Author – VISHAKHA MAHICHA (National Law University, Delhi)
Statement of problem
Over past years, the forceful recruitment of child soldiers has become a matter of increasing international concern. This article focuses on the predicament of children and all the problems, not only physical but also psychological problems they go through (as recruitment of children in war becomes more abhorrent and disgusting when one sees the psychological effects of armed conflicts on the children) at the time of any internal or international conflict, any war, any political riot or any natural disaster or calamity which cannot be prevented. Secondly, the role of the International and Domestic laws in improving the status of children, the steps taken to improve the status of children.
Q1. Whether conscription of children constituent’s child labor under International Law?
Q2. Whether conscription of children in war-inflicted areas violates international law?
This paper argues that how forceful recruitment of children in an armed conflict violates their basic living rights and deprives them of their childhood in respect to domestic and international laws.
In any international or non-international armed conflicts, in an internal emergency, any disaster or any war situations, the most affected ones are the children. Child soldiering is one of the worst practices of institutionalized child abuse and every time any war broke, a very large number of children are somehow dragged or get involved in this situation and suffer the most and there are several reasons because of which this happens the huge gap in the implementation of the law is one of the major reasons. Other reasons like impotence on the part of the state or sometimes even society contribution to this situation. The first part of the paper argues on the points which led to conscription. The second part argues on how conscription is violation of child labor.
History of conscription
Conscription, in general, is a draft of compulsory enrollment or matriculation for service in the country’s armed force. This military draft forces people (especially men from 18 to 25) to enroll their names irrespective of their wish or their experience. In simple words, it is the forceful enrollment of people in military services. The practice of conscription is not new; it came into existence thousands of years ago. Its origin is marked by ancient Mesopotamia. The very first modern enlistment of man for conscription was recorded in the French Revolution during the late seventeenth century as French was invaded in 1783. It was made compulsory for all the men between the ages of 18-25 to compulsory enroll their name in the military service.
Conscription from the very beginning was a contentious subject. Several questions are raised at different times in the history of conscription. Some based on equality, some related to the financial status of a country, some related to the economic status of the country.There are many arguments raised by many social activists, scholars regarding the legislation of conscription. In India, there is particular no law regarding mandatory military service. The idea of armies in India was first seen in Vedas during the war. It was ordered by the king that there will be a man participating from each house to help the king to save the kingdom. There are times when it was decided by the government that there would be conscription but then it was not finalized due to several reasons, this is why there are fewer cases about conscription.
Why children voluntarily enroll themselves?
There are many social, cultural, political and economic factors categorized which create such situations which motivate children for recruiting themselves in armies. One of the reasons is the deprivation, it came to know in several surveys that children from rich family were not much recruited, and if recruited then not as much as poor children, many displaced or poor families or families without any profitable job or fixed income, sometimes force or sometimes encourages their children to participate in war or to join the military, as they will get proper food to eat, as army promises shelter, food to eat, and also income which lure children to join an army.
There are many ‘pull factors’ which motivate children to voluntarily or involuntarily enroll themselves in the war; one of the major factor is poverty and the socio-economic status, at the time of the war or any riots, most of the children loss their family members and become alone and have nowhere to go, these children, ultimately for a proper living join army. Secondly, the sociocultural factors, lower class were oppressed by higher class people to join the army. A research in an army camp shows higher number of lower-class people than that of higher-class ones. Thirdly, the environment at the time of war, which is the main reason to motivate children, from the early childhood they are trained to fight and to kill others. Children born at the time of war conceived by the raped women only see violence and had taught that they are born for this only. The children born at the time of the war are obviously ostracized by their community, discriminated, had high suicide rates, poor health, less education and very low income than other children of the same age. Because of this ostracization, lack of education, unable to find employment, these children may pick arms and enroll themselves in army. Thomas Lubanga Dyilo, was the first person convicted by the International Criminal Court for conscripting, recruiting and using children, under the age of 15 years, in an armed conflict. There were several other charges on him of rape violating human rights, murder. At that time, children were abducted and forcefully taken to the military and beaten to participate in the war. Boys were used as bodyguards and young girls were used as sex slaves. He was arrested on 19 March, 2005 and was imprisoned in Makala, Kinshasa. After several trials, finally on 10 July, 2012, he was held guilty of abducting and forcefully recruiting boys and girls and was sentenced to a total period of 14 years.
How conscription is violation of child labor?
Conscription of adults was somewhere reasonable as there was a need to maintain the security, but when state started recruiting children, it not only raised questions on domestic laws but also on international laws. Children around the globe are directly or indirectly engaged in paid or unpaid works which are harmful for them but not all works done by them are classified under violation of child labor. International labor Organization defines “child labor” a work that deprives children of their childhood, their potential and dignity, and which is physically, mentally, socially, morally harmful to children, also which interferes with their schooling, obliging them to leave school because of excessively long and heavy work. The reason why conscription is considered as violation of child labor is that it engages children in activities which not only destroys their childhood, but also disturb their education and have a very bad impact, physically or mentally, on them. According to a survey, armed conflicts adversely affected the life of the children and also children’s access to education as they were stopped from attending schools and forced to join the army. The act of state, of recruiting children during any armed conflict, voluntary or forcefully, irrespective of their age and gender directly violates the Minimum Age Convention, 1973 (Convention No. 138), which prohibits the work of children in hazardous situations under the age of fourteen years. This convention of minimum age applies on all the economic sectors whether they are paid or they are working on their own will. Other than minimum age convention, International Labor Organization launched an International Programme on the Elimination of Child Labor (IPEC) in 1992 to eliminate child labor and provide them better living environment. In 1998, Declaration on Fundamental Principles ad Rights at Work, adopted that all the countries, whether or not, they have signed the convention, are under obligation of taking action against child labor and to respect the four basic workers’ rights. In 1990, a consensus proclaimed the worst form of child labor to be a major concern and required a quick initiative to eliminate it, and in order to achieve this, several steps were taken on national and international levels. Worst Forms of Child Labor Convention, 1999 (Convention No. 182) define the worst forms of child labor as trafficking of children, forced labor, all types of slavery, compulsory recruitment of children in any armed conflict, pornography, prostitution and trafficking of drugs, some hazardous activities such as work at heights, under water or in industries or factories. The reason these works considered as worst forms of child labor is because they badly affect the health of children, physically or psychologically and in worst cases, it sometimes leads to fracture, amputation, contusion and burns. The impact of war on children is worse than that of adults, as they easily reintegrate with the society but children are often stunned and suffer from various serious psychological disorders such as somatization, insomnia, depression, Post-Traumatic Stress Disorder (PTSD), nightmares, bedwetting, eating disorders, and behavioral problems while interacting with others, difficulty in concentration ang girls who served as sex slaves or prostitutes or as ‘wives’ of soldiers exhibit unhealthy sexual behaviors. Girls when they return home are worried about being accepted by society or even by their own family, some were fearful of sexual contact. Many girls suffered from HIV/AIDS and other Sexually Transmitted Disorders (STD’s). The use of alcohol and drugs or any other intoxicants before going to battlefield, was common and resulted in severe addictions. Regardless of how children are recruited and their roles in army, they suffer serious physical and mental health problems.
International laws on conscription.
Approximately 300,000 children are still currently used as soldiers in more than 30 countries around the world in armed conflicts. Conscripting children is a very disturbing social, economic and political act and is as old as combat. Debates on the plight condition of children in war raised a very big question on the status of child in a society. There are many treaties and laws against child conscription, also there are many activists and human right groups who took the very big and major initiative to end this forceful recruitment. The Conventions of the Rights of Child and United Nations Convention on the Rights of the Child (UNCRC), International Criminal Court (ICC), and Several Humanitarian organizations like Amnesty International. Human Rights Watch, International Committee of the Red Cross (ICRC), United Nations Convention on the Right of the Child (UNCRC) define children a human being below the age of eighteen, but then reconfirms the minimum age of recruitment in army as 15 years and anyone who at the time of internal or external disturbances, or any war situation, forcefully recruit children below the age of fifteen, will be criminally liable for their actions and prosecuted.. And this age limit was applied on all the governmental and non-state actors involved in both international and internal armed conflicts. The International Labor Organization (ILO) Worst forms of Child Labor Convention, adapted in 1999 “prohibit and eliminate the worst forms of child labor and apply to all children below the age of 18 years. A separate article 3(a) prohibits the “forceful and compulsory recruitment of children in any armed conflict under the age of 18 years.”
On 25 May 2000, United Nations adapted Optional Protocol to the Conventions on the Rights of the Child on the involvement of children in Armed Conflict, which says that no states will recruit or conscript children under the age of 18, a state should take all possible measures to prevent the recruitment of children below the age of 18 and will also provide recovery services and will them in social reintegration. One of the important and big steps for improving the condition of children was African Charter on the Rights and Welfare of the Child (1990), which was adapted by Organization of African Unity (OAU) in November 1999. This is the only charter as it sets the minimum age as 18 years without any exception, and prohibits engaging of children in any hazardous activities and also in recruitment of any national service. Also, to reduce the practice of child soldiering is to work on the pushing factors that were discussed above. Government, at the time of internal or external conflict set free camps to provide aid for the affected people.
The study revealed that conscripting children is a constituent of child labor and violates their basic rights of living in a good environment. Conscription violates the various domestic and international laws of children as during conscription children are forcefully recruited, regardless of their age and gender, and are forced to do those which are not only dangerous but can also cause death. Children, specially girls were used as prostitute and wives of soldiers which is a worst form of child labor according to International Child Labor Act. The main conclusion here is that conscription, in itself is not a wrong act but there should be some rules and regulations to be followed so that each and every citizen can enjoy their rights.