Is Targeting Naked Child Soldiers a War Crime?
In this International Criminal Law lunch, guest researcher Joanna Nicholson will present her forthcoming paper.
International law prohibits the recruitment and use of children under the age of fifteen to participate actively in hostilities. Such child soldiers constitute military targets under international humanitarian law (IHL), and the prevailing view is that they may be targeted in the same way as their adult counterparts. Although there may be moral or pragmatic reasons for avoiding targeting child soldiers if possible, there is no obligation under international law to treat them differently from an adult fighter.
Nicholson questions this presumption. She argues that there is an emerging trend towards treating child soldiers differently from their adult counterparts. This trend is evidenced by state practice towards child soldiers and emerging jurisprudence from the International Criminal Court. She will focus on the Decision on the Confirmation of Charges in theNtaganda case, where the Pre-Trial Chamber held that mere membership of children under the age of fifteen years in an armed group cannot be considered as determinative proof of their direct participation in hostilities. These children remain under the protection of IHL. She argues that the Ntaganda Decision has consequences beyond the field of international criminal law. The Decision suggests that child soldiers do not lose their civilian status when they join an armed group, and accordingly, are protected against direct attack unless they are in fact directly participating in hostilities.