"[A] crucial measure of our civilization must be about its human and humane quality. And above all it has to do with how we treat the most innocent and most vulnerable members of our community, those who represent the future of our society, our children." Olara Otunnu (1) Former United Nations Special Representative for Children and Armed Conflict Children are widely protected in international law, with one key exception--the law of targeting. International Humanitarian Law (IHL), which governs the law of armed conflict, specifically protects children from recruitment as soldiers (2) and guarantees children special treatment once they have ceased to participate in hostilities. (3) However, between these phases, there exists a distinct gap in the law. If a child directly participates in hostilities, the law of targeting will not distinguish between that child soldier and their adult counterparts. This paper explores this gap and argues that child soldiers must be treated differently from, and afforded greater protection than, their adult counterparts in the law of targeting.
In the context of child soldiers, IHL's focus is on banning the recruitment of children to serve in armed forces, as enunciated in the 1977 Additional Protocols. (4) However, the recruitment and use of child soldiers has dramatically increased in the 39 years since their adoption. (5) Child soldiers serve in approximately 75 percent of all current armed conflicts (6) and 80 percent of those children are younger than 15 years of age. (7) Almost a quarter of armed organisations use children under the age of 15 in combat roles, (8) with 300 000 children estimated to be currently serving as child soldiers, (9) making up almost 10 percent of all combatants. (10) However, this figure may only represent the 'low end of the likely total'. (11) Despite these developments IHL, and more specifically, the law of targeting, has failed to adapt. Conversely, human rights law has continued to exponentially develop and expand the protection of children in international law. (12) These developments demand that IHL adapts to recognise the plight of the modern child soldier and bring the law of targeting into the 21st century.
Part I of this paper explains the law of targeting in its current formulation and its application to child soldiers. Part I concludes that despite arguments to the contrary, child soldiers remain targetable, akin to their adult counterparts. Part II of this paper explores the fundamental tension between military necessity and humanity in IHL. It explains why considerations of humanity demand greater protection of child soldiers. The paper goes on to consider the compatibility of this greater protection with military necessity, concluding that in the law of targeting, the balance between military necessity and humanity is currently skewed in favour of military necessity. To remedy that balance, this paper proposes two additions to the law of targeting limiting the circumstances in which a child is targetable. Recognising the need for any change to IHL and the law of targeting to be pragmatic, Part III tests the practicality of the proposals in four distinct case studies and examines the potential shortcomings of these proposals. Despite these considerations, this paper contends that these changes are a necessary addition to IHL in order to strike a more appropriate balance between considerations of humanity and military necessity.
II The Protection and Targeting of Child Soldiers Under IHL
The term 'child soldier' is not defined by treaty and there is no consensus regarding the meaning or extent of childhood in international law. Various international conventions define the end of childhood as anywhere between 15 and 18 years. (13) In this thesis, 'child soldier' is used in a broad, non-technical sense to refer to children under the age of 15 (14) who are 'part of any kind of regular or irregular armed force or armed group in any capacity'. (15)
IHL affords children special respect and protects them against any form of indecent assault. (16) It also seeks to prevent their recruitment into armed forces or organised armed groups. (17) If indeed children are recruited and participate directly in hostilities, once captured and ceasing to participate in hostilities child soldiers are afforded special protection under international law, above and beyond that of their adult counterparts. (18) However, there is currently no specific protection for child soldiers in the law of targeting. Accordingly, at present the targeting of child soldiers is governed by the same rules of IHL as those applicable to adults, in particular the principles of distinction and proportionality.
The Principle of Distinction
At the core of IHL is the fundamental distinction between civilians and combatants. (19) The principle of distinction mandates that all parties to a conflict must distinguish between civilians and combatants, and civilian objects and military objectives. (20) Civilians are generally protected against attack, and attacks can only be directed against military objectives. (21) Determining who is subject to protection under the principle of distinction is dependent on whether the conflict is classified as international armed conflict (IAC) (22) or non-international armed conflict (NIAC). (23)
In IAC civilian is essentially defined by Additional Protocol I (24) and reflected in state practice (25) as all those who are not members of a party to the conflict. Combatants (26) have combatant privilege, this means they have the right to participate in armed conflict (27) and are immune from prosecution for lawful acts of war. (28) Under IHL all combatants can be targeted, regardless of whether they pose an immediate threat. (29) Child soldiers can be classified as a combatant under IAC even though their recruitment is unlawful. (30)
In contrast, while treaty law applicable in NIAC protects civilians against attack, (31) civilian remains undefined. (32) An early draft of Additional Protocol II (applicable in NIAC) defined civilian as 'anyone who is not a member of the armed forces or of an organized armed group.' (33) Although this definition was not included in the final text it was repeated in the International Committee of the Red Cross' Interpretive Guidance on the Notion of DPH (ICRC Interpretive Guidance). (34) The International Institute of International Law's manual on the law governing NIAC defines civilians as 'all those who are not fighters', with civilians who participate directly in hostilities deemed 'fighters'. (35) However, the ICRC customary international humanitarian law study found that in NIAC, while 'State armed forces are not considered civilians' it remains unclear whether 'members of armed opposition groups are civilians'. (36) As the majority of child soldiers are recruited into organised armed groups or in NIAC (37) the concept of civilian and its distinction from those who are not protected from attack is particularly important in the context of this paper.
In contrast to IAC, combatant is not defined or used in NIAC, although it is generally accepted that state armed forces can be considered akin to combatants for 'the purposes of the principle of distinction'. (38) In addition, those who hold a continuous combat function (CCF) arguably hold functional combatancy and are consequently targetable. (39) This means that they are targetable in the same way as combatants in IAC but are not immune from prosecution for their otherwise lawful conduct during warfare. (40) Child soldiers who directly participate in hostilities or hold a CCF are also targetable in NIAC, however, once captured they are granted special protection above that of their adult counterparts. (41)
Direct Participation in Hostilities--an Exception to the Principle of Distinction
Under Article 51(3) of Additional Protocol I and Article 13(3) of Additional Protocol II, a civilian loses the protection afforded by the principle of distinction for such time as they take a direct part in hostilities. (42) Therefore, direct participation in hostilities (DPH) acts as an exception to the principle of distinction. (43) This is particularly important in relation to child soldiers, who participate in conflict in a myriad of ways, some of a civilian nature and some of a military nature. (44) DPH can be viewed as sitting on a spectrum of participation where some acts meet the DPH threshold, such as a suicide bomber, and other acts fail to, such as a child assisting in the preparation of food for combatant forces. (45) Accordingly, DPH is key to determining whether a child is targetable during armed conflict.
International Committee of the Red Cross Interpretive Guidance on DPH
Despite its importance, DPH lacks a precise meaning and remains debatable. (46) To clarify the meaning of DPH, in 2008 the International Committee of the Red Cross released the ICRC Interpretive Guidance following several expert meetings. The ICRC Interpretive Guidance, which is not legally binding, outlines three constitutive elements of DPH: (1) threshold of harm; (2) direct causation; and (3) belligerent nexus. These elements are cumulative, meaning that the conduct of a civilian participating in hostilities must meet all three elements for that conduct to be classified as DPH. Importantly, DPH can include acts preparatory to a specific act of DPH, deployment and return from the execution of an act amounting to DPH. (4)
Threshold of harm
To meet the requisite threshold of harm the civilian's act 'must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against attack.' (48) Harm only needs to be likely, but need not eventuate. (49) Helpfully, the ICRC Interpretive Guidance provides examples of conduct that would...