Every month approximately, TRIAL will comment on a video concerning international justice or current news on international humanitarian law or human rights. This month's video is  on the subject of child soldiers.

“This is a case about children having been used to participate actively in hostilities. Thomas Lubanga Dyilo made the children train to kill. And they killed. And the children died in combat.”

These were the words used by the first substitute prosecutor of the International Criminal Court in summarising the charges against Thomas Lubanga Dyilo, the first defendant to appear before the Court since its establishment in 2002.

Thomas Lubanga holds Congolese nationality (Democratic Republic of Congo) and was the head of the Union of Congolese Patriots (UDC) which is accused of committing atrocities in the Ituri region between 2002 and 2004. He was arrested in March 2005 and the following year was transferred to the custody of the International Criminal Court in The Hague. He has been charged with enlisting and conscripting children under the age of fifteen years and using them to participate actively in hostilities as members of the military wing of the UPC, the FPLC (Patriotic Front for the Liberation of Congo), as set out in articles 8-2-b-xxvi and 8-2-vii of the Statute of the Court (cf. Decision confirming the charges dated 29.01.07)

This trial, which will be the first to be heard by the International Criminal Court, is a clear indication of the importance given over the past few years to prosecuting and punishing under international criminal law those guilty of using child soldiers It is a sad fact that the use of child soldiers is not new since they have been found in the field of battle from the beginning of time. Today, for example, they have been used in recent conflicts in Liberia, Sierra Leone, Uganda, Rwanda, the Democratic Republic of Congo, Columbia, Sri Lanka and also in Nepal and the Philippines. However, it is only over the past thirty years or so that international public opinion and law have began to take a closer interest in the question with the intent to codify it. As a result, but starting only in 1989, a text entirely devoted to children was adopted, the International Convention on the Rights of the Child (UNCRC), and it was necessary to wait until 2000 to see the adoption of the Optional Protocol on the Involvement of Children in Armed Conflict. It is therefore worthwhile to provide some additional insights into this issue.

Definition

Before considering the question of child soldiers it is necessary to take into account the notion of what constitutes a child in international law. It is difficult to find one single definition, since definitions are based on the notion of age, a notion which can vary according to the wording of the texts and the different cultures and traditions. According to the UNCRC, a child is a person less than 18 years of age «unless majority is attained earlier as set out in legislation applicable to that person” In Africa, the definition is more clearly defined, at least for the 41 countries having ratified the African Charter on the Rights and Welfare of the Child, since based on Article 2 of the Charter, majority is attained at 18 years of age. International Humanitarian Law is more ambiguous on the subject since the Geneva Conventions and their Additional Protocols use a range of vocabulary such as simply, child, or sometimes, children and adolescents, or children aged less than 12 years old, or less than 15 years old, or even persons aged less than 18 years old and then again the term minors.

The concept of the child soldier has not been explicitly defined in law. The law is quite content to indicate an age below which a child cannot take part in hostilities (cf. below) without going into details. However it should be noted that an initiative on the part of UNICEF led to a first attempt at definition as detailed in the Cape Town Principles, adopted in 1997 following a symposium of experts. “Child soldier” in this document refers to:

“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 for forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms.”

Ten years later the Paris Principles, which were developed by States, civil society and international organisations, expanded and deepened the 1997 principles. Nevertheless as the name indicates, these are only non-binding directives. However, it is to be hoped that emerging jurisprudence on the subject as we shall see below, will help to bring a more precise definition to this notion.

Prohibition of the recruitment of child soldiers in international law

Such prohibition is included in several texts. It first appeared in the 1997 Additional Protocols to the Geneva Conventions, the mainstay of international humanitarian law, which banned the recruitment of children less than 15 years old into the armed forces and their participation in hostilities (Articles 77§2 PA 1 and 4§3c PA11). This prohibition has also been set out in several recent legal instruments on human rights but the age set down varies depending on the texts. For example the Optional Protocol to the UNCRC of 2000, requires States to “ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces”. However, only compulsory recruitment is forbidden.  As to voluntary recruitment, article 3 of the same protocol requires States to raise the minimum age for enlisting, and, where it is allowed for children under 18 to enlist, it lays a few safeguards that must be respected. For armed groups, on the other hand, the prohibition is total since it is stated that “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”.

Under international criminal law, however, any indictment for the recruitment of child soldiers is only concerned with children less than 15 years of age (cf. Statutes of the International Criminal Court and the Special Court for Sierra Leone).Thus it would seem that even if certain texts outlaw it, both the recruitment and the forcible participation of children under 15 years of age in hostilities, are not indictable offences under international criminal law, at least until today.

Making a criminal offence of the recruitment and use of child soldiers

According to the Statute of the International Criminal Court a crime is committed when “conscripting or enlisting children under the age of 15 years into the armed forces (national or not, and into armed groups) or using them to participate actively in hostilities” (Articles 8-2-b-xxvi and 8-2-e-vii).

Two distinct violations can be identified on the basis of this text:

- Enlisting or conscripting: both terms make reference to different methods of recruitment. In the first case, it is voluntary; in the second it is enforced. Thus, the consent of the child can not be used as a valid defence argument. It should also be pointed out that what is involved is an offence of an ongoing nature. Indeed, “the crime of enlisting or conscripting children under the age of 15 years continues to be one whilst the children remain within armed groups or forces and as an outgoing consequence ceases to be the case whenever the children leave such forces or attain the age of 15 years”[1].

- Active participation in hostilities: this concept has been given greater precision under jurisprudence. It concerns “not only direct participation in hostilities, meaning in active combat, but (….) also the fact of participating actively in activities related to direct combat such as reconnaissance, spying, sabotage as well as using children as decoys or messengers or their use at military checkpoints”[2].

These first elements in coming to a better definition of the situation constitute an important advancement in the protection of children in armed conflicts. It is advisable for judges in the future to continue such progress, which no doubt they will do, since several affairs which are underway will oblige them to give further consideration to the question.

Indeed, the three other defendants brought before the International Criminal Court within the context of the situation in the Democratic Republic of Congo, Bosco Ntagunda, Germain Katanga and Matthieu Ngudjolo Chui, are also accused of enrolment and conscription of children less than 15 years of age and of forcing them to participate directly in hostilities. Identical charges have been brought against the Ugandans, Joseph Kony and Okot Odiambo who are all currently the subject of an international arrest warrant from the International Criminal Court. Finally, it is to be noted that there have been legal precedents since 2007. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu have all been found guilty of such crimes and sentenced by the Special Court for Sierra Leone. Other trials are also underway before this same court for similar offences, notably that of Charles Taylor.

Bibliography

Child soldiers, ICRC brochure.

Enfants-combattants prisonniers, DUTLI (M.T.), I.R.R.C., October 1990, n°785.

Victimes et bourreaux : questions de responsabilité liées à la problématique des enfants-soldats en Afrique, ARZOUMANIAN (N), PIZZUTELLI (F), I.R.R.C., December 2003, vol 85, n°852.

International legal standards governing child soldiers, Human Rights Watch.
 

Websites to visit

UNICEF

Office of the Special Representative of the Secretary-General for Children and armed conflict

Coalition to stop the use of child soldiers

No Child Soldier Project (in French)