Practice Relating to Rule 136. Recruitment of Child Soldiers
Canada’s LOAC Manual (1999) provides, with respect to non-international armed conflicts in particular: “Children are to receive such aid and protection as required including: … a ban on their enlistment … while under the age of fifteen”.
Canada’s LOAC Manual (2001) states in its chapter on non-international armed conflicts: “[The 1977 Additional Protocol II] provides that children are to receive such aid and protection as required including: … c. a ban on their enlistment or participation in the hostilities while under the age of fifteen.”
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act.
In 2013, in the Sapkota case
, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court
… is endorsed in Canada as a source of customary law.”
At the 27th International Conference of the Red Cross and Red Crescent in 1999, Canada pledged “to promote the adoption of national and international standards prohibiting the military recruitment … in armed conflicts of persons under 18 years of age”.
In 2012, in its written replies to the issues raised by the Committee on the Rights of the Child with regard to Canada’s combined third and fourth periodic reports, Canada stated:
Extraterritorial jurisdiction for violations of the provisions of the  OPAC [Optional Protocol on the Involvement of Children in Armed Conflict]
186. Canada generally does not extend its jurisdiction to prosecute offences committed by Canadians or permanent residents abroad unless required to do so by treaty obligations. No such justification exists in the case of violations of the provisions of the OPAC.
187. Nevertheless, Canada adopted the Crimes Against Humanity and War Crimes Act in 2000 implementing the Rome Statute, by which authors of genocide, crimes against humanity and war crimes, including that of “conscripting or enlisting children under the age of 15 years or using them to participate actively in hostilities,” may be prosecuted for that offence if present in Canada after the time the offence is alleged to have been committed.
Age of voluntary recruitment
188. The Canadian Forces are comprised of three components: the Regular Force; the Reserve Force; and the Special Force. … The minimum age of enrolment into most of the components of the Canadian Forces is 17 years of age. However, individuals may be enrolled in the Royal Military College of the Canadian Forces at age 16.
189. Canada is not currently taking measures to give priority in the recruitment process to those who are the oldest. The Canadian Human Rights Act prohibits discrimination on the basis of age in relation to employment, except where the age requirement is a bona fide occupational requirement. It also permits termination or refusal of employment on the basis of failure to reach a minimum age provided for in a law or regulation that applies to that employment. Canada also has other legislation, the Canada Labour Code and the Canada Labour Standards Regulation, which protects children under the age of 18 from certain types of employment and does not allow for employment where the work would likely be injurious to their life, health, education or welfare.
190. The Canadian Forces provide valuable education, training and employment opportunities to young Canadians. As provided by section 34 of the National Defence Act
, the Canadian Forces do not under any circumstances deploy persons under the age of 18 into areas where hostilities are taking place. The Canadian Forces has further implemented a policy requiring that Canadian Forces members under the age of 17 must be enrolled in a full time educational program.
In 2013, in a statement during a UN Security Council open debate on the protection of civilians in armed conflict, the deputy permanent representative of Canada stated: “Amidst this crisis [in Mali], there are disturbing reports of … crimes against the local population, including … accounts of rebel groups recruiting child-soldiers.”