The prosecution of child soldiers : balancing accountability with justice
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Syracuse law review, Vol. 63, no. 2, 2013, p. 297-325
There are currently over 300,000 children under the age of eighteen participating in armed conflicts across the world. They are responsible for countless deaths, rapes, mutilations, and other atrocities. However, the international community has failed to reach a consensus regarding the age at which a child can be held legally responsible for their crimes. Consequently, despite the perpetration of international horrors, children unanimously escape criminal liability in international tribunals. Victims are left with little or no recourse to justice for the pain they have experienced. While some domestic courts have prosecuted individuals under eighteen-years-old for crimes committed during an armed conflict, but not war crimes, this provides little relief within a global perspective due to the wide range of minimum ages of criminal responsibility and consequent inequitable results. This Note explores the need for both international and domestic reform with regards to crimes committed by children during armed conflicts. International tribunals must begin to expressly state within their statutes the age at which they can claim jurisdiction over individuals. Domestic courts, such as those within the United States, can help this process by clarifying their own rules and thereby attempt to set precedent. Ultimately, instead of using eighteen as an arbitrary age of delineation for criminal responsibility, courts must have discretion to prosecute children for international atrocities by looking at the individual’s physical, mental, and moral development as well as their cultural norms. Part I of this Note introduces the basic concepts of international law, including international criminal law and the legal protections that have been established for individuals under eighteen-years-old. Part II examines the difficulties that arise when determining the roles of children in armed conflict and the extent to which they can be held responsible for their actions. Additionally, it suggests several possible defenses that should be made available to juveniles if they are prosecuted in an international tribunal. The third section of the Note provides a case study of the only person under eighteen-years-old who has been prosecuted for a war crime since World War II and further evaluates the United States’ role in this trial and their general perspective towards the treatment of minors in combat. Finally, Part IV emphasizes the need for an international consensus regarding the minimum age of criminal responsibility in international courts and suggests this reform must begin at the domestic level.
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