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The Use of Children in Armed Conflict
Alan Baker and Har'el Ben-Ari1
(as published by the International Association of Jewish Lawyers and Jurists in Justice, Vol. 26, Winter 2000, p.p. 7-11)
One of the tragic and incomprehensible phenomena accompanying the renewed spate of violence between Israel and the Palestinians has been the accentuation by both the international and the Palestinian media of the fact that a relatively large number of Palestinian children have been killed or wounded. Has any consideration been given, however, to the question how, and why these Palestinian children came to be exposed to such dangers? How and why do they find themselves on the front lines, in violent confrontations? Why are they not in the safe and natural surroundings of a home, a playground or in school?
There are only two possible answers. Either, as Palestinian spokespersons would have the world believe, Israeli forces have been willfully and unabashedly targeting innocent Palestinian children, intentionally seeking them out and murdering them. Or, these children are being incited, brain washed and deliberately taken out of their homes, schools and playgrounds and being sent to the areas of tension, alongside Palestinian rioters, snipers, terrorists, and press photographers - with the express purpose of placing them in the line of fire in a calculated play for world sympathy.
It is clear which of these two possibilities is the more likely. It is clear who stands to benefit from the sympathy and to suffer from the censure that the injury of these children attracts. It is clear who is seeking to deflect world attention from an inherent unwillingness or lack of ability to take the necessary steps to make peace.
In the eyes of the Palestinian leadership, the fact that their children are being wounded or killed, as sad as it may be, is secondary to the fact that the world sees them being wounded or killed. Thus the Palestinians are able to cynically manipulate their media image and that of Israel. Furthermore, while the Palestinians make sure that the wounding and killing of children is captured on film, they are equally active in ensuring that the active Palestinian involvement in committing inhumane acts is not. When foreign corespondents are caught filming footage that could show the Palestinians in a negative light, such as the slaughter of innocent Israelis by Palestinian mobs (an act condoned and even encouraged by religious leaders) or the destruction of Jewish holy sites, the photographers are harassed, beaten or otherwise intimidated, the film confiscated and cameras destroyed. This is the way that the Palestinians cultivate their media image, by martyring their children and bullying those who dare to tell the truth.
Yasser Arafat, Chairman of the Palestinian Authority, who is ruthlessly encouraging the tragic involvement of children in the violence, calls them "the generals of the rocks". He would have the world believe that Israel, with its guns and helicopters, is waging a war against ten-year-olds with small stones. In truth, however, the children are not the generals of this conflict, but, rather, the smoke screen masking the gunmen, petrol-bomb throwers and lynch mobs which have exacted their pound of Israeli flesh, unseen or ignored by the television cameras and the media crews.
Whether the children are seen as the generals of this conflict or merely its cannon-fodder in the Palestinian campaign to discredit Israel, it is clear that the deliberate use of children in armed conflict is reprehensible and entirely contrary to all accepted norms of humanity and international law.
International humanitarian law, as the regulator of conduct in armed conflicts, attaches particular relevance to the protection of children2 in hostilities. Furthermore, general human rights law also considers the protection of children in armed conflicts as one of its major concerns3. The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 incorporates 17 Articles4, which afford general protection to children in as much as they constitute 'civilians in armed conflicts'. Thus, as a rule, and with the exception of a number of specific provisions of the Additional Protocols to the Geneva Conventions 19775, children, in practice, are afforded protection according to humanitarian law within their general recognized status as civilians.6
Within this framework, the relevant provisions of the Fourth Geneva Convention limit the use of methods and means of warfare, distinguish between the civilian population and those participating in the hostilities and prohibit reprisals against civilians, their forcible transfer or assaults upon their dignity.
Changes in the conduct of armed conflicts, occurring since the adoption of the Geneva Conventions, have revealed several lacunae in relation to the protection of children. The absence of any prescribed minimum age for child participation in hostilities and the lack of specific additional protection for children caught up in an increasing number of internal armed conflicts7 were of particular concern. The two Additional Protocols, aimed at diminishing such lacunae, provided greater protection for children against the effects of hostilities and for the first time regulated their participation in armed conflicts8. The two Protocols thus remarkably establish fifteen as the minimum age for recruitment, both with regard to international and internal armed conflicts. This standard was subsequently reiterated in Article 38(3) of the Convention on the Rights of the Child (CRC).9
International humanitarian law acknowledges that children may participate in armed conflicts in two ways, whether directly, by engaging them in combat through formal recruitment, or indirectly, through an infinite variety of means. Accordingly, international humanitarian law deals, in fact, with two aspects: first, whether it is appropriate that children ought to be recruited into the armed forces; and second, whether it is at all appropriate that they be permitted to participate in armed conflicts10.
Although there seems to be some uncertainty as to the precise definition of 'recruitment', many would argue that it means both compulsory and 'voluntary enrollment'11, so that the parties to the conflict would also be under a duty to refrain from enrolling children under the age of fifteen, who volunteer to the armed forces12. Furthermore, it is acknowledged that recruitment does not necessarily imply that children must directly participate in armed conflicts (regardless of the tendency of many to widely interpret even the scope of such 'direct' participation13) . It is sufficient, under certain circumstances, that they merely will be part of the armed forces. In relation to international armed conflicts, Additional Protocol I only provides that children under fifteen should not take "a direct part in the hostilities" (Article 77(2)14), while in relation to non-international armed conflicts, Additional Protocol II provides that children under fifteen are prohibited from any type of participation (Article 4(3)15)16.
Article 38(2) of the Convention on the Rights of the Child, does not change the age of recruitment, but merely reiterates the existing norms that establish fifteen as the minimum age of recruitment and urge that any recruitment from amongst the 15-18 age group17, be among the more senior of that age group. This article does, however, place a duty to ensure that children under 15 do not participate directly in hostilities.
Today, the Rome Statute of the International Criminal Court18 details the acts of 'conscripting or enlisting children under the age of fifteen into the national armed forces or using them to participate actively19 in hostilities'20 as one of 'the most serious war crimes of international concern'. Within an international armed conflict, the above act, which will accord the Court jurisdiction (once it is established), constitutes a 'serious violation of the laws and customs applicable in international armed conflict'. The Statute further provides that, within an armed conflict not of aninternational character, the act of 'conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities'21 would also be considered as a war crime, in serious violation of the laws and customs applicable in armed conflicts.
Clearly, international law portrays a keen normative picture22. It affords substantial protection to children in armed conflicts, both in relation to assaults against them and in relation to their actual participation in the hostilities. To a large extent, this protection is primarily based on the fundamental and widely recognized endorsement of the distinction between 'civilians' and 'combatants'. Thus, children, recognized as a vulnerable group, are safeguarded within the general framework of protection granted to the civilian population. It is this sacred distinction that underlines, inter alia, the specific provisions prohibiting the participation of children less than fifteen years of age in hostilities.
The Fourth Geneva Convention affords protection pursuant to the fact that civilians refrain from taking part in the hostilities. Accordingly, it should be recalled that this basic rationale complementarily obligates the sides to a conflict to clearly distinguish between combatants and the civilian population, which does not participate in the hostilities. Providing specific and substantial protection to children, the first Additional Protocol, the provisions of which generally apply also to those who claim to struggle for national liberation23, specifically and innovatively prohibited the participation of children in armed conflicts. This Protocol imposes two related obligations: not to recruit children under fifteen into armed forces, and to take 'all feasible measures' to ensure that such children do not by any other means take a direct part in the hostilities24. The rationale is self-evident:
"... the authorities ... should be conscious of the heavy responsibility they are assuming and should remember that they are dealing with persons who are not yet sufficiently mature, or even have the necessary discernment of discrimination."; "The purpose is to prevent physical or moral injury to children and to ensure that they develop as normally as possible under the conditions prevailing in armed conflict."25 [emphasis added].
The same rationale clearly underlines the inclusion of the act of using such minors in armed conflicts as a serious war crime.
As demonstrated, treaty law currently in force establishes fifteen as the minimum age for the participation of children in armed conflicts. The main aim is to protect children involved in one way or another in an armed conflict, from any harmful effect, both by direct protection in the conflict itself and through the attempt to keep them away from the zone of conflict. This aim must include the prohibition of indirect use, or in fact manipulation, of children and the attempt to prevent, as far as possible, any "voluntary" participation by them, by whatever means such voluntary participation is achieved26. Bearing that in mind, any argument of 'spontaneous participation', maintained over a long period of time, is to be discredited. Moreover, in this light, it is most convincingly asserted that the best interest of the child is the fundamental principle underlining our discussion. Once adopting this guiding principle, consideration of the character or the type of conflict is no longer relevant.
Most remarkably, it is ironically noted that the standard set by treaty law, indicating fifteen as the minimum age for child participation, appears to be consistent with Islamic law, as those under fifteen are not permitted to participate in jihad27. Thus, the use of children in armed conflict is in direct contravention of the fundamental sources of Islamic law (Shariah), as an analysis of the primary sources of jurisprudence, namely provisions within the Quran28 and the Sunnah29 (both applicable to all sects within Islam), unequivocally leads to the conclusion that the age requirement for participation is fifteen, contingent upon the further manifestation of maturity. That, regardless of any state of emergency, internal strife, or war.30
Taking into account the governing features of armed conflicts of our time, which occur, for the most part, not to say the decisive part, in the media - it is maintained that the wide, systematic and continuous use being made of children, principally for the purpose of gaining public opinion (by direct violation of the most fundamental duty to prevent their participation in the circle of violence and in blunt disregard to the requirement to prohibit, as far as possible, their access to the battlefield), indeed amounts to a calculated enrollment of children, and, in fact, their recruitment. Under the prevailing circumstances, where we can clearly identify a conscious and intentional exploitation of the 'product of the participation' of children - it seems that any argument of 'voluntary' or 'spontaneous' participation is not only baseless in reality and cynical, but also ill-founded: such continuous use and its exploitation/manipulation is tantamount to actual encouragement, and therefore there is no room for any consideration of either elements of 'spontaneity' or 'voluntarism'.
Obligated to the fundamental humanitarian principles, reflecting common values deriving from established customs shared by all nations, Israel seeks to avoid injury to innocent Palestinian civilians, including children, even as it confronts widespread violence directed against it and its citizens. Moreover, with regard to child civilians, Israel's forces respect international law regulating the treatment of civilian populations (including, of course, children) during the conduct of hostilities. The time has come to ask why the Palestinians are not making efforts in order to protect their own children from harm. Indeed, how can those claiming statehood and partnership in the family of nations allow themselves to offend so brutally the principles of humanity and the dictates of public conscience which constitute very basic norms of the family of nations ?!
Footnotes:
1 Alan Baker is the Legal Adviser of Israel's Foreign Ministry. Har'el Ben-Ari is a member of the Office of the Legal Adviser in the Israel's Foreign Ministry. The views expressed are the authors' and do not necessarily represent the views of the Government of Israel. The authors wish to thank Ms. Orna Gabay of the legal office for her assistance in reviewing the drafts of this article.
2 It would be difficult to find a unified and universally accepted definition for the term "child". Nevertheless, it seems to be generally accepted that the age of 15, so frequently used in the Fourth Geneva Convention and its Additional Protocols, provides reasonable measure to distinguish minors from adults - See J. Pictet, Commentary on the Additional Protocols (1987), p.p. 899-900, margin 3179. For further analysis of the definition of "Children", especially with regard to the relevant provisions of the Additional Protocols, see Matthew C.E. Happold, Child Soldiers in International Law: The Legal Regulation of Children's Participation in Hostilities, Netherlands International Law Review, Vol. XLVII (2000), p. 27, 32.
3 Geraldine Van Bueren, The International Legal Protection of Children in Armed Conflicts, International and Comparative Law Quarterly, Vol. 43 (1994), p. 809, 810, 817-819. See as well M. Bothe, K.J. Partsch, W.A. Solf, New Rules for Victims of Armed Conflicts - Commentary on the Two Protocols Additional to the Geneva Conventions of 1949 (1982), p.p. 474-475.
4 Articles 14, 17, 23-27, 40, 50, 51, 68, 76, 81, 82, 89, 94 and 132. For a careful analysis of the reasons for the lack of express regulation of the participation of children in hostilities within the Geneva Conventions see Happold, p.p. 29-30.
5 Articles 77,78 of Additional Protocol I and article 4(3) of Additional Protocol II.
6 Van Bueren, p. 811, fn. 13.
7See Bothe, p. 475; In this spirit, the General Assembly adopted in 1974 the Declaration on the Protection of Women and Children in Emergency and Armed Conflicts. However, as it is possible to conclude from the wording of the Preamble of this Declaration, it does not refer directly to the issue of 'Child Combatants', rather to the protection of children as those "belonging to the civilian population". It should be noted that although the Declaration had not acquired great normative status, its importance has been measured in the groundwork it provided for the adoption of the specific provisions of the Additional Protocols, as mentioned above - See Van Bueren, p. 811-812.
8 See Happold, p. 31.
9 The Convention entered into force on 2 September 1990 (signed in New-York, 20 November 1989) and is the most ratified multilateral human rights treaty: 191 States are parties to it (US and Somalia are the only UN members which have not ratified it as of yet). Article 38 reads as follows:
"1. States Parties 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.
2. 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.
3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen, States Parties shall endeavor to give priority to those who are oldest.
4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts' states parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.".
The provision confirms that the prohibition of recruitment of children under 15 is a 'blanket' one, applying in times of peace and war. For a detailed discussion of the customary status of provisions governing the recruitment of children - see Happold, p.p. 43-48.
10 Van Bueren, p.p. 812-813.
11 Happold argues that in English, the term 'recruitment' is broader than the word 'conscription', and therefore covers both voluntary enlistment and conscription into the armed forces. He further maintains that "... the object and purpose of the provision is ... to protect children from the effects of armed conflicts; it is concerned with their welfare. Given this, it becomes immaterial whether a child's recruitment is voluntary or coerced" - see p. 37-38.
12See, for example, Bothe, p.p.476-477; Pictet, p. 900, margin 3184-3187 & p. 902 margin 3190; Van Bueren, p.p. 813-814, 816.
13 Kalshoven remarkably notes that "... 'to take a direct part in hostilities' must be interpreted to mean that the person in question performs warlike acts which by their nature or purpose are designed to strike enemy combatants or materiel; acts, therefore, such as firing at enemy soldiers, throwing a Molotov-cocktail at an enemy tank ... and so on." [emphasis added] - F. Kalshoven, Constraints on the Waging of War, (Geneva, ICRC, 1987), p. 91, as cited in Happold, p. 36, fn. 31.
14 The Article reads as follows:
"1. Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason.
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. ... ".
15 The Article reads as follows:
"3. Children shall be provided with the care and aid they require, and in particular:
...
(c) 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. ...
(e) measures shall be taken, if necessary, ... to remove children temporarily from the area in which hostilities are taking place to a safer area within the country ... ".
16 For the sources of differences between these two provisions see Happold, p.p. 39-41.
17 Today, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict establishes the minimum recruitment age for the signatory States as 18 years of age. The Protocol, signed by 72 States and ratified by 3, is not yet in force (was opened for signature in New-York on 25 May 2000). In this regard, Happold notes that : "[P]ersons below the age of eighteen are not seen as having sufficient psychological maturity either to make an informed choice whether to participate in hostilities or to stand the peculiar stresses of combat". It is this change of perception, he acknowledges, that primarily motivates the recent moves to push the minimum age of recruitment and participation in hostilities up to eighteen - see p. 28.
In this context, it is important to note that on 17 June 1999 the International Labour Conference adopted the Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO Convention 182). Article 3(a) of the Convention includes, within the definition of the term 'the worst forms of child labour', the 'forced or compulsory recruitment of children for use in armed conflict. The term 'child' in the Convention applies to persons under 18.
18 UN Doc. A/CONF.183/9 (17 July 1998).
19 It is interestingly argued that: "[E]ven though the Rome Conference adopted the language of 'using them to participate actively' instead of 'allowing them to take part', there is no need of any element of force in using them, and the simple acceptance of using their 'participation product' should be sufficient to subsume it under this prohibition - See M. Cottier, War Crimes - para. 2(b)(xxvi), in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999), p. 261.
20 Article 8 (2) (b) (xxvi); See also Report of the Preparatory Commission for the International Criminal Court, Finalized draft text of the Elements of Crimes, UN Doc. PCNICC/2000/INF/3/Add.2 (6 July 2000), p. 37.
21 Article 8(2)(e)(vii); See also Report of the Preparatory Commission for the International Criminal Court, Finalized draft text of the Elements of Crimes, UN Doc. PCNICC/2000/INF/3/Add.2 (6 July 2000), p. 46.
22 In this context, Happold tentatively concludes that the provisions contained in Article 77(2) of Additional Protocol I became a norm of customary international law - see p. 46-47; Happold further acknowledges the added weight of the inclusion in the Rome Statute of Articles 8(2)(b)(xxvi) and (e)(vii) to his conclusion - see p. 48, fn. 34.
23 See Article 1(4).
24 For further analysis of the scope of these obligations see Happold, p. 35. It seems clear that the scope of the concept 'feasible measures', which incorporates a reference to existing relevant circumstances, should be interpreted in a broadening manner that correlates to the prolongation of the hostilities at hand - see Happold, p. 35.
25 Pictet, p. 901, margin 3185; Bothe, p. 476, respectively.
26 In this context, it is enlightening to note that according to the newspaper AL-QUDS AL-ARABI, a representative of the "Women's Empowerment Project" (NGO), in charge of the programme for family palnning in Gaza, has reported that Palestinian women consciously give birth to a large number of children, because they foresee that some of them might die in clashes with Israeli forces. According to this newspaper article, the same representative emphasized that while some of the children might indeed wish to die for their cause, others are victims of society's pressure on them to take part in the hostilities - see AFP (Gaza), Children of the Intifada Fail the Family Planning Project, AL-QUDS AL-ARABI (London), 8 November 2000, p. 5 (Arabic). Futhermore, AL-HAYAT AL-JADIDA reports that the 'FADA' party students' bureau organizes, in the Jericho district, weapon tarining courses for school children, boys as well as girls - see Jericho FADA Students' Bureau Organizes Courses for Pupils, AL-HAYAT AL-JADIDA (London), 8 November 2000, p. 2 (Arabic).
27 See Van Bueren, p. 815; Maryam Elahi, The Rights of the Child Under Islamic Law: Prohibition of the Child Soldier, Columbia Human Rights Law Review, Vol. 19 (1988), p. 259. According to Elahi, the Jihadist is required to be male, sane, mature, economically-independent and strong. Describing the relevant provisions the of Quran, she acknowledges that Mohammad had categorically excused children from participating until the age of fifteen - see Elahi, p.p. 273-274.
28 Words of God as revealed to the Prophet Mohammad - see Elahi, p. 265.
29 Mohammad's words, deeds, and customs - see Elahi, p. 265.
30 Elahi, p. 265, 269, 274.
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