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Introduction

Current rules on international humanitarian law are inadequate to deal with conditions that result in children being enlisted for the purpose of participating in armed conflicts. The phrase “use of child” in this paper translates to recruitment, utilization, as well as the participation of children in armed conflict. The aim of the international humanitarian law was to safeguard against unwarranted suffering by regulating the conduct of hostilities as well as the treatment of individuals who are at the mercy of the enemy. There have been numerous international conventions aimed at passing resolutions for the purpose of strengthening the existing laws.  Many of these conventions aim at protecting children who live in hostile environments (Henckaerts, et al, 2005).

Laws that are aimed at child protection are categorized into four: the human rights law, the labor law, the humanitarian law, as well as the international criminal law. Among the safeguards that have been put in place to strengthen these measures are the institution of the Convention on the Rights of the Child (CRC), the Optional Protocol, and the International Labor Organization's Convention No. 182 (Morini, 2010). The International Labor Organization's Convention No. 182 is focused on the elimination of the most depleting forms of child labor. Other measures include the institution of the African Charter on the Rights and Welfare of the Child and the four Geneva Conventions of 1949 as well as their two Additional Protocols of 1977. The Rome Statute that led to the establishment of the International Criminal Court capped these measures as it is, currently, the institution that is tasked with remedying all the instances of the exploitation of children during military engagements (Morini, 2010).

Even with the prohibition of the use of child soldiers in armed conflict under the international law, state as well as non-state actors are still recruiting, abducting, and directly using children in a broadening range of hostilities (Drumbl, 2012). This is especially so due to the limitations in the international humanitarian law. The law appears to be ineffective in protecting the most vulnerable children of the world and, as such, they continue to be enlisted as child soldiers. Worse still, state organs have been unreliable in making-up for the shortcomings that are associated with the international humanitarian law. This renders the child protection strategies to be inadequate. There are inconsistencies while enhancing the international humanitarian laws pertaining to child protection. Whatever is indicated on paper is not reflected when it come to the implementation of the law on the ground and, as such, children from all over the world continue to suffer. In fact, the present resolutions that have been passed by the United Nations Security Council and the international concessions and domestic legislation are yet to show their effectiveness in addressing the issue of child soldiers in an effective manner (Drumbl, 2012). As such, the need for the international community to strive towards bridging the existing gap still exists. Once the gap has been bridged, the inconsistencies will have been eliminated and, in this regard, the effectiveness of the international humanitarian law will become clear.

The Present Situation of the Child Soldiers

In the last couple of decades, there has been stepping up of efforts in the development of international law, programs, policies, and legal devices with the aim of facilitating the protection of children. These measures have specifically been focused on reducing the instances when children are enlisted as combat fighters. However, the enlisting and deployment of child soldiers in armed conflict has persisted since the World War II. Research studies, documentations, and reports show that more than 300,000 child soldiers who are as young as eight are being used in armed conflicts at any given time. The use of child soldiers in military engagements has been taking place in over 30 countries. Estimates place the number of child soldiers in the world at the moment to be between 200,000 and 5,000,000 (Grover, 2012). Africa represents the greatest number with estimated 120,000 children being presently involved in active combat in such countries as the Democratic Republic of the Congo, Burundi, Angola, Uganda, Sierra Leone, and Sudan (International Committee of the Red Cross, 2005).

This is does not mean that the problem is a pure African issue or third world issue because child soldiers are also being enlisted in other conflict areas like Iraq and Afghanistan. Some of the child soldiers happen to originate from such developed countries as the United States of America, Germany, and Britain. Nevertheless, most of these children happen to be brainwashed into believing that their contribution in the combat zone is justifiable under, say, the Quran (Mulira, 2007). It is notable that the roles of the child soldiers are not limited to being on the front line in battle fields. While majority of the child soldiers are used in direct participation in combat undertakings, there are those who happen to be used as spies, scouts, saboteurs, couriers, or even guards. Others act as decoys while their counterparts engage in such supportive roles as portering, domestic tasks, forced labor in camps, as well as sexual slavery (The International Committee of the Red Cross, 2011).

The increase in the number of child soldiers can be attributed to a variety of factors that include, but not limited to: poverty, the spread of war and disease as well as the economic and education disparity amongst the youth. Others get themselves enlisted out of obedience and their ductile nature. Moreover, there are those children who opt for armed conflict as means to survive, to fight feelings of helplessness and desperation, seek vengeance for atrocities committed against themselves or their families, or simply to protect their families from atrocities. Children with the highest probability of being recruited are those in refugee camps and those that are separated from their families (Mulira, 2007).

The international humanitarian law that guards children from being enlisted as soldiers has numerous shortcomings, a factor which necessitates its review. The international humanitarian law has elements of duality which bring about the aspect of double standards in its application in the individual countries around the world. This is especially so since even the definition of a child varies. On one hand, Article 1 of the United Nations Convention on the Rights of the Child specifies a child as “any individual who is under the age of 18 years” while article 38 of the same convention gives the minimum age below which recruitment is prohibited as 15 years (Mulira, 2007). Furthermore, article 1 defines the minimum age of direct participation in hostilities as 18 years, and not 15 years. This is confusing in both words and applicability. In fact, it is contrary to the Rome Statute that established a permanent International Criminal Court (ICC). The statute, in article 8(2), defines the conscripting or the enlisting of anyone under the age of 15 years into the armed forces for the purpose of participation in hostilities as war crimes. All these differing definitions regarding the minimum age at which one is regarded as a child under the humanitarian law and by the international agencies is, indeed, problematic.

While the ICC sets a low age threshold in the recruitment or use of children (15 years), the international law dealing with child soldiers is favoring the “straight 18” principle. As such, conflicting messages are passed across, and many argue that the recruitment and deployment of children between the age of fifteen and eighteen totally permissible. According to those who favour this view, enlisting individuals who are between the ages of 15 and 18 years is not criminal. This is a drawback that has greatly been derailing efforts to protect children from being used as child soldiers (Byers, 2005).

Another shortcoming of the international humanitarian law pertaining to the protection of children is the ambiguity where the conflicts happen to be internal. In particular, conventions relating to the child soldiers are focused on providing protections for children during armed conflicts. As such, the Convention carries limited number of provisions, which demand of all parties to offer special protection to children whenever hostilities ensure. The parties should also assist in family reunification, meaning that they should offer help to those children who lose track of their families during conflicts (Mulira, 2007).

The Conventions have the weakness of failing to apply to conflicts that happen within the boundaries of a single state, such as between rebel forces and government. This is the case in several incidences of internal conflicts across the world. Therefore, there is a level of inadequacy when it comes to offering protection to victims of armed conflicts and, especially, the children. This is mainly due to the inadequacies in international humanitarian law. Article 38 of the UN convention on the protection of children requires that States take all feasible measures to prevent children from participating directly in any form of hostilities (Byers, 2005). Stressing on “direct participation” has greatly lowered the level of protection of children under such international humanitarian laws as Additional Protocol II and various Geneva Conventions.

Another weak point in the international humanitarian law is the blanket exemption of those under 18 from prosecution owing to their status as children. In this respect, the International Criminal Court lacks the jurisdiction to prosecute children who are under the age of 18 at the time of committing the crime. As such, the place of a child in the ICC process is limited to that of victim and/or witness. This is a legal stand that is well out of touch with the reality in the present situation of various armed conflicts around the world. The focus of the international laws, as they stand today, is on those who recruit and deploy children. This happens to be in total disregard of the fact that children themselves may also be great perpetrators of crimes during armed conflicts (Andersen & Lindsnaes, 2007).

As a matter of fact, child soldiers do commit atrocious crimes in modern armed conflict. It is, therefore, controversial not to prosecute them as everyone ought to be held accountable for the crimes that he/she commits during the war. It would, in fact, help the said children to reform and become productive members of the society. This is especially so since holding one accountable does not always imply the infliction of pain. The international law ought to provide for the restorative justice in cases involving children. The current situation in the international law lays emphasis on the criminal liability in a narrowed perspective as there are no clear distinctions between the perpetrators who require special attention and those who are to be handled normally. Furthermore, it is not clear under the international law what is the minimum age that one can be held criminally responsible for his/her crimes (Cullen, 2007). For instance, the Convention on the Rights of the Child only highlights the requirement of state parties to establish “a minimum age below which individuals will be presumed as being incapable of infringing the penal law.” This lack of a minimum age is also evident in the Beijing Rules. These are some of the issues that deserve to be addressed.

Remedies to the Current International Humanitarian Law

In light of the aforementioned observations, it is incumbent upon the relevant international conventions to review the problematic areas in the international humanitarian law as it exists at present. The reviews should be aimed at responding to the challenges which result when dealing with the issue of enlisting child soldiers in armed conflicts (Mulira, 2007). It would be helpful to consider the following suggestions regarding the subject. The first aspect that the international humanitarian law conventions should address is the issue of age. The age of 18 years ought to be recognized as the age below which one cannot be enlisted for whatever military duties (whether voluntarily or by force).

Secondly, there is a need to come up with a set of legally binding provisions that relate to child soldiers as well as civilians in all instances of armed conflict (Alvermann, 2005). This will go a long way in doing away with the discrepancies that are witnessed with regard to the protection of child soldiers during the international armed conflicts as well as during internal conflicts. Furthermore, the international community should strive to explicate and reaffirm the customary international law in the particular area of armed conflict. This stems from the fact that any amendments to current international humanitarian law will need the ratification by almost all states to make them binding (Byers, 2005).

In addition, it would be of much benefit if a permanent international court is established and accorded the jurisdiction to deal with all alleged breaches of international humanitarian law whether in local or international conflicts. Various non-governmental organizations ought to be given the mandate to adjudicate on the categorization of a given armed conflict so as to avoid being biased in such sensitive matters (Arnold, 2008). There is a need to demand the states that have not ratified the Additional Protocols, especially those that touch on the protection children, to do so without delay. The United States and Somalia are some of the countries that are yet to ratify and should, therefore, be pressured to ratify these and other related conventions. All States ought to fully respect their obligations to the Fourth Amendment to Geneva Convention together with its Additional Protocols (Byers, 2005). There should be a universal jurisdiction that would be able to tackle some of the grave breaches of the international law.

There is a necessity to tackle the dilemmas and ambiguities that pertain to civilian issues as this is among the most effective way to curb the enlisting of children for military engagements. It will, in fact, enhance the awareness and facilitate the formulation of effective decisions on matters that touch on the welfare of the children.  All issues that relate to children issues should be transparent so that the international community can scrutinize them in an effective manner (Andersen & Lindsnaes (2007). Indeed, it is necessary for all relevant articles of humanitarian law that relate to the issues of children to be amended so as to keep children away from the conflict zones (Alvermann, 2005).

Conclusion

The conditions under which the International Humanitarian laws were designed have changed greatly and, therefore, their current statuses do not address the issues of child protection from being enlisted as soldiers. Therefore, it is high time that the international conventions reviewed the laws to bring them at par with the current situations as they are witnessed during armed conflicts. This would facilitate the protection of the victims of war, particularly child soldiers who are either forced or lured into joining the ranks of armed conflicts (Byers, 2005).

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