Critical issue module 7 Children associated with armed forces or armed groups Topic 2 The law and child rights Handout 2 Legal texts on children associated with armed forces or armed groups CRC 1 States parties shall respect and ensure the rights set forth in the present convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child s or his or her parent s or legal guardian s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. Article 38 1 States parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child. 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 15 years into their armed forces. In recruiting among those persons who have attained the age of 15 years but who have not attained the age of 18 years, States parties shall endeavour to give priority to those who are oldest. 4 In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict. Article 41 Nothing in the present convention shall affect any provisions which are more conducive to the realisation of the rights of the child and which may be contained in: a The law of a State party; or b International law in force for that State. http://www.arc online.org Page 1 of 7
Optional protocol to the convention on the rights of the child on involvement of children in armed conflicts (2000) Article 1 State 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. State 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 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 recognising that under the convention persons under 18 are entitled to special protection. 2 Each State party shall deposit a binding declaration upon ratification of or accession to this protocol which sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards that it has adopted to ensure that such recruitment is not forced or coerced. 3 States parties which permit voluntary recruitment into their national armed forces under the age of 18 shall maintain safeguards to ensure, as a minimum, that: Such recruitment is genuinely voluntary; Such recruitment is done with the informed consent of the person s parents or legal guardians; Such persons are fully informed of the duties involved in such military service, and 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 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, 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 criminalise such practices. http://www.arc online.org Page 2 of 7
3 The application of the present article under this protocol shall not affect the legal status of any party to an armed conflict. Article 5 Nothing in the present protocol shall be construed as precluding provisions in the law of a State party or in international instruments and international humanitarian law which are more conducive to the realisation of the rights of the child. Article 6 1 Each State party shall take all necessary legal, administrative and other measures to ensure the effective implementation and enforcement of the provisions of this protocol within its jurisdiction. 2 States parties undertake to make the principles and provisions of the present protocol widely known and promoted by appropriate means, to adults and children alike. 3 States parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to this protocol are demobilised or otherwise released from service. States parties shall, when necessary, accord to these persons all appropriate assistance for their physical and psychological recovery, and their social reintegration. Article 7 1 States parties shall cooperate in the implementation of the present protocol, including in the prevention of any activity contrary to the protocol and in the rehabilitation and social reintegration of persons who are victims of acts contrary to this protocol, including through technical cooperation and financial assistance. Such assistance and cooperation will be undertaken in consultation among concerned States parties and relevant international organisations. 2 States parties in a position to do so shall provide such assistance through existing multilateral, bilateral or other programmes, or, inter alia, through a voluntary fund established in accordance with the General Assembly rules. 1977 Additional protocol 1 to the 1949 Geneva conventions (applicable in international armed conflicts) Article 77 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 15 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 15 years but who have not attained the age of 18 years, the parties to the conflict shall endeavour to give priority to those who are oldest. http://www.arc online.org Page 3 of 7
1977 Additional protocol 2 to the 1949 Geneva conventions (applicable in non international, ie. internal, armed conflicts or civil wars) Article 4 3 Children shall be provided with the care and aid they require, and in particular: (...) c children who have not attained the age of 15 years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities. Rome statute of the international criminal court (1998) The Rome Statute of the International Criminal Court states that conscripting or enlisting children under 15 years into national armed forces or groups or using them to participate actively in all kinds of hostilities, is a war crime. Included in the list of war crimes are: Article 8 2.b.xxvi War crimes in international armed conflicts Conscripting or enlisting children under the age of 15 years into the national armed forces or using them to participate actively in hostilities. 2.e.vii War crimes in armed conflicts not of an international character Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities. 6 Exclusion of jurisdiction over persons under 18 The court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime. ILO worst forms of child labour convention, 182 (1999) In June 1999, the International Labour Conference adopted a new convention (No. 182) concerning the prohibition and immediate elimination of the worst forms of child labour. Article 1 Each member which ratifies this convention shall take immediate and effective measures to secure the prohibition and immediate elimination of the worst forms of child labour as a matter of urgency. For the purpose of this convention, the term child shall apply to all persons under the age of 18. Article 3 For the purpose 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. http://www.arc online.org Page 4 of 7
African charter on the rights and welfare of the child (1990) For the purposes of this charter, a child means every human being below the age of 18 years. 2 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 situation of internal armed conflicts, tension and strife. UN Security Council resolutions The UN Security Council has passed a series of resolutions condemning the recruitment and use of children in hostilities. These are resolutions 1261 (1999), 1314 (2000) 1379 (2001), 1460 (2003), 1539 (2004) and 1612 (2005) on children and armed conflict. Resolutions can be found on the UN Security Council website. Summary table of legal texts The table on the following page represents a summary of the main legal texts related to Children associated with armed forces or armed groups and details key provisions. It should be noted for all treaties, that status and ratification information must be regularly checked. By way of a guide, the following contact information may be useful. www.unhchr.ch human rights provisions www.icrc.org humanitarian law provisions www.ilo.org ILO conventions www.echr.coe.int European Convention of Human Rights www.cidh.org Inter American system African system contact: Organisation of African Unity (OAU), PO Box 3243, Addis Ababa, Ethiopia. Tel + 251 1 517700, Fax + 251 1 517844. NB The texts of the African human rights instruments can also be found in the Human Rights Library of the University of Minnesota at: http://www1.umn.edu/humanrts/instree/afrinst.htm http://www.arc online.org Page 5 of 7
Source of law When and to which States is it applicable? Minimum age What is the obligation or prohibition? CRC 15 Take all feasible measures in order that children under 15 do not take a direct part in hostilities. Refrain from recruiting under 15s into their armed forces. In recruiting among those between 15 and 18 the parties to the conflict shall endeavour to give priority to those who are oldest. (Article 38) Optional protocol to the convention on the rights of Varying Take all feasible measures to ensure that members of their armed forces who have not the child on the involvement of children in armed conflict attained the age of 18 years do not take a direct part in hostilities. Ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces. Explicitly prohibits non state entities from recruiting and deploying persons under 18. International and States parties to n/a Freedom from torture, inhuman regional human rights instruments human rights treaties and to all states where the right is part of general international law. Some rights can be derogated from in times of declared emergency and degrading treatment, which includes disappearances (non derogable). Freedom of association. Right to life (non derogable). ILO convention 138 (Minimum age) 18 The minimum age for employment, which by its nature or the circumstances in which it is carried out is likely to jeopardise the health, safety or morals of young persons, shall not be less than 18 years. (Article 3) http://www.arc online.org Page 6 of 7
ILO convention 182 (worst forms of labour) Additional protocol 1 to the Geneva conventions 1977 Additional protocol 2 to the Geneva conventions 1977 African charter on the rights and welfare of the child Statute of the International Criminal Court. All States parties in times of international armed conflicts All States parties in times of an internal armed conflict satisfying the threshold. 18 Take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour, which includes forced or compulsory recruitment of children for use in armed conflict. 15 Take all feasible measures in order that under 15s do not take a direct part in hostilities. Refrain from recruiting under 15s into their armed forces. In recruiting among those aged between 15 and 18 the parties to the conflict shall endeavour to give priority to those who are oldest. (Article 77) 15 Children under fifteen years shall neither be recruited in the armed forces or groups, nor allowed to take part in hostilities. (Article 4.3.c) 18 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. (2) 15 The ICC shall have the jurisdiction to prosecute persons charged with war crimes committed in time of an international armed conflict including conscription or enlistment of children under the age of 15 years into the national armed forces or use of them to participate actively in hostilities (Article 8.2.b.xxvi). The same applies to both national armed forces and armed groups in times of an internal armed conflict satisfying the threshold (Article 8.2.e.vii) http://www.arc online.org Page 7 of 7