Human Rights

Child soldiers are the victims of horrific war crimes under international law

SuhasaniRao-Kashyap.jpgThe history of the presence of children in armed conflict is as old as human civilisation. From Ancient Greece to the Middle Ages in Western Europe, children as young as ten have been actively conscripted into armies. They have been present in armed conflict in three roles — as baggage, that is, as members of families that tagged along with armed forces on military campaigns; as providers of services to armed forces in various capacities such as cooks, charioteers, and servants; and lastly, as direct participants in hostilities. Whether participants in armed conflict or just suffering its effects, children are the victims.

Why are children drawn into armed conflicts? To start with, they are very obedient. They are docile and do not question orders. Fear induced by threats of abuse and physical and sexual intimidation works far is far more effective on young and impressionable minds. More disturbingly, child soldiers are often drugged to create dependency-induced obedience. Children also need less food. With modern lightweight weaponry, children can also be armed to the teeth and require far less training than adults. The most soul-wrenching aspect of this evil however, is that children do not have a developed sense of morality. Morality is a product of conditioning and development. Children deprived of circumstances that provide this very necessary moral compass can be moulded into ruthless killing machines, remorseless and empty of guilt. Using children in armed conflict is unfortunately, a very profitable exercise.

Image above is from Wikimedia Commons and has been published under a Free Art License.
Image above is from Wikimedia Commons and has been published under a Free Art License.

Modern international law prohibits the presence of children in armed hostilities. Since the Second World War, humanitarian law and the law of armed conflict have evolved constantly to provide greater protection to the most vulnerable and most affected members of society during war.

Today, it is generally accepted that children are not to be recruited into armed forces for any reason. However, international law remains divided on the issue of who exactly a child is.

On one hand, the First Additional Protocol to the four Geneva Conventions of 1949, at Article 77 (2), applicable to international armed conflict states:

“The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them 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, the Parties to the conflict shall endeavour to give priority to those who are oldest.”

Similarly, the Second Additional Protocol to the Geneva Conventions, at Article 4 (3) (applicable to non-international armed conflicts), states:

Children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities”.

These Protocols, read with the four Geneva Conventions, form the core of modern international humanitarian law.

Apart from humanitarian law, the prohibition on the conscription of children below the age of fifteen has also found distinct mention in international criminal law. The Rome Statute that governs the ICC, at Article 8(2)(b)(xxvi), regards “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities” as a war crime.

The African Charter on the Rights and Welfare of the Child, at Article 2, on the other hand, unequivocally defines a child as “every human being below the age of 18”. At Article 22(2), it clearly mandates State Parties to ensure that children do not participate in armed hostilities. Further, children cannot be recruited into armed forces.

In 2007, under the aegis of UNICEF, seventy-six member countries adopted the Paris Principles and Guidelines on Children Associated with Armed Conflict or Armed Groups. At Principle 2, a child is defined as “any person less than 18 years of age”. This is in keeping with the United Nations Convention on the Rights’ of the Child that entered into force in 1990. At the outset, in Article 1, the Convention defines a child as one who has not attained the age of eighteen or the age of majority under the law to which the child is subject.

As is evident, international opinion is divided on the age at which children achieve majority. In spite of these differences however, it can be said that it is now a principle of customary international law that children must not be recruited into armed forces and must not be permitted to participate in hostilities – directly or indirectly.

A child in a rebel camp in the Central African Republic. Image above is from Wikimedia Commons and has been published under a CC BY-SA 2.0 license.
A child in a rebel camp in the Central African Republic. Image above is from Wikimedia Commons and has been published under a CC BY-SA 2.0 license.

The past three years have seen a resurgence of public interest in the involvement of children in armed hostilities. On July 10, 2012, Thomas Lubanga Dyilo became the first person to be convicted by the International Criminal Court (“ICC”) for war crimes, crimes against humanity, and the conscription of child soldiers in armed conflict. He is serving the last eight years of his fourteen-year sentence.

Last year, a short film based on child soldiers and the hostilities in Uganda created ripples in the international online community. It brought to light Uganda’s Joseph Kony and his Lord’s Resistance Army.

In 2009, Human Rights Watch published its Global Report on the situation of child soldiers. You can read more about it here. Similarly, UNICEF publishes an annual Fact Sheet on the phenomenon, and tracks governmental response to the situation across the world. Interestingly, it is Burma (Myanmar) that seems to have the largest number of child soldiers – about 70,000 of them in its army of almost 350,000 members.

Most recently, the Appeals Chamber of the Special Court of Sierra Leone upheld the conviction of Charles Ghankay Taylor of Liberia on eleven counts of war crimes, crimes against humanity, and other violations of international law, including the use of child soldiers in armed conflict. Charles Taylor was one of the first leaders of armed forces in Africa to not only conscript children (mostly between the ages of five and seventeen) but to have dedicated armed Small Boys’ Units and Small Girls’ Units in his army.

Under international humanitarian law and international criminal law today, child soldiers are not seen as perpetrators of war crimes but as the victims of the most heinous of such crimes. While the international community debates the exact definition of a child, these young ones suffer in the midst of some horrific armed hostilities.

(Suhasini Rao-Kashyap is part of the faculty on

Human Rights International Law

CAT out of the bag?

The Rajya Sabha recently referred the Prevention of Torture Bill, 2010 (“the Bill”) to a Select Committee of Parliament. The ostensible purpose of this Bill is to bring the Indian law into compliance with the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the CAT”), which India signed in 1997. The preamble of the Bill unambiguously notes that India is a signatory to the CAT, and that it is ‘necessary to ratify the said convention and to provide for more effective implementation’. What is surprising then, is the gaping discrepancy between the provisions of the Bill and the CAT. The structure of the Bill overall condones torture more than penalising it, and calling it the “Prevention of Torture Bill, 2010” seems rather ironic. This article will concentrate on the most basic difference between the two instruments: how the definition of torture contained in the Bill is narrow and fails to capture a lot of conduct that the CAT considers ‘torture’.

The Bill defines and punishes torture in clauses 3 and 4. A combined reading of these clauses suggests that a person will only be punished for torture under this definition if (i) they are a public servant, or have been abetted by a public servant, or have the acquiescence of a public servant, and (ii) commits an act that either causes grievous hurt, or causes mental or physical danger to the life, limb or health of the victim, and (iii) commits this act with the intention of extorting information or a confession which may lead to the detection of an offence or misconduct, and (iv) does so on some discriminatory ground. All four grounds must be satisfied before someone can be punished for torture under the Bill. This does not comply with the CAT for several reasons.

First, clause 3 read with clause 4 of the Bill indicates that only the person who actually committed the act of torture may be punished. A public servant who abets, consents, acquiesces, or conspires in an act of torture cannot be punished under the Bill. This does not comply with article 4 (1) of the CAT, which requires state parties to criminalise attempt, participation, and complicity in torture.

Second, the Bill only punishes acts that intend to extort information, or a confession that may lead to the detection of an offence or misconduct, and are done with some discriminatory purpose. The definition of torture under the CAT, however, delineates four purposes for torture. These are (i) obtaining information or a confession from the victim or a third person; (ii) punishment for an act the victim has committed or is suspected of having committed; (iii) intimidation or coercion; or (iv) discrimination of any kind. The formulation in the Bill ignores the second and third factors, and only punishes if the first and last factors are found simultaneously. Thus, if, as an example, grievous hurt by a public official for purely discriminatory purposes is not torture under the Bill, but is so under the CAT.

Third, clause 3 of the Bill defines acts that are committed with the intention of extorting information or a confession as torture. However, clause 4 (the punishment section) only punishes acts that intend to extort information or a confession that may lead to the detection of an offence or misconduct, and are done with some discriminatory purpose. Thus, many acts that amount to torture under clause 3 are not punished under clause 4. For example, grievous hurt caused by a public official to extort information that is not caused with a discriminatory purpose will not amount to a punishable act under clause 4. This inconsistency violates article 4(1) of the CAT, according to which each state must ensure that all acts of torture are offences under its criminal law. If an act is defined as torture but not punished, it would clearly violate this provision.

While the Bill does not comply with the CAT for many other reasons as well, the most startling fact that that it employs an understanding of torture that is far more restrictive than that the CAT mandates, while at the same time trying to comply with the CAT. The gap between the CAT and the Bill becomes more glaring when we examine the jurisprudence and development around the CAT internationally and in other national jurisdictions. It is therefore essential that the Bill’s definition of torture to be amended if the Indian state intends to realistically comply with the CAT.

(Sanhita Ambast writes on international law and international relations.)

International Law

India and the new aggression – Part 1

Sanhita Ambast writes about international law and international relations.Map Reproduction Courtesy of the Norman B. Leventhal Map Center at the Boston Public Library.

Map Reproduction Courtesy of the Norman B. Leventhal Map Center at the Boston Public Library.

An extremely interesting enquiry today is the Indian state’s engagement with international law. Despite its growing stature in the international community, India is still not signatory to several important international instruments and does not implement several other treaties that it is signatory to. This exceptionalism warrants examination, especially when India’s oft-stated reason for not signing and complying with international law is the regime’s inherent politicisation and prevalent hypocrisy. The contest between international law and international politics is not new, and recent developments – from the war against Iraq to the failure of the Bashir arrest warrants – raise the following crucial question: is there really an international law distinct from international politics?

I hope to explore both these questions –of India’s engagement with international law and of the line between international law and politics – in a series of pieces dedicated to the result of the recent Review Conference on the Rome Statute of the International Criminal Court (ICC) which took place in Kampala, Uganda earlier this year. Here the international community, by consensus, adopted a definition for the crime of aggression and agreed to a plan for its implementation. Resultant notable amendments to the Rome Statute include the definition of a ‘crime of aggression’ being linked to an ‘act of aggression … constituting a manifest violation of the United Nations Charter’ [article 8 bis]; the ability of the ICC to prosecute aggression independent of the Security Council in certain circumstances [article 15 bis]; more leeway to states in terms of accepting ICC jurisdiction and an increased role for the prosecutor.

It is interesting that that these amendments impact India’s four reasons for not signing the Rome Statute, which are explained here. First¸ India has been concerned about the wide range of powers conferred on the Security Council in the Rome Statute and the control a political body will exercise on what should be a purely legal process. This, prior to the Review Conference, included the Security Council’s monopoly over acts of aggression and article 16 of the Rome Statute (which allows the Security Council to delay ICC prosecutions indefinitely). Second, India is opposed to certain crimes under the jurisdiction of the Rome Statute – in 1998, the Rome Statute did not criminalise the use of nuclear weapons and other weapons of mass destruction. Furthermore, crimes against humanity and war crimes were defined too broadly for India’s liking and included ‘internal’ matters that should fall within the ‘domestic’ jurisdiction of states. Linked to this is India’s third objection to the Rome Statute, the idea of complimentarity and the jurisdiction of the ICC to decide when a country was ‘able and willing’ to prosecute (article 17, Rome Statute). And finally, India is suspicious about the strength of the office of the prosecutor as this power may be used in a politically motivated, arbitrary and unfair manner.

While I shall address the various impacts of the Kampala amendments in subsequent pieces, the same broad argument will run through all of them. The landscape of public international law, international humanitarian law, and international criminal law has evolved in the past decade. As a result, many of India’s concerns regarding the ICC have changed, have become irrelevant, or would be better served by engagement not boycott. This is not to say that India must sign the Rome Statute. Instead, the recent amendment to the Rome Statute, read with legal developments in the past decade, provides an important opportunity for India to reassess its policy towards the ICC, attempt reframing its objections in a more contemporary language, and consider engaging more actively with it.