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Female Child Soldiers III
Napísal: Kristýna FOUKALOVÁ   
Nedeľa, 21.júla 2013 - 12:03 hod.

 

Case – law

Above we have seen various legal instruments for protection of children from participating in conflicts as child soldiers contrasting sharply with the reality of hundreds of thousands of children including girls taking part in hostilities in many different ways. Ultimately it is always important whether those who use children to perform such roles will be punished or go free unpunished. Following lines examine international efforts to prosecute recruitment and use of child soldiers and whether these efforts have any impact on girl soldiers too; in particular it focuses on the approach of the ICC and the SCSL. Let’s start with the SCSL case – law which is older comparing to the ICC case – law. (41)

First, the Norman case must be mentioned. This case is indeed crucial for protection of child soldiers because the SCSL (the Appeal Chamber in the decision on preliminary motion) stated that child recruitment and use of children under 15 to participate actively in hostilities are prohibited as war crimes based in the customary international law. Although that statement was a bit controversial (Happold 2005: pp. 94–95, 128–132), no one but the Defence contested it as such; the disputed issue was rather the way to this conclusion, its reasoning. Anyway, the customary nature of these war crimes has been affirmed several times since then not only in following judgements but also in the academic area and by the international community in general (Happold 2005: pp. 89–95; Henckaerts, Doswald-Beck 2005: p. 485 /Rule 137/). (42) And this is indeed very important because the customary law may fill in some of the loopholes of the international treaty law (Happold 2005: pp. 86–87). In particular, it is binding both upon all states – even if they have not ratified any international treaty in this area – and upon non – state actors and both in international and internal armed conflicts. In 2007, the SCSL (Trial Chamber) issued another judgment of huge importance: in the Brima, Kamara and Kanu case (so called AFRC case). The Trial Chamber dealt inter alia with the understanding of the “using children to participate actively in the hostilities” and in fact it extended the interpretation so far held. It found that the term encompasses not only participation in combat, but “any labour or support that gives effect to, or helps maintain, operations in a conflict” because without logistical support an armed force would not be able to carry on its operations. Therefore, activities like “carrying loads for the fighting faction, finding and/or acquiring food, ammunition or equipment, …, making trails or finding route” fall within the ambit of active participation (paras. 736–737). Although this Trial Chamber’s con­clusion was not even subject to appeal; unfortunately, it was not maintained in the two following cases, i. e. the Fofana and Kondewa case (so called CDF case) and the Sesay, Kallon and Gbao case (so called RUF case). In both of later cases the Court was strictly inspired by rather narrower interpretation of “active participation in hostilities” provided in a commentary to the Rome (ICC) Statute by the Preparatory Committee on the Establishment of an International Criminal Court (43) (the CDF judgement, para. 193; the RUF judgement, para. 188). Thus, it required military nature of such acts (relation to the hostilities) and/or direct support for the military operations of the armed group which resulted in that using children as domestic labour or for food finding missions did not amount to the war crime of using children to participate actively in hostilities (e. g. the RUF judgement, paras. 1730 and 1743). (44) However, in the last SCSL’s judgement, the Charles Taylor judgement, the narrow interpretation has been abandoned again. The Trial Chamber expressly referred to the AFRC judgement and stated that “’[u]sing‘ children to participate actively in the hostilities encompasses putting their lives directly at risk in combat, but may also include participation in activities linked to combat such carrying loads for the fighting faction, finding and/or acquiring food, ammunition or equipment, acting as decoys, carrying messages, making trails or fading routes, manning checkpoints or acting as human shields“, at the same time pointing out that “[w]hether a child is actively participating in hostilities in such situations will be assessed on a case-by-case basis“ (para. 444).

 

Nevertheless, in the end it seems that although the Court extended its “active participation” conception in comparison with the one from the two previous cases – so that it covered inter alia instances of food-finding missions (provided that they were linked to combat, e. g. by committing crimes against civilians during the missions) – still the gateways to judicial protection remained closed to some child soldiers – such as those charged with performance of domestic chores (paras. 1479 and 1522). Anyway, while the SCSL is slowly drawing to an end of its work, the exact opposite applies to the ICC. The latter only opened its first case in 2007 and in 2012 it delivered its first judgement. Both of mentioned first steps of the ICC took place within the Thomas Lubanga Dyilo case, which is especially important when dealing with the child soldiers issue Lubanga had been charged with and later found guilty of, war crimes of conscripting and enlisting of children under the age of 15 years into an armed group and using them to participate actively in hostilities. Already the Lubanga decision on the confirmation of charges has been very interesting since the Court first made clear that under the Rome Statute both forcible and voluntary recruitment are punishable – the former as “conscripting” and the latter as “enlisting”; the child’s “consent” cannot be used as a defence (paras. 246–247). Second, the Court tried to shed light on the term “active participation in hostilities”. In this regard it declared that the notion covers both combat and combat-related activities, such as scouting, spying, sabotage, using children as decoys, couriers or at military check-points, and includes also guarding military objectives and bodyguarding (“safeguarding the physical safety”) of military commanders. On the other hand, unfortunately enough, the Court explicitly excluded activities “clearly unrelated to hostilities”, such as food deliveries or using children as domestic workers, from the scope of the notion (paras. 261–263); so it resembled rather the SCSL’s approach applied in the CDF and the RUF cases. Nonetheless, after the decision an amicus curiae brief by the UN Special Representative of the Secretary-General for Children and Armed Conflict (45) was submitted to the ICC, and indeed, later it was quite largely mentioned in the final Trial Chamber judgement. The Special Representative gave her observations on the definition of “conscripting or enlisting” children and on the interpretation of “using them to participate actively in hostilities”, “focusing specifically on the role of girls in armed forces” (para. 1). With respect to the latter issue (paras. 17–26), the amicus brief called for a broader interpretation of the term which would comprise various tasks performed by children associated with armed groups. It reminded the ICC not only of the Cape Town and the Paris Principles (discussed below) but also of the AFRC judgement of the SCSL with a rather wide understanding of the term “using for active participation”. It suggested a case – by – case approach, examining in each case “whether the child’s participation served an essential support function to the armed force or armed group during the period of conflict” (para. 21), and warned of a narrow interpretation leaving girl soldiers still invisible. Last but not least, it recommended that the Court “deliberately include[s] any sexual acts perpetrated, in particular against girls, within its understanding of the ‘using’ crime” (para. 25). As already mentioned, the Trial Chamber judgement in the Lubanga case of 14 March 2012 accepted some of the important Special Representative’s suggestions but furthermore it went beyond the amicus curiae brief regarding certain issues. The Court, taking as its starting point the principles of the international law of treaties, emphasised the object and purpose of the interpreted Rome Statute provision, i. e. the war crimes of conscripting and enlisting children under the age of 15 and of using them to participate actively in hostilities (para. 601). Considering also internationally recognised human rights norms in its interpretation, it affirmed as the primary objective here the protection of children from the risks associated with armed conflicts (para. 605). On this basis then, together with the Special Representative it questioned e. g. the possibility of giving (genuine and informed) consent when children under 15 are enlisting in an armed group (para. 613 et seq.), but even more importantly, proceeding from the AFRC trial judgement and the Special Representative’s o­pinion, it accepted probably the widest interpretation of the expression “to participate actively in hostilities” so far held in the international (not only) judicial area. It stated: “The extent of the potential danger faced by a child soldier will often be unrelated to the precise nature of the role he or she is given. Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants. All of these activities, which cover either direct or indirect participation, have an underlying common feature: the child concerned is, at the very least, a potential target. The decisive factor, therefore, in deciding if an ‘indirect’ role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target. In the judgment of the Chamber these combined factors – the child’s support and this level of consequential risk – mean that although absent from the immediate scene of the hostilities, the individual was nonetheless actively involved in them.” (para. 628; emphasis added). So the ICC seems to have left the criterion of (more or less) closed connection of a child’s activity to combat or, more generally, operations in conflict; and while trying to provide children with more and better protection it gave preference to a new criterion of whether the activity put the child in real danger as a potential target. The Court then continued by determining on a case – by – case basis whether a particular activity constituted “active participation”. Its consideration avoided neither the issue of domestic work nor the issue of sexual violence in the context of the examined war crimes, i. e. two issues significantly making the situation (and recognition) of female child soldiers problematic. As regards the former, several witnesses testified the reality described in the text above: girls performed the same task as others (boy child soldiers) in the armed group but additionally cooked and carried out other “feminine” tasks. The Court then acknowledged the variability of the (female) child soldier’s roles in the armed groups, stating that it took into account “the evidence concerning domestic work undertaken by girls under the age of 15 when the support provided by the girl exposed her to danger by becoming a potential target”, and it expressly recognised that “a significant number of girls under the age of 15 were used for domestic work, in addition to the other tasks they carried out as UPC/FPLC soldiers, such as involvement in combat, joining patrols and acting as bodyguards” (para. 882).

 

Finally, regarding the latter issue of sexual violence in the (female) child soldiers context, the Court in the end could not give any decisive opinion since the Prosecution had failed to include any allegations of sexual violence in the charges (although such evidence was introduced later during the trial). Anyway, at least the Court did not exclude the possibility as such that sexual slavery (abuse) of child soldiers could amount to child soldiers offences under the Rome Statute. (46) It follows that the recent case – law, especially the Lubanga judgement, has made a significant contribution to recognition of complexity of child soldiers’ roles and tasks, including some particularities relating to female child soldiers. The Lubanga judgement is worth mentioning also with regard to the issue of sexual abuse of child soldiers – since even the negative comment alone (that the issue could not be dealt with properly) means that the issue is not ignored and may be relevant and worked out in other cases; shortly, the judgement helps to make the issue visible. This then applies even more to the separate and dissenting opinion of Judge Odio Benito attached to the judgement (see note 46). However, it must not be forgotten that we are still lacking a complex clear and stable definition of a child soldier and their (active) participation in hostilities – the Lubanga judgement provided rather a criterion, although indeed a useful one, to determine what should be considered as active participation but it did not establish any complex definition (which could include also the sexual violence issue). Nevertheless, there are still several pending cases – such as the cases of Germain Katanga or of Bosco Ntaganda, both still waiting for their trial judgements – before the ICC (as well as the SCSL) so perhaps the future will show us the final unambiguous direction and we may only hope that that direction will lead to recognition of female child soldiers and various ways of their participation in hostilities, as it has been already indicated in the Lubanga judgement.

Conclusion

On the previous pages and lines we have found out what the main characteristics of female child soldiers are, especially in comparison with male child soldiers. After making an overview of relevant applicable law we tried to link it with the described reality and determine to what degree these two sets overlap, how large their intersection is. Now we can perhaps conclude that the law indeed provides girl soldiers with certain protection, although in the same breath we can express – legitimate (?) – doubts about its adequacy and sufficiency. If we look away from the strength (or more precisely weakness) of various legal obligations and other obstacles sketched in the chapter on “Effectiveness of the applicable law”, we see that girls in armed conflicts are mainly prevented from taking “direct” or “active” part in hostilities on one hand and from being sexually abused on the other. This means, to use words of Gilbertson, that “the girl soldier appears to be (…) invisible (…) to the international community, only noticed and protected when she is being used for sex or on the front lines of combat” (Gilbertson 2008: p. 239). Indeed, the major problem of current legal state possibly rests in frequent prohibition of – only – “direct” or “active” participation of children in hostilities, which does not seem to be extendable to cover all the roles performed by children as members of armed groups in conflicts. The use of these adjectives is really unfortunate, since first, it is not clear where the exact boundaries of direct/indirect, active/non-active participation are; however, we know that they, most likely, lie before sexual exploitation (and in some cases probably even domestic works), thus excluding it. Second, the term “direct” participation is rather counterproductive in seeking protection for children in armed groups because it was originally introduced into IHL to provide the broadest possible protection to civilians not participating “directly” in hostilities. That is why in this sense it should be interpreted really restrictively; on the contrary, children involved in hostilities need the broadest possible interpretation of the term which would prevent them from any, or as much as possible from participation in hostilities. The notion of “active participation” was introduced later with the view of extending the boundaries of “direct participation” and perhaps it has succeeded in this effort; nevertheless its current majority interpretation still does not go far enough to exclude children from any dangerous involvement in armed groups. In my opinion, we may even dare to say that the described state of law is in fact indirectly discriminatory for female child soldiers who are more likely to be assigned supplementary roles, not combating, within armed groups in comparison with their male counterparts. And this means they are also more likely to fall through the legal loopholes and not to be caught by the protective net of international law. Furthermore, we may link this reality with often “lower” social position of females – as opposed to males – in many regions where the armed conflicts take place, exposing them to various discriminatory and prejudiced practices, stereotypical views on their roles in the society and therefore resulting in their higher susceptibility to be abused. This is precisely the point where we can observe the synergistic effect striking girl soldiers, being both children and women. Their suffering as child soldiers may be even multiplied by their gender. It follows that a change in the international law attitude aiming at broadening the protection of children, especially female, is really needed. The international law has generally not reflected so far the complexity and continuum of ways in which children engage in armed conflicts. If we should content ourselves with the existing state of law we would probably have to always separate the lives of child soldiers within armed groups into small pieces, assign a respective legal provision selected from a rather wide range of documents to each of these pieces and hope that none of those pieces, or at least as few as possible, would remain without a respective provision. Moreover, we would have to do the same, i.e. to dismember child soldiers’ lives, if we wanted to prosecute such treatment of children since the international criminal law invokes responsibility of individuals, not of states, nor even non-state groups. And it is indeed not unlikely that one commander recruits children, others give them orders as to what to do during the day and by the end of the day they are raped by again a different commander. Furthermore, if the international law should decide within which of the two basic categories of combatants and civilians female child soldiers usually fall, considering the frequent use of “direct”/”active” participation, I would say that (especially before the Lubanga judgement) it would vote for the latter category. On the other hand, when we look for the definition of these categories we find out that combatants are seen as “all members of the armed forces of a party to the conflict, except medical and religious personnel”, or respectively as “only those persons who are actually drafted, i.e., who are actually incorporated into the armed forces”; while civilians are defined a contrario, i.e. as “persons who are not members of the armed forces” (see Rule 3 and Rule 5 of the customary IHL; Henckaerts, Doswald-Beck 2005: pp. 11, 14, 17; emphasis added). In my opinion it is quite uncontested that given the quoted definitions recruited girl soldiers are perceived as members of the armed groups, whatever tasks they perform within the group (whether the tasks amount to direct/active participation in hostilities or not). From this perspective it seems that categorisation as combatants rather than civilians would be indeed more appropriate for them and their experience. Besides, we should not forget that their proper categorisation is not important only for the time of the conflict but also for the following period of disarmament, demobilisation and reintegration. Until now, girls – seen rather as civilian victims of conflicts – have not been often accepted to participate in the DDR programmes. In light of the aforesaid, to solve the present major legal problems of female child soldiers it appears to be convenient and advisable to introduce new understanding of the notion “child soldier” in international law, which has not defined the term so far, together with prohibition of using these “new” child soldiers. A proper definition would secure not only increased protection of children during armed conflicts but it would also facilitate efforts to help them – especially to help those children who served rather in auxiliary roles in armed groups – after the conflict including the access to DDR programmes. In searching for such definition the international community does not have to go so far since there have already been some initiatives, both on the part of NGOs and on the part of states. The Paris Commitments to Protect Children from Unlawful Recruitment or Use by Armed Forces or Armed Groups express the view of 84 world countries who have committed themselves “to make every effort to uphold and apply the Paris Principles,” i.e. the 2007 Principles and Guidelines on Children Associated with Armed Forces or Armed Groups which praiseworthily reflect the factual reality: “Girls and boys are used in a variety of ways from support roles, such as cooking or portering, to active fighting, laying mines or spying and girls are frequently used for sexual purposes. This recruitment and use of children violates their rights and causes them physical, developmental, emotional, mental, and spiritual harm.” (Paris Principles 2007: p. 4). Both mentioned documents draw special attention to girls and they continue in the trend started by the 1997 Cape Town Principles and Best Practices, a result of a symposium of UNICEF and the NGO working group on the CRC. But the Cape Town and the Paris initiatives not only recognise the unfortunate reality of (female) child soldiers, they also provide us with an example of a proper definition of “a child soldier”: “any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The definition includes girls recruited for sexual purposes and for forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms.” (Cape Town Principles 1997: Definitions). (47) It follows that now when the international area has already known a proper child soldier definition, the “only” task resting upon it is to translate this definition into a legally binding form. This aim could be achieved for example by confirming it in an international treaty such as another optional protocol to the CRC. However, in the meantime – waiting for the presented second step of the international community which unfortunately seems not likely to happen in the very near future – we should promote at least development of case – law towards broader understanding of active participation of children in hostilities, as already accepted in the AFRC case before the SCSL and especially in the Lubanga case before the ICC where even sexual violence on children was not expressly excluded from child soldiers offences (war crimes) (though it was not expressly included, either). Next, we could further invoke the ILO Convention in expanding the terra prohibita of armed conflicts. Connecting forced or compulsory recruitment of children in armed conflicts labelled as a form of slavery with general absolute prohibition of slavery should result in absolute prohibition of the former activity, no matter by whom, when and where it is conducted. If this conclusion was then linked with the perception of recruitment as a precondition of participation of any form in hostilities, we should reach the desired protection of children against any participation in conflicts as members of armed groups. Eventually, for female child soldiers it is not so important in which of the proposed ways the international community chooses to protect them. The only thing which matters is that it reaches the goal, i.e. ensuring their protection. Hopefully it does. And hopefully it does so before too many of their young lives are lost.

Koniec 3. časti.

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Soft-law

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Cape Town Principles and Best Practices adopted at the symposium on the prevention of recruitment of children into the armed forces and on demobilization and social reintegration of child soldiers in Africa, conducted by the NGO Working Group on the Convention on the Rights of the Child and UNICEF, 27–30 April 1997 [cited 24 February 2013]. Available at: http://www.unicef.org/…oldiers.html.

Recommendation on Children in Armed Conflicts, CRC/C/80, 19th Session, September 1998 [cited 24 February 2013]. Available at: http://www2.ohchr.org/…ecisions.htm.

United Nations. Resolution 1325 (2000) adopted by the Security Council, 31 October 2000, S/RES/1325 (2000)

United Nations, Resolution 1612 (2005) adopted by the Security Council, 26 July 2005, S/RES/1612 (2005)

The Paris Principles : Principles and Guidelines on Children Associated with Armed Forces or Armed Groups. February 2007 [cited 2 March 2013]. Available at: http://childrenandarmedconflict.un.org/…-principles/.

Resolution adopted by the General Assembly [on the report of the Third Committee (A/63/426)], Rights of the child, 13 March 2009, A/RES/63/241

United Nations. Resolution 1888 (2009) adopted by the Security Council, 30 September 2009, S/RES/1888 (2009)

United Nations. Resolution adopted by the General Assembly [on the report of the Third Committee (A/64/435 and Corr.1)], The girl child, 1 March 2010, A/RES/64/145

United Nations. Resolution adopted by the General Assembly [on the report of the Third Committee (A/65/449)], Intensification of efforts to eliminate all forms of violence against women, 23 February 2011, A/RES/65/187

The Paris Commitments. Consolidated Version : The Paris Commitments to protect children from unlawful recruitment or use by armed forces or armed groups [cited 2 March 2013]. Available at: http://childrenandarmedconflict.un.org/…-principles/.

Case-law

Prosecutor v. Sam Hinga Norman – Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Case No. SCSL-2004–14-AR72(E), Special Court for Sierra Leone, 31 May 2004.

Prosecutor v. Thomas Lubanga Dyilo – Decision on the confirmation of charges, Case No. ICC-01/04–01/06, International Criminal Court, 29 January 2007.

Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu  – Trial Chamber Judgement, Case No. SCSL-04–16-T, Special Court for Sierra Leone, 20 June 2007.

Prosecutor v. Moinina Fofana and Allieu Kondewa – Trial Chamber Judgement, Case No. SCSL-04–14-T, Special Court for Sierra Leone, 2 August 2007.

Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu  – Appeals Chamber Judgement, Case No. SCSL-2004–16-A, Special Court for Sierra Leone, 22 February 2008.

Prosecutor v. Issa Hassan Sesay, Morris Kallon, Augustine Gbao – Trial Chamber Judgement, Case No. SCSL-04–15-T, Special Court for Sierra Leone, 25 February 2009 (2 March 2009).

Prosecutor v. Thomas Lubanga Dyilo – Trial Chamber Judgement, Case No. ICC-01/04–01/06, International Criminal Court, 14 March 2012.

Prosecutor v. Charles Ghankay Taylor – Trial Chamber Judgement, Case No. SCSL-03–01-T, Special Court for Sierra Leone, 26 April 2012 (18 May 2012).

Notes

1. A. Leibig points out that this is in fact a consequence of a pragmatic (tactic) approach of NGOs in their campaigns against the use of child soldiers where they concentrated mainly on children in front lines of armed conflict (rather than on impact of armed conflicts on children in broader sense), because they were more likely to succeed with such a narrower issue (Leibig 2005: para. 4). On the other hand, nowadays a strong call for focus on girl soldiers also comes from NGOs (see for example the definition of child soldiers by Child Soldiers International 2013; or Coalition to Stop to Use of Child Soldiers 2008a). However, for example in the IRCR Commentary we can still come around the following with regard to children in conflicts: “Recent conflicts have all too often shown the harrowing spectacle of boys, who have barely left childhood behind them, brandishing rifles and machine-guns and ready to shoot indiscriminately at anything that moves.” (ICRCb: para. 3183).
 
2. For the latter see McKay 2008: p. 169.
 
3. Similarly (and also for the reasons of this fact see) Child Soldiers International 2013. Moreover, we should take into account the difference between categories of “children participated in armed conflicts” and “child soldiers“, the latter including also those serving in times of peace. If we should calculate really all “child soldiers” all over the world, the final figure could be much higher (Happold 2005: p. 19).
 
4. Here, the crucial point may be the definition of a child soldier; this paper inclines to a rather broad definition presented for example in the Cape Town Principles and Best Practices and similarly in the Paris Principles; all of this is discussed below.
 
5. In this article the term “group” will be usually used in a broader sense, so the term “armed groups” will include both governmental armed forces and non-state armed groups; only when it will be needed to distinguish these two categories, “armed forces” and/or “non-state/opposition armed groups” will be addressed explicitly.
 
6. However, sometimes it is argued that the former are rather male whereas the latter often involve both male and female members (Happold 2005: p. 14, referring to R. Brett’s and M. McCallin’s fin­dings).
 
7. On the other hand, Save the Children claims that only minority of girls join an armed group by their own decision (Save the Children 2005: p. 11). Nevertheless, this possible contradiction is not so important because it is sometimes difficult to draw a clear line between voluntary and involuntary enlistment of children in an armed group.
 
8. For an interesting comparison of boys‘ and girls‘ motivation to volunteer see Brett, Specht 2004: p. 85 et seq.
 
9. Which is not always the case because sometimes these groups only play on girls‘ desire of equality in their recruitment campaign but they do not observe it in reality (Gilbertson 2008: p. 222).
 
10. For a detailed analysis see for example West 2000: pp. 180–194. The author argues against a rather traditional view of children participation in armed conflicts as something entirely negative, as disrupting experience of violence etc. He claims that “participation in the armed struggle broadened horizons for these young women, just as it did for young men. (…) Life as a DF would give them greater range of movement across both social and geographical landscapes. They would experience fears and triumphs unknown to the generation of their parents.” (p. 187). I must strongly oppose his opinion since although I am very much in favour of equality between women and men, from my point of view it is not possible to look solely at the position reached by these girls and also the background – the field of activities in which this position had been reached – must be taken into account. I simply cannot agree with seeing child soldier experience as positive as such although I admit it may have some positive aspects.
 
11. At least it is believed that this may work.
 
12. Such was the case of groups e.g. in Sri Lanka, Philippines, Mozambique; see Happold 2005: p. 16; West 2000: p. 190; or Brett 2002: p. 2.
 
13. Similarly Brett 2002: p. 5; Machel 1996: para. 51. For a detailed description of problems with demobilization and reintegration of girls participated in a conflict see also Brett, Specht 2004: pp. 98–100.
 
14. See pp. 54–57 of this book for more information on the Geneva Conventions and child soldiers.
 
15. Article 1.-Material field of application: 1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional (…) (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. 2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.
 
16. Compare the information on the CRC on the United Nations Treaty Collection: Databases website (data as of 24 February 2013).
 
17. According to article 6(3) states “shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.”
 
18. Article 2: For the purposes of the present Protocol: (a) Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration; 2. b) Child prostitution means the use of a child in sexual activities for remuneration or any other form of consideration; 3. ( c) Child pornography means any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.
 
19. The SCSL further prosecutes crimes under Sierra Leonean law, some of which are directed to abusing or abduction of girls.
 
20. For a list of UN resolutions dealing with children in armed conflict see (e.g.) the Office of the Special Representative of the Secretary-General for Children and Armed Conflict: Library website; for the most significant ones (before 2007) see also UN General Assembly 2007: para. 34 et seq. For more information on the UN’s approach to child soldiers see Happold 2005: pp. 34–53.
 
21. Let’s mention for example the GA Resolution 65/187 (2011), the SC Resolution 1325/2000 (2000), the SC Resolution 1888 (2009), GA Declaration of the Protection of Women and Children in Emergency and Armed Conflict (1974), GA Declaration on the Elimination of Violence against Women (1994), or specifically the GA resolution 2010 (on the girl child), etc.
 
22. Interestingly enough, both during the preparatory works on the AP I and on the CRC there were also proposals to use only “participation”, without an adjective, but unfortunately, these proposals did not win out finally. In case of the CRC there was, among others, an argument that the Convention should not raise the standard offered by the AP I (Happold 2005: p. 60; Detrick 1999: pp. 653–655). So, the CRC now follows the wording of the AP I, and moreover, it is followed by the wording of its OP I; as if both documents have forgotten about their main objective, which is the best interest of the child (protection of the child).
 
23. Unfortunately, it seems that the final text of the AP II is not an intention, but rather “the result of inadvertence” during the preparatory works (Happold 2005: p. 67).
 
24. T. Vandewiele points out also the approach of UNICEF which seems to consider “direct participation” as synonymous to “participation”; however, such viewpoint does not follow from the text of the AP I.
 
25. As L. Moreno-Ocampo describes it: “One minute they would carry a gun, the next minute they would serve meals to the commanders, the next minute the commanders would rape them.” (Moreno-Ocampo 2010: p. 845).
 
26. Article 51(3) of the AP I, the Common Article 3 of Geneva Conventions; it is even a customary international law rule (Rule 6; Henckaerts, Doswald-Beck 2005: p. 19).
 
27. Compare article 1 and article 4 of the OP I. While children in state armed forces should not “take a direct part” in hostilities, non-state armed groups “should not, under any circumstances, (…) use [children] in hostilities”. Thus, the burden laid down on the latter groups is heavier and therefore it is likely not to be observed by them – it is not in compliance with the principle of equal treatment, it was introduced in a top-down mode (see Ang 2005: p. 39), and moreover non-state groups are not traditionally bound under international (human rights) law.
 
28. Note that the term “armed conflict” is even broader that more frequent term “hostilities” (!).
 
29. This is maybe the reason why the OP II is quite useless for female child soldiers – it combats the sale of children, child prostitution and child pornography but girl soldiers usually do not experience any of these activities defined in the Protocol (especially because no money or other material values or benefits are involved in abusing them).
 
30. However, since non-state actors are not a party to the Protocol and cannot be bound by it, the obligation (although absolute) is not legal but rather moral (expressed by “should”) (Vandewiele 2006: pp. 41–43).
 
31. This kind of obligation, i.e. taking “all necessary measures”, appeared also in the draft of article 77(2) AP I, but unfortunately it was lost during later amendments (Happold 2005: p. 60). It was discussed also during preparatory works on the CRC, but again without a final effect (Detrick 1999: p. 653).
 
32. As is the case of the ICRC Commentary on the Additional Protocol I, for example (Happold 2005: p. 61).
 
33. Such conclusion may be stated after examining English and French versions of the CRC and its OP I (Vandewiele 2006: p. 27).
 
34. The OP I prohibits only compulsory recruitment in article 2; however, according to the article 4(2) states “shall take all feasible measures to prevent (…) recruitment and use [of children in hostilities by non-state armed groups], including the adoption of legal measures necessary to prohibit and criminalize such practices.” There is no reason why state armed forces should be excluded from this prohibition, so we may conclude that also under the Protocol minimum feasible measures include prohibition of recruitment of children generally.
 
35. And by “recruitment” all forms of possible entering an armed group are meant, whether compulsory, forced or voluntary; for reasons for accepting this broader definition of recruitment see Ang 2005: pp. 47–51.
 
36. Such approach is explicit also in the Rome Statute and the Statute for the SCSL, both of them prohibiting “conscripting or enlisting children” as such.
 
37. Data available as of 25 February 2013. For the information on the AP I and the AP II see the ICRC: Geneva Conventions website; for the information on the CRC, the OP I and OP II see the United Nations Treaty Collection: Databases website; for the information on the ILO Convention see the ILO NORMLEX website; for the information on the Rome Statute see the International Criminal Court website (differently, according to data in the UN Treaty Collection Database there are 122 parties to the Rome Statute).
 
38. See, for example, the case of the CRC and reservations by a number of states to it in Happold 2005: p. 87.
 
39. See further UN General Assembly Report 2007: para. 49 et seq.
 
40. Thus, “AP I does not reflect the messy reality of many modern day armed conflicts.” (Happold 2005: p. 70).
 
41. Although the Rome Statute had entered into force on the 1 July 2002 the first case was not opened earlier than in January 2009 (the Thomas Lubanga case); quite the contrary, the first indictments before the SCSL were issued by the Prosecutor already in 2003. See the International Criminal Court: About the Court website and The Special Court for Sierra Leone: About website.
 
42. However, while Happold assumes that the obligation under customary IHL is the same as under the AP I and the OP I (i.e. taking all feasible measures to ensure that children do not take a direct part in hostilities), the ICRC collection of customary IHL rules seems to overlook the difference between “direct” and “any” participation, or at least not to be interested in this issue (anyway, the rule 137 reads as follows: Children must not be allowed to take part in hostilities.).
 
43. Interestingly enough, the same commentary was cited also in the AFRC judgement; however, while the CDF and the RUF judgements mentioned the Preparatory Committee’s opinion on both what is covered by the key term “active participation” and what is not, the latter judgement referred only to the first part of the Committee’s opinion (stating what is covered by the term; while the second part of its opinion – on what is not covered by the term – remained disregarded in the AFRC judgement).
 
44. Moreover, as regards food finding missions the Chamber explicitly stated that “although this activity supports the armed group in a general sense, in our view it is not directly related to the conduct of hostilities, especially as the evidence does not establish that the children openly carried arms while on such missions” (para. 1743). This assertion maybe goes even more back than to the Preparatory Committee’s com­mentary because it not only explicitly departs from the AFRC judgement (which considered any support that helps to maintain the military operations as the active participation in hostilities), but it even seems to require a child to carry a gun in order to be recognised as a child soldier.
 
45. United Nations Special Representative of the Secretary-General on Children and Armed Conflict. Situation in the Democratic Republic of the Congo in the case of The Prosecutor v Thomas Lubanga Dyilo. Written Submissions. ICC-01/04–01/06–1229-AnxA 18–03–2008 2/10 CB T.
 
46. The Chamber literally said: “Regardless of whether sexual violence may properly be included within the scope of ‘using [children under the age of 15] to participate actively in hostilities’ as a matter of law, because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its [Judgement] on the evidence introduced during the trial that is relevant to this issue.” (para. 630). However, the Chamber Majority’s non-willingness to include the issue of sexual violence into its consideration on child soldiers’ activities (active participation in hostilities) was subject to criticism in the separate and dissenting opinion of Judge Elizabeth Odio Benito. In her view, the Chamber should not have contented with the case-by-case analysis only (which ultimately is limited by the charges and evidence brought by the Prosecution against the accused in this case) but instead it should have proposed a (complex) legal definition of the concept of “use to participate actively in hostilities”; and furthermore, it should have deliberately included sexual violence within this legal concept (paras. 15–17 of the Opinion). According to the dissenting Judge, “[b]y failing to [do this], the Majority of the Chamber is making this critical aspect of the crime invisible. Invisibility of sexual violence in the legal concept leads to discrimination against the victims of enlistment, conscription and use who systematically suffer from this crime as an intrinsic part of the involvement with the armed group.” (para. 16). Last but not least, the Judge very importantly stressed that child soldiers are endangered not only by being a potential target to the “enemy” (as the Majority emphasized) but they can be put at risk also by their “own” armed group (by being subject to brutal trainings, torture and ill-treatment, sexual violence etc. and living conditions incompatible with their fundamental rights there) (paras. 18 and 19).
 
47. Similarly the Paris Principles 2007: p. 8: “’A child associated with and armed force or armed group’ refers to any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys, and girls used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities.” Note that “a child soldier” is in fact just a shorthand for “a child associated with an armed force or armed groups” (Fujio 2008: p. 5, citing Christine Knudsen).
 

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