The day the trial of Thomas Lubanga resumed at the International Criminal Court (ICC) on 7 January 2010 was marked by the testimony of Radhika Coomaraswamy, the UN secretary general’s special representative for children and armed conflict. During her testimony, Coomaraswamy reminded ICC judges that with regard to defining “child soldiers” it is important to not make a distinction between children who participated actively in hostilities and children who played an indirect role. As Coomaraswamy underscored: “Girls play multiple roles in conflict, including combat, portering, scouting but also [there is] sexual slavery and [they are] bush wives….we need to draw attention to the roles girls play and the need to protect them in every context.”
Child soldiering, one of the central elements in the Court’s first-ever trial is a very complex concept that reveals a gap between the practice of child soldering and the rules and regulations of the ICC and international justice norms more broadly.
The concept of “child soldiers” is not new; it dates back more than a century.
According to the principles of the Convention on the Rights of the Child, the definition of “child soldier” -a definition widely recognized by experts in the field-stipulates that “any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The definition includes girls recruited for sexual purposes and for forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms.”
In addition, the concept of children associated with armed forces and groups aims to include not only child soldiers but all children directly or indirectly implicated in the activities of armed forces and armed groups. Yet this concept is not a part of the Rome Statute. In fact, although the use of child soldiers is recognized as a war crime under Article 8 of the Rome Statute, its definition does not indicate other categories of child soldiers that do not “actively participate in hostilities.”
It is true that children serve armed forces and armed groups in different ways: as foot soldiers, body guards, informants, witch-healers, cooks and so on. Some are trained to handle more than one task at a time (e.g. combatant and cook) while for a more limited number of children, their role is restricted to one of function (e.g. sexual slave). The recruitment of child soldiers thus takes on many forms, one of which is the sexual exploitation of girls.
This is why, in practice, the distinction between active participation and non-active participation in hostilities is exceptional and very rare. It is hard to find a child in an armed force or armed group that could not become a soldier.
Given the complexity of defining what we mean by “child soldiers,” any discussion ought to take place within the realm of practical not theoretical considerations.
Bukeni T. Waruzi is an expert on child soldiers with WITNESS where he is Program Coordinator for Africa and the Middle East.
Translation is informal and provided by CICC Secretariat.
