On May 16, 2016 the Colombian government and Revolutionary Armed Forces of Colombia (FARC) jointly announced, that as a component of their forthcoming peace agreement, the rebel group will discharge from its forces all child soldiers under the age of 15 and these children will not face prosecution for acts committed while under FARC control. This encouraging development will finally allow children, threatened with death if defecting from FARC, to return to their families and begin the long process of healing from the trauma imposed upon them.
This is not the first agreement reached by these parties that could provide relief for child soldiers in FARC forces. Last year both sides agreed to the establishment of a Special Jurisdiction for Peace in Colombia, a domestic judicial system tasked with prosecuting those responsible for grave crimes committed during the armed conflict, which could encompass the recruitment and use of child solders. On the international level, the International Criminal Court (ICC) has been conducting a preliminary examination into possible crimes against humanity and war crimes in Colombia that could fall within its jurisdiction. All entities involved in the decades long armed conflict in Colombia have less than stellar records, but the FARC is of particular concern due to the severity and scope of international humanitarian law violations, including the recruitment of children under 15 into its forces and its use of these youth in conflict, conflict, disappearances, killings, sexual violence, and torture. But will FARC members be held accountable for these grave criminal acts? And if so, can former FARC child soldiers provide reliable evidence of these crimes at trial?
If individual FARC commanders are criminally charged, it is likely that former child soldiers conscripted or used by the FARC in combat will be asked to give evidence of crimes they witnessed. These children are in a unique position to speak of criminal acts that few, if anyone, unaffiliated with the rebel group would know. However, because of their unique cognitive and psychological composition, former child soldiers are rendered particularly vulnerable when asked to reflect on traumatic events in their past. Experience has shown that improperly obtained testimony can trigger behavioral and psychological symptoms, causing new trauma and hindering accuracy of evidence provided.
One illustration of the difficulties former child soldier witnesses face in a criminal trial is the situation of Dieumerci, a witness in his late teens who testified at the International Criminal Court against the Union of Congolese Patriots (UPC) founder, Thomas Lubanga Dylio. When he first gave evidence of being forcibly recruited at the age of eleven into the UPC, the accused was in Dieumerci’s direct line of vision. After testifying, Dieumerci claimed that his statement was false and that he had been coached on what to tell the court. A short time later he admitted that his testimony in court was, in fact, truthful. He returned as a witness after courtroom accommodations had been made. A screen blocked his view to Lubanga, unnecessary observers in the courtroom were removed, and he was allowed to tell his story without interruption, among other procedural adjustments. Back on the stand, he continued with his original, reliable testimony. These modifications reduced the aggression and discomfort that Dieumerci had previously experienced. When asked what he was feeling the day of his first appearance in court, he stated, “A lot of things went through my mind. I got angry and I wasn’t able [to testify].”
Dieumerci’s actions are not surprising given the age-related biological composition, and trauma-based disorders and behaviors former child soldiers frequently endure, including anxiety and aggression, manifesting themselves in the form of impaired decision making. The initial oversight in providing sufficient protective measures for Dieumerci as a witness resulted in false testimony that could have been avoided had his psychological needs been assessed in advance of giving evidence. As the use of child soldiers becomes ever more prevalent and these youth are called on to give testimony of atrocity crimes, courts must accommodate the needs of this group to ensure accurate evidence against an an alleged perpetrator.
Children and adults are fundamentally different in how they process information and make decisions, in part due to distinctions in cognitive development. Juveniles as a group are generally neurologically immature, affecting functioning and processing capabilities. The prefrontal cortex, the last region of the brain to develop, is responsible for decision making, controlling impulsive behavior and allowing for rational assessment before executing, planning, and evaluating consequences of action. Hence, these are among the last skills that youth master, often into the early 20s. This biological status of children can have a profound impact on his or her ability to process information, including while testifying and particularly in unfamiliar and stressful situations.
In addition to possible testimonial challenges arising out of the cognitive development, former child soldiers are also burdened by psychological and behavioral challenges arising out of severe trauma they experienced while in conflict. Regardless of their communities of origin and the conflicts in which they fought, former child soldiers exhibit similar symptoms of psychological disorders because of their shared, violent history. Common disturbances are trauma-spectrum disorders, mood disorders and severe aggression.
The most prevailing psychological condition of former child soldiers in the range of trauma-spectrum disorders is post-traumatic stress disorder (PTSD). PTSD can be a debilitating psychiatric condition affecting trauma survivors who “have experienced or witnessed at least one traumatic event in their life, i.e. a serious injury, or a threat to the physical integrity of self or other, and the subjective perception of intense fear, helplessness, and/or horror”. PTSD symptoms include recurrent and intrusive memories of the traumatic event in daily life or in dreams (leading the child to believe that the event is recurring/flashbacks), avoidance of stimuli associated with the underlying trauma, numbing, heightened arousal, irritability, and being “on guard”. One study concluded that nearly 50% of former child soldiers surveyed display PTSD symptoms. Furthermore, this psychiatric condition can be prolonged, with one in four children having continuing disturbances arising out of their time in combat.
Depression and anxiety are two additional trauma-spectrum disorders this population may face. Depression is a mood disorder in which the person lacks energy and interest in what they had found pleasurable, has difficulty concentrating, and feels they are worthless. Seventy-one percent of abducted former child soldiers expressed symptoms of depression because of their time in captivity. Similarly, high anxiety rates are common among former child soldiers. Children with this mood disorder feel tense, have intrusive thoughts, and may exhibit physical symptoms, such as heightened blood pressure or sweating. For example, former Lord’s Resistance Army (LRA) child soldiers in Northern Uganda endure anxiety on a regular basis, at a rate of 60%. Disturbingly, researchers also found that one-third of those surveyed deal with these three trauma-spectrum disorders (PTSD, depression, and anxiety) simultaneously.
Severe aggression is also commonplace among this population. Former child soldiers in Uganda were found to be 40% more likely to experience aggressive behaviors than their peers who had not been recruited into the LRA. In at least two studies, former child soldiers indicated feelings of anger and hostility, violent thoughts, and becoming annoyed easily and disproportionally to innocuous stimuli.
Typical reactions to trauma-spectrum disorders are inability to communicate, nervousness, confusing and/or emotional responses, black-outs, and inability to remember details of experiences. Psychological disorders and behavioral abnormalities, compounded by the stress of giving evidence in a courtroom that does not account for their emotional needs, may cause inappropriate responses that hinder the accuracy of testimony offered by these children.
Full recognition of the unique cognitive, behavioral and psychological condition of former child soldiers demands that judicial proceedings created for adults be adjusted for these witnesses. In addition to the accommodations the ICC arranged in the Lubanga trial, for Dieumerci’s testimony, other conducive adjustments that courts may use to protect traumatized child soldier witnesses include the use of screens to shield the accused from the sight of the child, allowing family members or mental health professions to attend the session, restricting the release of any distinguishing information about the child, closed door sessions, and controlling the nature of questioning to reduce the adversarial nature of cross-examination.
Through this whole process, adults must remember that former child soldiers are not cognitively mature and suffer from psychological disorders manifesting themselves in behavioral abnormalities that may be triggered when giving evidence of their trauma. Courtroom and trial procedures which fail to address the distinctiveness of this group contribute to creating an overwhelmingly stressful environment for these children that may result in false testimony and new trauma. The situation of Dieumerci at the ICC Lubanga trial is a strong instance of how trial procedures intended for adults can thwart reliable testimony from former child soldiers, as well as the ways in which a court can amend its practices to facilitate accurate evidence from youth. As criminal courts continue to hear testimony from former child soldiers, procedural protections for this community should be routinized and expanded to fully account for their distinctive cognitive and psychological needs.
As potential individual criminal liability for FARC leadership unfolds, former child soldiers will likely be asked to testify in court to crimes they witnessed while part of FARC forces. If called to give evidence, trial procedures designed for adults must be adjusted to accommodate the delicate cognitive and psychological composition of these children to ensure truth-telling.