Rule 137. Participation of Child Soldiers in Hostilities

Rule 137. Children must not be allowed to take part in hostilities.
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 participation of children in hostilities.[1] The Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child also contain this rule.[2] Under the Statute of the International Criminal Court, using children to “participate actively in hostilities” constitutes a war crime in both international and non-international armed conflicts.[3] It is also included as a war crime in the Statute of the Special Court for Sierra Leone.[4] In his report on the establishment of the 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 participation of children in hostilities is prohibited in many military manuals,[6] including those which are applicable in non-international armed conflicts.[7] It is also prohibited under the legislation of numerous States.[8]
No official contrary practice was found. Alleged practices of using children to take part in hostilities have generally been condemned by States and international organizations, for example, with respect to conflicts in the Democratic Republic of the Congo, Liberia and Sudan.[9] In a resolution adopted in 1999 on children in armed conflicts, the UN Security Council strongly condemned the “use of children in armed conflict in violation of international law”.[10] In a resolution adopted in 1996 on the plight of African children in situations of armed conflict, the OAU Council of Ministers reaffirmed that “the use of children in armed conflicts constitutes a violation of their rights and should be considered as war crimes”.[11]
The International Conferences of the Red Cross and Red Crescent in 1986 and 1995 adopted resolutions stressing the prohibition of the participation of children in hostilities.[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, are taken to stop the participation of children … in armed hostilities”.[13]
In addition, the UN Security Council, UN General Assembly and UN Commission on Human Rights frequently require the rehabilitation and reintegration of children who have taken part in armed conflict.[14] The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict specifically requires governments to take measures to demobilize and rehabilitate former child soldiers and to reintegrate them into society.[15]
Lastly, it should be noted that Additional Protocol I provides that children who do take a direct part in hostilities and fall into the power of an adverse party shall continue to benefit from the special protection to which they are entitled, whether they are prisoners of war or not.[16] None of the rules which identify such special protection, such as the prohibition of sexual violence (see Rule 93) and the obligation to separate children from adults in detention (see Rule 120) provide for an exception in the event that children have taken part in hostilities. In addition, none of the practice supporting the prohibition of the participation of children in hostilities provides that they should be deprived of their special protection if they do participate in hostilities.
In the framework of the war crime of “using children to participate actively in hostilities” contained in the Statute of the International Criminal Court, the words “using” and “participate” have been adopted in order to:
cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase or the use of domestic staff in an officer’s married accommodation. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included within the terminology.[17]
The Act on Child Protection of the Philippines provides that children shall not “take part in the fighting, or be used as guides, couriers or spies”.[18] Upon ratification of the Convention on the Rights of the Child, the Netherlands stated that “States should not be allowed to involve children directly or indirectly in hostilities”.[19]
Additional Protocols I and II, the Statute of the International Criminal Court and the Statute of the Special Court for Sierra Leone put the minimum age for the participation in hostilities at 15, as does the Convention on the Rights of the Child.[20] Upon ratification of the Convention on the Rights of the Child, Austria and Germany stated that the age-limit of 15 years was incompatible with the best interests of the child.[21] Colombia, Spain and Uruguay also expressed disagreement with this age-limit.[22] At the 27th International Conference of the Red Cross and Red Crescent in 1999, Belgium, Canada, Denmark, Finland, Guinea, Iceland, Mexico, Mozambique, Norway, South Africa, Sweden, Switzerland and Uruguay pledged support to raise the age-limit for participation in hostilities to 18 years.[23] Under the African Charter on the Rights and Welfare of the Child, the age-limit for participation in hostilities is 18 years.[24] Under the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, States must take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities, while armed groups that are distinct from the armed forces of a State may not, under any circumstances, use persons under the age of 18 in hostilities.[25]
Although there is not, as yet, a uniform practice regarding the minimum age for participation in hostilities, there is agreement that it should not be below 15 years of age.
[1] Additional Protocol I, Article 77(2) (adopted by consensus) (cited in Vol. II, Ch. 39, § 502); Additional Protocol II, Article 4(3)(c) (adopted by consensus) (ibid., § 503).
[2] Convention on the Rights of the Child, Article 38(2) (ibid., § 504); African Charter on the Rights and Welfare of the Child, Article 22(2) (ibid., § 386).
[3] ICC Statute, Article 8(2)(b)(xxvi) and (e)(vii) (ibid., § 387).
[4] Statute of the Special Court for Sierra Leone, Article 4(c) (ibid., § 515).
[5] UN Secretary-General, Report on the establishment of a Special Court for Sierra Leone (ibid., § 341).
[6] See, e.g., the military manuals of Argentina (ibid., § 520), Australia (ibid., § 521), France (ibid., § 524), Germany (ibid., § 525), Netherlands (ibid., § 526) and Nigeria (ibid., § 528).
[7] See, e.g., the military manuals of Argentina (ibid., § 520), Australia (ibid., § 521), Canada (ibid., § 522), Colombia (ibid., § 523), France (ibid., § 524), Germany (ibid., § 525), New Zealand (ibid., § 527) and Nigeria (ibid., § 528).
[8] See, e.g., the legislation of Australia (ibid., § 529), Belarus (ibid., §§ 530–531), Canada (ibid., § 533), Colombia (ibid., §§ 534–535), Congo (ibid., § 536), Germany (ibid., § 537), Georgia (ibid., § 538), Ireland (ibid., § 539), Jordan (ibid., § 540), Malaysia (ibid., § 541), Mali (ibid., § 542), Netherlands (ibid., § 543), New Zealand (ibid., § 544), Norway (ibid., § 545), Philippines (ibid., § 546) and United Kingdom (ibid., § 548); see also the draft legislation of Burundi (ibid., § 532) and Trinidad and Tobago (ibid., § 547).
[9] See, e.g., the statements of Italy (ibid., § 559) and United States (ibid., § 569); UN Security Council, Res. 1071 (ibid., § 572) and Res. 1083 (ibid., § 572); UN Security Council, Statement by the President (ibid., § 575); UN General Assembly, Res. 51/112 (ibid., § 576).
[10] UN Security Council, Res. 1261 (ibid., § 573).
[11] OAU, Council of Ministers, Res. 1659 (LXIV) (ibid., § 584).
[12] 25th International Conference of the Red Cross, Res. IX ( ibid., § 585); 26th International Conference of the Red Cross and Red Crescent, Res. II (ibid., § 586).
[13] 27th International Conference of the Red Cross and Red Crescent, Res. I (adopted by consensus) (ibid., § 589).
[14] See, e.g., UN Security Council, Statement by the President (ibid., § 574); UN General Assembly, Res. 55/116 (ibid., § 459); UN Commission on Human Rights, Res. 1998/76 (ibid., § 227).
[15] Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, Articles 6(3) and 7(1) (ibid., § 389).
[16] Additional Protocol I, Article 77(3) (adopted by consensus).
[17] Draft Statute of the International Criminal Court, Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Part One, UN Doc. A/CONF.183/2/Add.1, 14 April 1998, p. 21 (cited in Vol. II, Ch. 39, § 513).
[18] Philippines, Act on Child Protection (ibid., § 546).
[19] Netherlands, Reservations and declarations made upon ratification of the Convention on the Rights of the Child (ibid., § 509).
[20] Additional Protocol I, Article 77(2) (adopted by consensus) (ibid., § 379); Additional Protocol II, Article 4(3)(c) (adopted by consensus) (ibid., § 380); ICC Statute, Article 8(2)(b)(xxvi) and (e)(vii) (ibid., § 387); Statute of the Special Court for Sierra Leone, Article 4(c) (ibid., § 515); Convention on the Rights of the Child, Article 38(2) (ibid., § 504).
[21] Reservations and declarations made upon ratification of the Convention on the Rights of the Child by Austria (ibid., § 506) and Germany (ibid., § 508).
[22] Declarations made upon ratification of the Convention on the Rights of the Child by Colombia (ibid., § 507), Spain (ibid., § 510) and Uruguay (ibid., § 511).
[23] Pledges made at the 27th International Conference of the Red Cross and Red Crescent by Belgium (ibid., § 550), Canada (ibid., § 551), Denmark (ibid., § 553), Finland (ibid., § 554), Guinea (ibid., § 555), Iceland (ibid., § 556), Mexico (ibid., § 560), Mozambique (ibid., § 561), Norway (ibid., § 562), South Africa (ibid., § 564), Sweden (ibid., § 565), Switzerland (ibid., § 566) and Uruguay (ibid., § 571).
[24] African Charter on the Rights and Welfare of the Child, Article 2.
[25] Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, Articles 1 and 4 (cited in Vol. II, Ch. 39, § 514).