Cette recension nous est envoyée par Alice Debarre, qui est actuellement étudiante du double Master en Droit International de Sciences Po et Georgetown Law School. Diplômée en droit des Universités Paris I – Panthéon Sorbonne et King’s College London, elle prépare une carrière dans le domaine du droit international public.
Through its novel and innovative approach to the complex subject of child soldiers, Mark Drumbl’s Reimagining Child Soldiers in International Law and Policy challenges current conventional wisdom on the topic and proposes a new way to think about child soldiers that would better encapsulate the multidimensional aspect of this endemic problem. What Drumbl refers to as the international legal imagination (by which he means the advocacy positions of international civil society, global charities and the United Nations) has created the image of the child soldier as a faultless passive victim, which, despite certain advantages, such as discouraging criminal trials for child soldiers, does not adequately convey the social realities of child soldiering. This has influenced both international law and policy, resulting in the creation of a “legal fiction” which, according to Drumbl, fails to bring the appropriate solutions to end child soldiering. It is important to note here that Drumbl, while criticizing the faultless passive victim imagery, does not argue for a criminalization of child soldiers. Rather he devises a model of circumscribed action based on a spectrum or continuum which, far from endorsing or morally justifying the practice of child soldiering, endeavors to offer an approach better tailored to eradicate the practice altogether.
As he retraces the relevant laws and practices, in terms suited for a wide audience, Drumbl systematically offers his opinion as to their effectiveness and points towards their weaknesses. In my opinion the most interesting contribution, however, is the astute way in which he demonstrates how the faultless passive victim imagery has influenced much, if not all, of recent laws and practices, sometimes against the best interest of child soldiers around the world. This imagery suffuses the narrative as it is central to Drumbl’s argument to explain its shortcomings.
The reader is told that amongst the several existing images of the child soldier (the hero, the demon, the irreparable damaged good) it is the idea of a faultless passive victim that dominates the international discourse. The international legal imagination depicts children as lacking the necessary capacity to make their own choices and therefore as being the instruments of evil adult recruiters or users of child soldiers. They are, for example, incapable of choosing to volunteer in armed forces or armed groups or to commit acts of atrocity. By his extensive use of data, surveys and accounts, Drumbl presents a much more complex and nuanced image of the child soldier while at the same time discarding false but commonly held ideas conveyed by the international legal imagination. For example, most child soldiers are adolescents, and not small children. Many child soldiers neither fight nor carry a weapon, and only a minority commits acts of atrocity. Most child soldiers are neither abducted nor forcibly recruited. Although the faultless passive victim image helps “marshal resources and co-ordinate condemnation” as well as prevent atrocity trials of child soldiers, Drumbl convincingly argues that it is “unduly reductive”. The use of this idealized imagery neglects to distinguish between child soldiers with very different experiences and diverts focus away from transitional justice mechanisms which, according to Drumbl, would provide more individualized, and therefore more effective, solutions.
According to current international humanitarian law and international human rights law, the legal determination of childhood is based on a chronological approach. The emerging legal consensus in hard law instruments (e.g. the Rome Statute of the International Criminal Court 1998) is that a child is a person under 15 years of age. However, the pervasiveness of the faultless passive victim imagery has led to the emergence of the “Straight 18” position according to which children are people under the age of 18 and their military recruitment or use should be banned without exception. Either way, Drumbl is very critical of this “legal bright-line” approach and convincingly argues against it. Despite advantages of transparency and predictability, he believes this approach infantilizes, with negative consequences, children that are just below the age of 18 and is too harsh on very young adults. The treatments accorded to children and young adults are too different to hinge simply on a matter of age. Furthermore, the chronological approach does not take into account the very different perceptions of childhood that exist across societies.
On the question of association with armed forces or groups, the international legal imagination’s belief that children have no capacity and cannot exercise volition has started a trend in international humanitarian and human rights law towards treating voluntary and forcible recruitment as indistinguishable. For Drumbl, this oversimplification of the numerous reasons why children associate with armed forces and armed groups is problematic. Ignoring the fact that some children do exercise discretion in their choice to join armed forces or group, or later in the way they act, leads to inadequate post-conflict programming. It may also prevent post-conflict societies from seeing children as legitimate right-bearers (p. 95 Drumbl makes an interesting parallel with Kathryn Abrams’ work on the unanticipated consequences that arise when women are cast solely as victims of male aggression).
Another identified consequence of the faultless passive victim image is the general move towards excluding children soldiers (i.e. people under 18) from international criminal trials. The ICC has no jurisdiction over any person under 18 at the time of the alleged commission of a crime (article 26 of the Rome Statue), and although the Special Court for Sierra Leone has jurisdiction for people over 15 years of age, the chief prosecutor has announced that he would never prosecute children under 18. Although Drumbl agrees with this idea of abstaining from criminalizing child soldiers through atrocity trials, he believes that the current approach, of depicting child soldiers solely as victims and not perpetrators, restricts the use by international and domestic institutions of other policy approaches (reintegrative and rehabilitative justice mechanisms such as truth and reconciliation commissions). He sees current transitional justice mechanisms as being inadequate as they do not take into account the diversity of child soldiers and encourage immediate and unconditional forgiveness by the local communities. This both leads to reintegration problems for subgroups of children who have committed acts of atrocity as well as insufficiently recognizes those who have exercised discretion in order to resist cruel orders.
In the same vein, Drumbl is understandably doubtful about the real effects of the current central practice of prosecuting adult recruiters and users of child soldiers. He expresses his doubts as to the deterrent effect that these prosecutions are meant to have, and also points out that they do not deal with the problem of voluntary association with armed forces and groups (which is understandable given the pervasiveness of the faultless passive victim imagery).
By pinpointing the weaknesses of current law and practice caused (or at least influenced) by an idealized vision of the child soldier circulated by global civil society, Drumbl provides his lectors with a different and more realistic image of child soldiers giving us a different basis from which to consider the issues that surround this complex subject. His work, however, does not stop there. Reimagining Child Soldiers in International Law and Policy also develops a comprehensive model that hopes to reinvigorate debates and urges for reform; that of the circumscribed actor. As the book unfolds, Drumbl endeavors, rather successfully in my opinion, to explain the ways in which such a model could fill the gaps and correct the shortcomings of contemporary international law and policy.
Drumbl proposes to look at the child soldier as a circumscribed actor, which he defines as someone who has “the ability to act, the ability not to act, the ability to do otherwise than what he or she actually has done” but who is constrained in these abilities. Circumscribed action is a “spectrum or continuum that embraces the inherent diversity” of the child soldiers. This reflects the idea that children are not devoid of any agency, that even in the terrible situations they find themselves in, child soldiers can still exercise a measure of discretion. Using the words of a similarly minded author “they are constrained but not choiceless”. This new, more flexi ble, approach appears to deal in a very complete way with all of the aforementioned issues by taking into account the fact that as the title of chapter 3 indicates, child soldiering is ‘not so simple’.
First and foremost, rather than “categorical age demarcations”, the model of circumscribed action offers a more refined appreciation of the different stages of human development, thereby enabling us not only to distinguish between very young children and teenagers but also to relieve young adults of the excessive burden placed on them by current law and policy. It would take into account the context and culture of individuals in order to determine whether or not they have completed their transitions into adulthood. To assist us in this, Drumbl recommends the need for a more pluralized approach, drawing on ethnographic methods as well as consulting adolescent developmental psychology, sources generally overlooked by international lawyers.
Using the model of circumscribed action would lead to a more individualized, particularized, approach to child soldiers. Looking into each of their stories (where they come from, how they became associated with armed forces and groups, how they acted during the conflict) and understanding their individual motivations becomes the means to provide them with the best and most effective reinsertion and reintegration solutions. This is crucial for certain subgroups of child soldiers, namely the ones that have committed acts of atrocity (there is a need to distinguish between those who are devoid of any responsibility and those who in fact exercised considerable discretion). As in his earlier book, Atrocity, Punishment and International Law, Drumbl encourages a broader, more “polycentric”, vision of justice leading away from international criminal prosecutions towards more diverse justice mechanisms as well as “more targeted and culturally grounded interventions”, necessary to enable child soldiers to reintegrate their communities but also to help members of these communities and the victims of the child soldier’s acts. It would also help allocate responsibility among the ‘individual, state, organizational, commercial, and institutional’ actors involved.
Some of the choices the author makes constitute self-recognized limits to his extensive work. His decision to base his arguments on a multiple array of exterior sources necessarily entails that the book does not generate new data. His argument according to which such an approach enables his book to “energize a discussion at a cross-national, interdisciplinary and ‘big picture’ panoptic level” makes sense. I agree that in an exercise of rethinking the subject of child soldiers, the focus be more on the arguments and ideas. Furthermore the use of existing data and resources is interesting as it shows in itself the necessity of a reform, without Drumbl having to incorporate new data to reinforce his arguments.
Drumbl also admits to a focus on atrocity-producing conflicts, thereby drawing mostly, throughout the book, on events in Africa. He justifies this by the fact that transnational narratives, when responding to Africa, often “sensationalize and objectify through intemperate depictions, distorted lenses, and paternalistic hues”. Nonetheless it seems too bad that considering his ‘big picture’ objective, his focus, as he acknowledges, rests on only 40% of the world’s child soldier population.
Finally, in the end, Drumbl reminds us that the book does not arrive at a scientific conclusion; it “forwards a hypothesis” which we should take seriously.
At different points in the book Drumbl identifies doubts regarding his arguments, to which he systematically and quite convincingly responds. What I found the most striking was the response to one of my own doubts, namely the expenses that his suggested reforms would entail, that the price of a single defendant’s criminal trial is as high as tens of millions of dollars (whereas other transitional justice mechanism cost much less). Against the “fear of retributive creep”, meaning the fear that child soldiers may become subject to harsh punishments, Drumbl puts forward a qualified deference test that grants national and local transitional justice measures a presumption of deference, qualified by six guidelines elaborated to protect child soldiers. Although not all will agree with every idea that Drumbl puts forward, the way this book unveils fascinating and little known aspects of child soldiering, accepting to view child soldiers in their dual role as both perpetrators and victims, will most certainly prompt debate therefore realizing Drumbl’s goal of reenergizing international discussion on the subject.
 Kathryn Abrams, Sex Wars Redux : Agency and Coercion in Feminist Legal Theory, 95 Colum. L. Rev. 304, 304 (1995)