The Legal Status of Children in Armed Conflicts

The Legal Status of Children in Armed Conflicts

At the international level, there has been limited support for significantly raising the age of criminal responsibility. The principal concern is that such an increase could enable criminal organizations to exploit children for organized crimes, including drug trafficking and similar activities.

Under current conditions, an individual may be considered legally mature for one act and legally immature for another. Therefore, the age of responsibility for participating in religious ceremonies, elections, exercising property rights, bearing criminal responsibility, and taking part in armed conflicts must be examined separately and independently.

Prohibition of the Use of Children in Armed Conflicts

The Effects of War on Children

• Moral and Psychological Protection: Paragraph four of Article 38 and Article 39 of the Convention on the Rights of the Child emphasize the obligation of states to support children affected by armed conflict and to ensure the physical and psychological recovery of children who are victims of abuse, torture, or other inhumane treatment.
• Protection of the Family Unit: Article 82 of the Fourth Geneva Convention addresses the preservation of family unity, particularly by keeping parents and children together and separate from other detainees. The importance of family cohesion is further emphasized in Article 74 of Additional Protocol I and paragraph three of Article 4 of Additional Protocol II. Pursuant to Articles 9 and 10 of the Convention on the Rights of the Child, States Parties must ensure that a child is not separated from their parents against their will. In addition, the prohibition of imposing the death penalty on individuals who were under the age of eighteen at the time of committing crimes related to armed conflict is stipulated in Article 68 of the Fourth Geneva Convention, paragraph four of Article 77 of Additional Protocol I, and paragraph four of Article 66 of Additional Protocol II.
• Protection of Captured Children: According to paragraph three of Article 77 of Additional Protocol I, if in exceptional circumstances and contrary to the provisions of paragraph two, children under the age of fifteen directly participate in hostilities and fall into the hands of the opposing party, they shall continue to benefit from the special protection afforded by this article, regardless of whether they are considered prisoners of war.
• Protection of Refugee Children: Under Article 22 of the Convention on the Rights of the Child, States Parties are required to take appropriate measures to ensure that a child recognized as a refugee under domestic or international law enjoys the rights applicable to them. These rights include humanitarian assistance and measures to secure and restore the rights of the child.

Child Soldiers in Armed Conflicts

The four Geneva Conventions do not contain explicit and comprehensive provisions regarding the recruitment and use of children in armed conflicts. This deficiency is partially addressed in Additional Protocol I, which applies to international armed conflicts. Article 77 of this Protocol requires parties to the conflict to take all feasible measures to ensure that children under the age of fifteen do not take a direct part in hostilities and, in particular, to refrain from recruiting them into armed forces.

This provision, however, has several shortcomings:

• First, it refers to feasible measures, which weakens its mandatory nature.
• Second, using the term ‘recruitment’ effectively allows the voluntary enlistment of children, which may occur due to propaganda, poverty, or other factors, and only prohibits the compulsory recruitment of children under fifteen.
• Third, it prohibits only direct participation in hostilities.

These shortcomings are largely remedied in Additional Protocol II, which applies to non-international armed conflicts. Pursuant to paragraph (c) of Article 4 of this Protocol, children under the age of fifteen shall neither be recruited into armed forces or groups nor allowed to take part in hostilities. This provision prohibits both compulsory and voluntary recruitment of children.

The Convention on the Rights of the Child, adopted in 1989, further advances this prohibition. Article 1 of the Convention defines a child as any human being under the age of eighteen, unless, under the law applicable to the child, majority is attained earlier. This definition contains two significant limitations. First, by allowing an exception under domestic law, the prohibition is rendered ineffective in many countries, including several Islamic states, where the age of majority is set at 18. Second, the concept of majority lacks a precise and uniform definition in international law.

Article 38 of the Convention on the Rights of the Child reiterates the prohibition of direct participation of children under fifteen in armed conflicts. However, the Committee on the Rights of the Child has stated that the impact of war on children must be interpreted in light of all provisions of the Convention, including Article 1. On this basis, the recruitment or enlistment of children under eighteen years of age constitutes a violation of international humanitarian law and amounts to a war crime.

Frequently Asked Questions About the Legal Status of Children in Armed Conflicts