit crimes. In such cases they are drugged against their will and act under duress, which is often the defence to mitigate their responsibility and punishment. Many questions arise in this regard. Is the status of being enlisted in itself a state of duress for a child, even in the absence of explicit violence or threat? Is the condition of being a soldier something unnatural and abnormal for a child, to the point of being considered in any case a justification for his actions? Can a child soldier be responsible in some cases for war crimes, when mainly in control of his actions? This article maintains that, notwithstanding the fact that classic IHL and HRL do not prohibit the prosecution of children for war crimes, there is emerging customary law that follows the approach of the UN and non-governmental organization bodies in prohibiting the prosecution of child soldiers. According to this, States should refrain from prosecuting children responsible for war crimes. This is furthermore the consolidated approach of the international criminal law today, as stated in the Statute of the ICC.