As part of our work in Human Security and Human Rights we study and unpack issues such as Human Trafficking. In this guest blog, Laura Bakx provides a valuable insight on gaps within the international legal framework prohibiting the use of child soldiers and its impact on the protection of children.
Despite the plethora of international and national legal instruments prohibiting the recruitment and use of child soldiers in armed conflicts, the widespread practice of child recruitment by non-state armed groups (NSAGs) persists. Why? One of the reasons is ambiguous legislation. The growing prevalence of child soldiers has become an alarming feature of modern conflicts, among which is the Colombian conflict. For more than six decades, government forces and right-wing paramilitary groups have been fighting left-wing guerrilla groups in Colombia. A prominent aspect of this conflict has been the use of child soldiers. Within the international legal framework prohibiting the use of child soldiers, weaknesses and inconsistencies exist when it comes to the connotation of a ‘child soldier’, as reference is made to different age limits (15 v 18) and methods of recruitment. By allowing interpretative leeway for NSAGs to manipulate the law to their advantage when recruiting children, the legal framework is incapable of successfully protecting children.
While the Optional Protocol on the Involvement of Children in Armed Conflict (OPAC) prohibits the practice of recruitment by NSAGs of children under 18, the Convention on the Rights of the Child (CRC), Additional Protocol II to the Geneva Convention, and the Rome Statute only prohibit the recruitment of children below the age of 15. Even within the CRC, there is a great inconsistency in defining what a child is. While it identifies a child as anyone under 18, it draws the line at 15 years of age, when prohibiting child recruitment. This inadequacy portrays child soldiers as less worthy of protection than other children. But it should be the contrary, these children need more protection given that they are being abducted, tortured and exploited. The only actual prohibition on the recruitment of children under 18 into NSAGs is entrenched in the OPAC. However, the effectiveness and strength of this provision can be questioned as it solely imposes a moral obligation upon NSAGs using the wording ‘should not’, rather than ‘must not’ or ‘shall not’. Consequently, a gap in the protective regime for children is engendered.
Furthermore, the Rome Statute (treaty underpinning the International Criminal Court) presents a disturbing gap within the framework prohibiting the recruitment of children, particularly regarding children between 15 and 18. No criminal sanctions are imposed upon commanders who conscript, enlist or use children aged between 15 and 18, while, simultaneously, jurisdiction over persons under 18 is excluded. Consequently, an accountability-free age bracket remains in which children aged between 15 and 18 are considered lawful combatants, but may commit war crimes without being prosecuted for their acts. This statutory gap incentivises armed groups to specifically target children within this age as to evade international criminal responsibility. Perversely, it could even encourage armed groups to assign the most heinous crimes to children aged 15, 16 or 17. This tendency is seen in the child recruitment practices of the Revolutionary Armed Forces of Colombia (FARC) during the Colombian conflict, with 66.8% of the verified cases of children recruited at the ages 15, 16 or 17 (Table 1). The recruitment practices of the FARC were not sporadic, on the contrary, they focused on the recruitment of children within this accountability-free age category 15 to 18.
Given the arguably low probability of detection and prosecution for the crime in Colombia, together with low sentences in case of early admission of guilt, FARC combatants deem the costs of non-compliance with the laws insignificant. The costs simply fail to outweigh the benefits of recruiting children into the ranks.
The ambiguity of the international legal system allows the FARC to continue the recruitment of children in this nonaccountable age bracket. In order to provide sufficient protection to these children who are most in need of protection, efforts must be strengthened to identify effective approaches to prosecute recruiters, and the international legal framework must be adapted to eliminate the inconsistencies regarding the age threshold.
