AUILR Symposium Panel: Children in Armed Conflict and International Law

By Kimberly Reynolds

October 21, 2016

During the 2016 International Law Review Symposium, five esteemed practitioners discussed the complexities that inundate the use of children in armed conflict.

The targeted use of children in armed conflict has become a commonplace and redundant narrative for non-state armed groups.  The targeting and use have expanded beyond the “traditional” scope for use of children in combat situations. Thus, a new definition of children in armed conflict has been authored to broaden the protection afforded by the international community.  Today, this definition extends to attacks on schools by extremist groups, where recently, more than 1,000 children were abducted by the Islamic State (IS) in Iraq and Syria.  Further, it has been compounded by instances of sexual violence reported by foreign keepers.

Jo Baker of Human Rights Watch, discussed the complexity that this issue fabricates for States and the international community. Recently, she has participated alongside the United Nations (UN) Security Council with investigations in Burma, Nepal, Sri Lanka, and Uganda. She discussed the all too frequent trend of IS recruiting school girls across the globe, from Denver, Colorado to London, England.  The story is the same: school girls ages 15-16 are solicited by members of IS, primarily by way of money, prestige, indoctrination, and force.  To this day, it is unknown how many children have joined IS.  It has been reported that the Islamic State is using child soldiers as reinforcements in Al-Hasakah.  Despite that the protection of child soldiers is an almost universally accepted human right, children remain tactic targets for several terrorist and military groups.

Rachel Stone, of the Stimson Center, discussed the linkage between weapons and child soldiers. Not only are child soldiers tragic victims of war, they are also recognized as lethal weapons by armed groups.  Because they use smaller , it is easier for children to transport, use and acquire these weapons.  The link between availability of weapons and child soldiers has been recognized for years, and many countries have taken steps to address this connection.  Despite the efforts taken by many countries, the link between weapon supplies from one country, to the proliferation of child soldiers in another, still exist: China to Sudan, Germany and France to the DRC, and US military assistance through arms and training.

The US has attempted to address this problem through the Child Soldier Prevention Act of 2008.  This Act requires annual tracking of the use of child soldiers and the compilation of a list countries that use child soldiers.  The countries on this list are prevented from receiving any military aid from the US.  This prohibition extends to international educational training (grants from foreign governments to come to the US and other counties to get military training), foreign military financing (tax payer money to buy weapons), sales completed by US weapons manufacturers, and excess defense spending.

However, the Act does not apply under Section 1206 of the National Defense Authorization Act.  This allows the Secretary of Defense to train and equip groups in foreign defense against terrorists and terrorist groups.  It also does not apply to the Peace Keeping Operations Fund, which is not supported through the UN.  Lastly, governments can receive otherwise prohibited weapons if they are using those weapons for professional military purposes and are taking reasonable steps, such as action plans, to stop the use of children in armed conflict.

The Child Soldier Prevention Act is not meant to be punitive, but rather to incentivize countries to abandon the use of child soldiers in order to receive military assistance from the US.  However, under the Act, the President can waive the prohibition on the premise of “national interest.”  The Obama administration has used this waiver 22 out of 30 times.  In 2015 alone, the President employed national interest waivers for four of the eight governments that are on the watch list: the Democratic Republic of Congo, Nigeria, South Sudan, and Somalia.  Currently, there is $130 million in assistance flowing to Somalia and Sudan.  Yemen did not receive a waiver, but the caveat was that assistance would continue if conditions changed.  In the end, $1 billion has been authorized to countries that use child soldiers.

Another case is that of Afghanistan.  There are two main forces: national and local police.  The local police are set up, funded, and supported almost entirely by the US government.  So one must ask the question, why is the US funding of local Afghani police forces not taken into consideration by the US government?  The answer to this remains unclear.  The US government does not recognize Afghanistan’s local police as an armed force under the definition provided in the Optional Protocol, so it does not fit into their definition of the Act. Thus, it is important that the definition recognized in the Optional Protocol include local forces in order to close this loophole.

Child Soldiers International, an organization that works to prevent the recruitment of children in armed conflict, lists parties who use children in armed conflict in annual accounts.  Charu Lata Hogg, the group’s Policy and Advocacy Director, points out that of the 57 parties listed, 49 non-state parties are armed groups.  The challenge of non-state armed groups is that they are complex, difficult to access, have different ideological motives from that of States, and they are not as engaged with the international community.  These factors mean that the international community has limited leverage and access. Child Soldiers International reports on what is happening within the armed groups, and if any progress has been made with best practices.  Ms. Lata Hogg believes the only way to engage these groups are to bring all the mechanisms and beams of commitment together, because they do not work on their own.

Last year, Child Soldiers International worked on Operation Protective Edge Israel.  They campaigned systematically with the UN Secretary’s Office, documented all violations that Israeli forces had committed, and compiled them into the UN system.  However, support from the Secretary General was turned down, likely due to politics.

Notwithstanding the challenges facing the international community in enforcing this right, there are four avenues that have aided in the reduction of Child Soldiers: (1) Engagement with the UN Security Council; (2) the use of the International Criminal Court (ICC); (3) increased bilateral engagement; and (4) ending wars.

First, as Sharon Riggle, the Chief of Office for the United Nations Office of the Special Representatives of the Secretary General for Children and Armed Conflict (UN SRSG) states, the UN Security Council has been much more engaged.  This engagement followed the realization that children were slipping through the cracks and were not being protected by the international community.  Following Resolution 1261, child soldiers were named as a peace and security issue, and the Security Council has made it a greater priority.  As a result, the UN has been directly negotiating action plans with countries to end the use of Child Soldiers.

Action plans function by placing countries on a watch list.  A country is placed on a watch list when they trigger any of the following six factors: (1) recruitment and use of children for armed conflict, (2) killing and maiming, (3) rape and other sexual violence, (4) abductions, (5) attacks on schools and other centralized and regularly occurring violence, and (6) denial of humanitarian access.  After they are reported by the UN Human Rights Assembly, the UN Security Council engages directly with governments and special groups to create action plans.  This can involve closing gaps in legislation which permit use of child soldiers.  This is a way to stop and prevent the use of child soldiers, rather than just pointing a finger. There is often political interest of the signatory party which is sustained by high level UN and third party engagement. This also gives the Council direct access to senior leadership.  Today, the UN has successfully implemented nine action plans and those countries no longer use child soldiers.

Now, unlike twenty years ago, there are international criminal prosecutions for those who are caught using child soldiers.  The  International Criminal Court (ICC) convicted their first war criminal, Thomas Lubanga of Sierra Leone, on the use of child soldiers. As these convictions become better known, commanders have expressed fear of being indicted.  This fear illustrates how the success of the ICC convictions could be a powerful deterrent.

Third, there has been increased bilateral engagement.  One example is financial assistance, which is twofold.  Following the end of the war in Sierra Leone, the United Kingdom provided the nation with 10 million pounds for assistance contingent on the suspension of use of child soldiers. However, following funding, civil defense forces alerted the UK of the continued use of child soldiers.  Following this notification, the UK made sure the use of child soldiers was stopped before they continued funding.

Lastly, ending the wars themselves would create the largest drop in the use of Child Soldiers.

Although these avenues have provided some relief and progress, challenges still remain. First, for both governments and armed groups, the use of child soldiers still outweighs the risks.  Second, efforts to address extremism by armed conflicts actually creates detention of children.  Thus, some children conclude that they might as well join in order to get protection.  For children who do come out of it, there are reintegration challenges as they often leave ostracized and without skills as occurred in Iraq, Sudan, and Syria.   Third, many extremist groups have little interest in a relationship with the UN and possess little concern for a dialogue or international opinion.  Thus, the international community has an abundance of tools, yet they are not being utilized as well as they should be.

As discussed by all four panelists, the issues surrounding the use of children in armed conflicts are complex and intertwined with international politics and business, by way of the international arms trade.  International legal tools such as laws from various States, international mandates, international courts, and recognition from the international community have all aided in slowing and shrinking the use of children in armed conflict.  However, more transparency, cooperation, openness, and coordination between groups is needed to halt the oppressive use of children as tactical aids in armed conflicts altogether.

(Kimberly Reynolds is the Symposium Editor for Volume 32 of the American University International Law Review.)

 

 

 

 

 

 

 

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