Children in Armed Conflict: International Law
Introduction
There exists a significant and growing body of international law that can be used to deal with recruitment of children into armed forces and the reintegration process that follows. The security sector has recognised that children must be protected and that states have obligations to fulfil in regards to children involved in armed conflict. As a result children are protected by a number of instruments under international rights law and international humanitarian law. This body of law developed directly from the four Geneva conventions of 1949 and two additional protocols adopted in 1977. These conventions provided a minimum standard of humanitarian rules for the treatment of persons who are either involved in armed conflict, or who are no longer taking part in hostilities. Children are recognised primarily as participants in armed conflict and as civilians entitled to special protection. The United Nations Committee on the Rights of the Child and the International Committee of the Red Cross Advisory Service encourage states to try and adopt international legal norms which promote special protection for children.
Sources of Law
Two bodies of Law exist for dealing with child soldiers, International Humanitarian Law (IHL) and International Human Rights Law (IHRL). Each contains a number of instruments that aim to deal with and define the phenomenon of child soldiers. The sources of law must be examined in the context of child soldiers so it can be examined and applied in practice. The Geneva Conventions of 1949 provide a foundation in IHL for addressing the issue of child soldiers. However it was the CRC and the combined application of IHL and IHRL that first provided a universal definition of the child soldier and attempted to project legal norms on governments. Any legal norm addressing child soldiers would have to address recruitment whether forced or voluntary and establish defined obligations for states.
Geneva Conventions
The Geneva Convention of 1949 contains a number of provisions aimed at protecting children within the civilian population during war time. The provisions identify four age groups that may be at risk, and created the distinction between under fifteens and under eighteens for the first time. Children benefit from protection based on their civilian status and equally as a vulnerable group in society deserving special protection. The evolution of the convention led to the 1974-77 Diplomatic Conferences on the Development of Humanitarian Law which developed two optional protocols concerning child combatants. Children who were involved in hostilities still retained the right to special protection under the Additional Protocols.
Children shall be the object if special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason. (Protocol Additional I to the Geneva Conventions)
In particular the growing number of children involved in intra-state and armed conflicts around the world was acknowledged. However the Convention still set the minimum age for child participation in conflict at 15. An attempt to change this to 18 was rejected by States at the time due to the nature of national wars of liberation that were occurring in this period. Cohn and Goodwin Gill (1993: 42) are of the opinion that 'the text reflects the wish of governments to avoid entering into absolute obligations with regard to the voluntary participation of children in hostilities’. Such obligations were of great importance to many western states as they started the recruitment of their armed forces at the age limit of 15 set by the Geneva Conventions. However the Additional Optional Protocols (I and II) that came out of the conferences were successful in recognising that the recruitment of children under the age of 15 was not acceptable in internal armed conflict. This was the first time that the issue of child combatants in intra-state conflicts was considered. Post-colonial and intra-state conflicts had superseded the traditional nation state war post 1945. The limitations of the Geneva optional protocols created a niche for a new legal instrument that afforded extra rights to children under IHRL and IHL.
CRC
The Convention on the Rights of the Child (CRC) was constructed in 1989 to be the first legally binding international instrument to include civil, social, cultural, economic and political rights (www.unicef.org/crc). These basic human rights were expressed in 54 articles with two optional protocols that aimed to address the issue of children’s rights in various ways. Article 38 of the CRC was included to deal with the issue of child soldiers, the United Nations considered this essential to the makeup of the convention. The CRC is vital to the international body of law as it is party to the signatures of 192 of the 194 existing states with only the United States and Somalia dissenting from ratifying it. The United States main objection was due to its acceptance of volunteers from the age of 16, a concern held equally by the United Kingdom, France, Australia and New Zealand. As referred to earlier the UK was found to have sent 16 year old recruits to Iraq in 2003 mainly due to manpower shortages. Somalia was unable to ratify the CRC due to a lack of stable government.
Almost universal prescription allows the CRC to establish minimum standards for the recruitment and participation of children involved in war. Article 38 outlines 4 provisions applicable to children involved in armed conflict:
1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.
2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.
3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.
4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict. (Article 38. The Convention on The Rights of a Child)
This sets a basic minimum target for the deployment or use of children in hostile situations. With the majority of states signing the agreement, it must now be accepted that these norms can and should be enforced on a global scale. The CRC states clearly that anyone under the age of 18 shall be considered a child, while recruitment is discouraged between the ages of 15-18. The protocols of the Geneva Convention are re-introduced and reinforced in Paragraph 2 establishing a basic standard for governments worldwide.
Analysis of effectiveness of CRC
The issue arises as to how realistic these international norms can be in light of the extent of the issue today. Brett and McCallin (1998: 9) have estimated that roughly 300,000 child soldiers under the age of 15 are taking part in conflict around the world. Such figures are directly at odds with the international norms the CRC attempts to establish and thus questions arise as to whether it is effective international law. De Berry states that ‘at its core, this gulf is created by the fact that the contexts in which young people under the age of 15 become fighters and live as soldiers is one not penetrated by the ideas of the CRC’ (2001: 93) The children in these war torn often intra-state conflicts are subject to certain pressures that make their personal survival depend upon affiliation with an armed group. The CRC projects an idealism that is not ‘feasible’ for states to implement without intervention on human security grounds. However to dismiss such a document would push the issue even more to the back of policy makers minds and thus it serves as an idealistic narration of the issues that need to be practically addressed. If the CRC is going to achieve this goal and become a working charter of children’s rights there just be an ‘account of the contexts and realities in which children come to fight’ (2001: 93).
The current trend in international politics is the expansion of intra-state conflict with the traditional inter state struggle on decline around the globe. Such an environment is a breeding ground for the recruitment and exploitation of children. These conflicts are often fought ‘not so much with expensive and grandiose technology but with more easily available small arms’ (Allen. 1991) Children can operate such weapons with efficiency and deadly consequences and make useful and even effective combatants for small non-governmental forces. Children are forcibly conscripted or abducted into armed groups as civilian communities become battlegrounds for the strategy of securing political control (De Waal 1997: 312-13). As a result the phenomenon of child soldiers is directly linked to a crisis of the state, civil war and political instability (De Berry. 2001: 93). Exclusion from society as a whole makes the provisions of the CRC redundant in practice. The nation state is unable to enforce these norms on armed groups acting within and across national borders. The prevalence of such conflicts in Africa causes the vulnerable children to seek opportunity and protection by becoming members of armed groups (Honwana 1999: 5). The CRC ultimately has very little enforcement power and is a weak mechanism for protecting child soldiers. Cohn and Goodwin Gill (1993: 42) are of the opinion that ‘the text reflects the wish of governments to avoid entering into absolute obligations with regard to the voluntary participation of children in hostilities’. The charter does succeed in defining the core issues surrounding children in armed conflict and creating a framework for which a policy of intervention based on human security principals could be justified.
Agency
An interesting dimension to this argument is whether the child can be held responsible for his actions at some point in the future. Honwana (2002: 4) poses the following question, ‘should we consider them passive agents, empty vessels into which into which the capacity for violence has been poured?’ It seems clear that many of the children were forced into their role as armed personnel in violent groups. However with no hope and very little prospects in their future some children even volunteer for active military duty in government and rebel forces. The ability to carry a gun allows them to exert some power and control over their life, securing the necessities for survival, food, shelter and safety. The process of initiation desensitises them to violence which means the atrocities they partake in are easily carried out in a robotic method. Is it possible that in some of these acts the children acted under their own agency? Either ‘out of vengeance, greed, immaturity, jealousy, and the like, or in the expectation of being rewarded or positively acknowledged by commanders. Some might have also found some thrill from and enthusiastically participated in the process’ (Honwana 2002: 4). The children involved in such atrocities can certainly be said to have exercised a tactical or short term agency. Indeed they may be aware of their actions in the short term due to the need for survival, without forethought of long term or strategic agency. However in a war torn country it is questionable as to how the term’ voluntary’ can be applied to a child that looks to join an armed group. Their only other choice may be starvation and death. The child is unable to see the long term consequences of the decisions they exercise, in later life they will more than likely suffer overpowering feelings of remorse and guilt. Cohn and Goodwin-Gill (1994: 174) conclude in their study that abuses perpetrated by child soldiers may require rehabilitative responses, rather than retributive methods. This is a positive way to deal with the issue, traumatised by their actions the child needs to be brought back into the world as an adult. If a child is to be the future of their country they need reconciliation with their grievances and rehabilitation from the atrocities they witnessed or carried out. States with humanitarian law aspirations hoped that the CRC would further advance the cause of IHRL but were left disappointed with the end result. However the document is considered the pillar of the fight against the recruitment of child soldiers and the ‘most important legal instrument’ in protecting children’s rights (Doek. 2003: 235).
OP-CRC
The Optional Protocol to the CRC on the Involvement of Children in Armed Conflict (OP-CRC) adopted in May 2000 and entering into force in February 2002 sets the minimum age of recruitment and participation in armed conflict to 18. Article 1 ‘States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities’ (Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed conflict). This is in direct response to the age discrepancy contained in the CRC. Furthermore the protocol requires that states make it a criminal offence within their jurisdiction for armed groups in recruiting children. This is an attempt by the United Nations to tackle the concept of internal conflict which it has been sluggish in responding to on a number of fronts since the end of the cold war. Governments are restricted from conscripting under 18’s into military service but may avail of voluntary recruitment of persons between the ages of 16-18. This is subject to informed consent of parents or guardians and that the recruitment is genuinely voluntary. The minor must also be fully aware of the consequences of military service and not be deployed to a combat zone before the age of 18 (UNESCO 2006). The same criticism of applicability are levelled at the OP-CRC, the inability to enforce its provisions in intra states conflicts is questionable.
Other Legal Instruments
The 1990 African Charter on the Rights and Welfare of the Child strictly defines a child as attaining majority at 18 and restricts the use of minors in armed conflict. The Charter also provides for the criminalization of armed groups who recruit and use children as soldiers within states. The charter is an important regional legal instrument that enforces respect for IHL and IHRL principals. It is in fact the only regional instrument to directly address the issue and suggests all ‘necessary measures’ when dealing with armed groups. The intra state aspect of the Charter highlights the dynamic nature of the development of law since the Geneva conventions in 1949. The Statute of the International Criminal Court (ICC) establishes that the use of child soldiers under the age of 15 is a war crime and should be prosecuted as such (UNESCO 2006). The ICC has also been active in prosecuting Thomas Lubanga Dyilo for war crimes in the Democratic Republic of Congo. Arrest warrants have been issued for Joseph Kony in Uganda for his role in the Lord’s Resistance Army. Both cases show that legal instruments can have effect in providing a remedy and justice for wrongs committed against child soldiers. Although not a legal instrument UNESCO also advocates the Cape Town Principals as establishing an ‘important consensus among major international NGO’s and UNICEF, and offer guidance in developing policy and programmes that protect and support child soldiers’ (Lorey. 2001: 9-10)
Human security and International Law
Human Security would push for an intervention based on violation of IHRL to deal with the reintegration of children into society. New ideas such as the responsibility to protect also reinforce this developing security theory based upon the ideas of IHL and IHRL. The core of human security is viewed as the vulnerability of individuals and thus the theory aims to protect those who are at the most vulnerable. This has been the aim of IHRL since its conception, human security aims to act and not merely define the concept with a set of standards as outlined on the CRC. Surely then child soldiers and girls in particular who are at great risk qualify as strong contenders for human security action. Once these vulnerable groups are identified they can be protected via a strategic implementation of human security policy with the backing of international norms established by the CRC and IHL.
Conclusion
The changing nature of conflict has forced the international law makers to try and address the phenomenon of child soldiers. The move towards intra-state conflict is one that is likely to continue, international law must be more proactive in dealing with the issue on the ground. The current legal framework sets a very clear definition of what constitutes a child soldier and addresses the main issues. The enforcement mechanisms of the IHRL are weak and in practice the law has very little effect on rebel groups engaged in civil wars within States.
We are able to trace a steady development in the law from the Geneva conventions through to OP-CRC. The law is dynamic and is constantly undergoing a process of evolution to face potential challenges. At very least the IHL and IHRL instruments force the issue of child soldiers to the fore of international politics. Policy makers are well aware of the need for further implementation of such law. Human Security can provide the pro-active response to situations on the ground. IHRL norms can be established by the conventions and enforced by regional actors under guidance of the United Nations. Such an intervention policy would aim to protect the weaker members of war ravaged communities. Outsourcing the human security responsibility to regional actors will allow them to respond to the unique nature of local issues. Only in this way can IHRL expect to be effective on the ground and in reality. It is important that the underlying issues of the child soldiers phenomenon are resolved, human security theory applied in the region can help identify and protect vulnerable groups in society.
There exists a significant and growing body of international law that can be used to deal with recruitment of children into armed forces and the reintegration process that follows. The security sector has recognised that children must be protected and that states have obligations to fulfil in regards to children involved in armed conflict. As a result children are protected by a number of instruments under international rights law and international humanitarian law. This body of law developed directly from the four Geneva conventions of 1949 and two additional protocols adopted in 1977. These conventions provided a minimum standard of humanitarian rules for the treatment of persons who are either involved in armed conflict, or who are no longer taking part in hostilities. Children are recognised primarily as participants in armed conflict and as civilians entitled to special protection. The United Nations Committee on the Rights of the Child and the International Committee of the Red Cross Advisory Service encourage states to try and adopt international legal norms which promote special protection for children.
Sources of Law
Two bodies of Law exist for dealing with child soldiers, International Humanitarian Law (IHL) and International Human Rights Law (IHRL). Each contains a number of instruments that aim to deal with and define the phenomenon of child soldiers. The sources of law must be examined in the context of child soldiers so it can be examined and applied in practice. The Geneva Conventions of 1949 provide a foundation in IHL for addressing the issue of child soldiers. However it was the CRC and the combined application of IHL and IHRL that first provided a universal definition of the child soldier and attempted to project legal norms on governments. Any legal norm addressing child soldiers would have to address recruitment whether forced or voluntary and establish defined obligations for states.
Geneva Conventions
The Geneva Convention of 1949 contains a number of provisions aimed at protecting children within the civilian population during war time. The provisions identify four age groups that may be at risk, and created the distinction between under fifteens and under eighteens for the first time. Children benefit from protection based on their civilian status and equally as a vulnerable group in society deserving special protection. The evolution of the convention led to the 1974-77 Diplomatic Conferences on the Development of Humanitarian Law which developed two optional protocols concerning child combatants. Children who were involved in hostilities still retained the right to special protection under the Additional Protocols.
Children shall be the object if special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason. (Protocol Additional I to the Geneva Conventions)
In particular the growing number of children involved in intra-state and armed conflicts around the world was acknowledged. However the Convention still set the minimum age for child participation in conflict at 15. An attempt to change this to 18 was rejected by States at the time due to the nature of national wars of liberation that were occurring in this period. Cohn and Goodwin Gill (1993: 42) are of the opinion that 'the text reflects the wish of governments to avoid entering into absolute obligations with regard to the voluntary participation of children in hostilities’. Such obligations were of great importance to many western states as they started the recruitment of their armed forces at the age limit of 15 set by the Geneva Conventions. However the Additional Optional Protocols (I and II) that came out of the conferences were successful in recognising that the recruitment of children under the age of 15 was not acceptable in internal armed conflict. This was the first time that the issue of child combatants in intra-state conflicts was considered. Post-colonial and intra-state conflicts had superseded the traditional nation state war post 1945. The limitations of the Geneva optional protocols created a niche for a new legal instrument that afforded extra rights to children under IHRL and IHL.
CRC
The Convention on the Rights of the Child (CRC) was constructed in 1989 to be the first legally binding international instrument to include civil, social, cultural, economic and political rights (www.unicef.org/crc). These basic human rights were expressed in 54 articles with two optional protocols that aimed to address the issue of children’s rights in various ways. Article 38 of the CRC was included to deal with the issue of child soldiers, the United Nations considered this essential to the makeup of the convention. The CRC is vital to the international body of law as it is party to the signatures of 192 of the 194 existing states with only the United States and Somalia dissenting from ratifying it. The United States main objection was due to its acceptance of volunteers from the age of 16, a concern held equally by the United Kingdom, France, Australia and New Zealand. As referred to earlier the UK was found to have sent 16 year old recruits to Iraq in 2003 mainly due to manpower shortages. Somalia was unable to ratify the CRC due to a lack of stable government.
Almost universal prescription allows the CRC to establish minimum standards for the recruitment and participation of children involved in war. Article 38 outlines 4 provisions applicable to children involved in armed conflict:
1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.
2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.
3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.
4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict. (Article 38. The Convention on The Rights of a Child)
This sets a basic minimum target for the deployment or use of children in hostile situations. With the majority of states signing the agreement, it must now be accepted that these norms can and should be enforced on a global scale. The CRC states clearly that anyone under the age of 18 shall be considered a child, while recruitment is discouraged between the ages of 15-18. The protocols of the Geneva Convention are re-introduced and reinforced in Paragraph 2 establishing a basic standard for governments worldwide.
Analysis of effectiveness of CRC
The issue arises as to how realistic these international norms can be in light of the extent of the issue today. Brett and McCallin (1998: 9) have estimated that roughly 300,000 child soldiers under the age of 15 are taking part in conflict around the world. Such figures are directly at odds with the international norms the CRC attempts to establish and thus questions arise as to whether it is effective international law. De Berry states that ‘at its core, this gulf is created by the fact that the contexts in which young people under the age of 15 become fighters and live as soldiers is one not penetrated by the ideas of the CRC’ (2001: 93) The children in these war torn often intra-state conflicts are subject to certain pressures that make their personal survival depend upon affiliation with an armed group. The CRC projects an idealism that is not ‘feasible’ for states to implement without intervention on human security grounds. However to dismiss such a document would push the issue even more to the back of policy makers minds and thus it serves as an idealistic narration of the issues that need to be practically addressed. If the CRC is going to achieve this goal and become a working charter of children’s rights there just be an ‘account of the contexts and realities in which children come to fight’ (2001: 93).
The current trend in international politics is the expansion of intra-state conflict with the traditional inter state struggle on decline around the globe. Such an environment is a breeding ground for the recruitment and exploitation of children. These conflicts are often fought ‘not so much with expensive and grandiose technology but with more easily available small arms’ (Allen. 1991) Children can operate such weapons with efficiency and deadly consequences and make useful and even effective combatants for small non-governmental forces. Children are forcibly conscripted or abducted into armed groups as civilian communities become battlegrounds for the strategy of securing political control (De Waal 1997: 312-13). As a result the phenomenon of child soldiers is directly linked to a crisis of the state, civil war and political instability (De Berry. 2001: 93). Exclusion from society as a whole makes the provisions of the CRC redundant in practice. The nation state is unable to enforce these norms on armed groups acting within and across national borders. The prevalence of such conflicts in Africa causes the vulnerable children to seek opportunity and protection by becoming members of armed groups (Honwana 1999: 5). The CRC ultimately has very little enforcement power and is a weak mechanism for protecting child soldiers. Cohn and Goodwin Gill (1993: 42) are of the opinion that ‘the text reflects the wish of governments to avoid entering into absolute obligations with regard to the voluntary participation of children in hostilities’. The charter does succeed in defining the core issues surrounding children in armed conflict and creating a framework for which a policy of intervention based on human security principals could be justified.
Agency
An interesting dimension to this argument is whether the child can be held responsible for his actions at some point in the future. Honwana (2002: 4) poses the following question, ‘should we consider them passive agents, empty vessels into which into which the capacity for violence has been poured?’ It seems clear that many of the children were forced into their role as armed personnel in violent groups. However with no hope and very little prospects in their future some children even volunteer for active military duty in government and rebel forces. The ability to carry a gun allows them to exert some power and control over their life, securing the necessities for survival, food, shelter and safety. The process of initiation desensitises them to violence which means the atrocities they partake in are easily carried out in a robotic method. Is it possible that in some of these acts the children acted under their own agency? Either ‘out of vengeance, greed, immaturity, jealousy, and the like, or in the expectation of being rewarded or positively acknowledged by commanders. Some might have also found some thrill from and enthusiastically participated in the process’ (Honwana 2002: 4). The children involved in such atrocities can certainly be said to have exercised a tactical or short term agency. Indeed they may be aware of their actions in the short term due to the need for survival, without forethought of long term or strategic agency. However in a war torn country it is questionable as to how the term’ voluntary’ can be applied to a child that looks to join an armed group. Their only other choice may be starvation and death. The child is unable to see the long term consequences of the decisions they exercise, in later life they will more than likely suffer overpowering feelings of remorse and guilt. Cohn and Goodwin-Gill (1994: 174) conclude in their study that abuses perpetrated by child soldiers may require rehabilitative responses, rather than retributive methods. This is a positive way to deal with the issue, traumatised by their actions the child needs to be brought back into the world as an adult. If a child is to be the future of their country they need reconciliation with their grievances and rehabilitation from the atrocities they witnessed or carried out. States with humanitarian law aspirations hoped that the CRC would further advance the cause of IHRL but were left disappointed with the end result. However the document is considered the pillar of the fight against the recruitment of child soldiers and the ‘most important legal instrument’ in protecting children’s rights (Doek. 2003: 235).
OP-CRC
The Optional Protocol to the CRC on the Involvement of Children in Armed Conflict (OP-CRC) adopted in May 2000 and entering into force in February 2002 sets the minimum age of recruitment and participation in armed conflict to 18. Article 1 ‘States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities’ (Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed conflict). This is in direct response to the age discrepancy contained in the CRC. Furthermore the protocol requires that states make it a criminal offence within their jurisdiction for armed groups in recruiting children. This is an attempt by the United Nations to tackle the concept of internal conflict which it has been sluggish in responding to on a number of fronts since the end of the cold war. Governments are restricted from conscripting under 18’s into military service but may avail of voluntary recruitment of persons between the ages of 16-18. This is subject to informed consent of parents or guardians and that the recruitment is genuinely voluntary. The minor must also be fully aware of the consequences of military service and not be deployed to a combat zone before the age of 18 (UNESCO 2006). The same criticism of applicability are levelled at the OP-CRC, the inability to enforce its provisions in intra states conflicts is questionable.
Other Legal Instruments
The 1990 African Charter on the Rights and Welfare of the Child strictly defines a child as attaining majority at 18 and restricts the use of minors in armed conflict. The Charter also provides for the criminalization of armed groups who recruit and use children as soldiers within states. The charter is an important regional legal instrument that enforces respect for IHL and IHRL principals. It is in fact the only regional instrument to directly address the issue and suggests all ‘necessary measures’ when dealing with armed groups. The intra state aspect of the Charter highlights the dynamic nature of the development of law since the Geneva conventions in 1949. The Statute of the International Criminal Court (ICC) establishes that the use of child soldiers under the age of 15 is a war crime and should be prosecuted as such (UNESCO 2006). The ICC has also been active in prosecuting Thomas Lubanga Dyilo for war crimes in the Democratic Republic of Congo. Arrest warrants have been issued for Joseph Kony in Uganda for his role in the Lord’s Resistance Army. Both cases show that legal instruments can have effect in providing a remedy and justice for wrongs committed against child soldiers. Although not a legal instrument UNESCO also advocates the Cape Town Principals as establishing an ‘important consensus among major international NGO’s and UNICEF, and offer guidance in developing policy and programmes that protect and support child soldiers’ (Lorey. 2001: 9-10)
Human security and International Law
Human Security would push for an intervention based on violation of IHRL to deal with the reintegration of children into society. New ideas such as the responsibility to protect also reinforce this developing security theory based upon the ideas of IHL and IHRL. The core of human security is viewed as the vulnerability of individuals and thus the theory aims to protect those who are at the most vulnerable. This has been the aim of IHRL since its conception, human security aims to act and not merely define the concept with a set of standards as outlined on the CRC. Surely then child soldiers and girls in particular who are at great risk qualify as strong contenders for human security action. Once these vulnerable groups are identified they can be protected via a strategic implementation of human security policy with the backing of international norms established by the CRC and IHL.
Conclusion
The changing nature of conflict has forced the international law makers to try and address the phenomenon of child soldiers. The move towards intra-state conflict is one that is likely to continue, international law must be more proactive in dealing with the issue on the ground. The current legal framework sets a very clear definition of what constitutes a child soldier and addresses the main issues. The enforcement mechanisms of the IHRL are weak and in practice the law has very little effect on rebel groups engaged in civil wars within States.
We are able to trace a steady development in the law from the Geneva conventions through to OP-CRC. The law is dynamic and is constantly undergoing a process of evolution to face potential challenges. At very least the IHL and IHRL instruments force the issue of child soldiers to the fore of international politics. Policy makers are well aware of the need for further implementation of such law. Human Security can provide the pro-active response to situations on the ground. IHRL norms can be established by the conventions and enforced by regional actors under guidance of the United Nations. Such an intervention policy would aim to protect the weaker members of war ravaged communities. Outsourcing the human security responsibility to regional actors will allow them to respond to the unique nature of local issues. Only in this way can IHRL expect to be effective on the ground and in reality. It is important that the underlying issues of the child soldiers phenomenon are resolved, human security theory applied in the region can help identify and protect vulnerable groups in society.
