Violence has always been and continues to be a fundamental problem in Africa, with children often bearing the greatest burden. Many fall easy prey to victimization, and some are forcibly recruited as child soldiers. The struggle for power and control over natural resources has fuelled conflicts and wars, severely affected several African countries and resulted in unimaginable atrocities, particularly against women and children. Despite the existence of international legal instruments such as the Geneva Conventions and the Convention on the Rights of the Child (CRC), along with its Optional Protocol which recognizes the fundamental rights of all children and specifically emphasizes their protection during armed conflict under Article 38, urging states to prevent the participation of children under the age of 15 in hostilities and to safeguard those between 15 and 18 serious human rights violations, grave atrocities, and breaches of international law persist. This article intends to examine the existing legal frameworks and protocols established to protect children in war-torn countries, and to critically assess the practical implementation of international law in meeting the expectations of the global community regarding the protection of children’s rights during armed conflict. The study employs a doctrinal legal research methodology, utilizing qualitative approaches to support the analysis. This method is adopted as it contributes significantly to the understanding and development of legal standards necessary to achieve the broader objectives of the study.
Keywords: International law, children protection, Rights and CRC
Международно-правовые аспекты защиты прав детей во время вооруженных конфликтов в Африке
Насилие всегда было и остаётся одной из основных проблем в Африке, причём дети зачастую несут на себе наибольшее бремя. Многие становятся лёгкой добычей для виктимизации, а некоторых насильно вербуют в качестве детей-солдат. Борьба за власть и контроль над природными ресурсами разжигает конфликты и войны, серьёзно затрагивает ряд африканских стран и приводит к невообразимым зверствам, особенно в отношении женщин и детей. Несмотря на существование таких международных правовых инструментов, как Женевские конвенции и Конвенция о правах ребёнка (КПР), а также Факультативный протокол к ней, признающий основные права всех детей и особо подчеркивающий их защиту во время вооружённых конфликтов в соответствии со статьёй 38, призывающей государства предотвращать участие детей младше 15 лет в боевых действиях и обеспечивать защиту детей в возрасте от 15 до 18 лет, продолжаются серьёзные нарушения прав человека, тяжкие злодеяния и нарушения международного права. Целью данной статьи является рассмотрение существующих правовых рамок и протоколов, принятых для защиты детей в странах, охваченных войнами, а также критическая оценка практического применения международного права в целях удовлетворения ожиданий мирового сообщества в отношении защиты прав детей во время вооруженных конфликтов. В исследовании применяется доктринальная методология правового исследования с применением качественных подходов для обоснования анализа. Этот метод принят, поскольку он вносит значительный вклад в понимание и разработку правовых стандартов, необходимых для достижения более широких целей исследования.
Introduction
Armed conflict has multiple meaning and may be defined to suit different interest of the author. In this context, armed conflict may be defined as disputes or warfare occurring between groups viewed as unified or natural entities such as racial or tribal communities, nations or regions, religious or political factions, or socioeconomic classes.[1] Scholar like Alina-Maria Bizău and Robert Stănciulescu gave the meaning of armed conflict to mean a situation characterized by organized, collective, and sustained use of armed force between two or more parties, which may include state or non-state actors, and encompasses both formal wars and other manifestations of violent hostilities involving lethal means. Such conflict may arise between opposing social groups or between a social group and a recognized state authority.[2] In the case of Prosecutor v. Alfred Musema,[3]the International court tribunal for Rwanda highlighted what is also amount to the meaning of armed conflict. It further provided that, the word armed conflict means the presence of sustained hostilities between parties possessing a discernible level of organizational structure within their respective armed forces. According to the ICTR, Situations involving mere internal disturbances, civil unrest, or tensions marked by isolated or sporadic instances of violence shall not, in and of themselves, amount to an armed conflict within the meaning of international humanitarian law, notwithstanding the deployment of police units or even military forces by the state for the restoration of public order.
However, in pursuant to common article 2(1) of the fourth Geneva convention stipulates the area of conflicts to mean all area that are declared of war and army conflicts that may arise between two or more antagonistic party even if the nature of conflict is not recognized by any one of them. These may involve states versus rebels or Insurgencies[4]. The Conventions inter alia envision to protection of civilians[5] through the protections of innocent civilians and those who are not taking direct part to the hostilities against certain consequences of war[6]. Though, for the purpose of this discussion, the implementations of Geneva Conventions and its additional protocols have proved significant challenges for the international humanitarian law, and need for its domestication is warranted to monitor its implementation and henceforth repress the serious and gross violation of international humanitarian law.
The provisions of international humanitarian law (IHL) become operative from the onset of an armed conflict and remain applicable beyond the mere suspension of hostilities, persisting until the formal conclusion of peace. In the context of non-international armed conflicts, the applicability of such norms endures until a definitive and peaceful resolution is attained. Throughout this period, the obligations and protections enshrined in IHL are binding across the entire territory of the belligerent states in cases of international armed conflict, or, in situations of internal armed conflict, across all areas under the effective control of the parties to the conflict, irrespective of whether active military operations are being conducted in a given location.[7]
Meaning of the Child under the International law
In reference from the United Nations International Children’s Emergency Fund, it to has provided a comprehensive definition of who is the child under the international standards. It defines a child as ‘every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier.[8] The definitional framework concerning the term child is susceptible to potential exploitation by individual’s intent on abusing or taking undue advantage of minors, insofar as it permits State Parties the latitude to legislate for the attainment of majority at an age below eighteen (18) years. As observed by Goonesekere, while the applicable definition unequivocally stipulates eighteen (18) years as the upper threshold of childhood, it simultaneously concedes that majority may, in accordance with the operative domestic legal regime, be attained at an earlier age. Accordingly, the present study duly acknowledges the legal possibility of an earlier age of majority as may be prescribed by federal, state, or personal laws within the jurisdiction concerned. Notwithstanding, it remains the position of this study that the age of eighteen (18) constitutes the definitive terminus of childhood, as distinct from majority, in recognition of the fact that various legal systems accord full legal capacity for certain rights, obligations, or acts at disparate developmental stages
A Child in Armed conflicts
At the global level, countless children are conscripted and utilized as soldiers in armed conflicts. Regardless of the method of recruitment or the specific roles assigned to them, these children are fundamentally victims. Their participation in warfare severely affects their physical health and psychological stability. Many endure abuse and are exposed to traumatic events, including killings, deaths, and sexual violence. Some are even forced to perpetrate acts of violence themselves, leading to lasting emotional and mental harm. Consequently, supporting their reintegration into civilian society is essential for restoring their lives and aiding their recovery.
According to the African Charter on the Rights and Welfare of the Child, a child shall be defined as any human being who has not attained the age of eighteen (18) years.[9] Similarly, the Convention on the Rights of the Child delineates a child as any person under the age of eighteen (18) years, save where the attainment of majority occurs earlier pursuant to the applicable domestic legal framework.[10] For purposes of statistical classification, the United Nations designates youth as persons aged fifteen (15) to twenty-four (24) years, without prejudice to alternative definitions as may be adopted by Member States. This definitional construct was formulated during the preparatory activities of the 1985 International Youth Year and subsequently endorsed by the United Nations General Assembly. Accordingly, all statistical data maintained and published by the United Nations system relating to youth demographics, education, employment, and health are grounded in this conceptual framework. Furthermore, numerous jurisdictions prescribe the cessation of childhood status at the age wherein an individual acquires full legal capacity, commonly termed the age of majority, which in many States is established at eighteen (18) years. Notwithstanding the foregoing, the operative definition and nuances of the term youth are subject to variation among States, contingent upon respective sociocultural, institutional, economic, and political factors prevailing within each jurisdiction.
Pursuant to applicable international humanitarian and human rights law, it is acknowledged that numerous armed conflicts entail the direct participation of persons under the age of eighteen (18) years. Such participation is not confined solely to hostilities; minors of both sexes are likewise engaged in ancillary capacities inter alia, as logistical support, cooks, porters, intelligence gatherers, or in roles involving sexual exploitation thereby exposing them to substantial risk, suffering, and violence, whether as observers, direct victims, or coerced actors. Affected individuals frequently sustain physical injuries or psychological trauma that result in lifelong disabilities.[11]
For the purposes of prevention, accountability, and reparations, a “child associated with an armed force or armed group” shall be construed to mean any person under the age of eighteen (18) years who is, or has been, recruited, enlisted, or otherwise utilized in any capacity by an armed force or armed group. Such capacities include, without limitation, roles as combatants, cooks, porters, spies, messengers, sexual agents, or any other function that contributes to the operations of the armed entity.
Cause of Armed conflict and its impact to the Children in Africa
Given the turbulence of a post-conflict environment, timing and sequencing are critical yet challenging to sustainable peace. The lack of clarity of African Union Legal instruments on taming armed conflict and reluctance of AU to compel countries involved in post conflicts to implement the international law and its protocol toward sustainable child protection, creates difficulties on observing the rights of children in armed conflicts and create challenges in the fight of impunity related to gross violation of human Rights. The unaddressed systematic violations of human rights are a source of social instability and frequently contribute to recurrent army conflict in the Region. It is critical to restore the rule of law following periods of war or authoritarianism.
The ongoing violent conflicts within the territory of Democratic Republic of Congo, Central African Republic and Southern Sudan are inextricably linked to a fundamental crisis pertaining to the legitimacy of the State, its institutional framework, and the political officeholders therein.[12] This crisis of legitimacy is attributable, in part, to the historical formation of the State, which was effected through European colonial expansion characterized by the use of force, the manipulation and exacerbation of pre-existing societal cleavages, administrative policies predicated on the doctrine of divide and rule, and economic measures that contributed to the further disintegration of the colonial polity.[13] Such colonial practices not only undermined the nascent and precarious legitimacy of the State but also obstructed the emergence of a cohesive those country’s national identity, while engendering ethnic, religious, and regional fault lines that have subsequently precipitated political instability and episodes of violence.[14]
Armed conflicts constitute one of the principal causes of death among children. In the context of such conflicts, children suffer disproportionately due to the disintegration of protective structures and institutions designed to safeguard their welfare and security. Consequent to armed hostilities, the case of Democratic of Congo (DRC) it is estimated that in 2017, about 2360 children were recruited in the army, with more than one million rendered internally displaced or refugees. It also indicates about three million individuals, inclusive of women and children, have succumbed to death attributable to conflict and related violent circumstances.[15]
In examining the deleterious ramifications of armed conflict upon the rights and welfare of children, the practice of child soldiering constitutes one of the gravest and most psychologically and physically injurious forms of exploitation to which a minor may be subjected. For the purposes of international humanitarian and human rights law, a child soldier is defined as any person below the age of eighteen (18) years who is compulsorily conscripted, forcibly recruited, or who voluntarily enlists into the service of state or non-state armed forces, paramilitary formations, civil defence organizations, or other organized armed groups, and is utilized in hostilities or in direct or indirect support functions thereof.
The protracted armed conflict in Democratic Republic of Congo (DRC) and South Sudan serves as a particularly egregious example of such violations, where the abduction of in excess of more than one Million children has resulted in the systemic recruitment and deployment of child soldiers. Both male and female child combatants are subjected to multifaceted violations, including but not limited to their unlawful engagement in hostilities as fighters, their exploitation as couriers and logistical aides, and their subjection to acts of sexual servitude, all of which constitute serious breaches of international law and child protection norms.[16]
Legal instrument protecting Children during Armed conflicts
The Geneva Convention 1864-1949
In order to understand the Geneva Convention, one has to look back on the 19th Century when the first draft was established[17]. The said international instrument has gone tremendous change and improvements with the manifestation on humanitarian protection and promotion of humane treatment in time of war. Until the 1949, the convention has become source of the international law as well international humanitarian law whereby protecting and minimizing the consequence to the victim of war[18]. The changes in the Geneva Conventions have brought to the development of the International Humanitarian law of which acknowledgement of combatant and non-combatant to the conflicts is being fully addressed. The role of International Committee for Red Cross (ICRC) has paved way for the development of the Geneva Conventions and the subsequent development in IHL.
The First Geneva Convention (1864 Geneva Convention)[19]
This was the first Geneva Convention of 1864 that resulted from international diplomatic meetings that produced to number of agreements which thus paved way for the development of the International Humanitarian Law.[20] It was the first statute to regulate the conduct during the hostilities. It has gone several amendments and updates which have significantly led to the 1949 Geneva Convention. This convention was short and brief which only had 10 articles, of which one of its provision dealt with treatment of sick and wounded soldiers in battlefield[21]. The first Geneva Convention[22] established the genesis of international humanitarian law where it availed wounded soldiers to be treated humanely, no matter what side they came from, and protection of hospitals, ambulances and medical staff who were neutral in the conflicts[23]. The convention only was binding to the members who were signatories. That means, it was binding only to the combatant who were signatories and such gap necessitated the update and amendments which paved way to the 1906 Geneva Convention[24].
The 1906 Geneva Convention (Geneva Convention II)[25]
Before the amendment of the second protocol to Geneva Convention of 1906, the first convention were falling short in addressing the right and protection of wounded soldier at sea and were silent on treatment of non-combatant and prisoners of war who were not active in the confrontation and hostilities. However, the two established Hague Convention in 1899 and 1907 tried to mend the weakness of the 1906 Geneva Convention. However, the said Hague convention established the law and custom of war in armed conflicts. The effect of Hague Convention in 1899 and 1907 re-examined the Geneva Convention II of 1906 for the Amelioration of the Condition of the wounded children in areas of conflict. In other words, the 1906 Convention was better off and contained necessary details in regard to technology as compared to the First Geneva Convention of 1864[26]. The second Geneva Convention as hereinafter refereed as 1906 Convention[27] is considered as an update and revision to the 1864 Convention, since it made a compelling obligation to the hostility part or combatant to respect the human rights and dignity for the enemy wounded in the war and not of handing them back on the other side. The Convention had also some limitations including the maintenance of Clausula si omnes principles where the Convention only applied and was binding to the signatory member states who agreed upon the implementation of the Convention. However, the 1906 allowed party to the agreement to withdraw and denounce their membership upon one year notice[28]. The Convention confirmed and re-shaped behaviour of military in area of conflict and allowed medical personnel and humanitarian workers to rescue those who are wounded in battlefield. The Second Geneva Convention restored its humanitarian core where the International Humanitarian Law (IHL) played the role on protection of civilians against the effect of war.
The 1929 Convention (The Third Geneva Convention)
The 1929 Geneva Convention hereinafter called the Geneva Convention III made reforms and improvement to the Second Geneva Convention of 1906 which inter alia covered the protection and treatment of prisoner of war during the Second World War (WWII). The 1929 Convention was known as Convention relative to the Treatment of Prisoners of War. As per Committee on Red Cross (ICRC) analysis, the question of humane treatment of prisoner of war was also featured in the Hague Regulation of 1899 and 1907. The course of the First World War (WWI) indicated some deficiency and incorrectness of the 1906 Geneva Convention and Hague Conventions of 1899 and 1907 which was cured by special agreement made by rebel (belligerent) in 1917 and 1918 just after the end of the First World War. The international Red Cross pushed the initiative with concern to the treatment of prisoners of war. The International Committee of the Red Cross (ICRC) drew up a draft convention which was submitted to the Diplomatic Conference convened at Geneva in 1929. The Convention was established as compliments and subsidiary document to the Hague Regulations of 1899 and 1907. The 1929 Convention marked the codification of the International Humanitarian Law and recognizes the good effort of the International Committee for Red Cross[29]. However, the 1929 Convention had weakness and was incomplete to signify the total protection of prisoner of war and innocent civilians. In the First World War, civilians had no protection at all. The Great War and human catastrophe in the World War II brought changes and development on respect to the international Human Right law and consideration put on the influence of super powers on the enforcement of the Conventions where humane treatment of prisoner of war (POW) is regarded as humanitarian concern.
The 1949 Geneva Convention (Geneva Convention IV)
The 1949 Convention hereinafter termed as the Fourth Convention was drafted as the counter response to the atrocities and effect of the Second World War (WWII) which caused extreme suffering in Europe. Following the Nuremberg trials, the 1949 Geneva Convention stand as the cornerstone on enforcement of international humanitarian law today[30]. The role of ICRC is also recognized and recorded as the beginning of the development of the International humanitarian Law. The following hereunder is the general view and characteristic of the 1949 Geneva Convention as hereinafter refereed as the Geneva Convention IV of 1949[31].
General View of the 1949 Geneva Conventions
In nutshell, the first three general convention expound on the legal framework in relation to the wounded soldier in the armed force at the sea and shipwrecked, and the treatment of prisoner of war[32]. The 1949 Convention provides the protection as well the class of persons protected under the fourth Geneva Convention. The 1949 Geneva Convention inserts new ground on the development of the International Humanitarian law which spells out the rights of civilians during armed conflicts. For instance, the common article 3 of the convention[33] provides for minimum standards of protection for treatment for non-international conflicts by prohibiting certain actions against those not actively involved in the hostilities, with a non-discrimination clause and a duty to care for the sick and wounded[34]. The main reasons for the fourth Geneva Convention was drafted to protect civilians who are not taking part to the conflicts and who under the control of an enemy state against the unlawful and arbitrary action by that state[35], however is fairly to argue that, the Convention[36] silent and empty on question concerning protection of civilian populations against modern military operations where airstrikes and bombardment is nowadays common in battlefield. However, this lacunae is cured and filled by the additional protocol I to the Geneva Convention[37]. The same Convention narrates on the categories of persons protected especially the nationals of an enemy State who find themselves in the territory of a belligerent State and the inhabitants of occupied territory [38] However Article 75 of the Additional Protocol I to the Geneva Convention extends protection by providing fundamental guarantees to all persons who find themselves under the control of a party to conflict and are not otherwise entitled to more favourable treatment under the Geneva Conventions[39].
The Geneva Convention of 1949 is an outstanding document which has filled the gap from the previous three Geneva Convention. However, there is noticeable gap like the lack of preamble on the face of it and thus lag behind on the function to extend human rights in the context of International Humanitarian law[40]. Also, the convention has failed to protect the civilian population from indiscriminate attack where bombing and sophiscated weapons are used in areas of conflicts.
Notwithstanding of Article 51(5) of the additional Protocol I to the Geneva convention which prohibits indiscriminate attack, both conventions and the protocol have not addressed the use of technology like drone and airstrikes and how can civilian be practically protected from such new method of war engagement. In effort to extend the international humanitarian law or the law of war to envelop armed conflicts regardless of the type of the conflicts were blocked by the objection of state sovereignty. Practically, the implementation of the four Geneva Convention threatens states interest where no state is willing to enforce the IHL when war is happening in their territories. The fear on states is that, it will encourage rebellion against the government in power (sovereign) and any government would treaty rebels as criminals[41]. Lastly, common article 3 of all Geneva Conventions provides for minimum humanitarian protection in all armed conflicts to non-combatant and person who not actively taking part in the conflicts. It covers both civilians and member of the armed force who have surrendered or not taking part to the hostilities. The conventions compel for these persons to be treated humanely with no discriminations[42]. The improvement of the Geneva Convention through additional protocols reflects the contemporary practice on protection of Human rights, a duty which states cannot deny. From the perspectives of the four conventions, states are reluctant to allow the application of international law when there conflicts in their own territories. In that perspective, the Geneva Convention did not include the ultimate definition and meaning of non-international conflicts and such move defeat the promotion and development of International humanitarian law (IHL)
The additional Protocols
The effort to extend the applicability of the four conventions to non-international conflicts as well to implement The Hague regulations re-emerged in some years back from 1950’s and 1960[43] where most of the nations had internal problem due to the liberation struggle for independence and the decolonization process which witnessed gross violations of human rights and grave breaches of the IHL. For this reasons, new states regained their independence could not accept the rules stipulated within the Geneva Conventions, for the reasons that they did not help to draft and consent for. Also the Vietnam War was another shock to the world which necessitated the re-visit of the 1949 Geneva Convention. Thus, the additional protocols of 1977[44] were an initiative to confirm the Geneva Convention IV and intended to curb the deficiency and weakness of the Convention[45]. The additional protocols of 1977 has filled the gap of the Geneva Convention of 1949 by recognizing national struggle for independence as international conflicts[46] and also non-international conflicts where government forces and rebel force control different part of the territory[47]. The intriguing factor for the Additional Protocol I was due to the war between United State of America and Vietnam hereinafter called as Vietnam War[48], and the universe vowed to revive the importance of International Humanitarian Law, and significant changes were made to that effect. The additional protocols availed the definition and distinction of combatants in relation to those not wearing uniforms. These additional protocols stressed on protection of civilians and those not actively involved in the hostilities. The protocols broaden the Geneva conventions as it prohibits retaliations to civilians and prohibit the use of chemical weapons which may have a long effect on civilians’ population. Both additional protocols have been recognized as part of the customary international law[49].
Additional protocols II award less guarantee as compared to the additional protocol I and its application is complex and restricted as compared to the common article 3 of the Geneva Conventions. However, protection of non-international armed conflicts is proved difficult in both additional protocols due to the issue concerning sovereignty of states, as well states interest against of those of the rebels or traitors. Common article 3 of the additional protocols requires both antagonistic party to oblige on the Geneva Convention and additional protocols. For instance on issue where rebels have seized and taken control part of the territory, the states involved is required to take reasonable measure with different view taken by the other antagonistic party. However, the problem is how to implement the additional protocols in such stance where rebels threaten the functionality of government of state. The contemporary example on the failure of the Geneva Convention of 1949 and its protocol is on the occupied territories in middle east, especially Israel and West Bank of Palestine territory. The question of Golan height discredit the effectiveness of the Convention and its additional protocol, where Israel have occupied Golan height, the land belongs to Syria and the Geneva Convention and its additional protocol is not in place to take its course. In the case of The Prosecutor v Dusko Tadic[50] the decision of the tribunal[51] made the development of the International Humanitarian law (IHL) where the jurisprudence on the customary international law norms is applicable to non-international conflicts.[52] The enforcement of IHL today is featured with the application with the principles of customary international law where states is duty bound to protect international and non-international armed conflicts and evidence on ground shows that, states are fully implementing the Geneva Convention of 1949 and their additional protocols.
Limitations to the Geneva Convention and its additional Protocols
Despite of the importance of having Geneva Convention and its protocols in the contemporary world where chaos and conflicts is on record, the said convention is falling short to regulate law of the war and protect children who are not necessarily taking part to the hostilities. The following shortcomings are discussed hereunder as follows:
Firstly, the Geneva Convention of 1949 and its protocols do not address the war on terror. Currently the world is on threat of terrorism where extremist around the world have gained popularity and support, which threaten the norms of the customary international law and the development of the IHL. For the past two decades, the war on terror and treaties on counter terrorism have been made in affect by all member of the global community though the Geneva Convention is silent about terrorism. However, critics are made on the application of the Geneva Conventions and its protocols about separation of combatant and non-combatant. Those who carry out terrorism attack are a civilian who significantly have no military uniform or shows no sign of active involvement in the hostilities. The observance to Geneva Convention of 149 and its protocols seems to promote terrorism rather than control it due to the complexity way of handling terrorism.
Secondly, the Geneva Convention and its additional protocol is overtaken by events in the sense that, it was drafted by those states or people who were in the battlefield and hand mind of war. The battlefields have changed, and it do not required physical battlefield. The advancement of technology has created sophiscated weapons which do not make necessary physical present in the battlefield. The battlefield of today deploys use of the air (aerial) which thus set limit to distinguish combatant from non-combatants. The Geneva Convention have not addressed the emanating change in the tactics and modern engagement in warfare, henceforth requires an update and revision to envision the modern war handling and administration of the law of war in areas of conflicts.
Also, the Geneva Convention of 1949 and its additional protocols does not comprehend the contemporary change in technology and new invention of sophiscated weapons where autonomous weapons are used in war. The issues concerning of continental ballistic missile and the use of drone in war have changed the course of engaging war in modern world. Thus, the definition of battlefield as provided within the Geneva Convention and its protocols have been overtaken by events. However, the difficulties is on implementation of the international Humanitarian law especially the Geneva Convention of 1949 which requires distinction of civilians, non-combatants and those who are not actively involved in the hostilities. The autonomous weapons can’t not operate as provided under the Conventions and its protocols and henceforth pose as a challenge to the Convention and its 1977 additional protocols.
UN Convention on the Rights of the Child on the Involvement of Children in Armed Conflict
The General Assembly adopted the Optional Protocol with the express purpose of addressing and mitigating the escalating involvement of children in armed conflicts, thereby enhancing the protective standards established under the United Nations Convention on the Rights of the Child and the Additional Protocols to the Geneva Conventions concerning the recruitment and utilization of children in hostilities. Pursuant to the Optional Protocol, the minimum age for direct participation in hostilities by State armed forces is elevated to eighteen (18) years.[53] Furthermore, the Protocol expressly prohibits the forced or compulsory recruitment of persons under the age of eighteen (18) into national military forces. Notwithstanding these provisions, the Optional Protocol does not categorically forbid the voluntary enlistment of individuals below eighteen (18) years of age by States. However, it mandates that the minimum age for voluntary recruitment must exceed fifteen (15) years, consistent with the threshold stipulated in Article 38(3) of the United Nations Convention on the Rights of the Child.[54]
States Parties are required to establish and maintain rigorous safeguards to guarantee that all military recruitment is genuinely voluntary and that verifiable evidence of each recruit’s age is obtained and confirmed. Under Article 1 of the Optional Protocol, no person under eighteen years of age may be directly engaged in hostilities; States must employ all feasible measures to secure compliance with this prohibition. The term feasible measures has, however, been subject to interpretative declarations by certain States, enabling a narrowing of their preventive duties regarding the deployment of personnel under eighteen. Moreover, the Optional Protocol unequivocally forbids non-State armed groups from recruiting or utilising individuals under eighteen years of age, and obliges States Parties to enact and enforce penal provisions criminalising any such recruitment or use. Oversight of States Parties’ adherence to these obligations is vested in the Committee on the Rights of the Child.[55]
Conclusion
One prevailing feature of the contemporary international order is the entrenched culture of impunity enjoyed by those who intentionally injure children or negligently fail to safeguard their welfare. The scale, pervasiveness, and deleterious consequences of such maltreatment constitute systematic breaches of both civil and criminal obligations under international law. Nonetheless, the actors who perpetrate these breaches—and the authorities who expressly sanction or tacitly permit them seldom incur liability or apprehend the prospect of judicial redress. The sole efficacious remedy to eradicate this culture of impunity resides in the diligent application of the rule of law by robust and independent institutions. On the other hand, Protecting Children in Armed Conflict constitutes an exhaustive juridical exposition of the relevant corpus of international and municipal legal norms governing the rights and protections accorded to children in contexts of armed hostilities. This scholarly inquiry undertakes a critical reappraisal of the prevailing legal architecture applicable to the protection of children within the conflict-affected territories of the Republic of southern Sudan and the Democratic Republic of the Congo. It advances prescriptive recommendations intended to curtail and ultimately eradicate what has been poignantly characterized as the ‘war on children.’ A multitude of international legal instruments establish a comprehensive framework of protection for children, who, as non-combatants, are entitled to the general civilian protections under both international armed conflict (IAC) and non-international armed conflict (NIAC) regimes. In recognition of their heightened vulnerability, the four Geneva Conventions of 1949, as well as their Additional Protocols of 1977, delineate enhanced safeguards specifically tailored to the unique needs of children caught within theatres of armed conflict. In both the Democratic Republic of the Congo (DRC) and southern Sudan, judicial and quasi-judicial mechanisms have been instituted to address and deter egregious violations of international law, particularly those affecting civilians and children. In the DRC, limited yet targeted judicial assistance is rendered by the United Nations and select international non-governmental organizations, notably through the deployment of mobile courts (audiences foraines) to adjudicate serious offenses committed by state and non-state actors in conflict-affected regions.
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[1] Weizmann, N. “The end of armed conflict, the end of participation in Armed Conflict, and the end of hostilities: Implications for detention operation under the 2001 AUMF.”Columbia Human Right Law Review, volume 47, issue 3, series 1 (2016)
[2] Bizau, M. & Stănciulescu causes of armed conflict Land Forces Academy Review, Vol. XXVII, No 3(107), 2022
[3] Case No. ICTR-96-13-A, Trial Chamber I (27 January 2000
[4] See also Article 1(3) of the Additional Protocol I to the Geneva Convention of 1977
[5] Part II of the Fourth Convention of 1949 speaks of general protection for civilians against certain consequences of war.
[6] See Common Article 3 of the Geneva Convention of 1949
[7] See Prosecutor v. Tadic, Appeal on Jurisdiction, Case IT-94-1-AR72 (Oct. 2, 1995), 35 I.L.M. 32, 54.
[8] UNICEF, Implementation Hand Book for the Convention on the Rights of the Child, UNICEF, p. 1.
[9] Article 2 of the African Charter on the Rights and Welfare of the Child, 1990
[10] Article 1 of the Convention on the Rights of the Child, 1989
[11] Paris Principles on the Involvement of Children in Armed Conflict 2007
[17] See The Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (1864 Geneva Convention, as hereinafter refereed as Geneva Convention I)
[18] Alberto Costi,the parallax view: a critical history of the origins of the Geneva conventions, Senior Lecturer, Faculty of Law, Victoria University of Wellington; Vice-President, New Zealand, Association for Comparative Law. 11 RJP/NZACL YEARBOOK, 2004
[19] The First Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, held on 22 August 1864.
[20] https://www.history.com/topics/world-war-ii/geneva-convention. Accessed on 19th June 2025 at 11.26 A.M
[21] See Article 6 of the 1864 Geneva Conventions for the Amelioration of the Condition of the Wounded in Armies in the Field, held on 22 August 1864.
[22] Supra, see foot note 14
[23] See article 1 and Article 2 of the 1864 Geneva Convention.
[24] The 1906 Geneva Convention hereinafter refereed as Second Geneva Convention which dealt with Protection of Wounded soldier in the battlefield (war)
[25] The Geneva Convention II of 1906 gave protection of Wounded Armies in the battlefield.
[26] Supra
[27] The Geneva Convention on wounded and sick of 1906
[28] See Article 33 of the 1906 Geneva Convention
[29] The 1929 treatment on Prisoner of War (POW) Convention was signed by 47 governments. Neither Japan nor the Soviet Union assented to it. Japan gave a qualified promise to abide by the Geneva rules in 1942 whereas the Soviet Union announced in 1941 that it would observe the terms of the Convention (IV) respecting the Laws and
Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (18
October 1907). This is found on www.icrc.org. Accessed on 17th August 2020
[30] Article 2 of the 1949 Geneva Convention stipulates that, the Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
[31] The Geneva convention relative to the protection of civilian persons in time of war, which was established on 12 august 1949
[32] Article 16 of the 1949 Geneva Convention The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect. As far as military considerations allow, each Party to the conflict shall facilitate the steps taken to search for the killed and wounded, to assist the shipwrecked and other persons exposed to grave danger, and to protect them against pillage and ill-treatment.
[34] See common Article 3 to the four Geneva Conventions
[35] Supra, Common Article 3 of the Geneva Conventions
[36] Supra
[37] Article 51 (5) of the Additional Protocol I to the Geneva Convention prohibits the indiscriminate attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects
[38] Article 4 of the Geneva Convention of 1949
[39] https://www.icrc.org/en/doc/resources/documents/report/57jpf6.htm. Accessed on 19th June 2025 at 09:20 A.M
[41] Charles Greenwood «The Law of War (International Humanitarian Law)» in M D Evans International Law (OUP, Oxford, 2003) 789, 792793. It was more effective for States to deal with rebels under the provisions of criminal law than giving them the status (and benefits) of POW.
[42] See Article 4 of the Additional protocol I to the Convention. Also see Article 7 of the Additional protocol II to the Geneva Convention relating to the protection of victims of non-international armed conflicts of 1977
[43] Ibid
[44] Additional protocol I to the Geneva Conventions of 12 August 1949, related to the Protection of Victims of International Armed Conflicts in 1977. Whereas the Additional protocol II to the Geneva Convention of 12 August 1949, related to the Protection of Victims of Non-International Armed Conflicts.
[45] Supra, the 1949 Geneva Convention
[46] Alberto Costi, the parallax view: a critical history of the origins of the Geneva conventions, Faculty of Law, Victoria University of Wellington; 11 RJP/NZACL YEARBOOK 2004
[47] Supra, see footnote No. 39
[48] The Vietnam war occurred from 1955 to 1975, and termed as Vietnam resistance to Americans and caused division in the international community which thus lead to the draft of additional protocols to the Geneva Convention of 1949 as to restore the International Humanitarian law which seemed was in dismay
[49] C. Greenwood «Customary Law Status of the 1977 Geneva Protocols» in A J M Delissen and G J Tanja (eds) Humanitarian Law of Armed Conflict. Challenges Ahead (Nijhoff, Dordrecht, 1995.
[50] Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) (1995) ICTY).
[51] The UN security council established an international criminal tribunal for the former Yugoslavia to probe and put into trial of the perpetrator of Genocide and crime against humanity committed to Bosniak Muslim and other ethnic tribe from Serbia
[52] Supra
[53] Article 1 of Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict 2000
[54] VB Geraldine, The International Law on the Rights of the Child. (Mauritius; Kluwer Academic Publishers, 1995)
[55] Article 4(2) of Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict
Information about the author:
Festo Lucian Chikungua, PhD Candidate, RUDN-University-Moscow
Информация об авторе:
Фесто Луциан Чикунгуа, кандидат юридических наук, Российский университет дружбы народов (г. Москва)
