GENERAL ISSUES

1. Definition of Child Soldiers According to the Cape Town Principles of 1997, a child soldier is "any person under 18 years of age who is part of any regular or irregular armed force in any capacity, which includes, among others, cooks, porters, messengers, or anyone accompanying such groups, except for family members." This definition includes not only children who carry or have carried weapons but also those who provide any other services to armed groups, as well as girls recruited for sexual purposes and forced marriages.

2. Scope of the Problem According to the 2017-18 Annual Report of Child Soldiers International, more than 240 million children live in countries affected by armed conflicts. Many of them face violence, displacement, hunger, and exploitation by armed forces and groups. Currently, it is estimated that there are 300,000 children involved in armed conflicts worldwide. The Special Representative of the United Nations for Children and Armed Conflict reported over 10,000 cases of children killed or maimed in armed conflicts in 2019 alone. Some are kidnapped or forced to associate with these armed groups, while others join due to poverty, abuse, societal pressure, or the desire for revenge against violence inflicted on them or their loved ones. Many of these children actively participate in hostilities, often being used as messengers or for suicide attacks, and especially in the case of girls, as cooks, sexual slaves, etc.
However, this figure is only an estimate, an approximation of the reality of minors involved in war. There are many difficulties in obtaining more precise information, such as lack of access to areas controlled by armed forces or groups, or the high risks involved in fieldwork in war-torn countries. Additionally, there are serious obstacles to determining the actual age of the children in the absence of certificates or documents proving it, or the children's refusal to identify themselves as such to avoid stigmatization.

Girls are the most vulnerable group in this context and their situation requires special attention, especially considering the changes in the nature or "new face" of armed conflicts. These are characterized by being multi-causal, prolonged over time, with attacks on the civilian population, creating widespread chaos, affecting all levels of society, aiming for social control, and primarily affecting minorities.

Another factor contributing to the severity of the phenomenon is the use of weapons such as anti-personnel mines—whose main victims are children—and small arms, which can be easily used by children. This has led to a decrease in the age of children participating in hostilities in all countries suffering from armed conflicts: "it is estimated that around 639 million small arms are in circulation worldwide, which means one for every 10 people. These weapons are responsible for 90% of the fatalities in current armed conflicts, among which 90% are civilians."

It is also worth noting the increase in internal armed conflicts, particularly those known as fragmented armed conflicts (where the use of children as soldiers is greater and their protection lower), and the utility that children can have for the parties in conflict, both for the multiple roles they perform and for their easy manipulation.

The use of children in armed conflicts has serious physical and psychological consequences directly related to their direct or indirect participation in hostilities, but also with the typical aftermath of training techniques and other complementary measures such as the provision of alcohol and drugs, threats, abuse, and sexual violence to which they are often subjected. It is necessary to emphasize the harmful effects of children's participation in armed conflicts, both for them and for others, and the difficulty of reintegrating them into society after their involvement (see the section on reintegration).

In the case of girls, the situation is complicated for several reasons. Firstly, due to the diversity and fluidity of the roles they are assigned and the legal controversies in determining whether there is active participation in hostilities, and the experiences related to crimes of sexual and gender-based violence (rape, sexual slavery, forced marriage, forced pregnancy, etc.) they may be subjected to mainly by commanders. In fact, they are considered the most valuable associated members of the group and the last ones they want to get rid of.

An additional problem is the girls' own refusal to acknowledge their experiences during their association with armed groups due to the repercussions it may have on their reintegration.      


RECRUITMENT, ENLISTMENT, DIRECT AND INDIRECT PARTICIPATION OF CHILD SOLDIERS

One of the major issues in determining the legality of the participation of children, especially from a certain age, is differentiating between recruitment and enlistment, distinguishing between direct and indirect participation, and defining the notion of active participation.
In this regard, a more comprehensive legal protection for these minors is necessary, considering the principle of the best interest of the child and the complementary relationship between International Humanitarian Law and International Human Rights Law.

1. Differentiation Between Recruitment and Enlistment, and Direct and Indirect Participation

To distinguish the recruitment of child soldiers from their enlistment, it is essential to determine whether their incorporation into armed forces or groups is mandatory or voluntary. On the other hand, the distinction between direct and indirect participation in hostilities is determined by whether or not they engage in direct hostile actions against the enemy. However, these definitions are not sufficiently precise (Rodríguez-Villasante and Prieto, 2011).
A clear example of the difficulty in classification can be found in support activities, reconnaissance actions, and espionage. NGOs and other humanitarian organizations that have participated in international forums discussing these issues have proposed eliminating this differentiation and establishing a minimum age (18 years) for any form of participation by children in armed conflicts (UNICEF, 2004).

2. International Community Protection for Minors in Armed Conflicts

The following are contributions from the International Community regarding these terms and the protection they entail for children.

The Geneva Conventions of 1949

They contain no specific provisions on this issue. The only provision is that, if captured and considered prisoners of war, they will receive privileged treatment due to their age (Art. 16 of the III GC). If employed, the work assigned to them must be suitable for their age to maintain their physical and moral health (Art. 49 III GC).

Additional Protocol I (AP I) of June 8, 1977, applicable to international armed conflicts

Article 77 of this text states that the minimum age for recruitment is 15 years and that when recruiting those over 15 but under 18, priority should be given to the oldest. Additionally, it distinguishes between direct participation, with a minimum age of 15 years, and indirect participation, for which no minimum age is established. However, it does not refer to enlistment, so this silence may be interpreted by some as permitting the enlistment of children under 15 years in armies.

Additional Protocol II (AP II) of June 8, 1977, applicable to internal conflicts

In AP II, the minimum age for recruitment is 15 years. Unlike AP I, the prohibition of participation in hostilities (direct or indirect) for those under 15 years is absolute. Since a child under 15 cannot participate in hostilities in any form, it is understood that their enlistment in the army below this age is also prohibited. However, similar to international armed conflicts, participation between the ages of 15 and 18 may be considered lawful.

The Convention on the Rights of the Child of November 20, 1989

Article 38 of this convention reiterates almost verbatim the provisions of AP I and therefore represents a step back from the higher level of protection established in AP II.

ILO Convention 182 on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour of June 17, 1999

Although this convention does not specifically refer to the enlistment or participation of child soldiers, it prohibits the “forced or compulsory recruitment of children for use in armed conflicts.” Its content suggests that both direct and indirect participation of children in armed conflicts is considered one of the "worst forms of child labour."

Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict of May 25, 2000

This legal text provides the highest level of protection in this field, prohibiting the direct participation of those under 18 years, as well as the recruitment of minors under 18 into the armed forces. However, while the prohibition on recruitment is absolute, the prohibition on direct participation in hostilities is somewhat qualified, as it states that "all feasible measures shall be taken," leaving some leeway for states. Furthermore, voluntary recruitment and indirect participation in hostilities between 16 and 18 years are still permitted, although voluntary recruitment is subject to a specific guarantee regime.

Nonetheless, the Optional Protocol categorically prohibits armed groups from recruiting minors under 18 years or using them in hostilities. This dichotomy of solutions for armed forces and armed groups raises doubts about its compatibility with the principles of universality of human rights and non-discrimination (Ojinaga, 2002).

African Charter on the Rights and Welfare of the Child (ACRWC) of July 11, 1990

The African Charter on the Rights and Welfare of the Child is the only regional text that directly and expressly addresses this issue, prohibiting the recruitment and direct and indirect participation of children (defined as those under 18) in armed conflicts.


RESOLUTION 1612 OF THE UNITED NATIONS SECURITY COUNCIL, ON ESPECIALLY SERIOUS CRIMES AGAINST CHILDREN

Finally, in the concluding lines, the United Nations Council committed to continue actively addressing this concerning issue and requested the Secretary-General to present reports that include the actions of states regarding the implementation of this Resolution, to monitor the matter.

In Resolution 1261, the Security Council expressed its deep concern about the harmful and widespread impacts of armed conflicts on children, and the long-term consequences for the peace, security, and lasting development of these minors. Specifically, the United Nations denounced the following six serious violations committed against children in armed conflict situations:

- the killing or maiming of children,
- the recruitment or use of child soldiers,
- sexual violence against children,
- attacks on schools or hospitals,
- the denial of access for children to humanitarian aid,
- the abduction of children.

The Security Council recognized the harmful effects of the proliferation of arms (particularly small arms on the safety of the most vulnerable populations, including children) and strongly condemned the abduction and recruitment of children in armed conflicts. Furthermore, it urged "the parties to armed conflicts to ensure that the protection, welfare, and rights of children are taken into account in peace negotiations and throughout the peace-building process after conflicts" and called on "interested parties to strictly fulfill their obligations under international law, particularly those stemming from the Geneva Conventions of August 12, 1949, and their Additional Protocols of 1977, and the United Nations Convention on the Rights of the Child of 1989."

Through this Resolution, the Security Council expressed particular concern about the role of girls in armed conflicts and urged all parties to take special measures to protect, in particular, girls from "rape and other forms of sexual abuse and gender-based violence." Likewise, it stated that states must keep in mind the special needs of these girls during and after conflicts, especially in the provision of humanitarian assistance. Similarly, in the concluding lines, the United Nations Council committed to continue actively addressing this concerning issue and requested the Secretary-General to present reports that include the actions of states regarding the implementation of this Resolution, to monitor the matter.

As part of this Resolution, the Security Council established a monitoring and reporting mechanism on serious violations against children in armed conflicts. This mechanism ultimately aims to systematically gather accurate, timely, and objective information on serious violations committed against children during armed conflicts, to promote accountability and compliance with international child protection standards by the parties involved in the armed conflict.

This monitoring and reporting mechanism is established for the parties to the armed conflict listed in the annexes of the Secretary-General's annual report on children and armed conflict. While previously only parties recruiting and using children in conflicts were included in the annexes, in 2009 and 2011, the Security Council decided to also list those forces and armed groups killing, maiming, or committing acts of sexual violence against children and those attacking schools and hospitals. The mechanism ceases to apply to a country's situation if it is removed from the list and the violations have stopped.

1 The killing or maiming of children: The principle of proportionality requires combatants to distinguish between combatants and civilians and prohibits harm to civilians beyond the scope of military advantage. However, due to the changing nature of conflicts, this principle is eroding among forces and armed groups, and often children die and are injured during military operations. Many are also victims of landmines and unexploded munitions. Another concerning trend is the increase in suicide attacks and the use of children to carry them out.

2 The recruitment or use of child soldiers: Either forcibly or voluntarily due to economic or social pressure, tens of thousands of girls and boys are recruited and used in armed conflicts worldwide. As mentioned throughout the dossier, their main roles include being combatants, cooks, porters, messengers, and spies, or being subjected to sexual exploitation. According to UNICEF, the number of children recruited by armed forces is growing: in 2018, it quadrupled in the Central African Republic (299) and doubled in the Democratic Republic of Congo (1,049) compared to 2016. The number of verified cases of recruitment and use of children in Somalia (2,127), South Sudan (1,221), the Syrian Arab Republic (961), and Yemen (842) remained alarmingly high.

3 Sexual violence against children: Millions of children live under the daily threat of sexual violence; in armed conflicts, they are victims of rape, slavery, or sexual trafficking, and girls are often forced into marriage, pregnancy, or sterilization. Sexual violence is also used to intentionally humiliate a population or force them to leave their homes. The stigma surrounding sexual violence often leads to it being unreported.

4 Attacks on schools or hospitals: These attacks not only endanger the lives and physical integrity of children but also disrupt their education and access to medical care, affecting their lifelong education, economic opportunities, and health. In this field, there is a Global Coalition to Protect Education from Attack that has published the Safe Schools Declaration, a framework for action that seeks global consensus on the matter.

5 The denial of access for children to humanitarian aid: In many cases, armed forces and groups block urgently needed humanitarian assistance, including for children, by prohibiting warring parties' access to humanitarian agents.
6 The abduction of children: In wars and armed conflicts, children are often captured or abducted against their will, either temporarily or permanently. Many are victims of exploitation or abuse, or used as hostages or as a deliberate act of violence or reprisal against the civilian population. In 2017, there was a 70% increase in child abductions. In Somalia alone, the armed group Al-Shabaab abducted more than 1,600 children, mainly to increase its ranks using both boys and girls in combat and support roles.

The latest report, published on December 23, 2020, by the Special Representative of the Secretary-General for Children and Armed Conflict, analyzes the following countries: Afghanistan, the Central African Republic, Mali, Myanmar, Nigeria, the Philippines, Somalia, South Sudan, Sudan, the Syrian Arab Republic, Yemen, Colombia, the Democratic Republic of Congo, Iraq, Israel, the State of Palestine, Lebanon, and Libya.
In all these countries, the recruitment of minors is mentioned except for Israel, Palestine, Nigeria, and the Philippines (the latter two are noted for their progress). The recruitment of girls is specifically mentioned in Syria.
Regarding sexual violence, all countries are noted except Mali, Israel, Palestine, Lebanon, and Libya.