Research Paper
Abstract
Armed conflicts, both domestic and international, have used children in combat, either directly-- as soldiers-- or indirectly. Children are preferred by numerous commanders because they are more obedient, more easily persuaded, and more loyal than adults. However, this phenomenon has become a national and global issue because of the physical, emotional, and psychological damages it bring to the children who are involved in combat. The international community has actively addressed the issue through legal actions. The 1949 Geneva Conventions and the 1977 Additional Protocols came into being as part of the efforts of the international community to protect the wellbeing and interests of children involved in armed conflicts. Yet, there are uncertainties whether these legal instruments are effective in protecting the rights of child soldiers. Thus this paper examines whether the international community, particularly the current international laws, is successful in carrying out their mission of protecting children in armed conflicts.
Introduction
Children's involvement in armed conflicts has been a usual phenomenon for much of human history. Numerous small communities in the United States have tombstones and busts in tribute to the child soldiers of the American Civil War; likewise, numerous children also took part in the bloodshed throughout World War II. While the 1949 Geneva Conventions failed to forbid the enlistment and use of child soldiers in armed conflicts; by the 1970s, a change in the rules of the international community had taken place and the earliest mechanisms directly outlawing the use of child soldiers in armed conflicts had been developed and implemented through the Geneva Conventions' Two Additional Protocols. This paper examines to what extent child soldiers are protected in armed conflicts by the current international laws, particularly international humanitarian law and international human rights law.
In the late 1980s, the United Nations Convention on the Rights of the Child (CRC) was endorsed which, amongst other things, outlawed the involvement of children in armed conflicts and authorised the establishment of the Committee on the Rights of the Child. In 1993, two important resolutions were proclaimed at the third session of the Committee. It was agreed to present a proposal to the UN Secretary-General to hire a professional to conduct a thorough inquiry into the protection of child soldiers in armed conflicts. In addition, it was agreed to appoint a committee member to formulate an initial preparatory document of a Protocol to the CRC on the use of child soldiers during armed conflicts.
The Legal Protection of Child Soldiers
The features of armed conflicts have gone through large-scale changes since the drafting of the primary international treaties; these include the fact that international armed conflicts currently comprise the smallest number of conflicts that have erupted violently across the globe in recent years. Developments are also noticeable in local or regional armed conflicts, which are progressively carried out in ways unpredicted by the entities formulating the post-World War II international humanitarian law. Moreover, present-day armed conflicts are carried out in ways that have major consequences for children, both as soldiers and as non-combatants. As reported by the UNICEF paper in 2001:
In the last decade, 2 million children were killed by conflict, 12 million children were made homeless, 6 million children have been injured or disabled, at least 300,000 at any given time are actively involved in armed conflicts, 8-10,000 are killed every year by landmines, and 500 million small arms and light weapons' (widely regarded as facilitating the use of child soldiers) 'are in circulation'.
Nevertheless, in spite of the huge number of conflicts that have occurred in recent decades, current studies have shown that armed conflicts are in fact declining. However, there are also findings that show the very opposite.
The CRC is the most universally approved human rights paper, and it stipulates that a child is an individual who has not yet reached the age of eighteen. Despite this, different countries have different definitions of a 'child', which have, unfortunately, heightened the uncertainties and disagreements surrounding the issue. This uncertainty was aggravated by Article 38 of the Convention, which allows individuals aged fifteen and above to take part in armed conflicts, and “illustrates the undercurrent of cultural relativism that flows through the Convention”. It is reasonable that a person should not be obliged to take part in an armed conflicts until s/he can vigorously take part in the democratic system of his/her state by means of legal citizenship. However, this reasoning was not used in the formulation of the CRC.
It is widely believed that the growth in the production and availability of small arms has led to heightened enlistment and use of child soldiers in armed conflicts. Unlike traditional weapons, which can be hard to use, bulky, and burdensome, even small children can quickly, efficiently, and conveniently handle the small arms presently available and thus serve as combatants in warfare. This enables children to fill the usual shortage in labour power encountered by non-state and state organisations. According to several reports, children are preferred over adults by some commanders because they are committed, easily persuaded, highly driven, and docile. Moreover, children can be quickly manipulated because their moral understanding has not yet fully matured, and thus, they can be taught to be merciless combatants. Children are also easier to recruit than adults, as they have a lesser tendency to resist. Nonetheless, it is important to mention that some commanders believe the contrary and do not find it wise to use children as combatants because they have to be scolded repeatedly, are rowdy, and troublesome.
The international human rights law and international humanitarian law (IHL) provide special protection for children in armed conflicts. During non-international and international armed conflicts, children are provided with the common protection received by non-combatants or civilians. Civilians are assured of humanitarian services, assistance, and are safeguarded from the impact of conflicts. Due to the fact that children have special needs and specific weaknesses, the 1949 Geneva Conventions and the 1977 Additional Protocols guaranteed the protection of all children, both non-combatant and civilians. However, the involvement of children in armed conflicts is regulated and overseen by the 1989 CRC and its Optional Protocol on the Involvement of Children in armed conflicts and by the Additional Protocols.
With respect to internal armed conflicts, civil war, or international upheaval, governments generally launch or put into effect specific laws (e.g. counter-terrorism policies, national security legislation, emergency laws) intended to endow security or police forces with greater authority. In these situations, states have a tendency to reduce the age of criminal culpability; thus, special emphasis must be placed on guaranteeing the protection of child offenders subjected to these laws. For instance, in India, children presumed to be advocates or future soldiers in an armed conflicts have been placed under emergency actions, leading to killings, torture, subjective detention, and unexplained 'disappearances'. The CRC has been deeply troubled by '“reports of involvement of [Indian] security forces in disappearances of children”'. Hence, the Committee declared that every state must '“review emergency and/or national legislation to ensure that it provides appropriate safeguards to protect the rights of children and prevent violence against them”'. However, the underlying issue is, are these legal safeguards successful or sufficient in protecting children during armed conflicts?
International Human Rights Laws
The kidnapping of children and the use of child soldiers is a grave violation of human rights and an international crime that is entangled in the junction of four distinct but interconnected domains of the law:-- exploitative child labour, human trafficking, slavery, and children's rights. The protection of child soldiers is guaranteed under international labour laws, international criminal laws, international humanitarian laws, and international human rights laws. In the 21st century, children endure a great deal during armed conflicts and they are often pressured and coerced to participate in these armed conflicts. The widespread recruitment of child soldiers for armed conflicts is a clear expression of present-day slavery and is a type of human trafficking that is tantamount to the international crimes of drugs and weapons trafficking.Trafficking is characterised by the illicit movement of smuggled goods; human trafficking is the trade of human beings as smuggled goods for exploitative labour (e.g. involvement in armed conflicts). Therefore, the use of children for armed combat is a violation of human rights that is as grave and profitable as slavery.
The trafficking of a child,-- defined as an individual below the age of eighteen-- for involvement in armed combat is classified within the scope of 'trafficking in persons'. The trafficking of child soldiers is defined by the international community in relation to three fundamental components-- movement within or across a border, exploitation, and consent. The trafficking of child soldiers occurs when there is no legitimate voluntary participation; whenever the individual was not completely informed of the military tasks to be carried out; and, whenever recruitment is conducted without the official consent of the parent or statutory guardian of the person. The use of child soldiers is classified as a type of child trafficking due to the fact that the tasks child soldiers have to perform are so risky that they disrupt their basic human right of development, health, and education.
As stated in the Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, the recruitment of children for armed combat is considered to be '“one of the worst forms of child labour”'. Likewise, the use of child soldiers is mentioned in the International Labour Organisation (ILO) Worst Forms of Child Labour Convention 182 as a type of slavery classified in the same category as '“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 conflicts”'. Prior to the establishment of the CRC and the Additional Protocols, numerous conventions were executed to abolish slavery, several of which deal with the specific needs of victimised children in particular. International law has persistently denounced forced servitude and slavery.
International contempt for child soldiering and other forms of slavery is expressed in the form of UN statements and resolutions, conventions, and declarations. However, in spite of the abundance of conventions and declarations denouncing slavery, child soldiering is still rampant. Laws guaranteeing the protection of children from slavery have in fact continued to expand and grow because safeguards against slavery have been added to the scope of child sex tourism laws and human trafficking legislation. The 'best interests of the child' doctrine under international law is regarded as one of the major legal concerns of the state where certain aspects may or may not go against the child's best interest. More specifically, as stated in Article 6 of the CRC, recruitment of children under the age of eighteen is seen as constitutional if the state has a professed national security need to recruit these children for 'free-willed' actual involvement in armed combat to protect that state against suspected threats, regardless of the children's basic human right to life and the responsibility of the state to guarantee the continued existence and development of children.
It must also be noted that the 'best interests of the child' doctrine is at risk of theoretical modifications that are at times enormously damaging to the interests and wellbeing of children. The 'best interests of the child' doctrine is frequently espoused by individuals who embrace conflicting perspectives of what actually embodies the 'best interests of the child' in a specific situation. Happold, for instance, argues that fundamentally it would supposedly be in the children's 'best interest' not to be legal objects of violence as child soldiers by the enemy on a similar ground as applicable to adult opponents becoming legal objects of attack. The assumption that being a legal object of violence on a similar ground as adult combatants is not in the children's best interest as child soldiers is, as argued by Happold, the issue because supposedly:
the main beneficiaries [of such a rule of war making child soldiers an unlawful target for attack] would be those who recruit child soldiers. Their troops would be able to operate with impunity. Indeed, the existence of such a rule might only serve to fuel the recruitment of children, as the advantages of doing so became apparent [the child's ability generally to carry out hostile acts for their armed group without interference].
Debatably, a subjective, legally unacceptable dispossession of life in armed conflicts with regards to children would require the actual recruitment of children for combat resulting in their demise, because under the IHL, children are guaranteed special protection, and, obviously, wars can largely be carried out without the need to use children. Therefore, there is an inherent conflict in IHL between the state's power to legally enlist and use children under the age of eighteen to serve in armed combat and the children's right to special protection.
The jus cogens-- the basic, predominant international law doctrine, from which any form of deprecation is never allowed-- feature of the state's duty to protect children from indirect or direct participation in armed combat is rooted in the natural law doctrine and prevails autonomously from any specific parliamentary agenda. Recognition of the jus cogens doctrine-- the ban on children's participation in armed combat-- as an underlying doctrine of international law is manifested in, but not limited to, the two following facts. First, the continuously expanding safeguards for children against participation in armed hostilities within the scope of international law; and, second, the hesitation of international criminal tribunals and courts to put child soldiers on trial for the perpetration of conflict-associated violence, where the children have actually committed genocidal actions, crimes against humanity, and/or war crimes, and to put children on trial for their participation in internal or international armed conflicts, although such participation is regarded to be an IHL violation. This hesitation reveals the anxiety of the international criminal system to prosecute child soldiers for what are largely predictable consequences emerging from the breach of the jus cogens right of children to be protected as an extremely at risk group from participation in hostilities.
International Humanitarian Law
In recent times, as newly-developed and technologically sophisticated techniques of combat have become widespread, the explicit targeting of non-combatants, as well as children, has become a troubling occurrence. Acknowledgement of the necessity to safeguard civilians, as well as children, in armed conflicts led to the 1949 Geneva Conventions, and consequently the 1977 Additional Protocols. Under the IHL, the arm of international law overseeing armed hostilities, children are safeguarded through specific clauses developed specifically for them, and through common clauses relevant to all civilians. Children are also safeguarded by commonly relevant and child-centred prerequisites of international human rights law (IHRL) in periods of armed conflicts.
The fundamental papers of IHL on armed hostilities-- the 1949 Geneva Conventions-- do not place particular emphasis on the recruitment and use of child soldiers in armed conflicts. Nevertheless, children are protected from the common clauses guaranteed for civilians not involved in armed combat, in that -- they receive humane provisions and are protected by the constitutional terms on the methods and tactics of armed conflicts. The Conventions are applicable to international conflicts, excluding the general Article 3 that guarantees the basic norm of humanitarian safeguard in non-international, internal hostilities. Moreover, the Geneva Conventions, in consideration of the unique weaknesses of children, formulated a set of policies endowing them with special protection. Furthermore, although children may be directly involved in armed combat, they are still entitled to this specific protection.
The Declaration on the Protection of Women and Children in Emergency and armed conflicts also highlights the above perspective, which declares that all attempts must be made to guarantee the security of children and women from the destructions of warfare. The earliest international conventions that addressed the issue of children's direct involvement in armed combat were the Additional Protocols (AP) to the Geneva Conventions. They established the minimum age for involvement in armed combat as, fifteen. This rule is applicable to non-governmental and governmental military service, in both in non-international and international conflicts. As stated in Article 77(2) of AP I, more particularly, regarding international conflicts: “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.”
Furthermore, the AP stipulates that in enlisting individuals aged between fifteen and eighteen, parties must prioritise the oldest ones. Article 4(3)(c) of AP II contains the clause that prohibits the recruitment and use of child soldiers in non-international, internal conflicts: '“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”'. This clause institutes the doctrine of non-recruitment and also bans the practice of voluntary recruitment. In addition, AP I oversees hostile actions in international armed combats and outlaws attacks against non-combatants and civilian entities, including haphazard, unsystematic attacks. Article 77(1) states that '“[c]hildren shall be the object of special respect and shall be protected against any form of indecent assault”'.
The specific protections granted to children in armed conflicts are presumed to make up traditional international law. Meanwhile, children who are classified as soldiers because they are directly involved in armed combat, also receive protections granted to soldiers. These protections involve provisions of care for the injured and ill as stated in the First and Second Geneva Conventions of 1949 and privilege to those who are classified as prisoners of war in the Third Geneva Convention. Child soldiers retain these special protections granted to them under the AP. Yet, child soldiers, as combatants, could still be targeted, and slaughtered, without a violation of the 'distinction' principle, which refers to the IHL overseeing the lawful exercise of force in armed combat, by which combatants must differentiate between civilians and combatants.
More recently, with the establishment of the International Criminal Court (ICC), International Criminal Tribunal for Rwanda (ICTR), and International Criminal Tribunal for former Yugoslavia (ICTY), the breadth of IHL has expanded pursuant to changes in international criminal justice and IHRL. The precepts of these institutions name their administration as 'international humanitarian law', hence incorporating infractions of the Geneva Conventions as violations within their power to castigate. This has led to the growth in importance of the laws of conflict, and raised the value of humanitarian law within the international community.
Outside the specific clauses of IHL and the declarations focusing on the enlistment and use of child combatants, children caught in armed hostilities are entitled to the common human rights law protections to the point that they are not displaced by the international humanitarian law's lex specialis. The lex specialis-- principle states that a law overseeing a particular issue nullifies a law that simply oversees common issues; for instance, the accidental slaughter of children in a contrarily legal and reciprocal attack would not comprise a breach of the right to life within the current international law. Children in armed conflicts could also receive further special protection and guarantees from national law. Additional non-constitutionally obligatory guarantees, specifically the broadly supported 2007 Paris Commitments and Principles, give more advice to states on prohibiting and acting in response to the enlistment and use of child combatants.
Is the current legal protection sufficient in protecting child soldiers in armed conflicts?
There is a huge discrepancy between the presence of normative ideals and the strong points of these normative ideals. For pragmatic purposes, the comparative limitation of normative ideals can be categorised into two. First, ideals that are insufficient due to incompetent drafting, or the choice of terms that are inaccurate and difficult to use in actual circumstances, for instance, those ideals that assert that '“all feasible measures”' should be implemented to make sure that children do not participate directly in armed combat. Second, ideals that are insufficient because the composition of the norm is unable to deliver far-reaching protection, for instance, mechanisms that forbid the recruitment and use of child soldiers below the age of fifteen, rather than eighteen. As shown by these cases, mechanisms outlawing the use of child soldiers are plagued by these two types of comparative limitations.
The second limitation creates less of a setback, because it does not immediately influence the capability to implement the norm. In contrast, since the norm offers a lower level of protection than most would expect, it is relevant to a smaller number of circumstances, and in those circumstances where there is a significantly wide consensus that the action at issue must be outlawed; in other words, the implementation of these norms is less complicated. The assertion can thus be stated that the international community must abandon the formation of additional norms until the existing norms acquire a high level of implementation.
On the other hand, the first limitation strongly affects the ‘implementability’ of the norms. In case the norm intrinsically hinders its own ‘implementability’, the suggestion that the focus must move from norm development to norm implementation will likely go astray. Nevertheless, there were no instances where the recruitment of children for participation in armed combat were validated based on the fact that '“all feasible measures”' were exercised to make sure that the children would not get involved in armed combat. The real discrepancy between the actual reality of child soldiering and the objectives of the law is one of the biggest issues in putting an end to the use of child combatants.
Above all, contrasting principles are widespread in the Optional Protocol. The Optional Protocol to human rights conventions are conventions that can be influenced by ratification, approval, or accession by states involved in the major treaty. As explained by Rosen, the conflicting principles of the Optional Protocol allow independent countries to use child combatants but prohibit non-state organisations from carrying out a similar act. Article 3 of the Optional Protocol to CRC, for instance, allows voluntary enlistment under the age of eighteen; it enforces the duty on the countries to '“raise the minimum age in years”' for volitional enlistment from the current minimum age of fifteen. Since this responsibility is not applicable to military academies, it creates an opportunity for bypassing the minimum age established for recruitment. Consequently, '“it remains largely ignored by conflict groups, as there has been little action on the enforcement side”'.
In essence, the current legal protections for child soldiers or children in armed conflicts are insufficient. The IHL and IHRL fail to sufficiently safeguard children during armed conflicts. The varying extent of protection for child soldiers puts them at a greater risk of certain maltreatment. The Committee of the Red Cross, for example, mandated that parties to the conflict must make sure children under fifteen do not participate directly in armed combat. However, the Optional Protocol states that '“armed groups that are distinct from the armed forces of the State should not, under any circumstance, recruit or use in hostilities persons under the age of 18 years”'. Thus, the majority of recruitment cases were of children under the age of eighteen. In addition, the inconsistent character of international law approval, enactment, and compliance is another weakness that hinders the adequate protection of children in armed conflicts. Due to weaknesses in the international law paradigm, the approval and implementation of the international protocols or treaties can not ensure that the recruitment and use of child soldiers in armed conflicts is successfully prohibited.
Law enforcement has depended almost entirely on the parties and states accountable to failures to guard or control their actions; there is no efficient autonomous enforcement system in existence. Traditionally, the main incentive for compliance with the IHL was the assumption of reciprocity. Countries would comply with the terms of the Third Geneva Convention regarding prisoners of war in the knowledge that, if imprisoned, their combatants would be at the mercy of their enemies. Nevertheless, the treatment of non-combatants could not be much of an issue, particularly when considering the habit of armed forces and organisations to attack their own civilians. With regards to the recruitment and use of child combatants, where the injured parties are their own people, there is no motivation rooted in reciprocity, such as that the opposing party or state will not enlist the children of the involved party or state.
Traditionally, where assumptions of reciprocity were not realised, the primary instrument for implementing IHL was the exercise of retributions or threat. Where one state perpetrated crimes against another state, the oppressed state was constitutionally allowed to react correspondingly. Nevertheless, contemporary IHL largely forbids retributions against civilian populations. A party to a conflict is prohibited from threatening to act in vengeance if the enemy intimidates or assaults its civilian population. This is certainly a favourable development in international humanitarian law and reinforces children's protection, yet it has abolished one of the several instruments for implementing the law.
Furthermore, parties to a conflict may not have the ability or determination to implement legal prerequisites associated with the children's protection during armed conflicts. Non-state entities could be uninformed or ignorant of their international legal duties. Child combatants could be viewed as a more affordable and reliable labour resource. In certain societies, involvement in the armed forces could be viewed as part of the children's duty to protect his/her community and the cultural standards pertaining to children or descriptions of 'childhood' may differ significantly. In addition, particularly with respect to non-state entities, but also in relation to state entities, awareness about IHL could be low, as well as the resources for its implementation. The duty to promote and propagate the law is hence incorporated into the Geneva Conventions and the AP.
With armed conflicts progressively becoming disproportional in character between non-state and state entities and their adverse consequences being increasingly endured by children, alternative approaches to implementation have become a necessity. Specifically, external implementation instruments which can surpass the barriers of self-policing and new strategies for involving non-state entities particularly, but states as well, by means of negative and positive incentives are required.
Recommendations and Conclusions
Despite recent improvements in formulating the laws safeguarding children during armed conflicts, as comprehensively explored in the above discussion, there has not been a great deal of an improvement in an actual sense. Theoretically, the laws protecting children during armed conflicts are more consistent and effective than in the past, but in an actual sense, the use of child soldiers continues to flourish. There is a discrepancy between improvements written on paper and those achieved in the real world. The formulation of international norms regarding the participation of children in hostilities has become a major issue. Although the far-reaching recognition of the Optional Protocol on the use of child soldiers in armed combat has been a major progress, prolonged conflicts and the dangers of emerging conflicts still demand dedication, attentiveness, and diligence from the international community.
For these reasons, monitoring, reporting, and enforcing instruments of current laws safeguarding child combatants must be reinforced and expanded. These laws have to be implemented completely, without excuses. Most significantly, the discrepancy between actual practice or reality and law-making has to be reduced by resolving the major sources of child soldiering. Such actions are achievable through gaining accurate knowledge of the reasons children become combatants and applying such understanding in formulating feasible solutions. This could be achieved through cooperation with major actors who have a more precise knowledge of what motivates certain armed forces or conflicts, as well as by being diligent in examining whether preventative solutions or programs are effective.
Through such actions, the international community will acquire a more accurate knowledge of the primary roots of child soldiering, build a supportive system in both the international and national arenas that can play a vital part in motivating conformity from armed forces, and acquire a more precise knowledge of which preventative solutions are successful, which will guide various actors in enforcing prospective interventions and support for children in armed conflicts. Once the political and social circumstances of child soldiers are considered, the international community will be able to develop laws that can positively resolve the issue.
The two crucial areas of focus for the international community to successfully protect children during armed conflicts are capacity-building and raising awareness, and there are a number of ways in which these areas can be addressed:
1. Training about the Optional Protocol's clauses for police authorities, social workers, recruiting officers, government authorities and other involved parties to the conflict.
2. Educational institutions disseminating information about international humanitarian law and international human rights law.
3. Creating advocacy and information resources on enforcing the IHL and IHRL, such as posters and leaflets for people, -- especially for children.
4. Organizing awareness-raising programs to educate armed forces and local communities about the need to put an end to child soldiering, and highlighting the state's responsibility as specified in the Optional Protocol.
5. Fully informing those children voluntarily participating in military operations and their parents or statutory guardians regarding the responsibilities and tasks involved.
6. Simplifying the wording or expression of the IHL and IHRL and promoting its far-reaching dissemination to all involved actors (e.g. organisations working with and serving children, military recruitment institutions, government bureaus).
Other recommendations that would definitely strengthen the protection of children in armed conflicts include expanding access to refugee or asylum services for the reintegration of ex-child combatants; enforcing a complete ban on the movement of military services and weapons to nations where children are recruited for direct participation in armed combat; apprehending children involved in armed combat as a last option; making sure that these children are not handed over to the care of another government if there is a threat of abuse or torture; providing special education and care for children aged under eighteen; exercising preventative actions to thwart the slaughter of and/or injury to civilian population, and conducting an investigation of the members of armed groups who perpetrate abuses against children.
Even though the issue of child soldiering calls for further studies and greater attention, it is clear that numerous groups and individuals gain from recruiting and using children as combatants during armed conflicts. Children are easily accessible and readily available, and those who take advantage of these children are usually shrewd and capable of concealing their actions from the international community. Such desire to abuse children raises a large-scale necessity for children's protection and poses challenging issues for international law. The abovementioned recommendations could help enhance the effectiveness of international law protecting children in armed conflicts, particularly with regards to enforcement.
Bibliography
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Legislations
Convention on the Rights of the Child, signed 20 November 1989, Treaty Series, vol. 1577 (entered into force 2 September 1990).
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UN General Assembly, Declaration on the Protection of Women and Children in Emergency and Armed Conflict, 14 December 1974, A/RES/3318(XXIX).
