Guest Post: Do Child Soldiers Remain Civilians?

by Joanna Nicholson

[Dr. Joanna Nicholson is a Researcher at PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order at the University of Oslo.]

If you were to ask most International Humanitarian Law (IHL) experts whether the fact that a fighter is a child under the age of fifteen affects when they constitute a military target under IHL, their answer would most likely be ‘no’. The traditional view is that while international law prohibits the recruitment and use of children under fifteen to participate actively in hostilities, this has no bearing upon the status of the children involved and their targetability under IHL. Although there may be moral reasons for treating child soldiers differently to their adult counterparts in matters of targeting, from a legal standpoint they have no such entitlement.

I would like to propose that this issue may not be as cut and dried as most people may imagine. The basis for my argument is the reasoning employed by the Pre-Trial Chamber in the Ntaganda Decision on the Confirmation of Charges (‘the Decision’) from the International Criminal Court (‘ICC’).

Bosco Ntaganda is currently standing trial before the ICC accused of war crimes and crimes against humanity. Two of the charges he faces concern the rape and sexual slavery of child soldiers as a war crime under Article 8(2)(e)(vi) of the ICC Statute. In the Decision, Pre-Trial Chamber II found the conflict to be a non-international armed conflict, meaning that Common Article 3 to the Geneva Conventions and Additional Protocol II applied. Accordingly, in order to determine whether the child soldiers in question were entitled to protection under these provisions, the Chamber needed to establish whether they had been directly/actively participating in hostilities at the time that they were victims of the acts of rape and/or sexual slavery. The Chamber found that this must be assessed in the light of the prohibition against the recruitment and use of children under 15 to take an active part in hostilities. It held:

The mere membership of children under the age of 15 years in an armed group cannot be considered as determinative proof of direct/active participation in hostilities, considering that their presence in the armed group is specifically proscribed under international law in the first place. Indeed, to hold that children under the age of 15 years lose the protection afforded to them by IHL merely by joining an armed group, whether as a result of coercion or other circumstances, would contradict the very rationale underlying the protection afforded to such children against recruitment and use in hostilities (para. 78)

The Chamber concluded that ‘children under the age of 15 years lose their protection afforded by IHL only during their direct/active participation in hostilities’ (para 79). The children who were victims of rape and/or sexual slavery could not be considered to be actively/directly participating during the time that they were subject to acts of a sexual nature.

To summarise the Chamber’s reasoning, as it is prohibited under international law to recruit children under the age of 15 into armed groups and use them to participate actively in hostilities, such children do not lose their protection under IHL simply by becoming members of an armed group.

The concept of membership within an armed group is important in IHL, affecting when an individual constitutes a legitimate target. Thus, combatants are defined as being ‘members of the armed forces of a Party to the conflict’ (Article 43(2), Additional Protocol I). Combatants are entitled to privileges- the right to directly participate in hostilities and to prisoner of war status if captured. However, their combatant status also means that they constitute legitimate military targets at all times unless hors de combat.

The consequences of membership within an armed group for fighters who do not qualify for combatant status is less clear. Different approaches can be taken: all members of an armed group can be viewed as being legitimate military targets. Alternatively, one can look at the function of a member of an armed group, as the International Committee of the Red Cross recommend in their Guidance, meaning only those with a continuous combat function may be viewed as being legitimate targets at all times. A third possibility is that they retain their civilian status and may only targeted if they are directly participating in hostilities. Regardless, the fact of an individual’s membership within the armed group is often key to when they constitute military targets.

The Ntaganda Decision suggests that, as international law prohibits the recruitment of children under fifteen into armed groups, the consequences of such membership may be different for child soldiers, who remain under the protection of IHL unless they are in fact directly/actively participating in hostilities. In other words, they retain their civilian status, regardless of their membership within an armed group.

Should this approach be correct, it would give rise to questions: what happens regarding child soldiers who would otherwise qualify for combatant status, are they nevertheless entitled to combatant privileges? Are these child soldiers to be seen as having a kind of hybrid status, entitled to the advantages of both combatant and civilian status? This would be an unprecedented situation.

It remains to be seen whether the Trial Chamber will follow the lead of the Pre-Trial Chamber in this case, and, of course, even if they do, it is but one case, and does not necessarily set a precedent for IHL. However, the reasoning employed by Pre-Trial Chamber II seems sound- as recruiting child soldiers is prohibited under international law, then it is arguable that the children continue to have civilian status despite their membership within an armed group. Furthermore, it coincides with the general trend within international law towards protecting child soldiers, and may be indicative of an emerging rule of customary law. It would seem that this issue is not as black and white as it may first have appeared.

This post is based on my recent article, Is Targeting Naked Child Soldiers a War Crime?

http://opiniojuris.org/2016/02/15/guest-post-do-child-soldiers-remain-civilians/

18 Responses

  1. Good point, leave membership as the sole criterion.

  2. Thanks for the post . With all due respect , the post it seems , doesn’t raise the real issue :

    For , if children , actively fight in combat , then , they are legitimate military target , whatsoever so !!

    However , the post , doesn’t target the substantial issue , what is legally and effectively , The meaning of being a child .

    Typically , universally , a child is not considered as an adult . In domestic laws , child can’t or doesn’t have criminal liability below the age of – 12 , and in the Rome statute , it is raised to : 18 ( apparently but too complicated , see article 26 to the statute ) .This is legally and formally so .

    Second issue , is the mere fact or perception , that being a child , means that , his volition is impaired !! He can’t make his decision up, or consolidate his mind or wishes, as an adult can and does .

    In such , being recruited as a child , means , that his will or volition is and was impaired , couldn’t be recruited wittingly and out of free will . Here for example The Israeli penal code ( 1977 , common law ) concerning conversion of religion of a child , here I quote :

    ” Change of a minor’s religion

    368. (a) If a person performs a religious conversion ceremony of a minor or performs some other act that leads to the change of a minor’s religion, in violation of the provisions of section 13A of the Capacity and Guardianship Law 5722-1962, then he is liable to six months imprisonment.

    (b) If a person induces a minor, by addressing him directly, to change his religion, then he is liable to six months imprisonment. ”

    End of quotation :

    So , the child attitude or consent , is legally not considered , but the prohibited conduct .

    Indeed , there are of course , in many states , special treatments , for children : Social workers to take care of them , juvenile courts , and so forth …..
    In such , they can’t be regarded as prisoners of war , nor soldiers , since , there recruitment , can and should be considered typically as enslavement , and they should be released , they should have a kind of : ” hors de combat ” status .

    To my best knowledge , there are no international norms , defining so , the status of children once captured as apparent prisoners of war , and if so , the international community , should pay attention to it .

    Thanks

  3. Thanks for the post. As I understand it, your view is that if it is unlawful to compel children to join an armed force then they should retain their legal protections despite their membership and lose those protections only insofar as they DPH.

    Would you apply the same rationale to cases not involving children? For example, it is unlawful to compel a prisoner of war or other protected person to serve in the forces of a hostile Power. Should these individuals also retain their legal protections unless and for such time as they DPH? Thanks.

  4. I think the issue of compelling people kind of misses the point. As far as I know, whether a soldier was conscripted or volunteered never affected their status. Plenty of countries still do it. Also, giving additional protections based on age to participants of armed forces would probably only encourage the use child soldiers.

  5. Interesting, but does this reasoning apply to children who willingly take arms and become members of armed groups?

  6. Anon ,

    The whole idea, is that they can’t be recruited wittingly or voluntary for such wars and fighting.

    Of course , on the face of it , a child can be happy to be recruited .Suppose one child , from poor family , he would be happy to earn some dollars , and get even some candies for being recruited . He may even think , that like in video game , he would become a sort of Rambo fighter or whatever , they are children .

    The point is, that they can’t understand, the real significance of their choices. A war is very ugly, this is not a video game (by the way, there are adults, influenced by video games, to become, horrific mass murderers).

    A free will, means, that a person, is fully aware of the consequences of his choices. A child, lacking experience, lacking understanding, easily can be influenced by heroic ideas or adults, can’t really give consent, and voluntary being recruited to the army, let a alone, to war.

    Beyond it , of course one may assume , how a child is corrupted so .He assimilates as a child , violent and corrupt models of the world . A very good reason by itself , for tackling legally such disgust .

    Thanks

  7. Terror groups and insurgents have used children of 15 and below in combat and terrorist activities. In a conflict zone, how is a combatant expected to determine the age of the opposing forces’ personnel? LTTE, before its defeat and later IS and Boko Haram have been regularly using children in combat. It is practically impossible in a war to distinguish between an adult and a child. There have been juveniles around the age of 15 who commit crimes like rape and murder fully conscious of their actions and try to escape punishment taking advantage of the age limit. The protection can be accorded to children of seven and below because based on the maxim doli incapax. In other cases each case will have to be dealt on its merits.

  8. A very thoughtful post. I would only add that there is room to argue that there can be a child-specific concept of direct participation that reflects the ambiguous place of children in hostilities. Further, even if a child is lawfully targetable, the fact that the target is a child can have an impact on the type and degree of force allowed. I developed this in a recent post on EjilTalk http://www.ejiltalk.org/targeting-child-soldiers/

  9. Kumar ,

    1) With all due respect , you seem to confuse , law and courts . Legislator , typically , must be blind in legislating !! An age , is an age !! one can’t differentiate types or personalities in legislation .Law is blind , general , and must establish norms , embracing or applied on all citizens .

    If for example , the Rome statute dictates , no jurisdiction , below 18 , or domestic laws , no criminal liability below 10 or 12 , then :

    Can’t be applied or exempted on a basis of such or such personality , or character . Period !!!

    2) however, the use of: “fully conscious of their actions …” as used by you, is totally baseless . For awareness or conscious , has got nothing to do with judgment, nothing to do with competence. A six years old child (according to you, dismissed ) can be fully aware of the ” game ” he is playing, kill or get killed (like in a video game) but, not necessarily got to do with: judgment, competence. He may simply play the game , like an adult , simply imitating adults , near him , serving as models for him , to gain their appreciation , and feeling like them . The same , easier applied for raping even .

    Thanks

  10. Response…Joanna

    Thanks for your interesting post. Curious as to the basis of your claim that most IHL scholars don’t think an belligerent under the age of 15 is not permissibly targetable? Standard is whether they DPH, isn’t it? I can’t imagine any IHL scholar claiming that as a matter of law you could target a DPHng 14 year old for example.

  11. Response…sorry for the double negative. Who thinks a DPHng 14 year old can’t be targeted?
    Chris

  12. This is indeed an interesting issue to which the title of Gen. Romeo Dallaire’s book ‘They Fight Like Soldiers, They Die Like Children’ speaks.

    I agree that this issue (and the interplay between IHL and IHRL as it manifests in regards to this issue) may yet affect the debate on the legal implications of membership of a non-state armed group as it affects child members. However, I am more doubtful that this issue can or should impact upon the assessment of whether, in a particular scenario, a child is indeed engaged in DPH. I am yet to read Prof Provost’s post on Ejil Talk, and may thus yet be persuaded otherwise, but my main concern with “a child-specific concept of direct participation” is that it is difficult or almost impossible in some conflicts settings (specifically in the conflicts in which children are used most often) for the opposing forces to determine whether the their opponents include children or not.

    It is certainly not unusual for adult soldiers to engage child soldiers on the battlefield (indeed this is largely what makes child soldiering so abhorrent). However, the constant practice is that adult soldiers do engage children in these circumstances.

    One final point, I am not convinced that “the general trend within international law [is] towards protecting child soldiers”. There is an undeniable focus on child soldiering within international law, however, much of the debate is actually focused on accountability, and agency. It is certainly worth mentioning in this regard, that it seems to be a minority of children who are recruited through absolute force. This does of course open the debate to the decision-making abilities of children to join in the first place.

  13. Chris,

    You your post just came up after I submitted mine. I agree completely (if I understand the double negative correctly…)

    Gus

  14. I would like to know of there is any evidence from any recent conflicts that any state has treated child members of armed groups differently. Even if there is such evidence I would also like to know if it was done out of moral and not legal concerns

  15. @ El roam
    Sorry. I don’t agree with your views. After Jyoti Singh (known as Nirbhaya case), India has been forced to amend the law relating to juveniles.http://www.prsindia.org/billtrack/the-juvenile-justice-care-and-protection-of-children-bill-2014-3362/ Equal treatment cannot be meted out to a child of 7 and a teen of 15 because their understanding of the consequences of their actions are different.
    Thanks

  16. Thank you all very much for your thoughtful comments.

    Adil Haque- As regards POWs and protected persons who were being forced to serve in the forces of a hostile power, in my opinion these persons do retain their protection under IHL unless and for such time as they are DPH.

    Anon- The prohibition against the recruitment of children under fifteen applies irrespectively of whether the child chooses to join the armed group or not, and so I would argue that the reasoning applies to all child soldiers, regardless of their motives for joining. As El roam says, the overriding view is that children cannot voluntarily choose to become members of an armed group.

    Kumar- I agree that it is often very difficult for opposing forces to determine whether a fighter is a child under the age of 15 or not. However, my argument is that the child is a civilian, thus if they are DPH they constitute a military target.

    Chris- My perception is that most IHL experts see child soldiers as no different from adults when it comes to targeting (see the quote from Matthew Haploid in my article). I agree that if a 14 year old is DPH then they are a military target while they are so doing (as a civilian would be), but I would argue once they stop doing so, they are protected as a civilian, unlike their adult counterpart.

    Rene and Gus- Rene, I very much enjoyed your post, but I would agree with Gus that a child specific concept of DPH would be very difficult to apply in practice.

    Zach- the most famous incident involves the British Armed Forces in Sierra Leone (I refer to it in my article and Rene refers to it in his post). There has been some discussion on this matter within the military (see the NATO report I refer to in the article). However, the arguments for treating child soldiers differently from adults have largely been made on moral grounds rather than legal ones.

  17. Kumar ,

    In this point, you are maybe right (maybe) , yet, I haven’t written or expressed nothing in terms of personal view , on age thresholds, but principles . Age threshold is a matter which really does vary from state to state. In this , you are right .

    Thanks

  18. Thanks Joanna for your response.

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