THE INTERNATIONAL LEGAL REGIME PROHIBITING THE USE OF CHILD SOLDIERS
International Humanitarian Law and International Human Right Law have developed concurrently as a legal response to the issue of child soldering. There are a plethora of international legal instruments prohibiting the involvement of children in armed conflict situations. They include the following;
The Convention on the Rights of the Child (CRC) 1989
The Convention on the Rights of the Child (CRC) is one of the core treaties currently in effect and the only one that focuses entirely on children. The United Nations General Assembly adopted the CRC in 1989 and it took effect on 2nd September 1990, after 20 countries ratified it. It is the most widely adopted Human Right Treaty, as 192 of the 193 United Nations Member States are parties to it. The CRC is primarily concerned with four aspects of children’s rights (the four P’s): participation by children in decisions affecting them; protection of children against discrimination and all forms of neglect and exploitation; prevention of harm to them; and provision of assistance to children for their basic needs. Article 38 of the CRC places a duty on States to take measures to ensure that children under the age of 15 do not take a direct part in armed conflict and prohibits the recruitment of children under 15 years of age[4]. It further prohibits the forceful conscription of children into the armed forces. It is however pertinent to note that the CRC has failed to stipulate one universal age for the conscription of children into armed forces and armed groups. The CRC stipulates in Article 1 that a child is any person under the age of 18 and goes on in Article 38(3) to give state armed forces the right to conscript children between 15-18 years of age.
The Rome Statute
The Rome Statute of the International Criminal Court (ICC) is the first international treaty to criminalize the recruitment of child soldiers under the age of 15 as a war crime in Article 8 (2) (b) (xxvi).[5] However, despite the Rome Statute’s continuing emphasis on age fifteen, an international consensus appears to be emerging around raising the age of allowable direct participation in hostilities to eighteen years of age[6]. An epochal case adjudicated by the ICC on child soldering was the case of The Prosecutor V Thomas Lubanga Dyilo[7]. In this case, Lubanga, a former rebel leader active in the Ituri Province of the Democratic Republic of Congo (DRC) was found guilty on 14th March 2012 of the war crime of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities from the 1st September 2002 to the 13th August 2003 within the meaning of Article 8 (2) (e) (vii) of the Rome Statute.
The African Charter on the Rights and Welfare of Children
The African Charter on the Rights and Welfare of Children (ACRWC), the first regional treaty on children’s rights builds on the 1979 Declaration on the Rights and Welfare of the African Child. The preamble states that “a child occupies a unique and privileged position in the African Society and requires legal protection as well as care with regard to health, physical, mental, moral and social development”. This Charter, though only a regional charter, is important for several reasons. It recognizes that the right and welfare of the child are more important than the type of conflict in which the child is involved. It advances current international humanitarian protection by establishing that a child is anyone under the age of 15. The ACRWC has also mandated “parties to the Charter shall take all necessary measures to ensure that no child shall partake in hostilities and refrain in particular, from recruiting any child[8]”.
International Labour Organization (ILO) Conventions on Child Labour
The two ILO Convention on Child Labour are Convention No. 138 Minimum Age Convention and Convention No. 182 the Worst Form of Child Labour. These two Conventions are ‘fundamental conventions’. The implication is that under the ILO Declaration on Fundamental Principles and Rights at Work, all ILO member States have an obligation to respect, promote and realize the abolition of child labour, even if they have not ratified the convention in question.