child soldiers: deprivation of childhood a critical ...

CHILD SOLDIERS: DEPRIVATION OF CHILDHOOD A CRITICAL ANALYSIS OF THE INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS STANDARDS FOR THE PROTECTION OF CHILDREN FROM RECRUITMENT AND USE IN ARMED CONFLICT By ZIORI OLGA University of Bristol LLM Human Rights Law 2010/11 Supervisor: Professor Judith Masson Word Count: 11,869 1

1 Excluding Title page, contents page, acknowledgements, summary, and bibliography in accordance with clause 7.2.1 of The LLM by Advanced Study Dissertation guidelines November 2010.

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Contents Introduction 1.1.1 Preface 1.1.2 Aims of the study 1.1.3 Limitations of the study

6-7 8 9

Chapter 1 – Key definitions and problem statement 1.2.1 Key definitions 1.2.2 Problem Statement

10-12 13-14

Chapter 2 – International Humanitarian Law for the protection of child soldiers 2.1 2.2 2.3 2.4 2.5

Overview of the applicable legal instruments 15 International Humanitarian Law and the protection of children 16 Child Protection in International Law- A brief historical background 17-18 Four Geneva Conventions: Common Article 3: Its Content and Gaps 19-22 Additional Protocol I and II to the Geneva Conventions 22 2.5.1 Additional Protocol I to the Geneva Conventions 22-26 2.5.2 Additional Protocol II to the Geneva Conventions 26-27

Chapter 3 – International Human Rights Law - One step forward 3.1 3.2

Convention on the Rights of the Child 3.1.1 Article 38 of the Convention Optional Protocol to the Convention on the Rights of the child 3.2.1 Examining the Optional Protocol-Greater Protection 3.2.2 Recruitment by Armed Forces 3.2.3 Recruitment by non-state armed groups

28 28-29 30 30-32 32-34 34-35

Conclusion

36-37

Bibliography

38-43

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LIST OF ABBREVIATIONS ACRWC African Charter on the Rights and Welfare of the Child CRC Convention on the Rights of the Child CROC Committee on the Rights of the Child DDR Disarmament, Demobilisation and Reintegration DRC Democratic Republic of Congo GA General Assembly HRW Human Rights Watch ICC International Criminal Court ICRC International Committee of the Red Cross ILO International Labour Organization LRA Lord’s Resistance Army NGOs Non-governmental organizations OAU Organization of African Unity RUF Revolutionary United Front SC Security Council SCSL Special Court for Sierra Leone UNICEF United Nations Children’s Fund UN United Nations

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DEDICATION To my parents for their financial and emotional support in helping me pursue a great academic career. To my brother Raphael that I love very much. To Andreas Schnabl for being there for me; without him, this dissertation would not have been completed. To my friends Meltem Ineli and Ruoshu Wang for their encouragement, friendship and support.

ACKNOWLEDGEMENTS I would like to express my sincere gratitude to Professor Achilles Scordas, for his guidance and support during the course of my LLM program and for being so kind and helpful when I was desperate for help. I would also like to thank Andreas Schnabl for gently encouraging me to complete this dissertation and for having faith in me when I lacked faith in myself. Andreas a simple thank you is not enough to show you my gratitude. I would also like to thank Meltem Ineli and Ruoshu Wang, my friends, for their support, encouragement and love. Thank you for having faith in me. I would like to thank Hermine Schnabl for her editorial assistance and for being so kind to me. I would also like to thank Josef Schnabl for helping me bind and sumbit this dissertation on time. You have been so kind and helpful.

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ABSTRACT According to estimations conducted by NGOs, more than 500,000 children under 18 have been recruited for state and non-state armed groups in over 85 countries worldwide2. Furthermore, more than 300,000 of these children are actively fighting as soldiers with government armed forces or armed opposition groups3. The International community has recognised this issue decades ago, but a clear-cut solution has not been found until today. However, what the international community has managed to come up with are international legal instruments encapsulating obligations and legal standards mainly for state parties for the protection of child soldiers. For the purpose of this dissertation, international humanitarian law and international human rights law documents regarding the protection of child soldiers are chosen. A critical and concise analysis of the most important provisions relating to the of prohibition of recruiting children and discussions about an age limit is made by taking into account a variety of scholarly opinions, NGO statements and reports by international bodies. What needs to be pointed out is that the legal standards in place can only be regarded as a starting point for a further commitment to address to pressing issue of child soldiers. Yet, international human rights law, in particular the Optional Protocol to the Convention on the Rights of a Child on the Involvement of Children in Armed Conflict, indicates that there is some progress when it comes to the development of legal standards that needs to be fostered.

2 Coalition to Stop the Use of Child Soldiers. Global Report. 2008, available in http://www.childsoldiersglobalreport.org/ 3 Hackenberg L. Marsha, “Can the Optional Protocol For the Convention on the Rights of the Child Protect the Ugandan Child Soldier?”, International & Comparative Law Review, Vol.10,2000, pp.417-418

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INTRODUCTION 1.1.1 Preface I killed two informers in Medellín. They were aged thirty-eight and forty-two. I wasn't afraid to kill them because I had already been in combat. Our collaborators had seen them talking to paramilitaries. I had their address, and went to their house. There were two of us, but I was the one who had to do the killing. It was a test for me. I was thirteen. It was the same year that I joined the FARC-EP. After doing it, I felt really big, like a real killer (matón). But sometimes when I thought about it, I felt sad and I wanted to cry. Milton (pseudonym for a Colombian boy, age 13)

“Whereas mankind owes to the child the best it has to give....”4

4

Preamble ,UN Declaration of the rights of the child ,General Assembly Resolution 1386, 20 November 1959

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One of the most alarming trends relating to children and armed conflicts is their participation as active soldiers. Children are forcibly recruited by governments or non-state actors and turned into combatants or voluntary join them5. The assumption that children are only affected by war in their capacity as civilians can no longer be sustained when there is recruitment of child soldiers in wars of national liberation or self-determination6. In more general terms, the phenomenon of child soldiers is not new. Children throughout history have, at various times (from World War II and the Hitler Jugend to 2011), been involved in armed conflicts in huge numbers as both, civilians, and soldiers 7. Child soldiers may due to their engagements in violent actions become victims, perpetrators and/or witnesses of atrocious acts such as killing, rape, torture, wounding and displacement of people. In today’s world, an armed conflict occurs predominantly in the form of internal rather than international armed conflicts8 . In her

1999 work, “New and Old Wars:

Organized Violence in a Global Era, the author claims that “the new wars involve a blurring of the distinctions between war (usually defined as violence between states or organized political groups for political motives), organized crime (violence undertaken by privately organized groups for private purposes, usually financial gain), and large-scale violations of human rights (violence undertaken by states or politically organized groups against individuals)9. In the light of these new developments in international humanitarian law, the legal framework ought to adapt to a certain extent to these new forms of conflicts. Moreover, do the legal standards constitute an adequate protection for children? As UN Secretary General Ban Ki-moon highlights in his report10 , the use of child soldiers continues and Africa is the main area of concern while he points out the growing participation of non-state actors in the recruitment of children. Deplorably, what becomes more evident is the fact the legal standards and practice deviate from reality. 5 Cohn Ilene and Goodwin-Gill S. Guy, “Child Soldiers:The role of children in armed conflicts”,( 2st edition,OUP,Oxford, 1994),p. 168 6 Maher C. Coleen, “The Protection of Children in Armed Conflict: A Human Rights Analysis of the Protection Afforded to Children in Warfare”, Boston College Third World Law. Journal,Vol.9,Issue 2,1989, p.297, 301 7 Eigen D. Lewis, “Child Soldiers Are Unfortunately Nothing New”, Scriptamus, 2009, available in http://scriptamus.wordpress.com/2009/11/02/child-soldiers-are-unfortunately-nothing-new/ (accessed 28 June 2011) 8 Brosha Stephen, “Children as Tools of War:Seeking Global Solutions Through Theoretical Analysis” available in http://atlismta.org/online-journals/0506-journal-government-and-the-rights-of-individuals/children-as-tools-of-war/ (accessed 24 July 2011) 9 Kaldor Mary, “New and Old Wars: Organized Violence in a Global Era”, (Stanford: Stanford UP, 1999) ,p.2 10 United Nations, Report of the UN Secretary General on Children and Armed Conflict, UN Doc (A/62/609S/2007/757).

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1.1.2 .Aim of the study This dissertation aims at presenting a critical analysis of the current international legal framework regarding child soldiers in armed conflicts. Prior to an analysis of the international legal framework it seems conducive to address fundamental and basic questions arising from that topic. That is why the first chapter gives an overall insight into the topic and its pressing contemporary significance. Moreover, key definitions of legal terms that can be found in international humanitarian law and international human rights law will be considered. As for the second chapter, the focus will be put on international humanitarian law standards regarding the use of child soldiers. . Certain inadequacies, inconsistencies or gaps of these provisions will be underscored. The critical analysis shall feature a wide range of scholarly opinions as well as reports issued by international bodies or institutions that have detected these legal gaps. The third chapter aims at presenting a concise approach of the international human rights law standards in place, with a particular focus on the Optional Protocol to the Convention on the Rights of a Child on the Involvement of Children in Armed Conflict. It seems to be conducive to draw conclusions from both branches of international law as international humanitarian law as well as international human rights law have their benefits and disadvantages. In this dissertation it will be argued that international humanitarian law provides a fundamental legal basis for addressing the problem of child soldiers; however, the inadequacies hinder or outweigh its benefits. As such, international human rights law, especially the Optional Protocol to the Convention on the Rights of a Child on the Involvement of Children in Armed Conflict provides a contemporary legal basis for dealing with the problem of child soldiers globally. Thus, the increasing promotion of the Optional Protocol appears to be a beneficial way of improving the overall alarming situation of child soldiers around the world.

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1.1.3 Limitations of the study Due to the variety of issues arising from the existence of child soldiers, the overall topic is broad and extensive. Hence, for the purpose of this dissertation the focus will be put on the existing international legal framework for the protection of child soldiers. The emphasis lies on international humanitarian law and international human rights law standards that will be analysed and critically assessed. Consequently, in this paper for example, the particular issues of girl soldiers, rehabilitation of child soldiers or the gender based protection under international law will not be addressed. Moreover, cases of the Special Court on Sierra Leone and of the International Criminal Court that held adults accountable for recruiting and enlisting child soldiers will not form a part of this dissertation.

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CHAPTER 1 Key definitions and problem statement 1.2.1 Key Definitions

Before analysing the international legal regime it is essential to give some key definitions for terms that one may encounter in all of the legal documents and in this dissertation. These definitions are still a matter of controversy; but based on the explanations given in The Cape Town Principles and Best Practices 11 and the Paris Principles12 an attempt is made to present a definition, while also relying on legal provisions of international standards and the position of reliable non-governmental organisations. Child: According to The Paris Principles, a child “refers to any person less than 18 years of age in accordance with the Convention on the Rights of the Child” 13. Until the adoption of the CRC, the term “child” appeared in some international documents such as the Declaration on the rights of the child14 but there was no legal definition. The CRC filled that gap. Pursuant to Article 1 of that 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”15. It can be noticed that, generally, CRC adopted eighteen years – the voting age in most countries, as indicator of majority. However, one should pay attention to the noticeable flexibility of the Convention in defining a child. Apparently, “the moment at which a person ceases to be a child and becomes an adult is not judged in the same way everywhere in the world”16. It depends on the individual biological and psychological maturity, on the cultural and social aspects and other criteria. The first article of the CRC includes these considerations with the qualification that it may be otherwise when majority is attained 11 The Cape Town Principle was adopted at the Symposium on the prevention of recruitment of children into armed forces and on the demobilization and social reintegration of child soldiers in Africa. This took place from the 27 th to the 30th of April 1997 in Cape Town in South Africa. 12 The Paris Principles refers to Principles and Guidelines on Children Associated with Armed Forces or Armed Groups adopted at the International Conference in Paris on Children Involved in Armed Forces and Armed groups. The conference which took place on February 5 and 6 saw the participation of 58 countries and was Co-presided by Mr. Douste-Blazy and Ann M. Veneman, executive director of UNICEF, and in the presence of Radhika Coomaraswamy, the UN secretary-general’s special representative for children in armed conflict 13 The Paris Principles, Principles and Guidelines on children associated with Armed Forces or Armed Groups, February 2007.page 7 14 Declaration on the Rights of the Child, proclaimed by General Assembly resolution 1386(XIV) of 20 November 1959 15 UN Convention on the Rights of the Child (adopted 20 November 1989) (entered into force September 1990 16 ICRC Commentary, Additional Protocol II,

4549.

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earlier. In comparison, other international standards have adopted the same content. On the same line, Articles 2 of the International Labour Organisation (ILO) Convention No 182 on the Worst forms of Child labour and the African Charter on the Rights and Welfare of the Child have referred to a child as someone under the age of 1817. Child Soldiers: The most commonly accepted definition of a child soldier stems from a variety of NGOs which sought to better identify soldiers through a more accurate and less weapon-centric interpretation of soldiering. The ‘Cape Town Principles’ state that: “Child soldier means any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers, and those accompanying such groups, other than purely as family members”18. Cases of girls being recruited for sexual purposes and forced marriage are also included19. As such this definition does not, therefore, only refer to a child who is carrying or has carried arms .20 There is no straight forward legal meaning for child soldiers as it is for adult combatants21. As Rosen underlines22, here the “politics of age” really come into play as various instruments and examples illustrate. A majority of influential humanitarian organisations and the United Nations, through its Convention of the Rights of the Child, define a child as any person under the age of 1823. Universal recognition of soldiering during childhood is arguably also indicated by blanket immunity from war crime prosecution and also the death penalty until the age of 1824. However, there is no universal obligation to prevent all children below the age of 18 from enlisting.

Armed Groups: It was difficult to arrive at a definition about what constitutes an armed group mainly because of a general fear of States not to give a legal status to them 17 African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (adopted 1990), Art.2,(entered into force 29 November 1999) available in http:// www.africa-union.org see ILO Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, (adopted 17 June 1999), 18 Cape Town Principles supra note 10, p.12 19 Ibid. 20 Mark Lorey, “Child Soldiers Care & Protection of Children in Emergencies ,A Field Guide”,p.3 UNICEF (1997) Cape Town Principles and Best Practices. Cape Town, South Africa, 27–30 April. Available at: http://www.unicef.org/emerg/index_childsoldiers.html 21 Brocklehurst Helen, “Childhood in conflict: can the real child soldier please stand up?” Department of Politics and International Relations,Swansea University 22 Rosen, D., “Child soldiers, International Humanitarian Law, and the Globalisation of Childhood”, American Anthropologist, vol.109, issue 2, 2,2007,pp. 96-306 23 See Convention on the Rights of the Child,supra note 14 24 Supra note 21 Rosen, p.101-102

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under International Law25. According to Paris Principles and the Coalition to Stop the Use of Child Soldiers armed groups are “armed entities that are distinct from the government and the armed forces of a State”26. While the first adopts the language of the Optional Protocol, the Coalition the Stop the Use of Child Soldiers uses the word “government” 27. Furthermore, the Coalition includes in the definition armed political groups, militias and paramilitaries in order to distinguish them from the armed forces28.

Armed Forces: According to the Paris Principles armed forces are the armed forces of the government while the Coalition defines them as the military forces of a government 29. Recruitment: Despite the lacking definition, the term recruitment describes ways in which a person can become a member of the armed forces or an armed groups. The Cape Town Principles use the expression “irregular or irregular armed force or armed group 30”. Means of recruitment include compulsory, forced and voluntary as listed in the Cape Town Principles, the Paris Principles and the Research Guide of the Coalition to Stop the Use of Child Soldiers31. Compulsory recruitment or otherwise conscription is the service required by the Statute in regular state armed forces while voluntary implies a choice to join the armed forces32. Overall, one has to bear in mind, as the Guide to the Optional Protocol on the involvement of children in armed forces highlights, that the Paris Principles as well as the Cape Town Principles are just guidelines for programmatic purposes and not legally binding documents33.

25 Ibid, 26 Supra note 12, p.7 27 Definition of armed groups available in http://www.child-soldiers.org/childsoldiers/armedgroups 28 Ibid. 29 Supra note 12 p.7 30 See supra note 17 p.4 31 Paris Principles supra note 12 ,at 2.4 32 Ibid. and see p. 4 of the Article on Child Soldiers of the 10/2006, Geneva Centre for the Democratic Control of Armed Forces, DCAF Backgrounder,DCAF, Geneva 33 UNICEF, and Coalition to Stop the Use of Child Soldiers, Guide To the Optional Protocol on the Involvement of Children in Armed Conflict, UNICEF, New York, December 2003 p.14

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1.2.2 Problem Statement Children have served in government forces, paramilitaries or in opposition forces in Columbia, Mexico, Peru, Turkey, Yugoslavia, Algeria, Angola, Burundi, Chad, Democratic Republic of Congo, Eritrea, Ethiopia, Rwanda, Sierra Leone, Somalia, Sudan, Uganda, Afghanistan, Iran, Iraq, Israel and the Occupied Territories etc.34 The use of child soldiers still occurs in the Western Hemisphere, Europe, Africa, the Middle East, Central Asia, and Asia. Today fighting forces still recruit child soldiers in Afghanistan, Chad, Colombia, Democratic Republic of Congo, Ivory Coast, Myanmar, Nepal, Philippines, Sri Lanka, Somalia, Sudan and Uganda35. Graca Machel, the former first lady of Mozambique and the wife of Nelson Mandela, who served as a special expert for the United Nations on the issue of child soldiers, wrote a ground breaking report on child soldiering, summing up the extent of the use of child soldiers and its significance36: The statistics presented in that report are shocking enough, but more alarming is the conclusion to be drawn from them: children are slaughtered, raped, and maimed; a space in which children are exploited as soldiers; a space in which children are starved and exposed to extreme brutality. Such unregulated terror and violence speak of deliberate victimization. There are few further depths to which humanity can sink.”37 Although the problem of child soldiers is not new, the changing nature and proliferation of conflicts following the end of the Cold War (most of the wars are nowadays limited to internal conflicts), brought the problem of child soldiers on the surface and made the need to protect them more urgent. Currently, more than 500,000 children under 18 have been recruited for state and non-state armed groups in over 85 countries worldwide, according to the Coalition to Stop the Use of Child Soldiers38. Presumably more than 300,000 of these children are actively fighting as soldiers in governmental armed forces or armed opposition groups worldwide, according to the coalition39. The last few years have seen heightened interest in the problem at the highest level 34 See Human Rights Watch: Children’s Rights, Where Child Soldiers Are Being Used, available at http:www.hrw.org/campaigns/crp/where.htm and http://www.childsoldiersglobalreport.org/ 35 Ibid. 36 Machel Graca, “Promotion and Protection of the Rights of Children: Impact of Armed Conflict on Children”, par. 27, 51st Sess., Agenda Item 108, U.N. Doc. A/51/306,1996 (hereinafter Machel study) 37 United Nations, Report of the Expert of the Secretary-General: Impact of Armed Conflict on Children, delivered to the General Assembly, U.N. Doc. A/51/306 (Aug. 26, 1996 (prepared by Graca Machel), p.37 38 Coalition to stop the use of child soldiers, http://www.child-soldiers.org/childsoldiers/some-facts 39 Supra note 3 Hackenberg

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of the international community, and landmark developments to strengthen and broaden the scope of international measures to protect children from this scourge. On the 12th of July 2011 in particular, the UN Security Council unanimously adopted a resolution against recruitment of child soldiers, pressing nations to halt the abuse of children including rape and attacks on schools. 40The signatories "call upon member states concerned to take decisive and immediate action against persistent perpetrators of violations and abuses committed against children in situations of armed conflict, and further call upon them to bring to justice those responsible for such violations"41. The resolution highlighted actions prohibited under international law, including "recruitment and use of children, killing and maiming, rape and other sexual violence, attacks on schools and/or hospitals42. UN Secretary General Ban Ki-Moon said the resolution -- an initiative by current Security Council president Germany -- is the eighth since 1998 to condemn nations and militaries which use children to wage war and subject them to brutal violence like rape43. In its report on child soldiers last year, the United Nations for the first time named military forces and rebel groups that persistently used children in armed conflict44. The groups included Myanmar's national army and two rebel militant groups in the country; three insurgent groups in the Philippines; the Revolutionary Armed Forces of Colombia; armies and militias in the Democratic Republic of Congo; and pro-government militias in Sudan as well as the southern-based Sudan People's Liberation Army45. There is a variety of international legal standards which give guidance for the protection of children and child soldiers in specific. In spite of the existence of these standards, the evolving character of the conflicts and the continuous use of child soldiers show that more needs to be done.

40 UN S/RES/1998/2011 on Children and Armed Conflict 41 Ibid. 42 Ibid. 43 Ibid. 44 The Annual Report of the Secretary-General to the Security Council on Children and Armed Conflict (A/64/742--S/2010/181 45 Ibid.

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CHAPTER 2 International Humanitarian Law for the protection of child soldiers 2.1 Overview of the applicable legal instruments The face of warfare has fundamentally changed. Interstate wars are now outnumbered by internal conflicts where the distinction between civilians and combatants is not always clear. When children take direct part in the hostilities, they subsequently lose the protection granted to them as civilians and become legitimate targets. Due to the continuous violation of the rights of children who are recruited and used in armed conflicts around the world, the urgency of protecting their rights and the need to further prevent their recruitment and use as soldiers has led to the adoption of a number of international standards in the form of conventions, declarations and resolutions. The use and abduction of child soldiers are international crimes and heinous human rights violations that intersect with four different but related areas of the law: children’s rights, slavery, human trafficking, and exploitative child labour. Child soldiers are protected under international human rights law, international humanitarian law (i.e. law of war), international criminal law, and international labour law as well as in the practices of States and the resolutions of the International Conference of the Red Cross and Red Crescent46. Applicable instruments include the four Geneva Conventions of 194947 and their two Additional Protocols48, the Convention on the Rights of the Child (CRC)49, the African Charter on the Rights and Welfare of the Child (“African Children’s Charter”)50, the Rome Statute51, the International Labour Organization's Convention No. 182 on the Elimination of the Worst Forms of Child Labour (“ILO Convention 182”)52 and the Optional Protocol53. In this paper, the emphasis will be put on the two Additional Protocols to the Geneva Convention, the Convention on the Rights of the Child and its Optional Protocol on the 46 Supra note 5,Cohn,p.55 47 Geneva Conventions (first, second, third and fourth) ,adopted 12 August 1949 and entered into force 1950 . 48 Additional Protocol I to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 1977 and entered into force 1979); Additional Protocol II to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, (adopted 1977 and entered into force 1979). 49 UN Convention on the Rights of the Child (adopted 20 November 1989) (entered into force September 1990). 50 Supra note 16 51 Rome Statute of the ICC (adopted 17 July 1998) (entered into force in 2002). 52 Supra note 16 53 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, (adopted 2000 and entered into force 2002)

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involvement of children in armed conflict.

2.2 International Law and the Protection of Children One branch of international law that includes provisions in relation to child soldiers is international humanitarian law. It is the body of law that seeks to regulate the methods and means of warfare, the treatment of people in times of war, and it international humanitarian law norms serve to identify who is not, or who is no longer (wounded, prisoners of war etc.) participating in the hostilities54. The most significant humanitarian law treaties are the Geneva Conventions 1949 which were drafted in the aftermath of World War II and the two Additional Protocols to these Conventions that were adopted in 197755 . Humanitarian law protects children at two levels. First, provided children do not participate directly in the conflict, they are entitled to general protection against the effects of hostilities as members of the civilian population. 56Secondly, they have the right to special protection because of their particular vulnerability, even if they have participated directly in hostilities.57 However, as shall be discussed below, the scope of international humanitarian law regarding the use of children in armed conflicts is rather limited, especially in conflicts of a non-international nature.

54 Harvey Rachel, “Children and armed conflict:A guide to international humanitarian and human rights law”, available at http://www.essex.ac.uk/armedcon/story_id/000044.pdf p.6 The Children and Armed Conflict Unit, Themes: Child Soldiers, at http://www.essex.ac.uk/armedcon/themes/child_soldiers/index.html (last visited 20 July, 2011) (quoting Archbishop Desmond M. Tutu). 55 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949 Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949. Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. Adopted on 8 June 1977, Protocols I and II are international treaties that supplement the Geneva Conventions of 1949. They significantly improve the legal protection covering civilians and the wounded, and - for the first time - lay down detailed humanitarian rules that apply in civil wars. 56 Ibid. Additional Protocol I, Art.50 57 Barstad Kristin, “Preventing the recruitment of child soldiers: The ICRC approach”, Refugee Survey Quarterly, Vol. 27, No. 4, 2009, p.146

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2.3 Child Protection in International Law: A Brief Historical Background

In the early 20th century the issue of child soldiers has already been present due historical instabilities in Europe; however, in contrast to the contemporary nature of conflict, history indicates how different the subject was dealt with only a century ago. The 1924 Declaration for the Rights of the Child58, drafted by the League of Nations, enshrined general principles for the universal care and protection of children. Furthermore, the “inalienable right” to the components of a secure and healthy upbringing was recognised. At that time the need to protect children stemmed from increasing political incentives to ban child labour. On a more general note, due to a changing perception childhood from the psychological perspective ideas emerged to focus even more on the protection of children by means of law59. In 1939, in cooperation with the Save the Children Fund International Union the ICRC prepared a draft convention for the protection of children in the event of armed conflict.60 Unfortunately the outbreak of World War II prevented its adoption by States61. The ravaging effects of World War II forced the international community to address the deliberate targeting of civilians which, in short, had led to massive displacements, persecutions and death. In 1946, another Draft Convention was submitted by the Bolivian Red Cross to the Preliminary Conference of the National Red Cross Societies for the Study of the Geneva Conventions; however, the international community decided that its provisions should be incorporated in the Fourth Geneva Convention rather than a Fifth Convention being adopted. Pictet, in his commentary on the Fourth Convention, “says little about the fate of this Fifth Convention but hints at the need for compromise throughout the negotiation process”62. Consequently, the idea of a separate convention focusing particularly on the vulnerabilities of the children in armed conflicts was abandoned for the sake of achieving a

58 Geneva Declaration of the Rights of the Child, adopted 26 September, 1924, League of Nations 59 Hughes Lisa , “Can International Law Protect Child Soldiers?”, Peace Review Vol.12,No3 ,2000,p.400 60 Dutti Maria Teresa and Bouvier Antoine, “Protection of children in armed conflict: the rules of international law and the role of the International Committee of the Red Cross” , The International Journal of Children's Rights,Vol.4,No.2, 1996 ,p.182 61 Ibid. 62 Hamilton Carolyn and Abu El-Haj Tabatha, “Armed Conflict: the Protection of Children Under International Law”, The International Journal of Children Rights, Vol.5 No.1,1997,pp.12-13

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political consensus for the convention as a whole.63 After ICRC's efforts, the fourth Geneva Convention of 1949 was adopted relating to the protection of civilian persons in times of war.64 From that time on, children, as members of the civilian population, were entitled to benefit from the application of that Convention.65 As such, children under 15 years old alongside with pregnant women, and elderly people actually received special protection as civilians and or as members of the groups which were the most affected by the devastating effects of World War II.66 The 1949 Geneva Conventions anticipate two types of conflicts: “all cases of declared war or of any armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them,”67 and “the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.”68 In short, the 1949 Geneva Conventions refer to both international and non-international conflicts.

63 Van Bueren Geraldine, “The International Law on the rights of the Child”, (1st ed.,Martinus Nijhoff,1998),pp.329-330 64 Plattner Denise, “Protection of children in International Humanitarian Law”,International Review of the Red Cross,May-June 1984,p.1 65 Ibid. 66 Supra note 22 67 See 1949 Geneva Conventions, common art.2 68 Ibid. at art.3

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2.4 Four Geneva Conventions: Common Article 3: Its Content and Gaps The rules of international humanitarian law applying to non-international armed conflicts are codified in Common Article 369 to the four 1949 Geneva Conventions.70 Persons who take direct part in hostilities fall outside the scope of its protection and lose the protection guaranteed in the article because Common Article 3 affords protections to persons taking “no active part in conflicts”71 . As it can be deduced from the wording of Common Article 3, persons not actively involved in conflicts are granted protection whereas persons engaging in hostilities fall outside the scope of protection. 72Essentially, as the Geneva Conventions do not explicitly refer to child soldiers, children taking direct part in the hostilities are not afforded protection. 73The scope of the Geneva Conventions and in particular the scope of Common Article 3 is to underline the overarching principle of international humanitarian law concerning the distinction between civilians and combatants.74 Arguably, this gap in the protection of child soldiers under the four Geneva Conventions may be remedied by the existence of the well-established Martens clause: “In cases not covered by this Protocol75 or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the

69 It has been characterised as a “mini convention on the treatment of person in civil wars”, Commentary to the Geneva Conventions of 12 August 1949 Relative to the Protection of Civilian Persons in Time of War (Jean S. Pictet ed., 1958) [hereinafter Commentary to the Geneva Conventions]; see also Elder A. David, “Historical Background of Common Article 3 of the Geneva Convention of 1949,Case Western Reserve Journal of International Law, Vol.11,1979,p.37 70 Ibid. Persons protected under common article 3 to the Geneva Convention are those: “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause. . . .” These persons are protected from “violence to life and person” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” Likewise, persons guaranteed protection under Additional Protocol II are defined as: “All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted. . . .” These protections include protection against “violence to life, health and physical or mental well-being”; “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault”; “slavery and slave trade in all their forms”; and threats to commit any of the foregoing acts.” 71 Wells L. Sarah, “Crimes against child soldiers in armed conflict situations: Application and limits of International Humanitarian Law”, Tulane Journal of International and Comparative Law,Vol.12,2004,p.294 72 Abbott Amy Beth , “Child Soldiers-The use of children as instruments of war”, Suffolk Transnational Law Revie Vol.23,2000,p.499,515 quoting Wells Ibid. p.295 73 Ibid. 74 Lippman Matthew, “The new terrorism and International Law”, Tulsa Journal of Comparative and International Law,Vol.10,2003 p.297-334 quoting “The protocols to the Geneva Conventions...the integrity of the distinction between civilians and combatants” 75 Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of international armed conflicts Art.1(2) adopted 8 June 1977 hereafter Additional Protocol I

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principles of humanity and from dictates of public conscience.”76 The Martens clause provides a consistent form of protection and regardless the adoption of a treaty regulating particular aspects of the law of war, it safeguards that those affected and not included in the codification are not constrained from seeking protection under the norms of customary humanitarian law.77 However, as useful as Common Article 3 may appear, the provision merely extents certain fundamental humanitarian protections to non-combatants. They do not provide any definitive codification of the laws of war for noninternational armed conflicts." 78 Another obstacle against the applicability of Common Article 3 is the fact that States refrain from admitting its applicability. 79 In contrast to the explicit language used in the article that its application “shall not affect the legal status of the parties to the conflict” member states still remain hesitant.80 As the Commentary on the Additional Protocol insinuates, the lack of a clear definition of an armed conflict in Common Article 3 constitutes a possible problem.81 Nevertheless, the content of Common Article 3 is considered as customary international law;82 hence, even “rebels and governments against which they fight are always bound by the duties and obligations of Common Article 3,” regardless of whether they deny its applicability.83 As Junod puts it, "from a legal point of view, the application of Article 3 is automatic as soon as a situation of armed conflict de facto exists. Ideally, there should be no possibility of a discretionary assessment of the 76 Martens clause article. The Clause was based upon and took its name from a declaration read by Professor von Martens, the Russian delegate at the Hague Peace Conferences 1899. The life and works of Martens are detailed by V. Pustogarov, "Fyodor Fyodorovich Martens (1845-1909) — A Humanist of Modern Times", International Review of the Red Cross (IRRC), No. 312, May-June 1996, pp. 300-314. 77 Martens clause article p.87 and Goodwin supra note 5 78 Prefatory note to the 1977 Geneva protocol II in “Documents on the Laws of War”, (OUP,2nd Edition ,Adam Roberts and Richard Guelff, 1989)p.448 79 Reis Chen, “Trying the Future, Avenging the Past: The Implications of Prosecuting Children for Participation in Internal Armed Conflict”, Columbia Human Rights Law Review, Vol.28,1997,p.637 80 Ibid. 81 Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), p.4448 [hereinafter Protocol II Commentary.] “Common Article 3 does not contain a definition of armed conflict. In the absence of clarity of this concept, it gave rise to a great variety of interpretations and in practice its applicability was often denied. To improve the protection of the victims on non-international armed conflicts it proved necessary not only to develop the rules, but also to find more objective criteria to determine whether they are applicable and to reduce the measure of discretion left to each government” 82 The International Court of Justice in Nicaragua v United States of America stated that the rules in common article 3 are part of customary law, “Case concerning military and paramilitary activities in and against Nicaragua”(Nicaragua v. United States of America), I.C.J. Reports 1986, para. 220. 83 See Renteln Dundes Alison, “The Child Soldier: The Challenge of Enforcing International Standards”, Whittier Law Review,Vol.21,1999, pp.191, 193,194.

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situation by the parties." 84 Essentially, one may conclude that the four Geneva Conventions do not adequately protect child soldiers, especially those in internal armed conflict.85 Common Article 3 merely refers to non-combatants, thus, the issue of child combatants is left out.86 In addition another inadequacy of the Geneva Conventions needs to be underscored. The historical context of the Geneva Conventions ought to be taken into account when it comes to the interpretation of an armed conflict. Essentially, an armed conflict was understood as an international conflict involving more than one state87. However, over the last decades internal armed conflicts have become predominant in the international sphere.88 The nature of the armed conflicts has undergone constant change. Due to modern technology methods and means of warfare have significantly advanced causing severe losses among civilians.89 Furthermore, irregular combatants take part in armed conflicts. Deplorably, children as a particularly vulnerable group suffer during an armed conflict either as civilians or as child soldiers. 90 As concerns Common Art 3, this provision, hence forms a part of the minimum set of rules applicable in internal armed conflicts.91 Article 3 was a compromise between countries favouring absolute autonomy for internal disputes and countries calling for uniform adherence to the international standards.92 The compromise virtually eliminated any remnants of the intentions of the original drafting countries to apply the article to armed conflicts.93 In short, for the protection of child soldiers the central legal issue is not solved as

84 Junod Sylvie, “Additional Protocol II: History and Scope”, American University Law Review,Vol.33,1983.p30 85 Bugnion Francois, “Les enfants-soldats, le droit international humanitaire et la Charte africaine des droits et du bien-être de l'enfant”, La Revue africaine de droit international et comparé,Tome 12, No. 2, 2000, p. 266 ...“The absence of any provision for child soldiers in the four Geneva Conventions of 1949 can be explained by the consideration spread at that time that international humanitarian law should not stand between the States and their nationals and affect the sovereignty of States” in Arzoumanian Nairi and Pizzutelli Fransesca “ Victimes et bourreaux: questions de responsabilite liees a la problematique des enfants-soldats en Afrique”,Vol.85,N°852,2003,p.832 86 Supra note 64 87 Mann Howard, “International Law and the child soldier”, International and Comparative Law Quarterly, Vol.36,1987,p36 88 “There was a growing call for the recognition of wars of national liberation and self-determination as international armed conflicts” see Mann Ibid. 89 Plattner supra note 64,p.1 90 Ibid. 91 Topa Ilona, “Prohibition of child soldiering – international legislation and prosecution of perpetrators!”,Hanse Law Review,Vol.3,No1,2007,p.112 92 Lysaght Charles, “The Scope of Protocol II and its relation to common article 3 of the Geneva Conventions of 1949 and other human rights instruments” ,American University Law Review ,Vol.33,1983,p.2 93 Ibid.

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the law neither protects them explicitly in international or internal armed conflicts. 2.5 Additional Protocol I and II to the Geneva Conventions The two Additional Protocols constitute the first legal instruments of international law to stop and prevent the participation of children in armed conflict.94 In 1977, after a long period of negotiation (1968–1977), the two Additional Protocols to the Geneva Conventions were adopted as an effort to strengthen the already established international humanitarian law standards95. Based on the Vietnam experience, the new weapons of warfare and the uprising of a new category of civilians needed protection while there was a war of self-determination.96 Thus, this explains the increasing awareness among the international community regarding the protection of children in armed conflicts and this conviction precipitated the drafting of the Additional Protocols of 1977 to the Geneva Conventions.97

2.5.1 Additional Protocol I to the Geneva Conventions The First Additional Protocol applies to the victims of international conflicts and the Second Additional Protocol addresses in particular those conflicts not defined as international in legal text of the first one. As the first international legal instrument regulating the role of children in times of an armed conflict, Art 77 (2) of the First Additional Protocol stipulates an obligation for states to take 'feasible action' to avoid that any children under fifteen take directly part in an armed conflict. 98Moreover, States must refrain from recruiting children under the age fifteen for the participation in hostilities.99 As concerns those over fifteen but under eighteen, the Additional Protocol clarifies that States ought to give clear preference for eighteen years old.100 94 Additional Protocol I and II supra note 22 and 43 see Topa supra note 58 95 See International Committee of the Red Cross “Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949” : “There was no intention of trying to rewrite the Geneva Conventions, nor even of completely revising them, which would have entailed the risk of weakening them. Consequently, since then, one has referred to "reaffirming and developing" humanitarian law.”, General Introduction para.xxx 96 Freeland Steven, “Child Soldiers and International Crimes-How should International Law be applied?”, New Zealand Journal of Public and International Law,Vol.3,2005,p.310 97 Ibid. 98 See Article 77 par.2,Additional Protocol I, supra note 56 99 Ibid. 100 Ibid.

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First, a number of implications arise while examining the legal wording and the specific language used in Article 77(2). More specifically, the word “shall” renders the provision a binding force for its addressees.101 Hence, the parties involved in a conflict are obliged to comply with the above mentioned provision irrespectively if they agree or not. 102 At that point, one needs to distinguish between international humanitarian law and international human rights law standards because while the first includes direct obligations to both State actors and non-state actors, the latter only imposes obligations on states.103 This is a very important difference and legal obligation which makes international humanitarian law stand out. As the Commentary to the Additional Protocol I and II of June 1977 underlines, the participation of children and adolescents in combat is considered as an inhumane practice, which should end.104 The fact that the age of fifteen was set as the minimum age for the recruitment or use of children in armed conflict despite the proposals of some countries to raise the age limit to eighteen years old has to be underlined critically. 105 In particular, Brazil proposed amendments to both the Additional Protocols to raise the age limit to eighteen in order to condemn the military practice of using minors for military purposes but this suggestion did not receive a warm welcome from the other countries.106 One possible explanation for this circumstance could be that the different national legislations at that time deviated in that particular respect instead of unifying all the countries to adopt the age limit of eighteen.107 Moreover, the absence of a formal definition of a “child” under international law played a decisive role in the drafting of the final text of

101 Redress, “Victims, Perpetrators or Heroes? Child Soldiers before the International Criminal Court”, September 2006, http://www.unhcr.org/refworld/country,,REDRESS,,COD,,4bf3a5e22,0.html (accessed 01 August 2011) 102 Ibid. 103 Inter-Agency Standing Committee, “ International Humanitarian Norms & Principles Guidance Materials”,2010, p.23, http://www.wpro.who.int/internet/files/eha/toolkit/web/Technical%20References/Coordination/International%20Human itarian%20Norms%20and%20Principles.pdf 104 See International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Commentaries, Part IV: Civilian Population, Section III Treatment of persons in the power of a party to the conflict Chapter II Measures in favour of Women and Children, paragraph 3183 to 3191, International Committee of the Red Cross (ICRC), 2005, pp.. 898-901 105 See Official records of the Diplomatic Conference on the reaffirmation and development of the international humanitarian law applicable in armed conflict, UN Document CDDH/III/304, 1978, at 42 “...an age limit of 18 would be unacceptable for a large number of States” 106 Ibid. at 328 107 Supra note 81, par.4556

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the Protocol. The Protocol, however, provides a compromise that parties to a conflict shall, when it comes to the recruitment give priority to those who have attained the age of eighteen instead of attempting to win over fifteen year olds for military purposes. Although paragraph 2 of Article 77 could be seen as a strong initial step towards prohibiting of the recruitment of children as soldiers its deficiencies cannot be overlooked. Although the proposal by the ICRC encapsulated the obligation of states to undertake 'all necessary measures' the contracting parties could not agree on that; they did not seem ready to undertake “unconditional obligations”108. As a result, in the final version of the Protocol the phrase “take all feasible measures” was chosen instead, obligating states to undertake a low level commitment109. Logically one has to ask now, what does feasible measures actually mean or in other words, how should this notion be interpreted? The answer lies in the Commentary of the Protocols and in the paragraph about Article 76 par.3 in particular, concerning the protection of women under the Protocol I110; the phrase “feasible” should be understood as meaning “capable of being done, accomplished or carried out, possible or practicable”111. It is very important to underline that the English speaking countries insisted on the use of the term “feasible” although the relevant texts in French and Spanish encapsulated a different translation112. On a more critical note, it may be argued that the wording 'feasible measures' weakens the obligation of the states significantly as a state may claim that due to the particular nature of an armed conflict the recruitment of children under fifteen was infeasible or impractical.113. Another important area of concern relating to Article 77 is the prohibition of what only-seems to be- a compulsory recruitment and not the voluntary enrolment. The fact that the recruitment of children can include both compulsory recruitment and voluntary 108 See supra note 81 par.3184 109 Mann supra note 87, p.47 110 Supra note 81, par.3170-3171 3170 The terms used require some explanation: "to the maximum extent feasible" corresponds to the French "dans toute la mesure du possible", and in Spanish to "en toda la medida de lo posible". Article 58 (Precautions against the effects of attacks) ' uses the same wording in the English text, though the corresponding french and spanish texts are different: respectively, "dans toute la mesure de ce qui est pratiquement possible" and "hasta donde sea factible". 111 Ibid. par.3170 112 See the French and Spanish version of the Commentaries 113 Renteln supra note 50 pp.191,203-204

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enrolment limit the scope of the protection of the Additional Protocol I. By not mentioning explicitly what happens in cases of voluntary enrolment the Protocol undermines its main purpose which is the total prohibition of the use and recruitment of children as soldiers. In the Commentary of the Additional Protocols the Rapporteur of Committee III explains this misconception. He clarifies that it is unrealistic to prohibit voluntary participation of children in armed conflict. He gives the example of the Middle East conflict in the Palestinian territories and that the fact that children participate voluntarily in the armed conflict could be an excuse for not prohibiting the voluntary enrolment114. Room for interpretative leeway is also left with the emphasis on the direct participation of children under fifteen in armed conflicts.115 “Direct” participation includes attempting to kill, injure or capture the enemy or to provide logistic support116. Unfortunately, it is a more common policy for the non-state actors to recruit children indirectly. Children are often used as spies, cooks or guards, but still they are regarded as child soldiers117. Hence, by prohibiting only direct participation of the children in armed conflict, the drafters limit the scope of Article 77 and Additional Protocol I in general118. Furthermore, it is strange why the term “direct” participation was adopted in the first place although the ICRC did not include it in the draft legal text which was proposed to the country delegations. Deducing e-contrario from the wording the text insinuates that children could indirectly take part in armed conflicts, for example through transmitting military knowledge and information or transporting weapons119.. Even if the purpose of the drafters was to avoid the participation of children in armed conflicts in general, they failed to do so by forbidding only the direct participation in the hostilities and leaving the problematic area of the indirect participation unregulated. 114 Commentary, supra note 71,par. 3184. Voluntary enrolment was not explicitly mentioned in Additional Protocol I because States noted that “sometimes, especially in occupied territories and wars of national liberation, it would not be realistic to totally prohibit voluntary participation of children under fifteen” 115 See Additional Protocol I Commentary supra note 73,p.3187 see also Dutli M.T, “Captured Child Combatants”, International Review of the rEd Cross, Sept-Oct 1990,pp.421 434,Actes de la Conférence diplomatique sur la réaffirmation et le développement du Droit international humanitaire applicable dans les Conflits Armés,Geneva,Vol.XV,1974-1977.p.546 116 Mann supra note 87, p.49 117 Wessells, M., “Child soldiers: From violence to protection”. (Cambridge, MA:Harvard University Press.),2006 quoting Martha Cottam, “Surviving War: The Impact of Committing, Experiencing and Living With Violence”, Washington State University,p.7 available in http://libarts.wsu.edu/isic/research/pdf/gangs-child-soldiers.pdf 118 Maher C. Colleen,“The protection of children in armed conflict:a human rights analysis of the protection afforded to children in warfare”, Boston College Third World Law Journal, Vol.9, Issue 2,1989,p.311 119 Cohn & Goodwin-Gill, supra note 8,p.61-62 see also Commentary supra note 84, par.3187

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Last but not least, the mere fact that the applicability of international humanitarian law depends on the choice of the State to ratify the Geneva Conventions or the Additional Protocols, weakens even more the efficiency of these standards120. 2.5.2 Additional Protocol II to the Geneva Conventions

The Additional Protocol II delineates significant guarantees and protection under international humanitarian law for victims of non-international armed conflicts.121 As such, the Additional Protocol II deserves to be analysed thoroughly in respect to its degree of protection afforded to child soldiers. Moreover, the contrast to the Additional Protocol I ought to be underscored. Art 4 par 3 (c) repeats the general obligation of Common Article 3, yet it clearly widens the scope of protection by dealing with the issue of child soldiers participating in non-international armed conflicts. 122 Similarly to Additional Protocol I this provision holds that children under the age of fifteen shall neither be recruited in the armed forces nor take part in hostilities. 123 Hence, the minimum age limit remains the same, but the wording differs in two important points. First, Art 4 par 3 (c) does not reiterate the ambiguous notions of “feasible measures“ or “direct participation“. 124As shown above the interpretation of these terms is to a large degree contentious, thus a state‘s interpretation may result in a lacking protection for children. In short, the obligation of Additional Protocol II is clear-cut and straight forward: children shall not be involved in hostilities regardless whether they participate directly or indirectly.125 Second, Art 4 par 3 (d) needs to be read in conjunction with par 3 (c) as it stipulates

120 Ibid. p.59 121 Protocol II, supra note 12, at art. 1(1). This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. 122 Ibid. Article 4 par.3 Additional Protocol II 123 Ibid. par.3(c) 124 Toppa, supra note 76,p.108 125 Ibid.

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that even if children under fifteen engage in hostilities, they have to be afforded protection under Art 4 of Protocol II albeit par 3 (c). 126Thus, it is safe to say that the wording of Additional Protocol II entails stricter obligations for the member states.127 Critically it has to be added, however, that the Additional Protocol II aims at achieving a prohibition for the participation of children in armed conflicts. This ban rarely reflects the reality as those children who join the armed forces although they are under the age limit, are regarded as combatants, hence they lose the protection of international humanitarian law for civilians.128 In practice the high threshold set forth by the Additional Protocol II constitutes a significant restriction on its application. 129As a result children in internal armed conflicts do not benefit from the protection.130 In addition the number of ratifications is rather low and states show a lacking interest in the Additional Protocol II. 131 Nevertheless, as mentioned above, States will only be bound by Additional Protocol II if they have ratified the treaty or have made a valid unilateral declaration of intent to respect the rules of international humanitarian law. Other armed groups, however, will be bound by the rules of customary international law relating to the conduct of hostilities and treatment of vulnerable groups, such as children. Seemingly, the Second Protocol “manifests the desires to modify International Humanitarian Law to make it more applicable to domestic conflicts”132. Overall, Additional Protocol II offers greater protection than Additional Protocol I especially when most of the conflicts-on the African continent in particular are internal. Thus, under international humanitarian law non-state actors and States, at least in theory, have to adhere to stricter obligations when engaging in non-international armed conflicts due to the legal standards provided in Additional Protocol II.

126 Supra note 122 par. d 127 Supra note 124,p.110 128 Wells, supra note 36, p.297 129 Goodwin supra note 5,p.62 130 Ibid, 131 Ibid, 132 Forsythe, “Legal management of internal war: The 1977 Protocol on Non-International Armed Conflict”, American Journal of International Law, Vol.72, 1978, p.272

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CHAPTER 3 International Human Rights Law – One Step Forward 3.1 The Convention on the Rights of the Child (CRC) 3.1.1. Art 38 CRC Undeniably one of major benefits of the CRC is the compilation of social, economic, cultural rights as well as civil and political rights especially tailored for children. Although in essence these rights are already encapsulated in the variety of instruments of international human rights law, the CRC is the main international reference point for the rights of children133. The fact that the CRC is widely accepted and ratified among the international community with an almost universal acceptance may be regarded as an additional bonus for the protection of children in general, and more specifically, for children in armed conflicts134. The use of child soldiers is mentioned in Art 38 CRC which stipulates an obligation for the contracting parties to ensure respect for the rules of international humanitarian law applicable to children135. Article 38 is a very controversial article, subject to a lot of critics. The reference to rules of international humanitarian law may be interpreted widely which, thus, includes international customary law as well. Additionally, what needs to be born in mind is that international human rights law sets forth obligations for state parties only, as it can be read in Art 38 CRC136. In reiteration of the wording of Art 77 of the Additional Protocol I, Art 38 par 2 CRC holds that feasible measures ought to be undertaken to prevent children under fifteen from taking part in hostilities137. Furthermore, the issue of recruitment is dealt with as well, as the Art 38 demands that state parties abstain from recruiting children under fifteen years old138. Regarding children older than fifteen, member states, however, ought to give

133 UNICEF, The Convention on the Rights of the Child, Guiding Principles: general requirement for all rights UNICEF, http://www.unicef.org/crc/files/Guiding_Principles.pdf. 134 Only United States of America and Somalia has not ratified the CRC ,Hackenberg, supra note 2,p.429 135 CRC supra note 49, Art.38 (1), this is an example of a convergence between international humanitarian law and international human rights law. “This convergence is due to the distressing proliferation of violent internal armed conflicts in many parts of the world. . . . .” 136 Ibid. 137 Ibid. Art.38 par.2 138 Ibid.

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preference to the recruitment of over eighteen years old139. Lastly, Art 38 CRC also mentions the need to provide protection and care for children being affected by an armed conflict as victims or a specific vulnerable group140. Art 38 CRC also reveals certain inadequacies which deserve closer attention: First, the minimum age of fifteen which stems from the legal instruments of international humanitarian law, differs from general age of eighteen set forth in Art 1 CRC141. This provision defines a child as everyone under eighteen, which is restricted by Art 38 CRC‘s ban on recruiting children under fifteen142. Second, the repetition of Art 77 Additional Protocol I does not provide a substantively new approach in evolving the level of protection. On the one hand it would have been more conducive to reiterate the stronger obligation of Additional Protocol II for the protection of children in internal armed conflicts. Yet, on the other hand, the reiteration of the provisions of international humanitarian law prevents any serious deviations from the established set of norms in the Geneva Conventions143. Last but not least, the possibility given to the States to “pick and choose” the provisions that they will actually be bound by then the whole point of the protection of children under International Human Rights Law is weakened144.

139 Ibid. 140 Art.38 Ibid. 141 See Article 1 of the Convention on the Rights of the child 142 Ibid. 143 Protocol II, supra note 145, at art. 4(3)(c): “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” 144 See Hackenberg note 2,p.429

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3.2 Optional Protocol to the Convention on the Rights of the Child The principles in the CRC can only be a fundamental basis to address the most striking violations of children‘s rights. With the adoption of the Optional Protocol on the Rights of the Child on the Involvement of Children in Armed Conflict the international community reflects the conviction that the issue of child soldiers which Art 38 CRC addressed deserves further attention145. It is characterised as a “leap forward in international law to protect children from harmful effects of recruitment and use in hostilities.”146. Although this instrument is a very important development, it is a step and not the end of the road towards the ultimate challenge: stopping the use of children as soldiers in armed conflicts.147 It was criticised to be the product of a dialogue between developed states, western-based NGOs and the United Nations' bureaucracy; these actors all prefer standardsetting to tackling the root causes of the use of child soldiers148. Due to limited space this part only examines substantive provisions regulating the participation and recruitment of children in armed conflict whereas other possible research areas such as monitoring, implementation and enforcement are omitted from this analysis 3.2.1 Examining the Optional Protocol - Greater Protection

Article 1149: “State Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of eighteen do not take a direct part in hostilities150”

Article 1 is probably one of the most important articles included in the Optional Protocol. It explicitly rises the minimum age of recruitment of children in armed conflicts

145 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, GA Res. 54/263, Annex I (May 25, 2000), S. TREATY DOC. NO. 106-37 (2000) hereinafter Optional Protocol 146 Guide to the Optional Protocol on the involvement of children in armed conflict, Coalition to stop the use of child soldiers, http://www.unicef.org/publications/files/option_protocol_conflict.pdf 147 Sarah Abraham, Child Soldiers and the Capacity of the Optional Protocol to Protect Children in Armed Conflict, American Bar Association, 2003 148 Happold Matthew, “The Optional Protocol to the Convention on the rights of the child on the involvement of children in armed conflict”, Yearbook of International Humanitarian Law, Vol.3 ,2000 ,p. 226 149 Supra note 105, Article 1 150 Supra note 103, Art.1

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from fifteen years to eighteen years151. Moreover, the wording used is straight forward, and, as a legal standard Art 1 is non-derogable and binding in an absolute way for states that signed and ratified the Protocol. First, by raising the age limit, the provision offers greater protection to the children between the age of fifteen and eighteen years old152. Before, this age group of children lost the protection granted to them as children, and, consequently as civilians by taking part in the hostilities. Thus, they could not be considered combatants within the meaning of Article 43 of the Additional Protocol I and the Geneva Convention Relative to the Protection of Civilians Persons in Time of War153. But, with Article 1 in place children between fifteen to eighteen years old are protected and keep their status as civilians in international armed conflicts. In the context of non-international conflicts, Article 4 par.3(d) stipulates that children under fifteen years old who directly participated in hostilities are protected,154 despite the fact that in Additional Protocol II, Article 4 par.3(c) it is prohibited 155. Hence, raising the limit to eighteen years in the Optional Protocol offers greater degree of protection although it does not explicitly mention the category between fifteen and eighteen year olds156. In practice, this is a very important development for two major reasons: on the one hand, it renders the attempt of non-state actors more difficult to claim that the children working as soldiers are older than they are in reality. In fact this is a practice that is very common especially where there are no birth certificates to prove a child's age. 157 On the other hand, it reaffirms what a number of reports underline, namely that children under the age of eighteen are neither physically nor emotionally mature enough to cope with the cruelty in times of war158. One needs to bear in mind that Article 1 is not without weaknesses. It uses the same ambiguous wording as Additional Protocol; thus, the Optional Protocol fails to impose

151 Ibid. 152 Optional Protocol to the Convention on the Rights of the Child Concerning Involvement of Children in Armed Conflicts: Position of the International Review of the Red Cross, International Review of the Red Cross, no. 322, 107125 ,1998, hereinafter International Review of the Red Cross 153 Supra note 88, Art.43 and note 19 154 Supra note 103, Art.4 par.3(d) 155 Supra note 88, Art.4 par.3(c) 156 Supra note 109 157 Ibid. 158 Ibid.

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stricter obligations on states. By encapsulating the obligation for States to undertake only “feasible measures” and not all the necessary measures, it grants states a lot of interpretative and argumentative leeway as to what is feasible159. The same argumentation that this paper highlighted above as concerns the legal wording of the Additional Protocol applies for the wording of Article 1160. With regards to the provision about taking “direct” part in the hostilities, Article 1 fails to go one step further than the Additional Protocol II which offers greater protection by prohibiting explicitly the direct and indirect partaking in the hostilities161. Last but not least, there is a contradiction in relation to the age limit that weakens the level of protection granted by the Optional Protocol. In its Preamble there is a definition of who is a child which coincides with the exact same definition included in the CRC162. The CRC itself though, in the controversial Art 38 imposes restrictions on the age limit, and thus rendering the protection granted by the Protocol weaker163. 3.2.2 Recruitment by Armed Forces Article 2: “State Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces164”

This provision clearly marks a progress step in the field of international law regulating the use of child soldiers. It contains an obvious obligation not to compulsorily recruit children under eighteen years old. While the CRC165 and the Additional Protocol I166 stipulate that state parties “shall endeavour” only to give priority to those who are older, Article 2 of the Optional Protocol goes a step further by imposing the obligation on States to ensure that under the age of eighteen no one is compulsorily recruited.167

159 Supra note 77 and 80 Additional Protocol I 160 Ibid. 161 See Additional Protocol II supra note 125 162 Supra note 103 preamble 163 Supra note Art.38 164 Supra note 103, Art.2 165 Supra note CRC 166 See Additional Protocol I,Art.77 par.2 supra note 81 167 Helle D., “Optional Protocol on the involvement of children in armed conflict to the convention on the rights of the child”, International Review of the Red Cross, No.839,2000, pp.797-809

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Article 3 par.1,2,3,4,5 : “States Parties shall raise in years the minimum age for the voluntary recruitment of persons into their national armed forces from that set out in article 38, paragraph 3, of the Convention on the Rights of the Child....in keeping with articles 28 and 29 of the Convention on the Rights of the Child.168” The adoption of Article 3 was a significant moment in the drafting of the Protocol169 It raises the age limit for voluntary recruitment by the armed forces above the age of fifteen years while prohibiting any recruitment of children by non-state groups below the age of eighteen170. States have the possibility to accept volunteers from the age of sixteen onwards but only if they deposit a binding declaration at the time of ratification or accession, in which states set forth their minimum voluntary recruitment age and outline certain safeguards for such a recruitment.171 While there were delegations during the drafting process in favour of a 'straight eighteen position' and a total prohibition of the recruitment of child soldiers, a consensus could not be found172. The wording of Article 3, according to Happold, is a “clear sign of compromise”173 . One of the issues rising from Art.3 is the difficulty in practice to define when recruitment is voluntary. Children are often forced to become volunteers resulting from lack of food, poverty, death of their families, revenge or the need to protect their countries174. Another obstacle is the aforementioned problem with the birth certificates. Especially in some African countries when a fifteen year old wants to join the army and at the same time the war affected country raises the age limit to sixteen, it may very easily occur that children who can pass as sixteen years old become part of the army.175 An argument that is presented as a safeguard to decide whether or not a recruitment of a child is voluntary, is the consent given by the parents or the guardians. The information given for the military duties of the child is a prerequisite before a child decides to join 168 Supra note 103, Art.3 169 Brett Rachel, “Child soldiers: law, politics and practice”, the international journal of children's rights,Vol.4,1996, p.125 170 Supra note 126 Art.3 171 Supra note 123,Art.3 par.1,2 172 Supra note 125 173 Supra note Happold 106, p.238 174 Supra guide to the Optional Protocol note 105, p.15 175 Ibid.

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voluntarily176. But theory deviates from reality. These problems and the fact that the above mentioned rule do not apply to schools that are under the command of armed forces renders this provision even weaker177. The existence of an independent mechanism that would indicate when the recruitment is genuinely voluntary could help ensuring compliance. 3.2.3 Recruitment by Non-State Armed Groups Article 4 (1). Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years. (2). States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices. (3). The application of the present article shall not affect the legal status of any party to an armed conflict.

What may be deduced from the existence of Art 4 is the states' willingness to impose obligations on non-state actors by absolutely prohibiting the recruitment of children under eighteen in either a direct or an indirect way, and, furthermore, to address at the same time the conflicts of a non-international character178. This is clearly a change that must be seen in contrast to the previously discussed legal instruments like the Additional Protocols and the CRC.179. Although it is the first time that non-state actors are addressed directly, still the obligations imposed are not direct yet moral ones180. This is what the language of Art.4 contests181 because in the drafting process States argued that the behaviour of the non-state actors is regulated under domestic law whereas States behaviour is bound by the human rights law182. But in reality, is it that easy for States to punish non-state actors under domestic law especially in internal armed conflicts when the government is not in full control of the territory? The answer in that question in the vast majority of the cases is

176 Supra note 130 ,Art.3 par.3 177 Supra note 133 178 Supra note Helle 126, p.236 179 Supra note Additional Protocols and CRC 180 The ICRC supported including the issue of non-State entities in the Optional Protocol, given that the involvement of children in non-international armed conflicts is equally as deadly and traumatizing for children in international conflicts 181 The use of “should not” instead of “shall not” 182 Helle, supra note 175

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negative. The fact that the obligations imposed on the non-state groups are wider than the ones imposed on states and that these obligations are of a moral nature makes the protection against the non-state actors’ recruitment weak183. Of course it is a very important step towards the end of the impunity of non-state actors but after all the responsibility to do that is again in the hands of the States184. As sub-paragraph 2 underlines States need to undertake all feasible measures to prevent non state groups from recruiting children in contrast to Art.4 and have the ability to adopt the legal measures needed185.

183 184 185

Supra note 137 Supra note guide to the protocol See Optional Protocol Art.4 sub par.2

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CONCLUSION As this dissertation indicated there is a variety of legal instruments in place for the protection of child soldiers on an international level. The international community is aware of the utmost seriousness of the issue. Children’s being used as soldiers in an armed conflict or children participating in any other manner in the hostilities, according to NGO reports, takes place predominantly in conflicts on the African continent. As a very vulnerable group children in such a time of a humanitarian crisis deserve legal protection. Over the last few decades there has been an increase in legal standards for the protection of child soldiers; thus, one may observe a variety of hard law and soft law documents in place. For research purposes, international humanitarian law and international human rights law standards were chosen as they offer an interesting insight in the subject and allow to draw conclusions as concerns the elaboration and development of provisions that potentially serve to protect children from being involved in an armed conflict. What has become evident is that international humanitarian law standards were the first to be created and developed by countries in order to tackle the issue of child soldiers. These norms are still in place today and through the Additional Protocol I and II to the Geneva Conventions the standard of protection could be raised. It is recognised that children not only need protection as civilians but also when states or non-state actors attempt to recruit them for military purposes. Hence, the obligation on states to prohibit the recruitment of children under fifteen marks one step. The critical analysis has revealed that despite these standards in place, the international humanitarian law approach to protect the use of child soldiers in an armed conflict entails a lot a gaps and inadequacies. Ultimately, this leads to a lot of interpretative leeway for the state parties which then again weakens the purpose of the protection. Furthermore, the drafting process of the international humanitarian law documents has also shown that states only tend to agree to the lowest common denominator when it comes to the degree of protection and it is of utmost difficulty to achieve any form of consensus to a more progressive standard. From the analysis of the international human rights law regime relating to the protection of child soldiers it may be deduced that international human rights law addresses only states and imposes obligations on them if they agree to be bound to the treaty. Moreover, the international human rights law has significantly evolved when it comes to Page | 36

protecting child soldiers over the last decades. The best example is clearly, as it has been argued, the Optional Protocol to the Convention on the Rights of a Child on the Involvement of Children in Armed Conflict. It constitutes a progressive and contemporary legal instrument which improved the degree of protection: Any form of compulsory recruitment under the age of eighteen is strictly prohibited as well as the minimum age for voluntary recruitment is set forth by the age of fifteen if done by armed forces of state. More importantly, the age limit of eighteen was introduced for all forms of recruitment by nonstate armed groups. When making a careful assessment one may arrive at the conclusion that the Optional Protocol offers an improved form of protection for child soldiers. Hence, one could regard the Optional Protocol as a conducive step in further tackling the issue of child soldiers and the focus now ought to be placed on fostering its ratification and its implementation.

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Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949 Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949. Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, (adopted 17 June 1999)ILO Declaration on the Rights of the Child, proclaimed by General Assembly resolution 1386(XIV) of 20 November 1959 Geneva Declaration of the Rights of the Child,adopted 26 September, 1924, League of Nations Official records of the Diplomatic Conference on the reaffirmation and development of the international humanitarian law applicable in armed conflict,UN Document CDDH/III/304, 1978 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, GA Res. 54/263, Annex I (May 25, 2000), S. TREATY DOC. NO. 106-37 (2000) Paris Principles, Principles and Guidelines on children associated with Armed Forces or Armed Groups, February 2007 Rome Statute of the ICC (adopted 17 July 1998) (entered into force in 2002) United Nations, Report of the Expert of the Secretary-General: Impact of Armed Conflict on Children, delivered to the General Assembly, U.N. Doc. A/51/306 (Aug. 26, 1996 (prepared by Graca Machel) UN Convention on the Rights of the Child (adopted 20 November 1989) (entered into force September 1990). United Nations, Report of the UN Secretary General on Children and Armed Conflict, UN Doc (A/62/609-S/2007/757) UN Resolutions UN S/RES/1998/2011 on Children and Armed Conflict Page | 42

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