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.
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.
This chapter considers the consequences of children's mental and moral immaturity for their criminal responsibility for their actions, and the availability of a defence of duress in respect of child soldiers' responsibility for atrocities, given that their participation in hostilities is frequently coerced. It shows that international law provides only vague guidelines with regard to the minimum age of criminal responsibility and only permits duress as a defence to international crimes in very limited circumstances. The chapter looks at the scope of the defence of intoxication, although it will be seen quickly that this defence raises fewer issues, as it applies to children in much the same manner as it does to adults. In his report on the establishment of a Special Court, the UN Secretary-General acknowledged the difficulty of prosecuting child soldiers for war crimes and crimes against humanity, given their dual status as both victims and perpetrators.
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.
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.
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.
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.
Children often wish to avoid recruitment into armed forces and groups, and child soldiers often face harsh treatment from their commanders and comrades. Recruiting children under the age of 15 years is viewed as a sufficiently serious breach of international law so as to give rise to individual criminal responsibility. In recent years, there has been a tendency to subject asylum seekers to closer scrutiny to determine whether, by reason of their previous conduct, they are undeserving of refugee status. It has been argued that children should never be subject to exclusion from refugee status under Article 1F. Such a view, however, is contrary to both the wording and the drafting history of the provision. In practice, children have been excluded from refugee status as a result of the application of Article 1F.
An Optional Protocol has been adopted and most states have renounced the forced recruitment of children. Indeed, the prohibition of the compulsory and forcible recruitment of children may be becoming a rule of customary international law. There is a substantial body of rules governing the recruitment and treatment of child soldiers, and they have been the subject of considerable augementation and development in recent years. Recent years have undoubtedly seen developments in how international law governs the activities of such groups, culminating in the prohibition of all recruitment of children by them set out in the OP. However, the growth in legal regulation has not been accompanied by any increase in compliance. Not only does international law regulate when and under what conditions children can be recruited and used in hostilities, but it has also begun to address the consequences of failures to comply with these rules.
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.