[1] LLD (Stockholm) Senior Lecturer, International Criminal Law, Stockholm University, Sweden. This paper was originally presented at The Nordic Seminar on the topic " Have Children Human Rights: The Convention on the Rights of the Child - 10 years" organised by The European Law Students Association, 24-25 April 1999, Aula Magna, Stockholm University, Sweden.
[2] UN Integrated Regional Information Network (IRIN) April 19, 1999.
[3] Id., p.2
[4] Id.,
[5] In its 111 Articles, there are no direct references to children. The article that comes close to addressing rights of children is Article 1(3) of the Charter. It states: "....to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.." (Emphasis added). It is significant that Article 1(3) does not mention age discrimination, a form of discrimination regularly practised against children.
[6] Article 6 of the Nuremberg list acts that are deemed crimes. The crimes mentioned therein bear individual criminal responsibility. Three set of crimes are mentioned: crimes against peace, war crimes and crimes against humanity. In the three categories of crimes, there are no direct reference to children. Instead, children are sub-summed under "civilian population".
[7] Where children are mentioned in the UDHR, it is usually in the permissive form. For example, Article 25 of the UDHR recognise that mothers and children are entitled to special care and assistance, and that all children have the right to special protection. However, the 'special care and assistance' to which children are entitled are neither enumerated, nor examples provided. Similarly, it is not indicated how children can enjoy the 'right' to special protection alluded to in the article.
[8] In Common Article 3 to the four 1949 Geneva Conventions, a provision that extends extensive protection to combatants and non-combatants, the word "children" does not appear in the text.
[9] Charles Taylor, for example, was a vicious war lord during the Liberian civil war. He is now a respected president of Liberia. There are many other guerrilla leaders like Taylor who are now presidents and are 'respected' despite their earlier criminal acts.(See New Africa July/August 1995)
[10] Many objections to this proposal may be advanced. However, they can all be rebutted.
[11] Gracia Machel, Impact of Armed Conflict On Children Report of the United Nations' Secretary General's Expert on the subject in UN Doc.A/51/306 and Add.I
[12] The Democratic Republic of the Congo (formerly Zaire) and the United States are, for example, States that have not, as of August 1998, ratified, the Convention on the Rights of the Child. See Report on Ratification Procedures in African, Asian and European States, http://www.ico.org/icc/html/ratify-chart.html
[13] Ahmad Faithi, "Criminal Responsibility in Islamic Law" in Cherif M. Bassiouni (ed) The Islamic Criminal Justice Systems (1982)
[14] Guy Goodwin-Gill & Ilene Cohn, Child Soldiers: The Role of Children in Armed Conflict Clarendon Press, Oxford (1994). At pp.187-208 there is an appendix that lists different ages in different States for (a) Voting in national elections; (b) Military Service; (c) Conscription in the army. The "age of majority" for the three categories of responsibilities is eighteen, although the ages range from sixteen to twenty-one.
[15] Article 77(2) of Additional Protocol I of 1977 states: "The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen 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 but have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest."(Emphasis added).
[16] Article 77(3) of Additional Protocol I of 1977 provides: "If, in exceptional cases, despite the provision of [Article 77(2)], children who have not attained the age of fifteen years take direct part in hostilities and fall into the power of an adverse Party, [Prisoners of War] they shall continue to benefit from the special protection accorded by this Article, whether or not they are prisoners of war."(Emphasis added)
[17] Article 4(3)(c) of Additional Protocol II of 1977
[18] Article 4(3)(d) of Additional Protocol II of 1977
[19] René Prevost, "Problems of Indeterminacy and Characterisation in the Application of Humanitarian Law" in Sellers Mortimer (ed) The New World Order: Sovereignty, Human Rights, and self-determination of Peoples, Berg (1996) p.190-191
[20] M.Bothe, K.J. Partsch & W.A.Solf., New Rules for Victims of Armed Conflicts: Commentary on the Two Protocols Additional to the Geneva Conventions of 1949 Nijhoff, The Hague (1982) p.476f. Voluntary indirect participation in armed conflict by children under fifteen is not in breach of Article 77 of Additional Protocol I of 1977.
[21] Maria Teresa Dutli, "Captured Child Combatants" International Review of the Red Cross, September-October, 1990 p421-34
[22] CF Guy Goodwin-Gill & Ilene Cohn, Child Soldiers: The Role of Children in Armed Conflict p.62
[23] Id. p 81. Goodwin-Gill and Cohn observe that "Not only is it hard to leave the Sri Lanka LTTE, but it is also nearly impossible for any civilian to leave the northern zone. Even if deserters can make it to the South, they risk being identified and detained by the police, while their family is subject to harassment and threats in the North. A combatant who merely expresses the desire to leave risks being beaten in front of the troops."
[24] Rädda Barnen [Swedish Save the Children] No Child Soldiers, Stockholm, September 1989
[25] Rachel Brett, Margaret McCallin and Rhona O'Shea, Children: The Invisible Soldiers Report on the Participation of Children in Armed Conflicts and Internal Disturbances and Tensions for the United Nations Study on the Impact of Armed Conflict on Children (The Quaker United Nations Office, Geneva, and the International Catholic Child Bureau on behalf of the Child Soldiers Research Project, April 1996) (hereafter, The Invisible Children) p.7
[26] CF., Goodwin-Gill & Cohn, Child Soldiers: The Role of Children in Armed Conflict p.62
[27] Id.
[28] Decree No.25564 of 20 June 1992 modifying article 20(2) of the Peruvian Penal Code (cited from Goodwin-Gill and Cohn, Child Soldiers: The Role of Children in Armed Conflicts).
[29] See Article 37(a) of the UN Convention on the Rights of the Child; Article 36(5) of the International Covenant on Civil And Political Rights (ICCPR); Article 77(5) of Additional Protocol I and Article 6(4) of Additional Protocol II of 1977.
[30] Article 1 of the Charter of the United Nations
[31] Id. Article 1(3)
[32] Supra, Rachel Brett, Margaret McCallin and Rhona O'Shea Children: The Invisible Soldiers
[33] Id.
[34] UN Integrated Regional Information Network (IRIN) April 19, 1999
[35] In Uganda, for example, many child soldiers I know, have met, and talked to, are uneducated, come from impoverished and marginalised background and are easily manipulated by adult soldiers. Again, many of the child soldiers are either orphans or are separated from their families.
[36] CF., Rachel Brett, Margaret McCallin and Rhona O'Shea, The Invisible Children, p.41
[37] CF UN Integrated Regional Information Network (IRIN)
[38] Id. at 88-89. However, some guerrilla commanders refuse to recruit children, though not for human rights reasons. In their view, purely from a military standpoint, children are an encumbrance and a security risk.
[39] See Report of the Secretary General on the former Yugoslavia; UN Doc.S/25704 of 3 May 1993
[40] See CF Ratification Chart, Report on Ratification Procedure in African, Asian and European States.