The Use Of Child Soldiers In Armed Conflict: International Law Perspective -By Oyetola Muyiwa Atoyebi & Victor Atang

INTRODUCTION

A Child soldier can be any person under eighteen years associated with an armed group and fulfilling any role that may or may not involve combat. Children across the globe constitute members of state military and other armed groups. The widespread availability of small arms has made it physically possible for children to participate in more lethal combats. Children become involved in armed groups through abduction, threats, pressure and manipulation. Voluntary association also occurs in the context of poverty, gender and ethnic discrimination and state-sponsored violence. This paper aims to elaborate on the phenomenon of child soldier participation in armed conflict, and the measure taken by the international community in coping with this menace.

CONCEPTUAL ANALYSIS OF A CHILD SOLDIER

There abound many definitions of a child as a result of the fact that children can be viewed from many perspectives, such as culturally, religiously, psychologically, legally and even biologically. According to Black’s Law Dictionary, a child is defined as a “person under the age of minority.” The United Nations Convention on the Rights of Children, 1989 states that “a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier”.

According to Paris Principles and Commitment on Children Associated Armed Conflict or Armed Groups, a child soldier is defined as a human being below 18 years old, recruited by an army or simply participating in an armed conflict group in any capacity including fighters, cooks, porters, messenger, spies or for sexual purposes.

THE HISTORICAL DEVELOPMENT OF THE USE OF CHILD SOLDIERS IN ARMED CONFLICT

In time past, children were excluded from warfare in almost every traditional culture. For instance, in pre-colonial African Armies, the general practice was that the warriors typically join five years after puberty. In the Zulu tribe of South Africa, it was not until the ages of eighteen to twenty that members were eligible for ‘Ukubuthwa’ (the drafting or enrolment of the tribal regiments).[1]When children of lesser ages served in ancient armies, such as the enrollment of Spartan boys into military training, at ages seven to nine, they typically did not serve in combat. Instead, they carried out menial chores such as herding cattle or bearing shields and mats for the more senior warriors. In absolutely no cases were traditional tribes or ancient civilizations reliant on fighting forces made up of young boys and girls. Similarly, in European history, the exclusion of children in warfare was a general rule. However, some male children did perform some ancillary roles and were not considered combatant. They neither dealt out death nor were they considered legitimate targets. Thus, children were excluded from hostilities although a few of them were involved in minor military campaigns.[2]

The earliest mention of minors involved in wars dates back to antiquity. The Roman Empire made use of children in wars, most aged 14 and above who served as aides, charioteers and amour bearers to adult warriors. Another important event that marked the participation of children in conflict was the World War I of 1914 where children participated on all sides. The youngest known child soldier of World War I was Momčilo Gavrić, who joined the 6^th Artillery at age 8 after Austro-Hungarian Troops in August 1914 killed his parents, grandmother and siblings[3]. In the 21^st Century, children have become easy targets for military recruitment due to their susceptibility to influence compared to adults. Some children are recruited by force while others choose to join up, often to escape poverty or because they expect military life to offer a rite of passage to the military.

THE INTERNATIONAL LEGAL REGIME PROHIBITING THE USE OF CHILD SOLDIERS

International Humanitarian Law and International Human Right Law have developed concurrently as a legal response to the issue of child soldering. There are a plethora of international legal instruments prohibiting the involvement of children in armed conflict situations. They include the following;

The Convention on the Rights of the Child (CRC) 1989

The Convention on the Rights of the Child (CRC) is one of the core treaties currently in effect and the only one that focuses entirely on children. The United Nations General Assembly adopted the CRC in 1989 and it took effect on 2^nd September 1990, after 20 countries ratified it. It is the most widely adopted Human Right Treaty, as 192 of the 193 United Nations Member States are parties to it. The CRC is primarily concerned with four aspects of children’s rights (the four P’s): participation by children in decisions affecting them; protection of children against discrimination and all forms of neglect and exploitation; prevention of harm to them; and provision of assistance to children for their basic needs. Article 38 of the CRC places a duty on States to take measures to ensure that children under the age of 15 do not take a direct part in armed conflict and prohibits the recruitment of children under 15 years of age[4]. It further prohibits the forceful conscription of children into the armed forces. It is however pertinent to note that the CRC has failed to stipulate one universal age for the conscription of children into armed forces and armed groups. The CRC stipulates in Article 1 that a child is any person under the age of 18 and goes on in Article 38(3) to give state armed forces the right to conscript children between 15-18 years of age.

The Rome Statute

The Rome Statute of the International Criminal Court (ICC) is the first international treaty to criminalize the recruitment of child soldiers under the age of 15 as a war crime in Article 8 (2) (b) (xxvi).[5]However, despite the Rome Statute’s continuing emphasis on age fifteen, an international consensus appears to be emerging around raising the age of allowable direct participation in hostilities to eighteen years of age[6]. An epochal case adjudicated by the ICC on child soldering was the case of The Prosecutor V Thomas Lubanga Dyilo[7]. In this case, Lubanga, a former rebel leader active in the Ituri Province of the Democratic Republic of Congo (DRC) was found guilty on 14^th March 2012 of the war crime of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities from the 1^st September 2002 to the 13^thAugust 2003 within the meaning of Article 8 (2) (e) (vii) of the Rome Statute.

The African Charter on the Rights and Welfare of Children

The African Charter on the Rights and Welfare of Children (ACRWC), the first regional treaty on children’s rights builds on the 1979 Declaration on the Rights and Welfare of the African Child. The preamble states that “a child occupies a unique and privileged position in the African Society and requires legal protection as well as care with regard to health, physical, mental, moral and social development”. This Charter, though only a regional charter, is important for several reasons. It recognizes that the right and welfare of the child are more important than the type of conflict in which the child is involved. It advances current international humanitarian protection by establishing that a child is anyone under the age of 15. The ACRWC has also mandated “parties to the Charter shall take all necessary measures to ensure that no child shall partake in hostilities and refrain in particular, from recruiting any child[8]”.

International Labour Organization (ILO) Conventions on Child Labour

The two ILO Convention on Child Labour are Convention No. 138 Minimum Age Convention and Convention No. 182 the Worst Form of Child Labour. These two Conventions are ‘fundamental conventions’. The implication is that under the ILO Declaration on Fundamental Principles and Rights at Work, all ILO member States have an obligation to respect, promote and realize the abolition of child labour, even if they have not ratified the convention in question.

USE OF CHILD SOLDIERS: A WAR CRIME?

The impact of armed conflicts on children has become more severe and devastating, given their vulnerability and inability to protect themselves. The use of child soldiers has been added as a war crime under the corpus of international war crimes[9]. The development of international legal thoughts and policy on the phenomenon of child soldiers has evolved from challenging the appropriateness of the practice of enlisting children to enforcing a prohibition regime on children in the armed forces. In this regard, the earlier cited Lubanga’s case[10]is a noteworthy example.

Responsibility for the Use of Child Soldiers

International humanitarian law has developed various theories with regard to the responsibility for the use of child soldiers. They include:

1. Command Responsibility for the Use of Child Soldiers

Article 28 of the Rome Statute is to the effect that a military commander or a person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his effective command as a result of failure to exercise control over such forces. Command responsibility depicts where a military leader or some acting as such is responsible for the conduct of those under his command and over whom he has effective control, given that he not only should, but indeed, is obliged to know what they are doing and to adopt necessary measures within his power to prevent such unlawful acts.

1. Individual Responsibility for the Use of Child Soldiers

The Rome Statute of the International Criminal Court in Article 25(2) states that “a person who commits a crime within the jurisdiction of the Court shall be individually responsible for punishment in accordance with the statute”.

The Rome Statute has placed a personal liability on any person who commits a crime of which the ICC has jurisdiction. In the case of Prosecutor V Dominic Ongwen[11], the Defendant was 10 years when he became a soldier with the Lord’s Resistance Army in the 1980s and rose to become a leader of a rebel group in Uganda. He was charged with 61 count charge of war crimes and crimes against humanity committed in 2005 and was accordingly found guilty and sentenced to 25 years’ imprisonment. It has been argued that Ongwen is the first known person to be charged with the same war crimes of which he is also a victim though. In Prosecutor V Alex Tamba Brima Bazzy & Ors[12], the Appeal Chamber of the Special Court for Sierra Leone confirmed the conviction of the defendants for the war crime of recruiting children below the age of 15 into military groups, among other crimes. This is the first time individuals have been convicted for the use of child soldiers.

1. Responsibility of Child Soldier

The Rome Statute of ICC in Article 26 states that the Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of the crime. This means that any person who is a minor and commits any offence or omission which amounts to a crime under the Court jurisdiction cannot be brought before the Court as an accused. This position tends to see the child soldier as a victim and not the perpetrator. This position is further strengthened in the case of Prosecutor V Dominic Ongwen[13]. The Court took its time to distinguish the case from every other case stating that when the accused was conscripted he was barely a child and lacked the necessary mental capacity for the crime committed. The Court stated that his conviction was solely based on war crimes committed when he became an adult and had the full ability to discern good or evil.

CONCLUSION

The use of child soldiers has been criminalized in various international legal instruments. It is however, evident that these legal instruments have authoritatively failed to halt the continual use of child soldiers in active hostilities. It has also failed to set out one generally accepted and binding age that constitutes childhood in the different instruments, thereby creating a lacuna that has now formed a defence for some perpetrators of the use of child soldiers in conflict. This has made it imperative for the Nations of the world to increase efforts in promoting and enforcing child’s rights especially as it relates to participation in conflict.

SNIPPET

The evolution of international legal thoughts and laws on the phenomenon of child soldier has developed from challenging the appropriateness of conscription of children in armed forces to enforcement of prohibition regime on children in armed conflict in the International Criminal Court (ICC)

Key terms:

Child soldier, war, international law

AUTHOR: Oyetola Muyiwa Atoyebi, SAN

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of International Law Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Victor Atang

Victoris a member of the Dispute Resolution Team at OMAPLEX Law Firm. He also holds commendable legal expertise in International Law Practice.

He can be reached at victor.atang@omaplex.com.ng

[1]T. W. Bennet : Using Children in Arm Conflict; A  Legitimate  African Tradition? (Essex, UK: Institute for Security Studies) https://www.essex.ac.uk/armedcon/issues/text/soldiers002.htm> accessed 19^th May, 2023

[2]W Michael: ‘Child Soldiers’ (1997) Bulletin of the Atomic Scientist

[3]W Marian and Cornish: Auntie Mabels War; An Account of her part in the Hostilities of 1914-18(1^st ed, Allen Lane 1980)

[4]CRC, Article 38 (3)

[5]https/www.icc-cpi.int/pages/record.aspx?uri=1379838 accessed on 19^th May, 2023

[6]N Grossman: ‘Rehabilitation or Revenge; prosecuting Child Soldiers for Human Right Violation (2007)  Georgrtown   Journal of International Law

[7]ICC-01/04-01/06, International Criminal Court

[8]Article 22(2)

[9]Article 8 of the Rome Statute of the International Criminal Court

[10]Supra

[11] ICC-02/04-01/15

[12]Case No. SCSL-2004-16-A

[13]Supra