Document Type : Research Paper
Authors
1 Assistant Professor of Public International law, Department of Law, Faculty of Humanities and Social Sciences, University of Kurdistan, Sanandaj, Iran
2 M.A in Criminal Law & Criminology, University of Kurdistan, Sanandaj, Iran.
Abstract
Despite advancements in human rights, the issue of child soldiers remains a serious challenge in the international arena. The debate over prosecuting these children stems from their dual status as both victims and perpetrators. This descriptive-analytical study, focusing on the case of Dominic Ongwen, examines whether the Rome Statute and existing mechanisms are sufficient to address crimes committed by child soldiers. How can a balance be struck between their victimization and criminal responsibility? Furthermore, can defenses such as duress, necessity, or mental impairment mitigate their criminal liability? Although the Convention on the Rights of the Child and the Rome Statute prohibit the recruitment of children under 15, judicial practice shows that children above 15 may still face prosecution. This contradiction, along with ambiguities in defining "active participation in hostilities" and the criteria for attributing criminal responsibility, has created legal challenges in international criminal justice. The Dominic Ongwen case highlights the international legal system's confusion in dealing with the dual role of child soldiers (both offenders and victims). Findings indicate that traditional standards of criminal responsibility are inadequate for child soldiers, and the Rome Statute has failed to provide clear criteria for determining the criminal liability of child soldiers over 15. Additionally, general defenses (such as duress, necessity, or mental impairment) have been applied only restrictively in Ongwen’s case due to its unique circumstances. Thus, the current approach requires revision, moving toward an integrated model that balances fair trials for principal perpetrators with protection for child victims.
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