By Emma Gross; Image by UNICEF
Within the International Criminal Court, the minimum age of criminal responsibility(MACR) is the age at which a person can be charged with a crime and processed through the criminal justice system. Globally there is no set MACR and rather it is left up to each individual country’s discretion. While this is done with the intention of respecting cultural differences in relation to when a child is considered to be an adult, or of age to be held responsible, it leads to extreme miscarriages of justice especially when in relation to child soldiers held responsible for committing war crimes.
Presently, it is a war crime for an armed group to utilize a child soldier under the age of fifteen. However, if for example a thirteen year old commits a war crime under force from an armed group and a country has a MACR of 13, that child can be held responsible in the eyes of the international criminal court when just their existence as a child soldier is a war crime itself. There are currently three main arguments in relation to criminal responsibility. The first argues for maintaining the current lack of a MACR, the second encourages a minimum age of fifteen, and a third that argues for eighteen. The differentiation between the last two arguments is that proponents for making the MACR fifteen tend to be more in line with the concept that even children need to be held responsible and regardless of their victimhood status they need to be made an example of wrongdoing. In this school of thought, allowing for leniency in the court would present an image that their actions were excusable and thus acceptable to be repeated. Those in favor of a higher MACR at eighteen years old view this situation as more complex than the latter and take autonomy into account as well as a holistic understanding of the mental well being of children.
Keeping the lack of a MACR as it is now upholds a standard that the prime person responsible for an act of violence such as a war crime is the executor of that event, not those that took part in the planning or enforced the act to happen. This disregards the executor’s autonomy in the situation and does not hold the true responsible party adequately responsible for their actions. Further, it forces already victimized children to be further abused and mistreated by the justice system that was supposed to protect them in the first place.
Setting the MACR to fifteen is still largely problematic. In doing so, children still considered too immature to drink alcohol, lease a mortgage, or drive a car can be held responsible for mass acts of violence. While the instance of violence itself is not excusable, it should be the superior parties who are held primarily responsible as the children under their control can face threats of violence or death if they do not complete the act. In addition, holistic understandings of the tolls on mental stability that indoctrination and repeat abuse has should be factored in as a major priority in order to properly understand the degree to which a child had autonomy in committing an act of violence. The developmental stage of a fifteen year old is still widely considered too young to be given autonomy in making major life decisions, especially ones that influence others.
While eighteen year olds still prove to be not fully developed, there is a greater degree of autonomy associated with them. Even in these cases of young adults, particularly those who have been raised as a child soldier, a holistic approach is still imperative to achieve proper justice. The effects of brainwashing do not disappear on one’s eighteenth birthday, thus neither should their innocence in the eyes of the law. While imposing laws that prevent mass atrocity and hold responsible parties accountable is crucial to maintaining international order, holistic practices in understanding the influences that went into a war crime need to be understood and assessed prior to administering punishment. This would thus encourage a decrease in sole responsibility for parties that did not have total autonomy in the act such as child soldiers.