Child Soldiers and the Law: A Discussion

An audience that attended the inaugural symposium of the National Security and Armed Conflict Law Review last week learned that the profile of a child soldier is far more complicated than what is often imagined or portrayed. For instance, 40 percent of child soldiers are girls. Two-thirds of child soldiers enlist voluntarily. A very small percentage are implicated in acts of atrocity, and most are not combatants but cooks, cleaners, sex slaves and forced conjugal partners.

The observations came from keynote speaker Mark Drumbl, a transnational law expert and professor at Washington and Lee University School of Law, as he addressed the many conflicting aspects of what has become a global phenomenon. Professor Drumbl and three other speakers held an audience of more than 200 people at rapt attention over the three-hour event, which was titled "Child Soldiers and International Law" and took place in the University of Miami's Storer Auditorium.

"A majority don't have a weapon and nearly half are not boys," Professor Drumbl said. "Child soldiering, in many ways, is more of a phenomenon of labor practice and social inequity."

In most cases, he went on, the law is too protective of soldiers under the age of 18 and not protective enough of those who are older. "A lot of hay is made out of a simple birthday," said Professor Drumbl, author of Reimagining Child Soldiers in International Law and Policy.

Professor Drumbl is the Class of 1975 Alumni Professor at Washington and Lee University School of Law, where he also serves as Director of the University's Transnational Law Institute. Professor Drumbl's research and teaching interests include public international law, global environmental governance, international criminal law, post conflict justice, transnational legal process, and contracts. His current scholarly project examines the challenges in reintegrating child soldiers who have been implicated in acts of atrocity.

Tchicaya Missamou, a Congolese former child soldier and U.S. Marine, a bestselling author and founder of the Hope for Congo Foundation, told the audience of his harrowing life growing up in Africa. One of 16 children, Missamou was born in Congo-Brazzaville and scratched out a life in relative peace until civil war swept the country in 1992. At 13, he turned to the brutal life of a child soldier, witnessing unspeakable atrocities. After years of violence and tragedy, Missamou focused on using his military connections to ferry wealthy white diplomats out of the country for a fee. Missamou became rich but at an enormous cost — his family was brutalized and in 1997 he was forced to flee overseas.

Today, Missamou is on a mission to educate the children of his homeland. "Freedom must be a right, not a privilege," he said. "And the only way we can help the children of Africa is with education. To put a person in jail only makes them angrier. We need to replace the weapon with a book. We need to provide materials and schools so they can learn."

Dr. Saby Ghoshray, Vice President for Development and Compliance at WorldCompliance Company, spoke of the case of Omar Ahmed Khadr, who was 15 years old when he was accused of killing a U.S. Army medic, Sgt. Christopher J. Speer, in a firefight in Afghanistan in 2002. Khadr pleaded guilty to murder and other charges at a military tribunal at Guantanamo Bay in 2010. Ghoshray argued that Khadr, a Canadian citizen, should not be held accountable for the murder because he had been "indoctrinated before the age of 14 and forced to pick up arms against an invading army."

According to Ghoshray, Khadr had "undergone coercive interrogation tactics, threatened with rape by grown men, spent eight years in detention without seeing a future, and was used as a human mop to clean up his own urine." Ultimately, Ghoshray said, Khadr "had to plead guilty after being coerced into admitting acts of violence for fear of continued torture and detention."

"There is a lack of protection mechanisms for children, with a diverging standard of international law – ranging from laws of military tribunals to laws of armed conflict to the legal definition of a functional combatant," he said.

Ghoshray is the author of more than 60 scholarly articles published in journals, books and conference proceedings, and continues his research on diverse subsets of international law, domestic jurisprudence, juvenile criminal law, military tribunals, and constitutional law.

Chris Jenks, the International Law Branch Chief of the U.S. Army Office of Judge Advocate General, provided examples of children being held to an adult standard, such as the fatal shootings last week by a 17-year-old boy in Ohio and the murder of a small child by a pair of 10-year-olds in England in 1993. The latter case, he said, "was not found to have been a violation of human rights."

Jenks said that just because many of the accused come from woefully difficult backgrounds, like Khadr, it should not preclude justice being served. "We know that, societally, the inner city is filled with children from broken homes," he said. "They are uneducated and life is not going to be good. It is unfortunate and a problem of the system, but it doesn't excuse criminal misconduct. Omar Khadr was 15 years and 10 months old so it is not some radical proposition — many combatants are just short of the age to be held accountable by international law."

As part of his job, Jenks provides legal advice to the Judge Advocate General, Army staff members and Judge Advocates around the world on the status of forces and other international agreements, foreign criminal jurisdiction, international courts and tribunals, and other international law subjects, including the law of war and national security law. He has extensive experience working as a Deputy Chief and Senior Litigation Attorney in the U.S. Army Litigation Division. Jenks is also the author of numerous scholarly articles relating to topics of international law, humanitarian law and the laws of armed conflict.

By the end of the symposium, attendees had a far better grasp of the many facets of child soldiering, and were left to ponder solutions such as restitution to victims, rehabilitation and redemption.

Professor Drumbl added a caveat. "I have never been subject to human rights abuses," he said. "I've never been discriminated against, hunted or maltreated. I have no idea what that feels like. And I would never substitute my voice for theirs."