C E N T E R F O R A F R I C A N A F FA I R S A N D G L O B A L P E A C E

African Child and Development Journal

July to October 2011 | Issue Number 8

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Building and strengthening Africas policy for sustainable development
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Wars and the Child The Unending Saga of Child Soldiers

Kirthi Jayakumar

introduction
They lled the forms and asked my age, and when I said 16, I was slapped and he said, You are 18. Answer 18 He asked me again and I said, But thats my true age. The sergeant asked, Then why did you enlist in the army? I said, Against my will. I was captured. He said, Okay, keep your mouth shut then, and he lled in the form. I just wanted to go back home and I told them, but they refused. I said, Then please just let me make one phone call, but they refused that too. 1 Maung Zaw Oo, describing the second time he was forced into the Tatmadaw Kyi (army) in 2005.1

While this is just an excerpt for this article, this is a depiction of a nefarious and crude reality for myriads of children world over. Deprived of a treatment that would bet the sanctity of a childhood, a plethora of children are made to wield weapons, kill enemies, slip past check-posts unnoticed and even blow themselves up as suicide bombers.

Human Rights Watch (HRW), Sold to be soldiers The recruitment and use of child soldiers in Burma, October 2007. http://www.childsoldiersglobalreport.org/content/voices-child-soldiers

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The earliest reported instance of involving children in armed forces dates back to 1945, during the Second World War, where Germany had conscripted children. This was conceived as an act of heroism, or unfortunate necessity at the most.2 The situation is rather different, today. Children have participated in as many as thirty-six armed conicts between 1997 and 1998, and children below the age of fteen participated in twenty-eight armed conicts.3 Nearly 300,000 children serve as active combatants, in all aspects of modern warfare.4 Child soldiers use AK-47s and M-16s on the front lines of combat, serve as human mine detectors, participate in suicide missions, carry supplies and act as spies, messengers and lookouts.5 Children are exploited for their vulnerable nature, and being far more obedient and pliable, they are often preferred over adult soldiers. The use of children as soldiers has been universally condemned as abhorrent, hortative and unacceptable. Despite such a move, a tumultuous multitude of children have fought and died in conicts around the world. Child soldiers live under harsh conditions, are deprived of food, education and healthcare, all of which are essential for their growth and well-being. They are almost always treated brutally, subjected to beatings and humiliating treatment. Punishments for mistakes or desertion are often very severe. Girl soldiers are subject to the risk of rape, sexual harassment and abuse, and are also involved in combat. Instances in Northern Uganda show that young girls were impregnated by male soldiers, and were made to strap their children on their backs while they took up arms against the enemy forces.6 The problem of children being recruited as soldiers plagues developed nations too. The United States of America was known to have recruited children in their armed forces, while recruits of approximately seventeen years of age were already in combat-ready units.7 Largely, the worlds child soldiers are involved in a variety of armed political groups, which include governmentbacked paramilitary groups, militias and self-defense units operating in many areas. Besides these, armed groups opposed to central government rule, groups composed of ethnic religious and other minorities and clan-based or factional groups ghting governments and each other to defend territory and resources amass children among their forces.

The use of children as soldiers has been universally condemned as abhorrent, hortative and unacceptable.

2 3 4 5 6 7

Excluding Children from Refugee Status: Child Soldiers and A.1F of the Refugee Convention, Mathew Happold, (2001) 17 Am U Intl L Rev 1143. Rachel Brett and Margaret Mc Callin, Children: The invisible soldiers 19 (2nd ed., 1998). Report of the Special Representative of the UN Secretary General for Children in Armed Conict, A/53/482, Submitted to the 53rd Session of the UNGA on 1st October, 1998. Special Representatives for Secretary General for Children and Armed Conict- Olara A. Otunnu, http://www.un.org/children/conict. Report on Child Rights, Human Rights Watch, available at www.hrw.org/campaigns/crp/index.htm. Amnesty International, January 1999, www.amnesty.org/aidoc

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who is a child soldier?

According to the Child Soldiers Report (1379), the CSC denes a child soldier as: any person under 18 years of age who is a member of or attached to the armed forces or an armed group, whether or not there is an armed conict. Child soldiers may perform tasks ranging from direct participation in combat; military activities such as scouting, spying, sabotage, acting as decoys, couriers or guards; training, drill and other preparations; support functions such as portering and domestic tasks; sexual slavery and forced labor.

According to the 1997 Cape Town Principles: 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. It includes girls recruited for sexual purposes and forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms.

The generic trend is to construe a child as one below eighteen years in age. The Optional Protocol to the Convention on the Rights of the Child, 20008 also follows the same categorization. The 1989 Convention on the Rights of a Child denes a child as a person who is below eighteen years.9 However, A.38 of the same mentions that a state party shall take all feasible measures to ensure that persons below fteen years in age do not take a direct part in hostilities.10 States are also to refrain from recruiting any person who has not attained the age of fteen years into their armed forces, and are supposed to afford priority towards the older children among those who have attained fteen years, but not eighteen years yet.11 This pattern is followed in other international law provisions dealing with child soldiers. The question thus arises as to how old a child is, when it comes to his or her participation in conict.12 Objective standards utilized to determine a denition hardly takes into account other relevant points such as culture values that determine the attainment of adulthood. Some societies mark the transformation of a child into adulthood by the performance of certain acts, too. Some cultures require military participation to mark the transition.13 Nevertheless, Law concerns itself largely with the age of the children, primarily under the presumption that maturity sets in at the prescribed age, going by the scientic precinct that the human brain attains its full growth at eighteen years of age. For the purposes of this paper, the denition for the term Child Soldiers shall be as dened under the Cape Town Principles and the Child Soldiers Report (1939).

Protocol on the involvement of children in armed conict Adopted and opened for signature, ratication and accession by General Assembly resolution, A/RES/54/263 of 25 May 2000, entered into force on 12 February 2002 Article 1 A.38 (2) A. 38(3) Steven Freeland, Child Soldiers and International Crimes (2005) 3 NZJPIL 307. Alison Dundes Renteln, Sixteenth Annual International Law Symposium: Rights of Children in the New Millenium: The Child Soldier: The Challenges of Enforcing International Standards (1999) 21 Whitter Law Review 191, 202-204.

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why do children join the armed forces?

While large numbers of children are forcibly recruited into armed groups in many conicts, the vast majority of child soldiers comprises of adolescents between the age of 14 and 18 who volunteer to join up. Research indicates that a number of factors may be involved in making the decision to actually join an armed conict. The harsh reality is that many such adolescents see few alternatives to enlisting. War itself is a major determinant, while economic, social, community and family structures are frequently ravaged by armed conict and joining the ranks of the ghters is often the only means of survival. Many youths have reported that desire to avenge the killing of relatives or other violence arising from war is an important motive. A few causes are enumerated herein.

The harsh reality is that many such adolescents see few alternatives to enlisting.

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Compulsion, Coercion and the Threat of Death

When they came to my village, they asked my older brother whether he was ready to join the militia. He was just 17 and he said no; they shot him in the head. Then they asked me if I was ready to sign, so what could I do - I didnt want to die. A former child soldier taken when he was 13 (BBC report)

They gave me a uniform and told me that now I was in the army. They even gave me a new name: Pisco They said that they would come back and kill my parents if I didnt do as they said. Report of interview with a 17 year old former child soldier in 2006

Children are mercilessly threatened into joining the armed forces. Their vulnerability and susceptibility to fear is exploited by the recruiters. Often scaring them with the threat of death, children are manipulated into slaves and are made to work under morbid and inhuman conditions. They are deprived of food, clothing and even the right to answer natures call, if they do not work. Some meet with a gruesome ending, while their examples are used as a deterrent for any prospective refusals on part of other children. Instances of torture have been reported at child soldier camps world over. Children are plied with alcohol and drugs, and are coerced or manipulated into committing atrocities.14 If they try escaping, they are deemed as deserters and are subject to spot execution if found. Childrens recruitment in armed conict is either by force (conscription) or voluntary (enlistment), even though voluntary recruitment is often coupled with hidden forms of coercion.15 Armed militia, police, or army cadres arbitrarily seize young recruits from the streets, schools, and orphanages.16 In most such cases, the childs consent hardly matters.

14 15 16

Amnesty International, Sierra Leone: Childhood- A Casualty of Conict 8 (2000) Child Soldiers, Slavery, and the Trafcking of Children. Susan W. Tiefenbrun, TJSL Legal Studies Research Paper No. 1020341, October 2007. Mike Wessells, Child Soldiers : In Some Places, If Youre as Tall as a Rie, Youre Old Enough to

Carry One, BULL. ATOM. SCI., Nov. 21, 1997, at 32

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Poverty and Economic Disparity

I joined the guerrilla to escape I thought Id get some money and could be independent 17-year-old girl soldier with the Revolutionary Armed Forces of Colombia, interviewed in 2002

Poverty and lack of access to educational or work opportunities are contributive factors to the problem of child soldiering. Children are lured with the promise of or the reality of an income or a means of getting one. Poverty, ignorance, illiteracy, intellectual and developmental immaturity, and a lack of formal education prevent children from making an informed choice or even understanding why they are ghting.17 The childs parental and family background, peer groups, school, and religious community can strongly inuence their decision to ght.18 Children without schooling are prone to recruitment, like the many children in Sierra Leone who were without schooling for several years after 1997 when 300 schools were closed due to damage or destruction.19 Children from the poorest, least educated and most marginalized sectors of the society are often encouraged to join the armed forces as an economic and employment alternative. Families procreate to a greater extent out of the need for more hands to work, and invariably end up selling their children to armies, rebel troops and terror outts in an attempt to gain some monetary advantage. In the poorest countries, where soldiering maybe the only way to earn a living, the incentive for children to ght is even stronger and more socially acceptable than anywhere else.20 The ten poorest countries in the world contain a majority of the worlds child soldiers, particularly Afghanistan, Angola, Southern Sudan, Mozambique and Sierra Leone.21 In the chaotic environment of a country in armed conict, childrens survival skills instinctively start to work. They seek stability and three square meals a day. They may simply be making an intuitive choice for the better of the bad alternatives.22 The UNESCO reports that regardless of age, gender, or how they are recruited, child soldiers disproportionately come from the poor and marginalized segments of society, isolated rural areas, the conict zones themselves, and from disrupted or non-existent family backgrounds.

17

Tiffany A. Richards, The War is Over But the Battle Has Just Begun: Enforcing A Childs Right to Education in the Wake of Armed Conict, 23 PENN. ST. INTL L. REV. 203, 205-06 (2004). Sandrine Valentine, Trafcking of Child Soldiers: Expanding the United Nations Convention on the Rights of the Child and Its Optional Protocol on the Involvement of Children in Armed Conict, 9 NEW ENGL. J. INTL & COMP. L. 109 (2003). John Harris, Child Soldiers: An Unacceptable Truth, April 2003: http://gseweb.harvard.edu-/~t656_web/peace/Articles_Spring_2003/Harris_John_ChildSoldiers.htm Nsongurua J. Udombana, War is Not Childs Play! International Law and the Prohibition of Childrens Involvement in Armed Conicts, 20 TEMP. INTL & COMP. L.J. 57,64 (Spring 2006).

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20 21 22

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Ideology, Status and the Thirst for Glory

When the armed groups have got recruited children and youth, they then would supah or take an oath. After that, they cannot withdraw. Otherwise, other members would kill them called blood halal or killing without guilt, because this is an act of betrayal to religion by muna. A religious leader from Pattani interviewed by the Coalition in 2007 describing the recruitment of children and youth by armed separatist groups

Religious ideology, false senses of glory and political perceptions drive a segment of children towards picking up arms. Coupled with this may be a desire for power, status or social recognition. Family and peer pressure to join up for ideological or political reasons or to honour family tradition may also be motivating factors. They join because they believe that participating in war is gloried by their culture and it is the symbol. Some religious cultures demand that the children participate in some sort of a military outt so as to come of age. Some join because they believe that participating in war is gloried by their culture and it is the symbol of masculinity. The demands of religion, politics and culture specic ideology typecast the mindset of certain families into driving their children into becoming soldiers. Children often lack the capacity to determine their best interests, to form opinions, and to analyze competing ideologies.23 Not having an opportunity to speak out, many children accept such forms of conscription obediently. Some of them are exposed to comparisons with a senior member of the family, who tread down the beaten path earlier, which drives them towards joining the armed forces. These powerless children search for acceptance, a sense of competence, and the sheer adventure associated with the glory and power of victory in armed conict.

23

Nsongurua J. Udombana, War is Not Childs Play! International Law and the Prohibition of Childrens Involvement in Armed Conicts, 20 TEMP. INTL & COMP. L.J. 57,64 (Spring 2006).

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The Need to Escape a Harsher Reality

I ran away (to join an armed group) to escape a marriage I didnt like. Girl soldier in Sri Lanka

Many instances have been reported where children run away from their homes, to escape a harsher reality. Girl soldiers have reported joining up to escape domestic servitude or enforced marriage or to get away from domestic violence, exploitation and abuse. The social and psychological effects of war can create a need for children to join a group, especially one like an army that promises to provide relative security and stability, a sense of power, and acceptance by peers and authority gures. In several parts of the world, children are devalued in the family and in society at large. Children do not occupy the center of the life of the family, and do not represent a precious hope for the future. Children are considered less than human, expendable and even invisible. This occurred especially in the midst of an overwhelming cult of death and martyrdom that developed during the Iran-Iraq War and continues today in many parts of the world. The lack of respect and the marginalization of children are no doubt one of the most pernicious causes of the increased use of child soldiers. Desperate children who are excluded from the protection of their family for various reasons constitute an available pool of cheap labor for the trac of weapons, drugs, and humans. The three most serious and lucrative international crimes today are the trac of weapons, drugs, and humans in that order. Each of these crimes is intricately involved in the abduction and exploitation of children in armed conict. These crimes are very protable, and money earned from one form of tracking (e.g. weapons) helps nance the tracking of the other (child soldiering).

49 50 51 52 53 54 55 56 57 58 59

A/HRC/WG.6/5/VNM/1 of 16 February 2009, Para. 7. Id., Para. 17. Id., Paras 57-8. Id., Paras 59-60. Ibid. Id., Para. 60. Id., Para. 61. Id., Paras 61-4. Ibid. Id., Paras 65-6. Id., 67-70.

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The Military Advantages of Using Children in War

Child soldiers are ideal because they dont complain, they dont expect to be paid, and if you tell them to kill, they kill. Senior ocer in the Chadian National Army (ANT)24

The extent of advancement in technology has made it easier for children to wage war along with adult soldiers. The proliferation of thin, small, and light-weight weapons like assault ries, machine guns, pistols, and hand grenades have enabled child soldiers to engage effectively in warfare. The huge number of children available and the military successes of these child soldiers have accelerated the trend toward recruiting young soldiers.25 The rise of a new type of armed warfare that is more brutal and lasts much longer than typical wars has encouraged military leaders to rationalize the forced recruitment and use of children as a low cost military measure that enables them to mobilize and generate force.26 There are an estimated ve hundred million small arms sold globally, one small weapon for every twelve persons.27 Among several other weapons, the AK-47 is considered easy for young children to use. Being smaller in size, innocent in demeanour and deft in action, children often checkpoints unnoticed, without arousing suspicion. Children are also usually more easily manipulated than adults. When children are directly involved in conicts, they are positioned in front of adult soldiers so that they can act as human shields and mine sweepers. Children are also used as tools to prolong war. War children have diculty turning into peace children and this, itself, may contribute to prolonging conicts and a serious erosion of local value systems.28

24 25

Human Rights Watch Report, Early to war Child Soldiers in the Chad Conict, July 2007. Sandrine Valentine, Trafcking of Child Soldiers: Expanding the United Nations Convention on the Rights of the Child and Its Optional Protocol on the Involvement of Children in Armed Conict, 9 NEW ENGL. J. INTL & COMP. L. 109 (2003), 119. P.W. SINGER, CHILDREN AT WAR, 14-15 (Pantheon Books, 2005) Charles Cobb, Arms and Africa on UN Agenda This Week, available at ALLAFRICA.COM, July 9, 2001. Payam Akhavan, The Lords Resistance Army Case: Ugandas Submission of First State Referral to the International Criminal Court, 99 AM.J. INTL. L 403, 407(2005). See also Nsongurua J. Udombana, War is Not Childs Play! International Law and the Prohibition of Childrens Involvement in Armed Conicts, 20 TEMP. INTL & COMP. L.J. 57,64 (Spring 2006).

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the effects on children

There was no one in charge of the dormitories and on a nightly basis we were raped. The men and youths would come into our dormitory in the dark, and they would just rape us - you would just have a man on top of you, and you could not even see who it was. If we cried afterwards, we were beaten with hosepipes. We were so scared that we did not report the rapes. The youngest girl in our group was aged 11 and she was raped repeatedly in the base. 19 year-old girl describing her experience in the National Youth Service Training Program I feel so bad about the things that I did. It disturbs me so much that I inicted death on other people. When I go home I must do some traditional rites because I have killed. I must perform these rites and cleanse myself. I still dream about the boy from my village that I killed. I see him in my dreams, and he is talking to me, saying I killed him for nothing, and I am crying. A 16 year-old girl after demobilization from an armed group (Source: U.S. State Dept. TIP Report 2005)

The use of children as soldiers can have lasting physical and psychological effects. These ill effects can be rather damaging to the general well-being of the child.29 Perennially susceptible to attack while remaining on the war front, even if they escape injury, participation in combat subjects them to severe damaging treatment, such as carrying heavy-loads, cooking for the entire battalion or even demanding sexual favours. Children are deprived of their right to contact their families and arent allowed to meet their kith and kin, even if they are recruited into the same forces. Instances in Uganda reveal that forces infuse children with the necessary spirit of ghting, by forcing them to kill a close relative, or a close friend. If they refuse, they become the victim in the course of another childs induction.30

29 30

Human Rights Watch, Childrens Rights: Stop the Use of Child Soldiers, 2 at http://www.hrw.org/campaigns/crp/index.htm http://www.child-soldiers.org/childsoldiers/voices-of-young-soldiers

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Girl soldiers are scarred for life, being subject to multiple instances of rape. Superiority in military often leaves young recruits vulnerable to bullying, harassment, abuse and rape. In August 1997, a seventeen year old recruit to the British Army was forced to perform sex act and raped by a drunken instructor while she was on military exercise. She told the judge that she didnt shout because he is a sergeant and had a higher rank.31 Child soldiers are open to various risks of drug and alcohol abuse, unwanted pregnancy, sexually transmitted diseases like HIV/AIDS. Auditory and visual problems are common along children with landmines injuries. Children are punished in the most barbaric ways for the mistakes committed by them. Aside of the physical damage, children sustain psychological damage particularly for those who have witnessed or committed atrocities themselves. Child soldiers are known to see ghastly dreams, suffer from withdrawal symptoms, lose out on their appetites, and most painful of all, lose their capacity to trust. In this regard efforts have been made by the General Assembly and the Center for Human Rights of the Secretariat and the UN Children funds, to appoint an expert to undertake a comprehensive study on child soldiers and to promote their physical recovery and social reintegration.32 Another effect is the fact that the quintessence of childhood is no longer preserved. These children are often treated as if they were adults simply because indoctrinated child soldiers do not look like children and have often committed atrocities together with adults.33 Children are subject to degrading treatment, and are often prosecuted and imprisoned for absolutely no fault on their part. In January 1999, the Ugandan army executed ve teenage boys between the ages of fourteen and seventeen suspected of being rebel soldiers, although such actions were not believed to be characteristic of the government forces.34 In Colombia, child soldiers are not afforded special legal status or treatment.35 In Rwanda, in l999 the International Committee of the Red Cross reported that approximately 570 children under the age of fourteen were incarcerated on genocide-related charges and still remain in the prison system.36

Child soldiers are known to see ghastly dreams, suffer from withdrawal symptoms, lose out on their appetites, and most painful of all, lose their capacity to trust.

31

www.yu.edu/yunmun/Archives/yunmun_XII/papers/UNICEEF.htm, see also, www.wcl.american.edu/hrbrief/v5i2/html/child.htm Global report on child Soldiers 2001 launch; Child Soldiers An Overview. www.reliefweb.int

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32 33 34 35 36

Stephanie H. Bald, Searching for a Lost Childhood; Will the Special Court of Sierra Leone Find Justice for Its Children? 18 AM. U. INTL. L.REV. 537, 553 (2002). Sandrine Valentine, supra note 24 Ibid Judith Matloff, Rwandas Bind: Trying Children for Genocide, CHRISTIAN SCIENCE MONITOR, January 28, 1997.

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Prosecution is an added burden on such children. These children have a long way to go before they attain mental maturity, and equating them to adult soldiers from the standpoint of prosecution would be a travesty. In a leading neurology law brief led by the American Medical Association and other groups, the AMA argued, and Justice Anthony Kennedy agreed, that adolescent brains are not fully developed in the prefrontal regions, and adolescents are less able than adults to control their impulses and should not be held fully accountable for the immaturity of their neural anatomy.37 Reintegration of child soldiers into society is an uphill task, causing immeasurable trauma to the child in the process. These children lose out on their opportunities for education, a possible future career, and even the opportunity to live a normal, peaceful life. They have no skills for life in peacetime and are accustomed to getting their way through violence.38 As an obvious consequence, many nd it dicult to live a civil life altogether. The general tendency of society towards such children is to ascribe a stigma, one that refuses to allow them to accept these children into their groups again. When these children do get the opportunity to go to school, other children tease them, or are simply resort to violence against them. Their pleas to their teachers fall on deaf ears, or worse, are answered with physical and sexual violence.39 It is unfortunate that oversimplied images have been constructed of child soldiers. One prevalent image is that of a damaged good, where a child is perceived as one who has lost his childhood, and his years of fruitful education and moral development.40 These images depict these children as not just perpetrators or victims, but as hardened killers who can never go home. A combination of these effects may jeopardize the childs future altogether. Given, that society does not accept them, and that they suffered indescribable atrocities, many of these children take to terrorism and substance abuse.

37 38 39 40

Jeffrey Rosen, The Brain on the Stand: How neuroscience is transforming the legal system, THE NEW YORK TIMES MAGAZINE, March ll, 2007, at 48, 51. Cohn, The Protection of Children in Peacemaking and Peacekeeping Processes, 12 Harvard Human Rights Journal 129 at 135. Coalition, Returning Home Childrens perspectives on reintegration. A case study of children abducted by the Lords Resistance Army in Teso, eastern Uganda, February 2008. Dr. Michael Wessells, Psychosocial Issues in Reintegrating Child Soldiers 37 Cornell International Law Journal 513 (2004)

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protection afforded under international law

A plethora of laws govern the issue of child soldiers. While one set of articles set standards in relation to the recruitment of young persons, some other instruments govern the criminalization of certain actions in relation to child soldiers. These instruments make it an obligation for states to comply with the international standards, and any deviation therein would invoke the principles of state responsibility. Nevertheless, there shall be no imputation of criminal responsibility, as there is no provision under international law to attribute criminal responsibility to a state. It will only be individuals who shall be responsible criminally.41 The laws that govern states in this regard are elaborated upon herein.

The Additional Protocols to The Four Geneva Conventions On The Rights Of the Child, 1977
The Convention has been ratied by nearly all governments, with the exception of the United States and Somalia. The convention denes the term child as any person under the age of eighteen. This yardstick, however, pertains to peacetime. In situations of armed conict, the convention set a lower age of fteen as the minimum age for recruitment and participants in armed conicts. Article 77(2) of the Additional Protocol I of 1997 to the four Geneva Conventions of 1949 forms the crux of the protocols in the light of the issue at hand. It states that state parties should ensure that children, in specic, persons under the age of 15 are not allowed to be direct participants in the war. The mention of the word direct in the article indicates that there is no prohibition of the indirect participation of children in wars.42 Protocol II, specically A.4(3) applies to non-international armed conict. It explicitly prohibits all kinds of participation, direct and indirect. Protocol II does not allow any exceptions to the prescribed code of conduct. Recruitment restrictions are not conned only to the state, but also to non-state actors that constitute armed forces in their own right.43 While it maybe said that these protocols represent greater progress in developing international standards that proscribe the use of children in warfare, the protocols have not been universally ratied, and there are inconsistencies in application and disparities in the levels of implementation.

41

Steven Freeland, Human Rights, the Environment and Conict- Addressing Crimes Against the Environment (2005) 2 SUR International Journal on Human Rights 112, 116-119. G.V. Bueren, The International Law on the Rights of the Child, p.333 Anne Sheppard, Child Soldiers: Is the optional protocol evidence of an emerging straight-18 consensus? (2000) 8 International Journal of Childrens Rights, 41.

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The UN Convention on the Rights of the Child, 1989

The point in consideration being the issue of Child Soldiers, the relevant provision under this convention, A.38, shall be the subject of study. A.38 provides that State parties should undertake to respect, and ensure respect, for rules of international humanitarian law applicable in armed conicts which are relevant to the child. It elaborates that a child below the age of 15 cannot be recruited for active warfare. This provision contradicts A.1 of this convention, which denes a child to be a person below the age of 18 years, except under specic laws where majority is attained earlier. It is an unacceptable anomaly that a multitude of provisions under the Convention apply to children below the age of 18, while this one provision caters to children below 15. Another weakness of the provisions of this convention is that it does not deal the recruitment and participation of children in non-state armed groups, as only state parties are bound to respect the convention.

The African Charter

Africa has its own Charter on Rights and Welfare of African child, 1990, which stands alone as the only regional treaty in the world that addresses the issue of child soldiers. It was adopted by the Organization of African Unity (OAU) in 1990 and came into force in November 1999. The charter extends protection to children who were the victims of international and internal armed conict and to children who are victims of other lower levels of violence. One of the loopholes of the charter is that there are no provisions regulating the rebel groups that recruit children to the greatest extent.

The Rome Statute of the International Criminal Court (1998)

The Rome Statute covers a wide range of crimes within its gamut, classifying them as genocide, war crimes and generally crimes against humanity. It considers the act of recruiting child soldiers as a war crime. According to Article 8 of the Rome Statute of the International Criminal Court, conscripting or enlisting children under the age of fteen years into the national armed forces or using them to participate actively in hostilities is tantamount to a war crime when committed in either an international or non- international armed conict. The prescribed age is fteen, and the provision does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of similar nature which do not come within the connes of the phrase armed conict. The courts jurisdiction over the issue of child soldiers is extremely signicant, as was evident in the trial of Thomas Lubanga that began in 2009.

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International Labor Law (ILO Worst Forms Of Child Labor) Convention No. 182, 1999
The International Labour Organization has typecast the recruitment of children as one of the Worst Forms of Labour. The Convention denes the term child as one below the age of eighteen, under A.3. A.3(a) mentions that among others, the worst forms of child labour include forced or compulsory recruitment of children for use in armed conict. State Parties are obliged to prohibit the forced or compulsory recruitment of children under eighteen in armed conict. This was the rst time that an eighteen year minimum age limit was set in an international convention in relation to child-soldiering. This set a precedential example for the subsequent Optional Protocol to the Convention on the Rights of the Child, 2000. It is also the rst specic legal recognition of child soldiering as a form of child labour.

UN Security Council 1314

The Security Council, in 1999, adopted this resolution, stressing on the prohibition of child soldiering. It considered the declaration of regional initiatives towards full implementation of the prohibition of the use of child soldiers in violation of international law. It condemned the deliberate targeting of children in situations of armed conict, and expressed concerns over the long-term implications of this on durable peace, security and development. The Resolution called upon the State Parties to respect international law with particular regard to the issue of child soldiering.

UN Security Council Resolution 1261

This resolution, adopted in 1999, is a signicant step towards the eradication of the phenomenon of child soldiering, and also seeks to minimize the other adverse effects of conict on children. States are called upon by this resolution, to intensify their efforts to ensure the eradication of conscription of children as soldiers. Through this resolution, the Security Council condemned the forced displacement of children, the targeting of children in armed conict, sexual violence against children, and even the abduction, recruitment of and use of children as soldiers. This stands out as the rst Resolution devoted to a thematic incident, thereby depicting the commitment of the UN Security Council towards the protection of children from the ill effects of armed conict.

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Optional Protocol to the UN Convention on the Rights of the Child on the Involvement of Children in Armed Conict, 2000. 44
The Optional Protocol represents epoch-making progress over the provisions of the UN Convention on the Rights of the Child on recruiting children as soldiers. Article 1 mandates that all State Parties have an obligation to ensure that members of their armed forces below the age of 18 do not take a direct part in hostilities. The explicit mention of the word direct indicates that there is room for indirect participation. Article 2 species that State Parties ought to ensure that persons who have not attained the age of eighteen are not to be compulsorily recruited into their armed forces. Article 3(1) makes a reference to A. 38 of the Convention on the Rights of the Child, and delineates that State Parties should raise the minimum age for voluntary recruitment of persons into their national armed forces from that set out in Article 28(3) of the UN Convention on the Rights of the Child, taking account of the principles contained in that Article and recognizing that persons under 18 are entitled to special protection under the Convention.45 Article 3 (3) imposes strict requirements upon State Parties that permit voluntary recruitment into their national armed forces under the age of 18. In the course of such recruitments into the national armed forces, a State Party is bound by certain outer limits that function as safeguards, so as to ensure that children are not subject to conscription against their will. Three important safeguards that must be maintained on part of such a State Party, as a minimum, are: Such recruitment is voluntary Such recruitment is with the informed consent of the persons parents or legal guardians Such persons provide reliable proof of age prior to the acceptance into the national military service.

A few loopholes that glare the reader in the eye throughout the Protocol are worthy of mention. There is no express prohibition of the participation of children in indirect conict, and military schools are exempted from complying with the minimum age requirement. There is no uniform age for voluntary recruitment, either. 46 With as many as seven international instruments, few State Parties have been inspired into action. Positive developments were seen in Colombia and the Democratic Republic of Congo. Colombia enacted a piece of legislation in 1999, seeking to raise the minimum age for recruitment into the government armed forces, to eighteen years. Following this, around 980 soldiers under the age of 18 were discharged.47 Sierra Leone continued with the recruitment of children, but subsequent to the Security Council Resolution 1315, a Special Court was constituted. Noteworthy developments that focus on the use of children as soldiers include the Maputo Declaration of 1999, the Montevideo Declaration of 1999, the Berlin Declaration, 1999 and the Kathmandu declaration, 1999.

44

Adopted and Opened for signature, ratication and accession by the General Assembly Resolution, A/RES/54/263 of 25th May, 2000 and entered into force on 12th February 2002. Wasantha Seneviratne, International Legal Standards Applicable to Child Soldiers (2003) 15 Sri Lanka Journal of International Law 39, 43 A. Sheppard, Child Soldiers: Is the Optional Protocol evidence of an emerging straight-18 consensus? p.62. Childrens Rights, Human Rights World Report 2001 <http://hrw.org/wr2k1/children/hild2.html>

45 46 47

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criminalizing v. rehabilitation
One issue that kicks up much consternation is the question as to whether a child soldier should be criminally responsible for their acts under international or domestic law, as the case may be. There are plenty of excuses in this regard, such as, threats and intimidation, or drug and substance abuse, or even a simple lack of understanding. But, what about those situations where a child carries out these acts where no such extenuating circumstances are present? Would it be acceptable to purport that these children be let off the hook and go un-punished merely because of their age? A cornucopia of factors- cultural, societal and moral in nature- ought to go into the analysis of this question. There are general perceptions that if a child is able to kill, to discriminate between two groups, and is able to carry out murder, torture and rape, the child shouldnt be considered any different from an adult, and thus, the punishment ought to be the same.48 Regional and international law do not reect the same view in relation to the responsibility of children for their actions. The Rome Statute has deprived the International Criminal Court of jurisdictional rights over any person below the age of eighteen. The Special Court for Sierra Leone approaches the same question in a different way. Article 7 of the Sierra Leone Statute, the instrument creating the court, provides it with jurisdictional rights over persons of or above fteen years of age, at the time of committing the crime. The provisions allow for a standard of care for child offenders as is appropriate in their specic circumstances. While the fundamental standards set by international law are not compromised upon, there is still a mechanism to sympathetically deal with the child perpetrator, on a fact andcircumstance based case analysis, as explained under Article 19(2).49

required is not deterrent punishment, but rehabilitative punishment.

48

Chen Reis, Trying the Future, Avenging the Past: The Implications of Prosecuting Children for Participating in Internal Armed Conict (1997) 28 Human Rights Law Review 629, 634-35. Steven Freeland, Child Soldiers and International Crimes (2005) 3 NZJPIL 307, 325

49

What is

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What is required is not deterrent punishment, but rehabilitative punishment. Putting a child into prison would only augment his criminal tendencies, or create such tendencies if they werent already present. This would, psychologically speaking, pave the way for terrorism and militancy. Child soldiers should be rehabilitated, and then be allowed to blend with normal society. Unless children are disarmed, demobilized and rehabilitated, they may be recruited again into armed groups. The reintegration of children requires dedicated and long-term support. Many such programs falter merely because of awed design, insucient monitoring or a lack of resources.50 A mere change in legislation is far from sucient. Governments must develop better schemes to cater to the special needs of former child soldiers. They should be provided health care, education, life skills, psychosocial recovery and vocational training. Peaceful settlement of armed conicts would reduce the use of child soldiers altogether. The rehabilitation and reintegration of children must be made a part of the program in any peace process. The UN Secretary General released a Statement in February 2000, on the Role of the United Nations Peacekeeping in Disarmament, Demobilization and Reintegration, which was a step towards the reintegration of children during peacetime.

50

Final Report, International Conference on War-Affected Children, Winnipeg, Canada, September 2000

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conclusion
War affects children in the most heinous and unthinkable ways. Unfortunately, law alone is never effective in setting the situation right. It is essential to develop practical, sustainable and successful modes and processes to implement the law as rapidly as possible. The Committee on the Rights of the Child is signicant for better enforcement of the provisions embodied in the law. It is necessary for the Committee to play a more proactive role in curbing Child Soldiering, and instruct states to include information on these issues in their country reports. The recruitment of children into warfare has grave consequences. It is necessary to protect and assist children, for, as it is often said- Children of today are Citizens of tomorrow. States must take it upon themselves to be bound by the conventions devoted to protecting children from the hazards of conscription, despite the soft nature of international law. It is in the practical interest of states to do so, too, for in the process, future instances of terrorism and poverty and criminal tendencies can be curbed to a large extent. There must be no loophole in the law, to justify the recruitment of, or targeting of, or violence against any child. An effective international monitoring network, comprising of inter-governmental and non-governmental entities is a must. The time has come, to move from preaching to practicing, and to translate words into tangible action. International awareness on the issue is also a necessity to achieve this. The international community should mobilize a movement of political pressure, such as naming, shaming and refusing support for armed groups that continue to abuse the child.51 It must be a top priority for states world over, to protect their children, for it is the seeds you sow that you reap.

The time has come, to move from preaching to practicing...

51

The Report of the Special Representative of the United Nations Secretary General for Children in Armed Conict, A/53/482

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