Abstract

Keywords

Armed conflict; child soldiering; international humanitarian law; international human rights law; lex specialis; International Court of Justice.

……………………………………………………….

1 Introduction

The concept of "child soldiers" gained prominence in the late 1900s. 1

* Nikita Govender. LLB (cum laude) (NMU) LLM (cum laude) (NMU). nGAP Lecturer, North-West University, Potchefstroom Campus, South Africa. E-mail: Niki.Govender@nwu.ac.za. ORCiD: https://orcid.org/0000-0002-4022-0062. This paper is based on an unpublished master's dissertation by the author titled Domestication of the International-Law Prohibition on Child Soldiering, Nelson Mandela University (2020).

1 Williams War and Conflict in Africa 7; Máusse and Nina 1999 https://www.africaportal.org/publications/child-soldiers-in-southern-africa 6; Bennett Using Children in Armed Conflict 1-6.

Preventative and prohibitive norms aimed at curbing child soldiering have developed in terms of international humanitarian law (IHL) and international human rights law (IHRL). By international law standards in general, child soldiering entails persons under the age of eighteen or fifteen years who directly, indirectly, or actively participate in armed conflict, whether of an international or non-international character. 6

6 See Art 77 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (1977) (Protocol I); Art 4 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (1977) (Protocol II).

The use, recruitment, and conscription of children in armed conflict nonetheless continues as noted by the International Committee of the Red Cross (ICRC):

Participation by children in armed hostilities occurs too frequently. This participation may range from aiding combatants (bringing them weapons and munitions, carrying out reconnaissance missions, etc.) to the actual recruitment of children as combatants in national armed forces and other armed groups. 8

8 ICRC 2003 https://www.icrc.org/en/document/legal-protection-children-armed-conflict-factsheet 1.

The conduct of modern-day armed conflict is characterised by urban warfare and has colloquially been termed as "wars in cities". 9

9 ICRC 2017 https://www.icrc.org/en/document/war-cities-towards-holistic-response.

International law has witnessed significant legal developments concerning children and their participation in armed conflict. However, four core elements in the existing IHL and IHRL normative systems are identified in this article as unduly prejudicing children in armed conflict, as it appears to inadvertently perpetuate child soldiering. These core elements include: (1) the definition of a child; 17

17 Article 50 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949) (Geneva Convention IV); Art 77(2) of Protocol I; Art 4(3) of Protocol II; Art 2 of the African Charter on the Rights and Welfare of the Child (1990) (the African Charter); Arts 1 and 38 of the United Nations Convention on the Rights of the Child (1989) (the CRC); Art 1 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000) (the Optional Protocol); Art 2 of the ILO Convention 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (1999) (ILO Convention 182).

(3) the nature of child participation in armed conflict; 19

19 Article 77 of Protocol I; Art 4(3)(c) of Protocol II; Art 22(2) of the African Charter; Art 38(2) of the CRC; Arts 1-4 of the Optional Protocol.

It is submitted that these elements subsequently establish a disjunct between IHL standards and IHRL standards and collectively creates an emerging genus of children who are only deemed "children" for certain purposes and under certain circumstances. 21

21 See Art 77 of Protocol I; Art 4 of Protocol II.

In light hereof, the article contemplates a novel approach in identifying why children continue to be used and recruited in armed conflict notwithstanding international proscription therefor. The article considers whether it is in fact the inconsistent IHL and IHRL standards respectively, which contribute to ongoing global child soldiering. In reality, the gravity of this legal conundrum entails that states may be faced with the dilemma of applying inconsistent international standards. This will be the on the ground reality unless states domesticate or enforce their international obligations in such a way as to establish coherency in their national law, notwithstanding their conflicting international obligations.

As global child soldiering continues to foster in armed conflict, 22

22 UNGA and UNSC Children and Armed Conflict: Report of the Secretary-General UN Doc A/76/871-S/2022/493 (2022) 1.

In light hereof, the article proposes a conservative yet functional means by which the lex specialis may be interpreted and applied in armed conflict. This will ensure, not only in regard to international child soldiering norms, but in any inconsistency between the respective normative systems of IHL and IHRL – that the approach adopted is rooted simultaneously in the promotion of human rights and the protection of civilians in armed conflict. The authority upon which this approach is suggested finds itself in the jurisprudence of the International Court of Justice (ICJ).

As a point of departure, the IHL and IHRL normative systems will be systematically analysed in terms of the proscriptive provisions relating to children and their participation in armed conflict. Secondly, the four core elements in the IHL and IHRL norms identified in this article as unduly prejudicing children is considered in terms of the historical and political climate under which they were adopted. Thirdly, the jurisprudence of the ICJ will be used as an authoritative support for the proposed interpretation and application of the lex specialis principle, specifically in respect of children and their participation in armed conflict. The final section of this article offers a conclusion and summary remarks.

2 Geneva Convention IV

The Geneva Conventions purport to protect the interests of certain categories of persons primarily 25

25 But for Common Art 3 pertaining to non-international armed conflicts.

Article 50 of Geneva Convention IV is the only provision that addresses the "enlistment" of children. 27

27 Article 50 of Geneva Convention IV.

views to this issue exist and no guidance is provided by the Commentary 32

32 Pictet Commentary on the Geneva Conventions.

Overall, Article 50 provides vague and little protection to children. It remains disjunctive from the issue of child soldiering in four respects, namely that (1) protection is limited to situations of occupation; (2) protection is only afforded from occupying powers; (3) protection is accordingly limited to IACs; and (4) a lack of uniformity exists regarding the term "children".

The issue remains unresolved; however, it is suggested that in light of the principle of the best interests of the child, the definition should include all persons below the age of eighteen years. For years states have regarded children as persons under the age of eighteen years, 34

34 Mann 1987 ICLQ 42.

3 The Additional Protocols

The development of child soldiering norms in armed conflict only emerged upon the adoption of the two Additional Protocols to the Geneva Conventions in 1977. 36

36 Protocol I and Protocol II.

3.1 Protocol I

Article 77 of Protocol I introduces a prohibition on the use and recruitment of children under the age of fifteen years into state armed forces. 41

41 Article 77(2) of Protocol I.

3.2 Protocol II

Article 4 of Protocol II addresses child soldiering in NIACs and introduces a prohibition on the use and recruitment of children under the age of fifteen years. 47

47 Article 4(3)(c) of Protocol II.

3.3 Protocol I versus Protocol II

As Article 4 of Protocol II provides that children under the age of fifteen years shall not be allowed to partake in hostilities, it establishes the first inconsistency between the two Protocols. Protocol I limits the prohibition of

children partaking in hostilities to "direct participation" whereas Protocol II tacitly extends the prohibition to include any form of participation as the word "direct" was omitted. This suggests that in an IAC, where children under the age of fifteen years are participating in hostilities but not directly, their participation is not prohibited. However, although Protocol II seemingly provides more protection for children, a second inconsistency between the two Protocols must be noted: Protocol II does not include the priority rule in its provisions. Thus, in a NIAC, children aged between fifteen and eighteen years who are recruited into armed groups or forces are left without legal protection.

Protection for children aged between fifteen and eighteen years is only provided in the form of the priority rule, which applies in IACs only. During the drafting stages of the Protocols, the inclusion of the priority rule in both Protocols was intended to constitute a compromise. 52

52 Mann 1987 ICLQ 42.

The Additional Protocols are certainly not without criticism for the weakness of its child soldiering provisions. However, to criticise these provisions without understanding why they had been adopted so is futile. The inconsistencies identified above require examination in light of their teleological development.

3.4 Draft text: Protocol I

After considering the initial wording of both Protocols as stated in the Draft Additional Protocols to the Geneva Conventions, 57

57 ICRC 1973 https://www.loc.gov/item/2011525430/.

The Parties to the conflict shall take all necessary measures in order that children under fifteen years shall not take any part in hostilities and, in

particular, they shall refrain from recruiting them in their armed forces or accepting their voluntary enrolment. 58

58 ICRC 1973 https://www.loc.gov/item/2011525430/ 86.

A systematic analysis of the initial wording of Article 77(2) shall follow in respect of: (1) the definition of a child; (2) the nature of child recruitment or enlistment; (3) the nature of child participation in armed conflict, and (4) the nature of the obligation on states to prevent child soldiering.

3.4.1 All feasible measures versus all necessary measures

The first difference in the wording between the texts is the extent to which the parties to the conflict are required to take measures. In the draft text, parties are required to take "all necessary measures". In the final text, parties are merely required to take "all feasible measures". During the drafting process, it had become apparent that states were disinclined to accept unconditional obligations, such as those which would be imposed by the "all necessary measures" standard. 59

59 ICRC 1987 https://www.loc.gov/item/2011525357/ para 3184.

The adopted is problematic since it is not as onerous as initially intended. In any given situation of armed conflict, where a Party endeavours to take feasible measures, that which is necessary, is not always that which is feasible. Nair avers that it is this shortcoming of the law which renders many children unprotected, which makes it permissible for parties to avoid doing what is necessary to ensure that children do not directly partake in hostilities. 61

61 Nair 2017 Perth ILJ 46.

It is argued that the initial wording, per the draft text, sought to establish a threshold of responsibility more onerous than the final text. For those states failing to adequately give effect to their international obligations, the lowered threshold of responsibility in the final text establishes a loophole. This entails that a state which has taken inadequate measures to prevent children from directly partaking in hostilities may justify such inadequacies as being the "only measures that were feasible at the time".

3.4.2 Direct participation

The second notable difference between the draft and final text of the Protocols relate to the nature of the participation in hostilities by children under the age of fifteen years. Whilst the draft text expressly included "any" form of participation in hostilities, the final text is limited to "direct" participation. During the drafting stages, the ICRC's proposal excluded the term "direct" since it could lead to an interpretation that permits indirect acts of participation. 67

67 ICRC 1987 https://www.loc.gov/item/2011525357/ para 3187.

The question arises as to what type of participation is considered to be "direct". In 2009 the ICRC published an interpretive guideline on the notion of direct participation in hostilities. 70

70 Melzer Interpretive Guidance.

When using this criterion to decide direct participation, consideration must be given to the circumstances which prevail at the time of the determination. More specific to the conduct of child soldiers, in Prosecutor v Charles

Ghankay Taylor 73

73 Prosecutor v Charles Ghankay Taylor SCSL-03-1-T (Judgement Summary) 26 April 2012 (the Taylor case).

Although the jurisprudential guidance by the Special Court for Sierra Leone (SCSL) assists in the determination of "active" participation, it does not speak to what constitutes "direct" participation. Contentious academic discussion has ensued regarding whether "active" participation and "direct" participation are synonymous. International jurisprudence has not provided definitive clarity as the International Criminal Tribunal for Rwanda has held that the respective terms amount to the same standard whereas the International Criminal Court (ICC) has held an opposing view. 81

81 Waschefort International Law and Child Soldiers 63.

Although the answer to this interpretative dilemma is not definitive, the question is whether or not sufficient persuasive value has been afforded by relevant academic opinion, jurisprudence, and soft law to adequately assist in the determination of whether or not conduct amounts to "direct" participation in hostilities. Making this determination is crucial as it indicates which children are protected and which are not, depending on the nature of their participation. It is for this reason that this provision of the final text of

Protocol I has come under scrutiny — had the original draft text been adopted, no such interpretive conundrum would exist.

3.4.3 Voluntary enrolment or recruitment

The third inconsistency between the text of the draft and final protocol lies in the prohibition of the voluntary enrolment of children under the age of fifteen years. This prohibition appears in the draft text but was omitted in the final text. Since it is not expressly prohibited in Article 77 of Protocol I, it does not follow that it is automatically permitted as the Martens clause would have it. According to the draft text, recruiting children under the age of fifteen years is prohibited and so too is accepting the voluntary enrolment of these children. 85

85 ICRC 1973 https://www.loc.gov/item/2011525430/ 86.

Grossman suggests that a prohibition on voluntary enrolment does exist in Article 77 and can be inferred from the prohibition on the "use" of children under the age of fifteen years. 87

87 Grossman Rehabilitation or Revenge 573.

There are three essential differences between the draft text of Protocol I and its final text. All three of which form the basis of contentious academic discourse relating to the wording adopted in this Protocol. The same can be said for Protocol II as the wording in its draft form also differs from the final text adopted.

3.5 Draft text: Protocol II

What is now Article 4(3)(c), was previously Article 32(e) of the draft text, which stated that:

Parties to the conflict shall inter alia: take the necessary measures in order that children under fifteen years of age shall not take any part in hostilities

and, in particular, they shall refrain from recruiting them in armed forces or accepting their voluntary enrolment. 88

88 ICRC 1987 https://www.loc.gov/item/2011525357/ 163.

The final text of Protocol II kept a close relation to its draft text in comparison to Protocol I, albeit slightly amended. As with Protocol I, the final text also did away with the prohibition on the voluntary enrolment of children under the age of fifteen years. 89

89 Article 4(3)(c) of Protocol II.

The question arises as to whether or not armed groups or forces may accept the voluntary enrolment of children under the age of fifteen years since they are not expressly prohibited from doing so. In this regard, the ICRC's Commentary 90

90 ICRC 1987 https://www.loc.gov/item/2011525357/ para 4557.

Overall, the adoption of the two Additional Protocols does little to protect children aged between fifteen and eighteen years albeit for the priority rule. The lacuna in the law in this regard cannot be ignored and should be considered prejudicial towards children and contrary to the principle of the best interests of the child.

3.6 Analysis: final text of the Protocols

The above discourse provides clarity as to why the draft text of the Protocols diverge from their final text and render the latter weaker in its protective value than what had initially been intended.

In respect of participation in hostilities, Protocol II offers more protection than Protocol I. This is since the latter limits participation to "direct" participation whereas the former excludes the distinction between direct and indirect participation. 92

92 Vandewiele Commentary on the UN CRC Optional Protocol 3.

As far as the minimum age limit for participation is concerned, Protocol II did not steer away from the standard established by Protocol I. Fifteen years remains the minimum age limit for both Protocols. The Commentary on the Protocols 94

94 ICRC 1987 https://www.loc.gov/item/2011525357/ para 4557.

However, contradictory national legislation did not allow for this to materialise. 96

96 ICRC 1987 https://www.loc.gov/item/2011525357/ para 4556.

Regarding the threshold of responsibility on the parties to a conflict, the issue of parties not being required to take necessary or feasible measures to ensure that children under the age of fifteen years do not take part in any hostilities cannot be ignored. Regarding Protocol I, "all necessary measures" in the draft text was replaced with "all feasible measures" and the threshold of responsibility on parties to an IAC nevertheless exists, albeit vaguely. Protocol II requires that parties to the conflict merely "take measures" to comply with its corresponding obligation. Whether the parties are under an obligation to take all "necessary measures" or to take all "feasible measures" to comply with the obligation remains uncertain.

As the norms developed in terms of IHL for IACs and NIACs in terms of child soldiering are not without shortcomings, they also do not exist in a vacuum. Other branches of international law like custom and IHRL have also developed proscriptive norms.

4 Customary international law

Customary international law (CIL) is accepted as one of the main sources of international law comprising of state practice and opinio juris. 98

98 Schlutter Developments in Customary International Law 15.

The ICRC published the Study of Customary International Humanitarian Law (hereafter the Study) which comprises of rules of IHL, which are deemed to have acquired customary status. 102

102 Henckaerts and Doswald-Beck Customary International Humanitarian Law XV.

hostilities. 103

103 Henckaerts and Doswald-Beck Customary International Humanitarian Law 482-488.

Where states are not a party to the international instruments regulating child soldiering, the CIL provisions find application. Contextualising this into reality entails that the recruitment of children aged between fifteen and eighteen years into armed forces or groups is not prohibited. These children may also participate in hostilities, and it will not constitute a war crime in IACs nor NIACs. It is contended that shortcomings of CIL establish their own legal issues of noteworthy concern. However, for the purposes of this article, it is stated merely to acknowledge the potential of CIL to also contribute to the use and recruitment of children in armed conflict.

5 International human rights law

IHRL is the branch of international law that binds states as opposed to individuals. 108

108 Shaw International Law 1.

IHRL norms relative to child soldering only began to develop towards the latter part of the 1900s, after the adoption of the Geneva Conventions and their two Additional Protocols. Until 1990, the human rights law instruments 112

112 In terms of the League of Nations Geneva Declaration of the Rights of the Child (1924); UNGA Declaration on the Rights of the Child (1959); UNGA Declaration on

the issue of children partaking in armed conflict. This later began to change as the need for the development of these norms emerged both on the regional and international sphere.

5.1 The African Charter on the Rights and Welfare of the Child

With specific reference to regional treaty law, the African Charter on the Rights and Welfare of the Child 113

113 African Charter on the Rights and Welfare of the Child (1990).

Albeit an instrument of IHRL, Article 22 regulates armed conflicts insofar as children are concerned. 116

116 Article 22 of the African Charter.

Overall, the Charter is a significant legal development since it is not only the first but also the only instrument, albeit regional, to afford children greater protection, particularly when they fall victim to armed conflict. 120

120 The European Union (EU) developed the EU Guidelines on Children and Armed Conflict which purports to consolidate regional efforts to address the short, medium, and long-term effects of armed conflict on children. However, these guidelines are not legally binding and do not address the issue of the age of "children". Furthermore, notwithstanding the European Convention on the Exercise of Children's Rights coming into force in 2000, this legally binding regional instrument does not make reference to children in armed conflict at all; European Union Guidelines on Children and Armed Conflict (2007); European Convention on the Exercise of Children's Rights (2010).

they are required to take all necessary measures to prevent participation and recruitment. This article submits that the African Charter on the Rights and Welfare of the Child establishes a standard of protection for children in armed conflict, unachieved by IHL.

5.2 The United Nations Convention on the Rights of the Child

The UN Convention on the Rights of the Child (the CRC) 121

121 United Nations Convention on the Rights of the Child (1989) (the CRC).

The CRC requires all state parties to respect and ensure respect for IHL that pertains to children. 126

126 Article 38(1) of the CRC.

Since Article 38 specifically regulates armed conflicts, it is said to be rather exceptional as it brings together two branches of international law, which are traditionally dealt with as separate legal regimes. 130

130 Ang Commentary on the UN CRC 3.

During the drafting stages of the CRC, the Working Group received overwhelming support from states and civil society for a more comprehensive and clear-cut Article 38. 132

132 OHCHR Legislative History of the Convention on the Rights of the Child para 84.

age limit. The adoption of the CRC had initially created the necessary platform for IHRL to afford greater protection to children during armed conflict (as opposed to IHL). However, at a global standard, this did not materialise as the contention surrounding the "eighteen years standard" was incontrovertible during the drafting and deliberation stages of the CRC. 134

134 OHCHR Legislative History of the Convention on the Rights of the Child para 12.

5.3 The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict

The Optional Protocol 135

135 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000) (the Optional Protocol).

The Optional Protocol does not expressly define the term "children" but refers to the term in such a way that one can infer that the word "child" refers to a person who has not attained the age of eighteen years. This is evident by the recognition of this category of persons being entitled to special protection. 138

138 Article 3(1) of the Optional Protocol.

Article 4 provides that armed groups should not, under any circumstances, use or recruit persons below the age of eighteen years in hostilities. 143

143 Article 4(1) of the Optional Protocol.

envisages the difficulty in binding armed groups to treaty obligations. It therefore establishes a prohibition in Article 4, which must be enforced by state parties and thereby ensures that armed groups are held to the obligations established by the Protocol.

The adoption of the Optional Protocol can be said to represent the dissatisfaction of the international community concerning Article 38 of the CRC. 145

145 Waschefort International Law and Child Soldiers 90.

This Protocol represents the highest standard of protection available to child soldiers, but its provisions are not without compromise and, accordingly, criticism. The threshold of responsibility on state parties has always been contended in respect of the "all feasible measures" standard, yet the Optional Protocol does not establish a threshold higher than that established by the CRC. 146

146 Article 1 of the Optional Protocol.

Lastly, despite the Protocol's intention to prevent all children under the age of eighteen years from being involved in military activities, it does not establish an absolute prohibition in this regard. 150

150 Article 1 of of the Optional Protocol.

5.4 International Labour Organisation Convention on the Worst Forms of Child Labour

The ILO Convention on the Worst Forms of Child Labour identifies forms of child labour which are considered to be the worst. 152

152 ILO Convention 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (1999) (ILO Convention 182).

The recognition of children participating in armed conflicts — as one of the worst forms of child labour — is indicative of the attitude of the international community towards child soldiering. The Convention asserts that the participation of children aged between fifteen and eighteen years in military activities is still potentially damaging. 156

156 Happold 2008 University of La Verne Review 69.

It can be noted from the progressive development of treaty law, that IHL has not seen much of a legal development. Where IHRL was considered inadequate, particularly Article 38 of the CRC, these inadequacies were addressed in the form of developing human rights law, which culminated in other regional or international instruments such as the African Charter on the Rights and Welfare of the Child and the Optional Protocol.

Seeing as IHL has not realised much legal development, the question which then arises is how these conflicting norms should be applied in armed conflict?

6 The principle of the lex specialis

The interplay between IHL and IHRL is notorious for the pugnacious discussion which it prompts. It has generally been accepted that although IHL only applies during times of armed conflict, IHRL applies at all times. 158

158 Ang Commentary on the UN CRC 10.

two provisions that emanate from IHL and IHRL, respectively. 159

159 OHCHR International Legal Protection of Human Rights 59.

The jurisprudence of the ICJ offers guidance on the interpretation of the lex specialis. The ICJ held that in determining whether or not the right to life may be derogated from in armed conflict, the doctrine of the lex specialis, that being "the law applicable in an armed conflict" is applicable. 161

161 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) ICJ Reports (8 July 1996) (the Nuclear Weapons case).

The following question arises: if during armed conflict, IHRL provides greater protection on a particular matter than IHL, as it does with child soldiering norms, is the dictum of the ICJ so concrete to render IHRL, as the lex generalis, subservient to IHL? This, notwithstanding its more comprehensive protection. The ICRC's interpretation of the ICJ's dictum has come under scrutiny as it is argued that the court had not intended to "recognise the lex specialis status of [IHL] as a whole in situations of armed conflict". 163

163 OHCHR International Legal Protection of Human Rights 61.

In the Case Concerning Armed Activities on the Territory of the Congo, 169

169 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) ICJ Reports (19 December 2005) (the DRC case).

As regards the relationship between [IHL] and human rights law, there are thus three possible situations: some rights may be exclusively matters of [IHL]; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.

In casu, it held that not only was Uganda internationally responsible for violations of IHL, 171

171 Namely, Geneva Convention IV and Protocol I.

Had it not been for application of the IHRL which finds its origins in the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, the recruitment of some of children in the DRC case would not have been prohibited because they were aged between fifteen and eighteen years. If a strict interpretation of the lex specialis was followed (whereby IHL applies exclusively in armed conflict), these children would have remained legally unprotected and fallen into a grey area of international law.

Apart from the ICJ, in a case concerning an allegation of "unlawful detainment" and "maltreatment" by the United Kingdom government against foreign detainees, the United Kingdom Court of Appeal (UKCA) 176

176 Serdar Mohammed v Ministry of Defence UKSC 2015/0218 of 17 January 2017 (the Mohammed case).

jurisprudence of the ICJ and the views of the UN General Assembly and Human Rights Committee. 178

178 Mohammed case paras 273-294.

A strict interpretation of the lex specialis evidently does not automatically entail a suitable outcome for the persons which IHL purports to protect. This article therefore submits that the manner in which the ICJ has treaded through the interpretive vines of the lex specialis is laudable. It has, without expressly saying so, developed a functional means by which the principle can be interpreted and applied in light of prioritising and furthering the interests and protection of the victims of armed conflict.

Since the Teheran Conference in 1968, 179

179 Prud'homme 2007 Israel L Rev 362.

7 Conclusion

The proscriptive child soldiering norms (which have developed in terms of IHL and IHRL) are as developed as they possibly can be, considering the political and historical climate under which they emerged. It is not within the foreseeable future that further development of these norms is likely, despite the ongoing use and recruitment of children in armed conflict.

Considering the inconsistencies between IHL and IHRL standards as outlined throughout this article, it is submitted that — as separate legal regimes — each respective branch of international law is less effective without the other. Many of the initial child soldiering provisions adopted in the relevant international instruments were a resultant compromise of opposing views of various states and entities during its drafting stages. This consequently entailed the adoption of weaker provisions than those initially intended. Despite these shortcomings, only IHRL norms were further developed. It therefore became the branch of law to provide the most protection to children under eighteen years partaking in armed conflict. However, IHL made no such progression.

This may be depicted as follows:

Each of the four core elements 181

181 (1) the definition of a child; (2) the nature of child recruitment or enlistment; (3) the nature of child participation in armed conflict; and (4) the nature of the obligation on states to prevent child soldiering.

To fill this gap in the law without amendment or development, it may be that the solution lies in shifting the approach to interpreting the lex specialis principle. The IHL and IHRL norms should be interpreted and applied in a complementary fashion to materialise all-encompassing protection for all children partaking in armed conflict. In this way, each respective branch of international law can compensate for the weaknesses and lacunae in the other, as supported by the most recent jurisprudence of the ICJ on the matter. 182

182 Nuclear Weapons case; Wall case; DRC case.

This article takes cognisance of the importance of interpretative guidelines and principles and does not purport to disregard it. Rather, it purports to prevent rigid interpretations of international law which display no regard for the on the ground realities of the victims of armed conflict. In doing so, this article changes the way in which international norms are perceived such that their scope of application is not limited to the separate legal regimes under which they have developed.

In terms of the approach proposed by this article in relation to the application of the lex specialis, children aged between fifteen and eighteen years will be legally protected. Their use, recruitment, and conscription in armed conflict by state armed forces and non-state actors will be prohibited, and they will subsequently not form part of an emerging genus of children who fall between the crevices of international law.

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Vandewiele T A Commentary on the United Nations Convention on the Rights of the Child Optional Protocol on the Involvement of Children in Armed Conflicts (Martinus Nijhoff Leiden 2006)

Waschefort International Law and Child Soldiers

Waschefort G International Law and Child Soldiers (Hart Oxford 2017)

Williams War and Conflict in Africa

Williams PD War and Conflict in Africa (Polity Cambridge 2016)

Case law

International Criminal Court

Prosecutor v Thomas Lubanga Dyilo ICC-01/04-01/06 (Appeals Chamber Judgement) 1 December 2014

International Court of Justice

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) ICJ Reports (19 December 2005)

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Reports (9 July 2004)

Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) ICJ Reports (8 July 1996)

Special Court for Sierra Leone

Prosecutor v Charles Ghankay Taylor SCSL-03-1-T (Judgement Summary) 26 April 2012

Prosecutor v Sam Hinga Norman SCSL-2004-14-AR72(E) (Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment)) 31 May 2004

United Kingdom Court of Appeal

Serdar Mohammed v Ministry of Defence UKSC 2015/0218 of 17 January 2017

International instruments

African Charter on the Rights and Welfare of the Child (1990)

Declaration on the Rights of the Child (1959)

Declaration on the Protection of Women and Children in Emergency and Armed Conflict (1974)

European Convention on the Exercise of Children's Rights (2010)

European Union Guidelines on Children and Armed Conflict (2007)

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949) (First Geneva Convention)

Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea (1949) (Second Geneva Convention)

Geneva Convention Relative to the Treatment of Prisoners of War (1949) (Third Geneva Convention)

Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949) (Fourth Geneva Convention)

Geneva Declaration of the Rights of the Child (1924)

ILO Convention 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (1999)

Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000)

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (1977) (Protocol I)

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (1977) (Protocol II)

UNGA and UNSC Children and Armed Conflict: Report of the Secretary-General UN Doc A/76/871-S/2022/493 (2022)

United Nations Convention on the Rights of the Child (1989)

Internet sources

Council on Foreign Relations 2023 https://www.cfr.org/ backgrounder/yemen-crisis

Council on Foreign Relations 2023 Yemen's Tragedy: War, Stalemate, and Suffering https://www.cfr.org/backgrounder/yemen-crisis accessed 2 May 2023

ICRC 1973 https://www.loc.gov/item/2011525430/

International Committee of the Red Cross 1973 Draft Additional Protocols to the Geneva Conventions of August 12, 1949. Commentary https://www.loc.gov/item/2011525430/ accessed 12 December 2022

ICRC 1987 https://www.loc.gov/item/2011525357/

International Committee of the Red Cross 1987 Commentary on the Draft Protocol Additional to the Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts https://www.loc.gov/item/2011525357/ accessed 5 December 2022

ICRC 2003 https://www.icrc.org/en/document/legal-protection-children-armed-conflict-factsheet

International Committee of the Red Cross Advisory Service on International Humanitarian Law 2003 Legal Protection of Children in Armed Conflict https://www.icrc.org/en/document/legal-protection-children-armed-conflict-factsheet accessed 5 May 2023

ICRC 2005 https://www.icrc.org/en/doc/resources/documents/misc/ customary-law-q-and-a-150805.htm#a3

International Committee of the Red Cross 2005 Customary International Humanitarian Law: Questions and Answers https://www.icrc.org/ en/doc/resources/documents/misc/customary-law-q-and-a-150805.htm#a3 accessed 20 February 2023

ICRC 2009 https://www.icrc.org/eng/resources/documents/misc/additional-protocols-1977.htm

International Committee of the Red Cross 2009 Protocols I and II Additional to the Geneva Conventions https://www.icrc.org/eng/resources/documents/ misc/additional-protocols-1977.htm accessed 29 November 2022

ICRC 2017 https://www.icrc.org/en/document/war-cities-towards-holistic-response

International Committee of the Red Cross 2017 War in Cities: Towards a Holistic Response https://www.icrc.org/en/document/war-cities-towards-holistic-response accessed 10 January 2023

ICRC 2020 https://www.icrc.org/en/where-we-work/middle-east/syria

International Committee of the Red Cross 2020 Syria in Focus https://www.icrc.org/en/where-we-work/middle-east/syria accessed 10 January 2023

ILC date unknown https://legal.un.org/ilc/sessions/55/pdfs/fragmentation _outline.pdf

International Law Commission Study Group on Fragmentation date unknown Fragmentation of International Law: The Function and Scope of the Lex Specialis Rule and the Question of "Self-Contained Regimes": An Outline https://legal.un.org/ilc/sessions/55/pdfs/fragmentation_outline.pdf accessed 5 May 2023

Máusse and Nina 1999 https://www.africaportal.org/publications/child-soldiers-in-southern-africa

Máusse MA and Nina D 1999 Child Soldiers in Southern Africa https://www.africaportal.org/publications/child-soldiers-in-southern-africa/ accessed 5 May 2023

UN date unknown https://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html

United Nations date unknown The Foundation of International Human Rights Law https://www.un.org/en/sections/universal-declaration/ foundation-international-human-rights-law/index.html accessed 3 March 2023

UN 2009 https://inee.org/sites/default/files/resources/SixGraveViolations

paper.pdf

United Nations Office of the Special Representative of the Secretary-General for Children Affected by Armed Conflict 2009 Working Paper No. 1: The Six Grave Violations Against Children During Armed Conflict: The Legal Foundation https://inee.org/sites/default/files/resources/SixGraveViolationspaper.pdf accessed 5 May 2023

UN 2016 https://media.un.org/en/asset/k1r/k1r6twnuku

United Nations Web TV 2016 Gus Waschefort – International Law and Child Soldiers https://media.un.org/en/asset/k1r/k1r6twnuku accessed 11 February 2023

List of Abbreviations