Child soldiers and international law: Patchwork gains and conceptual debates

Child Soldiers and International Law: Patchwork Gains and Conceptual Debates

Mary-Jane Fox

This article reviews and also compares developments within international humanitarian law and human rights law in regard to matters relating to child soldiers. Beginning with the Geneva Conventions and early twentieth century legal developments for children in general, this article identifies the legal and conceptual discrepancies in the child soldiers issue and how they relate to and affect each other. It also includes an overview of the child soldiers issue, followed by summary discussions of the respective strengths and weaknesses of international humanitarian law and human rights law in regard to child soldiers. Following from that, conceptual problems in the field that are problematic in regard to law are also considered, and some concluding observations are then offered. Among them is how the patchwork developments of the past still prevail, as evidenced by the ongoing two-tiered age division that exists within the under-18 category.

The phenomenon of actively recruiting minors--by persuasion or coercion-- to fight in or otherwise provide support for non-state parties in armed conflict is a disturbing and challenging global development. Historically unprecedented both in terms of scope and almost inconceivable levels of abuse, it is a trend that is becoming increasingly apparent. This increase is taking place primarily with non-state armed political groups, most of which operate well outside of and in flagrant disregard for any notions of human rights or international humanitarian law. t Admittedly, minors are still recruited into many state armies as well, but the mechanisms available for addressing the problem at the state level are generally more conventional, direct, and institutional in nature. -~ Ad- dressing non-stale cases is more problematic, however, and not simply because non-state entities exist and operate beyond legal reach. Although. for example, it may appear advantageous that both the human rights and humanitarian traditions do have applications to minors in cases of both international and non-international armed conflict, there are shortcomings within them as well as discrepancies between h e m . Because both branches of law, historically speaking, were unprepared" for the emergence and growth of the child soldiers phenomenon, they evolved as patchwork developments, resulting in some of the inconsistencies, contradictions, legal gaps, and lack of clarity ,~hich beset the phenomenon even today.

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28 Human Rights Review, October-December 2005

In addition, legal problems are further confounded by conflicting conceptual approaches to the study and understanding of child soldiers, and this has only compounded any problems which already exist within the issue. Referred to as universal and contextual approaches, they are not only at odds with each, but also with some aspects of human rights and/or humanitarian law. Although these complications are not to be solved straightaway, it is important for them to at least begin to be openly addressed. This article attempts to outline some of the more pressing aspects of these problems, and in doing so open them up for discussion, both among those who study international law but are unexposed to the child soldiers issue, as well as those who study child soldiers, but find the legal aspects somewhat confusing. The purpose of this article, then, is to review the development of law relating to child soldiers, and identify the legal and conceptual discrepancies in the child soldiers issue and how they relate to and affect each other. This article begins with an overview of the child soldiers issue, followed by summary discussions of the respective strengths and weaknesses of international humanitarian law and human rights law in regard to child soldiers. Follow- ing from that, conceptual problems in the field which are problematic in regard to law are also considered, and some concluding observations are then offered.

The Child Soldiers Phenomenon

Although some writers have pointed out that minors have taken part, both directly and indirectly, in hostilities historically, the instances they point out are few and far between, and bear little resemblance to the rapid global rise of child soldiers in the late twentieth century. From mention of the Children's Crusade of the thirteenth century, and boys and youth selected as squires to knights in the Middle Ages, to youth in the role of drummer boys in the eigh- teenth century and as combatants in the Hitler Youth in World War II, these and other often cited examples are mistakenly referred to as evidence that "children's engagement in military activity is not new "'3 On the contrary, it is important to stress that the contemporary child soldiers phenomenon is very new indeed, for in the post-cold war era it has reached proportions--both in terms of scope and ext remes-- that stretch far beyond any previous occur- rences in human history. It is simply unprecedented.

The child soldiers phenomenon now occurs globally, both across conti- nents and throughout cultures. The commonly quoted figure of an estimated 300,000 minors to be active militarily at any one time may well seem extreme to some, and insignificant to others. However, the meaningfulness is not so much a matter of numbers as it is the distribution, ~xcesses-, and rising fre- quency, which together suggest the possible birthing of a new and monstrous conflict norm. This trend promotes the idea that minors are lair game for recruitment, that they are expendable commodities, and that entitlement to special rights and protections is a hopeless Western daydream.

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The plain facts are that, at any one time, approximately 300,000 young people under the age of 18 are reported to be actively taking par~ in combat situations or serving as support personnel for the maintenance of combat situations in more than I00 countries around the world. 4 This cIaim of active participation exists on a sliding scale, ranging from minors who voluntarily enlist with parental or guardian consent into state armies, all the way to young boys and girls abducted from home and school and forced to kill or be killed. Although some Western state armies, for example, still allow under-18-year- olds to voluntarily enlist, their participation is obliged to be limited to non- combat duties. Some state armies in the developing world claim that strict age limitations are difficult to fulfil, since birth registration records for every individual do not always exist. Some countries, Burma being the most offensive of them, 5 deliberately and blatantly enlist under 18-year-olds, and do so for a range of reasons. Most state armies, however, tend to comply within acceptable norms, since to do otherwise could jeopardize relations with the international community in a range of important ways.

However, the worst abuses are generally perpetrated by non-state armies, though it must be made clear that not all non-state armies abduct or forcibly recruit child soldiers, and not all child-soldiers experience the same level of abuse. For example, in the lengthy anti-apartheid and independence struggles in South Africa and Namibia, recruitment by abduction is not mentioned, and the instances of armed minors in non-state armed opposition forces were few to none. The same can be said of the Eritrean independence struggle against Ethio- pia, where there were clear guidelines on the eligible age for armed participation and strict rules of conduct between the sexes. 6 Currently, there is also a similar observable trend in the Philippines (New People's Army) and in some instances in Sri Lanka. v There were also observable disparities in recruitment and treatment of minors in Mozambique's struggle between RENAMO and FRELIMO. 8

The Child in International Law

Developments in human rights law and humanitarian law applicable to children took place almost simultaneous to but distinct from each other. These two branches of international law are not the only sources of law applicable to children, but currently they are the main sources at issue. Cohn and Goodwin- Gill explain further:

There is no single source for the international law of the child, which means it must be looked for in specific and general treaties, in the broad field of human fights at both universe3 and re~4onat l;evets, in the rules of international humanitariar~ taw, in customary international law and in the law and practice of States. 9

The armed child, under international law is offered differing de~ees of protection through a patchwork of provisions in these two branches amid other


sources, and where one branch may fall short in its reach to protect, the other branch sometimes will provide complementary or corresponding protection. For example, although human rights law is directed only to States, international humanitarian law applies in some circumstances to both State and non- State actors, and so in some cases might account for the shortfalls o f human rights law.

It is also important to point out here that although international law has become quite clear in regard to who is a child, as well as what constitutes a combatant or soldier, there is no such clear understanding of or category for someone who is both a child and a soldier. The very concept of child-soldier or child-combatant does not exist within law, with the exception of provisions made for captured, armed minors.

However, the Coalition to Stop the Use of Child Soldiers does offer a working definition, and also promotes a "straight-18" approach, the crux of which opposes anyone under the age of 18 engaging in any kind of armed hostilities. They define a child soldier as "any person under 18 years of age who is a member of or attached to the armed political forces or an armed political group, whether or not there is an armed conflict." They are careful to stress that this includes a child participating in direct combat as well as an extensive range of military-related activities, including scouting, acting as messengers, and any sort of military preparedness training, as well as in a support capacity, ranging from carrying weapons, camp maintenance, or those suffering the abuses of forced labor or sexual slavery.

The all-inclusive definition above runs counter to developments in law, which problematically have demarcated between direct and indirect participation. Although this might suggest that the definition amounts to not much more than a "norms wish-list", it is in fact based on the realities of child soldiers in the field; the simple truth is that minors' various duties often overlap, so it can be difficult to separate direct from indirect participation. Both human rights law and international humanitarian law have maintained the direct/indirect di- chotomy throughout their development, and in doing so are unable to reflect the actual circumstances of the very minors they seek to protect.

Cohn and Goodwin-Gill point out lbalt even when complementary coordination between the two corpus juris is insufficient, the Martens clause pre- vails. Describing it as "one of the clearest examples of a rule of customary law in this field," they refer to Additional Protocol I (2):

In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

The extent to which the two branches" coordination or the Martens clause has had any substantive influence is difficult to determine. What follows here

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are brief overviews of each branch of law, including how they coordinate and ways in which they contradict or leave gaps. International humanitarian law is discussed first due to its earlier inception.

International Humanitarian Law

Concern for children within humanitarian law or the laws of war in general has a long history, and is not a late twentieth century development. As such, it precedes any notions of child rights per se, which is a more recent development. There is in fact a viable tradition of the special consideration for and protection of children during periods of war going as far back in time as that of Grotius, as well as Plutarch, Seneca, Sallust, and others. ~~ This does not mean that children were never victims of war, but that the norm as a guiding and practiced principle has been circulating for a very long time.

Geneva Conventions. With the exception of being identified among other categories of persons as qualifying for immunity during armed conflict, minors as a special category of consideration within humanitarian law did not appear in any instruments of humanitarian law in the nineteenth and twentieth centuries until the Geneva Conventions of 1949. The first three Conventions (GC1, 2, & 3) were intended to serve as an improvement and revision of selected previous conventions concerning the treatment of sick, wounded, or captured military personnel in the battlefield and at sea, and Convention IV (GC4) was devoted exclusively to the protection of civilians. It is important to mention that they have since become considered customary international law. Influenced by the recent events of World War II, it is hardly surprising that the Conventions were formulated on a general assumption that it was to be a body of rules addressing relations almost exclusively between states in armed conflict. Only cursory attention was paid to "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties," and this was in the form of common Article 3, found throughout all four Con- ventions, t t

In regard to children, although none of the four Conventions provide a direct definition regarding who was to fall within the category of "children,'" for the most part it was implied that children were people under the age of eighteen years and were entitled to certain considerations and protections, t2 As will be seen, GC4 inadvertently created different classes of children, so to speak, by indicating special considerat ion--for example, "preferential treatment" fo r ~ o s e under 15 as opposed to those ~nder ~ . This was to have ~elimrcussions in the long term, discussed subsequently. Of course, there were also a certain amount of minimum protections all children were entitled to as non-combatants, regardless of age, as well as being among the sick or wounded; this particularly refers to Article 3, which is found in all four Conventions, and is quoted below:


In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(I) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and t o m e ;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part o f ~ e other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status

o f the Parties to the conflict. However , the bulk o f child-specific articles can be found in GC4, the Pro-

tection of Civilian Persons in Time of War. Without taking an inventory of all the articles dealing speci f ica l ly with chi ldren, they range f rom main tenance

and educat ion ent i t lements f o r orphans , work and puni t ive restr ict ions, and

military exempt ion ) 3 It does not consider the prospect o f armed minors.

Obliging as GC4 was towards the special needs of children, it was not without inconsis tencies which would in t ime prove problemat ic in the changing nature o f war. As ment ioned above, there was dif ferent and/or preferent ia l

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treatment for children under 15, and this can be found in such articles as 38(5), 50, and 89. t4 It is not so much the preferential treatment per se that is problematic, but the fact that it establishes a special category of children under the age of 15 within the already special category of "children" or minors, assumed to be under the age of 18. What is important here is that this in turn appears to have served as a precedent for subsequent legal developments pertaining to children in situations of conflict. It is a division within the category of children which plagues substantive progress in legal instruments even to this day. It is important to keep in mind that all of these considerations and limitations for children were nevertheless quite limited in reach, as they primarily applied to circumstances of international armed conflict.

Addit ional Protocols I & II. It was not long before the Geneva Conventions were seen to be insufficiently comprehensive, and in the 1950s and 1960s, with inter-state war on the wane, and confl icts related to independence movements and the new post-colonial states on the rise, the exigency existed for the drafting of supplementary protocols to the Geneva Conven- tions. After several years of preparation and drafting, Geneva Protocols I and II were formally adopted by the Swiss-convened Diplomatic Confer- ence on the Reaff i rmation and Development of International Humanitar- ian Law Appl icable in Armed Confl icts in June 1977. As the Protocols Additional to the Geneva Convent ions of 12 August 1949, they deliberately were intended to serve as supplements to the Geneva Conventions, and covered both international and non-international armed conflicts. Ad- ditional Protocol I (AP1) is extensive, consisting of 102 articles. It addresses protection for victims of not only international armed conflict, but also "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self- determination .... ,,~5 Additional Protocol II (AP2) is a response to the need for establishing or clarifying the protection of victims in non-international armed conflicts, but is a much smaller document and only consists of 28 articles, making it quite limited in scope.

In regard to consideration for minors in general and recruitment of minors in particular, AP1 went further than GC4, particularly since it prohibited a state from recruiting even its own minor nationals. The most important articles in regard to recruitment of minors are found under Chapter II, Measures in Favour of Women and Children, Articles 77, Protection of Children. Paragraphs 2 and 3 are especially relevant:

77(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, ~n particular, they shall refrain from rec~'uiting them into their armed forces. In recruiting among persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflicl shall endeavour to give priority to those who are oldest.


77(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, the)r shall continue to benefit from the special protection accorded by this Article, whether or not they are prisoners of war.

The remaining paragraphs, 1, 4, and 5, stress the "special respect" due to all children and protection against "indecent assault"; the provision of special quarters for minors who are captured; and prohibition of the death penalty for any offences carried out while the accused was under 18 years of age.

At the very least, then, it was a first attempt at drawing the line somewhere by making effort to avoid using the youngest minors first for under-18 recruitment. It also, for the first time, prohibited under-15-year-olds from taking a direct part in hostilities, and provided protection for them even if they did participate and were captured, as reflected in paragraphs 1,4, and 5. In spite of this progress, some attention was nevertheless paid to the disappointments of Article 77 in that it was not as far-reaching as some might have wished. The three main shortcomings with Article 77 can be summarised as: l) a perpetua- tion of the Geneva Convention's division of minors into an under 18 and an under 15 age group; 2) the use of the term "all feasible measures" rather than the stronger "all necessary measures"; and 3) limiting the prohibition to only those taking "direct part in hostilities."

Concerning the age division, in spite of whatever reasoning lay behind the creation of that division during the drafting of the Geneva Conventions more than fifty-five years ago, the fact is that even today it poses an obstacle in substantive progress in the legislative prevention of child soldier recruitment For example, in spite of repeated efforts to further existing legislation to consistently draw the prohibitory line at 18 across the board--the "straight 18" approach--progress has been slow and piecemeal in reaching that goal. Prior to the May 2000, in the human rights document known as the Optional Proto- col to the Convention on the Rights of the Child on the Involvement of Chil- dren in Armed Conflict t~ (CRC-OP-CAC), States Parties were only to take all "feasible" measures to avoid under-15 participation in direct hostilities. The Optional Protocol provides some minimal improvement on this in Article 3(1) by requiring States Parties to increase the age of voluntary recruitment from fifteen; in effect, this only raises it to age 16. Article 1 maintains the "all feasible measures" onus against under-18 direct participation in hostilities. In the midst of this, it is interesting to keep in mind that no explicitly stated age limit or definition of children or minors was provided in any IHL documents, and did not appear maul the t~989 Convention on the Rights of the Child (CgC). ~7 These human rights instruments are discussed subsequently.

The choice of the term "all feasible measures" has been a particular sticking point, since it puts a limited expectation on the state. Cohn and Goodwin-Gill explain that feasible is to be understood as "that which is capable of being done and, by definition, whatever is under the jurisdiction and control of a

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party is prima facie capable of being done. ''~8 They go on to explain that although it might always be "feasible" for organized armed forces/groups to have a policy of non-recruitment of children, it might not necessarily always be feas~le to guarantee implementation or compliance within all armed groups. In other words, they are obliged to refrain from recruiting minors under fifteen into their own forces, because this clearly is what they are capable of; it is clearIy "within the authority or competence of the party. ''19 At the time of the Diplomatic Conference, however, the ICRC proposed the stronger wording "all necessary measures," though ultimately it was rejected so that states could avoid the "absolute obligations," l'interdiction absolue, such wording would entail. 2~

This also had strong implications in regard to the restriction in 77(2) of children under fifteen being prohibited from taking "a direct part in hostilities." Here again the ICRC attempted to strengthen this Article by including indirect participation in hostilities as well, since their own understanding of direct "meant a causal connection between the act of participation and its im- mediate result in military operations. ''21 However, only direct participation was ultimately agreed to, and Bennett rightly questions the foresight of that decision, since many minors do begin as support personnel and eventually become more actively engaged in actual combat over time. 22 He also points out that by clearly allowing even indirect participation, the primary purpose of international humanitarian law--protection--is undermined, since a minor with any level of involvement in hostilities is clearly exposed to danger. 23 Even more, the combined use of feasible and direct make a relatively weak demand on the parties to the document.

The purpose of 77(3) was to ensure that even if the principles of the previous paragraph were abused, minors under 15 still maintained special status as "protected persons." This would apply whether they qualified for the treatment due those with PoW status or not, and thus avoid falling outside defined parameters and be subject to undetermined treatment.

Additional Protocol II differs from API in that it addresses the needs of victims in conflict "which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under respensible 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." In other words, it includes well-organized and well-armed opposition forces which are violently oppos- ing governments perceived to be legitimate, or at least in keeping with the principles of the UN Char~er and related documents. 24 As inclusive as this, wording appeared to be, there were still possible situations which did not fall within AP2's ambit, such as cases of state collapse or more than one non-state armed group fighting another non-state armed group and the government. Four armed minors, this meant that the child soldiers in one group would have more protection and rights than those ir~ another.


For armed minors, AP2 is clear and simple in Article 4 (3c): "children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor be allowed to take part in hostilities.'" And (3d) claims "the special protection provided by this Article to children who have not attained the age of 15 shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured."

~ In this, AP2 provides an important advance for all under-15 minors from all previous treaties by not allowing states any room to maneuver away from prohibiting recruitment, whether it involved direct or indirect participation. Including even voluntary enlistment, all forms of participation in hostilities are proscribed by omitting the distinction between direct and indirect participation. So in some ways, under certain conditions, AP2 can be perceived as being somewhat stronger than AP1 in terms of child protection. However, it must be kept in mind that these apparently stronger measures only applied to non-international armed conflicts which fit the specific criteria for those conflicts. Together, then, both Protocols display some quite positive advancements in the law for child soldiers in both international and some non-international armed conflicts, though because they are asymmetrical in those advancements and also because there are clear restrictions in applicability, the potential force and reach of the advancements are weakened, and contribute to what already began as patchwork protection.

Human Rights, Child Rights

Human rights law in general can be understood as having become highly developed in a relatively short period of time, though of course the capacity to enforce the law has not comparably developed. This is especially so in regard to child rights, which fall under the umbrella of human fights law and so children are accorded human rights protection, but due to their status as minors, children are entitled to additional consideration and protection.

The recognition of the child or minor as a person needing special legal consideration was on the rise in the early nineteenth century, when child labour laws began to be established. The plight of young people working in textile factories up to I6 hours a day with little pay and under hazardous conditions became increasingly evident in both Europe and the United States, leading to increasing legal improvements for children as the century wore on. By the early twentieth century, attitudes had so evolved that the League of Nations developed several initiatives, beginning in 1921 with the International Confer- ence on the Traffic in Women and Children, followed by a declaration on the rights of children in 1924. The next significant step towards child rights and child protection can be found within the larger ambit of human rights, in the 1948 non-binding Universal Declaration of Human Rights, adopted by the UN in that same year. Subsequent human rights instruments, both regional and

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those more universal, also are inclusive of children even if they do nor specify them, and minors are only excluded in articles or paragraphs concerning suf- frage.

More recently, the I989 CRC is considered to be a groundbreaking development. 2~ This is not only due to the fact that it is the first significant instrument specifically applying to minors, or for the admirably wide range of issues it addresses, but also because, to date, it has been "a lmost universal ly ratified. ''~6 It prioritizes the interests of the child 27 by clearly defining a child as "every human being below the age of 18 years unless, under the law applicable to the child, majori ty is attained earlier. ''2~ Although there are several articles that ipso facto preclude the possibility of recruitment, 29 Article 38 takes the conspicuous step of venturing into or invoking international humanitarian law. In an unsuccessful effort to also use the CRC to improve on provisions within international humanitar ian l a w - - b u t which resulted in tepid conces- s i o n s - p a r a g r a p h s 1, 2, and 4 within that article still managed, despite the concessions, to refer directly to international humanitarian law and a state 's obligation to those laws which relate to children:

(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 to not take a direct part in hostilities.

(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 2 is an advancement on both AP 1 & 2, since States Parties are not just obligated to take all feasible measures in regard to their own recruits, but to anyone at all who has not attained the age of 15. This would include non- state recruitment. It also is not restricted to the type of conflict to which it applies, and so the patchwork protection is somewhat improved.

Paragraph 3 is almost identical to AP1 77(2), though it does not specifically ment ion " internat ional humani tar ian law." Like 77(2), it provides caut ions against recruiting minors under the age of 15, with the proviso that if under-18 recruitment becomes necessary, the oldest minors are to be recruited first:

(3) States Parties shaft retYain from recruiting any person who has not attained the age of fifteen years into thehr armed forces. In recruiting among those person~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.

It is interesting that among the objections that the United States and other countries had to particular aspects of this document in its early stages, the


United States alone argued that the CRC, as a human rights instrument, was not the appropriate means through which to make changes to or modify humanitarian law. ~ This is in spite of the fact that in 1986, at the 25th Interna- tional Conference of the Red Cross, it was suggested that the CRC should deliberately attempt to improve on the child protections within the Geneva Conventions and their two Additional Protocols. Although humanitarian law and human rights law were originally based on different principles and contexts- - the former on treatment of enemy persons within an armed conflict context, and the latter on norms of entitlement during peace- - they had not always functioned completely exclusive of each other, 3~ so the hard line the United States was attempting to draw was a bit strict. However, in regard to advances in children and conflict, the 1977 Additional Protocols were drafted well over a decade before the child soldiers problem began to visibly emerge on a large scale, and so it was not possible to foresee the need to include child- specific changes. Nevertheless, the United States" objections lose some of their force in view of the fact that children's rights always apply, during times of both conflict and peace.

In and of itself, perhaps the greatest weakness of the CRC is the fact that, as a human rights document, it is limited to addressing States, and thus not to any other parties, such as non-state armed groups, to a conflict. This of course does not at all reflect the late twentieth century trend away from inter-state conf l ic t and more towards intra-state confl ict . 3: This shor tcoming was recognised quickly, however, and by 1992 the UN Committee on the Rights of the Child forwarded the idea of extending Article 38(2) and drafting a protocol to the CRC. 33 Like the CRC, the resulting document fell prey to compromise, though without a doubt it was an improvement on the CRC.

Optional Protocol. Consisting of just thirteen articles, the first four of which are most notable, the Optional Protocol to the Convention on the Rights of the Child ( O P - C R C ) 34 was adopted by the UN General Assembly in May 2000, and entered into force in February 2002. At present it has been signed by 115 states. In regard to a state's armed forces. Article 1 instructs states to "take all feasible measures" that any under-18 year olds within its armed forces do not take a direct part in hostilities. This is a leap from Article 38 of the CRC, which prohibits those under the age of fifteen from taking a direct part in hostilities. 35 However, the "direct part" proviso is maintained. Article 2 prohibits the compulsory recruitment of under-18-year-olds into a state's armed forces, also a step beyond the CRC, which does not specifically mention compulsory recruitment restrictions.

In Article 3, with no distinction made belweet~ ~'direct" or "indirect" participation in hostilities, restrictions and safeguarffs concerning under-18 voluntary recruitment is covered in four paragraphs. 36 As mentioned earlier, Article 3~ It) requires States Parties to raise ~ e mi~0num age for voluntary recruitment in state armed forces, but it does not specify what it must be raised to, only that

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it must be raised. This results in the minimum age increasing by one year, from 15 to 16 years old.

Next, Article 4 refers to armed groups "that are distinct from the armed forces of a State," a category which also was not specified in the CRC. In this latter article, non-state armed groups "should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years." This is a sub- stantial step towards weakening the long-existent trend of a two-tiered age division within the under-18 age group. Although human rights instruments are only directed to states, and non-state groups are not party to such documents, the inclusion of this aspect in the OP reflects a sought-after norm await- ing codification.

What is also an interesting development in Article 4(2) is a certain degree of onus on the state in regard to non-state recruitment and use, where they are to "take all feasible measures to prevent such recruitment and use, including legal measures which prohibit and criminalise such practices." This is an important elaboration of CRC 38(4), which only specifies "all feasible measures to ensure protection and care of children who are affected by an armed conflict." Of course, it must be recognised that wide gaps in time can occur in the development and codification of the legal measures demanded by Article 4(2), and that the actual active practice or execution of those rules might also be problematic. However long such initiatives might take, this is nevertheless a necessary legal step forward, and lays the groundwork for future, stronger legal improvements. At this stage, however, even stronger wording, such as "all necessary measures," might have additionally helped, though even "all feasible measures" is at least a conceptual step forward in this attempt to strengthen the link between state responsibility and the existence and practice of non-state child recruitment. 37 The remaining articles concern such issues as non-derogation, the responsibilities of the States Parties in terms of implementation and en/brcement, the promotion of demobilization, disarmament and reintegration programs, reporting on implementation, and signing, ratifying and acceding to the Protocol.

Overall, the CRC and its Optional Protocol were important and much-needed steps in creating and codifying an awareness of the special needs of armed minors in situations of peace or conflict. Although it is not surprising that patchwork protection still prevai led--by retaining the two-tiered system, con- tinued use of "all feasible measures," and distinctions still made between direct and indirect participation--these documents are perhaps the best that could be expected at the time. Perhaps more comprehensive coverage could have been codified, but if so, there would have been iinle point ~a creating legal instruments committing states to obligations to wnicii they could not adhere.

In reviewing the development and current status of human rights law and international humanitarian law in regard to child soldiers, it might be summed up by making several observations: 1) in some regards, the extent to which


minors are protected from state or non-state recruitment into armed groups is improved from what it was, though it still is dogged by patchwork advances and patchwork protection; 2) the strength of human rights instruments always applying in times of war or peace is offset somewhat by the fact that it is only directed to states; 3) some limited accountability for the existence of both state and non-state underage recruitment has been directed towards States Parties; however, in cases of state breakdown, this development is of little value.

This last observation leads to the age-old problem of the lack of enforcement measures within international law; indeed, what could the purpose of law be, given that it is at times so blatantly abused. This latter point is especially the case in view of the fact that most of the worst cases of abuse are perpetrated by non-state actors, who are as far beyond the reach of law as they care to be. Although this might call into question the use of international law at all, perhaps one of the great strengths of the Optional Protocol, then, is merely the fact that, as a statement of almost universally desired norms, it serves as a meaningful counterweight to the recruitment of children as a rising "conflict norm." Of course, the obligation on states parties to prevent and penal ize-- even if only using all "feasible" measures-- is an important development as well.

Recent Legal Developments

There are two recent legal developments which stand separate from but yet relate directly to human rights law and international humanitarian law, the Rome Statute International Criminal Court, which entered into force July 2002, and a recent decision by the Sierra Leone Special Court which ruled the prohibition of child soldier recruitment under the age of 15 to be customary law.

The Rome Statute International Criminal Court (ICC) was a long time com- ing. It was to be in 1998, fifty years after the United Nations initiated the possibility of establishing an international criminal court, that a convention on it was finalized and adopted. But until July 1998, the prohibition of child recruitment, as forbidden in previous documents under a range of conditions, was yet not enforceable. Child recruitment was able to continue unchecked, particularly in regard to those armed groups which did not consider international pressure or opinion to be an impediment to their recruitment activities, n When the Rome Statute ICC entered into force in July 2002, with it came, under Article 8, entitled War Crimes. paragraphs b(xxvi) and e(vii), the enlistment of minors under the age of J5 as a war crime within the Court's jurisdiction. Both paragraphs use the same. wording: "conscripting or enlisting children under the age of fifteen years into armed' forces or groups or using them to participate actively in hostilities.'"

This legal development is significant for two reasons, the first, most obvi- ously, that an individual who is recruiting minors under 15 can be made per-

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sonally responsible for his or her actions. It has taken the prohibition of recruiting minors out of the anonymous and unrestricted world of non-enforceable child protection legal mechanisms and made it a punishable offence. What is also important here is that the direct/indirect dilemma is somewhat avoided, as the document does not use the terms at all, and allows for the conscripting or enlisting of any child under the age of fifteen into an armed group for any reason to be prohibited. It does not, for example, restrict the prohibition to recruitment for certain purposes, such as "direct" participation. Moreover, anyone using children under 15 to participate "actively" in conflict is prohibited, and this is worded in such a way that a child would not need to actually be recruited into an armed group per se in order for the prohibition to be applicable.

This would apply, for example, in a situation where young people are simply approached on the street to carry a package, as was the case in early 2004 when two Palestinian boys were solicited to carry explosives through a check- point. Neither of them apparently were recruited members of an armed group, yet the Rome Statute ICC still ensures that some individual can be held responsible. The possibility of equating "to participate actively" to "direct participation" appears to have been circumvented by the comprehensive wording of the articles. The second half of the articles could allow a minor "to participate /n-actively," and though this narrows down the scope of possible activity, it nevertheless does provide a possible loophole.

The Rome Statue has had important repercussions, particularly in Sierra Leone, where an estimated 5,000 to 10,000 child soldiers existed at any one time during its recent civil war. Child soldier recruitment had been especially excessive, with children as young as eight reported as being armed, and youths' audaciousness buoyed by AK-47s and narcotics. The desperation of conditions in Sierra Leone was underscored in the year 2000, when a patrol of British soldiers participating in UN enforcement operations in Sierra Leone were taken hostage when they would not fire upon a well-armed militia primarily consisting of children.

In 2002, once a ceasefire was established and efforts underway to rebuild the country, the Special Court for Sierra Leone commenced proceedings. The Special Court was created by the United Nations and the Government of Sierra Leone in the year 2000, and although it has since been argued that the Special Court is a national and not an international court, its Appeals Chamber has decided otherwise, finding the Special Court to be "an international criminal court properly constituted under interaatio~al Iaw. "39 Even more important, however, was the Appeals Chamber tubing one day later, which held that the prohibition of recruitment of children as soJdiers "had crystallized as customary international law. ''4~ This had been ~rgued ~therwise for the Defence Coun- sel of Sam Hinga Norman, who was in the Court 's custody and had been accused of recruiting children as soldiers? t His counsel had argued that dur-


ing the time period in question, the recruitment of children was not a crime under international law. Although the Court is mandated to try individuals for offences taking place after 30 November, 1996, it has yet found that the prohibition on child recruitment had crystallized as customary law before that date. It cited "the widespread recognition and acceptance of the norm" in several international legal instruments, including the 1990 African Charter on the Rights and Welfare of the Child. 42 However, a dissenting opinion found that it was not until the July 1998 adoption of the Rome Statute ICC that the recruitment of children as soldiers could be considered a crime under international criminal law.

It is too soon yet for the impact of the Rome Statue ICC and the Special Court ruling to be fully realized. Their gains are still tempered by the Rome Statue's maintenance of two-tiered protections for different age groups. What is certain, however, is that the tide has turned for the offenders of child recruitment, and the escape from accountability they relied on in the past is no longer guaranteed.

Conceptual Approaches

There are additional complications to the child soldiers issue that relate to legal developments. Outside of the explicit legal sphere, those who work in policymaking, development aid (both state aid and NGOs), and research tend to be divided into two distinct perspectives. Both of them can influence for- eign policy and development aid decision-making, and one has had a strong influence on the evolution of child rights, including UN resolutions.

Discussed in an article by Wessells in the year 2000, and explaining that the approaches divide into one of two categories--universalist and contextualist-- the author points out that a universalist approach stresses human rights and the universal ethical standards they represent. 43 It is based on the near-universal acceptance of who is a minor, or child. A universalist approach also perceives all under-18 recruitment into armed groups as offensive, from under-18-year- olds enlisting in state armies with parental permission to young teenagers join- ~ng an armed group in order to defend their own sociaI group to pre-teens abducted and desensitized to the act of killing.

The issue of child soldiers, by virtue of the fact that it is about minors and not adults, is to be seen as apolitical and as a purely child rights issue. Re- search that altempts to categorize it or identify different types or le,~e~s of child soldier recruitment is not encouraged, and this is simply because all child soldier recruitment is ~'all bad" This approach is more or less practiced by such organisations as the United Nations and its relevant bodies, including UNICEF, as well as Human Rights Watch, Amnesty International, Save the Children, and the Coalition to Stop the Use of Child Soldiers, the only NGO dedicated exclusively to child soldiers per se.

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One can say the universalist approach has been remarkably successful in its accomplishments, with the Optional Protocol to the 1989 UN Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (OP- CRC) being one of its shining examples. With 115 signatories and 69 ratifica- tions, the universalist approach through the OP-CRC appeared to be attempting to establish a near-universal norm, with an eye to its future crystallization into customary international law. Such accomplishments are no doubt impressive, and have great implications for state armies that blatantly and consistently recruit minors.

However, there are certain issues which the universalist approach does not and cannot address, partly since doing so would politicize the topic and taint its apolitical aspirations. Perhaps the most conspicuous and worrying of these are military concerns in the field, where it appears that the starting point is not the rights of the armed child-soldier, but instead the threat of the armed soldier-child. Here, the child becomes a political and security concern first and a child second. Legally, an armed minor is a legitimate target, and this fact alone drives it from the universalist apolitical refuge by exposing their capability for lethal force. In addition, until very recently, the universalist approach also had little meaning for the many non-state armed group leaders in the world using child soldiers, where there often is a clear disregard for child rights and the repercussions of abusing them. Some minors are even reported to having been killed when mentioning their so-called rights. In spite of these problems, the universalist approach nevertheless has been profoundly important in establishing norms, pressuring state governments, appealing to the public at large, and initiating, informing, and sponsoring important legislation and aid programs.

As the universalist approach can been accused of reflecting primarily West- ern-based notions of childhood superimposed onto a universal platform, the contextual approach takes into account the culturally constructed or culturally developed ideas and practices of childhood versus adulthood. Here Wessells suggests that "contextualists do not want to rule out the acceptability of child soldiering under certain circumstances "'44 and that the actual legitimacy of the use of minors for soldiering has been argued in terms of ethics, culture, and society. He elaborates what some of these circumstances might be, inch as enlisting in order to defend one's people or homeland from violent aggression or political oppression, or to be better able to help out and even provide for one's family. In societies that have been exposed to violent conffict or poverty for decades or generations, and~ thus bare a child population that is more po-- litically and socially aware, we ~annot be surprised at such developments. IrD such societies, children and young adu/ts are often entrusted with responsibilities far beyond what our Western minds would think them capable, so it is important to be mindful of where to draw the line between what is an abuse of child rights and what is an acceptable cultural variation.


Moreover, the contextualists would argue, the entire notion of childhood, adulthood, and the cut-off age between the two--or even if there should be a cut-off age at all--needs to be challenged. In some cases, for example, "people regard childhood as having ended when a young person has completed the culturally scripted rite of passage into manhood or womanhood. Most often, this occurs by age I4 or 15 years, although the numbers of people who com- plete the rites are decreasing. It is a misnomer in many parts of Africa to call a 14-year-old carrying an AK-47 a child soldier since local people may regard that young person as an adult. ''45

Progressive as this approach might be, it is not without problems. Child rights supporters may well be rightly wary of the potential for this alternative view to be reduced to a sanctioning of child soldiers as whole. It also invites judgements in regard to who is engaged in patriotically defending his or her own people and territory, versus who has been indoctrinated through propa- ganda to fight someone else's conflict. The reality is that it is not usually so clear-cut as to who is the informed and mindful young patriot and who is the gullible victim; sometimes it can well be a matter of political opinion. If the contextualist approach was adopted wholesale, it would also suggest the need for two different legal regimes, with child protection for some but not for those deemed adults. It might also undermine efforts to prosecute those who practice child recruitment.

The contextualists have not yet worked out what rights and protection an under-18 "adult" would be entitled to, and which ones would no longer apply, if he or she was to be granted adult status according to local custom, and that adult status also carried over to the level of international law. Even though cultural perceptions are not to be interpreted as a green light condoning armed combat using armed children and the disregard of international law, in following this thinking to its logical end, this is very close to where it might lead. Perhaps the greatest strength of the contextualist approach is that child soldiers are understood within their own circumstances and environments, which is helpful for aid programs, but that is perhaps as far as it really can and should go. Assigning adult status to under-18 soldiers has the potential to seriously undermine what advances have been made in terms of rights and protection.

There is nothing new about this tension between the universalist and contextualist approaches, as it is in fact part of a larger and familiar problem found in human rights and development aid discussions, ~a[ of universal norms versus cultural contexts. The broad guidelines and important documents en- gendered and supported by the universalist approach repJresent vital bench- marks in addressing the child soldiers issue through legal means; however, they are best understood as necessary but only partial first steps in a long process. The universalist approach, through legal instraments, attempts to prevent and protect, partly through codifying universal norms for minors, as well as by provfd[ng for the indictment of those who recrthr. The law it upholds is

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unable, however, to identify who is a child soldier-- the direct and indirect participant?--and until the CRC, was unable to even specify who is a child. Neither the universalist approach nor the law acknowledge local, traditional norms, however, and so there is no way of knowing the difference between abuses of the straight-18 approach and acceptable cultural traditions for a particular society. The contextualist approach addresses this gap, though as discussed above, it does so at its own peril. Nevertheless, if they are combined and cooperating, and mindful of legal implications, the universalist and the contextualist approaches can be powerful weapons in the war against those who convince and coerce our world's future adults into their own deadly games.

Closing Thoughts

When considering the law and child soldiers, it is good to have a historical perspective in order to avoid pessimistic conclusions. The good news is that the patchwork of legal developments for child soldiers is getting filled, and step-by-step has made great advances in the past fifteen years. It was not until late 1989 that the CRC was adopted, although it was to be another ten months before it actually entered into force. Before then, there was little to protect or even acknowledge the existence of child soldiers, and it was to take the almost simultaneous upsurge of them in the post-cold war era to encourage even more legal advances. Some might me over the fact that for o er forty years, from 1948-1989, only the smallest and most careful steps were taken; however, it must be kept in mind that the incidence of child soldiers during that period was sporadic at most, and had not reached the proportions it did after 1989.

There is some unfortunate irony in the observation that the recruitment of minors after the adoption of the CRC only increased, and clearly was not affected by it. However, those small steps taken in the first forty years only provided the groundwork for the relative leaps that have occurred since 1989. With recruiters now accountable for their actions, the prohibition on child recruitment declared customary law, states given some responsibility for the existence of child recruitment within their borders, under-15-year--olds prohibited from all participation in hostilities, under-18-year-olds subject to many restrictions in how they participate and voluntarily enlist, the straight-18 approach is closer than ever to being all sewn up. The blanket protections and rights that all minors deserve might not be far off, and the aggregate gains of these cor-

pus juris will have made its mark.

Notes

I. The term international humanitarian law is deliberately used here rather than laws ofwaror laws of armed conflict. This usage implies a focus on the treatment and protection of individuals, and so


avoids the non-humanitarian aspects of the laws of armed conflict. For a discussion of this distinction see Adam Roberts & Richard Guelff, Documents on the Laws of War (Oxford; Oxford University Press, 2000), pp. I-2.

2. States that enjoy the range of benefits of being in good standing with the international community would be disinclined to practices which run counter to the established norms of that community. Breaches of such norms could easily result in some loss of those benefits.

3. Michael Wessells, "How We Can Prevent Child Soldiering", Peace Review, 12:3(2000),p.407;see also, for example Frank Faulkner, "Kindergarten killers: morality, murder and the child soldier problem", Third World Quarterly, Vol. 22, No. 4, p. 494; and Peter W. Singer, "Fighting Child Soldiers", Military Review, May-June 2003, pp. 28-9.

4. See www.child_soldiers.org, the official website of the Coalition to Stop the Use of Child Soldiers. 5. Up to 70,000 minors are reported to have been recruited into Burma's state army; quoted from

Victoria Forbes Adam of the Coalition to Stop the Use of Child Soldiers, in David Pratt, "Lost Innocence of the World's Child Soldiers", Sunday Herald, www.sundayherald.corrd36685, p. 2

6. missing footnote 7. Yvonne E. Keairns, "The Voices of Girl Solders; Sri Lanka', Quaker United Nations Office,

January 2003, pp. 8, 12, 13. 8. Mazurana & McKay, for example, make this observation in regard to girl soldiers: Dyan Mazurana

& Susan McKay, Where Are the Girls? (Quebec; International Centre for Human Rights and Democratic Development, 201M), pp. 107-110.

9. Authors Ilene Cohn & Guy Goodwin-Gill provide more details on this point in Child Soldiers; the role of children in armed conflicts (Oxford; Clarendon Press, 1997), pp. 55-56.

10. ~ugo Grotius, Grotius on the Rights of War and Peace, ed., transl, by William Whewell (Cam- bridge; Cambridge University Press, 1853), Book Ill, Ch. XI, paragraphs VIII and IX, pp. 374-5. Even the present problem of whether to consider armed minors as legitimate targets is not solved by Grotius, for although he is quite clear that children are not to be killed, in paragraph X he stresses that "they who have taken arms should be punished in battle...", p. 375.

11. It is interesting that the C~nventi~ns were t~ pred~minant~y address armed c~n~ict between states at a time when several non-self-governing territories had been restlessly agitating for sovereignty. The concern for and awareness of this agitation is particularly reflected in the Charter of the United Nations, Chapters X1, XII, and XIII.

12. It can be reasoned that it was not the obligation of the Geneva Conventions to determine and define who is a child. However, just as criteria for prisoners of war are established in Geneva Convention III, Article 4, "in the sense of the present Convention", so might have the category of"children" been treated for the purposes of Convention IV. However, it is possible that this was avoided in order to gain consensus and accommodate cultural differences among the original 64 signatories. 1949 Geneva Convention IV, Articles 50, 51, 68 and 51 respectively. These articles specified preferential treatment for children under 15 in a range of roles: as aliens in the territory of a party to the conflict: as residents of an occupied territory; and as internees.

15. Put another way, it can be said that Protocol I covers international armed conflict as well as internal conflicts against ille~timate governments - meaning those which run counter to the principles of the UN Charter and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States. Both Spain and the UK had reservations to Protocol I, which reflected their problems respectively with the Basquesand the IRA at that time.

16. Entered into force February 2002. 17. Bennett sees this as a deliberate omission "to evade debate about what the minimum age for

recruitment should be and partly to accommodate the diversity of national laws defining the concept of childhood." He then observes that this "left a potentially troublesome area of ambiguity that states could exploit to their own advantage"; T.W. Bennett,. ~'Criminalising the Recruitment of Child Soldiers", Institute for Security Studies (Pretoria) Monograph No. 32; Using Children in Armed Conflict: A Legitimate Africa Tradition? December 1998. p. 6.

18. Cohn & Goodwin-Gill, p. 63. The official UK interpretation of'feasible" in API is similar: "that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations." checking this footnote

19. Ibid, ".

13. 14.

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20. M.T. Dutli, quoted in Cohn & Goodwin-Gill, p.61 & p.61, if, 18; Bennett notes that this phrase amounted to "...a diplomatic compromise that allowed states party considerable freedom to evade the general prohibition."; Bennett, p. 6.

21. Bennett, p.7. 22. Ibid, ". 23. ' ; " , see also H. Mann, "International Law and the Child Soldier", International and Comparative

Law Quarterly, Vol. 36, 1987; and Y. Sandoz et all (eds), Commentary on the Additional Protocols, Geneva: ICRC, Martinus Nijhoff, 1987).

24. It was also carefully added that it"shall not apply to situations ofinternal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature, as not being armed conflicts." In doing so, it reiterated the aims of Spain and the UK in their reservations towards Protocol I; see fn. 15.

25. Two years after the CRC came into force, the Organization of African Unity promulgated the Charter on the Welfare and Rights of the African Child (l 991). Although this instrument maintained the "direct" participation restriction, but it also determined that children were to be understood as all human beings under 18. Although it is only a regional treaty open to OAU members and not yet in force, it still is a step in the right direction. It is also worth mentioning here that In June 1999 the International Labour Organization adopted Convention 182, in which the use of children in armed conflict was identified as being among "the worst forms of child labour". Another notable document is UN Security Council Resolution 1379 from November 2001, a 5-page document recognising the wide range of problems relating to child soldiers.

26. Coalition to Stop the Use of Child Soldiers, Child Soldiers Global Report 2001, p. 39; only Somalia and the United States have not yet signed and ratified this document.

27. Articles 3 and 6 are particularly relevant in this regard. 28. Convention on the Rights of the Child, 1989, Article 1. 29. For example, Article 19(1) requires States Parties to take "all appropriate...measures to protect the

child form all forms of physical or mental violence, injury, or abuse..."; Articles 3(2), 6, and 16 are among those articles which are similar in this regard.

30. Bennett, p. 10; see also Rachel Brett, "Child Soldiers: Law, Politics and Practice" bztemational Journal of Children's Rights, Vol. 4, 1996, p.l15, if; and C. Hamilton & TAbu EI-Haj, "Armed Conflict: The Protection of Children Under International Law", International Journal of Children's Rights, VoI. 5, 1997, p.36: and UN doc. E/CN.4/1987/WG1/WE3.

31. Bennett, for example, points out that Geneva Convention IV includes the protected persons' individual rights, and that Geneva Protocols I and II were drawn from the International Covenant on Civil and Political Rights; p.8. See also Noelle Quenviet, "The relationship between human rights and international humanitarian law", Bofaxe No. 283E. 18.08.2004. available at www.ifhv.de ; and Roberts &Guelff, p.38.

32. States hz Armed Conflict 2001, (Uppsala, Sweden: Department of Peace & Conflict Research, 2001), p.2.

33. It is often pointed out that the Committee, which came into being viaArticle 43 in the CRC in order to examine "the progress made by States Parties in achie-~ing the realization of the obligations nnderraken in the present Convention", can do no more than receive reports from States Pames, issue observations, make recommendations and suggestions, and submit reports on their findings. However, the Committee's initiatives for the Optional Protocol was no small accomplishment.

34. The full title of the document is Optional Protocol to the Convention on the Rigl~ts of the Child on the Involvement of Children in Armed Conflicts. It was adopted and opened for signature, ratifica- tion and accession by General Assembly Resolution A/RES/541263 on 25 May 2000. Its entry into force took place three months after the tenth instrument of mtificatioa or accession.

35_ What constitutes direct vs. indirect participation is an unresolved discussion in itself and varies between institutions. It is an attempt to distinguish between ma act vei~ich could immediately result in thtalit~, injury or capture an opponent's soldier or cause damage to ~eir arras or installatio, o, as opposed to support for such an act such as supplying arms and equipment, acting as spies or lookouts, and maintenance versus duties for the armed group, such as cleaning and maintaining weapons, cooking food, etc. Bennett comments that "the broad range of activities entailed by an military operation, however, fosters areas of ambiguity ~md invites subjective interpretation.";


Bennett, p. 7. Given the reported wide range of activities minors are reported to be assignedwhen enlisted in an armed group, it may well be that precise distinctions would not apply.

36. These restrictions and safeguards include such provisos as the informed consent of parents or guardians, full disclosure of what duties are expected, and proof of age.

37. Article 4 ofthe OPis an interesting development, and coutd also be understood as states are wi/ling to impose further reaching obligations on their potential enemies than they are willing to accept for themselves in terms of age limit. It is important to bear in mind that enforcement is problematic, and that IHL always attemptsto find a balance between states' intentions to gain or not to Dye up their military advantage too easily while protecting the victims. Here, too, there is a compromise. Ifa state is not able to have full control of its territory, how could it ensure (using all "necessary" measures) its adversaries are not using child soldiers? It could be argued that it is difficult enough to achieve some level of victory, and in attempting to do so, cannot afford "wasting" resources on tracking and punishing child recruitment by its adversaries. This lack of control often prevents it from doing anything other than legislate.

38. The website for the International Criminal Court quotes former UN High Commissioner for Human Rights Jos6 Ayala Lasso: "a person stands a better chance of being tried and judged for killing one human being than for killing 100,000"; see www, un.org/law/icc/general/overview.htm (accessed 06/09/04).

39. "Charles Taylor is subject to criminal proceedings before the Special Court"; see www.sc-sl.org/ pressrelease-O5 3104.html

40. See www.sc-sl.org/pressrelease-O6OlO4.html 41. Norman's indictment can be seen in its entirety at www.sc-sLorg/indictment-CDEhtml 42. F•r a detai•ed discussi•n •f this decisi•n• see the Specia• C•urt• s website www.sc-s•.•rg and Sim•n

Meisenberg, "Customary International Law and the Recruitment of Child Soldiers", Bofaxe #286, 02.09.2004, www.iIhv.de.

43. Wessells, p. 408. 44. lbid, ". 45. M. G. Wessells & Davidson Jonah, Reintegration of Former Youth Soldiers h~ Sierra Leone:

Challenges of Reconciliation andPost-accordpeacebuilding, (South Bend, Indiana; University of Notre Dame Press, in press), p.3.