Child Soldiers in Africa - Edinburgh University Press

CHILD SOLDIERS IN AFRICA: A GLOBAL APPROACH TO HUMAN RIGHTS PROTECTION, ENFORCEMENT AND POST-CONFLICT REINTEGRATION JANET MCKNIGHT ∗

I. INTRODUCTION

Today’s warfare in Africa, especially the exploitation, abuse and use of children, is nothing short of a process of self-destruction. This goes to the very heart of whether or not in large portions of Africa there is promise of a future for those societies. —Olara Otunnu, former United Nations Secretary-General’s Special Representative for Children and Armed Conflict, 2001 1 Children have been recruited in more than 85 countries and have fought in approximately 36 conflicts across the globe.2 They have acted as combatants, mine testers, messengers and cooks. Some children have even been used as human shields or as sex slaves for military leaders. The conscription, recruitment and use of children in armed forces constitute one of the most egregious human rights violations due to the defenselessness of the victims. As former United Nations (UN) Secretary-General Kofi Annan stated in his 2000 Report on Children and Armed Conflict, ‘[children] depend, even more than adults do, on the protection afforded in peacetime by family, society and law’.3 The use of child soldiers encompasses not only human rights violations based on soldiering but also major concerns about child labour, abduction, forced prostitution and slavery. There are approximately 300,000 child soldiers in the world, with African nations largely considered the hardest hit by this practice. The civil wars in Liberia, Sierra Leone and Mozambique notoriously involved children in the conflict. But the crisis on ∗ JD, Tulane University Law School, New Orleans, Louisiana. The author would like to thank Chibeze Ezekiel (Strategic Youth Network for Development, Ghana), Kadio Saa Ali (Pan African Center for Peace and Conflict Resolution, Liberia) and Professor Günther Handl (Tulane University Law School) for their guidance with this article. 1 ‘The Road from Soldier Back to Child’, Africa Recovery (October 2001), p. 10. 2 M. Happold, Child Solders in International Law, Juris Publishing, Inc. (2005), p. 6. 3 The Secretary-General, Report of the Secretary-General on Children and Armed Conflict, 4, delivered to the Security Council and the General Assembly, UN Doc. A/55/163–S/2000/712 (19 July 2000).

African Journal of International and Comparative Law 18.2 (2010): 113–142 Edinburgh University Press DOI: 10.3366/E0954889010000563 © African Society of International and Comparative Law www.eupjournals.com/ajicl 113

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the continent is not confined to past conflicts. Recent reports have estimated that 3,000 child soldiers are being held by armed forces in the Democratic Republic of the Congo (DRC),4 while the Sudan People’s Liberation Army (SPLA) has recruited an estimated 2,500–5,000 children in the ongoing conflict in Darfur.5 These are just a few of the many examples revealing the reality that child soldiering in Africa remains a threat to human rights. In Africa, poor governance, ethnic and tribal tensions, and a lack of education or employment create a landscape in which children are vulnerable to involvement in conflict zones. Youth from poor families and rural regions are at a high risk of recruitment because they have the most to gain from the lure of survival in wartime. Children from minority ethnic groups are also at risk. Underage children in the Gio, Mano and Krahn tribes were heavily recruited by rebel forces in the rural area of Nimba during Liberia’s First Civil War (1989–96). Once recruited, the children are at a high risk of re-recruitment because they lack any means of support. Many children that fought in Liberia’s Second Civil War (1997–2003) crossed borders into Guinea, Sierra Leone and Côte d’Ivoire to join the fighting of rebel groups in search of financial gain.6 Similarly, displaced children are at risk of being kidnapped into armed forces of neighbouring countries. In 1997, the National Union for the Total Independence of Angola (UNITA) abducted an estimated 200 Rwandan refugee children along the border of Angola and forcibly recruited them into UNITA ranks as youth fighters (rusgas).7 The most prominent legal issue surrounding child soldiers in armed combat is the question of minimum age for recruitment and use in conflict. The age at which a person is deemed an adult has not always been 18 years nor is that number universally accepted as the age of adulthood today. During the Middle Ages in Europe, heavy armour and horse training raised the age of majority to 21 years of age.8 In contrast, modern-day combat requires only the strength to carry and fire an automatic weapon. UN Secretary-General’s Special Representative for Children and Armed Conflict Radhika Coomaraswamy stated that it takes a child only 45min to master an AK-47.9 These changes in modern warfare making youth easily able to partake in hostilities need to be reflected in the minimum age for recruitment and use in armed forces. Establishing international law regarding the 4 ‘DRC: Recruitment of child soldiers rising’, UN Office for the Coordination of Humanitarian Affairs (11 November 2008), available at http://www.irinnews.org/report.aspx?ReportId=81406 (last accessed 25 April 2010). 5 Child Soldiers Global Report: Africa Regional Overview, Coalition to Stop the Use of Child Soldiers (2004), p. 1. 6 Child Soldiers Global Report 2008: Liberia, Coalition to Stop the Use of Child Soldiers (20 May 2008). 7 G. Machel, Impact of Armed Conflict on Children: A Review of Progress Since the 1996 United Nations Report on the Impact of Armed Conflict on Children, Report of the Expert of the Secretary-General, submitted pursuant to G.A. Res. 48/157, UN Doc. A/51/306 (26 August 1996), p. 9. 8 Happold, Child Soldiers in International Law, supra note 2, p. 4. 9 R. Coomaraswamy, Keynote Address at the United States Institute of Peace: Policy Forum on Children and Armed Conflict: Child Soldiers as Combatants, Victims, and Survivors (17 September 2008).

Child Soldiers in Africa 115 age of children in armed conflict requires States to find common ground among various social and cultural definitions of ‘child’. Some African countries have supported the global shift towards 18 as the age of recruitment and use of children in armed conflict (the ‘straight-18’ standard); however, domestic legislation remains filled with loopholes that allow States to lend support to an international ideal without being forced to observe these standards in practice. Another concern is the compliance of rebel groups and how to apply equal standards of conduct to both State and non-State actors. In addition to the debate on age and ‘childhood’, the definition of ‘child soldier’ in human rights treaties also encounters challenges of interpretation. Parties disagree on whether international law is meant to protect only child combatants that directly participate in battle or whether such protection extends to all children involved in the conflict.10 The realities of recruitment raise further questions concerning the criminality of accepting voluntary enlistment of children in armed forces. Children make up an estimated three-fourths of the Lord’s Resistance Army (LRA) of Uganda, with those as young as 13 years old having been allowed to enlist with parental consent.11 In the DRC, thousands of street children were permitted to enlist following a radio broadcast advertisement to defend the country.12 A related issue is the practicability of keeping children under 18 years from actually being used in armed conflict if children are allowed to voluntarily enlist at an age younger than 18 years. Recruitment of children is further complicated in countries where birth registration is not universal or prone to falsification and many children may not know their exact age. The problem of declaration of birth is prominent in rural areas of West Africa, which leads to children being ineligible to register for schools and, therefore, left to beg on the streets and become more vulnerable to human rights abuses.13 Although some of these children may theoretically volunteer for participation in armed forces, it is generally accepted that most youths are not capable of deciding their own best interests. As author Mathew Happold described: ‘[C]hildren do not go looking for war’.14 This issue of capability raises questions not only of responsibility of the recruiter but of the culpability of the child soldier. Whether former child soldiers are viewed as victims or as perpetrators determines their placement in rehabilitation centres versus criminal proceedings. Special mandates for fact-finding missions by the UN have provided a necessary base of knowledge to identify the location of child soldiers and where help is needed. In addition, the legal safety net for children’s rights is found in customary international law. These laws arise out of State practice and opinio 10 Of the estimated 8,000 child soldiers in the Tutsi-Hutu armed conflict in Burundi, many were used as domestic servants in military camps. 11 ‘The Use of Children as Soldiers in Africa: A Country Analysis of Child Recruitment and Participation in Armed Conflict’, Relief Web (15 May 2002), available at http://www. reliefweb.int/library/documents/chilsold.htm (last accessed 25 April 2010). 12 Ibid. 13 Mame Couna Thioye, Chair of the Child Rights Department, African Assembly for the Defense of Human Rights, interview by author, Dakar, Senegal (9 June 2009). 14 Happold, Child Soldiers in International Law, supra note 2, p. 13.

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juris, which means States are acting on a belief that such conduct was legally obligatory. This combination of practice and legal obligation reflects a consensus on what behaviour is most widely accepted in the international legal community. Customary international law is important because it is binding on States and nongovernmental armed groups during times of peace and war in both international and internal conflicts. This fills the gaps in protection that treaty agreements can leave open. But these laws are only basic minimum standards. It is the task of multilateral treaties and international criminal courts to establish enhanced protection consistent with the current needs of children in armed conflict. This paper will examine the existing law on child soldiering and explain in further detail the obstacles that African countries face in providing protection for their children. Recommendations will then be made for the improved standards of international law regarding child soldiers, including provisions that bridge regionally and globally diverse views on childhood, human rights and mechanisms of justice. The use of optional protocols and advisory courts to establish and refine the language of human rights treaties will be introduced. The research will also discuss the opportunity of international criminal courts to act as the primary enforcement measure by deterring human rights abuses committed by individual actors. Lastly, the paper will examine the importance of effective systems of reintegration, rather than criminal punishment, to ensure that former child soldiers are not simply re-recruited. A case study of rehabilitation work by one non-governmental organisation (NGO) based in Liberia will help to illustrate the connectedness of international law definitions of protection, the importance of individual criminal responsibility on perpetrators to prevent re-recruitment and the establishment of human rights in African countries during times of peace to avoid jeopardising the youth of nations in times of war. II. EXISTING LAW ON CHILD SOLDIERING

A. International Humanitarian Law At the time of formation of the post-World War II Geneva Conventions the use of children in combat was considered an internal issue of a State. As a result, any international agreements prior to 1949, concerning the protection of children, were focused on children as civilians and not combatants. Adopted on 8 June 1977, the Geneva Convention Additional Protocol I (AP I) became the first international accord tackling the issue of children in combat, placing sanctions on individual States for such activity. Article 77 of AP I states: [T]he Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces.15 15 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), article 77(2), (8 June 1977). This Treaty will hereinafter be cited as Additional Protocol I.

Child Soldiers in Africa 117 The interpretations of ‘Parties to the conflict’, ‘all feasible measures’ and ‘direct part in hostilities’ have been greatly contested over the years. AP I is applicable solely in international armed conflicts, meaning those occurring across political borders. Also adopted on 8 June 1977, the Geneva Convention Additional Protocol II (AP II) is a set of minimum standards applied to non-international armed conflicts occurring within the borders of one State. Article 4 states that children under 15 years ‘shall neither be recruited in the armed forces or groups’.16 This implies that armed rebel groups, in addition to States, are responsible for not recruiting children. Binding such groups to international law has proven difficult since rebel forces do not often have an allegiance to any State party to the treaty. This challenge introduces the importance of individual criminal responsibility in creating deterrence and compliance among potential perpetrators, regardless of their State or non-State affiliation. Another legal issue made evident in the Additional Protocols is the narrow definition of ‘child soldier’. The International Committee of the Red Cross (ICRC), in helping to form the Additional Protocols, explained that the immunity provided to civilians in conflict zones is subject to their continuing status as civilians. This means that civilians lose such protection when they become combatants by taking part in the hostilities.17 Article 77 of AP I accords children special protection if they fall into enemy hands.18 However, for a child to maintain this protected status, a child soldier must be a combatant. The effect of this narrow definition of protective status is that the AP I is not designed to protect all child soldiers participating in armed conflict. B. International Human Rights Law With 193 ratifying parties to the Convention on the Rights of the Child (CRC), the most widely ratified human rights treaty to date, there is undoubtedly a consensus that certain rights and protection should be granted to children. However, the CRC, adopted on 20 November 1989, contained no specific provision relating to children in armed conflict.19 Over the past 20 years, human rights law involving the rights and welfare of children has become increasingly focused on children participating in armed conflict. In 1993, General Assembly Resolution 48/157 requested the UN Secretary-General to appoint an expert to study the situation of children in armed conflict and to determine the adequacy of existing standards.20 On 25 May 2000, in response to expert Graça Machel’s report and the endorsement of NGOs, the General Assembly adopted the CRC Optional Protocol 16 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II), article 3(c) (8 June 1977). This Treaty will hereinafter be cited as Additional Protocol II. 17 Happold, Child Soldiers in International Law, supra note 2, p. 63. 18 Additional Protocol I, supra note 15, article 77(3). 19 Convention on the Rights of the Child, G.A. Res. 44/25, 44 UN GAOR Supp. (No. 49), UN Doc. A/44/49 (20 November 1989). This Treaty will hereinafter be cited as CRC. 20 G.A. Res. 48/157, 7, UN Doc. A/RES/48/157 (20 December 1993).

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to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (CRC Optional Protocol).21 The agreement came into force on 12 February 2002.22 The CRC Optional Protocol requires States to ensure that no child under 18 years of age is compulsorily recruited.23 In other words, children may be allowed to join armed forces voluntarily before the age of 18 years as long as enlistment is genuinely voluntary.24 But it is unclear when or if a child’s enlistment is ever not coerced. Article 3(2) of the CRC Optional Protocol requires that a minimum age of voluntary recruitment be established and that safeguards be created to ensure that children under 18 years are not compulsorily recruited. However, article 3(2) puts no obligation on States to make the minimum age for voluntary recruitment match the minimum age for compulsory recruitment; it only mentions that States should take into account that ‘persons under the age of 18 are entitled to special protection’.25 The minimum age of conscription in Egypt is 18 years of age while the age for voluntary recruitment remains 16 years.26 Article 3(2) seems inconsistent with article 1, which calls for ‘all feasible measures’ to ensure that children under 18 do not take ‘a direct part in hostilities’.27 The most effective measure for preventing children from taking direct part in armed conflict is to require the minimum age for voluntary enlistment to also be set at 18 years. Broader terms are already applied to armed groups that are separate from the State. Armed groups are expected not to recruit or use children below the age of 18 under ‘any circumstances’.28 States are even required to criminalise such practice by rebel armed forces.29 The issue of how to get rebel groups to accept and adhere to international law remains a challenge, particularly where a lack of democracy within certain countries may leave little room for dissent from non-State groups. Customary international law is important in such situations, where non-governmental armed groups may not have the capacity to sign a human rights treaty but are nonetheless held to certain standards of international law. In its 2004 ratification of the CRC Optional Protocol, Botswana declared the minimum age for recruitment as 18 years and required that all recruits ‘undergo a rigorous medical examination where pre-pubescence would be noticed, and

21 UN Secretary-General 2000 Report, supra note 3, 9. 22 The Geneva Conventions, as humanitarian instruments, are relevant only in wartime, whereas the CRC Optional Protocol, as a human rights treaty, is applicable in times of peace and war. 23 Optional Protocol to the Convention on the Rights of the Involvement of Children in Armed Conflict, G.A. Res. 54/263, articles 1 and 2, UN Doc. A/RES/54/263 (25 May 2000). This Treaty will hereinafter be cited as CRC Optional Protocol. 24 Ibid., article 3(3)(a). 25 Ibid. article 3(1). 26 See United Nations Treaty Collection, Status of Ratification, Reservations and Declarations: Convention on the Rights of the Child, available at http://treaties.un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en (accessed 25 April 2010). 27 CRC Optional Protocol, supra note 23, article 1. 28 Ibid., article 4(1). 29 Ibid., article 4(2).

Child Soldiers in Africa 119 any person determined to be underage is routinely rejected’.30 Other countries, such as Burundi, stated that voluntary enlistment must take place in public to avoid the perception of illegality. Such State action lays the foundation for the recruitment of children below the age of 18 years to become a violation of customary international law. As of April 2010, 132 States have ratified the CRC Optional Protocol.31 Other international conferences and guidelines have emerged in support of the fight against child soldiering. Notably, the Cape Town Principles and Best Practices on the Prevention of Recruitment of Children into the Armed Forces (Cape Town Principles), a result of a symposium hosted by the NGO working group on the CRC and UN Children’s Fund in April 1997, abandoned any distinction between direct and indirect participation by defining child soldiers as ‘any person under 18 years of age who is part of any kind of regular or irregular armed forces or group in any capacity’.32 Unlike the CRC Optional Protocol, which only protects children that ‘take a direct part in hostilities’ as part of State armed forces or children ‘use[d] in hostilities’ by non-State armed groups, the Cape Town Principles definition advocates protection for any child involved in armed conflict, whether or not they are on the front lines of combat.33 Although the Cape Town Principles are not enforceable legal rules but only recommendations for action to be taken by governments and communities, such guidelines are helpful in bringing attention to the crisis and building support for ratification of international treaties. The only regional treaty in the world focused on the human rights of children exists in Africa. The African Charter on the Rights and Welfare of the Child (African Charter) entered into force on 29 November 1999, and called for signatory States to take ‘all necessary measures’ to prevent children from taking direct part in hostilities and ‘refrain in particular’ from the recruitment of such children.34 There is no mention in the treaty about the responsibility of non-State armed groups, however, the treaty is consistent with the straight-18 standard as article 2 defines a child as any person below 18 years of age.35 As of February 2010, 45 of the 53 African Union (AU) Member States had ratified the agreement (see Chart 1).36 The ratification of such a regional treaty shows that an emphasis on banning the use and recruitment of children below 18 years of age will not be viewed in disdain but rather in agreement. 30 See United Nations Treaty Collection, Status of Ratification, Reservations and Declarations: Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, available at http://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg_no=IV-11-b&chapter=4&lang=en (last accessed 25 April 2010). 31 Ibid. 32 Happold, Child Solders in International Law, supra note 2, p. 6. 33 CRC Optional Protocol, supra note 23, articles 1 and 4(1). 34 African Charter on the Rights and Welfare of the Child, article 22(2), O.A.U. Doc. CAB/LEG//24.9/49 (11 July 1990). This Treaty will hereinafter be cited as African Charter. 35 Ibid., article 2. 36 See List of Countries which have Signed, Ratified/Acceded to the African Union Convention on African Charter on the Rights and Welfare of the Child, African Union Web site, available http: // www.africaunion.org/root/au/Documents/Treaties/List/African%20Charter%20on%20the %20Rights%20and%20Welfare%20of%20the%20Child.pdf (accessed 25 April 2010).

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1. International Labour Law On 17 June 1999, the International Labour Organization Convention on the Worst Forms of Child Labour (ILO Convention No. 182) prohibited the forced or compulsory recruitment of children under the age of 18 for use in armed conflict.37 The ILO’s connection between child soldiers and slavery makes an even stronger case for child soldiers as a violation of already solidified international norms, in both labour law and human rights law. The overall success of the ILO Convention No. 182 is proven by the quickness of its ratification and entry into force just 18 months after its adoption.38 This rapid consensus among the international community, including ratification by 49 African States (see Chart 1), acts as evidence that children should be extended special legal protection equivalent to that required for the very worst of human rights violations.39 Although the West African country of Senegal has seen only a few cases of child soldiering in the separatist movement in Casamance, it has experienced its share of child labour and child trafficking problems. When asked about the comparison between child labour abuses and child soldiering, Couna Thioye, Chair of the Child Rights Department, African Assembly for the Defense of Human Rights in Dakar, revealed that using children as soldiers is the worst form of child labour that exists because of the mental effects that remain long after the conflict ends.40 All such human rights abuses against children reflect the same fundamental dilemma in Africa, as Thioye further explained: ‘There is a problem of socio-cultural factors, in terms of behaviour, feelings, and conceptions of children’.41 Thioye challenged this generally accepted view of children in Africa, as she adamantly insisted that children need equal, if not greater, human rights than those accorded to adults. C. International Criminal Law War crimes are ‘violations of the law and customs of war incurring individual criminal responsibility’.42 The 1998 Rome Statute, creating the International Criminal Court (ICC), made it a war crime to conscript or enlist children under the age of 15 or use them to participate actively in hostilities in both international and internal conflicts.43 The statute incurs criminal liability to any individual, even non-State actors, as long as the person is a citizen of a State that is a party to the 37 International Labour Organization, Convention on the Worst Forms of Child Labour (No. 182), article 3(a) (17 June 1999), ILOLEX No. C182. This Treaty will hereinafter be cited as ILO Convention No. 182. 38 Happold, Child Soldiers in International Law, supra note 2, p. 83. 39 See List of Ratifications for ILO Conventions, Worst Forms of Child Labour Convention, 1999 (No. 182), available at http://webfusion.ilo.org/public/db/standards/normes/appl/applbyConv.cfm?conv=C182&lang=EN (last accessed 25 April 2010). 40 Thioye interview, supra note 13. 41 Ibid. 42 Happold, Child Soldiers in International Law, supra note 2, p. 122. 43 Rome Statute of the International Criminal Court, articles 8(2)(b)(xxvi) and 8(2)(e)(vii), UN Doc. A/CONF. 183/9 (17 July 1998). This Treaty will hereinafter be cited as Rome Statute.

Child Soldiers in Africa 121 Algeria Angola Benin Botswana Burkina Faso Burundi Cameroon Cape Verde Central African Rep. Chad Comoros Côte d'Ivoire Dem. Rep. of the Congo

Djbouti Egypt Equatorial Guinea Eritrea Ethiopia Gabon Gambia Ghana Guinea Guinea-Bissau Kenya Lesotho Liberia Libya Madagascar Malawi Mali Mauritania Mauritius Morocco Mozambique Namibia Niger Nigeria Rep. of the Congo Rwanda Säo Tomé and Principe

Senegal Seychelles Sierra Leone Somalia South Africa Sudan Swaziland Tanzania Togo Tunisia Uganda Zambia Zimbabwe Total # Countries Ratified a

CRC a x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x

CRC OP x x x x x x x x

x x x

x x x x x x x x x

x x x x x

x x x x x x x

x x x

52

28

African Charter ILO Convention x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x

Rome Statute

x x x x

x x x x x

x x x x x x x x x x x

x x x x

x x x

x x x

x x x x x x x x x

45

49

30

x x

x

x x

x = Ratified grey = Not y et ratified Although the CRC does not include provisions on child soldiering, it laid the groundwork for the CRC Optional Protocol.

Chart 1. African States’ ratification of treaties relevant to child soldiering.

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agreement.44 As of April 2010, there are 111 States to the agreement, including 30 countries in Africa (see Chart 1).45 The Rome Statute noticeably only protects children under 15 years of age, rather than 18 years. Despite this discrepancy, the mental element of a war crime under article 8 requires that the perpetrator knew or should have known that the child recruited or enlisted was under the age of 15 years, placing the burden on individuals to take positive measures to ensure that their military recruits are of legal age.46 In addition to the ICC, hybrid international–national tribunals have also been created to handle specific situations in Sierra Leone and Rwanda. In 2002, discussions between the UN and the Government of Sierra Leone led to the establishment of the Special Court for Sierra Leone (SCSL) to prosecute those bearing the ‘greatest responsibility’ for the atrocities committed in Sierra Leone during its civil war.47 The rebel group Revolutionary United Front (RUF) financed the fighting by controlling the diamond mines and by filling nearly half its military with children eight to 14 years old.48 The SCSL Appeals Chamber in Prosecutor v. Norman confirmed that the prohibition on the abduction and forced recruitment of children below 15 years of age had crystallised into customary international law prior to the beginning of the jurisdiction of the court.49 Therefore, defendants indicted for crimes occurring before the creation of the SCSL in 2002, but during the court’s temporal jurisdiction starting 30 November 1996, could be prosecuted for such acts. The holding in Norman sent a message that recruitment and use of children in armed conflict was considered behaviour in violation of international law and that the creation of criminal tribunals merely placed individual responsibility upon violations already widely condemned in multilateral treaties and in State practice. As a result, two of three indicted leaders of the RUF were found guilty of ‘planning the use of children to actively participate in hostilities’.50 On 20 June 2007, the SCSL convicted three Armed Forces Revolutionary Council (AFRC) leaders for, among other charges, the recruitment and use of

44 The court exercises its jurisdiction by having a situation referred to it by a State or the Security Council, or by having the ICC Prosecutor initiate an investigation. 45 See Status of the Rome Statute of the International Criminal Court, United Nations Treaty Collection, available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no =XVIII-10&chapter=18&lang=en (last accessed 25 April 2010). 46 Elements of Crimes Adopted by ICC Assembly of State Parties, ICC-ASP/1/3, p. 144, available at http://untreaty.un.org/cod/icc/asp/1stsession/report/english/part_ii_b_e.pdf (accessed 25 April 2010). 47 The Secretary-General, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, 1, UN Doc. S/2000/915 (4 October 2000). 48 D. M. Rosen, Armies of the Young: Child Soldiers in War and Terrorism, Rutgers University Press (2005), p. 62. 49 Prosecutor v. Samuel Hinga Norman (31 May 2004) Case No. SCSL-2004-14-AR729E, Special Court for Sierra Leone (Appeals Chamber), Decision on Preliminary Motion Based on Lack of Jurisdiction, A(2)(a). 50 Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao (the RUF accused) (25 February 2009), Case No. SCSL-04-15-T, Special Court for Sierra Leone (Trial Chamber I).

Child Soldiers in Africa 123 child soldiers under the age of 15 years.51 The Appeals Chamber later upheld the sentences of 40 to 50 years per perpetrator.52 This case achieved a strong precedent of condemning human rights violations against children by showing that people who commit such acts will be held individually liable and punished under criminal law. The SCSL also indicted Charles Taylor, former President of Liberia, on charges including recruitment and use of child soldiers during the Sierra Leone Civil War.53 The prosecution rested their case on 27 February 2009, and the defence opened on 13 July 2009. Taylor’s ongoing trial remains an important step in building an effective system of deterrence in Africa. The SCSL’s ‘greatest responsibility’ standard is meant to be a ‘guide to prosecutorial strategy rather than a jurisdictional requirement’. However, this mandate may leave some lower-ranked military commanders and child recruiters outside the scope of prosecution.54 Also, as a temporary court, the SCSL is set to dissolve in the coming years. Therefore, the challenge is to make the newly established ICC as effective as possible by following the example set by Africa’s regional hybrid courts. The Rome Statute and the CRC Optional Protocol have received the least support in the form of ratifications from African States compared to other major human rights instruments regarding child soldiers. Although the Rome Statute only criminalises the recruitment and use of children under 15 years old – a lesser standard than the African Charter – the Rome Statute only came into existence in 2002, having the least amount of time to garner support. In comparison to the 45 African countries that have ratified the African Charter, only 28 countries have ratified the CRC Optional Protocol even though the treaties came into existence within six months of one another. As both these treaties endorse the straight18 standard, perhaps the difference in ratification status is a symbol of African resistance to international agreements as opposed to regional ones. However, countries such as the Central African Republic (CAR) have not ratified either the African Charter or the CRC Optional Protocol but have committed to the Rome Statute. Looking at the substance of the treaties may lead to clues as to motivation behind ratification. The African Charter is a general child right’s treaty incorporating provisions on education, health and juvenile justice, while the CRC Optional Protocol is solely focused on the issue of children in armed conflict. There may be more pressure among African countries to ratify a regional treaty regarding the rights of their children generally before ratifying an international agreement on child soldiers specifically. But it remains problematical to reach 51 The Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu (20 June 2007), Case No. SCSL-2004-16-A, Special Court for Sierra Leone (Trial Chamber). 52 The Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu (22 February 2008), Case No. SCSL-2004-1-A, Special Court for Sierra Leone (Appeals Chamber). 53 The Prosecutor v. Charles Taylor (29 May 2007), Case No. SCSL-03-01-PT, Special Court for Sierra Leone (Pre-Trial Chamber), Prosecution’s Second Amended Indictment, 22. 54 The Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu (22 February 2008), Case No. SCSL-2004-1-A, Special Court for Sierra Leone (Appeals Chamber), 274.

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such conclusions considering that some African countries, such as the DRC and Tunisia, have ratified the CRC Optional Protocol but not the African Charter. Because it can be difficult to predict which countries will ratify which agreements, the challenge for lawmakers is to create international treaties that put forth consistent standards and are advantageous to States on a regional and local level. D. Multilateral efforts for demobilisation and reintegration There are many post-conflict issues surrounding children in warfare, commonly known as DDR: disarmament, demobilisation and reintegration. In 1999, Sudan agreed to cease sponsorship of the LRA, the rebel group in northern Uganda notorious for the abduction of children for use in combat, in return for Uganda’s promise to stop support of insurgents in Sudan.55 This bilateral cooperation produced the disarmament of hundreds of Ugandan children that had been abducted into the southern region of Sudan. Bilateral mechanisms to end the use of child soldiers have also been included in peace agreements. The 1999 Lomé Peace Accord between the Government of Sierra Leone and the RUF was the first peace accord to incorporate special protections for child soldiers. Many of the demobilisation and reintegration strategies have utilised multilateral action between international institutions, governments and NGOs. In 2002, the World Bank partnered with international government donors and UN peacekeeping forces to establish the Multi-Country Demobilization and Reintegration Program (MDRP) to demobilise combatants in the Great Lakes region of Africa. Although this programme focuses on combatants generally, it has successfully demobilised over 30,000 children from armed groups in the DRC and over 3,000 child soldiers from Burundi.56 This multi-country programme offers ‘a real chance for [the] national partners to learn from the experiences of their neighbors’.57 This multi-organisation, multi-government approach is important not only in the DDR process but also in the prevention of cross-border recruitment. Children recruited by Rwandan rebel groups to fight in the DRC regularly cross borders between Rwanda and Burundi and are even found fighting in the CAR.58 Other examples of multilateral action in the reintegration process can be seen with the cooperation of NGOs and refugee camps. Following the 2003 peace agreement in Liberia, some of the estimated 21,000 child soldiers demobilised by the UN Mission in Liberia eventually migrated to the Buduburam Refugee 55 Child Soldiers Newsletter, International Action Network on Small Arms, Coalition to Stop the Use of Child Soldiers and Human Security Programme at Foreign Affairs Canada (3 March 2002), available at http://www.iansa.org (last accessed 5 March 2009). 56 MDRP Fact Sheet (August 2008), available at http://www.mdrp.org/PDFs/MDRP_FS_0808.pdf (last accessed 25 April 2010). 57 ‘Child soldiers in the DRC: An interview with Sarah Michael’, MDRP Social Development Specialist, Multi-Country Demobilization and Reintegration Program, N&N no. 21 (29 October 2006), available at http://www.mdrp.org/PDFs/N&N_21_06.pdf (accessed 25 April 2010). 58 ‘Saving the Smallest Soldiers’, The World Bank (17 May 2006), available at http://web. worldbank.org/WBSITE/EXTERNAL/NEWS/0„contentMDK:20923695∼pagePK:64257043∼ piPK:437376∼theSitePK:4607,00.html (last accessed 25 April 2010).

Child Soldiers in Africa 125 Camp in Accra, Ghana.59 The Pan African Center for Peace and Reconciliation – Ghana, in partnership with the Initiative for the Development of Former Child Soldiers, worked within the camp to make the reintegration process a positive step in the lives of approximately 200 Liberian children.60 In early 2008, the Ghanaian Government discovered there were former child soldiers in the camp. As a result, none of these former soldiers were to be found on a visit to the Buduburam Refugee Camp in June 2009. Unsure if authorities were to arrest and prosecute or otherwise penalise these former soldiers (many of them now adults), most fled back to Liberia. Less than 50 former child soldiers still remain in Accra. All are in need of continuing rehabilitation and reintegration into a safe community, not threats of criminal prosecution. III. CHALLENGES OF PROTECTING CHILDREN IN AFRICA

The international laws as they exist currently are inadequate to protect all African children in conflict situations and more effective means of enforcement are also needed. In the area of prevention, author Alcinda Honwana stated that strengthening international law regarding child soldiers requires a look at ‘intersections between international and local understandings’.61 The lack of consensus on the minimum age of adulthood results from the fact that the idea of childhood is as much a social and religious construction as a biological one. Because ‘the rationale behind the Straight-18 standard has little to do with scientific studies of childhood’, it is understandable that various societies will disagree on the definitions laid out in international treaties.62 Even in countries where birth registration is high, age may not be a determining factor in whether a child has reached adulthood. African families can be large in size and poor in wealth, creating a need for members of the family to contribute to the household at an early age. Where tribal traditions remain central to a society, as with the Kamajors hunters of Sierra Leone, adulthood is commonly determined by a person’s ability to fight.63 In addition to tribal and cultural differences, various religious and political views in African countries also frustrate the ability of international law to protect children in local societies. For example, with regard to the CRC, Djibouti’s reservations in 1991 guard the country from complying with any provisions ‘that are incompatible with its religion and its traditional values’.64 Similarly, Mauritania made reservations to any articles of the CRC that ‘may be contrary to the beliefs and values of Islam’.65 Military interests also commonly take 59 Liberia: The promise of peace for 21,000 child soldiers, Amnesty International, International Secretariat, AFR 34/006/2004 (2004). 60 Alva Burrowes, Program Manager, Pan African Center for Peace and Conflict Resolution, Buduburam Refugee Camp, interview by author, Accra, Ghana (12 June 2009). 61 A. Honwana, Child Soldiers in Africa, University of Pennsylvania Press (2006), p. 39. 62 Rosen, Armies of the Young, supra note 48, p. 135. 63 ‘The Use of Children as Soldiers in Africa’, supra note 11. 64 United Nations Treaty Collection, Status of Ratification of the CRC, supra note 26. 65 Ibid.

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priority over international obligations. Mozambique established 18 years as the age of recruitment, yet the national Constitution allows for a change of law with respect to the age limit in times of war, allowing military interests to outweigh children’s rights.66 Agreeing to cooperate through ratification of international treaties without reservation and with consistent domestic legislation is the first step for African countries in overcoming cultural and religious differences for the sake of children’s rights. The same cultural and political hurdles have arisen within the area of enforcement measures. This is clearly seen within the familiar debate of peace versus justice in Africa. For example, the ICC’s possible prosecution against Sudanese President Omar al-Bashir has been questioned as ‘a triumph for justice or a blow to peace in Sudan?’67 It was feared that peace talks between northern and southern Sudan would be stalled if justice in the ICC and al-Bashir’s human rights abuses were to become the focus. But the idea that peace can be brought about by the very leaders that caused the atrocities in the first place is highly questionable. Although ‘peace must sometimes come first’, the promotion of justice may be able to revitalise a peace process that has become illusive or even purely imaginary.68 Another question that arises is whether it is productive to hold individuals accountable in international criminal courts that do not operate under the same religious or tribal belief systems as those individuals its prosecutes. The Kamajors made up a majority of the Civil Defense Forces (CDF), a paramilitary organisation fighting against rebel groups in Sierra Leone. These fighters, a part of the Mende ethnic group, believe in their ability to fly, invisibility to their enemies and being bulletproof.69 The Kamajors are also notorious for recruitment and use of young soldiers, to whom the images of these mythical freedom fighters represent what it means to be a glorified adult.70 Two Kamajors military commanders, Moinina Fofana and Allieu Kondewa, were convicted of war crimes by the SCSL.71 Such convictions open a debate about whether criminal courts based in international and national laws can successfully deter individuals from similar backgrounds where the defendants’ beliefs of war practices are based in tribal mysticism. However, such prosecutions may still send a message to other individuals that the practice of child soldiering will not be accepted. Furthermore, deterrence is not the sole 66 67 68 69

The Use of Children as Soldiers in Africa, supra note 11. ‘Warrant for Bashir’, The Economist (7–13 March 2009) Ibid. D. Hoffman, ‘The Meaning of a Militia: Understanding the Civil Defence Forces of Sierra Leone’, 106 African Affairs (2007): 639–62. This article is an adapted, narrative version of an expert witness report the author wrote for the Defence of one of the accused before the Special Court for Sierra Leone. 70 Ibid. 71 Although Fofana’s conviction on counts of enlistment of child soldiers was reversed on appeal, both commanders’ overall prison sentences were increased by the Appeals Chamber. Samuel Hinga Norman was also indicted on war crimes including the enlistment and use of children under the age of 15 years; however, he died of natural causes in February 2007, before a judgment was handed down.

Child Soldiers in Africa 127 purpose of criminal law; it also has the effect of punishing the offender, providing justice for the victims and promoting a sense of fairness in the community. These international criminal courts have the potential to succeed where local courts have failed, due to internal corruption, lack of educated law enforcement and insufficient investigations. Such incapacities have led to a mismanagement of criminal enforcement of child soldiering abuses in the DRC. In January 2007, the Military Court of Bukavu convicted Jean-Pierre Biyoyo, former leader of the rebel group Mudundu 40, of illegally arresting and detaining children.72 Biyoyo’s death sentence was later reduced to just five years imprisonment; however, he escaped from jail and was nominated as a lieutenant colonel in the Congolese army.73 Such ineffective enforcement of laws against perpetrators of child soldiering is ‘an affront to all the victims who live in fear knowing that their tormentor remains at large’.74 The criminal and military courts of the DRC represent the common evils of mismanagement, lack of independence and, as a result, impunity, which characterise many local African law enforcement systems. The children in Africa’s conflict zones deserve to have a stronger importance placed on the punishment of those that recruit them into war. In the area of reintegration, NGOs have worked within local African societies to produce results. Reconstruindo a Esperança in Mozambique involved a combination of local healers in the community and Western-trained psychologists. The result was a ‘symbiotic model of psychotherapeutic interventions’ that incorporated the local culture.75 Such success stories of multicultural cooperation are only possible when children have first been disarmed and taken out of conflict zones. In Burundi, where major hostilities have ceased, there are still an estimated 5,000 child soldiers who have yet to be demobilised.76 In addition, the struggles of overcoming various social definitions of ‘child’ have burdened the reintegration process. From 1995–8, Angola experienced a somewhat successful demobilisation programme following its civil war; however, action was sometimes ‘hindered by difficult debates over the terminology and date by which child soldiers were to be defined’.77 As the international community attempts to create a workable legal definition of ‘child soldier’, the children themselves are coping with new personal categorisations in their post-conflict society. In Sierra Leone, former child soldiers had to play the part of innocent victims to gain funding from NGOs, while maintaining publicly that they never participated in war in order to be 72 Biyoyo was charged with ‘arresting and detaining’ children because although the recruitment of persons under eighteen was illegal under national military law, the offence was not included in the Congolese Penal Code. 73 ‘ASF is concerned by the fact that Jean-Pierre Biyoyo remains at large’, Avocats Sans Frontiéres, Mission Permanente en République Démocratique du Congo, Kinshasa (May 2009). 74 Ibid. 75 L. Wamba, ‘Complimentary Strengths: Western Psychology and Traditional Healing’, New Tactics for Human Rights, The Center for Victims of Torture (2004), p. 6. 76 E. Kaplan, ‘Child Soldiers Around the World’, Council on Foreign Relations, available at http://www.cfr.org/publication/9331/ (last accessed 25 April 2010). 77 B. Verhey, The Prevention, Demobilization and Reintegration of Child Soldiers: Angola Case Study, World Bank (2001).

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accepted by the community.78 Amid these realities of cultural sensibilities, multigovernmental and multi-organisational cooperation, and the rights and needs of children in war-affected areas, recommendations will now be presented on how the hurdles of ending child soldiering in Africa can be surmounted through an improved international legal response.

IV. RECOMMENDATIONS FOR IMPROVEMENT OF THE INTERNATIONAL LEGAL RESPONSE

A. Strengthening international law: optional protocols and advisory opinions When working with different definitions of ‘child’ in various cultures of the world, the first step in protecting children from participation in conflict is to create a clearer set of rules. Making a clear and uniform set of standards is the best defence among parties with non-uniform customs and ideas. This can be done through additional protocols to existing treaties and advisory opinions to clarify treaty language. Conflicting standards and ambiguous language of treaties can create debate of which children are actually protected under international law and under what circumstances. These standards need to be clarified and strengthened to maintain their relevance as States and individuals should be challenged to uphold human rights at the highest level rather than the most convenient or minimally acceptable. One area where the protection of child soldiers demands improvement is with the presence of non-State actors as perpetrators. The standard that is expected of non-State actors – that children should not take direct part in hostilities ‘under any circumstances’ – should be applied to both State and non-State groups. Such uniformity of standards will increase the legitimacy of the sanctions as they place all armed forces under the same rules of behaviour. Because the language of the CRC Optional Protocol and other treaties is already written, the international community must endorse additional protocols. At this point, it is helpful to understand how an optional protocol comes into force. The language of the CRC Optional Protocol was created in working group sessions between governments, UN organs and NGOs, such as the Coalition to Stop the Use of Child Soldiers. These sessions were followed by an adoption of the amendment to the CRC by the UN General Assembly in 2000. Once the requisite number of States ratified the new treaty two years later, it came into force against all signatories.79 The benefits of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted in 2008, were to ‘clarify the meaning and scope’ of such rights and to ‘assist States in understanding their 78 S. Shepler, ‘The Rite of the Child: Global Discourses of Youth and Reintegrating of Child Soldiers in Sierra Leone’, 4 Journal of Human Rights (2005): 197–211. 79 A State is not automatically bound by an optional protocol by being a party to the original treaty. For an optional protocol to be binding, the State must sign and ratify the optional protocol as a separate treaty.

Child Soldiers in Africa 129 obligations’ under the original treaty.80 These goals of clarification and assistance to States are similar to the goals to be achieved by optional protocols to treaties concerning child soldiers. A second CRC Optional Protocol and additional protocols to other international treaties involving child soldiers could enforce a universal prohibition on recruiting children below 18 years of age under any circumstances. Equal standards against all parties would increase the legitimacy of international law in the area of child soldiering by conveying to governments that neither they nor rebel groups are afforded leniency. In addition to unified standards, international law also requires strengthening in the area of protection, with a broader and more comprehensive definition of child soldiers. One of the largest inconsistencies in the CRC Optional Protocol lies in its Preamble, as it defines a child as ‘every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier’.81 To prevent States from construing this language in a way that allows them to place national interests above the rights of the child, official interpretation is needed. Organs within the UN and authorised by the General Assembly may request advisory opinions from the International Court of Justice (ICJ) on legal issues within the scope of that organ’s activities.82 The General Assembly and the Security Council may request opinions on any legal question.83 It is the responsibility of such UN organs to inquire about legal questions concerning the protection of child soldiers since war-affected children officially became a part of the UN Security Council agenda with Resolution 1261 in August 1999.84 Also, in the Secretary-General’s 2002 Report on Children and Armed Conflict, four of the five conflicts mentioned were taking place in African countries: Burundi, the DRC, Liberia and Somalia.85 The establishment of such resolutions and reports indicates that the concerns of child soldiers are now regarded as falling under one of the core responsibilities of the Security Council – to maintain international peace and security.86 Although ICJ opinions are technically non-binding on States because it is only international organs that may make the request, advisory opinions develop international norms of behaviour in a way that advances the obligations of States under customary international law.87 These opinions derive 80 Office of the High Commissioner for Human Rights, An Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Note for National Human Rights Institutions, available at http://www.nhri.net/pdf/Note_Optional_Protocal_EN.pdf (last accessed 25 April 2010). 81 CRC Optional Protocol, supra note 23, preamble. 82 UN Charter, article 96(2). 83 Ibid., article 96(1). 84 The Secretary-General, Report of the Secretary-General on Children and Armed Conflict, delivered to the General Assembly, UN Doc. A/58/ 546-S/2003/1053 (10 November 2003). 85 The Secretary-General, Report of the Secretary-General on Children and Armed Conflict, Annex, delivered to the Security Council, UN Doc. S/2002/1299 (26 November 2002). 86 UN Charter, supra note 82, article 24(1). 87 In Construction of a Wall, the ICJ determined that the issues regarding Israel’s building of a barrier in the Occupied Palestinian Territory was a legal issue appropriate for the court despite Israel’s lack of consent to ICJ jurisdiction (Construction of a Wall (2004) I.C.J. 131, 151–2, 47). The ICJ could similarly conclude that it has jurisdiction to give advisory opinions on the legal issues concerning child soldiers in African nations even without the consent of the particular African countries to the question at issue.

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their authority from the fact that they are the ‘official pronouncement of the principal judicial organ’ of the UN.88 An advisory opinion on the CRC Optional Protocol by the ICJ could interpret ‘all feasible measures’ to require the establishment of a voluntary enlistment age that matches the minimum age for use in hostilities. It must also be clarified that allowing children under 18 to be recruited or used in conflict in times of military emergency is not sufficient to accomplish ‘all feasible measures’. This clarification would be an important step in affirming that wartime is the precise moment when human rights for children should warrant more protection, not less. The court could also refine the definition of ‘recruitment’ as including voluntary enlistment rather than basing protection on the level of coercion involved. In Africa, the mix of poverty and internal armed conflicts leaves children no choice but to join in the armed forces for survival. If such enlistment is going to be considered voluntary, then the protection for recruitment needs to be extended to all forms of recruitment and enlistment. In 1998, the African Court of Human and People’s Rights (ACHPR) was established. The ACHPR is unique in that it allows advisory opinions to be requested not only from Member States and organs of the AU but also from any African organisation recognised by the AU.89 This means NGOs throughout the continent may participate in the legal process and encourage increased protection for child soldiers in a way not previously possible. Furthermore, clarification of treaty language is not limited to interpretations of the African Charter. The ACHPR may give an opinion ‘on any legal matter relating to the Charter or any other relevant human rights instruments’.90 This means parties requesting advisory opinions can initiate legal interpretations of any international treaty regarding child soldiers. The ACHPR has begun to hear cases and the African community may rely on this regional court, as well as UN requests to the ICJ, for clarification of human rights treaties regarding children in armed conflict. B. Utilisation of enforcement mechanisms: international criminal courts and individual criminal responsibility Even with the improvements in international law regarding child soldiers, a major concern with human rights treaties in general is that ratification can ‘serve to offset pressure for real change in practice’.91 More effective enforcement measures will ensure that States respect the commitments they have made in international agreements. The recent development is for international criminal courts to place individual criminal responsibility on perpetrators for their role in violating the 88 P.H.F. Bekker, ‘The UN General Assembly Requests a World Court Advisory Opinion On Israel’s Separation Barrier’, American Society of International Law (December 2003), available at http://www.asil.org/insigh121.cfm (last accessed 25 April 2010). 89 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, article 4.1 (2002). 90 Ibid. 91 D. Weissbrodt, ‘Do Human Rights Treaties Make Things Worse?’, 111 Yale Law Journal (2002).

Child Soldiers in Africa 131 human rights of children. The challenges of enforcement by international criminal courts epitomise the general obstacles to deterrence of child rights abuses in Africa, including overall respect for human rights, the perception of selective justice and the accomplishment of peace versus retribution. The Rome Statute states that the ICC has the power to ‘exercise its jurisdiction over persons for the most serious crimes of international concern’.92 Nick Grono of the International Crisis Group explained that prosecution by the ICC is ‘one of the few credible threats faced by leaders of warring parties’.93 In her encounter with Commander Laurent Djim Wei of the Popular Army for the Restoration of the Republic and Democracy in the CAR, UN Special Representative Coomaraswamy described how the military leader was at first indifferent to being placed on the UN Secretary-General’s 2007 List of Shame, naming those involved in the recruitment and use of child soldiers.94 When the actual consequences of such behaviour were explained to him, 250 children were released from his rebel forces. This story indicates the deterrent effects of shaming through threat of international legal action. Such threats are described as ‘targeted measures’ but may include referral of the situation to the ICC. The ICC has charged Thomas Lubanga Dyilo under article 8 of the Rome Statute for taking children off the streets of the DRC and incorporating them into the Union of Congolese Patriots.95 Lubanga Dyilo’s trial, which was first referred to the court by the DRC in 2004, opened in January 2009. The ICC also issued an arrest warrant for current Sudanese President al-Bashir on 4 March 2009, the first such warrant against an acting head of state.96 Although al-Bashir’s warrant did not include charges of child soldiering, his case highlights the idea that the international community ‘should not wait for the termination of a war crime before prosecuting those responsible’.97 Increased support and ratification for the ICC would reinforce one of the key concepts of the court: universal jurisdiction. The ICC lacks an internal police force and must rely on the 111 States to the Rome Statute to refer situations to the court as well as to compel perpetrators to face prosecution. An arrest warrant for LRA leader Joseph Kony was issued in 2005, including charges of enlistment of child soldiers through abduction.98 As of April 2010, Kony remains at large. Although Ugandan President Yoweri Museveni originally referred the situation to the ICC in 2004, he had since supported amnesty for Kony if he successfully brought about an end to the violence in the 92 Rome Statute, article 1. 93 N. Grono, International Crisis Group, Presentation on the Prosecutorial Strategy for 2007–9 at the Second Public Hearing of the Office of the Prosecutor (26 September 2006). 94 Coomaraswamy, supra note 9. 95 The Prosecutor v. Thomas Lubanga Dyilo (10 February 2006) ICC-01/04-01/06, Pre-Trial Chamber I, Arrest Warrant. 96 The Prosecutor v. Omar Hassan Ahmad Al Bashir (4 March 2009) ICC-02/05-01/09, Pre-Trial Chamber I, Arrest Warrant. 97 P. W. Singer, ‘Talk Is Cheap: Getting Serious About Preventing Child Soldiers’, 561 Cornell International Law Journal (2004): 561–86. 98 The Prosecutor v. Joseph Kony (27 September 2005) ICC-012/04-01/05-53, Pre-Trial Chamber II, Arrest Warrant.

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country.99 The UN Commission on Human Rights cautioned that ‘amnesties should not be granted to those who commit violations of humanitarian and human rights law’ because this contravenes States’ obligations under international law to investigate such abuses and bring perpetrators to justice.100 The ICC is currently prosecuting cases in only four situations, all in African countries: DRC, CAR, Uganda and Sudan. This agenda has been criticised as selective justice. However, three of the four situations were referred to the court by citizens of the respective country being investigated. With the exception of Sudan, these African countries have ratified the Rome Statute, recognising ICC jurisdiction over its country, citizens and leaders. At an AU summit held in Libya on 3 July 2009, the growing resentment among African States toward the ICC’s focus on the continent culminated in an official AU boycott of the criminal court’s indictment against al-Bashir.101 A draft resolution at the summit was originally worded to boycott all ICC indictments of African personalities, exploring a dangerous precedent of allowing African leaders to believe they are above the law and allowing African States to undermine their obligations to the Rome Statute. Another hurdle to enforcement of international laws prohibiting the use of child soldiers is the proliferation of small arms in Africa due to high demand by warring factions, poor border controls and illicit smuggling. Efforts have been made by the Security Council to monitor the connection between illegal weapons trafficking in Sierra Leone and the DRC and their effect on children in armed conflict. These monitoring missions have led some States to attempt bans on military assistance as a way of indirectly prohibiting the use of child soldiers. Legislation passed by the United States Congress on 10 December 2008 refuses military training and financial assistance to countries involved in using children as soldiers. The DRC, Uganda and Sudan are affected by this new domestic legislation as part of the Trafficking Victims Protection Reauthorization Act.102 This restriction is placed not only on governments that support children in armed forces but also on governments that support paramilitary groups or militias that use child soldiers. This could be a unique way of crippling the life source of rebel groups, which are commonly financed or otherwise supported by governments of neighbouring countries. For example, RUF forces of Sierra Leone were based in Liberia, while Southern Sudan has been the location of training camps for Uganda’s LRA soldiers. The removal of financial support due to recruitment and use of children may ‘convince groups and governments that it is no longer advantageous to utilize 99 ‘Museveni Promises Kony Amnesty’, Citizens for Global Solutions (3 July 2006), available at http://www.globalsolutions.org/issues/international_criminal_court/learn/Museveni_Kony_ Amnesty (accessed 25 April 2010). 100 UN Commission on Human Rights, Res. 2002/79, 2 (2002). 101 A. Bell, ‘AU Under Fire over Boycott of International Criminal Court’, SW Radio Africa, available at http://www.swradioafrica.com/news060709/auunderfire060709.htm (accessed 25 April 2010). 102 ‘US Limits Military Aid to Nations Using Child Soldiers’, Human Rights Watch (11 December 2008), available at http://www.hrw.org/en/news/2009/02/23/us-limits-military-aidnations-using-child-soldiers (accessed 25 April 2010).

Child Soldiers in Africa 133 children in combat’.103 If the motivation in using children as soldiers is reduced, then the actions of perpetrators in recruiting and using children will also be lessened. The concern of withholding aid is that it may only cause financial strain on a country already in crisis or that such sanctions may not necessarily deter the individuals responsible for recruiting children. Similarly, weapons or small arms bans do not take into account that some child soldiers do not carry guns. According to Louis Kuukpen, an expert on small arms in West Africa, enforcement of international laws against the recruitment and use of children in armed combat will necessitate a more holistic approach, including a growing attention on advocacy and public sensitisation for war-affected youth.104 Such a multilateral approach requires a focus on enforcement by international criminal courts, creative methods of luring compliance from government and rebel leaders, and effective rehabilitation programmes for former child soldiers. C. Reintegration of former child soldiers: learning the lessons of post-conflict zones Many who have suffered from the acts of child soldiers believe no justice is possible without punishment and that there is no acceptable age at which these brutal acts become pardonable. However, in order to successfully rebuild broken societies and avoid re-recruitment, the efforts of States should focus on the rehabilitation rather than the prosecution of former child soldiers. Article 26 of the Rome Statute states that the ICC does not have ‘jurisdiction over any person who was under the age of 18 at the time of the alleged commission of the offence’.105 But this provision merely establishes the jurisdiction for the ICC, leaving States to determine their own national legislation. The CRC adopted a provision that States must ‘seek to establish’ a minimum age for which a person could be held legally accountable for their actions; however, the treaty defers to the State to determine the exact age.106 The UN Standard Minimum Rules for the Administration of Juvenile Justice recommend that the minimum age not be fixed too low ‘bearing in mind the facts of a child’s emotional, mental and intellectual maturity’.107 Despite these guiding principles, the Children Act in Uganda set the minimum age for criminal responsibility at 12 years old even though the Constitution has defined the age of a child as below 18 years of age.108 In 1998, approximately 2,800 Rwandan children were detained as genocide suspects following the 1994 crisis.109 Rather than detainment or prosecution, former child soldiers belong in rehabilitation centres followed by reintegration 103 Singer, Talk Is Cheap, p. 581. 104 Louis Kuukpen, Project Officer for Governance, United Nations Development Programme, Ghana, interview by author, Accra, Ghana (15 June 2009). 105 Rome Statute, article 26. 106 CRC, article 40(3)(a). 107 UN Standard Minimum Rules for the Administration of Juvenile Justice (1985), article 4(1). 108 The Children Act of Uganda (2002), §88; Constitution of Uganda (1995), Chapter XVII, article 257(c). 109 The Use of Children as Soldiers in Africa, supra note 11.

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into secure communities. For example, at the SCSL, child soldiers are given private hearings and served with rehabilitation programmes rather than prison time.110 Artemy Izmestiev, a volunteer at the Buduburam Refugee Camp in Ghana since 2004, believes reintegration programmes help former child soldiers to be healed both as victims and as perpetrators.111 Izmestiev added that human rights law itself acts as an important healing agent because it is universal and written. The former child soldiers themselves aid in the healing and prevention process. Izmestiev has witnessed the extraordinary potential of children that have undergone the tragic experience of war and have participated in reintegration programmes to help other war-affected children. The Pan African Center for Peace and Conflict Resolution-Liberia (PAC) has helped approximately 100 children directly and 300–500 children indirectly through its rehabilitation programmes in Monrovia. Kadio Saa Ali, Executive Director of PAC, explained that many children had been rejected by family members because of their involvement in the war and could not return to their towns and villages.112 Saa Ali advised that NGO programmes overall need to include more life skills training as well as support with job search activities. Programmes cannot merely send children into a post-conflict country without alternatives to the economy of war. To that effect, PAC is working on establishing a community peace cells project in Liberia as a pilot project to help with these issues. Saa Ali also suggested that reintegration agendas need more awareness programmes on reconciliation and forgiveness to ensure a smooth reintegration into societies that may be sceptical of former child soldiers. Child soldiers are often also refugees or internally displaced people; therefore, it is important not to label children with the sole identity of ‘child soldier’. PAC’s reintegration programmes in the Buduburam Refugee Camp in Ghana opened their doors to ‘war-affected youth of any age’, thereby helping such victims to not see themselves only as child soldiers.113 In this way, children can feel more accepted into society and the war-affected country can rebuild with unity. If the goals of reintegration by PAC and similar NGOs can be achieved, this will put a stop to the vicious cycle of rehabilitation followed by more fighting. As Saa Ali concluded: If former combatants have access to jobs and income generating activity and can reconcile with their families, there can be little prospect of any reoccurrence of re-recruitment.114 It is important for all African countries, despite their current political stability, to learn lessons from these former child soldiers and the conflicts they have endured. 110 Singer, Talk is Cheap, p. 580. 111 Artemy Izmestiev, Buduburam Refugee Camp volunteer, Pan African Centre for Peace-Ghana, interview by author, Accra, Ghana (15 June 2009). 112 Kadio Saa Ali, Executive Director, Pan African Center for Peace and Conflict Resolution-Liberia, interview by author via email (15 July 2009). 113 Izmestiev interview, supra note 111. 114 Saa Ali interview, supra note 112.

Child Soldiers in Africa 135 ‘The small things start from an awareness of human rights’, explained Izmestiev. ‘It is dangerous when awareness comes only after conflict’.115 The improvement of the legal aspects of prevention and enforcement cannot be separated from the humanitarian aspects of rehabilitation and reintegration, as these latter factors constitute the base of knowledge upon which to create effective sanctions and deterrence. Such knowledge includes information about which children are most vulnerable to recruitment, which individuals or groups are acting as perpetrators and what motivations can be used to compel compliance with human rights laws. Additionally, the formation of international standards and methods of enforcement are most vital during peacetime and post-conflict stages so that the system can be operational before conflicts arise or fighting resumes. V. CONCLUSION

There is an inevitable divide between African culture, with its traditional ideas of childhood, warfare and peace processes based in forgiveness, and the Westernised protectionist model of children’s rights and prioritisation of justice. However, allowing exceptions for political, religious and cultural beliefs will not accomplish the overarching goal of ensuring the rights of children on a global or regional level. The notion of 18 years as the age of protection for children in armed forces is not meant to be a Westernised ideal but rather a lowest common denominator of human action. Because understandings of childhood are so varied, the international community should set standards that encompass the broadest terms of protection for all children being recruited and used as soldiers. The creation of uniform standards of behaviour among State and non-State groups is essential to creating a more effective system of sanctions, as is the utilisation of advisory organs to clarify what is expected of groups and individuals in respecting the rights of children. The constant modification and improvement of human rights treaties helps these instruments to maintain relevance with the changing needs of children in armed conflict. Advocates continue to call for the ratification of human rights treaties as a necessary step toward compliance, insisting that compelling countries to ‘toe the mark is only possible when there is a mark to toe’.116 However, it cannot be satisfactory that States simply ratify international agreements to appease the international community or gain political acceptance. International criminal courts are essential to the enforcement of international laws protecting child soldiers despite the fact that arrest warrants issued from Europe and investigations conducted by international institutions may seem inconsistent with Africa’s traditional system of relying on local courts and community leaders to solve conflicts. The idea of international responsibility for regional and local crimes is initially viewed as a situation where ‘the people crying loudest for retribution are

115 Izmestiev interview, supra note 111. 116 Weissbrodt, ‘Do Human Rights Treaties Make Things Worse?’.

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the least affected by the conflict’.117 In reality, war crimes committed in Africa against African children place a burden on all human beings in all countries, making international justice systems an appropriate and necessary enforcement mechanism. Such systems also act as courts of last resort when governments fail to create effective prosecution and deterrence methods internally within a State. In cases where a country is in the post-conflict rebuilding stage, the international legal system can provide a remedy in the absence of local justice systems that have been ravaged by war. This process does not constitute an exportation of certain views about childhood or justice throughout Africa; it is the reality of creating international human rights law and international criminal law that is universal and can protect all child soldiers and punish all perpetrators. As the progress of al-Bashir’s arrest lingers, so do the trials of two other prominent African figures. At the SCSL, the prosecution continues their crossexamination of Taylor, intent on proving that he had ‘reason to lie’ in his testimony from July through November 2009, in which he denied all charges of war crimes, crimes against humanity and serious violations of international humanitarian law.118 Meanwhile, the ICC trial of Lubanga Dyilo, having commenced in January 2009, is expected to highlight ‘the gravity of recruitment, enlistment and conscription of child soldiers’.119 Furthermore, the successful arrest and prosecution of Kony could help rather than hinder the peace process in Uganda by ‘revealing the criminal responsibility of and punishing those who have committed the crimes’.120 In particular, the arrest of rebel leaders will be the most efficient means of damaging rebel armed forces by pulling commanders away from their leadership roles. In order for these arrest operations to be effective, the ICC needs to have the cooperation of the States that are responsible for its creation. Only through States’ obligation of universal jurisdiction can international human rights and international criminal law have their full influence on perpetrators of child soldiering. At the same time that international law is working with various cultural definitions of ‘child’ to develop broader protection, the reintegration efforts in Africa are helping children to cope with their new societal definitions as ‘war-affected children’ and as ‘former child soldiers’. As author Susan Shepler witnessed in her fieldwork: [I]t is at the level of everyday practice that these [global human rights] discourses shape new expectations and understandings about children and childhood.121 117 ‘What’s the ICC up to?’ New African (May 2009). 118 A. Sesay, ‘As Cross-Examination Of Charles Taylor Starts, Prosecution Tells Taylor He Has A Reason To Lie’, AllAfrica.com (10 November 2009), available at http://allafrica.com/stories/ 200911110093.html (last accessed 28 April 2010). 119 Official Website for the Coalition for the International Criminal Court, available at http://www.iccnow.org/?mod=drctimelinelubanga (last accessed 25 April 2010). 120 ‘The Case Against Bashir’, New African (May 2009). 121 Shepler, ‘The Rite of the Child’.

Child Soldiers in Africa 137 As these new discourses are being created on the ground, international laws need to stay consistent with the changing needs of protection. Additionally, the actions of States and courts with regard to former child soldiers must reflect the post-conflict reality that these children are victims and not perpetrators. Former child soldiers need to be provided with rehabilitation opportunities that include job search assistance to avoid re-recruitment. Meanwhile, awareness programmes should be made available to the societies that receive these former soldiers in order to ease the process of forgiveness and reintegration. The problem of child soldiering cannot wait for idealistic circumstances, such as peace agreements between warring factions. The legal issues of protection, prevention and deterrence are areas where tangible progress can be made. Such improvements in the response of the international legal system are found in multilateral mechanisms of justice, enforcement and reintegration. On a continent where the political and tribal stability of each country is fragile, the lessons to be learned from previous and current conflicts in Africa are too valuable to be ignored, and the opportunity to establish human rights protection in times of peace cannot be taken for granted by African States. Furthermore, the focus on Africa – in this paper and in the global discourse on child soldiers – is not made in admonishment. The continent has the opportunity to be an example of how the straight-18 standard can become a reality. The hope is that African countries can play a leading role in ‘ensuring this standard is adopted; of even more importance, they can help to ensure that this standard is respected in practice’.122 Adherence to international legal instruments and utilisation of international criminal courts will not signify submission on the part of African nations but rather a respect for human rights above all other interests. Source list (In order citations appear in article) 1. ‘The Road from Soldier Back to Child’, Africa Recovery (October 2001). 2. M. Happold, Child Solders in International Law, Juris Publishing, Inc. (2005). 3. The Secretary-General, Report of the Secretary-General on Children and Armed Conflict, delivered to the Security Council and the General Assembly, UN Doc. A/55/163–S/2000/712 (19 July 2000). 4. ‘DRC: Recruitment of Child Soldiers Rising’, UN Office for the Coordination of Humanitarian Affairs (11 November 2008), available at http: / / www . irinnews . org / report . aspx ? ReportId = 81406 (accessed 25 April 2010). 5. Child Soldiers Global Report: Africa Regional Overview, Coalition to Stop the Use of Child Soldiers (2004). 122 ‘The Use of Children as Soldiers in Africa,’ supra note 11.

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Janet McKnight 6. Child Soldiers Global Report 2008: Liberia, Coalition to Stop the Use of Child Soldiers (20 May 2008). 7. G. Machel, Impact of Armed Conflict on Children: A Review of Progress Since the 1996 United Nations Report on the Impact of Armed Conflict on Children, Report of the Expert of the Secretary-General, submitted pursuant to G.A. Res. 48/157, UN Doc. A/51/306 (26 August 1996). 8. R. Coomaraswamy, Keynote Address at the United States Institute of Peace: Policy Forum on Children and Armed Conflict: Child Soldiers as Combatants, Victims, and Survivors (17 September 2008). 9. ‘The Use of Children as Soldiers in Africa: A country analysis of child recruitment and participation in armed conflict’, Relief Web (15 May 2002), available at http://www.reliefweb.int/library/ documents/chilsold.htm (accessed 25 April 2010). 10. Mame Couna Thioye, Chair of the Child Rights Department, African Assembly for the Defense of Human Rights, interview by author, Dakar, Senegal (9 June 2009). 11. Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I) (8 June 1977). 12. Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of NonInternational Armed Conflicts (Additional Protocol II) (8 June 1977). 13. Convention on the Rights of the Child, G.A. Res. 44/25, 44 UN GAOR Supp. (No. 49), UN Doc. A/44/49 (20 November 1989). 14. G.A. Res. 48/157, UN Doc. A/RES/48/157 (20 December 1993). 15. Optional Protocol to the Convention on the Rights of the Involvement of Children in Armed Conflict, G.A. Res. 54/263, UN Doc. A/RES/54/263 (25 May 2000). 16. United Nations Treaty Collection, Status of Ratification, Reservations and Declarations: Convention on the Rights of the Child, available at http://treaties.un.org/Pages/ViewDetails.aspx? src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en (accessed 25 April 2010). 17. United Nations Treaty Collection, Status of Ratification, Reservations and Declarations: Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, available at http://treaties.un.org/Pages/ ViewDetails.aspx?src = TREATY&mtdsg_no = IV-11-b&chapter= 4&lang=en (accessed 25 April 2010). 18. African Charter on the Rights and Welfare of the Child, O.A.U. Doc. CAB/LEG//24.9/49 (11 July 1990).

Child Soldiers in Africa 139 19. List of Countries which have Signed, Ratified/Acceded to the African Union Convention on African Charter on the Rights and Welfare of the Child, African Union Web site, available at http:// www.africaunion.org/root/au/Documents/Treaties/List/African% 20Charter%20on%20the%20Rights%20and%20Welfare%20of% 20the%20Child.pdf (accessed 25 April 2010). 20. International Labour Organization, Convention on the Worst Forms of Child Labour (No. 182) (17 June 1999), ILOLEX No. C182. 21. List of Ratifications for ILO Conventions, Worst Forms of Child Labour Convention, 1999 (No. 182), available at http:// webfusion.ilo.org/public/db/standards/normes/appl/appl-byConv. cfm?conv=C182&lang=EN (accessed 25 April 2010). 22. Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9 (17 July 1998). 23. Status of the Rome Statute of the International Criminal Court, United Nations Treaty Collection, available at http://treaties.un. org / Pages / ViewDetails.aspx?src = TREATY&mtdsg_no=XVIII10&chapter=18&lang=en (accessed 25 April 2010). 24. Elements of Crimes adopted by ICC Assembly of State Parties, ICC-ASP/1/3, available at http://untreaty.un.org/cod/icc/asp/ 1stsession/report/english/part_ii_b_e.pdf (accessed 25 April 2010). 25. The Secretary-General, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (4 October 2000). 26. D. M. Rosen, Armies of the Young: Child Soldiers in War and Terrorism, Rutgers University Press (2005). 27. Prosecutor v. Samuel Hinga Norman (31 May 2004), Case No. SCSL-2004-14-AR729E, Special Court for Sierra Leone (Appeals Chamber), Decision on Preliminary Motion Based on Lack of Jurisdiction, A(2)(a). 28. Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao (the RUF accused) (25 February 2009), Case No. SCSL04-15-T, Special Court for Sierra Leone (Trial Chamber I). 29. The Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu (20 June 2007), Case No. SCSL-2004-16A, Special Court for Sierra Leone (Trial Chamber). 30. The Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu (22 February 2008), Case No. SCSL-20041-A, Special Court for Sierra Leone (Appeals Chamber). 31. The Prosecutor v. Charles Taylor (29 May 2007), Case No. SCSL03-01-PT, Special Court for Sierra Leone (Pre-Trial Chamber), Prosecution’s Second Amended Indictment.

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Janet McKnight 32. The Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu (22 February 2008), Case No. SCSL-20041-A, Special Court for Sierra Leone (Appeals Chamber). 33. Child Soldiers Newsletter, International Action Network on Small Arms, Coalition to Stop the Use of Child Soldiers and Human Security Programme at Foreign Affairs Canada (3 March 2002), available at http://www.iansa.org (accessed 5 March 2009). 34. MDRP Fact Sheet (August 2008), available at http://www. mdrp.org/PDFs/MDRP_FS_0808.pdf (accessed 25 April 2010). 35. ‘Child soldiers in the DRC: An interview with Sarah Michael’, MDRP Social Development Specialist, Multi-Country Demobilization and Reintegration Program, N&N no. 21 (29 October 2006), available at http://www.mdrp.org/PDFs/N& N_21_06.pdf (accessed 25 April 2010). 36. ‘Saving the Smallest Soldiers’, The World Bank (17 May 2006), available at http://web.worldbank.org/WBSITE/EXTERNAL/ NEWS / 0„contentMDK : 20923695∼pagePK : 64257043∼piPK : 437376∼theSitePK:4607,00.html (accessed 25 April 2010). 37. ‘Liberia: The promise of peace for 21,000 child soldiers’, Amnesty International, International Secretariat, AFR 34/006/ 2004 (2004). 38. Alva Burrowes, Program Manager, Pan African Center for Peace and Conflict Resolution, Buduburam Refugee Camp, interview by author, Accra, Ghana (12 June 2009). 39. A. Honwana, Child Soldiers in Africa, University of Pennsylvania Press (2006). 40. ‘Warrant for Bashir’, The Economist (7–13 March 2009). 41. D. Hoffman, ‘The Meaning of a Militia: Understanding the Civil Defence Forces of Sierra Leone’, 106(425) African Affairs (2007): 639–62. This article is an adapted, narrative version of an expert witness report the author wrote for the Defence of one of the accused before the Special Court for Sierra Leone. 42. ‘ASF is concerned by the fact that Jean-Pierre Biyoyo remains at large’, Avocats Sans Frontiéres, Mission Permanente en République Démocratique du Congo, Kinshasa (May 2009). 43. L. Wamba, Complimentary Strengths: Western Psychology and Traditional Healing, New Tactics for Human Rights, The Center for Victims of Torture (2004). 44. E. Kaplan, Child Soldiers Around the World, Council on Foreign Relations, available at http://www.cfr.org/publication/9331/ (accessed 25 April 2010). 45. B. Verhey, The Prevention, Demobilization and Reintegration of Child Soldiers: Angola Case Study, World Bank (2001).

Child Soldiers in Africa 141 46. S. Shepler, ‘The Rite of the Child: Global Discourses of Youth and Reintegrating of Child Soldiers in Sierra Leone’, 4(2) Journal of Human Rights (2005): 197–211. 47. Office of the High Commissioner for Human Rights, An Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Note for National Human Rights Institutions, available at http://www.nhri.net/pdf/Note_Optional_Protocal_ EN.pdf (accessed 25 April 2010). 48. United Nations Charter. 49. The Secretary-General, Report of the Secretary-General on Children and Armed Conflict, delivered to the General Assembly, UN Doc. A/58/546-S/2003/1053 (10 November 2003). 50. The Secretary-General, Report of the Secretary-General on Children and Armed Conflict, Annex, delivered to the Security Council, UN Doc. S/2002/1299 (26 November 2002). 51. P.H.F. Bekker, ‘The UN General Assembly Requests a World Court Advisory Opinion On Israel’s Separation Barrier’, American Society of International Law (December 2003), available at http://www.asil.org/insigh121.cfm (accessed 25 April 2010). 52. Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (2002). 53. D. Weissbrodt, ‘Do Human Rights Treaties Make Things Worse?’, 111(8) Yale Law Journal (June 2002). 54. N. Grono, International Crisis Group, Presentation on the Prosecutorial Strategy for 2007–9 at the Second Public Hearing of the Office of the Prosecutor (26 September 2006). 55. The Prosecutor v. Thomas Lubanga Dyilo (10 February 2006) ICC-01/04-01/06, Pre-Trial Chamber I, Arrest Warrant. 56. The Prosecutor v. Omar Hassan Ahmad Al Bashir (4 March 2009) ICC-02/05-01/09, Pre-Trial Chamber I, Arrest Warrant. 57. P. W. Singer, ‘Talk Is Cheap: Getting Serious About Preventing Child Soldiers’, 561–86 Cornell International Law Journal (2004). 58. The Prosecutor v. Joseph Kony (27 September 2005), ICC012/04-01/05-53, Pre-Trial Chamber II, Arrest Warrant. 59. ‘Museveni Promises Kony Amnesty’, Citizens for Global Solutions (3 July 2006), available at http://www.globalsolutions. org / issues / international_criminal_court / learn /Museveni_Kony_ Amnesty (accessed 25 April 2010). 60. UN Commission on Human Rights, Res. 2002/79 (2002). 61. A. Bell, ‘AU under fire over boycott of International Criminal Court’, SW Radio Africa, available at http://www.swradioafrica. com/news060709/auunderfire060709.htm (accessed 25 April 2010).

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Janet McKnight 62. ‘US Limits Military Aid to Nations Using Child Soldiers’, Human Rights Watch (11 December 2008), available at http://www. hrw.org / en / news / 2009 / 02 / 23 / us-limits-military-aid-nationsusing-child-soldiers (accessed 25 April 2010). 63. Louis Kuukpen, Project Officer for Governance, United Nations Development Programme, Ghana, interview by author, Accra, Ghana (15 June 2009). 64. UN Standard Minimum Rules for the Administration of Juvenile Justice (1985). 65. The Children Act of Uganda (2002). 66. Constitution of Uganda (1995). 67. Artemy Izmestiev, Buduburam Refugee Camp volunteer, Pan African Centre for Peace-Ghana, interview by author, Accra, Ghana (15 June 2009). 68. Kadio Saa Ali, Executive Director, Pan African Center for Peace and Conflict Resolution-Liberia, interview by author via email (15 July 2009). 69. ‘What’s the ICC up to?’ New African (May 2009). 70. Alpha Sesay, ‘As Cross-Examination of Charles Taylor Starts, Prosecution Tells Taylor He Has A Reason To Lie’, AllAfrica.com (10 November 2009), available at http://allafrica.com/stories/ 200911110093.html (accessed 28 April 2010). 71. Official Website for the Coalition for the International Criminal Court, available at http://www.iccnow.org/?mod= drctimelinelubanga (accessed 25 April 2010). 72. ‘The Case Against Bashir’, New African (May 2009).