An examination of the relevant norms on child soldiers reveals significant gaps in the current international legal system, particularly regarding culpability and prosecution. Aside from statutes like those of the International Criminal Court (ICC) and the Special Court for Sierra Leone (SCSL), no other conventions or international courts have directly considered the matter, leaving room for debate about whether and how child soldiers should be held accountable.

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One central issue arising from these lacunas is the failure to agree on a minimum age for voluntary recruitment, since this aspect greatly influences the prosecutorial approach for young individuals involved in armed conflict. As outlined earlier, the United Nations Convention on the Rights of the Child (UNCRC) identifies anyone under eighteen as a "child”, yet Article 38(3) permits recruitment starting at fifteen years old for participation in armed hostilities. This provision allows children over fifteen to join hostilities without being classified as child soldiers. Similarly, Article 77(2) of the First Additional Protocol to the Geneva Conventions sets fifteen as the minimum age for participating in hostilities, enabling children aged fifteen to eighteen to legally engage in armed conflict.  The Optional Protocol to the UNCRC, however, raises the minimum age for coerced recruitment to eighteen, though Article 3 still allows voluntary recruitment under eighteen by national forces. As a result, an "impunity gap" emerges, where children in this age range may legally participate in hostilities under UNCRC but cannot be prosecuted for war crimes (Van Brakel, 2013). Consequently, this denote that no universally agreed minimum age exists for voluntary recruitment into armed forces.

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Exempting child soldiers from criminal responsibility carries a significant risk, as it may encourage commanders to employ them in dangerous situations, knowing they will not face legal consequences. Although current international law does allow for the prosecution of children for war crimes, it is argued that accountability should be approached through specific mechanisms only dedicated to child soldiers. Article 40 of the UNCRC emphasises that any proceedings involving children should promote their dignity, rehabilitation and reintegration. Even though the general notion is to protect children from being prosecuted in international courts, difficulties arise in mixed international-domestic tribunals, where it may be required to hold children responsible to support the court's purpose (McQueen, 2019). The UN’s work in establishing the Special Court for Sierra Leone, points out that some countries, with lower minimum age for criminal responsibility, may choose to prosecute child soldiers. To ensure consistency, it is indispensable to determine a clear legal distinction between minors and adults, encompassing defenses and mitigating factors such as coercion, intoxication and obedience to superior orders. Since international instruments such as Additional Protocol I to the Geneva Conventions and the UNCRC—before the adoption of the Optional Protocol—accept 15 as the minimum lawful recruitment age, individuals under this threshold can be considered unfit for recruitment. Therefore, they should also not be held criminally responsible for their actions in armed conflict.

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In contrast, other researchers contend that young combatants who engage in serious international offenses should not be exempt from legal accountability, as victims of these crimes have a right to justice (Nobert, 2011). They challenge the common assumption that all child soldiers are forcibly recruited, affirming that they frequently join voluntarily due to a lack of alternatives, seeking protection for themselves and their families. Furthermore, David Rosen claims that establishing a single, universally applicable definition of childhood in international and human rights law is impractical, as childhood experiences vary significantly across cultures. These differences should not be overlooked, as they are crucial for understanding and advocating for accountability. He points out that the phrase "straight 18" is an example of how political agendas can be disguised as established cultural practices. Although child soldiers come from many backgrounds, a single international standard for defining childhood has replaced the existing and competing definitions (Rosen, 2015). 

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Similarly, Mark Drumbl asserts that the primary purpose of laws on child recruitment and use is to ensure the protection of children. He believes that these regulations disseminate the idea of children as innocent victims, which weakens efforts to promote their autonomy. This portrayal, he suggests, oversimplifies their experiences and ultimately undermines their recovery and reintegration. The widespread acceptance of eighteen as the threshold for criminal responsibility reflects a Western perspective on childhood and adulthood, often disregarding the diverse social and cultural contexts in which child soldiers exist. For example, in some cultures, children assume adult responsibilities earlier or join armed groups for reasons beyond coercion (Houle, 2017). Tim Kelsall cites the SCSL as a case in point, suggesting that, while it was portrayed as a hybrid tribunal, it failed to adequately ponder local cultural contexts. He claims that the court's approach primarily reflected Western legal norms, which often did not align with the cultural and societal values of Sierra Leone. The SCSL prioritised retribution over restorative justice, contrasting traditional Sierra Leonean practices. This lack of connection hindered the Court’s ability to resonate with local people and fully address the concerns of affected communities.

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Moreover, the assertion that child soldiers entirely lack agency is not entirely accurate. While some are coerced or manipulated through the use of drugs, many exhibit a degree of agency, making choices they perceive as necessary for their survival. Matthew Happold discusses that while crimes like genocide do require specific intent, other international crimes have less stringent intent requirements. Thus, distinguishing between international and domestic crimes is unjustified and does not support different standards for assessing a child’s capacity in international versus domestic law contexts. The diverse circumstances involving child soldiers—some of whom are not forced into violence—challenge the assumption that they are passive victims without accountability (Houle, 2017). Therefore, the question of whether child soldiers possess the necessary mens rea should not be dismissed, as age and mental development are indeed critical factors in the investigation. Also, Jo Boyden warns against viewing all children in middle childhood or adolescence as immature and dependent, as this overlooks the resilience and social competencies of children across different ages. Cultural differences can also have a significant impact on maturity and cognitive development, complicating the assessment of culpability among child soldiers.

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The review of the existing legal framework on children’s prosecution highlights has shown its role in shaping global and regional child protection standards. Although the international community broadly supports the notion that children can be held accountable for criminal actions, these legal instruments have substantial limitations. As explored throughout the discussion, their effectiveness is flawed by inconsistencies, the "impunity gap," and a lack of affiliation with local customs, which complicate proper implementation by governments. The adoption of the UNCRC and the African Charter on the Rights and Welfare of the Child (ACRWC) reflects differing approaches to juvenile justice. While the UNCRC does not explicitly endorse the prosecution of children, it defers to national legal systems, incorporating mitigating factors to guide such decision.  For instance, Article 31(1)(b) of the Rome Statute allows for mitigating circumstances by excluding criminal liability when intoxication prevents an individual from understanding the consequences of its actions.  This approach indicates that the international community acknowledges the possibility that children may have the necessary mens rea to be held accountable for certain crimes. Although, the questions of when and how remain unresolved, as the evolving competency of children has not been thoroughly examined in the context of child soldiering or international criminal law (Lloyd, 2023). At the same time, customary decisions on key safeguards—such as the prohibition of the death penalty and life imprisonment for minors—ensure that justice respects child's age and developmental stage. Nevertheless, it remains crucial to define the extent to which child soldiers should be held accountable for their actions.

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Current considerations on prosecuting recruiters and determining the criminal responsibility of former child soldiers play a central role in influencing and strengthening legal frameworks enforcement. The dissimilar opinions faced in the chapter highlight inconsistencies in international law, particularly related to age restrictions and accountability, posing challenges for institutions in their legal interpretation and to define childhood as a protected space, free from violence.  The evolution of legal mechanisms addressing child soldiering reflects a broader effort. While its prohibition under the age of fifteen has achieved customary international law status, discussions continue concerning the "straight 18” position, which advocates for a total ban on recruiting children under eighteen. Significant progress has been made in establishing a prohibition regime; however, refinement and reinterpretation of these norms are essential for further developing and consolidating the legal framework. This should include the employment of a monitoring and reporting mechanism to guarantee full enforcement of these laws. Settling contested aspects of the law is essential to enhancing its effectiveness in protecting children from exploitation. The contemporary controversies explored in this article contribute to the enhancement process by offering recommendations to refine the legal framework and confront its limitations.

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References

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