Flaws in the international law surrounding military recruitment of children
Flaws in the international law surrounding military recruitment of children

Adilia Jilgildina holds a master´s degree in Public Policy from the University of Reading, UK. Her research interests include gender studies, international politics, religious freedom and political philosophy.

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Over the recent decades, children have become increasingly involved in military action, leading to a rapid transition into adulthood and ultimately a lifetime of pain and trauma. Extensive international effort has been made to develop a legal framework to tackle this problem, yet faces considerable challenges in its enforceability1.

Children’s inability to make the distinction between right and wrong allows recruiters to target them. Though some might argue that they are ‘brainwashed’ into the military service, they may voluntarily choose to do so. Underlying factors such as a lack of education, poverty, revenge, social tensions, etc., can also contribute to their “voluntary” desire to join armed groups2.

The International law surrounding the military use of children is based on the international humanitarian, human rights, labour and criminal laws. These laws allow a feasible conceptualisation of childhood and adulthood, and prohibit the recruitment of children under 15, yet suffer from the implementation gaps, ambiguities concerning States’ obligations, age thresholds and participation in hostilities.

Notwithstanding the international law prohibits the recruitment of children under 15, the standards the Geneva Convention and UN Convention on the Rights of the Child set are relatively low, with a minimum age for armed service of 15. Moreover, these laws suffer from further weaknesses. The age provision in the Geneva Conventions is of a non-binding, rather recommendatory nature, allowing for the possibility of States’ non-compliance. The safeguards provided by the CRC regarding the military service applies only to the children under 15, thus allowing more opportunities for armed groups to recruit children between 15 and 18. These limitations were amended in the 2002 Optional Protocol to the CRC and 1999 African Charter, which set the minimum age for recruitment at 18 prohibiting the military use of underage children (with exceptions such as Rwanda)4. The 2000 Optional Protocol to the CRC was criticised for being limited in scope and setting various age limits for the child recruitment, and proving weaker than the 1999 International Labour Organization Convention and African Charter, thus failing to protect children driven by socioeconomic hardship. Moreover, establishing an age limit for voluntary participation fell within domestic jurisdiction, therefore undermining the principle of universality.

Consensus has also been lacking within the international circuits regarding the legal age at which a child can be held responsible for war crimes, or become a soldier. The International law failed to establish a universal standard of age for criminal responsibility; instead, the CRC delegates this responsibility to States, most of whom set at 18. Similarly, the Rome Statute confines the ICC’s jurisdiction to combatants aged 18, whereas the Statute of the Special Court sets this age at 15; the Special Court has yet to prosecute any individuals since they cannot be deemed as persons who bear the “greatest responsibility”. Regarding the prosecution of recruiters, the Rome Statute regards the military use of children under 15 as a war crime and gives the ICC jurisdiction to criminalise such individuals5. This suggests that the recruitment of children between 15 and 18 is permissible, as such action would not be criminalised by the ICC; whereas the ICC criminalises all types of recruitment of children below 15 years, the Special Court only criminalises forced recruitment that denies protection to children involved in the armed forces ‘out of necessity’ or illegally recruited children. In this regard, the applicability of the Geneva Convention is also limited in that it protects children from involvement in armed conflict, yet does not protect them from abuses when they become members of armed groups.

While the 2000 Optional Protocol to the CRC regards child soldiers as those who “directly” participate in the military6, unlike the Additional Protocol II to Geneva Convention and the African Charter, it is less binding upon States in that it urges the States to take adequate measures to eliminate direct participation. The ILO Convention, by contrast, defines child recruitment as the worst form of labour and obliges the States to take adequate measures to eradicate this practice.

These gaps, including legalisation of voluntary participation through the underage child’s consent due to the difficult circumstances, cultural differences in distinguishing between childhood and adulthood, non-imperative nature of laws leave the children vulnerable and prevent the States from incorporating such norms into their domestic laws. These legal loopholes are often taken advantage of by non-state actors that seek to overthrow governments using children. In addition, the exclusion of non-state actors from decisionmaking, specifically their inability to influence decisions at the implementation stage, inconsistencies between religious, domestic and international laws, along with poverty, corruption and religious radicalism, contribute to non-compliance and flaws in the existing laws. To counteract this, States should ensure children’s enjoyment of rights and serve their best interests. Until the UN and Member-States unite in their efforts to address such human suffering instead of referring to the foregoing factors as excuses for their inaction, modern child recruitment will undoubtedly continue.

 

REFERENCES:

1. Shepler, S. (2003). Educated in war: The rehabilitation of child soldiers in Sierra Leone. Conflict resolution and peace
education in Africa, 57-76.

2. Makinano, M. M. (2001). Child soldiers in the Philippines. International Labor Affairs Service, Department of Labor and
Employment

3. Hesford, W. S. (2015). Contingent Vulnerabilities: Child Soldiers as Human Rights Subjects.

4. Ferreira, R. (2009). Child soldiers in African wars. Commonwealth Youth and Development, 7(1), 37-50

5. Hesford, W. S. (2015). Contingent Vulnerabilities: Child Soldiers as Human Rights Subjects.

6. Hesford, W. S. (2015). Contingent Vulnerabilities: Child Soldiers as Human Rights Subjects.

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