Tilburg University. Affecting child soldiering van Lit, Niels. Document version: Publisher's PDF, also known as Version of record

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1 Tilburg University Affecting child soldiering van Lit, Niels Document version: Publisher's PDF, also known as Version of record Publication date: 2014 Link to publication General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. - Users may download and print one copy of any publication from the public portal for the purpose of private study or research - You may not further distribute the material or use it for any profit-making activity or commercial gain - You may freely distribute the URL identifying the publication in the public portal Take down policy If you believe that this document breaches copyright, please contact us providing details, and we will remove access to the work immediately and investigate your claim. Download date: 16. aug. 2018

2 AFFECTING CHILD SOLDIERING a

3 Affecting Child Soldiering The interaction between international law and the domestic legal systems of Sierra Leone, The Philippines and Sri Lanka W.N.A. van Lit ISBN: Published by: aolf Legal Publishers (WLP) PO Box AH Oisterwijk The Netherlands No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission of the publisher. Whilst the authors, editors and publisher have tried to ensure the accuracy of this publication, the publisher, authors and editors cannot accept responsibility for any errors, omissions, misstatements, or mistakes and accept no responsibility for the use of the information presented in this work. W.N.A. van Lit (text)/wlp layout

4 AFFECTING CHILD SOLDIERING THE INTERACTION BETWEEN INTERNATIONAL LAW AND THE DOMESTIC LEGAL SYSTEMS OF SIERRA LEONE, THE PHILIPPINES AND SRI LANKA Proefschrift ter verkrijging van de graad van doctor aan Tilburg University op gezag van de rector magnificus, prof. dr. Ph. Eijlander, in het openbaar te verdedigen ten overstaan van een door het college voor promoties aangewezen commissie in de aula van de Universiteit op maandag 15 december 2014 om uur door WILLEM NELIS ADRIANUS VAN LIT geboren op 25 september 1984 te 's-hertogenbosch.

5 Promotiecommissie: Promotor: Prof. dr. W.J.M. van Genugten Copromotor: Dr. mr. C.R.J.J. Rijken Overige leden: Prof. mr. dr. K. Arts Prof. dr. mr. N.M.C.P Jägers prof. dr. W. Vandenhole Prof. mr. P. Vlaardingerbroek

6 List of Contents List of Acronyms and Abbreviations 8 Acknowledgements 11 Chapter 1 The Interaction between International Law and the Domestic Legal Systems of Sierra Leone, the Philippines and Sri Lanka: Introductory Remarks and Research Design 1.1 The Practice of Child Soldiering: History, Causes and Consequences The International Legal Response to Child Soldiering Research Design Research Problem, Research Aim and Additional Value of this Research Research Question and Theoretical Framework Approach Structure of the Book 25 Part I: The International Legal Framework on the Prohibition of Child Soldiering Chapter 2 Treaties and Soft Law International Humanitarian Law International Human Rights Law Convention on the Rights of the Child Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict African Charter on the Rights and Welfare of the Child Conclusion International Criminal Law The Special Court for Sierra Leone: The Norman Decision The CDF Case on Multiple Recruitment Age Limit and Scope of Tasks Recruitment by National Armed Forces Conclusion International Labour Law ILO Convention Conclusion United Nations Security Council Resolutions on Children and Armed Conflict Evolution of the Focus on Child Soldiering Monitoring and Reporting Reports of the Secretary-General Conclusion Soft Law Instruments Cape Town Principles Paris Commitments and Principles Other Soft Law Instruments 77 v

7 2.6.4 Conclusion Child Soldiering as Human Trafficking The Palermo Protocol Action-Element Purpose-Element The Obligation to Criminalise Human Trafficking Conclusion Conclusion 91 Chapter 3 Monitoring The Application of the International Legal Framework Methodology Criminalisation of the Enlistment, Conscription and Use of Child Soldiers Scope of Criminalisation Jurisdiction and Extradition (Modes of) Liability Child Soldiers as Perpetrators Conclusion International Cooperation Universal Periodic Review Conclusion Education and Awareness-Raising Professionals General Public Children Conclusion Demobilisation, Disarmament and Reintegration of Child Soldiers Creating Circumstances for DDR Substance of DDR Programmes ICRC Conclusion Conclusion: Monitoring 121 Chapter 4 Conclusion: The International Legal Framework 123 Part II: The Domestic Legal Systems of Sierra Leone, the Philippines and Sri Lanka Chapter 5 Introduction and Methodology Introduction Methodology Selection of Case Studies Execution of the Case Studies 134 Chapter 6 Child Soldiering in Sierra Leone Country Context Brief History Civil War 139 vi

8 6.1.3 Child Soldiering in the Civil War The National Legal System Child Soldiering by the Armed Forces The Prohibition of Child Soldiering Attributing Criminal Responsibility Conclusion Child Soldiering by Armed Groups The Prohibition of Child Soldiering Attributing Criminal Responsibility Conclusion Awareness Raising Disarmament, Demobilisation and Reintegration Conclusion: the problem with attributing responsibility 162 Chapter 7 Child Soldiering in the Philippines 7.1 Country Context Brief History The Conflict over the Southern Philippines The National Legal System Prohibition on Child Soldiering by the Armed Forces Prohibition on Child Soldiering by Armed Groups The Special Protection of Children in Armed Conflict Bill Conclusion 192 Chapter 8 Child Soldiering In Sri Lanka 8.1 Country Context Brief History The Conflict with the Tamil Tigers The National Legal System Prohibition on Child Soldiering by the Armed Forces The Minimum Age of Recruitment into the Armed Forces State Responsibility for Child Soldiering by the Karuna Group Conclusion Prohibition on Child Soldiering by Armed Groups Criminal Responsibility for the Enlistment, Conscription and Use of Child Soldiers Rehabilitation of Child Soldiers Conclusion 212 Chapter 9 Conclusion and Reflection Conclusion Developments in the International Legal Prohibition of Child Soldiering Elements of the Prohibition of Child Soldiering in International Law The Relationship between the International Law and the National Laws of Sierra Leone, the Philippines and Sri Lanka Final Reflections 225 Bibliography 231 vii

9

10 List of Acronyms and Abbreviations ACRWC AFRC AHTA AP I AP II APC ASG BIFM Cape Town Principles CPA CRA CRC CDF Committee of Experts DDR programs DVA ECOMOG ECOWAS FARC HRC ICC ICTY ICRC ILO Convention 182 IPEC ILO LTTE Machel report MILF MNLF NPA NGO OP-CRC-AC Palermo Protocol REPPIA Rome Statute RUF African Convention on the Rights and Welfare of the Child Armed Forces of Sierra Leone Act Anti-Human Trafficking Act Additional Protocol I to the Geneva Conventions Additional Protocol II to the Geneva Conventions African People s Congress Abu Sayyaf Group Bangsamoro Islamic Freedom Movement Cape Town Principles and Best Practices Child Protection Act Child Rights Act Convention on the Rights of the Child Civil Defence Forces Committee of Experts on the Application of Conventions and Recommendations Demobilization, Disarmament and Reintegration programs Domestic Violence Act Economic Community of West African States Monitoring Group Economic Community of West African States Fuerzas Armadas Revolucionarias de Colombia Human Rights Council International Criminal Court International Criminal Tribunal for the former Yugoslavia International Committee of the Red Cross ILO Convention 182 concerning the Prohibition a Immediate Action for the Elimination of the Worst Forms of Child Labour International Programme on the Elimination of Child Labour International Labour Organisation Liberation Tigers of Tamil Eelam UN report on the Impact of Armed Conflict on Children Moro Islamic Liberation Front Moro National Liberation Front New People s Army non-governmental organisation Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children Rehabilitation of Persons, Properties and Industries Authority Rome Statute of the International Criminal Court Revolutionary United Front ix

11 SCSL SCSL Statute SCWG TRC TRC Act TVPA UNICEF UNSC UNSG UPR Special Court for Sierra Leone Statute for the Special Court of Sierra Leone Security Council Working Group on Children and Armed Conflict Sierra Leone Truth and Reconciliation Commission Truth and Reconciliation Commission Act Trafficking Victims Protection Act United Nations Children s Fund United Nations Security Council United Nations Secretary-General Universal Periodic Review x

12 Acknowledgements It is near the end of September 2010 and the Florida sun is high up in the sky. I switch on my cell phone that I switched off a couple of minutes ago when entering a ride at Epcot, Disney World; or adventure, in Disney terminology. Moments later, I learn that the one of the biggest adventures of my life is awaiting for me back home, the writing of a PhD thesis. Throughout the process of writing this thesis, many people have been instrumental in finishing this study. Although it is often hard to pinpoint who has contributed to what, I would like to mention a number of them in particular. Conny Rijken and Willem van Genugten, thank you for being two wonderful supervisors. Thank you for your feedback, words of encouragement and, most of all, being there for me along the way at times when I needed your guidance the most. My other colleagues at Tilburg Law School, thank you for discussing my research with me and providing me with valuable input for dealing with the problems that I encountered throughout the research process. But also for offering me distractions: drinks, office outings, wonderful dinners and game nights. I hope, and know, that those will be continued in the future. The members of the reading committee, professor Arts, professor Jägers, professor Vandenhole and professor Vlaardingerbroek, thank you for giving me feedback on the manuscript. Jorine and Patricia, thank you for being two great paranymphs. We met as colleagues at Efteling and although our days together of selling ice cream, renting out ice skates and imagining underground connections between The Flying Dutchman and Dreamflight (and telling those to guests ) have ended, our friendship has remained. I would like to thank my parents for being there for me, no matter what. Niels van Lit Tilburg, November 2014 xi

13

14 Capter 1 The Interaction between International Law and the Domestic Legal Systems of Sierra Leone, the Philippines and Sri Lanka: Introductory Remarks and Research Design Words on paper cannot save children and women in peril. 1

15 Reuters

16 1.1 The Practice of Child Soldiering: History, Causes and Consequences War Child

17 Armies of the Young: child soldiers in war and terrorism Children and War: A historical Anthology Child Soldiers: The Role of Children in Armed Conflict Children: The Invisible Soldiers Child Soldiers: From Violence to Protection Children at War Reimagining Child Soldiers

18 The War Crime of Child Soldier Recruitment The problem of unregistered children is most prevalent in sub-saharan Africa and South Asia, where over 70 percent and 63 percent of births go unregistered in each region, respectively. Report on A Returning Home, Children s Perspectives on Reintegration: A Case Study of Children Abducted by the Lord s Resistance Army in Teso, Eastern Uganda Young Soldiers: Why They Choose to Fight Sold to be Soldiers. The Recruitment and Use of Child Soldiers in Burma International Security

19 also legal

20

21

22 Child Soldiers in Africa Child soldiers. Sierra Leone s Revolutionary United Front Armies of the Young: child soldiers in war and terrorism International Criminal Accountability and the Rights of Children

23 1.2 The International Legal Response to Child Soldiering 1. Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason. 2. 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 a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years the Parties to the conflict shall endeavour to give priority to those who are oldest. 3. If, in exceptional cases, despite the provisions of paragraph 2, children who have not attained the age of fifteen years take a direct part in hostilities and fall into the power of an adverse Party, they CDF caseafrc caseruf case certain

24 shall continue to benefit from the special protection accorded by this Article, whether or not they are prisoners of war. Children shall be provided with the care and aid they require, and in particular: ( ) (c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities. 2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities. 3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.

25 One of the most alarming trends in armed conflict is the participation of children as soldiers. Children serve armies in supporting roles, as cooks, porters, messengers and spies. Increasingly, however, adults are deliberately conscripting children as soldiers. Some commanders have even noted the desirability of child soldiers because they are "more obedient, do not question orders and are easier to manipulate than adult soldiers. Human Rights Review

26 any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities.

27 Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. 1. Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years. 2. States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices. generally armed conflicts not of an international character and thus [it] does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups

28 any 1.3 Research Design

29 1.3.1 Research Problem, Research Aim and Additional Value of this Research Merely prohibiting the military exploitation of children is no more effective than a declaration of public outrage. The next step is to give effect to the prohibition. Given the limited enforcement procedures in human rights law the best ways of accomplishing this goal is to bring criminal prosecution against specific offenders. Secondly, the efficacy of international legal instruments [referring to international conventions, treaties and protocols of the protection and reintegration of child soldiers in conflict zones in Africa] is further limited by the fact that the majority of war-torn and postconflict societies are struggling to incorporate international criminal law and conventions into domestic national laws. These problems[the other problem concerns the conception of childhood] have posed serious challenges, still markedly under-researched, to the applicability of international standards for protecting children in Africa s conflict zones, and in particular, for the rehabilitation and reintegration of child soldiers. It is recognized, however, that these rules and obligations [referring to AP I and AP II] are primarily instruments of the nation-state system, and that signatory status recognizes this as prima facie even though much of the problem stems from the decisions and actions taken by sub-state actors.

30 these Human Rights & International Legal Discourse Ibid Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission

31 generallyinternational Law

32 1.3.2 Research Question and Theoretical Framework

33 How is the international legal framework on the prohibition of child soldiering composed and how does it interact with the domestic legal systems of Sierra Leone, the Philippines and Sri Lanka?

34 Handboek Internationaal Recht

35 New Perspectives on the Divide Between National and International Law

36 1.3.3 Approach Infra

37 selection Child Soldiers: Global Report 2008

38 1. INTRODUCTORY REMARKS AND RESEARCH DESIGN From these, three states were selected for further analysis in the second part: Sierra Leone, the Philippines and Sri Lanka. The analysis of the international legal prohibition of child soldiering and (the monitoring of) its application forms the basis of the assessment of the legal systems of these three States. The reasons for selecting these three legal systems are detailed in the prelude to the second part of this study in Chapter 5. At this point, it is sufficient to note that all three countries have been actively involved with international law on the prohibition of child soldiering and, therefore. These countries also presented interesting situations to analyse from a reflective standpoint on the international legal prohibition. In addition, it must be explicitly stated that the results of these case studies are not intended to draw general conclusions on the interaction between international law and national law on a global level. 1.4 Structure of the book The first part of this book concerns the international legal framework on the prohibition of child soldiering. It consists of two chapters: Chapter 2 contains an analysis of the treaties and soft law documents and also offers an analysis of these from a comparative point of view. Chapter 3 provides a synthesis of how the application of these laws and conventions that are discussed in Chapter 2 are monitored by the relevant bodies and entities. The second part of this study contains the three case studies of Sierra Leone, the Philippines and Sri Lanka (in chapters 6, 7 and 8). This is prefaced by Chapter 5, which elaborates on the value to be attributed to the results of the case studies, the reasons for their selection and how they have been conducted; Chapter 5 also contains more information on the methodology for the case studies. The conclusion of the study is presented in Chapter 9, which answers the research question and contains a number of final reflections. importance of the Special Court for Sierra Leone in the development of the international crime of child soldiering.

39

40 Part I: The International Legal Framework on the Prohibition of Child Soldiering

41

42 Chapter 2 Treaties and Soft Law Child Soldiers: The Role of Children in Armed Conflict Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949

43 2.1 International Humanitarian Law International Review of Education

44 1. Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason. 2. 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 a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties of the conflict shall endeavour to give priority to those who are oldest. 3. If, in exceptional cases, despite the provisions of paragraph 2, children who have not attained the age of fifteen years take a direct part in hostilities and fall into the power of an adverse Party, they shall continue to benefit from the special protection accorded by this Article, whether or not they are prisoners of war. Children shall be provided with the care and aid they require, and in particular: ( ) Child Soldiers in International Law Ibid Recent conflicts have all too often shown the harrowing spectacle of boys, who have barely left childhood behind them, brandishing rifles and machine-guns and ready to shoot indiscriminately at anything that moves

45 (c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or armed groups nor allowed to take part in hostilities. (d) the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured. Child Soldiers in International Law

46 IbidAs we see, this provision directly concerns the composition of the armed forces ( ). Guiding Principles for the Domestic Implementation of a Comprehensive System of Protection for Children Associated With Armed Forces or Armed Groups

47 Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law Ibid New York University Journal of International Law and Politics

48

49

50 1. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury or destruction on persons or objects protected against direct attack (threshold of harm); 2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation); 3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus). likelihood Ibid Ibid Ibid Ibid

51 In order to meet the requirement of belligerent nexus, an act must be specifically designed to directly cause the required threshold of harm in support of a party to an armed conflict and to the detriment of another. As a general rule, harm caused (a) in individual self-defence or defence of other against violence prohibited under IHL [international humanitarian law], (b) in exercising power or authority over persons or territory, (c) as part of civil unrest against such authority, or (d) during inter-civilian violence lacks the belligerent nexus required for a qualification as direct participation in hostilities. Ibid Ibid

52 2. TREATIES AND SOFT LAW their type of participation in hostilities at a certain moment in time. Upon capture, article 77 (3) AP I still grants children under the age of 15 years prisoner of war status as an additional means of protection for them. On the one hand, defining the term direct participation in hostilities, as has been done in the Interpretative Guidance of the ICRC, seems to have a considerable impact on the scope of the prohibition of child soldiering as contained in AP I. On the other hand, in the ICRC Commentaries on Article 77 (2) of AP I, it is stated that the intention of the drafters of the article was clearly to keep children under fifteen outside armed conflict, and consequently they should not be required to perform such services [indirect participation in hostilities]; if it does happen that children under fifteen spontaneously or on request perform such acts, precautions should at least be taken. 110 This statement decreases the significances of defining direct participation in hostilities (in this article) and lends support for a wider understanding of the term direct participation in hostilities in light of the incorporation of child soldiers in the armed forces. However, the ICRC Commentaries do not provide any justification for this expression of the drafter s intention, nor does it refer to any sources when making this statement. On the contrary, the word directly was absent from the draft version of AP I and purposefully inserted. 111 The ICRC may have intended not to let children indirectly participate, but more emphasis should be placed on the conveners of AP I, who purposefully included the word direct. In further support of this argument that not too much emphasis should be placed on the commentaries on AP I, in future conventions containing a prohibition on child soldiering, such as the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, the negotiations all seem to leave room for young persons to perform some roles within armed forces. In retrospect, this seems to support the thought that States added the word direct in order to decrease their obligations under international humanitarian law. 110 Sandoz, Swinarski and Zimmermann (eds) (n 79) para Comments between brackets added. 111 Ibid. 39

53 refrain all feasible measures neither recruit allow Child Soldiers in International Law refrain neither recruit

54 2. TREATIES AND SOFT LAW participate in hostilities when it was not feasible to keep them from doing so, a circumstance which is not permitted under article 4 (3) (c) AP II. The same holds true for the situation in which children indirectly participate in hostilities as long as they are not formally recruited by the armed forces. At first sight, this leads to the peculiar situation that in international armed conflicts governed by AP I, the protection afforded to children is less than in the type of non-international armed conflict that is governed by AP II. This, to a certain extent unexplainable situation from the perspective of the child, actually results from arbitrariness as opposed to conscious decision making, as Happold asserts. 115 Because the AP I and AP II were the first international legal conventions to specifically prohibit certain forms of child soldiering, their initial contribution to this field is evident. Nevertheless, both also included a significant number of limitations, for instance, the provisional obligation to keep children from directly participating in hostilities in AP I as it is still possible for children to participate in this manner without violating the obligation contained in article 77 (2) of AP I. Moreover, the meaning of the notion of direct participation in hostilities is fraught with controversy. The Interpretive Guidance of the ICRC published in 2009 should have created more unity in its interpretation, but that aim still seems to be far off given the criticism voiced over the contents of this document. This issue will be revisited in this book. Another issue is that of the prohibition of recruitment. While both enlistment and conscription are not allowed, the definition of recruitment is different for armed forces than for armed groups. In the context of armed groups, children are required to execute a continuous combat function before they can be said to have been recruited, which is detrimental to the protection of children from child soldiering in that respect as this is a high bar. However, because Article 4 (3) (c) AP II also prohibits the use of children to participate in hostilities including their indirect use the negative consequences of this difference in the definition of recruitment are outweighed. In addition, in light of more recent legal events, the 115 Matthew Happold, Child Soldiers in International Law (n 84)

55 2.2 International Human Rights Law and Welfare Convention on the Rights of the Child A Commentary on the United Nations Convention on the Rights of the Child

56 2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities. 3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to the oldest. Child Soldiers in International Law

57 feasiblenecessary directparticipation participation Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict The United Nations Convention on the Rights of the Child. A Guide to the Travaux Préparatoires Ibid Human Rights & International Legal Discourse

58 Article 1: States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities. Article 2: States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces. Article 3: 1. States Parties shall raise the minimum age for the voluntary recruitment of persons into their national armed forces from that set out in article 38, paragraph 3, of the Convention on the Rights of the Child, taking account of the principles contained in that article and recognizing that under the Convention persons under the age of 18 years are entitled to special protection. 2. Each State Party shall deposit a binding declaration upon ratification of or accession to the present Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards it has adopted to ensure that such recruitment is not forced or coerced. Human Rights Quarterly Child Soldiers in International Law ibid

59 3. States Parties that permit voluntary recruitment into their national armed forces under the age of 18 years shall maintain safeguards to ensure, as a minimum, that: (a) Such recruitment is genuinely voluntary; (b) Such recruitment is carried out with the informed consent of the person's parents or legal guardians; (c) Such persons are fully informed of the duties involved in such military service; (d) Such persons provide reliable proof of age prior to acceptance into national military service. 4. Each State Party may strengthen its declaration at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall inform all States Parties. Such notification shall take effect on the date on which it is received by the Secretary-General. 5. The requirement to raise the age in paragraph 1 of the present article does not apply to schools operated by or under the control of the armed forces of the States Parties, in keeping with articles 28 and 29 of the Convention on the Rights of the Child. Article 4: 1. Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years. 2. States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices. 3. The application of the present article shall not affect the legal status of any party to an armed conflict.

60 States Parties shall raise the minimum age in years for the voluntary recruitment of persons into their national armed forces from that set out in article 38.3 of the Convention on the Rights of the Child, taking account of the principles contained in that article and recognizing that under the Convention persons under 18 are entitled to special protection reading the treaty in good faith in the light of its object and purpose

61

62 Ibid 22 International Journal of Children s Rights This means armed groups are prohibited from recruiting, either forcibly or voluntarily, persons under eighteen or using them in hostilities.. Here [referring to Article 4 OP-CRC-AC] ( ) is an absolute prohibition

63

64 2.2.3 African Charter on the Rights and Welfare of the Child Article 22: Armed Conflicts 1. States Parties to this Charter shall undertake to respect and ensure respect for rules of international humanitarian law applicable in armed conflicts which affect the child. 2. States Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child. 3. States Parties to the present Charter shall, in accordance with their obligations under international humanitarian law, protect the civilian population in armed conflicts and shall take all feasible measures to ensure the protection and care of children who are affected by armed conflicts. Such rules shall also apply to children in situations of internal armed conflicts, tension and strife.

65 2.2.4 Conclusion 2.3 International Criminal Law Child Soldiers in International Law

66 Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. Conscripting or enlisting children under the age of fifteen years into armed forces or armed groups or using them to participate actively in hostilities The Special Court for Sierra Leone Conscripting or enlisting children under the age of 15 years into armed forces or armed groups or using them to participate actively in hostilities. AFRC Case

67 AFFECTING CHILD SOLDIERING This provision is highly similar to the provisions in Article 8 of the Rome Statute on the prohibition of enlisting, conscripting and using child soldiers and are analysed in the sections that follow in terms of the age limit and the scope of tasks included in the provisions, as well as the perceived limitation in the article relating to international armed conflict in the Rome Statute, which seems to criminalise the enlistment, conscription and use of child soldiers only if committed by national armed forces, not by armed groups, in contrast to its non-international armed conflict counterpart. However, before these issues are addressed, attention is directed to a relevant decision taken by the SCSL The Norman Decision In 2004, the Appeals Chamber of the SCSL made a landmark decision on international criminal responsibility for the enlistment, conscription and use of child soldiers in the case of the Prosecutor v. Sam Hinga Norman, also known as the Norman decision. 139 The Normal decision revolved around the issue of legitimate jurisdiction for the SCSL to pass judgment on the crime of enlisting, conscripting and using child soldiers, as contained in its Statute. Because the SCSL and its Statute were erected as a matter of transitional justice in the post civil-war period, the temporal jurisdiction of the SCSL also covered a timeframe prior to its conception (crimes committed after 30 November 1996). Consequently, in order to not violate the principle of nullum crimen sine lege, the court had to establish whether the crime of enlistment, conscription and use of child soldiers, as contained in the SCSL Statute, was already an international crime on 30 November The SCSL applied the so-called Tadic-test, which comprises four criteria that all have to be fulfilled for a violation of international humanitarian law to be punishable in the context of international criminal law in such situations. These four criteria are as follows: the violation must constitute an infringement of a rule of international humanitarian law; the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met, such as ratification; the violation must be serious, that is to say, it must constitute a breach of a rule 139 Prosecutor v. Sam Hinga Norman (Decision on preliminary motion based on lack of jurisdiction) SCSL AR72(E)-131 (31 May 2004). 140 Ibid para 1. 54

68 Ibid Ibid Ibid International Criminal Accountability and the Rights of Children

69 a simular issueindictment Norman Ibid Ibid

70 2.3.3 The CDF Case on Multiple Recruitment Ibid Ibid

71 American Journal of International Law

72 2.3.4 Age Limit and Scope of Tasks mens rea mens rea Child Soldiers in International Law

73 Rutaganda Ibid Ibid Ibid

74 direct impact required Recruitment by National Armed Forces

75 Human Rights & International Legal Discourse

76 under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. theirnational armed forces

77 2.3.6 Conclusion

78 2.4 International Labour Law ILO Convention 182

79 For the purposes of this Convention, the term "the worst forms of child labour" comprises: all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict ( ). Each Member which ratifies this Convention shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. For the purposes of this Convention, the term "child" shall apply to all persons under the age of 18.

80 was were explicit been up in Ibid Ibid

81 work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. Human Rights & International Legal Discourse

82 2.4.2 Conclusion

83 2.5 United Nations Security Council Resolutions on Children and Armed Conflict Evolution of the Focus on Child Soldiering Human Rights & International Legal Discourse International Criminal Accountability and the Rights of Children

84 2. TREATIES AND SOFT LAW Somalia. 183 The parties to the conflicts were selected on the basis of two criteria: their identifiable participation in conflicts of which the Security Council was seized of at the time and that their recruitment of children was a violation of international obligations that were applicable to them at the time. 184 Especially because of the first requirement, not every group involved in child soldiering was included in the list. Examples mentioned by the Secretary-General were the Fuerzas Armadas Revolucionarias de Colombia (FARC) in Colombia, the Lord s Resistance Army (LRA) in Uganda and the fighting factions in Northern Ireland. 185 These parties to a conflict of which the UNSC was not seized of at the time, were mentioned in a separate annex to the reports of the UNSG on children and armed conflict Monitoring and Reporting In its subsequent resolution on children in armed conflict, the UNSC expressed the view that the identified parties should immediately halt the practice of child recruitment and obliged them to implement time-bound action plans on treating (former) child soldiers as well as sharing the best practices in conducting disarmament, demobilization and reintegration (DDR) programmes. 186 The progress achieved by these parties would have to be reported to the Secretary- General. In addition, the UNSC requested the Secretary-General to develop a more effective and efficient system within the existing framework of the UN to monitor and report on the situation of children in armed conflict. 187 Subsequently, a monitoring and reporting system on children and armed conflict was developed. The system was based upon already existing structures and concerned six elements: the type of violations that should be monitored, the benchmarks for the monitoring, the subjects to be monitored, how data should be gathered for the purposes of monitoring, how to review the information, and 183 UNSC Report of the Secretary-General on children and armed conflict (26 November 2002) UN Doc S/2002/ UNSC Report of the Secretary-General on children and armed conflict (26 November 2002) UN Doc S/2002/1299 para Ibid para UNSC Resolution 1460 (30 January 2003) UN Doc S/Res/1460 para 4 & UNSC Report of the Secretary-General on children and armed conflict (22 April 2004) UN Doc S/Res/1539 para 2. 71

85 AFFECTING CHILD SOLDIERING which entities actually have to undertake action based on the results of the accumulation of the previous parts of the system. 188 This system was adopted in Resolution Over the course of five years, from 2000 till 2005, major changes occurred in the climate in which these problems were discussed, which moved from the mere mentioning of the existence of a problem to a structured approach established by the international community, based on existing structures, to devote attention to the plight of child soldiers. However, the action taken on the basis of these reports is still dependent on already existing entities. To that extent, it remains important to analyse the annual reports on monitoring and reporting and the way actors refer to and act upon these documents Reports of the Secretary-General After the establishment of the monitoring and reporting system, four years passed until a new review of the situation of children in armed conflict was conducted, other than situation specific resolutions by the UNSC. In 2009, a new report was prepared by the Secretary-General, outlining the general progress of implementation of all the UNSC resolutions adopted on the matter of children in armed conflict. The general working method described in this report to end the recruitment of child soldiers is to initiate a dialogue with the armed force or armed group with the intent to gain their commitment to end child soldiering. These commitments are then to be implemented in a formal action plan that also establishes a basis for monitoring progress. The Secretary-General notes the little progress that has been made to date and recommends increasing concerted efforts between the working group and sanctions committees in order to get results. 191 In 2011, a new report of the Secretary-General was published which especially draws attention to the role of children as witnesses. The UNSG takes the view that because of the limited capacity of international courts and the sometimes (virtually) 188 UNSC Report of the Secretary-General on children and armed conflict (9 February 2005) UN Doc S/2005/72 Section III. 189 UNSC Resolution 1612 (26 July 2005) UN Doc S/Res/1612 para This aspect is covered in Chapter UNSC Report of the Secretary-General on Children and armed conflict (26 March 2009) UN Doc S/2009/

86 2.5.4 Conclusion 2.6 Soft Law Instruments Ibid Ibid

87 2.6.1 Cape Town Principles Child soldier in this document is any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The definition includes girls recruited for sexual purposes and forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms. 197 A minimum age of 18 years should be established for any person participating in hostilities and for recruitment in all forms into any armed force or armed group. 198

88 in any capacity Paris Commitments and Principles A child associated with an armed force or armed group refers to any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls used as fighters, cooks, porters, messengers, spies or for

89 sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities. To spare no effort to end the unlawful recruitment or use of children by armed forces or groups in all regions of the world, e.g. through the ratification and implementation of all relevant international instruments and through international cooperation. relevant unlawful

90 To make every effort to uphold and apply the Paris principles ( The Principles and Guidelines on Children Associated with Armed Forces or Armed Groups ) wherever possible in our political, diplomatic, humanitarian, technical assistance and funding roles and consistent with our international obligations Other Soft Law Instruments

91 s Call upon all Asia-Pacific States to ensure that they have laws requiring birth registration and provide appropriate and effective methods to facilitate their implementation; and in the meanwhile, in the absence of age documentation, the armed forces require sworn affidavits from parents or community elders. 202 Strongly urge ECOWAS Member States to support the implementation of the ECOWAS Moratorium in order to halt the proliferation of small arms and light weapons in the sub-region Conclusion

92 2.7 Child Soldiering as Human Trafficking The Palermo Protocol post facto New England Journal of International & Comparative Law The International Law of Human Trafficking Ibid

93 . "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. an action a means the purpose

94 mens rea Organized criminal group shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit Ibid

95 The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered trafficking in persons even if this does not involve any of the means set forth in subparagraph (a) of this article child shall mean any person under eighteen years of age. mens rea

96 Action-Element child Reimagining Child Soldiers in International Law and Policy

97 n Purpose-Element

98 For the purposes of this Convention, the term "the worst forms of child labour" comprises: (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict

99 this modus operandi

100 add add specify

101 ius cogens aim

102 2. TREATIES AND SOFT LAW From the judgment in the Lubanga trial, where the ICC (Pre-) Trial Chamber had to decide on the boundary between actively participating in hostilities and not-actively participating in hostilities, it can already be determined that the (Pre-) Trial Chamber was not overly concerned with setting a strict standard, although some activities were clearly regarded as not falling within that category. 227 Also, combat-related activities were held to be falling within the realm of actively participating in hostilities. By adhering to the standards in the Palermo Protocol, these problems are nearly all solved through the observance of child soldiering as a form of forced labour, which might backfire to some extent due to its (in)compatibility with the specificity requirement as part of the legality principle, although this could be successfully countered in my view. Another important expansion introduced by the Palermo Protocol is the possibility of disregarding whether there is an armed conflict or not. While many legal instruments confine themselves to a situation of armed conflict, the Palermo Protocol does not mention this. In light of this observation, it is interesting to note that the UN Model Law proposed to extend the list of exploitation to include military use in armed conflict. It remains unclear why it is necessary to include the highly-debatable nature of the term armed conflict ; should not all children who are recruited by an organised (criminal) group to perform military tasks be awarded protection? For the child itself, it certainly does not make much difference if there is an armed conflict or not. A difficulty that may also be encountered within the framework of the Palermo Protocol that was already hinted at above is the fact that it might be hard to prove that children who are born into an armed group are there for the purpose of exploitation. There might very well be good reasons why the children are there, including to be raised by their parents; however, this would depend on the circumstances. If it can be established by a prosecutor that most of these children later will fight for the armed group, a situation that is not incomprehensible, then the aim of exploitation may also be proven. 227 Of course, as has been detailed in the section on international criminal law, the wide interpretation by the ICC Trial Chamber posed other problems. 89