The prohibition of child soldiering
The evolution of the legal prohibition of child soldiering is rather complex. Indeed, at present, there are no fewer than eight universal treaties proscribing child soldiering; and this is not to mention regional instruments. One of the factors which adds complexity to international law’s response to child soldiering is the fact that, conceptually, the prohibition lies at the intersection of IHRL and IHL.27 The first prohibition of child soldiering came in the form of the two 1977 Protocols Additional to the Geneva Conventions,28 and thus has the character of IHL norms. In a remarkable departure from the general trend, the prohibition contained in Additional Protocol II (APII), which applies to NIACs, provides for better protection than the Additional Protocol I (API) norm, which applies to international armed conflicts (IACs). API provides:
The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years the Parties to the conflict shall endeavour to give priority to those who are oldest.29
APII provides that, in the context of NIACs:
Children shall be provided with the care and aid they require, and in particular:
…
(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;
(d) the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of subparagraph (c) and are captured.30
The CRC, which is an instrument properly belonging to IHRL, was adopted twelve years after the Additional Protocols, and adopted the child soldiering prohibition from API virtually unchanged:
States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.
States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.31
While it is regrettable that the drafters of the CRC did not see fit to develop the scope of protection afforded to children, in terms of the child soldier prohibition, beyond that of API, it is nevertheless of substantive legal significance that child soldiering is proscribed in terms of both IHL as well as IHRL. The three primary implications of this are: first, the API provision is addressed to “the parties to the conflict”, whereas the CRC provision is addressed to “States Parties”. This change was required in the context of the CRC, as IHL creates obligations incumbent upon non-state actors directly, whereas, traditionally, IHRL creates such obligations only on States.32 As such, the IHL prohibition brings added value in creating binding obligations on non-state entities in international law. Second, IHL applies only during armed conflict. As such, the prohibition of child soldiering contained in the two Additional Protocols provides no protection to children from military recruitment outside of the context of armed conflict – which IHRL prohibition does indeed do. Lastly, there is a wide variety of judicial and quasi-judicial mechanisms through which relief can be sought for violations of IHRL, while similar mechanisms are not available in the context of IHL violations.
Unhappy with the scope of protection offered to child soldiers by the CRC, civil society rallied behind the Coalition to Stop the Use of Child Soldiers, and during 2000, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (Child Soldier Protocol) was adopted.33 Controversially, this Protocol provides for different standards applicable to State and non-state armed groups. Non-state armed groups are absolutely prohibited from recruiting or using persons under the age of 18 years in hostilities.34 States Parties, on the other hand, are required only to take “all feasible measures” to ensure: “that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities”;35 and to, “ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces”.36 Interestingly, while using vague and indirect language, the Protocol allows States to recruit children aged between 16 and 18 voluntarily, with parental consent, where specific safeguards are met.37
The prohibition of child soldiering found its genesis in IHL and IHRL. However, the most recent developments occurred by and large in the context of ICL. The Special Court for Sierra Leone (SCSL) was the first to contribute to the international child soldier jurisprudence. Yet, the fact that the sole charge levelled against Lubanga, in the International Criminal Court’s (ICC) first ever prosecution, was the war crime of the military enlistment, conscription, and use of children, significantly elevated the status of this war crime. The Statute of the SCSL adopted the language of the Rome Statute, which provides for the child soldiering war crime both in the context of IACs as well as NIACs:
(xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.38
…
(vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities.39
Considering the huge amount of attention child soldiering has received during the past decade or so, it is interesting to note that at the time of the adoption of the Rome Statute, during 1998, prevailing academic opinion suggested that child soldiering had not yet crystallised into a customary international crime.40 That is not to say that the prohibition of child soldiering was not a customary law prohibition at the time, but that it did not entail individual criminal responsibility. Today, there is universal agreement that the violation is customary in nature, and indeed entails individual criminal responsibility. However, virtually all scholarship on the topic suggests that the age threshold of the prohibition is “under the age of fifteen years”. While this is certainly the case as regards the enlistment of children, and is possibly true also in the context of conscription, State practice suggests that the age threshold applicable to the prohibition of the use of children for direct or active participation in hostilities has been elevated to “under the age of eighteen years”.41
The prohibitions of child trafficking and child soldiering: competing principles or reinforced protection?
There is undoubtedly a large degree of overlap between international law norms prohibiting child trafficking and those specifically prohibiting child soldiering. The salient features of child trafficking, as enshrined in the Palermo Protocol, are: the act, which is limited to the “recruitment, transportation, transfer, harbouring or receipt of persons”;42 and the purpose, being exploitation, which includes, “at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.43 The listed forms of exploitation are not exhaustive. The salient features of the prohibition of the use of child soldiers (as opposed to their recruitment), as enshrined in the CRC, are that: “States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities”.44 Juxtaposed against this, the salient features of the prohibition of the recruitment of child soldiers, as enshrined in the CRC, are that: “States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces”.45
Age threshold and the role of consent
One of the most notable distinctions between the p
rohibitions of child soldiering and child trafficking is the age threshold relevant to protection. The Palermo Protocol provides for an unequivocal threshold, deeming a person younger than the age of 18 to be a child.46 The age threshold for child soldiering is more complex. Depending on the treaty obligations incumbent upon a given State, the age threshold can be between 15 and 18. Thus, where the conduct of a party amounts to both child trafficking and child soldier recruitment or use, and the child is 15 years of age or older, it may well be that the conduct is unlawful in terms of the prohibition of child trafficking, but not the prohibition of child soldiering (again, to be clear, this will depend on the combination of treaties proscribing child soldiering to which the relevant State is party).
The Palermo Protocol expressly rejects the relevance of consent to child trafficking.47 In the context of child soldiering, consent can play a more important role. As discussed earlier, the Child Soldier Protocol to the CRC provides that State armed forces may recruit children aged from 16 to 18, on a voluntary basis, where there is full parental consent (and additional safeguards are in place).48 However, consent is irrelevant where the child is younger than the age of 16. Moreover, consent is irrelevant to the prohibitions of child soldiering as found in the CRC, API, APII, and the Rome Statute.
The act
It is immediately apparent that there is an overlap of terminology between the child trafficking and child soldiering prohibitions, in that both include “recruiting” as a form of the act. However, one can detect a rather significant language shift that occurred in the child soldier prohibition with the adoption of the Rome Statute, in that the term “recruiting” is substituted in the Rome Statute with “conscripting or enlisting” children. This raises the question whether this shift is material. Schabas is of the opinion that the replacement of the word “recruiting” in an earlier draft of the Rome Statute with “conscripting or enlisting”, “suggests something more passive, such as putting the name of a person on a list”.49 This view is supported by the finding of the Appeals Chamber of the SCSL in the CDF case, where the Court held that:
for enlistment there must be a nexus between the act of the accused and the child joining the armed force or group … Whether such a nexus exists is a question of fact which must be determined on a case-by-case basis.50
Therefore, should the same meaning be afforded to “recruiting” in the context of both the child trafficking and child soldiering prohibitions, it is feasible to argue that the Rome Statute construction of “enlisting or conscripting” provides marginally wider protection. However, while the act in the child soldier prohibition is limited to enlisting, conscripting, and using children, the act in the context of the child trafficking prohibition includes recruitment, transportation, transfer, harbouring, or receipt of persons. As such, holistically, the acts proscribed in the context of child trafficking are much broader than is the case with child soldiering.
The most aggravated form of child soldiering is the use of children for direct or active participation in hostilities. It should be noted that it is possible for an armed group, or an individual, to violate the prohibition of the use of a child for direct participation in hostilities, without that same group or individual being guilty of the enlistment or conscription of the child. This will happen, for example, where a different group or person enlisted or conscripted the child. In such instances, depending on the facts, the child trafficking prohibition may not be relevant at all as, quite simply, no trafficking may have taken place.
For the purpose of exploitation
As mentioned before, the listed forms of exploitation in the Palermo Protocol are not exhaustive; but they do provide guidance on the gravity of exploitation that is required to meet the threshold of trafficking. These grounds are: “exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.51 It goes without saying that when a child is used or recruited in armed conflict, the purpose for such use or recruitment is for that child to contribute to the efforts of the relevant State or non-state entity. By definition, the child is utilised in a hostile environment. While the military use and recruitment of children do not necessarily fall under any of the listed grounds of exploitation, such military use and recruitment are of a comparable gravity, and often exceed the gravity of the grounds listed in the Protocol.52 Moreover, in many instances (although not a majority of instances), children are abducted and forced to perform functions within the armed group. In such instances, the form of exploitation is listed as “forced labour or services”. The International Labour Organization (ILO) Worst Forms of Child Labour Convention (1999) includes, as a worst form of child labour, “forced or compulsory recruitment of children for use in armed conflict”.53 It is interesting to note that the first conventional prohibition of the forcible or compulsory military recruitment of children came in the form of the ILO Forced Labour Convention No. 29 of 1930.54
One of the key limitations on the prohibition of the military use of children is that the prohibition only protects children from direct participation in hostilities (DPH).55 The notion of DPH is complex, but at the very least it makes a legitimate target out of children for enemy fire.56 It is feasible for the child trafficking prohibition to apply to children who are used indirectly in hostilities, and in so doing, child protection is further advanced.
Conclusion
The discussion above confirms that, practically, there is an acute overlap between the legal prohibitions of child trafficking and child soldiering – quite simply, in many instances where children are used and recruited by armed groups, the violating party will act in contravention of both child soldiering and child trafficking prohibitive norms. Nevertheless, the underlying values relevant to the two prohibitions are manifestly different. The child soldier prohibition is premised on the idea that children should not be participants in armed conflict. The child trafficking prohibition is premised on the idea that children should not be trafficked, for profit, in order to be exploited. The element of transportation in the context of child trafficking remains rather vague. However, this element has virtually no implications for applying the child trafficking prohibition to child soldiering: as children are routinely transported in the context of their military use and recruitment. This is well evidenced by the practices of ISIL and Boko Haram, to name but two examples.
The overlap between child soldiering and child trafficking gives rise to the question whether children are better protected from military use or recruitment. There is a growing sentiment that more law does not create more compliance.57 However, because the international law prohibitions of child soldiering and child trafficking emanate from within different sub-regimes of international law, they do create mutually reinforcing protection for children. As was indicated earlier, the fact that both IHL and IHRL prohibit the military use and recruitment of children does add to child protection as each sub-regime of international law brings different avenues or protections to the table. Similarly, the fact that child trafficking is addressed as an issue of organised transnational crime brings with it additional potentialities for achieving greater protection of children in armed conflict situations.
Notes
1 The first scholarly contribution in English regarding international law and child soldiering was published by Mann in 1987 (Mann, H., “International Law and the Child Soldier” (1987) 36 International and Comparative Law Quarterly 32). However, child soldiering only began enjoying significant international attention following the Machel Report of 1996 (Machel, G., “Promotion and Protection of the Rights of Children: Impact of Armed Conflict on Children”, UN Doc. A/51/306 (26 August 1996)).
2 Prosecutor v. Thomas Lubanga Dyilo, Dissenting Opinion of Judge Odio Benito, Trial Chamber I, Judgment, ICC-01/04–01/06 (2012).
3 Judge Odio Benito argues that: “sexual violence is an intrinsic element of the criminal conduct of ‘use to partici
pate actively in the hostilities’”. While it is certainly regrettable that charges regarding sexual crimes were not included in the Lubanga case, as it appears that there was overwhelming evidence that Lubanga was criminally responsible for such crimes, the Rome Statute adequately criminalises such conduct independently from the military enlistment, conscription, or use of children.
4 Convention on the Rights of the Child 1989, 1577 UNTS 3.
5 There are potentially limited exceptions in this regard. Both the UK, as well as the US, recruit and train persons younger than 18 in their national armed forces. They do so in full compliance with their international obligations, and children are not used in direct participation in armed conflict. While many are critical of these States’ recruitment policies, there are no indications that children in their ranks suffer any violations of their individual rights.
6 See, for example, Quenivet, N., “The Liberal Discourse and the ‘New Wars’ of/on Children” (2012–2013) 38 Brooklyn Journal of International Law 1053, at 1096–1105; and Tobin, J., “Understanding Children’s Rights: A Vision Beyond Vulnerability” (2015) Nordic Journal of International Law 84.
7 Rosen, D.M., Armies of the Young: Child Soldiers in War and Terrorism (New Brunswick, NJ: Rutgers University Press, 2005), pp. 1–4 and 131–138.
8 See Waschefort, G., International Law and Child Soldiers (Hart Publishing: Oxford, 2015), pp. 26–27.
9 Drumbl, M.A., Reimagining Child Soldiers in International Law and Policy (Oxford: Oxford University Press, 2012), p. 1.
10 Rosen (n.7), p. 132.
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