Detskí vojaci v Kongu (zdroj: http://www.independent.co.uk)

Law – an overview of applicable legal instruments

After sketching the situation and experience of female child soldiers including some of the problems they face, we will now present an overview of legal instruments which may provide them with some protection, or generally speaking, instruments responding to the (female) child soldiers phenomenon. These instruments can be found in several areas of law, mainly international humanitarian law, international human rights law and international criminal law. There are also national laws applicable to the issue but these will not be discussed in this paper as it focuses on the point of view of international law and it is not concerned only in one country. In addition to binding law we can find also soft-law instruments dealing with the issue.

International humanitarian law (IHL) comprises rules which apply during times of war towards both combatants and civilians. The fundamental IHL documents include the four Geneva Conventions of 1949 but these do not specifically address the child soldiers issue. Nevertheless, all of them contain the Common Article 3 applicable to non-international armed conflicts which is particularly important today as majority of the conflicts are rather of internal character. This article obliges contracting parties to treat all persons who do not directly participate in the conflict humanely. Further, it should be mentioned that the Fourth Geneva Convention, protecting civilians, also comprises some provisions focusing directly on children, however, it “sees them as essentially civilians and non-combatants” (Happold 2005: p. 57) (14). From our point of view, two Additional Protocols to the Conventions are more interesting. The Additional Protocol I (AP I) related to international conflicts includes special provisions on protection of women and children in articles 76 and 77; while women shall be protected inter alia against sexual violence, protection of children is worded more generally. Subsections 2 and 3 of the latter article deal with the child soldiers issue directly, stating that “2. The 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.(…)” and then guaranteeing special protection of the article to those children who would take direct part in hostilities and fall into the power of the enemy. On the contrary, the Additional Protocol II (AP II) applies to armed conflicts of non - international nature (15). Its article 4 confirms “fundamental guarantees” for “all persons who do not take a direct part (…) in hostilities” who shall always be treated humanely and with respect to their dignity and who cannot be subject to, i.a., “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; slavery and the slave trade in all their forms” (subsection 2). Special protection is also assured to children (subsection 3), particularly “children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities”.

International Human Rights Law

Among international human rights legal instruments relevant from the point of view of child soldiers, first of all the Convention on the Rights of the Child of 1989 (CRC) must be mentioned. This convention, being ratified by all the countries of the world with only two exceptions (of the United States and Somalia) (16), is a general one – both in terms of the scope of children’s human rights it guarantees and in terms of its applicability which is not excluded for times of war. It contains also some provisions concerning female child soldiers. Article 32 protects children from economic exploitation and dangerous or harmful work; article 36 protects them from all other prejudicial forms of exploitation. Article 34 provides them with protection from sexual exploitation and abuse; in compliance with article 35 states shall prevent abductions of children by taking appropriate measures. Finally, article 38 focuses on children’s rights during armed conflicts when states should respect relevant IHL rules, and it specifically prescribes states to (2) “take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities“, (3) to “refrain from recruiting any person who has not attained the age of fifteen years into their armed forces“ and (4) to “take all feasible measures to ensure protection and care of children who are affected by an armed conflict“ within the IHL provisions related to civilians. In addition, article 39 pays attention also to the post-participation period when it obliges states to “take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of (…) armed conflicts.“ The Convention was later supplemented by two Optional Protocols of 2000, the Optional Protocol to the CRC on the involvement of children in armed conflict (OP I) and the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography (OP II). These two documents seem to be somehow gender-divided: in fact, the latter offers protection especially for girls, while the former could be seen as protecting especially boys (Leibig 2005: para. 33). Article 1 of the former provides that states “shall 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.“ Similar obligation, i.e. taking all feasible measures, covers also prevention of recruitment and use (!) of children under 18 in hostilities by non-state armed groups, which “should not“ do it (article 4). Apart from focusing on elimination of direct participation of children in conflicts and on minimum recruitment age, the OP I deals partly with demobilisation and reintegration of child soldiers, too. (17) On the other hand, the OP II obliges states to prohibit the sale of children, child prostitution and child pornography as defined in article 2. (18) However, the aforesaid documents are not the only ones oriented towards protection of children. The Worst Forms of Child Labour Convention, 1999 (No. 182) (ILO Convention), adopted within the International Labour Organization framework, binds states to “take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency“ (article 1); whereas “the worst forms of child labour“ are considered to be, i.a., “all forms of slavery or practices similar to slavery, such as (…) forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict“ (article 3(a)). Further, the Convention contains an interesting article 7; in conformity with its subsection 2 states shall take effective measures, i.a., for rehabilitation and social integration of children affected by the worst forms of child labour and also measures to „take account of the special situation of girls.“ As female child soldiers are not only “children” but also “females” we should be aware of international law for women protection, too. The Convention on the Elimination of All Forms of Discrimination against Women of 1979 (CEDAW) contains provisions relevant to girl child soldiers issue since their situation is often inherently related to girls’ status in the society. Under this Convention, states should endeavour to modify or abolish existing discrimination even if it is grounded in customs and practices (article 2); they “shall take all appropriate measures: (a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women” (article 5); and they shall also pay special attention to problems and situation (roles) of women in rural areas (article 14). The Convention also explicitly mentions some areas where equality of women and men should be guaranteed, such as education (article 10) or matters relating to marriage and family relations. The latter include, i.a., the equal right freely to choose a spouse and to enter into marriage only with their free and full consent; moreover, the child marriage is prohibited (article 16).

Mapa znázorňujúca konflikty v Afrike s účasťou detských vojakov (zdroj: http://graphics8.nytimes.com)

All the above-mentioned documents are of universal character, nevertheless, there are some regional legal instruments providing child soldiers with protection as well. The African Charter on the Rights and Welfare of the Child (hereinafter “African Charter”) should not be overlooked since a significant number of conflicts with participation of children have been situated on the African continent. The document really reflects this fact and its article 22 is dedicated to protection of children in armed conflicts. Subsection 2 of the article provides that states “shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child.“ Other articles offer children protection from abuse, including sexual abuse (article 16), from harmful social and cultural practices, including gender-oriented discriminatory customs and practices and prohibition of child marriage (article 21), from sexual exploitation (and, again, sexual abuse; article 27), or from abduction (article 29). However, the African Charter is not the only African document on the issue, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (hereinafter “African Protocol”) is also worth our attention. It sets a number of female rights and in article 11 it focuses specifically on women in armed conflicts, i.a. stating that states “shall take all necessary measures to ensure that no child, especially girls under 18 years of age, take a direct part in hostilities and that no child is recruited as a soldier.”

International Criminal Law

Since the establishment of a permanent international court for criminal matters the international community has had also a uniform and steady list of the most serious crimes which shall be prosecuted by the international community. The Rome Statute of the International Criminal Court stipulates the Court’s jurisdiction over the crime of genocide, crimes against humanity, war crimes and the crime of aggression. According to article 8 war crimes, within both international (subsection 2(b)) and internal (subsection 2(e)) armed conflicts, include i.a. “committing rape, sexual slavery (…) or any other form of sexual violence also constituting a grave breach of the Geneva Conventions [in international conflicts]/con­stituting a serious violation of article 3 common to the four Geneva Conventions [in internal conflicts]“ and “conscripting or enlisting children under the age of fifteen years into the national armed forces [in international conflicts]/into armed forces and groups [in internal conflicts] or using them to participate actively in hostilities.” “Rape, sexual slavery (…) or any other form of sexual violence of comparable gravity” is moreover considered to be a crime against humanity provided it is “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (article 7(1)(g)). Besides the universal International Criminal Court (ICC), there have been established also special criminal courts dealing with conflicts in particular countries. Among these, we should pay attention to the Special Court for Sierra Leone (SCSL) since the Sierra Leonean conflict is known for wide use of child soldiers, including girls (McKay 2008: p. 173). According to its Statute, the Special Court prosecutes crimes against humanity, defined similarly as in the Rome Statute, including rape, sexual slavery or any other sexual violence (article 2(g)); violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, including “outrages upon personal dignity, in particular (…) rape (…) and any form of indecent assault” (article 3(e)); and other serious violations of international humanitarian law, including “conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities” (article 4( c)). (19)

Soft Law

There is also a number of legally non-binding documents touching the issue of child soldiers. The United Nations, represented by the General Assembly (GA), the Security Council (SC) or other bodies, has repeatedly (20) “strongly [condemned] any recruitment or use of children in armed conflicts contrary to international law” (GA resolution 2009: para. 51) as well as rape and sexual violence against children. They have called upon the states not to recruit and use children in their military forces as well as to take measures to prevent such practices by non – state armed groups, and to prosecute those who breach such prohibitions. They have also pointed out the need to ensure effective demobilization, disarmament, rehabilitation and reintegration of children into the society, “taking into account the rights and the specific needs and capacities of girls” (GA resolution 2009: para. 55( c)). Last but not least they have recognized the Cape Town Principles and Best Practices on child soldiers and the Paris Principles, which will be discussed further in the paper, too. The UN’s interest in child soldiers issue is, additionally, demonstrated by establishment of several bodies to target the issue.

Detský vojak - dievča v Mjanmarsku (zdroj: http://www.un.org)

By the Security Council resolution 1612 (2005) the Working Group on Children and Armed Conflict was established not only to review reports on the situation in individual countries but also to make recommendations to the Security Council concerning strengthening children’s pro­tection etc. By the General Assembly resolution 51/77 of 1996 the Special Representative of the Secretary-General for Children and Armed Conflict was established, fulfilling the mission “to promote and protect the rights of all children affected by armed conflict” (Office of the Special Representative of the Secretary-General for Children and Armed Conflict). In 2009, the Special Representative developed a working paper on the six grave violations against children in armed conflict – including recruitment or use of child soldiers, rape and other forms of sexual violence against children, and abduction of children. The UN has been also concerned about the women issue relevantly to our purposes. It has produced a number of resolutions and other documents in this area, (21) including those dealing with women and girls in armed conflicts; the problem is that in these documents women and girls are seen rather as civilians which is quite a problematic view in case of female child soldiers.

Law vs. Reality – an analysis of the applicable legal instruments

After finding out law relating to the child soldiers issue we can try to analyse it and examine whether it provides any protection or help to female child soldiers and if so whether the protection is sufficient and effective. First, we will look at and compare the various legal instruments mentioned above both to one another and to the special problems of girl child soldiers; then, we will discuss relevant case-law.

What follows from the applicable law

This part focuses on various adjectives of “participation” which may be crucial from the female child soldiers’ point of view; whereas after that, we will move to a more general issue, but still an important one for female child soldiers – to the question of real effectiveness of the various legal instruments and causes of the present state.

a) Participation – direct, indirect, active, without any adjective

In the previous text we have seen that international area offers a lot of legally binding tools useful, at least partly, for female child soldiers, even though none of them addresses them primarily and they are rather engaged in the topic of child soldiers or girls, not linking one another. These documents, using different language, mostly prohibit participation of children in armed conflicts – however, they do so only to a certain degree. Majority of them speak about “direct participation” which should be forbidden (see AP I, the CRC and the OP I, (22) the African Charter, the African Protocol), while international criminal law prefers to prosecute “active participation”; and there are only few examples combating simply “participation” of children and refraining from further specification (the AP II (23) and the ILO Convention). Therefore, several questions immediately arise – what can be regarded as direct/active participation, what lies outside the notions and where is the boundary? According to a commentary on the AP I, the “direct participation” “means acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces” (Sandoz, Swinarski and Zimmermann 1987: p. 619, cited in Happold 2005: p. 63, note 33) – there must be a “direct causal link” between the act and the harm done to the enemy (Ang 2005: p. 37). It results in the fact that it does not include activities such as gathering and transmission of military information (including spying), transportation of military equipment, demining, nor other supplementary activities (Vandewiele 2006: p. 24). (24) And here we come precisely to the point which makes girl child soldiers often invisible to the international law. As summarized in the second chapter, female child soldiers usually carry out many tasks, combating being only one of them, along with spying, guarding, preparing food, cleaning, taking care of small children and the wounded, providing sexual services etc. (25) Nevertheless, when girls do not use their guns to fight, international law usually does not treat them as child soldiers. So far as “active participation” is concerned, use of this term is not always helpful for girl soldiers, either. There are various opinions on interpretation of the term, one seeing it as synonymous with “fighting” (Ang 2005: pp. 39–40), another equating it to “direct participation” (Happold 2005: pp. 97–98), the other considering it more broader, to include “military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints” (Draft Statute for the International Criminal Court 1998: p. 21, cited in Happold 2005: p. 98, note 68). However, not even such wider interpretation covers all activities performed by female child soldiers. Indeed, the law seems not to be able to deal with the fact that (female) child soldiers’ tasks in armed groups form rather a continuum running from real fighting to food preparation and providing medical assistance or sexual services. It is no more, at least not always, possible to split the individual members of armed groups into separate boxes with tags indicating their single/main function. Children usually carry out multiple tasks and the law should reflect it and provide them with protection against their participation in armed groups as such simply because it is not practicable to draw a clear line between their individual jobs, nor even between their direct, indirect or active participation in hostilities; (26) letting alone uncertain interpretation of these terms. Moreover, regardless whether they participate in hostilities rather directly or rather indirectly, child soldiers always face significant danger which is not directly proportional to directness of their participation (Ang 2005: p. 37; Happold 2005: p. 64). Bearing in mind not only the aforesaid, perhaps we may say that the main problem lies in understanding children’s role as such in modern armed conflicts which, indeed, have gone through many changes in last decades. On the contrary, the Additional Protocols to the Geneva Conventions were concluded in 1977 and later documents were often patterned after the AP I; not, unfortunately, after the AP II. And in those times children could be seen rather as – almost solely – civilians not participating in hostilities than as, or not so much as, their participants or members of parties to conflicts. However, this is certainly not the case of modern times and conflicts. So, once again we can witness a paradoxical situation: civilians are generally protected during armed conflicts unless they take a direct part in hostilities. In order to provide them with the highest protection possible the term “direct part” should be interpreted restrictively; moreover, it is an exception to the general rule of protection and exceptions should be in principle interpreted restrictively. On the other hand, the situation of the child soldiers is completely the opposite. In order to protect them as much as possible the adjectives “direct”/”active” must be interpreted in the broadest way possible, or better, they should not be used at all as they only restrict the notion of “participation” itself. Since it is highly discommended and rather unfortunate to apply different interpretations to one term – especially in the area of international law where it is generally more difficult to reach one interpretation and practice by all states – we had better not to try to introduce distinct meanings of the disputed terms depending on whether we treat them in the context of protection of civilians or in the context of protection of child soldiers. Instead we should choose the way of abandoning any adjectives specifying participation of children in hostilities. Fortunately, there are also “enlightened” legal documents which have accepted this approach, such as the AP II (but see note 23), the OP I in case of non – state groups (27) and the ILO Convention.

Generálny tajomník OSN Ban Ki - moon počas spustenia medzinárodnej kampane Red Hand Day v boji proti najímaniu detských vojakov (zdroj: http://www.un.org)

The ILO Convention is particularly interesting because it includes “forced and compulsory recruitment of children for use in armed conflict” (28) among other forms of slavery. And freedom of slavery is an absolute human right, slavery being prohibited in all times and under all circumstances. It means that at least in states which are parties to this Convention use of child soldiers should be prohibited as such – and although from the traditional point of view this absolute obligation rests only upon states it could be deduced to bind also non – state actors. Such conclusion could be drawn e.g. through the Common Article 3 of the Geneva Conventions applying to non – international conflicts or through seeing the obligation as a genuinely fundamental rule of both vertical and horizontal relations in conflicts below the threshold of the Common Article 3. On the other hand, we can regret that the ILO Convention aims “only” at “forced or compulsory recruitment”, thus excluding cases of “volunteering”. Nevertheless, we may also say that this wording makes it only harder – not impossible – for the volunteering cases to fall within since the real freedom of child’s decision to join an armed group is much disputed. Inclination towards non – distinction of direct/active and other participation of children in hostilities can be found also in soft law, especially in the UN resolutions with high political significance. The Committee on the Rights of the Child responsible for monitoring implementation of the CRC and its Optional Protocols and for unifying interpretation on them, seems to promote this approach as well (Ang 2005: p. 41). As soon as when publishing its first recommendation dedicated to children in armed conflict it expressed “its major recommendation on the fundamental importance of raising the age of all forms of recruitment of children into the armed forces to eighteen years and the prohibition of involvement in hostilities” (CRC recommendation 1998), avoiding addition of any adjective. Of course, opponents of the presented non – distinction approach could argue that such approach is not needed because there are other legal provisions not dealing with participation of children in hostilities which are available for child soldiers, especially girls. However, these provisions often focus on prevention of sexual violence, abuse and rape (see the AP II, the OP II, the CEDAW, the Rome Statute or the Statute of the SCSL). Although it is undoubtedly very important to combat such acts as well, there may easily occur another danger for female child soldiers – they may face danger of simplifying their position only to victims of sexual violence. (29) Of course, international community and law should respond to this kind of crimes committed against girl soldiers but in doing so they should not overlook other activities and tasks connected with lives of these girls. In this respect, it is positive that the scope of protection offered to children under treaties like the CRC, the ILO Convention or the African Charter is broader, covering harmful and prejudicial work or exploitation of children in general, or any gender-discriminatory practices. But still, a provision fitting precisely the reality of girl soldiers connecting all (or at least most) aspects of their position and role is missing. Last but not least, assessing female child soldiers as child soldiers and real participants of hostilities may largely affect their future as ex – child soldiers. Demobilisation, demilitarisation, reintegration and resocialisation are crucial also for girl members of armed groups, even if they did not fire a gun during their stay with the group. Unfortunately, actual conditions of participation in such programmes do not count with these girls and have little, if any, regard for them. Situation among binding legal instruments is rather ambiguous – some of them do address specifically the need for social reintegration, others do not. And within the former category of legal documents girls’ needs are usually not mentioned so explicitly as in the ILO Convention. However, the CRC uses a broad term “child victims of armed conflict” and the African Charter protects children from all harmful social and cultural customs and practices including gender-discriminatory ones. Indeed, certain cases of exclusion of girl child soldiers from DDR programmes could be considered discriminatory. The OP I also bears in mind necessity of demobilisation and reintegration of child soldiers but the state’s obligation is directed only towards those children who were recruited or used in hostilities contrary to the Protocol which moves us again to the above – discussed understanding of “direct participation” of children in hostilities. Nevertheless, we may say that current law provides framework for inclusion of female child soldiers into DDR programmes, which is further supported and emphasized by a number of soft – law documents which often even recall the need for considering the special situation of girls.

b) Effectiveness of the applicable law

Above we dealt with different types of activities from which children are or should be protected in armed conflicts. However, even if we look away from the sad reality that international law mostly concentrates on direct or active participation of children in hostilities, there are other problems which might undermine its protective efforts. The scope of the particular obligation of the state, the number of contracting parties to a treaty, the applicability of a treaty also to non – state actors are only some of the factors deciding upon factual strength or weakness of a “legally binding” treaty. One cannot fail to notice that the prohibition of child participation in hostilities is usually not an absolute one (with the exception of the AP II and the OP I towards non-state actors) (30); states are often obliged only to take “all feasible measures” to prevent it (see the AP I, the CRC and its OP I). The result is that child non – participation is not an “obligation of result” for the states but rather an “obligation of means/conduct” (Vandewiele 2006: p. 26). States must exert some effort to reach the set objective – but how much? In fact, taking “all feasible measures” does not require so much from a state in comparison not only to an absolute obligation but also to an obligation to take “all necessary measures” (31) which is common for both African documents (the African Charter and the African Protocol). Nevertheless, the actual meaning of the adjective “feasible” is rather unclear. Not surprisingly, none of the treaties contains a definition of such measures; but not even some of their significant commentaries seem to be helpful in this regard. (32) More­over, there are also some indications that the discussed expression does not have the same meaning in all the cases where it is used. (33) But perhaps it may be concluded that under a “feasible measures” clause not only the aim to be reached should be taken into account – as it is in case of “necessary measures” – but also the particular circumstances of the situation in which the aim should be reached (Happold 2005: p. 62). As regards more practical specification of the concept, states are expected to take legislative, administrative, educational, or other measures (Ang 2005: p. 45, referring to the CRC Committee’s sug­gestions). Further, the treaties usually contain a minimum which is at least to be observed by the states: non-recruitment of children into their armed forces. This is perhaps best obvious from the AP I, using: “take all feasible measures in order that … and, in particular, they shall refrain from recruiting …” (emphasis added); and although in other words, the CRC and its OP I prohibit recruitment (34) of children into state armed forces as well. And indeed, abandoning recruitment of children is a measure which may contribute to their non – participation in hostilities. This conclusion is very important from the view of female child soldiers because it may provide them with another way of protection: if states shall take all feasible measures to ensure that children do not take a direct part in hostilities and as a minimum measure they shall refrain from recruiting them into their armed forces, it should mean that the recruitment (35) of children (into state armed forces) shall be prohibited as such, in any case – regardless the nature, direct, or indirect, of potential future participation of a child there. (36) Another obstacle to effective and widespread abolition of child recruitment and even participation in hostilities is related to the question as to who is legally bound by all those international documents. First of all, an international treaty is binding only upon those states that have ratified it. And despite that the Geneva Conventions or the CRC were ratified almost by all states in the world it is not the case for the other treaties. There are 172 state parties to the Additional Protocol I, 166 to the Additional Protocol II, 151 to the Optional Protocol I, 163 to the Optional Protocol II, 177 to the ILO Convention and 121 to the Rome Statute. (37) One may consider these figures quite impressive and sufficient too, but we should always look at them from the opposite side: there are still tens of countries that have not ratified the treaties and therefore they are not legally obliged to comply with standards, higher or lower, set by these treaties. Moreover, even if a state ratifies a treaty, it may also make a reservation to certain treaty provisions, thus making them inapplicable in its case. (38) Secondly, only states are parties to international treaties, not non – state actors; the latter thus generally cannot have direct legal obligations under international law. On the contrary, non – state actors are often those who recruit children and force them to or let them participate in the hostilities. However, they may be punished under the domestic (national) legislation which implements state’s obligation under international human rights law – so not directly under this part of international law. That is also why for example the OP I uses a kind of moral obligation not to recruit children and use them in hostilities towards non – state actors. But national implementation of international law is often full of problems and weak points which diminish its effectiveness. (39) On the other hand, within international humanitarian law there are instruments which apply not exclusively to states – particularly, the AP II is simply applied in case of non – international armed conflicts as defined in its article 1 (see note 15) without specifying the actors that should be bound by it and thus binding non – state armed groups, too. Unfortunately, this is rather an exception so under the AP I again only state forces are bound; regardless that non – state armed groups might be involved in conflicts of international nature as well. (40) Anyway, while international human rights law is applicable generally – in all times, unless a treaty contains a derogation clause; international humanitarian law is only activated in case of conflicts, international or not, which are defined by it. It results that not all armed conflicts of recent days have fallen within the scope of IHL because they have not reached the threshold set by it. After linking all the mentioned factors together we may see why still so many (female) child soldiers are used in modern conflicts. If the present law is not capable to prevent armed groups from recruiting and using children to participate in conflicts, i.e. beforehand, it should try to ensure punishment of such activities at least afterwards. These efforts will be examined in the next sub – chapter.

Koniec 2. časti.