Norma relacionada
Australia
Practice Relating to Rule 136. Recruitment of Child Soldiers
Australia’s Defence Instructions (General) (2005) states: “[T]he ADF [Australian Defence Force] will continue to observe a minimum voluntary recruitment age of 17 years. The exception to this rule is entrants to military schools, apprentices and members of Service cadet schemes.”
Australia, Defence Instructions (General) PERS 33-4, Recruitment and employment of members under 18 years in the Australian Defence Force, Department of Defence, Canberra, 4 July 2005, § 4.
The Defence Instructions further states that “[t]he recruitment of all minors must be genuinely voluntary”.
Australia, Defence Instructions (General) PERS 33-4, Recruitment and employment of members under 18 years in the Australian Defence Force, Department of Defence, Canberra, 4 July 2005, § 8.
Australia’s LOAC Manual (2006) states:
There is a minimum voluntary recruitment age of 17 years, the exception being for entrants to military schools, apprentices and members of Service cadet schemes. All feasible measures are to be taken to ensure minors are not deployed to an area of operations.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.51.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s Defence Instructions (General) (2008) states:
Consistent with Article 3 of the Protocol [2000 Optional Protocol on the Involvement of Children in Armed Conflict], which allows for the recruitment of persons less than 18 years of age, the minimum age for recruitment into the ADF [Australian Defence Force] is 17 years of age. In addition, the recruitment of minors into the ADF must take into account the following obligations:
a. the recruitment of the minor must be genuinely voluntary – minors must not be compulsorily recruited into the ADF.
Australia, Defence Instructions (General) PERS 33-4, Management and administration of Australian Defence Force members under 18 years of age, Department of Defence, Canberra, 22 April 2008, § 14.
In the list of definitions provided with these Instructions, a “minor” is defined as “a person under the age of 18 years”.
Australia, Defence Instructions (General) PERS 33-4, Management and administration of Australian Defence Force members under 18 years of age, Department of Defence, Canberra, 22 April 2008, Annex A.
This edition of Defence Instructions (General) replaces the Defence Instructions (General) (2005).
Australia’s Criminal Code Act (1995), as amended to 2007, states with respect to serious war crimes that are committed in the course of an international armed conflict:
268.68 War crime – using, conscripting or enlisting children
National armed forces
…
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator conscripts one or more persons into the national armed forces; and
(b) the person or persons are under the age of 15 years; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
(3) A person (the perpetrator) commits an offence if:
(a) the perpetrator enlists one or more persons into the national armed forces; and
(b) the person or persons are under the age of 15 years; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 10 years.
Other armed forces and groups
…
(5) A person (the perpetrator) commits an offence if:
(a) the perpetrator conscripts one or more persons into an armed force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 years; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
(6) A person (the perpetrator) commits an offence if:
(a) the perpetrator enlists one or more persons into an armed force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 years; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 10 years.
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.68, pp. 345–347.
The Criminal Code Act also states with respect to war crimes that are other serious violations of the laws and customs applicable in a non-international armed conflict:
268.88 War crime – using, conscripting or enlisting children
National armed forces
…
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator conscripts one or more persons into the national armed forces; and
(b) the person or persons are under the age of 15 years; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 15 years.
(3) A person (the perpetrator) commits an offence if:
(a) the perpetrator enlists one or more persons into the national armed forces; and
(b) the person or persons are under the age of 15 years; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 10 years.
Other armed forces and groups
…
(5) A person (the perpetrator) commits an offence if:
(a) the perpetrator conscripts one or more persons into an armed force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 years; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 15 years.
(6) A person (the perpetrator) commits an offence if:
(a) the perpetrator enlists one or more persons into an armed force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 years; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 10 years.
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.88, pp. 363–365.
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including “using, conscripting or enlisting children” in both international and non-international armed conflicts.
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, §§ 268.68 and 268.88.
In 2008, 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, Australia stated:
6. Australia signed the Optional Protocol on 21 October 2002, and ratified it in September 2006. It entered into force for Australia on 26 October 2006, pursuant to article 10(2) of the Optional Protocol.
…
15. … Australia considers that the recruitment and use of persons under 18 as soldiers remains a serious problem for the international community. …
…
32. Consistent with the Optional Protocol and Australia’s declaration made at the time of ratification, which allows for the recruitment of persons under 18 years of age subject to certain conditions, the ADF continues to observe a minimum voluntary recruitment age of 17 years. …
…
46. … [T]he Commonwealth Criminal Code, sections 268.68 and 268.88 make the war crime of using, conscripting or enlisting children in an armed conflict an offence under Australian law. Section 268.68 refers to international armed conflict and section 268.88 refers to non-international armed conflict and both provisions have extraterritorial effect. The various offences under these sections carry maximum penalties of 17 years, 15 years and 10 years imprisonment.
Australia, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 15 September 2010, UN Doc. CRC/C/OPAC/AUS/1, submitted October 2008. §§ 6, 15, 32 and 46.
In 2009, in a ministerial statement before the House of Representatives on the humanitarian crisis in Sri Lanka, Australia’s Minister for Foreign Affairs stated: “[T]here remains much human suffering among the civilians trapped in the conflict zone. Reports of abuses from within the conflict zone include accounts of … forced recruitment of children … by the LTTE [Liberation Tigers of Tamil Eelam].
Australia, House of Representatives, Minister for Foreign Affairs, Ministerial statement: Humanitarian Crisis in Sri Lanka, Hansard, 12 May 2009, p. 3502.
In 2009, in response to a question on notice before the Senate concerning whether the Australian Government intended to raise the minimum age of recruitment into its armed forces to 18 years of age, Australia’s Minister for Defence stated:
No. Current policy allows for a minimum recruitment age of 17 years. Increasing the recruitment age to 18 years would restrict the quality and quantity of available candidates, as many potential recruits, particularly from those States and Territories where students finish school at 17 years of age, would find alternative employment and career paths at the conclusion of their secondary schooling.
Australia, Senate, Minister for Defence, Question on notice: Australian Defence Force, Hansard, 17 August 2009, p. 5111.
In 2010, in a statement before the UN Human Rights Council, Interactive Dialogue with the Special Rapporteur on Myanmar, the representative of Australia stated: “Australia shares the Special Rapporteur’s concerns in relation to the impact of ongoing conflict on … the recruitment of child soldiers by various parties.”
Australia, Statement by its representative before the UN Human Rights Council, Interactive Dialogue with the Special Rapporteur on Myanmar, 15 March 2010.
In 2010, in a statement on the Democratic Republic of the Congo (DRC) before the UN Human Rights Council, the representative of Australia stated:
[Australia is] concerned that certain elements within the DRC’s armed forces continue to … recruit children. We support the Experts’ recommendation that the Government should prepare and implement an action plan for the prevention of recruitment … of child soldiers.
Australia, Statement by its representative before the UN Human Rights Council, 13th Regular Session, Interactive Dialogue with Experts on the Situation in the Democratic Republic of the Congo, 24 March 2010.
In 2010, in a statement on Somalia before the UN Human Rights Council, the representative of Australia stated:
Australia … [is] deeply concerned by his [the Independent Expert’s] observation that the situation for … children in Somalia has become more precarious. In particular, we note the Independent Expert’s report of … the continued recruitment … of child soldiers. We support the Independent Expert’s call for all parties in the conflict – government and opposition groups – to respect basic principles of human rights and humanitarian law.
Australia, Statement by its representative before the UN Human Rights Council, 13th Regular Session, Interactive Dialogue on the Situation of Human Rights in Somalia, 24 March 2010.
