The Child Soldier Dilemma

Abstract

The recruitment of child soldiers remains a prevalent, and highly topical, issue in2013,1 and the practice of recruiting children for use as soldiers is the newest addition to the corpus of war crimes in international criminal law. This research provides a critical analysis of how the international justice institutions—namely the Special Court for Sierra Leone (Special Court) and the International Criminal Court (ICC)—have dealt with the challenges of developing this new crime, while also giving effect to the intention of the criminal prohibition: to punish those who recruit children as soldiers, and thus increase the protection afforded to children in conflicts. A number of key challenges can be identified, that will guide this chronological examination of the war crime from human rights principle to prosecution at the Special Court and at the ICC. They are (i) identifying themens reaand actus reus of the crime; (ii) establishing the appropriate modes of liability and the ambit of the mistake of law defence and (iii) accounting for cultural considerations, including the question of prosecuting child soldiers.