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.