VII. International Legal StandardsIn 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 1999and ratified by the government of Nepal in 2002prohibits 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, Nepals 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
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. 118 ILO Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (Worst Forms of Child Labour Convention), adopted June 17, 1999, 38 I.L.M. 1207 entered into force November 19, 2000, ratified by Nepal on January 3, 2002. 119 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, adopted May 25, 2000, G.A. Res. 54/263, Annex I, 54 U.N. GAOR Supp. (No. 49) at 7, U.N. Doc. A/54/49, Vol. III (2000), entered into force February 12, 2002. Nepal signed the Protocol on September 8, 2005 and has started the ratification process, but so far has not completed all formalities necessary for ratification. Nevertheless, as a signatory of the Protocol, Nepal is "obliged to refrain from acts which would defeat the object and purpose" of the treaty. Vienna Convention on the Law of Treaties, UN Doc A/Conf 39/28, UKTS 58 (1980), art. 18. 120 Nepal ratified the four Geneva Conventions in 1964. 121 Rome Statute of the International Criminal Court, U.N. Doc.A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, arts. 8(2)(b)(xxvi) and 8(2)(e)(vii), Nepal is not a signatory to the ICC statute, however members of CPN (M) who recruit children under the age of 15 may still be criminally responsible for acts amounting to war crimes under international law. In May 2004 the Appeals Chamber of the Special Court for Sierra Leone ruled that the prohibition on recruiting children below age 15 had crystallized as customary international law prior to 1996, citing the widespread recognition and acceptance of the norm in international instruments such as the Convention on the Rights of the Child and the Additional Protocols to the Geneva Conventions. The Special Court for Sierra Leone also found that the individuals responsible for recruiting children under the age of 15 bear criminal responsibility for their acts:
Summary of Decision on Preliminary Motion on Lack of Jurisdiction (Child Recruitment), Prosecutor v. Sam Hinga Norman, Appeals Chamber of the Special Court for Sierra Leone, May 31, 2004, Case Number SCSL-2003-14-AR72 (E). 122 Nepal parliament directs government to ink Rome statute, Nepal Mountain News, July 26, 2006, http://www.nepalmountainnews.org/news.php?subaction=showfull&id=1153887259&archive=&start_from=&ucat=11& (accessed January 15, 2007). 123 UNICEF, Cape Town Principles and Best Practices, April 1977, http://www.unicef.org/emerg/files/Cape_Town_Principles(1).pdf (accessed October 17, 2006). 124 See Michael Cottier, in Otto Triffterer,ed., Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Baden-Baden: Nomos Verlagsgesellschaft:), p. 261. 125Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, arts. 38, 39. 126 Ibid, art. 6(3). 127 ILO Convention 182, art. 7 (2) b and c. |