Applying International Law to Armed Groups: On the Recruitment of Children or their Use in Armed Conflict
By Joseph Kaifala
Published on April 8, 2014
Could Armed Groups be Held Accountable under International Law?
International law remains unclear about its direct application to armed groups. Even international laws that unequivocally apply to non-state actors fail to specifically mention armed groups.
Increased violations of international law by armed groups has led a few scholars to speculate the idea of including armed groups in treaty-making.
According to Sophie Rondeau, Legal Adviser at the Canadian Red Cross, “[i]nclusion of armed groups in the development of legal instruments binding them could limit the possibility of excuses offered by such groups to justify their disregard of humanitarian law obligations.“
However, Vincent Bernard, Editor-in-Chief of the International Review of the Red Cross, explains that states in the international system have always viewed armed groups as enemies to be destroyed by firepower, and therefore not welcome as state equivalents that could be bound by international agreements.
There are many advantages to a state-centric system of international law, but the most fundamental advantage in relation to the use of children in armed conflicts by armed groups is the element of permanence, in terms of the accountability mechanism inherent in a state-centric system. States may not reject their international law obligations merely as a result of a change in government, and unless a treaty establishes differently, treaties are binding upon the parties in respect of their entire territory. Therefore, to open treaty responsibilities to armed groups will not only raise more issues concerning interpretation and application of international law, it could also lead to divergent claims concerning the object and purpose of the treaty. Most armed groups are not permanent, and so would their commitments.
No matter the justification for including armed groups in international law making, Olivier Bangerter of the International Committee of the Red Cross (ICRC) has stated that “the idea that armed groups have an issue with IHL because they have not contributed to its formulation and cannot ratify it seems wrong…” And if the idea is to induce respect for and compliance with international law among armed groups, then the solution is not to make them contracting parties when international law is already assumed to be territorial in scope and application.
Why Armed Groups Choose to Respect or Disregard International Law
Generally, armed groups will respect international law when it is in their strategic interest to do so. Sometimes the interest is to improve their public image, nationally or internationally. As Bangerter has found, many armed groups see their aim as beneficial to their country, their defined group, or population. They may therefore choose to respect international law in order to discredit the opposition among those they represent, and as a strategy of garnering national and/or international support for their cause.
Armed groups may also choose to respect international law when their aims and objectives are inherently not contradictory to fundamental human rights or international law. An example of this approach is Umkhonto we Sizwe (MK), the armed wing of the African National Congress (ANC) headed by Nelson Mandela in the struggle against apartheid in South Africa. Mandela ensured that it was the fundamental principle of MK not to target innocent civilians and to target only instruments that enhanced the functioning of the apartheid regime. As Mandela explains, “[t]errorism inevitably reflected poorly on those who used it, undermining any public support it might otherwise garner…[s]trict instructions were given to members of MK that we would countenance no loss of life.” As a lawyer, Mandela was cognizant of both domestic and international law, but his major considerations were adherence to the ANC policy of not targeting civilians and getting support among all South Africans.
Some armed groups are strategically planned, orderly, and legally organized, with a legitimate cause. One of the major reasons many armed groups fail to respect international law is because their leaders have no centralized control over the rebellion. The Revolutionary United Front (RUF) of Sierra Leone, for instance, lacked control over its forces because the revolution started on the promise that loaned rebels from Liberia would be allowed to pay their own wages through authorized looting and pillaging. In contrast, Mandela’s MK was exceedingly organized with a High Command under the overall supervision of the ANC. Targets were strategically selected to cripple the government, and all necessary steps were taken to avoid civilian casualties. MK, unlike many movements today, had a legally minded High Command that vetted and authorized their every action.
But many armed groups are not even aware of the existence of international law, and when they are, they sometimes lack knowledge of its applicability to their situation. Armed groups that also feel strongly about the righteousness of their cause may feel their acts are justified under domestic and international law, especially in situations wherein the government is engaging in similar violations. As Bangerter explains, “[w]hen combatants think–rightly or wrongly–that their adversary is not respecting the law of war and is attacking defenseless people with impunity, it is not surprising if they seek revenge.” During the Rwandan genocide, Hutu militias, in contravention of International Humanitarian Law (IHL), commandeered UN Peacekeeping vehicles, which they used to attack Tutsi rebels. The rebels retaliated by mounting attacks on UN vehicles that went towards their territory.
As for armed groups that are aware of the existence of international law, perhaps through the group’s own lawyers or a well-educated executive command, the threat of future prosecutions by international tribunals can be a deterrent to violations. Since the creation of the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the establishment of the International Criminal Court (ICC), more commanders of armed groups have become aware of the possibilities of being held personally accountable for their actions even in the case of a peace agreement that grants blanket amnesty to members of their ranks. For example, the United Nations in collaboration with the Government of Sierra Leone established the Special Court for Sierra Leone (SCSL) even though the Lomé Peace Accord granted blanket amnesty to the warring parties.
Strategic military advantage is often at the heart of the actions of armed groups, and combat decisions are made out of immediate strategic advantages or necessity. The RUF resorted to recruiting children when the National Provisional Ruling Council (NPRC) mounted a formidable counterinsurgency in 1993 that almost annihilated the movement. In response, the group wrote in its 1995 manifesto that, “the RUF/SL has trained a large number of men and women including the elderly, youth, children and the disabled from all corners of Sierra Leone and given them arms to dismantle the corrupt APC system.” The National Patriotic Front of Liberia (NPFL) also recruited children when the movement split and the rebellion seemed to face a stalemate against the Samuel Doe regime. The RUF and other rebel factions commenced gross amputation of civilians in Sierra Leone after people rejected the group’s call for ‘peace before elections’ and voted in the 1996 elections.
Additionally, atrocity in violation of IHL may be used as a way of intimidating civilians in the territory of the enemy, as a propaganda tool, and as a method of training new recruits or maintaining loyalty. Many of those who were amputated in Sierra Leone were given letters or messages to take to the president, informing him that their victimization is on his conscience. Victims of rape, amputation, torture, and disembowelment were also sent to other villages as propaganda tools to force people to defect to the RUF. Towns and cities that refused to endorse the movement were completely annihilated. The NPFL employed similar methods against Liberians who were unwilling to join the movement. In fact, it was such intimidation and propaganda that led to the election of Charles Taylor in the 1997 presidential elections. The most popular slogan in support of Taylor during that election was, ‘you kill my ma, you kill my pa, I will vote for you.”
Many civil wars are started by disgruntled groups retaliating against a political system or specific government actions against the group. Mano and Gio youths enlisted to fight for the NPFL in Liberia because the Samuel Doe regime had targeted people from ethnic groups including Khran, Mano, and Gio, for extrajudicial killings and political persecutions. During the 1998 Rwandan Genocide, members of the Paul Kagame led Rwandese Patriotic Army (RPA) felt justified in their atrocities against Hutus because the latter were killing Tutsis in a genocidal campaign. Oftentimes, such revenge atrocities are disproportionate, heinous, and perpetrated in complete disregard of human rights and international law.
Examining Current International Legal Standards Applicable to Armed Groups on the Unlawful Recruitment of Children or their use in Hostilities.
I am in agreement with Prof. Andrew Clapham that the question whether IHL is applicable to armed groups lacks legitimacy in contemporary debate. According to him, “even in the absence of a consensus on a theoretical justification, it has become clear that, not only are rebels bound as parties to the conflict by Common Article 3 to the Geneva Conventions, but they are bound by the provision of Protocol II.” But even without specific reference to armed groups, the underlying idea is that individuals and groups are bound by international commitments made by their states.
One of the fundamental issues arising from international standards applicable to the unlawful recruitment of children or their use in hostilities is the question of who is a “child” under international law. In general, under international law, children are categorized into two age groups: under fifteen and under eighteen. The additional protocols to the four Geneva Conventions of 1949 set fifteen as the minimum age for the recruitment of children or their use in armed conflict. Article 77(2) of Additional Protocol I states that “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.” Article 4(3)(c) of Additional Protocol II also states that “children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities.” These are the primary provisions applicable to all parties on the unlawful recruitment of children or their use in hostilities under IHL.
Customary international law also prohibits the recruitment of children or their use in hostilities. In the comprehensive study of international customary law by the ICRC on international humanitarian law, Rule 136 on the recruitment of child soldiers states that “children must not be recruited into armed forces or armed groups” and Rule 137 on the participation of child soldiers in hostilities states that “children must not be allowed to take part in hostilities.” These rules of customary international law apply to both international and non-international armed conflicts involving states parties and/or armed groups. However, the rules do not define what constitutes a child and establish no minimum age. The ICRC notes that there is as yet no uniformed practice with respect to minimum age, but implies that there is a general consensus that it should not be lower than fifteen.
International human rights law also provides protection for children in armed conflict. There is continuing debate concerning the application of international human rights law to armed groups, but as previously stated, international law is assumed to be applicable to all in a state territory. When states ratify international law, they submit themselves to the jurisdiction of such instruments whether through self-executing means, which allow the laws to be directly applicable or through enabling national legislation. Therefore, the actions of individuals within a state are attributable to the state if it fails to prevent human right abuses or fails to protect individuals from such violations.
The primary international human rights law directly applicable to children, the Convention on the Rights of the Child (CRC), holds fifteen as the age limit for recruiting or involving children in direct hostilities. Article 38(2) provides that states parties “shall 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.” And paragraph (3) requires states parties to “refrain from recruiting any person who has not attained the age of fifteen years into their armed forces.” While Article 1 of the CRC generally defines a child as any human being below the age of eighteen, when it comes to recruitment or direct participation in hostilities, the convention renders a significant drop in the age requirement.
Article 38(1) and (4) of the CRC are also relevant in determining states obligations under IHL regarding children in armed conflict. Article 38(1) requires states parties to “undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child,” and paragraph (4) requires states parties to act in accordance with their obligations under IHL “to take all feasible measures to ensure protection and care of children who are affected by an armed conflict.” Therefore, even though CRC does not mention armed groups directly, it could apply to them indirectly through article 38 when a state party is acting in accordance with obligations under IHL to protect children in armed conflict. The Optional Protocol to the CRC on the involvement of children in armed conflict (OPAC), a human rights treaty directly applicable to the unlawful recruitment of children or their use in hostilities by both states and armed groups, sets eighteen as the minimum age for direct participation in hostilities and for compulsory recruitment into state armed forces. States may, however, engage in voluntary recruitment of children older than fifteen, but such states must deposit binding declarations at the time of ratification or accession establishing a minimum voluntary recruitment age and a description of safeguards adopted to ensure that such recruitments are not forced or coerced.
While states may, with binding declaration and safeguards, recruit children younger than eighteen and older than fifteen, armed groups are banned from engaging in similar recruitments. OPAC allows states to recruit children fifteen or older, but places absolute prohibition on the recruitment or use of children below eighteen by armed groups. Article 4 (1) states that “[a]rmed groups that are distinct from the armed forces of a state should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.”[Emphasis added]. Armed groups cannot of course be parties to OPAC, and cannot issue binding declarations under the treaty.
The African Charter on the Rights and Welfare of the Child (Charter), currently the only regional treaty that addresses the use of children in armed conflicts, defines a child as “every human being below the age of 18 years” without any distinctions for recruitment or use in hostilities. Article 22 (2) of the Charter requires states parties to “take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child.” The Charter, like CRC, incorporates the rules of IHL applicable to children. Article 22(1) requires states parties to “undertake to respect and ensure respect for rules of international humanitarian law applicable in armed conflicts which affect the child.” Paragraph (3) also requires states parties to the Charter, “in accordance with their obligations under IHL, ”to take all feasible measures to ensure the protection and care of children who are affected by armed conflicts.” This includes an obligation on the part of states parties to take action to protect children from recruitment or use in armed conflict by armed groups. Article 22(3) of the Charter explicitly states that these provisions are also applicable to internal armed conflict—so they are directly applicable to armed groups.
However, while all these international human rights law instruments carry great moral weight and obligations for states parties, they make little difference in the daily affairs of rag-tag revolutionaries whose aim is to topple the government of the day by all means necessary. This is what makes international criminal law, especially the Rome Statute, which establishes the International Criminal Court (ICC), instrumental as a standard applicable to armed groups on the unlawful recruitment of children or their use in hostilities. The ICC was established in 2002 and it could have resolved the age question in conformity with OPAC; but the majority of states voted for the Rome Statute to continue the IHL fifteen year age requirement for conscripting, enlisting or use in hostilities.
The ICC is a permanent institution with power to exercise jurisdiction over persons for the most serious crimes of international concern, as defined by the Rome Statute. Since the Court has criminal jurisdictions over individuals, it is one of the international legal instruments clearly applicable to armed groups on the unlawful recruitment of children or their use in hostilities. Article 8(2)(b)(xxvi) of the Rome Statute makes it a war crime for states parties “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.” Similar prohibition applies to conflicts not of international character, which includes conflict involving armed groups. Article 8(2)(e)(vii) also deems it a war crime to conscript or enlist children under the age of fifteen into armed forces or groups or use them to participate actively in hostilities.
The Rome Statute is currently the strongest international legal instrument applicable to armed groups in the prohibition against the recruitment of children or their use in hostilities. However, the statute has also inadvertently made it less likely that armed groups will adhere to the standards in Article (4) of OPAC. While Article (4) of OPAC absolutely bans armed groups from recruiting or using children in hostilities, there is no mechanism for bringing armed groups before any tribunal other than those established by domestic law. But armed groups generally tend to contest the overall legitimacy of the state itself, so it is unlikely that domestic laws may be enforceable against them, unless they are captured and amnesty is denied.
It is unfortunate that the Rome Statute did not raise its age requirement to conform to that of OPAC. The current situation may encourage rebel leaders who are aware of the criminal jurisdiction of the ICC to abide by the age limit of the Rome Statute and IHL, but still recruit children under the age of eighteen or use them in hostilities. Setting the age limit for recruitment at fifteen in one treaty and eighteen in another may be creating genuine misinformation among armed groups who generally operate from remote areas and lack adequate education or information. Uniformity with regard to age might be helpful for advocates such as the ICRC or Geneva Call—a neutral humanitarian organization dedicated to engaging armed non-state actors towards compliance with IHL and international human rights law.
Moreover, both the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups and the International Labor Organization (ILO) conventions relating to children define a child in the context of armed conflict restrictions as any person less than eighteen years of age in accordance with CRC. Article 3(1) of the ILO Minimum Age Convention states that the “minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardise the health, safety or morals of young persons shall not be less than 18 years.” A more recent ILO convention, C138, on the Worst Forms of Child Labour, obligates states parties to “take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.” And such worst forms of child labor include forced or compulsory recruitment of children for use in armed conflict, under article 3(a). However, to make these principles and other conventions applicable to armed groups, states have to adopt domestic laws that criminalize the recruitment or use of children in armed conflict.
United Nations Security Council Mechanisms
The United Nations Security Council (Security Council) has also established standards and mechanisms that buttress current applicable international law on the unlawful recruitment of children or their use in hostilities. These may be among the most useful in addressing the recruitment or use of children by armed groups. Security Council resolution 1379 (2001) on Children and Armed Conflict requests “the Secretary-General to attach to his report a list of parties to armed conflict that recruit or use children in violation of the international obligations applicable to them.” In addition, Security Council resolution 1460 (2003) requires listed parties to enter into dialogue with the United Nations in order to develop “clear and time bound action plans” to end the recruitment or use of children in armed conflict.
Other Security Council mechanisms to ensure protection for children against unlawful recruitment or use in hostilities were created through Security Council resolution 1612 (2005), which established the Monitoring and Reporting Mechanism (MRM) for grave violations against children in armed conflict. The purpose of MRM is to collect and provide timely, objective, accurate and reliable information on the recruitment or use of children in armed conflict. Security Council resolution 1612 (2005) also created a Working Group on Children and Armed Conflict, which consists of all members of the Security Council. The Working Group reviews Secretary General’s reports on children in armed conflict and makes recommendations to parties to the conflict, governments, donors, as well as other UN bodies on measures to promote protection for children in armed conflict.
Security Council resolutions can create mechanisms that apply to all parties in an armed conflict. They also carry weight because the Security Council is one of the sources of jurisdiction for the ICC, and its mandate reaches individuals whose countries might not even be party to the Rome Statute. The ICC has jurisdiction under Article 13(b) of the Rome Statute in a situation in which crimes within its jurisdiction appear to have been committed and “is referred to the Prosecutor by the Security Council…” Those who are listed under Security Council resolution 1379 (2001) for recruiting or using children in armed conflict, and who fail to enter into dialogue with the UN under Security Council resolution 1460 (2003) to develop clear and time bound action plans, risk possible referral to the ICC for Article 8(2)(b)(xxvi) or 8(2)(e)(vii) charges of conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities.
ICC Jurisprudence Concerning Conscription or Enlistment and Active Participation
Among many of the issues surrounding international legal standards applicable to armed groups on the unlawful recruitment of children or their use in hostilities, is that raised by the language used mainly in OPAC and the Rome Statute. Where OPAC uses ‘recruitment’ the Rome Statute employs ‘conscripting or enlisting’ of children. However, the major contentions have been around the interpretations of Article 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute concerning the application of ‘conscripting or enlisting’ on the one hand, and to ‘participate actively in hostilities’ on the other. The only other difference between the language in 8(2)(b)(xxvi) and 8(2)(e)(vii) is that the former refers to conscription or enlisting into the “national armed forces” and the latter refers to conscription or enlisting into “armed forces or groups.”
The ICC, in what is the first major jurisprudence concerning the unlawful recruitment or use of children in hostilities, has offered some clarity on the meanings of ‘conscripting or enlisting’ and to ‘participate actively in hostilities.’ In the case of The Prosecutor v. Thomas Lubanga Dyilo, the defendant, who was the head of an armed group in the Democratic Republic of Congo (DRC), the Forces Patriotiques pour la Libération du Congo (FPLC), was charged with the war crimes of conscripting or enlisting children under the age of fifteen years and using them to participate actively in hostilities. In that case, the Trial Chamber accepted the approach adopted by the Pre-Trial Chamber that “conscription” and “enlistment” are both forms of recruitment, in that they refer to the incorporation of a boy or a girl under the age of fifteen into an armed group, whether coercively (conscription) or voluntarily (enlistment).
This opinion did not only lay to rest the issue of “conscription” or “enlistment” vs. “recruitment,” it also settled the question of whether children can enlist voluntarily with a resounding “no.” The Special Representative of the Secretary-General for Children and Armed Conflict, who testified to the court on several issues including the question of voluntary enlistment, stated that “children could not give ‘informed’ consent because they possessed limited understanding of the short-term and long-term consequences of their choices and actions and did not control or fully comprehend the structures and forces with which they were faced.” The Trial Chamber endorsed this view and stated further that the status of a child under fifteen who has been enlisted or conscripted is independent of any “use” to participate actively in hostilities.
The Court then moved to the question of what does it mean to ‘participate actively in hostilities,’ or what OPAC describes as ‘taking direct part in hostilities,’ especially given the variety of tasks that children are required to perform as child soldiers in addition to direct combat roles. As with conscription or enlistment, the court stated that “the prohibition against using children under the age of 15 to participate actively in hostilities is not dependent on the individuals concerned having been earlier conscripted or enlisted into the relevant armed force or group.” Therefore, a child can be used to participate actively or take direct part in hostilities without conscription or enlistment.
In essence, to “participate actively” can include direct or indirect participation. Direct participation includes actively engaging children on the frontline, while indirect participation involves a myriad of support roles performed for combatants. According to the Court, all activities covering “either direct or indirect participation, have an underlying common feature: the child concerned is, at the very least, a potential target.” Therefore, the crucial factor “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.” The court’s reasoning is in conformity with the overall purpose of protecting children from the dangers of armed conflicts.
The Special Court for Sierra Leone (SCSL), established to try those who bear the greatest responsibility for serious violations of IHL and Sierra Leonean law, has reached similar conclusions on the question of active participation in hostilities. In the case of the Prosecutor v. Charles Ghankay Taylor, in which Taylor was found guilty of aiding and abetting the RUF of Sierra Leone, the SCSL stated that using children to participate actively in hostilities “encompasses putting their lives directly at risk in combat, but may also include participation in activities linked to combat such as carrying loads for the fighting faction, finding and/or acquiring food, ammunition or equipment, acting as decoys, carrying messages, making trails or finding routes, manning checkpoints or acting as human shields.”
According to the ICC, the status of a child who has been enlisted or conscripted is independent of any active participation in hostilities. Therefore, it is possible to hold armed groups liable just for the recruitment of children. States may recruit below the age of eighteen but not use in direct hostilities under OPAC, while armed groups may not, under any circumstances, recruit or use in hostilities children under the age of eighteen under OPAC, which they can do under the Rome Statute. On the question of “voluntary” enlistment, the ICC has also endorsed the view that consent by a child is legally irrelevant, because what looks like voluntary participation might in fact be instigated by severe circumstances created by war or other unbearable social conditions caused by armed conflicts.
Joseph Kaifala is founder of the Jeneba Project Inc. and co-founder of the Sierra Leone Memory Project. He was born in Sierra Leone and spent his early childhood in Liberia and Guinea. He later moved to Norway where he studied for the International Baccalaureate (IB) at the Red Cross Nordic United World College before enrolling at Skidmore College in upstate New York. Joseph was an International Affairs & French Major, with a minor in Law & Society.
He holds a Master’s degree in International Relations from the Maxwell School at Syracuse University, a Diploma in Intercultural Encounters from the Helsinki Summer School, and a Certificate in Professional French administered by the French Chamber of Commerce.
Joseph was an Applied Human Rights Fellow at Vermont Law School, where he completed his JD and Certificate in International & Comparative Law. He is recipient of the Vermont Law School (SBA) Student Pro Bono Award, Skidmore College Palamountain Prose Award and Skidmore College Thoroughbred Award.
Joseph was a 2013 American Society of International Law Helton fellow. He served as Justice of the Arthur Chapter (Vermont Law School) of Phi Alpha Delta Law Fraternity International. He is a member of the Washington DC Bar.
Article picture: The first victim of a child soldier – Childhood By Rafaela Tasca and Carlos Latuff. Source: Wikipedia