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Child Soldiers and the Law - A Survey
Nadesan Satyendra
15 November 2004
"A double standard is no legal standard -
and cannot be passed of as such"
The Geneva Conventions Additional Protocols of 1977,
imposed a minimum age of 15 for recruitment into
the armed forces of a state. The same minimum age
applied to recruitment by armed groups. The Geneva
Conventions Protocols
also required that children under the
age of 15 should not be allowed to take part in
direct hostilities.Twelve years later in 1989,
the
International
Convention on the Rights of the Child reiterated
the 15 year minimum age for recruitment. The
Convention bound State Parties and made no reference
to armed groups.
In 1998,
the Rome Statute of the
International Criminal Court provided, inter
alia, that the Court shall have jurisdiction in
respect of war crimes and that a war crime would
include 'conscripting
or enlisting children under the age of
fifteen years' into national armed forces or armed
groups or using them to participate actively in
hostilities. The
Sierra Leone Special Court,
Appeals Chamber in 2004 took the view that the Rome
Statute simply codified that which was already
'customary international law'.
In 1999 the
Worst Forms
of Child Labor Convention was adopted by the
International Labour Organisation. The convention
provided, inter alia, that each Member which ratifies
the Convention shall take immediate and effective
measures to secure the prohibition and elimination
of the worst forms of child labour as a matter of
urgency. It also provided that 'for the purposes of this Convention', the term
'child' shall apply to all persons under the age of
18 and that the term “the worst forms of child
labour” included 'forced or compulsory
recruitment of children for use in armed conflict'. In 2002 the
Optional Protocol to the Convention on the Rights of the
Child provided that State Parties may not compulsorily
recruit those under 18 years. However, the Optional
Protocol retained 15 years as the minimum age for
voluntary enlistment. In addition, schools
operated by or under the control of the armed forces
of the States Parties were excluded from the
operation of Article 1 of the Protocol.
States may 'advertise and
market' their armed forces to 'persuade' those under
18 to enlist. It was reported in 2002 that
the
US Army spent two years and more than $7-million to
develop and implement a free Windows game as a recruiting tool
targeted at teenagers. Again "the key objective of
the British ARMY Magazine is to encourage teenage boys and girls under
the recruitment age of 16 to move from a simple
'interest' in the Army to a position where they
actively consider a career."
[see also
Child
Soldiers? What Child Soldiers?]
The Optional Protocol however provides
a different standard for armed groups. The Protocol
requires that armed groups may not 'under any circumstances',
recruit persons under the age of 18 years.
Furthermore whilst the Optional Protocol requires
that States Parties shall take all feasible measures to ensure that members
of their armed forces who have not attained the age of 18 years do not
take a direct part in hostilities, the Protocol requires of armed groups
that they
may not 'under any circumstances' use in hostilities,
persons under the age of 18 years. The Protocol
provision
relating to all 'feasible measures' was interpreted by the
United Kingdom which ratified the convention
in the following manner -
"The United Kingdom of Great Britain and Northern
Ireland will take all feasible measures to ensure that members of its
armed forces who have not attained the age of 18 years do not take a
direct part in hostilities.
The United Kingdom understands that article 1 of the
Optional Protocol would not exclude the deployment of members of its
armed forces under the age of 18 to take a direct part in hostilities
where: -
a) there is a genuine military need to deploy their
unit or ship to an area in which hostilities are taking place; and
b) by reason of the nature and urgency of the
situation:-
i) it is not practicable to withdraw such persons
before deployment; or
ii) to do so would undermine the operational
effectiveness of their ship or unit, and thereby put at risk the
successful completion of the military mission and/or the safety of other
personnel."
Ofcourse, armed groups (not being parties to
the Protocol) do not have the right to 'ratify' the
Protocol subject to 'declarations' and or
'reservations.'
The short point is that the
Optional Protocol to the Convention on the Rights of the
Child, 2002 applies a double standard - one for
State Parties and another for armed groups. The
Geneva Conventions Additional Protocol II, 1977
did not adopt a double standard. Neither did the
International Convention on the Rights of the Child,
1989. Nor for that matter did the
Rome
Statute of the International Criminal Court, 1998.
It appears that State parties to the Optional
Protocol, (after perhaps September 11) have found
a common political interest in imposing more stringent
conditions on armed groups than the State parties cared
to impose on themselves.
Several questions arise here. Can State parties
by a Treaty amongst themselves impose obligations on
'armed groups' engaged in a struggle for self
determination and who reject the jurisdiction of the
State which seeks to conquer and rule? Can State
parties by a Treaty amongst themselves change that
which was recognised as a rule of
'customary
international law' by the Sierra Leone Special Court
- Appeals Chamber? Has the Optional
Protocol which entered into force in 2002,
crystallised into customary international law?
It appears that the Protocol itself recognises
that the terms in relation to armed groups are not
'directly applicable' and required that 'States
Parties shall take all feasible measures to prevent
such recruitment and use, including the adoption of
legal measures necessary to prohibit and criminalize
such practices.' The Optional Protocol casts the
responsibility to enforce the terms in relation to
armed groups on the State Parties. There is also a further and important
matter that must be addressed. The
obligations which the State Parties to the Optional
Protocol have sought to impose on armed
groups breaches the fundamental principle of equality
before the law enshrined in all Human Rights
instruments. Like has not been treated alike. A double
standard is no legal standard - and cannot be passed of
as such. Here, the comments of the
International Red Cross in its Introduction to the
Optional Protocol are not without relevance -
"..The ICRC welcomes the fact that the issue of
non-state actors has been included in the Optional
Protocol, but regrets that the provision imposes a
moral, as opposed to a legal obligation. Although
Article 4 also provides for criminal prosecution
under domestic law, this is likely to be of limited
effect, because those who take up arms against the
lawful Government of a country already expose
themselves to the most severe penalties of domestic
law, and because the capacity of a Government to
enforce its laws is often very limited in situations
of non-international armed conflicts. Third, it
is uncertain whether non-state actors will feel
bound by a norm which is different from that imposed
on States, and thus whether it will be respected..."
ICRC was right to point out that the Optional
Protocol 'imposes a
moral, as opposed to a legal obligation' on armed
groups. However, the morality of the obligation
itself is called in question by the double standard
employed by the Optional Protocol. It appears that
therefore that the current situation in
international law in relation to child soldiers may
be summarised as follows:
1. Conscripting
or enlisting children under the age
of fifteen years' into national armed forces or
armed groups or using them to participate
actively in hostilities is a war crime. 2.
Conscripting or forcibly recruiting children
under the age of eighteen years by State Parties
or armed groups is a breach of the Optional
Protocol to Child Convention. 3. All feasible measures shall be taken by State
parties to ensure that members
of their armed forces under the age of 18 years do not
take a direct part in hostilities and failure to take such
'feasible' measures is a
breach of the Optional Protocol to Child
Convention. 4. Enlisting children under the
age of 18 years by State Parties is not a
breach of international law. 5. Enlisting
children under the age of 18 years by armed
groups is not a breach of the Optional
Protocol, (and not by any means a 'war crime')
though armed groups may have a 'moral
obligation' to avoid doing so, and the
Optional Protocol casts the
responsibility to enforce the terms in relation to
armed groups on the State Party and no one
else.
Having said that, it may be helpful to remind
ourselves of
the
words of Dr Colin J Harvey, Assistant Director,
Human Rights Centre, School of Law, Queen's University of Belfast in September
2000:
"International law is political. There
is no escape from contestation. Hard lessons indeed for lawyers who wish
to escape the indeterminate nature of the political. For those willing
to endorse this the opportunities are great. The focus then shifts to
inter-disciplinarity and the horizontal networks which function in
practice in ways rendered invisible by many standard accounts of law.
This of course has important implications for how we conceive of law's
role in ethnic conflict. We must abandon the myth that with law we enter
the secure, stable and determinate. In reality we are simply engaged in
another discursive political practice about how we should live..."
Geneva Conventions
- Additional Protocols, 1977
Protocol I
- International Armed Conflicts
Article 77 Protection of Children....
77.2. The Parties to the conflict shall take all feasible measures in order that children
who have not attained the age of fifteen years do not take a direct part in hostilities
and, in particular, they shall refrain from recruiting them into their armed forces. In
recruiting among those persons who have attained the age of fifteen years but who have not
attained the age of eighteen years the Parties to the conflict shall endeavour to give
priority to those who are oldest.
77.3. If, in exceptional cases, despite the provisions of paragraph 2, children who have
not attained the age of fifteen years take a direct part in hostilities and fall into the
power of an adverse Party, they shall continue to benefit from the special protection
accorded by this Article, whether or not they are prisoners of war.
Protocol II - Non-International Armed
Conflicts
Article 4
4. 3 (c) children who have not
attained the age of fifteen years shall neither be
recruited in the armed forces or groups nor allowed to
take part in hostilities;
(d) the special protection provided by
this Article to children who have not attained the age
of fifteen years shall remain applicable to them if they
take a direct part in hostilities despite the provisions
of subparagraph (c) and are captured;
(e) measures shall be taken, if
necessary, and whenever possible with the consent of
their parents or persons who by law or custom are
primarily responsible for their care, to remove children
temporarily from the area in which hostilities are
taking place to a safer area within the country and
ensure that they are accompanied by persons responsible
for their safety and well-being.
Note: The Protocol applies to non-international
Conflicts. The minimum age for recruitment is 15
years.
Article 38, International Convention on the Rights of
the Child, 1989 -
1.
States Parties undertake to respect and to ensure
respect for rules of international humanitarian law
applicable to them in armed conflicts which are relevant
to the child. 2. States Parties shall take all feasible measures to ensure that persons who have
not attained the age of fifteen years do not take a direct part in hostilities.
3. States Parties shall refrain from recruiting any
person who has not attained the age of fifteen years
into their armed forces. In recruiting among those
persons who have attained the age of fifteen years but
who have not attained the age of eighteen years, States
Parties shall endeavour to give priority to those who
are oldest.
Article 8 of Rome Statute of the
International Criminal Court, 1998
Article 8.1. The Court shall have jurisdiction in respect of war crimes in particular when
committed as a part of a plan or policy or as part of a largescale commission of such
crimes.
Article 8.2. For the purpose of this Statute, "war crimes" means:
..
8.2.(b)(xxvi) Conscripting or enlisting children under the age of fifteen years into the
national armed forces or using them to participate actively in hostilities...
8.2.(e) (vii) Conscripting or enlisting children under the age of fifteen years into
armed forces or groups or using them to participate actively in hostilities;
.. Note: The Rome Statute
provided for an independent prosecutor
who may initiate investigations and proceedings. 120 countries voted in favour of the statute, 7 against,
and there were 21 abstentions. The United States voted against the statute and
refused to recognise the jurisdiction of the International Criminal Court in
respect of individuals who may be charged with crimes against humanity.
It also questioned the right of the Court to act
independently of the United Nations Security
Council. The US was clearly concerned to control
and 'manage' through the exercise of its veto
power in the Security Council. That India and
China joined the United States in opposing
the Rome Statute reflects, perhaps, the shared
interests of aspiring world powers. These shared
interests are apparent in the
explanations
given by each of these countries for their vote. It is also not without significance that Sri Lanka abstained.
The stated reason for the
abstention was that the 'crime of terrorism' was not included in the Statute. But, Sri
Lanka (and President Chandrika Kumaratunga) may have been concerned that the statute
opened the possibility of prosecutions against
individuals for
genocide, crimes
against humanity, war crimes.
Articles
1-3
Worst Forms of Child Labor Convention, 1999
Article 1
Each Member which ratifies this Convention shall take immediate and
effective measures to secure the prohibition and elimination of the
worst forms of child labour as a matter of urgency.
Article 2
For the purposes of this Convention, the term “child” shall apply to all
persons under the age of 18.
Article 3
For the purposes of this Convention,
the term “the worst forms of child labour” comprises:
all forms of slavery or practices similar
to slavery, such as the sale and trafficking of
children, debt bondage and serfdom and forced or
compulsory labour, including forced or compulsory
recruitment of children for use in armed conflict;
.. Note: The Convention applies to Members who ratify the Convention. The
forced
or compulsory recruitment of persons under the age of 18 years is
prohibited.
Articles 1 -
4 of Optional Protocol to the Convention on
the Rights of the Child, 2002
[see also
Declarations and Reservations]
Article 1
States Parties shall take all
feasible measures to ensure that members
of their armed forces who have not attained the age of 18 years do not
take a direct part in hostilities.
Article 2
States Parties shall ensure that persons who have not attained the age
of 18 years are not compulsorily recruited into their armed forces.
Article 3
1. States Parties shall raise the minimum age for the voluntary
recruitment of persons into their national armed forces from that set
out in article 38, paragraph 3, of the Convention on the Rights of the
Child, taking account of the principles contained in that article and
recognizing that under the Convention persons under the age of 18 years
are entitled to special protection.
2. Each State Party shall deposit a binding declaration upon
ratification of or accession to the present Protocol that sets forth the
minimum age at which it will permit voluntary recruitment into its
national armed forces and a description of the safeguards it has adopted
to ensure that such recruitment is not forced or coerced.
3. States Parties that permit voluntary recruitment into their national
armed forces under the age of 18 years shall maintain safeguards to
ensure, as a minimum, that:
(a) Such recruitment is genuinely voluntary;
(b) Such recruitment is carried out with the informed consent of the
person's parents or legal guardians;
(c) Such persons are fully informed of the duties involved in such
military service;
(d) Such persons provide reliable proof of age prior to acceptance into
national military service.
4. Each State Party may strengthen its declaration at any time by
notification to that effect addressed to the Secretary-General of the
United Nations, who shall inform all States Parties. Such notification
shall take effect on the date on which it is received by the
Secretary-General.
5. The requirement to raise the age in paragraph 1 of the present
article does not apply to schools operated by or under the control of
the armed forces of the States Parties, in keeping with articles 28 and
29 of the Convention on the Rights of the Child.
Article 4
1. Armed groups that are distinct from the armed
forces of a State should not, under any circumstances,
recruit or use in hostilities persons under the age of
18 years.
2. States Parties shall take all feasible measures to
prevent such recruitment and use, including the adoption
of legal measures necessary to prohibit and criminalize
such practices.
3. The application of the present article shall not
affect the legal status of any party to an armed
conflict.
Introduction to the Optional Protocol to the
Convention on the Rights of the Child, 25 May 2000
- International Red Cross
Protection of children by International
Humanitarian Law
Aside from benefiting from the general protection
provided to civilians, children are protected by
International Humanitarian Law in two ways. First,
by being protected from recruitment and
participation in hostilities (Art. 77 of Protocol I
prohibits recruitment and direct participation in
hostilities of children under the age of 15 years,
whereas Art 4, 3(c) of Protocol II also prohibits
their indirect participation.
The Rome Statute has recognized the recruitment
and use of children under the age of 15 years in
hostilities as an international crime, both in
international and non-international armed conflicts,
and second, by a number of specific provisions
addressing their particular vulnerabilities.
These provisions, which are contained in the
Geneva Conventions and their Additional Protocols,
include protection from the effects of hostilities
(sanitary zones, evacuation), provision of special
care and aid (medicine, food, clothing), protection
of personal status, family and community ties
(identity, registration, reunification, news),
cultural environment, education, or limits to the
death penalty. Other provisions specifically
regulate the treatment of detained or interned
children.
Protection in human rights law
Children are protected by general human rights
instruments. In addition, they are entitled to the
protection provided by the Convention on the Rights
of the Child (CRC), which has been ratified by all
states in the world, apart from Somalia and the
United States of America. The CRC includes in its
Article 38 a provision according to which states
parties:
undertake to respect and to ensure respect for
relevant rules of International Humanitarian Law;
ensure that children under 15 do not take a direct
part in hostilities;
refrain from recruiting those under 15 and give
priority to the oldest among those under 18;
in accordance with International Humanitarian Law,
ensure protection and care of children affected by
armed conflict.
Article 38 has been subject to considerable
criticism, for two reasons. First, because all other
provisions protect the child until it has reached
the age of 18. Second, because it adds nothing new
and could even undermine existing standards
contained in IHL (the parts relating to recruitment
and participation in hostilities repeat Protocol I
to the Geneva Conventions, which only prohibits
direct participation, whereas Protocol II also
prohibits indirect participation). The ICRC
contributed to the drafting process of this
provision, but became involved only at a late stage,
so that its possibility to influence the final text
was limited.
Development of an Optional Protocol
A number of states have for several years sought to
develop an Optional Protocol to the CRC that would
raise the minimum age for participation in
hostilities and for recruitment to 18 years. In line
with a 1995 resolution of the Council of Delegates,
the ICRC has supported this initiative and
participated in the drafting process. It has made
its view known in international forums (through
statements at the UN Commission on Human Rights and
General Assembly) and participated actively in the
UN Working Group established to draft the Optional
Protocol.
Given that the Working Group has worked by consensus
in order to adopt the text, and that there was
absence of such because a handful of states
opposed the adoption of the 18-years minimum age,
there was almost no progress in the Working Group in
previous years.
To overcome the stalemate, several NGOs started a
campaign aimed at generating enough political
pressure to have the Optional Protocol developed
outside the UN working group (this strategy was
largely inspired by the Land Mines Campaign). The
ICRC was not a formal member of the NGO coalition,
but supported its work by participating in regional
conferences organised by the Coalition, and more
generally by sharing its legal expertise and
operational experience.
In January 2000, the UN Working Group finally met
for substantive negotiations, and successfully
concluded the drafting of an agreed text (the
compromise position taken by States which previously
had opposed consensus may have been motivated by
concerns that the NGO campaign might eventually
succeed). The agreed text has recently been adopted
by the General Assembly in May 2000 and will be open
for signature and ratification.
Overall, the Optional Protocol represents a clear
improvement of existing international law, although the text also contains evident weaknesses.
Of particular importance may be highlighted:
1."States Parties shall take
all feasible
measures to ensure that members of their armed
forces who have not attained the age of 18 years do
not take a direct part in hostilities."
(Article 1). In the opinion of the ICRC the
obligation imposed on States to prevent
participation in hostilities should have been made
more absolute, and should also have covered indirect
participation, which may often be equally dangerous
for the children involved.
2."States Parties shall ensure that persons who have
not attained the age of 18 years are not compulsorily recruited into their armed forces"
(Article 2). This provision is in itself positive,
but is considerably weakened by the following
provision, which permits voluntary recruitment below
the age of 18 years (it imposes the obligation on
States to "raise the minimum age in years" for
voluntary recruitment from the present age limit of
15 years, and this obligation does not apply to
military schools) thus providing a possibility
for circumventing the age limits set to recruitment.
It is to be hoped that the Committee on the Rights
of the Child will compensate for the weaknesses of
the text by a strict interpretation, including by
emphasising that all the relevant provisions of the
Convention apply simultaneously.
3."Armed groups, distinct from the armed forces of a
State, should not under any circumstances, recruit
or use in hostilities persons under the age of 18
years." (Article 4, paragraph 1). The ICRC welcomes
the fact that the issue of non-state actors has been
included in the Optional Protocol, but regrets that the provision imposes a moral, as opposed to a
legal obligation. Although Article 4 also
provides for criminal prosecution under domestic
law, this is likely to be of limited effect, because
those who take up arms against the lawful Government
of a country already expose themselves to the most
severe penalties of domestic law, and because the
capacity of a Government to enforce its laws is
often very limited in situations of
non-international armed conflicts. Third, it is
uncertain whether non-state actors will feel bound
by a norm which is different from that imposed on
States, and thus whether it will be respected.
In its written observations submitted to the UN
Secretariat, the ICRC calls on States to ratify the
Optional Protocol as soon as this becomes possible
and to effectively implement the obligations
contained therein. It also reaffirms the willingness
of the Movement to continue its work for the
non-recruitment and non-participation of children in
hostilities, including by identifying children at
risk of becoming soldiers, providing them with
alternative sources of income and respect, and by
raising awareness in society not to allow children
to join armed forces or groups. |
