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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. |
