Rule 136. Recruitment of Child Soldiers

Volume II, Chapter 39, Section C.

State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.

Additional Protocols I and II prohibit the recruitment of children.[1] This prohibition is also found in the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and the Convention on the Worst Forms of Child Labour.[2] Under the Statute of the International Criminal Court, “conscripting or enlisting children” into armed forces or groups constitutes a war crime in both international and non-international armed conflicts.[3] This war crime is also included in the Statute of the Special Court for Sierra Leone.[4] In his report on the establishment of a Special Court for Sierra Leone, the UN Secretary-General stated that the provisions of Article 4 of Additional Protocol II have long been regarded as part of customary international law.[5]

The recruitment of children is prohibited in several military manuals,[6] including those which are applicable in non-international armed conflicts.[7] It is also prohibited under the legislation of many States.[8]

No official contrary practice was found. Alleged practices of recruiting children have generally been condemned by States and international organizations, for example, in Burundi, the Democratic Republic of the Congo, Liberia, Myanmar and Uganda.[9] In a resolution on children in armed conflicts adopted in 1999, the UN Security Council strongly condemned the recruitment of children in violation of international law.[10] In a resolution adopted in 1996 on the plight of African children in situation of armed conflicts, the OAU Council of Ministers exhorted all African countries, in particular the warring parties in those countries embroiled in civil wars, “to refrain from recruiting children”.[11]

The International Conferences of the Red Cross and Red Crescent in 1986 and 1995 adopted resolutions stressing the prohibition of recruitment of children.[12] The Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999, requires that all parties to an armed conflict ensure that all measures, including penal measures, be taken to stop the recruitment of children into armed forces or armed groups.[13]

Additional Protocols I and II, the Statute of the International Criminal Court and of the Special Court for Sierra Leone put the minimum age for recruitment in armed forces or armed groups at 15, as does the Convention on the Rights of the Child.[14] Upon ratification of the Convention on the Rights of the Child, Colombia, Netherlands, Spain and Uruguay expressed their disagreement with the age-limit (15) for the recruitment of children set by the Convention, favouring 18 years instead.[15] At the 27th International Conference of the Red Cross and Red Crescent in 1999, Canada, Denmark, Finland, Guinea, Iceland, Mexico, Mozambique, Norway, South Africa, Sweden, Switzerland, Thailand and Uruguay pledged support to raise the age-limit for recruitment to 18 years.[16] At the same conference, the International Red Cross and Red Crescent Movement stated that it would continue its efforts pursuant to the Plan of Action for Children Affected by Armed Conflict (CABAC) to promote the principle of non-recruitment of children under 18 years of age.[17] Eighteen is the age-limit set by the Convention on the Worst Forms of Child Labour.[18] It is also the age-limit used in the African Charter on the Rights and Welfare of the Child and was supported by the OAU Council of Ministers in a resolution adopted in 1996.[19]

Under the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, States must ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces, while armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit persons under the age of 18 years.[20] The UN Secretary-General has announced a minimum age requirement for soldiers involved in UN peacekeeping missions and has asked States to send in their national contingents soldiers preferably not younger than 21 years of age, and in no case less than 18.[21]

Although there is not, as yet, a uniform practice with respect to the minimum age for recruitment, there is agreement that it should not be below 15 years of age. In addition, Additional Protocol I and the Convention on the Rights of the Child require that, in recruiting persons between 15 and 18, priority be given to the older ones.[22]