Targeting and Prosecuting ‘Under-aged’ Child Soldiers in International Armed Conflicts, in light of the International Humanitarian Law Prohibition against Civilian Direct Participation in Hostilities

Abstract

Military commanders involved in international armed conflicts are faced daily with the dilemma of making defensible targeting decisions when they encounter under-aged child combatants. This problem is particularly acute in conflicts involving non-state-armed groups, who are notorious for forcibly abducting child soldiers to swell their ranks. Existing
international law prohibits the recruitment of children under fifteen years of age into any armed forces. In some instances, international law sets the minimum age for recruitment at eighteen years of age, and there are growing calls for this standard to replace the fifteen-year age limit which has achieved customary international law status. Until such time as this eighteen-year limit has achieved customary international law status, these child soldiers are bound by the existing IHL regime, which affords combatant status (and immunity from prosecution) based on an ability to show membership of an armed force. It is argued that the requirements for full combatant status are probably beyond the reach of the average under-aged child soldier. As a result, they remain classified as civilians, albeit participating directly in hostilities without authorisation. As unlawful participants, these civilians are not only legitimate targets in hostilities (for so long as they participate or engage in the continuous combat function), but they also face the possibility of being criminally prosecuted for their actions once they are captured.