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Child Soldiers – A Brief Legal Survey
The concept of “child soldiers”—the involvement of children (through recruitment or otherwise) in the violence and brutality of armed conflict—is abhorrent to most adults who consider the matter. This is demonstrated by the fact that there are a number of international conventions and other mechanisms that condemn the practice and that create an international framework to combat it.
Who are child soldiers? The United Nations Convention on the Rights of the Child (see below) defines a child as a person under the age of eighteen. However, for the purpose of limiting recruitment in the armed forces of a State Party to the Convention, and for the requirement that States Parties “take all realistic measures to ensure” that children “do not participate directly in hostilities”, the Convention. uses the lower age of fifteen years (Article 38).
The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (see below) uses the age of eighteen to condemn the recruitment of children, or their use in hostilities, by armed groups that are separate of the armed forces of a State (Article 4).
The Rome Statute of the International Criminal Court (see below) includes, within the definition of “war crimes”, the crime of conscription or recruitment of children, or using them to participate actively in hostilities, by either national armed forces or any armed group ( Articles 8(2)(b)(xxvi) and 8(2)(e)(vii)). For these purposes, a child is a person under the age of fifteen.
Where are child soldiers used? Child soldiers can be found both in government armed forces and in armed groups that oppose the central governments of their countries. The Coalition to End the Use of Child Soldiers, which was launched in 1998 by several groups including Amnesty International and Human Rights Watch, reports that the majority of children under the age of 18 who are involved in conflict are associated with armed forces. groups .
The Coalition reports that Africa has the largest number of child soldiers. Children are used in armed conflict in countries such as Burundi, Central African Republic, Chad, Democratic Republic of Congo, Somalia and Sudan. It also reports child soldiers in various Asian countries, such as Myanmar and Indonesia, in the Middle East and in Latin America.
As the Coalition campaigns for a complete ban on all recruitment and use for military purposes of persons under the age of 18, its website notes that the United States, and such other Western countries as Austria, Australia, France, Germany, the United Kingdom and Canada, there are countries that recruit children (ie people under the age of 18) in their armies.
How are child soldiers used? Most of the publicity surrounding child soldiers has focused on their use in non-Western countries by both armed groups and government armed forces. Such advertising makes it clear that child soldiers are used in these countries to fight and kill, participating directly in combat. They can also be used to rob and destroy property; to place mines and explosives; spying, spying and acting as decoys. Girls are widely used for sexual purposes and for household chores, as well as for these other purposes.
Important International Conventions: The United Nations Convention on the Rights of the Child entered into force in September 1990. As noted above, Article 38 of that Convention deals with the issue of children in the context of a country’s armed forces and hostilities in general. In paragraph 4, the Article states that, “State Parties take all feasible measures to ensure protection and care of children who are affected by armed conflict”.
The Optional Protocol to the Convention on the involvement of children in armed conflict entered into force in 2002. It requires States Parties to “take all practicable measures” to ensure that members of their armed forces who are under the age of 18 “do not take direct part in hostilities” (Article 1) and requires that children under that age not be compulsorily recruited (Article 2). (Voluntary recruitment of children between the ages of 15 and 18 in the armed forces of a state is not prohibited by the Convention or the Protocol.)
Article 3 of the Optional Protocol requires that States Parties that allow under-18 voluntary recruitment must maintain certain safeguards (including ensuring the informed consent of the child’s parents or legal guardians). States Parties are also required to take “all feasible measures” to prevent the recruitment and use by armed groups of children under the age of 18, including the adoption of legal measures necessary “to prohibit and criminalize such practices”.
Convention No. 182 of the International Labor Organization on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor entered into force in November 2000. The Convention defines a child as a person under the age of 18 years. Ratifying States are required to take urgent measures to ensure the prohibition and elimination of the worst forms of child labour, which include “forced or compulsory recruitment of children for use in armed forces”.
Enforcement: A body of independent experts, the Committee on the Rights of the Child, was established further to Article 43 of the Convention on the Rights of the Child. The Committee monitors the implementation of the Convention and the Optional Protocol on the involvement of children in armed conflict. States Parties must submit regular reports to the Committee.
The Special Court for Sierra Leone (which was established by the United Nations and the Sierra Leonean government in 2002) gave the first judgments of an international court for the crime of recruitment and use of child soldiers.
The Rome Statute of the International Criminal Court (ICC) entered into force on July 1, 2002. The first trial before the ICC, which began, after long delays, on January 26, 2009, deals with the war crimes of conscription and recruitment of a child soldiers under the age of 15 and use them to actively participate in an armed conflict. This trial, described as an important event in the development of international law, should bring greater public attention to the issue of child soldiers.
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