The Islamabad Center for Legal Studies Islamabad – Pakistan Participation of Children in Armed Conflicts Shaukat Hayat Chapter-3 Participation of Children in Armed Conflicts 3

The
Islamabad Center for Legal Studies
Islamabad – Pakistan

Participation
of Children in Armed Conflicts
Shaukat Hayat

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Chapter-3
Participation of Children in Armed Conflicts
3.1 Introduction:
Children are entitled to the same human rights and fundamental freedoms as all individuals, however, since they are defenseless human beings, children have been given special status and protection within the United Nations framework and in regional human rights treaties. These treaties create positive obligations of States to ensure the protection of children. Violations of children’s human rights by State actors are considered particularly grave. Children are recognized as human beings and the subjects of their own rights. A child is an individual, with rights and appropriate responsibilities for his or her age. Children are one of the weakest human beings especially they are more vulnerable to wars, exploitation, malnutrition, physical and psychological ill-treatment, trafficking etc.
3.2 Children’s Rights under International Law:
The first efforts at the international level for the recognition of Children’s rights were made by the League of Nations. The League of Nations established a special committee to deal with matters relating to the protection of children. Subsequently the League of Nations adopted conventions prohibiting the traffic in women and children in 1921. Similarly, the League of Nations adopted the Geneva Declaration of the Rights of the Child in 1924 which was another mentionable step towards the serious endeavours of the League of Nations for the protection of the rights of children.
The most important international instrument for the protection of children’s rights is the Declaration of the Rights of the Child, 1959 which was adopted by the General Assembly of the United Nations Organization. Ten principles of the Declaration uphold the right of the child to receive special protection, to be given opportunities and facilities to enable him to develop in a healthy and normal manner, to enjoy the benefits of social security, including adequate nutrition, housing, recreation and medical services, to receive education and to be protected against all forms of neglect, cruelty and exploitation.
The Universal Declaration of Human Rights of 1948 proclaimed a basic set of internationally recognized human rights, most of which were equally applicable to children and adults. In particular two provisions of the Universal Declaration of Human Rights of 1948 are specifically concerned with children. These provisions are, Article-25 (2), which says that “Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.” and Article-26, dealing with the right of children to education.
UN Convention on the Rights of the Child, 1989 is another remarkable International instrument that guarantees equal rights for children. The Convention is the most-signed human rights legislation in the world. The Convention has dealt with the children rights in detail. Articles 38 and 39 particularly deals with the rights of children during arm conflicts. Article-38 in this regards says:
“States shall take all feasible measures to ensure that children under 15 years old have no direct part in hostilities. No child below 15 shall be recruited into the armed forces. States shall also ensure the protection and care of children who are affected by armed conflict as described in relevant international law.”
In addition to above- mentioned international instruments, there are many other international and regional instruments containing provisions for the protection of children.
3.3 Definition of a Child under International Law:
Different International Instrument have defined the age of children. For instance Article-1(d) of the Supplementary Convention on Slavery of 1956 specifies the age of 18. Similarly Article-1 of the Convention on the Rights of the Child, 1989 fixes the age of a chilled eighteen years, “a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.” Article-2 of the African Charter on the Rights and Welfare of the Child 1990 a child is, “every human being below the age of 18 years.”
The Convention on the Rights of the Child provides that “a child is every human being to the age of 18 years, unless under the age of his State, he has attained his majority earlier.”
3.3 Definition of a Child Soldier:
The phrase, “Child soldier” is a phrase used for any girl or boy below the age of 18 who is recruited or used by an armed force or armed group, in any capacity. It refers not only to children who participate in fighting but also those used as cooks, porters, messengers, spies, suicide bombers, or for sexual exploitation.
Article-1 of the United Nations Convention on the Rights of the Child 1989 defines a child as any person under the age of 18. Article-38 of the Convention requires state parties to prevent anyone under the age of 15 from taking direct part in hostilities and to refrain from recruiting anyone under the age of 15 years.
The Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, 2007 defines the phrase, “Child soldier” in the following words:
“A child associated with an armed force or armed group’ refers to any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls, used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities.”
Articles 1-3 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 2000 sets 18 years as the minimum age for direct participation in hostilities and for compulsory recruitment by state armed forces. States may accept volunteers from the age of 16 years but must deposit a binding declaration at the time of ratification or accession, setting out their minimum voluntary recruitment age and outlining certain safeguards for such recruitment. The Optional Protocol also prohibits the recruitment or use in hostilities of children under the age of 18 years by non-state armed groups.
Additional Protocols to the Geneva Conventions of 1949 set 15 years as the minimum age for recruitment or use of children in armed conflict. This minimum standard applies to all parties, both governmental and non-governmental, in both international and internal armed conflict.
In this behalf Article 77 (2) of Additional Protocol-I, applicable to international armed conflicts, states:
“The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of 15 years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years the Parties to the conflict shall endeavour to give priority to those who are oldest.”
Article-4 (3) (c) of the Additional Protocol-II to the Geneva Conventions of 1949 applicable to non-international armed conflicts, in this regard states:
“Children who have not attained the age of 15 years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities.”
Article 22.2 of the African Charter on the Rights and Welfare of the Child, 1999 defines child as:
“Anyone below 18 years of age without exception. It also states that: “States Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child”.
4. Recruitment of Children in Armed Conflicts:
Those unfortunate child soldiers are used or forced sexual services, as combatants, messenger, porters and cooks.” International law provides for the protection and overall development of children and many conventions and treaties have been formulated to this effect. Many international organizations have been working towards the effective implementation of these norms, leading to the consolidation of child rights as an important facet of International Humanitarian law.
4.1 International Legal Framework for the Protection of
Children against Recruitment in Armed Conflicts:
For the last about four decades, international law, in regard to protection of children from recruitment in the armed conflicts a lot. Now it has developed to a better position to protect children. In comparison to past years now International law can protect children from use, recruitment and, consequently, from their exploitation.
The Additional Protocol-1 to the Geneva Conventions of 1949, has prohibited the recruitment and use of children under the age of 15 in armed conflict. In this regard the said Article says:
“The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest (Article-77 2).”
During the last two decades, the member states of the international community have taken a number of essential initiatives for insuring the protection for children against their use and exploitation by way of their recruitment in the armed forces of their countries.
In this behalf the International Criminal Court (ICC) in 2002, has recognized “conscripting or enlisting children under the age of 15 and using them to participate actively in hostilities” as a war crime. In the past two decades, the international community has taken a number of crucial initiatives to end impunity for grave violations against children. This decision of the International Court of Criminal Justice is a landmark step in this behalf.
The Optional Protocol to the United Nations Convention on the Rights of the Child on the Involvement of Children in Armed Conflict also prohibits the conscription of children under the age of 18 and their participation in hostilities. The Optional Protocol also prohibits the voluntary recruitment of children by non-state armed groups, although it allows state armed forces to recruit from age 16, as long as the children recruited are not sent to war. The Optional Protocol was the world’s first international treaty wholly focused on ending the military exploitation of children.
Other international laws have also helped to raise standards. For example the African Union’s Charter on the Rights and Welfare of the Child (1999) prohibits state armed forces from recruiting volunteers under the age of 18. Article-22 of the Charter in this regard say:
“1. State Parties to this Charter shall undertake to respect and ensure respect for rules of international humanitarian law applicable in armed conflicts which affect the child.
2. State Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child.”
4.2 International Instruments Dealing with Participation
of Children in Armed Conflicts:
A number of international conventions and laws have come into effect since early 1970s (some going back to the Geneva Convention in 1949), in the effort to try to limit the participation of children in armed conflicts. Yet are also these laws and conventions not without conflict and discussion, because they partly show difficulties to define the group of children between 15 and 18 years old in some way: are they “old enough” to take part directly in armed conflicts? If not defined so, there is the interpretation that they can be used f.e.to deliver information at least (not “directly” taking part).
4.2.1 UN Convention on the Rights of the Child, 1989:
Legal text from the United Nations, concerning children`s rights, to be implemented nationally. It is proclaimed that “State parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities.” However minors who are over the age of 15 but still remain under the age of 18 are still voluntarily able to take part in combat as soldiers. – Entry into force 09/1990. OHCHR
4.2.2 Optional Protocol to the Convention on the Rights of the Child:
This represents an optional protocol/ supplement to the convention mentioned above, concerning especially the involvement of children in armed conflict. States are required to demobilize children within their jurisdiction who have been recruited or used in hostilities, and to provide assistance for their physical and psychological recovery and social reintegration. – Entry into force 02/2002, OHCHR
4.2.3 Security Council’s Resolution 1261:
This resolution from the UN Security Council was the first to address the topic, the Council condemned the targeting of children in armed conflict including the recruitment and use of child soldier. – UN 08/1999.
4.2.5 UN Security Council’s Resolution 1612:
This resolution implements a monitoring and reporting mechanism regarding the use of child soldiers. It is reaffirming several former UN-resolutions, all contributing to comprehensive framework for addressing the protection of children affected by armed conflict. – UN Security Council, 07/2005.

4.2.6 Security Council’s Resolution 1882:
The SCR 1882 was adopted to expand the gateway for parties to be listed by the Secretary General, and requesting action plans for sexual violence against children in armed conflict and killing & maiming of children in armed conflict.
4.2.7 Additional Protocol-I of the Geneva Conventions 1949:
The additional protocol of the Geneva Convention from 1949 was adopted in 1977, relating to the protection of victims of international armed conflicts. “The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest”. – UN, 1972.
4.2.8 Worst Forms of Child Labour Convention, 1999 (No. 182):
The Convention C 182 defines the worst forms of slavery, and the use of children in armed conflicts is equated with slavery in art.3/a: “all forms of slavery or practices similar to slavery…..including forced or compulsory recruitment of children for use in armed conflict.” International Labour Organization, adopted 06/1999.
4.2.9 Cape Town Annotated Principles and Best Practice on the
Prevention of Recruitment of Children into the Armed
Forces and Demobilization and Social Reintegration of
Child Soldiers in Africa, 1997.
Here we find a good collection and a quite complete overview about existing laws and conventions (with links), as well as the “Cape Town Principles” and ARC project. – GINIE and UNESCO, 1999
4.2.10 The Paris Commitments to Protect Children from Unlawful Recruitment or use by Armed Forces or Armed Groups:
This is a declaration (partly recalling the Cape Town Principles etc.) made in Paris, were the participants agree on necessity to strengthen children’s rights. – UN/OSRSG CAC 2007.
4.2 Voluntary Participation of Children in Armed Conflicts:
In most cases, children voluntarily enlist in the armed forces. There are few, if any, known instances of a military group denying participation to underage volunteers. There are many cultural, economic, social, ideological and security reasons for volunteering. Often the culture of violence, the desperation for food, the need for security or the drive to avenge the death of family members prompts such unforced recruitment. Children who grow up in a war-tom environment may feel obliged to join the military regime out of a sense of loyalty, ethnic grievance, or merely in an attempt to survive. For these children, the lack of an alternative means to fulfill basic needs such as food and shelter is likely to lead to their participation in armed conflict. As such, any “choice” these children may have as to whether or not to enlist is illusory. In some cases, participating in war is glorified by their culture or held up as a sign of masculinity.

5. National Legal Framework for the Protection of recruitment Children in Armed Conflicts:
In 2008, the Special Representative submitted, as an expert witness, an amicus curiae to the ICC on the Lubanga case, where she argued that:
1. The distinction between voluntary enlistment and forced recruitment is a distinction without meaning in the context of armed conflict because even the most voluntary of acts can be a desperate attempt to survive by children with a limited number of options in the context of war;
2. Using children to participate actively should be interpreted broadly since children are required to play multiple support roles including as spies, messengers, porters, scouts, and cooks, that place them in danger;
3. Sexual slavery and violence should be regarded as a form of being used actively in hostilities to give girls access to justice and reintegration programs.
The ICC in response, recognized in its judgement, that the distinction between voluntary and forced recruitment is artificial and recognized the broader interpretation of the definition of child soldiers to include girls and boys who serve in support roles. In this sense, the judgement set important international jurisprudence on the crime of recruiting child soldiers and set a precedent for future cases and prosecutions in national courts. The Court did not decide on the issue of sexual violence since there were no charges to that effect.

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