Practice Relating to Rule 137. Participation of Child Soldiers in Hostilities
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.”
Germany’s Law Introducing the International Crimes Code (2002) punishes anyone who, in connection with an international or non-international armed conflict, “uses [children under the age of 15 years] to participate actively in hostilities”.
Upon ratification of the 1989 Convention on the Rights of the Child, Germany stated that it “regrets the fact that … even 15-year-olds may take a part in hostilities as soldiers, because this age limit is incompatible with the consideration of a child’s best interests”.
In 2001, in its second periodic report to the Committee on the Rights of the Child, Germany stated:
2. Children in armed conflicts (art. 38), their physical and psychological recovery and social reintegration (art. 39)
807. The protection of children in armed conflicts is guaranteed by article 77 of the Protocol Additional to the Geneva Conventions of 1949, and relating to the Protection of Victims of International Armed Conflicts and article 4 of the Additional Protocol relating to the Protection of Victims of Non-International Armed Conflicts. Both of these protocols were ratified by the Federal Republic of Germany in 1990 and thus became national law. The Federal Government contributes to spreading knowledge about the rules of international humanitarian law in armed conflicts, especially by relevant training in the armed forces. Above and beyond this, it provides general information that is mainly used in training staff and helpers in the medical and other aid organizations.
International efforts of the Federal Government
808. In its declaration made upon depositing the ratification certificate instrument for the Convention, the Federal Government stated that it regretted that according to article 38, paragraph 2, of the Convention children as young as 15 may take part in hostilities as soldiers. It was and is of the opinion that this age limit is not compatible with the well-being of the child within the meaning of article 3, paragraph 1, of the Convention. Furthermore, it declared that it would not make use of the opportunity of setting this age limit at 15 opened up by the Convention.
809. Accordingly, in the period under review the Federal Government advocated for raising the age limit to 18 with reluctant countries, both in bilateral talks and together with EU partners.
811. In the negotiations on the Optional Protocol to the Convention on children in armed conflict, the Federal Government advocated the minimum age of 18 for direct participation in fighting. From the point of view of the Federal Government it was also desirable to establish the minimum age of 18 also for indirect participation in action.
812. On 21 January 2000 the working group of the Commission on Human Rights in Geneva adopted the draft of the Optional Protocol by consensus. The agreement on the draft should be welcomed from the point of view of the Federal Government because it represents clear progress over the original provisions of the Convention. The draft meets the demand of the German Bundestag that the Federal Government support the minimum age of 18 for participation in fighting. The Optional Protocol specifies the minimum age for direct participation in fighting, for State and non-governmental forces, at 18.
813. Within the context of the negotiations on the ILO Convention (No. 182) concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, an application for amendment submitted by Germany led to the inclusion of child soldiers in the agreement.
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:
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.
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 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.
In 2008, a representative of Germany stated before the Committee on the Rights of the Child during the consideration of the initial report of Germany under the 2000 Optional Protocol on the involvement of children in armed conflict:
The minimum age for voluntary enlistment in the German armed forces had been set at 17 … 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.
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. Participation in hostilities is ruled out.