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This book provides a critical exposition of the international law concerning child soldiers. It starts by looking at the situation of child soldiers in the world today, examining why children are recruited into armed forces and groups; why they volunteer for military service; and, once recruited, what treatment they receive. The book explores how perceptions of childhood and children's rights have changed, and how this has affected the ways in which child soldiers have been treated. It describes the activities of the United Nations with regard to the child soldier phenomenon. The book examines the legal regulation of the recruitment and use of children in hostilities. It shows that although international law comprehensively regulates the recruitment and use of child soldiers, owing to the plethora of treaties on the subject, states' obligations continue to differ and children can still lawfully be recruited and used to participate in armed conflict. The book discusses how, once recruited into armed forces and groups, international law treats child soldiers. It considers the status of child soldiers as combatants and as persons in the power of an adverse party in both international and internal armed conflicts, and states' obligations with regard the disarmament, demobilisation and reintegration of child soldiers. An unusual feature of how child soldiers are viewed is that they are often seen as both victims of human rights abuses and as human rights violators. Finally, the book examines the extent to which the recruitment and use of child soldiers is an international crime.

Introduction
Matthew Happold

This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. The book provides a critical exposition of the international law concerning child soldiers. It starts by looking at the situation of child soldiers in the world today, examining why children are recruited into armed forces and groups; why they volunteer for military service; and, once recruited, what treatment they receive. The book then discusses how perceptions of childhood and children's rights have changed, and how this has affected the ways in which child soldiers have been treated. Next, it describes the activities of the United Nations with regard to the child soldier phenomenon. The book examines the legal regulation of the recruitment and use of children in hostilities. Finally, it provides a brief conclusion, which is intended to reprise and analyse the various themes appearing throughout the previous chapters.

in Child soldiers in international law
Matthew Happold

Precise statistics are impossible to come by, but more than 300,000 children are believed to be serving as soldiers in conflicts across the world today. Child soldiers have served in conflicts in Africa, Asia and South and Central America. If the statistics are accurate, the recruitment of children is growing. These statistics conceal considerable differences in the experiences of child soldiers, differences that are concealed by the stereotyped view of the child soldier as a pre-adolescent African boy toting an AK-47. Unable to conscript, as conscription is a governmental prerogative, insurgent groups frequently resort to forced recruitment to alleviate manpower shortages. There is a tendency to categorise children's motives for volunteering as permissible or impermissible depending on whether the observer agrees with them or not. International concern has concentrated on the recruitment and use of child soldiers in times of war. Yet many children serve in armed forces in peacetime.

in Child soldiers in international law
Changing perceptions
Matthew Happold

Perceptions of childhood vary across time and space. One criticism that can be made about viewing the issue through a children's rights prism, however, is that it obscures the fact that children and adults frequently face the same pressures and act for the same reasons. Appreciating that conceptions of childhood have differed across time and space helps us understand why child soldiers continue to be recruited and how child soldiers themselves might view their experiences. The idea that children have rights, and that those rights operate to oblige their parents and other adults to do or refrain from doing certain things to them, is new. Nevertheless, it is argued that it is an idea whose time has come. With regard to younger children, the argument that their development right not to be recruited trumps their autonomy right to make their own decisions seems much simpler.

in Child soldiers in international law
Matthew Happold

Since 1998, when the issue of war-affected children was placed on the agenda of the Security Council, the progressive engagement of the Council has yielded significant gains for children. The United Nations (UN) has tended to consider the issue of child soldiers as a part of the broader issue of war-affected children. Resolution 48/157 marked the first time that the General Assembly had considered the issue of children affected by armed conflict in any specific way. Resolution 48/157 set out a plan of action and proved to be the beginning of a continuing commitment by the political organs of the UN to the issue of children's involvement in armed conflict. The General Assembly recommended that the Secretary-General appoint a special representative on the impact of armed conflict on children, and set out the Special Representative's mandate. From the late 1990s, Security Council resolutions began to make reference to conflict-affected children.

in Child soldiers in international law
International humanitarian law
Matthew Happold

Although children have always participated in armed conflicts, international law has only recently attempted to regulate their participation. Indeed, although the four Geneva Conventions of 1949 contain a number of provisions dealing with children as civilians, the first treaties including provisions about children's recruitment and use in hostilities were the two Additional Protocols of 1977 (the APs). This chapter examines those provisions. The provisions dealing with the participation of children in armed conflict in AP I appear in Section III, on the treatment of persons in the power of a party to the conflict. AP II departed further from the traditional norms of international humanitarian law than did AP I in that it is concerned with the regulation of non-international armed conflicts. The two APs marked the beginning of the legal regulation of children's participation in hostilities.

in Child soldiers in international law
International human rights law
Matthew Happold

Following the conclusion of the two APs, the locus of the development of the law relating to the recruitment and use of children in hostilities moved from the arena of international humanitarian law to that of international human rights law. An article regulating the participation of children in hostilities appears in the 1989 Convention on the Rights of the Child (CRC). However, following dissatisfaction with the provisions contained in the CRC, in 2000 an Optional Protocol (OP) to the CRC on the Involvement of Children in Armed Conflict was adopted to cure their defects. Difficulties in the negotiation of the OP, however, meant provisions on child recruitment were also included in a 1999 ILO treaty, ILO Convention 182 on the Worst Forms of Child Labour. The African Charter on the Rights and Welfare of the Child is the only regional human rights treaty specifically concerned with children's rights.

in Child soldiers in international law
Customary international law and non-state actors
Matthew Happold

General customary international law applies to all states, so any such rules would constitute a minimum standard of behaviour below which states could not fall without being in breach of their international obligations regardless of which treaties they were party. In addition, many of the recruiters of child soldiers are not state governments but non-state groups. Since 1989, not only has there been a number of new treaties covering children's recruitment and use in hostilities, but the issue has been dealt with extensively by the political organs of the UN. In Prosecutor v. Samuel Hinga Norman, the Appeals Chamber of the Special Court for Sierra Leone, while addressing the issue of at what time child recruitment became a war crime, also considered the customary status of the rule prohibiting the recruitment and use of children under 15 to participate actively in hostilities.

in Child soldiers in international law
Matthew Happold

The provisions governing the treatment of children in the power of an adverse party in an international armed conflict are extensive. Similar, if more rudimentary, provisions apply to children captured in internal armed conflicts. Child soldiers, particularly those who have been illegally recruited, would seem to fall into the category of victims of neglect, exploitation, abuse, cruel, inhuman or degrading treatment and/or armed conflict. The Machel report pointed out that as of the date of its compilation no peace agreement had formally recognised the existence of child combatants. The Government shall accord particular attention to the issue of child soldiers. It shall, accordingly, mobilize resources, both within the country and from the International Community, and especially through the Office of the UN Special Representative for Children in Armed Conflict, UNICEF and other agencies, to address the special needs of these children in the existing disarmament, demobilization and reintegration processes.

in Child soldiers in international law
Matthew Happold

War crimes are violations of the laws and customs of war incurring individual criminal responsibility. Although the prohibition of the recruitment of children under 15 was first promulgated as a rule of international humanitarian law, it might be said that it has since migrated to become a part of international human rights law. The prohibition on the recruitment and use of child soldiers was originally linked to situations of armed conflict. The prohibition of the recruitment of children can be seen as straddling both international human rights and international humanitarian law. However, in one respect in particular, it sits firmly on the international humanitarian law side of the fence. International human rights law binds only states. However, there now exists a ruling of an international tribunal on the point, an interlocutory decision of the Appeals Chamber of the Special Court for Sierra Leone in Prosecutor v. Samuel Hinga Norman.

in Child soldiers in international law