HOSTILITIES 1 5.1 Introduction
5.2 The international law response to the issue of recruiting under-aged child soldiers: IHL, international and regional human rights law,
international criminal law, and evolving customary international law
i. International humanitarian law
In almost every traditional culture there is reference to the belief that children should be excluded from warfare39. While historically there were compelling and pragmatic reasons for excluding children from the theatre of warfare, based largely around the belief that ‘adult strength and training were needed to use pre-modern weapons’40, this is no longer the case in modern armed conflicts41.
While the very early IHL treaties42 expressed the view that ‘children should be especially protected against warfare’43, one had to read into the Clarendon Press: Oxford at 63 and 66). Iraqi soldiers have confirmed that ‘the Iranian child soldiers against whom they fought were the most difficult because “they had not fear”, and an army without fear is the most dangerous army in the world’ (Geraldine Van Beuren ‘The International Legal Protection of Children in Armed Conflicts’ (1994) 43 International and Comparative Law Quarterly 809 at 813).
37 U.S. Special Forces also faced Somali child soldiers in 1993 in Mogadishu, as did NATO forces in Kosovo in 1999 (Singer Children at War at 163).
38 The use of the term ‘child soldier’ in this work is defined according to the Cape Town Principles (see footnote 17).
39 Singer Children at War at 9.
40 Idem at 10.
41 Idem at 14.
42 1924 Geneva Declaration of the Rights of the Child (ICRC) available at http://www.un- documents.net/gdrc1924.htm; Maria Dutli ‘Captured Child Combatants’ (1990) 278 International Review of the Red Cross 421 available at
http://www.icrc.org/eng/resources/documents/misc/57jmea.htm (accessed 15 December 2011).
43 Denise Plattner ‘Protection of Children in International Humanitarian Law’
(1984) 240 International Review of the Red Cross 140 available at
1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War’s (GC IV)44 prohibition against ‘compulsory labor for those under eighteen’ for any prohibition against ‘compulsory enlistment of child
soldiers’45. Only in 1977, the additional protocols (AP I46 and AP II47) to the four Geneva Conventions (GC), stated for the first time in an international treaty, that the recruitment of child soldiers under fifteen years of age was contrary to IHL48. Even today one will not find any IHL provision stating outright that ‘a child may never become a combatant’49.
In so far as international armed conflicts are concerned, API now dictates that ‘States should take all feasible measures50 to ensure that children under fifteen years of age should not take a direct part in
hostilities’51. In line with this directive, AP I prohibits ‘all States party to the protocol from conscripting children under the age of fifteen into the armed forces’52. The ICRC’s commentary on the drafting of the two AP’s, reveals that arriving at agreement on the fifteen-year age limit was not without
lengthy debate53. The initial proposal had been for an eighteen-year age limit, but that proposal was rejected because a number of influential States still had domestic legislation in place that permitted the ‘recruitment of children under eighteen years of age, into their armed forces’54 (a reality that continues
44 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC IV) of August 12 (1950) 75 U.N. Treaty Series 287.
45 CG IV article 51; Claire Breen ‘“When Is a Child Not a Child?” Child Soldiers in International Law’ (2007) January-March Human Rights Review at 77.
46 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (AP I) (1979) 1125 U.N. Treaty Series 1391. At present there are 171 States party to AP I.
47 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts (AP II) (1979) 1125 U.N.
Treaty Series 609. At present there are 166 States party to AP I.
48 ICRC Children Protected Under IHL (29 October 2010) available at
http://www.icrc.org/eng/war-and-law/protected-persons/children/overview-protected-
children.htm (accessed 7 August 2011). Whilst GC III makes reference to women POW’s, ‘no mention at all is made of child POWs’ (Françoise J Hampson ‘Legal Protection Afforded to Children Under International Humanitarian Law’ (1996) Report for the Study on the Impact of Armed Conflict on Children by University of Essex) available at
http://www.essex.ac.uk/armedcon/story_id/000578.html (accessed 1 February 2012)).
49 Goodwin-Gill Child Soldiers: The Role of Children in Armed Conflict - A Study on Behalf of the Henry Dunant Institute at 61. While GC IV makes no mention of ‘child soldiers’ per se, it does ‘afford lesser protection to children between the ages of fifteen and eighteen’ (Rosen
‘Who is a child? The Legal Conundrum of Child Soldiers’ at 88).
50 At the ICRC’s diplomatic conference tasked with drafting AP I, the initial proposal was for States party to take ‘all necessary measures’ - a more mandatory demand which failed to achieve State support (Breen ‘“When Is a Child Not a Child?” Child Soldiers in International Law’ at 77).
51 According to the ICRC’s Commentary on AP I, the prohibition found in article 77(1-3) also precludes children under fifteen years of age from voluntarily signing up to gather
information, transmit orders, deliver ammunition and food, or participate in acts of sabotage (Breen ‘“When Is a Child Not a Child?” Child Soldiers in International Law’ at 78).
52 As Udombana points out - ‘voluntary enrolment was not explicitly mentioned... an omission that probably was deliberate’. If one scrutinises the writings of the Rapporteur for the Working Group of Committee III, we find that this was as a result of the belief that ‘it would not be realistic to completely prohibit voluntary participation of children under fifteen, especially in occupied territories and in wars of national liberation’ (Udombana ‘War is Not Child’s Play!
International Law and the Prohibition of Children’s Involvement in Armed Conflicts’ at 76).
53 Breen ‘“When Is a Child Not a Child?” Child Soldiers in International Law’at 78.
today). Consequently, the fifteen year minimum was proposed as a
compromise55, with a clause tacked on to article 77(2) which stipulates that in the case of recruitment, States party to the protocol should give preference to the oldest when they recruit children between fifteen and eighteen years of age56. Initially the ICRC had also proposed that AP I be worded to restrict even ‘indirect participation in hostilities, such as the transmission of information, transport of arms and provision of supplies’57. However, this proposal was rejected given the perception that such a requirement would be unrealistic in the existing climate which characterised the wars of national liberation58.
It is interesting to note that when the wording of AP II was debated, in respect of non-international armed conflicts, States opted for a much more rigorous clause in article 4(3)(c) which reads: ‘children ... shall neither be recruited in the armed forces or groups, nor allowed to take part in hostilities
… regardless of whether the participation is of a direct or indirect nature’59. The resultant effect was to impose an absolute ban on the involvement of any children, under fifteen years of age, in situations of internal conflicts. The intended effect of this clause was to deny rebel groups the perceived
advantage that they had by being able to recruit child soldiers60. In line with this thinking, ‘the U.N. Secretary-General demanded that non-State actors involved in conflict not use children below the age of eighteen in hostilities’, and he backed this demand with the promise of ‘targeted sanctions if they did not comply’61.
This legal distinction (between the children recruited into non-State- armed groups and those recruited into the State’s armed forces) is
problematic for child soldiers recruited into non-State-armed groups fighting in armed conflicts of an international character. While AP II contains an outright ban on non-State-armed groups recruiting children less than fifteen years of age, this treaty is not applicable in conflicts of an international character. Having said that, AP I does permit non-State actors, ‘involved in
“internationalised” conflict within the terms of article 1(4)’, the right to unilaterally ‘declare their adherence to GC’s and API’, which Goodwin-Gill limit the assignment of such recruits to inactive duty’ (Goodwin-Gill Child Soldiers: Child Soldiers: The Role of Children in Armed Conflict - A Study on Behalf of the Henry Dunant Institute at 62).
55 Udombana ‘War is Not Child’s Play! International Law and the Prohibition of Children’s Involvement in Armed Conflicts’ at 76.
56 Breen ‘“When Is a Child Not a Child?” Child Soldiers in International Law’ at 78. The ICRC has continued to seek to raise the minimum age from fifteen to eighteen years, for children to participate directly in hostilities. In 1991, the ICRC requested that the Henry Dunant Institute
‘undertake a study ... on the recruitment and participation of children as soldiers in armed conflicts, and on measures to reduce and eventually eliminate such recruitment and participation.’ The result of the study was the book Child Soldiers: The Role of Children in Armed Conflict by Ilene Cohn and Goodwin-Gill (Udombana ‘War is Not Child’s Play!
International Law and the Prohibition of Children’s Involvement in Armed Conflicts’ at 91 and 92).
57 Goodwin-Gill Child Soldiers: The Role of Children in Armed Conflict - A Study on Behalf of the Henry Dunant Institute at 61.
58 Idem at 62.
59 According to Goodwin-Gill ‘voluntary or indirect participation of those under fifteen is equally ruled out’ (Idem at 64).
60 Rosen ‘Who is a child? The Legal Conundrum of Child Soldiers’ at 92; Ipsen (1995)
‘Combatants and Non-combatants’ at 217.
and Cohn argue makes many of AP I’s provisions (including article 77 on recruitment) binding on ‘all parties to the conflict, as opposed only to States’62.
ii. International and regional human rights law
As early as 1924, the international community - through the League of Nations - stressed ‘the need for special care and protection’ for children, when they endorsed the first Declaration on the Rights of the Child63. This was followed in 1948 by the U.N. Universal Declaration of Human Rights64, the U.N. Declaration on the Rights of the Child in 195965, and then the U.N.
Declaration on the Protection of Women and Children in Emergencies and Armed conflict in 197466. However it was not until 1989, when the U.N.
Convention on the Rights of the Child (UNCRC)67 became one of the most widely ratified international human rights treaties, that the rights of children were really given effect. A year later, in 1990, the World Summit for Children adopted the World Declaration on the Survival, Protection and Development of Children, which added impetus to the speed with which the UNCRC received the necessary ratifications for it to enter into force. The speed with which the UNCRC attained the required ratifications, prompted international lawyers to suggest that ‘the UNCRC became international customary law almost at the time of [its] entry into force’68 - a remarkable first for
international law. The UNCRC achieved other notable firsts in the field of human rights law: ‘unlike many other human rights treaties, the UNCRC has no general derogation clause allowing States to suspend certain rights in times of emergency’69. Moreover, the treaty applies to all children under the jurisdiction of a signatory State, and is not restricted to those children who are nationals of the signatory State.
The UNCRC defines ‘a child’ as ‘every human being below the age of eighteen years’70, and extends special protections to ‘children’ in a myriad of circumstances. However, if we examine article 38, the sole provision dealing with the effects of conflict on children, there is a notable departure from the eighteen-year age limit that applies to all the other provisions in the UNCRC.
62 Goodwin-Gill Child Soldiers: The Role of Children in Armed Conflict - A Study on Behalf of the Henry Dunant Institute at 123.
63 1924 Geneva Declaration of the Rights of the Child (adopted by the League of Nations on 26 September 1924) available at http://www.un-documents.net/gdrc1924.htm (accessed 15 December 2011). The Declaration had been proposed the year before, by an NGO called Save the Children International Union (Ayissi ‘Protecting Children in Armed Conflict: From Commitment to Compliance’ at 6; Goodwin-Gill Child Soldiers: The Role of Children in Armed Conflict - A Study on Behalf of the Henry Dunant Institute at 55).
64 General Assembly Resolution 217 A (III) (adopted 10 December 1948) available at http://www.un.org/en/documents/udhr/ (accessed 21 February 2012).
65 General Assembly Resolution 1386(XIV) (adopted 20 November 1959) available at http://www.unicef.org/lac/spbarbados/Legal/global/General/declaration_child1959.pdf (accessed 21 February 2012).
66 General Assembly Resolution 3318 (XXIX) (adopted 14 December 1974) available at http://www.ohchr.org/english/law/protectionwomen.htm (accessed 15 December 2011).
67 1989 U.N. Convention on the Rights of the Child (UNCRC) (1989) 1577 U.N. Treaty Series at 3. At present there are 193 States that are party to the UNCRC.
68 Udombana ‘War is Not Child’s Play! International Law and the Prohibition of Children’s Involvement in Armed Conflicts’ at 58.
69 Goodwin-Gill Child Soldiers: The Role of Children in Armed Conflict - A Study on Behalf of
Sadly, article 38 failed the world’s children in perhaps their most notable time of need. As the Swiss delegation pointed out to the Working Group on the UNCRC Protocol, ‘there is no reason for lowering the limit … precisely in a sphere in which the rights of the child are exposed to grave danger’71. Despite thirteen years of child rights’ activism since the Additional Protocols were adopted, the UNCRC could not garner support for a straight-eighteen ban on the recruitment of child soldiers, and instead settled for restating the legal position, as it had been reflected in the AP I in 1977. Child rights’
activists argued that the failure to adopt the eighteen years age limit, together with a total ban on any level of participation in hostilities by a child, seemed to undermine the ground that had been gained in the progressive wording of AP II (which ‘provides a more absolute and comprehensive prohibition for non- international armed conflicts’)72.
Two years after the UNCRC entered into force, the UNCRC
Committee began discussions on the topic of ‘children in armed conflict’, with a view to ameliorating the unsatisfactory protection provided by the ‘pre- existing fifteen-years-of-age standard for recruitment’73. These discussions led to the appointment in 1994 of Ms Graça Machel, who was tasked with conducting a study into the impact of armed conflict on children. The Machel report74 endorsed the position that ‘war violated every right of a child’75, and not surprisingly ‘recommended eighteen years as the minimum age for recruitment into armed forces or groups, and for participation in hostilities’76.
Drawing on the findings of the Machel report, the UNCRC Committee drafted the Optional Protocol to the UNCRC on the Involvement of Children in Armed Conflict (OP-AC)77, and opened it for ratification in 2000. The main thrust of the Protocol was to increase ‘the minimum age for compulsory recruitment and participation in hostilities of children, from fifteen to eighteen years of age, and to explicitly include non-State actors under its coverage’78. Although the negotiations on the OP-AC failed to establish a ‘straight-
71 Udombana ‘War is Not Child’s Play! International Law and the Prohibition of Children’s Involvement in Armed Conflicts’ at 97.
72 Daniel Helle ‘Optional Protocol on the Involvement of Children in Armed Conflict to the Convention on the Rights of the Child’ (2000) 839 International Review of the Red Cross at 3.
73 Udombana ‘War is Not Child’s Play! International Law and the Prohibition of Children’s Involvement in Armed Conflicts’ at 92.
74 UNICEF Impact of Armed Conflict in Children (‘the Machel Report’) (1996) available at http://www.unicef.org/graca/ (accessed 1 December 2011).
75 Udombana ‘War is Not Child’s Play! International Law and the Prohibition of Children’s Involvement in Armed Conflicts’ at 92. Another recommendation flowing from the Machel Report was that a ‘representative of the Secretary-General’ should be appointed to Report on the implementation of the Report. A Ugandan, Olara Otunnu, was the first appointment to this position (Ayissi ‘Protecting Children in Armed Conflict: From Commitment to Compliance’ at 7). 76 Udombana ‘War is Not Child’s Play! International Law and the Prohibition of Children’s Involvement in Armed Conflicts’ at 93.
77 2000 Optional Protocol to the UNCRC on the Involvement of Children in Armed Conflict, (2000) 2173 U.N. Treaty Series 222 (Doc.A/RES/54/263). OP-AC currently has 142 States party to it (including many African States where child soldier recruitment is rife), and it entered into force on 12 February 2002. It is interesting to note that in 2002 the U.S. was pressurised to ratify its signature two years prior to the OP-AC, despite the fact that they had not yet ratified their signature of the UNCRC, or either of the two 1977 AP’s (Matthew Happold ‘Child Soldiers: Victims or Perpetrators?’ (2008) 29 University of La Verne Law Review 56). Interestingly, Afghanistan acceded to the Optional Protocol on September 24,
eighteen’ ban across the board, it did impose considerably more stringent demands in cases of recruitment by non-State-armed groups. Echoing the sentiments of AP II, OP-AC imposed the straight-eighteen ban even in cases of voluntary recruitment79, and dictated that States party to the Protocol were to criminalise the recruitment of children less then eighteen years of age by non-State-armed groups, by way of the States’ domestic legislation80. Sadly, the same was not demanded of States with regard to recruitment into the States’ armed forces. Under OP-AC, States are obliged to refrain from compulsory recruitment (or conscription) of under-eighteens into their armed forces81, and to undertake to ‘raise the minimum age for voluntary recruitment into their armed forces from fifteen to eighteen’82. However, as the treaty stands at the moment, States party to OP-AC are legally still permitted to recruit those between sixteen and eighteen years of age, provided the
safeguarding requirements set out in OP-AC are met. OP-AC exhorts States to take ‘all feasible measures to ensure that under-eighteens who volunteer in the States’ armed forces do not take a direct part in hostilities’83. However, OP-AC opted not to adopt the language found in AP II article 4(3)(c), ‘which prohibits any participation in hostilities’84(even indirect participation).
While the UNCRC had been paralysed by the resistance of some States to the adoption of a straight-eighteen ban, the African Union (AU) took the lead when in 1999 The African Charter on the Rights and Welfare of the Child (ACRWC)85 came into force - ten years after it was opened for
ratification. The ACRWC is notable for being the first international law treaty that imposes a more stringent straight-eighteen ban on child recruitment and direct participation in hostilities, across the board86. Unfortunately, though, it is only binding on the thirty-seven AU member States who have ratified the ACRWC, which means that before the straight-eighteen ban can be applied to non-State-armed groups, these signatory States will have to pass domestic legislation to that effect.
This gradual move towards an eighteen-year minimum for the voluntary recruitment of individuals into the armed forces, is in line with the legal age of majority adopted by most States, where eighteen is considered the legal age
79 Article 4(1).
80 Article 4(2); Coleman ‘Showing its Teeth: The International Criminal Court Takes On Child Conscription in the Congo, But is its Bark Worse Than its Bite?’ at 775.
81 Article 2.
82 Article 3(1). Of the 142 States party to the OP-AC, two thirds of States party ‘have
committed themselves to setting a minimum voluntary recruitment age at eighteen or higher’.
OP-AC demands that States obtain informed consent from legal guardians, fully reveal the duties involved in military service, and only permit voluntary sign-up once proof of age is provided (article 3(3). Despite these safeguards, the ‘risk of inadvertent under-age recruitment of children, because of low birth registration rates’, is a very real problem, particularly in warn-torn African States (Coalition Against Child Soldiers ‘Facts and Figures on Child Soldiers’ (2009) available at http://www.childsoldiersglobalReport.org/content/facts- and-figures-child-soldiers (accessed 12 August 2011) at 22).
83 Article 1.
84 Udombana ‘War is Not Child’s Play! International Law and the Prohibition of Children’s Involvement in Armed Conflicts’ at 94.
85 1990 African Charter on the Rights and Welfare of the Child (adopted by the O.A.U. on the 11 July 1990) CAB/LEG/24.9/49 available at
http://www.unhcr.org/refworld/docid/3ae6b38c18.html (accessed 12 August 2011). The ACRWC currently has thirty-seven African States party (see
http://www.au.int/en/sites/default/files/96Welfare_of_the_Child.pdf (accessed 12 August