Prosecuting child soldiers in the arab world: between the state, society, and retributive and restorative justice

ABSTRACT

The phenomenon of child soldiers in the Arab World could threaten peace and stability in the post-conflict phase. Many of these children committed crimes against their society such that some communities reject them and demand their prosecution, with no real attention from both the political and the academic level, consequently, child soldiers are treated as criminals. This article, based on 16 interviews with academic and legal experts between 2020–2021, aims to analyzes and present how restorative justice can be used as an alternative approach to retributive justice in addressing child soldiers’ criminal responsibility. The findings show that restorative justice can address child soldiers’ responsibility in a way that ensures restore their relationships with their community and reintegrate them without stigmatization.

KEYWORDS:

• Child soldiers
• restorative justice
• child criminal liability
• retributive justice
• sulh

1. Introduction

The term ‘child soldier’ was defined by the 2007 Paris Principle, in reference to children who are associated with an armed force or armed group, as ‘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.’

With the Arab Spring uprisings of 2011, the number of child soldiers in the region rose as they were used in different ways in countries like Iraq, Syria, Yemen, Libya, and Sudan to eventually become one of the most important issues facing the Arab Spring countries in their post-conflict experiences.

Many of the roles child soldiers take on are related to direct participation in hostilities, which results in child soldiers committing crimes against communities in violation of human rights (Mousa 2020; Subhan 2020). These crimes create a huge gap between the children and their communities, many of which consider them criminals and either reject the children’s’ reentry into society or even demand they be isolated and locked away from the community. Additionally, Arab governments have not formulated a specific plan for child soldiers, leading these states to use the criminal justice system to prosecute them for their actions and crimes (Mousa 2020; Subhan 2020; Al-Zain, 2020).

In the Arab world, most of the literature on child soldiers, whether emerging from international NGOs as with annual UN, Human Rights Watch, and Amnesty International reports on children in armed conflict, or from scholars like Sommerfelt and Taylor (2015), Reich and Achvarina (2006), Benotman and Malik (2016), Saleh (2013), Amusan (2013), has focused on recruitment reasons and methods, as well as the use of Demobilization, Disarmament, and Reintegration (DDR) programs.

Ergo, the literature seldom sheds light on addressing child soldiers’ criminal responsibility and restoring their relationships with their communities through an integrated process that guarantees the participation of all parties. These damaged relationships require more than what retributive justice can provide. A mechanism such as restorative justice, therefore, can be a more effective approach in reaching these objectives.

Restorative justice is a traditional way to resolve criminality within communities. The literature focuses mainly on its use in dealing with crimes generally, in times of peace and war, whether the perpetrator is an adult or a child, without much by way of previous scholarship on working with child soldiers, especially in the Arab world. As a result, this article aims to focus on dealing with child soldiers by using restorative justice as a means to restore these damaged relationships and to resolve child soldiers’ responsibility for the crimes they have committed within Arab states.

The article’s methodology is based on an analysis of the previous literature and of a series of interviews with specialists and experts on the issue of child soldiers and in the field of restorative justice.

The main argument in this article is that the way Arab governments have dealt with child soldiers in the Arab Spring countries generally and in Iraq and Yemen particularly through retributive justice is not capable of resolving the issue of child soldiers’ criminal responsibility. Consequently, restorative justice may present an alternative approach that can address child soldiers’ criminal liability, assess and heal the victims’ pain, and help restore the children’s relationships with the victims and the communities.

2. The problem of child soldiers

When children are present in military forces, whether governmental or non-governmental, they become obligated to participate in the hostilities. As a result, many of them commit different types of crimes such as killing and looting which adversely impact the surrounding communities (Drumbl, 2012).

In the Arab Spring countries, children were a big part of the hostilities and many of them committed what may be labeled as war crimes, crimes against humanity, or crimes under national law. For instance, many of the children recruited by ISIS were used in different roles like spies and guards (Sommerfelt & Taylor, 2015). However, they were also used as executioners; some of them used to help adults in the executions, while others performed the act themselves (Almohammad, 2018; Secretary-General, 2018). Through its media platforms, ISIS showed many videos of children executing prisoners, including one depicting 25 children shooting Syrian regime soldiers directly in the head. In other videos ISIS depicted children slaughtering their prisoners (Benotman & Malik, 2016). In Yemen, many children were recruited by government forces or the Houthis and participated actively in the hostilities, some manning checkpoints and others planting mines. Additionally, the UN report shows that children participated in attacks against the cities of Al-Hudaydah and Al-Dureheme (The expert group, 2014). In Libya, Berber children who fought alongside the National Transitional Council have been cast out; as a result, many of them have joined jihadist groups or used their weapons to survive (Amusan, 2013).

Many reasons lead children to join armed groups and participate actively in the hostilities, including poverty and insecurity, pushing them to commit various crimes against their societies. Consequently, the relationships between these children and their communities are affected negatively and, in many cases, strongly damaged (Bloom & Beah, 2017; Muhammadi, 2020).

As a result, many communities demand these children be prosecuted before criminal courts. There are two approaches in considering the criminal responsibility of child soldiers. The first demands they be treated as victims and, hence, not be prosecuted, while the second approach looks at each case individually, meaning that child soldiers in some cases can be prosecuted for their actions.

In Iraq, children who were affiliated with ISIS were rejected from their communities, who in many cases refused to allow these children to reenter society. They are viewed with fear, suspicion, and hatred. For these communities, as in many localities throughout Iraq, child soldiers are monsters who deserve nothing other than prison and isolation (Mousa 2020; Al-Ardawe, 2020; Subhan 2020).

Notwithstanding, in many places, child soldiers are seen as less dangerous. In Yemen, for instance, views on child soldiers vary. In some places, these children are thought to bring stigmatization upon their families; in others, child soldiers may be seen as heroes (Al-Maliki, 2020; The expert group, 2014).

In other contexts, child soldiers in Sudan do not face rejection or discrimination; rather, some of them have been welcomed as heroes and as a source of pride and income for their tribes and families (Al-Zain, 2020). However, what must be noticed is that even in cases where smaller societies have accepted former child soldiers, other communities may not share this view. In the end, these children have committed crimes against various elements of society (Bloom & Beah, 2017).

Arab states face multiple problems that reflect their approaches to the issue of child soldiers. Most countries, including Syria, Iraq, Sudan, and Yemen, do not have any Disarmament, Demobilization and Reintegration programs (Al-Ardawe, 2020; Al-Maliki, 2020; Al-Zain, 2020). This situation leaves the governments with one solution: prosecution via criminal law and the court system.

Ergo, child soldiers are being arrested instead of rehabilitated and reintegrated. As reported by the UN Secretary-General in (Secretary-General, 2018), 902 Iraqi children were in detention on national security charges in relation to their affiliation with armed groups like ISIS. In Lebanon, 20 children were arrested and another 16 held in detention; most face prosecution before military court. In Somalia, almost 375 children were imprisoned by the Somali National Army and other armed groups (Secretary-General, 2019).

The prosecution of child soldiers in criminal courts remains a controversial topic. Internationally, the Convention on the Rights of the Child does not specify an age for criminal responsibility and leaves the matter to national legislatures (Kabano, 2016); furthermore, the International Criminal Court has unambiguously declared that children are not subject to the personal jurisdiction of the Court, pursuant to article 26 of the Rome Statute.

This question is dominated by two main approaches. The first one sees child soldiers as victims, therefore calls for replacing their prosecution with rehabilitation and reintegration programs (Grossman, 2007; Quénivet, 2017; Steinl, 2017). This approach argues that child soldiers do not have the criminal culpability based on the presence of prior intent to commit the act, and knowledge of its illegality (Kabano, 2016; Nobert, 2011); moreover, many of the crimes were committed under coercive pressure (Baines, 2009; Steinl, 2017).

The second approach, conversely, accepts the possibility of prosecuting child soldiers in specific cases while taking the surrounding circumstances into consideration (Amnesty, 2000; Drumbl, 2012; Ursini, 2015). This is because there are some cases where child soldiers join armed groups voluntarily and commit atrocities under no coercion, with full conscious control over their actions (Amnesty, 2000; Ursini, 2015).

However, seeking criminal justice is not the most suitable resolution for child soldiers. Criminal justice aims in the first place to accomplish both general and specific deterrence, to prevent future criminal acts by way of punishment administered by the state (Quénivet, 2017). The particularity of child soldiers, in any event, requires a different approach.

In the first place, the phenomenon itself came into existence during an abnormal situation of conflict where the entire community is participating in violence. In this situation, the society responsible for protecting and guarding these children has become the very source of the danger that threatens them. Members of the community involved in parties, political groups, armed groups, and even families and tribes are the ones who recruit children into militias and who compel them to participate in the hostilities. Resolving the phenomenon of child soldiers, as a result, requires intervention from within the community itself. In his study, Kiyala identifies society to be the foremost party responsible for rehabilitating and reintegrating former child soldiers. He writes that ‘society is responsible for the involvement of children in armed conflict because adults, parents, leaders, governments, and local authorities deceive young people and children. They fail to provide for their needs, leaving them without a choice but to become soldiers’ (Kiyala, 2019, p. 232). In his argument, Baines observes that, in the absence of the state, wars become an especially dangerous environment for children (Baines, 2009).

Affected communities, therefore, need to take responsibility for the atrocities children committed in times of conflict. Instead of rejecting, stigmatizing, and discarding these children for something they did while under the watch of their communities, there ought to be a path toward forgiveness and reacceptance into society. Instead of prosecution, punishment, and incarceration in the absence of real rehabilitation and reintegration, there ought to be a new way to help restore their relationship with their communities.

For instance, the interviews showed that child soldiers who were affiliated with ISIS in Iraq were kept in prison under criminal or counterterrorism law. However, these prisons or isolation camps were unable to help rehabilitate these children or provide them with a reintegration program to prepare them for life after prison of any kind (Mousa 2020; Mousa 2020; Al-Ardawe, 2020; Muhammadi, 2020).

To achieve that, a new approach to justice must come into effect in dealing with child soldiers, an approach taking into fundamental consideration not only the interest of one party, but the interest of the community as a collective, inclusive of both child soldiers and victims.

The prosecution of child soldiers, in the opinion of Aptel, should be replaced with restorative justice approaches that ‘promote diversion, mediation, truth-telling and reconciliation’ (Aptel, 2010, p. 20). Additionally, Grossman believes that rehabilitation and reintegration should take place before criminal prosecution (Grossman, 2007), taking into account the principle of child’s best interest that the UN Convention on the Rights of the Child adopted in article 3.

The focal point we argue is that holding child soldiers responsible for their actions does not entail that they be prosecuted in front of criminal courts. Taking responsibility is the first step in the process of rehabilitation, reintegration, and subsequently reconciliation with their communities.

Arab states need to adopt a new approach to the problem of child soldiers. Even if child soldiers are prosecuted in criminal courts, this does not mean they will be able to restore their relationships with their communities. Spending years in prison will benefit neither the children nor the community; on the contrary, it will reinforce the gap between the two parties (Subhan 2020; Al-Ase, 2020; Muhammadi, 2020). In these conditions, restorative justice can be the most suitable approach for all parties since its foremost objective is to restore the relationships between the conflict parties.

3. Restorative justice in theory and practice in the Arab World

Restorative justice is a method used to resolve conflicts between parties to a crime (the victim, the offender, and community) themselves as the original owners of the conflict (Christie, 1977). Unlike retributive justice, which depends on punishment stated by law and applied by the state to perpetrators to achieve deterrence and justice, restorative justice depends on communication between victims, perpetrators, and communities to heal the pain and restore relationships (Sawatsky, 2007).

3.1 Restorative justice definition

Restorative justice lacks a single definition. Zehr sees crime as a violation of people’s relationships, not laws, which presupposes the involvement of all parties in the process to not only punish the offender but also to address and heal the victims’ pain, repair the harm caused by the crime, and reintegrate the offender (Takagi & Shank, 2004). Similarly, Marshall sees restorative justice as a process by which all affected parties attempt to repair the harm and heal the pain caused by the crime (1999).

In contrast to Zehr and Marshall, Walgrave focus in his definition on the outcomes of restorative justice, namely achieving justice by repairing the harm caused by the crime and without focus on the parties’ participation (Walgrave 2001).

Braithwaite sees restorative justice to transform the whole legal system (Braithwaite, 2003) and as a fight against injustice in society by using all the methods parties to the crime deem suitable (Crawford & Newburn, 2003). For him, restorative justice should bring all the parties together in a nominated and democratic environment, regardless of the form it takes, where all stakeholders have the right to speak their opinion and listen to each other. He argues that the presence of this environment will assist in reaching deeper values like forgiveness and reconciliation (Braithwaite, 2002).

Based on the literature and the rational arguments, this research sees that restorative justice cannot be restricted to a specific method or process; rather, it can adapt to any form if it aims to work with all the affected parties – the offender, the victim, and the community – to address the offender’s responsibility and heal the victim’s pain, leading in turn to restoring relationships between the parties.

3.2 Restorative justice parties and participation

When a crime occurs, it affects not only the victim and the offender but the surrounding community as well. Hence, it becomes necessary for all the affected parties to participate in the process in response to the crime, as contended by Marshall, Braithwaite, and Susan Sharp (Van, 2001; Marshall 1999; Braithwaite, 2002). The atmosphere of the process, as a result, needs to be comfortable to help the parties participate effectively, encourage them to listen and speak to each other, and help them express their thoughts and feelings about the crime and its effects (Braithwaite, 2002; Crawford & Newburn, 2003; Van, 2001).

The importance of all the parties cooperating in the process lies in that the crime itself is an act of concern to all of them. Therefore, success means that the offenders should participate to admit their responsibility; the victims should join to address their pain and the harm done to them; and the community should take a role in resolving the conflict from its root causes and preventing the action from repeating itself.

Furthermore, excluding one party will bring the process back to square one, in that the state leads the criminal justice system against the offender without any participation by the other two parties.

The participation of all parties is still controversial among scholars. Marshall sees the importance of the participation of all parties to achieve relationship’s healing and restoring, hence, does not consider practices that exclude one party as a restorative practice (Marshall 1999). Walgrave, conversely, suggests the possibility of the perpetrator’s absence without affecting the process based on the idea that restorative justice focuses on healing the victim, not on the perpetrator.

In the case of child soldiers, all parties need to participate. The main aim is not only healing and repairing the harm caused for the victim, but also restoring relationships between the children, the communities, and the victims. Consequently, the participation of all parties is a cornerstone in reaching these results and the absence of one may diminish the ability to achieve these goals, leading to a return to retributive justice, which excludes the participation of the victim and society.

Consequently, it is important that all parties participate voluntarily, as argued by Marshall (1999). Voluntary participation derives its strength from the parties’ willingness to take a role in the process as a reflection of their obligation to fulfil the outcomes later. However, some scholars see compulsory participation as an option that can be applied in some cases. Walgrave argues that voluntary participation can make the process more effective but does not render coercion an impossible option; in some situations, coercion is needed without detracting from the merits of restorative justice.

In some cases, voluntary participation may be difficult to achieve, especially in the aftermath of widespread atrocities. In cases like Iraq and Syria after the defeat of ISIS, many communities refused to be involved in any sort of reconciliation with ISIS families. In this situation, the tribes had to intervene to encourage people to take part in the process. Although many people disagreed with the principle, they eventually participated for the collective interest.

3.3 Punishment in restorative justice

The objectives of restorative justice are to heal pain and restore relationships. These outcomes may come as any form of restoration such as an apology, paying compensation, community work, or coming to a written agreement signed by all parties at the end of the process. Mostly it depends on the victims’ needs, the nature of the crime, and the proportionality between the crimes and the resultant harm. Some of these outcomes can be unpleasant and painful for the offender, which makes it seem like a form of punishment, regardless of their voluntary participation and acceptance of the process and its outcomes (Duff, 2003; Walgrave 2001).

Both Duff and Daly see that imposing unpleasant coercive sanctions as part of the restorative justice process may turn it into another type of retributive justice (Duff, 2003; Walgrave 2001). Walgrave argues instead that the core point in punishment is to apply it with the punisher’s intention to impose pain or cause the offender to suffer. Therefore, if the obligations of restorative justice outcomes do not contain these elements, they cannot be considered forms of punishments (Dignan, 2003).

Contrary to the aims of retributive justice, the spirit of restorative justice extends beyond the state punishing the offender. When dealing with child soldiers, the idea of compensation is viewed as part of the restoration process because the children need to take responsibility for their actions. However, the nature of the compensation must be decided by the community and the child soldiers themselves for it to be helpful in the restoration process and in engaging children with their communities. Otherwise, keeping children in jail without real restoration within the community will not resolve the problem because they will always be seen as criminals.

3.4 Al-Sulh as restorative justice practice in the Arab World

Restorative justice builds upon the idea of parties working together to resolve conflicts. In this light, al-Sulh is a traditional method that aims to resolve disputes between victims and perpetrators to reach an agreement that protects the interests of both parties. It mainly depends on the intervention of sheikhs who have good reputations for being independent and impartial and hold the confidence of society to lead the processes between parties in conflict (Al-Ramahi, 2008; Asfura-Heim, 2014; Bobesine, 2019; Safa, 2007).

Inside al-Sulh process, aimed to resolve conflicts and protect the collective interest, all the parties need to be part of the resolution process: the perpetrators, the victims, and the communities. Although customs and norms regulate the amount and method of compensation that each crime deserves, the victims have a great role in determining and presenting their demands to guarantee their right to the offender and community addressing and healing their pain (Asfura-Heim, 2014; Bobesine, 2019).

When looking into the objectives of Sulh, there are three main goals that reflect the objectives of restorative justice:

1. Protecting the cohesion and dignity of tribe and community.

Tribes can be described as the outcome of people who have united. Therefore, protecting the individual interest means conserving the collective interest: that is, maintaining tribes’ solidarity and unity. One of the most important manifestations of this goal is paying the compensation, usually collected from all the tribe’s members as a reflection of their solidarity (Asfura-Heim, 2014; Bobesine, 2019).

1. Healing the victim’s pain and restoring their honor.

The center of attention for restorative justice is healing the victims’ pain and suffering. As a result, the focus is not on the type of punishment that should be imposed on offenders but instead on the type of procedures to be conducted to heal the victims’ pain, whether psychological or physical.

In this context, the main aim of Al-Sulh is to repair the harm caused by the crime, usually by paying compensation in an amount of money determined according to the nature of the crime. The compensation also could be moral like an apology or a public spectacle, for example, to restore the victim’s honor (Al-Dawsari, 2012; Bobesine, 2019; Carroll, 2011).

1. Restoring the relationships between the victim, the offender, and their family.

Crime affects relationships between people. It may, for instance, elicit a desire for vengeance between the offender and the victim, or push the community to reject and stigmatize the offender. This can lead to a series of crimes and assaults inside the community. Given this, restorative justice aims to restore relationships among the crime parties.

Sulh may begin in an early phase of the conflict to stop any kind of escalation and prevent further harm from being caused between the parties. In this respect, Sulh’s goal is to keep the victim’s and offender’s families from being hurt through reprisals and, therefore, to keep an open line of communication between them to sit together and discuss the crime, the harm, and how to restore their relationships and move forward (Al-Najjar & Issa, 2018; Al-Ramahi, 2008).

There is no single style for how Sulh ought to proceed. Measures taken may vary on the level of countries, cities, or villages; nonetheless, they are all similar in guaranteeing the participation of all parties, with its goal of resolving conflict, addressing the victims’ pain, and restoring relations between the offender and the society.

In various Arab cultures such as in Yemen, Iraq, Libya, and Sudan, the conflict resolution process starts early to prevent violent escalation between the parties through the intervention of the tribe’s Sheikhs who have the trust of their community and are known to be impartial. During the process, under the tribe’s customs and traditions, tools like Wasata (mediation) and Mofawadat (negotiation) may be used to reach the final agreement, including compensations, to be put in writing and made official (Al-Najjar & Issa, 2018; Asfura-Heim, 2014; Elmangoush, 2015; Mohamed, 2016; Wahab, 2017).

The Sheikhs have an important role in the process. They seek to halt any sort of escalation and, hence, to prevent any further criminal conduct or harm, protecting the safety and stability of the community. They also work on investigating the crime, reviewing the evidence, delivering the parties’ demands to each other to find common ground, facilitating the final agreement between them, specifying the nature of compensation and the amount to be paid (Al-Dawsari, 2012; Al-Ramahi, 2008; Bobesine, 2019; Carroll, 2011; Mohamed, 2016; Özçelik, 2006-2007).

The compulsory nature of Al-Sulh’s implementation comes from the tribe’s ties. To begin with, the authority and position of the Sheikh among the tribes is very important. The respect people have for their Sheikh is what motivates conflict parties to accept, respect, and implement the agreed-upon decision (Al-Ramahi, 2008; Carroll, 2011). Another factor is that disrespecting the Sheikh’s verdict can have its consequences; it can deprive the dissenting party of the tribe’s protection and strip them of their self-respect in the tribal community, leading them to lose their position, allies, honor, and dignity (Carroll, 2011; Mohamed, 2016).

Even though Sulh is a customary practice, many Arab legislatures have brought it back into use in criminal law to help mitigate pressure on the courts. This makes it a familiar practice within the formal system.

For specific crimes as named by these legislatures, the victim and the offender may agree to resolve their quarrel using Sulh in misdemeanor and infraction. This results in the courts only looking into public rights, as stated in article 194–198 of the Iraqi Criminal Procedures Law No. (23) of 1971; article 18 of the Egyptian Criminal Procedures Law No (150) of 1950; and article 36 of the Sudanese Criminal Procedures Law of 1991.

Although Sulh is not new to Arab legal systems, it has not yet been implemented in the case of child soldiers. The interviews demonstrate that combatants, including child soldiers, who were affiliated with armed groups in Iraq, Yemen, Syria, Libya, and Sudan are prosecuted according to counterterrorism and criminal law. In both legal areas, the crimes they committed are considered felony offenses, where Sulh is not used.¹

In addition to that, many Arab juvenile laws like the Jordanian Juvenile Law No (32) of 2014, the Palestinian Juvenile Law No (4) of 2016, and the Tunisian Juvenile Law No (92) of 1995 use restorative practices like mediation and settlement to work with juveniles in both misdemeanor and infraction.

Hence, it is possible to draft special laws for child soldiers based on Sulh to deal with the crimes they committed following their recruitment while taking into consideration not the security needs and counterterrorism agenda of the state, but rather the children’s well-being and the community’s need for peace and stability. Based on the literature and the interviews, in this study we argue that the way Arab governments, in the Arab Spring countries generally and in Iraq and Yemen particularly, have handled child soldiers through retributive justice is not capable of resolving the issue of child soldiers’ criminal responsibility nor the restoration of their relationship with their communities.

Consequently, we argue that restorative justice through Al-Sulh may offer an alternative model to work with child soldiers in a way that not only ensures the protection of the children and their rights, but also creates the opportunity to repair damaged relationships between the children and their victims, thereby aiding in restoring their relationships with the community. This can result in their reintegration and breaking the cycle of violence in which, these children are being used as tools of conflict.

4. Methodology

To understand the depth of the dilemma caused by the phenomenon of child soldiers and the solution proposed to resolve the issue and its side effects in Arab Spring countries, the practical section of this study focuses mainly on a case study of Iraq and Yemen to analyze how restorative justice can be used with child soldiers in these two countries.

16 interviews were held between 2020 and early 2021, over the phone or via Zoom. Each interview lasted from one to two hours and was transcribed at the same time. The criteria for selecting the interviewees vary according to location and specialty, forming two groups of interviews.

The first group focuses on the locale, including experts and specialists on the issue of child soldiers, human rights, rehabilitating ex-combatants, and local conflict resolution methods in both Iraq and Yemen, especially given the high number of children recruited by armed groups like ISIS and the Houthis.

In this group, 12 interviews were held. Seven of the interviewees were from Iraq:

1. Khaled Al-Ardrawe from Karbala University.

2. Salah Al-Oraibi from the University of Kirkuk.

3. Hazem Mousa from the University of Mosul.

4. Khairallah Subhan from the University of Mosul, two interviews were held.

5. Izz al-Din Muhammadi from the Human Thought Foundation.

6. Sheikh Raad Al-Ase, one of the Al-Abedd tribe sheikhs.

7. Hayder Saeed, a researcher at the Arab Center for Research and Policy Studies

Three of the interviewees were from Yemen:

1. Ahmad Al-Ghafri, a social activist.

2. Jamal Al-Maliki, a researcher and film producer for the Al-Jazeera Media Network.

3. Ahmad Nagi, a nonresident scholar at the Carnegie Middle East Center.

One interviewee was from Sudan:

1. Salah Al-Den Al-Zain, Director of Al Jazeera Center for Studies.

The second group focuses on the specialization; interviewees were chosen based on their relation to the topic of restorative justice in both Arab and international contexts. This group contains four interviews:

1. Diab Al-Badayneh, founder of Ibn Khaldun Center for Research and Studies.

2. Aref Alkhattar from the University of Pennsylvania.

3. Mohammad Bani-Taha, a judge in the Supreme Judicial Council, Jordan.

4. Ram Tiwari, a restorative justice Practitioner and consultant.

Throughout the interviews, most questions asked revolved around the reality of the child soldier phenomenon in both Iraq and Yemen and how the state and the community are working with them.

At the start of the interview, the core questions were:

1. How widespread is the phenomenon of child soldiers in the country?

2. How are they dealt with after putting down their weapons?

3. How does society view them? Is there acceptance or rejection?

4. How does the state treat them?

5. Are there programs to rehabilitate them and integrate them into society?

6. What is the role of non-governmental institutions in this field?

In addition to the core questions, the interviewees were given the freedom to speak about the issues and the experiences they went through during their work, whether in the field or in the academic world. This allowed interviewees to go more in-depth in their opinions and analyses of the situation and gave the interview a more realistic dimension.

What follows focuses on analyzing the content of the interviews and the experience of the interviewees in their engagement with child soldiers and juveniles.

5. Discussion and results

5.1 Retributive justice as the current model

Many Arab countries utilize the criminal justice system as a method to deal with child soldiers, meaning that child soldiers are being arrested instead of rehabilitated and reintegrated as we present in the second section.

However, the interviews show that neither keeping child soldiers in jail without trial nor prosecuting them as criminals under criminal law will help to bring the community and the victims the justice they demand or rehabilitate and reintegrate the children into the community.

On the other hand, children will return to the use of violence to survive, and they will constitute fertile ground for extremism and become a renewed resource to future armed and extremist groups (Al-Ardawe, 2020; Tiwari, 2020). Many children in Yemen have kept their weapons and used them to protect themselves, raising the level of danger they encounter in daily life and leaving them to be labelled as criminals and combatants willing to join armed groups or criminal gangs to survive (Al-Ghafri, 2020; Nagi, 2020).

‘The failure in dealing with ISIS child soldiers,’ as Izz al-Din Muhammadi stated in his interview, ‘may present an opportunity for the next fighters’ generation.’ Moreover, when children are rejected from the community and left without any opportunity for rehabilitation and reintegration, their only choice will be to keep their weapons and continue fighting with armed groups, which may lead to a new ISIS Al-Oraibi 2020; Subhan 2020; Mousa 2020). In contrast, Sheikh Raad Al-Ase stated in his interview that ‘there is a need to fix the extreme way of thinking inside child soldiers camps, otherwise there is a big chance for ISIS to rise as a result of their hatred toward [certain] communities.’

5.2 Restorative justice as an alternative model

Restorative justice is a method in conflict resolution based on traditions and customs, wherein all parties to the crime participate voluntarily in the process. It intends for perpetrators to admit their responsibility for the wrongdoing they committed; to address the pain inflicted on the victim because of the crime; and to restore the damaged relations between parties involved, in a way that ensures achieving justice without excluding one party at the expense of another.

The interviews show that using the restorative justice method in working with child soldiers in the Arab world has the potential to help both child soldiers and the communities.

5.2.1 Sulh to work with child soldiers

Sulh is a restorative practice used to resolve conflicts through the participation of all parties, with the aim of achieving justice, relieving the victim’s pain, restoring the relationship between the victim and the perpetrator, and ensuring the perpetrator’s reintegration into society.

Based on the previous literature and the interviews, Sulh may present a more effective way to work with child soldiers for several reasons.

First, Sulh’s main goal is to build peace and stability within society and to individuals. In this regard, it helps to restore relations between child soldiers and victims by addressing the victims’ pain and offering an admission of responsibility for the crime committed against them. This will help the victims to accept the children and encourage them to forgive and allow them to reenter society (Al-Ase, 2020; Al-Najjar & Issa, 2018; Al-Ramahi, 2008).

Second, Sulh involves the participation of all conflict parties in the process. Hence, child soldiers will be able to play a positive role in the process instead of being confined to the role of the respondent within retributive justice. As a result, child soldiers will have an opportunity to talk about what they went through during their recruitment, the reasons that led them to commit crimes, and their fears and hopes for the future (Al-Oraibi 2020; Subhan 2020; Mousa 2020).

Third, Sulh does not necessarily mean forgiving the perpetrator without any accountability. It includes a mechanism for compensation that aims to repair the harm suffered by the victim. Although compensation is usually paid as a sum of money, it may have an additional ethical aspect. By using the general principles on which Sulh is based, especially the principle of collective responsibility, it is possible for the whole tribe to cooperate and pay compensation for the crimes committed by child soldiers. In this respect, the role that the tribal Sheikhs play contributes to determining the type and nature of compensation that would redress the victims’ pain and urge the child soldiers involved to bear some consequences in proportion to their age and status to reinforce the sense of responsibility they feel for the actions they committed (Al-Ase, 2020; Al-Dawsari, 2012; Bobesine, 2019; Carroll, 2011).

5.2.2 Tribes role in using Sulh

In light of the weak state in Iraq and Sudan and the ongoing war in Yemen, most of the interviewees emphasized the major role to be played by tribes in working with ex-child soldiers using Al-Sulh.

In all these countries, tribes have great leverage and the ability to affect both their communities and the decision-making of the government (Subhan 2020; Al-Ardawe, 2020). In these contexts, tribes grew stronger, and their roles came to be in high demand and with greater impact upon different aspects of life. Due to the absence of the state, in some places tribes had to take responsibility instead and govern their territories to ensure security and stability, using various methods in conflict resolution such as mediation and arbitration.

For tribes, child soldiers are their children who took up arms either voluntarily to defend the tribe, as in Sudan and Yemen, or by coercion, as in Iraq and Syria. In either case, it is hard for tribes to abandon these children; in these situations, blood bonds and extended family ties amongst tribes clearly appear to come to the aid of these children (Mousa 2020). In Iraq, for instance, tribes were in some cases unable to abandon their children who were affiliated with ISIS, especially if the father was a member of the tribe (Al-Ardawe, 2020). In addition, some tribes went in their protection for their children to pay the compensation to protect their children and bring them back into the fold to rehabilitate them (Mousa 2020).

Consequently, it is hard to ignore the role of tribes in the post-conflict phase. They have the ability to either help build peace and stability in communities, or allow a return to violence. Tribes, local leaders, and Sheikhs can be an influential party, therefore, when working with child soldiers whether by way of a formal or an informal system based on the practice of Al-Sulh.

5.2.3 Can Sulh be applied?

Most of the interviewees discuss the possibility of using Sulh to work with child soldiers, and how it presents a potential approach to do so. In addition, many small initiatives have confirmed this outcome.

5.2.3.1 Experience in Iraq

In the northeastern province of Kirkuk in Iraq, tribes had worked on the reconciliation process for child soldiers and children who were affiliated with ISIS, especially those who were not implicated in murder. Sheikh Raad Al-Ase, one of the Al-Abedd tribe Sheikhs, argues that there is a need to work with the child soldiers and ISIS children being held in the isolation camps, otherwise these children will be the seed for hate and anger directed toward the community, threatening the rise of a new ISIS. He stipulates that if the child’s father is a member of the tribe and the mother is not affiliated with ISIS, reintegration will be possible whether the child is living in the camps or the prison. However, if the child is still under the care of ISIS forces, it is difficult for people to accept and agree to work with him or her.

In his experience, the reconciliation process faces a major difficulty in victims’ refusal to talk or interact with former child soldiers or ISIS children. Here, the Sheikhs play an important role in encouraging victims and community members to participate in the process as a part of the collective interest. In the beginning, the victims declined to participate in Al-Sulh and did not want to deal with anyone who was part of ISIS. The tribes’ vision, however, was different; for them, the interest and the stability of the whole community was most important. The tribes, therefore, concluded that eliminating any possibility of the rise of a new ISIS is the number one priority, and Sulh with the first type of child soldiers would be necessary to achieve this goal so as to contain theses children, reintegrate them into the community, and prevent them from constituting the next generation of fighters (Al-Ase, 2020).

The process usually starts with the tribe’s Sheikhs talking to the victims and their families to convince them to forgive those children and accept them back into society. The next step will be presenting the compensation to the victims, whether it be moral like an apology from the child and a confession of responsibility for the crimes committed, or material in the form of an amount of money paid by the whole tribe. The last step will be signing the agreement between both parties under the tribe’s Sheikhs to prevent any withdrawal or retreat. In addition, the Sheikhs will inform the local authorities about the agreements, especially the police and the court in cases where the child is in prison, to give the resolution an official form. This results in forfeiting the personal right to appear before the court within the criminal system, where many judges will follow suit (Al-Ase, 2020).

Sheikh Al-Ase sees that Sulh can present an effective way to resolve the issue of child soldiers and ISIS children in Iraq, especially given that many tribes want to turn the page on ISIS in their history books and strengthen their security and stability. Many people have begun to change their minds about child soldiers, becoming more open to dealing with them directly. However, the extensiveness of the phenomenon demands the intervention of the government, which is unfortunately weak and limited to interference late in the process after all work has been done by the tribes.

Another attempt to find a solution to child soldiers and ISIS children in Iraq was in the Salah ad Din Province. Sheikhs of the Al-Jboor and Al-Jmelat tribes worked for three years (2017–2020) to reconcile community members with some ISIS families, including both child soldiers and ISIS children. The attempt began with the sheikhs’ intervention to stop the violence that was breaking out anew against these families and threatening stability and security. Most of the sheikhs were neutral and impartial as they worked as mediators between the victims and ISIS families to create a common ground to resolve the tension and stop the violence. In the beginning, they faced massive rejection from the community, the families were attacked with bombs and guns, and there were demands to stop and then resume the process many times. The sheikhs were successful in obtaining guarantees from the communities not to attack women and children (Subhan 2020).

The first stage of the process was general and more formal with the intervention of the state, whereas the second stage was more private and confidential. Both stages were aimed at decreasing the social rejection toward the families and the children and at changing the local vision toward them so that people may begin accepting them back into the community and reintegrating them. Through the process, particularly the second stage, the sheikhs tried to tap into the community’s sentiments by addressing the values of honor, family, the blood bond, the collective value of mercy, passion, and forgiveness to encourage people to move on from their hatred and their past and to look for new, peaceful, and more stable future (Subhan 2020).

5.2.3.2. Experience in Yemen

Similarly, many of the tribes in Yemen have been using Sulh and other traditional conflict resolution methods to resolve crimes committed by child soldiers within the tribes’ territory. When resolving atrocities, the solution is found at the tribal level, not the individual level, based on the collective responsibility that characterizes the tribes’ view of their members (Al-Ghafri, 2020).

What must be noted in the context of the Yemeni case, in contrast to the Iraqi case, is that child soldiers fought to protect their tribes; therefore, societal rejection towards them tends to be less severe and aggressive than their counterparts in Iraq. Consequently, tribes are more willing to work and resolve the crimes committed by their members through a traditional means of conflict resolution to protect their members, children, and adults alike (Al-Ghafri, 2020).

The process begins through the intervention of tribal Sheikhs in an initial attempt to request that the perpetrator, his family, and tribe make a temporary truce with the victim’s family and tribe to prevent any escalation in violence or reprisals between them. This is followed by the Sheikhs leading the mediation process between the two parties to reach common ground between them to settle the conflict and set the compensation required for harm repairing. The last stage will contain Al-Jaha, which is a delegation of elders of both tribes that meets to sign the final agreement and pay compensation to the victim’s family, thus turning the page on the crime and concluding the final Sulh agreement (Al-Ghafri, 2020).

5.2.5 Challenges to the use of Sulh

Although Sulh can present an effective way to work with child soldiers, there are still some barriers that impede the process, according to the interviews.

First, there is a social refusal to acknowledge these children, particularly when the conflict has ethnic or sectarian causes. For instance, many communities in Iraq decline to deal, talk, or work with ISIS children. In places like Mosul, there are communities who demand revenge; in turn, these children are isolated in camps or prosecuted before criminal courts (Al-Oraibi 2020; Al-Ardawe, 2020; Subhan 2020; Muhammadi, 2020).

Second, there is the victim’s refusal to go through with the Sulh process involving child soldiers or to forgive them. For victims, the pain they suffered due to the crimes committed is still fresh, clouding their decisions and judgment and directing it toward vengeance instead of reconciliation. Since Sulh is a process that relies on the voluntary participation of all parties, it becomes hard to decide for or to start the Sulh process at all when there is rejection on part of victims (Al-Oraibi 2020; Al-Ardawe, 2020; Subhan 2020; Muhammadi, 2020; Nagi, 2020).

Third, there is the ignorance of Arab governments toward the phenomenon and its effects. In several Arab countries, the way governments deal with child soldiers reflects the absence of any real interest to become involved with programs concerning child soldiers, for different reasons. The state’s weakness in Iraq, or failure in Yemen, and internal problems regarding social, political, and economic issues drive governments to ignore this important issue which may become the Arab world’s next time bomb, instead directing their interests toward strengthening their position within the reins of power (Al-Oraibi2020; Al-Ghafri, 2020; Al-Ardawe, 2020; Subhan 2020; Muhammadi, 2020; Nagi, 2020; Saeed, 2020).

Fourth, in the chaos that accompanies conflicts, atrocities may be carried out against anyone without knowledge of the offender’s or victims’ identities. In scenarios such as this, restorative justice will be hard to implement when the parties involved are unknown (Al-Badayneh, 2021).

5.2.6 Overcoming the challenges

Despite these obstacles, they can be overcome, according to the interviewees and their prior experiences. However, the primary instrument in doing so is the state’s direct and vital presence.

Although local communities and tribes may lead the process of Sulh, the participation of the state remains essential and is not to be overlooked; the role played by the state, rather, helps overcome the difficulties facing the implementation of Sulh.

In most Arab Spring countries, child soldiers are considered a national issue in that it poses a threat to national security. The breadth and scope of the phenomenon make it difficult for local communities and tribes alone to address, requiring the participation of the state as the authority capable of enacting and implementing law and order. In such situations, the state plays a fundamental role in cooperating with local communities and tribes to find a solution to this phenomenon and its results, as well as in granting the process the official character needed to guarantee its acceptance by all parties (Tiwari, 2020; Al-Ghafri, 2020; Al-Oraibi 2020; Mousa 2020; Subhan 2020).

5.2.6.1 The role of the state

First, Arab states need to adopt new policies toward child soldiers and how they are to be handled. For instance, the Iraqi government cannot continue to ignore child soldiers living in isolated camps indefinitely or those imprisoned without trial (Subhan 2020; Mousa 2020; Muhammadi, 2020; Al-Oraibi 2020). In the case of Yemen, the entire Yemeni reconciliation process will not begin until a political settlement is reached and a national unity government in formed (Al-Ghafri, 2020; Nagi, 2020).

Second, Arab governments need to work with local communities to find suitable programs all parties will accept. Tribes in Iraq and Yemen are motivated by the need for security and stability in their community (Al-Ase, 2020; Nagi, 2020). Additionally, tribes worked in resolving conflict in both Iraq and Yemen, whether in collaboration with the national government or independently among the people using local tools like Sulh and arbitration (Al-Ardawe, 2020; Subhan 2020; Al-Ase, 2020; Nagi, 2020).

Third, Arab governments need to enact laws that apply Sulh in working with child soldiers to give the process official and legal authority. The idea of using Sulh is not new in Arab criminal laws. Additionally, many Arab juvenile laws use restorative practices; for instance, the Jordanian Juvenile Law No (32) of 2014 adopted Sulh as a means of settlement, and both the Palestinian Juvenile Law No (4) of 2016 and the Tunisian Juvenile Law No (92) of 1995 adopted the tool of mediation.

Consequently, the enactment of special laws and programs for child soldiers based on restorative justice and the practice of Sulh in post-Arab Spring countries is possible in spite of the challenges it may face. These may include determining what type of crimes will be under the law’s jurisdiction and the issue of terrorism, especially with child soldiers affiliated with groups characterized as terrorist organizations who are prosecuted according to anti-terrorism laws (Bani-Taha 2020; Al-khattar, 2021). Hence, the passage of new special laws concerning child soldiers is the first step to be taken toward the creation of a legal framework to lay the groundwork for utilizing Sulh (2020).

5.2.7 Can Sulh Work within the Arab State?

Based on our analysis of the literature and the interviews, we conclude that Arab governments can use Sulh to create programs and laws for child soldiers.

Despite the variation between Arab communities in their understanding of the phenomenon of child soldiers, ranging in various degrees from rejection to acceptance, many communities still view these children as a part of them. In these contexts, the role of tribes as guarantors of the safety of their members, including child soldiers, becomes clear.

Although the degree to which Sulh is implemented varies from one Arab country to another, the basic principle exists in all Arab systems, evident in criminal and juvenile law. The main objective across the board is to find alternative retributive justice-based methods for resolving crimes to reduce the pressure on the justice system and protect the best interests of children.

However, for Sulh to be an effective model in working with child soldiers in Arab Spring countries, governments must have the will to resolve the issue. Despite the various political, economic, and security problems facing Arab countries, child soldiers need to be at the top of these governments’ priority lists within the state’s general agenda for the post-conflict phase.

Several issues should be taken into consideration by these Arab governments. In the beginning, governments should devise methods to integrate the principles of restorative justice for child soldiers into the general post-conflict agenda, especially by way of the Ministries of Justice and Social Development.

To develop a suitable law and an effective implementation plan that can fulfil the objectives of addressing child soldiers’ responsibility, redressing the victims’ harms, and restoring the relationship between child soldiers and their community, the government should carefully study the surrounding situation:

1. The needs of the victims in each region must be considered separately and at every possible level, especially the nature of the damage and the best means to reduce the victims’ pain in a way that guarantees the participation of the children themselves in the process.

2. Governments need to focus more on the type of crimes that will fall under the law’s jurisdiction, whether they will be felonies or misdemeanors, and the type of crimes under each characterization. Additionally, governments need to rethink their approach regarding crimes as required by anti-terrorism laws. The new law needs to find a way to merge the children’s interests with the interests and security of the state and of local communities.

3. One of the main issues governments must pay attention to is how tribes and NGOs can be included in both the enactment and the enforcement of the law:

   1. NGOs may play a helpful role in educating communities about child soldiers and restorative justice through organizing awareness campaigns to remove child soldiers’ negative image within society and monitoring the enactment and later enforcement of relevant laws, as a guarantee that the process proceed in accordance with the child’s best interest and the principles of restorative justice.

   2. The role that tribes can play is significant, as they can help governments enforce and implement the law. The most important task is the tribe’s ability to persuade local communities to engage and cooperate with the process and to facilitate holding sessions between child soldiers and the community. They operate in places that may be difficult for national governments to reach and with the implementation of the program’s outcomes, from supporting the children within the community to obliging local communities to honor their commitments.

4. The governments need to focus on an alternative approach when discussing the penalty under this law. In the post-conflict phase, everyone should be part of the reconstruction process, including child soldiers. The law must allow the parties to choose different obligations that can help them and strengthen their relationships as one body such as community service, help building homes and schools, cleaning streets and gardens, etc. The main objective must be to motivate child soldiers to participate in the reconstruction, which will strengthen their feeling of belonging within the community and will help society begin to see them in a different light instead of as fighters and criminals.

5. The government needs to ensure the law take into consideration the needs of both parties to speak and be heard. The children need to talk about their experiences, their life in the armed group, the difficulties they faced, how they committed those actions and crimes, and how they feel about them now. On the other side, the victims may speak about their pain and how the crimes affected them. This mutual communication is important to fulfilling both parties’ needs.

6. Conclusion

Most Arab countries prosecute child soldiers under criminal and anti-terrorism law, which cannot constitute a capable platform to provide an integrated solution for these children and restore their relationships with their victims and their communities.

This article contributes to the discussion in the fields of conflict resolution and law and links these two fields by suggesting a framework that considers the theories of criminal responsibility for children and specifically child soldiers and the theory of the restorative justice approach, in order to find a new theoretical approach to address these children’ criminal liability in the Arab World.

The discussion of child soldiers’ criminal responsibility in the literature is limited in focus to considering them victims. Hence, it excludes any possibility of addressing the crimes they committed against the communities or of holding them responsible for those crimes. On the other hand, although the discussion on restorative justice includes its usage in times of war and peace and with both adults and children, there is less literature on its application with child soldiers in conflict areas, especially the Arab World. Consequently, this article seeks to connect both theories by addressing child soldiers’ criminal responsibility through the restorative justice approach.

The article argues that using restorative justice instead of retributive justice to work with child soldiers can resolve the issue of child soldiers’ criminal responsibility. It may result in addressing child soldiers’ criminal liability, healing the victims’ pain, and helping to restore the children’s relationships with the victims and the communities.

The main finding the article shows is that the use of restorative justice as a means of addressing the criminal responsibility of child soldiers does not stop at solving the crime, but instead aims to confront the root causes of the crime so that it does not recur in the future by building a solid common ground to create justice for all parties to society without excluding anyone and building stability and peace among its members.

Hence, this process relies on three elements: prompting the offender to acknowledge his criminal responsibility for the crime, thus prompting him to understand the nature of the harm he has done to others; healing the victim’s pain by recognizing it and treating the consequences of the crime; and restoring relations between the victim, the offender and society in a way that ensures rehabilitation and integration into society.

In addition, the results of the study show that in the Arab world, Al-Sulh is a restorative practice used to resolve conflicts among people, both in civil and criminal matters. Moreover, in places like Yemen and Iraq, Sulh had been used in the absence of the state to resolve conflicts through the participation of all the parties, heal the pain and repair the harm caused by the crime, and restore the relationships between the offender and the society.

Sulh may therefore present an effective way to work with child soldiers by actively involving them in the process. In this context, restorative justice is not directed toward prosecuting child soldiers as is retributive justice, but toward healing victims’ pain, acknowledging the children’s wrongdoing, and reintegrating them into society by restoring their relationships with their communities.

The findings also show that, although Sulh can be an effective method to work with child soldiers, it faces many difficulties. It needs the strong will of states and governments to merge it with the formal legal system while taking into consideration the surrounding circumstances for it to be used both locally and nationally, and to guarantee the participation of all parties (the children themselves, the victims, and the communities), including women and girls.

Finally, the findings indicate that the use of Sulh among child soldiers in the Arab World remains in need of further articulation at both academic and policy levels, from formal and community actors alike, to meet the needs of child soldiers and the community while taking into consideration the geographic, social, economic, and judicial particularities of the circumstance.

This article argues that the use of restorative justice as means of addressing the criminal responsibility of child soldiers will not stop at solving a single crime, but rather it is aimed at solving the root causes of the crime so that it does not recur again in the future, by building a solid ground that aims to create justice for all the society parties without excluding anyone and building stability and peace among its members. This process is relying on three elements, prompting the offender to acknowledge his criminal responsibility for the crime, thus prompting him to understand the nature of the harm he has done towards others, healing the victim’s pain by recognizing and treating the effects of the crime, and restoring relations between the victim, the offender and society in a way that ensures the rehabilitation of the offender, in addition to his integration into society.

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Additional information

Notes on contributors

Yousra Ibrahim Hasona

Yousra Hasona is a lawyer and researcher. She has two master’s degrees in criminal law and conflict management, and humanitarian work, she is working on the issue of child soldiers and restorative justice especially in the Arab Spring countries. She has publications in law, human rights, child recruitment, and restorative justice in the Arab World.

Ibrahim Khatib

Ibrahim Khatib, PhD in Political Science (Humboldt University of Berlin, 2018); he is an Assistant Professor, Conflict Management and Humanitarian Action program at Doha Institute for Graduate Studies. His main interests' are Arab conflicts, Conflict resolution, Arab–Israeli conflict, politics of the Middle East, religion and democracy, and violent conflicts.

Notes

1. See articles 194–198 from the Iraqi Criminal Procedures Law No. (23) of 1971; article 18 from the Egyptian Criminal Procedures Law No (150) of 1950; and article 36 from the Sudanese Criminal Procedures Law of 1991.