Book review: Gus Waschefort, International Law and Child Soldiers

As part of the series Studies in International Law, Hart Publishing has recently published International Law and Child Soldiers by Gus Waschefort. The central argument in this book is that international law has a role to play in the prevention of child soldiering and that its focus should shift from norm creation to norm enforcement.

After an introduction to some of the core concepts in chapter 1, Waschefort’s book presents the social reality of child soldiering in chapter 2 and addresses existing misconceptions. The author examines data on the geographical distribution of child soldiers across the globe, the motivations of parties to a conflict to use child soldiers, and the social aspects that contribute to the “supply” and “demand” of child soldiers. For instance, he points out that the number of countries where child soldiers are used have decreased, that child soldiering is not exclusively an African phenomenon and that, on the contrary, at certain periods it was more widespread in other continents, such as Asia and Latin America. He also discusses the use of child soldiers in the context of asymmetric warfare.

The book moves on to an analysis of the international legal framework regarding child soldiering, starting with international humanitarian law (IHL) in chapter 3. Waschefort assesses how the 1949 Geneva Convention IV relative to the Protection of Civilian Persons in Time of War contributes to the prohibition of child soldiering.

The author analyses the prohibition of child soldiering as set out in the 1977 Additional Protocol I to the Geneva Conventions, which applies to international armed conflicts. Waschefort argues that children are better protected from recruitment into armed forces than from participation in hostilities. In particular, he discusses how the wording of Article 77(2) affects the scope of the prohibition of children’s participation in hostilities. The author also examines the language of Article 77(2) with regard to the recruitment of children into armed forces, discussing the meaning of terms such as recruitment, conscription, enlistment and armed forces.

With regard to the 1977 Additional Protocol II to the Geneva Conventions, which applies to non-international armed conflicts, the author contends that it provides for a near-absolute prohibition of the use or recruitment of children, and that this is possibly the only instance where Additional Protocol II offers a larger protection to victims of armed conflicts than Additional Protocol I.

Chapter 4 investigates the interplay between IHL and international human rights law (IHRL) with regard to the prevention of child soldiering. Waschefort compares the prohibition of child soldiering under these two legal regimes and analyses possible solutions to conflicts of norms. In particular, he argues that the relevant provisions in the 2000 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict are more restrictive for state actors than non-state actors and therefore conflict with the IHL principle of equality of belligerents. He proposes that the solution to such conflict of norms lies in the application of the lowest common denominator between these norms. This chapter also covers the relevant provisions of the 1999 ILO Convention No. 182 on the Worst Forms of Child Labour and the 1981 African Charter on Human and Peoples’ Rights.

The author proceeds to examine the prohibition of child soldiering under customary international law. He refers to the ICRC study on Customary IHL published in 2005, which identifies the existence of customary rules of IHL that prohibit the recruitment of child soldiers and the participation of children in hostilities. He then examines the interplay between IHL and IHRL for the formation of custom. Finally, Waschefort contends that, in his view, at the time of the publication of the study these customary rules concerned children under fifteen years of age, but that today customary law prohibits the use of child soldiers under age eighteen, while the age threshold remains at fifteen for the prohibition of recruitment.

Chapter 5 analyses the provisions of international criminal law (ICL) on the enlistment, conscription and use of child soldiers, as well as the capacity of international criminal justice to enforce such provisions and bring social change. Waschefort asserts that the conscription, enlistment and use of child soldiers are now recognised as war crimes under customary international law, but that this was not the case when the ICC Statute was adopted. He argues that the ICC Statute was the first instrument to have prohibited or criminalised the conscription and enlistment of children, thus going beyond the prohibition of recruitment alone. Waschefort criticises the mirroring of this provision by the 2000 Statute of the Special Court of Sierra Leone (SCSL), arguing that it did not have a customary nature at the time when the crimes under the jurisdiction of the Court were committed. Waschefort claims that the SCLS made an error of law that, in view of its retrospective jurisdiction, entails a violation of the principle of legality.

The chapter continues with an analysis of the crime of conscription and enlistment of children as set out in the ICC Statute, and its further development in the Lubanga case. The author maintains that ICL deters child soldiering by making relevant actors aware of the possibility of prosecution for their actions and by promoting the incorporation of the ICC Statute into domestic legal systems. Waschefort urges states to boost deterrence of the enlistment, conscription and use of child soldiers through universal jurisdiction. He adds that the prosecution of children for crimes committed when they were child soldiers would be unlikely to deter other children from voluntarily joining armed groups, as their joining is most often motivated by a lack of alternatives.

In Chapter 6, the author analyses the actual and potential contributions of various mechanisms of the UN and the African Union to the prevention of child soldiering. Waschefort identifies areas where the effectiveness of these institutions and mechanisms can be improved, and calls for their continuous refinement and reassessment.

Chapter 7 presents a case study of the Democratic Republic of the Congo based on interviews of professionals working on the prevention of child soldiering in the country. He describes the role of different UN institutions and mechanisms, and gives examples where child soldiers were successfully demobilised, and where parties to the conflict ceased to further recruit and use child soldiers. Waschefort also identifies points for improvement. For instance, he advocates that the UN Security Council should impose sanctions against persistent perpetrators of the recruitment or use of child soldiers.

The author concludes by arguing that although the norms that prohibit the recruitment or use of child soldiers could be further improved, they are capable of enforcement in their current form. He claims that, to promote social change, international law should go beyond an “era of application”, which is characterised by the combat of impunity and the prevention of the recruitment and use of child soldiers. Social change should address not only the “demand” of child soldiers, but also their “supply” by tackling the causes that lead children to join armed forces and groups.

In summary, International Law and Child Soldiers gives an interesting overview of topics central to the role of international law in the prevention of child soldiering. There are, however, a number of issues with Waschefort’s book. The main argument of the book does not seem particularly novel, and the text does not always flow smoothly. The author also repeatedly refers to an “era of application” for international law, but never clearly defines it. Nevertheless, the book makes a number of contributions to the understanding of the child soldiering phenomenon and the relevant legal framework.

The book combines the analysis of data on the situation of child soldiers across the globe with an analysis of the relevant international norms and a case study. Its main contributions to the literature are perhaps the analysis of the interplay between IHL, IHRL and ICL to form a legal framework of protection, and the suggestions for improving their enforcement. The case study in the DRC is an inspiring highlight of the book. Waschefort conducted four months of fieldwork in the DRC at a time of escalation of violence, from October 2008 to January 2009, and visited especially affected areas such as the North Kivu. Although sometimes repetitive, the book has merits of explaining the relevant legal concepts and being accessible to readers of various backgrounds.

The views expressed in this book review are the author’s own and are not necessarily shared by the British Red Cross Society or the International Committee of the Red Cross.

 

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