LAW OF WAR

Anna Masi

INTRODUCTION

In the context of a war, children are among the victims. Studies demonstrated that the percentage of children, as victim of war, has increased. In 1990, it was estimated that civilians represented only 5 percent of the deaths, caused by the conflict. During World War II, this percentage had raised to 65 percent. Instead, now it has been calculated that approximately 90 percent of all casualties in modern conflicts is constituted of civilians, of which 40 percent are children. (1)

The biggest problem is that currently children do not play just this "passive" role in armed conflicts. They are called to combat and fight "actively" among the adults soldiers.

The 12th of February is not an ordinary day. Even if it is not a common and popular information, the 12th of February is celebrated the international day against the Use of Children Soldiers (2), also known as Red Hand Day. Recent data (3) show that approximately 300.000 children are combatants in conflicts worldwide, of which a lot are girls. It should not be this what children are supposed to do. They should spend their time playing, studying, running, staying with their family and friends. Instead, they are torn from their childhood and insouciance to be used as human weapon. The actual warring States do not pay attention on children as innocent people, civilians that should be protected in wartime but use them as instruments of war, a war they don't even understand.

In my paper, I will explain how the phenomenon of children soldiers works, its origins, where it is currently developed and which international instruments have been enacted with the purpose of stop and eliminate this horrible phenomenon.

1) PHENOMENON OF CHILDREN SOLDIERS

The recruitment of children takes place at the hands of the government forces and the non-governmental forces in international or local armed conflict (4)  This behavior is not an outcome of the modern world. The use of children soldiers is not a new phenomenon. During World War II, the United States's military legislation, just like the italian one, stated an age limit to be recruited and fight. It is not possible to say the same for other states, who participated in the WWII (5). In Germany was created, by Adolf Hitler, the Hitler Junde ( Hitler Youth), a paramilitary organization designed to train 16-17 years old boys as future soldiers. But, in the closing years of the war, these boys fought with and against adults, as normal troop.

Against the Nazi Army, russian children soldiers, in turn, fought. In the Soviet Union too, boys were incorporated into the combats units (6).

Coming back to the main point, Children Soldiers are defined by the "Paris Principles on the Involvement of Children in Armed Conflicts" (7) as:

"A child associated with an armed force or armed group refers to any person below 18 years of age who is, or who has been, recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls, used as fighters, cooks, porters, spies or for sexual purposes."

Another definition has been given from the Child Soldiers Prevention Act (CSPA) (8) of 2008, a United States federal statute, which states that the term "child soldier" means:

(i) any person under 18 years of age who takes a direct part in hostilities as a member of governmental armed forces;

(ii) any person under 18 years of age who has been compulsorily recruited into governmental armed forces;

(iii) any person under 15 years of age who has been voluntarily recruited into governmental armed forces; or

(iv) any person under 18 years of age who has been recruited or used in hostilities by armed forces distinct from the armed forces of a state.

2)  CURRENT CONCRETE EXAMPLES AND NUMBERS

The Child Soldiers Prevention Act requires publication in the annual Trafficking in Persons Report of a list of foreign governments who have governmental armed forces or government-supported armed groups that recruit children. The list of 2018 (9) includes the following States: Burma, Democratic Republic of the Congo, Iran, Iraq, Mali, Niger, Nigeria, Somalia, South Sudan, Syria and Yemen. These States are subject to restriction on security assistance and commercial licensing of military equipment from the United States.

Burma has been politically unstable and is involved in civil war since the 1948, years of its independence. Both the governmental forces, the "Myanmar National Army", and the ethnic militia recruited child combatants (10). In 2002, the Human Rights Watch11adopted a Report, "My gun was as tall as me: Child Soldiers In Burma". This Report has shocked the international community for the numbers of children soldiers cited. The major number of child soldiers is registered in the national army, which forcibly recruits children as young as eleven. Data taken from the observations and comments of former child soldiers suggest that 70,000 soldiers or more may be children (12). This incredible number, recorded in one State, refers to children soldiers in the National Army. With regard to ethnic militia, the United Wa State Army (UWSA) recruited 2,000 soldiers under 18 and 600/800 of them under 15. This Report dates back to 2002 but, as we can from the United State's list, the problem of Children Soldiers is still present in Burma.

In Iraq too, children are recruited from the Popular Mobilization Forces, an Iraqi state-sponsored organization.

Nigeria and Iran were added to the list for the first time this year. Talking about Nigeria, a jihadist group "Boko Haram" started an armed rebellion against the government of Nigeria and the State supported a group of militants, "Civilian Joint Task Force", formed to fight the jihadist group, known for the recruitment of child, as well as Boko Haram. Instead, in Iran, the Government recruited Afghan children to fight in Syria (13).

In the Democratic Republic of Congo, it is known all over the world the use of children to fight by the state armed group and the rebel forces. UNICEF estimated that, only in the Kasai region, between 5000 and 10000 children have been armed (14).

3)  FORCED OR VOLUNTARY RECRUITMENT

There are different ways in which children can be recruited. Basically, the recruitment can be voluntary (enlistment) or by force (conscription) (15) Talking about the voluntary participation in troops, parents often offered their children because of conditions of poverty in which they live. Children can voluntary become soldiers because the military's life can guarantee them basic commodities, like food, "safety" or because of their religious belief or simply because of the illiteracy, ignorance, lack of education. They see the military path as the only opportunity of their life.

Moreover, armed militia, governmental forces can, in a forced manner, seize children from orphanages, streets or schools in order to recruit them. Both national armed forces and opposition groups use threat and physical force to arm them. Once they become part of the military group, they have no right to choose what to do. Children are forced to kill, to torture people, to massacre villages, thus to commit serious crimes. In addition, children are often used as "sex slaves, porters, cooks, spies, and perform life-threatening tasks such as planting land mines " (16). For instance, in Sierra Leone, over a hundred children were abducted by the forces of the Armed Forces Revolutionary Council (AFRC) and Revolutionary United Front (RUF) rebels. These children recount that their mandatory assignments were murders, rape, arson, amputations. All of them told to have acted under the influence of cocaine or other drugs.17

Moreover, if children try to escape, once that they are found, they can be executed or they can be forced to join the guerrilla group again through the use of torture or the threat of death.

It is obvious which are the consequences on the children' lives of these atrocities. Physical injuries, disease, sexual disease, malnutrition and above all, a lot of children suffer psychological trauma. More of them suffer from anxiety and depression or lost the ethical perception. After living an entire life as a young soldier, they are not able to distinguish the wrong from the right.

But which are the reasons for adults to arm children?

First of all, children are easy to manipulate, to control and govern. They cannot be paid and they can be trained to become efficient soldiers. In addition, the development of small and light weapons means that they can combat without any disadvantage (18). It is easier to lead and to train to violence children that from the violence are surrounded since they are alive. Children are most vulnerable in areas which are under conflicts for a long period of time (19). Indeed, they are used to seeing nothing around but conflicts and violence.

INSTRUMENTS OF INTERNATIONAL LAW

1)  Two Additional Protocols to the four Geneva Convention

International humanitarian law and international law have started dealing with children' rights from the 1970s when the Two Additional Protocols to the four Geneva Convention were adopted in 1977. Before these Protocols, the international community did never worry about the problem of children soldiers. These Protocols try to strengthen the protection of victims of International Armed Conflict (Protocol I) and Non-international Armed Conflict (Protocol II).

Protocol I prohibits inhuman treatment and direct attacks against children, as part of the civilian population, stating, in the article 48, that the parties to the conflict shall distinguish between the civilian population and combatants and between civilian objects and military objectives and shall direct their operations only against military objectives.

Moreover, there is a specified Chapter in the Protocol I, called " Measures in favor of Women and Children", where it is established that children shall be treated with the care and aim they require and shall be object of specified respect and be protected against any form of assault. Particularly, "The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. " (20). The States should give priority to the oldest children when recruiting people between the age of fifteen and eighteen. As we can see, the protection guaranteed to children is pretty low. We do not find a general and mandatory prohibition about the recruitment. It seems to be an invitation to behave in a specified way, addressed to the States. Anyway, they should refrain from recruiting them but substantially they could recruit children under the age of eighteen.

In article 4 of the Protocol II, related to non-international armed conflict (21), instead, we can observe a clear and direct prohibition. In fact, it is established that : " Children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities. " Thus, in relation to non-governmental forces, it is prohibited both direct and indirect participation of children in armed conflicts.

2)  Convetion on the Rights of Children

In 1989, was adopted the first international instrument dedicated completely to the protection of children in time of peace and war, the Convention on the Rights of Children (22). The main objective of this Convention is to ensure that the child "by reason of his physical and mental immaturity," receives "special safeguards and care, including appropriate legal protection, before as well as after birth." (23) Unlike the Protocols, this Convention has reached near-universal acceptance because it has been ratified by 193 parties (24). Moreover, with this Convention, it has been created the Commitee on the Rights of the Child, which it is constituted of experts that monitor the correct application of the Convention by the States that have ratified it (25).

In this Convention, one might find the same provision included in the Protocol I, related to the recruitment of children (26). Indeed, article 38, firstly, warns States not to recruit children under the age of fifteen years in their national forces. But the second part of the provision affirms that, in recruiting children between the age of fifteen and eighteen, they should give preference to the oldest, contradicting the notion of children, established in article 1 (27). Thus, the low level of protection and defense of children present in the two previous Protocols was not increased. Thus, this Convention seems, from the lecture of the first article, to increase the age of children whom ensure protection but then, when deals specifically with the problem of children soldiers, the Convention decreases the age to fifteen.

3) Optional Protocol to the CRC

Before this disconcerting protection's level, the non-governmental Organizations and the United Nations started to move in the effort to enhance the necessary age to be recruited (28) to eighteen, considering that this age, in the majority of the States, is the legal voting age. Thus, in May 1998, was created the "Coalition to Stop the Use of Child Soldiers" by Amnesty International, Defence for Children International, Human Rights Watch, Jesuit Refugee Service, Quaker United Nations Office (Geneva), Radda Barnen for the International Save the Children Alliance, International Federation Terre des Hommes and World Vision International and regional NGOs from Latin America, Africa, Asia and the Middle East (29). The main purpose was the adoption and the adherence to international, national and regional standards, prohibiting and banning the military recruitment of children under the age of eighteen years by all the armed forces, both governmental and non-governmental. Among those standards, there was the Optional Protocol to the Convention on the Rights of Child, drafted by a group created by the UN Commission on Human rights after 4 years of elaboration. This Protocol was enacted with another international instrument related always to children and their wellness- the 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Pornography and Child Prostitution (30).

Through this Optional Protocol has been eliminated the problem related to article 38 of the CRC and article 77 of the Protocol I to the Geneva Conventions. Finally, it has enacted a Convention in which it is established the first international rule (31), which prohibits the recruitment of children under the age of eighteen years in the national armies (32). Moreover, article 1 states that States shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities (33).

The Optional Protocol allows the States to establish voluntary recruitment if there are these conditions: (a) the recruitment is voluntary; (b) the recruitment is done with the informed consent of the persons, parents or legal guardians; (c) Such persons are fully informed of the duties involved in such military service; (d) Such persons provide reliable proof of age prior to acceptance into national military service (34).

Negative and critical scholarly literature (35) exists in relation to this Optional Protocol too. Focusing on the first article, the use of the term "feasible" can lead the States to interpret it as to allow them to overcome the rule in exigent circumstances. Indeed, the feasibile measures have been explained in another international humanitarian protocol as "measures that are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military consideration" (36). According to this definition, there will be and there are cases of recruitment of children under the age of eighteen. In fact, a lot of States, which have ratified the Optional Protocol, included this definition in the interpretative paperworks, formulated at the time of the ratification, like the United States.

Moreover, another gap in the Protocol has been identified (37) with regard to article 1 and the use of word "direct". As we have seen, all around the world, unfortunately, children are employed in many ways in armend conflicts. For instances, as sex slaves, porters, spies, and perform life-threatening tasks such as planting land mines. The article seems not to give attention to these kinds of rules, which children can potentially play in armed conflicts.

4) International Criminal Court

Another important instrument adopted under the international law was the Rome Statute of International Criminal Court, of which currently 122 States are parties. This Statute was adopted in July 1998 and entered into force in 2002. The main purpose of the Statute is the creation of an International Criminal Court so that "the most serious crimes of concern to the international community as a whole must not go unpunished" (38) and " to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes" (39).

The Court has jurisdiction only when the States, which have ratified the Statute, have failed to prosecute the crime. Thus the ICC has a complementary and secondary jurisdiction (40). Object of this jurisdiction is: the crime of Genocide, the crime against humanity, the war crimes and the crime of aggression (41). The important thing, with regards to the Rome Statute in the context of children soldiers, is that, within the definition of "war crimes", falls the recruitment of children soldiers. Indeed, the art 8 (42), which establishes a list of war crimes related to international armed conflicts, includes also: "Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. "

In the same provision (43) but with regard to non-international armed conflict, the Rome Statute affirms the same prohibition by replacing the words " national armed forced" with "armed forces or groups".

This provision has been applied by the ICC for the conviction of Germain Katanga, a commander of the Patriotic Resistance Front of Ituri, an armed militia active in the Democratic Republic of the Congo. He was found guilty of sexual slavery and the use of children under the age of fifteen years to participate actively in hostilities (44). In 2014, the ICC convicted another former Congolese leader of another rebel group, Thomas Lubanga Dyilo for "conscripting and enlisting children under the age of 15 into his armed force" (45).

Special Court for Sierra Leone

As consequence of the horrible conflict in Sierra Leone, known for the 100.000 killed people, for the mutilations and the use of child combatants, it was created the Special Court for Sierra Leone in 2002. The Special Court was created to judge those responsible for crimes against humanity and war crimes committed after the 30th of November 1996, during the civil war in Sierra Leone (46).

As well as the Rome Statute, the Statute of the Special Court for Sierra Leone (47) criminalizes "conscripting or enlisting of children under the age of fifteen years into armed forces or groups or using them to participate in hostilities" (48), establishing that the Special Court has the jurisdiction to prosecute this specified crime. Indeed, in 2007, three leaders of the AFRC, Armed Forces Revolutionary Council, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, have been found guilty by the Special Court of various war crimes and crimes against humanity, among which the crime of conscription or enlistment of children under the age of fifteen years (49). Similarly, in 2012, the Court convicted former Liberian president, Charles Taylor for war crimes, including recruiting children under the age of 15 for combat.

LOOKING TO THE FUTURE

Nevertheless, some improvements have been made from the international community, even if not perfect, it is not possible to sustain that the children's protection has reached a maximum level. Indeed, it is sufficient to give a look around the world to understand that the problem of Children Soldiers is far from a resolution. Although we are surrounded by the presence of a certain number of Conventions and other international humanitarian Agreements, there are still States that continue to violate these analyzed provisions.

Anyway, there are potential solutions which can contribute to the elimination of this atrocity. First of all, the international instruments enacted to guarantee protection to children should be ratified by the widest number of States (50). The most important provisions analyzed and included in those Conventions and Protocols should be encompassed in the domestic law of all parties of them. As well known, international law is not enforceable and binding as much as domestic law. Thus, the incorporation of the international obligations into the national rules could be a potential solution. In particular, States should criminalize the conduct of recruitment of children under the age of 18 years. Indeed, the vast majority of extradition treaty between States contains the dual criminality clause. According to this latter, it is possible to extradite someone in order to allow his/ her prosecution by the requesting State only if the fact committed is considered as a crime by both the States. Thus, the criminalization can allow the prosecution of those criminals. Otherwise, States, who do not criminalize these conducts, can at least enact laws which allow the extra-territorial jurisdiction of other States. In this manner, we are pretty sure that such crimes do not go unpunished (51).

Another reason in support of this incorporation is the circumstance that the international law regulates the relationship between sovereignties and not individual actions. Thus, the inclusion of these provisions into national law can help to ensure that armed militia, non-governmental armed groups respect these obligations and fundamental provisions too.

Another potential solution could be the acceptance of the ban to recruit children under the age of eighteen as a norm of international customary law, a law that does not need treaties and ratification for its respect. All the States of the world must comply before a customary rule (52). Finally, it should be increased the control and the monitoring of international humanitarian law, through, for instance, the work of non-governmental organizations, such as Human Right's Watch (53).

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1 Stephanie H. Bald, Note and Comment, Searchingfor a Lost Childhood:Will the Special CourtofSierraLeone FindJusticeforIts Children?,18 AM. U. INT'L L. REV. 537, 543 (2002) (citing Women and Children Bear Brunt of War, SAIGON TIMES DAILY, May 3, 2002).

2 https://www.un.org/youthenvoy/tag/international-day-against-the-use-of-child-soldiers/

3 https://www.forbes.com/sites/realspin/2012/12/09/for-child-soldiers-every-day-is-a-living-nightmare/#6f693eb127bd

4 Amy Beth Abbott, Child Soldiers-The Use of Children as Instruments of War, 23 Suffolk Transnat'l L. Rev. 499, 538 (2000).

5 https://scriptamus.wordpress.com/2009/11/02/child-soldiers-are-unfortunately-nothing-new/

6 https://ww2gravestone.com/child-soldier-soviet-union-1944-military-use-children/

7 https://childrenandarmedconflict.un.org/publications/ParisPrinciples_EN.pdf

8 https://www.congress.gov/bill/115th-congress/house-bill/1191/text?format=txt

9 https://www.state.gov/j/tip/rls/tiprpt/2018/282577.htm

10 Prajakta Gupte, Child Soldiers in Myanmar: Role of Myanmar Government and Limitations of International Law, 6 Penn. St. J.L. & Int'l Aff. (2018). Available at: https://elibrary.law.psu.edu/jlia/vol6/iss1/15

11 International non-governmental organization, dedicated to protecting the human rights of people around the world, https://www.hrw.org/

12 https://www.hrw.org/reports/2002/burma/Burma0902.pdf

13 https://www.hrw.org/news/2017/10/01/iran-afghan-children-recruited-fight-syria

14 https://www.unicef.org/drcongo/en/press-releases/thousands-children-continue-be-used-child-soldiers

15 Susan Tiefenbrun, Child Soldiers, Slavery and the Trafficking of Children, 31 Fordham Int'l L.J. 415, 486 (2008)

16 Nancy Morisseau, Note, Seen But Not Heard: Child Soldiers Suing Gun Manufac- turers Under the Alien Torts Claim Act, 89 CORNELL L. REV. 1263, 1279 (2004).

17 https://www.ipsnews.net/1999/02/sierra-leone-captured-child-soldiers-handed-over-to-unicef/

18 Steven Freeland, Mere Children or Weapons or War - Child Soldiers and International Law, 29 U. La Verne L. Rev. 19, 55 (2008).

19 Id. supra note 3.

20 Art 77 of Protocol I, available here: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=8F7D6B2DEE119FBAC12563CD0051E0A2

21 Art 4 of Protocol II states: Chidren who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities;

22 Convention on the Rights of the Child, opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3.

23 Id. Preamble.

24 https://www.unicef.org/rightsite/237_202.htm

25 Id. supra note 18.

26 Art 38.3 of CRC states that: "States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest."

27 Art. 1 of the Convention defines a 'child' as a person below the age of 18, unless the laws of a particular country set the legal age for adulthood younger

28 Stuart Maslen, Relevance of the Convention on the Rights of the Child to Children in Armed Conflict, 6 Transnat'l L. & Contemp. Probs. 329 (1996)

29  For an explanation of objectives of the Coalition, go: https://www1.essex.ac.uk/armedcon/story_id/1379%20Report%20.pdf

30 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, May 25, 2000, G.A. Res. 54/263, Doc. A/54/49

31 Art 2 of the Optional Protocol to the CRc states that: "

32 Art 2 of the Optional Protocol which establishes:" States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces. "

33 Art 1 of the Optional Protocol.

34 Id. art. 3.

35 Steven Freeland, Mere Children or Weapons or War - Child Soldiers and International Law, 29 U. La Verne L. Rev. 19, 55 (2008).

36 Protocol to the 1980 Conventional Weapons Convention Concerning the Use of Mines, Booby-Traps and Other Devices art. 3(4),

37 id. supra note 35.

38 Preamble of the Rome Statute.

39 Id.

40 Rome Statute, art. 17 and art. 18.

41 Rome Statute, art. 5.

42 Rome Statute, art 8 (2) (b) (xxvi).

43 Rome Statute,art. 8(2)(e)(vii).

44 Id. supra note 18

45 See International Criminal Court, The Prosecutorv. Thomas Lubanga Dyilo, Trial Chamber I, Jan. 29, 2007, Decision on the confirmation of charges, 156-57 availableat http:/ /www.icc-cpi.int/library/cases/ICC-01-04-01-06-803-tEN-English.pdf.

46 Robert Cryer, A Special Court for Sierra Leone, 50 Int'l & Comp. L.Q. 435, 446 (2001).

47 Statute of the Special Court for Sierra Leone, January 16, 2002, 2178 U.N.T.S. 145

48 Id. art 4( c ).

49 Valerie Oosterveld, Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara & (and) Santigie Borbor Kanu, 103 Am. J. Int'l L. 103, 110 (2009.)

50 Stuart Maslen, Relevance of the Convention on the Rights of the Child to Children in Armed Conflict, 6 Transnat'l L. & Contemp. Probs. 329 (1996).

51 Id.

52 Amy Beth Abbott, Child Soldiers-The Use of Children as Instruments of War, 23 Suffolk Transnat'l L. Rev. 499, 538 (2000).

53 Id. supra note 51.