Časopis pro politiku a mezinárodní vztahy

Global Politics

Časopis pro politiku a mezinárodní vztahy

Female Child Soldiers

Both children and women belong among social groups that should receive particular protection and attention also, perhaps especially, in times of war or armed conflicts in general. This is an undisputed issue about which there prevails common consensus even in the international area, demonstrated for example by the four Geneva Conventions concluded after the Second World War. That is why one could think that female child soldiers – a combination of the two mentioned especially vulnerable groups – are protected in a double way which should be sufficient and no bigger problems should occur in this regard – at least no bigger than the ones connected with boy child soldiers, for example. Yet, it is an extreme and cruel paradox that such a contention would be far away from being true.

In contrast, when one hears about child soldiers a picture of a little boy with a gun1 usually crosses their mind and similarly, when one thinks about protection (or more broadly, issues) of women in armed conflicts they imagine an adult woman, not a little girl. Girls have been simply lost somewhere between the categories of “child soldiers” and “women/female”,2 at least until very recently. Fortunately, nowadays still more and more people have been reminding us about stories and lives of female (or girl) child soldiers, which is also the intention of this paper.

This contribution tries to analyse the current legal situation of female child soldiers, problems which they face and, at least in some cases, also come with possible solutions. Therefore it is divided in three main parts: in the first one some facts about lives of these girls are introduced, in the second one an overview of existing law applicable to them follows, and the third part contains the analysis itself, i.e. it confronts the “law in books” (or “law in treaties”), including recent case-law with the reality and it points out at least some of the deficits of the current law. The article is ended with final conclusions and possible recommendations.

I. Facts – girls participating in armed conflicts

The image of armed conflicts has changed quite dramatically in recent decades, comparing to the one we know from the middle ages or even from the two world wars in the first half of the 20th century. One of the characteristics of today’s conflicts is that they are usually of internal scale which inter alia results in fading away the distinctions between the combatants and the non-combatants (Machel 1996: para. 22 et seq.) Another difference consists in wider involvement of children in these conflicts, both in roles of traditional combatants with guns seeking for the enemy to attack them and in some auxiliary roles. The (possible) growing participation of children is, a bit paradoxically, enabled by scientific progress and developments which have brought also guns so lightweight and still cheap so that even small children – sometimes almost smaller than their guns – are able to carry and operate it (Machel 1996: para. 27). However, it is not possible to give an exact number of children involved in armed conflicts, neither on the side of government armed forces nor on the side of non-state armed groups; the estimates talk about tens of thousands of children (Coalition to Stop to Use of Child Soldiers 2008b: p. 10).3 For a clearer idea, Amnesty International mentions the number of 250,000 (Amnesty International). The number is also changing all the time, as new conflicts arise and others are gradually settled down. According to the Child Soldiers International (formerly known as the Coalition to Stop the Use of Child Soldiers), child soldiers are involved practically in all armed conflicts around the world; specifically, in 2004–2007 they actively participated in conflicts in 19 countries (Coalition to Stop to Use of Child Soldiers 2008b: p. 10 and 9). And we may say that in all these conflicts girls as well as boys are used as child soldiers,4 al­though their roles in the armed groups may vary (or may not either). On average, girls constitute approximately one third of all child soldiers participating in conflicts (e. g. Save the Children 2005: p. 1).

The experience of female and male child soldiers may be quite similar but there may be significant differences as well. Especially these differences show that it makes sense to distinguish between girls and boys in armed conflicts and to draw some attention specifically to girl child soldiers, too. On the following lines we will try to present these differences, or at least some of them; they are of certain relevance both before a girl enters an armed group,5 during her participation there and after she leaves the group – this paper calls these pre-participation, participation and post-participation phases. However, even if we recognise these differences we must still bear in mind that while the situation and position of a boy child soldier may not vary so much from one region or armed group to another, the situation and position of girl child soldiers really does. Therefore it is not possible to conceive that the below-mentioned applies to all of them and to ignore the particularities of each region/armed group/case; to do so would be useless if we want to help them, strengthen their protection or make any progress in this area at all.

I.1. Pre-participation phase

There are various ways in which a child may engage with an armed group, no matter if governmental or non-state one.6 Three general ways are usually recognised: compulsory recruitment, forced recruitment and volunteering (Happold 2005: p. 8). The latter two are of particular interest for us since they may be specifically gender-oriented. While compulsory recruitment is usually set by the law, forced recruitment occurs when children are simply abducted, seized out of schools, streets, or even their homes during, for example, an invasion of an armed group into their village. Girls may be forcibly recruited intentionally when they are sought for playing a specific role in the group which boys cannot (see below). The third possibility, sometimes the most frequent one (Happold 2005: p. 8),7 is very disputable as there are doubts about real freedom of choice of children in such situations (Brett, Specht 2004: pp. 105–121; Happold 2005: p. 29 et seq.; Machel 1996: para. 38). Anyway, there is a variety of reasons why children decide to enter an armed group on their own (Happold 2005: p. 11 et seq.). The reasons which are particularly, although not exclusively, connected with female children include domestic problems, protection and equality (Gilbertson 2008: p. 221).8

Many girls are subject to domestic exploitation and/or abuse which may be of sexual, physical and/or mental character, e.g. sexual violence, beatings, being a “domestic servant”. Moreover, they are not allowed to decide on their own upon their future, nobody cares about their visions, desires, expectations; they are often forced into a marriage they don’t want to contract etc. In such situations it may seem to them that there is no other option than to escape from their actual homes and join a fighting group which may provide them with better future. Girls may also seek a kind of protection by joining an armed group since as civilians they are perhaps the most vulnerable social group in the armed conflict: “given the high level of physical and sexual abuse of girls in some current armed conflicts, the decision to take up arms rather than waiting to be raped, maimed and/or killed is a rationale decision for teenage girls“ (Brett 2002: p. 3) – they “volunteer to survive” (Gilbertson 2008: p. 222). And some girls consider the life with an armed group, usually an anti-governmental one, as an opportunity to reach a better social position or role, to reach equality with men/boys. Indeed, some opposition groups have been really based on ideologies claiming equality between women and men and treating both genders in the same way. Unfortunately, even if it is true9 and girls’ fight, actions, decisions, or generally voices are given the same weight as those of boys during the conflict, the situation often changes dramatically after the arms fall silent and the life gets into the old rut.10

To end with, it should be added that there is never, or at least usually not, one sole reason for joining an armed group but the girl’s decision is influenced from more directions; different reasons interact among one another and they are interdependent. Cultural environment, local customs and traditions – namely perception of the role and position of woman or girl in the society – are also very important (Brett 2002: pp. 2–5).

I.2. Participation phase

This phase may be the most decisive from the legal point of view as the current law dealing with child soldiers often focuses on the “direct” or “active” participation of children in armed conflicts. This legal short-sightedness may have particularly unpropitious consequences for the effective protection of girl child soldiers and prevention of their recruitment and use, as will be discussed below. The problem with girls is that their participation in armed conflicts usually does not consist only of combating, as may be the case of some boys, but they are involved in variety of activities, ranging from providing sexual services over nursing and preparing food, serving as spies and messengers to fighting with guns. Generally, we may say that child soldiers – both boys and girls – are used in different roles and functions within armed groups. These include functions of porters, guards, domestic workers (in gardens, gathering and preparing food, cleaning), lookouts and messengers, spies, informants, workers for laying landmines and also looking for them, and of course combatants and providers of combat training for new members, etc. (Machel 1996: paras. 44–45; Gilbertson 2008: p. 223). Nevertheless, there are some specific “tasks” assigned to girls much more frequently than to boys: childcare, medical assistance and sexual services (Fujio 2008: p. 8; Brett, Specht 2004: p. 87). It means that some girls who are running away from an unbearable situation in their family meet with the same or even worse situation and work in the group. Girl child soldiers are sometimes involved in combat especially in order to intimidate the enemy, too (McKay 2008: p. 170).11

Being a “sexual slave” is perhaps one of the most common pictures of a girl involved in an armed conflict. Many of, maybe most of, female child soldiers are used also for rendering sexual services, some of the girls are even intentionally abducted or recruited to become “wives” of commanders, sometimes serving as a kind of reward for the best fighters (Gilbertson 2008: p. 223), other times being sexually abused daily by multiple men (Fujio 2008: p. 9); but in both possibilities they are treated rather as a thing than as a human being. In other cases, providing sexual gratification to men or boys in the group may be an additional task for girls engaged mainly in other activities as demonstratively listed above (Quenivet 2008: p. 222). And there are also groups where girls may choose one or more partners because this could bring them some benefits such as more or better food or clothes, higher “comfort”, or even better social position within the group (Brett 2002: p. 2). On the other hand, it cannot be supposed that every female child soldier has participated in sexual activity during this period of her life. There are also groups, rather opposition ones, which strictly forbid any sexual relations between their members or make them subject to approval of the authorities.12 It follows that sexual exploitation, although widely spread, should not be simply assumed in all cases – “to do so is to deny the individual experiences of the girls and to treat them as a category of actual or potential sexual objects“ and “is likely to further stigmatise the girls and limit their future prospects and status in society” (Brett 2002: p. 2).

I.3. Post-participation phase

Although this phase is often not addressed, at least not primarily, by the law, it is necessary to mention it as well to complete the picture of a female child soldier. It is clear that participation in armed conflicts brings significant consequences to children’s lives, both of physical, psychological and social nature. Among specifics connected mainly with girls one can imagine health problems caused by the sexual activity which girls are often forced into. These problems include sexually transmitted diseases, even HIV/AIDS, problems caused by unwanted pregnancies and possible abortions during and after which girls usually do not receive proper medical care; as often duly untreated they may turn into more or less serious lifelong problems and illnesses, possibly affecting also reproductive capabilities of the girl. On the contrary, if girls become pregnant and they are not forced to abortion they return not alone but with a child, or children, from the conflict. Yet, these children may suffer as much as their mothers from possible unfriendly environment reluctant to accept them. Moreover, the mother herself may have problems with accepting and/or loving an unwanted “war child” (Gilbertson 2008: pp. 226–227).

Girl’s sexual activity during the conflict, even only presumed one, may stigmatize her in eyes of her own family and original environment after her return; she may be seen as “impure” so her family rejects her, she cannot find either a husband or even a job, which explains possible increased rates of prostitution after armed conflicts. Opportunities to get back into a “normal” life are even more diminished for these girls since many times they are excluded from disarmament, demobilization and reintegration (DDR) programmes. This exclusion is frequently caused by a condition for participation which consists in returning one weapon – girl soldiers who have not served as combatants but in other, support roles simply cannot meet this condition (Fujio 2008: pp. 12–13).13

All the described circumstances, as well as many other, affect also the mind of a former female child soldier. Feelings of hopelessness, worthlessness, despair, rage and guilt are not surprising (Fujio 2008: p. 11). However, what may be unexpected is difference in perceiving the conflict experience by boys and by girls – some researches, namely from Sierra Leone, show that “whereas [boys] seek – and are permitted – to absolve themselves from blame by abdicating responsibility on the basis that they were forced, drugged, had no other choice, and so on, girls do not attempt to do so even though their circumstances were very similar” (Brett, Specht 2004: p. 97). According to that research, moreover, “in Sierra Leone it is easier for a boy to be accepted after amputating the hand of villagers, than for a girl to be accepted after being the victim of rape” (Brett, Specht 2004: p. 97). Nevertheless, this is not a general conclusion as it always depends on the particular culture and its rules, attitudes and view of the role of girl/woman in the society.

II. Law – an overview of applicable legal instruments

After sketching the situation and experience of female child soldiers including some of the problems they face, we will now present an overview of legal instruments which may provide them with some protection, or generally speaking, instruments responding to the (female) child soldiers phenomenon. These instruments can be found in several areas of law, mainly international humanitarian law, international human rights law and international criminal law. There are also national laws applicable to the issue but these will not be discussed in this paper as it focuses on the point of view of international law and it is not concerned only in one country. In addition to binding law we can find also soft-law instruments dealing with the issue.

II.1. International Humanitarian Law

International humanitarian law (IHL) comprises rules which apply during times of war towards both combatants and civilians. The fundamental IHL documents include the four Geneva Conventions of 1949 but these do not specifically address the child soldiers issue. Nevertheless, all of them contain the Common Article 3 applicable to non-international armed conflicts which is particularly important today as majority of the conflicts are rather of internal character. This article obliges contracting parties to treat all persons who do not directly participate in the conflict humanely. Further, it should be mentioned that the Fourth Geneva Convention, protecting civilians, also comprises some provisions focusing directly on children, however, it “sees them as essentially civilians and non-combatants” (Happold 2005: p. 57).14

From our point of view, two Additional Protocols to the Conventions are more interesting. The Additional Protocol I (AP I) related to international conflicts includes special provisions on protection of women and children in articles 76 and 77; while women shall be protected inter alia against sexual violence, protection of children is worded more generally. Subsections 2 and 3 of the latter article deal with the child soldiers issue directly, stating that “2. 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.(…)” and then guaranteeing special protection of the article to those children who would take direct part in hostilities and fall into the power of the enemy.

On the contrary, the Additional Protocol II (AP II) applies to armed conflicts of non-international nature.15 Its article 4 confirms “fundamental guarantees” for “all persons who do not take a direct part (…) in hostilities” who shall always be treated humanely and with respect to their dignity and who cannot be subject to, i.a., “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; slavery and the slave trade in all their forms” (subsection 2). Special protection is also assured to children (subsection 3), particularly “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”.

II.2. International Human Rights Law

Among international human rights legal instruments relevant from the point of view of child soldiers, first of all the Convention on the Rights of the Child of 1989 (CRC) must be mentioned. This convention, being ratified by all the countries of the world with only two exceptions (of the United States and Somalia),16 is a general one – both in terms of the scope of children’s human rights it guarantees and in terms of its applicability which is not excluded for times of war. It contains also some provisions concerning female child soldiers. Article 32 protects children from economic exploitation and dangerous or harmful work; article 36 protects them from all other prejudicial forms of exploitation. Article 34 provides them with protection from sexual exploitation and abuse; in compliance with article 35 states shall prevent abductions of children by taking appropriate measures. Finally, article 38 focuses on children’s rights during armed conflicts when states should respect relevant IHL rules, and it specifically prescribes states to (2) “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“, (3) to “refrain from recruiting any person who has not attained the age of fifteen years into their armed forces“ and (4) to “take all feasible measures to ensure protection and care of children who are affected by an armed conflict“ within the IHL provisions related to civilians. In addition, article 39 pays attention also to the post-participation period when it obliges states to “take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of (…) armed conflicts.“

The Convention was later supplemented by two Optional Protocols of 2000, the Optional Protocol to the CRC on the involvement of children in armed conflict (OP I) and the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography (OP II). These two documents seem to be somehow gender-divided: in fact, the latter offers protection especially for girls, while the former could be seen as protecting especially boys (Leibig 2005: para. 33). Article 1 of the former provides 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.“ Similar obligation, i.e. taking all feasible measures, covers also prevention of recruitment and use (!) of children under 18 in hostilities by non-state armed groups, which “should not“ do it (article 4). Apart from focusing on elimination of direct participation of children in conflicts and on minimum recruitment age, the OP I deals partly with demobilisation and reintegration of child soldiers, too.17 On the other hand, the OP II obliges states to prohibit the sale of children, child prostitution and child pornography as defined in article 2.18

However, the aforesaid documents are not the only ones oriented towards protection of children. The Worst Forms of Child Labour Convention, 1999 (No. 182) (ILO Convention), adopted within the International Labour Organization framework, binds states to “take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency“ (article 1); whereas “the worst forms of child labour“ are considered to be, i.a., “all forms of slavery or practices similar to slavery, such as (…) forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict“ (article 3(a)). Further, the Convention contains an interesting article 7; in conformity with its subsection 2 states shall take effective measures, i.a., for rehabilitation and social integration of children affected by the worst forms of child labour and also measures to „take account of the special situation of girls.“

As female child soldiers are not only “children” but also “females” we should be aware of international law for women protection, too. The Convention on the Elimination of All Forms of Discrimination against Women of 1979 (CEDAW) contains provisions relevant to girl child soldiers issue since their situation is often inherently related to girls’ status in the society. Under this Convention, states should endeavour to modify or abolish existing discrimination even if it is grounded in customs and practices (article 2); they “shall take all appropriate measures: (a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women” (article 5); and they shall also pay special attention to problems and situation (roles) of women in rural areas (article 14). The Convention also explicitly mentions some areas where equality of women and men should be guaranteed, such as education (article 10) or matters relating to marriage and family relations. The latter include, i.a., the equal right freely to choose a spouse and to enter into marriage only with their free and full consent; moreover, the child marriage is prohibited (article 16).

All the above-mentioned documents are of universal character, nevertheless, there are some regional legal instruments providing child soldiers with protection as well. The African Charter on the Rights and Welfare of the Child (hereinafter “African Charter”) should not be overlooked since a significant number of conflicts with participation of children have been situated on the African continent. The document really reflects this fact and its article 22 is dedicated to protection of children in armed conflicts. Subsection 2 of the article provides that states “shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child.“ Other articles offer children protection from abuse, including sexual abuse (article 16), from harmful social and cultural practices, including gender-oriented discriminatory customs and practices and prohibition of child marriage (article 21), from sexual exploitation (and, again, sexual abuse; article 27), or from abduction (article 29). However, the African Charter is not the only African document on the issue, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (hereinafter “African Protocol”) is also worth our attention. It sets a number of female rights and in article 11 it focuses specifically on women in armed conflicts, i.a. stating that states “shall take all necessary measures to ensure that no child, especially girls under 18 years of age, take a direct part in hostilities and that no child is recruited as a soldier.”

II.3. International Criminal Law

Since the establishment of a permanent international court for criminal matters the international community has had also a uniform and steady list of the most serious crimes which shall be prosecuted by the international community. The Rome Statute of the International Criminal Court stipulates the Court’s juris­diction over the crime of genocide, crimes against humanity, war crimes and the crime of aggression. According to article 8 war crimes, within both international (subsection 2(b)) and internal (subsection 2(e)) armed conflicts, include i.a. “committing rape, sexual slavery (…) or any other form of sexual violence also constituting a grave breach of the Geneva Conventions [in international conflicts]/con­stituting a serious violation of article 3 common to the four Geneva Conventions [in internal conflicts]“ and “conscripting or enlisting children under the age of fifteen years into the national armed forces [in international conflicts]/into armed forces and groups [in internal conflicts] or using them to participate actively in hostilities.” “Rape, sexual slavery (…) or any other form of sexual violence of comparable gravity” is moreover considered to be a crime against humanity provided it is “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (article 7(1)(g)).

Besides the universal International Criminal Court (ICC), there have been established also special criminal courts dealing with conflicts in particular countries. Among these, we should pay attention to the Special Court for Sierra Leone (SCSL) since the Sierra Leonean conflict is known for wide use of child soldiers, including girls (McKay 2008: p. 173). According to its Statute, the Special Court prosecutes crimes against humanity, defined similarly as in the Rome Statute, including rape, sexual slavery or any other sexual violence (article 2(g)); violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, including “outrages upon personal dignity, in particular (…) rape (…) and any form of indecent assault” (article 3(e)); and other serious violations of international humanitarian law, including “conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities” (article 4( c)).19

II.4. Soft Law

There is also a number of legally non-binding documents touching the issue of child soldiers. The United Nations, represented by the General Assembly (GA), the Security Council (SC) or other bodies, has repeatedly20 “strongly [condemned] any recruitment or use of children in armed conflicts contrary to international law” (GA resolution 2009: para. 51) as well as rape and sexual violence against children. They have called upon the states not to recruit and use children in their military forces as well as to take measures to prevent such practices by non-state armed groups, and to prosecute those who breach such prohibitions. They have also pointed out the need to ensure effective demobilization, disarmament, rehabilitation and reintegration of children into the society, “taking into account the rights and the specific needs and capacities of girls” (GA resolution 2009: para. 55( c)). Last but not least they have recognized the Cape Town Principles and Best Practices on child soldiers and the Paris Principles, which will be discussed further in the paper, too.

The UN’s interest in child soldiers issue is, additionally, demonstrated by establishment of several bodies to target the issue. By the Security Council resolution 1612 (2005) the Working Group on Children and Armed Conflict was established not only to review reports on the situation in individual countries but also to make recommendations to the Security Council concerning strengthening children’s pro­tection etc. By the General Assembly resolution 51/77 of 1996 the Special Representative of the Secretary-General for Children and Armed Conflict was established, fulfilling the mission “to promote and protect the rights of all children affected by armed conflict” (Office of the Special Representative of the Secretary-General for Children and Armed Conflict). In 2009, the Special Representative developed a working paper on the six grave violations against children in armed conflict – including recruitment or use of child soldiers, rape and other forms of sexual violence against children, and abduction of children.

The UN has been also concerned about the women issue relevantly to our purposes. It has produced a number of resolutions and other documents in this area,21 including those dealing with women and girls in armed conflicts; the problem is that in these documents women and girls are seen rather as civilians which is quite a problematic view in case of female child soldiers.

III. Law vs. Reality – an analysis of the applicable legal instruments

After finding out law relating to the child soldiers issue we can try to analyse it and examine whether it provides any protection or help to female child soldiers and if so whether the protection is sufficient and effective. First, we will look at and compare the various legal instruments mentioned above both to one another and to the special problems of girl child soldiers; then, we will discuss relevant case-law.

III.1. What follows from the applicable law

This part focuses on various adjectives of “participation” which may be crucial from the female child soldiers’ point of view; whereas after that, we will move to a more general issue, but still an important one for female child soldiers – to the question of real effectiveness of the various legal instruments and causes of the present state.

a)Participation – direct, indirect, active, without any adjective

In the previous text we have seen that international area offers a lot of legally binding tools useful, at least partly, for female child soldiers, even though none of them addresses them primarily and they are rather engaged in the topic of child soldiers or girls, not linking one another. These documents, using different language, mostly prohibit participation of children in armed conflicts – however, they do so only to a certain degree. Majority of them speak about “direct participation” which should be forbidden (see AP I, the CRC and the OP I,22 the African Charter, the African Protocol), while international criminal law prefers to prosecute “active participation”; and there are only few examples combating simply “participation” of children and refraining from further specification (the AP II23 and the ILO Convention). Therefore, several questions immediately arise – what can be regarded as direct/active participation, what lies outside the notions and where is the boundary?

According to a commentary on the AP I, the “direct participation” “means acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces” (Sandoz, Swinarski and Zimmermann 1987: p. 619, cited in Happold 2005: p. 63, note 33) – there must be a “direct causal link” between the act and the harm done to the enemy (Ang 2005: p. 37). It results in the fact that it does not include activities such as gathering and transmission of military information (including spying), transportation of military equipment, demining, nor other supplementary activities (Vandewiele 2006: p. 24).24 And here we come precisely to the point which makes girl child soldiers often invisible to the international law. As summarized in the second chapter, female child soldiers usually carry out many tasks, combating being only one of them, along with spying, guarding, preparing food, cleaning, taking care of small children and the wounded, providing sexual services etc. Nevertheless, when girls do not use their guns to fight, international law usually does not treat them as child soldiers.

So far as “active participation” is concerned, use of this term is not always helpful for girl soldiers, either. There are various opinions on interpretation of the term, one seeing it as synonymous with “fighting” (Ang 2005: pp. 39–40), another equating it to “direct participation” (Happold 2005: pp. 97–98), the other considering it more broader, to include “military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints” (Draft Statute for the International Criminal Court 1998: p. 21, cited in Happold 2005: p. 98, note 68). However, not even such wider interpretation covers all activities performed by female child soldiers. Indeed, the law seems not to be able to deal with the fact that (female) child soldiers’ tasks in armed groups form rather a continuum running from real fighting to food preparation and providing medical assistance or sexual services.25 It is no more, at least not always, possible to split the individual members of armed groups into separate boxes with tags indicating their single/main function. Children usually carry out multiple tasks and the law should reflect it and provide them with protection against their participation in armed groups as such simply because it is not practicable to draw a clear line between their individual jobs, nor even between their direct, indirect or active participation in hostilities; letting alone uncertain interpretation of these terms. Moreover, regardless whether they participate in hostilities rather directly or rather indirectly, child soldiers always face significant danger which is not directly proportional to directness of their participation (Ang 2005: p. 37; Happold 2005: p. 64).

Bearing in mind not only the aforesaid, perhaps we may say that the main problem lies in understanding children’s role as such in modern armed conflicts which, indeed, have gone through many changes in last decades. On the contrary, the Additional Protocols to the Geneva Conventions were concluded in 1977 and later documents were often patterned after the AP I; not, unfortunately, after the AP II. And in those times children could be seen rather as – almost solely – civilians not participating in hostilities than as, or not so much as, their participants or members of parties to conflicts. However, this is certainly not the case of modern times and conflicts. So, once again we can witness a paradoxical situation: civilians are generally protected during armed conflicts unless they take a direct part in hostilities.26 In order to provide them with the highest protection possible the term “direct part” should be interpreted restrictively; moreover, it is an exception to the general rule of protection and exceptions should be in principle interpreted restrictively. On the other hand, the situation of the child soldiers is completely the opposite. In order to protect them as much as possible the adjectives “direct”/”active” must be interpreted in the broadest way possible, or better, they should not be used at all as they only restrict the notion of “participation” itself. Since it is highly discommended and rather unfortunate to apply different interpretations to one term – especially in the area of international law where it is generally more difficult to reach one interpretation and practice by all states – we had better not to try to introduce distinct meanings of the disputed terms depending on whether we treat them in the context of protection of civilians or in the context of protection of child soldiers. Instead we should choose the way of abandoning any adjectives specifying participation of children in hostilities.

Fortunately, there are also “enlightened” legal documents which have accepted this approach, such as the AP II (but see note 23), the OP I in case of non-state groups27 and the ILO Convention. The ILO Convention is particularly interesting because it includes “forced and compulsory recruitment of children for use in armed conflict28 among other forms of slavery. And freedom of slavery is an absolute human right, slavery being prohibited in all times and under all circumstances. It means that at least in states which are parties to this Convention use of child soldiers should be prohibited as such – and although from the traditional point of view this absolute obligation rests only upon states it could be deduced to bind also non-state actors. Such conclusion could be drawn e.g. through the Common Article 3 of the Geneva Conventions applying to non-international conflicts or through seeing the obligation as a genuinely fundamental rule of both vertical and horizontal relations in conflicts below the threshold of the Common Article 3. On the other hand, we can regret that the ILO Convention aims “only” at “forced or compulsory recruitment”, thus excluding cases of “volunteering”. Nevertheless, we may also say that this wording makes it only harder – not impossible – for the volunteering cases to fall within since the real freedom of child’s decision to join an armed group is much disputed.

Inclination towards non-distinction of direct/active and other participation of children in hostilities can be found also in soft law, especially in the UN resolutions with high political significance. The Committee on the Rights of the Child responsible for monitoring implementation of the CRC and its Optional Protocols and for unifying interpretation on them, seems to promote this approach as well (Ang 2005: p. 41). As soon as when publishing its first recommendation dedicated to children in armed conflict it expressed “its major recommendation on the fundamental importance of raising the age of all forms of recruitment of children into the armed forces to eighteen years and the prohibition of involvement in hostilities” (CRC recommendation 1998), avoiding addition of any adjective.

Of course, opponents of the presented non-distinction approach could argue that such approach is not needed because there are other legal provisions not dealing with participation of children in hostilities which are available for child soldiers, especially girls. However, these provisions often focus on prevention of sexual violence, abuse and rape (see the AP II, the OP II, the CEDAW, the Rome Statute or the Statute of the SCSL). Although it is undoubtedly very important to combat such acts as well, there may easily occur another danger for female child soldiers – they may face danger of simplifying their position only to victims of sexual violence.29 Of course, international community and law should respond to this kind of crimes committed against girl soldiers but in doing so they should not overlook other activities and tasks connected with lives of these girls. In this respect, it is positive that the scope of protection offered to children under treaties like the CRC, the ILO Convention or the African Charter is broader, covering harmful and prejudicial work or exploitation of children in general, or any gender-discriminatory practices. But still, a provision fitting precisely the reality of girl soldiers connecting all (or at least most) aspects of their position and role is missing.

Last but not least, assessing female child soldiers as child soldiers and real participants of hostilities may largely affect their future as ex-child soldiers. Demobilisation, demilitarisation, reintegration and resocialisation are crucial also for girl members of armed groups, even if they did not fire a gun during their stay with the group. Unfortunately, actual conditions of participation in such programmes do not count with these girls and have little, if any, regard for them. Situation among binding legal instruments is rather ambiguous – some of them do address specifically the need for social reintegration, others do not. And within the former category of legal documents girls’ needs are usually not mentioned so explicitly as in the ILO Convention. However, the CRC uses a broad term “child victims of armed conflict” and the African Charter protects children from all harmful social and cultural customs and practices including gender-discriminatory ones. Indeed, certain cases of exclusion of girl child soldiers from DDR programmes could be considered discriminatory. The OP I also bears in mind necessity of demobilisation and reintegration of child soldiers but the state’s obligation is directed only towards those children who were recruited or used in hostilities contrary to the Protocol which moves us again to the above-discussed understanding of “direct participation” of children in hostilities. Nevertheless, we may say that current law provides framework for inclusion of female child soldiers into DDR programmes, which is further supported and emphasized by a number of soft-law documents which often even recall the need for considering the special situation of girls.

b) Effectiveness of the applicable law

Above we dealt with different types of activities from which children are or should be protected in armed conflicts. However, even if we look away from the sad reality that international law mostly concentrates on direct or active participation of children in hostilities, there are other problems which might undermine its protective efforts. The scope of the particular obligation of the state, the number of contracting parties to a treaty, the applicability of a treaty also to non-state actors are only some of the factors deciding upon factual strength or weakness of a “legally binding” treaty.

One cannot fail to notice that the prohibition of child participation in hostilities is usually not an absolute one (with the exception of the AP II and the OP I towards non-state actors 30); states are often obliged only to take “all feasible measures” to prevent it (see the AP I, the CRC and its OP I). The result is that child non-participation is not an “obligation of result” for the states but rather an “obligation of means/conduct” (Vandewiele 2006: p. 26). States must exert some effort to reach the set objective – but how much? In fact, taking “all feasible measures” does not require so much from a state in comparison not only to an absolute obligation but also to an obligation to take “all necessary measures”31 which is common for both African documents (the African Charter and the African Protocol). Nevertheless, the actual meaning of the adjective “feasible” is rather unclear. Not surprisingly, none of the treaties contains a definition of such measures; but not even some of their significant commentaries seem to be helpful in this regard.32 More­over, there are also some indications that the discussed expression does not have the same meaning in all the cases where it is used.33 But perhaps it may be concluded that under a “feasible measures” clause not only the aim to be reached should be taken into account – as it is in case of “necessary measures” – but also the particular circumstances of the situation in which the aim should be reached (Happold 2005: p. 62). As regards more practical specification of the concept, states are expected to take legislative, administrative, educational, or other measures (Ang 2005: p. 45, referring to the CRC Committee’s sug­gestions). Further, the treaties usually contain a minimum which is at least to be observed by the states: non-recruitment of children into their armed forces. This is perhaps best obvious from the AP I, using: “take all feasible measures in order that … and, in particular, they shall refrain from recruiting …” (emphasis added); and although in other words, the CRC and its OP I prohibit recruitment34 of children into state armed forces as well. And indeed, abandoning recruitment of children is a measure which may contribute to their non-participation in hostilities. This conclusion is very important from the view of female child soldiers because it may provide them with another way of protection: if states shall take all feasible measures to ensure that children do not take a direct part in hostilities and as a minimum measure they shall refrain from recruiting them into their armed forces, it should mean that the recruitment35 of children (into state armed forces) shall be prohibited as such, in any case – regardless the nature, direct, or indirect, of potential future participation of a child there.36

Another obstacle to effective and widespread abolition of child recruitment and even participation in hostilities is related to the question as to who is legally bound by all those international documents. First of all, an international treaty is binding only upon those states that have ratified it. And despite that the Geneva Conventions or the CRC were ratified almost by all states in the world it is not the case for the other treaties. There are 172 state parties to the Additional Protocol I, 166 to the Additional Protocol II, 151 to the Optional Protocol I, 163 to the Optional Protocol II, 177 to the ILO Convention and 121 to the Rome Statute.37 One may consider these figures quite impressive and sufficient too, but we should always look at them from the opposite side: there are still tens of countries that have not ratified the treaties and therefore they are not legally obliged to comply with standards, higher or lower, set by these treaties. Moreover, even if a state ratifies a treaty, it may also make a reservation to certain treaty provisions, thus making them inapplicable in its case.38

Secondly, only states are parties to international treaties, not non-state actors; the latter thus generally cannot have direct legal obligations under international law. On the contrary, non-state actors are often those who recruit children and force them to or let them participate in the hostilities. However, they may be punished under the domestic (national) legislation which implements state’s obligation under international human rights law – so not directly under this part of international law. That is also why for example the OP I uses a kind of moral obligation not to recruit children and use them in hostilities towards non-states actors (see note 30). But national implementation of international law is often full of problems and weak points which diminish its effectiveness­.39 On the other hand, within international humanitarian law there are instruments which apply not exclusively to states – particularly, the AP II is simply applied in case of non-international armed conflicts as defined in its article 1 (see note 15) without specifying the actors that should be bound by it and thus binding non-state armed groups, too. Unfortunately, this is rather an exception so under the AP I again only state forces are bound; regardless that non-state armed groups might be involved in conflicts of international nature as well.40 Anyway, while international human rights law is applicable generally – in all times, unless a treaty contains a derogation clause; international humanitarian law is only activated in case of conflicts, international or not, which are defined by it. It results that not all armed conflicts of recent days have fallen within the scope of IHL because they have not reached the threshold set by it.

After linking all the mentioned factors together we may see why still so many (female) child soldiers are used in modern conflicts. If the present law is not capable to prevent armed groups from recruiting and using children to participate in conflicts, i.e. beforehand, it should try to ensure punishment of such activities at least afterwards. These efforts will be examined in the next sub-chapter.

III. 2. Case-law

Above we have seen various legal instruments for protection of children from participating in conflicts as child soldiers contrasting sharply with the reality of hundreds of thousands of children including girls taking part in hostilities in many different ways. Ultimately it is always important whether those who use children to perform such roles will be punished or go free unpunished. Following lines examine international efforts to prosecute recruitment and use of child soldiers and whether these efforts have any impact on girl soldiers too; in particular it focuses on the approach of the ICC and the SCSL.

Let’s start with the SCSL case-law which is older comparing to the ICC case-law.41 First, the Norman case must be mentioned. This case is indeed crucial for protection of child soldiers because the SCSL (the Appeal Chamber in the decision on preliminary motion) stated that child recruitment and use of children under 15 to participate actively in hostilities are prohibited as war crimes based in the customary international law. Although that statement was a bit controversial (Happold 2005: pp. 94–95, 128–132), no one but the Defence contested it as such; the disputed issue was rather the way to this conclusion, its reasoning. Anyway, the customary nature of these war crimes has been affirmed several times since then not only in following judgements but also in the academic area and by the international community in general (Happold 2005: pp. 89–95; Henckaerts, Doswald-Beck 2005: p. 485 /Rule 137/).42 And this is indeed very important because the customary law may fill in some of the loopholes of the international treaty law (Happold 2005: pp. 86–87). In particular, it is binding both upon all states – even if they have not ratified any international treaty in this area – and upon non-state actors and both in international and internal armed conflicts.

In 2007, the SCSL (Trial Chamber) issued another judgment of huge importance: in the Brima, Kamara and Kanu case (so called AFRC case). The Trial Chamber dealt inter alia with the understanding of the “using children to participate actively in the hostilities” and in fact it extended the interpretation so far held. It found that the term encompasses not only participation in combat, but “any labour or support that gives effect to, or helps maintain, operations in a conflict” because without logistical support an armed force would not be able to carry on its operations. Therefore, activities like “carrying loads for the fighting faction, finding and/or acquiring food, ammunition or equipment, …, making trails or finding route” fall within the ambit of active participation (paras. 736–737).

Although this Trial Chamber’s con­clusion was not even subject to appeal; unfortunately, it was not maintained in the two following cases, i. e. the Fofana and Kondewa case (so called CDF case) and the Sesay, Kallon and Gbao case (so called RUF case). In both of later cases the Court was strictly inspired by rather narrower interpretation of “active participation in hostilities” provided in a commentary to the Rome (ICC) Statute by the Preparatory Committee on the Establishment of an International Criminal Court43 (the CDF judgement, para. 193; the RUF judgement, para. 188). Thus, it required military nature of such acts (relation to the hostilities) and/or direct support for the military operations of the armed group which resulted in that using children as domestic labour or for food finding missions did not amount to the war crime of using children to participate actively in hostilities (e. g. the RUF judgement, paras. 1730 and 1743).44

However, in the last SCSL’s judgement, the Charles Taylor judgement, the narrow interpretation has been abandoned again. The Trial Chamber expressly referred to the AFRC judgement and stated that “’[u]sing‘ children to participate actively in the hostilities encompasses putting their lives directly at risk in combat, but may also include participation in activities linked to combat such carrying loads for the fighting faction, finding and/or acquiring food, ammunition or equipment, acting as decoys, carrying messages, making trails or fading routes, manning checkpoints or acting as human shields“, at the same time pointing out that “[w]hether a child is actively participating in hostilities in such situations will be assessed on a case-by-case basis“ (para. 444). Nevertheless, in the end it seems that although the Court extended its “active participation” conception in comparison with the one from the two previous cases – so that it covered inter alia instances of food-finding missions (provided that they were linked to combat, e. g. by committing crimes against civilians during the missions) – still the gateways to judicial protection remained closed to some child soldiers – such as those charged with performance of domestic chores (paras. 1479 and 1522).

Anyway, while the SCSL is slowly drawing to an end of its work, the exact opposite applies to the ICC. The latter only opened its first case in 2007 and in 2012 it delivered its first judgement. Both of mentioned first steps of the ICC took place within the Thomas Lubanga Dyilo case, which is especially important when dealing with the child soldiers issue Lubanga had been charged with and later found guilty of, war crimes of conscripting and enlisting of children under the age of 15 years into an armed group and using them to participate actively in hostilities. Already the Lubanga decision on the confirmation of charges has been very interesting since the Court first made clear that under the Rome Statute both forcible and voluntary recruitment are punishable – the former as “conscripting” and the latter as “enlisting”; the child’s “consent” cannot be used as a defence (paras. 246–247). Second, the Court tried to shed light on the term “active participation in hostilities”. In this regard it declared that the notion covers both combat and combat-related activities, such as scouting, spying, sabotage, using children as decoys, couriers or at military check-points, and includes also guarding military objectives and bodyguarding (“safeguarding the physical safety”) of military commanders. On the other hand, unfortunately enough, the Court explicitly excluded activities “clearly unrelated to hostilities”, such as food deliveries or using children as domestic workers, from the scope of the notion (paras. 261–263); so it resembled rather the SCSL’s approach applied in the CDF and the RUF cases.

Nonetheless, after the decision an amicus curiae brief by the UN Special Representative of the Secretary-General for Children and Armed Conflict45 was submitted to the ICC, and indeed, later it was quite largely mentioned in the final Trial Chamber judgement. The Special Representative gave her observations on the definition of “conscripting or enlisting” children and on the interpretation of “using them to participate actively in hostilities”, “focusing specifically on the role of girls in armed forces” (para. 1). With respect to the latter issue (paras. 17–26), the amicus brief called for a broader interpretation of the term which would comprise various tasks performed by children associated with armed groups. It reminded the ICC not only of the Cape Town and the Paris Principles (discussed below) but also of the AFRC judgement of the SCSL with a rather wide understanding of the term “using for active participation”. It suggested a case-by-case approach, examining in each case “whether the child’s parti­cipation served an essential support function to the armed force or armed group during the period of conflict” (para. 21), and warned of a narrow interpretation leaving girl soldiers still invisible. Last but not least, it recommended that the Court “deliberately include[s] any sexual acts perpetrated, in particular against girls, within its understanding of the ‘using’ crime” (para. 25).

As already mentioned, the Trial Chamber judgement in the Lubanga case of 14 March 2012 accepted some of the important Special Representative’s sug­gestions but furthermore it went beyond the amicus curiae brief regarding certain issues. The Court, taking as its starting point the principles of the international law of treaties, emphasised the object and purpose of the interpreted Rome Statute provision, i. e. the war crimes of conscripting and enlisting children under the age of 15 and of using them to participate actively in hostilities (para. 601). Considering also internationally recognised human rights norms in its interpretation, it affirmed as the primary objective here the protection of children from the risks associated with armed conflicts (para. 605). On this basis then, together with the Special Representative it questioned e. g. the possibility of giving (genuine and informed) consent when children under 15 are enlisting in an armed group (para. 613 et seq.), but even more importantly, proceeding from the AFRC trial judgement and the Special Representative’s o­pinion, it accepted probably the widest interpretation of the expression “to participate actively in hostilities” so far held in the international (not only) judicial area. It stated: “The extent of the potential danger faced by a child soldier will often be unrelated to the precise nature of the role he or she is given. Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants. All of these activities, which cover either direct or indirect participation, have an underlying common feature: the child concerned is, at the very least, a potential target. The decisive factor, therefore, in deciding if an ‘indirect’ role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target. In the judgment of the Chamber these combined factors – the child’s support and this level of consequential risk – mean that although absent from the immediate scene of the hostilities, the individual was nonetheless actively involved in them.” (para. 628; emphasis added). So the ICC seems to have left the criterion of (more or less) closed connection of a child’s activity to combat or, more generally, operations in conflict; and while trying to provide children with more and better protection it gave preference to a new criterion of whether the activity put the child in real danger as a potential target.

The Court then continued by determining on a case-by-case basis whether a particular activity constituted “active participation”. Its consideration avoided neither the issue of domestic work nor the issue of sexual violence in the context of the examined war crimes, i. e. two issues significantly making the situation (and recognition) of female child soldiers problematic. As regards the former, several witnesses testified the reality described in the text above: girls performed the same task as others (boy child soldiers) in the armed group but additionally cooked and carried out other “feminine” tasks. The Court then acknowledged the variability of the (female) child soldier’s roles in the armed groups, stating that it took into account “the evidence concerning domestic work undertaken by girls under the age of 15 when the support provided by the girl exposed her to danger by becoming a potential target”, and it expressly recognised that “a significant number of girls under the age of 15 were used for domestic work, in addition to the other tasks they carried out as UPC/FPLC soldiers, such as involvement in combat, joining patrols and acting as bodyguards” (para. 882). Finally, regarding the latter issue of sexual violence in the (female) child soldiers context, the Court in the end could not give any decisive opinion since the Prosecution had failed to include any allegations of sexual violence in the charges (although such evidence was introduced later during the trial). Anyway, at least the Court did not exclude the possibility as such that sexual slavery (abuse) of child soldiers could amount to child soldiers offences under the Rome Statute.46

It follows that the recent case-law, especially the Lubanga judgement, has made a significant contribution to recognition of complexity of child soldiers’ roles and tasks, including some particularities relating to female child soldiers. The Lubanga judgement is worth mentioning also with regard to the issue of sexual abuse of child soldiers – since even the negative comment alone (that the issue could not be dealt with properly) means that the issue is not ignored and may be relevant and worked out in other cases; shortly, the judgement helps to make the issue visible. This then applies even more to the separate and dissenting opinion of Judge Odio Benito attached to the judgement (see note 46). However, it must not be forgotten that we are still lacking a complex clear and stable definition of a child soldier and their (active) participation in hostilities – the Lubanga judgement provided rather a criterion, although indeed a useful one, to determine what should be considered as active participation but it did not establish any complex definition (which could include also the sexual violence issue). Nevertheless, there are still several pending cases – such as the cases of Germain Katanga or of Bosco Ntaganda, both still waiting for their trial judgements – before the ICC (as well as the SCSL) so perhaps the future will show us the final unambiguous direction and we may only hope that that direction will lead to recognition of female child soldiers and various ways of their participation in hostilities, as it has been already indicated in the Lubanga judgement.

IV. Conclusion

On the previous pages and lines we have found out what the main characteristics of female child soldiers are, especially in comparison with male child soldiers. After making an overview of relevant applicable law we tried to link it with the described reality and determine to what degree these two sets overlap, how large their intersection is. Now we can perhaps conclude that the law indeed provides girl soldiers with certain protection, although in the same breath we can express – legitimate (?) – doubts about its adequacy and sufficiency.

If we look away from the strength (or more precisely weakness) of various legal obligations and other obstacles sketched in the chapter on “Effectiveness of the applicable law”, we see that girls in armed conflicts are mainly prevented from taking “direct” or “active” part in hostilities on one hand and from being sexually abused on the other. This means, to use words of Gilbertson, that “the girl soldier appears to be (…) invisible (…) to the international community, only noticed and protected when she is being used for sex or on the front lines of combat” (Gilbertson 2008: p. 239). Indeed, the major problem of current legal state possibly rests in frequent prohibition of – only – “direct” or “active” participation of children in hostilities, which does not seem to be extendable to cover all the roles performed by children as members of armed groups in conflicts. The use of these adjectives is really unfortunate, since first, it is not clear where the exact boundaries of direct/indirect, active/non-active participation are; however, we know that they, most likely, lie before sexual exploitation (and in some cases probably even domestic works),thus excluding it. Second, the term “direct” participation is rather counterproductive in seeking protection for children in armed groups because it was originally introduced into IHL to provide the broadest possible protection to civilians not participating “directly” in hostilities. That is why in this sense it should be interpreted really restrictively; on the contrary, children involved in hostilities need the broadest possible interpretation of the term which would prevent them from any, or as much as possible from participation in hostilities. The notion of “active participation” was introduced later with the view of extending the boundaries of “direct participation” and perhaps it has succeeded in this effort; nevertheless its current majority interpretation still does not go far enough to exclude children from any dangerous involvement in armed groups.

In my opinion, we may even dare to say that the described state of law is in fact indirectly discriminatory for female child soldiers who are more likely to be assigned supplementary roles, not combating, within armed groups in comparison with their male counterparts. And this means they are also more likely to fall through the legal loopholes and not to be caught by the protective net of international law. Furthermore, we may link this reality with often “lower” social position of females – as opposed to males – in many regions where the armed conflicts take place, exposing them to various discriminatory and prejudiced practices, stereotypical views on their roles in the society and therefore resulting in their higher susceptibility to be abused. This is precisely the point where we can observe the synergistic effect striking girl soldiers, being both children and women. Their suffering as child soldiers may be even multiplied by their gender.

It follows that a change in the international law attitude aiming at broadening the protection of children, especially female, is really needed. The international law has generally not reflected so far the complexity and continuum of ways in which children engage in armed conflicts. If we should content ourselves with the existing state of law we would probably have to always separate the lives of child soldiers within armed groups into small pieces, assign a respective legal provision selected from a rather wide range of documents to each of these pieces and hope that none of those pieces, or at least as few as possible, would remain without a respective provision. Moreover, we would have to do the same, i.e. to dismember child soldiers’ lives, if we wanted to prosecute such treatment of children since the international criminal law invokes responsibility of individuals, not of states, nor even non-state groups. And it is indeed not unlikely that one commander recruits children, others give them orders as to what to do during the day and by the end of the day they are raped by again a different commander. Furthermore, if the international law should decide within which of the two basic categories of combatants and civilians female child soldiers usually fall, considering the frequent use of “direct”/”active” participation, I would say that (especially before the Lubanga judgement) it would vote for the latter category. On the other hand, when we look for the definition of these categories we find out that combatants are seen as “all members of the armed forces of a party to the conflict, except medical and religious personnel”, or respectively as “only those persons who are actually drafted, i.e., who are actually incorporated into the armed forces”; while civilians are defined a contrario, i.e. as “persons who are not members of the armed forces” (see Rule 3 and Rule 5 of the customary IHL; Henckaerts, Doswald-Beck 2005: pp. 11, 14, 17; emphasis added). In my opinion it is quite uncontested that given the quoted definitions recruited girl soldiers are perceived as members of the armed groups, whatever tasks they perform within the group (whether the tasks amount to direct/active participation in hostilities or not). From this perspective it seems that categorisation as combatants rather than civilians would be indeed more appropriate for them and their experience. Besides, we should not forget that their proper categorisation is not important only for the time of the conflict but also for the following period of disarmament, demobilisation and reintegration. Until now, girls – seen rather as civilian victims of conflicts – have not been often accepted to participate in the DDR programmes.

In light of the aforesaid, to solve the present major legal problems of female child soldiers it appears to be convenient and advisable to introduce new understanding of the notion “child soldier” in international law, which has not defined the term so far, together with prohibition of using these “new” child soldiers. A proper definition would secure not only increased protection of children during armed conflicts but it would also facilitate efforts to help them – especially to help those children who served rather in auxiliary roles in armed groups – after the conflict including the access to DDR programmes. In searching for such definition the international community does not have to go so far since there have already been some initiatives, both on the part of NGOs and on the part of states. The Paris Commitments to Protect Children from Unlawful Recruitment or Use by Armed Forces or Armed Groups express the view of 84 world countries who have committed themselves “to make every effort to uphold and apply the Paris Principles,” i.e. the 2007 Principles and Guidelines on Children Associated with Armed Forces or Armed Groups which praiseworthily reflect the factual reality: “Girls and boys are used in a variety of ways from support roles, such as cooking or portering, to active fighting, laying mines or spying and girls are frequently used for sexual purposes. This recruitment and use of children violates their rights and causes them physical, developmental, emotional, mental, and spiritual harm.” (Paris Principles 2007: p. 4). Both mentioned documents draw special attention to girls and they continue in the trend started by the 1997 Cape Town Principles and Best Practices, a result of a symposium of UNICEF and the NGO working group on the CRC. But the Cape Town and the Paris initiatives not only recognise the unfortunate reality of (female) child soldiers, they also provide us with an example of a proper definition of “a child soldier”: “any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The definition includes girls recruited for sexual purposes and for forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms.” (Cape Town Principles 1997: Definitions).47

It follows that now when the international area has already known a proper child soldier definition, the “only” task resting upon it is to translate this definition into a legally binding form. This aim could be achieved for example by confirming it in an international treaty such as another optional protocol to the CRC. However, in the meantime – waiting for the presented second step of the international community which unfortunately seems not likely to happen in the very near future – we should promote at least development of case-law towards broader understanding of active participation of children in hostilities, as already accepted in the AFRC case before the SCSL and especially in the Lubanga case before the ICC where even sexual violence on children was not expressly excluded from child soldiers offences (war crimes) (though it was not expressly included, either). Next, we could further invoke the ILO Convention in expanding the terra prohibita of armed conflicts. Connecting forced or compulsory recruitment of children in armed conflicts labelled as a form of slavery with general absolute prohibition of slavery should result in absolute prohibition of the former activity, no matter by whom, when and where it is conducted. If this conclusion was then linked with the perception of recruitment as a precondition of participation of any form in hostilities, we should reach the desired protection of children against any participation in conflicts as members of armed groups.

Eventually, for female child soldiers it is not so important in which of the proposed ways the international community chooses to protect them. The only thing which matters is that it reaches the goal, i.e. ensuring their protection. Hopefully it does. And hopefully it does so before too many of their young lives are lost.


Articles, books, websites

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  • J. M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law. Volume I. Rules. Cambridge University Press, Cambridge, 2005.
  • ICRC: War & Law: The Geneva Conventions of 1949 and their Additional Protocols. Last update: 01–02–13 [cited 2 March 2013]. Available at: http://www.icrc.org/…ns/index.jsp.
  • ICRC: International Humanitarian Law – Treaties & Documents: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. Commentary. Part IV : Civilian population Section III – Treatment of persons in the power of a party to the conflict Chapter II – Measures in favour of women and children. Article 77– Protection of children [cited 24 February 2013]. Available at: http://www.icrc.org/…M/470-750099?….
  • ILO International Labour Organization: NORMLEX. C182 – Worst Forms of Child Labour Convention, 1999 (No. 182) [cited 24 February 2013]. Available at: http://www.ilo.org/…normlex/en/f?….
  • International Criminal Court – Cour Pénale Internationale [cited 3 March 2013]. Available at: http://www.icc-cpi.int/…default.aspx.
  • International Criminal Court: About the Court: ICC at a glance. Chronology of the International Criminal Court [cited 2 March 2013]. Available at: http://www.icc-cpi.int/…e%20icc.aspx.
  • International Criminal Court: Assembly of the State Parties: The States Parties to the Rome Statute [cited 24 February 2013]. Available at: http://www.icc-cpi.int/…statute.aspx.
  • A. Leibig, Girl child soldiers in Northern Uganda: Do current legal frameworks offer sufficient protection? Northwestern University Journal of International Human Rights, Vol. 3, Spring 2005, p. 6 et seq.
  • G. Machel, Impact of Armed Conflict on Children. U.N. Doc. A/51/306 (1996) [cited 24 February 2013]. Available at: http://www.unicef.org/graca/.
  • S. McKay, Girls as “weapons of terror” in Northern Uganda and Sierra Leonean armed groups. In C. D. Ness (ed.), Female terrorism and militancy : agency, utility, and organization. Routledge; Milton Park, Abingdon, Oxon; New York, 2008, pp. 167–182.
  • L. Moreno-Ocampo, From the Trenches and Towers. Keynote Address–Interdisciplinary Colloquium on Sexual Violence as International Crime: Interdisciplinary Approaches to Evidence. Law and Social Inquiry, Volume 34, Number 4, Fall 2010, p. 839 et seq.
  • Office of the Special Representative of the Secretary-General for Children and Armed Conflict [cited 24 February 2013]. Available at: http://childrenandarmedconflict.un.org/.
  • Office of the Special Representative of the Secretary-General for Children and Armed Conflict: Library [cited 2 March 2013]. Available at: http://childrenandarmedconflict.un.org/library/.
  • Office of the Special Representative of the Secretary-General for Children and Armed Conflict. The Six Grave Violations Against Children During Armed Conflict: The Legal Foundation. Working paper Nº1, October 2009 [cited 24 February 2013] Available at: http://childrenandarmedconflict.un.org/…-violations/.
  • N. Quenivet, Girl Soldiers and participation in hostilities. African Journal of International and Comparative Law, 16(2), 2008, pp. 219–235.
  • Save the Children. Forgotten Casualties of War: Girls in armed conflict. London, 2005 [cited 24 February 2013]. Available at: http://resourcecentre.savethechildren.se/…ed-conflicts.
  • T. Vandewiele, Optional Protocol: The Involvement of Children in Armed Conflicts, in A. Alen, J. Vande Lanotte, E. Verhellen, F. Ang, E. Berghmans and M. Verheyde (eds.) A Commentary on the United Nations Convention on the Rights of the Child, Martinus Nijhoff Publishers, Leiden, 2006.
  • The Special Court for Sierra Leone: About [cited 2 March 2013]. Available at: http://www.sc-sl.org/…Default.aspx.
  • UN General Assembly, Report of the Special Representative of the Secretary-General for Children and Armed Conflict, 13 August 2007, A/62/228 [cited 24 February 2013]. Available at: http://childrenandarmedconflict.un.org/library/.
  • United Nations Special Representative of the Secretary-General on Children and Armed Conflict. Situation in the Democratic Republic of the Congo in the case of The Prosecutor v Thomas Lubanga Dyilo. Written Submissions. ICC-01/04–01/06–1229-AnxA 18–03–2008 2/10 CB T [cited 2 March 2013]. Available at: http://childrenandarmedconflict.un.org/…CLubanga.pdf.
  • United Nations Treaty Collection: Databases [cited 2 March 2013]. Available at: http://treaties.un.org/Pages/DB.aspx?….
  • H. G. West, Girls with Guns: Narrating the Experience of War of Frelimo’s “Female Detachment“. Anthropological Quarterly, Volume 73, Number 4, October 2000, pp. 180–194.

International treaties and other binding legal documents

  • Geneva Conventions I–IV, 12 August 1949
  • Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), 8 June 1977
  • Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of non-international armed conflicts (Protocol II), 8 June 1977
  • Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979
  • Convention on the Rights of the Child, 20 November 1989
  • African Charter on the Rights and Welfare of the Child, 11 July 1990
  • Rome Statute of the International Criminal Court, 17 July 1998
  • Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (C182 Worst Forms of Child Labour Convention, 1999), 17 June 1999
  • Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in armed conflict, 25 May 2000
  • Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 25 May 2000
  • Statute of the Special Court for Sierra Leone, 16 January 2002
  • Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 11 July 2003


  • Declaration of the Protection of Women and Children in Emergency and Armed Conflict (proclaimed by General Assembly resolution 3318 (XXIX) of 14 December 1974
  • United Nations. General Assembly resolution 48/104, 23 February 1994, A/RES/48/104
  • United Nations. Resolution adopted by the General Assembly [on the report of the Third Committee (A/51/615)], The rights of the child, 20 February 1997, A/RES/51/77
  • Cape Town Principles and Best Practices adopted at the symposium on the prevention of recruitment of children into the armed forces and on demobilization and social reintegration of child soldiers in Africa, conducted by the NGO Working Group on the Convention on the Rights of the Child and UNICEF, 27–30 April 1997 [cited 24 February 2013]. Available at: http://www.unicef.org/…oldiers.html.
  • Recommendation on Children in Armed Conflicts, CRC/C/80, 19th Session, September 1998 [cited 24 February 2013]. Available at: http://www2.ohchr.org/…ecisions.htm.
  • United Nations. Resolution 1325 (2000) adopted by the Security Council, 31 October 2000, S/RES/1325 (2000)
  • United Nations, Resolution 1612 (2005) adopted by the Security Council, 26 July 2005, S/RES/1612 (2005)
  • The Paris Principles : Principles and Guidelines on Children Associated with Armed Forces or Armed Groups. February 2007 [cited 2 March 2013]. Available at: http://childrenandarmedconflict.un.org/…-principles/.
  • Resolution adopted by the General Assembly [on the report of the Third Committee (A/63/426)], Rights of the child, 13 March 2009, A/RES/63/241
  • United Nations. Resolution 1888 (2009) adopted by the Security Council, 30 September 2009, S/RES/1888 (2009)
  • United Nations. Resolution adopted by the General Assembly [on the report of the Third Committee (A/64/435 and Corr.1)], The girl child, 1 March 2010, A/RES/64/145
  • United Nations. Resolution adopted by the General Assembly [on the report of the Third Committee (A/65/449)], Intensification of efforts to eliminate all forms of violence against women, 23 February 2011, A/RES/65/187
  • The Paris Commitments. Consolidated Version : The Paris Commitments to protect children from unlawful recruitment or use by armed forces or armed groups [cited 2 March 2013]. Available at: http://childrenandarmedconflict.un.org/…-principles/.


  • Prosecutor v. Sam Hinga Norman – Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Case No. SCSL-2004–14-AR72(E), Special Court for Sierra Leone, 31 May 2004.
  • Prosecutor v. Thomas Lubanga Dyilo – Decision on the confirmation of charges, Case No. ICC-01/04–01/06, International Criminal Court, 29 January 2007.
  • Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu  – Trial Chamber Judgement, Case No. SCSL-04–16-T, Special Court for Sierra Leone, 20 June 2007.
  • Prosecutor v. Moinina Fofana and Allieu Kondewa – Trial Chamber Judgement, Case No. SCSL-04–14-T, Special Court for Sierra Leone, 2 August 2007.
  • Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu  – Appeals Chamber Judgement, Case No. SCSL-2004–16-A, Special Court for Sierra Leone, 22 February 2008.
  • Prosecutor v. Issa Hassan Sesay, Morris Kallon, Augustine Gbao – Trial Chamber Judgement, Case No. SCSL-04–15-T, Special Court for Sierra Leone, 25 February 2009 (2 March 2009).
  • Prosecutor v. Thomas Lubanga Dyilo – Trial Chamber Judgement, Case No. ICC-01/04–01/06, International Criminal Court, 14 March 2012.
  • Prosecutor v. Charles Ghankay Taylor – Trial Chamber Judgement, Case No. SCSL-03–01-T, Special Court for Sierra Leone, 26 April 2012 (18 May 2012).


  1. A. Leibig points out that this is in fact a consequence of a pragmatic (tactic) approach of NGOs in their campaigns against the use of child soldiers where they concentrated mainly on children in front lines of armed conflict (rather than on impact of armed conflicts on children in broader sense), because they were more likely to succeed with such a narrower issue (Leibig 2005: para. 4). On the other hand, nowadays a strong call for focus on girl soldiers also comes from NGOs (see for example the definition of child soldiers by Child Soldiers International 2013; or Coalition to Stop to Use of Child Soldiers 2008a). However, for example in the IRCR Commentary we can still come around the following with regard to children in conflicts: “Recent conflicts have all too often shown the harrowing spectacle of boys, who have barely left childhood behind them, brandishing rifles and machine-guns and ready to shoot indiscriminately at anything that moves.” (ICRCb: para. 3183).
  2. For the latter see McKay 2008: p. 169.
  3. Similarly (and also for the reasons of this fact see) Child Soldiers International 2013. Moreover, we should take into account the difference between categories of “children participated in armed conflicts” and “child soldiers“, the latter including also those serving in times of peace. If we should calculate really all “child soldiers” all over the world, the final figure could be much higher (Happold 2005: p. 19).
  4. Here, the crucial point may be the definition of a child soldier; this paper inclines to a rather broad definition presented for example in the Cape Town Principles and Best Practices and similarly in the Paris Principles; all of this is discussed below.
  5. In this article the term “group” will be usually used in a broader sense, so the term “armed groups” will include both governmental armed forces and non-state armed groups; only when it will be needed to distinguish these two categories, “armed forces” and/or “non-state/opposition armed groups” will be addressed explicitly.
  6. However, sometimes it is argued that the former are rather male whereas the latter often involve both male and female members (Happold 2005: p. 14, referring to R. Brett’s and M. McCallin’s fin­dings).
  7. On the other hand, Save the Children claims that only minority of girls join an armed group by their own decision (Save the Children 2005: p. 11). Nevertheless, this possible contradiction is not so important because it is sometimes difficult to draw a clear line between voluntary and involuntary enlistment of children in an armed group.
  8. For an interesting comparison of boys‘ and girls‘ motivation to volunteer see Brett, Specht 2004: p. 85 et seq.
  9. Which is not always the case because sometimes these groups only play on girls‘ desire of equality in their recruitment campaign but they do not observe it in reality (Gilbertson 2008: p. 222).
  10. For a detailed analysis see for example West 2000: pp. 180–194. The author argues against a rather traditional view of children participation in armed conflicts as something entirely negative, as disrupting experience of violence etc. He claims that “participation in the armed struggle broadened horizons for these young women, just as it did for young men. (…) Life as a DF would give them greater range of movement across both social and geographical landscapes. They would experience fears and triumphs unknown to the generation of their parents.” (p. 187). I must strongly oppose his opinion since although I am very much in favour of equality between women and men, from my point of view it is not possible to look solely at the position reached by these girls and also the background – the field of activities in which this position had been reached – must be taken into account. I simply cannot agree with seeing child soldier experience as positive as such although I admit it may have some positive aspects.
  11. At least it is believed that this may work.
  12. Such was the case of groups e.g. in Sri Lanka, Philippines, Mozambique; see Happold 2005: p. 16; West 2000: p. 190; or Brett 2002: p. 2.
  13. Similarly Brett 2002: p. 5; Machel 1996: para. 51. For a detailed description of problems with demobilization and reintegration of girls participated in a conflict see also Brett, Specht 2004: pp. 98–100.
  14. See pp. 54–57 of this book for more information on the Geneva Conventions and child soldiers.
  15. Article 1.-Material field of application
  1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional (…) (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.
  2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.
  1. Compare the information on the CRC on the United Nations Treaty Collection: Databases website (data as of 24 February 2013).
  2. According to article 6(3) states “shall take 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.”
  3. Article 2: For the purposes of the present Protocol:

(a) Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration; 2. b) Child prostitution means the use of a child in sexual activities for remuneration or any other form of consideration; 3. ( c) Child pornography means any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.

  1. The SCSL further prosecutes crimes under Sierra Leonean law, some of which are directed to abusing or abduction of girls.
  2. For a list of UN resolutions dealing with children in armed conflict see (e.g.) the Office of the Special Representative of the Secretary-General for Children and Armed Conflict: Library website; for the most significant ones (before 2007) see also UN General Assembly 2007: para. 34 et seq. For more information on the UN’s approach to child soldiers see Happold 2005: pp. 34–53.
  3. Let’s mention for example the GA Resolution 65/187 (2011), the SC Resolution 1325/2000 (2000), the SC Resolution 1888 (2009), GA Declaration of the Protection of Women and Children in Emergency and Armed Conflict (1974), GA Declaration on the Elimination of Violence against Women (1994), or specifically the GA resolution 2010 (on the girl child), etc.
  4. Interestingly enough, both during the preparatory works on the AP I and on the CRC there were also proposals to use only “participation”, without an adjective, but unfortunately, these proposals did not win out finally. In case of the CRC there was, among others, an argument that the Convention should not raise the standard offered by the AP I (Happold 2005: p. 60; Detrick 1999: pp. 653–655). So, the CRC now follows the wording of the AP I, and moreover, it is followed by the wording of its OP I; as if both documents have forgotten about their main objective, which is the best interest of the child (protection of the child).
  5. Unfortunately, it seems that the final text of the AP II is not an intention, but rather “the result of inadvertence” during the preparatory works (Happold 2005: p. 67).
  6. T. Vandewiele points out also the approach of UNICEF which seems to consider “direct participation” as synonymous to “participation”; however, such viewpoint does not follow from the text of the AP I.
  7. As L. Moreno-Ocampo describes it: “One minute they would carry a gun, the next minute they would serve meals to the commanders, the next minute the commanders would rape them.” (Moreno-Ocampo 2010: p. 845).
  8. Article 51(3) of the AP I, the Common Article 3 of Geneva Conventions; it is even a customary international law rule (Rule 6; Henckaerts, Doswald-Beck 2005: p. 19).
  9. Compare article 1 and article 4 of the OP I. While children in state armed forces should not “take a direct part” in hostilities, non-state armed groups “should not, under any circumstances, (…) use [children] in hostilities”. Thus, the burden laid down on the latter groups is heavier and therefore it is likely not to be observed by them – it is not in compliance with the principle of equal treatment, it was introduced in a top-down mode (see Ang 2005: p. 39), and moreover non-state groups are not traditionally bound under international (human rights) law.
  10. Note that the term “armed conflict” is even broader that more frequent term “hostilities” (!).
  11. This is maybe the reason why the OP II is quite useless for female child soldiers – it combats the sale of children, child prostitution and child pornography but girl soldiers usually do not experience any of these activities defined in the Protocol (especially because no money or other material values or benefits are involved in abusing them).
  12. However, since non-state actors are not a party to the Protocol and cannot be bound by it, the obligation (although absolute) is not legal but rather moral (expressed by “should”) (Vandewiele 2006: pp. 41–43).
  13. This kind of obligation, i.e. taking “all necessary measures”, appeared also in the draft of article 77(2) AP I, but unfortunately it was lost during later amendments (Happold 2005: p. 60). It was discussed also during preparatory works on the CRC, but again without a final effect (Detrick 1999: p. 653).
  14. As is the case of the ICRC Commentary on the Additional Protocol I, for example (Happold 2005: p. 61).
  15. Such conclusion may be stated after examining English and French versions of the CRC and its OP I (Vandewiele 2006: p. 27).
  16. The OP I prohibits only compulsory recruitment in article 2; however, according to the article 4(2) states “shall take all feasible measures to prevent (…) recruitment and use [of children in hostilities by non-state armed groups], including the adoption of legal measures necessary to prohibit and criminalize such practices.” There is no reason why state armed forces should be excluded from this prohibition, so we may conclude that also under the Protocol minimum feasible measures include prohibition of recruitment of children generally.
  17. And by “recruitment” all forms of possible entering an armed group are meant, whether compulsory, forced or voluntary; for reasons for accepting this broader definition of recruitment see Ang 2005: pp. 47–51.
  18. Such approach is explicit also in the Rome Statute and the Statute for the SCSL, both of them prohibiting “conscripting or enlisting children” as such.
  19. Data available as of 25 February 2013. For the information on the AP I and the AP II see the ICRC: Geneva Conventions website; for the information on the CRC, the OP I and OP II see the United Nations Treaty Collection: Databases website; for the information on the ILO Convention see the ILO NORMLEX website; for the information on the Rome Statute see the International Criminal Court website (differently, according to data in the UN Treaty Collection Database there are 122 parties to the Rome Statute).
  20. See, for example, the case of the CRC and reservations by a number of states to it in Happold 2005: p. 87.
  21. See further UN General Assembly Report 2007: para. 49 et seq.
  22. Thus, “AP I does not reflect the messy reality of many modern day armed conflicts.” (Happold 2005: p. 70).
  23. Although the Rome Statute had entered into force on the 1 July 2002 the first case was not opened earlier than in January 2009 (the Thomas Lubanga case); quite the contrary, the first indictments before the SCSL were issued by the Prosecutor already in 2003. See the International Criminal Court: About the Court website and The Special Court for Sierra Leone: About website.
  24. However, while Happold assumes that the obligation under customary IHL is the same as under the AP I and the OP I (i.e. taking all feasible measures to ensure that children do not take a direct part in hostilities), the ICRC collection of customary IHL rules seems to overlook the difference between “direct” and “any” participation, or at least not to be interested in this issue (anyway, the rule 137 reads as follows: Children must not be allowed to take part in hostilities.).
  25. Interestingly enough, the same commentary was cited also in the AFRC judgement; however, while the CDF and the RUF judgements mentioned the Preparatory Committee’s opinion on both what is covered by the key term “active participation” and what is not, the latter judgement referred only to the first part of the Committee’s opinion (stating what is covered by the term; while the second part of its opinion – on what is not covered by the term – remained disregarded in the AFRC judgement).
  26. Moreover, as regards food finding missions the Chamber explicitly stated that “although this activity supports the armed group in a general sense, in our view it is not directly related to the conduct of hostilities, especially as the evidence does not establish that the children openly carried arms while on such missions” (para. 1743). This assertion maybe goes even more back than to the Preparatory Committee’s com­mentary because it not only explicitly departs from the AFRC judgement (which considered any support that helps to maintain the military operations as the active participation in hostilities), but it even seems to require a child to carry a gun in order to be recognised as a child soldier.
  27. United Nations Special Representative of the Secretary-General on Children and Armed Conflict. Situation in the Democratic Republic of the Congo in the case of The Prosecutor v Thomas Lubanga Dyilo. Written Submissions. ICC-01/04–01/06–1229-AnxA 18–03–2008 2/10 CB T.
  28. The Chamber literally said: “Regardless of whether sexual violence may properly be included within the scope of ‘using [children under the age of 15] to participate actively in hostilities’ as a matter of law, because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its [Judgement] on the evidence introduced during the trial that is relevant to this issue.” (para. 630). However, the Chamber Majority’s non-willingness to include the issue of sexual violence into its consideration on child soldiers’ activities (active participation in hostilities) was subject to criticism in the separate and dissenting opinion of Judge Elizabeth Odio Benito. In her view, the Chamber should not have contented with the case-by-case analysis only (which ultimately is limited by the charges and evidence brought by the Prosecution against the accused in this case) but instead it should have proposed a (complex) legal definition of the concept of “use to participate actively in hostilities”; and furthermore, it should have deliberately included sexual violence within this legal concept (paras. 15–17 of the Opinion). According to the dissenting Judge, “[b]y failing to [do this], the Majority of the Chamber is making this critical aspect of the crime invisible. Invisibility of sexual violence in the legal concept leads to discrimination against the victims of enlistment, conscription and use who systematically suffer from this crime as an intrinsic part of the involvement with the armed group.” (para. 16). Last but not least, the Judge very importantly stressed that child soldiers are endangered not only by being a potential target to the “enemy” (as the Majority emphasized) but they can be put at risk also by their “own” armed group (by being subject to brutal trainings, torture and ill-treatment, sexual violence etc. and living conditions incompatible with their fundamental rights there) (paras. 18 and 19).
  29. Similarly the Paris Principles 2007: p. 8: “’A child associated with and 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, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities.” Note that “a child soldier” is in fact just a shorthand for “a child associated with an armed force or armed groups” (Fujio 2008: p. 5, citing Christine Knudsen).

The author graduated from the Faculty of Law of Masaryk University. Currently she is a Bachelor's degree student in International Relations at the Faculty of Social Sciences and she works as a legal clerk at the Supreme Administrative Cou­rt.

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Kristýna Foukalová
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9. 3. 2013