Practice Relating to Rule 137. Participation of Child Soldiers in Hostilities
France’s LOAC Manual (2001) provides: “Only children aged at least 15 can participate in hostilities.” It adds: “To make them participate directly in hostilities is a war crime.” The manual states, however: “A child who does take part in an armed conflict shall benefit, because of his military activity, from the status of combatant and of prisoner of war in case of capture.”
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: “Using [children under the age of eighteen years] to participate actively in hostilities is punishable by 20 years’ imprisonment.”
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).
5. The concept of direct or active participation in hostilities is not the subject of a detailed definition, whether in treaty law or in French domestic law. Thus the concept is only mentioned in article 3 common to the Geneva Conventions of 12 August 1949. In French law, it is referred to in the Criminal Code, part VI, article 436-1, under which participation in mercenary activity is illegal. Nevertheless, this legal concept is not subject to particular debate. As part of work by the International Committee of the Red Cross and the T.M.C. Asser law institute in the Netherlands, French experts are actively involved in the international process of drafting guiding principles in this field. Two seminars were organized in 2004 and 2005, and the work of this group is expected to continue in 2006.
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 … 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.