At an age when every experience in life will influence them either for the best or the worst, many children are dragged into the midst of chaos, destruction and death. When many around the world sleep safely in a cocoon of peace and love, war is the reality of life, for many others.
With the increase in number and intensity of armed conflicts around the world, the modern international society is suddenly being forced to address a new development in the world scenario, where children no more than ten years are being forced to the frontline of battlefields.
A child soldier is defined as: “Any child- boy or girl-under the age of eighteen, who is compulsorily, forcibly or voluntarily recruited or used in hostilities by armed forces, paramilitaries, civil defence units or other armed groups. Child soldiers are used or forced sexual services, as combatants, messenger, porters and cooks.” [i] International law provides for the protection and overall development of children and many conventions and treaties have been formulated to this effect. Many international organizations have been working towards the effective implementation of these norms, leading to the consolidation of child rights as an important facet of International Humanitarian law.
INTERNATIONAL CONVENTIONS AND TREATIES
The Convention on the Rights of the Child, 1989 by the United Nations is the first official and legally binding international treaty to provide for the civil, cultural, economic, political and social rights for the children. It is the most widely adopted human rights treaty with 190 nations having ratified it. This Convention under Article 38 imposes a duty on States to ensure that persons who have not attained the age of 15 years do not take part in hostilities. Article 77.2 of the Additional Protocol I to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts, adopted in 1977 and Article 4.3.c of Protocol II endorse the same view. [ii] However, minors who are between the ages of 15-18 may voluntarily take part in combat as soldiers. [iii] The Optional Protocol on the Involvement of Children in Armed Conflict, 2002, under Article 6(3) requires States to disband children who have been engaged in hostilities, and provide assistance for their physical and psychological recovery and social reintegration. [iv]
Other international efforts that prohibit the recruitment children as child soldiers include the Cape Town Principles and Best Practices on the Prevention of Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa, 1997 [v] ; the Paris Commitments to Protect Children from Unlawful Recruitment or Use by Armed Forces or Armed Groups [vi] ; and the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups. [vii]
In addition, international criminal law, characterizes the use of children in armed conflict as a war crime. Furthermore, it provides for the rehabilitation and reintegration of these children into the society and taking into consideration their impressionable age and social circumstances, are not held liable.
Article 37 of the United Nations Convention on the Rights of the Child states that neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age. Similarly, the Paris Principles states that children, “… who are accused of crimes under international law allegedly committed while they were associated with armed forces or armed groups should be considered primarily as victims of offences against international law; not only as perpetrators. They must be treated in accordance with international law in a framework of restorative justice and social rehabilitation, consistent with international law which offers children special protection through numerous agreements and principles.” [viii]
CHILD SOLDIERING- A WAR CRIME
Article 8.2.(xxvi) of the Rome Statute of the International Criminal Court, 2002, declares enlisting children under the age of fifteen years into the national armed forces or using them in hostilities as a war crime. [ix]
Before we go any further into the details of the topic, let us understand what war crimes actually mean. Definition of a war crime under article 6 (b) of The Constitution Of The International Military Tribunal states: “Violations of the laws or customs of war- Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; ” [x]
The Statute of the Special Court for Sierra Leone (SCSL) constituted by the UN in 2002 in view of the extensive use of child soldiers in the Civil War in Sierra Leone is in line with the Paris Principles. Article 7 of the Statute does not restrict the prosecution of children but emphasizes on their rehabilitation and social reintegration. [xi]
Of particular importance is the decision of the Court in the case of Prosecutor v. Hinga Norman, [xii] where the Court held that the prohibition on the recruitment and use of children below the age of 15 had taken the shape of a “norm of customary international law” since November 1996 and as such draws “individual criminal responsibility” from that date. Based on this decision, the first convictions for recruiting and using child soldiers took place in 2007 by the SCSL when former leaders of the Armed Forces Revolutionary Council, Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu, , were found guilty. [xiii] In another case Issa Hassan Sesay and Morris Kallon, of the Revolutionary United Front, were found guilty of this crime. [xiv] The trial of former Liberian president Charles Taylor, ongoing before the SCSL, in the case of Prosecutor v. Charles Taylor, [xv] manifests this Court’s continued commitment towards eradicating the practice of employing child soldiers.
The International Criminal Court too has been instrumental in this regard. The Court had issued arrest warrants against Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen of the Lord’s Resistance Army in 2005 for crimes against humanity and war crimes including enlistment of children as child soldiers. [xvi] Likewise, in the case Prosecutor v. Thomas Lubanga Dyilo, [xvii] the Court charged Thomas Lubanga Dyilo, for enlisting and conscripting children under the age of 15 in the Democratic Republic of the Congo and using them to participate actively in hostilities. This decision was instrumental in problematizing the issue of child soldiers especially in Congo and other parts of Africa. [xviii]
Thus International law provides various safeguards for the protection and prevention of use of children in armed conflicts. However, it is estimated that children are involved in almost 75% of the armed conflicts around the world. [xix] They either enlist voluntarily, as the prevailing situations leave them with no other option, or are abducted from their homes and forcibly used.
REASONS FOR CHILD SOLDIERING
Of the child soldiers around the world, more than half is involved in the internal armed conflicts of the African nations. [xx] However, history shows that abuse of children is not confined as one would like to think, mainly to the African continent. Ancient Greeks, Romans, Ottoman Turks etc. trained and used young children as soldiers. [xxi] Even World War II saw children take part voluntarily in insurrections, or serving in anti-fascist resistance movements, Nazi Germany or in the Red Army. [xxii] At present child soldiers, in addition to Africa are also involved in the armed conflicts in Middle East, Asia and Latin America.
With the increase in the use of children as soldiers in armed conflict around the world, it becomes important to look at the underlying causes as to why they are being recruited so that modern international society can formulate effective methods to prevent further destruction of human life and rehabilitate those children who have been adversely affected by such participation.
Armed conflict has become such an integral part of everyday life in many of the third world countries that it is mostly ignored as the single most important reason for the rising numbers of child soldiers. [xxiii] Many at times families are scattered and the social support system fails that children are left with no other option but to join the different armed groups. In such an environment, they sometimes consider it legitimate to use weapons and violence. [xxiv] Neglected adolescence, breakdown of the social and familial structures within a community, and the displacement of children from their homes are some of the major reasons why children voluntarily enlist into the armed services. [xxv] However it cannot be said that they are volunteers, but joining the armed groups often seems better than other dismal alternatives. [xxvi] Poverty is another important factor contributing to the involvement of children in armed conflicts. An armed conflict further accentuates an already declining economic system, thereby worsening the condition of many sections of society. [xxvii] This in turn affects the education and thereby employment opportunities of many youths which would eventually lead to their recruitment as child soldiers. [xxviii] Many at times, the lack of opportunities and future prospects coupled with the need to voice their opinions and gain some sort of protection and attain dignity in life, are the major incentives for these children to join the conflict. [xxix] Displacement of families during armed conflicts also contributes to the enlistment of children as soldiers. In the last decade an estimated twenty million children have fled their homes due to armed conflicts. [xxx] The link between child soldiering and displacement is that the latter makes the child more susceptible to recruitment as an armed conflict threatens the equilibrium of the society and creates fear among the children about the immediate future. [xxxi] They usually face discrimination, are unable to access even the basic necessities of life and in the absence of adequate mechanisms to protect them, are easily influenced to join armed groups. [xxxii] Also, former child soldiers are not immediately accepted into the family or community, therefore, they have no incentive to return back to the society. [xxxiii]
Using children in armed conflict is also considered as a part of military strategy. They are considered as resources to be exploited and provide cheap labor. [xxxiv] They are young and impressionable, and therefore obedient and loyal. In many situations, witnessing brutality against family members propel children to join armed groups to seek “revenge”. [xxxv] Also, the present international scenario shows the increase in the number of girls recruited as soldiers. This is because they are a vulnerable group and could easily be sexually abused. [xxxvi] Being vulnerable and unable to make independent decisions, children can be easily terrorized into leading any sort of life that is being shown to them, even a very violent one.
IMPLICATIONS OF CHILD SOLDIERING
War has become such an inevitable part of life that we often forget or ignore its effect on young minds. While millions of children around the world suffer from the psychological aftermath of armed conflict, thousands of others unwillingly participate in the same and are scarred for a lifetime. Ishmael Beah, a former child soldier describes the condition of these children as this:“When children are subjected to war whether by witnessing atrocities, forced into a life of violence or becoming victims of the countless suffering brought about by war, they are not only traumatized, psychologically and physically damaged, but they lose faith in their own humanity, their ability to be children again, to trust, to be happy and find meaning in their lives.” [xxxvii]
The effects of war on child soldiers are immense and need to be specifically addressed to facilitate their effective integration into society. From the moment they are recruited, they are made to witness or commit heinous crimes, sometimes of their own family and friends so that they will not hesitate during combat. [xxxviii] They are beaten and tortured in case they try to escape, quashing any hope of freedom. [xxxix] Also to propel them into war and break their psychological barriers, they are given cocaine or alcohol. [xl] This amplifies their sense of fearlessness and a feeling of indestructibility, driving them to take unnecessary risks that adults would be averse to. [xli] Thus even when they are not in a situation of conflict, they suffer from psychological and sociological problems and in a majority of these children, there is a high risk of substance abuse. [xlii] Having been victims of physical and psychological abuse, these children often are angry and aggressive and need constant care and attention and need to be reunited and resettled with their families. [xliii] Amongst girl child soldiers, the after result of the conflict is that they are either subjected to trafficking or prostitution, again making rehabilitation a difficult process. [xliv] A heavy price is also paid by society, when large number of child soldiers are recruited, as these children lose out on schooling years thereby bringing to a standstill all economic and societal development. [xlv] Also as a result of years of psychological abuse, many children remain aggressive for years, thereby disturbing the stability of society. [xlvi] Many at times, families are unable to provide for the rehabilitation of these children due to poor economic conditions, thereby amplifying their problems even after conflict. [xlvii]
However, no matter what the adverse effects that society may face, it is important that the communities and governments jointly work towards the integration of these children into society and give them the necessary care and protection, so that they may return to the normal pace of life, wherein the nation as a whole could move forward. However this requires years of commitment from the society and establishment of a system that would be able to understand the immediate concerns and needs of the children and work consistently for their physical and psychological development.
Over the years child rights have been given great importance in international humanitarian law. However child soldiers only came into the focus of international society only two decades ago, before which the existence of such a phenomenon was conveniently ignored or remained out of the focus of international society.
Children do not start wars, however, they suffer from its deadly aftermath. They are exposed to violence and brutality either by force or without any coercion. Whatever be the reasons, war leaves a long trail of destruction in their lives. The use of children in armed conflicts, for any reason is violative of international norms and laws.
LACUNA IN THE LAW
Though there were no specific laws relating to children in armed conflicts until the mid 1990-s, many international conventions dealt with the issue of child soldiers, but not imposing a blanket ban. Article 38 of the United Nations Convention On The Rights Of The Child, 1989 and Article 77.2 of Additional Protocol I to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts provides that state parties should take all possible measures to prevent the direct participation of all children below the age of fifteen in hostilities. The wording of both these article show that they do not prescribe a complete ban on the use of child soldiers but prevent their recruitment only to such a level as is possible for the state party in question. Also the use of the term “direct” indicates that children may be used in combat indirectly. [xlviii] Thus the provisions gave a wide scope for violation and exploitation of children. However Article 8.2.26 of the Rome Statute of the International Criminal Court (ICC), states that “conscription and enlistment” of children under the age of fifteen in an armed conflict is a war crime, thereby criminalizing the act under international law.
The key developments in international law with regard to the protection of children in armed conflict started almost two decades ago when as part of the United Nations initiative, Graca Machel , the former Minister of Education of Mozambique in 1994 to conduct a study on the conditions of children involved in armed conflict. [xlix] On the basis of the recommendation of that report, which called for immediate steps to stop the exploitation of children, a Special Representative was appointed by the United Nations. In February 2002, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict came into force and was considered as an important milestone. [l] Though the protocol has increased the age limit of children taking part in direct hostilities from fifteen to eighteen, it only obligates state parties to take feasible measures to prevent such recruitment, again providing scope for violation.
Though there are many provisions prohibiting the recruitment of children into armed groups, international law has not fully concentrated on the rehabilitation of these children and their reintegration into their families and society. Article 22(2) and Article 39 of the UN Convention on the rights of child are amongst the very few provisions of international law that concentrates on the same.
Despite several attempts by the international community, there still remain many obstacles that prevent these rights from being appropriately enforced. International law provides that treaties are binding only on parties that have ratified them. Thus even with the existence of many conventions and treaties, every nation has an option to refrain from ratification and thereby escape the legal hassles. There are also various domestic problems that prevent the effective implementation of treaties. Unavailability of proper infrastructure and administrative system, financial instability, and the absence of a stable environment are some of the reasons generally cited in defense of the non implementation of treaty provisions. Thus the mere ratification of these treaties will not lead to the improvement of the rights of the child. It requires strong political will, a change in the social outlook and strong administrative systems. [li] In many of the third world nations, existing internal armed conflict, crumbling social and administrative structures and weak economy leads to the increase in the recruitment of child soldiers. In these countries where situation requires that these rights be strictly enforced, the very same reasons become major obstructions. Also the guardian of rights in the modern world, the United Nations does not have an effective enforcement mechanism. [lii] It lays down the guidelines in the various conventions, but fails when it comes to its grass root level implementation. Even in the case of violations, it merely makes reports and provides advices which are not binding on any party, thereby diluting the effectiveness of the entire system. [liii]
In order to return to these children their childhood, international institutions should lobby for effective mechanisms including severe international pressure and sanctions on those countries that do not effectively establish and enforce national legislations for the rehabilitation of child soldiers and persecute their recruiters. Consistent support of national Governments and their cooperation with international organizations will go a long way in effectively rooting out this process.
Until such cooperation and commitment can be achieved, every day one more child will die in the battle fields of Congo and another will take up arms in the mountains of Afghanistan.
Aakanksha Singh & Reshma Ann Mathews
(For A K Singh & Co.)