"Reimagining Child Soldiers in International Law and Policy," by Mark A. Drumbl

Published by Oxford University Press (2012)

Reviewed by Rick Wilson

The image of the child soldier as “faultless passive victim” resonates throughout Professor Mark Drumbl’s newest book, Reimagining Child Soldiers in International Law and Policy. The faultless passive victim image dominates the international discourse on child soldiers, almost always to the detriment of the child in question, and it is against that image that Drumbl asks us to reimagine child soldiers. Reimagining Child Soldiers seeks, among other goals, to deconstruct the dominant narrative of the faultless passive victim and to recast the child soldier in a more visionary application of what he calls the “international legal imagination.” He repeatedly invokes the example of Omar Khadr, the 15-year-old detained and tried for alleged war crimes by the U.S. military commission at Guantanamo. This made the book of particular interest to me, as one of Omar Khadr’s several defense lawyers in the U.S. federal courts, and as civilian counsel in military commission proceedings at Guantanamo in 2006. The same should be true of anyone interested in the law and policy relating to child soldiers. It is a fascinating intellectual feast.

Much of the research for this work comes from outside of traditional international legal sources: treaties, custom, standards and jurisprudence. Drumbl’s goal is ambitious; he seeks to “energize a discussion at the cross-national, interdisciplinary, and ‘big picture’ panoptic level.” (vii.) This is a book that is chock full of data from the social sciences and international law.

The book has a logical and straightforward structure. In chapter 1, Drumbl navigates the complex question of defining exactly who is a child soldier. The clearest answer is nonetheless aspirational. The Cape Town Principles use “the somewhat tongue-tying children associated with armed forces or armed groups,” defined in the later Paris Principles as follows:

Any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys, and girls used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities. (4.)

The push from activists is toward this so-called “Straight 18” definition, which abandons any reference to age 15 for recruitment or use of children in armed conflict, found in some treaties. Drumbl concludes that “international law’s trend-line arcs toward the Straight 18 position.” (5.)

Chapter 1 also provides four images of child soldiers developed by Drumbl. They are all relatively vivid and self-explanatory: in addition to the already-mentioned faultless passive victim, he offers the demon and bandit, the irreparable damaged goods, and the hero. (6-8.) The prevailing image, that of the faultless passive victim, suffuses subsequent chapters. I found the invocation of this imagery to be perhaps the most original, imaginative and insightful contribution of the work, particularly in subsequent chapters in which Drumbl makes a powerful and persuasive case for the narrowness and shortsightedness of our legal imagination in going beyond that image, to the detriment of child soldiers everywhere.

Chapters 2 and 3 provide complex accounts of who child soldiers are and what they do. Even an accurate tally of the number of present and former child soldiers is difficult, although overall numbers have probably declined. At the conclusion of a detailed look at the “not so simple” business of sorting out the world of child soldiering, Drumbl proposes to examine the child soldier through a model of circumscribed action, where the actor has “the ability to act, the ability not to act, and the ability to do other than what he or she actually had done. The effective range of these abilities, however, is delimited, bounded, and confined.” (98.) He calls circumscribed action “a spectrum or continuum” that permits diverse responses by and to child soldiers. Some children may fall far short of adult cognizance, but others, “particularly older adolescents, exercise [awareness] in navigating social pathways that lead to their enlistment in armies, fighting factions, and militias.” They are “constrained but not choiceless,” he asserts, adopting the language of other critics of the faultless passive victim image. (99.)

Chapter 4 focuses on the accountability of child soldiers for their own acts, examining international and internationalized tribunal practice as well as some domestic focus. “Child soldiers,” he concludes in a later chapter, “should not be criminally prosecuted internationally, nationally, or locally for alleged implication in acts of atrocity.” (178.) And at the end of the book, he bluntly and explicitly rejects the notion that the prosecution of Omar Khadr would withstand scrutiny under what he calls the “qualified deference test,” a set of six interpretive guidelines that should give direction to decision-making in post-conflict justice mechanisms judging children for their involvement in atrocity.

Chapter 5 provides an overview of the legal framework for those who engage in the unlawful recruitment of child soldiers. This book was published just before the final judgments and sentencing by trial chambers in two major trials for complicity in the recruitment of child soldiers, those of Thomas Lubanga Dyalo in the International Criminal Court, and Charles Taylor in the Special Court of Sierra Leone. The book, nonetheless, includes extensive discussions of the trial proceedings, particularly in the Lubanga case, and the outcomes in both are in no way inconsistent with the book’s major premises and conclusions. The ultimate outcome in both of these cases, of course, awaits conclusion of appeals.

Chapters 6 and 7 provide a comprehensive set of reforms to international law and policy regarding child soldiers, including extensive examination of the practice of truth commissions and other alternatives to formal criminal adjudication such as “endogenous ceremonies, reinsertion rites, reparative mechanisms, and community service.” (207.) One nugget of data in the concluding chapter makes a strong case for such alternatives. The combined budgets of the two international ad hoc tribunals for the former Yugoslavia and Rwanda now total between $US 2 and 3 billion dollars since beginning operations, “in some years comprising 10% to 15% of the total UN budget,” while the cost of demobilizing and reintegrating former fighters from Mozambique totals $US 1,075 per fighter, and $US 1,066 per fighter in South Africa. Each amnesty application at the South African Truth and Reconciliation Commission ran at $US 4,250. In the face of such data, Drumbl persuasively argues that the most significant impediment to widespread adoption of these alternatives may be the lean of international donors and civil society toward tribunals.

(Professor Rick Wilson is professor of law at American
 University's Washington College of Law and founding director of the
 school's International Human Rights Law Clinic.)