Oftentimes, several parties have made efforts to bring world peace, but war or armed conflict still features as an uppermost culture of human civilization. The law of war was initially used to state a rule of war between countries, but owing to the devastating WWII, which annihilated the civilian population, efforts were made to avoid and eliminate the war. In spite of efforts to avoid war as a method of dispute resolution, war, sadly, is still a reality in much of the world.
Every day we see colossal news about atrocities committed on the battlefield in which women and children are being brutally tortured and killed, displaced and evicted, and women are being raped while children are forced to carry weapons. Since WW II children are involved in the regular armed forces, where, as a consequence, 11,967 children were killed or maimed because of the armed conflict, as per the UN news agency, in 2024 alone. By understanding the horrendous impacts of armed conflicts on children, their protection within the framework of IHL attracted the attention of the international community.
The concept of children’s rights arose at the end of WWI as a reaction to the suffering experienced by women and children in war. The movement of the concept of children’s rights emanated from women activists who demonstrated and called attention to the vulnerability of children victimized by war. In 1959, the UN General Assembly again issued a Statement on the Rights of the Child, which was the second international declaration of children’s rights.
In 1979, when the International Year of the Child was declared, the Polish government proposed the formulation of a document that laid down international standards for the recognition of children’s rights and was legally binding. These marked the beginning of the formulation of the Convention on the Rights of the Child. Moreover, the Convention on the Rights of the Child was ratified by the General Assembly of the United Nations on November 20, 1989, and entered into force on September 2, 1990. Thus, this convention on children’s rights was an international treaty on human rights that encompasses civil, political, economic, and cultural rights.
The children are individuals who belong to the civilian population. Thus, in the Geneva Conventions governing child protection, we can see the IV Geneva Convention, which contains the protection of civilians. The arrangements based on the Additional Protocol of 1977, namely AP I, regulate international armed conflict, and AP II regulates non-international armed conflict, while both protocols shed light on the regulation of the involvement of children in armed conflict.
The CRC of 1989 does not directly explain child soldiers, but it provides an explanation of the protection of children’s rights, one of which is the involvement of children in armed conflict, as stated in Article 38. Also, arrangements based on the Additional Protocol to the CRC, namely the Additional Protocol of 2000, enshrined 13 articles, where the protocol specifically applies to children who are involved in armed conflict. Out of 13 articles, Articles 1, 2, 3, 4, and 6 provide legal rules relating to armed conflicts, including the recruitment of children in armed forces and protection of children as regulated by the IHL.
One of the rules in IHL which contains the protection of children who are recruited into the armed forces in the 1949 Geneva Convention, the fourth-part convention, contains the protection of civilian persons in the time of war, explaining who is meant by civilians and how the protection is provided. The convention explains that children are classified as civilians who must also be protected in times of war. While this convention doesn’t explicitly detail the recruitment of child soldiers and their involvement in armed conflict, it essentially protects children due to their status as civilians.
Furthermore, another fundamental facet of legal protection for children recruited into soldiers lies within the principle of distinction under the ambit of the Geneva Conventions of 1949. This principle divides the population into two groups, namely combatants and civilians. This distinction is necessary to determine who can be attacked and who should be protected. Based on this principle, children are classified into the civilian population who must be protected, but in fact, as happened in countries where there are still disputes and conflicts, children are recruited into child soldiers and ordered to carry weapons, what is the legal status of these children? whether they were classified as civilians or combatants, given the fact that these children were holding guns.
Thus, to determine the legal status of child soldiers, it can be seen from several legal instruments, namely: Articles 1, 2 and 3 of the Hague Convention; Article 13 Geneva Convention I of 1949; and Article 43 paragraph (1) and paragraph (2) Additional Protocol I. In 1977, Article 44 paragraph (3) Additional Protocol I of 1977, stated that based on this instrument, children are classified as combatants, namely when they have a special distinguishing symbol, carry weapons openly and carry out military operations in accordance with international rules and customs; however, these instruments only applies to child soldiers who are over 15 years of age, and then the provisions that will apply to child soldiers are the same as those that apply to combatants, because child soldiers who have exceeded the age of 15 according to the Geneva Conventions are classified as combatants. Then the legal protection for combatants will also apply to child soldiers.
Similarly, Article 77 of the Additional Protocol I of 1977 incorporated the legal protection for children recruited into soldiers;
- Children must be protected from indecent behavior, and warring parties must provide the assistance and care they need;
- The parties to the dispute must take all measures and keep children away from any recruitment of the child into the army;
- But in training children who are fifteen years old but have not yet reached the age of eighteen, they must give priority to those who are the oldest;
- The special protection given to these children is applied whether they are in a detention status or not; If children are arrested/detained or exiled because of matters related to armed conflict, they must be placed in a separate place from adults, unless the adults are their relatives;
- Children should not be put to death.
It can be concluded that the convention on children’s rights is a general provision regarding children in armed conflict. The CRC 1989 is also complemented by an Additional Protocol, namely the Additional Protocol of 2000; this protocol was made specifically to discuss the involvement of children in combat. This protocol provides protection for children who have been recruited into child soldiers to be released from their duties as child soldiers.
Along with several other regulations governing the involvement of children in armed conflict, they collectively emphasize the need for special respect and well-being of children. The international world has provided protection for children’s rights in such a way because, based on international law, especially IHL, children may not be used as a means on the battlefield; thus, children may not be recruited into child soldiers, but rather children must receive full protection. Therefore, as long as conflict continues, it is indispensable for us to stick with the laws, ensuring that beautiful childhood is never sacrificed on the altar of war.
Author Name- Diwakar Dhakal is a Final Year Law Student at Kathmandu School of law, Nepal
