Malala, Lubanga, and the Universal Right to Childhood

By Anna Richardson of The Morningside Post

Last week Malala Yousufzai, a fourteen-year-old schoolgirl living in the Swat Valley region of northwest Pakistan, was shot in the head by Taliban gunmen on her way home from school.

Malala gained recognition worldwide in 2009 after the BBC published excerpts of her diary about life as a schoolgirl under Taliban rule. Her shooting was universally condemned as an act of supreme cowardice.

It is not only the Taliban who refuse to recognize the rights of children in war zones -- just last month, Malala's home country, Pakistan (along with Russia, China and Azerbaijan) abstained from the annual UN Security Council resolution condemning violations of international law committed against children.

The abstention of these four members signaled not only a break from protocol, but also a backslide in international determination to protect children in conflict. Despite being the subject of seven Security Council resolutions in the past decade, the plight of children in conflict zones continues to be under-recognized and under-addressed by the international community.

In theory, the international legal canon provides these children with ample protection. In 2004, six crimes against children in conflict zones were formally recognized by the United Nations Security Council: abduction by armed groups; enlistment as fighters; rape and other sexual violence; injury or death; attacks on schools; and the denial of humanitarian aid. The prosecution of these crimes is grounded in major human rights treaties.

The UN Special Representative for Children in Armed Conflict has trumpeted the fact that abuses committed against children have been central to a number of precedent-setting cases in international law over the past year. However, these rulings are not necessarily indicative of great progress.

In April Charles Taylor of Liberia was convicted by the Special Court for Sierra Leone for, amongst other crimes, providing support to rebel groups in Sierra Leone who he knew to enlist children as young as seven into their ranks. Soon after, the International Criminal Court (ICC) handed down its first sentence to Thomas Lubanga, a warlord from the Democratic Republic of the Congo (DRC). He was sentenced to fourteen years for the crime of recruiting child soldiers in his home country.

Was Lubanga's prosecution a clear signal by the international community that crimes against children in war zones will be punished? Or was it just a calculated move by an under-performing ICC?

Those familiar with the Rome Statute will know that the court's jurisdiction depends on the inability or unwillingness of the defendant's home country to prosecute the case. When the ICC issued its warrant for Lubanga in 2006, the former leader of the Patriotic Forces for the Liberation of Congo was awaiting trial in the DRC on charges of genocide and crimes against humanity. This implies that his home country was indeed willing and able to bring him to trial. The courts in the DRC had not, however, charged the former warlord with the international crime of recruiting of child soldiers. The ICC's prosecutor was thus able to reel him in to the Hague on a technicality, an action described by international human rights lawyer William Schabas as an "artificial and mechanistic application of the Statute."

The ICC's first successful prosecution might be seen, therefore, as an expedient move to mollify a cynical public and weary donors, rather than an attempt to bring crimes against children to the top of the court's agenda. Moreover, it is questionable whether this will deter others from abusing children. Lubanga, who has already served 6 years awaiting trial, might be eligible for early release after completing two thirds of his sentence. Thus, he will probably be free in 2016.

Judges at international tribunals, including the ICTY, ICTR and ICC, have consistently rejected the idea that there is any hierarchy of crimes -- recruitment of child soldiers, defined by the Rome Statute as a war crime, is theoretically as grave as genocide. It seems unlikely, however, that an individual convicted of genocide would have received such a lenient sentence, implying that the court and, by default, the international legal community, is not taking child-specific crimes as seriously as it might.

Children in Pakistan, the DRC, Somalia, and Colombia deserve the right to grow up free from the threat of violence. The Security Council and the International Criminal Court have both shown a lack of determination to treat crimes against children with the gravity that their mandates demand. We need such actors to make a concerted and sustained effort to implement international law and punish those who commit crimes against children.

Without that resolve, children like Malala in Pakistan and Lubanga's recruits in the DRC will continue to be denied the protections they deserve under international law.

testPromoTitleReplace testPromoDekReplace Join HuffPost Today! No thanks.