Rights of Child Soldier - an international perspective

Dr. Ruwantissa ABEYRATNE

The rights of the child are internationally recognized in the Convention on the Rights of the Child (CRC) of 1989. The Convention, which was signed by Sri Lanka on January 26, 1990 and ratified on July 12, 1991, had 140 signatory States as at 1 November 2006.

For the purposes of the Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

As the Convention on the rights of the child is an international treaty that binds States parties, the primary responsibility lies in the State concerned to ensure protection of the child from all forms of abuse.

Arguably the most compelling requirement of the treaty is that no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation, and that the child has the right to the protection of the law against such interference or attacks.

Another compelling and important provision in the Convention is Article 19 which demands that States Parties take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. Every child has a right to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.

The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development.

As for education, the child has, under the Convention, the right to education. To this end, primary education should be compulsory and available free to all, and different forms of secondary education, including general and vocational education, should be made available and accessible to every child.

Another most important consideration lies in Article 32 which provides that States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.

Article 37 is yet another forceful provision which ensures that no child will be subjected to torture or other cruel, inhuman or degrading treatment or punishment.

Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age and that no child shall be deprived of his or her liberty unlawfully or arbitrarily.

The Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, known in short as the Worst Forms of Child Labour Convention, was adopted by the International Labour Organisation (ILO) on June 17, 1999 by the General Conference of the International Labour Organization at its eighty-seventh session.

It entered into force in November 2000. By ratifying this Convention, a State commits itself to taking immediate action to prohibit and eliminate the worst forms of child labour.

Sri Lanka ratified this Convention on March 01, 2001. The Convention recognizes that the use of persons under 18 years of age in armed conflict is one of the worst forms of child labour.

The military use of children refers to children being placed in harm's way in military actions, in order to protect a location or provide propaganda. This is sometimes referred to as child sacrifice, though not equivalent to the religious variety. It may also refer to the use of children as child soldiers or saboteurs.

The worldwide number of child soldiers is estimated to be between 250,000 and 300,000 (as of 2006), a third of whom are girls; however it is difficult to know the correct number, as most of them are deployed in armed rebel groups.

Examples of massive use of children as soldiers in recent years could be found in armed conflicts in the Democratic Republic of the Congo, Sudan, Cote d'Ivoire, Myanmar, Philippines, and Colombia.

The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts, adopted and opened for signature, ratification and accession by United Nations General Assembly resolution A/RES/54/263 of May 25, 2000 entered into force on February 12, 2002. Sri Lanka signed the Protocol on 21 August 2000 and ratified it on September 08, 2000.

The Protocol, which aims at strengthening further the implementation of rights recognized in the Convention on the Rights of the Child, recognizes that there is a need to increase the protection of children from involvement in armed conflict.

Therefore the Protocol condemns the targeting of children in situations of armed conflict and direct attacks on objects protected under international law, including places that generally have a significant presence of children, such as schools and hospitals.

It must be noted that the Protocol does not prohibit a State from recruiting into their armed forces any person under the age of 18, provided such recruitment is done with the consent of the recruit.

However, it does not allow such a person recruited to be involved in hostilities.

Red Hand Day was initiated in 2002 when the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict entered into force on February 12, 2002.. A number of international organizations are active against the use of children as soldiers.

These organizations include, for example, the United Nations Child Fund (UNICEF), Amnesty International, Terre des Hommes or the International Red Cross and Red Crescent Movement.

They may not be enough as it takes a world to combat this practice.

###############

International legal standards applicable to child soldiers - Part II

Wasantha SENEVIRATNE

Continued from November 22

The Optional Protocol to the CRC on the Involvement of Children in Armed Conflict (2000) is considered to be a momentous step by the international community to eradicate an inhuman practice across the world.

It was hoped these provisions would help to curb the phenomenon of child soldering, and alleviate ambiguities of similar provisions included in the CRC, Protocol I and II of 1977. However, some experts in the field do not view this Protocol favourably.

According to their arguments; it does not specify a minimum age for indirect participation in hostilities and exempts military schools from complying with the minimum age requirement.

Additionally, it does not set a uniform minimum age for voluntary recruitment although States would be required to raise the respective ages from the current minimum of 15 years and there is no supervision with regard to maintenance of safeguards especially that of voluntary recruitment.

However, changes in the law alone will not prevent the recruiting of children as soldiers of war. The desired results can only be achieved through creative use of the new Protocol.

The rapid universal ratification of this new Optional Protocol is most important in order to curb this practice, and thus to avoid the adverse impact on children caught up in war.

There are 52 State Parties to this Protocol as of March 2003. Sri Lanka signed the Protocol on 21 August 2000 and ratified in on 8 September 2000.

Upon ratification Sri Lanka in accordance with Article 3 (2) of the Protocol declared that under the laws of the country there is no compulsory, forced or coerced recruitment to the national armed forces; recruitment is solely on a voluntary basis, and the minimum age for voluntary recruitment to the national armed forces is 18 years.

If States Parties take the necessary steps to incorporate these new international standards in their domestic legal systems it will be a significant move towards better implementation. The Committee on the Rights of the Child is expected to lessen the shortcomings of the text by making a strict interpretation of it.

At a national level, positive development were seen in Colombia and the Democratic Republic of Congo (DRC). In Colombia, legislation was enacted in 1999 raising the minimum age for recruitment into the government armed forces to 18. Subsequent to this, the Colombian Army discharged 980 soldiers under the age of 18.

In the DRC a national commission and an inter-ministerial committee were established to oversee the disarmament, demobilization, and reintegration into society of child combatants. On the other hand, in Sierra Leone pro and anti government forces continue to recruit children.

In Nepal, the Maoist armed opposition group has recruited children as young as 14. In Sri Lanka also, the LTTE still recruits children.

Further to this new Optional Protocol, international support to end the use of child soldiers is reflected in the adoption of the Maputo Declaration of 1999 on the use of Children as Soldiers, the Montevideo Declaration of 1999 on the use of Child Soldiers, the Berlin Declaration of 1999 on the use of Child Soldiers and the Katmandu Declaration of 2000 on the use of Child Soldiers.

The UN Security Council, the UN General Assembly, the UN Commission on Human Rights, the Organisation of American States and the Organisation for Security and Cooperation in Europe have all condemned this abuse.

Many governments around the world have raised the age of recruitment to their armed forces to the level of 18 years.

The UN Secretary-General has set 18 as a minimum age for the recruitment of UN peacekeepers. Even some armed groups, seeking recognition and legitimacy within the international community, have acknowledged the principle.

Cooperative efforts were made by some countries, UN agencies, and NGOs - especially the Coalition to Stop the Use of Child soldiers - to advocate the adoption of the Optional Protocol on the Involvement of Children in Armed Conflict.

Additionally, the following initiatives achieved both a direct and indirect impact on the recruiting of children as soldiers of war.

(d) International Labour Organisation Convention on the Elimination of the Worst Forms of Child Labour of 1999.

The International Labour Organisation Convention Number 182 on the Elimination of the Worst Forms of Child Labour was adopted unanimously by the 174 Member States of the International Labour Organisation on 16 June 1999.

This Convention commits each State Party to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.

According to this Convention, the term 'child' applies to all persons under the age of 18, and the worst forms of child labour include forced or compulsory recruitment of children for use in armed conflict.

Correspondingly, this Convention obliges States Parties to prohibit the forced or compulsory recruitment of children under 18 for use in armed conflict.

This was the first instance that an 18-year minimum age limit was set in an international convention in relation to child soldiering, even before the Optional Protocol to the CRC of 2000. It was also the first specific legal recognition of child soldiering as a form of child labour.

(e) UN Security Council Resolution 1261

On 25 August 1999, the UN Security Council adopted Resolution 1261 on Children and Armed Conflict. This Resolution is significant, not only for the attempt at the eradication of the phenomenon of child soldiering, but also for minimizing other adverse effects of conflict on children.

The Resolution urges States and all relevant organs of the United Nations system to intensify their efforts to ensure the eradication of the recruitment and use of children in armed conflict.

The Security Council strongly condemned the targeting of children in situations of armed conflict, including sexual violence, abduction and forced displacement, and recruitment and use of children in armed conflict.

This Resolution is considered an important milestone, because the Security Council has for the first time devoted a Resolution to a thematic concern, which is unrelated to a specific situation or an immediate incident.

In so doing, it has clearly demonstrated its commitment to the protection of children affected by armed conflict, with special emphasis on curbing the phenomenon of child soldiering.

(f) UN Security Council Resolution 1314

On 11 August 1999, the Security Council adopted Resolution 1314 on Children and Armed Conflict.

In this Resolution the Security Council stressed the prohibition of child soldiering, and considered declaring regional initiatives towards full implementation of the prohibition of the use of child soldiers in violation of international law.

The Security Council also reaffirmed its strong condemnation of the deliberate targeting of children in situations of armed conflict and stressed the harmful and widespread impact of armed conflict on children, and the long-term consequences this has for a durable peace, security and development.

Accordingly, the Council urged all parties to armed conflict to respect fully the international law applicable to the rights and protection of children in armed conflict, and in particular the CRC and the new Protocol on Child Soldiers. This Resolution also has a considerable impact on the plight of child soldiers.

(g) The Statute of the International Criminal Court

Article 8 of the Statute of the International Criminal Court (ICC), adopted in July 1998 in Rome, makes it an international crime for any person to recruit children under 15 years or to use them in hostilities, whether in international or an internal armed conflict, and whether or not they are acting on behalf of a government.

Accordingly, conscripting or enlisting children under the age of 15 years into the national armed forces or using them to participate actively in hostilities, whether committed by State armed forces, paramilitary forces, or armed dissident groups, is a war crime carrying international criminal liability.

Although it also stipulates 15 years as the minimum age limit for recruiting as soldiers of war in line with the CRC and Protocol I and II of 1977, the jurisdiction of the court over the use of child soldiers as a war crime is very significant. Therefore it is expected that the ICC which started functioning in 2003 will end an era of impunity for war crimes included in this Statute.

To deal with this problem twofold action should be taken: the protection of children from being recruited as soldiers by governments or other armed forces, and the demobilization and reintegration of child soldiers into society, and the prevention.

Preventing Recruitment

More effective measures must be taken to prevent the recruitment of child soldiers. These should include monitoring and enforcing legal commitments to forbid recruitment below the minimum age specified in the new Protocol, introducing or re-establishing reliable birth registration systems, and providing educational and vocational opportunities for young people.

Stopping or preventing the recruitment of children requires an understanding of conflict situations and the conditions that have led these young people to become members of military groups.

Communities should be encouraged to give priority to fostering the culture of peace, and to develop and carry out peace, reconciliation and community awareness initiatives, and to create channels for child participation in policy-making and in the design, implementation, monitoring and evaluation programmes.

In order to stop recruiting children; States should ratify the Optional Protocol on Involvement of Children in Armed Conflict and other legal instruments relevant to the protection of children in armed conflict and take necessary steps to ensure that national laws are compatible with international legal standards pertaining to curb the child recruitment.

At the domestic level, initiatives should be taken to provide training to army personnel and non-State actors on child rights and protection, to develop prevention strategies to reduce the factors that make children vulnerable to voluntary recruitment, and to ensure the right of children to participate in decision making.

It is difficult to lobby non-State armed groups directly to stop recruiting children. However, when offending non-State actors seek international recognition, the international community can highlight their violation of children's rights and debar their demand.

Setting up mechanisms to monitor the situation of child soldiers and study its causes in different countries is crucial in curbing this problem on the ground.

Creating an international monitoring mechanism which can oversee State practices and relevant national legislation and policies may help to stop the phenomenon.

Child soldiers must be protected from retribution, summery execution, arbitrary detention, torture and other punitive measures in accordance with the CRC and international juvenile justice standards.

Rehabilitation and demobilization of child soldiers

Disarming, demobilizing and reintegrating ex-child combatants into society is very important. Unless children demobilized from armies and given alternatives to soldiering, they are likely to be again recruited into armed groups.

Reintegrating children requires dedicated and long-term support, beginning with programmes to reunify them with their families and communities. Many demobilization programmes falter because of flawed design, insufficient monitoring or lack of resources.

Governments and humanitarian agencies must develop better schemes to cater for the special needs of former child soldiers. This should include provision for education, health care, life skills, psychosocial recovery and vocational training.

Promoting peaceful settlement of armed conflicts would lead to the cessation of the use of child soldiers as well as to their demobilization. The issue of demobilization of child soldiers, their rehabilitation and reintegration into society must be included in any peace process.

The Secretary-General released a Statement in February 2000 on the 'Role of United Nations Peacekeeping in Disarmament, Demobilization and Reintegration.' This was a step towards increasing commitment to include child soldiers in demobilization and reintegration programmes in peacekeeping operations.

Conclusion

Above discussed positive developments are important in improving the lives of war-affected children who face the risk of being recruited as soldiers of war.

However, further action should be taken to protect them. IT is essential to develop practical and sustainable modes and processes in order to fully implement the new Optional Protocol to the CRC worldwide as rapidly as possible. The political will of all the State Parties is important in this regard.

The functions of the Committee on the Rights of the Child are significant for better enforcement of the provisions embodied in this Protocol. This Committee should be keen on the curbing of child recruitment, and instruct States to include information about this phenomenon in their country reports.

Recruitment of children into warfare has grave consequences on the global future and peace. The international community must continue to do all it can to maintain and restore international peace and security, and to protect and assist children.

States must ensure that persons under the age of 18 years are not recruited into their armed forces, and insurgent groups and rebels should ensure that members below the age of 18 years do not take a direct part in hostilities.

There should be no space in which exploitation, recruitment, targeting of or violence against any child is justifiable.

For that, an effective international monitoring network should be developed to ensure systematic reporting of child recruitment. A plan of action should be drawn up to rehabilitate and reintegrate ex-child soldiers in post-conflict situations.

The time has come to achieve an 'era of application' by implementing existing laws rapidly, and respecting concrete commitments enshrined in international instruments. However, moving from theory to practice still remains a major challenge.

Promoting international awareness of the issue and the role of international organisations in this regard, is of utmost importance. The international community should mobilize a movement of political pressure such as naming, shaming and refusing support for armed groups that continue to abuse child.

The writer is a lecturer at the Faculty of Law of the University of Colombo. She is an Attorney-at-Law with LLB (Hons). This article was first published in the Sri Lanka Journal of International Law. Concluded

###############

Next month's debate on 'Commercialisation of Christmas'

Misty mornings, a cool breeze and the sound of carols: there is no getting away from the feel of Christmas wherever in the world you are, even in many countries where Christianity is not the main religion. It's time to celebrate the birth of Jesus who brought the message of peace to Earth.

But, has Christmas been confined today to decorations, Santas, snowmen, tinsel and expensive gifts? Has the true spirit of Christmas been obscured by shop windows advertising 'X'mas' sales? Does the younger generation know the deeper meaning of Christmas?

Or, is a Christmas free of commercialisation only a myth in the present market-based economy ? Is it possible to balance the commercial aspects of the festival without losing the true meaning of Christmas?

As the month of Christmas draws near, take some time to ponder over the present attitudes to Christmas. The 'Daily News Debate' for next month is 'the commercialisation of Christmas'.

Send your views (between 700-1000 words) on the above topic before December 13 to 'Daily News Debate', Daily News, Associated Newspapers of Ceylon Limited, PO Box 1217, Colombo, or via e-mail to [email protected].