INTRODUCTION

Until the adoption of United Nations Convention on the Rights of the Child (UNCRC) in 1989, there was no universal definition of the 'child'. Article 1 of the Convention subsequently provides that, "[f]or the purposes of the present Convention a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier."

The Article uses the age 18 to differentiate between children and adults on the basis of the voting age reported in most of the countries of the world. It must be acknowledged that considerations of the child's maturity and independence have evolved over the centuries and have differed widely across cultures and beliefs. Given the variety of religions and cultures, the use of another criterion, such as the legal age for marriage, would have made the consensus on Article 1 difficult.

It is therefore considered that the child has to be protected until (s)he reaches the age of 18. This situation is challenged by the existence of an estimated 200 000 child soldiers world-wide, engaged in 33 current conflicts, and who are often younger than fifteen years old. It is a phenomenon which affects both genders.

The increased recruitment of children into the armed forces, whether it is the result of voluntary or forced recruitment, raises a great number of human rights issues. Children are generally mistreated by the armed forces which recruited them. In extreme cases, they have been forced to take part in the torture and execution of their own relatives.1 Their position also makes them more vulnerable to the effects of the armed conflict. Post-conflict reconstruction will be complicated by this mass of uneducated children and young adults.

This article will assess international law on the issue of child soldiers. It will also give an estimate of the difficulties that this kind of participation can cause, and whether it can truly be prevented in the African context.

INTERNATIONAL LAW

To ensure the protection of the child and limit his/her participation in armed conflict, any legal norm has to address the following: age limit; recruitment (forced or compulsory) and enrolment (voluntary); the type of participation allowed or prohibited (direct – combat – or indirect – such as transmission of information, transport of arms provision of supplies);2 and define the obligations of the state. This and the following sections look at the various international instruments to assess the advantages and drawbacks of each instrument.

In the 1949 Geneva Conventions,3 children were protected as members of the civilian population and therefore, by definition, as non-participants in the armed conflict. Although child participation had taken place in the past, such occurrences were exceptional. Specific provisions were drawn up to ensure special treatment for children, with regards to relief material, distribution of food, medical care, as well as to family reunification. There are seventeen provisions in the Fourth Geneva Convention of 1949 on the protection of the civilian population which pertain to the child. The provisions themselves vary as to which group of children it refers to, as there are four different age groups identified. The ages are seven, twelve, fifteen and eighteen. The eighteen age limit refers only to the death penalty provision of the Fourth Geneva Convention.

At the 1974-1977 Diplomatic Conference on the Development of Humanitarian Law which led to the adoption of the two Protocols additional to the 1949 Geneva Conventions on international humanitarian law, the growing participation of children in international or non-international armed conflicts around the world, was acknowledged. The contribution of the Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts4 and to the protection of children in international armed conflicts as defined by that Protocol was to address the situation of child soldiers.

A specific definition of the child was still lacking, but there was consensus that children attained a certain maturity at the age of 15. Special protection under the Fourth Geneva Convention ends at that age. The age 15 was maintained throughout Article 77, prohibiting child participation below that age. It appears that certain delegations at the conference wanted the age to be raised to 18, as Article 77(2)(c) provides that, "[t]he Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among persons who have attained the age of eighteen years, the Parties shall endeavour to give priority to those who are the oldest." The Article does not prohibit indirect participation either. Both of these points were rejected by states "as unrealistic at the time, having regard to the nature of wars of national liberation."5 It would have been impossible to prevent persons from participating in the struggle for liberation at the time.

Cohn and Goodwin are of the opinion that "[t]he text reflects the wish of governments to avoid entering into absolute obligations with regard to the voluntary participation of children in hostilities."6 It can also be perceived as simply placing limits on the authorities regarding the recruitment process.7 It is unclear whether recruitment, as used in Article 77, refers to forced recruitment, voluntary enrolment or both. It covers only direct participation.

To a certain extent, some progress has been achieved with Protocol II which pertains to non-international armed conflicts. Article 4(3)(c) provides that "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." There is some evidence to suggest that the states participating in the Diplomatic conference indeed intended to impose a stricter standard on parties involved in an internal armed conflict.9

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD (UNCRC)

When the UN embarked on the drafting of a convention that would solely address the rights of the child, the inclusion of a provision addressing the situation of armed conflicts was considered essential. Some states and non-government agencies hoped it would be the perfect opportunity to improve the provisions of International Humanitarian Law (IHL)9 on the question of age, type of recruitment, and type of participation. The end result was, however, disappointing.10

Although the UNCRC defines the child as a person below the age of 18, Article 38 maintains the 15 years age criterion for child soldiers.

Article 38 provides that

"States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.



States Parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities.



States Parties shall refrain from recruiting any person who has not attained the age of 15 years into their armed forces. In recruiting among those persons who have attained the age of 15 years but who have not attained the age of 18 years, States Parties shall endeavour to give priority to those who are the oldest.



In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict."

Rather than retake the provisions of Protocols I and II and maintaining the distinction between the types of armed conflict – Protocol I: inter-State conflicts and wars of national liberation; Protocol II: intra-State conflict of high intensity – Article 38 merges both provisions, improves upon Protocol I, but is less progressive than Protocol II. It requires state action only in cases of direct participation. Contrary to IHL, human rights instruments do not bind non-government entities such as opposition armed forces.11 The state has respect for the rights of the persons under its jurisdiction, as well as ensures their respect. Certain states claimed that negotiations on a human rights treaty were not the appropriate forum for discussing IHL norms, nor for amending them. This was the opinion of the United States which have not ratified any of the Protocols.12 The International Committee of the Red Cross (ICRC)13 was concerned that it might be losing its monopoly on the reaffirmation and development of humanitarian norms. Its proposal was to delete paragraphs 2 and 3 of Article 38, as paragraphs 1 and 4 would have opened the door for humanitarian law standards. The position of the ICRC is clear, as there was no guarantee that the proposed article, which was to be drafted by the working group, would not be contrary to or embarrassingly incompatible with the provisions of the Geneva Protocols.

DRAWBACKS OF INTERNATIONAL HUMANITARIAN LAW AND HUMAN RIGHTS LAW

One of the major drawbacks of IHL is that it does not sufficiently address current armed conflicts.

Most conflicts where children are used as soldiers are internal armed conflicts. Protocol II does not "apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts".14 This means that it applies to internal armed conflicts of a very high intensity. To a certain extent, the state concerned must acknowledge the applicability of Protocol II. This has happened only in two cases since the adoption of the Protocols, in El Salvador and in the Philippines.25 Due to its high threshold of applicability, it is difficult to see how children will effectively be protected in internal armed conflicts. Although the Protocol was initially concerned with replacing common Article 3 to the Geneva Conventions of 1949, this Article is still important in regulating the law of non-international armed conflicts. It does not offer sufficient protection for children.

One must also acknowledge the absence of a monitoring body in IHL to ensure the respect of humanitarian norms in times of conflict as a major lacuna.

The occurrence of child soldiers is also an illustration of the lack of respect for other provisions of humanitarian law which aim at the protection of the child, usually by keeping him/her away from the scenes of battle altogether. And if children do participate, "they lose their inviolability as non-combatants; indeed, they become 'legitimate' military targets, individuals whose death or disablement result in that weakening of the armed forces of the enemy which is the only legitimate aim in war."17

All the above considerations should not overlook the fact that most states engaged in armed conflicts have not ratified Protocol II. Non-government entities will be bound by the provisions pertaining to the child only if its state has ratified it.17 Non-government entities have not attempted to make any declaration of acceptance either.18 Since most conflicts are internal and below the Protocol II threshold, the instruments of IHL are insufficient to protect children.19

The main drawback of the UNCRC is that its obligations do not bind non-government agencies. The absence of a derogation clause makes it unclear which obligations a state will have to continue to observe during an armed conflict, albeit internal or international. It is not clear either which obligations the state will have to observe in time of civil strife and internal violence beneath the Article 3 threshold. Of course, the absence of a derogation clause can also lead to an extensive interpretation. Article 39 provides for the rehabilitation of children that have experienced traumatic events linked to armed conflicts. It is a necessary correlate to Article 38. It is also the first human rights instrument which has achieved quasi-universal ratification, let alone in less than seven years after its adoption.20

OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD

Since the adoption of the Convention, it was felt that something should be done to improve upon Article 38. The main point of the improvement was to modify the age criterion of the Article to be in harmony with the rest of the convention. The idea was therefore to raise the age of any form of enrolment to the age of 18.

There are a few reasons for this initiative by the Committee on the Rights of the Child. The first is to correct the anomaly of the convention, as Article 38 is the only one with a lower age criterion as opposed to Article 1 of the Convention. The second is motivated by a notion of childhood and the apparent immaturity of 'persons' below the age of 18. This was the rationale for special protection for 'persons' below that age in the first place.21 This immaturity is also one of the main arguments for keeping children below that age away from the battlefield, as it is not expected that they will be able to fully respect IHL.22

The 'protocol' option is common in human rights law. This protocol would replace paragraphs 2 and 3 of Article 38. Reservations to the protocol would not be permitted. It would require only ten instruments of ratification or accession to ensure its coming into force. As far as the substance is concerned, the preliminary draft provided that "States Parties shall take all feasible measures to ensure that persons who have not attained the age of 18 years do not take part in hostilities," and that "States Parties shall refrain from recruiting any person who has not attained the age of 18 years into their armed forces."23 As its initial purpose was to raise the age criterion, it did not attempt to modify states' obligations to the UNCRC.

The draft has since been the subject of difficult discussions and negotiations. A Working Group has been appointed and has engaged in its third and final drafting session from 20-31 January 1997. The draft, as it now stands, is much more ambitious as it aims not only at raising the age of recruitment, but also at modifying the obligations of states that are party to it. There are some provisions which aim at reaching non-government armed forces, but again, how this will actually happen in practice is unclear.24

It was hoped that a consensus on raising the age of conscription to 17 or more would be reached. Some countries, such as Canada, Columbia, Paraguay and the United Kingdom, where voluntary conscription occurs at 16, are holding back on this outcome. Apparently, the campaign for the draft protocol has made countries, such as the Netherlands and New Zealand, raise the age of voluntary recruitment to 17, as it was 16 before.25 In all other countries, it occurs at the age of 17, 18 or more. Likewise, the reluctance to increase child protection raises doubts on the following interpretation of Article 41 of the UNCRC: "[i]f greater protection to children would be given by some other legal instrument to which the state is a party, its provisions will take precedence over those of the Convention on the Rights of the Child. In addition, if the national law sets 18 years as the minimum age for recruitment, the government will be bound by that rather than the lower limit in the Convention."26 The first part of the above remark refers to the delicate problem in international law relating to the conflict of norms. The second part refers to national law. But if the latter was true, there would not be any need for an additional protocol. There is always the possibility for a state to take special measures in case of public emergency. The extent to which a state can legally do that without breaking constitutional rights is enshrined in the constitutions themselves.

The Working Group did not manage to reach consensus on the increase of the age to 18. It appears that the United States are responsible for this outcome.27 The draft optional protocol will continue to be under discussion.

MINIMUM STANDARDS

The truth is that for different types of conflicts different rules apply. The problems linked to derogation clauses and the threshold of applicability of various human rights and humanitarian law conventions mean that international law does not provide for public unrest. States are reluctant to acknowledge rights to persons that would be considered as rebels. The great majority of situations fall within civil unrest situations, i.e. internal conflicts.

The drafters of these proposals have been heavily criticised on the basis that they were following a lowest common denominator approach,28 to find minimum standards which could be acceptable to all states. Therefore, their task was essentially directed at finding existing provisions and existing formulations which could be applicable. They did not try, in any way, to modify existing norms of IHL, nor to innovate. As a result their proposed article on child soldiers uses the 15 years old criterion for recruitment. Another possible explanation, which was also put forward at each round of negotiation on child soldier protection, was that there was no point in drafting an article, adopting and ratifying it when chances were that it would never be respected. It should be acknowledged that the prohibition of child soldiers below the age of 15 has not been respected since the adoption of the Protocols.

CHILD SOLDIER ISSUES

The development of international law on the issue of child soldiers may be the easiest problem to address. The defence of childhood and the rise in the legal age of recruitment are just two aspects of the larger issue. The dissemination of existing rules of international law has often been exposed as an essential component to ensure the respect of international humanitarian norms. Unfortunately, feasible measures have not been exposed.

Examples of the challenges still ahead can be drawn from case studies from African countries and their experience with child soldiers. The most difficult issue to address is the participation of children themselves. There have been instances of forced recruitment. The kidnapping of children by the Resistencia Nacional de Mozambique (RENAMO) is widely known. These children were abducted to be trained as soldiers, but initially forced to kill relatives and other members of their community. This would make it impossible for them to return to the community.29 It was also a way to make the child an orphan and dependent on the armed forces which kidnapped him. These practices had reached such a scale that it was reported that the average age of RENAMO combat units was 16 years of age. The Lord's Resistance Army led by Joseph Kony in Uganda has similar recruitment methods. Forced recruitment and incidences of child recruits seem to be high when there is a manpower shortage. In Liberia, new recruits were mostly composed of street and other disadvantaged children.

Experts have nevertheless estimated that voluntary participation exceeds cases of forced recruitment.30 An exhaustive list of the causes behind voluntary recruitment is difficult to come by. Reasons such as peer pressure, community glorification of participation, revenge, and social class are more difficult to address. Economic incentives, such as the need for food and other essentials will play a role in voluntary enlistment. In the confusion of war, children accompany the armed forces in search of food and security and eventually join their ranks.31 In reality, joining the armed forces may be perceived as the only means of survival during a civil war. Spontaneous participation of school children and students in South Africa played a leading role in the struggle against apartheid; some enrolled in self-defence units.

These facts in themselves show the problems still ahead in combating child participation in armed conflicts. The method of recruitment has not influenced the way children have been treated within the armed forces that they serve. Their treatment and occupation vary from one country to another, making it difficult to generalise. It is still considered that violations of children's rights within armed forces are numerous. They range from mistreatment within the training process to the sexual abuse of girls.

Child participation leads to situations such as those prevailing in Angola where a 1995 survey found that 36 per cent of children had accompanied or supported soldiers, and 7 per cent of Angolan children had "fired at somebody."32 A recent United Nations Children's Fund (UNICEF) survey on Rwanda claims that 47 per cent of children saw other children killing people, two-thirds had witnessed massacres, 20 per cent witnessed rape and sexual abuse, and 56 per cent saw family members being killed.33

Another aspect of child participation in armed conflicts concerns post-conflict situations. Children who have actually fought are victims of stress and other psychological problems. Most of these children have never received a formal education, and some have not learned to read or write. These are all factors that impede reintegration into society. There are no reliable estimates of the number of children within government or opposition forces, or paramilitary or self-defence units. Most often, the existence of child soldiers is denied. Whereas it has become a common practice for opposition groups to use children, government forces often do the same. It is mostly during the demobilisation process that appropriate agencies receive reliable information on child soldiers. It is also during the process that estimates of the needs for rehabilitation and reintegration can be made. At the same time, one must not lose sight of the fact that a child soldier is not a static phenomenon. Brett and McCallin emphasise that "[i]n fact, the individual child soldier is essentially transitory. Within a few years he or she will be an adult soldier, a former soldier, or dead. At times this may seem irrelevant: although the individuals change, the process continues. However, as the recruitment of child soldiers progresses, so its effects on the societies concerned is cumulative."34

Apart from the educational impairments caused by child participation, one cannot exclude the culture of violence, the proliferation of light weapons, the abuse of drugs and alcohol, and related issues. Problems of drugs, weapons trafficking and prostitution will coexist with the initial problems linked with post-conflict reconstruction. Conflicts have a disruptive effect on the family structure which is essential in the reintegration of child soldiers. Experience in Liberia serves as an example of communities unwilling to have anything to do with these "miniature killers."35 For girls that have been sexually abused, their reintegration within the community may be impossible and the chances that they will join prostitution circles are high.

The issue of child soldiers is of particular importance for Africa. The Organisation of African Unity (OAU) adopted the African Charter on the Rights and the Welfare of the Child in 1990.36 This instrument, adopted around the same time as the UNCRC, was destined to underline the value of childhood and children's rights for the African continent. It has never been ratified, and is therefore essentially useless. This is rather unfortunate as its provisions prohibited child soldiers under the age of 18, as well as provided for situations of internal tension, civil strife and internal armed conflicts.37 There is no sign that this Charter will come into force in the near future. It must be acknowledged that the respect of its norms would prove to be difficult in countries raging with civil war and where half of the population is composed of persons below the age of 15.38

CONCLUSION

International law has been important in bringing the problem of child soldiers to the forefront of debate. To present its development and its dissemination as preconditions for implementation is however short-sighted. Related issues still have to be addressed, such as the question of responsibility of child soldiers, the age of criminal responsibility and related aspects of a judicial nature.39 This is crucial, given that children as young as five years old are awaiting trial for crimes of genocide in Rwanda.

More important would be to convince recruiters that child soldiers are not always assets. It is often suggested that certain characteristics justify the use of children as soldiers. It has been said that they tend to be fiercer than adults and less scared. It has also been said that they do not question orders and are therefore more docile than adults. Although such a profile may have been true in certain countries, experience in others show that it is not a universal rule.

The United Nations Report on the Impact of Armed Conflict on Children40 identifies the predominantly internal character of current conflicts, as well as the existence of light weapons, such as AK-47s which are light and can be used by young children, as the major obstacles to an eradication of the child soldier phenomenon. These will prove to be the most difficult ones to address in the future.

Certainly, international law cannot be raised as a panacea to this problem. IHL is often transgressed, and enforcement mechanisms are weak at best. On the other hand, international law is essential in defining rights universally. Without such important definitions, positive action in favour of children would not be clear, nor forthcoming. Developing the law is just as important as setting enforcement mechanisms and must be seen within this broad concept.

ENDNOTES

See Press Summary of the State of the World's Children 1996, at http://www.unicef.org/sowc96pk/pressum1.htm. The press summary referred to Sierra Leone on that particular point, although it also took place in Mozambique.



I Cohn and G S Goodwin, Child Soldiers, Henry Dunant Institute, Geneva, 1993, p. 42. Both types of participation should be prohibited. Direct participation put them in the line of fire. Indirect participation is just as life threatening as they would find themselves in the vicinity or within places that can be considered legitimate military targets, and therefore subject to attack. This is without mentioning the fact that they would find themselves in combat areas, and close to mines.



The Fourth Geneva Convention of 1949 protects civilians. The other three deal with soldiers and prisoners of war. No specific provisions on children are included.



Protocol I, ibid.



Cohn and Goodwin, op. cit., p. 42.



Ibid.



Ibid., p. 41.



A J M Delissen, Legal Protection of Child-Combatants after the Protocols: Reaffirmation, Development or a Step Backwards?, in A J Delissen (ed.), Humanitarian Law of Armed Conflict – Challenges Ahead: Essays in Honour of Frits Kalshoven, Martinus Nijhoff, Dordrecht, 1991, pp. 153-164.



Hereafter IHL.



See T Mann, International Law and the Child Soldier, International and Comparative Law Quarterly, 36(1), 1987, p. 33; L Hitch, International Humanitarian Law and the Rights of the Child: Article 38, New York Law School Journal of Human Rights, 7, 1989, at p. 81, for the opinion that Article 38 is useless and inadequate at best.



According to Rädda Barnen, "[i]n July 1995, the Sudan People's Liberation Movement and the South Sudan Independence Movement became the first known rebel movements to commit themselves to the Convention on the Rights of the Child." This happened, although legally non-state entities cannot ratify the UNCRC. For more information see Rebel Group Pledge to Uphold Convention, Children of War, 3, 1996.



It was also the opinion of the USSR. See I Cohn, The Convention on the Rights of the Child: What it Means for Children in War, International Journal of Refugee Law, 3(1), 1991, p. 102, note 4.



Hereafter: ICRC.



Article 1(2) of Protocol II.



Cohn and Goodwin, op. cit., p. 48. In both the El Salvadorian and Philippino cases the conflicts had not reached Protocol II thresholds; in both cases the government and the insurgents stated their willingness to be bound by its provisions.



Cohn and Goodwin, op. cit., p. 51.



Ibid., p. 45.



Ibid., p. 41.



Ibid.



Four States have not ratified the Convention on the Rights of the Child. These are Oman, Somalia, the United Arab Emirates and the United States. See R Brett and M McCallin, Children: The Invisible Soldiers, Rädda Barnen, Grafiska punkten, Växjö, 1996, p. 188, n. 393. It has received more ratifications than Protocol I and Protocol II and indirectly binds states on rules of humanitarian law pertaining to the child.



See Paragraph 9 of the UNCRC Preamble.



Cohn and Goodwin, op. cit., p. 2.



Preliminary Draft Optional Protocol on Involvement of Children in Armed Conflicts, UN Doc E/CN.4/1994/91, 20 December 1993.



For the text of the draft Protocol, see Children of War, 3, 1996 and 1 1997.



See World Wide Web Rädda Barnen Site, http://www.rb.se/chilwar/, Children of War Newsletter, 5, December 1996.



Brett and McCallin, op. cit., p. 191.



UN Protocol: USA Blocks Agreement, Children of War – A Newsletter on Child Soldiers, Rädda Barnen, 1, February 1997, pp. 1-2.



T Meron and A Rosas, A Declaration of Minimum Humanitarian Standards, American Journal of International Law, 85(2), 1991, pp. 375-381. "Every child has the right to the measures of protection required by his or her condition as a minor and shall be provided with the care and aid the child requires. Children who have not yet attained the age of fifteen years shall not be recruited in or allowed to join armed forces or armed groups or allowed to take part in acts of violence. All efforts shall be made not to allow persons below the age of 18 to take part in acts of violence." Such a proposal for Minimum Humanitarian standards was discussed at the United Nations Human Rights Commission in 1996.



Cohn and Goofwin, op. cit., p. 16.



Ibid., p. 19.



Brett and McCallin, op. cit., p. 112.



Human Rights Watch, Angola: Between War and Peace – Arms Trade and Human Rights Abuses Since the Lusaka Protocol, Refugee Survey Quarterly, 15(2), 1996, at p. 71.



See World Wide Web site http://www.ecapm.org/.



Brett and McCallin, op. cit., p. 46.



"Because of these problems, the families as well as the communities at times, resist the reintegration of former child soldiers and even for those families/community who accept them usually attribute criminal activities in the communities to them." Extract from the Liberian Case study conducted by the Children Assistance Program (CAP), Inc., Monrovia, Liberia, December 1995.



The text of the OAU Charter on the Rights and the Welfare of the Child of 1990 can be found in P E Veerman, The Rights of the Child and the Changing Image of Childhood, Martinus Nijhoff, Dordrecht, 1992, Appendix 45, pp. 579-598.



Article 2 and Article 22 are the two important provisions directly relating to child soldiers.



See World Factbook 1995, for Liberia, Sierra Leone, Angola, Burundi, Sudan, Mozambique and Zaire, on http://www.ocdi.gov/cia/publications/ .



Brett and McCallin, op. cit., p. 139.



Promotion and Protection of the Rights of Children – Impact of Armed Conflict on Children, UN Doc A/51/306, 26 August 1996.