Rehabilitation and reintegration of juvenile war criminals : a de facto ban on their criminal prosecution ?
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Denver journal of international law and policy Vol. 44, no. 1, Fall 2015, p. 1-20
Alice S. Debarre
Assuming the existence of a customary international norm obligating states to reintegrate and rehabilitate child soldiers, would this not, in fact, prohibit their criminal prosecution? Considering that the purpose of such an obligation is to reintegrate the child war criminals and other child soldiers into their communities and to help them heal, how does criminal prosecution fit into this process? The existence of international standards and protections for accused juveniles, as well as the possibility, at the sentencing phase, to order purely rehabilitative measures, would seem to argue for the compatibility of criminal prosecution of child soldiers with their rehabilitation and reintegration. However, this is in tension with the idea that a criminal trial undoubtedly leads to the increased stigmatization of child soldiers, while causing them further trauma. Moreover, the nature of the available safeguards and the supposedly rehabilitative nature of a juvenile criminal trial are ill defined and insufficiently provided for in international law. Finally, accountability does not necessarily have to involve criminal responsibility. Therefore, there is a strong argument to be made according to which a state's obligation to rehabilitate and reintegrate child soldiers, who have committed war crimes, is incompatible with their criminal prosecution, thereby creating a de facto ban on criminally trying these child soldiers.