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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"

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.

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. 

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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; ..

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.