Tilburg University
Affecting child soldiering
van Lit, W.N.A.
Publication date: 2014
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van Lit, W. N. A. (2014). Affecting child soldiering: The interaction between international law and the domestic legal systems of Sierra Leone, the Philippines and Sri Lanka. Wolf Legal Publishers (WLP).
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AFFECTING CHILD SOLDIERING
Affecting Child Soldiering
The interaction between international law and the domestic legal systems of Sierra Leone, The Philippines and Sri Lanka
W.N.A. van Lit
ISBN: 9789462401921
Published by:
a
olf Legal Publishers (WLP) PO Box 313 5060AH Oisterwijk The Netherlands
E-Mail: info@wolfpublishers.nl www.wolfpublishers.com
No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission of the publisher. Whilst the authors, editors and publisher have tried to ensure the accuracy of this publication, the publisher, authors and editors cannot accept responsibility for any errors, omissions, misstatements, or mistakes and accept no responsibility for the use of the information presented in this work.
A
FFECTINGC
HILDS
OLDIERINGTHE INTERACTION BETWEEN INTERNATIONAL LAW AND THE DOMESTIC LEGAL SYSTEMS OF SIERRA LEONE, THE PHILIPPINES AND SRI LANKA
Proefschrift ter verkrijging van de graad van doctor aan Tilburg University op gezag van de rector magnificus, prof. dr. Ph. Eijlander,
in het openbaar te verdedigen ten overstaan van een door het college voor promoties aangewezen commissie in de aula van de Universiteit
op maandag 15 december 2014 om 10.15 uur door
WILLEM NELIS ADRIANUS VAN LIT
Promotiecommissie:
List of Contents
List of Acronyms and Abbreviations 8
Acknowledgements 11
Chapter 1
The Interaction between International Law and the Domestic Legal Systems of Sierra Leone, the Philippines and Sri Lanka:
Introductory Remarks and Research Design
1.1 The Practice of Child Soldiering: History, Causes and Consequences 3
1.2 The International Legal Response to Child Soldiering 10
1.3 Research Design 15
1.3.1 Research Problem, Research Aim and Additional Value
of this Research 16
1.3.2 Research Question and Theoretical Framework 19
1.3.3 Approach 23
1.4 Structure of the Book 25
Part I:
The International Legal Framework on the Prohibition of Child Soldiering Chapter 2
Treaties and Soft Law 29
2.1 International Humanitarian Law 30
2.2 International Human Rights Law 42
2.2.1 Convention on the Rights of the Child 42
2.2.2 Optional Protocol to the Convention on the Rights of the Child
on the Involvement of Children in Armed Conflict 44
2.2.3 African Charter on the Rights and Welfare of the Child 51
2.2.4 Conclusion 52
2.3 International Criminal Law 52
2.3.1 The Special Court for Sierra Leone: 74
2.3.2 The Norman Decision 74
2.3.3 The CDF Case on Multiple Recruitment 77
2.3.4 Age Limit and Scope of Tasks 79
2.3.5 Recruitment by National Armed Forces 82
2.3.6 Conclusion 85
2.4 International Labour Law 65
2.4.1 ILO Convention 182 65
2.4.2 Conclusion 69
2.5 United Nations Security Council Resolutions on Children
and Armed Conflict 70
2.5.1 Evolution of the Focus on Child Soldiering 70
2.5.2 Monitoring and Reporting 71
2.5.3 Reports of the Secretary-General 72
2.5.4 Conclusion 73
2.6 Soft Law Instruments 73
2.6.1 Cape Town Principles 74
2.6.2 Paris Commitments and Principles 75
2.6.3 Other Soft Law Instruments 77
2.6.4 Conclusion 78
2.7 Child Soldiering as Human Trafficking 79
2.7.1 The Palermo Protocol 79
2.7.1.1 ‘Action-Element’ 83
2.7.1.2 ‘Purpose-Element’ 84
2.7.1.3 The Obligation to Criminalise Human Trafficking 90
2.7.2 Conclusion 91
2.8 Conclusion 91
Chapter 3
Monitoring The Application of the International Legal Framework 95
3.1 Methodology 95
3.2 Criminalisation of the Enlistment, Conscription and Use of Child Soldiers 99
3.2.1 Scope of Criminalisation 99
3.2.2 Jurisdiction and Extradition 102
3.2.3 (Modes of) Liability 104
3.2.4 Child Soldiers as Perpetrators 105
3.2.5 Conclusion 106
3.3 International Cooperation 107
3.3.1 Universal Periodic Review 107
3.3.2 Conclusion 111
3.4 Education and Awareness-Raising 111
3.4.1 Professionals 111
3.4.2 General Public 113
3.4.3 Children 114
3.4.4 Conclusion 115
3.5 Demobilisation, Disarmament and Reintegration of Child Soldiers 115
3.5.1 Creating Circumstances for DDR 116
3.5.2 Substance of DDR Programmes 118
3.5.3 ICRC 119
3.5.4 Conclusion 120
3.6 Conclusion: Monitoring 121
Chapter 4
Conclusion: The International Legal Framework 123
Part II: The Domestic Legal Systems of Sierra Leone, the Philippines and Sri Lanka
127 127 Chapter 5 Introduction and Methodology
5.1 Introduction
5.2 Methodology 128
5.2.1 Selection of Case Studies 128
5.2.2 Execution of the Case Studies 134
137 Chapter 6
Child Soldiering in Sierra Leone
6.1 Country Context 138
6.1.1 Brief History 138
6.1.2 Civil War 139
6.1.3 Child Soldiering in the Civil War 143
6.2 The National Legal System 144
6.3 Child Soldiering by the Armed Forces 146
6.3.1 The Prohibition of Child Soldiering 146
6.3.2 Attributing Criminal Responsibility 152
6.3.3 Conclusion 153
6.4 Child Soldiering by Armed Groups 154
6.4.1 The Prohibition of Child Soldiering 154
6.4.2 Attributing Criminal Responsibility 156
6.4.3 Conclusion 159
6.5 Awareness Raising 159
6.6 Disarmament, Demobilisation and Reintegration 161
6.7 Conclusion: the problem with attributing responsibility 162
167 Chapter 7
Child Soldiering in the Philippines
7.1 Country Context 169
7.1.1 Brief History 169
7.1.2 The Conflict over the Southern Philippines 169
7.2 The National Legal System 171
7.3 Prohibition on Child Soldiering by the Armed Forces 173
7.4 Prohibition on Child Soldiering by Armed Groups 177
7.5 The Special Protection of Children in Armed Conflict Bill 187
7.6 Conclusion 192
195 Chapter 8
Child Soldiering In Sri Lanka
8.1 Country Context 196
8.1.1 Brief History 196
8.1.2 The Conflict with the Tamil Tigers 196
8.2 The National Legal System 198
8.3 Prohibition on Child Soldiering by the Armed Forces 200
8.3.1 The Minimum Age of Recruitment into the Armed Forces 200
8.3.2 State Responsibility for Child Soldiering by the Karuna Group 202
8.3.3 Conclusion 205
8.4 Prohibition on Child Soldiering by Armed Groups 205
8.5 Criminal Responsibility for the Enlistment, Conscription and Use of
Child Soldiers 207
8.6 Rehabilitation of Child Soldiers 209
8.7 Conclusion 212
Chapter 9
Conclusion and Reflection 215
9.1 Conclusion 215
9.2 Developments in the International Legal Prohibition of Child Soldiering 216 9.3 Elements of the Prohibition of Child Soldiering in International Law 218 9.4 The Relationship between the International Law and the National Laws of
Sierra Leone, the Philippines and Sri Lanka 224
9.5 Final Reflections 225
Bibliography 231
List of Acronyms and Abbreviations
ACRWC African Convention on the Rights and Welfare of the Child
AFRC Armed Forces of Sierra Leone Act
AHTA Anti-Human Trafficking Act
AP I Additional Protocol I to the Geneva Conventions
AP II Additional Protocol II to the Geneva Conventions
APC African People’s Congress
ASG Abu Sayyaf Group
BIFM Bangsamoro Islamic Freedom Movement
Cape Town Cape Town Principles and Best Practices Principles
CPA Child Protection Act
CRA Child Rights Act
CRC Convention on the Rights of the Child
CDF Civil Defence Forces
Committee Committee of Experts on the Application of Conventions and
of Experts Recommendations
DDR programs Demobilization, Disarmament and Reintegration programs
DVA Domestic Violence Act
ECOMOG Economic Community of West African States Monitoring
Group
ECOWAS Economic Community of West African States
FARC Fuerzas Armadas Revolucionarias de Colombia
HRC Human Rights Council
ICC International Criminal Court
ICTY International Criminal Tribunal for the former Yugoslavia
ICRC International Committee of the Red Cross
ILO ILO Convention 182 concerning the Prohibition a
Convention 182 Immediate Action for the Elimination of the Worst Forms of Child Labour
IPEC International Programme on the Elimination of Child Labour
ILO International Labour Organisation
LTTE Liberation Tigers of Tamil Eelam
Machel report UN report on the Impact of Armed Conflict on Children
MILF Moro Islamic Liberation Front
MNLF Moro National Liberation Front
NPA New People’s Army
NGO non-governmental organisation
OP-CRC-AC Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict Palermo Protocol Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children
REPPIA Rehabilitation of Persons, Properties and Industries Authority
Rome Statute Rome Statute of the International Criminal Court
RUF Revolutionary United Front
SCSL Special Court for Sierra Leone
SCSL Statute Statute for the Special Court of Sierra Leone
SCWG Security Council Working Group on Children and Armed
Conflict
TRC Sierra Leone Truth and Reconciliation Commission
TRC Act Truth and Reconciliation Commission Act
TVPA Trafficking Victims Protection Act
UNICEF United Nations Children’s Fund
UNSC United Nations Security Council
UNSG United Nations Secretary-General
UPR Universal Periodic Review
Acknowledgements
It is near the end of September 2010 and the Florida sun is high up in the sky. I switch on my cell phone that I switched off a couple of minutes ago when entering a ride at Epcot, Disney World; or adventure, in Disney terminology. Moments later, I learn that the one of the biggest adventures of my life is awaiting for me back home, the writing of a PhD thesis.
Throughout the process of writing this thesis, many people have been instrumental in finishing this study. Although it is often hard to pinpoint who has contributed to what, I would like to mention a number of them in particular.
Conny Rijken and Willem van Genugten, thank you for being two wonderful supervisors. Thank you for your feedback, words of encouragement and, most of all, being there for me along the way at times when I needed your guidance the most.
My other colleagues at Tilburg Law School, thank you for discussing my research with me and providing me with valuable input for dealing with the problems that I encountered throughout the research process. But also for offering me
distractions: drinks, office outings, wonderful dinners and game nights. I hope, and know, that those will be continued in the future.
The members of the reading committee, professor Arts, professor Jägers, professor Vandenhole and professor Vlaardingerbroek, thank you for giving me feedback on the manuscript.
Jorine and Patricia, thank you for being two great paranymphs. We met as colleagues at Efteling and although our days together of selling ice cream, renting out ice skates and imagining underground connections between The Flying Dutchman and Dreamflight (and telling those to guests…) have ended, our friendship has remained.
I would like to thank my parents for being there for me, no matter what.
Niels van Lit Tilburg, November 2014
C apter 1
The Interaction between International Law and the Domestic
Legal Systems of Sierra Leone, the Philippines and Sri Lanka:
Introductory Remarks and Research Design
1.1 The Practice of Child Soldiering: History, Causes and Consequences
Armies of the Young: child soldiers in war and terrorism
Children and War: A historical Anthology
Child Soldiers: The Role of Children in Armed Conflict Children: The Invisible Soldiers Child Soldiers: From Violence to Protection
The War Crime of Child Soldier Recruitment
The problem of unregistered children is most prevalent in sub-Saharan Africa and South Asia, where over 70 percent and 63 percent of births go unregistered in each region, respectively.”
Report on A‘Returning Home, Children’s Perspectives on Reintegration: A Case Study of Children Abducted by the Lord’s Resistance Army in Teso, Eastern Uganda
Young Soldiers: Why They Choose to Fight Sold to be Soldiers. The Recruitment and Use of Child Soldiers in Burma
also
Child Soldiers in Africa Child soldiers. Sierra Leone’s Revolutionary United Front Armies of the Young: child soldiers in war and terrorism
1.2 The International Legal Response to Child Soldiering
1. Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason.
2. 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.
3. If, in exceptional cases, despite the provisions of paragraph 2, children who have not attained the age of fifteen years take a direct part in hostilities and fall into the power of an adverse Party, they
CDF case AFRC case RUF
case
shall continue to benefit from the special protection accorded by this Article, whether or not they are prisoners of war.
Children shall be provided with the care and aid they require, and in particular: (…)
(c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities.
2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.
One of the most alarming trends in armed conflict is the participation of children as soldiers. Children serve armies in supporting roles, as cooks, porters, messengers and spies. Increasingly, however, adults are deliberately conscripting children as soldiers. Some commanders have even noted the desirability of child soldiers because they are "more obedient, do not question orders and are easier to manipulate than adult soldiers.
Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
1. Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.
2. States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices.
generally
any
1.3.1 Research Problem, Research Aim and Additional Value of this Research
Merely prohibiting the military exploitation of children is no more effective than a declaration of public outrage. The next step is to give effect to the prohibition. Given the limited enforcement procedures in human rights law the best ways of accomplishing this goal is to bring criminal prosecution against specific offenders.”
Secondly, the efficacy of international legal instruments [referring to international conventions, treaties and protocols of the protection and reintegration of child soldiers in conflict zones in Africa] is further limited by the fact that the majority of war-torn and post-conflict societies are struggling to incorporate international criminal law and conventions into domestic national laws. These problems[the other problem concerns the conception of childhood] have posed serious challenges, still markedly under-researched, to the applicability of international standards for protecting children in Africa’s conflict zones, and in particular, for the rehabilitation and reintegration of child soldiers.”
these
Human Rights & International Legal Discourse
Ibid
1.3.3 Approach
selection
1. INTRODUCTORY REMARKS AND RESEARCH DESIGN
From these, three states were selected for further analysis in the second part: Sierra Leone, the Philippines and Sri Lanka. The analysis of the international legal prohibition of child soldiering and (the monitoring of) its application forms the basis of the assessment of the legal systems of these three States. The reasons for selecting these three legal systems are detailed in the prelude to the second part of this study in Chapter 5. At this point, it is sufficient to note that all three countries have been actively involved with international law on the prohibition of child soldiering and, therefore. These countries also presented interesting situations to analyse from a reflective standpoint on the international legal prohibition. In addition, it must be explicitly stated that the results of these case studies are not intended to draw general conclusions on the interaction between international law and national law on a global level.
1.4 Structure of the book
The first part of this book concerns the international legal framework on the prohibition of child soldiering. It consists of two chapters: Chapter 2 contains an analysis of the treaties and soft law documents and also offers an analysis of these from a comparative point of view. Chapter 3 provides a synthesis of how the application of these laws and conventions that are discussed in Chapter 2 are monitored by the relevant bodies and entities.
The second part of this study contains the three case studies of Sierra Leone, the Philippines and Sri Lanka (in chapters 6, 7 and 8). This is prefaced by Chapter 5, which elaborates on the value to be attributed to the results of the case studies, the reasons for their selection and how they have been conducted; Chapter 5 also contains more information on the methodology for the case studies. The conclusion of the study is presented in Chapter 9, which answers the research question and contains a number of final reflections.
Part I:
Chapter 2
Treaties and Soft Law
2.1 International Humanitarian Law
1. Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason.
2. 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 of the conflict shall endeavour to give priority to those who are oldest.
3. If, in exceptional cases, despite the provisions of paragraph 2, children who have not attained the age of fifteen years take a direct part in hostilities and fall into the power of an adverse Party, they shall continue to benefit from the special protection accorded by this Article, whether or not they are prisoners of war.
Children shall be provided with the care and aid they require, and in particular: (…)
Child Soldiers in International Law Ibid
(c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or armed groups nor allowed to take part in hostilities.
(d) the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured.
Ibid As we see, this provision directly concerns the composition of the armed forces (…).
Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law
Ibid
1. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury or destruction on persons or objects protected against direct attack (threshold of harm);
2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation);
3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).
likelihood
In order to meet the requirement of belligerent nexus, an act must be specifically designed to directly cause the required threshold of harm in support of a party to an armed conflict and to the detriment of another. As a general rule, harm caused (a) in individual self-defence or defence of other against violence prohibited under IHL [international humanitarian law], (b) in exercising power or authority over persons or territory, (c) as part of civil unrest against such authority, or (d) during inter-civilian violence lacks the belligerent nexus required for a qualification as direct participation in hostilities.
2. TREATIES AND SOFT LAW
their type of participation in hostilities at a certain moment in time. Upon capture, article 77 (3) AP I still grants children under the age of 15 years prisoner of war status as an additional means of protection for them.
On the one hand, defining the term ‘direct participation in hostilities’, as has been done in the Interpretative Guidance of the ICRC, seems to have a
considerable impact on the scope of the prohibition of child soldiering as contained in AP I. On the other hand, in the ICRC Commentaries on Article 77 (2) of AP I, it is stated that ‘the intention of the drafters of the article was clearly to keep children under fifteen outside armed conflict, and consequently they should not be required to perform such services [indirect participation in hostilities]; if it does happen that children under fifteen spontaneously or on request perform such acts, precautions should at least be taken’.110 This statement decreases the significances
of defining ‘direct participation in hostilities’ (in this article) and lends support for a wider understanding of the term ‘direct participation in hostilities’ in light of the incorporation of child soldiers in the armed forces.
However, the ICRC Commentaries do not provide any justification for this expression of the drafter’s intention, nor does it refer to any sources when making this statement. On the contrary, the word ‘directly’ was absent from the draft version of AP I and purposefully inserted.111 The ICRC may have intended not to
let children indirectly participate, but more emphasis should be placed on the conveners of AP I, who purposefully included the word ‘direct’.
In further support of this argument that not too much emphasis should be placed on the commentaries on AP I, in future conventions containing a
prohibition on child soldiering, such as the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, the negotiations all seem to leave room for young persons to perform some roles within armed forces. In retrospect, this seems to support the thought that States added the word ‘direct’ in order to decrease their obligations under international humanitarian law.
110 Sandoz, Swinarski and Zimmermann (eds) (n 79) para. 3187. Comments between brackets added.
111 Ibid.
refrain
all feasible measures
neither recruit allow
Child Soldiers in International Law
2. TREATIES AND SOFT LAW
participate in hostilities when it was not feasible to keep them from doing so, a circumstance which is not permitted under article 4 (3) (c) AP II. The same holds true for the situation in which children indirectly participate in hostilities as long as they are not formally recruited by the armed forces.
At first sight, this leads to the peculiar situation that in international armed conflicts governed by AP I, the protection afforded to children is less than in the type of non-international armed conflict that is governed by AP II. This, to a certain extent unexplainable situation from the perspective of the child, actually results from arbitrariness as opposed to conscious decision making, as Happold asserts.115
Because the AP I and AP II were the first international legal conventions to specifically prohibit certain forms of child soldiering, their initial contribution to this field is evident. Nevertheless, both also included a significant number of limitations, for instance, the provisional obligation to keep children from directly participating in hostilities in AP I as it is still possible for children to participate in this manner without violating the obligation contained in article 77 (2) of AP I. Moreover, the meaning of the notion of ‘direct participation in hostilities’ is fraught with controversy. The Interpretive Guidance of the ICRC published in 2009 should have created more unity in its interpretation, but that aim still seems to be far off given the criticism voiced over the contents of this document. This issue will be revisited in this book. Another issue is that of the prohibition of recruitment. While both enlistment and conscription are not allowed, the definition of recruitment is different for armed forces than for armed groups. In the context of armed groups, children are required to execute a ‘continuous combat function’ before they can be said to have been ‘recruited’, which is detrimental to the protection of children from child soldiering in that respect as this is a high bar. However, because Article 4 (3) (c) AP II also prohibits the ‘use of children to participate in hostilities’ – including their indirect use – the negative consequences of this difference in the definition of recruitment are outweighed. In addition, in light of more recent legal events, the
115 Matthew Happold, Child Soldiers in International Law (n 84) 68.
2.2 International Human Rights Law
and Welfare
2.2.1 Convention on the Rights of the Child
2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.
3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years 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, States Parties shall endeavour to give priority to the oldest.
feasible necessary
direct participation participation
2.2.2 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict
The United Nations Convention on the Rights of the Child. A Guide to the Travaux Préparatoires
Ibid
Article 1: States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.
Article 2: States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.
Article 3:
1. States Parties shall raise the minimum age for the voluntary recruitment of persons into their national armed forces from that set out in article 38, paragraph 3, of the Convention on the Rights of the Child, taking account of the principles contained in that article and recognizing that under the Convention persons under the age of 18 years are entitled to special protection.
2. Each State Party shall deposit a binding declaration upon ratification of or accession to the present Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards it has adopted to ensure that such recruitment is not forced or coerced.
Human Rights Quarterly Child Soldiers in International Law
3. States Parties that permit voluntary recruitment into their national armed forces under the age of 18 years shall maintain safeguards to ensure, as a minimum, that:
(a) Such recruitment is genuinely voluntary;
(b) Such recruitment is carried out with the informed consent of the person's parents or legal guardians;
(c) Such persons are fully informed of the duties involved in such military service;
(d) Such persons provide reliable proof of age prior to acceptance into national military service. 4. Each State Party may strengthen its declaration at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall inform all States Parties. Such notification shall take effect on the date on which it is received by the Secretary-General. 5. The requirement to raise the age in paragraph 1 of the present article does not apply to schools operated by or under the control of the armed forces of the States Parties, in keeping with articles 28 and 29 of the Convention on the Rights of the Child.
Article 4:
1. Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.
2. States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices.
States Parties shall raise the minimum age in years for the voluntary recruitment of persons into their national armed forces from that set out in article 38.3 of the Convention on the Rights of the Child, taking account of the principles contained in that article and recognizing that under the Convention persons under 18 are entitled to special protection
Ibid 22
International Journal of Children’s Rights
This means armed groups are prohibited from recruiting, either forcibly or voluntarily, persons under eighteen or using them in hostilities.”.
2.2.3 African Charter on the Rights and Welfare of the Child
Article 22: Armed Conflicts
1. States 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. 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.
2.2.4 Conclusion
2.3 International Criminal Law
Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
Conscripting or enlisting children under the age of fifteen years into armed forces or armed groups or using them to participate actively in hostilities.
2.3.1 The Special Court for Sierra Leone
Conscripting or enlisting children under the age of 15 years into armed forces or armed groups or using them to participate actively in hostilities.
AFFECTING CHILD SOLDIERING
This provision is highly similar to the provisions in Article 8 of the Rome Statute on the prohibition of enlisting, conscripting and using child soldiers and are analysed in the sections that follow in terms of the age limit and the scope of tasks included in the provisions, as well as the perceived limitation in the article relating to international armed conflict in the Rome Statute, which seems to criminalise the enlistment, conscription and use of child soldiers only if committed by national armed forces, not by armed groups, in contrast to its non-international armed conflict counterpart. However, before these issues are addressed, attention is directed to a relevant decision taken by the SCSL.
2.3.2 The Norman Decision
In 2004, the Appeals Chamber of the SCSL made a landmark decision on international criminal responsibility for the enlistment, conscription and use of child soldiers in the case of the Prosecutor v. Sam Hinga Norman, also known as the Norman decision.139 The Normal decision revolved around the issue of
legitimate jurisdiction for the SCSL to pass judgment on the crime of enlisting, conscripting and using child soldiers, as contained in its Statute. Because the SCSL and its Statute were erected as a matter of transitional justice in the post civil-war period, the temporal jurisdiction of the SCSL also covered a timeframe prior to its conception (crimes committed after 30 November 1996). Consequently, in order to not violate the principle of nullum crimen sine lege, the court had to establish whether the crime of enlistment, conscription and use of child soldiers, as contained in the SCSL Statute, was already an international crime on 30 November 1996.140
The SCSL applied the so-called ‘Tadic-test’, which comprises four criteria that all have to be fulfilled for a violation of international humanitarian law to be punishable in the context of international criminal law in such situations. These four criteria are as follows: the violation must constitute an infringement of a rule of international humanitarian law; the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met, such as ratification; the violation must be serious, that is to say, it must constitute a breach of a rule
139 Prosecutor v. Sam Hinga Norman (Decision on preliminary motion based on lack of jurisdiction) SCSL-04-14-AR72(E)-131 (31 May 2004).
140 Ibid para 1.
Ibid Ibid Ibid
a simular issue indictment Norman
2.3.3 The CDF Case on Multiple Recruitment
2.3.4 Age Limit and Scope of Tasks
mens rea mens rea
Rutaganda
direct impact
required
…under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.
2.4 International Labour Law
For the purposes of this Convention, the term "the worst forms of child labour" comprises: all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict (…).
Each Member which ratifies this Convention shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.
…work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.
2.5 United Nations Security Council Resolutions on Children and Armed Conflict
2.5.1 Evolution of the Focus on Child Soldiering
Human Rights & International Legal Discourse
2. TREATIES AND SOFT LAW
Somalia.183 The parties to the conflicts were selected on the basis of two criteria:
their identifiable participation in conflicts of which the Security Council was seized of at the time and that their recruitment of children was a violation of international obligations that were applicable to them at the time.184 Especially because of the
first requirement, not every group involved in child soldiering was included in the list. Examples mentioned by the Secretary-General were the Fuerzas Armadas Revolucionarias de Colombia (FARC) in Colombia, the Lord’s Resistance Army (LRA) in Uganda and the fighting factions in Northern Ireland.185 These parties to
a conflict of which the UNSC was not seized of at the time, were mentioned in a separate annex to the reports of the UNSG on children and armed conflict.
2.5.2 Monitoring and Reporting
In its subsequent resolution on children in armed conflict, the UNSC expressed the view that the identified parties should immediately halt the practice of child recruitment and obliged them to implement time-bound action plans on treating (former) child soldiers as well as sharing the best practices in conducting disarmament, demobilization and reintegration (DDR) programmes.186 The
progress achieved by these parties would have to be reported to the Secretary-General. In addition, the UNSC requested the Secretary-General to develop a more effective and efficient system within the existing framework of the UN to monitor and report on the situation of children in armed conflict.187
Subsequently, a monitoring and reporting system on children and armed conflict was developed. The system was based upon already existing structures and concerned six elements: the type of violations that should be monitored, the benchmarks for the monitoring, the subjects to be monitored, how data should be gathered for the purposes of monitoring, how to review the information, and
183 UNSC ‘Report of the Secretary-General on children and armed conflict’ (26 November 2002) UN Doc S/2002/1299.
184 UNSC ‘Report of the Secretary-General on children and armed conflict’ (26 November 2002) UN Doc S/2002/1299 para 27-31.
185 Ibid para 40-47.
186 UNSC Resolution 1460 (30 January 2003) UN Doc S/Res/1460 para 4 & 16.
187 UNSC ‘Report of the Secretary-General on children and armed conflict’ (22 April 2004) UN Doc S/Res/1539 para 2.
AFFECTING CHILD SOLDIERING
which entities actually have to undertake action based on the results of the accumulation of the previous parts of the system.188 This system was adopted in
Resolution 1612.189
Over the course of five years, from 2000 till 2005, major changes occurred in the climate in which these problems were discussed, which moved from the mere mentioning of the existence of a problem to a structured approach established by the international community, based on existing structures, to devote attention to the plight of child soldiers. However, the action taken on the basis of these reports is still dependent on already existing entities. To that extent, it remains important to analyse the annual reports on monitoring and reporting and the way actors refer to and act upon these documents.190
2.5.3 Reports of the Secretary-General
After the establishment of the monitoring and reporting system, four years passed until a new review of the situation of children in armed conflict was conducted, other than situation specific resolutions by the UNSC. In 2009, a new report was prepared by the Secretary-General, outlining the general progress of
implementation of all the UNSC resolutions adopted on the matter of children in armed conflict. The general working method described in this report to end the recruitment of child soldiers is to initiate a dialogue with the armed force or armed group with the intent to gain their commitment to end child soldiering. These commitments are then to be implemented in a formal action plan that also establishes a basis for monitoring progress. The Secretary-General notes the little progress that has been made to date and recommends increasing concerted efforts between the working group and sanctions committees in order to get results.191
In 2011, a new report of the Secretary-General was published which especially draws attention to the role of children as witnesses. The UNSG takes the view that because of the limited capacity of international courts and the sometimes (virtually)
188 UNSC ‘Report of the Secretary-General on children and armed conflict’ (9 February 2005) UN Doc S/2005/72 Section III.
189 UNSC Resolution 1612 (26 July 2005) UN Doc S/Res/1612 para 3. 190 This aspect is covered in Chapter 3.
191 UNSC ‘Report of the Secretary-General on Children and armed conflict’ (26 March 2009) UN Doc S/2009/158.
2.5.4 Conclusion
2.6 Soft Law Instruments
2.6.1 Cape Town Principles
Child soldier in this document is any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The definition includes girls recruited for sexual purposes and forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms.197
in any capacity
2.6.2 Paris Commitments and Principles
sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities.
To spare no effort to end the unlawful recruitment or use of children by armed forces or groups in all regions of the world, e.g. through the ratification and implementation of all relevant international instruments and through international cooperation.
To make every effort to uphold and apply the Paris principles (“The Principles and Guidelines on Children Associated with Armed Forces or Armed Groups”) wherever possible in our political, diplomatic, humanitarian, technical assistance and funding roles and consistent with our international obligations.
s
Call upon all Asia-Pacific States to ensure that they have laws requiring birth registration and provide appropriate and effective methods to facilitate their implementation; and in the meanwhile, in the absence of age documentation, the armed forces require sworn affidavits from parents or community elders.202
Strongly urge ECOWAS Member States to support the implementation of the ECOWAS Moratorium in order to halt the proliferation of small arms and light weapons in the sub-region.203
2.7 Child Soldiering as Human Trafficking
2.7.1 The Palermo Protocol
post facto
New England Journal of International & Comparative Law
.
"Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
an action a means
mens rea
““Organized criminal group” shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit
The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article “child” shall mean any person under eighteen years of age.
2.7.1.1 ‘Action-Element’
child
n
this
add
ius cogens
2. TREATIES AND SOFT LAW
From the judgment in the Lubanga trial, where the ICC (Pre-) Trial Chamber had to decide on the boundary between ‘actively participating in hostilities’ and ‘not-actively participating in hostilities’, it can already be determined that the (Pre-) Trial Chamber was not overly concerned with setting a strict standard, although some activities were clearly regarded as not falling within that category.227 Also,
combat-related activities were held to be falling within the realm of ‘actively participating in hostilities’. By adhering to the standards in the Palermo Protocol, these problems are nearly all solved through the observance of child soldiering as a form of forced labour, which might backfire to some extent due to its
(in)compatibility with the specificity requirement as part of the legality principle, although this could be successfully countered in my view.
Another important expansion introduced by the Palermo Protocol is the possibility of disregarding whether there is an armed conflict or not. While many legal instruments confine themselves to a situation of armed conflict, the Palermo Protocol does not mention this. In light of this observation, it is interesting to note that the UN Model Law proposed to extend the list of exploitation to include ‘military use in armed conflict’. It remains unclear why it is necessary to include the highly-debatable nature of the term ‘armed conflict’; should not all children who are recruited by an organised (criminal) group to perform military tasks be awarded protection’? For the child itself, it certainly does not make much difference if there is an armed conflict or not.
A difficulty that may also be encountered within the framework of the Palermo Protocol that was already hinted at above is the fact that it might be hard to prove that children who are born into an armed group are there for the purpose of exploitation. There might very well be good reasons why the children are there, including to be raised by their parents; however, this would depend on the circumstances. If it can be established by a prosecutor that most of these children later will fight for the armed group, a situation that is not incomprehensible, then the aim of exploitation may also be proven.
227 Of course, as has been detailed in the section on international criminal law, the wide interpretation by the ICC Trial Chamber posed other problems.
2.7.1.3 The Obligation to Criminalise Human Trafficking
2.7.2 Conclusion
Chapter 3
Monitoring the Application of the International Legal Framework
ing
according
3.2 Criminalisation of the Enlistment, Conscription and Use of Child Soldiers
3.2.1 Scope of Criminalisation
the enlistment, conscription and use of s.
the enlistment, conscription and use of child soldiers through an construction in
criminalised through an all-encompassing
No armed forces other than the Defence Army of Israel shall be established or maintained except under law.
(a) If a person did one of the following, then he is liable to seven years imprisonment: (…)
(b) If he trains or drills the use of arms or the practice of military exercises, movements or operations at a meeting or assembly convened without Government permission or is present therein order to be so trained or drilled, then he is liable to three years´ imprisonment.
the conclude
child
Please provide information whether there is a specific penal provision for the crime of recruitment or use in hostilities of a person who is under the age of 18. In view of the State party’s international legal obligations, the Committee furthermore requests information regarding the corresponding applicable penal provision in the Palestinian Occupied Territory.
As detailed in Israel’s Initial Report, recruitment to the IDF is regulated through the Defence Service Law (Consolidated Version) 5746-1986. Further, the IDF is the only military body and/or agency in the State of Israel. No armed groups distinct from the IDF exist in Israel, nor are
they allowed to operate. This is in accordance with the Israel Defence Forces Ordinance, and Section 6 of Basic Law: The Army (1976), which holds that: “No armed force other than the Defence Army of Israel shall be established or maintained except under law”. In addition, Section 143 of the Penal Law 5737-1977 (the “Penal Law”) criminalizes unlawful military activities, as detailed in para. 62 of Israel’s Initial Report’ (…).
28. The Committee, while noting provisions on unlawful military activities in the Israeli Penal Law, is concerned that it fails to specifically include the crimes covered in the Optional Protocol.
29. In order to further strengthen international measures for the prevention of the recruitment of children and their use in hostilities, the Committee urges the State party to:
(a) Revise the Penal Code and include a provision which explicitly criminalizes violations of the provisions of the Optional Protocol regarding the recruitment and involvement of children in hostilities and include a definition of direct participation in hostilities.
AFFECTING CHILD SOLDIERING
The Committee, in its concluding observations, complimented Colombia on this specific provision as it includes recruitment by armed forces as well as armed groups, includes direct and indirect participation, and recruitment for intelligence purposes.246 The element of creating sufficient standards for the criminalisation of
the practice of enlisting, conscripting and using child soldiers can also be observed in the remarks of the Committee of Experts in relation to the ILO Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, which also often refers to the reporting procedures before the Committee on the Rights of the Child, the reports of the UN Secretary General on Children an Armed Conflict, and the resolutions adopted by the UN Security Council on Children and Armed Conflict.247
3.2.2 Jurisdiction and Extradition
Another element particularly relevant to the criminalisation of enlisting, conscripting and using child soldiers is jurisdiction. This is because conflicts frequently occur across the boundaries of States and, therefore, this crime can also very well be committed across jurisdictions. Particularly measures relating to extraterritorial jurisdiction and active and passive nationality jurisdiction can play a major role in the effective prosecution of the enlistment, conscription and use of child soldiers.
Active nationality jurisdiction can be exercised by the State if the perpetrator of the crime holds the nationality of that State, regardless of the place where the crime was committed. Passive nationality relates to the exercise of jurisdiction by the State if the victim has nationality of that State, regardless of the location of the crime.
Linked to the issue of jurisdiction is that of extradition. Again, if effective prosecution is to be guaranteed, it is necessary for it to be possible to extradite
intelligence for conveying orders, transport weapons or supplies or cause damage to any property for military purposes.
246 UN Committee on the Rights of the Child ‘Concluding Observation on Colombia’ (21 June 2010) UN Doc CRC/C/OPAC/COL/CO/1 para 28.
247 See for instance: ILO Committee of Experts ‘Report of the Committee of Experts on the Application of Conventions and Recommendations’ (2009) and ibid. (2012). See: Central African Republic (2009), 275; Chad (2012), 319; Colombia (2009) 283-284; Democratic Republic of the Congo (2012, 324; The Philippines (2012) 417-418.
3.2.3 (Modes of) Liability
3.2.4 Child Soldiers as Perpetrators
The Committee strongly recommends that the State party continue, and incorporate into its legislation, the practice of the Special Court [for Sierra Leone] with regard to the treatment of former child combatants as victims, the treatment of children appearing before the Special Court [for Sierra Leone] and other child protection matters. The Committee also encourages the State party to draw inspiration from the jurisprudence of the Special Court [for Sierra Leone] in this area.
3.3 International Cooperation
3.3.1 Universal Periodic Review
The encouragement of full cooperation and engagement with the Council, other human rights bodies and the Office of the United Nations High Commissioner for Human Rights.
Complement and not duplicate other human rights mechanisms, thus representing an added value.
46. The Committee recommends that the State party further strengthen its cooperation with the Special Representative of the Secretary-General for Children and Armed Conflict in order to effectively implement Security Council resolutions 1612 (2005) and 1882 (2009) within its jurisdiction.
47. The Committee welcomes the commitment expressed by the State party to ensure that children do not remain in illegal armed groups and encourages the State party to support the development of action plans with relevant parties in this regard, as recommended by the Secretary-General (S/2009/434, para. 83).
In order to compete in an increasingly competitive employment market, the Services need to attract young people aged 16 and above into pursuing careers in the armed forces. In doing so, the armed forced provide valuable and constructive training and employment to many young people, giving them a sense of great achievement and worth, as well as benefitting society as a whole.”
Due to the country’s partly still dramatic situations, it was apparent that it could not solve problems solely by itself. Comprehensive assistance of the international institutions, of the UN and the ILO, as mentioned in the report, was necessary.
Programmes had been established to remove children from military or sexual exploitation, which the participation of several ministries, NGOs and international organizations such as UNICEF, the UNDP, and the ILO. The programmes allowed around 30,000 children, between 2003 and 2006, to be released from the armed forces and armed groups.
The speaker concluded that the Office had to render assistance to the Government in order to increase the activities of the INPP (National Institute for Professional Training), to reinforce the legislation and thus bring it into conformity with Convention No. 182, to end the impunity of warlords (…).
3.3.2 Conclusion
3.4 Education and Awareness-Raising
measures Rights of
(such as subject. were all
3.4.2 General ublic
on
9. The Committee further recommends that, in the light of article 6, paragraph 2, the State party make the provisions of the Optional Protocol widely known and promoted, by appropriate means, to adults and children alike.
3.4.3 Children
3.4.4 Conclusion
3.5 Demobilisation, Disarmament and Reintegration of Child Soldiers
The United States of America noted Sri Lanka’s struggle against terrorism and recommended the following: (…)(c) demobilize child soldiers by assuring children serving with pro-government militias (forced or voluntary) are released and adequate resources allocated for disarmament, demobilization, reintegration, repatriation and other activities to halt the unlawful recruitment of children; (d) Sri Lanka’s plan to address the forcible recruitment of child soldiers should be publicized and (e) Sri Lanka should work with international and domestic non-State actors to halt the recruitment and use of child soldiers.
3. MONITORING THE APPLICATION OF THE INTERNATIONAL LEGAL FRAMEWORK
Belgium recommended to Sri Lanka to (a) step up efforts for the rehabilitation of child soldiers – in particular through enhanced cooperation with the international community.279
Also:
For the process of demobilization, rehabilitation and reintegration and on awareness-raising, the Government is working in close cooperation with the United Nations Children’s Fund (UNICEF), NGOs and non-governmental organizations.280
As a complementary measure to encourage States to seek the assistance of the international community in executing DDR programmes, many bodies have pressed States to undertake these programmes or to intensify existing programmes. Such encouragement can be mainly found in the Universal Periodic Review. Especially noteworthy in the context of the UPR is the involvement of UNICEF:
The Chadian Government has signed an agreement with UNICEF that makes it possible to reintegrate children released from the army into normal life.281
And in the involvement of the Security Council Working Group on Children and Armed Conflict:
Urging the Government of Nepal, bearing in mind the special responsibility of the newly appointed Minister of Women, Children and Social Welfare (…) To provide full support to UNMIN in separating children under the age of 18 from combatants during the process of cantonment of the combatants of CPN (M) [Communist Party of Nepal (Maoist)] with a view to reintegrating those children into their families as a matter of priority.282
Remarkable in the context of the Security Council Working Group are the referrals
279 Human Rights Council ‘Universal Periodic Review Report of the Working Group Sri Lanka para 27.
280 Human Rights Council ‘Universal Periodic Review Report of the Working Group Myanmar’ para 92.
281 Human Rights Council ‘Universal Periodic Review National Report Chad’ para 46. 282 United Nations Security Council Working Group on Children and Armed Conflict
‘Conclusions on children and armed conflict in Nepal’ (12 June 2007) UN Doc S/AC.51/2007/8.
Urging all parties (…) To release unconditionally all children present in their ranks in any capacity in order for them to be reintegrated into their families and communities and to engage at the earliest occasion with the United Nations country team, in particular UNICEF, for an action plan taking into account the Paris Principles: Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (…).
c ,
this
The Committee recommends that the State party continue and strengthen its efforts to provide children with comprehensive reparations measures and to ensure that gender perspectives are adequately taken into account and that measures are provided in a non-discriminatory manner irrespective of the illegal armed group from which the children are demobilized.285
should
3.5.3 ICRC
3.5.4 Conclusion
c measures
