Child “Soldiers” and Civilians—Some Controversial Issues

Jenny Kuper*

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There is a common misperception that the issue of children in armed conflict
is a simple one, i.e.: that children should not be involved in armed conflict as
“soldiers” or civilians, ever. In an ideal world that would certainly be the case.
Indeed, in such a world no-one would be involved in armed conflict, since the world
would be at peace.

The reality is, of course, far from the ideal. Not only are children involved in
armed conflict in almost every continent, but their involvement raises many complex
and controversial questions. This brief essay aims simply to highlight a few of these,
without attempting to provide definitive answers or a detailed legal analysis.
One problematic question is the relationship between child soldiers and child
civilians. There is not necessarily an easy way to define the difference between the
two, since in practice the distinction is often blurred. In fact children, like adults
caught up in conflict, may move back and forth between being “civilians” and being
“combatants” according to the particular circumstances. Are children “soldiers” if,
e.g., they act as messengers for armed opposition groups, while still living at home
with their families? The answer to this question is broadly “yes.” It is already
established in international policy that the category of “child soldiers” does not refer
only to those who carry arms, but also includes children who are used for sexual
purposes or who act as cooks, porters, spies etc. for armed forces.1 Nonetheless the
distinction is not always clear.

For example, to what extent is consent or free will a part of the equation? Children
who are forcibly conscripted are still considered “soldiers,” but should they be
considered less responsible for their actions than children who volunteer to become
combatants? Further, what does it mean to “volunteer” when that choice may be
simply the lesser evil—e.g. to fight rather than to starve? Of course, in many
situations, the choice is not that simple. Children may be motivated to become
combatants for various reasons, such as a desire for revenge, and/or for the relative
safety of a military “family” in the midst of chaos. Again, is that a free choice? And
do—or should—children have the right in some circumstances to choose to fight?
The complex factors that can lead a normal child to become capable of merciless
killing are brilliantly described by Ishmael Beah in a long way gone, a first-hand
account of his own experiences as a child soldier in Sierra Leone.2
Even the term child “soldier” seems unsatisfactory. “Soldier” implies a
person who has been trained for combat in some way, but many children who directly
participate in armed conflict have no (or minimal) training. In many situations they
may not have been taught military tactics or even the use of weapons, and they almost
certainly will not be trained in ethical conduct as set out in the law of armed conflict.
More fundamental than that, though, is the question of “who is a child.”

Since 1989, when the Convention on the Rights of the Child (CRC) came into force,
the international community has had a fairly clear definition of “child,” as set out in
its Art. 1: “a child means every human being below the age of eighteen years unless
under the law applicable to the child, majority is attained earlier.”3 However, this
definition deliberately does not attempt to define the beginning of childhood (thereby
side-stepping the abortion issue), and clearly leaves some leeway as to when
childhood ends. The 1990 African Charter on the Rights and Welfare of the Child in
fact sets a higher standard, in that it defines a child as “every human being below the
age of 18 years” with no provision for earlier majority.4
In reality, children throughout history have, at various times, been involved in
armed conflict in huge numbers as both civilians and soldiers. That fact has not
changed, contrary to the popular belief that, in recent decades, children have been
much more involved than in the past. What has changed is our notion of childhood—
of who is a child—as reflected in the drafting of international law setting the
relatively high threshold of eighteen as the age of majority.

The issue of age becomes even more complex when addressing the question:
who is old enough to participate in armed conflict as a “soldier?” This issue has
been extremely controversial—including in the early drafting of the 1989 CRC as
finally articulated in its contested Art. 38 on children in armed conflict.5 Of course
there is now the 2000 Optional Protocol to the Convention on the Rights of the Child
on the Involvement of Children in Armed Conflict, which aims to raise to eighteen the
(low) age standard of fifteen previously set for child recruitment and use in armed
conflict.6 In addition, there have been other relevant legal developments such as the
1998 Statute of the International Criminal Court (ICC), which makes recruitment,
conscription and use in armed conflict of children under fifteen a war crime7—and the
1999 ILO Convention No. 182 (Convention Concerning the Prohibition and
Immediate Elimination of the Worst Forms of Child Labour) which prohibits forced
recruitment of children under eighteen.8

When considering who is old enough to be a soldier, the legal/child rights
answer is therefore easy: it is, in line with best practice, anyone from the age of
eighteen. But, again, how realistic is this? For example, in some countries the
majority of the population is under eighteen—and the European Defence Agency
(EDA) has recently estimated that by 2025 “the average African’s age is projected to
be 22.”9 On the other hand, the life expectancy of populations in the north is
consistently increasing, and the EDA estimates that by 2025 “the average European
will be 45 years old.”10 Thus, the real meaning of childhood and youth in these two
contexts will vary enormously.

In African countries and others with similar demographics, therefore, it may
be unrealistic to insist on eighteen as the defining limit for childhood and for
participation in armed conflict—since those under eighteen are likely to be living
fully as adults in their societies at a much younger age, and will form a relatively
large proportion of the population. Taking this even further, the UN apparently
prefers to deploy, in its peace support operations, those aged twenty-one and above.
What does this mean for countries where the average age may become twenty-two?
While in principle it is always preferable to support a high legal standard, there can
nonetheless be considerable tension between international standards and domestic
realities.

Further, there is the issue that in many countries in the world today birth
registration is still problematic, as there is no available reliable system for this. In
such countries, age is assessed on the basis of physical development and
responsibility. How then is it possible to prove that someone is over or under
eighteen?

Another challenging issue is how adult soldiers should be trained to respond
to children, both as child soldiers and child civilians.11 Indeed, adult soldiers may
find it extremely difficult to know how to react to child soldiers, and often see them as
particularly dangerous. (In fact, in some situations, e.g. in Burma and Afghanistan,
there are accounts of children who have become commanders.) On the one hand there
are the basic and arguably customary law principles of the child’s right to special
protection – while on the other hand there are customary/basic principles of the law of
armed conflict, e.g. the right to self-defence, and of accomplishing the military
objective of the mission. How can these conflicting factors be balanced? Imagine a
situation where a nineteen-year-old soldier in, say, an EU armed force confronts an
armed opposition fighter of seventeen. How should the EU soldier respond? Should
the seventeen-year-old be entitled to special protection here? That would depend on
the circumstances, but the harsh reality is that the EU soldier is entitled to act in self-defence, using minimal but possibly lethal force, whatever the age of his opponent. Again this underlines the fact that armed conflict is inevitably a brutal business, to be avoided whenever and wherever possible.

Further, as regards child soldiers who commit violations such as war crimes,
there is the difficult issue as to how—or indeed if—they should be held accountable.
In countries such as Sierra Leone and Rwanda the solution to this dilemma has been
to create parallel justice systems, excluding former child soldiers from the remit of the
international tribunals, which only try the “big fish,” while children who have
committed violations are dealt with by informal transitional hearings, using a “truth
and justice” model. Nonetheless, the question remains: is it appropriate to excuse
from the formal proceedings people under eighteen who commit terrible atrocities, on
the grounds that they are—or were at the time of the offence—children? And are
such children sometimes privileged in the justice system—e.g. by receiving
reparation, or special rehabilitation and treatment programmes, which other children
in that situation are not entitled to? Further, what about adults involved in such
conflicts, who may have no idea that recruiting children is illegal (e.g. when the use of
very young men as fighters had always been the cultural norm)? This is not to
exonerate the actions of such adults, but to highlight, again, dilemmas concerning the
issue of age, of who is a child—and also to highlight tensions between domestic and
international standards.

In this context, it is significant that the first prosecution by the ICC is being
taken against Thomas Lubanga, who is charged solely with conscripting, enlisting or
using children under the age of fifteen in hostilities in the Democratic Republic of
Congo (DRC). Joseph Kony, Vincent Otti and Okot Odhiambo, of the Lord’s
Resistance Army in North Uganda and Germain Katanga, former leader of the Forces
for Patriotic Resistance in Ituri, DRC have also been charged by the ICC with, among
other crimes, forcibly recruiting or using children. Liberia’s Charles Taylor is facing
similar charges before the Special Court for Sierra Leone.

The importance of these trials is not only the fact that an effort is being made
to “give teeth” to international law prohibiting the use of child soldiers, by punishing
those who violate this law. The trials are also potentially significant as warnings, or
deterrents, to others who may wish to recruit and use child soldiers. The existence of
these trials, and the relevant body of law, therefore needs to be made as widely known
as possible, including in military training.

Yet again there is the puzzling question: why, so often, is the focus on child
soldiers rather than child civilians? Perhaps one reason is that child soldiers provide
such a shocking contrast, of both innocence and danger combined. The image that
seems to grip the public imagination is of a small boy—usually African—dwarfed by
his big gun (although Africa is by no means the only continent that features large
numbers of child soldiers).

In fact, statistically many more children are affected by armed conflict as
civilians than as soldiers, as evidenced in the much-quoted UNICEF estimates:
An estimated 20 million children have been forced to flee their homes because
of conflict and human rights violations and are living as refugees in
neighbouring countries or are internally displaced within their own national
borders. More than 2 million children have died as a direct result of armed
conflict over the last decade. More than three times that number, at least 6
million children, have been permanently disabled or seriously injured. More
than 1 million have been orphaned or separated from their families. Between
8,000 and 10,000 children are killed or maimed by landmines every year. An
estimated 300,000 child soldiers – boys and girls under the age of 18 – are
involved in more than 30 conflicts worldwide. 12
(Of course another vexing question is how accurate such estimates can be—given the
complex and chaotic situations in which they are assessed.)

Interestingly, the UN now increasingly recognises not only the importance of
the issue of children in armed conflict generally, but specifically the impact of armed
conflict on child civilians. In this respect some progress is being made although the
international community is still, on a daily basis, failing such children (as in Darfur).
For example, under UN Security Council Resolution 1612 (2005) a
monitoring and reporting mechanism (Working Group on Children and Armed
Conflict) has been established, focussing on six grave violations of children’s rights:
killing or maiming of children; recruiting or using child soldiers; attacks against
schools or hospitals; rape and other grave sexual violence against children; abduction
of children; denial of humanitarian access for children. This Working Group began
by piloting its work in seven countries: Burundi, Côte d’Ivoire, the DRC, Nepal,
Somalia, Sri Lanka and the Sudan, and has already made recommendations to the
Security Council regarding action to be taken in respect of some of these. The
Resolution 1612 procedure thus recognises the importance of child civilians—five of
those six selected categories focus on violations that may particularly affect civilians.

Moreover, is it useful to think of children involved in armed conflict as,
primarily, victims? Increasingly there is a view that it is preferable to think in terms
of a new category, i.e. children as “competent survivors,”13 who literally hold
communities and families together in conflict and post-conflict situations, by taking
the role of breadwinners, heads of household for their families, and so on—not to
mention those former child soldiers, such as Beah, who somehow manage to survive
their unimaginable ordeals and to build new lives. There is a value in regarding such
children as competent survivors, as it paves the way to involve them in active
participation in society both during and after periods of conflict. Looking at them
purely as victims is not useful, or realistic, in either the long or the short-term.

Further, since children are the leaders and citizens of the future, the
importance should not be under-estimated of educating them to find peaceful
solutions to problems, in accordance with Art. 29 of the 1989 CRC which provides,
inter alia: “the education of the child shall be directed to: . . . (d) The preparation of
the child for responsible life in a free society, in the spirit of understanding, peace,
tolerance, equality of sexes, and friendship among all peoples, ethnic, national and
religious groups and persons of indigenous origin.”14 This principle applies equally to
children in post-conflict situations, some of whom, having experienced the horrors of
armed conflict, may become ardent advocates of non-violence.

Last we may ask, what is the importance of all this? Why does it matter? One
answer is that it is important, and it matters, both for altruistic and for selfish reasons.
From an altruistic point of view: many of us are affected (and perhaps brutalised) by
the harsh impact of armed conflict on children, by the images that we see in the
media, by the knowledge that every day in some parts of the world these events are
unfolding. From a selfish point of view: we inhabit a globalised world in which
conflict impacts most heavily on civilians and spills over borders, resulting in massive
population displacement, crime, influx of refugees, terrorism, etc.—frequently
involving young people. Self-interest propels us to find some solutions to these
problems.

Thus perhaps we owe it not only to affected young people to address the issues
above—we owe it to ourselves too.

 

* Research Fellow in the Law Department at London School of Economics, where she is also a member of the Advisory Board of the London School of Economics Centre for the Study of Human Rights.
Prior to obtaining a PhD from King’s College London, she worked as a UK solicitor primarily in child related law.
Dr. Kuper is the author of MILITARY TRAINING AND CHILDREN IN ARMED CONFLICT: LAW, POLICY AND PRACTICE (Leiden, Martinus Nijhoff, 2005) and INTERNATIONAL LAW CONCERNING CHILD CIVILIANS IN ARMED CONFLICT (Oxford University Press, Oxford 1997).

1 See United Nations Children’s Fund, Cape Town Principles and Best Practices, at 8,
http://www.unicef.org/emerg/files/Cape_Town_Principles(1).pdf (last visited Mar. 8, 2008) and United Nations, Paris Commitments and Principles, http://www.un.org/children/conflict/english/parisprinciples.html (last visited on Mar. 4, 2008).
2 ISHMAEL BEAH, A LONG WAY GONE:MEMOIRS OF A BOY SOLDIER (Farrar, Strauss & Giroux 2007).
3 Convention on the Rights of the Child, November 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].
4 African Charter on the Rights and Welfare of the Child, art. 2, OAU Doc. CAB/LEG/24.9/49 (July 11, 1990).
5 See CRC, supra note 3, at art. 38.
6 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, May 25, 2000, G.A. Res. 54/263, Doc. A/54/49.
7 Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 3.
8 Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, June 17, 1999, 2133 U.N.T.S.161, ILO Convention No. 182, available at http://www.ilocarib.org.tt/childlabour/c182.htm.
For further information, see JENNY KUPER,MILITARY TRAINING AND CHILDREN IN ARMED CONFLICT: LAW, POLICY AND PRACTICE 46-48 (Leiden, Martinus Nijhoff 2005).
9 European Defence Agency, An Initial Long-Term Vision for European Defence Capability and Capacity Needs, ¶ 9, http://www.eda.europa.eu/webutils/downloadfile.aspx?fileid=105 (last visited Mar. 04, 2008).
10 Id. at ¶ 7.
11 See e.g. KUPER, supra note 8, at 21-57.
12 United Nations Children’s Fund, Children in Conflict and in Emergencies, ¶ 2,
http://www.unicef.org/protection/index_armedconflict.html (last visited Mar. 4, 2008).
13 See e.g., Jo Boyden, Social Healing in War-Affected and Displaced Children,
http://www.asylumsupport.info/publications/rsc/healing.htm (last visited Mar. 4, 2008).
14 CRC, supra note 3, at art. 29.

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