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VIII. Legal Standards

International humanitarian law (the laws of war) and human rights law prohibit the recruitment and use of children as soldiers. Protocol II to the Geneva Conventions of 1949, which applies during non-international armed conflict, prohibits states and non-state armed groups from recruiting or using children under the age of 15 in armed conflict. This standard is also reflected in the Convention on the Rights of the Child (CRC), which Burma ratified in 1991.³⁰⁴ The prohibition on the recruitment and use of children below the age of 15 is now considered customary international law, and is binding on all parties to armed conflict.

In 2000 the United Nations adopted an Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.³⁰⁵ The Optional Protocol raised the standards set in the Convention on the Rights of the Child by establishing 18 as the minimum age for any conscription or forced recruitment or direct participation in hostilities. The protocol also places obligations upon non-state armed forces. Article 4 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 18.”

The 1999 Worst Forms of Child Labour Convention (No. 182) obliges states parties to take immediate action to prohibit and eliminate the worst forms of child labor. It defines a child as any person under the age of 18 and includes in its definition of the worst forms of child labor the “forced or compulsory recruitment of children for use in armed conflict.”³⁰⁶

Both the Optional Protocol and the Worst Forms of Child Labour Convention have been ratified by the majority of the world’s states, establishing a clear international norm against the forced recruitment of children under age 18 or their use in armed conflict. As of October 2007, 118 states were party to the Optional Protocol, and 165 were party to the Worst Forms of Child Labour Convention. Burma has neither signed nor ratified either treaty.

Despite not being party to the Optional Protocol or the Worst Forms of Child Labour Convention, Burma’s national law prohibits the recruitment of any child under age 18 into its armed forces. The Regulation for the Persons Subject to the Defense Services Act establishes 18 as the minimum age for military recruitment.³⁰⁷ The Convention on the Rights of the Child states that none of its provisions should affect laws that are “more conducive to the rights of the child.”³⁰⁸ Since Burma’s national law prohibits recruitment below age 18 (as opposed to the CRC’s age 15), this standard therefore prevails.

Child Recruitment as a War Crime

The recruitment of children under the age of 15 or their use in hostilities is considered a war crime under the Rome Statute of the International Criminal Court (ICC).³⁰⁹ The statute, adopted in July 1998, considers such recruitment a war crime under its jurisdiction whether carried out by members of national armed forces or non-state armed groups.

Even though, as of October 2007, Burma was not a state party to the ICC statute, individuals who are responsible for recruiting children under the age of 15 into armed forces or groups may still be criminally responsible for acts amounting to war crimes under customary international law. In May 2004 the Appeals Chamber of the Special Court for Sierra Leone ruled that the prohibition on recruiting children below age 15 had crystallized as customary international law prior to 1996, and that individuals responsible for recruiting children under the age of 15 bear criminal responsibility for their acts.³¹⁰

International Standards on Demobilization, Reintegration, and Rehabilitation

The Convention on the Rights of the Child obliges states parties to promote the physical and psychological recovery and social reintegration of children who are victims of armed conflict.³¹¹ The Optional Protocol to the Convention specifically obliges states parties to demobilize children within their jurisdiction who have been recruited or used in hostilities, and to provide assistance for their physical and psychological recovery and social reintegration.³¹² The Worst Forms of Child Labour Convention also obliges states to remove children from the worst forms of child labor and assist their reintegration and social reintegration.³¹³

The Paris Principles, international guidelines for protecting children from recruitment and providing assistance to those who have already been involved with armed forces or groups, provide more specific guidance. The Principles state that the release, protection, and reintegration of children unlawfully recruited or used must be sought at all times, without condition; that during release, children should be rapidly separated from adult fighters and handed over to “an appropriate, mandated, independent civilian process”; and that 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.³¹⁴