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Protecting Children in Armed Conflict: Harnessing the Security Council's “Soft Power”

Published online by Cambridge University Press:  19 March 2012

Matthew Happold
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Abstract

The United Nations Security Council's recent involvement in the protection of children in armed conflict, particularly by seeking to prevent the recruitment and use of child soldiers, has attracted little attention from international lawyers. However, the process, initiated by Council Resolution 1612, has interesting parallels with non-compliance mechanisms in international environmental law and can be seen as an innovative attempt to harness the Security Council's “soft power” to engage both State and non-State parties to conflicts.

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Articles
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Israel Law Review , Volume 43 , Issue 2 , 2010 , pp. 360 - 380
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2010

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References

1 For this reason the most recent by the Coalition to Stop the Use of Child Soldiers report does not give a figure. See The Coalition to Stop the Use of Child Soldiers, Child Soldiers: Global Report 2008, http://www.childsoldiersglobalreport.org/files/country_pdfs/FINAL_2008_Global_Report.pdf

2 The most recent figure given by the Special Representative estimated that around 250,000 child soldiers were serving in some 30 “situations of concern” worldwide; see The Secretary General, Report of the Special Representative to the Secretary-General for Children and Armed Conflict, para.11, delivered to the General Assembly, U.N. Doc. A/61/275 (Aug. 17, 2006).

3 For discussion of the ways in which conceptions of childhood can differ, see Archard, David, Children; Rights and Childhood (2d ed. 2004)Google Scholar.

4 There is no definition of childhood in any of the 1949 Geneva Conventions. However, when an age limit is given in GC IV, the only one of the Conventions to deal specifically with children, it is set at 15: Geneva Convention relative to the Protection of Civilians in Time of War, arts. 14, 23, 24, 38 & 50, Aug. 12, 1949, 75 U.N.T.S 973 [hereinafter GC (IV)].

5 See Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, art. 77, Jun. 8, 1977 1125 U.N.T.S 3 [hereinafter First Protocol]; and Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, art.4(3), June 8, 1977, 1125 U.N.T.S 609 [hereinafter Second Protocol].

6 Convention on the Rights of the Child, art. 1, Nov. 20, 1989, 1577 U.N.T.S 3.

7 For further detail, see Happold, Matthew, Child Soldiers in International Law 23–33 (2005)Google Scholar.

8 ILO, Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, June 17, 1999, 2133 U.N.T.S. 161.

9 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 39 ILM 1285 (2000)Google Scholar.

10 Although standards have continued to be developed: see the (non-legally binding) Paris Principles and Guidelines on Children Associated with Armed Forces and Armed Groups, Feb. 2007 that have been endorsed by 58 States [hereinafter The Paris Principles], http://www.cicr.org/Web/eng/siteeng0.nsf/htmlall/paris-principles-commitments-300107/$File/The-Paris-Principles.pdf.

11 See Protection of Children in Armed Conflict; Report of the Special Representative of the Secretary-General on Children and Armed Conflict, paras. 29-30, delivered to the General Assembly, U.N. Doc. A/54/430 (Oct. 1, 1999).

12 Id. para. 30.

13 Nuremberg IMT: Judgment and Sentence, reprinted in 41 Am. J. Int'l L. 172, 221 (1947)Google Scholar.

14 For further details, see Happold, supra note 7, at 34-49.

15 See S.C. Res. 1071, U.N. Doc. S/RES/1071 (Aug. 30, 1996) and S.C. Res. 1083, U.N. Doc. S/RES/1083 (Nov. 27 1996), both on the situation in Liberia; and S.C. Res. 1181, U.N. Doc. S/RES/1181 (July 13, 1998) and S.C. Res. 1231, U.N. Doc. S/RES/1231 (Mar. 11, 1999), both on the situation in Sierra Leone.

16 Statement by the President of the Security Council, Security Council. U.N. Doc. S/PST/1999/18 (June 29, 1998); Statement by the President of the Security Council, Security Council, U.N. Doc. S/PRST/1999/6 (Feb.12, 1999);; Statement by the President of the Security Council, Security Council, U.N. Doc. S/PRST/2000/10 (Mar. 23, 2000); Statement by the President of the Security Council, Security Council, U.N. Doc. S/PRST/2001/21 (Aug. 31, 2001); Statement by the President of the Security Council, Security Council, U.N. Doc. S/PRST/2002/6 (Mar. 15, 2002); and Statement by the President of the Security Council, Security Council, U.N. Doc. S/PRST/2002/12 (May 7, 2002).

17 S.C. Res. 1261 U.N. Doc. S/RES/1261 (Aug. 25, 1999).

18 The Secretary General, Children and Armed Conflict: Report of the Secretary-General, delivered to the General Assembly and the Security Council, para. 1, U.N. Doc. A/55/613, S/2000/ 712 (July 19, 2000).

19 S.C. Res. 1379, para. 18, U.N. Doc. S/RES/1379 (Nov. 20, 2001).

20 Id. para. 16.

21 Report of the Secretary-General on children and armed conflict, delivered to the Security Council, para. 30, U.N. Doc. S/2002/1299 (Nov. 26, 2002).

22 It is widely (if not generally) agreed that international human rights norms bind only States; contrast Zegveld, Liesbeth, The Accountability of Armed Oppostion Groups in International Law (2002)CrossRefGoogle Scholar with Clapham, Andrew, Human Rights Obligations of Non-State Actors (2006)CrossRefGoogle Scholar.

23 Report of the Secretary-General on children and armed conflict, supra note 21, para. 31.

24 Report of the Secretary-General on Children and Armed conflict, delivered to the Security Council and the General Assembly, U.N. Doc. A/58/546 S/2003/1053, (Dec. 10, 2003).

25 S.C. Res. 1539, para. 5, U.N. Doc. S/RES/1539, (Apr.22, 2004).

26 Report of the Secretary-General on Children and armed conflict, delivered to the Security Council and the General Assembly, U.N. Doc. A/59/695-S/2005/72, (Feb. 9, 2005).

27 See Security Council report, Cross-Cutting Report No. 1 on Children and Armed Conflict (Apr.15, 2009), http://www.securitycouncilreport.org/site/c.g1KWLeMTIsG/b.509918/k.A91/CrossCutting_Report_No_1brChildren_and_Armed_Conflictbr15_Apri1_2009.htm (generally); and Barnett, Katy and Jeffreys, Anna, Full of Promise; How the UN's Monitoring and reporting Mechanism can better Protect Children, Humanitarian Policy Group Network Paper No. 62, September 2008, p. 10Google Scholar (with regard specifically to Colombia).

28 Barnett & Jefferys, supra note 27, at 7.

29 See Security Council Report, supra note 27, at 5-6.

30 Indeed, it is unclear whether action has ever been taken in response to a horizontal note, see Barnett & Jeffreys, supra note 27, at 7.

31 See text adjacent to supra notes 19-24.

32 See S.C. Res. 1539, supra note 25, para. 2.

33 Id. art. 5(a) & 6.

34 See supra note 30.

35 Supra note 32, para. 5(c).

36 See S.C. Res. 1612, para. 9. U.N. Doc. S/RES/1612, (July 26, 2005); Statement by the President of the Security Council, Security Council, U.N. Doc. S/PRST/2006/48, (Nov.28, 2006); Statement by the President of the Security Council, Security Council, U.N. Doc. S/PRST/2008/6,(Feb.12, 2008); Statement by the President of the Security Council, Security Council, U.N. Doc. S/PRST/2009/9 (Apr. 29, 2009); and S.C. Res. 1882, para. 7(c), U.N. Doc. S/Res/1882, (Aug. 4, 2009).

37 See Security Council Working Group on Children and Armed Conflict: Conclusions on Parties in the Armed Conflict of the Democratic Republic of Congo, U.N Doc. S/2006/724, (Sep. 11, 2006) (Annex to Letter dated 8 September 2006 from the Permanent Representative of France to the United Nations addressed to the President of the Security Council), and Security Council Working Group on children and armed conflict: Conclusions on Côte d'Ivoire, U.N. Doc. S/2007/93. (Feb. 15, 2007) (Annex to Letter dated 13 February 2007 from the Permanent Representative of France to the United Nations addressed to the President of the Security Council).

38 S.C. Res. 1572, para. 9, U.N. Doc. S/RES/1572 (Nov. 15, 2004).

39 Mc Hugh, Gerard, Strengthening Protection of Children Through Accountability: The Role of the UN Security Council in Holding to Account Persistent Violators of Children's Rights and Protections in Situations of Armed Conflict, Conflict Dynamics Internattonal 13 (2009), http://www.cdint.org/Conflict_Dynamics-UNSC_Actions_CAC_Report_MASTER_March_2009_PR.pdfGoogle Scholar.

40 S.C. Res. 1698, para. 13, U.N. Doc. S/RES/1698 (July 31, 2006).

41 United Nations Department of Public Information, “Sanctions Committee concerning Democratic Republic of Congo Adds Four Individuals to Asset Freeze, Travel Ban List”, December 1, 2010. A press release from the Secretary-General's Special Representative describes Zimurinda as having been added to the list “for four of the six grave violations against children, including recruitment and use of child soldiers, killing and maiming of children, sexual violence and denial of humanitarian access”: Office of the Secretary-General's Special Representative for Children and Armed Conflict, “Security Council sanctions DRC Colonel for grave violations against children”, December 2, 2919

42 Options for possible actions by the CAAC Working Group, see supra note 37.

43 It might be argued that this reflects a recognition that sanctions could not be lawfully applied, as the Security Council may only do so to maintain or restore international peace and security in the face of a threat to the peace, breach of the peace or act of aggression (U.N. Charter, art. 39), and the recruitment and use of child soldiers does not fall into any of those categories. However, it does not appear that such an objection has been specifically raised and, in any case, the Council has been willing to state that the harmful impact of conflict on children has implications for peace and security (see supra notes 17, 18). Rather, the difficulty appears to be lack of political will.

44 In 2008, it is reported, the USA, the UK, and Belgium were open to using sanctions, but China was firmly opposed, see Security Council Report, supra note 27, at 17.

45 See Security Council Report, id. at 6.

46 There are some doubts about the effectiveness of this method of communication; see Security Council Report, id. Nevertheless, it is clear that at least some non-State parties are aware of and do respond to monitoring, see, e.g., Press Release No. 02/09, Karenni National Progressive Party, Appeal for the Karenni Army's Name to be Removed from the List of Non-State Armed Groups Making Use of Child Soldiers in Armed Conflicts, (Apr. 18, 2009), http://www.genevacall.org/resources/nsas-statements/f-nsas-statements/2001-2010/2009-18apr-knpp.pdf.

47 Options for possible actions by the CAAC Working Group see supra note 41, preamble.

48 Nye, Joseph S. Jr, Soft Power: The Means to Success in World Politics 5 (2004)Google Scholar.

49 See UNEP, Compliance Mechanisms under Selected Multilateral Environmental Agreements (2007), http://www.unep.org/dec/docs/Compliance%20mechanisms%20under%20selected%20MEAs.pdfGoogle Scholar and Klabbers, Jan, Compliance Procedures, in Oxford Handbook of International Environmental Law 995 (Bodansky, Daniel, Brunée, Jutta, & Hey, Ellen eds., 2007)Google Scholar.

50 See International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, G.A. Res. 83 U.N. Doc A/RES/56/83 (Jan. 28, 2002), Annex.

51 An example is the paucity of inter-State complaints brought under human rights treaties.

52 Bodansky, Daniel, The Art and Craft of International Environmental Law 247 (2009)Google Scholar.

53 Id. at 248.

54 UNEP, supra note 49.

55 Id. at 74-76.

56 See Klabbers, supra note 49, at 997-98.

57 S.C. Res. 1612, supra note 36, para. 4.

58 For example, the actions plans agreed with parties to the conflict in Côte d'Ivoire avoided explicit acknowledgement that the parties had engaged in the illegal recruitment and use of child soldiers in the first place; see Barnett & Jefferys, supra note 27, at 8.

59 See Sivakumaran, Sandesh, Binding Armed Opposition Groups, 55 Int'l & Comp. L. Q. 369 (2006)CrossRefGoogle Scholar.

60 See Common Article 3 to the 1949 Geneva Conventions (supra note 4), as well as the Second Protocol (supra note 5).

61 See supra notes 23 & 24.

62 Indeed, one can go further and say that non-State parties have not consented to the rules with which the process seeks to induce compliance.

63 See Koskenniemi, Martti, Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol, 3 Y.B. Int'l Env. L. 123 (1992)Google Scholar.

64 Klabbers, supra note 49, at 1008.

65 This is particularly the case as regards government parties, the representatives of which have the right to participate in the discussions at the Working Group's meeting to examine the Secretary-General's report on their country. See, e.g., the Secretary-General's reports U.N. Doc. S/2007/666, (Nov. 16, 2007) and U.N. Doc. S72009/278 (June 1, 2009)) and the Working Group's conclusions: U.N. Doc. S/AC.51/2008/8 (July 25, 2008) and U.N. Doc. S/AC.51/2009/4, (Oct. 28, 2009)) on children and armed conflict in Myanmar.

66 For description of some of the difficulties the Montreal Protocol non-compliance procedure has encountered, see Werksman, Jacob, Compliance and Transition: Russia's Non-Compliance Tests the Ozone Regime, 56 ZaòRV 750 (1996)Google Scholar.

67 The Fronte pour la libération du grand ouest (FLGO), the Alliance patriotique du peuple Wê (APWE), the Union patriotique de résistance du Grand Ouest (UPRGO) and the Mouvement ivoirien de libération de l'ouest de la Côte d'Ivoire (MILOCI).

68 The Secretary General, Report of the Secretary-General on Children and Armed Conflict, para. 33-37, delivered to the General Assembly and the Security Council U.N. Doc. A/62/609–S/2007/757, (Dec. 21, 2007). The situation continues to be raised in the Secretary-General's horizontal notes.

69 For detailed examination of the process, see McHugh, supra note 39, at 13-15.

70 Established by S.C. Res. 1528 U.N. Doc. S/RES/1528 (Feb. 27, 2004). See also S.C. Res. 1609 and U.N. Doc. S/RES/1609 (June 24, 2005) and S.C. Res. 1739 U.N. Doc. S/RES/1739 (Jan. 17, 2007).

71 In 2005, Côte d'Ivoire accepted the jurisdiction of the International Criminal Court with respect to crimes committed on its territory since September 19, 2002, see Press Release, International Criminal Court, Registrar Confirms that the Republic of Côte d'Ivoire has Accepted the Jurisdiction of the Court, ICC-CPI-20050215-91, (Feb. 15, 2005). At about the same time it was reported that the UN had drawn up a list of persons accused of human rights abuses in Côte d'Ivoire who could eventually face trial, see Press Release, Côte d'Ivoire: UN Confirms Existence of Blacklist of Human Rights Abusers, (Jan. 31, 2005), http://www.irinnews.org/report.aspx?reportid=52848.

72 See The Paris Principles supra note 10, art. 2.1 that define

[a] child associated with an armed force or armed group … [as]… any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys, and girls, used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities.

See also UNICEF, the Cape Town Principles and Best Practices, adopted at the symposium on the Prevention of Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa, Cape Town, South Africa (Apr. 27-30, 1997).

73 See Secretary-General, Report of the Secretary-General on Children and Armed Conflict, delivered to the General Assembly and the Security Council, U.N. Doc. A/64/742–S/2010/181 (April 13, 2010).

74 Barnett & Jeffreys, supra note 27, at 19.

75 For details, see McHugh, supra note 39, at 22-23.

76 See, e.g., id. at 26.

77 Rome Statute of the International Criminal Court, art. 8(2)(b)(xxvi) & 8(2)(e)(vii), 2187 U.N.T.S. 90 (1998).

78 Statute of the Special Court for Sierra Leone, Article 4(c), Annex, Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, Jan.16, 2002. The provision is identical to Article 8(2(e)(vii) of the Rome Statute.

79 See, e.g., the Child Soldiers Accountability Act of 2008, Pub. L. No. 110-340 (U.S.).

80 Six out of the eight defendants whose cases have thus far concluded have been convicted of child recruitment, see Prosecutor v. Brima, Kamara and Kanu (the AFRC case), Case No. SCSL-04-16-T, (June 20, 2007) (convicting all three defendants of child recruitment); Prosecutor v. Fofana and Kondewa (the CDF case), Case No. SCSL-04-14-T, judgment of the Trial Chamber, (Aug. 2, 2007) (convicting Kodewa and acquitting Fofana of child recruitment); Prosecutor v. Fofana and Kondewa (the CDF case), Case No. SCSL-04-14-A, judgment of the Trial Chamber, (May 28, 2008) (upholding Kondewa's appeal against his conviction for child recruitment); and Prosecutor v. Sesay, Kallon and Gbao (the RUF case), Case No. SCSL-04-15-T, judgment of the Trial Chamber, (Mar.2, 2009) (convicting Sesay and Kallon and acquitting Gbao of child recruitment). The trial of the last defendant before the Court, Charles Taylor, has not yet finished.

81 See Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-803, Pre-Trial Chamber, Decision on the confirmation of charges, (Jan.21, 2007); and Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01/04-01/07-717, Pre-Trial Chamber, Decision on the confirmation of charges, (Sep.30, 2008). Both trials are continuing. Other persons have been indicted for, inter alia, the recruitment and use of child soldiers but have not (yet) appeared before the ICC.

82 See Drumbl, Mark A., Atrocity, Punishment and International Law 16-17, 169–73 (2007)CrossRefGoogle Scholar; and Tallgren, Immi, The Sensibility and Sense of International Criminal Law, 13 Eur. J. Int'l L. 561 (2002)CrossRefGoogle Scholar.

83 See supra notes 59-61.

84 For information on Geneva Call, see www.genevacall.org. Having succeeded in persuading some 39 non-State actors to commit to a total ban on the use of anti-personnel mines and to cooperate in humanitarian mine action, Geneva Call has now began to advocate on the protection of women and children in armed conflict.