The Protection of Children Against Recruitment and Participation in Hostilities: International Humanitarian Law and Human Rights Law as Complementary Legal Frameworks

Abstract

This paper argues that although tensions exist between the perspective of international humanitarian law and human rights thinking, in general a coherent body of law has emerged to regulate children’s recruitment and participation in hostilities. The fragmentation arising out a plethora of treaties on the subject has been ameliorated by nearly all States’ adhesion to the Convention on the Rights of the Child and by the promulgation of general standards by the Security Council and its Working Group on Children and Armed Conflict. One might consider that those rules set too low an age or are too narrow in their scope. However, the first criticism complains about a lack of political will, not a legal failure. And in response to the second there has been a widening of the prohibition of under-15s' use to participate in hostilities, albeit in a manner open to legal critique. Moreover, there is increasing international action to enforce the rules, most publicly through the work of the International Criminal Court; more consistently and effectively through that of the Security Council’s Working Group.

Keywords: Children and armed conflict, international humanitarian law, international human rights law, international criminal law, fragmentation of international law, the International Criminal Court, the Security Council, the Security Council’s Working Group on Children and Armed Conflict

JEL Classification: K33