JURIST - Paper Chase: Law on conscription of children

[JURIST] From Thursday's US Central Command briefing [transcript] in Qatar:

Our field commanders report that in the vicinity of An Najaf, as one example, Iraqi regime forces are seizing children from their homes, telling their families that the males must fight for the regime or they will all face execution.

International law prohibits the recruitment of children for participation in hostilities. Article 38 of the 1989 Convention on the Rights of the Child [text] says:

1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.

2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.

3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.

4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.

Iraq is a party to the Convention; the United States has signed but not yet ratified the treaty. Associated with the Convention is the 2000 Optional Protocol on the involvement of children in armed conflict [text], which extends the range of protection upwards to 18 years. The US ratified the Optional Protocol in December 2002.

Provisions similar to Article 38 of the Child Rights Convention can be found in Article 77(2) of the 1977 Additional Protocol 1 to the Geneva Conventions [text]:

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. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest.

Unfortunately, Iraq is not a party to this instrument. It should also be noted that Article 8 of the Rome Statute [text] establishing the International Criminal Court grants the court power to prosecute war crimes such as "conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities." Neither Iraq nor the United States are party to the Rome Statute.