VIII. LEGAL STANDARDS

Under the Constitution of Angola, the recruitment of soldiers under the age of eighteen is prohibited.⁸⁴ Further, Angola is a party to the African Charter on the Rights and Welfare of the Child, which prohibits the recruitment of children under eighteen and, together with the Convention on the Rights of the Child, places obligations upon states to provide for the protection, care, and recovery of child victims of conflict, including child combatants. Existing demobilization programs which cater to adults violate the basic principle of nondiscrimination set forth in the International Covenant on Civil and Political Rights (ICCPR) ratified by Angola in 1992. Finally, under both the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, Angola has recognized the right of a child to the highest attainable standards of education and health.

The 1996 Angolan decree on the applicability of military service states that the minimum age for voluntary recruitment is eighteen for men and twenty for women.⁸⁵ While Human Rights Watch received no reports that Angola was actively recruiting underage soldiers, there is concern that children used in the last years of the war may still be serving in the FAA. The government should continue to demobilize children who served with the FAA and ensure that no one under the age of eighteen is currently in the military as stipulated under national law.

Setting the age of eighteen as the minimum age of recruitment is reinforced in the African Charter on the Rights and Welfare of the Child. Article 22 states that parties must take measures to ensure no child takes part in hostilities and to refrain from recruiting children. It goes on to state that, "State parties...shall take all feasible measures to ensure the care and protection of children who are affected by armed conflicts."⁸⁶ Similar language for the care and recovery of children used in war and a prohibition on the involvement of those under eighteen in hostilities is found in the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Angola has yet to ratify this important international protocol.

The protection of children affected by armed conflict is further delineated in the Convention on the Rights of the Child. Angola ratified the convention in 1990 but has yet to submit overdue reports to the Committee on the Rights of the Child, established to look at progress and actions taken by states to fulfill their obligations under the convention. Article 38 obliges that State Parties take appropriate measures "to promote physical and psychological recovery and social reintegration of a child victim of . . . armed conflicts."⁸⁷ In comments to article 39, the committee "recommends that the State Party develop as quickly as possible a long-term and comprehensive programme of assistance, rehabilitation and reintegration." This recommendation was further reinforced in an interpretation of article 38 which calls for the demobilization, rehabilitation and reintegration of child combatants.⁸⁸

Angola is also party to ILO Convention No. 182, the Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, which identifies the compulsory recruitment of children for use in armed conflict as one of the worst forms of child labor. Under article 7, states must "take effective and time-bound measures to provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration" and "take account of the special situation of girls."⁸⁹ The existing community-based rehabilitation programs which fail to identify or target the specific needs of child soldiers, and girl soldiers in particular, may leave unfulfilled the obligations in article 7 of this convention as well as article 38 of the Convention on the Rights of the Child.

Articles 2, 3, and 26 of the ICCPR together define nondiscrimination as a basic and general principle in protecting human rights. Demobilization programs set up after the Memorandum of Understanding of 2002 discriminate against boys and girls seventeen and younger who performed the same duties and merit the same privilege and recognition as those eighteen and older. Although the Covenant does not expressly prohibit discrimination on the basis of age, the Committee on Civil and Political Rights has interpreted that the term discrimination "should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground...and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms." The committee has further commented that, "legislation...adopted by a state party...must comply with the requirement of article 26 that its content should not be discriminatory."⁹⁰

These prohibitions on all forms of discrimination do not mean that every distinction is impermissible. As the Human Rights Committee has commented, "not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective."⁹¹ In the case of demobilization in Angola, however, it does not appear reasonable to distinguish between otherwise similar groups of soldiers solely on the basis of their age. Rather, it could be argued that additional programs should be created for children because of their greater need for assistance.

Primary school attendance in Angola stands at just over 50 percent and many children have no access to even basic health care after decades of civil war have ravaged the interior of the country.⁹² Government funding in these fields is needed to bring Angola in compliance with its pledges to achieve free and compulsory education and basic health services as stipulated in both the African Charter on the Rights and Welfare of the Child and the Convention on the Rights of the Child.

⁸⁴ Constitution of Angola, article 152, "on duty to defend the country", Lei Constitucional da República de Angola, art. 152(2), "O serviço militar é obrigatório. A lei define as formas do seu cumprimento." For conscription at the age of 20 see Law 1/93. For age of 18 for voluntary service see Decree No. 40/96, December 13, 1996.

⁸⁵ Ibid.

⁸⁶ African Charter on the Rights and Welfare of the Child, article 22; Angola ratified the charter in 1992.

⁸⁷ Convention on the Rights of the Child, article 39.

⁸⁸ Comments by the Committee on the Rights of the Child on article 39, Sierra Leone, IRCO, Add. 116, para 74. See Comments to Article 8, Sierra Leone IRCO, Add. 1.

⁸⁹ ILO Convention 182 - Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, Article 7, June 17, 1999.

⁹⁰ International Covenant on Civil and Political Rights (ICCPR), articles 2, 3, and 26. See Committee on Civil and Political Rights, General Comment 18, Non-Discrimination, paragraphs 7 & 12, U.N. Doc. HRI\GEN\Rev.1 at 26 (1994).

⁹¹ Human Rights Committee, General Comment 18, Non-discrimination, paragraph 13, 37^th Session, 1989.

⁹² UN Wire, Angola: UNICEF Study Finds 25 Percent Mortality Among Children Under 5, January 24, 2003.