Syria, Child Soldiers and the growing possibility of an ICC referral

RightsNI is delighted to welcome this guest post from Dr. Julie McBride. Dr McBride is a UN Global Expert on International Criminal Justice and completed her doctoral thesis on the war crime of child soldier recruitment at Queen’s University Belfast. She is currently Research and Advocacy Officer at the NGO War Child Holland.

Three reports on Syria released last week are bringing yet another element to the country’s new status as the byword for conflict and crisis: the use of child soldiers. The reports released by the United Nations Human Rights Council, Amnesty International and Save the Children UK illustrate the growing concern regarding the recruitment and use of child soldiers as porters, guards, informers or fighters, by both sides to the conflict.

The Independent International Commission of Inquiry on the Syrian Arab Republic gave an oral update to the UN Human Rights Council last week in Geneva, and stated that young boys are increasingly vulnerable to recruitment. The update gave evidence of anti-government forces in the town of Al Qusayr, a battleground between Homs and the border with Lebanon, recruiting children as young as thirteen by ‘appealing to their desire to defend their families’, and giving them weapons training and operational roles. However, there was evidence that rebel forces in Homs and Dar’a had turned away sixteen and seventeen year old volunteers for being too young, so the use of children is by no means uniform amongst the anti-government groups. The update also noted that the government militias now appear to operate with fewer safeguards against child recruitment, particularly as the army’s age verification protocols for recruitment are, along with many other aspects of the rule of law, rapidly disintegrating.

In its new report, Amnesty International said that although the ‘vast majority’ of abuses and potential crimes detailed in its report related to the actions of the government forces, the research had also discovered evidence of an ‘escalation of abuses by armed opposition forces’, many affiliated in some manner with the Free Syrian Army (FSA).  An example cited by Amnesty was the summary execution of captured Syrian army officers, with one such execution – that of Colonel Izz al-Din Badr – taking place on video and involving the active participation of a boy described as being twelve years of age. Such executions represent serious violations of international humanitarian law and constitute a war crime under the Rome Statute of the International Criminal Court. Using a child to complete the act of unlawful killing compounds the seriousness of the abuse.

Aside from the video documentation of the involvement of a child in killings, there is growing evidence that both the government and opposition forces are using children younger than fifteen years in a military support capacity. Save the Children’s new report, Children Under Fire, describes a “growing pattern” of armed groups on both sides of the conflict recruiting children to work as guards or informers. Some of these children have apparently volunteered. However, the international jurisprudence on these issues is clear: both the ICC and the Special Court for Sierra Leone have rejected any suggestion that voluntary recruitment of children under fifteen years of age is lawful, and have ruled that using such children to fulfil support roles may constitute a war crime.  The Confirmation of Charges in Prosecutor v. Thomas Lubanga Dyilo decisively ruled that children undertaking ‘indirect’ military roles such as spying, scouting, sabotage, acting as decoys or bodyguards, are viewed as participating actively in hostilities and falling within the ambit of the Rome Statute. The Trial Chamber’s judgment established the following test for determining whether a child has been used to participate actively:

The decisive factor […] is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target.

Should the Security Council refer the case, and the investigation gathers sufficient evidence that child recruits were exposed to real danger as potential targets, then this crime may make yet another appearance at the ICC. However, as I have argued elsewhere, proving this crime has proved somewhat of a headache for the Prosecution, and any future investigation team may be hesitant to become engaged in the troublesome issue of age verification testimony and dealing with problematic sourcing of child witnesses, and avoid the issue entirely. There certainly appears to be sufficient grounds for multiple charge sheets on other, potentially more serious crimes contained within the Rome Statute. The UN report outlines the crimes against humanity and war crimes allegedly committed by both the government and anti-government forces, including murder, torture, rape, enforced disappearance, hostage-taking, unlawful attacks and pillaging and destruction of property.

As Syria is not a state party to the Rome Statute, the only way in which the ICC can initiate an investigation is following a referral from the Security Council, as was the case with both Darfur (2005) and Libya (2011). Should this occur, the entirety of the conflict would be subject to investigation, and the Office of the Prosecutor would examine the alleged crimes perpetuated by both government and opposition forces. For example, in the cases on the conflict in the Ituri provinces of the Democratic Republic of the Congo, representatives of both groups ended up in the dock in the Hague: Thomas Lubanga of the Union of Congolese Patriots (UPC) and Germain Katanga and Mathieu Ngudjolo Chui of the Patriotic Resistance Force in Ituri (FRPI). Similarly in Kenya, the six initial indictments following the 2007-2008 post-election violence represented both sides of the political divide.

Next month the Independent International Commission of Inquiry will submit a list of those suspected of committing war crimes and crimes against humanity to the United Nations High Commissioner for Human Rights, and this may re-trigger the question of a Security Council referral. Such a referral would put pressure on the permanent members to support military action, which partially explains their reluctance. In addition, such referrals have mixed results. Eight years later, President Omar Al-Bashir flits from signatory state to signatory state with little threat of arrest, while, conversely, Gaddafi was removed from power less than a year after the ICC referral.

However, with a rising death toll, a rapidly deteriorating humanitarian situation (exacerbated by a significant short-fall in funds), the number of refugees fleeing the country now exceeding 10,000 per day, and the continuing media and NGO reports of widespread atrocities and crimes in the region, the question of a Security Council referral and military intervention may become a matter of when, not if.