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How the Law Should View Voluntary Child Soldiers: Does Terrorism Pose a Different Dilemma?

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How the Law Should View Voluntary Child Soldiers: Does Terrorism Pose a Different Dilemma? SMU Law Review Volume 68 Issue 2 Article 9 2015 How the Law Should View Voluntary Child Soldiers: Does Terrorism Pose a Different Dilemma? Cristina Martinez Squiers SMU Dedman School of Law Follow this and additional works at: https://scholar.smu.edu/smulr Part of the Law Commons Recommended Citation Cristina Martinez Squiers, Comment, How the Law Should View Voluntary Child Soldiers: Does Terrorism Pose a Different Dilemma?, 68 SMU L. REV. 567 (2015) https://scholar.smu.edu/smulr/vol68/iss2/9 This Comment is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. HOW THE LAW SHOULD VIEW VOLUNTARY CHILD SOLDIERS: DOES TERRORISM POSE A DIFFERENT DILEMMA? Cristina Martinez Squiers* I. INTRODUCTION “[W]ar is evil and should be ended; children are innocent and should be protected.”1 HILDREN’S participation in armed conflict has occurred for cen- turies. Children, those under the age of eighteen,2 fought in wars dating back to the Middle Ages; even “[t]he Civil War in the C 3 United States was a war of boy soldiers.” What has occurred recently is the international concern over the use of “child soldiers”4 in modern armed conflicts, mostly due to the criminalization of the way in which adults have recruited and used these children to violate the laws of war and commit reprehensible atrocities.5 The international human rights concern has aggregated the use of children in every armed conflict under a strong discourse of victimization despite the important distinctions be- tween the different types of conflicts in which children fight and the dif- * J.D. Candidate, SMU Dedman School of Law, May 2016; B.A. in Anthroplogy, Princeton University, June 2012. I would like to thank Professor Turner for her helpful comments in writing this comment. I would also like to thank my husband, Jack, for his comments, edits, and constant support. 1. DAVID M. ROSEN, ARMIES OF THE YOUNG: CHILD SOLDIERS IN WAR AND TER- RORISM 1 (2005). 2. The use of the word “child” and “children” in this Comment will refer to those eighteen and younger. 3. ROSEN, supra note 1, at 4–5. 4. For the purposes of this Comment, “child soldier” refers to anyone under the age of eighteen fighting with an armed group. “Armed group,” in this Comment, is used ac- cording to the manner in which it is used in international law: “Armed groups are made up of individuals over whom the state on the territory of which they operate wishes to main- tain special control thanks to its internal laws. As such, armed groups do not benefit from the same status as government forces. In internal law, or in the language of the public authorities, the members of armed groups simply refuse to obey the law; they are bandits under ordinary law, terrorists, stateless persons who can be punished for the mere fact of having taken up arms. In international law, no instrument places insurgents on an equal footing with government troops. Armed groups therefore have relatively low status in in- ternational law, when it applies.” Zakaria Dabone, ´ International Law: Armed Groups in a State-Centric System, 93 INT’L REV. OF THE RED CROSS 395, 397 (2011). 5. MARK A. DRUMBL, REIMAGINING CHILD SOLDIERS IN INTERNATIONAL LAW AND POLICY 27 (2012). 567 568 SMU LAW REVIEW [Vol. 68 ferent motivations prompting the children to fight.6 While child soldiers, in varying types of conflicts and out of differing motives, have committed grave atrocities, the prevalent discourse of victimization completely ex- cuses criminal responsibility for those younger than eighteen.7 Criminal law is designed to hold perpetrators accountable, in part to protect the victims they have harmed. But because child soldiers are both perpetra- tors and victims, due to their vulnerability and tender age, children’s rights advocates and international law strongly advocate for complete prosecutorial immunity.8 While a categorical approach that excuses all criminal responsibility for children who engage in conflicts, like every categorical rule, is easily ap- plied, a more nuanced look at the issue of why child soldiers fight would better achieve justice. Despite what the international discourse about child soldiers has become, children both are coerced into and volunteer to join armed groups.9 However, the international community has erased this distinction for purposes of criminal accountability: “[a]lthough prose- cuting child soldiers . is certainly not unlawful, such prosecutions . increasingly are seen as inappropriate and, even, illegitimate.”10 But in order to pursue justice in the midst of, and in the wake of, armed con- flicts, the “legal fiction”11 that assumes all child soldiers are alike must be addressed. The question of criminal responsibility for child soldiers has particular salience regarding the War on Terror and the emerging threat of extrem- ist groups, such as ISIS, who are actively recruiting juveniles.12 While not all child terrorists are fighting voluntarily, the unique ideology that at- tracts youth to volunteer to join terrorist organizations and the transna- tional nature of terrorism implicate different notions of justice and criminal responsibility, while also raising important questions about which courts, domestic or international, are best suited to prosecute crimes related to terrorism.13 6. See, e.g., U.N. Office of the Special Representative of the Secretary-General for Children and Armed Conflict, Child Recruitment, https://childrenandarmedconflict.un.org/ effects-of-conflict/six-grave-violations/child-soldiers/ (“Regardless of how children are re- cruited and of their roles, child soldiers are victims, whose participation in conflict bears serious implications for their physical and emotional well-being.”) (emphasis added). 7. See, e.g., DRUMBL, supra note 5, at 37, 62; MATTHEW HAPPOLD, The Age of Crimi- nal Responsibility in International Criminal Law, in INTERNATIONAL CRIMINAL ACCOUNT- ABILITY AND CHILDREN’S RIGHTS (Karin Arts & Vesselin Popovski eds., 2006) (manuscript at 2), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=934567. 8. See supra notes 5 and 6. 9. See ROSEN, supra note 1, at 17; DRUMBL, supra note 5, at 62. 10. DRUMBL, supra note 5, at 18. 11. See id. at 19. 12. See, e.g., Gul Tuysuz & Ivan Watson, Missing UK girls believed to be in Syria, police say, CNN (Feb. 24, 2015, 8:30 PM), http://www.cnn.com/2015/02/24/europe/turkey- uk-missing-girls/. The use of the word “terrorism” and “terror” in this Comment refers specifically to the efforts of radical Muslim groups such as ISIS, Boko Haram, and Al- Qaeda. 13. See Jethro Mullen, What is ISIS’ appeal for young people?, CNN (Feb. 25, 2015, 2:33 PM), http://www.cnn.com/2015/02/25/middleeast/isis-kids-propaganda/; Kimiko De Freytas-Tamura, Teenage Girl Leaves for ISIS, and Others Follow, N.Y. TIMES (Feb. 24, 2015] How Law Should View Voluntary Child Soldiers 569 Even though the International Criminal Court (“ICC”), partly due to the international disapproval of prosecuting child soldiers, does not have jurisdiction over those under the age of eighteen, should national criminal justice systems and military commissions take a different approach? While the ICC focuses on international and internal armed conflicts, ter- rorism is a different crime, one that is transnational, but also localized in many different countries due to the geographically diverse locations of attacks and victims.14 There is a dearth in scholarship addressing this dif- ference and the difference between an armed group’s use of voluntary child soldiers for committing acts of terror from the use of the more pro- totypical child soldiers15 in internal armed conflicts like those in Sierra Leone and Rwanda.16 Should voluntary child soldiers participating in ter- rorist activity be treated differently in terms of criminal responsibility? This Comment argues that those who commit acts of terror voluntarily between the ages of fifteen and eighteen should be prosecuted, but their young age should merit special protections in their prosecutions. Further- more, these prosecutions are best suited to domestic criminal justice sys- tems, including military commissions, and not to the ICC or other international tribunals. However, voluntary child soldiers of terrorism should still be seen as both perpetrators and victims under the law; the opaque line between the two categories should not be superficially clari- fied due to the “voluntariness” of the crimes committed and the wide- spread fear of growing terrorism. Until a proper, age-appropriate method of prosecution for these child terrorists is accomplished, neither the chil- dren nor the victims who suffer at their hands will see true justice.17 Part II of this Comment will provide a historical background on child soldiers and explain the evolution of international and United States laws relating to child soldiers. Part III will discuss the current legal issues re- garding child soldiers, focusing on the unique dilemma posed by terror- ism. Part IV will analyze what “voluntary” means, and at what age child 2015), http://www.nytimes.com/2015/02/25/world/from-studious-teenager-to-isis-recruiter .html?_r=0. 14. Farouk Chothia, Who are Nigeria’s Boko Haram Islamists?, BBC (May 4, 2015), http://www.bbc.com/news/world-africa-13809501 (Boko Haram); Holly Yan, Why is ISIS so successful at luring Westerners?, CNN (Oct. 7, 2014, 8:01 AM), http://www.cnn.com/2014/ 10/07/world/isis-western-draw/ (Westerners joining ISIS); Kim Willsher, Seven weeks after attack, Charlie Hebdo resumes regular publication, LA TIMES (Feb. 25, 2015, 11:08 AM), http://www.latimes.com/world/europe/la-fg-charlie-hebdo-resumes-publication-20150225- story.html (Charlie Hebdo attack).
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