CHILD SOILDERS

Protection of child soldier under International Criminal Law

1.INTRODUCTION

“I think with sorrow of those living and growing up against a

background of war, of those who have known nothing but conflict

and violence. . . . What a terrible legacy for their future!

Children need peace; they have a right to it.”Pope John Paul II, Address at the celebration of the World Day of

Peace (Jan 1, 1999).

If we think of a child in any country we always imagine that a

child should posses a good education, healthy food, social

protection and last enthusiasm for better future. The condition

is never up to mark of expectation but by many government

policies comes time by time it give some ray hope. But some sects

of children lives are beyond imagination of any normal prudent

man. On National and International level Child Soldiers is the

big hole of darkness where the no one has torched the light to

make them come out from this living hell. If we see the ratio

somewhat 300,000 children below the age of 18 are used in both

international and national conflict around the world. Twenty

million children died as a result of participating in armed

conflict. 1

1 Marsha L. Hackenberg, Can Optional Protocol for the Convention on the Rights

of Child Protect the Ugandian Child Soldiers? Ind. Int’l& comp. L Rev. 417,

418 (2000)1


International organization became serious about this area of

problem before two decades and started framing policies,

conventions and rules. Yet inspite of the stronger laws and

advocacy that have resulted in United Nation Security Council

resolutions, International agreement, domestic legislation, both

National Armies group continue to recruit and use children in

armed conflict. International community must understand that the

issue of child soldier is not one day act but long time process

which needs to check by authorities on national and international

level by strong sanction behind. Unless and until the

international community understands doctrine that derives the use

of child soldiers, the prohibition against child soldiering will

be empty and will continue to be violated. In short, we need to

understand why army group and other groups which recruit child

soldiers are very keen to take them and why children themselves

voluntarily goes into this illegal business. After understanding

the cause and reason only then the authorities can attack on the

heart of the problem.

2.CHILD SOLDIERS

According to the Coalition to stop the use of child soldiers-2

“Child soldiers perform a range of tasks including participation

in combat, laying mines and explosives; scouting, spying, acting

as decoys, couriers or guards; training, drill or other

2 http://www.child-soldiers.org/2


preparations; logistics and support functions, portering, cooking

and domestic labor; and sexual slavery or other recruitment for

sexual purposes.”

A child soldier is anyone under the age of 18 who has been

recruited or used in hostilities by state armed forces or non-

state armed groups. Humanitarian and human rights groups that

seek to ban the military use of children have defined a child

soldier as any person under eighteen years of age who has been

recruited or used by an armed force or armed group in any

capacity. 3 Article 8(2)(b)(xxvi) of The 1998 Rome Statute of the

International Criminal Court makes it a war crime for any

national army or other armed group to conscript or enlist

children under the age of fifteen, or to use these children to

actively participate in hostilities.4 Similarly, the Statute of

the Special Court for Sierra Leone (“Special Court”) criminalizes

the recruitment of child soldiers below age fifteen.5

According to UNICEF: During the last decade, it is estimated (and

these figures, while specific, are necessarily orders of

magnitude) that child victims have included:6

2 million killed;

3 http://www.unicef.org/emerg/files/Cape_Town_Principles(1).pdf4 Rome Statute of the International Criminal Court, art. 8(2)(b)(xxvi), July

17, 1998, 2187U.N.T.S. 90.5 Art. 4(c) of the Statute of the special court for Sierra leone6 http://www.globalissues.org/article/82/children-conflicts-and-the-military

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4-5 million disabled;

12 million left homeless;

more than 1 million orphaned or separated from their

parents;

some 10 million psychologically traumatized.

3.Protection of child soldiers under various

International legislation

(i) International Human Rights Law:

A) Convention on Right of Child adopted on November 1989 under

article 38 proclaimed that “State parties shall take all feasible

measures to ensure that person who have not attained the age of

15 years do not take direct part in hostilities.” However those

who are above the age of 18 are still voluntarily able to take

part in combat as soldiers. This language is drawn from the two

Additional protocol of Geneva Convention.

B) The optional protocol on the involvement of children in armed

conflict (OPAC) -This protocol was adopted by UN General Assembly

on 25 May 2000, entered into force on 12 Feb 2002 states that

“State shall take all feasible measures to ensures that person

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below the age of 18 do not take part in hostilities and they are

not compulsorily recruited into their armed force”7

Implementation by State Parties of the Convention on the Rights

of the Child and of its optional protocols to the Convention,

including OPAC, is monitored by the (UN) Committee on the Rights

of the Child.8

(ii) International Labour Law:

A) International Labour Organization (ILO) Minimum Age Convention

138- This convention was adopted on 26 June 1973 and came into

force on 19 June 1976. Article 1 states that “States ratifying

the convention are bound to: pursue a national policy designed to

ensure the effective abolition of child labour; and raise

progressively the minimum age for admission to employment or work

to a level consistent with the fullest physical and mental

development of young person’s”. It also sets 18 years as “the

minimum age for admission to employment or work which by its

nature or circumstances in which it is carried out is likely to

jeopardise the health, safety or morals of young person’s”9

B) International Labour Organization (ILO) Worst Forms of Child

Labour Convention 182: This convention was adopted on 16 June

1999 and came into force on 19 November 2000. Under Article 3(a)7 Adoption by UN General Assembly of a new treaty prohibiting the use of

children under age of 18 in combat.8 http://www.loc.gov/law/help/child-rights/international-law.php9 ibid

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– It commits each state which ratifies it to "take immediate and

effective measures to secure the prohibition and elimination of

the worst forms of child labour as a matter of urgency". The term

"child" applies to all persons under the age of 18 years, and the

worst forms of child labour include forced or compulsory

recruitment of children for use in armed conflict.

(iii) International Humanitarian Law:

(A) The first Additional Protocols of Geneva Conventions of 1949

(1977): The protocols set 15 as the minimum age for recruitment

or use in armed conflict. This minimum standard applies to all

parties, both governmental and non-governmental, in both

international and internal armed conflict.

(B) Article 77(2) of Additional Protocol I: applicable to

international armed conflicts, states:

“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. In recruiting among those persons who have attained

the age of fifteen years but who have not attained the age of

eighteen years the Parties to the conflict shall endeavor to give

priority to those who are oldest.”

Article 4(3)(c) of the Additional Protocol II: applicable to non-

international armed conflicts, states: “Children who have not

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attained the age of fifteen years shall neither be recruited in

the armed forces or groups nor allowed to take part in

hostilities”.

(iv) International Criminal Law

Rome Statute of the International Criminal Court: The Rome

Statute establishes a permanent criminal court to try persons

charged with committing war crimes, crimes against humanity, and

genocide. This is distinguish feature that ICC is treaty where

enlisting of children were considered to be a war crime.

In its definition of war crimes under (Article 8(2)(e)(vii)) of

the statute includes "conscripting or enlisting children under

the age of fifteen years into national armed forces or using them

to participate actively in hostilities" (Article 8(2)(b)(xxvi))

in international armed conflict; and in the case of an internal

armed conflict, "conscripting or enlisting children under the age

of fifteen years into armed forces or groups or using them to

participate actively in hostilities" It also important to note

that the Statute of the Special Court for Sierra Leone (SCSL)

also set this minimum age at 15 years.10

10 The Statute of the Special Court for Sierra Leone, article 77


The prohibition of under-age recruitment includes both compulsory

and voluntary recruitment. This distinction is explicitly made in

the Statutes of the SCSL and the ICC, which speak of

“conscripting or enlisting children under the age of fifteen into

armed forces (or groups11) or “using them to participate actively

in hostilities”. Therefore, even if children were not obliged or

forced to become actively involved in an armed conflict, but

allegedly joined one of the parties voluntarily, this does not

diminish the criminal responsibility of the adults who are

responsible for their enlistment or use in hostilities.

4.Cause of Child Soldier

The number of child soldiers in the world has been on the rise

since 1988. In developing countries, children as young as 7 are

given weapons and are forced to fight. These children are also

used to cook, lay explosives, and are sexually abused.12

1) Most child soldiers have been orphaned, and join the military

looking for a second family.

11 Term „and groups‟ is only included in article 8(e)(vii), concerning non-

international armed conflicts.12 http://www.rsc.ox.ac.uk/publications/working-papers-folder_contents/

RSCworkingpaper52.pdf8


2) The army can seem like the best way for children to survive.

They sign up looking for food and protection.

3) Poverty can drive parents to offer their own children to the

war. Young boys and girls are thrown into this violent lifestyle,

hoping for a few extra meals for their families.

4) Often, armed groups pass through villages and forcibly

“recruit” children, taking them away from their homes.

5) Sometimes, children volunteer because they identify with the

beliefs, causes, or determination of the army.

6) Countries’ use child soldiers because children are easily

intimidated. The military can bend these children to its will,

and the kids do as told.

7) These militaries benefit from child soldiers because they last

longer. Children can fight in the army for over 20 years before

they are released.

8) Many children are told that their parents, siblings, or they

will be killed if they refuse to join the army.

9) Children may volunteer to avenge the death of a relative or

friend.

10) Some girl soldiers join the army to escape abuse, domestic

violence, or forced marriages.

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11) In some countries, children are told that if they join the

army, they will gain magical powers that protect them from enemy

bullets.

5.The First Cases of War Crimes against Children before International Criminal Courts

The Special Court for Sierra Leone (SCSL) was the first

international (or hybrid‟) criminal tribunal to try persons

accused of war crimes against children. The International

Criminal Court (ICC) has launched the proceedings in the first

case concerning war crimes and crimes against humanity against

children, the Lubanga Case, in January 2009, while others are in

their preparatory stage. Both the SCSL Trial Chamber, and the

ICC Pre-Trial Chamber, which has confirmed the charges in the

Lubanga Case before the start of the trial itself, have made an

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important contribution to clarifying the legal definitions of

the alleged crimes against children.

The Special Court for Sierra Leone

In a landmark decision of May 2004, the SCSL held that the

conscription, enlistment and use in hostilities of children

under the age of 15 constitute crimes under customary

international law.13 The SCSL has also contributed to the

interpretation of the legal term “active participation in the

hostilities”, in the Armed Forces Revolutionary Council case,14

the first conviction by an international criminal tribunal on

crimes related to the recruitment and use of child soldiers,

in June 2007. The SCSL determined that “any labour or support

that gives effect to or helps maintain operations in a

conflict constitutes active participation. Hence, carrying

loads for the fighting faction, finding or acquiring

ammunition or equipment, acting as decoys, carrying messages,

making trails or finding routes, manning checkpoints or acting

as human shields are examples of active participation as much

as fighting and combat”15

13 SCSL-2004-14-AR72(E), Hinga Norman, Decision of the SCSL Appeals Chamber of

31 May 2004.14 Prosecutor v. Brima (AFRC), Case No. SCSL-2004-16-T, Judgment, SCSL Trial

Chamber II, 20 June 2007, available at www.sc-sl.org/AFRC.html.15 AFRC Judgment, supra note 52, at para 737; these examples also fall within

the range of activities mentioned in the Lubanga decision, ICC-01/04-01/06, 2911


6.The International Criminal Court

The International Criminal Court’s jurisdiction “over any person

who was under the age of 18 at the time of the alleged commission of a crime” is

excluded.16 Thus, the focus of the ICC, with respect to

children, is on children as victims, not perpetrators. The

Statute of the International Criminal Court 17moves beyond

previously accepted norms that demanded that “all feasible

measures” be taken to ensure that children under the age of

fifteen do not take part in hostilities or that States should

“refrain” from using children in hostilities. The notion in

the Rome Statute of using children to “participate actively in

hostilities” is somewhat different to the wording in the

Convention on the Rights of the Child (CRC) and its Optional

Protocol. The CRC simply prohibits recruitment into armed

forces, a wider prohibition, as the prohibition does not

require involvement in hostilities at all. The Optional

Protocol prohibits the use of children to take a “direct part

in hostilities”. The words ‘using’ and ‘participate’ in ICC

have been adopted in order to cover both direct participation

January 2007, para. 261-263, available at www. Icc-cpi.int.16 Rome Statute of the International Criminal Court, Article 26: Exclusion of

jurisdiction over persons under eighteen17 Rome Statute. op.cit.

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in combat and also active participation in military activities

linked to combat such as scouting, spying, sabotage and use of

children as decoys, couriers or at military checkpoints.18

The word “recruiting” was replaced with “conscripting or

enlisting” to meet concerns of the United States,19 implying a

narrower scope of activity, namely the administrative act of

putting the names of the person on a list, in order to exclude

recruitment campaigns targeting young people. Furthermore,

with regard to war crimes in international armed conflict, “into

armed forces” was amended to “into the national armed forces”, to meet

concerns of several Arab States, which did not wish to see

young Palestinians joining the Intifada as falling within the

provision.

Lubanga case in ICC:

The first person in the history of the ICC that has been

formally charged by the Prosecutor

of the Court is Thomas Lubanga Dyilo, a former leader of the

militia group at war in the

18 PrepCom Draft Statute, at 21, cited in Hebel, H. v. and D. Robinson (1999).

Crimes within the Jurisdiction of the Court. The International Criminal Court.

The Making of the Rome Statute, Issues, Negotiations, Results. R. Lee, Kluwer

Law International.19 ibid

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Democratic Republic of Congo. As the charges against him have

already been confirmed,

Lubanga’s case will be not only the first trial before the ICC

but also the first time that an

individual has been brought before an international court on

account of war crimes solely

on the basis of enlisting and conscripting children under the

age of fifteen and using them

to participate actively in hostilities.20

Thomas Lubanga Dyilo is the President of the Union des

Patriotes Congolais and was Commander-in-Chief of its military

wing, the Forces Patriotiques pour la Liberation du Congo

( FPLC). It was established that FPLC commanders

systematically abducted boys and girls and forcibly

incorporated them into the ranks of the FPLC. It was alleged

that Lubanga played an overall coordinating role in the FPLC

policy to recruit and enlist and conscript child soldiers

systematically, in large number, and that he provided the

organizational, infrastructural and logical framework for its

implementation. On 10 July 2012, Lubanga was sentenced for 14

years by the ICC . The sentencing was a landmark for the first

20 http://www.icc-cpi.int/press/pressreleases, assessed on: 14/04/2007

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permanent international criminal court, which recently

celebrated its 10th anniversary.

Benefit of Lubanga case

That the crimes of conscripting, enlisting and using

child soldier are three separate and distinct crimes.

That the crimes of conscripting and enlisting are

continuous crime.

That the test of determining indirect participation as

active participation.

That the age of children can be proven by circumstantial

evidence.

7.Indian Position dealing with Child soldiers

The issue of child soldiers in India is an emerging topic. There

is a huge controversy in the reports of Indian government and the

statics which are shown by the Non government organization and

witness by the people of the country. According to a report from

the Conflict Study Center child soldiers are used in Assam,

Manipur, Nagaland, Andhra Pradesh, Chhattisgarh, Jharkand,

Karnataka, Maharashtra and Jammu and Kashmir, and those children

were used by both the state and insurgents. Child soldiers also

serve in the Indian armed forces.21 Radha Kumar says that nations21 Aronowitz, Alexis A. (20 March 2009). Human Trafficking, Human Misery: The

Global Trade in Human Beings. Praeger. p. 104. ISBN 978-0275994815.15


which have massive poverty and are heavily reliant on an

agricultural economy will produce militants which are usually

uneducated and that in a region were a conflict is protracted the

use of child soldiers becomes a common occurrence.22

Asian Centre for Human Rights (ACHR) on 9th May 2013 released its

report, “India’s Child Soldiers”, the first ever comprehensive

study on the subject in India, and accused the Government of

India of defending the records of the armed opposition groups,

officially designated as terrorist groups, on the recruitment of

child soldiers before the UN Committee on the Rights of the

Child. India in its first report on the implementation of the

Optional Protocol to the Convention on the Rights of the Child on

the Involvement of Children in Armed Conflict to the UN Committee

in 2011 stated that there is no recruitment of child soldiers

including by the armed groups in India. The first periodic report

of India will come for preliminary examination by the UN

Committee on the Rights of the Child during its 66th pre-

sessional working group to be held in Geneva from 7-11 October

2013 while NGOs are had submitted their reports by 1 July 2013.

ACHR submitted its report on 9th May 2013 to the UN CRC

Committee.

22 Kumar, Radha (19 January 2012). Julian Lindley-French, Yves Boye, ed. The

Oxford Handbook of War. Oxford University Press. p. 610. ISBN 978-0199562930.16


“The recruitment of child soldiers by the armed groups

including the Naxalites is rampant and at least 3,000 children

i.e. 500 in the North East and Jammu and Kashmir and about

2,500 in the Naxal affected States currently remain involved

in armed conflicts. This estimate of child soldiers is

conservative considering that the Maoists follow the policy of

forcibly recruiting at least one cadre from each Adivasi

family. ”- stated by Mr Suhas Chakma, Director of Asian Centre

for Human Rights.23

The Government of India, however, in its first report of 2011

stated that there is no recruitment of child soldiers by the

armed groups as “India does not face either international or

non-international armed conflict situations”.

23 http://www.achrweb.org/press/2013/IND19-2013.html17


8.Conclusion

There is a vast gap between local and international notions of

justice. International human rights law increasingly defines all

persons under age eighteen as vulnerable children in need of

protection. State has to take measure to overcome the issue of

child soldiers in their respective countries. National

international cooperation is the only measure by which there will

be protection to child combatants. There is significant

development in international law for the issue of child soldiers

but all remain in papers. Therefore, implementation, reporting

and monitoring of existing laws protecting child soldiers need to

be strengthened and must be practical while implementation. When

there will be strong network of between national and

international level then there could be eradication of child

soldier’s problem. 18


The international criminal law provide blanket to immunity from

criminal process to the person under age of 18 years. Rome

statute excludes its jurisdiction for the person under the age of

18 is not correct not notion according to me. Age should not be

absolute bar to the legal accountability. Making child soldiers

accountable for criminal acts should take into account local

ideas of justice, and should involve degrees of culpability and

punishment that are lower than those for adults.24 They should be

put in juveniles’ trial and should be rehabilitated.

9.Bibliography

Conventions and United Nations Documents

Convention on the Rights of the Child, Nov. 20, 1989, 1577

U.N.T.S.3.24 Christopher L. Dore, Questions of International Law, Juvenile Justice and Moral

Culpability, 41 J. MARSHALL L. REV. 1281,19


Machel, Promotion and Protection of the Rights of Children:

Impact of Armed Conflict on Children, 51st Sess., Agenda

Item 108, U.N. Doc. A/51/306 (1996)

Protocol Additional to the Geneva Convention of 12 August

1949 and relating to the Protection of Victims of

International armed Conflicts, June 8, 1997, 1125 U.N.T.S.

17512.

Protocol Additional to the Geneva Conventions of 12 August

1949 and Relating to the Protection of Victims of Non -

International Armed Conflicts, 1125 U.N.T.S. 609

Rome Statute of the International Criminal Court, July 17,

1998, U.N. Doc. A/CONF.183/9, at 8,9, 17, 37 I.L.M. 999

International Labor Organization Worst Forms of Child Labor

Convention 182, S. Treaty Doc.No. 106-S (1999), 38 I.L.M.

1207.

Optional Protocol to the Convention on the Rights of the

Child on the Involvement of Children in Armed Conflict, GA

Res. 54/263, Annex I (May 25, 2000), S. TREATY DOC. NO. 106-

37(2000).

Report of the Secretary General on Children and Armed

Conflict, U.N. SCOR, 57th Sess., U.N.Doc. S/2002/1299

(2002).

Journals and Books

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David M. Rosen, Who is child soldiers? The Legal Conundrum

of child soldiers.

Colleen C. Maher, The Protection of Children in Armed

Conflict: A Human Rights Analysis of the Protection Afforded

to Children in Warfare, B.C. Third World L.J. 297, 301

(1989)

Ann Davison, Child Soldiers: No Longer a Minor Issue, 12

Willamette J. Int’l L. Disp. Resol.124, 138 (2004).

Michael J. Denise, Newly Adopted Protocols to the Convention

on the Rights of the Child, 94 Am, J. Int’l L. 789, 791

(2000).

Ilene Cohn & Guy S. Goodwin-Gill, Child Soldiers: The Role

of Children in Armed Conflict, 23(1993).

Web Pages

www.icrc.org/eng/war-and-law/protected-persons/children/

index.jsp

www.child-soldiers.org/international_standards.php

www.sju.ca/sites/default/files/Library/.../

Khan_headley_essay.pdf

www.hanselawreview.org/pdf5/Vol3No1Art06.pd

http://www.un.org/special-rep/children-armedconflict/

English/SexualViolence.html

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http://www.un.org/special-rep/children-armedconflict/English/SexualViolence.html

http://www.un.org/special-rep/children-armedconflict/English/SexualViolence.html

http://www.hanselawreview.org/pdf5/Vol3No1Art06.pd

http://www.sju.ca/sites/default/files/Library/.../Khan_headley_essay.pdf

http://www.sju.ca/sites/default/files/Library/.../Khan_headley_essay.pdf

http://www.icrc.org/eng/war-and-law/protected-persons/children/index.jsp

http://www.icrc.org/eng/war-and-law/protected-persons/children/index.jsp

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