Mind the Gap: Child Soldiers and the Law of Targeting

By Roughley, Charmaine | Australian International Law Journal, Annual 2017 | Go to article overview

Mind the Gap: Child Soldiers and the Law of Targeting


Roughley, Charmaine, Australian International Law Journal


I Introduction

"[A] crucial measure of our civilization must be about its human and
humane quality. And above all it has to do with how we treat the most
innocent and most vulnerable members of our community, those who
represent the future of our society, our children."
Olara Otunnu (1)
Former United Nations Special Representative for Children and Armed
Conflict

Children are widely protected in international law, with one key exception--the law of targeting. International Humanitarian Law (IHL), which governs the law of armed conflict, specifically protects children from recruitment as soldiers (2) and guarantees children special treatment once they have ceased to participate in hostilities. (3) However, between these phases, there exists a distinct gap in the law. If a child directly participates in hostilities, the law of targeting will not distinguish between that child soldier and their adult counterparts. This paper explores this gap and argues that child soldiers must be treated differently from, and afforded greater protection than, their adult counterparts in the law of targeting.

In the context of child soldiers, IHL's focus is on banning the recruitment of children to serve in armed forces, as enunciated in the 1977 Additional Protocols. (4) However, the recruitment and use of child soldiers has dramatically increased in the 39 years since their adoption. (5) Child soldiers serve in approximately 75 percent of all current armed conflicts (6) and 80 percent of those children are younger than 15 years of age. (7) Almost a quarter of armed organisations use children under the age of 15 in combat roles, (8) with 300 000 children estimated to be currently serving as child soldiers, (9) making up almost 10 percent of all combatants. (10) However, this figure may only represent the 'low end of the likely total'. (11) Despite these developments IHL, and more specifically, the law of targeting, has failed to adapt. Conversely, human rights law has continued to exponentially develop and expand the protection of children in international law. (12) These developments demand that IHL adapts to recognise the plight of the modern child soldier and bring the law of targeting into the 21st century.

Part I of this paper explains the law of targeting in its current formulation and its application to child soldiers. Part I concludes that despite arguments to the contrary, child soldiers remain targetable, akin to their adult counterparts. Part II of this paper explores the fundamental tension between military necessity and humanity in IHL. It explains why considerations of humanity demand greater protection of child soldiers. The paper goes on to consider the compatibility of this greater protection with military necessity, concluding that in the law of targeting, the balance between military necessity and humanity is currently skewed in favour of military necessity. To remedy that balance, this paper proposes two additions to the law of targeting limiting the circumstances in which a child is targetable. Recognising the need for any change to IHL and the law of targeting to be pragmatic, Part III tests the practicality of the proposals in four distinct case studies and examines the potential shortcomings of these proposals. Despite these considerations, this paper contends that these changes are a necessary addition to IHL in order to strike a more appropriate balance between considerations of humanity and military necessity.

II The Protection and Targeting of Child Soldiers Under IHL

A. Introduction

The term 'child soldier' is not defined by treaty and there is no consensus regarding the meaning or extent of childhood in international law. Various international conventions define the end of childhood as anywhere between 15 and 18 years. (13) In this thesis, 'child soldier' is used in a broad, non-technical sense to refer to children under the age of 15 (14) who are 'part of any kind of regular or irregular armed force or armed group in any capacity'. …

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