The Combatant Status of ‘Under-aged’ Child Soldiers Recruited by Irregular Armed Groups in International Armed Conflicts

• Jurisdiction: South Africa
• Citation: (2012) African Yearbook on International Humanitarian Law 1
• Pages: 1-39
• Published date: 22 August 2019
• Date: 22 August 2019
• Author: Shannon Bosch

1

The Combatant Status of ‘Under-

aged’ Child Soldiers Recruited

by Irregular Armed Groups in

International Armed Conicts

Shannon Bosch*

1 INT RODUCTION

Children have featured in historica l accounts of the earliest conicts as

‘lookouts, spies’,1 ‘drummer boys, messengers, por ters, and servants’.2

However, since the mid-20th century the role of child soldiers has

undergone signicant transformation in the ex tent of their recruitment3

* BA (Hons) LLB (Universit y of Natal); LLM (University of Cambr idge); Attorney of

the High Court of S outh Africa; Senior Lec turer in Law (University of KwaZu lu-

Natal, School of Law).

1 Rachel Brett and Margaret McCa llin Children the Invisible Soldiers (199 8) 20.

2 Anna Cata ldi and Jimmie Brigg s ‘Child soldiers’, available at

crimesofwa r.org/a-z-guide/child-soldier s> (accessed on 3 August 2011); David

M Rosen ‘Who is a chi ld? The legal conundrum of ch ild soldiers’ (2009) 25

Connecticut Jour nal of International Law 81, 85.

3 Currently there a re an estimated 300 000 ch ild soldiers deployed in 75% of all

armed conic ts in about 50 countries (Coal ition Against Child Sold iers ‘Child

soldiers: Global report ’ 22, available at <ht tp://www.child- soldiers.org/ library/

global-reports> (accessed on 3 June 2 011). As Brett and McC allin rightly poi nt

out – ‘almost by denition infor mation on child soldiers is out of date before it is

published’ (op cit note 1 at 31). Children have reportedly ser ved ‘in government

forces, paramil itaries, or in opposition forces … i n the following states: In

Africa: A lgeria, Angola, Buru ndi, Chad, DRC, Eritrea, Et hiopia, Djibouti,

Liberia, Rwand a, Sierra Leone, Somalia , South Africa, Suda n, and Uganda. In

the Americas: Colombia, E cuador, Guatemala, Mexico a nd Peru. In Europe:

Bosnia and Herzegovi na, Croatia, United Kingdom/ Northern Irela nd, Turkey/

Kurdistan, and t he Russian Federation/Chech nya. In the Middle East/Pe rsian

Gulf: Israel/occupied te rritories, southern L ebanon, Iran, and Iraq/Ku rdistan.

In Asia: Afgha nistan, Burma, Cambodia, I ndia/Kash mir, Indonesia/East Timor,

Myanmar, Nepal, the Ph ilippines, Papua New Guinea, Sr i Lanka, Pak istan,

Solomon Islands and Tajikistan, a nd Uzbekistan’ (Nsong urua J Udombana ‘War is

not child’s play! International law and t he prohibition of children’s involvement

in armed con icts’ (2006) 20:1 Temple International and Compa rative Law Journal

61, 65; Center for Defense Information, De fence Monitor ‘The invisible soldier’

(DC-I.S .S.N. # 0195-6450 XXV I 4), available at <http://www.cdi.o rg/dm/1997/

issue4/> (accessed on 1 Febru ary 2012). The Sudan People’s Liberation A rmy

alone is reported to have rec ruited in excess of 20 0 00 child soldiers, while the

Lord’s Resistance Army ( LRA) is estimated to have abduc ted in the region of

(2012) African Yearbook on International Humanitarian Law 1

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2 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

(both locally and across b orders),4 their increasing youthfulness

(some reportedly as young as 85 years of age), their degree of military

involvement,6 a nd most signicantly that the vast majority are being

recruited by irreg ular armed groups.7 In recent armed con icts, child

soldiers – often drugged into a state of irrational fearlessness – have

acted as ‘regular soldiers, gue rrilla ghters, cooks’,8 human shi elds,9

26 000 chi ldren (‘South Sudan to end use of child soldier s’ BBC News (London,

31 August 2010), available at www.bbc.co.u k/news/world-

afr ica -111354 26> (accesse d on 5 August 2011); Watchlist ‘Sudan’s children at

a crossroads’ 23, avail able at <http://watchlist.org/reports/pdf/sudan_07_nal.

pdf> (accessed on 5 August 2 011); United Nations ‘Report of t he Secretary-

General to the Sec urity Counci l’ (A/65/820-S/2011/250), available at <ht tp: //

unispal.un.org/UNISPAL.NSF/0/70BF34991DA5D6B08525788E004BA583>

(accessed on 27 May 2012).

4 Armed groups i n Chad and the Democratic Republ ic of Congo (DRC) are

reported to have recr uited refugee children from Rwa nda and Sudan, while the

LRA is repor ted to have abducted children f rom Uganda, Sudan, the DRC and

the Central Af rican Republic (CAR) (Coalition Ag ainst Child Soldiers op cit note

3 at 17 and 23).

5 Amnesty Inter national ‘In the line of r e: Somalia’s children unde r attack’,

available at w.amnesty.org/en/library/info/AFR52/0 01/2011/en> (accessed

on 6 August 2011). In 2002 the Joint Army Com mission of the UN, which was

investigating the sit uation in the Congo, reported that ‘chi ldren accounted for

fty per ce nt of the three hundred and ft y-thousand total soldiers being used ’

in the Congo, and they esti mated that ‘ten per cent were under twelve years of

age, thirty p er cent were between twelve and f teen years of age and twenty per

cent were between si xteen and eighteen years of age’ (Just in Coleman ‘Showing

its teeth: The Internat ional Criminal C ourt takes on child con scription in the

Congo, but is its bark worse than its bite?’ (20 07-2008) 26 Penn State International

Law Review 76 5).

6 In t he DRC most children recr uited in 2010 into irregula r armed groups were

used in milita ry operations (UN op cit note 3; Coalition Aga inst Child Soldiers

op cit note 3 at 19).

7 Singer rep orts that 60% ‘of the non-state ar med forces in the world today

deliberately make use of c hild soldiers’ (Peter Warren Si nger Children at War

(2005) 95). Even the private secu rity industry ha s made use of child soldiers

(Francesco Franc ioni and Natalino Ronzitti (eds) War by Contract: Human Right s,

Humanitarian Law an d Private Contractors (2011) 266). In gures quoted by t he

International Cri minal Court (ICC ), it is estimated that ‘over eighty-ve per cent

of the LRA’s forces are made up of child ren’, bolstering the numb ers of 200 core

members to 14 000 soldier s (Udombana op cit note 3 at 65; Singer Children at War

95), and a UN report release d in 1999 maintained that the Taliba n were enlisting

child warr iors younger than fourtee n years of age in Afghani stan (Anatole

Ayissi ‘Protecti ng children in armed con ict: From commitment to compliance’

10, available at r.org/pdf/arts /pdf-ar t1727.pdf> (accessed on

28 December 2011)). What is not treated here though, is a ny analysis of irregula r

organised ar med groups per se and the controversy around how IH L deals with

such groups.

8 Udombana op cit note 3 at 61.

9 Feigning prote cted civilian status to shie ld military targets from att ack.

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THE COMBATANT STATUS OF ‘ UNDER-AGED’ CHILD SOL DIERS RECRUITE D 3

porters,10 lookouts and spies,11 and in t he case of young girls, have

been offered as ‘sex slaves to the armed forces’.12 Of course the data

detailing the extent of their i nvolvement in armed conict are at best

an underestimation. As Brett a nd McCallin point out, child soldiers are

often ‘invisible because those who employ them deny their existence.

No record is kept of their number and ages, or their ages are falsied’.13

Singer reports that in recent and ongoing conict s, 68% of these

conicts feature chi ld soldiers as combatants, and in eighty percent

of these instances the child ren are under the age of fteen years.14 ‘In

short, the participation of children i n armed conict is now global in

scope and massive in number.’15 Since armed forces ‘now face real and

serious threats from [child] opponents whom they generally would

prefer not to harm’, ‘being unwilling or unable to operate in child

soldier zones is a recipe for strategic inaction’,16 even though ghting

children has a demoralisi ng effect on troop morale.17

Just what is meant by the term ‘child soldier’18 has also undergone

signicant legal scruti ny in recent years. Whi le most international law

10 It is not uncommon for child ren to be used to transp ort contraband items

through checkp oints where they are less likely to be searc hed, for example.

11 Coalition Against C hild Soldiers op cit note 3 at 22. Accordi ng to Brett and

McCallin ‘ma ny of the case studies refer to a sp ecial preference for using c hildren

as look outs, messengers and for intel ligence work’ (op cit note 1 at 95).

12 UN op cit note 3.

13 Brett and McCallin op cit note 1 at 19.

14 A study conducted in Asia esti mated the average age of child soldiers at 13 years

of age, while a similar st udy conducted in Africa concluded th at over 60% of all

child soldiers in A frica were under 14 years of age (Singer op cit note 7 at 28-29).

15 Ibid at 16.

16 Singer op cit note 7 at 164 and 166.

17 Ibid at 170.

18 The use of the term ‘child soldier’ i n this paper is dened ac cording to the

Cape Town Principles and Be st Practices adopted at the ‘Sy mposium on the

Prevention of Recru itment of Children i nto the Armed Forces and D emobilization

and Social Rei ntegration of Child Soldiers in A frica’ (UN ICEF ‘Cape Town

Principles’, available at < www.unicef.org /emerg/les/Cape_Town_ Principles(1).

pdf> (accessed on 15 Decembe r 2011)). The Cape Town Principles dene a chi ld

soldier as ‘any person under ei ghteen years of age who is part of any k ind of

regular or ir regular ar med force or armed group in a ny capacity, including but not

limited to cooks, por ters, messengers and anyone accompany ing such groups,

other than fam ily members. The den ition includes girls recr uited for sexual

purposes and for force d marriage. It does not, therefore, only r efer to a child who

is carry ing or has carried arms.’ This d enition is intentionally broadly worded

so as to extend its application beyond t hose employed as combatants to include

‘cooks, porters, messenger s, and anyone accompanying such g roups, including

girls recr uited for sexual pur poses and forced marr iage’ (UNICEF ‘Guide to t he

optional protocol on the involvement of chi ldren in armed con ict’ 14, available

at s/option_protocol_conic t.pdf> (accessed

on 6 July 2011)). This denition applies to all child pa rticipants, irr espective

of whether ‘the authorities contend the c hild “volunteered” for soldiering ’

(Sonja Grover ‘“Child soldiers” as “non-combatant s”: The inapplicability of the

Refugee Convention exclusion clau se’ (2008) 12:1 The Internat ional Journal of

Human Rights 53 at 54).

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