VI. International Legal Standards

International humanitarian law (the “laws of war”) imposes upon all parties to an armed conflict the legal obligations to reduce unnecessary suffering and to protect civilians and other non-combatants. It is applicable to all situations of armed conflict, without regard to whether those fighting are regular armies, such as the TFG and AU troops in Somalia, or non-state armed groups, including al-Shabaab, Ahlu Sunna Wal Jama’a, and other irregular militias.

Individuals who commit serious violations of international humanitarian law with criminal intent can be prosecuted in domestic or international courts for war crimes. States have an obligation to investigate alleged war crimes committed by their nationals, including members of the armed forces, and prosecute those responsible.[280] While AMISOM’s mandate asserts that it is not a party to the conflict, such a determination and resulting legal obligations are derived instead from an objective assessment of its participation in military operations.[281]Non-state armed groups also have a legal obligation to respect the laws of war, and thus a responsibility to ensure that its commanders and combatants abide by its requirements.[282]

A fundamental principle of the laws of war is that parties to the conflict must at all times distinguish between civilians and military objectives. Attacks may only be directed at military objectives.[283] Civilians are only military objectives when and for such time as they are directly participating in hostilities. Where there is doubt as to whether a person is a civilian or a combatant, that person must be considered a civilian.[284]

Civilian objects, including schools, are not subject to attack unless they are being used for military purposes.[285] Attacks on valid military targets must be neither indiscriminate nor disproportionate. An indiscriminate attack is one in which the attack is not directed at a specific military objective or the methods or means used cannot differentiate between combatants and civilians. A disproportionate attack is one in which the expected loss of civilian life and property is excessive compared to the anticipated military gain of the attack.[286]

A school is normally protected from deliberate attack, unless, for instance, armed forces are occupying it as a base from which to deploy for military operations. When military forces use a school, it becomes a legitimate target. Thus a school that serves as a military base or an ammunition depot becomes subject to attack. A party to the conflict must endeavor to remove civilians under their control from the vicinity of military objectives. It would be unlawful to use a school simultaneously as an armed stronghold and an education center, since it places children, teachers, education personnel, and other civilians at unnecessary risk. In such instances, military forces occupying a school have an obligation to take all feasible precautions to protect civilians from attack and to remove them from the vicinity.[287]

International humanitarian law also provides that children are entitled to special respect and attention.[288] This is reflected in the Convention on the Rights of the Child, which requires states to “take all feasible measures to ensure protection and care of children who are affected by an armed conflict.”[289]

Child Recruitment

International humanitarian law prohibits any recruitment of children under the age of 15 or their participation in hostilities by national armed forces and non-state armed groups.[290] Such recruitment or use is also considered a war crime.[291]

During its Universal Periodic Review session at the UN Human Rights Council in 2011, the Transitional Federal Government committed to ratifying the Convention on the Rights of the Child (CRC) and the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (CRC Optional Protocol). Somalia has signed both treaties, but has yet to ratify them.[292] The CRC defines a child as a person under the age of 18. The CRC Optional Protocol prohibits any forced recruitment or conscription of children under 18 by government forces, and the participation of children under 18 in active hostilities by any party. It also places obligations upon non-state armed groups, which include insurgent and militia groups. Article 4 of the CRC Optional Protocol states that "armed groups that are distinct from the armed forces of a state should not, under any circumstances, recruit or use in hostilities persons under the age of eighteen."[293]

The African Charter on the Rights and Welfare of the Child, which Somalia signed in 1991 but has not ratified, also provides that states parties “shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child.”[294] The Charter defines children as all persons under the age of 18.

The Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (the “Paris Principles”), a set of international guidelines, sets forth a wide range of principles relating to the protection of children from recruitment or use in armed conflict, their release, and their successful reintegration into civilian life. The principles also address the need for long-term prevention strategies in order to definitively end child involvement with armed groups.[295] In particular, the Paris Principles, to ensure greater protection, broaden the definition of child combatant to include “any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys, and girls used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities.”[296] The Paris Principles also call for a child’s right to release from armed forces or armed groups.[297]

Beyond the international legal frameworks, Somalia also has obligations to prevent the involvement of children in its fighting forces as outlined in Somalia’s Transitional Federal Charter 128 of February 2004, which contains an explicit article forbidding the use of children under 18 years of age for military service.[298]

Treatment of Captured Children

The CRC Optional Protocol calls on states to provide appropriate assistance for the physical and psychological recovery and social reintegration for children who have been recruited or used in armed conflict contrary to the protocol.[299]

The Paris Principles also provide relevant guidance for release, protection, and reintegration of children who have been associated with armed forces or groups. Release and rehabilitation measures should be carried out without any conditions. During release, children should be handed over to “an appropriate, mandated, independent civilian process,” and the majority of children should be returned to their family and community or a family and community environment as soon as possible after their release.[300] Any prosecution of children for criminal acts should be conducted with the objective of rehabilitating the child and promoting the child’s reintegration and assumption of a constructive role in society.[301]

Forced Marriage and Rape

Forced marriage includes situations in which women and girls must marry without their consent, face threats or violence, are abducted, or are traded through informal dispute mechanisms, such as to settle a rape case.

While CRC does not explicitly address child marriage, child marriage is viewed as incompatible with a number of the articles in the convention. Under CRC, a child has the right to express her views freely in all matters affecting her in accordance with age and maturity, the right to be protected from all measures of violence and abuse, including sexual abuse, and the rights to education and health, all of which are violated by early or forced marriage. [302]

The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which the TFG has publicly committed to ratifying,[303] states that marriages of children have “no legal effect” and calls for state to take all necessary action, including legislation, to specify a minimum age for marriage.[304] The committees that monitor the implementation of the CEDAW and CRC have both taken the position that the minimum age should be 18.[305]

The African Charter on Rights and Welfare of the Child is more explicit—it prohibits child marriage and calls for effective action, including legislation, to be taken to specify the minimum age of marriage to be 18 years and make registration of all marriages in an official registry compulsory. [306]

Human Rights Watch opposes all non-consensual—that is, forced—marriages of women and girls and also calls on states to set the minimum legal age of marriage at 18.

Rape

International humanitarian law and international human rights law prohibit acts of sexual violence. International humanitarian law prohibits both states and non-state armed groups from committing rape and other forms of sexual violence.[307]

International human rights law also contains protections from rape and other forms of sexual abuse through its prohibitions on torture and other ill-treatment, slavery, forced prostitution, and discrimination based on sex.[308] The CRC and the African Charter on the Rights and Welfare of the Child contain additional protections for children. [309]

Right to Education

As discussed above, students, teachers, and school buildings are protected under international humanitarian law. [310]Although there is no ban in international humanitarian law on the use of school buildings as military bases or for other deployments, a UN treaty body, the Committee on the Rights of the Child, and the UN Security Council have on several occasions raised concerns about such use.

The UN Security Council has called on armed forces to refrain from using schools for

military operations because of the impact it can have on children’s access to education. The UN Security Council said in April 2009: “The Security Council … urges parties to armed conflict to refrain from actions that impede children’s access to education, in particular … the use of schools for military operations.”[311] Although presidential statements are not legally binding, they require a consensus to be adopted, and they are thus persuasive indicators of the views of the membership of UN’s principle body for the maintenance of peace and security. In July 2011, in a resolution on children and armed conflict, the council again urged “parties to armed conflict to refrain from actions that impede children’s access to education … services” and asked the UN Secretary General to “to continue to monitor and report, inter alia, on the military use of schools in contravention of international humanitarian law."[312]

Furthermore, international humanitarian law provides a fundamental guarantee that children should continue to have access to education. [313]

The use of school buildings for military purposes and occupation of schools, when it affects children’s ability to receive education, may also be violating children’s right to education guaranteed under international human rights law.[314] The right to education is enshrined in the International Covenant on Economic, Social and Cultural Rights and the CRC.[315] The Committee on Economic, Cultural and Civil Rights in its general comment on the right to education notes the need for education curricula at all levels to be acceptable to the students, meaning relevant, culturally appropriate, and of good quality.[316] When considering the appropriate application of these essential features, the best interests of the student shall be a primary consideration.[317] Although al-Shabaab and other non-state armed groups are not bound by international human rights treaties, in areas where they have effective control or authority over the population, they should not interfere with the enjoyment of these rights.[318]