The Law on Children and Armed Conflict

 

by Wouter Vandenhole, full professor of human and children’s rights, Law and Development Research Group, University of Antwerp

 

Tens of thousands of children are estimated to be recruited and used by armed groups. 250 million children live in countries affected by armed conflict. Children are not only recruited as fighters, but also used as informants, looters, messengers, spies and domestic or sexual slaves.[1]

There is no doubt that war is not good for children – or for human beings across the board. Several dimensions of children and their relationship with armed conflict have been regulated by international law therefore. The legal framework is patchy. [2] Some laws focus on prohibition or criminalisation of certain behaviour, such as the recruitment and involvement of children in armed conflicts. Some laws regulate behaviour by introducing age limits or by imposing obligations for rehabilitation and reintegration of children affected by war. The duty-bearers of those obligations are often states, but sometimes also individuals or armed groups.

In what follows, we look into three clusters of legal regulation of children and armed conflict: recruitment and participation in hostilities; protection and care for children affected by armed conflict; and measures for recovery and reintegration. We end on a critical note.

Recruitment and Participation of Children

A first cluster of legal regulation revolves around the recruitment of children, by state armies or armed groups. Law takes a strong protectionist approach to children in the context of armed conflict. It tries to keep them out of armies and armed groups, and if they join an army or armed group, the objective is to keep them away from participation in hostilities as much as possible.

Different fields of international law regulate recruitment and active participation of children in armed conflict. Sometimes their regulations are very similar, sometimes they differ. They also address different actors. Human rights law, humanitarian law and international labour law impose obligations on states. Customary humanitarian law also applies to armed groups. International criminal law speaks to individuals.

In human rights law, the strongest protection can be found in the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OPAC). This Protocol, a kind of mini-treaty, was adopted in 2000, and has meanwhile 173 Parties. [3] Under OPAC, the threshold for recruitment is 18 years of age, although a lower age (of 16) of voluntary recruitment into armed forces is still possible. For states that have not ratified OPAC, obligations under art. 38 of the Convention on the Rights of the Child (CRC) apply. In principle, the CRC uses 18 as the upper age of childhood. Quite surprisingly, it uses the age threshold of 15 to recruit children and to have them take part in hostilities, albeit that priority in recruitment should be given to the oldest. States must take all feasible measures to ensure that children under the age of fifteen do not participate directly in hostilities.

The age of fifteen was taken from international humanitarian law (the four Geneva Conventions). Under customary international humanitarian law, the International Committee of the Red Cross (ICRC) has identified two rules specific to children: children must not be recruited into armed forces or armed group [4] and children must not be allowed to take part in hostilities. [5]

Similarly, recruitment of children under the age of fifteen into armed forces or armed groups or their active use in hostilities is considered a war crime under article 8 of the Rome statue of the International Criminal Court (ICC). International labour law considers the forced recruitment of children under 18 as one of the worst forms of child labour (International Labour Organization Convention No. 182 on the Worst Forms of Child Labour, 1999).

Protection and Care for Children Affected by Armed Conflict

A second cluster of regulation focuses on the need for protection and care for children affected by armed conflict. This is a much broader category than child soldiers, and extends to all children who are affected, one way or the other, by armed conflict.

The CRC instructs states to ‘take all feasible measures’ to protect and care for children affected by armed conflict. This provision is directly borrowed from customary international humanitarian law, that stipulates that children affected by armed conflict are entitled to special respect and protection. [6] The Geneva Conventions and Protocols (all part of humanitarian law) provide children with additional protection from the effects of war for children under 15. Children must be removed from besieged or encircled areas and the free passage of essential necessities (food, clothing, medication) destined for children must be guaranteed. For children under 15 who have been orphaned or separated from their families, care and assistance must be provided as well as transfer to a neutral country if possible. In case of occupation, the occupying power has an obligation to facilitate the proper working of all institutions devoted to the care and education of children and not to hinder provision of necessities such as food, medical care and protection to children. As a rule of customary international humanitarian law, children who are deprived of their liberty must be held in quarters separate from those of adults, except where families are accommodated as family units. [7]

The United Nations Security Council monitors five grave violations of children’s rights in the context of armed conflict in addition to the recruitment and use of children, i.e. the killing and maiming of children, rape and other forms of sexual violence perpetrated against children, attacks on schools, hospitals and protected persons in relation to schools and/or hospitals, the abduction of children and the denial of humanitarian access for children. The monitoring and reporting mechanism monitors, documents and reports on those grave violations.

International criminal law defines rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of serious sexual violence as crimes against humanity and war crimes. The ICC has dealt with sexual violence and abuse against girl children recruited into armed groups as war crimes.

The Rome Statute excludes children (up to 18) from its jurisdiction, meaning that they cannot be tried by the ICC for war crimes, crimes against humanity and genocide.

Measures for Recovery and Reintegration

A third cluster of regulation addresses the recovery and reintegration of child victims of armed conflict. Art. 39 CRC imposes an obligation on States to take all appropriate measures for the recovery and reintegration of child victims of, amongst others, armed conflict. Both physical and psychological recovery are expressly covered, as well as social reintegration. Fostering the child’s health, self-respect and dignity are key to this recovery and reintegration. The famous Machel Report on the impact of armed conflict on children has makes the point that ‘[t]he process of reintegration must help … establish new foundations in life based on their individual capacities’. [8] In addition, the report underlined that reintegration programs and processes should regenerate links of these children with their families as well as the broader community where possible, conceivably after a period of collective care alongside peers who have had similar experiences as may be necessary. [9]

The Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups pay considerable attention to recovery and reintegration, also of those not associated with armed forces or groups. They adopt an inclusive approach and encourage that measures to secure the reintegration of children into civilian life do not stigmatize or make any negative distinction between children who have been recruited or used in hostilities and those who have not. They also emphasize that funding should be made available for activities benefiting a wide range of conflict-affected children and that reintegration activities should avoid maintaining distinctions between children formerly associated with an armed force or armed group and other children in the communities to which they reintegrate. [10]

International labour law imposes an obligation to provide direct assistance for the removal of children from the forced recruitment and for their rehabilitation and social integration, and to ensure access to at least free basic education. In addition, effective measures for the identification, release, protection, recovery and rehabilitation of all victims of forced recruitment must be taken. [11]

About and Beyond the Law

Child soldiers tend to be seen primarily as victims, rather than perpetrators. Child soldiering tends to be seen as a violation of children’s rights. There is a tension between those approaches and local understandings and children’s perceptions. [12] Since adolescence is in some contexts associated with assuming responsibility and independence, rather than with vulnerability, child soldiers may be seen as active socio-economic agents. Voluntary recruitment may partly result from the exercise of agency, for example, to enjoy socio-economic mobility or to benefit from the advantages of recruitment in a situation of armed conflict. [13] As Honwana has argued, children affected by armed conflict exercise ‘tactical agency’, that is agency ‘devised to cope with and maximise the concrete, immediate circumstances of the military environment in which they have to operate.’ [14]  Child soldiers themselves feel guilty and want to be held responsible in one way or another in order to be able to go on with their lives. [15]

Drumbl has argued therefore that child soldiers need to be reimagined in international law and policy. He criticises the protectionist and paternalist child image held in much of international law: [16]  similar to Honwana, he submits that child soldiers are no ‘forlorn passive victims of a lost generation’, but ‘circumscribed actors’. [17]  He therefore suggests that responsibility for child soldiering be allocated to many actors. [18]

This is not to justify or romanticise the involvement of children in armed conflict. Neither is a contextualisation in local understandings apologetic of local meanings as good or legitimate. But ‘getting it right’ is important when setting legal norms and devising humanitarian responses.

A rather blind spot in law is the rehabilitation, reintegration and reconciliation of former child soldiers. Those dimensions of child soldiering have long been neglected in law, but are a key issue in the fields of psychology and transitional justice. [19]

 

 

November 2024

The article was written for the War Childhood Museum as part of a commissioned project.

 

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[1] https://www.wvi.org/stories/child-protection/child-soldiers-facts-and-foundations; https://www.unicef.org/protection/children-recruited-by-armed-forces 
[2]  For more details, see Wouter Vandenhole and others, Children’s Rights (Elgar Commentaries in Human Rights Series, 2nd edn, Edward Elgar Publishing 2024).
[3] As of 22 November 2024, see Office of the United Nations High Commissioner for Human Rights (OHCHR), Status of Ratification: Interactive Dashboard, https://indicators.ohchr.org/.
[4]  ICRC, ‘Rule 136: Recruitment of Child Soldiers’, Customary IHL Database https://ihl-databases.icrc.org/en/customary-ihl/v1/rule136.
[5] ICRC, ‘Rule 137: Participation of Child Soldiers in Hostilities’, Customary IHL Database, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule137.
[6] ICRC, ‘Rule 135: Children’, Customary IHL Database, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule135.
[7]  International Committee of the Red Cross (ICRC), ‘Rule 120: Accommodation for Children Deprived of Their Liberty’, Customary IHL Database, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule120.
[8] Graça Machel, ‘Impact of armed conflict on children’, UN Doc A/51/306 of 26 August 1996, para 50.
[9]  Ibid., paras 51 and 52.
[10] https://childrenandarmedconflict.un.org/publications/ParisPrinciples_EN.pdf
[11] Art. 7.2(b) and (c) International Labour Organisation (ILO) Worst Forms of Child Labour Convention (No. 182) of 1 June 1999; Art. 3 Protocol 2014 to the ILO Convention (Po No. 29) of 28 May 2014.
[12]  Ah-Jung Lee, ‘Understanding and Addressing the Phenomenon of “Child Soldiers”’ (January 2009); Cindy Mels and others, Re-Member: Rehabilitation, Reintegration and Reconciliation of War-Affected Children, vol 11 (Series on Transitional Justice, Intersentia 2012).
[13]  Lee (n 12) 14–19.
[14]  Alcinda Honwana, ‘Innocent and Guilty. Child-Soldiers as Interstitial and Tactical Agents’ in Alcinda Honwana and Filip De Boeck (eds), Makers & breakers Children & youth in postcolonial africa (James Curry 2005) 32.
[15] Yannick Weyns, ‘On Children’s Rights and Wrongs: The Challenges for a Rights-Based Approach to Reintegration’ in Cindy Mels and others (eds), Re-Member: Rehabilitation, Reintegration and Reconciliation of War-Affected Children (Intersentia 2012).
[16]  Mark A Drumbl and John Tobin, ‘The Optional Protocol on Children and Armed Conflict’ in John Tobin (ed), The UN Convention on the Rights of the Child: A commentary (OUP 2019) 1708.
[17] Mark Drumbl (2012) Reimagining Child Soldiers in International Law and Policy, Oxford University Press, 209. Compare Mark Drumbl (2020) ‘Children in Armed Conflict’ in Jonathan Todres and Shani King (eds) The Oxford Handbook of Children’s Rights Law, Oxford University Press, 657-674.
[18]  Drumbl, ‘Reimagining Child Soldiers’, 209.
[19]  Cindy Mels et al. (eds) (2012) Re-Member: Rehabilitation, Reintegration and Reconciliation of War-Affected Children, Intersentia.
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