HOSTILITIES 1 5.1 Introduction
5.4 Under-aged child soldiers recruited to participate directly in hostilities in non-State-armed groups - assessing combatant and
POW status
‘Recruiting or using children under the age of fifteen as soldiers is incontrovertibly prohibited under IHL– treaty and custom’270, and this prohibition is applicable to non-State-armed groups. Consequently, a child soldier who is under fifteen years of age would necessarily have been unlawfully recruited according to existing customary IHL. Despite pressure from human rights activists to adopt a straight-eighteen ban in cases of recruitment by non-State groups, the adoption by the international
community, of a universal age limit of eighteen, has still not been attained271. Consequently, it is highly debatable whether any straight-eighteen ban, applicable to non-State-armed groups in international armed conflicts, can be said to have achieved customary status. As a consequence of this, the child soldier over fifteen years of age might plausibly have been lawfully recruited (provided the straight-eighteen ban was not legally applicable in the particular case as a result of the jurisdictional State’s domestic legislation272), and
269 Singer Children at War at 103.
270 U.N. ‘The Six Grave Violations Against Children During Armed Conflict’ at 7.
271 ICRC Children Protected Under IHL.
consequently entitled to combatant status. The real issue is whether it is at all possible for child soldiers under fifteen years of age to also acquire this
status?
The issue of the ‘combatant/civilian’ status of the under-aged child soldiers recruited into a non-State-armed groups and involved in an international armed conflict, is a complex legal question. The treatment of these child soldiers upon capture is dependent upon their individual claims to combatant or civilian status. If they can be classified as members of the
‘armed forces’ as defined in AP I article 43(1), they acquire combatant and POW status upon capture, and immunity from prosecution for ‘participating in hostilities’, provided they comply with the laws and customs of war. Civilians, on the other hand, who participate directly in hostilities, do so without
authorisation and consequently face criminal prosecution for their actions.
Since the legal implications of being found to be a lawful combatant and a protected POW are so important, it is imperative that IHL provide guidance to those who are engaging in hostilities against under-aged child soldiers - an issue which has been fudged for too long. Since armed forces ‘now face real and serious threats from [child] opponents whom they generally would prefer not to harm’, ‘being unwilling or unable to operate in child soldier zones is a recipe for strategic inaction’273, even though fighting children has a
demoralising effect on troop morale274.
We know from the discussion above that children under fifteen years of age who participate directly in hostilities, lose their civilian immunity from attack. ‘To conscript or recruit soldiers, of whatever age, is necessarily to change their status; to convert them from civilians … to fighters who can be personally attacked on that account alone’275. Which begs the question - is it possible for these under-aged soldiers, who are recruited into non-State- armed groups, to acquire full combatant status with the attendant privileges?
It is important to note that ‘no one is born a combatant ... without being a civilian first’276. However, once a civilian becomes a ‘member of the armed forces of a belligerent party’277 (other than medical personnel and chaplains), they are presumed to acquire primary combatant status and secondary POW privileges upon capture278. Moreover, this combatant status is granted
unlawful at a domestic level for non-State-armed groups to recruit children under eighteen years of age.
273 Singer Children at War at 164 and 166.
274 Idem at 170.
275 Goodwin-Gill Child Soldiers: The Role of Children in Armed Conflict - A Study on Behalf of the Henry Dunant Institute at 70.
276 Shlomy Zachary ‘Between the Geneva Conventions: Where does the Unlawful Combatant Belong?’ (2005) 38 Israel Law Review 378 at 390.
277 Irrespective of whether they are ‘regular or irregular, including paramilitary units incorporated de facto in the armed forces’ (Goldman ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 11).
278 GC III article 4A (1) and (3), Goldman ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 11. It is worth mentioning at this juncture that that in an armed conflict, only a recognised subject of international law can clothe their armed forces with authorised
combatant status. This status is not given to the individual, but is granted as a result of his or her affiliation to a party to the conflict which is a subject of international law (Ipsen (1995)
‘Combatants and Non-combatants’ at 66-67). ‘Private citizens and independent armed groups have always been excluded from entitlement to the combatant privilege and POW
irrespective of the ‘specified task assigned to an individual within the military apparatus’279, their ‘function, or contribution or lack thereof with respect to the war effort’280. The rule that combatant status derives from ones mere
membership in the armed forces, rather then ones function281, is widely acknowledged without any State practice to the contrary282.
As a general rule combatants cannot forfeit their combatant status and POW privilege, even if they are found in breach of IHL283. There is however one exception to this rule - POW status can be forfeited in instances where the combatant is found in breach of the minimum obligations of distinction expressed in AP I article 44(3) (2nd sentence). If however, they fail to observe this minimum requirement for distinction284, they will then forfeit their POW status, and may be liable for prosecution285 for breach of the principle of distinction286. A classic example of an instance where POW status is forfeited is when a combatant is captured while spying287.
As a general rule, a recognised State’s armed forces have always been clothed with combatant status and given the authorisation to participate directly in hostilities288. There has never been any minimum age limit required for the awarding of POW status289. Consequently, IHL has always recognised that any children, irrespective of their age, who ‘enrolled in the armed forces’
or who take ‘part in a mass uprising of the population (levée en masse), do in fact have combatant status and are ipso facto entitled to prisoner-of-war
individuals on their own initiative’ (Dinstein The Conduct of Hostilities under the Law of International Armed Conflict at 43).
279 Dinstein The Conduct of Hostilities under the Law of International Armed Conflict at 33.
280 Jensen ‘Direct Participation in Hostilities’ at 1535-1544.
281 Jensen ‘Direct Participation in Hostilities’ at 1595-1604.
282 Dale Stephens and Angeline Lewis ‘The Targeting of Civilian Contractors in Armed Conflict’ (2006) 9 Yearbook of International Humanitarian Law 25 at 30.
283 Ipsen (1995) ‘Combatants and Non-combatants’ at 95.
284 Henckaerts and Doswald-Beck Customary International Humanitarian Law at 15. The requirement of visibility is now ‘relevant with respect to a combatant’s entitlement to POW status’ (AP I article 44, Henckaerts and Doswald-Beck Customary International Humanitarian Law at 15 and rule 106).
285 If commanders do not try their soldiers for failing to distinguish themselves they will be found to be violation of AP I articles 86 and 87, with liability flowing up the chain of command (Goldman ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 20). The ‘requirement of an internal disciplinary system supplements the provisions concerning command
responsibility and is a corollary to the obligation to issue instructions which comply with IHL’
(Henckaerts and Doswald-Beck Customary International Humanitarian Law at 16).
286 Goldman ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 22.
287 ‘Spies are persons who clandestinely, or under false pretences, gather information in the territory controlled by the adversary. Even if they are members of the armed forces, they do not have the right to POW status. Persons who fall into the hands of the adversary while engaged in espionage shall be liable to punishment’ (Ipsen (1995) ‘Combatants and Non- combatants’ at 110; Henckaerts and Doswald-Beck Customary International Humanitarian Law at 16 and rule 106-108; Goldman ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 10).
288 As an exception to this general rule, there are a number of groups of service personnel (like medical and religious personnel), within the ranks of the armed forces who are denied authorisation (by national legislation) to ‘use a weapon or a weapons system’ and are consequently called non-combatants (HR article 3, GC I articles 24, 26 and 27, AP I article
status if captured’290. If this is the position for the child soldiers recruited into the States armed forces or participating in the levée en masse, what do we make of the case of the under aged child soldier recruited into a non-State- armed group, who participates directly in an international armed conflict?
Non-State-armed groups have traditionally been singled out for more demanding treatment under IHL in so far as awarding them combatant status is concerned. While it was assumed that the ‘regular armed forces would as a matter of course’ do all that was necessary to merit their being clothed with combatant and POW status291, the same was not true of non-State-armed groups. GC III article 4A(2) set out six criteria292 required of these non-State- armed groups in order to afford them combatant and POW status293.
The requirements are:
1. Belong to an organised group294; 2. Belong to a party to the conflict295;
3. ‘Be commanded by a person responsible for his subordinates’296; 4. ‘The group must ensure that its members have a fixed, distinctive sign
recognisable at a distance’297;
290 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.
291 While IHL (more particularly GC III article 4A (1) and (3)) presumes that members of the regular armed forces will always observe the requirements of a uniform, organised hierarchy and compliance with the laws of war, the same assumption is not made of irregular armed forces (Jean Pictet (1960) ICRC Commentary on GC III ICRC: Geneva at 63; Henckaerts and Doswald-Beck Customary International Humanitarian Law at 15).
292 If the members generally (i.e.as a collective) ‘meet all 6 conditions all the of the time then individual members who fail to observe any of the 4-6 will not lose their privileged combatant or POW status upon capture’ (Goldman ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 14).
293 Henckaerts and Doswald-Beck Customary International Humanitarian Law at 15.
294 This requirement is normally characterised ‘by discipline, hierarchy, responsibility and honour’ (Pictet ICRC Commentary on GC III at 58), and can be ‘filled by the most rudimentary elements of military organisation’ (Thomas Mallison and Sally Mallison ‘The Juridical Status of Irregular Combatants Under the International Humanitarian Law of Armed Conflict’ (1977) 9 Case Western Journal of International Law 39 at 50).
295 Put another way, they must fight ‘on behalf of a State party that is engaged in an international armed conflict’ as per GC common article 2, as there is still a ‘customary law proscription against individuals or groups engaging in “private warfare” against a State party involved in an armed conflict’ (Goldman ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 12). ‘Tacit authorization, for example by delivery of weapons to the irregulars, or a de facto relationship between the resistance organisation and the State is sufficient’ (Goldman
‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 12).
296 ‘The leader’s qualifications or authority to lead are not prescribed, all that is required is that the leader must discipline his members who violate IHL, and as a leader he or she must bear ultimate responsibility for the actions taken on his or her orders’ (Goldman ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 12).
297 Members of irregular armed groups need not wear traditional military dress, ‘a helmet, headdress, cap, coat, shirt, badge, armlet, brassard or a coloured sign worn on the chest’, will suffice, provided it is worn constantly, in all circumstances and is ‘visible during daylight and detectable at a distance by the naked eye’ (Idem at 13; U.S. Department of the Army
‘Field Manual 27-10: The Law of Land Warfare’ available at
5. ‘The group must ensure that its members carry their arms openly; and 6. The group must ensure that its members conduct their operations in
accordance with the laws of war’298.
These stringent requirements which were demanded of irregular armed forces under the Geneva Conventions, have been the cause for much controversy, and underlie suggestions that IHL is enforcing a double standard299. Irregulars have argued that the requirements are impossibly demanding, impossible to prove without endangering the group’s identity and location300, with some even suggesting that compliance would be suicidal301. It was this ‘realisation of the inadequacy of these provisions to provide privileged combatant status for those who fight regular military forces in colonial wars, occupied territory and in struggles for self determination, which gave rise to strong initiatives to relax or abolish the 1949 Convention
standards for “freedom fighters” under the 1977 Additional Protocols’302. The 1974-1977 Diplomatic Conference on IHL Applicable in Armed Conflict, set about drafting the APs, with the aim of creating ‘a single and non-discriminatory set of rules applicable to all combatants regular and
irregular alike’303. The task demanded a solution to ensure that guerilla forces were able to attain ‘privileged combatant status without exposing the forces fighting them to the danger inherent in the use of civilian disguise in order to achieve surprise’304.
The essence of the compromise is reflected in AP I articles 43-47 (entitled ‘combatant and POW status’), which set aside the distinction between regular forces and other armed groups. AP I now contains a
‘presumption that anyone who participates in hostilities is entitled to POW status upon capture and the right to have their POW status adjudicated
298 Where these non-State-armed groups are found directing attacks at the civilian
population, ‘causing disproportionate civilian casualties, or otherwise causing unnecessary suffering and destruction’, they would lose their right to claim combatant status (Goldman
‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 14). This last requirement raises and interesting conundrum. Non-State-armed groups who forcibly abduct children under fifteen years of age from civilian communities, to be trained as child soldiers, would be violating IHL and would consequently compromise any claim that the armed group would have to
combatant status. The same could be said of those groups who enlist children under the age of fifteen, even if they maintain that the children joined voluntarily. Moreover, if the straight- eighteen ban ever crystallises into customary IHL, and is applicable in international armed conflicts, then it is plausible that the very act of enlisting child soldiers would compromise the entire group’s claim to combatant status, including the child’s right to claim combatant status.
299 For example: irregular forces have to show individual compliance with the laws of war in order to get POW status, but regular soldiers can breach the laws of war without losing combatant and POW status (although they can be tried in a court martial for these breaches) (Goldman ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 14-15).
300 Idem at 14-16.
301 Since most irregular fighters are part time combatants, the requirement that they wear a fixed distinctive emblem all of the time, even when not engaged in conflict, would ‘be suicidal’, yet that is what IHL demands of them (Idem at 15).
302 Waldemar Solf ‘Response to Douglas J Feith's Law in the Service of Terror - The Strange Case of the Additional Protocol’ (1986-1987) 20 Akron Law Review 261 at 272.
303 George Aldrich ‘Guerrilla Combatants and Prisoner of War Status’ (1982) 31 American University Law Review 871 at 874.
before a judicial tribunal’305. The new definition of ‘armed forces’ puts all members of armed groups on an equal footing306, and all those armed forces (be they State forces or non-State forces) ‘fulfilling the conditions in article 43 of AP I are armed forces’307, and entitled to combatant status. No longer are non-State-armed groups required to prove that their armed group enjoys political recognition. Moreover, any failure to observe the laws and customs of war308 will not result in denial of their combatant and POW309 status, as was the case under the GCs.
The most notable effect of the new relaxed rule is that under the previous treaty regime, ‘failure to distinguish oneself from the civilian
population’310 (through the use of a fixed distinctive emblem), resulted in the forfeiture of ones combatant and POW status upon capture, and led to possible criminal prosecution for unauthorised participation in hostilities311. However, under the new relaxed rule, irregular combatants are required as a minimum, to distinguish themselves during and in preparation312for an
attack313. Although AP I does not set out explicitly how this is to be achieved, an ‘authoritative commentary on the protocols suggests that ‘presumably a distinctive sign, which need not be fixed, or carrying arms openly would satisfy the requirement’314. This relaxed expression of the principle of
305 AP I articles 45(1) and (2) and 43(2); Goldman ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 18.
306 AP I article 43(1).
307 Henckaerts and Doswald-Beck Customary International Humanitarian Law at 16.
308 Instead, each individual may be held criminally responsible for their violations of the laws of war (AP I article 44(2)). The effect of this provision is to prevent the detaining power from denying the member of a non-State-armed group their POW status upon capture, on the grounds that the non-State-armed group failed to observe a provision of the laws and customs of war (Henckaerts and Doswald-Beck Customary International Humanitarian Law at 16).
309 AP I article 43 and 44 (reaffirm GC III article 85) ‘”POWs prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention”, that is to say that they retain their status’.
310 Goldman ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 20.
311 Ibid.
312 The meaning of ‘military operations preparatory to an attack’, should be ‘broadly construed’ to include ‘logistical activities preparatory to an attack’, since these ‘are more likely to be conducted in a civilian environment and consequently involving a greater obligation for combatants to distinguish themselves from civilians’ (Idem at 21; Michael Bothe, Karl Partsch and Waldemar Solf (1982) New Rules for Victims of Armed Conflicts:
Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 Martinus Nijhoff Publishers: The Hague at 252.
313 AP I article 44(3).
314 Goldman ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 19, Bothe New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 at 253. The second sentence of article 44(3) sets out the situations in which POW status can be forfeited ‘recognising, however that there are situations in armed conflicts where, owing to the nature of hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:
(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launch of an attack in which he is to participate in