Legal Problems with Protection of Children in Armed Conflict

Author:	Alex Obote-Odora LLB (Makerere); LLM, LLD (Stockholm) Legal Advisor, International Criminal Tribunal for Rwanda
Subjects:	International humanitarian law (Other articles) International law (Other articles)
Issue:	Volume 6, Number 2 (June 1999)
Category:	Comment

Contents

• Introduction
• Who is a Child?
• The term "child" as used in the Laws of War
• The Child Combatant
• Legal Challenge
• Conclusion
• Notes

Introduction

1. Over the years, my views on child soldiers have changed. Formerly I felt sorry and angry about the fate of child soldiers. Now I feel sorry and fearful.

2. I first met a child soldier in 1979, in Kampala, Uganda, soon after the overthrow of dictator Gen. Idi Amin Dadda. Later, during the 1980s, use of child soldiers, otherwise known as 'Kadogos'(-the little ones-) in Uganda, became a common phenomenon. Many of the "Road Blocks"(Checkpoints) through out Uganda were manned by child soldiers. By 2nd September 1990, when the Convention on the Rights of the Child came into force, participation of children in armed conflict in Uganda had become almost state practice. Today, children are found in the ranks of government soldiers and guerrilla movements.

3. In the course of my legal practice in Uganda, I travelled extensively by road, to many parts of the country, passing through numerous road blocks manned by Kadogos. These Kadogos were simple kids, they appeared harmless, particularly when playing cards by the road-side, or playing with whatever toys they could lay their hands on. On the other hand, these child soldiers were unpredictable, wild, ruthless and dangerous. It is this contradiction - the appearance of an harmless and normal child, who likes to play with toys, on the one hand, and a dangerous death machine, who kills with pleasure and glee, on the other hand, that horrified me.

4. It is true youths with guns can become monsters, that they may terrorise, rather than defend, local people. But these youths are also children, though with confused notion of criminal responsibility. Their state of mind make it very dangerous for governments to continue to recruit children in the army.

5. The countries that recruit children in their armies in Africa include Angola, Burundi, Congo-Brazzaville, the Democratic Republic of Congo, Sierra-Leone, Sudan and Uganda. In these countries, recruitment by government armed forces are a matter of course. Some children do "volunteer" to join the armed forces but tens of thousands of children are forced to join up, sometimes at gun-point. In Angola, forced recruitment of children, also known as "Rusgas", continues in some of the suburbs around the capital Luanda and throughout the country, especially in rural areas. In Uganda, street children have been forced to join the army in order to be sent to the Democratic Republic of Congo.

6. Atrocities have all too frequently been committed by child soldiers. In Algeria, many of the killers are young boys under 17. In one incident, it was reported that some boys who looked to be around 12 decapitated a 15-year-old girl and played 'catch' with the head.[2] In Burundi, in addition to widespread recruitment into regular armed forces, Tutsi armed groups, made up of youth aged from 12 upwards, have been formed with the encouragement of government authorities.

7. Atrocities have been committed against child soldiers too. In January 1999, the Uganda army executed five teenage boys between the ages of 14 and 17 suspected of being rebel soldiers.[3] When not actively engaged in combat, children are often used to man checkpoints. Adult soldiers tend to stand several metres further back so that if bullets start flying, the children will be the first victims. And in any conflict where even a few children are involved as soldiers, all children, civilian or combatant, come under suspicion. A recent military sweep in Congo-Brazzaville, for instance, killed all rebels who had attained the 'age of bearing arms'[4]

8. Understanding a child soldier is a complex exercise. In many states in Africa, with Somalia being an extreme example, when there is no state to protect you, or a very weak state that cannot protect you, a gun may be the only way to ensure that you and your family have food - and that someone else does not take it away from you. Thus, a 17-year-old in Southern Sudan, or Somalia today would enjoy more security if he had a gun, joined a guerrilla force or a militia, than to remain a civilian boy, without a gun. If the 17-year-old is the responsible adult in his family, it would not be just his right, but an obligation to acquire the means to defend himself and his weaker relatives. If a foreigner - or anyone else - told him he was a child, and therefore not allowed to bear arms, he would tell him to 'get lost' and mind his own business.

9. At another level, we must recognise that the ability to cope with war is often related to age. An adult can handle traumas more easily, but the younger the person, the more fragile and susceptible he or she is to long-term damage. The 1989 Convention on the Rights of the Child does not directly address the psychological damage caused by war, particularly on ex-child soldiers. Many Ugandan ex-child soldiers, veterans of many years of civil wars, have not had the benefit of medical treatment. We hear a lot about post-traumatic syndromes amongst Vietnam veterans in the United States and Australia. Many of them have committed, and some still continue to commit, horrendous crimes. Their respective governments have recognised their medical condition and the veterans are receiving medical treatment. On the other hand, not much is done or written about post-traumatic syndrome of ex-child soldiers in Uganda, or other child veterans in Southern Africa, Sierra Leone, Rwanda or Southern Sudan.

10. So, when we think of child soldiers, we should ask ourselves: who are child soldiers; and do they have rights under the 1989 Convention on the Rights of the Child? These are the issues I explore in the paper.

    Who is a Child?

11. There is no satisfactory way, method or procedure, to thoroughly examine and enumerate the various ways in which children around the world are politically, militarily, economically, physically and sexually abused. There are many children maimed by landmines or turned into killers by uncaring governments and guerrilla movements. These and other experiences compromise children's humanity, and very often, subject them to physical and emotional suffering.

12. Under international law, while victims of injustice have always had trouble being heard, none have had more trouble than children. Under many legal systems, children have no independent legal rights to initiate legal proceedings, except through their parents or legal guardians. Hence, whether drafted as young teenager in a national army, or absorbed into a guerrilla movement, because children do not have independent legal rights, they deserve understanding, help and protection from an adult world that perpetrates most of the abuse.

13. The absence of a legal regime that deals directly with children's rights in times of war is a major drawback. Much more disturbing is the absence of a clear definition of a 'child' under the laws of war. Under many national legal systems, a young person is considered a child for one purpose, and an adult, for another. Similarly, under international law, different legal instruments designate different ages in determining whether a young person is a child or an adult. Thus, protecting human rights of children in armed conflict situation has been difficult because many children are not children under the law.

14. The 1989 United Nations Convention on the Rights of the Child addresses many of the problems children face. For example, in Article 38 it outlines the obligations of states to respect and ensure respect for humanitarian law as it applies to children. According to Article 1, persons under 18 are to be regarded as children. This age limit is maintained throughout the Convention, with the exception of Article 38, which stipulates that a child is a person under 15 years of age.

15. Since the purpose of the Convention is to provide better legal protection for children, it is tragic that the age limits had to yield to subjective military needs when by all standard age should have been covered by humanitarian concerns. By setting the age limit at 15, governments did not contribute substantially to protecting children against use as child soldiers. Moreover, the Convention binds states, but not guerrillas or similar groups, who use children as soldiers. In summary, the Child Convention fails to expressly deal with the protection of children in armed conflict.

16. In general, international law has not, so far, satisfactorily addressed the question of human rights of children in armed conflict. Neglect of human rights of children by international law is neither a new development, nor an exception to the rule.

17. After WW II, through use of international law, the international community began to address the negative effects of war, and to provide ground rules for behaviour of States towards their own citizens and foreign nationals. The main institution used for this purpose was the United Nations. Formed in 1945, during its preparatory sessions, the founding members of the United Nations neither considered legal rights of children in its deliberation, nor adopted articles in the UN Charter that specifically dealt with legal rights of children.[5]

18. In the Charters of the Tribunals for Nuremberg and Tokyo, there were no articles that expressly criminalised abuses that children were subjected during the war.[6] No single individual was prosecuted, for example, for crimes of recruiting, training and deploying children in armed conflict since no such crime existed. Similarly, no person was charged or prosecuted for killing children during WW II, notwithstanding that many children were killed.

19. In 1948 the Universal Declaration of Human Rights (hereafter UDHR) was adopted. The emphasis in the UDHR was on human rights of adults, and not children.[7] In 1949, the four Geneva Conventions were adopted. The Conventions dealt with rights of soldiers at sea and on land (GC I & II), prisoners of war (GC III) and civilians (GC IV). There was no specific convention that addressed the plight of children.[8]

20. In 1951 an international convention on protection of refugees (hereafter the Refugee Convention) was adopted. The adoption of the Refugee Convention was dictated by experiences of WW II. Through history, it is known that armed conflict has always caused population movements. Children who are forced to flee to neighbouring countries as refugees or who become internally displaced within their own countries are in need of special attention during armed conflict. People are brutally uprooted and forced to flee their homes, exposing them to danger and insecurity. Whenever it occurs, displacement has a profound physical, emotional and developmental impact on children and increases their vulnerability.

21. With the experiences of WW II, it is surprising that the 1951 Refugee Convention does not provide a special section dealing with protection of children. In fact, the 1951 Convention does not even extend rights to children to seek and obtain refugee status on their own. Children's application for refugee status is only considered when submitted by their parents, legal guardians or adult relatives. Thus, notwithstanding that many children were orphaned as a direct result of the war, and many of the orphans did not have, or did not know they had, relatives, the 1951 Convention did not extend to children a right to seek, and be granted, asylum.

22. With increase in wars of national liberation, self-determination and, sometimes, criminal activities, during the 1960s and early 1970s, it became necessary for member states of the United Nations to amend the four 1949 Geneva Conventions. Consequently, Additional Protocols I & II of 1977 to the Geneva Conventions was adopted. The two Protocols acknowledge the fact that children have become active combatants in international and non-international armed conflicts. Attempts were therefore made to regulate recruitment and participation of children in armed conflicts by defining the term "child" in the two Protocols.

    The term "child" as used in the Laws of War

23. As a preliminary point, I wish to emphasise that protecting children in times of armed conflict requires a clear and precise internationally accepted definition of the term "child". Second, protecting children requires a much broader participation in monitoring and reporting human rights abuses. This exercise should not be restricted to peace time violence, as is currently provided in the 1989 Child Convention, but also to abuses carried out against children in times of war. In order to enforce humanitarian law, there must be a legal regime that addresses rights of all children, and not only some children, specially those children who live in peaceful environment far away from areas of armed conflicts. Third, a determined effort must be made to search for, arrest and prosecute, all offenders, particularly those who recruit, train and use children in armed conflict. There has been a tendency to ignore, and sometimes, reward warlords who later win wars and become 'respectable' heads of states and governments.[9]

24. It is therefore important for the international community to attach importance to responding effectively to every occasion when those involved in armed conflict trample on human rights of children. This can be effectively done by reinforcing the Child Convention through enlargement of its scope of application to include abuses of children in armed conflict situation. By merging the Child Convention with the laws of war, the age provision in the Child Convention would automatically apply to States Parties to the Child Convention.[10]

25. It is relevant to note that one of the most alarming trends relating to children in the 1990s is their participation as combatants. Children as young as eight are being forcibly recruited, coerced and induced to become combatants by governments and guerrilla movements. Manipulated by government officials and war lords, children have been drawn into violence that they are too young to resist and with consequences they cannot handle.[11] This fact underpins the importance of arriving at a precise definition of the term "child".

26. It is conceded that there is no definitive definition of the term 'child' in the laws of war (humanitarian law). Under many national legal systems, a young person may be considered a child for one purpose, and the same child, an adult for other purposes. Similarly, under international law, different legal instruments designate different ages in determining the age of a young person. According to Article 1 of the 1989 Child Convention,

    A child is every human being below the age of 18 years unless the applicable law of a Contracting State, the child has attained the age of majority.[12]

27. The definition, prima facie, appears to be clear enough. However, the Child Convention does not define the term "age of majority", yet the term means different things when used in a legal, religious, or customary context. This ambiguity, to some extend, tends to undermine the definition of the term 'child' as used in the Child Convention.

28. The "age of majority" is a concept according to which children are considered adults at different times, in different cultures, and usually for different reasons. The result is that in some cultures and religions, a female age 12 is an "adult" for the purpose of marriage, though not for other purposes. Under Judaism, for example, 13-year-old child is an adult for the purpose of participating in a religious ritual. Under Islam, a 12-year old girl is old enough to contract a valid marriage.[13]

29. As illustrated by the above examples, the expression "age of majority" does not only create legal problem. It also creates problems in social, religious and cultural areas. In a social context, for example, legal responsibilities such as contracting obligations, including marriage, purchase of land, testifying as a witness in court proceedings and, sometimes under oath, being criminally responsible for unlawful acts or omission, eligibility for voting in local or national elections, and participation in armed conflicts, are used as indicators for determining "age of majority".[14] The practice demonstrates that "age of majority" is attained at different ages according to different religions, cultures and legal systems.

30. There is no definition of the term 'child' under customary international law. Similarly, there is no definition under the 1899 and 1907 Hague Conventions, and the 1949 Geneva Conventions. Thus, under the laws of war, whether customary or treaty law, there is no definitive definition of the term 'child'.

31. An imprecise definition of the term 'child' is found in Additional Protocols I & II of 1977 to the four 1949 Geneva Conventions. Article 77(2) of Additional Protocol I discourage, but do not prohibit, recruitment of young persons who have not attained the age of fifteen.[15] Article 77(3) acknowledges, though grudgingly, that children who take direct part in hostilities may be taken as prisoners of war.[16] Thus, Additional Protocol I tacitly recognise that children will continue to take part in armed conflict. This is a weak prohibition of child participation in armed conflict.

32. The prohibition of child participation in armed conflict is more emphatic in Additional Protocol II. The prohibition stresses that children who have not attained the age of fifteen shall neither be recruited in armed forces or groups nor allowed to take part in hostilities.[17]

    It further states that

    The special protection provided by this Article [Article 4] 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 [Article 4(3)(c)] (Emphasis added).[18]

33. Whereas Article 77(2) urges states or armed groups to "take all feasible measures" to ensure that children who have not attained the age of fifteen "do not take a direct part in hostilities" and further that parties "refrain from recruiting" children into their armed groups, Article 4(3) emphatically directs that 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. Article 4(3) of Protocol II is therefore a more forceful provision than Article 77(2) of Protocol I. However, the scope of application of Protocol II, and therefore Article 4(3), is very restrictive. Article 1, on the material field of application provides:

    1.This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of victims of International Armed Conflicts [Protocol I] and which take place in the territory of a High Contracting Party between its armed forces and dissent armed forces or other organised armed groups which, 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.
    2.This Protocol shall not apply to situation of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of similar nature, as not being armed conflicts.

34. The second paragraph of Article 1 marks the threshold below which Protocol II does not apply and is somewhat redundant in the sense that it essentially excludes those situations that do not meet the conditions in the first paragraph by stating the opposite of those conditions. Thus, "isolated and sporadic" stand in contrast to "sustained and concerted." By definition, situations not meeting the conditions listed in paragraph 1 do not constitute internal conflicts but are internal disturbances and tensions and as such not covered by Protocol II. This is what constitutes "armed conflict-like situation", in that whereas there is no armed conflict, nonetheless, there is an armed conflict-like situation.

35. On the other hand, paragraph 1 of Article 1 demands four interrelated conditions for the applicability of Protocol II to internal conflicts. First, the conflict must involve a state and its armed forces on its territory. The involvement of a state and its armed forces does not in itself make an armed conflict, however, because the other conditions set forth in the article must also be obtained. Neither does the quelling of disturbances by a state without intervention by its armed forces constitute armed conflict within the meaning of Article 1(1) of Protocol II. Further, military operations involving several non-state entities on the territory of a state but not involving the state's armed forces are not armed conflict within the meaning of Protocol II.

36. Second, for the applicability of Protocol II, the armed conflict must be between dissident armed forces and the state. The dissident armed force must be under responsible command. Without a minimally organised structure, the group will not be in a position to carry out sustained and concerted operations, exercise control over a part of a state's territory or implement the provisions of Protocol II. The requirement for organisation and responsible leadership overlaps to a certain extent with the third condition requiring that forces in conflict with the state be able to carry out sustained and concerted military operations. This condition underscores both the collective character of armed conflicts, as contrasted with sporadic and isolated acts mention in paragraph 2 of Article 1, and the fact that hostilities involving the use of weapons must be occurring in order for the armed conflict to be regulated by humanitarian law.

37. The fourth condition under Protocol II's scope of application is that the armed forces or armed groups contending against a state must exercise control over a part of a state's territory. Guerrilla armed groups which choose not to control a part of the state's territory as part of their strategy run the risk of not being able to benefit from Protocol II.

38. In general, because of its narrow scope of application, while at the same time many children participate as combatants in internal conflict-like situation, Protocol II does not adequately protect children in the majority of internal armed conflicts.[19] Even in situations where Protocol II applies, it is difficult to implement Protocol II because it has no penal provisions. There is therefore no institutional mechanism for bringing to account, government officials, military commanders, and guerrilla leaders who violate human rights of children.

39. Another problem arises as a result of a vague duty not to recruit children under the age of fifteen as provided in both Protocol I & II. Since the duty not to recruit children under the age of fifteen is a negative obligation, one question may be posed: does the duty not to recruit encompass the duty to turn away children who "volunteer" to join the national army or guerrilla movement? In other words, should the national army or an armed group permit children who "volunteer" to join their forces, notwithstanding that they are under fifteen years of age? There are two views.

40. One view is that children may "volunteer" to join a national army or a guerrilla movement, but need not necessarily take direct part in hostilities. According to this view, child soldiers can perform non-combat duties such as delivering messages, conducting spy missions and scores of other non-combat activities.[20]

41. The other view narrows the issue of whether a child can "volunteer" to a definition of the term "recruit" as used in Additional Protocols I & II. According to this view, the meaning of "recruit" in Article 77 of Protocol I:

    covers both compulsory and voluntary enrolment of children. It therefore follows that parties to armed conflicts must refrain from enrolling children under fifteen years of age even when they volunteer to join the armed forces."[21]

42. In support of this view, it is argued that the ordinary meaning of the word recruit is "to strengthen, reinforce or replenish, irrespective of source or method."[22] Thus, the meaning of "recruit" includes "not only forced recruitment but also voluntary participation in armed conflicts." The conclusion is inferred from the fact that even if at the initial stage a child "volunteers" to join a guerrilla movement, he may never withdraw his original consent. At the same time, other children are forced to "volunteer". Once they join the guerrilla army, they may never leave.[23] The conclusion that knowingly to permit or require the participation of children under fifteen years, in armed conflicts, is to violate the human rights of children under customary international law, no matter that the child volunteers, is supported by many legal scholars and international organisations dealing with children issue.[24]

43. Some scholars argue that although many children may have entered voluntarily into participation in armed conflicts, the whole concept of what is "voluntary" needs to be called into question. Various indirect coercive mechanisms have been used on minors, such as physical protection, the stimulation of machismo, the symbology of concepts such as defence of the fatherland, the heroic nature of enlistment, revenge and adventure; or through economic, cultural and social considerations such as belief in the justice of the cause, social pressure, and provision of food. Therefore, the dividing line between voluntary and forced participation is very thin and ambiguous.[25]

44. Other scholars suggest that the prohibition in the two Protocols, though not mandatory, does impose direct responsibility on the parties to armed conflicts not to permit children to take direct parts in hostilities. It is emphasised that what is "feasible" is that which is capable of being done and, by definition, whatever is under the jurisdiction and control of a party is, prima facie, capable of being done.[26]

45. Thus, by inference, if it is always feasible for governments and organised fighting forces to have a policy of non-recruitment of children under the age of fifteen, but when they do recruit underage children, under Article 77(2) of Protocol II, they do not seem to be violating the laws of war, though their actions are morally disgusting. This is because Article 77(2) imposes no criminal responsibility on individuals who recruit, train and use children in armed conflicts. Article 77(2) merely discourages, but does not prohibit, recruitment of children in the armed forces or guerrilla movements.

46. In response to the above argument, Goodwin-Gill and Cohn opine that

    It will always be feasible for organised fighting forces to have a policy of non-recruitment of children, they may not necessarily be in a position to ensure its implementation at every level, particularly in guerrilla-style conflicts where children actively participate.[27]

47. I concur. Goodwin-Gill and Cohn's argument tends to reinforce the legal position suggesting that, while there is a moral duty not to recruit, there is no criminal responsibility for breach of Article 77(2) of Protocol I. There exists only moral blame.

48. In summary, it is submitted that, under the laws of armed conflict, while Article 77 of Protocol I is not mandatory, as regards the obligation of the child, it nonetheless stipulates in clear terms, the limited freedom parties to armed conflict enjoy in recruiting children. Although the obligation is negative, in the sense that it directs parties to armed conflicts not to allow children to participate in hostilities, it is also clear that unless children are first recruited in the armed forces or guerrilla groups, very often they do not participate in armed conflicts. As a result, given the negative duty not to allow children to take part in direct hostilities, one may correctly conclude that to recruit children in a national army or a guerrilla movement, though not a direct violation of the laws of war, it is nonetheless, a violation of fundamental human rights of children because children cannot legally volunteer for recruitment. When children purport to volunteer, their decisions to do so should be deemed void ab initio and of no legal consequence.

49. Under national law of many states, children under fifteen are not criminally responsible for acts or omission they are alleged to have committed. However, in some states, the age of criminal responsibility is deliberately made low, taking into account local circumstances. In Peru, for example, the age of criminal responsibility for crimes of terrorism was lowered by government expressly to cover children between the ages of fifteen and eighteen believed to be working for terrorist organisations.[28] The Peru example is an exception.

50. In conclusion, it is submitted that children are not individually responsible for violations of the laws of war. Further, since many national laws set minimum age for military service, prescription, as well as the age of political majority at 18 years, it is only realistic that the laws of war be amended to reflect that reality. Importantly, international law recognises 18 as the age of adulthood in many respects. Article 1 of the Child Convention sets the general age of majority at 18 years. The special status of persons under 18 is also recognised in relation to the prohibition and application of the death penalty.[29]

51. It is true that the unsatisfactory definition of the term "child" in the laws of war is unfortunate. The failure to agree on an age when a person is deemed to be a child has led to extensive abuses of the rights of persons who are either children, or ought to be treated as children. It would be a positive step to streamline the minimum age under the laws of war with that stipulated in the Child Convention.

    The Child Combatant

52. The universality of human rights is clearly established and recognised in international law. Respect for, and protection of, human rights are emphasised among the purposes and principles of the United Nations.[30] Human rights are universally natural-born rights for every human being, including children. Human rights are not privileges, grants, or favours that may be given or withdrawn by governments at will, or reserved for adults.

53. Human rights do not impose one cultural standard, rather one legal standard of minimum protection necessary for human dignity. Like most areas of international law, universal human rights are a modern achievement, new to all cultures. Human rights are neither representative of, nor oriented towards, one culture to the exclusion of others. Universal human rights reflect the dynamic, co-ordinated efforts of the international community to achieve and advance a common standard and international system of law to protect human dignity. Human rights of child combatants must be viewed in this context. All child combatants must be subjected to the same legal regime whether during peace or war.

54. The Charter of the United Nations commits all Member States to action promoting and encouraging "respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion."[31] Unfortunately paragraph 3 of Article 1 of the UN Charter does not specifically refer to age discrimination, a factor that affects human rights of children.

55. Abuses of human rights of children are perpetrated largely by adults. In the last decade, an estimated two million children have been killed in armed conflict, many by landmines.[32] A total of perhaps four to five million more have been disabled as a result of their experience in war, and more than 12 million have been made homeless.[33] There are at least 300,000 under-18s actively engaged in combat, in 36 armed conflicts around the world.[34]

56. Children most likely to be recruited, and thus become soldiers, are from impoverish and marginalised backgrounds or separated from their families. Children from wealthier and more educated families are often left undisturbed.[35] These unfortunate children are recruited in many different ways. Some are conscripted, others are press-ganged or kidnapped. In some cases, children are forced to join armed groups to defend their families. In many instances, recruits are arbitrarily seized from streets, or from schools and orphanages. Sometimes, children become soldiers simply in order to survive. In other cases, a military unit serves as a kind of surrogate family as some children believe, in many cases wrongly, that this is the only way to guarantee regular meals, clothing or medical attention.

57. Children are also used as soldiers in support functions as cooks, porters, messengers and spies. While these may seem to be less harmful, these functions entail great hardship and risk bringing all children under suspicion. Reports of military forces deliberately killing even the youngest children on the ground that they were agents or members of the guerrilla movements, and therefore, dangerous, are many. Children in Sierra Leone, Democratic Republic of the Congo, Sudan, Uganda, and Rwanda, for example, have been killed because they were believed to be agents or members of guerrilla movements.

58. For girls, their participation in armed conflict often entails being forced to provide sexual service to male guerrilla fighters. There are usually no proper medical care for young girls who become pregnant, or for the children they eventually deliver. Even at the best of times, babies who make babies find it difficult to look after their off-springs. Thus, it is extremely difficult for child mothers to look after their children especially when they are in the bush with no medical care, social services, extended family, or caring adult support.

59. While children of both sexes might start out in indirect support function, it does not take long before they are placed in the heat of battle, where their inexperience and lack of training leave them particularly vulnerable. In one case study, one child described her plight as follows:

    At the age of 13, I joined the student movement. I had a dream to contribute to make things change, so that children would not be hungry....Later I joined the armed struggle. I had all the inexperience and the fears of a little girl. I found out that girls were obliged to have sexual relations to alleviate the sadness of the combatants. And who alleviated our sadness after going with someone we hardly knew?....There is a great pain in my being when I recall all these things.....In spite of my commitment, they abused me, they trampled my human dignity. And above all, they did not understand that I was a child and that I had rights.[36]

60. In another report, a 14-year-old girl abducted from Kitgum in Uganda and taken to Sudan by an armed opposition group recounted her ordeal as follows:

    In Sudan we were distributed to men and I was given to a man who had just killed his woman. I was not given a gun, but I helped in the abductions and grabbing food from villagers. Girls who refused to become LRA[guerrilla] wives were killed in front of us to serve as a warning to the rest of us.[37]

61. No doubt, these girls are subjected to untold pain and suffering. Thus, it is only legally rational that those who recruit, or force children to become soldiers, should be arrested and prosecuted. Surprisingly, those who recruit, by whatever means, children in their ranks, advance four reasons justifying their position. Some reasons are peculiar to a given conflict while many apply across the board. The reasons may be summarised as follows:

62. First, guerrilla leaders argue that children are much more easily moulded than adults. Second, children can easily be trained and disciplined, have a high degree of camouflagability, and run risky missions. The most significant factor however is their being easy to mobilise. Third, children are easier to intimidate and scare with punishment. As a result, they obey promptly and without question. Further, children are less inclined to desert than adults because they have few opportunities outside the barracks, or the bush. It is easier for children to become adapted to their new life conditions rather than an adult from his work, studies or families. Fourth, children normally have no family responsibilities and are healthy. Children are an attractive option for guerrilla leaders because they are easily conditioned and motivated, and can be put into battle with less training. Finally, in some context, children, especially the youngest recruits, are seen as having a particular value which mature soldiers do not possess, as spies, decoys, look-outs, mine-sweepers, and so on. Many children are recruited and trained specifically for assassinations and suicide attacks.[38]

63. There are therefore two categories of children: child soldiers and civilian children. In some ways, civilian children are most vulnerable. During flight from areas of conflict, children are exposed to multiple physical dangers. They are threatened by sudden attacks, shelling, snipers and landmines. Often they must walk for days with no or limited quantities of water and food. Under such circumstances, children become acutely undernourished and prone to illness, and they are often the first to die. Girls in flight are especially vulnerable to gender-based violence. Neither the laws of war, nor the Child Convention address these problems.

64. Another group of vulnerable children are unaccompanied ones. Unaccompanied children are those who are separated from both parents and are not in the care of adult who, by law or custom, has taken responsibility to care for them. As a priority in all emergencies, procedures should be adopted to ensure the survival and protection of unaccompanied children. Unaccompanied children are frequently mistakenly regarded as available for adoption. Again, neither the laws of war, nor the Child Convention addresses this problem.

65. In times of war, the disintegration of families and communities leaves women, and girls especially, vulnerable to violence. Most child victims of violence and sexual abuse are girls, but boys are also affected. Rape is not incidental to conflict. It can occur on a random and uncontrolled basis due to the general disruption of social boundaries and the licence granted to soldiers and guerrilla fighters. Most often, however, it functions like other forms of torture and is used as a tactical weapon of war to humiliate and weaken the morale of the perceived enemy, to terrorise populations or to force civilians to flee. Systematic rape is often practised with the intent of ethnic cleansing through deliberate impregnation.[39] Wartime rape often has a tragic ripple effect that extends far beyond the pain and degradation of rape itself. Unfortunately, the laws of war, and the Child Convention, do not effectively confront these types of abuse.

66. Landmines pose one of the most insidious dangers, causing untold suffering to millions of children caught up in armed conflict. Landmines are indiscriminate weapons that are triggered by innocent and unsuspecting passers-by, yet many States have not ratified the Landmines Convention.[40]

67. Landmines is a dangerous weapon of war. Children are particularly at risk. They are naturally curious about strange objects. Many of the explosives look like toys, pineapples or butterflies. Children may pick up or step on the devices while herding animals, working in the fields, or searching for firewood. Even when warnings have been posted about the dangers of mines, children may not be able to read, or recognise, these signs. So far, neither the laws of war, not the Child Convention, adequately protect children from these types of dangers.

    Legal Challenge

68. Despite the near universal adoption by governments of the existing Convention on the Rights of the Child (the United States and Somalia share the distinction of being the only countries in the world that have not ratified it) the definition of childhood is by no means as universal as the Convention implies. As indicated in the paper, many children under 18 do bear arms. I have argued for the minimum age for recruitment of children to be placed at 18. However, there are strong reasons for keeping the age below 18 years. This is the main challenge as regards protection of child soldiers - both official and unofficial soldiers.

69. The political, social and military situation in Africa, for example, is very complex. There are no simple answers. In some parts of Africa 16 and 17-year-old children from pastoral culture are expected to bear arms and fight -that being the only way to be initiated into adulthood. This rite of passage takes place soon after puberty. In this culture, with out without the law, children will always bear arms and join national armies or guerrilla groups.

70. There are also other states in Africa where 17-year-old children are no longer considered children. In many areas of conflict in Africa, particularly in Rwanda and Southern Sudan, 17-year-olds are expected to take on the role of adults, quite likely the head of a household. To many of these children, the choice is likely to be soldiering or starvation.

71. On a general note, in some parts of Africa, when there is no state to protect you, as is the case in Somalia, or the state is too weak, as is in the Democratic Republic of Congo, a gun may be the only way to ensure that you and your family are protected. Moreover, Africa is a young continent, demographically speaking. Most of its inhabitants are under eighteen. That is to say, the majority of Africans are children, in the terms of the Convention on the Rights of the Child. Against this background, perhaps it is not surprising that in many African states, recruitment age is ususally under 18. Recently Angola reduced its conscription age to 17, and Uganda allows children over 13 years of age to enlist in certain circumstances. South Africa accepts volunteers at 17 years.

72. Ironically, the proposed extension of the Convention on the Rights of the Child risks jeopardising, in the name of children's rights, this right of self-defence, a right that includes bearing arms in many parts of Africa. On the other hand, the failure of the international community to adopt a mandatory internationally acceptable definition of the term "child" while unfortunate, seems to recognise these difficulties. This failure therefore allows states to pick and choose when a young person is a child or an adult, and for a purpose subjectively determined by the state. It is therefore 'good' or 'bad' depending on which side you are on. For human rights lawyers and activists, this discretionary power, enjoyed by states, makes it problematic to guarantee human rights of children and provide effective enforcement institutions and procedures.

73. Forceful recruitment and deployment of children in armed conflict is a violation of human rights of children. Rape, neglect and abuse of children is widely acknowledged, though not much is legally done, through binding and enforceable legislation, to remedy the situation.

74. Another legal challenge is to Western countries, international organisations and arms dealers. The international community in general, and national governments in particular, must address the socio-economic roots of conflict and ban arms shipments to conflict zones. Actions to resolve conflicts and implement peace agreements should focus strongly on the needs of children. In the meantime, everything must be done to strengthen the laws of war so as to protect children caught up in armed conflicts.

75. The indiscriminate nature of landmines and the excessive suffering they cause children are strong enough reasons to convince States to ratify the Landmines' Convention. Many lives would be saved if governments immediately enacted comprehensive national legislation to ban the production, use, trade and stockpiling of landmines and support the campaign for a world-wide ban. United States, in particular, must be persuaded to ratify the Landmines convention.

    Conclusion

76. Most armies in the world, not just in Africa, would be in breach of the new age limit on recruitment proposed in the additional protocol to the Convention on the Rights of the Child. Although there is a case for establishing principles of good practice in military recruitment, principles that well-ordered countries can aspire to, the danger of enacting them into international law, a body of law that is already more honoured in breach than the observance, is that they will distract from the more fundamental and unambiguous issue of forced recruitment - an issue that many combatants and human rights workers, should be able to agree on. The right that must be asserted is the right not to be forced to fight.