CYIL vol. 12 (2021)

peter klanduch CYIL 12 (2021) some weapons might be used by children. Children join armed groups for different reasons. Some might just be excited about belonging somewhere or the relative power and influence they can gain. On the other hand, there are child soldiers for whom this was the least bad option of available alternatives in a difficult environment. 38 This phenomenon was particularly characteristic for the conflict in Sierra Leone. The Special Court for Sierra Leone had an important role in enunciating the customary international law status of the prohibition on child soldiering. 39 Furthermore, in every judgment of the tribunal the defendant was found guilty of at least one charge of recruiting and using child soldiers. 40 The IHL regulation of the recruitment and use of children in hostilities can be found in the Geneva Convention IV in the provision setting out the obligation of an occupying power 41 and in the Additional Protocol I and the Additional Protocol II under the rubrics “Protection of children” and “Fundamental guarantees,” respectively. 42 Some authors remind us that recruitment which comprises both conscription and enlistment is of an entirely different nature compared to use. While “recruitment” relates to how a child becomes associated with armed forces or an armed group, “use” is linked to the way how the child is utilized in combat. A child may be recruited without being used later as well as being used without having been recruited before. 43 There is an ongoing discussion about the age limit applicable to the protection of children against the recruitment and use in hostilities. While there is a broad consensus that the protective shield of IHL apply to children under the age of 15, the situation regarding individuals at the age between 15 and 18 is not so clear. It is worth mentioning that Article 38 of the CRC is the only provision of the Convention which narrows the protection to persons under the age of 15. In general, the CRC is applicable to every human being below the age of 18 “unless, under the law applicable to the child, majority is attained earlier.” 44 The Optional Protocol to the CRC on the involvement of children in armed conflict (OPAC) distinguishes between armed forces of a state and armed groups. The OPAC extends the protection to the category of children between 15 and 18 who cannot be compulsorily recruited either to armed forces or armed groups. However, it allows voluntary recruitment to state armed forces while setting an obligation of States Parties to raise the minimum age for voluntary recruitment above 15. On the other hand, the OPAC bans the direct participation in combat of children who have not attained the age of 18 years. 45 Unlike OPAC, the Rome Statute provides protection only to children under the age of 15. The Statute does not use the term “recruitment” and instead qualifies “conscripting or 38 Fatima, Protecting Children , p. 175. 39 Amann, Diane Marie, “The Policy on Children of the ICC Office of the Prosecutor: Toward greater accountability for crimes against and affecting children,” International Review of the Red Cross 101, no. 911 (2019): 539.

40 Fatima, Protecting Children , p. 221. 41 Geneva Convention IV, Article 50. 42 Additional Protocol I, Article 77(2); Additional Protocol II, Article 4(3)(c).

43 Sivakumaran, Sandesh, “War Crimes before the Special Court for Sierra Leone. Child Soldiers, Hostages, Peacekeepers and Collective Punishments,” Journal of International Criminal Justice 8, no. 4 (2010): 1012. 44 Convention on the Rights of the Child, Article 1. 45 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 25 May 2000, 2173 UNTS 222.

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