<<previous  |  index  |  next>>

VII. International Legal Standards

In the late 1990s a strong international trend developed to raise the minimum age for military service to 18. The Worst Forms of Child Labour Convention (Convention No. 182), adopted by the International Labour Organization in 1999—and ratified by the government of Nepal in 2002—prohibits the forced recruitment of children under age 18 for use in armed conflict as one of the worst forms of child labor.¹¹⁸ Nepal is also a signatory to the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which was adopted by the UN General Assembly in 2000 and entered into force in 2002. The protocol raised the standards set in the Convention on the Rights of the Child by establishing 18 as the minimum age for any conscription or forced recruitment or direct participation in hostilities.

The protocol explicitly addresses the conduct ofnon-state armed forces. Article 4 states that “armed groups that are distinct from the armed forces of a state should not, under any circumstances, recruit or use in hostilities persons under the age of eighteen.”¹¹⁹

Protocol II to the Geneva Conventions of 1949, which applies during non-international armed conflicts (civil wars), prohibits states and non-state armed groups from recruiting or using children under the age of 15 in armed conflict.¹²⁰ Furthermore, such recruitment is identified as a war crime in the Rome Statute for the International Criminal Court (ICC). ¹²¹ In July 2006, after the success of the Jana Andolan, Nepal’s parliament passed a resolution urging the government to accede to the Rome Statute, though the accession has not yet taken place.¹²²

The prohibition on recruiting and using children as soldiers is broader than just children engaged in combat duties and includes children in combat-support and other related functions. The authoritative Capetown Principles and Best Practices define a child soldier as any person under age 18 who is “part of any kind of regular or irregular armed force or group in any capacity, including but not limited to cooks, porters, messengers and those accompanying such groups, other than purely as family members. It does not, therefore, only refer to a child who is carrying or has carried arms.”¹²³

The ICC statute makes clear that individual criminal liability also extends beyond the use of children as armed combatants. Under the ICC, the war crime of recruiting or using child soldiers

[c]over[s] both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase or the use of domestic staff in an officer’s married accommodation. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included…¹²⁴

The Convention on the Rights of the Child requires the government to take “all feasible measures to ensure protection and care of children who are affected by an armed conflict,” and to take “all appropriate measures” to promote the physical and psychological recovery and social reintegration of children who have been victim to armed conflicts.¹²⁵ Article 6(3) of the Optional Protocol provides that a state “shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service,” and “shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.”¹²⁶

As a state party to ILO Convention 182, which defines the forced recruitment of children for use in armed conflict as one the worst forms of child labor, the government of Nepal is obliged to “provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social reintegration, ensure access to free basic education, and wherever possible and appropriate, vocational training, for all children removed from the worst forms of child labour.”¹²⁷ As we discuss above, the government of Nepal has failed in this important regard, even after the ceasefire.