09 Oct
Written by 

Active Participation of Children in Hostilities

Despite the fact that there is no any particular armed conflict and civil unrest in Ethiopia, it’s becoming common to see persons under the age of 15 carrying a gun in different parts of the country. Although these pictures has been looked as fun by so many people, it becomes more serious when the children carrying the gun used some flags and have some connection with organized groups and parties in the country. Based on this assessment, there is a worry that in any case of an armed struggle or any kind of hostilities there would be some kind of resentment to use those children under the age of 15 to actively participate in situations of conflicts. Thus, the following short legal analysis is made to inform any concerned party about the legal ramification of their activity in using children under the age of 15 to execute their military or any hostility related missions.

  1. Protection of a Child under International law

Children have an ultimate protection under international law. Particularly, International humanitarian law provides broad protection for children. Given the particular vulnerability of children, the Geneva Conventions of 1949 and their Additional Protocols of 1977 (API and APII) lay down a series of rules according them special protection. The Additional Protocols, the 1989 Convention on the rights of the child and its recent Optional Protocol, in particular, also set limits on children's participation in hostilities.

The 1989 Convention on the rights of the child, which has been almost universally ratified, covers all the fundamental rights of the child. Article 38 extends the field of application of Art. 77 API to non-international armed conflict. Article 38 urges States Parties to take all feasible measures to ensure that those aged of less than 15 years do not take a direct part in hostilities (para. 2) and that priority be given in recruitment to the oldest of those aged between 15 and 18 (para. 3).

In addition to this, the Optional Protocol on the involvement of children in armed conflict, adopted on 25 May 2000 extends the following basic protections for children under the age of 15.

  • the States Parties must take all feasible measures to ensure that members of their armed forces who have not reached the age of 18 years do not take direct part in hostilities (Art. 1);
  • Compulsory recruitment into the armed forces of persons under 18 years of age is prohibited (Art. 2);
  • The States Parties shall rise the minimum age for voluntary recruitment from 15 years.
  • Armed groups distinct from the national armed forces should not, under any circumstances, recruit (whether on a compulsory or voluntary basis) or use in hostilities persons under the age of 18 years, and the States Parties must take legal measures to prohibit and criminalize such practices (Art. 4).

Particularly, the fourth point has a direct concern in the case at hand. If there is any armed group in the country different from the national armed forces this armed group is prohibited in any circumstances from using persons under the age of 18 in hostilities. In addition, the government is obliged to take measures to prohibit and criminalize such practices.

Furthermore,   the Statute, adopted in Rome on 17 July 1998 (the Statue of International Criminal Court), includes in its list of war crimes within the Court's jurisdiction the active involvement in hostilities of children under 15 or their recruitment into national armed forces during an international armed conflict (Art. 8, para. 2b [xxvi]) or into the national armed forces or other armed groups during a non-international armed conflict (Art. 8, para. 2e [vii]).

According to the principle of complementarity, the Court has jurisdiction in situations where a State is unable or unwilling to prosecute. In order to take advantage of this principle and to ensure repression at the national level, States should adopt legislation enabling them to prosecute the perpetrators of such crimes.

Generally, the protection accorded for children under the age of 15 from directly participating in hostilities have an absolute acceptance under international law. Due to this fact, the rules related to the protection of children from taking part in hostilities have attained the status of international customary law. In accordance with the ICRC study on international customary law, the protection of children under the age of 15 has listed under rule 137. This means, any state, armed group within a state and any other entity in the world has an obligation to respect the rules enshrined under international conventions. There is also an international jurisprudence concerning the case. For instance, the international criminal court has entertaining cases related to active participation of children in hostilities in the Lubanga case, Katanga Case and Ntaganda case. Thus, using children under the age of 15 during armed struggle is considered as a violation of international law and will instigate the prosecution of persons committed the act as war crimes.

  1. Ethiopian law on the protection of children under the age of 15

To begin with, Ethiopia is state party to the Geneva conventions and its 1977 additional protocols. Ethiopia has signed the 1989 Convention on the rights of the child. Thus, Ethiopia is bound by all those international conventions concerning the right of the child and its protection accorded to the child in situation of hostilities. In accordance with article 9(4) of the FDRE Constitution, all international agreements ratified by Ethiopia are an integral part of the law of the land. Therefore, every citizen, government, armed forces and any other entity in the country have an obligation to respect and ensure the respect of international instruments concerning the right of the child in the country.

Furthermore, despite the fact that the 2004 criminal code does not entertain the participation of children under the age of 15 in hostilities there are provision which can ensure those aged of less than 15 years do not take a direct part in hostilities. Accordingly, as provided under article 276 of our Criminal Code, whoever uses, or orders to be used, against the enemy any means or method of combat expressly forbidden by Ethiopian law or international conventions to which Ethiopia is a party is punishable. Thus, as we have seen it in the first part, all international conventions ratified by Ethiopia in relation to the right of the child prohibit the use of the child in situations of hostilities and they criminalize the act in cases of any contravention. Thus, on the basis of this particular law or in accordance with the principle of universal jurisdiction, any Ethiopian court can prosecute any person who is involved in such activities.

Conclusion

The fate of any country in the world is determined on what we taught to the children. Thus, every impression that we make on the child molds the future of the country. Based on this assumption, dozens on international conventions in relation to the right of the child has been ratified. Ethiopia has signed many of those international conventions and bound by it in all circumstances. The recurring pictures showing children under the age of 15 carrying a gun with different political ideology flags are creating some threat on the right of the child and their protection from participating in hostilities. Thus, every citizen, government, non-governmental armed groups and any other entity in the country should aware of the fact that using children under the age of 15 is a grave breach of international criminal law and will cause a prosecution of the wrongdoer by war crime. In addition, the government has a primary obligation to take measures against any individual or armed group who is recruiting children under the age of 15 for military activities.

Last modified on Tuesday, 09 October 2018 12:03
Nigussie Redae

The blogger is an associate Attorney at Semaw Nigatu Law Office.