10
limb and the second limb of the sentence). It might be putted as; In addition to the
African’s Children Charter, Uganda is Party to other instruments that are directly
relevant to the Communication at hand. These include the Convention on the Rights of
the Child (CRC) and its Optional Protocol to the CRC on the Involvement of Children in
Armed Conflict (OPAC, 2000),7 the four Geneva Conventions (1949), the 1977
Additional Protocols to the Geneva Conventions,8 the ILO Convention No. 182 on the
Worst Forms of Child Labour (1999),9 and the Statute of the International Criminal Court
(1998).10 In support of the potential relevance of other instruments, Article 1(2) of the
Charter provides that “[n]othing in this Charter shall affect any provisions that are more
conductive to the realization of the rights and welfare of the child contained in the law of
a State Party or in any other international Convention or agreement in force in that
State”.
Alleged violation of Article 22(2) (children recruitment and use in armed conflict
40.
The African Charter on the Rights and Welfare of the Child is the first regional
treaty to establish 18 as the minimum age for all [compulsory] military recruitment and
participation in hostilities.
The Charter, in Article 2, defines a child as “every human
being below the age of 18 years”. In Article 22(2), States Parties are obliged to “…take
all necessary measures to ensure that no child shall take a direct part in hostilities and
refrain in particular, from recruiting any child”.
41.
Emerging international jurisprudence and practice points that “direct part in
hostilities” should cover 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.11The implication of this is that a
wider definition is being offered for the notion “child soldier” than one who has a
combatant status only.
42.
Children's recruitment in armed conflict is either by force (conscription) or
voluntary (enlistment).12 Therefore the concept of “voluntary recruitment” exists in
international human rights law. For instance, Article 3(3) of the Optional Protocol to the
CRC on the involvement of children in armed conflict (OPAC) (which Uganda has
ratified) obligates States to maintain safeguards with respect to voluntary recruitment by
7
This raises the age to 18 for compulsory recruitment and also pays attention to recovery and social
reintegration of children.
8
Mainly imposes an obligation to refrain from recruiting and using children under the age of 15 in
hostilities
9
Defines as one the worst forms of child labour the forced or compulsory recruitment of children under 18
for use in armed conflict
10
Defines as a war crime the recruitment and use for active participation in hostilities of children under
the age of 15
See draft Statute for the ICC, Report of the Preparatory Committee on the Establishment of an International
Criminal Court, Addendum, Part One, A/Conf.183/2/Add.1 (14 April 1998) 21 as cited in H Hebel and D Robinson,
“Crimes within the jurisdiction of the Court” in R S Lee (ed.), The international Criminal Court, The making of the
Rome Statute, issues, negotiations, results (1999) 118.
11
12
Even though voluntary recruitment is often coupled with hidden forms of coercion