Child soldiers in international law: The legal regulation of children's participation in hostilities

Netherlands International Law Review

Volumn 47, Issue 1, 2000, Pages 27-52

  Happold, Matthew ^a  

^a UNIVERSITY OF SUSSEX   (United Kingdom)

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[No Author keywords available]

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EID: 84902985060     PISSN: 0165070X     EISSN: 17416191     Source Type: Journal    
DOI: 10.1017/S0165070X00000747     Document Type: Review

References (71)

1. R. Brett and M. McCallin, Children: The Invisible Soldiers (Stockholm, Ridda Barnen 1996) p. 23.
2. M. McCallin, Children: The Invisible Soldiers (Stockholm, Ridda Barnen 1996) Ibid., at p. 28.
3. In a number of articles an age limit of fifteen is given. See Arts. 14, 23, 24, 38 and 50.
4. See Art. 1 of the CRC, which states that 'For the purposes of the present Convention a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.'
5. Contrary to what is stated in Art 1(3) of AP I and Art. 1(1) of AP II.
6. For a discussion of the circumstances of the negotiations, see G. Best, War and Law Since 1945 (Oxford, Clarendon Press 1994) chs. 4 and 5.
7. See Prosecutor v. Tadic (Merits), 36 ILM (1997) p. 908 (ICTY) For a civilian to have the status of a 'protected person' under GC IV, he or she must be in the hands of a party to the conflict or an occupying power of which he or she is not a national.
8. J. Pictet, ed., Commentary on the Geneva Conventions of 12 August 1949, Vol. IV (Geneva, International Committee of the Red Cross 1955) p. 46.
9. Regulations Respecting the Laws and Customs of War on Land annexed to the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land.
10. Art. 45 of the Hague Regulations.
11. For an earlier description of the background to the adoption of the provisions concerning child soldiers in the two APs, see H. Mann, 'International Law and the Child Soldier', 36 ICLQ (1987) p. 32.
12. See OR XV, p. 465; CDDH/407/Rev. 1, para. 63.
13. See Art. 1(3) of AP I.
14. Under Art. 1(4), however, the Protocol is also stated to apply in conflicts 'in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.' This provision has been the subject of much controversy. It is, however, no longer of much practical significance.
15. Draft Art. 68(2). See OR I, Part Three, for the text of the draft Additional Protocol.
16. After amendment by the Working Group, the article was adopted by consensus, firstly by Committee III, and then by the Conference in plenary session; see OR XV, p. 218; CDDH/III/SR.59 and OR IV, p. 251; CDDH/SR43.
17. See the Conference's Rules of Procedure at OR II, p. 15; CDDH/2/Rev.3.
18. OR XV, p. 517; CDDH/III/391. The report of Committee III's 4th session (OR XV, p. 445; CDDH/407/Rev.1), with some minor modifications, adopts the text of the rapporteur's report.
19. OR XV, p. 521; CDDH/III/391.
20. Oxford English Dictionary, 2nd edn. (Oxford, Clarendon Press 1989).
21. Statements in such or similar terms were made by Algeria, Belgium, Canada, Italy, the Netherlands and Spain, See L.S. Boudreault, 'Les reserves apportees au Protocole de Geneve sur le droit humanitaire', 6 RQDI (1989-1990) p. 105. See also Part (b) of the Schedule to the Geneva Conventions Act (First Protocol) Order (SI 1998 No. 1754).
22. In most cases this must be right. Governments can legislate as to the minimum age of recruitment into a state's armed forces and, having control, over the armed forces, can ensure compliance with the legislation. It does not, however, cover cases when children under fifteen lie about their age. 70 Tnvemier nn rit n. 17 at n t d7.
23. Art. 51 deals with the protection of the civilian population against the effects of hostilities. Art. 51(3) states that '[c]ivilians shall enjoy the protection afforded by this Section, unless and until and for such time as they take a direct part in hostilities.'
24. F. Kalshoven, Constraints on the Waging of War (Geneva, International Committee of the Red Cross 1987) p. 91.
25. See Art. 46 of API.
26. As Cohn and Goodwin-Gill state: 'A Zimbabwean officer who fought against the Smith regime explained it simply: children can move freely and are not instantly suspected of spying or supplying' (I. Cohn and G.S. Goodwin-Gill, Child Soldiers: The Role of Children in Armed Conflicts (Oxford, Clarendon Press 1994) p. 96).
27. Art. 51(2) and (3) of AP I.
28. OR XV, p. 220; CDDH/III/SR.59. The comment was made during the explanation of votes, after the adoption of the article by Committee III.
29. International Children's Rights Monitor (1983) p. 5, quoted in Cohn and Goodwin-Gill, op. cit. n. 33, at p. 8
30. See n. 27 above.
31. Under Art. 102 of AP I, the Arabic, Chinese, English, French, Russian and Spanish texts of the Protocol are all equally authentic. I am unable to comment on the Arabic, Chinese, Russian or Spanish texts. The equivalent word in the French version of the text, however, is recruter, which can apply to both forcible and voluntary recruitment and also (as with its English equivalent) refer to the recruitment of employees in civilian life.
32. OR III, p. 301; CDDH/III/325; Sandoz, Swinarski and Zimmermann, eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, International Committee of the Red Cross 1987) p. 901.
33. Or, at least, internal conflicts above a certain level of intensity: see Art. 1(1) of AP II.
34. OR XV, pp. 517 et seq.; CDDH/IW407/Rev.1. 46. OR XV, pp. 445 et seq.; CDDH/III/407/Rev.1. 47. OR XV, p. 524; CDDH/III/407/Rev.1.
35. OR XV, p. 508; CDDH/III/407/Rev.1. 49. OR IV, p. 20; CDDH/427.
36. OR IV, pp. 141 et seq.; CDDH/SR.53.
37. G.H. Aldrich, 'Comments' on P. Tavernier's 'Combatants and Non-Combatants', in Dekker and Post, op. cit. n. 27, at p. 149.
38. As of 18 May 1999. See the UN Treaty Collection at http://www.un.org /Depts/Treaty/.
39. For discussion of the negotiation of the CRC, see S. Detrick, ed., The United Nations Convention on the Rights of the Child: A Guide to the Travaux Preparatoires' (Dordrecht, Nijhoff 1992) and F. Krill, 'The Protection of Children in Armed Conflict', in M. Freeman and P. Veerman, eds., The Ideologies of Children's Rights (Dordrecht, Nijhoff 1992).
40. UN Doc. FJCN.4/1988/28, p. 26.
41. As of 20 May 1999 there were 152 States Parties to AP I and 144 States Parties to AP II. Seethe ICRC's IHL Database at http://www.icrc.org /unicc/ihl eng.nsf/wed?OpenNavigator>. There are 191 States Parties to the CRC, see p. 41 above.
42. See Nicaragua v. USA (Merits), ICJ Rep. (1986) p. 14 at p. 96.
43. For full discussion of these issues see R.R. Baxter, 'Multilateral Treaties as Evidence of Customary International Law', 41 BYBIL (1965-1966) p. 275 and T. Meron, 'The Geneva Conventions as Customary Law', 81 AJIL (1987) p. 348.
44. See W.A. Schabas, 'Reservations to the Convention on the Rights of the Child', 18 HRQ (1996) p. 472 and J. Kuper, 'Reservations, Declarations and Objections to the 1989 Convention on the Rights of the Child', in J.P. Gardner, ed., Human Rights as General Norms and a State's Right to Opt Out (London, B.I.I.C.L. 1997).
45. See Art 51(2) of the CRC, which states that '[a] reservation incompatible with the object and purpose of the present Convention shall not be permitted.'
46. See the objections made by Austria, Denmark, Finland, Germany, Ireland, the Netherlands, Norway, Portugal, Slovakia and Sweden.
47. Seethe declarations made by Andorra, Argentina, Austria, Colombia, Ecuador (upon signature), Germany, the Netherlands, Spain and Uruguay.
48. It is well established that municipal laws can constitute state practice. See M. Akehurst, 'Custom as a Source of International Law', 47 BYBIL (1974-1975) p. 1 at pp. 8-10.
49. Libya has ratified the CRC and is a party to both APs.
50. It appears that New Zealand raised its recruitment age to seventeen in 1996, see Children of War, No. 1/98, March 1998.
51. Brett and McCallin's survey makes clear that a number of states have recruited children aged under fifteen into their armed forces despite their national laws. These include Angola (the lowest age recorded being 8), Bhutan (11), Burma (10), Cambodia (8), Guatemala (12), Honduras (13), Paraguay (14) and Peru (11). It is suggested, however, that the examples given are insufficient to detract from the generality of state legislative practice.
52. Seen. 58 above. The number of parties to the two APs has risen significantly in recent years. On 20 November 1989 (the date of the UN General Assembly's adoption of the CRC) 89 states were party to AP I and 81 party to AP II.
53. states and 11' national liberation movements' participated in the Diplomatic Conference. See OR II, p. 25.
54. See OR XV, p. 218; CDDH/III/SR.59 and OR IV, p. 251; CDDH/SR.43.
55. See C. Greenwood, 'Customary Law Status of the 1977 Geneva Protocols', in A.J.M. Delissen and G.J. Tanja, Humanitarian Law of Armed Conflict (Dordrecht, Nijhoff 1991).
56. See n. 37 above.
57. According to Judge Baxter these are the two ways in which a multilateral treaty maybe regarded as declaratory of customary international law. See Baxter, op. cit. n. 61, at p. 277.
58. See H. Caminos and M.R. Molitor, 'Progressive Development of International Law and the Package Deal', 79 AJIL (1985) p. 871.
59. Meron, loc. cit. n. 61, at p. 367.
60. It further appears that the rule crystallised sometime in the late 1970s. Plainly this has implications in relation to which states can claim to have persistent objector status.
61. Added weight is given to this conclusion by the inclusion in the definition of war crimes in the Rome Statute of the International Criminal Court (UN Doc. A/CONF.183/9) of the conscription of children under fifteen into armed forces or groups or their use as active participants in hostilities (see Arts. 8(bxxxvi) and (e)(vii)).
62. UN Doc. E/CNA/1994/91.
63. CHR Res. 1994/91.
64. Children of War, No. 1/98, March 1998.
65. Children of War, No. 1/99, March 1999.
66. See 'Short faces battle to stop Forces taking under-18s', The Times, 14 January 1998.
67. The US armed forces recruit seventeen year old high school graduates upon graduation rather than waiting for their eighteen birthday. Such recruits total less than one half of one percent of the US military and almost all of them reach eighteen before completing their training. See K. Roth, 'Sidelined on Human Rights', 77 Foreign Affairs (March-April 1998) p. 2.
68. For a discussion of this issue see M. Ignatieff, The Warrior's Honour. Ethnic War and the Modern Conscience (London, Chatto & Windus 1998).
69. J. Ryle, 'Why must a child be forced to kill?', The Guardian, 25 January 1999.
70. As of 10 February 2000 6 states have ratified the Convention (Botswana, Finland, Ireland, Malawi, the Seychelles and Slovakia). See ILOLEX at http://ilolex.ilo.c:1567/scripts/ratifce.pl?C 182>.
71. Available at http://www.unchr.ch/htinVmenu2/6/protDcoichild.htm>.