Child soldiers and the defence of duress under International Criminal Law

Abstract

Atrocities committed by children are frequently explained away by arguments of coercion: children are forced by commanders to participate in acts of extreme violence, threatened with brutal punishment if they fail to comply. Indeed, in the limited cases where children or former child soldiers have come before courts, duress has often been raised as a key defence. In my own research on child perpetrators of genocide in Rwanda,1 ‘irresistible constraint’, as it was worded in the Rwandan legislation, was frequently invoked by defendants; in the very first juvenile case before the Rwandan courts, the 16-year-old defendant argued that he had been forced to kill his four nephews to save his own life. His plea was accepted in part – as a mitigating factor rather than complete defence. Duress was one of the defences raised by Dominic Ongwen before the International Criminal Court. Whilst being prosecuted for crimes committed as an adult, Ongwen had been forcibly conscripted into the Lord’s Resistance Army in Uganda around the age of 9 or 10.2 And duress has played in important role in refugee exclusion proceedings, with child soldiers arguing that they were coerced into committing crimes when seeking to negate individual criminal responsibility as a ground for exclusion.