Targeting child soldiers: A critical analysis of International legal

framework and complexities

Faheem Dal1, Ghulam Mustafa Memon2

Abstract
This paper delves into the complex ethical terrain surrounding the targeting of child soldiers in
contemporary armed conflicts, examining the delicate interplay between military necessity and the
imperative to protect vulnerable populations. With an overarching goal to contribute to the ongoing
discourse on this critical issue, the research objectives are as follows. Firstly, the study seeks to
define the legal status of child soldiers under international law, elucidating the rights and
protections afforded to them. Secondly, it aims to scrutinize the specific challenges hindering the
effective implementation of international provisions related to the targeting of child soldiers,
considering the intricate nature of modern armed conflicts. Thirdly, the paper will investigate the
justifications proffered by armed groups for the recruitment and deployment of child soldiers,
analyzing these against international legal norms and humanitarian principles. Finally, the research
will culminate in recommendations for amendments to the existing legal framework, aiming to
address the pervasive issue of child soldiers more effectively. By addressing these research
objectives, the paper endeavors to provide a better understanding of the moral and legal dilemmas
faced by military strategists and policymakers, ultimately contributing to the broader dialogue on
the protection of children's rights and the principles of humanity in times of conflict.

Keywords: Child Soldiers, Armed Conflicts, Military Necessity, Vulnerable Populations, Legal
Status, Humanity.

1
Student at Law, University of Sindh Jamshoro. Email: faheemdal7@gmail.com
2
Student at Law, University of Sindh Jamshoro. Email: gmustafa1128@gmail.com

Electronic copy available at: https://ssrn.com/abstract=4707820

 1. INTRODUCTION

The use of child soldiers remains a distressing reality in numerous armed conflicts
worldwide, constituting a serious violation of children's rights and posing a significant challenge
to international humanitarian law (IHL).3

This disturbing phenomenon encompasses the recruitment, training, and deployment of

individuals under the age of 18 by both armed groups and state forces for a variety of combat
roles.4 The estimated number of children entangled in armed conflicts globally varies, but it is
believed to be in the tens of thousands, subjecting them to unimaginable physical and
psychological traumas.5 Consequently, the existence of child soldiers presents military strategists
and policymakers with a multifaceted moral quandary, as they grapple with the delicate balance
between military necessity, emphasizing operational effectiveness, and the principles of humanity,
which advocate for the protection and well-being of vulnerable populations.6

In light of these challenges, a comprehensive exploration of this issue necessitates a

simultaneous examination of the principles of humanity and military necessity. These principles
insist that the well-being and safeguarding of children should be paramount, emphasizing the
prohibition of unnecessary suffering and the protection of fundamental human rights. Critics
contend that targeting child soldiers disregards their vulnerable status and fails to uphold the

3
Coalition to Stop the Use of Child Soldiers. (2001). Child Soldiers: Global Report. Coalition to stop the use
of child soldiers.
4
Doswald-Beck, L. (2010). The Legal Regulation of the Use of Child Soldiers. In L. Goodwin-Gill & S. C.
McAdam (Eds.), the Refugee in International Law (pp. 667-700). Oxford University Press.
5 Human Rights Watch. (2019). “We Can Die Too”: Recruitment and Use of Child Soldiers in South Sudan.
Retrieved from https://www.hrw.org/report/2019/01/28/we-can-die-too/recruitment-and-use-child-soldiers-
south-sudan
6 International Committee of the Red Cross. (2017). the Roots of Restraint in War. Retrieved from
https://www.icrc.org/en/doc/assets/files/other/icrc_002_0996.pdf

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principle of proportionality, which requires a judicious balance between military advantage and
humanitarian considerations.7

To illustrate the complex ethical dilemmas surrounding child soldiers, consider the
following hypothetical scenarios:

In the first scenario, we encounter a minor enlisted in the ABCD rebels group, dressed in
a uniform, who is spotted by a government drone while peacefully napping against a tree, with his
firearm resting nearby.

The second scenario presents a child dressed in civilian attire sprinting towards troops and
firing an AK-47, evidently in an attempt to engage the troops.

In both of these cases, a pressing question arises: Can the armed forces ethically target these
children as if they were adults? This inquiry delves deep into the heart of the moral and legal
challenges associated with child soldiers in contemporary conflicts.

2. STATUS OF CHILD SOLDIERS UNDER IHL

2.1 HISTORICAL PERSPECTIVE

Images of young children draped in bullets and carrying an AK-47 are increasingly
common. Government armies and rebel groups throughout the world have conscripted children
into their armies, forcing them to fight on the front lines, carry provisions, act as couriers, and
serve as sex slaves. The Coalition to Stop Child Soldiers has reported that between 2004 and 2007
government and rebel forces in twenty-one countries were using child soldiers. In 2010, the U.S.
State Department reported that government forces in at least six countries used child soldiers:
Chad, Democratic Republic of the Congo, Sudan, Yemen, Burma, and Somalia.8

7 Alsaid, M. (2019). International protection of children education during armed conflicts and the
international community response (A Case Study of Syria).
8 Begley, T. B. (2011). The extraterritorial obligation to prevent the use of child soldiers. Am. U. Int'l L.
Rev., 27, 613. Retrieved from http://www.nytimes.com/2010/10/29/world/africa/29soldiers.html (observing
that the only countries that President Obama did not waive sanctions for were Somalia and Myanmar)

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 In the last decade, Human Rights Watch has published multiple reports that detail the
global issue of child soldiers. For instance, in 2004, both Liberian opposition groups and
government forces employed around 15,000 child soldiers.9 These children were subjected to
abductions, sexual abuse, forced participation in combat, and witnessed gruesome acts such as the
amputation of enemy fighters' limbs.10 Similarly, in Nepal, Maoist rebels utilized children to
transport supplies and ammunition to the frontlines.11 Furthermore, the Liberation Tigers of Tamil
Eelam (LTTE) in Sri Lanka recruited children as young as eleven years old to engage in armed
conflict on their behalf.12

In Chad, Rwanda, and Uganda, government and paramilitary forces have enlisted children
into their ranks. In Chad, both Human Rights Watch and the U.S. State Department have
documented the recruitment of underage children in various regions of the country. 13 A Chadian
boy expressed, "The village is not safe; it is better to go to war,14 reflecting the grim circumstances
that led some children to choose armed conflict over staying at home, much like the situation in
Liberia.15 During the Rwandan genocide, children were coerced into killing other children,
engaging in looting, and revealing the whereabouts of people in hiding.16 The Lord's Resistance
Army abducted an estimated 5,000 children in northern Uganda between 2002 and 2003, with the
total number of abducted children from 1986 to 2002 reaching approximately 20,000 children. 17

9 Human Rights Watch. (2004). How to fight, how to kill: Child soldiers in Liberia. Human Rights Watch.
10 Id. at 2, 22-23.
11 Bouckaert, P. (2004). Nepal, Between a Rock and a Hard Place: Civilians Struggle to Survive in Nepal's
Civil War (Vol. 16, No. 12). Human Rights Watch.
12 Watch, H. R. (2004). Living in fear: Child soldiers and the Tamil Tigers in Sri Lanka.
13 Tiefenbrun, S. (2007). Child soldiers, slavery and the trafficking of children. Fordham Int'l LJ, 31, 415.
14 Begley, T. B. (2011). The extraterritorial obligation to prevent the use of child soldiers. Am. U. Int'l L.
Rev., 27, 613.
15 Cohn, I. (1998). The protection of child soldiers during the Liberian peace process. Int'l J. Child. Rts., 6,
179.
16 Human Rights Watch. (2003). Lasting Wounds (Vol. 15, No. 6). Human Rights Watch.
17 Human Rights Watch. (2003). Lasting Wounds (Vol. 15, No. 6). Abduction and recruitment in Northern
Uganda 2 (2003) [hereinafter STOLEN CHILDREN IN UGANDA] (noting a dramatic increase in abductions
in 2002 compared to 2001, when fewer than 100 children were abducted).

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 The Coalition to Stop the Use of Child Soldiers has previously criticized the United
Kingdom for recruiting children into its military at the age of sixteen.18 While the U.K. signed the
Optional Protocol on children in armed conflict, it made a declaration during ratification allowing
the deployment of soldiers under eighteen in situations of "genuine military need."19 Consequently,
the U.K. has sent soldiers under eighteen to combat zones in Iraq.20 Worldwide, children are often
thrust into conflicts, exposing their impressionable minds to extreme violence, which can result in
lasting harm or even death. The use of child soldiers is universally condemned, both through
international agreements and domestic laws that impose obligations on nations to prohibit this
practice.21

2.2 MILITARY NECESSITY VS. HUMANITY

Few principles within international humanitarian law (IHL) are as pivotal and
simultaneously as misunderstood as military necessity. It has been invoked to rationalize egregious
violations during armed conflicts and to impose unfeasible and hazardous limitations on
combatants. Present-day conflicts, along with continuous attempts to elucidate the application of
IHL within them, have added complexity to this already intricate issue.

HISTORICAL UNDERPINNINGS: MILITARY NECESSITY AS JUSTIFICATION

The notion that military necessity can serve as a basis for departing from the strict
provisions of international law traces its origins to the nineteenth-century German doctrine of
"Kriegsraison geht vor Kriegsmanier" (necessity in war overrides the manner of warfare). Prior to
World War I, several German scholars contended that in cases of extreme necessity, the laws of

18 Greg Barrow, UK ‘shamed’ over teenage soldiers, B.B.C. NEWS, June 12, 2001, retrieved from
http://news.bbc.co.uk/2/hi/europe/1383998.stm
19 Becker, J. (2004). Children as weapons of war. Human Rights Watch World Report 2004, 219-244.
20 Under-18s Were Deployed to Iraq, B.B.C. NEWS, Feb. 4, 2007, retrieved from
http://news.bbc.co.uk/2/hi/6328771.stm (explaining that fifteen seventeen-year-old soldiers were
inadvertently sent to Iraq between June 2003 and July 2005; however, no seventeen-year-olds have been
deployed since July 2005).
21 Hoban, I. (2018). Child soldiers and military actors: a variation in detention policies across liberal
democracies (Doctoral dissertation, Rutgers University-Graduate School-Newark).

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war could lose their binding authority.22 In particular, this elevation of necessity above legal
standards was deemed justifiable when the only way to avert severe peril was to breach the law or
when adhering to legal norms might imperil the ultimate objectives of the conflict.

The argument regarding military necessity was decisively settled by war crimes trials
conducted in the aftermath of the Second World War. In the context of "The Hostage Case,"
German generals asserted that military necessity provided justification for actions like reprisal
killings of civilians during periods of occupation.23 The American Military Tribunal rejected the
argument,

Noting that military necessity permits a belligerent, subject to the laws of war, to apply any
amount and kind of force to compel the complete submission of the enemy with the least
possible expenditure of time, life, and money. . . . It permits the destruction of life of armed
enemies and other persons whose destruction is incidentally unavoidable by the armed
conflicts of the war . . . but it does not permit the killing of innocent inhabitants for purposes
of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must
be imperatively demanded by the necessities of war. Destruction as an end in itself is a
violation of international law. There must be some reasonable connection between the
destruction of property and the overcoming of the enemy forces. We do not concur in the
view that the rules of warfare are anything less than they purport to be. Military necessity
or expediency do not justify a violation of positive rules. International law is prohibitive
law.24

Contemporary international law and practice firmly reject Kriegsraison. This notion is
incompatible with modern International Humanitarian Law (IHL). However, the historical roots
of military necessity justifying deviations from protecting civilians and their property persist in
IHL. While unrestricted deviation based on military necessity is prohibited, a delicate balance
between necessity and humanity remains prevalent in current international law.

22 Hersh Lauterpacht, S. (1952). International law: a treatise. London: Longmans.

23 Boelaert-Suominen, S. (2000). Prosecuting superiors for crimes committed by subordinates: A discussion
of the first significant case law since the Second World War. Va. J. Int'l L., 41, 747.
24 Id. at 1253–56.

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MODERN NOTIONS: BALANCING MILITARY NECESSITY AND HUMANITY

The 1899 and 1907 Hague Regulations underlined that belligerents' right to use means of harming
the enemy is not unrestricted.25 International Humanitarian Law (IHL) represents a calculated
balance between military necessity and humanity, with each rule serving as a compromise between
these opposing principles.

It should come as no surprise that only states possess the capability to establish international law,
either through treaties or the evolution of state practices into customary law. 26 Consequently,
international law reflects the objectives of those states that willingly agree to be bound by it. In the
realm of conflict, states hold two primary objectives. The first is the ability to pursue and protect
their critical national interests. When shaping International Humanitarian Law (IHL), states,
therefore, insist that legal norms do not unreasonably constrain their operational flexibility on the
battlefield, as this could impact their national interests. The principle of military necessity
functions within IHL to safeguard this objective. Contrary to some claims, it is not a constraint on
military operations27 but rather an acknowledgment of the relevance of military considerations in
formulating the rules of warfare.

Legitimate states share the responsibility of safeguarding their citizens' well-being, as this
obligation forms the basis of the social contract. The principle of humanity, which safeguards both
combatants and noncombatants, along with their property, upholds this essential duty.

Considering these frequently conflicting interests, states must make policy decisions, either
through treaties or practices, to find the most effective compromise. 28 These policy choices are
inherently context-specific, relying on past, current, or expected conditions. When situations

25 Bassiouni, M. C. (2001). Convention Respecting the Laws and Customs of War on Land, with Annex of
Regulations [Second Hague Convention, IV], 205 CTS 277; 1910 UKTS 100, BFSP 338; USTS 539 (18
Oct. 1907). In International Terrorism: Multilateral Conventions (1937-2001) (pp. 531-533). Brill Nijhoff.
26 Statute of the International Court of Justice art. 38, June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 993
[hereinafter ICJ Statute].
27 Schmitt, M. N. (1997). Green war: an assessment of the environmental law of international armed
conflict. Yale J. Int'l L., 22, 1.
28 MacDougal, M. S., & Feliciano, F. P. (1994). The international law of war: transnational coercion and
world public order (Vol. 9). Martinus Nijhoff Publishers.

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evolve, the adequacy of the existing balance between military necessity and humanity may be
challenged. In response, states may choose to reject, amend, or add to current International
Humanitarian Law (IHL), or adjust the interpretation and application of existing laws to align with
the new circumstances.

The delicate equilibrium between military necessity and humanity is a fundamental aspect
of International Humanitarian Law (IHL) on both broad and specific levels. The 1868 St.
Petersburg Declaration serves as a prime example of this, explicitly acknowledging the importance
of striking this balance by aiming to establish "the technical limits at which the necessities of war
should give way to the demands of humanity."29 Additionally, this balancing act emerges as a
foundational principle throughout IHL. An illustrative instance is found in the 1907 Hague
Convention IV, which the International Court of Justice (ICJ) has recognized as customary law.30
Its preamble expresses the desire to mitigate the horrors of war "to the extent that military
requirements allow."31 The inclusion of the well-known "Martens Clause" in Hague Convention
IV further affirms that the integration of humanitarian considerations into the law was intended as
a general principle permeating it;

Until a more complete code of the laws of war has been issued, the High Contracting Parties
deem it expedient to declare that, in cases not included in the Regulations adopted by them,
the inhabitants and the belligerents remain under the protection and the rule of the
principles of the law of nations, as they result from the usages established among civilized
peoples, from the laws of humanity, and the dictates of the public conscience.32

29 Schindler, D., & Toman, J. (2004). Declaration Renouncing the Use, In Time of War, Of Explosive
Projectiles under 400 Grammes Weight. In The Laws of Armed Conflicts (pp. 91-93). Brill Nijhoff.
30 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, 2004 I.C.J. 136, 172 (July 9); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
1996 I.C.J. 226, 257 (July 8). The rules were also found to be customary by the Nuremberg Tribunal. 1
TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 254
(1947).
31 Hague IV, supra note 7, pmbl. para. 5; see also Hague II, supra note 7, pmbl. para. 6.
32 Hague IV, supra note 7, pmbl. para. 5; see also Hague II, supra note 7, pmbl. para. 6.

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 An analogous provision in the 1977 Additional Protocol I,33 as well as citation of the clause
by the ICJ,34 affirm its continuing applicability.

The Martens Clause establishes that International Humanitarian Law (IHL) cannot be confined to
a positivist viewpoint that what's not explicitly forbidden in international law is automatically
allowed.35 As recognized by the International Court of Justice (ICJ) in the Corfu Channel case, the
principles of humanity are inherent in international law. Therefore, the mere lack of a specific IHL
rule on an issue doesn't automatically legitimize an action based on military necessity; actions
during conflicts must consistently uphold humanity.

However, it's crucial to note that the Martens Clause comes into play when written law
doesn't address a situation. Existing treaty law, on the other hand, embodies a mutually accepted
equilibrium between military necessity and humanity. This means that neither of these principles
independently justifies deviating from treaty provisions unless the law explicitly allows for such
departures.36 It's important to remember that states hold the authority to modify this consensus
balance, as they are the sole creators of law.

2.3 LEGAL FRAMEWORKS AND CHILD SOLDIERS

States have responded to the widespread use of child soldiers by implementing measures
to prevent and penalize this practice. International agreements and documents have been
established to deter armed groups from recruiting child soldiers, and international courts have
issued arrest warrants and conducted prosecutions for the crime of conscripting children.37 While

33 See Additional Protocol I, supra note 7, art. 1(2).

34 Patel, B. N. (2000). Legality of the Threat or use of Nuclear Weapons. In The World Court Reference
Guide (pp. 876-884). Brill Nijhoff.
35 Schmitt, M. N., & Schmitt, M. N. (2012). Military necessity and humanity in international humanitarian
law: preserving the delicate balance. Essays on Law and War at the Fault Lines, 89-129.
36 Schmitt, M. N., & Schmitt, M. N. (2012). Military necessity and humanity in international humanitarian
law: preserving the delicate balance. Essays on Law and War at the Fault Lines, 89-129.
37Jalloh, C. C., & Meisenberg, S. M. (2012). Decision on Confidential Motion to Vary Protective Measures,
15 November 2006. In The Law Reports of the Special Court for Sierra Leone (2 vols.) (pp. 877-880). Brill
Nijhoff.

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there are several instruments and legal judgments addressing child soldiers, the most precise and
legally binding tool concerning their use is the Optional Protocol to the Convention on the Rights
of the Child on the Involvement of Children in Armed Conflict, often referred to as the "Optional
Protocol."38

CONVENTION ON THE RIGHTS OF THE CHILD (CRC)

The most substantial legally binding document concerning children's rights is the
Convention on the Rights of the Child (CRC)39 and its two optional protocols, one addressing the
sale of children, child prostitution, and child pornography,40 and the other dealing with children's
involvement in armed conflict.41 Negotiated by states in November 1989, the CRC came into effect
in less than a year.42 Presently, there are 193 States Parties to the CRC, making it one of the most
widely ratified treaties.43 The CRC defines children as individuals aged eighteen or younger and
establishes legally enforceable responsibilities for States Parties to protect and uphold the rights
of children.44

The Optional Protocol unequivocally bans the recruitment and use of children in armed
conflict, categorizing a "child" as an individual under the age of eighteen.45 Notably, the Protocol

38 Vandewiele, T. (2006). Optional Protocol: the involvement of children in armed conflicts (Vol. 46).
Martinus Nijhoff Publishers.
39 Todres, J. (1998). Emerging limitations on the rights of the child: the UN Convention on the Rights of the
Child and its early case law. Colum. Hum. Rts. L. Rev., 30, 159.
40 Coomaraswamy, R. (2010). The optional protocol to the convention on the rights of the child on the
involvement of children in armed conflict–towards universal ratification. The International Journal of
Children's Rights, 18(4), 535-549.
41 Vachachira, J. S. (2001). Report 2002: Implementation of the Optional Protocol to the Convention on the
Rights of the Child on the Involvement of Children in Armed Conflict. NYL Sch. J. Hum. Rts., 18, 543.
42 Hafen, B. C., & Hafen, J. O. (1996). Abandoning children to their autonomy: The United Nations
Convention on the Rights of the Child. Harv. Int'l. LJ, 37, 449.
43 Status of the Convention on the Rights of the Child, U.N. TREATY SERVICE (June 26, 2011), retrieved
from http://treaties.un.org/doc/Publication/MTDSG/Volu me%20I/Cha pter%20IV/IV-11.en.pdf.
44 Arts, K. (2014). Twenty-five years of the United Nations Convention on the Rights of the Child:
Achievements and challenges. Netherlands International Law Review, 61(3), 267-303.
45 Optional Protocol on Children in Armed Conflict, supra note 2, art. 1; cf. Convention on the Rights of the
Child, supra note 1, art. 38 (prohibiting the conscription of children under age fifteen).

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explicitly states that both government forces and non-governmental entities are prohibited from
employing child soldiers.46 In accordance with international law, states are typically the parties
held legally accountable for complying with treaty commitments, as they are the signatories.47
Nonetheless, due to the particularly heinous nature of child soldier recruitment and the frequent
involvement of non-state actors in this practice, the Optional Protocol has gone a step further by
explicitly encompassing non-state actors in its provisions.48 The Protocol outlines the
responsibilities for states to take actions within their own territories while also mandating their
duty to extend assistance beyond their borders. It requires states to make concerted efforts to
facilitate the demobilization and reintegration of children involved in armed conflicts into
society.49 As outlined in Article 7, all States Parties to the protocol are obliged to collaborate to
ensure the full implementation of the protocol.50 These state obligations encompass offering
financial and technical support to fellow States Parties and implementing measures to prevent any
actions that run counter to the Protocol.51 The concept of "international cooperation" articulated in
Article 7 is a pivotal element of international law, ensuring that all States Parties mutually support
one another in fulfilling their commitments.

ADDITIONAL INSTRUMENTS CONDEMNING THE USE OF CHILD SOLDIERS

Although the Optional Protocol to the Convention on the Rights of the Child specifically
addresses the use of child soldiers, a number of other instruments incorporate articles relating to
child soldiers.

Additional Protocol I to the 1949 Geneva Conventions, relating to international armed

conflict, prohibits states from recruiting children under the age of fifteen and requires that states

46 Hanson, K. (2011). International children's rights and armed conflict. Hum. Rts. & Int'l Legal Discourse, 5,
40.
47 Karnes, J. L. (2012). Pirates Incorporated: Kiobel v. Royal Dutch Petroleum Co. and the Uncertain State
of Corporate Liability for Human Rights Violations under the Alien Tort Statute. Buff. L. Rev., 60, 823.
48 Vachachira, J. S. (2001). Report 2002: Implementation of the Optional Protocol to the Convention on the
Rights of the Child on the Involvement of Children in Armed Conflict. NYL Sch. J. Hum. Rts., 18, 543.
49 Vandewiele, T. (2006). Optional Protocol: the involvement of children in armed conflicts (Vol. 46).
Martinus Nijhoff Publishers.
50 Id. art. 7.
51 Id. arts. 6, 7.

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take measures to ensure that children under the age of fifteen do not take part in hostilities.52
Additional Protocol II to the 1949 Geneva Conventions, relating to non-international armed
conflict, imposes the same requirements as the first protocol: states shall not recruit children under
fifteen to the armed forces and children under age fifteen may not take up arms.53 The prohibition
of the use of child soldiers in these Additional Protocols is essential because the Geneva
Conventions and their Additional Protocols have risen to the level of customary international law,
meaning that all states are obligated to abide by them regardless of whether they have signed the
treaties.54

3. DIRECT PARTICIPATION OF CHILD IN ARMED

CONFLICT

3.1 INTERNATIONAL AND NON-INTERNATIONAL ARMED

CONFLICTS

Additional Protocols I and II prohibit the participation of children in hostilities.55 The

Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the
Child also contain this rule.56 Under the Statute of the International Criminal Court, using children
to “participate actively in hostilities” constitutes a war crime in both international and non-
international armed conflicts.57 It is also included as a war crime in the Statute of the Special Court

52 Roberts, G. B. (1985). The New Rules of Waging War: The Case Against Ratification of Additional
Protocol I. Va. J. Int'l L., 26, 109.
53 Pilloud, C., Sandoz, Y., Swinarski, C., & Zimmermann, B. (Eds.). (1987). Commentary on the additional
protocols: of 8 June 1977 to the Geneva Conventions of 12 August 1949. Martinus Nijhoff Publishers.
54 Henckaerts, J. M. (2009). The grave breaches regime as customary international law. Journal of
International Criminal Justice, 7(4), 683-701.
55 Cram, I. (2018). Protocol 15 and articles 10 and 11 ECHR—The partial triumph of political incumbency
post-Brighton?. International & Comparative Law Quarterly, 67(3), 477-503.
56 Tobin, J. (Ed.). (2019). The UN Convention on the Rights of the Child: A commentary. OUP Oxford.
57 Hochmayr, G. (2014). Applicable law in practice and theory: Interpreting Article 21 of the ICC
statute. Journal of International Criminal Justice, 12(4), 655-679.

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for Sierra Leone.58 In his report on the establishment of the Special Court for Sierra Leone, the UN
Secretary-General stated that the provisions of Article 4 of Additional Protocol II have long been
regarded as part of customary international law.59

The participation of children in hostilities is prohibited in many military manuals,60 including those
which are applicable in non-international armed conflicts.61 It is also prohibited under the
legislation of numerous States.62

No official contrary practice was found. Alleged practices of using children to take part in
hostilities have generally been condemned by States and international organizations, for example,
with respect to conflicts in the Democratic Republic of the Congo, Liberia and Sudan.63 In a
resolution adopted in 1999 on children in armed conflicts, the UN Security Council strongly
condemned the “use of children in armed conflict in violation of international law”.64 In a
resolution adopted in 1996 on the plight of African children in situations of armed conflict, the
OAU Council of Ministers reaffirmed that “the use of children in armed conflicts constitutes a
violation of their rights and should be considered as war crimes”.65

58 Jalloh, C. C. (2007). The contribution of the Special Court for Sierra Leone to the development of
international law. African journal of international and comparative law, 15(2), 165-207.
59 Fullah, A. A. V. (2018). The Legacy of the Special Court for Sierra Leone (SCSL) (Doctoral dissertation,
Oxford Brookes University).
60 Henckaerts, J. M., & Alvermann, C. (2005). Customary international humanitarian law (Vol. 1). Cambridge
University Press.
61 Tully, S. (2012). International Criminal Law. International corporate legal responsibility, Alphen am
Rhein/Frederick/Biggleswade, 447ff.
62 Henckaerts, J. M., & Alvermann, C. (2005). Customary international humanitarian law (Vol. 1). Cambridge
University Press.
63 Nollkaemper, A., Plakokefalos, I., Schechinger, J., & Kleffner, J. K. (Eds.). (2017). The practice of shared
responsibility in international law (Vol. 3). Cambridge University Press.
64 Ruys, T. (2009). The intangible'armed attack': Evolutions in Customary Practice pertaining to the Right
of States to Self-defence under Article 51 UN Charter.
65 Nsengimana, J. (2018). Uganda's state responsibility under international law to safeguard refugee
children's right to access education (Master's thesis, University of Cape Town).

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 The International Conferences of the Red Cross and Red Crescent in 1986 and 1995
adopted resolutions stressing the prohibition of the participation of children in hostilities.66 The
Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red
Cross and Red Crescent in 1999, requires that all parties to an armed conflict ensure that “all
measures, including penal measures, are taken to stop the participation of children … in armed
hostilities”.67

In addition, the UN Security Council, UN General Assembly and UN Commission on

Human Rights frequently require the rehabilitation and reintegration of children who have taken
part in armed conflict.68 The Optional Protocol to the Convention on the Rights of the Child on the
Involvement of Children in Armed Conflict specifically requires governments to take measures to
demobilize and rehabilitate former child soldiers and to reintegrate them into society. 69

Lastly, it should be noted that Additional Protocol I provides that children who do take a
direct part in hostilities and fall into the power of an adverse party shall continue to benefit from
the special protection to which they are entitled, whether they are prisoners of war or not. 70 None
of the rules which identify such special protection, such as the prohibition of sexual violence (see
Rule 93) and the obligation to separate children from adults in detention (see Rule 120) provide
for an exception in the event that children have taken part in hostilities. In addition, none of the
practice supporting the prohibition of the participation of children in hostilities provides that they
should be deprived of their special protection if they do participate in hostilities.

66 Bugnion, F. (2009). The International Conference of the Red Cross and Red Crescent: challenges, key
issues and achievements. International Review of the Red Cross, 91(876), 675-712.
67 Solf, W. A. (1978). The International Committee of the Red Cross and the Additional Protocols of
1977. Zeitschrift für ausländisches und öffentliches Recht und Völkerrecht, 38, 1-159.
68 Maus, S. (2020). Human Rights in UN Peace Operations Practice. In United Nations Peace Operations
and Human Rights (pp. 204-311). Brill Nijhoff.
69 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed
Conflict, Articles 6(3) and 7(1) (ibid, § 389).
70 Pilloud, C., Sandoz, Y., Swinarski, C., & Zimmermann, B. (Eds.). (1987). Commentary on the additional
protocols: of 8 June 1977 to the Geneva Conventions of 12 August 1949. Martinus Nijhoff Publishers.

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3.2 DEFINITION OF PARTICIPATION IN HOSTILITIES

In the framework of the war crime of “using children to participate actively in hostilities”
contained in the Statute of the International Criminal Court, the words “using” and “participate”
have been adopted in order to:

Cover both direct participation in combat and also active participation in military activities
linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or
at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food
deliveries to an airbase or the use of domestic staff in an officer’s married accommodation.
However, use of children in a direct support function such as acting as bearers to take supplies to
the front line, or activities at the front line itself, would be included within the terminology.71

The Act on Child Protection of the Philippines provides that children shall not “take part
in the fighting, or be used as guides, couriers or spies”.72 Upon ratification of the Convention on
the Rights of the Child, the Netherlands stated that “States should not be allowed to involve
children directly or indirectly in hostilities”.73

3.3 AGE-LIMIT FOR PARTICIPATION IN HOSTILITIES

Additional Protocols I and II, the Statute of the International Criminal Court and the Statute
of the Special Court for Sierra Leone put the minimum age for the participation in hostilities at 15,
as does the Convention on the Rights of the Child.74 Upon ratification of the Convention on the
Rights of the Child, Austria and Germany stated that the age-limit of 15 years was incompatible

71 Draft Statute of the International Criminal Court, Report of the Preparatory Committee on the
Establishment of an International Criminal Court, Addendum, Part One, UN Doc. A/CONF.183/2/Add.1, 14
April 1998, p. 21 (cited in Vol. II, Ch. 39, § 513).
72 Fernando, E. M. (1981). Perspective on human rights: the Philippines in a period of crisis and
transition. Phil. LJ, 56, 1.
73 Detrick, S. (1999). A Commentary on the United Nations Convention on the Rights of the Child. Martinus
Nijhoff Publishers.
74 Tan, Y. (2021). War Crimes in Non-international Armed Conflict: Article 8 of the Rome Statute and
Custom. In The Rome Statute as Evidence of Customary International Law (pp. 66-133). Brill Nijhoff.

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with the best interests of the child.75 Colombia, Spain and Uruguay also expressed disagreement
with this age-limit.76 At the 27th International Conference of the Red Cross and Red Crescent in
1999, Belgium, Canada, Denmark, Finland, Guinea, Iceland, Mexico, Mozambique, Norway,
South Africa, Sweden, Switzerland and Uruguay pledged support to raise the age-limit for
participation in hostilities to 18 years.77 Under the African Charter on the Rights and Welfare of
the Child, the age-limit for participation in hostilities is 18 years.78 Under the Optional Protocol to
the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict,
States must 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, while armed groups that are
distinct from the armed forces of a State may not, under any circumstances, use persons under the
age of 18 in hostilities.79

Although there is not, as yet, a uniform practice regarding the minimum age for
participation in hostilities, there is agreement that it should not be below 15 years of age.

4. THE INCONSISTENCIES AND EVOLUTION OF LEGAL

PROTECTIONS FOR CHILD SOLDIERS

Inconsistencies between International Humanitarian Law (IHL) and International Human

Rights Law (IHRL), particularly regarding the age of young combatants, have created a legal gap,
leaving the most vulnerable age group (15 to 18-year-old children) with inadequate protection

75 Tobin, J. (Ed.). (2019). The UN Convention on the Rights of the Child: A commentary. OUP Oxford.
76 Van Boven, T. (1996). Appendix C: Study Concerning the Right to Restitution, Compensation, and
Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: UN Document
E/CD. 4/Sub. 2/1993/8. Law and Contemporary Problems, 59(4), 283-347.
77 Pledges made at the 27th International Conference of the Red Cross and Red Crescent by Belgium (ibid.,
§ 550), Canada (ibid., § 551), Denmark (ibid., § 553), Finland (ibid., § 554), Guinea (ibid., § 555), Iceland
(ibid., § 556), Mexico (ibid., § 560), Mozambique (ibid., § 561), Norway (ibid., § 562), South Africa (ibid., §
564), Sweden (ibid., § 565), Switzerland (ibid., § 566) and Uruguay (ibid., § 571).
78 Charter, A. (1990). African Charter on the Rights and Welfare of the Child. AU. Addis Ababa.
79 Coomaraswamy, R. (2010). The optional protocol to the convention on the rights of the child on the
involvement of children in armed conflict–towards universal ratification. The International Journal of
Children's Rights, 18(4), 535-549.

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from recruitment into armed forces or armed opposition groups. Furthermore, disparities exist in
the legal safeguards provided to children who are "voluntarily" recruited into armed forces and
those who serve in non-combat military roles (not directly engaged in hostilities). These gaps and
inconsistencies within the protective legal framework have evolved into customary international
law norms. On one hand, there is substantial evidence indicating that the prohibition against using
children under the age of 15 in armed conflict has gained customary international law status. In a
pivotal 2004 judgment, the Appeals Chamber of the Special Court for Sierra Leone underscored
that the ban on child recruitment had solidified as customary international law.80 This judgment
emphasized that the ongoing illegal practice of child recruitment does not diminish the validity of
the customary norm. Additionally, the Court addressed the second component of customary law,
opinio juris, asserting that states unmistakably acknowledge a legal obligation not to engage in
child recruitment. The International Committee of the Red Cross (ICRC) further supports the
customary nature of these laws aimed at preventing and eliminating the practice of child
soldiering.81 The ICRC's study highlights that the recruitment of children is prohibited in various
military manuals, including those applicable in non-international armed conflicts, and is also
prohibited by the legislation of numerous states. The study concludes that state practices establish
the rules regarding the prohibition of children's recruitment into armed forces as a norm of
customary international law applicable in both international and non-international armed conflicts.
It's important to note that the ICRC's position carries significant weight, given its mandate to
promote the application of international humanitarian law in armed conflicts and enhance
understanding and dissemination of knowledge about such laws.82

80 Pack, M. (2005). Developments at the Special Court for Sierra Leone. Law & Prac. Int'l Cts. & Tribunals, 4,
171.
81 Henckaerts, J. M., & Alvermann, C. (2005). Customary international humanitarian law (Vol. 1). Cambridge
University Press.
82 Bugnion, F. (2007). Red Cross, red crescent, red crystal. Geneva: International Committee of the Red
Cross. Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th
International Conference of the Red Cross, Geneva, October 1986, art 5(2)(c) and (g).

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 Further, compelling evidence of these state practices is found in several United Nations
Security Council (UNSC) resolutions. Since 1999, the UNSC has passed nine resolutions,83
creating the formal framework for safeguarding children affected by armed conflict. These
resolutions serve as "sources formelles," recognized as a legal basis stemming from state practices
demonstrating the existence of a customary norm.84 The UNSC has not merely showcased this
practice but has also played a pivotal role in shaping the understanding of this norm, consequently
elevating it to customary law status. Through the adoption of legally binding decisions, the UNSC
has contributed to what Higgins refers to as "sources matérielles of international law," as they aid
in clarifying and advancing the law.85 The recruitment of children into armed forces has gradually
evolved into an issue perceived as a direct threat to global peace and security.86 The prohibition of
this practice is now seen as vital for maintaining international order. France and Benin took the
lead in negotiating the 1612 Resolution in 2005, which led to the establishment of the UN Security
Council Working Group on child soldiers.87 This institution significantly contributed to the
development of the legal framework. Its primary role was to provide accurate information on the
recruitment and utilization of child soldiers, in violation of international law. By shedding light on
the involvement of children in armed conflict as a threat to peace and security, established
meanings and categories underwent transformation. This shift resulted in the adoption of new
resolutions and ensured that the norm concerning the protection of children in armed conflict
became a prominent item on the Security Council's agenda.

83 Strauss, M. A. (2016). Implementation of the United Nations mandate to ensure adequate safety and
security measures for women and children during the Syrian civil war (2011-2015) (Doctoral dissertation,
North-West University (South Africa), Potchefstroom Campus).
84 Higgins, R. (1970). The United Nations and Lawmaking: The Political Organs. American Journal of
International Law, 64(4), 37-48.
85 Ibid.
86 Nsabimana, J. (2014). Children affected by armed conflict: a review of the United Nations Security
Council, International Court and UNICEF's work on children in situations of armed conflict.
87 Chikuhwa, T. W., Gates, S., & Reich, S. (2010). The Evolution of the United Nations' Protection Agenda
for Children: Applying International Standards. Child soldiers in the age of fractured states, 37-51.

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 Conversely, the "straight 18 position"88 regarding child soldiers defines those entitled to
international legal protection as individuals under the age of 18. This stance is enshrined in the
Optional Protocol II and the non-binding Paris principles. While it hasn't yet achieved the status
of customary international law, it has significantly influenced state policy-making processes. For
example, the United States, as a signatory of the Optional Protocol II, enacted the "Child Soldier
Prevention Act of 2008," which aims to prevent the recruitment and use of children in armed
conflict. It aligns with the "straight 18 position" in defining child soldiers. The European Union
has also been committed to employing human rights legal instruments to address this issue. The
EU has adopted the Paris Commitments' definition, considering it as "internationally accepted
terminology,"89 despite its non-binding nature. By incorporating this definition into its policy
toolkit, the Council of the European Union has played a proactive role in addressing child
soldiers.90 Moreover, the Special Representative of the Secretary-General on Children and Armed
Conflict has recognized child recruitment as a significant issue,91 and more states have ratified the
Optional Protocol II, incorporating its key principles into national legislation. This trend is evident
in the Concluding Observations of the Committee on the Rights of the Child in their reviews of
reports submitted by countries like Iraq, the Democratic Republic of the Congo, Sudan, and the
Philippines.92 These Observations consistently stress three primary recommendations: (1)
verifying the age of individuals in state armed forces,93 (2) ensuring military personnel are trained

88 Kononenko, I. (2016). Prohibiting the use of child soldiers: contested norm in contemporary human rights
discourse. Nordic Journal of Human Rights, 34(2), 89-103.
89 Council of the European Union. Revised Implementation Strategy of the Guidelines of the EU Guidelines
on Children and Armed Conflict (2010). This definition is used in documents that refer to the issue of child
soldiers (adopted by both Council and Commission since 2007).
90 Wallace, H., Pollack, M. A., Roederer-Rynning, C., & Young, A. R. (Eds.). (2020). Policy-making in the
European Union. Oxford University Press, USA.
91 Adamkiewicz, T., & Goldhagen, J. (2021). Mitigating armed conflict casualties in
children. Pediatrics, 147(2).
92 Kononenko, I. (2016). Prohibiting the use of child soldiers: contested norm in contemporary human rights
discourse. Nordic Journal of Human Rights, 34(2), 89-103.
93 Holmström, L. (Ed.). (2003). Concluding Observations of the UN Committee on Economic, Social and
Cultural Rights: Eighth to Twenty-Seventh Sessions (1993-2001 (Vol. 4). Martinus Nijhoff Publishers.

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on the provisions of the Optional Protocol II,94 and (3) promoting the raising of the age for
voluntary recruitment to 18 years.95 While international law still exhibits compartmentalized
responses to the issue of child soldiers based on their age, the prevailing trend leans towards
adopting the "straight 18 position."96

Efforts to address child soldiering highlight the need to protect childhood from violence.
While progress has been made in prohibiting child recruitment, ongoing changes in interpreting
this norm will define its future. Resolving these challenges will determine the extent of protections
for children in armed conflicts.

5. CONCLUSION
In conclusion, this paper significantly contributes to the field of International Humanitarian Law
by addressing the critical issue of child soldiers in contemporary armed conflicts. The study
underscores the imperative for stronger protections for children within the existing legal
framework, recognizing inconsistencies and gaps in international laws. The call to harmonize and
strengthen legal standards is evident due to differing interpretations and evolving norms. The
persistent reality of child soldiering represents a blatant violation of children's rights, challenging
the core principles of International Humanitarian Law. Advocating for the consistent application
of these laws is both a legal obligation and a moral duty, emphasizing unwavering protection for
children, regardless of their role in hostilities. The international community must continue its
efforts to eliminate this troubling practice, ensuring a safer and fairer future for all children affected
by armed conflicts. In line with the research, recommendations include promoting the age for
voluntary recruitment to 18 years, solidifying the prohibition against using children under 15 in
armed conflict, ensuring uniform safeguards for children in non-combat roles, and advocating for
UNSC resolutions reinforcing IHL principles, particularly emphasizing the protection of civilians,
including children, during armed conflicts.

94 Kononenko, I. (2016). Prohibiting the use of child soldiers: contested norm in contemporary human rights
discourse. Nordic Journal of Human Rights, 34(2), 89-103.
95 ibid
96 Drumbl, M. A. (2002). Restorative justice and collective responsibility: Lessons for and from the Rwandan
genocide. Contemporary Justice Review, 5(1), 5-22

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