Mark A. Drumbl

Reimagining Child Soldiers in International Law and Policy

The international community undertakes considerable efforts to eradicate the scourge of child soldiering. Mostly, though, these efforts replay the same narratives and circulate the same assumptions. This book takes a second look at these efforts. It aspires to refresh law and policy so as to improve preventative, restorative, rehabilitative, and remedial initiatives while also vivifying the dignity of youth. Along the way, it also questions central tenets of contemporary humanitarianism, rethinks elements of international criminal justice, and hopes to embolden the rights of the child.This book:• Challenges the perceived wisdom about child soldiers • Argues that shortcomings arise when child soldiers generically are seen as passive victims, tools of war, and psychologically devastated • Approaches child soldiers with a more nuanced and less judgmental mind• Proposes that, in some cases, child soldiers should take responsibility for their conduct - not in criminal trials, but through traditional and restorative forms of justice The organizational framework is straightforward. Chapter 1 (available herein) broaches the issues, sets out dominant assumptions, and provides an overview of the central arguments. Chapters 2 and 3 introduce a diversity of accounts of the realities of child soldiering that, to date, have been inadequately considered by international lawyers and policymakers. These Chapters are descriptive in that they present these accounts. They also are synthetic in that they interpretively distil common themes and, thereby, build a composite. These Chapters also are analytic in that they lay a foundation for the normative arguments that ensue. Chapters 4 and 5 transition the book to international law and policy. These Chapters respectively address two themes: first, accountability of child soldiers and, second, accountability for child soldiering. These Chapters examine law and policy as they are and, much more importantly, the direction in which both are heading. Chapters 6 and 7 then suggest a variety of reforms to the content and trajectory of law and policy in light of the complex realities of child soldiering.

Sclerosis: Retributive Justice and the Rwandan Genocide

In the 1994 Rwandan genocide 800,000 people were massacred. The victims were overwhelmingly of the minority Tutsi ethnic group and the aggressors of the majority Hutu group. At present, 125,000 Hutu prisoners remain incarcerated while awaiting trial on genocide-related charges. This article argues that these trials, and the extensive incapacitation that necessarily precedes them, may do little to promote justice, regime legitimacy, or national reconciliation in Rwanda. This, in turn, raises broader questions about the role of criminal punishment and sentencing in situations of mass violence. Criminality usually attaches to deviant conduct. Mass political violence - from Nazi Germany to Serbia to Rwanda - generally involves significant levels of public participation and complicity. How, then, should we punish conduct that, at the time it was committed, was not deviant? The thesis is advanced that restorative and transformative justice initiatives are effective at deconstructing complicity and can play a va...

Self‐Defense and the Use of Force: Breaking the Rules, Making the Rules, or Both?

This article examines shifts in international law regarding the use of force—the jus ad bellum —that emerged in the wake of the September 11, 2001, terrorist attacks and subsequently were invoked in part by the United States and United Kingdom to justify military intervention in Iraq. These shifts import some elasticity—in time, space, and place—into the preexisting legal understanding of self-defense. To be sure, the general consensus that supported the use of force in Afghanistan as a legitimate exercise of self-defense has diluted as the use of that force expanded into other theaters of operation. It is therefore unsurprising that considerable controversy envelops claims by some states that international law entitles them to use force in self-defense in a preemptory manner. This article explores the articulation of this and other justifications for the military intervention in Iraq. It also unpacks the difficult question whether these entitlements are constitutive of inchoate legal rules or simply deviations from the still operational old rules. Moreover, this article encourages scholars and students of international law and relations to consider why a movement is afoot to change the rules and how this affects the architecture of collective security. To facilitate this process of reflection, this article explores the policy implications of retaining the old rules or adopting the newly alleged rules.

The Effects of the Lubanga Case on Understanding and Preventing Child Soldiering

On March 14, 2012, a trial chamber of the International Criminal Court (ICC) convicted Thomas Lubanga Dyilo, a rebel leader from the Democratic Republic of the Congo (DRC), for child-soldier-related crimes. Several months later, Lubanga was sentenced to a prison term of fourteen years. On August 7, 2012, an ICC trial chamber issued its decision regarding the principles and procedures to be applied to reparations in the Lubanga case. This Article unpacks the relationships between the Lubanga proceedings and how the international community conceptualizes, and strives to prevent, child soldiering. This Article argues that the Lubanga proceedings reinforce, and incubate, a stylized portrayal of the child soldier as a faultless passive victim, psychologically devastated, and irreparably damaged. Although arguably facilitating criminal convictions of adult recruiters, these portrayals occasion a variety of troublesome externalities when it comes to the reintegration and rehabilitation of the former child soldiers and other youth (and adults) affected by conflict. This Article proceeds through several steps. First, it defines the term child soldier. Second, and drawing from my prior work, it discusses how child soldiers are portrayed within the international legal imagination. Third, the on-the-ground realities of child soldiering are set out and contrasted with the imagery. The discussion, fourthly, then moves to a detailed analysis of the Lubanga trial and sentencing judgments, which are placed within broader discursive and socio-legal contexts. The Article concludes with an overview and brief discussion of the Lubanga reparations decision.

Extracurricular International Criminal Law

Domestic criminal law informs the register of international criminal law, whether formally through the development of general principles of law or informally through experience and analogy. Reciprocally, international criminal law also informs the register of domestic criminal law, whether formally through incorporation of treaty and custom or, once again, informally through experience and analogy. Circulation thereby arises within the curricular sphere of penal responsibility. Might international criminal law nonetheless, and perhaps unexpectedly, stray elsewhere in domestic law? When it comes to municipal legal practice, might international criminal law cast a somewhat longer shadow, travel a bit farther, or leave a somewhat haler legacy? This paper considers such extracurricular effects, and related trans-judicial dialogue, by unpacking the jurisprudential footprints of international criminal courts and tribunals in domestic civil litigation in the United States conducted under the Alien Tort Statute (ATS). The ATS allows victims of human rights abuses to file tort-based lawsuits for violations of the laws of nations (a phrase taken to mean customary international law). This project organizes itself around a survey of US federal court citations to the case-law and materials of the International Criminal Tribunal for Rwanda (ICTR). This survey quickly demonstrates that US judges who cite to ICTR work product to determine the rule of application in an ATS dispute also frequently cite to the case-law and materials of other institutions, notably the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Court (ICC), the International Military Tribunal at Nuremberg (IMT), and the American Military Tribunal at Nuremberg (AMT). Hence, this Article references these cases and materials as well. While diverse, citations to international cases and materials in ATS adjudication tend to cluster around three substantive areas: (1) aiding and abetting as a mode of liability; (2) the definition and substantive legal elements of genocide and crimes against humanity; and (3) the availability of corporate liability. In light of the sharply limited capacity of international criminal courts and tribunals, domestic tort claims as avenues for redress of systematic human rights abuses will likely grow in number. The experiences of US courts of general jurisdiction as ‘receivers’ of international criminal law reveal broader patterns of transnational legal migration and a largely unanticipated legacy of international criminal courts and tribunals. Distortions may nonetheless arise when international norms migrate into legal practices at the national level, in particular, when they do so in cognate legal regimes. These migrations constitute national practices indicative of “comparative international law,” namely, that international legal norms may take shape differently among, and within, various national jurisdictions. While international criminal lawyers may welcome the broad diffusion of international norms, including extracurricularly from the criminal to civil context in a rich array of venues, concerns emerge should the content of the norms fragment and, thereby, weaken international law’s purported universality. The US experience is thereby instructive in terms of striking the appropriate relationship between national courts and international law. Should national courts serve as dispassionate law enforcers, as translators of law, or engaged law creators? Should international judges be mindful of the at times unforeseen afterlife of the jurisprudence they create? Obversely, the US experience also raises questions as to whether the specialized, and at times inconsistent, work-product of the international criminal courts and tribunals is even suitable for broader dissemination and incorporation at the national level.

Transcending Victimhood: Child Soldiers and Restorative Justice

The international community strives to eradicate the scourge of child soldiering. Mostly, though, these efforts replay the same narratives and circulate the same assumptions. This chapter, which takes a second look at these efforts, aspires to refresh law and policy so as to improve preventative, restorative, and remedial initiatives while also vivifying the dignity of youth. As a starting point, this chapter proposes that the dominant language used to characterise child soldiers—that of passive victimhood—be revisited so as to better recognise the potentiality of child soldiers to participate in and lead post-conflict reconstructive efforts. This chapter suggests a variety of reforms to the content and trajectory of law and policy in light of the complex, variegated realities of child soldiering. International lawyers and policymakers are predisposed to dissemble these complexities. Although understandable, this penchant ultimately is counterproductive. Along the way, this chapter also questions central tenets of contemporary humanitarianism, rethinks elements of international criminal justice, and aspires to embolden the rights of the child.