The approval of the UN Convention on the Rights of the Child (CRC), kickstarter a “cultural revolution” to elevate the child from a passive object of protection to an active subject, building a new identity of the child as the holder of rights, who must be listened to, informed and respected. Almost all children are particularly vulnerable to armed conflicts and need special safeguards from the numerous dangers they face during hostilities, so as to help them rebuild their lives at the end of the conflict.
By Giulia Baldissera, mediatore penale in Giustizia Riparativa.
The Convention on the Rights of the Child and the Optional Protocol on the involvement of children in armed conflict
The Convention on the rights of the Child[1] was formally approved with resolution 44/25 of the United Nations General Assembly on November 20, 1989 in New York. It has become the human rights treaty with the highest number of ratifications. To date, in fact, 196 States have legally bound themselves through ratification to respect the rights recognized within the Convention. The text consists of 54 articles divided into three parts: in the first part (articles 1-41) all children rights are enshrined; in the second (articles 42-45) the institutions responsible for the implementation of these rights as well as the methods of monitoring the Convention are presented; finally, in the third part (articles 46-54) the ratification procedure is described. The Convention is furthermore completed by three optional Protocols approved in the 2000s, one of them concerning the involvement of children in armed conflict. Namely, the Optional Protocol on the involvement of children in Armed Conflict (OPAC)[2] concerns the protection of victims of international and in non-international armed conflicts. OPAC’s structure consist of a preamble and 13 articles aiming to solve the contradiction between article 1 of the CRC positing that a child is a every human being who has not reached the age of eighteen and article 38, which declares that States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.” The Protocol also condemns the recruitment, the training and the use of children by armed groups other than the armed forces of a State, recognizing the responsibility of those who recruit, train and use children for this purpose.
Additionally these purposes are related to others two important international law documents, namely the Statute of the International Criminal Court[3], which includes (among war crimes in both international and non-international armed conflicts) the call for conscription or the enrollment in the National Forces of children under the age of fifteen or the fact of making them actively participate in hostilities (art.4,paragraph VII). Similarly, the International Labour Organization Convention No. 182 on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour[4] prohibits forced recruitment of children in armed conflicts.
The following articles of OPAC describe what States are not allowed to do in armed conflicts and the measures they shall adopt to protect children in hostilities, such as the prohibition of recruiting children under the age of 18; the adoption of legislation to prohibit and criminalize the recruitment of children under 18 and their involvement in hostilities; the provision of physical and psychological recovery services and assistance to social reintegration; the prohibition of recognition of the right of a State’s armed forces or of an armed group to recruit or use anyone under 18 in hostilities. Indeed, article 2 supplements article 1 by committing States not to subject persons under the age of eighteen to compulsory conscription.
Article 3 confirms the right of children under the age of eighteen to special protection. Accordingly, the following paragraphs (2-4) require States to indicate, at the time of ratification or accession, the minimum age from which voluntary enrollment is allowed, in addition to the existing guarantees to avoid formal or forced conscription. Moreover, paragraph 5 clarifies that the minimum age requirement for voluntary enrollment does not apply to enrollment in educational establishments administered by armed forces.
Article 4 confirms the prohibition to armed groups not recognized as armed forces of the State to recruit or use in hostilities persons under the age of eighteen” and the duty to take legal measures necessary to prohibit and criminalize such practices.
Article 5-6 and 7 describe the role of the Protocol in the domestic legislation of the State, such as the obligation to take all necessary legal, administrative and other measures to ensure the effective implementation and enforcement of the provisions of the present Protocol within its jurisdiction […]all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration. (art.6)” or implementing the Protocol through cooperation with other States Parties (art.7).
Article 8 commits States to submit, within two years of the Protocol’s entry into force, a report to the Committee on the Rights of the Child, explaining the measures taken to implement the Protocol. Similarly, States must periodically submit to the Committee, according to article 44 of the Convention on the Rights of the Child, any further information with respect to the implementation of the Protocol. At the same time, the Committee on the Rights of the Child may request any further information with respect to the implementation of the Protocol as well.
Articles 9 to 13 describe the procedure for ratifying and amending the Optional Protocol. The entry into force requires the deposit of ten ratifications (Article 10). Any denunciation will take effect one year after notification in writing to the Secretary General of the United Nations, depositary of the Protocol (Article 11) and, in any case, only after the conclusion of an ongoing armed conflict.
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Children’s recruitment as soldiers: the case of Ongwen
Child soldier refers to any person under the age of eighteen who is, or has been, recruited or used by an armed force or armed group. They are not only recruited to fight, but also employed as spies, human shields, informants, sexual slaves. The treatment of children recruited as soldiers is abusive and mentally and physically destructive also due to punishments, which can lead to permanent physical or mental injury or even to death. In this situation, children are deprived of education or vocational training, and even of learning the family’s traditional means of livelihood. Children soldiering has an impact on other children, as former combatants who attempt to reintegrate are perceived with suspicion or outright rejected, while others may struggle to fit in. Even if international humanitarian law prohibits the phenomenon of abduction, enslavement and recruitment of children into armed groups, the phenomenon is widespread, as declared by the report of the Un Secretary General in 2020, which referring to the situation in Myanmar declared that the country task force verified the recruitment and use of 635 children (624 boys, 11 girls) with 64 in the last quarter of 2018, 238 in 2019, and 313 in the first half of 2020. In addition, 20 recruitments took place prior to the reporting period; 14 of these children were used until the end of 2019 and 6 until the end of the first half of 2020. A total of 587 children were verified as recruited (32) and used (555) by Government forces and 48 children by armed groups[5]”.
In addition, COVID-19 has increased child recruitment. Hence, the socio-economic impacts of the pandemic have spurred poor families to encourage children to join armed groups with a view to access food, increase their income or gaining protection. The same impacts have also created an increased risk for girls of forced marriage to soldiers, consequently leading to recruitment and employment by armed groups. The consequences of the above described mental and physical abuses could transform child soldiers from victims to perpetrators of war crimes, such as in the case of Dominic Ongwen, who was recruited as a child soldier when he was 10 in northern Uganda. He then became the leader of LRA (Lord’s Resistance Army), which was deemed responsible for the death of about 100,000 people and the abduction of 60,000 children in Eastern and Central Africa. The LRA has a cruel training for recruited children, including forcing them to kill or to witness murders. At the time of the kidnapping, children are given training in combat skills, including the use of firearms. Once the training period is over, children are sent to the front line, to delay the advance of the enemy troops or used as bait.
In front of ICC judges, Ongwen emerged as a brutal killer and a traumatized child soldier who grew up to be a conflicted man. He was convicted for grave violations and war crimes including rape, murder, children recruitment, forced pregnancy and forced marriage.
Conclusion
The problem of the recruitment of children in war is of interest to the entire international community, who needs to do its best for the application of the provisions of OPAC as well as for the fostering of greater cooperation among States parties to implement the prohibitions included in the Convention. at national law level. Furthermore, the international community should find an agreement on the difference between the recruitment of children by nationally recognized armed forces and dissident armed groups, as the rights of children are equally violated – first and foremost, the right to have an education that allows them to choose their life path voluntarily and consciously. Another preventive tool is the strengthening of sustainable economic support interventions, that could avoid recruitment by families in precarious economic conditions.
Eventually, the international community should cooperate in giving continuity to the prevention and recovery interventions of those children recruited and then released. Otherwise, the risk is that of condemning child soldiers, who from victims become perpetrators.
Note
[1] Convention on the Rights of the Child, General Assembly resolution 44/25,20 November 1989 https://www.ohchr.org/en/professionalinterest/pages/crc.aspx
[2]Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict,General Assembly resolution A/RES/54/263,25 May 2000 https://www.ohchr.org/EN/ProfessionalInterest/Pages/OPACCRC.aspx
[3] Rome Statute of the International Criminal Court https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf
[4] C182 – Worst Forms of Child Labour Convention, 1999 (No. 182) https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C182
[5] UNODC, Children and armed conflict in Myanmar Report of the Secretary-General, S/2020/1243 https://undocs.org/S/2020/1243
Photo: Children’s participation in hostilities