Request a Callback
Armed conflicts can affect children in different ways including exposure to violence or even at times, sexual violence; children can be vulnerable to sexual offences such as rape, sexual slavery, and other heinous conduct during the times of armed conflict. The question that this dissertation explores is whether the provisions of the international humanitarian law (IHL) offer adequate protection to children from recruitment in armed conflict. This would also extend to a critical engagement with and discussion on exposure to violence and ill treatment of children when they are caught in an armed conflict or are combatants in armed conflict. Children in armed conflict are entitled to certain protections under international human rights law in general and IHL in particular.
The term International Humanitarian Law (IHL) did not appear in the Geneva Conventions of 1949 and is considered to be of recent origin although the principles of IHL are not new in origin and have been a part of customary international law. IHL has been defined as follows:
“International humanitarian law constitutes a reaffirmation and development of the traditional international laws of war (jus in bello). Most rules of the law of war now extend even to those armed conflicts that the parties do not regard as wars.”
The above statement makes the important point that IHL is a reaffirmation of the traditional law of war, which means that the principles of traditional laws of war are part of traditional law and have now been recognised in the IHL. The jus in bello or the traditional international laws of war are now also extended to the armed conflicts that are not traditionally defined as war but come within the scope of IHL. What can be surmised at the outset is that IHL is a part of the traditional laws of war and is not a new branch of international law as it also consists of customs and general principles of international law that used to be known as the laws of war. It is also to be noted that all the laws of war are not included in the term IHL and only humanitarian principles are part of the IHL. To clarify it further, IHL contains humanitarian rules regulating the treatment of civilians and military personnel during armed conflicts. The principles of IHL are found in many reputable works from an earlier period, such as the writings of Grotius, who applied a humanitarian perspective in writing about the principles related to war. For instance, Grotius argued that combatants should avoid causing injury to civilians during the war.
IHL is also considered to be the most fragile aspect of international law because principles of humanitarian law at times conflict with state sovereignty, making the implementation of the IHL oftentimes difficult. At the same time, many principles of IHL are derived from customary international law and also from treaties. Because many of the principles of IHL are derived from the customary rules and are still relevant today, these principles may be applicable in cases involving breach of rights of civilians or military personnel during armed conflicts as is demonstrated by the decision of the International Criminal Tribunal for Former Yugoslavia in Galic, in which case the terrorising of civilians during an armed conflict was held to be contrary to the established principles of war.
The principles of IHL were also referred to in the Martens Clause, which was later referred to in the Geneva Conventions of 1949. The principles were also clarified in the Additional Protocols of 1977. These principles (as part of Hague Convention IV) were also recognised by the ICJ where it was noted that Hague Convention IV incorporated principles that have matured into customary law. The Hague Convention IV also included the ‘Martens Clause’ in para 8 to the preamble of the Hague Convention IV:
“Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”
The Martens Clause is significant in the context of the present study because it allows states to balance military considerations with humanitarian considerations and also emphasises on public conscience, which may be a significant point for critically engaging with the issue of child combatants because in the last few decades global public conscience on the issue of child combatants and relating to recruitment of children for armed conflict may have undergone significant changes as reflected in important international law milestones like the Convention on the Rights of Child. The laws of humanity and public conscience were considered play a role in the management of belligerents and civilians even before the principles of the law of war were recognised by treaty. The early development of the Martens Clause and its inclusion in the Hague Convention also reflects on the early movement in international law requiring states to prioritise humanitarian considerations and limit actions to what were justified by military necessity. It is significant that in Corfu Channel, the ICJ observed that the “elementary considerations of humanity” do permeate international law, which suggests that the principles of humanitarian law are based on the principles of humanity and public conscience. The principles that are particularly related to IHL that need to be noted here are: compatibility between military necessity and the maintenance of public order with the respect for person; bar on inflicting of harm that is not proportionate with the objectives of the warfare; and prohibition of reprisals, collective punishments, and taking of hostages.The motivation for reducing the effects of war for civilians and even military personnel was also noted in the 1868 St. Petersburg Declaration, which states that there should be a move to alleviating the calamities of war.
There is also criticism of IHL on the ground that it prioritises interests of military necessity over humanitarian concepts:
“The diplomats who negotiated the laws and the soldiers who implemented them structured a permissive legal regime. Despite the humanitarian rhetoric, military concerns have dictated the substantive content of the laws of war. National governments, conceiving their sovereign interests narrowly, have proven unwilling to accept any restrictions, legal or otherwise, on their ability to deploy the level of military power they deem necessary to uphold national security.”
The three important criticisms of IHL that can be identified in the above statement can be discussed briefly so as to engage critically with the principles of IHL for the purpose of this work because these criticisms of IHL reflect on the efficiency or the lack of efficiency of the IHL to protect the rights of children in actual times of war or armed conflicts. The first criticism that can be identified from the above statement is that there is a foundational defect in the IHL as it was negotiated by soldiers and diplomats, who structured a permissive regime that favoured state sovereignty and the powers of the state. In other words, the criticism is that a permissive framework is devised under the IHL which would allow easy transgression instead of a strict and restrictive framework that would make such transgressions difficult. The second criticism that can be identified in the above statement is that there was inclusion of rhetoric on humanitarian concerns and not actual motivations for the adoption of the principles of humanity in the IHL. In other words, the IHL was driven by the military concerns rather than humanitarian concerns and therefore, the substantive provisions of the IHL can be argued to be motivated by military concerns and consequently prioritise military concerns over humanitarian concerns. The third criticism identified in the statement is that IHL is ineffective because states are not willing to accept any restrictions on their powers, and compromise ability to use military power. It can be argued that this criticism relates to the structural flaw in the IHL that prevents it from being effective because states are able to prioritise their military interests over their humanitarian obligations during the time of war or armed conflict. At this juncture, it may be acknowledged that military necessity is an important concern for states and it can be understood to have weighed heavily on the negotiation process of the IHL, while humanitarian concerns were also sought to be balanced with the military interests of the states.
Child soldier has been defined as a “child who participates actively in a violent conflict by being member of an organisation that applies violence in a systematic way.” The definition does not use the term armed conflict but instead uses the application of violence in a systematic way. Child is defined as a person under 18 years of age and much of literature in children and armed conflict also defines child soldiering in the same sense of being under 18 years of age. The legal construction of child recruitment, which is based on the different international measures including Convention on the Rights of Child and ILO Convention, is based on the assumption that child recruitment “(1) it takes place in contexts of war, (2) it is undertaken by armed actors with a certain degree of political legitimacy as parties to the conflict, and (3) it is carried out for the (political) purpose of winning the war.” As per this analysis by Coomaraswamy, there are three aspects of the legal construction of child recruitment for armed conflict, which are that such recruitment takes place for employment of children in war or armed conflict, by armed actors with some political legitimacy as parties to conflict, and for the purpose of winning the war. There are some important questions that can be raised here with respect to how international law addresses child recruitment for armed conflict. The first question is whether it is adequately defines war and armed conflict to include all kinds of armed conflict in which children can be involved or are historically known to have been involved as combatants. The second question is whether the international law defines political legitimacy as armed actors and participants in war in ways that can include actors like ISIS in Syria who also recruit children for war or armed conflicts.
Literature also indicates that children between the ages of 6 and 18 have been observed to be recruited in armed conflicts around the world. A question may be raised as to why children as young as 6 years of age will be recruited by armed groups for armed conflicts. There are a variety of reasons for this including the fact that fairly young children can now be employed in warfare because of availability of light, cheap and easily maintained weapons that children can be taught easily to use without extensive training. There are other reasons why children may be recruited for armed conflicts and warfare, some of which were summarised by a rebel officer in Congo who noted that children are recruited because “they obey orders; they are not concerned with getting back to their wife and family; and they don’t know fear.” These are psychological factors that have been instrumental to a degree for many armed groups in the Sub Saharan Africa, who are recruiting children for the purpose of warfare. Indeed, there were armed conflicts in Angola (1975–2002) and Sierra Leone (1991–2002) when children were recruited extensively for the purpose of participation in war. At this time, Syrian war which started in 2012, has employed thousands of children who are exposed to the vagaries of war. With the increase in the recruitment and participation of children in warfare, where they are exposed to violence in different forms, there is also an increase in the adoption of measures intended to prevent recruitment of children, and to protect them.
In earlier times, participation in wars or armed conflicts was allowed for those over fifteen years of age whereas the age for participation in armed conflict is now considered to be unacceptable for those under eighteen years of age. Now persons under eighteen years of age are considered to be children for the purposes of armed conflict and the IHL. The IHL has prohibited for the involvement of those who are under eighteen years of age, from joining the armed forces or hostilities. It has been argued that IHL does not reflect conditions of modern armed conflict and is dated in the categories of protection that it offers. This section discusses the history of child recruitment in armed conflict. To provide some context, the section first defines armed conflict.
Armed conflicts are conflicts that involve states, but can also involve non-state entities, which is a definition that is wider than how war is defined. Armed conflict is defined as “the use of armed force between two organised armed groups, of which at least one is the government of a state, which results in at least 25 battle-related deaths in a year”. International armed conflict is also defined as follows:
“The term “internationalized armed conflict” describes internal hostilities that are rendered international. The factual circumstances that can achieve that internationalization are numerous and often complex: the term internationalized armed conflict includes war between two internal factions both of which are backed by different States; direct hostilities between two foreign States that militarily intervene in an internal armed conflict in support of opposing sides; and war involving a foreign intervention in support of an insurgent group fighting against an established government.”
There is a difference between armed conflict and internationalised armed conflict, the latter being a situation where an armed conflict becomes internationalised because a foreign country becomes involved in what is an internal armed conflict or where foreign intervention takes place where an insurgent group is involved. It is important to define armed conflict and internationalised armed conflict because the IHL applies in armed conflicts. The Geneva Conventions of 1949 allows the application of the vast majority of the substantive provisions solely to
“all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.”
IHL signifies great humanitarian efforts made by the international community both prior to the 20th century and in the post world war period in the 20th century. Therefore, there are the Hague Conventions of 1907 and then the Geneva Conventions of 1949; the distinguishing factor of the Geneva Conventions of 1949 is that they are applicable to armed conflicts and not just war. IHL also has much in common with international law of human rights as they are related to the protection of person; the distinguishing factor of the former is that it is applicable only in the time of war and armed conflict. There is some lack of clarity on whether the international law of human rights would apply in the time of armed conflicts as well as the application of the IHL. It may be noted that the ICJ has noted that IHL is the lex specialis during the time of armed conflict and the right to life protected under the International Covenant of Civil and Political Rights 1976 is subject to IHL. This is a point that is relevant to the current work because the question of children’s human rights is also involved in the issue of recruitment of children for armed conflict which may involve the question of the applicability of Convention on the Rights of Child while the ICJ judgment clarifies that the applicability of the international law of human rights and IHL may not be contiguous.
The Geneva Conventions apply to the declared war and any other armed conflict which may arise between states. This may mean that internationalised armed conflicts are not covered by the four Geneva Conventions. Furthermore, Article 3 which is common to all four of the Geneva Conventions of 1949 extended some principles of humanitarian protection to those persons taking no active part in hostilities and placed hors de combat.
The Additional Protocols to the Geneva Conventions have also continued to make the distinction between international and non-international armed conflicts, which has been said to be responsible for “leaving unresolved the troublesome question of the law to be applied to armed conflicts in which there are both international and non-international elements.” Additional Protocol I clarified in Article 1 that it supplements the Geneva Conventions of 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions. Furthermore, Article 1(4) of Additional Protocol I also explicitly provides that the protocol will apply to armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes. Thus, there is some extending of the operation of the IHL through the two protocols.
There are several steps taken in the domain of international law which are directed at the adoption of the international measures preventing recruitment of children for participation in armed conflicts. Condemnation of child recruitment by official armed forces was seriously done in the Convention on the Rights of the Child 1989.
Apart from the Convention on the Rights of the Child, there is also the Rome Statute which created the International Criminal Court, and which included child recruitment in the war as a war crime in Articles 8(b) (xxvi) and 8(e) (vii) of the Rome Statute of the International Criminal Court. The Rome Statute also seeks to prevent direct and active participation of children in hostilities, including combat, as well as activities like scouting, spying, sabotage, and the use of children as decoys, couriers or at military checkpoints. The difference between direct and active participation in the war can be explained as follows: direct participation involves use of children in combat actions and the use of arms (direct participation) whereas active participation includes other necessary wartime activities like serving as spies, bodyguards and sentinels, or performing technical tasks such as making and planting landmines, which while not involving combat are nevertheless risky and involve exposure to violence, harm, and injury or death. The problem that may also be highlighted here is that while active and direct participation are barred under the Rome Statute, indirect participation in war or armed conflict is a grey zone. This includes use of children for non combative or active tasks but where children are still made to perform other tasks like washing, cooking and collecting firewood. When the international law does not expressly prohibit these, there is recruitment of children for these tasks which may still expose children to violence and harm when they are attached to armed groups that are directly and actively involved in armed conflict. This ambiguity about whether children can be recruited for indirect participation in armed conflict also leads to the “debate about whether children’s involvement in war must entail actions directly, actively and/or indirectly related to armed clashes for them to be eligible for special protection” and becomes the “reason for the terminological differentiation made here between child soldiers and children linked to armed conflict.” In other words, is there a need to address the problems related to children who are linked to the armed conflict where while not actively and directly involved in war, they are still linked to armed conflict and can be exposed to various harms and violence, including sexual violence, because of their being attached to armed groups involved in armed conflict. Such children may need protection and may be failing to get that protection under international law because of the technical difference made between child soldiers and children linked to armed conflicts.
The International Labour Organization Convention of 1999 is also an international measure which included provisions addressing child recruitment for armed conflicts. Article 3 of the Convention terms forced or obligatory recruitment of children for use in armed conflicts as “one of the worst forms of child labour.”
The international community responded to the increasing awareness of modern warfare’s increasing exposure and involvement of children in armed conflict and the problems with this practice. This also led to the adoption of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict in 2000, which expressly provided that the minimum age for compulsory recruitment and participation in hostilities was eighteen years of age. The Optional Protocol was also made necessary because of the increasing condemnation of the practice of recruitment of children for armed conflict by illegal armed groups. Article 1 provides that children are to be protected both for direct or active participation in hostilities. Articles 2 and 4 of the Optional Protocol established that neither state parties nor illegal armed groups can recruit or use children in hostilities. Article 3 provided that minimum safeguards be ensured by state parties when they permit voluntary recruitment of persons under the age of 18 in national armed forces. It may be submitted here that there appears to be some contradiction between the provisions where while on the one hand the Optional Protocol bars recruitment of children for hostilities, it allows voluntary recruitment for national armed forces in Article 3. Even if there is no apparent contradiction in that it can be said that when recruitment is voluntary it is permissible, it can be argued that states may also force children under 18 years to be recruited into the national army in the time of war or at least create such conditions where children are encouraged to join the national army at these times. Children have been known to join non national armed forces voluntarily; an example can be taken from a case study involving Colombian child recruits, where the data showed the following:
“In 83% of the 132 cases studied in the present article, the victim claimed to have joined an illegal armed group ‘voluntarily’ as a child. Amongst the reasons given for such a decision, 18% cited economic motives, eg the possibility of earning money or improving their hopes for the future. Children’s other motives for joining were closely related to the contexts of war, such as a taste for guns (27.1%) and the need for protection against other armed groups (12%). Family factors also played an important role in the children’s decisions, such as the possibility of escape from domestic violence (3%) or as a response to parental pressure to join the armed group (3.8%).”
The above excerpt suggests that even with the non national armed groups, it was possible for them to voluntarily recruit children for their involvement in armed conflict if the conditions in the lives of children made it incumbent upon them to seek such employment. These conditions may be related to economic reasons or even psychological as 27 percent of the respondents joined because of “taste for guns”. Similar reasons may be relevant to children under 18 years joining national armies and while they may be considered as volunteers, there is no real choice given for children to be so considered.
DISCLAIMER : The dissertation help samples showcased on our website are meant for your review, offering a glimpse into the outstanding work produced by our skilled dissertation writers. These samples serve to underscore the exceptional proficiency and expertise demonstrated by our team in creating high-quality dissertations. Utilise these dissertation samples as valuable resources to enrich your understanding and enhance your learning experience.