Practice Relating to Rule 136. Recruitment of Child Soldiers
Germany’s Military Manual (1992) provides:
The parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces.
The manual further states that children under 15 “shall not be enlisted”.
Germany’s Law Introducing the International Crimes Code (2002) punishes anyone who, in connection with an international or non-international armed conflict, “conscripts children under the age of fifteen years into the armed forces, or enlists them in the armed forces or in armed groups”.
In 2010, in the Democratic Forces for the Liberation of Rwanda case, the Federal Prosecutor General at Germany’s Federal Court of Justice issued a press release, which stated:
On 8 December 2010, the Federal Prosecutor General brought charges before the Senate on State Protection of the Higher Regional Court Stuttgart against:
- the 47-year-old Rwandese national Dr. Ignace M. and
- the 49-year-old Rwandese national Straton M.
for crimes against humanity and war crimes …
In the charges, which have now been delivered and which are the first ones brought under the International Crimes Code, essentially the following facts are set out:
The … [Democratic Forces for the Liberation of Rwanda (FDLR)] … is a rebel group mainly comprised of members of the ethnic Hutu group and was originally founded by individuals responsible for the genocide of the Tutsi who had fled from Rwanda in 1994. Its operational base is in the Eastern Democratic Republic of Congo [DRC]. …
The accused Dr. Ignace M. has been president of the FDLR since December 2001. The accused Straton M. has been its first vice president since June 2004. Until their arrest in Germany on 17 November 2009, both accused steered the FDLR’s conduct, strategies and tactics from Germany together with Calixte M., who is residing in France and who has since been detained by the International Criminal Court in The Hague. Thus, they could have prevented the systematic commission of violent acts against the civilian population by the FDLR’s militiamen, which were part of the organization’s strategy. Specifically, the accused are responsible for 26 crimes against humanity and 39 war crimes, which the militiamen under their control committed in the Democratic Republic of Congo between January 2009 and 17 November 2009. These crimes inter alia
include … incorporating children into the FDLR militia.
In 2003, during a debate in the UN Security Council, the representative of Germany stated:
“Helpless outrage is a characteristic emotion of the global age”, a journalist writing about child war amputees from Freetown recently observed. I think that all of us feel outrage at the devastating effect of armed conflict on children. We are outraged at the cynicism and cruelty of adults who steal the childhood of boys and girls by making them fight in their wars.
The Council is one of the few bodies in the world that does not have to confine itself to “helpless outrage”. The Council can act. Germany is very pleased at the coincidence that its first public address to the Council should deal with children and armed conflict. This issue belongs firmly on the Council’s agenda. Germany will do whatever it can to ensure that we do not stop at debate but also take action …
We thank the Secretary-General, Mr. Olara Otunnu and Ms. Carol Bellamy for their opening remarks and for their reminders that we need practical and concrete progress on the pressing issues facing us.
Germany welcomes this year’s report by the Secretary-General.
We believe it is an outspoken and focused report. We are pleased with the forthright manner in which the Special Representative has taken up the task entrusted to him by the Council to name those countries that recruit or use children in armed conflict in violation of their international obligations. We especially welcome the fact that the report is not limited to those five countries that are currently on the Council’s agenda. This has ensured that many of the worst offenders, including the worst offender, have been brought to the Council’s attention. We give our express encouragement to the Special Representative to continue to report on child soldier recruitment in any conflict, without any geographic or other restrictions.
At the time of the last open debate on this item, in November 2001, the Secretary-General had rightly pointed out that we needed to enter an era of application. Application is even more urgent today than it was then. The Rome Statute of the International Criminal Court (ICC) has come into force. It lists the conscription, enlistment or use in hostilities of children under the age of 15 as a war crime. We urge all States to ratify the ICC Statute and thus to join hands in the fight against impunity from crimes that shock the consciences of all. The entry into force of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict also constitutes a milestone on the road to ending recruitment of child soldiers.
Germany fully supports the Special Representative’s call for a vigorous monitoring effort by the United Nations to ensure that States fulfil their international obligations. The list annexed to this report is an important starting point. However, monitoring will only succeed if those who refuse to cooperate and to act upon their international obligations face consequences. We support every effort of the Council to add bite to these monitoring efforts. And we support Olara Otunnu’s concept of systematic monitoring as a trigger for action, as just set out in his opening remarks.
In 2004, in a speech at the UN Commission on Human Rights, Germany’s Federal Minister for Foreign Affairs stated:
The rights of the child are also still subject to serious abuse around the world. Notwithstanding the almost universal ratification of the Convention on the Rights of the Child, millions of children are still subject to violence every day.
Child labour, the recruitment of child soldiers, trafficking in children and child prostitution must be countered as resolutely as other previously ignored forms of abuse, such as domestic violence against children. The implementation of children’s rights must thus continue to have top priority for us all.
In 2004, in a declaration made upon ratification of the 2000 Optional Protocol on the Involvement of Children in Armed Conflict, Germany stated:
The Federal Republic of Germany declares that it considers a minimum age of 17 years to be binding for the voluntary recruitment of soldiers into its armed forces under the terms of Article 3 paragraph 2 of the Optional Protocol. Persons under the age of 18 years shall be recruited into the armed forces solely for the purpose of commencing military training.
The protection of voluntary recruits under the age of 18 years in connection with their decision to join the armed forces is ensured by the need to obtain the consent of their legal guardian and the indispensable requirement that they present an identification card or passport as a reliable proof of their age.
In 2004, during a debate in the UN Security Council, the representative of Germany stated:
Many children without protection are being kidnapped and made child soldiers. Pressing children into military duty rather than letting them develop peacefully is one of the most short-sighted and cruel acts anyone can commit. Even apart from the cruelty involved, it will have a long-term negative impact. In that regard, I should like to recall Council resolution 1539 (2004) and the preceding relevant resolutions.
In 2005, in its Seventh Human Rights Policy Report, Germany’s Federal Government reported to the Bundestag (Lower House of Parliament):
Germany actively participated in the negotiations on the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict … Germany ratified the Protocol in 2004.
The Optional Protocol raises the minimum age for the participation in hostilities from so far 15 to now 18 years and prohibits the compulsory recruitment of persons who have not attained the age of 18 years. Article 3, paragraph 2 of the Optional Protocol 2 provides that all States Party shall deposit a binding declaration upon ratification that sets forth the minimum age at which they will permit voluntary recruitment into its national armed forces. Armed groups, in contrast to States, may in any case only recruit persons from the age of 18 years, i.e. this minimum age also applies to volunteers.
States thereby become accountable. That route was followed consciously, in order to make it possible for States to sign the Protocol[…] at the millennium summit; the discussion whether a State fixes its minimum age for voluntary recruitment at 18, 17 or even 16 years was thereby postponed to the time of ratification. Until the completion of the reform of the Federal Armed Forces, the compromise found within the Federal Government lays down the current rule, which provides for the enrolment of volunteers from the age of 17 years.
3. Priorities of the German human rights policy 2005–2006
3.10. Protecting children from violence and exploitation
On the basis of the 2003 EU Guidelines on Children and Armed Conflict and the relating 2004 Plan of Action, [the Federal Government] together with its EU partners will work towards better protection of children in armed conflict, and to this purpose
- will demand respect for international humanitarian law and for other norms on the protection of children in armed conflicts;
- will, in multi- and bilateral dialogues, request States which have not yet ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict to do so.
In 2007, in its initial report to the Committee on the Rights of the Child under the 2000 Optional Protocol on the Involvement of Children in Armed Conflict, Germany stated:
1. The fight against recruitment of child soldiers is an important concern within the Federal Government’s international human rights policy. The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict plays a crucial role therein. Germany took an active part in negotiating the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Hence the Federal Republic of Germany already signed the Optional Protocol in the year 2000, and it was ratified in 2004.
2. Both in the United Nations and in the European Union (EU) context as well as bilaterally, the Federal Government firmly supports an improvement in the protection of children in armed conflicts, including implementation of the Optional Protocol and its application if possible on a worldwide basis.
10. On deposit of the instrument of ratification, Germany made the following declaration:
The Federal Republic of Germany hereby declares that it regards a minimum age of 17 years as binding for commencement of voluntary service as a soldier in its armed forces within the meaning of article 3, paragraph 2, of the Optional Protocol. Persons under 18 years of age are recruited to the armed forces solely for the purpose of beginning military training.
Protection of volunteers under the age of 18 years, within the context of their decision to enter the armed forces, is ensured, inter alia, by virtue of the consent that has to be given by their statutory representatives and by the mandatory requirement of presentation of their identity card or passport as reliable proof of their age.
11. This means that volunteers under the age of 18 years are not allowed to perform any functions outside military training, meaning functions where they could be forced to use arms. In particular, they are not allowed to be deployed for armed guard duty. The use of arms by volunteers is to be confined in the case of volunteers under the age of 18 years solely to training and is to be placed under strict supervision.
12. In a letter dated 9 September 2004 from the State Secretary in the Federal Ministry of Defence (annex I) this directive was transmitted to the Bundeswehr (Federal Armed Forces) via the Director of the Armed Forces Staff.
13. Reference is also made in this letter to the existing directive by virtue of which volunteers under 18 years of age are under no circumstances allowed to be involved in Bundeswehr (Federal Armed Forces) operations.
14. Pursuant to section 1, subsection (1), of the Conscription Act, all men are liable to military service upon reaching the age of 18 years. However, the Conscription Act gives young men with German nationality the opportunity, on attaining the age of 17 years, to make an application for early recruitment to basic military service (sect. 5 (1a)). Consent of the conscript’s statutory representative is needed for this. The same requirement applies when a 17-year-old is commissioned with the service status of temporary-career volunteer.
15. The first step of so-called military ascertainment is the pre-induction examination. This examination will decide whether, and if so for which tours of duty, a conscript can be brought in for deployment in the armed forces. Pursuant to section 16, subsection (3), of the Conscription Act, the pre-induction examination takes place at the earliest six months before attainment of the age of 18 years; so far as an application has been made, with the consent of the applicant’s statutory representative, for early recruitment to basic military service, this examination may take place six months before the applicant has attained the age of 17 years.
16. Since on principle it is permissible in Germany to recruit volunteers for service in the armed forces as soon as they have attained the age of 17 years, it is mandatory to apply the safeguards pursuant to article 3, paragraph 3, of the Optional Protocol. This happens in Germany as set out as follows:
- Regarding subparagraphs 3 (a) and (b): pursuant to section 5, subsection (1a), of the Conscription Act, the military recruitment authorities (i.e. authorities entrusted, inter alia, with the pre-induction examination, recruitment to military service and monitoring, of persons liable to military service) are under an obligation to restrict conscription – for the purpose of undergoing basic military service – only to such persons under the age of 18 years who have already attained the age of 17 years and who have also made the relevant application with the consent of their statutory representative. This restriction has been made the focus of attention in a directive issued by the Federal Ministry of Defence to all military recruitment authorities. There is general awareness of this restriction on the part of the military recruitment authorities. The application and the statutory representative’s declaration of consent are placed on record in the personnel files;
- Regarding subparagraph 3 (c): when the pre-induction examination has taken place and availability for military service has been ascertained, applicants who are still minors will be given an instruction sheet by the military recruitment authority (annex II), giving them comprehensive information on the duties involved in military service. In particular, their attention is drawn to the fact that the use of arms is confined solely to training and that there is no question of their being placed on armed guard duty. In addition to this, each military formation deploying a conscript who has not yet attained the age of 18 years is given a special instruction letter containing information from the military recruitment authority to the effect that, in accordance with the Optional Protocol, the conscript is not to be brought into operations that might foreseeably lead to armed conflicts (annex III). Corresponding orders ensure that minors will, in no event, take part in hostilities;
- Regarding subparagraph 3 (d): through a directive issued by the Federal Ministry of Defence, it is ensured that, at the pre-induction examination, a person liable to military service has to present proof of his identity by producing an identity card or a passport. This ensures that reliable proof of age is provided before commencement of service.
Articles 4 to 6
17. The situation described in article 4 does not exist in the Federal Republic of Germany.
18. Given that German law already corresponds to the provisions of the Optional Protocol, implementation has been confined to the directives, enclosed in the annex, where explicit reference is made to the Optional Protocol.
In 2008, in a statement before the Committee on the Rights of the Child during the consideration of the initial report of Germany under the Optional Protocol on the Involvement of Children in Armed Conflict, a representative of Germany stated:
5. The minimum age for voluntary enlistment in the German armed forces had been set at 17 in order to make it possible for young people to join up directly after leaving school, thus avoiding protracted waiting periods during which they would be left without any productive activity. There were currently 472 soldiers aged 17; 263 were temporary career volunteers, which meant that they had enlisted for two years or longer, and 209 were basic military service conscripts, who had signed up for nine months. Soldiers under 18 were not allowed to carry weapons. They could not be deployed anywhere where there was a risk of armed conflict, and could not be used for guard duty, as that would involve carrying a weapon. They only came into contact with weapons when they were in training, and thus under supervision, and when the exercises were finished they returned their weapons. The alternative report that had been submitted to the Committee by non-governmental organizations (NGOs) unfortunately depicted that situation in a somewhat misleading light. In any event, the author of that report had stated that he did not consider Germany to have violated its international obligations under articles 1 and 2 of the Optional Protocol. Notwithstanding implications to the contrary in the alternative report, the minimum age of 17 was established in a publicly accessible decree, which had appeared in the Federal Law Gazette.
6. Soldiers aged 17 were able to leave the military without having to justify their decision. They could do so either by making use of revocation or withdrawal mechanisms, or by attaining the status of conscientious objectors. Persons under the age of 18 could not join the military without the consent of both parents or their legal guardians.
7. In accordance with the Code of Crimes against International Law and the Rome Statute of the International Criminal Court, Germany recognized extraterritorial jurisdiction for the war crime of recruitment of children under the age of 15.
In 2010, in its third and fourth periodic reports to the Committee on the Rights of the Child, Germany stated:
[T]he Federal Republic of Germany declared when depositing the ratification document that the commencement of voluntary service as a soldier in the armed forces is permissible from the age of 17 onwards. Persons under the age of 18 are recruited into the armed forces solely for the purpose of commencing military training. … The protection of under-18 volunteers on their decision to enter the armed forces is ensured inter alia by the need to obtain the consent of their legal guardian and the indispensable requirement that they present an identification card or passport as reliable proof of their age.