Children commanders in post-conflict scenario

In conflicts, horrendous crimes are committed. Increasingly in recent conflicts, children commanders and soldiers are being used and ubiquitous in combat encounters. Should children be punished for their crimes committed during conflicts?

I would say that crimes, in whatever forms, should be addressed by a justice system that is credible, fair, and transparent. Regardless of age, gender, class, ethnicity and nationality of the offender, s/he should be brought to a "sense" of justice which entails punishment to the offender. Therefore, children are no exception in this case.

In the context of what happened in Sierra Leone, children commanders committed atrocities during its civil war in the 1990s. Should they be punished? Why? How?

Children commanders should be punished because what they did are heinous crimes. I have no reservation in saying this. Crimes are punishable by national and/or international law. How much more are the crimes of these magnitude and gravity! There should be no exception in addressing these horrendous crimes.

However, the case of children commanders in Sierra Leone merits a number of procedural considerations in addressing their crimes. First, they should not be tried along with the adult commanders and soldiers. Second, a specialized court should be created to hear the cases of these young offenders. This specialized court should be impartial and gain the consent and trust of the offenders. Third, the offenders should be represented by a counsel who has an understanding of child psychology and psychiatry. My concern why I propose this consideration is that by revisiting the dreadful memories of the civil war, it may trigger repulsive behaviors or thoughts from the offenders. These behaviors and thoughts may be incriminating and delay the proceedings.

If I were to act as a counsel in defense of the children commanders, I would argue the following; mandate and jurisdiction of the court, command responsibility, diminished culpability, proportionality of the crimes to the children's capability, and appeal to the tendency to be sympathetic to the children.

The first argument, mandate and jurisdiction of the court to handles such cases, assumes that a specialized court was created for the purpose of hearing these cases. I believe that these cases should not be lodged to an
ordinary court in Sierra Leone since any judge could have been a party to or victim of the civil war. The argument is designed to undermine the court and delay the proceedings. Any delay of the resolution of the cases is a gain for the defense. Still, I think it is important to lay out the source of the mandate and jurisdiction of the court. Without a mandate and jurisdiction, the court has no right to try and confer a resolution to the cases.

The second argument, command responsibility, asserts that these children did not act on their own. They were ordered to do those atrocious acts and they performed their duties as children commanders. It should be the leaders who were responsible for these crimes. If these children did not act on the orders, they would be killed. Kill or be killed, I think the children only chose to keep their lives.

The third argument, diminished culpability, invokes the characteristics of children as actors. It is widely known that children make erratic and irrational actions, can be easily manipulated and are driven by impulsive force. Testimonies of being drugged, kidnapped, trained, and brainwashed can bolster this argument.

The fourth argument, proportionality of the crimes to the children's capability, contends that these children could not do such crimes if they were on their right minds. They were not capable of doing those crimes without a threat and manipulation from the adults.

The fifth argument, appeal to the tendency to be sympathetic to children, draws the judge and court to see the damage of the war to these children. They are also victims of the war. They did not start it. They did not have any intention or motive except not to be killed if they defied orders. Plus, they have barely begun living and yet you will deprive them of their future.

In the end, these arguments, in my view, would not stand in the court to successfully defend what the children commanders did. What these arguments can do is to minimize the punishment that they will get. Because they committed crimes, they should be punished.

Again, these are children commanders who ordered and led other children to commit atrocious crimes. Fot the child soldiers who followed orders, this topic will be discussed in other blog entry.