Excluding Child Soldiers under the Refugee Convention

Introduction

According to a report by the UN Secretary General (2021), more than 8,500 children were recruited to actively engage as child soldiers in various armed conflicts around the world in 2020.¹ Many of these children were detained for their alleged association with multiple armed groups including those designated as terrorist organizations by the United Nations (UN).² While the international community has increasingly emphasized the need to accord protection to these vulnerable sections, the current legal framework under the 1951 Convention relating to the Status of Refugees (hereunder referred to as 1951 Convention) coupled with a lack of harmony on the minimum age of criminal responsibility suggest a contrary position. The 1951 Convention excludes anyone from refugee status where there are serious reasons for considering they have committed any war crimes, crimes against peace or crimes against humanity. This also includes child soldiers who participate in armed conflicts and commit these crimes due to a lack of a special framework designated for them. This article will attempt to discuss the denial of refugee protection to child soldiers under the 1951 Convention and assess state practice among various jurisdictions. It will further analyse existing discrepancies that exist structurally and procedurally within Article 1(F)(a) 1951 Convention. Lastly, it will examine whether the exclusion of child soldiers is justifiable within the paradigm of various international legal instruments.

Object and Purpose of Article 1F(a)

Article 1F(a) provides:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.³

In order to understand the basic framework regulating exclusion from refugee status, it is imperative to note the object and purpose of the said provision. According to the travaux preparatoires, it aims to deny refugee status, and the benefits it provides, from those undeserving as well as those who misuse the regime to avoid accountability for heinous acts.⁴

On a plain reading of the provision, it appears that anyone who has committed a crime against peace⁵, a war crime⁶ or a crime against humanity⁷ pursuant to international criminal law (ICL) will be denied refugee status irrespective of their age, sex or other circumstances, including one’s status as a child soldier. This may seem unsatisfactory in some quarters as it is believed that child soldiers even if they have committed atrocities are seen as victims and not violators.⁸ The legal agreements which tells us what these crimes are under Article 1(F)(a) include:

The Geneva Conventions of 1949 appended with Additional Protocols I & II (1977)
Convention on the Prevention and Punishment of the Crime of Genocide (1948)
the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY)
the Statute of the International Criminal Tribunal for Rwanda (ICTR), and
the Rome Statute of the International Criminal Court (ICC).

Legal Framework

The international community has demonstrated its commitment to limiting the participation of child soldiers in armed conflicts and ensuring protection to these vulnerable sections by enacting certain legislative instruments and introducing other practices. These range from multiple conventions to the creation of non-governmental organizations (NGO’s). International Humanitarian Law as codified in the Additional Protocols to the Geneva Conventions provides that the recruitment of children below the age of fifteen years into the armed forces and their participation in hostilities is strictly prohibited.⁹ This obligation is inherent in the UN Convention on the Rights of Child (CRC) which obliges states to take all feasible measures to ensure that persons who have not attained the age of fifteen years do not directly participate in hostilities.¹⁰ It also provides that states are to refrain from recruitment of any person below such age.¹¹ The Optional Protocol to the CRC limits the minimum age for compulsory recruitment and participation in hostilities to eighteen years.¹² Other notable instruments that offer such restriction include the Rome Statute¹³ and Paris Principles¹⁴ which categorizes the conscription or enlisting of children under the age of fifteen years into the national armed forces or using them to participate directly in hostilities as a war crime.¹⁵

Despite these prohibitions, the recruitment of child soldiers for engagement in armed conflict remains very prevalent globally. In many cases, child soldiers do not serve willingly, they have either been abducted or forcibly recruited.¹⁶ They can be coerced and manipulated into committing atrocities and plied with alcohol and drugs.¹⁷ It is often believed that since children are vulnerable, easy to intimidate and susceptible to psychological manipulation, it is easier for the different heads of armed groups to recruit them.¹⁸ In the aftermath of the recent regime change in Afghanistan, the UN Report verified the recruitment and use of 196 boys attributed to the Taliban and 5 in the Afghan National Police.¹⁹ Similarly, in the Democratic Republic of Congo (DRC), 788 children (687 boys and 101 girls) were recruited, used and separated in 2020.²⁰ This practice has become so widespread that some experts believe that children represent 10% to 14% percent of many armed organizations.²¹ This common participation poses serious ramifications for child soldiers who experience unimaginable horrors and fear ongoing risks of significant harm. To evade this well-founded fear of persecution and victimization, many view international asylum as the ‘last hope for escape from a society that has tormented and rejected them.’²² However, not all of these child soldiers who successfully satisfy grounds for obtaining refugee status under the 1951 Convention, are offered such protection under Article 1(F)(a) due to their involvement in war crimes.²³

Balancing Article 1(F)(a) and CRC

Although the UNHCR’s Guidelines on Exclusion Clauses²⁴ appended with the Background Note provide for special consideration given to these sections including their level of maturity and mental capacity, length of time as a member, age at the time of their involvement with the armed group, they ultimately conclude that child soldiers may be excluded on the same grounds as adult actors.²⁵ This criteria overlooks the vulnerability of children who are more susceptible to psychological manipulation and easy to intimidate for the purposes of recruitment in armed groups than adults.²⁶ It arguably also causes issues for states who have ratified both the 1951 Convention and CRC (as well as its cardinal principles such as ‘best interests of child’) as it may be seen as entailing contradictory obligations.

The ‘best interest’ principle is embedded within the CRC as one of its guiding principles and provides that in all actions concerning children, the best interests of a child shall be a primary consideration.²⁷ It not only accords protection to children but also forms the bedrock for evaluating any policies, laws and practices that directly affect them. On one hand stands Article 1(F)(a) which permits the denial of refugee status to anyone who has committed international crimes while on the other there is the CRC which underpins the best interest principle that requires the child’s interests to be the foremost consideration. It can be argued that the exclusion of child soldiers cannot in any way be in their best interests. Where exclusion takes place, it is in direct contravention to the said principle and CRC subsequently.

At the same time, it is justified within the refugee legal framework under Article 33(2) that provides an exception to the general rule of non-refoulement. The principle of non-refoulement prohibits States from transferring or removing individuals from jurisdiction where there are substantial grounds for believing that the person would be at risk of irreparable harm upon them, including persecution, torture or ill-treatment.²⁸ However the exception states that such benefit cannot be availed by those who are convicted by a final judgment of a particularly serious crime.²⁹ Notwithstanding, the principle of non-refoulement is applicable under other human rights treaties such as UN Convention Against Torture (CAT) which provides that ‘no State party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in a danger of being subjected to torture.’³⁰ Therefore, they remain protected under International Human Rights Law even if they have committed war crimes only to the extent of non-refoulement.

Individual Responsibility and Minimum Age of Criminal Responsibility of Child Soldiers

Another issue is that of a child’s individual responsibility which is primarily based upon unsettled norms under ICL such as minimum age of criminal responsibility (MACR). It is undisputed that children are not immune from prosecution under any legal instrument although certain statutes such as ICC stipulate their exclusion from prosecution if they are below the age of eighteen years.³¹ However, it is only the jurisdiction of the International Criminal Court that is excluded which leaves the treatment of child war criminals to national courts. Similarly, the CRC explicitly provides for their prosecution as long as the due process standards are met.³² The fact that children can be held responsible for the commission of serious crimes is also reiterated in the Geneva Conventions and its Additional Protocols.³³ While these instruments encapsulate provisions for prosecuting children, the general consensus among various sections of the international community point towards it as the last resort, inclining to a strand of restorative justice.³⁴ The CRC also obliges states to implement ‘whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings.’³⁵

It is prudent to emphasize that international legal instruments permit the prosecution of child soldiers in attributing individual responsibility, however what is overlooked is the criteria on which such responsibility is established. This is compounded by the lack of establishment of a minimum age of criminal responsibility under international law as evident under CRC which mandates each State party to institute its own age of criminal responsibility pursuant to Articles 1 and 40. Such discretion afforded to states creates ambiguities among them as the established age criteria widely varies. For instance, the minimum age of criminal responsibility in Pakistan is ten years.³⁶ Conversely, it is seven years in Nigeria.³⁷ Child soldiers have been prosecuted and sentenced to death in the Democratic Republic of Congo³⁸ and the United States (U.S) where a fifteen-year-old was sentenced to eight years in prison on confessing his involvement in war crimes under U.S law.³⁹

In the absence of any settled age of minimum criminal responsibility under International Law, states have full discretion to prosecute child soldiers pursuant to their national legal frameworks. However, the problem lies in the lack of harmony between states as each state has devised its own minimum age of criminal responsibility. This results in a lack of harmony between them as some states have a very low age criteria to attribute criminal responsibility while others have a slightly higher threshold. Based on this, it can be said that states with a lower-criteria overlook the vulnerability of child soldiers and the fact that many of the child soldiers were too young to understand the consequences of their actions. As a result, this lack of consensus with respect to varying minimum age of criminal responsibility between the national and international legal framework triggers uncertainty under ICL regarding the status of child soldiers but also makes it difficult to harmonize the minimum age of criminal responsibility for the purposes of Article 1(F)(a). While the international framework suggests a tilt towards a higher minimum age of criminal responsibility favoring reintegration of child soldiers,⁴⁰ examples of sentencing five-year old child soldiers to death in Congo suggest a contrary position.

Protection Offered to Child Soldiers

Importantly, in instances where child soldiers are prosecuted, it would be unfair to oversee the various forms of protection offered to them. These range from defences such as duress, involuntary intoxication and superior orders to principles of non-refoulement which are inculcated within the international legal framework to ensure the protection of an excluded child refugee for war crimes.

The defense of duress provides that ‘a person shall not be criminally responsible if at the time of the person’s alleged conduct has resulted from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person.’⁴¹ Within the context of the rampant forceful recruitment of child soldiers, it can be asserted that duress seems a viable option. Similarly, some of these child soldiers are plied with alcohol and drugs to commit crimes,⁴² hence they can also rely on involuntary intoxication which is codified under Article 31(b) of the Rome Statute. Many of these children are subject to command orders of their superiors and are not actively involved in crimes. As low-level secondary actors, the application of the defence of superior orders is justifiable in situations where their contribution is de minimus or very small.⁴³ In the absence of any legal instrument that prohibits prosecution of child soldiers, there is a high probability of them being prosecuted pursuant to the settled age of criminal responsibility in their national legal frameworks. However, it can be said that they are accorded protection in the form of defences available which may negate their individual responsibility on the grounds of lacking mental capacity to be held responsible for a crime.

State Practice

The open-ended wording of Article 1(F)(a) (… ‘serious reasons for considering’) further makes the standard of proof low as it is based on a reasonable suspicion rather than beyond the reasonable doubt. It is not necessary for an applicant to have been convicted of the criminal offence nor does the criminal standard of proof need to be met.⁴⁴ This leaves room for uncertainty as it grants the courts a wide discretion to the courts who may formulate opinion based on a subjective point of view.

An exposition to the state practice reveals further lacunas in the legal framework regulating Article 1(F)(a) which is evident through the decisions rendered by courts in various jurisdictions with respect to the standard of proof. The Federal Court of Canada in Ramirez v. Minister of Employment and Immigration held that ‘mere membership of an organization which from time to time commits international offences is not normally sufficient for exclusion from refugee status.’⁴⁵ However, it went on to state that ‘where an organization is principally directed to a limited, brutal purpose, mere membership may by necessity involve personal knowledge and knowing participation in persecutorial acts.’⁴⁶ This extreme approach was rejected by the UKSC in R (JS-Sri Lanka) v. Secretary of State for Home Department which opined that ‘analysis should be devoted to the international circumstances of each claimant rather than attempting to “categorize” organizations’,⁴⁷ hence adopting a flexible approach. The United States has established its own legal framework, under which a person can be excluded if they “ordered, incited, assisted or otherwise participated in the persecution.”⁴⁸ In other jurisdictions such as the Netherlands, a reputable presumption of involvement in international crimes is imposed on the designated ministers.⁴⁹ A similar presumption has been set out by UNHCR which also reverses the burden of proof with respect to individual responsibility. This varying criterion among states in regulating the grounds for exclusion reflects that a consistent framework which provides a definitive understanding of the said provision is entirely lacking.⁵⁰

Recommendations

The legal and moral complexities regarding minimum age of criminal responsibility to attribute individual responsibility to child soldiers reflects a significant tension for the international community in enduring full protection to these vulnerable sections and for the prosecution of war criminals. An application of Article 1(F)(a) on the basis of contested norms such as minimum age of criminal responsibility and varying standards of proof among State parties departs from the relevant criterion set by UNHCR Guideline on Article 1(F) which reflects that ‘reliable, credible and convincing evidence going beyond mere suspicion is required to demonstrate that there are ‘serious reasons for considering’ that individual responsibility exists.’⁵¹ The State parties need to ensure proper implementation of these guidelines for a uniform application of the said provision.

It is also important to note that international law only says that states should have a minimum age of criminal responsibility but it does not tell them what that age should be.⁵² However, it does offer some guidelines.⁵³ Considering that CRC is the most ratified human rights treaty, there needs to be a common consensus among states to agree on a universally acceptable age for determination of criminal responsibility to settle this disputed issue. Ideally, a standardized age would bring certainty and result in a uniform application. To put it, the age should be in the mid-teens (fourteen to fifteen years). Even if there is a lack of consensus among states, the general stance should be that the younger the child, the greater the presumption that their mental capacity to commit a crime did not exist at the relevant time. This will ensure that the ‘best-interest’ principle is given due importance as well as reconcile with the object and purpose of Article (1)(F) to hold all persons legally accountable for their actions. Anyone who attains the age of criminal responsibility shall be prosecuted and alternatively rely on an array of defences. Even if no defence is available, the vulnerability of a child soldier should be a mitigating factor when considering the proportionality of exclusion for crimes stipulated under Article 1(F)(a).

Thirdly, as elaborated above, the current framework does not require an asylum seeker to be convicted rather it only entails an apprehension on the part of them to be involved in war crimes, crimes against peace or humanity. To assure that states comply with the present framework, the guidelines⁵⁴ regulating the way in which the claimant’s contributed to the crime needs to be strictly followed in situations where there is any involvement of child soldiers.

Conclusion

The current approach to the application of Article 1(F)(a) encapsulates rigidity on part of State parties which determine a child soldier’s individual responsibility fundamentally on unsettled principles such as minimum age of criminal responsibility. This is further coupled with the varying standards adopted by states to attribute individual responsibility ranging from mere membership to assessing international circumstances of each claimant which outlines discrepancies that exist between the national and international legal framework. To ensure that the object and purpose of Article 1(F) is achieved, the exclusion clause needs to be applied restrictively by all states with great caution.

Umer A. Ranjha

Umer A. Ranjha is an Associate at Axis Law Chambers where he assists senior litigation counsel on matters involving constitutional, commercial and intellectual property law. He graduated from Pakistan College of Law (University of London International Programme) in 2022 with an LL.B. (Hons) and holds certifications in International Human Rights Law from International Bar Association and United Nations Office on Drugs and Crime (UNODC).

Excluding Child Soldiers: An Overview of Article 1F(a) of the 1951 Convention relating to the Status of Refugees