They stood in the warm sun of the dry season. Seasoned combat veterans of years of conflict, their eyes darted nervously back and forth, glancing at me from time to time, not sure what to make of the situation they found themselves in. The breeze stirred the lush green trees of the bush upcountry in Sierra Leone, near Kabalah. United Nations peacekeepers fanned out around the perimeter nervously holding their weapons at high port.
The Chief Prosecutor of the Special Court for Sierra Leone was about to hold a town hall meeting with several hundred child soldiers who were now back in school trying to make some sense of their ruined lives. Standing before the prosecutor were murderers, rapists, mutilators and pillagers of all kinds, their average age around 15.
I took the bullhorn from one of the peacekeepers and asked them in Krio how they were all doing. They all mumbled "body fine." I stepped among them and for almost two hours talked to them and listened to them, developing a sense of what it must be like to be a member of what I call the lost generation of children in West Africa; children forced to kill their parents and then rip their way across the countryside in a whirlwind of terror the likes of which civilization rarely has seen, if at all.
They were afraid of me, and frankly I of them. These young men were clearly concerned that I was going to have them all arrested for war crimes and crimes against humanity. They knew what they had done and they also knew that I was well aware of the pain they had caused.
On that November day in 2002, I stood before them and told them I would not prosecute any child for what they may have done in the horror story that was Sierra Leone over those many years. I called them victims not criminals. Many wept, others stood open-mouthed, disbelieving what they were hearing. To many this was the only positive development in their lives. They were being given a chance to live, to make something better for themselves.
Though mandated within the tribunal's statute to prosecute a child who committed a war crime between 15 and 18 years of age, I chose not to as I felt that no child had the mental capacity to commit mankind's most serious crimes. These truly were victims of cynical warlords, tyrants and thugs exploiting their childhood for their own personal criminal gain.
I felt that international law was clearly on my side. Children found in these internal conflicts are as much the victims as the victims they abused. What needed to be done was to hold accountable the leadership that created the policy to recruit and enlist children as young as 6 years old into the various militia groups that fought in West Africa. This we did and for the first time in history, African warlords were tried and convicted of creating a lost generation of children, the child soldiers of West Africa.
The scourge of child soldiers is not a new phenomenon, however; in the past 20 years millions have been recruited and millions have been casualties of war. The United Nations has recognized this and has begun to take corrective action. The International Criminal Court has followed our example and is actively investigating and charging individuals for what they are doing to children in times of armed conflict. The trend is generally positive, yet there are wrinkles.
It is important to understand that child soldiers are found around the globe, not just in Africa. Children are recruited and brainwashed into fighting where instinctively they recoil. This is taking place in Iraq and in Afghanistan.
The "global war on terror," as the United States characterizes its fight against various jihadist factions, has netted children found in combat. Like their cousins in West Africa, they were enlisted or recruited under duress and forced to fight or be killed themselves. The net has them detained far from home in an infamous place called Guantanamo.
This year we will see the trial of the first child ever to be prosecuted as a war criminal by the United States in Guantanamo. The child, now a young man, was 15 at the time of the alleged crime he is charged with committing, yet the facts show that he had no choice after being taken by his family from Canada to Afghanistan several years ago. The child was very young and he had little option but to go with members of his family.
That child was Omar Khadr, a Canadian citizen. At 15 he was no more legally responsible for any crimes committed in combat than the children of Sierra Leone, which I chose not to prosecute. Omar Khadr is a victim of war.
The charges against him should be dropped and he should be sent home where he can be rehabilitated, not punished. Defence counsel alleges he is mentally years behind his now 20 years of age, as he has been incarcerated in a detention camp since 2002. One asks where is the outrage in all of this by right-thinking people? France has called for Khadr's release. Where is Canada?
On Feb. 12, the United Nations Security Council held an open debate on what type of harsher measures need to be used to discourage the use of children as soldiers, like Omar Khadr. This is an important discussion to be sure. The United Nations has reported that 58 parties to armed conflict in 13 countries are in violation of international standards that prohibit the use of children in combat. These countries can be found in several continents.
Just think of the suffering of children whose lives have forever been changed, even ruined. These lost generations of children will come back to haunt us all as they grow into dangerous adults, unable to read, write, having no sense of right or wrong, and in many instances don't even know who they really are or where they came from.
Have you ever looked into the eyes of a child who has no hope? I have and it will stay with me the rest of my life. I'll bet if I looked into the eyes of a young Canadian named Omar Khadr, I'd see the same sad look of a child who has no hope.
David M. Crane is a professor at Syracuse University College of Law, and former founding Chief Prosecutor for the UN Special Court for Sierra Leone (2002-2005).
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