Targeting Child Soldiers: When, If Ever? »
In 2001, in Sierra Leone, a number of soldiers from the Royal Irish Regiment were taken prisoner by a group comprised mostly by armed children called the West Side Boys, as the Irish Regiment had been reluctant to open fire. They were held hostage for two weeks, when an assault was launched by an SAS unit supported by helicopters, resulting in estimates of 25 to 150 dead among the West Side Boys. During the Sri Lankan civil war, government aircraft bombed what was allegedly an LTTE training camp, killing a reported 61 children and youth many of whom were girls. The LTTE were known to use child soldiers and the Sri Lankan government took the position that if a child took up arms, then he or she could be targeted and killed.
The use of child soldiers remains widespread, including direct participation in hostilities. This raises two legal questions: firstly, whether a child soldier is a combatant like any other combatant, and secondly, if so whether the means or response used to target them follow the same rules as for an adult combatant.
Imagine a child soldier storing arms and provisions, at a nearby camp, with a rifle near to him, but not in hand. Alternatively, imagine a child soldier in civilian clothing charging towards government troops firing an automatic weapon (think of Uganda’s civil war). Can the government troops target the child soldiers as if he or she is an adult?
We know children can become ruthless fighters and commit harm, same as adults. The International Criminal Court and Ad-Hoc Tribunal for Sierra Leone decisions have confirmed the crime of recruiting and using child soldiers. The Geneva Conventions [Article 4 (A), 1949] provide definitions of what a combatant is under international law. One might surmise that gaps in law, might not make any apparent distinction to characterize a child soldier as anything other than as a combatant.
There is a generalized legal duty to respect and protect children in armed conflicts and to not use children in hostilities. Clearly, there is a moral basis that children remain children even if they participate in hostilities. Even in war, the right to injure an enemy is not unlimited. International law prohibits unnecessary injury and suffering. It is limited by what is necessary to achieve a legitimate military objective. For example, this principle has resulted in the prohibition of a certain weapons such as poison or anti-personnel mines.
International humanitarian and human rights law have norms that demand special protection for children against harm. War might be a necessary evil, but there are may be unnecessary evils in the pursuit of war. Direct targeting of children may be permissible to the extent that it is a necessary evil, when there is no viable alternative and there is necessity for the attack to prevent serious harm to others or self. Otherwise, it ought to violate treaty and customary prohibitions of unnecessary harm or injury.
A child with the LRA in Uganda charging toward government or international troops while firing a rifle can be targeted using force. It seems unlikely there is any other way of stopping the attack such as wounding or capturing the child soldier. On the other hand, spotting a child soldier, by drone, working or asleep at an arms depot with a rifle nearby, warrants that the targeting of this child be clearly demonstrated and that there is no alternative that would be less harmful. Otherwise, it would be unjustifiable and prohibited.
This is the sad reality of modern hostilities and it challenges, not only our morality, but also the imperative of creating legal norms that minimize harm to children – who themselves are terrible victims of conflict and war.
Bill Sundhu
Bill Sundhu is a Canadian lawyer and former judge with more than 35 years of experience in the courts of justice.
His current practice includes trial and appellate advocacy in criminal justice, human rights and civil liberties. Bill has broad legal experience that includes criminal justice, family law, child and youth law, indigenous rights, police misconduct and wrongful deaths, non-discrimination, access to justice, law reform and legislation, professional legal responsibility, and judicial independence and administration.
He is a regular speaker, lecturer and media commentator on human rights, justice, diversity, equality and international legal issues. He has extensive knowledge of the Canadian justice system and international human rights law, with particular interest in international criminal law.
Bill has three university degrees, including a Masters degree in International Human Rights Law from Oxford University. He practices in Canadian and International Law.
His work is recognized by appointment to the List of Counsel for the International Criminal Court in the Hague (war crimes, genocide, crimes against humanity) and selection to a panel of international experts to train judges in Tunisia, in 2013-14 in human rights and administration of justice. He has served an extensive term as an Executive Member of the Canadian Bar Association National Criminal Law Subsection.
Bill is a founding member of the BC Association of Multicultural Societies and is an advocate for equality and diversity. He and his family have made Kamloops, British Columbia, their home for the past 24 years.
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