Practice Relating to Rule 136. Recruitment of Child Soldiers
Spain’s LOAC Manual (1996) provides: “All possible means shall be taken, within the limits of military necessity, to avoid recruiting children under 15.”
Spain’s LOAC Manual (2007) states: “All feasible measures must be taken to prevent the recruitment of children under eighteen years of age. … States are bound to adopt penal legislation to prevent the recruitment and use of children under the age of eighteen in armed conflicts.”
Under Spain’s Penal Code (1995), breaches of international treaty provisions providing for special protection of children are punished.
Spain’s Penal Code (1995), as amended in 2010, states:
Anyone who [commits any of the following acts] during armed conflict shall be punished with three to seven years’ imprisonment:
3. … [V]iolating the prohibitions … regarding the special protection owed to … children as stipulated by the international treaties to which Spain is a party and, in particular [with regards to] recruiting or enlisting children under the age of eighteen.
Spain’s Law on the Military Career (2007) states under the heading “General Prerequisites for Admission to the Military Education and Training Centres”: “Underage persons may … apply to take the examinations in the year of their eighteenth birthday, although their admittance and rank designation shall remain on hold until they become eighteen.”
The Law also states: “The Government … shall establish through royal decree the rules required for the general call for compulsory reservists applicable to those between 19 and 25 years of age.”
Upon ratification of the 1989 Convention on the Rights of the Child, Spain expressed its disagreement at the Convention “permitting the recruitment and participation in armed conflict of children having attained the age of 15 years”.
In 2006, in its initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, Spain stated:
5. The minimum age of entry into the Spanish armed forces is 18 years, as attested by information contained in the national identity document for Spanish citizens or the equivalent document issued by the Spanish authorities to foreign citizens.
6. As stipulated in the preamble to the Armed Forces Personnel (Regulations) Act, Act No. 17/1999, compulsory military service is being abolished and a new system introduced in which all military personnel will be professional members of the armed forces.
7. Article 1, paragraph 1, of the same Act sets out its aim and scope, stipulating:
The aim of the present Act is to establish regulations for professional military personnel, to determine the command staff and maximum troop levels and to set out the military training system and the procedures for enrolment. It also aims to regulate the enlistment of additional personnel to the Armed Forces when required by the exigencies of the defence of Spain and its interests, on a voluntary basis or in accordance with article 30 of the Constitution. This is to ensure that the Armed Forces are in a position to perform their mission as defined in article 8 of the Constitution.
Article 63, paragraph 2, of this legal instrument states that the minimum age of admission to military training institutions is 18 years:
In order to apply for entry, candidates must hold Spanish nationality, not be deprived of civil rights, demonstrate good civil conduct as established in the Civil Conduct (Issuance of Certificates and Reports) Act, Act No. 68/1980 (1 December), have no previous criminal convictions, not have been discharged for disciplinary reasons from any public office or disqualified permanently from exercising public functions, not have been accorded the status of conscientious objector or be in the process of applying for such status and be 18 years of age, and must also comply with the regulations setting upper age limits, possess the required qualifications or be able to obtain them within the application period and not exceed the maximum number of application attempts.
9. Royal Decree No. 1735/2000 (20 October), adopting the General Regulations on Enlistment and Promotion in the Armed Forces, gave effect to the provisions of Act No. 17/1999. Article 15, paragraph 1 (b), of this Royal Decree sets out the condition that all candidates must “be at least 18 years old on enrolment at the military training centre, and not exceed the age limits established for each case in the present General Regulations”.
10. Attention is also drawn to the stipulations in article 68 bis, paragraph 3, of Act No. 17/1999, subsequently introduced by Act No. 32/2002 (5 July), concerning the enlistment of foreign nationals to professional military service, which states that candidates must fulfil the following requirements:
- They must have legal residence in Spain;
- They must not be liable to be refused entry to the territory of countries with which Spain has signed an agreement to that effect;
- They must have reached majority age as defined in their national legislation; and
- They must have no previous criminal convictions in Spain or in former countries of residence for offences under Spanish law.
11. The requirements for enlistment in the armed forces are comprehensively defined in Spanish legislation; they include a complete ban on the enlistment of any persons under 18 years of age, which in the case of foreign nationals is doubly enforced since, in addition to being required to be at least 18 years old, they must also be legally of age under their own national legislation.
[emphasis in original]
Spain further stated:
Spain was one of the group of countries which considered that the protection given in the Convention on the Rights of the Child was insufficient in this area and supported a stronger stand against the military recruitment of minors. To that end, it made the following declaration:
Spain, wishing to make common cause with those States and humanitarian organizations which have manifested their disagreement with the contents of article 28, paragraphs 2 and 3, of the Convention, also wishes to express its disagreement with the age limit fixed therein and to declare that the said limit appears insufficient, by permitting the recruitment and involvement in armed conflict of children having attained the age of 15 years.