HOSTILITIES 1 5.1 Introduction
5.3 The combatant status of under-aged child soldiers recruited into non-State-armed groups in international armed conflicts
i. An introduction to combatant status under IHL
At the heart of IHL, is the notion that every individual in the theatre of international armed conflict must be categorised as either a combatant or a civilian, and serious legal consequences flow from this determination125. ‘As a matter of customary international law (applicable to all parties to an
international armed conflict)’126 combatant status is extended to all members of the armed forces127 (irrespective of whether they are members of a regular or irregular armed force) who:
123 The ICC, in the Lubanga trial, has stated that this customary international law prohibition against the recruitment of child soldiers applied ‘equally to international and non-international conflicts, and to State and non-State armed groups’ (Wakabi ‘Lubanga Trial Highlights Plight of Child Soldiers’).
124 Coalition Against Child Soldiers Child Soldiers: Global Report at 32.
125 Ipsen (1995) ‘Combatants and Non-combatants’ at 65.
126 Henckaerts and Doswald-Beck Customary International Humanitarian Law at rule 3 and rule 4.
127 As per the functional based definition set out in API article 43(1) which replaced the membership based regime which existed under GCIII (Daphne Richemond-Barak (2011)
‘Non-State Actors in Armed Conflict: Issues of Distinction and Reciprocity’ in William C Banks (ed) New Battlefields Old Laws: Critical Debates on Asymmetric Warfare (Columbia Studies in Terrorism and Irregular Warfare) at 2502-9; 2509-17 and 2495-2502). No longer do irregulars have to prove that they wore a uniform; carried their arms openly; or that they enjoyed political recognition (Nils Melzer (2009) Targeted Killing in International Law Oxford University Press: Oxford at 307; Kalshoven and Zegveld Constraints on the Waging of War:
a) ‘fight in an international armed conflict;
b) on behalf of a party to a conflict’128;
c) who subordinate themselves to its command129 and d) behave in accordance with the laws of war130
While the new customary law understanding of one’s primary combatant status does away with the visibility requirement (previously contained in GCIII article 4A(2))131, combatants are nevertheless still obliged to distinguish themselves from the civilian population, or risk the forfeiture of their secondary POW status upon capture132. Those who enjoy combatant
International Humanitarian and Human Rights Law’ at 17-18; Mirko Sossai ‘Status of Private Military and Security Company Personnel in the Law of International Armed Conflict’ in Francesco Francioni and Natalino Ronzotti (eds) War By Contract: Human Rights,
Humanitarian Law and Private contractors (2011) Oxford University Press: Oxford at 199 – 200).
128 The relationship of belonging may ‘be officially declared, but may also be expressed through tacit agreement or conclusive behaviour that makes clear for which party the group is fighting’ (Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in
Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 18).
129 Henckaerts and Doswald-Beck Customary International Humanitarian Law at rule 4.
130 What is key is that the irregulars must ‘conduct hostilities on behalf and with the agreement of that party’ (ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under IHL (May 2009) available at
http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature-020609 (accessed 7 August 2011) (Interpretive Guide) at 23; Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 18). As Rogers points out ‘it is a matter of [a measure of] organisation and discipline, which goes to the root of the definition of armed forces’ (Anthony PV Rogers ‘Unequal Combat and the Law of War’ (2004) 7 Yearbook of International Humanitarian Law 3 at 14-15; Fritz Kalshoven and Liesbeth Zegveld Constraints on the Waging of War: An Introduction to International Humanitarian Law (2010 4th ed) Cambridge University Press: Cambridge at 87; Sossai ‘Status of Private Military and Security Company Personnel in the Law of International Armed Conflict’ at 200; Richemond-Barak
‘Non-State Actors in Armed Conflict: Issues of Distinction and Reciprocity’ at 2502-9;
Christopher Greenwood (1991) ‘Customary Law Status of the 1977 Additional Protocols’ in Astrid JM Delissen and Gerard J Tanja (Eds) Humanitarian Law of Armed Conflict:
Challenges Ahead T.M.C Asser Instituut: Martinus Nijhoff Publishers at 107). Some
academics maintain that a combatant cannot lose their primary combatant status even if their actions violated IHL (Garth Abraham ‘“Essential Liberty” Versus “Temporary Safety”: The Guantanamo Bay Internees and Combatant Status’ (2004) 121 South African Law Journal 829 at 844; George Aldrich ‘New Life for the Laws of War’ (1981) 75 American Journal of International Law at 773; Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 20), although they do concede that they will likely face court martial and punishment. While others like Rogers argue that consistent violation of IHL, that goes unpunished ‘is strong evidence that the group does not qualify as ‘armed forces’, since it fails to meet the criterion of an internal disciplinary system’ (Rogers ‘Unequal Combat and the Law of War’ at 16).
131 Henckaerts and Doswald-Beck Customary International Humanitarian Law at 15 and rule 106.
132 Idem at rule 106; Knut Ipsen (2008) ‘Combatants and Non-combatants’ in Dieter Fleck (ed) The Handbook of Humanitarian Law in Armed Conflict Oxford University Press: Oxford at 93. ‘In the whole of API, article 48 (parties shall at all times distinguish between the civilian
status133 are then authorised to participate directly in hostilities134. Until they surrender, are captured, or are rendered hors de combat135, this authorisation makes it permissible for the opposing force to treat combatants as legitimate military objectives, and target them for attack136. Once captured, their primary combatant status translates into secondary POW privilege137, and affords them immunity from prosecution for their participation in hostilities, provided they have observed the laws of war during hostilities138.
Every person, who is not obviously a traditional combatant or a member of the levée en masse’, and who falls into enemy hands, is
presumed to have protected civilian status, until their status can be accurately determined by a competent tribunal139. Amongst this ‘civilian’ category we find ordinary civilians and those non-combative ‘persons accompanying the armed forces’ (like civilian contractors)140. Civilian status comes with the benefit of immunity from attack, and the right to be shielded against the effects of the conflict. These perks are of course solely dependent on the civilian not compromising his protected status by playing any part in the hostilities. Civilians who do participate in hostilities, without the necessary authorisation, are sometimes referred to as ‘unlawful or unprivileged’
combatants141, but in fact there is no such legal category. The consequences for being found participating directly in hostilities without the requisite
133 In this category we find not only the ‘traditional combatant’, but also the ‘levée en masse’, which is the term given to ‘the inhabitants of a country which ... spontaneously take up arms to resist the invading troops without having time to form themselves into an armed force.
Such persons are considered combatants if they carry arms openly and respect the laws and customs of war’ (Henckaerts and Doswald-Beck Customary International Humanitarian Law at 18).
134 There is an exception to this general rule that combatants are authorised to participate in hostilities: ‘civilians accompanying the armed forces without actually being members thereof, and members of crews of the merchant navy and of civil aircraft, are not entitled to take a direct part in hostilities. In the event of such participation as unprivileged belligerents they must expect to be prosecuted in the same manner as all other civilians who are prohibited from taking a direct part in hostilities’. They are the only categories of civilians who upon capture acquire POW status (Ipsen (1995) ‘Combatants and Non-combatants’ at 105 and 107).
135 Which means disabled or injured.
136 Steven Oeter (1995) ‘Methods and Means of Combat’ in Dieter Fleck (ed), The Handbook of Humanitarian Law in Armed Conflict, Oxford University Press: Oxford at 155. As Solis correctly points out ‘a combatant remains a combatant when he/she is not actually fighting’
and ‘a lawful combatant enjoys the combatant’s privilege, but also is a continuing lawful target’ (Gary Solis (2010) The Law of Armed Conflict: International Humanitarian Law in War Cambridge University Press: New York at 188).
137 1907 Regulations Respecting the Laws and Customs of War on Land, Annex to the Hague Convention of 18 October 1907 (HR) article 3(2), GC III article 4A(1-3), AP I article 44(1).
138 Ipsen (1995) ‘Combatants and Non-combatants’ at 93, Goldman and Tittemore
‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 2. Members of the regular armed forces who fail to observe the laws of war do not on account of that fact lose their combatant status, or their ‘right to be treated as a POW’. It may, however, be grounds for a military court martial to prosecute and punish them for this omission (Claude Pilloud, Yves Sandoz and Bruno Zimmermann (1987) ICRC Commentary on Additional Protocols of 8 June 1977 to the Geneva Convention of 12 August 1949 Martinus Nijhoff Publishers: Geneva at 511, GC III articles 4, 5 and 85.
139 AP I article 45(1).
140 GC III article 4A(4), AP I article 50(1), Ipsen (1995) ‘Combatants and Non-combatants’ at
authorisation are dire. Not only does one temporarily lose the immunity from attack normally afforded to civilians, but unauthorised participants also become legitimate military targets for attack, for so long as they persist in their participation in hostilities142. Once captured, unauthorised participants are not treated as POWs (which is a privilege extended only to lawful combatants) - instead they may face criminal prosecution under the State’s domestic legislation, solely on the basis that they participated in the hostilities without the requisite authorisation143.
IHL has for some time already acknowledged the presence of children in the theatre of war. However, most of the provisions dealing with child soldiers have dealt exclusively with children who are ‘enrolled in the armed forces’ or who take ‘part in a mass uprising of the population (levée en
masse)’144. And in these instances, it is argued that these child soldiers ‘do in fact have combatant status and are ipso facto entitled to prisoner-of-war status if captured’145. I turn now to explore the combatant status of the vulnerable under-aged child soldiers who are participating in international armed conflicts on behalf of non-State-armed groups, who may or may not fulfill the criteria of an ‘armed force’ as defined in AP I article 43(1).
ii. Under-aged child soldiers ‘recruited’ into non-State-armed groups -
‘civilians’ participating directly in hostilities
IHL has always regarded ‘children’ as a subset of the group of those afforded civilian status in international armed conflicts, and protected against the effects of warfare by GC IV146 and AP I147. More especially, children have enjoyed preferential treatment in situations of armed conflict owing to their special developmental needs148. In the words of AP I:
‘children shall be the object of special respect and shall be protected against any form of indecent assault. The parties to the conflict shall
142 Grover ‘”Child Soldiers” as “Non-Combatants”: The Inapplicability of the Refugee Convention Exclusion Clause’ at 56.
143 Goldman ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 2.
144 Goodwin-Gill Child Soldiers: The Role of Children in Armed Conflict - A Study on Behalf of the Henry Dunant Institute at 63; Dutli ‘Captured Child Combatants’.
145 Ibid. Since the injunction contained in AP I article 77(2) (against recruiting children under fifteen years of age) is aimed at the State and not the child, ‘children under fifteen years of age who, are recruited or are enrolled as volunteers in the armed forces, also have combatant status and will if captured have POW’ status since there is no minimum age requirement for POW status (Goldman ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 4).
146 GC IV ‘contains numerous provisions benefiting or protecting children both as civilians and in their own right’ (Goodwin-Gill Child Soldiers: The Role of Children in Armed Conflict - A Study on Behalf of the Henry Dunant Institute at 121).
147 AP I articles 77 and 78.
148 These include: ‘free passage of assistance intended for children under fifteen (GC IV article 23); requiring the occupying power to facilitate the good functioning of institutions for the care of children in occupied territory (GC IV article 50(1)); provision of food supplements to interned children (GC IV article 81(3)); moreover there are several provisions dealing with the protection of the family unit which afford special protections to children (AP I articles 77(4) and 74), holding detained children in special facilities (AP I article 77(4)), and lastly the
provide them with the care and aid they require, whether because of their age or for any other reason’149.
Having said that, these special privileges extended to children are conditional upon their preserving their primarily civilian status. The full enjoyment of these privileges is necessarily restricted, the moment the child elects to compromise ‘their civilian status by participating directly in hostilities’150. The consequence of a decision to participate in hostilities can result in the loss of their ‘inviolability as non-combatants’, and can make them a legitimate military target151. Given the dire consequences which flow from this
compromise of their civilian status, some have argued that children ‘must be considered as non-combatants in that they, unlike adult soldiers, have no unqualified right under international law to directly participate in armed
conflict’152. Grover, for example, argues that when children153 (under eighteen years of age) participate directly in hostilities they must be treated as
protected civilians and non-combatants, even where they are voluntarily recruited154. Grover bases her argument on several assertions: firstly, IHL
‘deems their [children’s] participation in hostilities as abnormal’, and IHL prohibits their recruitment and participation in hostilities, which Grover argues necessarily denies them ‘an unqualified right to participate in hostilities’155. Secondly, Grover cites the ‘presumption of civilian status, which prevails in cases of doubt’156, as the authority for her position that ‘children … taking a direct part in hostilities … also retain their civilian status’157. Thirdly, Grover argues that since there is no minimum age requirement for POW status158, the fact that IHL affords ‘special civilian protections to child soldiers under eighteen as opposed to just those protections associated with ordinary prisoner of war status, reflects recognition of the child soldier as a “non- combatant” or “protected civilian”’159.
I believe that Grover has over stated the point on each of these
assertions, particularly when one appreciates that she starts from the position that her claim of civilian immunity on the basis of youthfulness applies to all children under eighteen years of age. In respect of her first assertion, it is simply not true that the recruitment of children aged fifteen to eighteen always constitutes a breach of international law (unless a particular State has
149 Article 77 opening paragraph.
150 Breen ‘“When Is a Child Not a Child?” Child Soldiers in International Law’ at 73.
151 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under IHL at 12.
A legitimate military target is defined in the 1968 Declaration of St Petersberg as any
‘individuals whose death or disablement results in that weakening of the armed forces of the enemy, which is the only legitimate aim in war’ (1970) 1 (Eng Supplement) American Journal of International Law 95.
152 ‘The general unqualified right of adult combatants to participate directly in combat is set out in AP I article 43’ (Grover ‘”Child Soldiers”’ as ‘”Non-Combatants”’: The Inapplicability of the Refugee Convention Exclusion Clause’ at 56).
153 Idem at 54.
154 Idem at 56.
155 Ibid.
156 AP I article 50(1).
157 Grover ‘”Child Soldiers”’ as ‘”Non-Combatants”’: The Inapplicability of the Refugee Convention Exclusion Clause’at 56.
158 Which means that, in effect, even the youngest child soldier could technically be granted POW status.
adopted the straight-eighteen ban). The current legal position is that, for the most part, children over fifteen who are voluntarily recruited, would enjoy the right to participate in hostilities as a combatant (and whether this is also true of those recruited into non-State groups would depend on the State’s
domestic legislation160). As for her second assertion, that of presumptive civilian status, Grover misses the point that this legal presumption only operates until a competent tribunal can assess the individual’s claim to combatant and POW status. It is entirely possible that a child soldier might appear before such a tribunal and be granted combatant and POW status.
Lastly, the argument that children under eighteen years of age always qualify for special privileges over and above those afforded regular POWs, just speaks to an understanding that their developmental needs might be more demanding then that of their adult colleagues. It does not necessarily mean that they cannot be classed with combatants. In fact AP I article 77 states ‘…
if in exceptional cases, … 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’ - which seems to suggest that they might acquire POW status (a status which is necessarily reserved for those who enjoy primary combatant status). Ipsen notes that
‘children protected under article 77 can only be POW if they have previously attained the primary status of combatants by being unlawfully recruited into the armed forces of one of the parties to the conflict. This is particularly significant because the combatant status protects the child against being prosecuted upon capture for its direct participation in hostilities’161.
It is certainly correct that the blame for the recruitment of children less than fifteen years of age lies at the recruiter’s door. However, if ‘child soldiers under fifteen [are] arrested, detained or interned by an adverse party due to their soldiering activities, [they] are entitled to receive the special protections afforded child civilians under IHL’162, although this does not necessarily mean that whilst participating in hostilities they are entitled to complete, protected civilian status.
Mulira, on the other hand, proposes a viewpoint, which I think
expresses more accurately the subtle nuances which permeate IHL on this topic. Mulira argues that, ‘although the Protocols prohibit the recruitment and participation of children less than fifteen years of age in armed conflicts, those who do decide to participate are recognised as combatants and lose the protections afforded civilians under IHL’163. She then goes on to clarify that once captured these child soldiers do enjoy the special treatment afforded to children164.
The differing viewpoints found in a variety of legal opinions reveal that there is indeed a need to clarify the issue of the IHL status of under-aged child soldiers, especially when they are recruited to fight for non-State-armed
160 So for example, for those States who had signed up to OP-AC, and who had legislated to enforce the straight-eighteen ban stipulated against non-State-armed groups, in these instances it would be a domestic offence to recruit children under eighteen years of age into non-State-armed groups.
161 Ipsen (1995) ‘Combatants and Non-combatants’ at 73.
162 AP I article 77.
163 Dorcas B Mulira ‘International Legal Standards Governing the Use of Child Soldiers’
(2007) Paper 88 LLM Theses and Essays, available at