JURIST Contributing Editor David Crane of Syracuse University College of Law, former Chief Prosecutor for the UN Special Court for Sierra Leone and a signatory of the recent Paris Declaration on child soldiers, says that not only is it morally and legally wrong to train children to become terrorists, but that those who have been trained or otherwise coerced - including Omar Khadr, the Canadian captured in Afghanistan while a juvenile and now facing a US military commission at Guantanamo - lack the moral culpability and deliberative intent to be tried as war criminals....
Women and children have always suffered the brunt of war. Both in international and internal armed conflicts, the fighting factions use and abuse the weakest found on the battlefield. This trend over the past one hundred years has not changed - in fact, to my mind it is getting worse. From the horrors perpetrated by King Leopold II in Belgium in the Congo at the turn of the last century, through the campaign of the three Pashas in Turkey against the Christian Armenians during World War I, the depopulations by Joseph Stalin between the wars; the Holocaust of World War II, the mass deaths perpetrated by Mao on the Chinese people, the killing fields of Cambodia, to the more recent depredations of Charles Taylor in West Africa, women and children have been particularly singled out by their own governments as targets. The victims number in the tens of millions.
In the past twenty years, over two million children have died in conflict. Most, if not all, were forcibly recruited under great duress, causing whole generations of children to be destroyed in various parts of the world. In the past ten years the world has begun to address this scourge. Led by the United Nations, various treaties, protocols, resolutions, and declarations have clearly stated that children are not to be used in conflicts. From the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child (and its Protocol 1), to the recent Paris Declaration (of which I was a signatory), as well as the law found in the Geneva Conventions, children are to be nurtured and "especially protected". The law is clear, yet the violations and abuse continue.
Those who violate these international standards and norms are now being held accountable. The ground-breaking work of the international war crimes tribunal in West Africa, called the Special Court for Sierra Leone, saw most of the key leaders in that ten-year horror charged and convicted of the unlawful recruitment of children under the age of fifteen into an armed force. The International Criminal Court is also moving forward on this new international crime as well particularly by the Lord's Resistance Army in Uganda. This is a major step forward in attempts to stop using children in combat or in terrorist operations.
No child has the mens rea (the evil-thinking mind) to commit war crimes. In fact those who use children in combat use coercive techniques that clearly shock the conscience. In Sierra Leone, children were forced to kill their parents and then were led off into the bush to fight for years, doped up, murdering, maiming, mutilating, and raping. Many forgot their real names and where they came from. They became true killing machines. They knew neither right from wrong, nor the concept of mercy. The lost generation of Sierra Leone now struggles in life, a life of literally no hope whatsoever.
In the Middle East, particularly in Iraq and Afghanistan, we are seeing the coercive induction of children into various terrorist groups, many brainwashed by religious fervor, given little to no options but to perpetrate murder against their own kind, as well as against soldiers from the international community, mainly the west. The setting is different than West Africa, but the results are the same - children killing against their will and with little choice. This is morally and legally wrong, regardless of the justification and rationale by the groups into which they are inducted.
It is unfortunate that the capture of this Iraqi video is not the only time that the use of children in the Middle East as soldiers has surfaced. In another circumstance from Afghanistan, a young Canadian is currently being tried in Guantanamo for a war crime. Omar Khadr is charged, among other crimes, as having allegedly killed a US soldier in Afghanistan on 27 July 2002 as an "unlawful enemy combatant". He was just fifteen years old as the time of this crime. Brought to Afghanistan from Canada by his father several years earlier, young Omar had no choice as to the circumstances he found himself working with individuals who were part of the al-Qaeda network.
When war broke out he was forced to fight and to kill. Gravely wounded, he was shipped to the US detention camp in Cuba where he has been kept for over five years. Omar Khadr is the poster child of what can happen when children are forced into these situations. For his crimes he is the first child ever to be charged as a war criminal. This too is morally and legally wrong.
It remains to be seen how the hearing officer at Guantanamo will rule on a motion before a US military commission to drop the charges due to Khadr's age. I am not optimistic as to the outcome. Hence, he will be tried for crimes arguably he did not have the mental state to commit. This remains to be seen. It should be those who caused Khadr to be in the circumstance of war to be dealt with, rather than Khadr himself. That was my policy in West Africa: to charge the leadership of the units and factions, not the children they "recruited". I felt as the Chief Prosecutor at the time that they were legally not culpable.
The international standard for children is for protection, nurturing, educating, and giving them the ability to realize their full potential. Unlawful recruitment into an armed force is not a part of this paradigm. The training of children as seen in the video is to be condemned and the release of Omar Khadr, a child soldier, from the US detention camp should be clearly mandated by the international community. France already has called for his release, as should his own country, Canada.
David M. Crane is a professor at Syracuse University College of Law, and former founding Chief Prosecutor for the UN Special Court for Sierra Leone (2002-2005).