Author: Nathan Tsormetsri

Children in conflict zones

This paper is an attempt to understand the problems faced by children caught in conflict zones. It starts

with an introduction which explores in detail the various problems. It goes on to critically consider the

effectiveness of various international instruments implemented in a bid to curb the problems identified.

It then recommends possible ways for further improvement.

The plight of children caught up in conflict zones in modern times cannot be overstated. The conflicts

for example in Sudan, Angola, Somalia and Yugoslavia have focused attention mainly on plight of the

child.1 Children around the world have fought in about 36 conflicts and been recruited in over 85

countries to serve as cooks, messengers, combatants, human shields, mine testers as well as sex slaves

for military leaders in conflict zones.2

Open warfare in the past century between sovereign states gave way to internal armed conflicts which

often had within it concealed support from outside States. Similarly in modern times, military strategy

has changed with modern strategy which for example seeks to conceal the differences between fighters

and non-fighters by disguising combatants within the general population. This in turn affects children

the most as many internal conflicts are perpetrated along tribal lines which regards any person within

that particular tribe or group as an enemy.3 Consequently, civilian casualties continue to increase as for

example, about 5 per cent of total casualties in the First World War were civilians, this number had

risen to about 50 per cent by the end of the Second World War and it is still rising.4 The last decade for

example had about 1.5 million child deaths resulting from internal armed conflicts with 5 million

children escaping conflicts and as a result living in refugee camps, and about 4 million children left

disabled due to war wounds.5 Also, “three out of the five countries with the highest child mortality rates

in 2013 were conflict countries”.6

Electronic copy available at: http://ssrn.com/abstract=2596319

Furthermore, territories where armed conflicts are known to be undertaken have seen a geographical

shift in pattern with majority of them now taking place in developing countries. In 1986 for example,

140,000 children in Mozambique and Angola together died as a result of conflict and its consequential

destabilisation. A figure which equates to about 45 per cent of the total children and infant mortality

rate of both countries together.7 Makamure8 in this regard acknowledged that “the poorly developed

economic resources in Africa are such that the outbreak of war leads to economic dislocation and

consequent large scale hunger and starvation among civilian population, mostly among women and

children”.9

International law regarding rights of the child recognised the protection of children in armed conflicts

as one of its earliest concerns. However, it accorded it minimal protection. The 1907 Hague Convention

Respecting the Laws and Customs of War and Land also incorporated the principle of respect for family

life10 with total disregard to considering whether children with their families and or separated from them

required additional levels of protection. Furthermore, the 1924 Declaration of the Rights of the Child

which had its origins from the concerns for children affected by armed conflicts in the Balkans provided

only that “in times of distress children should be the first to receive relief”.11

Nevertheless, the 1949 Geneva Convention on the Protection of Civilians, ‘Geneva Convention 4’

changed the situation by incorporating 17 articles with the main concern regarding children. This gave

children general protection as civilians. They accorded children with special protection in both occupied

and unoccupied territories.12 Although this 1949 Geneva Convention13 may be regarded as a success

when compared to the previous attempts in finding a solution to the problems of children caught in

armed conflicts, it lacked a minimum age prescription for the participation of children in hostilities and

no additional specific protection for those caught up in an increasing number of internal armed

conflicts.14 The United Nations General Assembly in 1974 in its attempt to address the issue, adopted

the “Declaration on the Protection of Women and Children in Emergency and Armed Conflict”15 with

the Preamble drafted as “Bearing in mind the need to provide special protection for women and children

belonging to the civilian population …”16 This is clearly evident that the issue of child combatants was

beyond the Assembly’s scope. Nonetheless, the adoption of the Declaration facilitated the acceptance

Electronic copy available at: http://ssrn.com/abstract=2596319

of two additional Protocols to the Geneva Convention regarding the provision of special protection to

children.17 These two additional Protocols to the Geneva Convention provided an opportunity for

raising the standards on the protection for children in conflict zones within a less contentious

framework. The standards were however arguably lowered18 with fewer states being party to the

Protocols than to the Geneva Conventions themselves.19 The Additional Protocol I of this Geneva

Convention adopted on 8 June 1977 for example became the first International agreement tackling the

subject of child combatants and putting in place sanctions against individual States engaging in the act.

It states that:

“[T]he 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”.20

The Additional Protocol II also implemented minimum standards to apply to non-international armed

conflicts taking place within the boundaries of a lone State. It’s Article 4 for example states that

“children under 15 years shall neither be recruited in the armed forces or groups”.21

ACTIVE PARTICIPATION OF CHILDREN

The active participation of children in conflicts begs the question whether they ought to be enlisted into

the Armed Forces or whether they ought to be allowed to take part in armed conflicts.

About 200,000 child soldiers are estimated to be in the world engage directly or indirectly in armed

conflicts.22 Those who engage directly take the form of combat activities and those engaging indirectly

take the form of assisting in the transportation of munitions and arms as well as helping in sending or

the dissemination of military information. Furthermore, 10 to 18 years olds in some 20 countries

participate in military training and some even allow children to take part in war before they reach voting

age.23

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It is worth reiterating that given that it takes only 45mins for a child to master the use of an AK-4724

and according to the Canadian delegation at the drafting of Protocol 1 Article 77 stated that children

between 16 and 18 years old were more physically equipped to undertake fighting activities than their

fathers.25 Therefore, many countries would be deprived of a substantial proportion of its potential

effective combatants if International Law undertook measures to prohibit the recruitment and

prohibition of children in armed conflicts. An example of this case in point was seen in the Iran-Iraq

war where children who were under 15 years old and took part in the war were regarded as ‘a powerful

fighting force’. This was testified by the Iraqi soldiers as that “they found the Iranian child soldiers

against whom they fought were the most difficult because ‘they had no fear’ and that an army without

fear is the most dangerous army in the world”.26 This experience is consistent with that of Cambodia

where one Khmer Rouge officer for example stated that “it usually takes a little time but eventually the

younger ones become the most efficient soldiers of them all”.27

INTERNATIONAL HUMAN RIGHTS LAW

The Convention on the Rights of the Child (CRC)28 consisting of 193 ratifying parties is known to be

the most widely ratified treaty on human rights to date. This Convention which was adopted on 20

November 1989 is undoubtedly evidence to suggest that children were required to be accorded some

special rights and protection. Nevertheless, this Convention had no specific provision on children

caught or involved in armed conflicts.29 It was not until 25 May 2000 when the General Assembly

adopted the Optional Protocol to the Convention on the Rights of the Child regarding children involved

in armed conflicts (CRC Optional Protocol).30 It was fully enforced on 12 February 2002.31 It required

States to ensure that children under 18 years old were only recruited into the armed forces voluntarily32

and not compulsorily.33 It is however worthy of note that this Optional Protocol Article 3(2) although

required the establishment of a minimum voluntary recruitment age with safeguards to guard against

the compulsory enlistment of under 18 year olds, it placed no obligation on States to set a minimum

voluntary enlistment age to correspond with the minimum compulsory age recruitment. It merely stated

that States to take into consideration that “persons under the age of 18 are entitled to special

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protection”.34 A total of 182 States as of April 2010 had ratified the Optional Protocol of the Convention

on the Rights of the Child.35

Other International conferences and guidelines for governments and communities to take action in

support of the fight against child soldering have also been undertaken. A notable example is the 1997

Cape Town Principles and Best Practices on the Prevention of Recruitment of Children into Armed

Forces popularly known as the “Cape Town Principles”. This and similar guidelines although not

legally enforceable rules have helped in bringing attention to the issue of children in conflicts and

mobilised support for the approval of international treaties. The “Cape Town Principles” for example

defined ‘child soldiers’ as “any person under 18 years of age who is part of any kind of regular or

irregular armed forces or group in any capacity”.36 It has provided protection for any child that is

involved in armed conflict whether or not at the front line of combat.37

Another remarkable treaty on the fight against child soldiers is the African Charter on the Rights and

Welfare of the Child38 which was adopted on 29 November 1999. It ensured that signatory States took

“all necessary measures” to preclude children from directly taking part in conflicts and to particularly

refrain from recruiting them.39 This treaty although makes no reference to Non-State armed groups and

their responsibilities, it has ensured that children are regarded as any person under 18 years old which

is categorically defined in the treaty.40 This treaty as at February 2010 had been ratified by 45 States

out of the 53 African Union Member States.41

INTERNATIONAL CRIMINAL LAW

The Rome Statute of 199842 which established the International Criminal Court categorically made the

recruitment and active participation of children below 15 years in conflicts both internal and

international as a war crime.43 These war crimes are regarded as the “violations of law and customs of

war incurring individual criminal responsibility”.44 This therefore means that any individual being a

State or Non-State actor who engages in the act of recruiting or using children under 18 years of age is

criminally liable under the 1998 Rome Statute.45 This treaty has got 139 States signed up to it as at

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December 2014.46 Although this treaty evidently protected children below the age of 15, it did place a

burden on ‘would be’ individual recruiters or users of children in conflicts to first and foremost take a

positive step to ensure that the ‘would be’ recruits are of legal age, that is being of age 15 and over.47

It is worthy of note that other hybrid international-national tribunals have further been established in a

bid to combat the issue of children in armed conflicts. An example of these type of tribunals is the

Special Court for Sierra Leone (SCSL) established in 2002 to undertake prosecutions for the atrocities

committed during the civil war in Sierra Leone.48

INTERNATIONAL LABOUR LAW

International Labour law has to some extent tried to curb the issue of child soldiers in armed conflicts.

For example, the ‘Worst form of Child Labour’ Convention held by the International Labour

Organisation on 17 June 1999 resulted in the adoption of the Convention No. 182 on prohibition of

forced or compulsory enlistment of children below 18 years old for the purposes of armed conflicts. 49

This Convention No. 182 was ratified and in full force within 18 months from its adoption.50 This is

evident that there was speedy agreement within the International Community that special legal

protection for children which were similar to that required for the very worst form of human rights

abuses was necessary.51 It was for example stated at the African Assembly for the Defence of Human

Rights in Dakar on 9 June 2009 that “children as soldiers is the worst form of child labour that exists

because of the mental effects that remain long after the conflicts end”.52

It is seen from the above that various legal instruments have been adopted by the international

community to help solve the problem of children in conflict zones. Nevertheless, it is believed that more

can be done to further reduce if not totally eradicate the problem. The following recommendations

constitute some of the measures that can be engaged to help solve the problem.

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RECOMMENDATION FOR FURTHER IMPROVEMENT

Establishing a clearer set of rules:

Given the non-uniform set of customs and ideas amongst societies and the dissimilar definitions of the

“child” in different cultures, establishing a clearer set of rules for protecting children involved in or

from the participation of armed conflicts will assist in setting a uniform set of standards across the

globe. This for example can be undertaken by adopting additional protocols to the existing protocols to

clarify the language of the treaties. This will help eradicate the confusion regarding whether children

are truly protected under International Law and the circumstances under which they are protected. A

problem which often occurs from the ambiguous language and conflicting standards of treaties. These

need to be simplified and strengthened so as to create a uniform standard, preserve their importance and

to challenge all individuals and States to uphold the highest level of human rights and not just the

marginally acceptable. These will for example raise the legitimacy of sanctions and International Law

as they will hold all armed forces to the same rules of behaviour. The International Covenant on

Economic, Social and Cultural Rights Optional Protocol was for instance adopted in 2008 to “clarify

the meaning and scope” and to “assist States in understanding their obligations” under the original

treaty.53

Comprehensive definition of “Child soldiers”:

There is also the need for a comprehensive definition of “child soldiers” under International Law. This

in particular is one of the main inconsistencies seen under the Optional Protocol of the Convention on

the Rights of the Child. The “Child” is for example defined in its preamble as “every human being

below the age of 18 years unless, under the law applicable to the child, maturity is attained earlier”.54

Official interpretation is therefore required to prevent States to interpret the language in a way to favour

them so as to for example place national interest above the rights of the child. Given that children

affected by war is part of the United Nations Security Agenda as per Resolution 1261 of August 1999,

the organs of the United Nations have a responsibility to enquire about legal questions regarding the

protection of child soldiers.55 This therefore shows that the plight of child soldiers is regarded as a part

of the core responsibility for maintaining international peace and security of the Security Council.56

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Utilisation of enforcement mechanisms:

Prosecutions by the International Criminal Court (ICC) is regarded by far as one of the credible threats

that leaders of warring parties face.57 It is for example stated under the Rome Statute that the

“International Criminal Court has the power to exercise its jurisdiction over persons for the most serious

crimes of international concern”.58 This mandate has enabled the International Criminal Court to

undertake prosecutions such as charging Thomas Lubanga Dyilo of the Democratic Republic of Congo

(DRC) under the Rome Statute Article 8 for incorporating children into the Union of Congolese

Patriots.59 The ICC under this mandate was also able to issue a warrant of arrest against an acting head

of State, President al-Bashir of Sudan on 4 March 2009.60 This arrest warrant although not including

child soldiering charges highlights the point that the International Community “should not wait for the

termination of a war crime before prosecuting those responsible”.61 It is hereby suggested that support

to increase ratification of international treaties and measures for their effective enforcement should be

undertaken so as to ensure that States respect and undertake their commitments under the agreements.

This undertaking would for example help to reinforce the key concept of universal jurisdiction for the

International Criminal Court which supposedly relies on 111 States who have ratified the Rome Statute

to refer abuses as well as compelling prosecutions of perpetrators to the court. It is so because it has no

internal police force to perform that role. A consequence of this is that justice is totally delayed and in

other cases not done at all as for example, a warrant of arrest which included charges regarding enlisting

child soldiers through abduction, issued in 2005 against LRA Leader Joseph Kony of Uganda62 was still

not complied with as at April 2010.

Monitoring of weapons trafficking and border controls:

Poor border controls and illicit arms smuggling across the borders of war zones has further made the

enforcement of international laws regarding the use of child soldiers very difficult. The effects of these

on children caught in armed conflicts have for example been monitored by the UN Security Council in

the Democratic Republic of Congo and Sierra Leone to establish the connection that exist between

them. The United States Congress also passed legislation in December 2008 as part of the Trafficking

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Victims Protection Reauthorization Act63 to stop the provision of military training and financial support

to countries that used children as part of their soldiers. This position has made impact in countries like

the Sudan, Uganda and the Democratic Republic of Congo and it is recognized as an effective way of

crippling rebel groups which are often sponsored by governments of neighbouring countries. For

example, the LRA soldiers of Uganda had their training camps based in Southern Sudan whereas the

Sierra Leone RUF forces had their base in Liberia.

Reintegration of former child soldiers:

It is accepted that there is no age at which brutal acts are acceptable, however, it is suggested that efforts

should be geared towards the rehabilitation of former child soldiers rather than prosecuting them so as

to rebuild their broken societies and to help them from being re-recruited into conflicts. In this regard,

the Article 26 of the Rome Statute of the International Criminal Court for example states that it has no

“jurisdiction over any person who was under the age of 18 at the time of the alleged commission of the

offence”.64 This provision goes further to state that States must “seek to establish” and to hold persons

accountable for their actions. This therefore means that the determination of the exact age at which to

hold a person accountable has been left in the hands of the various States to establish.65 An example of

this situation is seen in Uganda where the minimum age for criminal responsibility as set by the Children

Act is 12 years. This is in spite of the fact the Uganda Constitution defined a child as any person below

the age of 1866 and in addition to the recommended minimum age by the UN Standard Minimum Rules

for the Administration of Juvenile Justice not to be set very low “bearing in mind the facts of a child’s

emotional, mental, and intellectual maturity”.67 Nevertheless, children of all ages caught in armed

conflicts either become refugees or displaced in one form or the other. It is therefore unwise to label

them with the sole identity as “child soldier” but rather, undertake measures to reintegrate all children

of armed conflicts back into their societies. This situation will help them to feel more accepted into the

community and to work in unison to rebuild their war-affected country which will put an end to the

vicious cycle of rehabilitation followed by more combat or re-recruitment. The Pan African Centre for

Peace and Conflict Resolution for example undertook reintegration programmes to reintegrate all “war-

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affected youth of any age” at their Buduburam Refugee Camp in Ghana.68 This programme helped the

children to feel that they were not only “child soldiers” but also a part of the society.69

It is hereby believed that the implementation of the above recommendations will help minimize if not

totally annihilate the problem faced by children in conflict zones.

1
Rosenblatt, 1983, ‘Children of War’.

2
Happold, M., 2005, ‘Child Soldiers in International Law’, Juris Publishing Inc., p. 6.

3
Amnesty International Sierra Leone, ‘Prisoners of War? Children Detained in Barracks and Prison’. Amnesty
International AFR 51/06/93.

4
Kahnert, Pitt and Taipale (Eds). 1983, ‘Children and War, Proceedings of Symposium at Siuntio Baths’,
Finland, p.5.

5
UNICEF figures presented to the Committee on the Rights of the Child (UN Doc.CRC/C/SR.38, Oct. 1992).

6
European Commission Humanitarian Aid and Civil Protection Factsheet- ‘Children in Conflict’, 2014.

7
Wilson and Mamphela, 1987, ‘Children on the Front Line: The Impact of Apartheid, Destabilisation and
Warfare on Children in Southern and South Africa’, UNICEF.

8
Makamure, K., 1987, Paper presented to the Nairobi Conference on ‘Children in Situations of Armed
Conflicts’.

9
Ibid.

10
Hague Convention No. 4. Art. 46. “Family Honour and Rights, the lives of persons … must be respected”.
Arts. 42 – 56 apply to civilians generally.

11
Art. 3; in Van Bueren. International Documents on Children (1993).

12
Arts. 14, 17, 23 – 27, 40, 50, 51, 68, 76, 81, 82, 89, 94 and 132.

13
Ibid.

14
Ibid.

15
Van Bueren, 1993, ‘International Documents on Children.

16
Ibid.

17
Adopted in 1977 by the Diplomatic Conference, first session held in 1974. Conference was convened by the
Swiss Government in its capacity as the depository of the Geneva Conventions.

18
The four Geneva Conventions have 181 State parties whereas Protocol 1 has 123 parties and Protocol 2 with
116 parties as at 10 June 1993: (1993) 294 Int. Rev. Red Cross 256.

19
Ibid.

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20
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims
of International Armed Conflicts (Additional Protocol I), Article 77(2), (8 June 1977).

21
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims
of Non-International Armed Conflicts (Additional Protocol II), Article 3(c) (8 June 1977).

22
UN Doc. E/CN.4/Sub.2/AC.21 (1988).

23
Kahnert, Pitt and Taipale, (Eds), 1983, ‘Children and War’, Proceedings of Symposium at Siuntio Baths.
Finland, p.5.

24
Coomaraswamy, R., ‘Keynote Address at the United States Institute of Peace: Policy Forum on Children and
Armed Conflict: Child Soldiers as Combatants, Victims, and Survivors’, (17 September 2008).

25
CDDH/111/325 and 328. [In the debates prompted by Brazil’s attempts to set the minimum age at 18.

26
Condor, Terres des Hommes, 1990, ‘paper presented at the International Congress for the Prevention of
Child Abuse and Neglect’, Hamburg.

27
Boothby, “Children and War”, (1986) 10 Cultural Survival Q. 28.

28
Convention on the Rights of the Child, G.A., Res. 44/25, 44 UN GAOR Supp. (No. 49), UN Doc. A/44/49 (20
November 1989).

29
Ibid.

30
The UN Secretary General, Report of the Secretary General on Children and Armed Conflict, 4, delivered to
the Security Council and the General Assembly, UN Doc. A/55/163-S/2000/712, (19 July 2000).

31
The Geneva Conventions, as humanitarian instruments, are relevant only in wartime, whereas the CRC
Optional Protocol, as a human right treaty, is applicable in times of peace and war.

32
Optional Protocol to the Convention on the Rights of the Involvement of Children in Armed Conflict, G.A.
Res. 54/263, Article 3(3) (a), UN Doc. A/RES/54/263, 25 May 2000.

33
Ibid, Articles 1 and 2.

34
Ibid, Article 3(1).

35
United Nations Treaty Collection, Status of Ratification, Reservation and Declarations: Optional Protocol to
the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 2000.

36
Happold, M., 2005, ‘Child Soldiers in International Law’, Juris Publishing Inc., p. 6.

37
Supra note 32, Articles 1 and 4(1).

38
African Charter on the Rights and Welfare of the Child, Article 22(2), O.A.U. Doc. CAB/LEG/24.9/49 (11 July
1990).

39
Ibid.

40
Ibid.

41
See list of Countries which have Signed, Ratified/Acceded to the African Union Convention on African
Charter on the Rights and Welfare of the Child, African Union Website.

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42
Rome Statute of the International Criminal Court, Articles 8(2) (b) (xxvi) and 8(2) (e) (vii), UN Doc. A/CONF.
183/9 (17 July 1998).

43
Ibid.

44
Happold, M., 2005, ‘Child Soldiers in International Law’, Juris Publishing, p. 122.

45
The International Criminal Court exercises its jurisdiction by having their Prosecutor initiating an
investigation or having a situation referred to it by a State or the Security Council.

46
See Status of the Rome Statute of the International Criminal Court, United Nations Treaty Collection.
Available at https://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=XVIII-10&chapter=18&lang=en
[Accessed on 24 December2014].

47
Elements of Crimes Adopted by the International Criminal Court Assembly of State Parties, ICC-ASP/1/3, p.
144.

48
The Secretary-General, Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone, 1, UN Doc. s/2000/915, (4 October 2000).

49
International Labour Organisation, ‘Convention on the Worst Forms of Child Labour (No. 182), Article 3(a)’
17 June 1999, ILOLEX No. C182.

50
Happold, M., 2005, ‘Child Soldiers in International Law’, Juris Publishing, p. 83.

51
List of Ratifications for ILO Conventions, Worst Forms of Child Labour Convention, 1999 (No. 182).

52
Mama Couna Thioye, Chair of the Child Rights Department, African Assembly for the Defence of Human
Rights, interview by Janet McKnight, Dakar, Senegal, 9 June 2009.

53
Office for the High Commissioner for Human Rights, 2010, ‘An Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights’, Note for National Human Rights Institutions.

54
Optional Protocol to the Convention on the Rights of the Involvement of Children in Armed Conflict, G.A.
Res. 54/263, Articles 1 and 2, UN Doc. A/RES/54/263 (25 May 2000).

55
The Secretary-General, Report of the Secretary-General on Children and Armed Conflict, delivered to the
General Assembly, UN Doc. A/58/546-S/2003/1053 (10 November 2003).

56
UN Charter, Article 24(1).

57
Grono, N., International Crisis Group, Presentation on the Prosecutorial Strategy for 2007-9 at the Second
Public Hearing of the Office of the Prosecutor (26 September 2006).

58
Rome Statute, Article 1.

59
The Prosecutor v. Thomas Lubanga Dyilo (10 February 2006) ICC-01/04-01/06, Pre-Trial Chamber I, Arrest
Warrant.

60
The Prosecutor v Omar Hassan Ahmed Al Bashir (4 March 2009) ICC-02/05-01/09, Pre-Trial Chamber I, Arrest
Warrant.

61
Singer, P.W., 2004, ‘Talk is Cheap: Getting Serious about Preventing Child Soldiers’, 561 Cornell International
Law Journal 561 – 86.

62
The Prosecutor v. Joseph Kony (27 September 2005) ICC-012/04-01/05-53, Pre-Trial Chamber II, Arrest
Warrant.
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63
Human Rights Watch, (11 December 2008) ‘US Limits Military Aid to Nations Using Child Soldiers’ Human
Rights Watch.

64
Rome Statute, Article 26.

65
International Criminal Court, Article 30(3) (a).

66
The Children of Uganda (2002), S88; Constitution of Uganda (1995), Chapter XVII, Article 257(c).

67
UN Standard Minimum Rules for the Administration of Juvenile Justice (1985), Article 4(1).

68
Artemy Izmestiev, Buduburam Refugee Camp volunteer, Pan African Centre for Peace- Ghana, Interview by
Janet McKnight, Accra, Ghana, (15 June 2009).

69
Ibid.

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