Child Soldiers (combatants)

N Brajakanta *

School students of Ukhrul district denounce the recruitment of children as child soldiers in 2008
Pix - The Sangai Express / Newmai News Network

Introduction: Children participation in armed conflict is not a new thing. Their participation has been reported in most armed conflicts in almost every region of the world. India is no exception to this, as it faces emergence of children as combatants in strife-torn states of Chattisgarh, Jharkhand, Andhra Pradesh, Jammu and Kashmir, Manipur, Nagaland and Assam.

There are various reasons for children to participate in armed conflicts. The main objective of this article is to examine the legality of recruitment of a child as a combatant in the international context. This article is considered relevant in the backdrop of the issue surrounding missing of two students confirmed to be kept in the camps of a valley based armed group.

The most widely accepted definition of a child is given by the Convention on the Rights of the Child (CRC) which defines a child as "any human being below the age of 18 years". The UNICEF and other human rights groups have defined a child soldier as "any person below 18 years of age who has been recruited or used by an armed force or armed group in any capacity". Child soldiers took part as fighters, spies, guards, suicide bombers, couriers etc. They also perform domestic duties such as cooking and cleaning.

Child soldiers and international law: The age at which a child could be a child combatant in an armed conflict has been a contentious issue in international law. Article 38 of the CRC permits the lower age of 15 years as the minimum for recruitment or participation in armed conflicts, with the only requirement that state parties to refrain from recruiting persons below the age of 15 years, and take all feasible measures to ensure that those persons do not directly take part in hostilities.

On the other hand, Optional Protocol to CRC on the involvement of Children in armed conflict (OPAC) adopted by the UN General Assembly on 25 May, 2000, entered into forced on 12 February, 2002 requires that states "take all feasible measures to ensure that members of the armed forces who have not attained the age of 18 years do not take part in the hostilities".

It further stipulates that states must "ensure that all persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces". OPAC also prohibits the recruitment or use in hostilities of under-18s by non-state armed groups. This double standard of OPAC is criticized on the ground that it permits only states to recruit child soldiers and not the rebel groups.

Additional Protocols to the Geneva Conventions of 1949 also set 15 years as the minimum age for recruitment or use in armed conflict, in both international and non-international armed conflicts. Additional Protocol I under article 77(2) requires that state parties to the protocol take all "feasible measures" so that children who have not attained 15 years of age do not play a "direct participation in hostilities".

It also requires that states refrain from recruiting them into their armed forces. The term "direct participation" may be interpreted to mean activities such as firing at enemy or blowing up a bridge, it does not include other activities such as intelligence gathering and supply transportation.

A closure examination of the Additional Protocol I will reveal that it permits guerrilla movement engaging in wars of national liberation movement in the exercise of their right to self determination to recruit and enlist children even below age of 15 years by categorizing war of national liberation movement as international conflicts rather than internal conflict.

Similarly, article 4(3)(c) of the Additional Protocol II, which is applicable to non-international armed conflicts, states that "children who have not attained the age of 15 years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities".

Further, the Rome Statute, 1998, which establishes the International Criminal Court to try persons charged with committing war crimes, crimes against humanity and genocide, recognized the recruiting of child soldiers under age of 15 years as a war crime (articles 8(2)(b)(xxvi) and 8(2)(e)(vii)).

Looking beyond: Children are also major sufferers in any armed conflict. There is growing international concern about the protection of their rights. Although international standard do not prohibit the voluntary recruitment of children below the age of 18 years as combatants by armed forces or groups, it is contrary to best practice.

There is a need to protect children from the risk of involvement in armed conflict worldwide. It is high time that appropriate steps must be taken to facilitate the reunion of these children with their family.