The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (OPAC), also known as the child soldier treaty, is a multilateral treaty whereby states agree to: 1) prohibit the conscription into the military of children under the age of 18; 2) ensure that military recruits are no younger than 16; and 3) prevent recruits aged 16 or 17 from taking a direct part in hostilities. The treaty also forbids non-state armed groups from recruiting anyone under the age of 18 for any purpose.
Throughout history and in many cultures, children have had extensive involvement in military campaigns.[3] In World War I, in Great Britain 250,000 boys under 18 managed to join the army.[4] In World War II, child soldiers fought throughout Europe, in the Warsaw Uprising,[5] in the Jewish resistance,[6] and in the Soviet Army.[7] After the Cold War ended, the number of armed conflicts grew and the use of children for military purposes surged, affecting as many as 300,000 children worldwide annually by the end of the 1990s.[8]
Progress towards ending the use of children for military purposes has been slow, partly because many national armed forces have relied on children to fill their ranks.[9][10][8] Initial efforts to limit the participation of children in armed conflict began with the adoption of the Additional Protocols to the 1949 Geneva Conventions, adopted in 1977 (Art. 77.2).[11] The new Protocols prohibited the military recruitment of children aged under 15 and their direct participation in hostilities, but continued to allow state armed forces and non-state armed groups to recruit children from age 15 and use them in warfare.[12] In addition, the Protocols did not prohibit belligerents from using children younger than 15 in hostilities when their participation was not "direct"; for example, as scouts, porters, informants, spies, message-carriers and in other support roles.
When the same limited standards were incorporated into the Convention on the Rights of the Child (CRC) in 1989, children's rights advocates were left frustrated, believing that a treaty establishing the fundamental rights of children ought to protect them from all forms of military involvement.[8] To achieve this, a small group of human rights campaigners and sympathetic governments began a global campaign for a new treaty, which was adopted in 2000 as the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OPAC).[8]
The campaign for a new treaty
Initial negotiations
By 1994, five years after the Convention on the Rights of the Child was adopted, children's rights advocates and sympathetic governments had persuaded the international community to establish a working group of the United Nations Commission on Human Rights.[8][13] Its mandate was to begin negotiations on a new protocol to the Convention that would raise standards regarding the use of children for military purposes.
While the large majority of states negotiating the protocol were willing to end all military recruitment of children under the age of 18 (the so-called "straight-18" principle), a small number were opposed: Bangladesh, Cuba, Israel, South Korea, Kuwait, Pakistan, the United Kingdom (UK) and the United States (US). According to Jo Becker, a human rights advocate actively involved in the negotiations:[14]
Governments began a series of annual negotiations in Geneva, but by 1998, negotiations floundered as it became clear that governments that had long used under-eighteens in their national armed forces, notably the United States and United Kingdom, were not willing to support a new standard that conflicted with their national practice.
While some of the states opposed to the change said nevertheless that they would not block it, the US insisted on its position, according to Becker.[8]
Instrumental in gathering high-level support for the treaty was a proposal by children's rights advocates for a major study on the effect of armed conflict on children.[13] The study was proposed by the Committee on the Rights of the Child, commissioned by the UN General Assembly, and produced by Graça Machel in 1996: Impact of armed conflict on children.[15] The report was particularly concerned with the use of younger children as participants in armed conflict, presenting evidence that many thousands of children were being killed, maimed, and psychiatrically injured around the world every year. It also called for an end to the recruitment of children by all armed forces.[15]
With initial funding from the Canadian government, the Coalition organised a series of intergovernmental regional conferences; the African and Latin-American conferences strongly supported the straight-18 principle.[8] The European conference supported an end to the participation of children in armed conflict, but not their recruitment, due to opposition from Austria, France, Germany, Luxembourg, the Netherlands and the UK, which were all recruiting children aged 16 or 17 into their own armed forces.[8] (As of 2023[update], all except Luxembourg were still doing so.)[16]
In the final negotiations, only five states still advocated against the straight-18 principle: Egypt, Kuwait, Singapore, the UK and, most trenchantly, the US.[17] The US, with British support, continued to insist that it would not support a treaty that prevented it from sending 17-year-olds into battle.[8][17] According to Becker, the US relented following an intervention from Secretary of StateMadeleine Albright, although the US and UK continued to insist on their right to recruit children from age 16 (UK) and 17 (US).[8]
This change allowed a compromise consensus between the negotiating parties, in which the new treaty would not prevent states from recruiting children into their armed forces from age 16 or 17, but would require that "all feasible measures" be taken to ensure that children did not participate "directly" in hostilities.
Extent of ratification and the straight-18 position
The OPAC treaty has been widely ratified. As of 2023[update], 173 states had ratified or acceded to the treaty; a further seven states had signed but not yet ratified it (Haiti, Iran, Lebanon, Liberia, Nauru, Somalia, and Zambia).[1]
Following OPAC's adoption, the number of states restricting enlistment in law to adults aged over 18 has increased substantially from 83 in 2001 to 155 in 2023, which is 78 percent of UN member states.[9][16] These include several states where child recruitment had been routine, including Colombia and Sierra Leone.[8] Approximately 60 non-state armed groups have also entered agreements to stop or scale back their use of children.[18]
Despite this trend, Child Soldiers International reports that the recruitment of children for military purposes remains widespread, including by armed forces in the three most populous countries – China, India and the United States – and the most economically powerful (all G7 countries apart from Italy and Japan).[10] A large number of non-state armed groups also recruit and use children routinely, especially following a recent surge in child recruitment by militant Islamist movements in Africa and the Middle East, as well as by militias opposing them.[9][19]
'OPAC turns 18': 18th Anniversary event, 2018
On 21 February 2018 a meeting was held at the UN to mark the treaty's 18th anniversary.[20] The meeting, co-sponsored by Child Soldiers International, UNICEF, and the governments of Belgium, Canada, Colombia, France and Sierra Leone, was attended by approximately 100 delegates. The Special Representative of the UN Secretary-General for Children and Armed Conflict, Virginia Gamba, reported on the progress made and still to be achieved since the treaty was adopted:
We have really come a long way. Today, 18 years later, we should celebrate the quantifiable progress accomplished. The issue of children and armed conflict has been squarely placed on the international peace and security agenda. Since 2000, at least 130,000 child soldiers were released due to the collective efforts of child protection actors. Thousands more were spared the ordeal of recruitment and use – because their country has joined OPAC and put in place measures to protect them. Making sure all boys and girls released and their communities have access to meaningful reintegration – to help them overcome the harrowing experiences they have been through – is essential. But this remains a huge challenge.
Provisions of the OPAC treaty
Main obligations
The main obligations of the OPAC treaty are as follows:[21]
No state party may recruit any person who has yet to attain a minimum age specified by the state (in a binding declaration deposited with the UN on ratification), and in all cases the minimum age must not be lower than 16 years.
States parties whose armed forces recruit children aged 16 or 17 must:
not compel children to join their armed forces;
ensure that "reliable proof of age" is provided before enlistment;
ensure prior to enlistment that child applicants are "fully informed" of the duties of military service, that their choice to enlist is "genuinely voluntary", and that their parents or legal guardians give their "informed consent"; and
"take all feasible measures" to ensure that child recruits do not take part directly in hostilities;
Non-state armed groups "should not, under any circumstances, recruit or use in hostilities" any child under the age of 18 (the legal force of this is uncertain, however[13][22][18]).
Other provisions of the treaty include the following:
States parties must cooperate with each other in the implementation of the treaty and support financially and technically "in the rehabilitation and social reintegration" of persons who were recruited unlawfully as children.
Any state can leave the treaty at a year's notice, but not if engaged in armed conflict at the time.
The treaty does not prevent states from operating military schools, which are common in many countries,[9] provided that these comply with the legal requirements governing education in the Convention on the Rights of the Child.
The treaty allows states the option of raising their minimum enlistment age at any point and depositing an updated binding declaration to that effect with the United Nations; any state doing so is then bound by the revised minimum age and may not lower it.
Commentary of the International Committee of the Red Cross
The sentence "States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities" was adapted from Article 77.2 of the Additional Protocol I to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted in 1977, with an alteration from fifteen years to eighteen years and some other minor modifications. ("The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces.")
The ICRC commentary on Protocol I makes clear that it does not require a complete ban on the use of children in conflict. The ICRC had proposed that the Protocol require parties to "take all necessary measures" but final text uses the wording "take all feasible measures" which is not a total prohibition on their doing so. Furthermore, refraining from recruiting children under fifteen does not exclude children who volunteer for armed service. During the negotiations over the clause "take a part in hostilities", the word "direct" was added, opening up the possibility that child volunteers could be involved indirectly in hostilities, gathering and transmitting military information, helping in the transportation of arms and munitions, provision of supplies, etc.[12]
National responses (examples)
Australia
The Australian Defence Force Cadets follows the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict but still accepts cadets between the ages of 13 and 18 (except staff) and sometimes brings them onto ADF bases.
As noted above, at the time of OPAC's negotiation, the UK joined the US in actively resisting the majority view of negotiating states that 18 should be the minimum age for all forms of military recruitment.[8] Then, as now, the UK permits its armed forces to enlist from age 16, and allows children to apply aged 15 years, 7 months.[23][24]
On ratification of the treaty, the UK's binding declaration stated its understanding that, while it would endeavour not to use child recruits in hostilities, the protocol "... would not exclude the deployment of members of its armed forces under the age of 18 to take a direct part in hostilities where: a) there is a genuine military need to deploy their unit or ship to an area in which hostilities are taking place; and b) by reason of the nature and urgency of the situation:- i) it is not practicable to withdraw such persons before deployment; or ii) to do so would undermine the operational effectiveness of their ship or unit, and thereby put at risk the successful completion of the military mission and/or the safety of other personnel."[25]
According to Child Soldiers International, the UK deployed 22 armed forces personnel aged under 18 to Iraq and Afghanistan between 2003 and 2010.[26] The Committee on the Rights of the Child has urged the UK to alter its policy so as to ensure that children cannot take part in hostilities under any circumstances.[27]
^David M. Rosen (January 2005). Armies of the Young: Child Soldiers in War and Terrorism. Rutgers University Press. pp. 54–55. ISBN978-0-8135-3568-5. Archived from the original on 6 February 2016. Retrieved 4 February 2018. The participation of Jewish children and youth in warfare was driven by a combination of necessity, honor, and moral duty.
^ abcdefghijklmnopBecker, J (2013). "Campaigning to stop the use of child soldiers". Campaigning for justice: Human rights advocacy in practice. Stanford, California: Stanford University Press. pp. 11–31. ISBN9780804774512. OCLC837635842.
^Becker, J (2013). Campaigning for justice: Human rights advocacy in practice. Stanford, California: Stanford University Press. p. 14. ISBN9780804774512. OCLC837635842.
Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in armed conflict at Wikisource