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Child Soldiers in International Law: The Legal Regulation of Children's Participation in Hostilities

Published online by Cambridge University Press:  21 May 2009

Matthew Happold
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Extract

Over recent years the recruitment of child soldiers has become a matter of increasing international concern. There appear to be two reasons for this growth of concern. First, an increase in the use of child soldiers. Second, a change in society's perception of when childhood ends.

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Articles
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Netherlands International Law Review , Volume 47 , Issue 1 , May 2000 , pp. 27 - 52
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Copyright © T.M.C. Asser Press 2000

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References

2. Brett, R. and McCallin, M., Children: The Invisible Soldiers (Stockholm, Rädda Barnen 1996) p. 23.Google Scholar

3. Ibid., at p. 28.

4. In a number of articles an age limit of fifteen is given. See Arts. 14, 23, 24, 38 and 50.

5. See Art 1 of the CRC, which states that ‘For the purposes of the present Convention a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.’

6. I do not discuss the African Charter on the Rights and Welfare of the Child (OAU Doc. CAB/LEG/24.9/49 (1990)), Art 22 of which provides that the States Parties shall take all necessary measures to ensure that no child (defined in Art. 2 as every human being below the age of 18 years) shall take a direct part in hostilities and refrain, in particular, from recruiting any child into their armed forces. Although the Charter is now in force, only 16 of the 53 member states of the Organisation of African Unity have as yet ratified it (see Amnesty International UK, press release, 29 November 1999). Nor can the Charter be seen as amending the rules of customary international law governing the participation of children in hostilities.

7. Contrary to what is stated in Art. 1(3) of API and Art. 1(1) of APII.

8. For a discussion of the circumstances of the negotiations, see Best, G., War and Law Since 1945 (Oxford, Clarendon Press 1994) chs. 4 and 5.Google Scholar

9. Of the major international and regional human rights instruments, only the Genocide Convention and the Universal Declaration of Human Rights of 1948 had been adopted.

10. See Prosecutor v. Tadic (Merits), 36 ILM (1997) p. 908 (ICTY) For a civilian to have the status of a ‘protected person ‘ under GC IV, he or she must be in the hands of a party to the conflict or an occupying power of which he or she is not a national.Google Scholar

11. J., Pictet, ed., Commentary on the Geneva Conventions of 12 August 1949, Vol. IV (Geneva, International Committee of the Red Cross 1955) p. 46.Google Scholar

12. Regulations Respecting the Laws and Customs of War on Land annexed to the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land.

13. Art. 45 of the Hague Regulations.

14. For an earlier description of the background to the adoption of the provisions concerning child soldiers in the two APs, see Mann, H., ‘International Law and the Child Soldier’, 36 ICLQ (1987) p. 32.CrossRefGoogle Scholar

15. See OR XV, p. 465; CDDH/407/Rev. 1, para. 63.

16. See the statement of Mr Surbeck of the ICRC, introducing draft Art. 68 to Committee III of the Diplomatic Conference, that the article was intended to operate ‘for the benefit of all children who were in the territories of the Parties to the conflict, whether the territory was occupied or not, and whether or not the children fell within the definition of protected persons in Article 4 of the fourth Geneva Convention of 1949’ (OR XV, p. 68; CDDH/III/SR.45). No objections to this characterisation of the article appear on the record and the amendments to the draft article did not effect its blanket character.

17. See Art. 1(3) of API.Google Scholar

18. Under Art. 1(4), however, the Protocol is also stated to apply in conflicts ‘in which peoplesare fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.’ This provision has been the subject of much controversy. It is, however, no longer of much practical significance.

19. Draft Art. 68(2). See OR I, Part Three, for the text of the draft Additional Protocol.

20. After amendment by the Working Group, the article was adopted by consensus, firstly by Committee III, and then by the Conference in plenary session; see OR XV, p. 218; CDDH/III/SR.59 and OR IV, p. 251; CDDH/SR.43.

21. See the Conference's Rules of Procedure at OR II, p. 15; CDDH/2/Rev.3.

22. OR XV, p. 517; CDDH/III/391. The report of Committee Ill’s 4th session (OR XV, p. 445; CDDH/407/Rev.1), with some minor modifications, adopts the text of the rapporteur’s report.

23. OR XV, p.521;CDDH/III/391.

24. ‘(2) Withrespectto attacks, the following precautions shall be taken:

(a) those who plan or decide upon an attack shall:

(i) do everything feasible to … ‘

25. Oxford English Dictionary, 2nd edn. (Oxford, Clarendon Press 1989)Google Scholar

26. Statements in such or similar terms were made by Algeria, Belgium, Canada, Italy, the Netherlands and Spain, See L.S. Boudreault, ‘Les reserves apportees au Protocole de Geneve sur le droit humanitaire’, 6 RQDI (1989—1990) p. 105. See also Part (b) of the Schedule to the Geneva Conventions Act (First Protocol) Order (SI 1998 No. 1754).

27. The French text of the paragraph is slightly different, it states: ‘Le s parties au conflit prendront toutes les mesures possibles dans la pratique pour que les enfants de moins de quinze ans ne participant pas directement aux hostilities, notamment en s’abstenant de les recruter dans les forces armées …’

Unlike in the English version, which contains two prepositions coordinated by the word ‘and’, the French text contains one principal and one subordinate preposition, so that the restriction ‘toutes les mesures possibles’ applies throughout the sentence

(see Tavernier, P., ‘Combatants and Non-Combatants’, in I.F., Dekker and H.H.G., Post, eds., The Gulf War of 1980–1988: The Iran-Iraq War in International Legal Perspective (Dordrecht, Nijhoff 1992) pp. 141–142. Under Art. 102 of API the English and French versions have equal status. However, for the reasons given above, this difference in emphasis probably has no practical effect.Google Scholar

28. In most cases this must be right. Governments can legislate as to the minimum age of recruitment into a state’s armed forces and, having control, over the armed forces, can ensure compliance with the legislation. It does not, however, cover cases when children under fifteen lie about their age.

29. Tavernier, , op cit. n. 27, at p. 142.Google Scholar

30. Art 51 deals with the protection of the civilian population against the effects of hostilities. Art 51(3) states that ‘[c]ivilians shall enjoy the protection afforded by this Section, unless and until and for such time as they take a direct part in hostilities.’

31. F., Kalshoven, Constraints on the Waging of War (Geneva, International Committee of the Red Cross 1987) p. 91.Google Scholar

32. See Art. 46 of API.

33. As Cohn and Goodwin-Gill state: ‘A Zimbabwean officer who fought against the Smith regime explained it simply: children can move freely and are not instantly suspected of spying or supplying’ (Cohn, I. and Goodwin-Gill, G.S., Child Soldiers: The Role of Children in Armed Conflicts (Oxford, Clarendon Press 1994) p. 96).Google Scholar

34. Art. 51(2) and (3) of API.

35. OR XV, p. 220; CDDH/III/SR.59. The comment was made during the explanation of votes, after the adoption of the article by Committee III.

36. International Children’s Rights Monitor (1983) p. 5, quoted in Cohn and Goodwin-Gill, op. cit. n. 33, at p. 8

37. The 1980—1988 Gulf War has been the only international conflict since the signing of the two APs where there has been widespread use of child soldiers. It should be noted, however, that API was not in force between Iran and Iraq. Iran had only signed, but not ratified, the treaty, and Iraq had neither signed nor ratified it.

38. See n. 27 above.

39. Under Art. 102 of API, the Arabic, Chinese, English, French, Russian and Spanish texts of the Protocol are all equally authentic. I am unable to comment on the Arabic, Chinese, Russian or Spanish texts. The equivalent word in the French version of the text, however, is recruter, which can apply to both forcible and voluntary recruitment and also (as with its English equivalent) refer to the recruitment of employees in civilian life.

40. OR III, p. 301; CDDH/III/325; Sandoz, , Swinarski, and Zimmermann, , eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, International Committee of the Red Cross 1987) p. 901.Google Scholar

41. Or, at least, internal conflicts above a certain level of intensity: see Art. 1(1) of AP II.

42. The relevant parts of which stated:

’(1) Children shall be the object of privileged treatment; they shall be especially protected against any form of indecent assault The parties to the conflict shall provide them with the care and aid their age and situation require.

(2)To this end, the parties to the conflict shall, inter alia:

…

(e)take the necessary measures in order that children under fifteen shall not take part in hostilities and, in particular, they shall refrain from recruiting them in armed forces or accepting their voluntary enrolment’

43. See OR I, Part III: Draft Additional Protocols to the Geneva Conventions of 12 August 1949.

44. The article was referred to the Working Group. After consideration by the Working Group, it was adopted by Committee III by consensus. See OR XV, pp. 77 et seq.; CDDH/III/SR.46 and OR XV, pp. 209 et seq.; CDDH/ffl/SR.59.

45. OR XV, pp. 517 et seq.; CDDH/III/407/Rev.1.

46. OR XV, pp. 445 et seq.; CDDH/III/407/Rev. 1.

47. OR XV, p. 524; CDDH/III/407/Rev. 1.

48. OR XV, p. 508; CDDH/III/407/Rev.1.

49. OR IV, p. 20; CDDH/427.

50. OR IV, pp. 141 et seq.; CDDH/SR.53.

51. Aldrich, G.H., ‘Comments’ on P. Tavernier's ‘Combatants and Non-Combatants’, in Dekkerand Post, op. cit. n. 27, at p. 149.Google Scholar

52. Ibid.

53. As the Permanent Court of International Justice stated: ‘there is no need to have regard to preparatory work if the text of a convention is sufficiently clear in itself, The Lotus case, PCIJ Series A (1927) No. 9, p. 16. See also Art. 32 of the Vienna Convention on the Law of Treaties.

54. As of 18 May 1999. See the UN Treaty Collection at <http://www.un.org/Depts/Treaty/>.

55. For discussion of the negotiation of the CRC, see Detrick, S., ed., The United Nations Convention on the Rights of the Child: A Guide to the ‘ Travaux Préparatoires’ (Dordrecht, Nijhoff 1992Google Scholar) and Krill, F., ‘The Protection of Children in Armed Conflict’, in Freeman, M. and Veerman, P., eds., The Ideologies of Children's Rights (Dordrecht, Nijhoff 1992).Google Scholar

56. The relevant portion of Art. 20 as adopted by the 1986 Working Group simply stated: ’

(2) States Parties to the present Convention shall take all feasible measures to ensure that no child takes a direct part in hostilities and they shall refrain in particular from recruiting any child who has not attained the age of fifteen years into their armed forces.’

57. UN Doc.E/CN.4/1988/28, p.26.

58. The second paragraphs of each of the two versions were as follows.

’1. States Parties shall take all feasible measures to ensure that no child takes a direct part in hostilities. With regard to persons who have attained majority before the age of 18 years, States Parties shall endeavour to prevent them from taking a direct part in hostilities. Persons who have not attained the age of 15 years shall not be allowed to take part in hostilities.

2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities.’

59. As of 20 May 1999 there were 152 States Parties to API and 144 States Parties to AP II. See the ICRC’s IHL Database at <http://www.icrc.org/unicc/ihleng.nsf/wed?OpenNavigator>. There are 191 States Parties to the CRC, see p. 41 above.

60. See Nicaragua v. USA (Merits), ICI Rep. (1986) p. 14 at p. 96.

61. For full discussion of these issues see Baxter, R.R., ‘Multilateral Treaties as Evidence of Customary International Law’, 41 BYBIL (1965–1966) p. 275 andGoogle ScholarMeron, T., ‘The Geneva Conventions as Customary Law’, 81 AJIL (1987) p. 348.CrossRefGoogle Scholar

62. See Schabas, W.A., ‘Reservations to the Convention on the Rights of the Child’, 18 HRQ (1996) p. 472CrossRefGoogle Scholar and J., Kuper, ‘Reservations, Declarations and Objections to the 1989 Convention on the Rights of the Child’, in Gardner, J.P., ed., Human Rights as General Norms and a State’s Right to Opt Out (London, B.I.I.C.L. 1997).Google Scholar

63. See Art 51(2) of the CRC, which states that ‘[a] reservation incompatible with the object and purpose of the present Convention shall not be permitted.’

64. See the objections made by Austria, Denmark, Finland, Germany, Ireland, the Netherlands, Norway, Portugal, Slovakia and Sweden.

65. See the declarations made by Andorra, Argentina, Austria, Colombia, Ecuador (upon signature), Germany, the Netherlands, Spain and Uruguay.

66. It is well established that municipal laws can constitute state practice. See Akehurst, M., ‘Custom as a Source of International Law’, 47 BYBIL (1974–1975) p. 1 at pp. 8–10.Google Scholar

67. If states maintain separate military ages for volunteers and for conscripts (as many do), the lower of the two ages has been taken. Neither the two APs nor the CRC distinguishes between conscripts or volunteers in their restrictions on the use of children in armed conflicts.

68. Libya has ratified the CRC and is a party to both APs.

69. It appears that New Zealand raised its recruitment age to seventeen in 1996, see Children of War, No. 1/98, March 1998.

70. Brett and McCallin’s survey makes clear that a number of states have recruited children aged under fifteen into their armed forces despite their national laws. These include Angola (the lowest age recorded being 8), Bhutan (11), Burma (10), Cambodia (8), Guatemala (12), Honduras (13), Paraguay (14) and Peru (11). It is suggested, however, that the examples given are insufficient to detract from the generality of state legislative practice.

71. See n. 58 above. The number of parties to the two APs has risen significantly in recent years. On 20 November 1989 (the date of the UN General Assembly’ s adoption of the CRC) 89 states were party to API and 81 party to AP II.

72. 121 states and 11 ‘national liberation movements’ participated in the Diplomatic Conference. See OR II, p. 25.

73. See OR XV, p. 218; CDDH/III/SR.59 and OR IV, p. 251; CDDH/SR.43.

74. See Greenwood, C., ‘Customary Law Status of the 1977 Geneva Protocols’, in Delissen, A.J.M. and Tanja, G.J., Humanitarian Law of Armed Conflict (Dordrecht, Nijhoff 1991).Google Scholar

75. See n. 37 above.

76. In ‘The Sixth Annual American Red Cross — Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Convention’, 2 Am. UJInt’lLA Pol’y (1987) p. 415 at p. 421.

77. Ibid., at p. 428

78. According to Judge Baxter these are the two ways in which a multilateral treaty may be regarded as declaratory of customary international law. See Baxter, op. cit. n. 61, at p. 277.

79. Australia, the UK and the USSR had signed the Protocol, but not yet ratified it. The United States had signed and had announced its intention not to ratify (see the Letter of Transmission from President Ronald Reagan, ‘Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Noninternational Armed Conflict’, S. Treaty Doc. No. 2, 100th Cong., 1st Sess., at III (1987), reprinted at 81 AJIL (1987) p. 910)CrossRefGoogle Scholar. France and India had neither signed nor ratified. See the ICRC’s IHL Database.

80. See Caminos, H. and Molitor, M.R., ‘Progressive Development of International Law and the Package Deal’, 79 AJIL (1985) p. 871.CrossRefGoogle Scholar

81. Meron, , loc. cit. n. 61, at p. 367.Google Scholar

82. Ibid., at p. 368.

83. It further appears that the rule crystallised sometime in the late 1970s. Plainly this has implications inrelationto which states can claim to have persistent objector status.

84. Added weight is given to this conclusion by the inclusion in the definition of war crimes in me Rome Statute of the International Criminal Court (UN Doc. A/CONF. 183/9) of the conscription of children under fifteen into armed forces or groups or their use as active participants in hostilities (see Arts. 8(b)(xxvi) and (e)(vii)).

85. UN Doc. CRC/C/625, para. 176. The proposal that such an Optional Protocol be developed was first made at the second session of the Committee, in September-October 1992, see UN Doc. CRC/C/10, paras. 61–77.

86. UN Doc.E/CN.4/1994/91.

87. CHR Res. 1994/91.

88. Children of War, No. 1/98, March 1998.

89. Children of War, No. 1/99, March 1999.

90. See ‘Short faces battle to stop Forces taking under-18s’, The Times, 14 January 1998.

91. The US armed forces recruit seventeen year old high school graduates upon graduation rather than waiting for their eighteen birthday. Such recruits total less than one half of one percent of the US military and almost all of them reach eighteen before completing their training. See Roth, K., ‘Sidelined on Human Rights’, 77 Foreign Affairs (March-April 1998) p. 2CrossRefGoogle Scholar.

92. For a discussion of this issue see Ignatieff, M., The Warrior’s Honour: Ethnic War and the Modern Conscience (London, Chatto & Windus 1998).Google Scholar

93. Ryle, J., ‘Wh y must a child be forced to kill?’, The Guardian, 25 January 1999.Google Scholar

94. Ibid.

95. As of 10 February 2000 6 states have ratified the Convention (Botswana, Finland, Ireland, Malawi, the Seychelles and Slovakia). See ILOLEX at <http://ilolex.ilo.c: 1567/scripts/ratifce.pl?C 182>.

96. Available at <http://www.unchr.ch/html/menu2/6/protocolchild.htm>.