Pro patria mori – child soldiers and legal identity

In this blog I take a closer look at the issue of legal identity and birth registration for a particularly vulnerable group of children – child soldiers.

At times of conflict, when children are at risk of human rights violations, and, in some places, at risk of being recruited or used in hostilities, legal identity and birth registration becomes even more important.  As the UNICEF Birth Registration and Armed Conflict Report ¹ explains, birth registration and the legal documents that flow from it are:

“crucial, especially during times of armed conflict or civil unrest.  The ‘invisibility’ of non-registered children increases their vulnerability and the risk that violations of their rights will go unnoticed. Providing children with birth registration during and after conflict is, therefore, a matter of urgent priority.”

Children’s right to be registered at birth and their right to a name and identity are formally recognized by the Convention on the Rights of the Child ².  This is because birth registration is instrumental in safeguarding other human rights by providing the official ‘proof’ of a child’s existence and entitlement to be treated as a child.

 

Children and legal identity

I have written before on the impact of a legal identity, or lack of, for children.  You can see my blogs here and here.  In light of the Convention on the Rights of the Child, other international and regional treaties and the SDGs ³ (on the SDGs see my blog here), it is clear that the right to legal identity, starting with birth registration for children, is considered a human right.  It has intrinsic value, too, since recognition of existence can be seen as integral to human dignity.

In practical terms, the lack of birth registration and a legal identity for a child has huge impact on the quality of their lives.  For example, it can impact on the ability to enrol at school at the right age, or it can prevent a child from being employed in breach of labour laws.

A legal identity can ensure that where a child has contact with the law, they are given the correct level of protection and are not treated legally, as well as practically, as an adult.  It is one way to help the battle against child marriages and forced marriages of girls, human trafficking and the sale of children.  To that list we can now add the recruitment and use of children in hostilities and armed conflict.

 

Who are child soldiers?

Child soldiers are children (individuals under the age of 18) who are used for any military purpose. Some are in their late teens, while others may be as young as four.  They are not only boys – many are girls. And they do not need to be recruited by force (although many are).  They can also join voluntarily ⁴.

Some child soldiers are used for fighting – to kill and commit other acts of violence.  Others are used as cooks, porters, messengers, informants or spies.  Child soldiers are also used for sexual purposes ⁵.

Child soldiers are used in many different countries.  The UN lists the countries and non-state armed groups which recruit and use child soldiers ⁶.  Verified cases of the recruitment and use of children in 2017 increased on the numbers in 2016.  Child soldiers are used in Central African Republic (299), the Democratic Republic of the Congo (1,049), Somalia (2,127), South Sudan (1,221), the Syrian Arab Republic (961) and Yemen (842). The Child Soldiers World Index keeps data on the recruitment and use of children.  At the latest count, 46 states still recruit children under the age of 18 into their armed forces ⁷.

 

Human rights violations

In 1977, the Additional Protocols to the 1949 Geneva Conventions prohibited the military recruitment and use of children under the age of 15 ⁸.  The recruitment of children under 15 is now recognised as a war crime under the Rome Statute of the International Criminal Court.  The prohibition applies to both government-controlled armed forces and non-state armed groups.  It was reaffirmed in the 1989 Convention on the Rights of the Child (CRC).

The human rights violations and the impact it has on the lives, growth and development of children involved in hostilities and armed conflict is too vast and complex for me to do justice in a single blog.

The Office of the Special Representative of the Secretary General for Children and Armed Conflict Report summarises the trauma faced by child soldiers ⁹:

“Regardless of how children are recruited and of their roles, child soldiers are victims, whose participation in conflict bears serious implications for their physical and emotional well-being. They are commonly subject to abuse and most of them witness death, killing, and sexual violence. Many are forced to commit violent acts and some suffer serious long-term psychological consequences.”

 

Recruitment of child solders – international law obligations

The Geneva Conventions of 1949 and the Additional Protocols of 1977, as well as the UN Convention on the Rights of the Child of 1989, are the pillars of the legal framework on the involvement of children in armed conflict.

The 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict ¹⁰ is the main international law that deals with the use of child soldier in combat and hostilities.  It is a near universal treaty with 168 state parties as of the date of this blog.  The Optional Protocol limits the use by state parties to the Protocol of children under the age of 18, prohibiting their involvement in direct hostilities.  Equally, state parties cannot carry out compulsory recruitment of children under 18 into their armed forces.

Armed groups distinct from the armed forces of a state are prohibited in all circumstances from recruiting or using in hostilities anyone under the age of 18.  Although armed groups themselves are not parties to the Optional Protocol, those states which are parties to it are under an obligation to prevent, prohibit and penalise armed groups from recruiting children and using them in hostilities.

 

Legal identity issues before recruitment

If children do not have identity documents, such as a birth certificate showing their date of birth and age, how do you know they are children?  This goes, in part, to the more ‘formal’ recruitment practices where enlisting into the army is permitted at age 16 or 17 ¹¹.  When a child cannot prove he or she is a child, recruitment may be justified on the basis of physical appearance or oral confirmation of age by the recruits themselves.  UNICEF gives the example of Nepal where  the army uses oral confirmation of age ¹².

The 2007 Paris Principles are a commitment to stop the recruitment of children in armed conflict. Currently 105 states are committed to the Principles.  The Principles place the onus of determining the age of the child on the recruiting armed forces.  Since in many states children are not registered at birth, or have no legal document to evidence their age, the Principles require state parties to look further and cross-check the assertion that the person is an adult.

A further, and even more useful requirement is the requirement placed on states to implement a national birth registration system for all children with their jurisdiction.  The registration system should include refugees and internally displaced and returnee children ¹³.

 

Reintegration

The UN and many other NGOs work tirelessly to negotiate and arrange for the release of child soldiers.  Continued engagement and negotiation with armed groups has, in 2017, resulted in the release of more than 10,000 children ¹⁴.  Informally, many more have also been able to leave.

Reintegration into society, into their families, into everyday life, is another matter.  The Office of the Special Representative of the Secretary General for Children and Armed Conflict defines ‘reintegration’ as the reintroduction back into society of children who were formerly associated with armed groups or armed forces in a peaceful and sustainable way.  Reintegration efforts include prolonged psychosocial support, vocational training, quality education, health care and the provision of other vital needs.

Reintegration efforts are important.  The end of the conflict is not the end of the impact on the child solider.  This is because:

“The end of conflict does not necessarily give closure to children for whom experiencing violence has been the norm. Children who have been recruited and used carry the scars of conflict and effective reintegration is vital so that they can live full lives and contribute to a peaceful society” ¹⁵

 

Legal identity issues at reintegration

The concept of reintegration, as set out by the UN and as discussed by the World Bank and other NGOs working in the space ¹⁶, do not specifically mention birth registration, or ensuring that children have a legal identity, as essential to reintegration. 

But legal identity matters for reintegration. Without it, when it comes to demobilising them and reintegrating them into society, it can be difficult to know who needs help and how many children need that assistance.

Unregistered children are harder to trace, especially if they informally leave an armed group.  They remain at risk of re-recruitment by the same or different armed group.  UNICEF gives the example of children in northern Uganda who escaped fighting on behalf of the Lord’s Resistance Army.  They were asked to join the Uganda People Defence Forces as they sought to find their way home ¹⁷.  Even finding their way home and to their previous life can be made impossible where children who were given combat names are too young to remember their birth names and have no way of tracing their own identity and their community.

In more practical terms, it often means that reintegration efforts are hampered as children cannot access basic rights like health care or education.  For example, child soldiers in Angola cannot attend school without a civilian ID ¹⁸.  In Colombia children who do not have registration or identity documents risk being excluded from access to social services ¹⁹.

 

The children of child soldiers

An issue specific to female child soldiers is what happens to their children.  Already many girls are stigmatised by their home communities for returning with a child born during the conflict.  Matters are not improved when that child is at risk of growing up without a legal identity or which has not been registered at birth.  And in countries where mothers (and especially unmarried mothers) cannot pass on their nationality to their child and there is no proof that the child was born within the state, the risk of statelessness increases.

The Paris Principles call on state parties to take action to minimise the risk of statelessness faced by the children of child soldiers.  Articles 7.7 requires the state where the child currently resides to take responsibility for ensuring that the best interests of the child.  Measures include registration at birth or as soon as possible afterwards, the child’s right to its identity, a nationality and its family and the right not to be discriminated against ²⁰.

 

A child, not a soldier

Legal identity, and especially birth registration, are important to secure basic rights for children. When children are vulnerable, separated, or sent away from their families to take part in hostilities, a legal identity is even more important.  A legal identity helps to ensure that a child cannot be recruited. It also helps a child access much needed help as part of their reintegration.

Most importantly it shows that the child is a child and should be treated as such.  Not as a killer, not as a porter of arms and military provisions, not as a cook or a soldier’s bride.