Guest Post: Do Child Soldiers Remain Civilians?

[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?