Exploration 2C: For Teachers

Child Soldiers and International Law

Both human rights law and international humanitarian law (IHL) extend protections to children affected by armed conflict. While protections under human rights law are provided within the general framework of children’s fundamental rights, IHL addresses the specific needs of children in situations of armed conflict.

Both bodies of law contain rules regarding the participation of children in armed conflict. As child soldiers, their involvement may range from helping combatants (carrying weapons, conducting reconnaissance missions, delivering messages, etc.) to actually fighting.

The two Additional Protocols to the Geneva Conventions (Additional Protocol I and Additional Protocol II) of 1977, were the first international treaties to address these issues. Additional Protocol I, which provides rules for international armed conflict, requires governments to take all possible measures to prevent children under 15 from taking direct part in fighting. It expressly prohibits their recruitment into the armed forces and encourages governments, when recruiting children between the ages of 15 and 18, to give priority to the oldest. Additional Protocol II, which provides rules for non-international armed conflict, goes even further. It prohibits not only the recruitment of children under 15 but also their actual participation in fighting.

Human rights law subsequently addressed the issue in the 1989 UN Convention on the Rights of the Child (CRC), again using 15 as the minimum age. In fact, this law mirrors the rules of IHL that are applicable in international armed conflict. Thus, like Additional Protocol I, it obliges governments to take all possible measures to prevent children under 15 from taking direct part in fighting and prohibits their recruitment. It also encourages governments to give priority in recruitment to the oldest when choosing from among those aged between 15 and 18. From the very beginning, these sections of CRC drew considerable criticism. For one thing, they are the only part of the CRC that depart from the general definition of a ‘child’ as anyone under 18, in spite of the fact that they deal with one of the most dangerous situations that children can be exposed to – armed conflict.

Moreover, these sections added nothing new and even risked distracting attention from the stronger standard contained in Additional Protocol II, which provides absolute and more comprehensive prohibitions in non- international armed conflicts.

In light of the criticisms, and in keeping with the international community’s growing awareness of and concern for the plight of children affected by armed conflict, an initiative to raise the minimum age for recruitment and participation to 18 years was taken only a few years after the CRC entered into force.

After more than 10 years of international effort, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict entered into force in 2002. Under the Optional Protocol, governments must take all possible measures to ensure that members of their armed forces below the age of 18 years do not take a direct part in fighting. The Optional Protocol also raises the minimum age for compulsory recruitment into armed forces to 18 years, and requires governments to increase the minimum age for voluntary enlistment from 15 years as well. In addition, under the Optional Protocol, non-State armed groups should not, under any circumstances, recruit or use in fighting persons under the age of 18.

Raising the age limit from 15 to 18 for participation in armed conflict represents a strengthening of the protection previously provided by IHL. It reinforces the world’s desire to shield all children from the horrors of armed conflict, and, particularly, to prevent them from taking part in fighting.