Should Child Soldiers be given

amnesty?
By Chiara Machin-dArbela, Grade 8
Child soldiers should not be given amnesty because amnesty is to pardon a
criminal offence, and these children by virtue of their age and vulnerability,
do not have the requisite intent or knowledge to commit crimes, as they do
not have the mental maturity and judgment to express consent or to fully
understand the implications of their actions.1 Some, however, have
committed atrocities, for which they should be held accountable for through
more effective and appropriate methods, such as reconciliation,
rehabilitation & reintegration programs that involve concepts such as
restorative justice.2
According to Article 1 of the United Nations Convention of the Rights of the
Child, a child is a person under the age of 18.3 A child soldier is deemed by
the International Criminal Courts Rome Statute as a person under the age of
15 who is conscripted, enlisted or used in active hostilities, both in
international and non-international armed conflicts.4 The age of criminal
responsibility ranges from 7 to 16, depending on the country, but is usually
deemed to be 14, close to the upper limit of a child soldier. This is because
children of that younger age range are considered not to have the necessary
1 (Conflict, 2011)
2 Ibid.
3 (UN General Assembly, 1998)
4 Article 8 (2)(b)(xxvi) (International Criminal Court, 2000)

intent and knowledge to commit a criminal offense.5 But even if a child

soldier falls within the age range of culpability, it is widely accepted that
child soldiers specifically do not have the capability to form the necessary
intent and knowledge to commit crimes. Child soldiers are attractive targets
for recruitment precisely because they often lack education and maturity to
question recruiters and many, as orphans, have no one to counsel them on
the possible consequences of their actions. They are easily exploited,
manipulated and indoctrinated. For this reason, they are often considered to
have diminished capacity to make informed decisions and may not have full
culpability for their actions. Moreover, even if a child soldier may, upon
6

following orders, knowingly intend to kill, they can be relieved of criminal

responsibility if they did not know that the order was unlawful, which is often
the case for highly indoctrinated children.7 Another argument is that these
children are victims first, with dual status as victims and perpetrators. For
these reasons, in most cases amnesty is not available to these children,
because there is no crime to pardon them for, therefore amnesty cannot be
granted.
Rather than amnesty, or even imprisonment, these children need help. In
doing so, they need to be held accountable for their actions in order for them
5 Elements of Crimes, paragraph 2 (International Criminal Court, 2000).

According to Article 30 of the Rome Statute of the ICC, a person is criminally

responsible if they have intent, which means they must have both the intent
to engage in the conduct and intend the consequences of that conduct.
According to Article 33, knowledge means awareness that a circumstance
exists or a consequence will occur in the ordinary course of events. (UN
General Assembly, 1998)
6 (Owens, 2011). Diminished capacity generally means that perpetrators

mental state was diminished by intoxication, trauma or mental disease so

that he or she did not possess the specific mental state or intent essential to
the particular offense.
http://legal- dictionary.thefreedictionary.com/Diminished+Capacity
7 Article 33 (UN General Assembly, 1998)

and society to heal. Prosecution of a child should be regarded as a measure

of last resort and the purpose of any sentence should be to rehabilitate and
reintegrate the child into society.8 They need support to come to terms with
their actions and be reintegrated into society through programs like
reconciliation, rehabilitation (especially psychological) and reintegration.
Restorative justice should be an active part of this process. It requires the
perpetrator to show remorse for his actions, to address his victims and
explain what he did to them and how it impacted their lives. He must listen
to his victims before apologizing sincerely. The Justice and Reconciliation
Project, a Ugandan NGO, sums up the urgent need for accountability rather
than amnesty by saying that child soldiers are complex political victims
who, if excluded from justice pursuits, could give birth to the next generation
of perpetrators in Uganda; generations marginalized by the judicial sector
and have nothing to gain from citizenship and nothing to lose from war.9
Another reason why child soldiers need to be held accountable rather than
being granted amnesty is because amnesty would potentially encourage war
lords to recruit children to conduct the most heinous crimes with legal
impunity. Another solution, other than amnesty, and in addition to holding
the child accountable, is to relentlessly track down and prosecute fully these
snakeheads the commanders -- with higher penalties for the higher ranks in
the chain of command.
Child soldiers should not be given amnesty because (1) it is largely not
available to them, and (2) if it was, they would not benefit from
reconciliation, they could easily become the next generation of perpetrators,
and amnesty could encourage commanders to recruit more children for their
8 Page 28 (Office of the Special Representative of the Secretary-General

(SRSG) for Children & Armed, 2011). See also how military prosecution of
child soldiers can be abused by governments (Prasow, 2010).
9 (IRIN News, 2011)

atrocious orders. Rather than amnesty, these children should be held

accountable for atrocities they have committed, but not through criminal
prosecution. Instead, it should be through alternative methods such as
reconciliation and restorative justice. Above all, more than being pardoned,
these children need our help.

Bibliography
Assembly, U. N. (1989, November 20). United Nations Convention on the
Rights of the Child. Treaty Series, 1577. United Nations.
International Criminal Court. (2000). Elements of Crimes. U.N. Doc.
PCNICC/200/1/Add.2, PC. United Nations.
Owens, M. (2011, November). Child Soldiers: Lost Youth. Children's Rights
Institute. UN General Assembly. (1998). Rome Statute of the International
Criminal Court (last
amended 2010). UN General Assembly.
Office of the Special Representative of the Secretary-General (SRSG) for
Children & Armed.
(2011, September). Working Paper Number 3: Children and Justice During
and n the
Aftermath of Armed Conflict. United Nations.
IRIN News. (2011, October 6). Should child soldiers be prosecuted for their
crimes. Retrieved
from https://www.irinnews.org/analysis/2011/10/06/should-child-soldiers-beprosecuted-their-crimes
Prasow, A. (2010, October 27). The Child Soldier on trial at guantanamo. The
Daily Beast.