Practice Relating to Rule 136. Recruitment of Child Soldiers
France’s LOAC Manual (2001) provides: “It is prohibited to recruit persons under 15 into the armed forces.”
The manual considers such recruitment “a war crime”.
France’s Penal Code (1992), as amended in 2010, states in its section on war crimes common to both international and non-international armed conflicts:
Conscripting or enlisting children under the age of eighteen years into armed forces or armed groups … is punishable by 20 years’ imprisonment. This provision constitutes no obstacle to the voluntary enlistment of children over the age of fifteen years.
In 2003, upon ratification of the 2000 Optional Protocol on the Involvement of Children in Armed Conflict, France made the following declaration:
France hereby declares that it recruits only volunteers aged at least 17 who have been informed of the rights and duties involved in military service and that the enlistment of recruits under the age of 18 is valid only with the consent of their legal representatives.
In 2003, in its second periodic report to the Committee on the Rights of the Child, France stated:
France is very active in the development of instruments relating to the rights of the child. It actively supported the adoption of the Optional Protocols to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography … and on involvement of children in armed conflicts.
In 2006, 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, France stated:
Article 1 - Direct participation in hostilities
4. Under article 20, paragraph 4, Act No. 2005-270 of 24 March 2005, the Members of the Armed Forces (General Regulations) Act, no one who is not at least 17 years of age may become a member of the armed forces. In fact, no minor below the age of 18 participates in operations abroad, both because of the length of the probationary period (six months) and because of the initial training given (four to seven months minimum depending on the area of training).
Article 2 - Compulsory recruitment
6. Act No. 97-1019 of 28 October 1997 on national service reform brought conscription in France to an end. Article 1 of the Act added a new article L. 112-2 to the National Service Code, which suspends conscription “for all French persons born after 31 December 1978 and those within the same group on the register”. This article specifies, however, that conscription “shall be reinstated at any moment by law, when the conditions for the defence of the nation or the objectives laid down for the armed forces so require”.
7. Minors cannot in any event be affected by any reinstatement of national service. The currently suspended article L. 3 of the National Service Code provides that “male French citizens must perform their national service between the ages of 18 and 50”.
Article 3 - Voluntary recruitment
8. At the time of ratification of the Protocol, France deposited a binding declaration stating that “France declares that it recruits only volunteers aged at least 17 who have been informed of the rights and duties involved in military service, and that the enlistment of recruits under the age of 18 is valid only with the consent of their legal representatives”. The general staff and the legal services of the Ministry of Defence jointly drew up this binding declaration, which lists the protective measures France has taken in relation to the recruitment of minors for military service, whether French or of other nationality (Foreign Legion).
9. Accordingly, under article 20, paragraph 4, of the Members of the Armed Forces (General Regulations) Act, “no one who is not at least 17 years of age may become a member of the armed forces – 16 years of age in order to receive general and vocational training as a volunteer in the armed forces or as a pupil in a military school”. Persons aged under 16 cannot, under any circumstances, take part in activities other than those which form part of general and vocational training.
10. In accordance with article 83, paragraph 1, of the Act, persons wishing to serve in the Foreign Legion are eligible only if they are aged at least 17.
Safeguards relating to voluntary recruitment other than to the Foreign Legion
11. In accordance with article 3, paragraph 3, of the Protocol, French legislation provides for a specific voluntary recruitment procedure for under-age members of the armed forces. It is necessary to ensure not only that unemancipated minors actually desire to be recruited, but also that their legal representatives consent (article 20 of the Act).
Specific safeguards relating to voluntary recruitment to the Foreign Legion
12. Regarding members of the armed forces of other nationalities, article 83, paragraph 2, of the Act provides that unemancipated minors must, in principle, give evidence of their identity and the consent of their legal representative.
13. The military authorities can accept the enlistment of a candidate in the absence of the necessary supporting documents only in exceptional cases and after detailed administrative inquiry into the candidate’s background, in collaboration with the authorities of the country of origin.
14. Everything is done to verify the age of the candidates during the phase prior to the conclusion of a recruitment contract, which is known as the “selection and recruitment phase”. The need for written parental authorization for the recruitment of any minor facilitates verification. Moreover, interviews offer an opportunity to investigate the identity and past of the candidates and thus confirm their real age.
15. Where the candidates do not have the necessary supporting documents, they must in practice provide information which can be verified. Their files are then subjected to detailed scrutiny so that the candidates can be identified without risk of error or confusion. Precise knowledge of the identity of each candidate is the foundation for all recruitment.
16. In the case of real or serious doubts about the age of a candidate, even when all other conditions for recruitment have been fulfilled, the application is deferred. This procedure allows the candidate to reapply for recruitment at a later date.
17. Finally, the consequences of a fraudulent declaration at the time of recruitment act as deterrents. When minors misrepresent their age in order to be recruited, and, as a result, bypass the necessary parental authorization, they risk automatic termination of their contracts. It is then impossible for them to undergo the recruitment process again.
18. The Foreign Legion, when accepting the recruitment of a candidate, “accepts his or her past”. Through their statements, candidates must supply established and reliable information, which is systematically checked by the Foreign Legion’s Statistics and Protection Division. The moral responsibility borne by the Foreign Legion requires that candidates who volunteer to serve France show complete transparency as to their identity and their past.
19. For information purposes, the Foreign Legion does not currently number any minors within its ranks, despite the possibility of recruitment from the age of 17. Furthermore, the recruitment of under-age candidates is an altogether marginal phenomenon within Foreign Legion recruitment. Around 7,500 candidates on average apply for recruitment each year to fill the 1,000 posts available. The recruitment of minors accounts for at most only two to four enlistments a year.
20. Several schools that fall directly under the Ministry of Defence provide secondary education to minors; however, such schools are not considered to be military schools, insofar as they do not provide military training. The Air Force Technical Training School is a military school that accepts minors who wish to become air force NCO technicians. The school is open to pupils from the age of 15, but they can sign up for military recruitment only from their sixteenth birthday, for the purpose of receiving general and vocational training, in accordance with the provisions of the Members of the Armed Forces (General Regulations) Act. For information purposes, 177 under-age members of the armed forces were recruited to the School in 2005. This figure is identical to that of 2004.
Article 4 - Armed groups distinct from the armed forces
21. The French Government does not have any particular information to convey regarding article 4 of the Protocol, as there are no active armed groups distinct from the national army in France.
22. Because of its deep involvement in the campaign against the recruitment of child soldiers, the Government keeps a close watch on the possible recruitment of minors by foreign armed groups on French territory.
Article 7 - Financial assistance and technical cooperation among States
26. France is involved in assistance and cooperation on the issue of children in armed conflicts both at the United Nations and within the European Union.
Activities within the framework of the United Nations Security Council
27. On numerous occasions since 1999 France has campaigned for the United Nations Security Council to put the issue of children in armed conflicts on its agenda. The Council has adopted six resolutions in this field relative to the recruitment of child soldiers: a call for the demobilization of children, the creation of a “blacklist” of parties to armed conflicts which recruit or use child soldiers, laying of the groundwork for targeted sanctions, the creation of a monitoring mechanism, the immediate implementation of the monitoring mechanism and the creation of a working group.
In 2008, the Minister of Foreign and European Affairs of France stated:
The tragedy of child soldiers forces us to be determined and uncompromising. In spite of the countless and inevitable difficulties, of which we are all aware, our sole objective should be the eradication of this barbarous phenomenon.
The establishment in 2005 of the Security Council Working Group on Children and Armed Conflict has already made it possible for us to act. That innovative and profoundly original mechanism – in which France had a major role in establishing and over which we have had the honour to preside since its inception – has resulted in tangible progress. Thousands of children have been freed and returned to civilian life – especially in Burundi, Côte d’Ivoire, the Democratic Republic of the Congo and numerous other countries, which I shall forego naming. Recommendations have been made with regard to 10 of the 12 situations on the agenda. The Working Group will soon take up the last two pending cases, namely, those of the Philippines and Colombia. Lastly, for the first time, we are going to remove a country from that sad list — Côte d’Ivoire.
In spite of those significant successes, I do not wish to give the impression that all the problems are being resolved. We still have much to do. There is the reappearance of children in the battlefields of Sri Lanka, the Democratic Republic of the Congo and Burma. I recently visited those countries, and I could tell of the horror still fresh in my mind.
Just today, the Central African Republic and Afghanistan were placed on the list of situations of concern. There are many things to remind us daily of the forever unfinished nature of this struggle. As always, the international community must remain mobilized and redouble its efforts.
France would in particular like to see a strengthening of the deterrent character of the Working Group. Its members must not shy away from adopting strong targeted sanctions. Otherwise, what are we here for? This is an issue that pertains to its credibility. There is no credible deterrence without real sanctions.
International criminal justice — the International Criminal Court or other special tribunals — has made essential progress this year through remarkable actions, especially against Germain Katanga, Charles Taylor and Colonel Mathieu Ngudjolo, among others, charging them with the use and recruitment of children under the age of 15 …
… The Slovene presidency of the European Union has decided to make children in armed conflict its priority in the area of human rights, a decision about which I am delighted.
France, for its part, organized together with UNICEF, in February 2007, a ministerial conference entitled “Free Children from War,” at which 59 countries signed on to the Paris Commitments to protect children unlawfully recruited or used by armed forces or armed groups, a collection of principles and good practices that will, we hope, significantly strengthen our efforts. Following that success, we organized, again together with UNICEF, a ministerial follow-up conference in October 2007, at which seven more countries joined the Paris Commitments.
In 2009, the Minister of Foreign and European Affairs of France, in a political statement calling for the respect for international humanitarian law and giving examples of serious violations that had recently happened in several armed conflicts around the world, stated: “Children, some less than 10 years old, are enlisted as soldiers as well as sex slaves.”