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The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict1

Published online by Cambridge University Press:  17 February 2009

Matthew Happold
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Extract

On 25 May 2000, the United Nations General Assembly, adopted, without a vote, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (‘the Optional Protocol’). The adoption of the Optional Protocol was the culmination of a long process, extending over some ten years and originating in the dissatisfaction felt by a number of states and NGOs at the level of protection afforded to children by the 1989 Convention on the Rights of the Child (‘the CRC’). The Optional Protocol marks a significant step towards the prohibition of the recruitment of children into armed forces and groups and their participation in hostilities. However, its contents were the result of a compromise that left many dissatisfied, and questions remain about the likely efficacy of the Optional Protocol in ending the phenomenon of child soldiers. Critics see the Optional Protocol as the product of a dialogue between developed states, western-based NGOs and the United Nations' bureaucracy, who prefer standard-setting to tackling the root causes of the use of child soldiers.

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 3 , December 2000 , pp. 226 - 244
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 2000

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References

3. GA Res. 54/263.

4. Brett, R. and McCallin, M., Children: The Invisible Soldiers, 2nd edn. (Stockholm, Rädda Barnen 1998)Google Scholar.

5. AP I seeks to regulate the conduct of international armed conflicts; AP II the conduct of internal armed conflicts. Art. 77(2) of AP I states that:

‘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 not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest.’

In contrast, Art. 4(3)(c) of AP II simply states that ‘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.’ For discussion of the provisions' drafting and a tentative suggestion as to why the two texts diverge, see Happold, M., ‘Child Soldiers in International Law: The Legal Regulation of Children's Participation in Hostilities’, 47 NILR (2000) p. 27CrossRefGoogle Scholar.

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

7. For descriptions of the use to which child soldiers have been put, see Brett and McCallin, op. cit. n. 4; and 1. Cohn, and Goodwin-Gill, G.S., Child Soldiers: The Role of Children in Armed Conflicts (Oxford, Oxford University Press 1994)Google Scholar.

8. For fuller accounts of the negotiations, see Detrick, S., ed., The United Nations Convention on the Rights of the Child: A Guide to the ‘Travaux Préparatoires’ (Dordrecht, Martinus Nijhof 1992)Google 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, Martinus Nijhof 1992)Google Scholar.

9. See UN Doc. CRC/C/10, paras. 61–77.

10. See UN Doc. CRC/C/625, para. 176.

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

12. CHR Res. 1994/91.

13. UN Doc. A/CONF. 57/24 (Part I, ch. III, s. II) para. 50.

14. GA Res. 48/157 of 20 December 1993, para. 7.

15. ‘Impact of Armed Conflict on Children: report of the expert of the Secretary-General, Ms Graça Machel, submitted pursuant to General Assembly resolution 48/157’, UN Docs. A/51/306 and A/51/306/Add. 1

16. Ibid., para. 62(a).

17. Ibid., para. 62(d).

18. GA Res. 51/77 of 12 December 1996. For other manifestations of the General Assembly's concern for the protection of children affected by armed conflict, see GA Res. 49/209 of 23 December 1994 and GA Res. 50/153 of 21 December 1995.

19. See UN Docs. E/CN.4/1998/19 (12 March 1998); A/53/483 (12 October 1998); A/54/430 (1 October 1999); and E/CN.4/2000/71 (9 February 2000).

20. See UN Doc. E/CN.4/1999/73, paras. 11, 15–18, and UN Doc. E/CN.4/2000/74, paras. 25–28. The Special Representative also sent a message which was read out at the fourth session of the Working Group, see UN Doc. E/CN.4/1998/102, para. 37.

21. UN Doc.S/PRST/1998/18.

22. See UN Docs. S/PRST/1999/6 (12 February 1999) and S/PRST/1999/21 (8 July 1999).

23. SC Res. 1261 (1999).

24. In December 1995, the International Conference of the Red Cross and Red Crescent recommended that parties to armed conflicts ‘refrain from arming children under the age of 18 years and take every feasible step to ensure that children under the age of 18 years do not take part in hostilities’ (Res. 2(C) of the 26th International Conference of the Red Cross and Red Crescent).

25. Ethiopia and South Africa participated in five sessions; Nigeria in four; Angola, Senegal and Sudan in three; Kenya in two, and Cameroon, the Democratic Republic of Congo, Ivory Coast, Tanzania and Zimbabwe in one.

26. Of the 35 European states, some 14 (Austria, Denmark, Finland, France, Germany, the Netherlands, Norway, Poland, Romania, the Russian Federation, Slovakia, Sweden, Switzerland and the UK) were represented at all six sessions of the Working Group. Eighteen American states participated in the negotiations, of which six (Canada, Chile, Cuba, Mexico, Peru and the USA) were represented throughout. Australia and New Zealand were represented at, respectively, six and five sessions.

27. The Organisation of African Unity has adopted an African Charter on the Rights and Welfare of the Child (discussed below) which includes provisions on the recruitment of children and their participation in hostilities. See also Resolution CM/Res. 1659 on the plight of African children in situations of armed conflict adopted by the Council of Ministers of the OAU at its 64th ordinary session at Yaounde between 1 and 5 July 1996.

28. UN Doc. E/CN.1/1994/91, Annex.

29. UN Doc. E/CN.4/1995/96, para. 4.

30. Ibid., para. 17.

31. Ibid., para. 23.

32. Ibid., para. 24.

33. Ibid., para. 77.

34. Ibid., para. 189.

35. Ibid., Annex, New Article [5A].

36. UN Doc. E/CN.4/1996/102, para. 18.

37. Ibid., para. 19.

38. Ibid., para. 24.

39. Ibid., paras. 24, 117.

40. Ibid., paras. 31–32.

41. Ibid., para. 46.

42. Ibid., paras. 93–97.

43. Ibid., paras. 24, 103–117.

44. UN Doc. E/CN.4/1997/96, para.76.

45. Ibid., para. 78.

46. Ibid., para. 79.

47. Ibid., para. 87–97.

48. UN Doc. E/CN.4/1998/102, para. 23.

49. Ibid., Annex II. The Chairman's text proposed, firstly, that States Parties be obliged to take all feasible measures to ensure under-18 year olds do not take a direct part in hostilities, and, secondly, that the conscription of persons under 18 and the voluntary recruitment of persons under 17 years of age be prohibited. It also proposed the prohibition of all recruitment of under-18 year olds by non-state actors.

50. Ibid., paras. 19–20 and 29.

51. Ibid., para. 23.

52. Ibid., para. 69.

53. In fact, the Working Group next met in April 1998, but solely to elect a new Chairman-Rapporteur, Ms Catherine von Heidenstam, also of Sweden. See UN Doc. E/CN.4/1998/102/Add. 1.

54. UN Doc. E/CN.4/1999/73, Annex.

55. Ibid., paras. 25–26.

56. OAU Doc. CAB/LEG/24.9/49 (1990).

57. See Amnesty International UK, press release, 29 November 1999. <http://amnesty.cupboard.org/cgi-bin/eatsoup.cgi?id=1535&1=.>.

58. ILO Convention 182.

59. ILOLEX at <http://ilolex.ilo.ch:1567/scripts/ratifce.pl?C182> (visited 3 November 2000).

60. Preamble, para. 1.

61. Ibid., para. 7.

62. Ibid., para. 8.

63. Ibid., para. 9.

64. Ibid., para. 5.

65. Ibid., para. 10.

66. See the discussion in the first session of the Working Group as to how the Optional Protocol should be seen. UN Doc. E/CN.4/1995/96, paras. 20–21.

67. Preamble, para. 2.

68. Ibid., para. 6.

69. Ibid., para. 8.

70. Ibid., paras. 3, 4 and 11.

71. Ibid., paras. 17 and 18.

72. Ibid., para. 13.

73. (2) With respect to attacks, the following precautions shall be taken:

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

(i) do everything feasible to …

74. See Boundreault, L.S., ‘Les réserves apportées au Protocole de Genève sur le droit humanitaire’, 6 RQDI (1989–1990) p. 105Google Scholar.

75. Not least because troops may not be able to distinguish child soldiers from the mass of enemy forces.

76. See Section 3 supra.

77. A strict reading might hold that as the obligation is only to raise the minimum age for recruitment from 15 years, an increase to 15 years and one day would be sufficient to ensure compliance with the provision. Such an interpretation, however, would hardly be the result of reading the treaty in good faith in the light of its object and purpose.

78. The wording (‘parents or legal guardians’ is in the plural) suggests that the consent of both parents or guardians is required. This may prevent recruitment if the parents are estranged or one cannot be contacted to give the requisite consent.

79. That is, Arts. 28 (the child's right to education) and 29 (the developments to which the education of the child shall be directed).

80. Such as if, for example, a State Party was also a party to the African Charter on the Rights and Welfare of the Child. See Section 4.5 supra.

81. See Section 3 supra.

82. In practice the only state which is not a party to the CRC which is likely to adhere to the CRC is the USA.

83. As of 6 November 2000, three states (Bangladesh, Canada and Sri Lanka) had ratified and another 71 states had signed the Optional Protocol. See the UN Treaty Database at <http://untreaty.un.org> (visited 6 November 2000).

84. See ‘Optional Protocol adopted by UN General Assembly’, Children of War: A Newsletter on Child Soldiers from Rädda Barnen, No. 2/00 (07 2000) p. 1Google Scholar. A contrast can be made with the Convention on the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and the Statute of the International Criminal Court, both of whose adoption the USA opposed. See Malanczuk, P., ‘The International Criminal Court and Landmines: What are the Consequences of Leaving the US Behind?’, 11 EJIL (2000) p. 77CrossRefGoogle Scholar.

85. Although the US armed forces recruit 17-year old high school graduates upon graduation rather than waiting for their eighteenth birthday, such recruits total less than half of one percent of the US military and almost all of them reach 18 before completing their training. See Roth, K., ‘Sidelined on Human Rights’, Foreign Affairs (03–04 1998) p. 2Google Scholar.

86. Pupavac, V., ‘The Infantilisation of the South and the UN Convention on the Rights of the Child’, University of Nottingham Student Human Rights Law Centre Newsletter (03 1998) p. 3Google Scholar.

87. See Happold, loc. cit. n. 5, at p. 51 for expansion of this argument.

88. UN Doc. A/51/306, para. 58.