DO YOU KNOW WHERE THE CHILDREN ARE?
The recruitment of children raises many important questions, the most important being whether children should be recruited at all and what is the definition of a child. The most internationally accepted definition for a child soldier is established in the Cape Town Principles 1997 by UNICEF: “any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity.” However, this is not a legal definition.
The issue of child soldiers is governed by three bodies of international law: international humanitarian law, international human rights law and international criminal law. The international humanitarian law is established in the four Geneva Conventions of 1949 (GCs) and their Additional Protocols of 1977 (APs) which are focused on the rules of armed conflicts. The main international human rights law governing the issue of the recruitment of children is the Convention of the Rights of the Child of 1989 (CRC) and the Optional Protocol on the Involvement of Children in Armed Conflict (OPAC), 2002. The international criminal law is established in the Rome Statute of 1998 that regulates the jurisdiction of the International Criminal Court (ICC). Further, there is customary international law which is not written in a statute but is universally binding to everyone.
The GCs are silent on the issues of recruitment and the participation of children in hostilities because these were originally considered as domestic decisions for states to establish independently. According to the GCs, children are not participants in conflicts and are therefore protected as civilians. The two APs to the GCs aimed to voice the issue of children participating in the conflict. There are two APs because the Member States held that is was important to differentiate the rules of an international armed conflict from the rules of a non-international armed conflict. The First Additional Protocol (AP1), which is applicable for international armed conflicts only, allows the recruitment of children between the ages of 15 and 18 into the state armed forces. However, it prevents them from directly taking part in hostilities. This leaves open the question of what is meant by direct participation. According to the Second Additional Protocol (AP2), which applies to non-international armed conflicts, persons under the age of 15 shall not be recruited by either the state armed forces or non-state armed groups and they shall not participate in conflicts in any way. This means that both APs consider 15 as the minimum age for recruitment and participation. However, this does not address the issue of children between the ages of 15 and 18. It should be noted that the APs do not include any measure of implementation or monitoring which makes them less effective.
Article 77 of the AP1 orders states to give priority to the older children when recruiting persons between the ages of 15 and 18. When it was drafted, it was commented that children between the ages of 16 and 18 were more physically fit to fight than their fathers and therefore would be more preferred for the armed forces. Further, due to the age structure in many countries, there are actually more children capable of fighting than people over the age of 18. Under the APs children are eligible for two kinds of protection. First, children are considered to receive general protection as civilians and secondly, children under the age of 15 receive special protection if they fall into enemy hands. However, this protection is very narrow and reflects the fact that the APs are not designed to protect children as combatants.
The CRC is a universal treaty which provides a definition for a ‘child’: a person under the age of 18. According to article 38 of the CRC, states must ensure that persons under the age of 15 do not partake in conflicts directly and shall take measurements to protect children affected by armed conflicts. The main international human rights law regulating children in conflicts is the OPAC. In 2018, 167 states had ratified the Protocol and 12 other states had signed it making the law nearly as universal as the CRC itself. The OPAC requires the State Parties to introduce the protocol into domestic legislation, inform the public of the regulations, demilitarise children from armed groups and aid them in reintegration to the communities.
Article 1 of the OPAC imposes an obligation on the state to ensure that members of the state armed forces under the age of 18 do not take a direct part in the hostilities. According to article 2, the state is responsible for ensuring that children will not be forcibly recruited to their armed forces. However, article 3 permits a state to accept voluntary recruits without an age limit. Stricter terms are applied when determining the rules of other armed groups within a state under article 4. Non-state armed groups are prevented from recruiting and using children under the age of 18 in any situation. This was confirmed by the Special Court for Sierra Leone (SCSL) in the case of Issa Hassan Sesay which determined that non-state armed groups cannot recruit children under the age of 18 ‘under any circumstances’. Even though this case is not binding on states, it should be viewed as a good precedent on how the law should be interpreted.
The only protection the OPAC provides for voluntary recruits under the age of 18 is that the states recognise that they are under a special protection under the OPAC. Further, OPAC suggests that states set the minimum age of voluntary recruitment according to the CRC article 38whic h sets the limit of direct participation at 15. These two articles seem to be inconsistent with each other as article 1 sets a clear limit at 18 and article 3 provides a way around it. Further, the OPAC fails to distinguish what is meant by a direct or an indirect participation and brings a question whether it is ever possible for a person under the age of 18 to truly volunteer. The Cape Town Principles attempted to solve these issues by abolishing the concepts of direct and indirect participation as well as the idea of a voluntary recruitment of a person under the age of 18. However, these principles are not enforceable law.
There are practical issues in the states guaranteeing that no person under the age of 18 is recruited to the armed forces. The OPAC states that a ‘reliable proof of age’ must be shown upon recruitment but this is hard to fulfil in many States, where national birth registration systems are weak or unreliable. Various international human rights bodies argue against prosecuting children for the grave breaches because it harms their chances for rehabilitation and it is controversial to the state’s responsibility to demilitarise children and to provide them with the necessary support for rehabilitation is established in article 6(3) of the OPAC.
Article 8 of the Rome Statute also criminalises the enlistment of children under the age of 15 by the state armed forces and by non-state armed groups and allowing them to participate in conflicts, confirming the position that the APs have taken. The Statute does not address the issue of recruitment of children between the ages of 15 and 18 but article 26 limits criminal liability to 18. This means that the ICC does not prosecute anyone for crimes they have committed during conflicts while being under the age of 18. Further, it leaves children between the ages of 15 and 18 are without a status: they are neither victims nor perpetrators.
Most countries have ratified or signed the Rome Statute establishing the recruitment of children under the age of 15 as a war crime. The International Labour Organisation (ILO) Convention on the Worst Forms of Child Labour which prohibits the compulsory recruitment of persons under 18 by an armed group have been ratified by 186 states. It seems that the international law is more lenient to allow government armed forces to recruit volunteers between the ages of 15 and 18 to take some part in hostilities whereas non-state armed groups are prevented from recruiting anyone under the age of 18. The enforceability of this is difficult as the international law ratified by the State Parties is only binding on those states and no other armed groups within the states. Further, it is likely that the armed groups within the state are fighting against the state. These discrepancies in international law of the definition of a child, the minimum age for recruitment and the age for criminal liability create loopholes which are exploited by Member State governments as well as non-state armed groups.
Sources : Freedom From Fear Magazine (F3