Author: Hanna Nyssen
III Year | Tilburg University, Tilburg

Introduction:

Parallel to the increase in armed conflict, the world is observing an increase in the use of children in armed conflict. Regardless of the specific armed conflict, militant groups recruit children in economically weak countries or territories, either forcibly or voluntarily. The unconfirmed statistics state that up to 300,000 children are currently involved in over thirty armed conflicts around the world^[1].

The Role of Female Child Soldiers:

While this is a known issue, 40% of recruited female child soldiers and their gender-specific situations and requirements often go unseen and unmentioned^[2]. Armed conflict often has a patriarchal grip. Parties to armed conflict use violence against women as a strategic tool of war.

It is of utmost importance to understand that the role of girls in armed conflict is inconsistent with that of boys. Girls are often used as slaves or wives and the violence against them is more than often sexual in nature^[3]. Therefore, they require additional legal protection under international law of armed conflict, as well as international laws protecting minors and children. This article analyses whether the relevant legal framework factually aids girls in armed conflict or not.

Relevant Laws:

The most prevalent legal areas to be taken into account towards these issues are Conventions governing International Humanitarian Law (IHL) and International Human Rights Law (IHRL). They legislate different areas operatively. However, both IHL and IHRL face similar issues in regards to certain questions. For example, the prohibition of the use of child soldiers, the age of classifying an individual as a ‘child’, etc. It also remains to be answered conclusively whether the definition of ‘child soldier’ merits direct involvement in hostilities.

Geneva Conventions – No Gender-Specific Articles for Female Child Soldiers:

The four Geneva Conventions of 1949 form the core of IHL.  They are the oldest as well as the most developed conventions for legislating armed conflict around the world. The fourth Geneva Convention, which affords protection to civilians in occupied territory^[4], groups children under the age of 15 as ‘protected persons’^[5]. Art. 77 of Additional Protocol I of 1977 further intensifies this by prohibiting children below the age of 15 from taking ‘direct part’ in hostilities^[6].

The most preponderant convention in IHL legislation fails to mention child soldiers. Additionally, it also leaves a blurred line in distinctions between direct and indirect involvement in hostilities. With more de facto research, it has become evident that an increasing amount of children perform versatile and fluctuating roles. Particularly, the roles of female child soldiers are not involved in direct combat in the majority of cases. An attempt to balance out this inadequacy can be found in Additional Protocol II, which illegalizes any form of recruitment or direct participation of children under the age of 15 in combat^[7]. Regardless, indirect forms and non-traditional forms of participation fail to be addressed adequately.

Further issues of implementation, due to questions of legitimization of state v. non-state actors, a lack of adherence between ratified parties often pull the focus of stakeholders from questions of fact towards questions of law.

UNCRC – Governed Indirect or Direct involvement:

The United Nations Convention on the Rights of the Child (UNCRC), as one of the most widely ratified conventions, clearly focuses on protecting children. It mandates that states shall take ‘all feasible measures’^[8] to ensure individuals who have not reached the age of 15 do not take part in direct hostilities, overlooking indirect involvement in combat. Article 38(4) addresses a positive state obligation to protect children ‘affected by armed conflict’^[9]. The general interpretation of this can be understood as focusing on misplacement, malnutrition as well as access to education.^[10] However, it does not make any distinct reference to the role female child soldiers play in armed conflict. 

Cape Town Principles on Female Child Soldiers:

The loopholes in both the Geneva Conventions as well as the UNCRC make them ineffective in practice. Consequently, agencies focused on protecting children tend to use the 1997 Cape Town Principles. They broaden the scope of the definition of a child soldier to include a child ‘who is part of any kind of regular or irregular armed force or armed group in any capacity…, including girls recruited for sexual purposes and forced marriage’^[11].

The Cape Town Principles act as soft law until the present day, therefore making enforcement for state and non-actors difficult in front of International Courts of Law. Nonetheless, they play an important role in protecting young girls in the current conflicts. Still, soft law instruments are insufficient in protecting the amount and the various roles that girls play in conflict. These principles fail to turn focus on carrying out further research and therefore, are also not aiding in implementing sufficient reintegration programmes for victims.  

Conclusion:

Both IHL and IHRL Conventions as well as soft laws fail to incorporate specific provisions for female child soldiers involved, both directly and indirectly, in armed conflict. Instead, they set a framework for states to focus on behaviour rather than on results. The focus on child soldiers has not adequately incorporated the different realities of girl soldiers into legal mechanisms.

While specific case laws and more ongoing efforts are taking place, the role of girls in combat territory is and has not been adequately addressed. Not only do gender-specific laws require being added to the current legislation around child soldiers, but further apprehension, as well as research and advocacy efforts need to happen around the world, to not only focus on disarmament but also on reintegration and intergenerational long-term impact.

^[1] ‘Child Soldiers’ (Theirworld, 2018) <https://theirworld.org/resources/child-soldiers/#:~:text=difficult%20to%20return.->.

^[2]‘4 out of 10 Child Soldiers Are Girls – Office of the Secretary-General’s Envoy on Youth’ (Office of the Secretary-General’s Envoy on Youth 19 November 2018) <https://www.un.org/youthenvoy/2015/02/4-10-child-soldiers-girls/>.

^[3] J. Williamson, ‘Reintegration of Child Soldiers in Sierra Leone’ (2005) <https://pdf.usaid.gov/pdf_docs/PDACH599.pdf>.

^[4] ICRC, ‘The Geneva Conventions of 1949 and Their Additional Protocols – ICRC’ (Icrc.org, 29 October 2010) <https://www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm>.

^[5] Geneva Convention Relative to the Protection of Civilian Persons in Time of War (2nd Part) (1949), Art. 38,4.

^[6] Additional Protocol (I) to the Geneva Conventions (1977), Art. 77.2.

^[7] Additional Protocol II to the Geneva Convention (1977), Art. 4.3(c).

^[8] United Nations Convention on the Rights of the Child  (1989), Art. 38.2.

^[9] Ibis. Art. 38.4. 

^[10] M. Wernham, ‘Mapping the Global Goals for Sustainable Development and the Convention on the Rights of the Child’ (2016) <https://www.unicef.org/media/60231/file>. Part 4.1. 

^[11] ‘Cape Town Principles and Best Practice on the Prevention of Recruitment of Children into the Armed Forces and Demobilization and Social Integration of Child Soldiers in Africa’ (1997).