An essay by Manfred Nowak
About the author:
Manfred Nowak is a lawyer and Professor of International Human Rights. From 2004 to 2010, he served as the United Nations Special Rapporteur on Torture. In this essay he writes about his experiences, the path taken by child soldiers and the question of guilt.
In October 2019, I presented a study to the United Nations General Assembly as an independent expert and lead author, focusing on the ethical and legal permissibility of depriving children of their freedom. While adults can be taken into police custody, investigated, put on trial or even imprisoned for life for their crimes, the Convention on the Rights of the Child is more restrictive. Article 37(b) designates the detention of children as a measure of last resort. It should only be applied when a child (up to the age of 18) is deemed to be so dangerous that milder measures are insufficient to protect other people or the child themselves from harm.
The reason for this is that children and adolescents are in a stage of development and consciousness where they should not or can only be held to limited account for their actions. Moreover, depriving children of liberty constitutes a form of structural violence that usually leads not to the ‘improvement’ of the child's behaviour but to its deterioration, thus triggering a spiral of violence.
The study, titled ‘United Nations Global Study on Children Deprived of Liberty’, found, based on empirical studies and the evaluation of a large number of statistical data, that, conservatively estimated, more than 7 million children worldwide are behind bars.
The vast majority of them are children placed in so-called ‘institutions’, ranging from orphanages to facilities for ‘difficult-to-manage’ children, due to challenging family circumstances, disabilities or their non-conforming and antisocial behaviour. The second-largest group includes children who have already been deemed criminally responsible (in most states from the age of 14) and are in police custody, under investigation or serving a sentence. Many children or minors who have fled or emigrated from their countries of origin, either with their families or alone, are currently being held in closed refugee camps or detention centres.
The Global Study calls for a radical rethinking of the system for all these children, namely towards deinstitutionalisation, diversion and a ban on migrant detention. In many states, these recommendations have led to significantly fewer children behind bars.
Two chapters of the study deal with children in armed conflicts and those detained for reasons of national security, mainly due to their affiliation with terrorist or extremist organisations.
Children and adolescents are often lured under the influence of extremist or terrorist organisations such as the so-called Islamic State in Syria and Iraq through social media or hate preachers and then forced to commit particularly brutal crimes. In many African countries, like Sierra Leone, Uganda, Somalia and Nigeria, children are abducted by armed groups and forced to become child soldiers, engaging in extremely violent acts on the front lines, including torture, rape and mutilation.
In my previous role as the UN Special Rapporteur on Torture, I interviewed young people in prisons who had been abducted from school and abused as child soldiers by armed groups like the Maoists in Nepal and the Tamil Tigers in Sri Lanka. After attempting to escape, they had been tortured and cruelly punished by means of mutilation and eventually rearrested and subjected to torture and punishment by government forces due to their affiliation with these armed groups – a horrific cycle from which escape seemed nearly impossible.
Are these children victims or perpetrators?
This question is explored in the film ‘Theatre of Violence’, which deals with the well-known case of child soldier Dominic Ongwen. He was abducted at the age of nine by the particularly brutal Lord's Resistance Army (LRA) in Northern Uganda, forced to commit cruel crimes as a child and later rising to become one of the leading commanders in the LRA. In 2021, he was sentenced to 25 years in prison by the International Criminal Court (ICC) in The Hague for particularly brutal war crimes and crimes against humanity.
Ongwen admitted to committing these crimes. However, in his appeal, he argued that his terrible experiences as a child soldier and the brutal LRA regime had left him with no choice but to commit these serious crimes. He claimed that his compulsion and resulting mental illness should be considered grounds for exonerating his crimes, even crimes he had committed as an adult. The appeals chamber rejected this argument and upheld the 25-year sentence for the former child soldier, who was then 40 years old.
In the Global Study, we demand that child soldiers and children involved in terrorist or extremist organisations be treated primarily as victims and not as perpetrators. This means that they should generally not be arrested, prosecuted or punished, but rather reintegrated into society through rehabilitation and deradicalisation measures, ideally reuniting them with their families. The ICC’s Rome Statute also stipulates that children under the age of 18 should not be held accountable for their actions before the ICC.
But what about former child soldiers who commit serious crimes as adults?
Criminal law is based on the Roman legal principle Nulla poena sine culpa – no punishment without guilt. This principle means that individuals can only be held accountable for their criminal acts if they have acted with culpability – intentionally or negligently. Children are absolutely incapable of culpability until they reach the age of criminal responsibility, usually at 14 years, because they lack the maturity to understand the wrongfulness of their actions. Adolescents up to the age of 18 are only partially culpable. However, adults who suffer from a severe mental disorder or profound impairment of consciousness, or who commit a crime while in a state of full intoxication, can be exempted from punishment due to lack of culpability.
Even though child soldiers are usually deeply traumatised for life due to their terrible childhood experiences, they eventually reach an age where, like other adults, they become criminally responsible for crimes committed as adults and can therefore be held accountable under criminal law. Exceptions apply only if they can truly demonstrate that their terrible experiences as child soldiers have led to a severe mental disorder that excludes them from being held responsible. Such a decision can only be made by a criminal court like the ICC on a case-by-case basis, taking into account all circumstances and considering psychiatric assessments. Even when there are no grounds for exoneration, the traumatic experiences they had as child soldiers should be taken into account as mitigating factors in sentencing, as highlighted by a judge at the International Court of Justice in a dissenting opinion.
The ethical dilemma remains – for the victims of these crimes, for the perpetrators who are also victims, for the judges who must decide on such difficult issues and for society. It would be much better if the international legal prohibition against recruiting child soldiers was finally enforced in practice. Unfortunately, the reality is different: often, it is (former) child soldiers like Dominic Ongwen who recruit new child soldiers.