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IV. Treatment of former child soldiers accused of crimes

Although international law allows for the prosecution of individuals for offenses committed before age 18, no existing international tribunal has ever tried a child for war crimes. Neither the International Criminal Tribunal for the former Yugoslavia (ICTY) nor the International Criminal Tribunal for Rwanda (ICTR) have charged or prosecuted any persons for crimes committed before age 18. Delegates negotiating the statute for the International Criminal Court decided that the Court should not have jurisdiction over children under 18. The Special Court for Sierra Leone—a hybrid national/international court – has jurisdiction over persons who were aged 15 or older at the time of the alleged crime, but the Prosecutor is directed to consider alternative mechanisms, such as Sierra Leone’s Truth and Reconciliation Commission, for dealing with child perpetrators. To date, the Special Court has not prosecuted any individuals for crimes committed before age 18.

Instead of prosecuting former child soldiers, both the Special Court for Sierra Leone and the International Criminal Court have focused on bringing to justice those responsible for recruiting and using children as soldiers. Of the nine defendants being tried by the Special Court for Sierra Leone, all have been charged with the recruitment and use of child soldiers. The first trial expected to go forward under the ICC is against Thomas Lubanga, a commander from the DRC, whose only charge against him is the recruitment and use of child soldiers.

The “Paris Principles” include explicit guidance for the treatment of child soldiers accused of crimes during armed conflict:

Children who are accused of crimes under international law allegedly committed while they were associated with armed forces or armed groups should be considered primarily as victims of offences against international law; not only as perpetrators. They must be treated in accordance with international law in a framework of restorative justice and social rehabilitation, consistent with international law which offers children special protection through numerous agreements and principles.

Wherever possible, alternatives to judicial proceedings must be sought, in line with the Convention on the Rights of the Child and other international standards for juvenile justice.¹⁹

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