Protection of Children Participating in Hostilities under International Humanitarian Law and Human Rights Law: Issues of Compliance by Non-State Actors

Abstract

Children enjoy legal protection under international humanitarian law and international human rights law. In situations of armed conflict, children are granted not only general protection as civilians, but special protection as children. Several legal provisions exist in the Geneva Conventions and its Additional Protocols, along with the Convention on the Rights of Child and its Second Optional Protocol on Children in Armed Conflicts. However, despite the current legal framework providing protective rights to children, there are serious issues of compliance by non-state actors, particularly in reference to inducting and using child soldiers. This highlights several legal challenges to international humanitarian law vis a vis the diminished protection of children taking direct part in hostilities. This article discusses the current legal regime protecting children in armed conflict, who take direct and indirect part in hostilities. Thereafter, an analysis is made of situations of international and non-international armed conflicts and the difference in protections accorded to these children, respectively. Lastly, an analysis is made of the compliance mechanisms that may be developed for non-state actors under international humanitarian law to prevent recruitment of children for taking direct or indirect part in hostilities. The issues of compliance by non-state actors and possible responses to such challenges are also addressed.