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,
https://www.unicef.org/emerg/files/Cape_Town_Principles(1).pdf (last visited Mar. 8, 2008) and United Nations, Paris Commitments and Principles, https://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 https://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, https://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,
https://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,
https://www.asylumsupport.info/publications/rsc/healing.htm (last visited Mar. 4, 2008).
14 CRC, supra note 3, at art. 29.