On October 2014, ISIS – a renowned and infamous extremist jihadist group operating mainly in Iraq and Syria-, announced its new spokesman by means of a propaganda video. His name is Abdullah Elmir, a 17 year old boy from Australia who ran away from home to join the massacres and put his gun up in support of a foreign cause. Although his case might be the most eminent and contemporary one, Elmir is not the only child to partake in terrorist organizations. Later the same month, 3 teenage girls from Denver, with ages between 15 and 18, secretly left home and boarded a plane and tried to reach Syria and join ISIS. They were recruited online and radicalized. They never made it to their destinations, as FBI located them in transit in Germany and brought them home.
What are the legal implications of young children involved in suicide bombings and terrorist operations? Can children be responsible for their actions or is impunity a better answer to the ‘’brainwashing’’ experiences they are subjected to? What are the psychological profiles of terrorist children and what long-term psychological impact do they suffer? How can the international community respond to this threat and at the same time, tragedy? This article will explore all these questions and much more, in an attempt to analyze this complex phenomenon through the lenses of the law, human rights, international affairs and radicalism.
Children, or better yet any person below the age of 18 in terms of article 1 of the CRC, are both perpetrators and victims of terrorism. Although after 9/11 a great amount of literature was dedicated to defining terrorism and trying to include this notion in the legal space, the participation of children in terrorist organizations has been substantially overlooked. The lack of a specific discourse and consequently legal protection for these children implies that they can be subjected to harsh counter-terrorism laws and in some cases even tried as adults since not all countries have specific criminal juvenile laws and specialized procedural rules. This can easily become alarming considering that the US has not ratified the CRC and it is one of the most preeminent actors in the terrorism discourse and in the crusade against such groups.
Moreover, although juvenile delinquency has been brought in the international sphere and discussed by UN bodies- the Havana Rules and the Riyadh Guidelines – a coordinated and coherent response is yet to be formulated. The criminal responsibility of children and the minimum age for criminal responsibility are to be examined below in the light of various instruments.
The Committee on the Rights of the Child has dealt with this issue in its General Recommendation 10 that does not specify a minimum age but only concludes that 12 years of age seems to be a low level and encourages States to raise the limits as much as possible. The same document talks about the prohibition of imposing the death penalty or life sentences without parole on children and warns that if a child shall be criminally tried and convicted, he or she should enjoy a high level of procedural guarantees.
In the US the common law age of criminal responsibility is set at 14 -with ages between 6 and 12 in States that have set a minimum in their legislations. In its Reservation 2 to the ICCPR (article 6) the US stated that ‘’permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age’’. That, combined with the 18 U.S. Code § 2332b provisions establishing the death penalty for acts of terrorism, proves that in terms of the international provisions the US has adhered to, the capital punishment for child perpetrators of terrorism is possible. Between 1985 and 2003, 22 children were executed by the US. In 2005, the Supreme Court finally banned executions of minor in Roper v. Simmons.
Another notable case concerns Peru that in its efforts to combat terrorist organizations like the Shining Path and MRTA, have tried children for treason and terrorism. The Report of the United Nations Working Group on Arbitrary Detention on its mission to Peru unveiled that children under 15 were both recruited into the Armed Forces and tried for terrorist crimes.
Even if generally, children under the age of 18 cannot be held accountable for terrorist crimes internationally, they can be subjected to domestic laws with lower ages of responsibility. To that extent, there appears to be a great need of formulating domestic laws compatible with the standards of the CRC and the practice of international Courts in terms of juvenile delinquency. As the Special Court for Sierra Leone signaled, for these offenders it is paramount to seek rehabilitation and reintegration rather than criminal punishment.
As for the law of armed conflict, the Optional Protocol I of the Geneva Conventions, in its article 77 prohibits the recruitment of children under the age of 18 but allows for the voluntary enlistment of those under 16. To complicate things even further, the application of the law of armed conflict or other international instruments will depend on the type of conflict these terrorist organizations are part of. Decisive elements are also the level of acceptance of extraterritoriality application or non-derogative nature of certain rules that protect the life, dignity and procedural guarantees for children.
Finally, it must be observed that the Beijing Rules for the Administration of Juvenile Justice observe that establishing the age of criminal responsibility is connected to social and cultural factors such as the age of consent for marriage, social status, etc. The combination of factors that determine legal maturity in different communities makes it even harder to establish a coordinated age for criminal responsibility.
In the 10 Year Strategic Review of the Machel Study it is presented that child suicide bombers have been used in Iraq, Afghanistan, Palestine and Indonesia and that they were poor, uneducated and tricked into participating in terrorist attacks. It also notes that children are being held in Israeli, Iraqi and US detention facilities, most likely under national mandates. Up until 2009, more than 600 juveniles were detained in Iraq. US Homeland Security documents show that children are being used in the activities of terrorist organizations of at least 17 States.
In conclusion, matters of international law do not offer an absolute and unquestionable protection for children involved in terrorism due to the failure of establishing a clear prohibition of holding children accountable for the possible crimes they have committed and raising the level of procedural guarantees offered in case of them being tried. Moreover, the international community has failed in protecting children by not observing and challenging national security and counter-terrorism laws that apply to youth, especially those of the States that are actively involved in counter-terrorism initiatives, in a coordinated and action-oriented fashion. With the proliferation and radicalization of groups like ISIS, the accessibility of weaponry for easy use by children and other factors such as the Islamic belief that boys reach adulthood at 15, comes a new wave of risks for youth everywhere to be tempted and allured into terrorist groups.
Implications of radicalization
A 2009 study on recruitment and radicalization realized by the Homeland Security Institute narrates that there is not one single profile of the child terrorist. The age, education levels and skills of the children vary considering the ranks they are targeted to fill. It was also observed that historically, children were used as messengers or couriers while now they are also brought in the organizational structures and decision making processes. Children are being recruited from refugee camps, after-school groups or religious institutions. The same study found that there are 4 types of radicalization:
Being born into a radicalized community that supports violence
Being forced into radicalized groups by kidnapping and direct recruitment
Self-radicalization (especially via Internet in the contemporary world)
In the present days, we can easily observe that the forced recruitment trend is shifting towards adherence and that children appear to choose to join terrorist organizations. The Machel 10 Years Review considers voluntary enlistment to be the same as forced recruitment by saying that even if children choose to join, they are forced by their socio-cultural context and they are too young to validly express their will. However, this is not a sufficient argument to justify the modern adherence of children from Western countries to, for example, jihadist groups. Such children appear to join for ideological reasons rather than their socio-economical status. In terms of criminal responsibility, voluntary adherence or forced radicalization should purport the same effects: it is a notion connected to mental capacity and having the ability to distinguish right from wrong and foresee the consequences of actions. In both cases, it is unlikely that children would comprehend the dimensions of political ideologies and an element of persuasion is thus necessary to influence their will.
Children present severe risk factors for radicalization and with the growth of social media and virtual platforms, these factors amplify as they can easily access information unsupervised. As for 2009, there were approximately 7000 terrorist websites available, many of them broadcasting youth specialized content such as cartoons and videogames that promote extremism and violence. Governments should thus pay increasing attention to cyber-terrorism and formulate counter-messages to discredit such groups and parents and guardians should be informed of the risks of unsupervised internet use by children. Increased education and psychological first aid should be a priority for developing countries facing terrorism, helping children to become resilient in the face of appealing harmful ideologies. Contributing factors to terrorist behavior are repression, anger and frustration and even personal traits. Thus, psychological intervention and corrective measures for children are essential for countering these emotions and reducing the root causes.
Given the gaps in the literature concerning children as perpetrators of terrorism, one of the main contributors to the advancement of their rights is the urgent need for research in this area. Establishing the root causes and contributing factors of voluntary adherence will help formulate an educative and effective response. Most importantly, States have to come together and make an effort for establishing a higher age for criminal responsibility, establish juvenile criminal systems and specialized detention facilities.
Moreover, practical steps towards rehabilitation rather than punishment have to be adopted internationally.
States that are actively involved in counter-terrorism operations have to understand the youth dimensions of their conflicts and the impact of criminalizing children. Even when children are perpetrators of violence, they are still victims of a faulted system that allowed corrupted ideologies to attain them and to gain the power to influence them.
Finally, international legislation related to the evolving nature of conflicts and specifically, terrorist organizations has to be enacted with a specific focus on vulnerable groups and children.