Written by Garima Tiwari

“If the men are gone, our children are present.”[i]

After the death of his mother and his father’s disappearance 5 years ago, Shaaban Abdullah Hamid, aged 12 years, spent several years in the streets or doing casual jobs at a plastic factory. An uncle of Shaaban presented the boy with a handgun and offering him a job as a soldier for the Islamist group Afhad al-Rasul. The training lasted one month, after which the boy spent the following two months sniping at people walking or driving on an Aleppo bridge. Killing a civilian brought him $2.5, and killing a government soldier, $5. Working an 8-hour shift, he killed a total of 13 civilians and 10 soldiers. His firing position stayed warm round the clock, because two other boys worked the remaining two shifts. Shaaban also executed delinquent or offending rebels several times, doing so on orders from his uncle. In the end, his father got word of him and took him to a Red Crescent refugee camp in Hama. From there, both moved to Tartus to take up farming jobs. Asked about any emotions in connection with his sniping, he said he had none. [ii] 

A 2012 UNICEF report finds that the number of child soldiers has increased around the world because the men driving armed conflicts realize children are “more obedient, do not question orders and are easier to manipulate than adult soldiers…and they usually don’t demand pay.”[iii] Thousands of children are serving as soldiers in armed conflicts around the world. These boys and girls, some as young as 8-years-old, serve in government forces and armed opposition groups.

About half of the 200 new recruits who board buses each week to Syria from Jordan’s sprawling Zaatari refu­gee camp are under 18 years of age, U.N. officials at the camp estimate. The Centre for Documentation of Violations in Syria, an opposition monitoring group, has documented the deaths of at least 17 children who fought with the Free Syrian Army. Many others have been severely wounded, and some permanently disabled.[iv]

In its report, Amnesty International cited an example of 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. [v]

Save the Children’s new report, Children Under Fire[vi], 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 volunteer. Both the ICC and the Special Court for Sierra Leone (SCSL) 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.  For many children and their families, this is seen as a source of pride. But some children are forcibly recruited into military activities, and in some cases children as young as eight have been used as human shields.[vii]The use of children in combat is a grave violation of their rights; it contravenes international law and commitments made by both parties to the conflict. It also puts the children involved at enormous risk of death, injury or torture.

The calls to join the fight are not limited to Syria alone. Male children of Syrian refugees in neighboring countries remain prone to conscription and engagement in fights. After more than two years of conflict that has already claimed more than 100,000 lives, some rebel commanders defend the use of teenage fighters as inevitable. Conscription in the Syrian army is compulsory for all males once they reach the age of 18, according to the military.[viii]
The Rome Statute says that conscripting or enlisting children under the age of 15 or using them to participate in hostilities is a war crime. The United Nations Convention on Child Rights urges states to ensure that people under 18 are not recruited or used in hostilities. [ix] Proving this crime has its troublesome issues like issue of age verification testimony and dealing with problematic sourcing of child witnesses, and avoid the issue entirely. The International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) did not cite a minimum age for criminal responsibility, but no one under 18 appeared before the tribunals. The Statute of the SCSL provided the court with jurisdiction over any person above 15, but the court’s prosecutor decided against indicting children for war crimes because of their dual status as both victims and perpetrators. [x]

On March 14, 2012, a trial chamber of ICC convicted Thomas Lubanga Dyilo, a rebel leader from the Democratic Republic of the Congo (DRC), for child-soldier-related crimes. [xi] Most armed groups in the DRC had children in their ranks. In 2003, an estimated 30,000 children were awaiting demobilization. It has been called by some observers as “an army of children.” [xii] 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.[xiii] 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.

The Chamber said this determination could only be made on a case-by-case basis. The Trial Chamber’s broader definition could create confusion about the application of certain elements of international humanitarian law. If even children not on the front lines are “active participants,” so long as they are exposed to danger as a potential target, there may be uncertainty about whether these children will still be protected under other sections of the Rome Statute and international law, which punish attacking those “not taking direct part in hostilities.”[xiv]

Looking at the situation in Syria, the problem is evident that Syria is not a state party to the Rome Statute and therefore, 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.[xv] If 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 owing to the active participation of children at various levels.

Thus, while we debate the issue of referral , children are falling slave to circumstances and some are voluntarily enlisting with the rebels as is the case of 16 years old, Mohammed Hamad who on his way to the war, said that, “If my generation doesn’t take up arms, the revolution will be lost.” Hamad believes that it is his duty to “fight in the name of God to take back the country’’ from government forces.[xvi]