1

Child Soldiers in India—A Case of Continuing Indifference

Ananya Chakraborty*

Abstract

A child is always in need of more security in times of peace and conflict as they are considered vulnerable

because of their physiological conditions. However in times of armed conflict their vulnerability

increases by manifold as, they are not only made victims of several war crimes but also made the

perpetrators of the same. Child rights have been garnering more support after the Second World War,

through the continuous efforts made by the International Organizations. It is in this light the article would

in the first stage elaborate on the international law on child rights, specifically focussing on the

protections given to children as used in armed conflicts, ranging from the discipline of human rights to

International humanitarian law. The paper would give an overview of the tasks of international forums

with respect to child soldiers. Thereafter, the author would be critically studying the legal provisions in

India, which give us a better understanding of the state of child soldiers in India. Lastly, the paper would

be summing up the difficulties faced by children used as soldiers in India and the possible remedies.

Keywords: child soldier, international criminal court, international humanitarian law.

I. INTRODUCTION:

At the very outset, it is important to understand that a “child” is nothing but a natural

person in the eyes of law, universally, and their rights and liabilities are determined by several

laws to the extent. As far as legal theory is concerned, a person is any being whom the law

regards as capable of rights and duties.1 Children actually defy the conventional view of rights as

implying fully rational, autonomous individuals who can exercise free choice and require

freedom from governmental interference. Lacking fully developed rational capabilities, children

are dependent “incompetents” by definition.2 Therefore, the term “child” necessarily implies a

relationship. Their very dependence and capacity for growth call for a positive right to protection

and to the means necessary for their development. It is interesting to see that Thomas Hobbes,

believed children to be “in most absolute subjection” to the parent as the servant is to the

master.3 English thinker John Locke insisted that children are potentially free and rational

beings.4 He believed that a child’s mind is like a clean slate and all are innately equipped to

become persons capable of freely following their own reason's pronouncements, that is, to

become autonomous beings.5 Whereas Jean-Jacques Rousseau, while discussing his ideas on

education, mentions that a child possesses natural goodness, which his scheme of education aims

*Assistant Professor, KIIT University, School of Law.[e-mail: ananyachakraborty@kls.ac.in]

1 John W. Salmond, Jurisprudence 272 (Stevens and Haynes, London, 4

th edn., 1913).

2 Tamar Ezer, “A Positive Right to Protection for Children”, 7 Yale Human Rights and Development Law Journal

1(2004). 3 Peter King, in The Philosopher’s Child (University of Rochester Press 1998), 65–83

4 Locke, John, Two Treatises of Government (Peter Laslett. Cambridge, UK: Cambridge University Press,2

nd edn,

1960 [1690]). 5 Ibid

2

to preserve and develop further.6 Following Rousseau, Immanuel Kant also supports ‘negative

learning’ in the early stages of childhood, while saying firmly that a child must be educated

under the dominance of the idea of humanity.7 John Stuart Mill excluded children from his

conception of liberty which led children not to have a negative claim to liberty but conferring

them a positive claim for protection. John Stuart Mill excluded children from his conception of

liberty which led children not to have a negative claim to liberty but conferring them a positive

claim for protection.8 Therefore, most of the philosophical writings view a “child” as a person

who is primarily a dependant and the society has a positive duty to nurture the child into

becoming a responsible member of the society. However, such objective of the philosophical

writings has suffered very grave setbacks with the kind of atrocities meted on them by the

society itself. In the 10th Report of the Special Representative of the Secretary-General for

Children and Armed Conflict distributed in August 2007, the Office of the Special

Representative urged the end of impunity for the following six categories of “grave” crimes

against children in situations of armed conflict: the killing and maiming of children; their

recruitment and use as child soldiers; rape and other grave sexual violence; abduction of

children; attacks against schools or hospitals; and denial of humanitarian access to assist

children.9 Perhaps the only silver-lining has been the continuous efforts on behalf of the nations

to address these issues by an international legal framework10

.

II. “CHILD” UNDER INTERNATIONAL LEGAL INSTRUMENTS:

Post First World War, there has been only half hearted efforts to address the concerns of

children which were only limited to identifying certain principles in the form of soft law11

concentrating on the social and economic entitlements of children, and put the responsibility on

both the governments and the voluntary organizations. Both the International Covenant on Civil

and Political Rights [1966] and International Covenant on Economic, Social, and Cultural Rights

[1966] contain provisions which apply specifically to the “child”, “children”, “young persons” or

“juvenile persons”. The most popular definition of child has been incorporated in The

6 Bertram, Christopher, “Jean Jacques Rousseau”, The Stanford Encyclopedia of Philosophy (Winter 2012 Edition),

Edward N. Zalta (ed.). 7Edward Franklin Buchner (Ed.), The Educational Theory Of Immanuel Kant, ( Philadelphia & London J. B.

LippincottCompany,U.S.A,1904).Availableat:http://archive.org/stream/cu31924032702981/cu31924032702981_djv

u.txt (Visited on January 17, 2014). 8 John Gray and G.W. Smith (eds.),J.S. Mill On Liberty In Focus 31 (Routledge, London, 2003); see Dotun

Ogunkoya, “John Stuart Mill’s “Harm Principle” As The Foundation For Healthy Social Relations”, 4 JISR 523

(2011) 9 Special Representative of the Secretary-General for Children and Armed Conflict, Children and Armed Conflict,

Para.36,U.N.DocA/62/228(Aug.13,2007) 10

Convention on the Rights of the Child November 20, 1989, 1577 U.N.T.S 3; Optional Protocol to the Convention

on the Rights of the Child on the Involvement of Children in Armed Conflict May 25, 2000. ; Worst Forms of Child

Labour Convention, C182 June 17, 199. 11

Geneva Declaration of the Rights of the Child, Adopted 26 September, 1924, League of Nations. See www.un-

documents.net; Declaration of the Rights of the Child 1959, UN General Assembly Resolution 1386 (XIV) of 20

November 1959, Text: UN Document A/4354 (1959).

3

Convention on Rights of Child, 1989, under Article 1, which defines “child” in the following

words:

“For the purposes of the present Convention, a child means every human being below the age of 18 years unless

under the law applicable to the child, majority is attained earlier.”

The CRC’s drafters decided to define who is to be considered a “child” for the purposes of the

CRC in article 1 and to set the upper age limit at 18 years. According to Alston, they did so in

order to maximize the protection offered by the CRC and to ensure that the rights set forth

therein would uniformly apply to as large an age group as possible.12

According to Alston, the

use of the term “child” and “human being” in Article 1 without explicitly addressing the question

of a lower age limit – was clearly intended to maintain maximum flexibility so as to enable

potential signatures to the CRC to adopt whatever position they wished, for the purposes of their

own domestic law.13

Some delegates were of the view that the age of eighteen years was quite

late considering the national legislation of some countries.14

However, it is desirable that Article 1 of the CRC should not be interpreted as allowing

State parties to establish ages that are incompatible with the provisions, aims and objectives of

the CRC, including the principle of the best interests of the child embodied in its Article 3. The

Human Rights Committee has clearly confirmed that a State must comply with the obligations in

the International Covenant on Civil and Political Rights (ICCPR) relating to persons under 18

years old, even if majority is reached earlier under domestic law.15

Persons under 18 continue to

benefit from the protection provided by the Convention on the Rights of the Child regardless of

whether they have attained majority under national law. In the year 1985 the United Nations

adopted the Standard Minimum Rules for the Administration of Juvenile Justice16

, better known

as ‘The Beijing Rules’. Rule 2 is titled as ‘Scope of the Rules and Definitions Used’. Rule 2.2

(a) of the Beijing Rules lays down as follows:

“(a) A juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence

in a manner which is different from an adult”

Therefore we see that the rules does not contain any clear definition of the terms like

“juvenile”, “child”, “young person” or “adult”. It gives enough scope to the legal systems of

different countries to define these terms according to their own will.

The definition of “child” has become more important in relation to labour laws. The ILO

C138 is a document revising the earlier conventions on minimum age17

in particular sectors.

12

Sharon Detrick, A Commentary on the United Nations Convention on the Rights of the Child, (Martinus Nijhoff

Publishers, Netherlands, 1999), pp.54. 13

Geneva Declaration of the Rights of the Child, Adopted 26 September, 1924, League of Nations. See www.un-

documents.net at p.3. 14

See UN Doc.E/CN.4/L.1549, para 32 (1980). 15

Human Rights Committee, General Comment 17, Article 24 (Thirty-fifth session, 1989), Compilation of General

Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1

at 23 (1994). 16

United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules"):

resolution / adopted by the General Assembly. , 29 November 1985, A/RES/40/33 17

Minimum Age (Industry) Convention, 1919, the Minimum Age (Sea) Convention, 1920, the Minimum Age

(Agriculture) Convention, 1921, the Minimum Age (Trimmers and Stokers) Convention, 1921, the Minimum Age

(Non-Industrial Employment) Convention, 1932, the Minimum Age (Sea) Convention (Revised), 1936, the

4

Article 2 of ILO C18218

defines the term “child” for the purpose of this convention in the

following words:

“For the purposes of this Convention, the term child shall apply to all persons under the age of 18.”

The convention also gains importance for this research, because under Article 3, it has

specifically mentioned “forced or compulsory recruitment of children for use in armed conflict”,

as an example of worst forms of child labour.

A. INTERNATIONAL HUMANITARIAN LAW:

International Human Rights law and International Humanitarian Law keep overlapping in

many areas, like the present one19

. Over 250,000 children under 18 are involved in some 36

ongoing armed conflicts worldwide.20

War violates every right of a child - the right to life, the

right to be with family and community, the right to health, the right to the development of the

personality and the right to be nurtured and protected.21

International law principles which directly regulate the issue of Child Soldiers, age is a

relevant determining factor. For example, Article 38 of CRC22

. While the use of an objective

criterion such as age is relatively simple for definitional purposes, it does not take account of

cultural values that will be determinative, in specific societies, as to whether the person has

achieved adulthood.23

The four Geneva Conventions of 194924

and their two Additional Protocols25

have many

provisions on children, which are mainly protective in nature. The word “children” is not

Minimum Age (Industry) Convention (Revised), 1937, the Minimum Age (Non-Industrial Employment) Convention

(Revised), 1937, the Minimum Age (Fishermen) Convention, 1959, and the Minimum Age (Underground Work)

Convention, 1965. 18

International Labour Organization (ILO), Worst Forms of Child Labour Convention, C182, 17 June 1999, C182,

(entered into force 19 November 2000) available at: http://www.refworld.org/docid/3ddb6e0c4.html. 19

The Interplay Between International Humanitarian Law And International Human Rights Law In Situations Of

Armed Conflict Cordula Droege, Isr. L. Rev. Vol. 40 No.2, 2007. 20

See http://www.unicef.org/emerg/files/childsoldiers.pdf; http://www.warchild.org.uk/issues/child-soldiers 21

Promotion and Protection of the Rights of Children --- Impact of armed conflict on children Report by Secretary-

General, A/51/306, 26 August 1996, paragraph 30. Available at

[ http://www.un.org/documents/ga/docs/51/plenary/a51-306.htm] 22

Art 38... (2) States Parties shall 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) States Parties shall refrain from recruiting any person who has not attained the age of fifteen years 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, States Parties shall endeavour to give priority to those who are oldest. 23

Steven Freeland, “Mere Children or Weapons of War — Child Soldiers and International Law”, University of La

Verne Law Review, vol.29 (2008), at p.28. 24

First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the

Field (12 August 1949); Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and

Shipwrecked Members of Armed Forces at Sea (12 August 1949); Third Geneva Convention relative to the

Treatment of Prisoners of War (12 August 1949); Fourth Geneva Convention relative to the Protection of Civilian

Persons in Time of War (12 August 1949). 25

Additional Protocol I to the Geneva Conventions Relating to the Protection of Victims of International Armed

Conflicts (8 June 1977); and Additional Protocol II to the Geneva Conventions Relating to Victims of Non

International Armed Conflicts (8 June 1977).

5

clarified in any way, and this omission is intentional.26

The Geneva conventions regime has

fixed, broadly speaking, two age limits i.e. below 15 years and below 18 years. The general

principle of International Humanitarian Law specifically relating to the protection of children

during an armed conflict was introduced in the Additional Protocols in 1977, stating that at a

bare minimum: “Children shall be provided with the care and aid they require”27

and “Children

shall be the object of special respect”.28

In addition to these general principles, they contain a

number of provisions specifically relating to the treatment of children during an armed conflict,

like education, the evacuation of children, identification, family reunification and care of

unaccompanied children, detained children, free passage of food and clothing consignments

intended for children, safety zones for children, participation in hostilities and a ban on

recruitment under the age of 15. These provisions are echoed and complemented by the CRC,

which, like the Geneva Conventions, contains specific provisions that seek to enhance children’s

protection in times of war.29

Article 77, Additional Protocol I, imposes an obligation on the states to prevent children

under the age of fifteen from taking a direct part in international armed conflict, specifically in

recruitment efforts. The word “recruitment” covers both compulsory and voluntary enrolment,

which means that the Parties must also refrain from enrolling children under fifteen years of age

who volunteer to join the armed forces.30

The text refers to taking a direct part in hostilities.31

The intention of the drafters of the article was clearly to keep children under fifteen outside

armed conflict, and consequently they should not be required to perform such services, i.e. even

indirect services; if it does happen that children under fifteen spontaneously or on request

perform such acts, precautions should at least be taken; for example, in the case of capture by the

enemy, they should not be considered as spies, saboteurs or illegal combatants and treated as

such.32

Article 77, Paragraph 3 of 1977 Additional Protocol I, intends to cover the case where,

despite the prohibitions contained in the first two paragraphs, “under fifteens” were to participate

in hostilities. Even when they are prisoners of war, “under fifteens” will continue to have the

benefit of the provisions of this Article, particularly paragraphs 1, 4 and 5. Finally, if he does not

have the right to prisoner of war treatment, and he is not a protected person either, he is entitled,

according to Article 45 (Protection of persons who have taken part in hostilities), paragraph 3, to

26

Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (editors): Commentary on the, Additional Protocols of 8

June 1977 to the Geneva Conventions 12 August 1949 (Geneva, ICRC, 1987)), p. 899, paragraph 3179. 27

Additional Protocol II, Article 4(3). 28

Additional Protocol I, Article 77. 29

Article 38 of the CRC. 30

Dutli Maria Teresa, ‘Captured child combatants’, in IRRC, No.278, September-October 1990, pp. 421-434. Available at http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/section_review_1994_and_before?OpenDocument 31

Art. 43, Para. 2, attributes the right to participate directly in hostilities to members of the armed forces and to them

all alone. 32

Supra note 26, at p.901, paragraph 3187.

6

the protection of Article 75 (Fundamental guarantees),which is referred to in paragraph 4 of

Article 77.33

Protocol II, which applies to non-international armed conflicts, also contains an explicit

protection for children in article 4(3). Protocol II prohibits children under the age of fifteen from

both direct and indirect participation in non-international armed conflicts. In relation to conflicts

not of an international nature, article 4 of 1977 Additional Protocol II provides inter alia that “(C)

[C]hildren 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.”34

This prohibition is an absolute one covering direct or indirect participation in hostilities, i.e. by

gathering information, transmitting orders, transporting munitions or foodstuffs or committing

acts of sabotage. The obligation imposed on States party here is stricter than that applicable in

situations of international armed conflict. The text refers to “children who have not attained the

age of fifteen years”, which suggests that there may be children over fifteen years.35

This age

was chosen as a realistic basis, because the Convention had already taken it into account to

ensure that children should have the benefit of priority measures.36

The two additional Protocols

significantly added to the codified IHL in this area, by importing a large number of protections

available in international armed conflicts to non-international armed conflicts and by extending

the definition of international armed conflict to include wars of liberation and self-determination.

Apart from the legal provisions being in place, the enforcement of the same has been

difficult. Protocol II was meant to define and supplement Common Article 3. Article 1 of

Protocol II comprises the foundation of the protocol as it lays down the scope of its application.

Moreover Protocol II only applies to situations of conflicts between armed non-state actors and

the established government and not between two or more armed non-state actors, resulting in a

scope of application that is much narrower than that of common article 3.37

However, both Protocol II and common Article 3 were meant to apply automatically once

there is a de facto situation of armed conflict, based on humanitarian requirements, for the

implementation of rules for the protection of victims should not be dependent on the subjective

judgment of the parties.38

As to how far the non-State actors would be willing to abide by the

Protocol has been an issue which the commentary resolves theoretically by saying that the

commitment made by a State not only applies to the government but also to any established

authorities and private individuals within the national territory of that State and certain

obligations are therefore imposed upon them. The extent of rights and duties of private

individuals is therefore the same as that of the rights and duties of the State39

. However the fact

33

Ibid, para. 3195, p. 902. 34

Protocol II art. 4 (c). 35

Supra note 26, at p.1377, para4549. 36

See Arts. 14, 23, 24, 38 and 50 of the Fourth Convention. 37

Supra note 26, at pg 1352, para 4461. 38

Commentary - Part I : Scope of this protocol (para 4438, pg

1343)http://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?viewComments=LookUpCOMART&documentId=A6A2

28230D532501C12563CD00439E08&action=openDocument 39

Ibid, para 4444.

7

remains that the absence of such clarity leaves us with the option of putting the Protocol into

force by special agreement, as provided by common Article 340

. One of the path-breaking

provisions41

which allow the non-state actors to undertake the Conventions and the protocol by

means of unilateral declaration was adopted in Committee without being examined by the

Working Group42

, but it has been put into use occasionally43

.

B. INTERNATIONAL HUMAN RIGHTS LAW:

The Convention on the Rights of the Child (CRC) includes a provision on the child soldier,

namely Article 38.

During the negotiations, the minimum age limit was contentious; the U.S., the U.K., and

France made vociferous objections to establishing eighteen as a minimum age as they recruit

volunteers under the age of eighteen.44

The “straight 18”45

position could not be adopted as it

faced a serious challenge from countries like the US. However in their study of the role of

children in armed conflict, Cohn and Goodwill Gill asserted that, as the bulk of IHL pertaining to

children presupposes protection up to the age of 18, this should be the context in which the rights

set out in articles 77 (2) of Protocol I, 4 (3) (c) of Protocol II and 38 of the CRC are interpreted.46

Article 38(1) is said to apply a “double standard” because it makes the requirements applicable

to the conduct of states parties and to the conduct of others. Crucial to the success of the CRC

will be pressuring opposition and rebel groups to respect the provisions concerning the child

soldier. The main problem in enforcement, however, is that the enforcement mechanisms of the

Convention on the Rights of the Child are incredibly weak.47

By the year 2000, international campaigning by NGOs, led to the adoption of the Optional

Protocol which significantly strengthened legal norms regarding the use of child soldiers.48

The

terms of the Protocol rise the minimum age to eighteen for non-government armed forces [Art.

4(1)], but it falls short of the standards set by some of the previous instruments like the 1999 ILO

Convention and the African Charter—in relation to recruitment into State armed forces. Article 1

doesn’t create any distinction between direct or indirect participation. The Protocol obligates the

40

Supra note 26, at pg 1353, para 4462. 41

Art 96 of AP I 42

Supra note 26, at Pg 1084, para 3744. 43

See “NDFP Declaration of Adherence to International Humanitarian Law”, 15 August 1991, available at

http://theirwords.org/media/transfer/doc/ph_ndfp_1991_19-f33015876ed5c0c837380aa1fff083b7.pdf; Liberation

Tigers of Tamil Eelam (LTTE) Letter from Vellupillai Prabhakaran, Leader, Liberation Tigers of Tamil Eelam, to

Members and Observers, United Nations Commission on Human Rights, Forty-fourth session, 24 February 1988. 44

See David Weissbrodt, J Fitzpatrick. J, Newman, International Human Rights- Law, Policy and Process,

(Anderson Publishing Co, Ohio, 2001), pp. 38-82. 45

See Ann Sheppard, “Child Soldiers: is the Optional Protocol Evidence of an Emerging ‘Straight -18’ Consensus”,

The Journal of Children’s Rights, vol. 8, (2001), pp.33-70. 46

Cohn and G.S. Goodwill Gill, Child Soldiers: The Role of Children in Armed Conflict (London: Oxford

University Press, 1994), p.38. 47

Kathy Vandergrift, “Challenges in Implementing and Enforcing Children's Rights”, Cornell International Law

Journal, vol. 37 (2004), p. 551. 48

Optional Protocol I came into force on 12 February 2002 and Optional Protocol II came into force on 18 January

2002.

8

States to take safeguards in cases of voluntary recruitment of children, especially when the child

is under eighteen years [Article 3]. Rebel or other non-governmental armed groups are forbidden

from recruiting persons under the age of eighteen years or using them in hostilities under any

circumstances and the governments are required to take all feasible measures to prevent such

recruitment and use of children by criminalization of such practices [Article 4].

The term “feasible” in Article 1 has been defined under another international

humanitarian law instrument as “practicable or practically possible taking into account all

circumstances ruling at the time, including humanitarian and military considerations.”49

This

text is weaker than the corresponding clause in Additional Protocol II, which precludes any

participation by simply stipulating that children shall not be allowed to “take part in

hostilities”.50

The standards set, in the Optional Protocol are not somewhat in tune with the

conditions which actually prevail in conflict torn countries, especially in economically backward

countries where severely divided communities are involved in armed conflict.

C. INTERNATIONAL FORUMS – THEIR CONTRIBUTION:

The General Assembly has played an important role in bringing the treaties in place after the

groundbreaking report of Graça Machel in 1996 as well as the establishment of the mandate of

the Special Representative for Children and Armed Conflict in 1997. The Security Council

Working Group on Children and Armed Conflict reviews reports on children in armed conflict in

specific country-situations, followed by the Working Group making recommendations to parties

to conflict, Governments and donors, as well as United Nations actors on measures to promote

the protection of war-affected children.51

It often follows its recommendations with field trips,

holding emergency meetings to bringing sanctions by way of arms embargoes, asset freezes, and

travel bans; which can also lead to legal processes being used against culprits52

. The sanctions

committee have sanctioned two individuals in Côte d’Ivoire and 14 individuals in the

Democratic Republic of the Congo for grave violations committed against children.

The recently completed trials of Thomas Lubanga by the ICC53

and Charles Ghankay Taylor

by independent special court54

, have proved the seriousness of the international community to

punish individuals for committing the crime of conscripting or enlisting children under the age of

49

Protocol to the 1980 Conventional Weapons Convention Concerning the Use of Mines, Booby-Traps and Other

Devices art. 3(4), 35 I.L.M. 1206 (1996). 50

Optional Protocol, art. 2: States Parties shall ensure that persons who have not attained the age of 18 years are not

compulsorily recruited into their armed forces. 51

Children and armed conflict , available at :http://childrenandarmedconflict.un.org/our-work/role-of-the-security-

council-working-group/(Visited on March 15, 2014 ) 52

Democratic Republic of the Congo, the Government brought to trial former Mai-Mai Commander Kyungu

Mutanga for war crimes and crimes against humanity, including the recruitment of 300 children in Katanga Province

from 2003 to 2006. Similarly the Forces Armées de la République Démocratique du Congo [FARDC] formally

stopped recruiting children in 2004. 53

Situation In The Democratic Republic Of The Congo In The Case Of The Prosecutor V .Thomas Lubanga Dyilo

No.: ICC-01/04-01/06 Date: 14 March 2012 54

Prosecutor vs. Charles Ghankay Taylor case no SCSL-03-01-A, Date 26th

September 2013.[ http://www.sc-

sl.org/LinkClick.aspx?fileticket=t14fjFP4jJ8%3d&tabid=107]

9

fifteen years into the national armed forces or using them to participate actively in hostilities55

. In

the Lubanga decision we see that the court has considered the jurisprudence of SCSL, as the

wording of the provision criminalising the conscription, enlistment and use of children under the

age of 15 within the Statute of the SCSL56

is identical to Article 8(e) (vii)57

of the Rome Statute.

The principle objective to protect children under the age of 15 is to secure their physical and

psychological well-being which includes not only protection from violence and fatal or non-fatal

injuries during fighting, but also the potentially serious trauma that can accompany recruitment

(including separating children from their families, interrupting or disrupting their schooling and

exposing them to an environment of violence and fear)58. The Chamber agreed with the experts that

the terms “conscription”59

and “enlistment60

” are both forms of recruitment, whether coercively

(conscription) or voluntarily (enlistment). The Rome Statute doesn’t require the purpose behind

conscription and enlistment to be with the purpose of using them in hostilities. In such

circumstances, the chamber relying on the legal and mental incapacity of giving consent by a

child below fifteen years of age, have not accepted as defense to enlistment. Such interpretation

has been further supported by the SCSL’s Trial Chamber in the case of the Prosecutor v. Fofana

and Kondewa61

. Therefore both conscripting and enrollment are considered as continuing

offences until the child reaches the age of fifteen years or leaves the force or group. While

interpreting the phrase ‘using them to participate actively in hostilities’ in Art 8(2)(e)(vvi), the

chamber left it to be considered on case to case basis, as multiple situations62

might arise where it

can be thought to be active participation in hostilities. In the said case63

the children were found

to be sent to the training camps and on completion either being engaged in active participation in

battles or used as military guards or as bodyguards and escorts of commanders and other high-

ranking officials.

55

ICC St article 8 (2) (b) (xxvi); Art 8 (2) (e) (vii); also see Article 4 of Statute of the Special Court For Sierra

Leone 56

Article 4(c) of the SCSL Statute 57

Article 8 (e) (vii)Conscripting or enlisting children under the age of fifteen years into armed forces or groups or

using them to participate actively in hostilities 58

Para 605 of Situation In The Democratic Republic of the Congo in the Case of The Prosecutor V .Thomas

Lubanga Dyilo No.: ICC-01/04-01/06 Date: 14 March 2012 59

“conscripting” is defined as “to enlist compulsorily” See also Knut Dörmann, Elements of War Crimes under the

Rome Statute of the International Criminal Court, Sources and Commentary (2003), page 377, and Otto Triffterer

(ed.), Commentary on the Rome Statute of the International Criminal Court : Observer’s Notes (2008), page 472 at

marginal note 231. 60

“enlisting” is defined as “to enroll on the list of a military body” See also Knut Dörmann, Elements of War

Crimes under the Rome Statute of the International Criminal Court, Sources and Commentary (2003), page 377, and

Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes

(2008), page 472 at marginal note 231. 61

SCSL, CDF Trial Judgment, para. 192. 62

See UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Report

of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute for the International

Criminal Court, U.N. Doc. A/CONF.183/2/Add.1, 14 April 1998, page 18 and footnote 19.; see also SCSL, AFRC Trial

Judgment, para. 736. 63

Supra note 58.

10

In the year 2004 the Special Court for Sierra Leone, in the case of Prosecutor v. Sam Hinga

Norman64

, the court had convicted Norman for recruiting children as soldiers. It is interesting to

see that the special court had quite courageously upheld that the prohibition on child recruitment

had crystallised as customary international law prior to November 1996, as the formation of

custom requires both state practice and a sense of pre-existing obligation (opinio iuris). It has

also treated the IHL provisions very seriously and held that a breach of a rule protecting

important values65

was a “serious violation” entailing criminal responsibility, based on the

decisions given under International Criminal Tribunal for Yugoslavia66

and Rwanda67

respectively.

III.CHILD SOLDIERS – A CONTINUING REALITY IN INDIA

India has been since many decades subject to attacks, which have primarily targeted the

government forces as well as the civilians. To this effect the government of India also have

separate legal68

and other mechanisms69

to meet the present challenges as posed to the people

affected by the conflicts. The threat of children being used as soldiers endangering their lives is

more prevalent in the ‘Disturbed Areas’70

. The United Nations in its report on children and

armed conflict71

has brought forward the challenges faced by children in modern conflicts.

Recruitment and use of children by Maoist armed groups in Bihar, Chhattisgarh, Jharkhand,

Maharashtra and Odisha has been widely reported during the reporting period. These children are

known as Bal Sanghatans, in the age group of 6 to 12 years, who are made to perform tasks like

fighting with crude weapons such as sticks or acting as informants, handling weapons and

improvised explosive devices.72

Local human rights organisations, including the National

Commission for Women, have expressed concern about the employment of child soldiers in

Chhattisgarh by the State and the Naxalites. The Salwa Judum73

campaign emerged in

Chhattisgarh in 2005, its leaders claiming that it was a spontaneous and voluntary movement

against violence perpetrated by Maoists. Thus, a decision was taken to recruit Special Police

64

43 ILM 1129 (2004), pp. 1129-1165. 65

See Common article 3 of the Four Geneva Conventions, Additional Protocols I and II. 66

See Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory

Appeal on Jurisdiction, 2 October 1995 67

See Prosecutor v Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998. 68

The Armed Forces (Special Powers) Act, 1958 (Act 28 Of 1959); The Unlawful Activities (Prevention) Act,

1967; National Investigation Agency Act, 2008 [No. 34 of 2008]; The SAARC Convention (Suppression of

Terrorism) Act, 1993 (36 of 1993); The Armed Forces (Jammu And Kashmir) Special Powers Act, 1990 (No. 21 of

1990); Jammu And Kashmir Disturbed Areas Act, 1992 [Act No. 4 Of 1992] 69

North East Division (http://mha.nic.in/northeast_new); Naxal Management Division (http://mha.nic.in/naxal_new) 70

Sec 2(b) Of Armed Forces (Special Powers) Act, 1958 (Act 28 Of 1959); Arunachal Pradesh, Assam, Manipur,

Meghalaya, Mizoram, Nagaland And Tripura; See Jammu And Kashmir Disturbed Areas Act, 1992 [Act No. 4 Of

1992] 71

Children and armed conflict-- Report of the Secretary-General A/67/845*–S/2013/245*[ http://daccess-dds-

ny.un.org/doc/UNDOC/GEN/N13/311/67/PDF/N1331167.pdf?OpenElement] 72

Ibid 73

The real meaning of “Salwa Judum”, a language of Gondi Adivasis, is shrouded in controversy. The supporters of

this campaign translate its meaning as “peace campaign”. The Naxalites on their part stated that Salwa means

“group” and Judum means “hunting”; and therefore, they say, Salwa Judum is a group hunting of the innocent

Adivasis supporting the “people’s movement”, the movement of the Naxalites.

11

Officers (SPO) under Section 17 of the Indian Police Act, 1861 and Section 9 of the Chhattisgarh

Police Act, 2007.74

Special police officers (SPOs) were recruited from among Salwa Judum

members to join village defence forces and provided with arms and training by state police and

security forces, including the Naga Indian Reserve Battalion.75

The total numbers of SPOs

appointed in Chhattisgarh, and approved by the Union of India, were 6500 as of 28-03-201176

and they are considered an integral part of the police force of Chhattisgarh, and they are “under

the same command, control and supervision of the Superintendant of Police as any other police

officer77

. In the absence of any qualifications prescribed in both the statutes “preference were

given to those who have passed fifth standard”, aged over 18 and aware of the local geography

are appointed.78

The new Special Police Officers (Appointment, Training & Conditions of

Service) Regulatory Procedure 2011, failed to inspire any confidence in the Supreme Court that

the situation would become better, the role has been extended from being guides to direct combat

role with terrorists/extremists. The appointments are temporary in nature and can be cancelled

without any reason being furnished. The court had rightly held that such laws were in violation

of Article 14 and 21, as it was using ill-equipped youngsters to carry out duties as done by the

regular police forces.79

Similarly other movements have also been found to be using children as

soldiers.80

The use of children as soldiers by rebel groups and by the government forces is still a

reality.81

According to the Ministry of Home Affairs, Government of India, eighty two, “Selected

Tribal and Backward Districts”, identified for accelerated development, are the ones adversely

affected by Left Wing Extremism.82

In the light of the above mentioned facts, it is just pertinent

74

National Human Rights Commission (Investigation Department) - Chhattisgarh Enquiry Report, p. 4, Para. No,

1.34. Available at http://nhrc.nic.in/Chattisgarh.pdf [last visited on 15.08.2009] 75

People’s Union for Civil Liberties (PUCL), Where the State Makes War on Its Own People: A Report on

Violation of Peoples’ Rights during the Salwa Judum Campaign in Dantewada, Chhattisgarh, April 2006,

www.pucl.org. 76

Nandini Sundar & Ors v. State of Chattisgarh, Writ petition (CIVIL) NO(s). 250 OF 2007,P 23,[

http://www.supremecourtofindia.nic.in/outtoday/wc25007.pdf] 77

Ibid, at p. 24 78

Ibid, at p. 25 79

Ibid, at p. 46-49 80

United Liberation Front of Assam (ULFA) (Manipur) and the People’s Liberation Army (Manipur) openly

recruited children. [People’s Union for Civil Liberties (PUCL), Where the State Makes War on Its Own People: A

Report on Violation of Peoples’ Rights during the Salwa Judum Campaign in Dantewada, Chhattisgarh, April 2006,

www.pucl.org.] 81

500 child soldiers in northeast, J&K: Report [http://articles.timesofindia.indiatimes.com/2013-05-

10/india/39168410_1_child-soldiers-achr-director-suhas-chakma-recruitment]; Three Imphal boys missing, child

soldier recruitment suspected available at : http://articles.timesofindia.indiatimes.com/2012-04-

19/guwahati/31366875_1_recruitment-boys-soldier (Visited on March 15, 2014); The use of Kashmiri children in

armed hostilities is a cowardly act available at :http://articles.timesofindia.indiatimes.com/2012-08-07/edit-

page/33066726_1_kashmiri-children-unsc-resolutions-hostilities (Visited on March 15, 2014); Issue of child

soldiers to be taken up with Centre available at : [http://articles.timesofindia.indiatimes.com/2012-05-

20/guwahati/31787804_1_child-soldiers-child-rights Meghalaya (Visited on : March 15 , 2014 ) 82

MinistryofHomeAffairs,GovernmentofIndia,NaxalManagementDivision s

available at: http://mha.nic.in/uniquepage.asp?Id_Pk=540 (Visited on March 16 , 2014 )

12

enough to assess both the governments and non-state armed groups’ position with reference to

both international and municipal laws.

Section 17 of the Indian Police Act is applicable in three situations like unlawful assembly or

riot or disturbance of the peace has taken place, or may be reasonably apprehended, prima-facie

speaks of situations which are specific issue driven and not because of its intimate linkages to

socio-economic circumstances, endemic inequalities, and a corrupt social and state order that

preys on such inequalities spanning over decades83

. The Indian Penal Code defines riot where

the force or violence is used by an unlawful assembly in prosecution of the common object of

such assembly. The present definition doesn’t differentiate between a temporary issue driven

rioting and a long drawn movement with socio-economic or even secessionist objectives. Such

ambiguity has led to the massive application of Section 17 of the Indian Police Act for years

together. The selection of such personnel’s has also been shrouded in controversy with reports of

children being used in roles where their lives have been endangered84

. Such conflicts have

witnessed active participation both from central and state government85

, but till date the

government has not extended the application of the special laws like Armed Forces (Special

Powers) Act, 1958 in districts/regions affected by Left Wing Extremism, thereby making young

people more vulnerable. At this juncture the author wishes to draw attention to another statute

known as The Delhi Police Act, 197886

. This Act also has provision for appointing SPO’s under

section 17. A comparison of both the Acts would clearly point that the Delhi Police Act is more

in consonance with the principles of fairness and reasonableness. Only persons are eighteen

years or above are considered for the job as SPO. The Commissioner has the legal obligation to

publish the names of the appointed SPO’s. The SPO’s not willing to be so appointed is also

given an opportunity to be heard. Moreover every special police officer appointed under this

section shall, on appointment, receive a certificate of appointment and will be subject to the same

authorities as an ordinary police officer, thereby making them liable for any unauthorised and

unlawful act.

The Commissions for Protection of Child Rights Act, 200587

, nowhere refers to the Optional

Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed

Conflict, 2000, which has been ratified by India on 30th

November 200588

. The only work in that

83

See “Development Challenges in Extremist Affected Areas” Report of an Expert Group to Planning Commission,

Government of India (New Delhi, April, 2008) http://planningcommission.gov.in/reports/publications/rep_dce.pdf 84

Supra note 99. 85

See Protocols for Police and Armed Forces in Contact With Children in Areas of Civil Unrest available at:

http://www.ncpcr.gov.in/Protocols_for_Police_and_Armed_Forces.pdf (Visited on March 16, 2014). 86

The Delhi Police Act, No.34 of 1978. 87

No.4 of 2006 88

See Human Rights, chp .IV, Optional Protocol to the Convention on the Rights of the Child on the involvement of

children in Armed Conflict available at :

https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11-b&chapter=4&lang=en(Visited on

March 15, 2014)

13

front by the Commission has been regarding the rehabilitation policy of such internally displaced

children89

and the reports prepared as ordered by the Supreme Court.

IV. CONCLUSION:

India, has come a long way with regard to laws protecting children and has also made

attempts to keep up with the international commitments. But at the same time it has failed to act

in some very important aspects putting the children in a dangerous situation, where they are still

being used as soldiers, directly or indirectly, putting their mental and physical health in danger. It

is the need of the hour that the government initiates both legislative and conciliatory processes

against such practices, both by State and armed groups.

On the international front, India must ratify the two core conventions of child labour, i.e. ILO

Convention (No.138) Concerning Minimum Age for Admission to Employment, 1973 and

Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst

Form of Child Labour, 1999 (NO. 182). On the other hand, the Child Labour (Prohibition and

Regulation) Act, 1986 must also be amended as proposed90

, by also prohibiting recruitment of

children for use in armed conflict, to ensure maximum protection. Since the ratification of the

second optional protocol of CRC, the government needs to give effect to the provisions, as it

prohibits rebel or other non-governmental armed groups from recruiting persons under the age of

eighteen years or using them in hostilities under any circumstances. India’s non-ratification of

the two additional protocols of Geneva conventions has further encouraged both State and non-

state armed groups to not abide by the prohibition to use children below fifteen years in

hostilities, in armed conflicts between them.

The immediate requirement would be to amend the Indian Police Act, 1861 at least on the

lines of the Delhi Police Act, with respect to the recruitment of special police officers. It must

also further clarify the scope of terms like “riot” and “disturbance of peace”, as it allows the

government to include even conflicts which continue for decades and keep spreading. It would

be more protective for the children in such areas to be protected by the army rather than being

employed as police officers, which also has now been declared to be in violation of Article 14

and 21 of the constitution. By not having taken the steps as mentioned above, the legislature has

shown complete apathy towards the issue of using children as soldiers, which must come to an

end at the earliest.

89

National Commission for Protection of Child Rights, India available at http: //www.ncpcr.gov.in/internally

displaced .htm (Visited on March 15, 2014) 90

The Child Labour (Prohibition And Regulation) Amendment Bill, 2012, Bill No. LXII of 2012