Child Soldiers – A Brief Legal Survey

The concept of a ‘child soldier’ – 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 borne out by the fact that there are a number of international conventions and other mechanisms which condemn the practice and which 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 below the age of eighteen years. However, for the purpose of restricting recruitment into the armed forces of a State Party to the Convention, and for the requirement that States Parties “take all feasible measures to ensure” that children “do not take a direct part 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 years to condemn the recruitment of children, or their use in hostilities, by armed groups that are distinct from 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 conscripting or enlisting 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 below the age of fifteen years.

Where are child soldiers used? Child soldiers may be found both in government armed forces and in armed groups which oppose the central governments of their countries. The Coalition to Stop 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 years, who are involved in conflict, are associated with armed groups.

The Coalition reports that Africa has the largest number of child soldiers. Children are being 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.

Because the Coalition campaigns for a complete prohibition of all recruitment and use for military purposes of persons under the higher age of 18 years, its web site notes that the United States, and such other western countries as Austria, Australia, France, Germany, the United kingdom and Canada, are countries which recruit children (that is, persons under the age of 18) into their armies.

How are child soldiers used? Most publicity surrounding child soldiers has focused on their use in non-western countries by both armed groups and government armed forces. Such publicity makes it clear that child soldiers are used in these countries to fight and kill, participating directly in combat. They may also be used to loot and destroy property; to lay mines and explosives; to scout, spy and act as decoys. Girls are widely reported to be used for sexual purposes and for domestic tasks, 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 of hostilities generally. In paragraph 4, the Article states that, “States Parties shall 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 that States Parties “take all feasible measures” to ensure that members of their armed forces who are under the age of 18 “do not take a 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 into a State’s armed forces is not banned by the Convention or the Protocol.)

Article 3 of the Optional Protocol requires that States Parties that permit 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 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”.

The International Labour Organization Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour came 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 secure the prohibition and elimination of the worst forms of child labour, among which are included “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 Leone government in 2002) handed down the first convictions by an international tribunal 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 started, after long delays, on January 26, 2009, deals with the war crimes of conscripting and enlisting child soldiers under the age of 15 years and of using them to participate actively in armed conflict. This trial, described as a landmark event in the development of international law, should bring increased public attention to the issue of child soldiers.

How to Define Legal Risk

What is risk?
The informal notion of risk as the chance that something bad might happen is not a bad place to start defining risk. Better management requires a better definition though. We need to break risk into distinct parts that are measurable.

Risk is the probability of loss given an event
Mathematical precision is possible and desirable in some cases. Large financial firms, for example, have sufficient data about operational losses that they can build predictive models based on experience to measure risk. They are the exception.

To illustrate how we might define risk in statistical terms take the formula:

R = p * LGE

In this case R stands for risk, p for Probability of Event expressed as a percentage, and LGE stands for Loss Given Event. LGE is a measurement of the financial harm from an event. LGE can include non-financial losses, but they must yield to measurement for the formula to quantify risk.

Most organizations do not have the data or resources (or confidence in) abstract models of risk. Organizations without statistically valid loss data can still measure and manage risk, particularly legal risk, by simply moving a few steps toward quantification, away from the “bad stuff” notion.

Risk under ISO 31000 offers an alternative approach
The traditional approach to risk suffers from another important deficiency. It focuses only on losses, presumably because the origins of risk models are in insurance (how much to charge for protection from “bad stuff”?) and credit risk (what happens if the borrower doesn’t pay?).

In 2009, the International Organization for Standardization (ISO) released a fresh approach to risk and risk management: ISO 31000:2009 Risk management – Principles and guidelines.

ISO 31000 provides a new definition of risk that is especially useful for measuring legal risk. Risk is the “effect of uncertainty on objectives.” Risk management then starts with identifying uncertainty and then evaluating effects (positive and negative).

Legal risk is difficult to measure. However, with the help of the ISO 31000 definition of risk, we can express legal uncertainties and then measure them and their potential effects. We may not achieve mathematical precision, but we can achieve better management.

Four types of legal risk
There are four broad categories of legal risk, or four areas of legal uncertainty: structural, regulatory, litigation, and contractual.

Litigation risk
Litigation is the most discussed legal risk in organizations. Litigation is often public and always distracting. The range of events that cause litigation is broad: employee misconduct, accidents, product liability and so on. The list can seem endless.

When management meets with the lawyer to discuss “What is the chance we will lose this case and what are the likely damages,” it is too late for risk management. Prior to litigation, we need to identify the areas of uncertainty that affect our objectives. Risk management is not fortune telling. Instead, we want to narrow the possible outcomes from particular events.

For example, a court case in an influential state invalidates a fee charged to consumers as an undisclosed interest charge subject to compensatory and punitive damages. Our organization charges a similar fee. However, the fee is charged a certain number of times and in known states. The statute in question carries known penalties. We have the building blocks to measure and manage legal risk from similar litigation.

Organizations invest significant sums to prevent litigation. It is helpful to weigh the cost of the risk management against the possible outcomes.

Contract risk

Contract risk is the most pernicious and difficult to track among legal risks. The traditional approach to contract risk focuses on a breach of contract by one party and the extra-contractual liabilities that might arise. This approach treats each contract individually and in isolation.

Most organizations focus their contract risk management strategy on drafting effective agreements. Quality contract drafting is necessary, but not sufficient to manage contract risk. There are cases where one contract can create significant risk, such as:

  • An exceptional share of revenue is tied to one contract,
  • Procurement or service contracts for critical components allow for disruption or price escalation, and
  • The counterparty does not indemnify us for damages that carry exceptional consequences like unpaid taxes and environmental problems.

In most cases, however, individual contracts often do not, on their own, have the gravity of litigation. The substantive, common and difficult to track risk is the uncertainty that arises from the contract portfolio in its entirety. Systemic under-management of contracts creates expense leakage and missed revenue opportunities.

Regulatory risk

The growth of the administrative branch of government is daunting to most business leaders. Regulatory risk represents the uncertainty of the consequences of an agency’s action.

A few examples will illustrate the point:

  • A transportation company applies for a license to expand its operations to a new hub. Uncertainty regarding the agency’s decision as well as the scope of the decision create risk. Under ISO 31000 the agency’s decision can have positive effects, but the uncertainty creates risk.
  • A product manufacturer and distributor offers a novel product warranty to generate additional revenue. State insurance commissioners can determine that the warranty should be classified as insurance. They can then impose fines, require insurance applications, impose conditions on the product and pursue civil remedies depending on the state statue.

Identification of regulatory risks is challenging, but the uncertainty about the effects is measurable. Regulations grant powers to the agencies charged with enforcement of the statute and regulations. Penalties range from fines to administrative orders.

Structural risk

Structural legal risk is rare for most organizations. Structural legal risks arise from uncertainty about the underpinnings of a particular industry, technology or method of doing business. When the airline industry was regulated, for example, there was a structural legal risk that the industry would be deregulated.

The scope of a structural legal risk is broad and it usually alters the competitive landscape.

Structural legal risks can arise from sources other than legislation. Antitrust litigation can significantly alter pricing in an industry or key business relationships. Consumer protection enforcement actions can also change the fundamental assumptions of an industry, but rendering a marketing practice (multi-level marketing, for example) unacceptable.

Structural legal risk is also a good example of the ISO 31000 definition of risk. We can be uncertain about the change from a regulated to a deregulated industry. The potential effects are varied, some are positive; some are negative. A structural change can benefit one organization while harming another.

Effective risk identification

To identify risks reliably requires a workable definition of risk. The ISO 31000 definition of risk usefully includes “positive risks.” This is right lens for identifying legal risks and, ultimately, managing legal risks.

Risk in an information problem. We can manage risk when we understand the scope and components of our uncertainty. The approach to risk can guide the organization to develop a risk management strategy.

Divorce – Understanding Child Joint and Legal Custody Laws

Both parties are given the right to make decisions about the child’s life and well-being. Joint physical custody is a bit more uncommon and involves the child living with both parents for an equal amount of time.

Fighting over child custody often requires the legal assistance of an experienced lawyer. There are various kinds of arrangements for custody and parents will need to decide which is the best fit for both parties. Assistance in these legal areas is really important with all the new laws and procedures causing confusion for either party. This is not mentioning the emotional toll that divorce takes on not only the two partners, but their children as well.

Legal custody and physical custody are the kind of custody’s that need to be solved between divorcing couples. It is important to understand the difference between joint and sole custody. Physical custody refers to who the child will live with permanently. Legal custody refers to making decisions about the child’s life such as healthcare, education, religion, etc.

Joint custody means that both parents share custody. Joint legal custody is common, as both parties are given the right to make decisions about the child’s life and well-being. Joint physical custody is a bit more uncommon and involves the child living with both parents for an equal amount of time each week or each month.

In sole legal custody, only one parent retains the right to make decisions about the child’s life and well-being. This is uncommon, although in cases in which one parent is deemed unfit to care for or make decisions for the child, sole legal custody may be granted to the other parent.

Sole physical custody is more common than joint physical custody. This is when the child lives permanently with only one parent, but the non-custodial parent is granted visitation rights. Of course, in cases in which the non-custodial parent is considered to be harmful to the child or it is decided that it is in the child’s best interest not to have contact with the non-custodial parent, visitation may be prohibited.

A child custody attorney is the most desired resource for more information about physical and legal custody and which types (joint or sole) are best for your specific case. Child support is another problem that should be discussed with an attorney. This is often a very serious matter, especially in cases in which the non-custodial parent does not make their payments. In situation like these, legal measures such as salary garnishments and suspension of driver’s license may be taken to force payment or as a penalty.