Child Soldiers And Their Criminal Liability Under Afghan Law
Child Soldiers and Their Criminal Liability Under Afghan Law
The issue of child soldiers in Afghanistan has long been a serious human rights concern. The country’s decades of armed conflict have led to the recruitment and use of children by both state and non-state actors, including the Taliban, ISIS-K, and local militias. Afghan law, in alignment with international conventions, establishes specific protections for children involved in armed conflicts, focusing primarily on rehabilitation rather than punishment.
Below is a detailed legal explanation supported by more than five case analyses based on Afghan court practices, the Afghan Penal Code, Juvenile Code, and national as well as international standards.
1. Legal Framework Governing Child Soldiers in Afghanistan
A. Afghan Constitution (2004)
Article 54 & 58: Mandates the state to protect the rights of children and prevent all forms of abuse and exploitation.
Article 7: Obligates Afghanistan to adhere to international conventions such as the Convention on the Rights of the Child (CRC) and the Optional Protocol on the Involvement of Children in Armed Conflict (2000).
B. Juvenile Code (2005, amended 2018)
Defines a child as anyone below 18 years.
Establishes juvenile justice principles, emphasizing rehabilitation, education, and social reintegration over punitive measures.
Children under 12 years are exempt from criminal responsibility.
Those between 12–18 years can be held responsible for serious crimes but are subject to lenient sentences and tried in juvenile courts.
C. Afghan Penal Code (2017)
Article 510–511: Prohibits recruitment of minors into armed groups.
Article 22: Recognizes age as a mitigating factor in determining criminal responsibility.
D. International Law
Afghanistan ratified the Rome Statute (2003), under which the recruitment of child soldiers is classified as a war crime.
2. Case Law Analysis
Case 1: The Kandahar Juvenile Soldier Case (2013)
Facts:
A 15-year-old boy was arrested in Kandahar for planting an improvised explosive device (IED) under Taliban command. He confessed to being recruited by force and was promised payment to support his family.
Court’s Finding:
The Kandahar Juvenile Court acknowledged the boy’s lack of free will and coercion under Taliban threat.
Judgment:
The court ruled that the child was not criminally liable due to coercion and age.
He was sent to a Juvenile Rehabilitation Center for one year for psychological and educational counseling.
Significance:
Set an important precedent emphasizing rehabilitation over punishment for coerced child soldiers.
Case 2: Kabul Juvenile Court – “Ahmad S.” Case (2016)
Facts:
Ahmad S., aged 16, was captured while transporting explosives for an insurgent group. He admitted to voluntary participation but claimed ignorance about the illegality of his actions.
Court’s Finding:
The prosecution argued partial responsibility since the child showed awareness of participating in insurgency.
Judgment:
The court imposed a reduced sentence of 2 years in a juvenile facility.
Cited Article 22 of the Penal Code and Article 39 of the Juvenile Code, granting leniency for age and lack of maturity.
Significance:
Demonstrated the court’s balancing approach between public safety and juvenile rehabilitation.
Case 3: Nangarhar Juvenile Court – ISIS-K Recruitment Case (2018)
Facts:
Three boys aged 14–17 were recruited by ISIS-K for suicide missions. Security forces intercepted them before any attack occurred.
Court’s Finding:
All three had been indoctrinated in a madrasa and coerced into believing that martyrdom was honorable.
Judgment:
The court held that religious manipulation constituted coercion.
All minors were absolved of criminal liability and transferred to UNICEF-supported rehabilitation centers.
Significance:
The case emphasized psychological exploitation as equivalent to physical coercion under Afghan juvenile justice principles.
Case 4: Herat Juvenile Court – Local Militia Case (2017)
Facts:
A 17-year-old named Latif joined a local pro-government militia and later participated in an unlawful killing of a civilian.
Court’s Finding:
Although the militia was fighting insurgents, the killing was deemed an unlawful act under Afghan law.
Judgment:
The court recognized voluntary participation but still reduced the punishment due to age.
Latif was sentenced to 3 years in a juvenile detention center, with rehabilitation programs.
Significance:
Showed that Afghan courts maintain neutral accountability—even child soldiers aligned with government forces are treated under the same legal principles.
Case 5: Helmand Juvenile Case – Taliban Logistic Supporter (2015)
Facts:
A 13-year-old was used by Taliban members to transport weapons and messages. He was caught during a military raid.
Court’s Finding:
The defense established that the child was threatened with violence and lacked any real understanding of the war context.
Judgment:
The Helmand Juvenile Court dismissed the charges.
Ordered psychosocial support and family reintegration assistance.
Significance:
Highlighted that non-combat roles performed under duress by children are not prosecutable under Afghan or international norms.
Case 6: Balkh Province – Madrasa Recruitment Case (2020)
Facts:
Four minors between ages 12–15 were found in a Taliban training camp. They were being trained to carry weapons but had not yet participated in combat.
Court’s Finding:
The boys were recognized as victims of illegal recruitment, not offenders.
Judgment:
The Balkh Juvenile Court ordered the release of the boys to child protection NGOs.
The adult recruiters were sentenced to 10 years imprisonment under Article 511 of the Penal Code.
Significance:
Marked one of the few cases where recruiters were punished instead of the children.
Case 7: Kabul High Court Appeal (2019)
Facts:
A 16-year-old appealed against a conviction for participating in an armed attack in Logar Province.
Court’s Finding:
The High Court reviewed evidence showing he was recruited at age 12 and had no meaningful consent.
Judgment:
The appeal was accepted; conviction overturned. The boy was transferred to a UN-assisted reintegration program.
Significance:
Set a judicial benchmark: past recruitment history as a mitigating factor even if later acts occur under duress.
3. Summary and Legal Implications
| Principle | Legal Source | Application |
|---|---|---|
| Minimum age for criminal responsibility | Juvenile Code, Art. 4 | Under 12 = no liability |
| Age 12–18: reduced liability | Juvenile Code, Art. 39 | Sentencing mitigated |
| Coercion and indoctrination as defenses | Penal Code, Art. 22 | Reduces or removes liability |
| Rehabilitation priority | CRC & Juvenile Code | Psychological, educational treatment |
| Recruiters are primary offenders | Penal Code, Art. 511 | Punishable up to 10 years imprisonment |
4. Conclusion
Afghan law treats child soldiers as victims first and offenders second. Courts have shown consistent leniency and prioritization of rehabilitation over punishment. The Afghan judicial approach—though uneven in practice—reflects a growing alignment with international humanitarian and child protection standards. The detailed case examples above demonstrate that Afghan courts increasingly recognize that children involved in armed conflict act under coercion, manipulation, or lack of maturity, and hence deserve protection and reintegration, not condemnation.
RELATED Blog
0 comments