Confronting the Use of Child Soldiers in Iraq

Source : Justice in Conflict

by Mark Kersten

Laura Nacyte joins JiC for this post on need for accountability for the use of child soldiers in Iraq. Laura is an MSc graduate of Global Security from the University of Glasgow where she wrote the dissertation “The Copenhagen School Meets International Law: Has the International Criminal Court Impeded the Securitisation of Sexual and Gender-Based Violence?”. She has previously written for JiC on the the limits of the conception of gender under the Rome Statute of the International Criminal Court.

The issues pertaining to child soldiering have occupied much attention in recent global justice debates. In Colombia, minors were released from the rebel group of the Revolutionary Armed Forces. Their reintegration is beset with difficulties. At the International Criminal Court, a former child soldier Dominic Ongwen is tried for atrocities committed in Uganda. Indeed, children’s involvement in military activities poses the dilemma of their victimhood and agency.

The dilemma is likewise acute in Iraq, where the number of minors incorporated into diverse armed groups has surged following the emergence of the so-called Islamic State of Iraq and al-Sham (ISIS) in 2014. Despite the accession to the Optional Protocol on the Involvement of Children in Armed Conflict, which forbids the conscription of persons under 18 years of age, the Iraqi government failed to fully implement it. As a result, minors entered military groups and have engaged in wrongdoing.

Systematic recruitment, as well as children’s heightened vulnerability, diminish — although does not exclude — accountability of Iraqi child soldiers. Therefore, its determination by the means of juvenile justice in Iraq is defective. As the remainder of the post shows, it is politically biased and disregards limited minors’ agency. An alternative might be a truth and reconciliation commission; a national inquiry body concerned with past human rights abuses and restoration of social relationships. As ISIS declines in power, the creation of such commission appears both desirable and plausible.

The Flawed Iraqi Regulations of Child Soldiering

Under Iraqi law, children’s recruitment and use in armed conflict is not a criminal offence. The minimum age for voluntary recruitment is 18 years; nevertheless, the age verification system is not reliable.

Currently, the only robust safeguards for minors are set down in laws determining the status and conduct of non-state armed groups. The 2005 Iraqi Constitution prohibits the formation of such entities. The 1969 Iraqi Criminal Code and the 2005 Terrorism Act foresee sentences for those who conscript other persons, including children, into forces outside state control.

While important, these mechanisms are nonetheless problematic. They may offer a substantial protection against ISIS, the major Sunni-dominated recruiter of minors, but they simultaneously enable forces loyal to the Iraqi government to employ children with impunity. The Popular Mobilisation Forces, a Shia militia, is an emblematic example. Operating under the command of Iraq’s prime minister, it enlists children, some as young as 10 years old, on account of a religious duty. Other pro-government forces include the Kurdish Workers Party and self-defence groups.

Absent specific, child-orientated national policies, underage Iraqi soldiers tend to bear a high degree of personal responsibility for the acts of political violence. Pursuant to the 1983 Juvenile Welfare Act of Iraq, 9-17-year-olds affiliated with armed opposition groups are treated as juveniles. Once arrested, they are placed into an observational centre to undergo a physical, mental and social study of their behaviour. If convicted — typically on charges of terrorism — juveniles are sent to a correctional facility. 

In practice, their rights are seriously contravened. Children were reported to be detained in extrajudicial facilities belonging to the National Intelligence Service. Detention conditions did not fulfil food safety, sanitation, and ventilation requirements. Minors were subjected to acts amounting to torture. They were transferred to death row upon turning 18 years of age.

Alternative Child Soldier Accountability  

The Iraqi regulations concerning child soldiering are in need of reform. For the very sake of minors, their accountability should not be denied altogether, but it begs amelioration.

Contrary to the idealised Western discourse on children’s agency, the capacity to commit atrocities is not demarcated by the age of 18. The age of 12 marks the biological transition from childhood to the commencement of adulthood. Minors begin to demonstrate comparable skills of cognitive capacity and moral reasoning to those of adults between the ages 12 and 14. The guilt displayed by underage fighters should not therefore be surprising. Nevertheless, due to the incomplete development, their role in collective violence tends to be confined to its execution, not masterminding. The prevalence of forcible conscription in Iraq, particularly by ISIS, should also be a mitigating factor of children’s culpability.

The accountability schemes, then, should embrace the Janus-faced, perpetrator-victim role of child soldiers. A promising solution may be a truth and reconciliation commission, which would investigate human rights violations and the exploitation of underage subjects in the context of the fight against ISIS.

Drawing upon the precedents of Sierra Leonean and Liberian commissions, an Iraqi counterpart could enable children to disclose the crimes they assisted. Minors could express remorse, which is vital for the reproduction of their positive agency. Yet in parallel, a distinct platform with the focus on child rights must be provided for the former child fighters to elaborate upon their victimisation.

A truth elicitation could foster the social reintegration of children. Comprehensive understanding of their roles in military structures is likely to reduce victims’ motivation for reprisal. A truth and reconciliation commission could subsequently initiate the renewal of a social contract between wrongdoers, including minors, and those affected. Respect, dignity and interconnectedness should be promoted as guiding values of human conduct. Their absorption by ex-child soldiers might be further reinforced through community service. It would provide children with a practical means of contributing to the common good and may additionally serve as a form of restitution.

The proposal on an Iraqi truth and reconciliation commission is not new. It was put forward to record human rights abuses of Saddam Hussein’s — former Iraqi dictator’s — regime. With regard to ISIS crimes in the region, the UN Commission recommended the establishment of an internationally-advised truth commission. Alas, the entrenched ethno-sectarian divisions have made the reconciliation to seem unattainable. Surely, assembling multiple conflicting parties — including those associated with the government — and persuading them to admit the offences requires tremendous effort. But by maintaining exclusionary and competitive policies, much responsible for the indoctrination of children, Iraqis will continue to follow the path which so aptly proved to be deadly wrong.