Child Soldiers – A Brief Legal Overview
The concept of the ‘child soldier’, the involvement of children (through conscription or otherwise) in the violence and brutality of armed conflict, is abhorrent to most adults considering the matter. This is confirmed by the fact that there are a number of international conventions and other mechanisms that condemn the practice and create an international framework to combat it.
Who are the child soldiers? The United Nations Convention on the Rights of the Child (see below) defines a child as a person under the age of eighteen. However, for the purpose of restricting recruitment into the armed forces of a State Party to the Convention, and for the requirement that State Parties “take all feasible measures to ensure” that children “do not take a direct part in hostilities “, the Convention uses the age under fifteen years (Article 38).
The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (see below) uses the age of eighteen to condemn the recruitment of children, or their use in hostilities, by armed groups other than the armed forces of a State (article 4).
The Rome Statute of the International Criminal Court (see below) includes, within the definition of “war crimes”, the crime of recruiting or enlisting children, or using them to actively participate in hostilities, by armed forces. nationals or any armed group (Articles 8(2)(b)(xxvi) and 8(2)(e)(vii)). For these purposes, a child is a person under the age of fifteen.
Where are child soldiers used? Child soldiers can be found both in government armed forces and in armed groups that oppose the central governments of their countries. The Coalition to Stop the Use of Child Soldiers, which was launched in 1998 by various groups including Amnesty International and Human Rights Watch, reports that the majority of children under the age of 18 who are involved in conflict are associated with armed groups. .
The Coalition reports that Africa has the highest number of child soldiers. Children are being used in armed conflicts in countries such as Burundi, the Central African Republic, Chad, the Democratic Republic of the Congo, Somalia and Sudan. It also reports on child soldiers in various Asian countries, such as Myanmar and Indonesia, in the Middle East, and in Latin America.
As the Coalition campaigns for a total ban on all military recruitment and use of persons under the age of 18, its website notes that the United States and other Western countries such as Austria, Australia, France, Germany, the United Kingdom The United States and Canada are countries that recruit children (ie, people under the age of 18) into their militaries.
How are child soldiers used? Most of the publicity surrounding child soldiers has focused on their use in non-Western countries by both armed groups and government armed forces. Such publicity makes it clear that child soldiers are used in these countries to fight and kill, directly participating in combat. They can also be used to loot and destroy property; lay mines and explosives; to scout, spy on, and act as decoys. It is widely reported that girls are used for sexual purposes and for domestic tasks, as well as for these other purposes.
Important international conventions: The United Nations Convention on the Rights of the Child entered into force in September 1990. As noted above, article 38 of that Convention deals with the issue of children in the context of a country’s armed forces and hostilities in general. In paragraph 4, the article establishes that “States Parties shall take all feasible measures to ensure the protection and care of children affected by armed conflict.”
The Optional Protocol to the Convention on the involvement of children in armed conflict entered into force in 2002. It requires States Parties to “take all possible measures” to ensure that members of their armed forces under the age of 18 “do not take a direct part in hostilities” (article 1) and requires that children under that age not be compulsively recruited (article 2). (The voluntary recruitment of children between the ages of 15 and 18 into the armed forces of a State is not prohibited by the Convention or the Protocol.)
Article 3 of the Optional Protocol requires that States Parties that allow the voluntary recruitment of persons under the age of 18 must maintain certain safeguards (including ensuring the informed consent of the child’s parents or legal guardians). States Parties are also obliged to take “all feasible measures” to prevent the recruitment and use by armed groups of children under the age of 18, including taking the necessary legal measures “to prohibit and criminalize such practices.”
Convention no. 182 of the International Labor Organization on the prohibition of the worst forms of child labor and immediate action for its elimination entered into force in November 2000. The Convention defines a child as a person under 18 years of age. Ratifying States are required to take urgent measures to ensure the prohibition and elimination of the worst forms of child labour, including the “forced or compulsory conscription of children for use in the armed forces”.
Application: An independent expert body, the Committee on the Rights of the Child, was established in accordance with article 43 of the Convention on the Rights of the Child. The Committee monitors the implementation of the Convention and the Optional Protocol on the involvement of children in armed conflict. States Parties are required to submit periodic reports to the Committee.
The Special Court for Sierra Leone (which was established by the United Nations and the Sierra Leone government in 2002) handed down the first international court convictions for the crime of recruitment and use of child soldiers.
The Rome Statute of the International Criminal Court (ICC) entered into force on July 1, 2002. The first trial before the ICC, which began, after long delays, on January 26, 2009, deals with crimes of war of recruitment and enlistment of child soldiers under the age of 15 and using them to actively participate in armed conflicts. This trial, described as a milestone in the development of international law, should draw public attention to the issue of child soldiers.