Accountability beyond Treaty Membership: Continuing International Responsibility for the Recruitment and Use of Child Soldiers in Armed Conflict

The recruitment and use of children in armed conflict constitutes one of the most serious violations of international humanitarian and international criminal law. Although the international legal framework governing child soldiers has progressively developed through treaty law, customary international law and international criminal jurisprudence, significant questions remain concerning the continuity of legal responsibility where treaty membership changes, armed conflicts persist, or perpetrators seek to evade accountability by relying upon temporal or jurisdictional limitations. This article examines the extent to which responsibility for the recruitment, enlistment, conscription and use of children in armed conflict can continue beyond the termination, withdrawal or alteration of treaty obligations. It uses the Democratic Republic of the Congo (DRC) as a principal case study, particularly in light of the jurisprudence of the International Criminal Court (ICC) in Prosecutor v Thomas Lubanga Dyilo and Prosecutor v Bosco Ntaganda, as well as the broader international responsibility arising from armed conflict in the DRC. The article distinguishes between State responsibility for internationally wrongful acts and individual criminal responsibility for war crimes. It argues that treaty withdrawal cannot retrospectively erase responsibility for conduct occurring while a State was legally bound, nor can withdrawal necessarily neutralise obligations that independently arise under customary international law. The article further examines the temporal character of child-soldier offences and argues that the concept of continuing responsibility must be applied with doctrinal precision. Under the law of State responsibility, a continuing breach persists for as long as the conduct remains contrary to an international obligation. Under international criminal law, the recruitment or enlistment of children may likewise involve conduct extending over time, although criminal liability remains governed by the applicable jurisdictional and temporal provisions of the relevant tribunal. The DRC demonstrates both the possibilities and limitations of international accountability. The ICC's prosecution of Lubanga established the central importance of individual accountability for child recruitment, while the Ntaganda proceedings demonstrated the broader factual and legal complexity of child-soldier crimes in non-international armed conflict. At the State level, the Armed Activities on the Territory of the Congo litigation demonstrated that violations of international humanitarian and human rights obligations can generate responsibility and reparations. The article concludes that effective accountability requires an approach that does not treat treaty membership as the sole source of legal obligation. Treaty law, customary international law, general principles, international criminal law and the law of State responsibility operate in complementary ways. However, accountability must remain consistent with legality, non-retroactivity, jurisdictional limits and the principle that criminal responsibility must be established against the individual perpetrator on the basis of the applicable law.