Established in 2002 as the formal successor to the Organisation of African Unity (OAU), the African Union (AU) has found itself plagued by both institutional and political obstacles. The doctrine of state sovereignty has perpetuated an emphasis on non-interference, reducing the efficacy of the AU with regards to settling conflict and battling corruption.⁽²⁾ Among the most heinous of crimes currently facing the African continent and consequentlyalso the AU, is the recruitment and utilisation of child soldiers in both interstate and intrastate conflict.

The AU has attempted to address the prevalence of child soldiers through its numerous treaties and institutions. This CAI paper focuses on the African Charter on the Rights and Welfare of the Child (ACRWC)and, through comparison with the international legal framework, assesses the relative standard of the AU legislation. Through a consideration of the Lord’s Resistance Army(LRA) and its actions in Eastern Africa, the efficacy of AU efforts to follow through on its commitments is examined.

Child soldiers and international protection

Following the atrocities of World War II, the global trend has been one of increased integration and attempts to legislate against what are now perceived to be crimes perpetrated against humanity as a whole. The inception of the United Nations (UN) and, more recently, the International Criminal Court (ICC) have further consolidated the view that collective action is the best weapon with which to fight against human rights violations and impunity. With regards to the recruitment and use of child soldiers, the international community has made efforts to both outlaw and prosecute the exploitation of children in situations of conflict.

Unfortunately, attempts to eliminate the phenomenon have been met with little success. Children, by their very nature, find themselves pursued by armed groups as an expendable resource; “children are ‘attractive’ participants in armed conflict for a number of reasons. They can be intimidated and ‘moulded’ relatively easily, are vulnerable to outside influences and can be trained to become efficient soldiers.”⁽³⁾ When conflict is intense and body counts high, the abduction and indoctrination of children can provide a valuable means for the perpetuation of an otherwise doomed rebel movement. This is most certainly the case with the LRA in northern Uganda, as shall be discussed. With wars in Africa accounting for one-third of the world’s 300,000 child soldiers,⁽⁴⁾ it is vital that both international and regional commitments are concrete, rigorous and enforced. As the world’s most vulnerable generation, there is undoubtedly an international duty to protect; “direct participation in war by children ‘violates their innocence, exploits their particular vulnerability, and destroys their future and, therefore, the future of their society.’ The violence that the children experience during the war leaves them physically or emotionally scarred.”⁽⁵⁾

With the AU best placed, both geographically and contextually, to tackle the exploitation of African children in conflict situations, it is necessary to examine the treaty-based commitments made by the organisation and its member states. Of principal importance to the child soldier phenomenon is the ACRWC, which entered into force on 29 November 1999. Recognising that “the situation of most African children remains critical,” the Charter commits signatories to the comprehensive protection of children and their rights. Particularly vital to the purposes of this paper is the Charter’s definition of a child – shared by international treaties – as “every human being below the age of 18 years.”⁽⁶⁾

Dealing specifically with children in the midst of conflict, Article 22(2) delineates the responsibility of States Parties 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.”⁽⁷⁾

The AU’s insistence that no child shall be recruited makes the ACRWC by far the most comprehensive international prohibition on the issue. While, as noted above, all relevant international treaties share the AU’s definition of the child as any person under the age of 18, there is a failure to offer protection to all of those covered by this definition. The Convention on the Rights of the Child (CRC), adopted by the UN in September 1990, prescribes that signatories “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.”⁽⁸⁾ This is a commitment shared by both Protocol I (Article 77) ⁽⁹⁾ and Protocol II (Article 4) ⁽¹⁰⁾ of the Geneva Conventions. With the ICC representing the international community’s determination to protect the vulnerable and prosecute the most horrific of crimes, one might expect it to offer a prohibition equivalent to that of the ACRWC. The Rome Statute, the ICC’s founding treaty, unfortunately fails to bridge the gap left open by the CRC and Geneva Conventions. Article 8(2)(e)(vii) prohibits the recruitment of children under the age of 15, placing violations of this article in the category of war crimes.⁽¹¹⁾

While recognition of the need to make explicit international commitments on the recruitment of child soldiers is an important step, it is undeniable that the majority of international treaties fail to offer comprehensive standards of protection. While the ACRWC, and consequently the AU, affords protection to all children, the aforementioned international treaties fail in this obligation; they make an unsubstantiated distinction between the ‘child’ and the ‘child soldier.’ By offering protection to those under the age of 15, they create a generation that is lost to the law; they suggest that those aged 15 to 17, while still children, do not warrant the protection of the international legal system. While the scope of this paper does not allow for consideration as to why international standards do not fulfil their duty to protect in this regard, it is vital to emphasise that this gap is a norm in the legal framework. In comparison, and despite concerns over its capacity and stability, the AU’s ACRWC makes no such distinction; it offers the most comprehensive treaty-based protection to its children and throws light on the inadequacy of international standards.

The AU and the LRA

While a thorough legislative platform is essential when attempting to eliminate the use of children in conflict situations, it must represent more than a rhetorical commitment. With the relative prevalence of child soldiers so high on the African continent, the AU must be prepared to hold States Parties accountable to their obligations and step in to protect vulnerable children. In assessing the concrete action taken by the AU to enforce treaty obligations, this paper will turn to the case of the LRA in eastern Africa as a demonstration of the AU’s capacity and willingness to take steps in combating illegal action and impunity.

The LRA emerged as a consequence of political instability in Uganda. The 1980s saw a succession of attempts at government overthrow, resulting in the accession to power of the guerrilla National Resistance Army’s leader, YoweriMuseveni, in 1986. While many rebel groups dissipated following Museveni’s success, a number of splinter groups continued in attempts to bring down the government. Among the most powerful of these was the LRA, led by Joseph Kony.⁽¹²⁾

The LRA has committed the most unimaginable of atrocities in northern Uganda and, now operating in the Central Africa Republic (CAR) and South Sudan, the threat that the LRA poses remains very real. Having waged war since the mid-1980s, the LRA has relied heavily on the abduction of children to fill its ranks. As Abigail Leibig reports, “according to Human Rights Watch, conservative estimates of the number of children abducted by the LRA since 1986 are around 20,000. The United Nations Children´s Fund (UNICEF) reported to Human Rights Watch that 4,500 children were abducted in 2002 alone.”⁽¹³⁾ One survey estimates that 97% of the LRA’s former child soldiers experience symptoms indicative of Post-Traumatic Stress Disorder(PTSD); ⁽¹⁴⁾ this is unsurprising given reports of abducted children forced to murder relatives, friends and fellow abductees as a means of initiation and indoctrination.⁽¹⁵⁾ The brutality of life with the LRA is something to which no child should find themselves subject. After almost three decades of abductions and murders, there is an obligation on the part of the AU and the international community to bring this conflict to an end.

Armed with the ACRWC and the duty to ensure that no child is recruited for conflict, the AU has found itself under pressure to act. Unfortunately, constraints on its capacity, as well as a lack of tangible military force,⁽¹⁶⁾ have limited the action that the AU has taken with regards to combating the LRA. Dependent on member states to constitute its peacekeeping force, the AU has relied heavily on its Peace and Security Department (PSD) in dealing with the LRA situation. The PSD was established in order to give “support to the efforts aimed at promoting peace, security and stability on the Continent.”⁽¹⁷⁾ On 22 November 2011, the PSD launched the Regional Cooperation Initiative for the Elimination of the LRA (IRCLRA), an AU-led mission designed to “strengthen the operational capabilities of the countries affected by the atrocities of the LRA” and assist in stabilisation.⁽¹⁸⁾ The mandate of the IRCLRA also extended to civilian protection, the improvement of communication and, of most relevance to the topic under discussion, to “facilitate effective psychological operations to encourage defections from the LRA, and the implementation of strategies for demobilization and reintegration of ex-combatants into their communities of origin.”⁽¹⁹⁾ It is interesting that the Communiqué outlining the IRCLRA operationalisation and mandate fails to make explicit reference to the obligation to remove child soldiers from the grasp of the LRA and protect civilian children from abduction, but it is possible that this duty can be read as inferred. Having been launched at the end of 2011, the tangible success of the mission is unknown; however, with the LRA still active, the goal of elimination has clearly not been achieved.

Most recently, on 3 January 2012, a joint AU-UN Mission to the countries affected by the LRA presence was announced. The mission will travel from CAR to Juba, South Sudan, will then move on to Kampala, Uganda and terminate in Kinshasa, Democratic Republic of Congo (DRC). The goal of the mission is to “accelerate the implementation of the regional initiative of cooperation against the LRA (IRCLRA) whose launch...is supported by the United Nations and other members of the international community.”⁽²⁰⁾ Given the perceived need to “accelerate the implementation” of the IRCLRA, progress has clearly been lacklustre. What this new initiative will bring in terms of success is uncertain but it is apparent that the AU has made limited achievements in its attempts to eliminate the threat posed by the LRA.

Implications and recommendations

The AU is undoubtedly facing an uphill battle in its attempts to tackle the prevalence of child soldiers on the continent. While it is reassuring that the organisation has a demonstrable willingness to offer the most rigorous form of legislative protection to children in conflict situations, as prescribed by the ACRWC, there is an apparent inability to enforce the subsequent treaty obligations. The LRA, perhaps one of the most brutal rebel forces to have waged war on the continent, has carried out indiscriminate abductions for almost three decades; the Ugandan Government has failed to follow through on its duty to protect and has turned to both the regional and international community for assistance. The AU has, however, been slow to respond.

One of the greatest difficulties facing human rights is the ease with which rhetorical commitments can be made and left unenforced. The AU’s stance on the plight of the child soldier seems to be, however, more than mere rhetoric. The decision to go beyond international standards in affording legislative protection to all persons under the age of 18 suggests recognition of both the horrific nature and prevalence of the phenomenon. While action to enforce the obligations under the ACRWC with respect to the LRA has been limited, attempts have been made; a relative lack of concrete action appears to be more demonstrative of restrictions on capacity and resources. The AU also faces the problem of a multiplicity of actors in the region; the UN, the United States government, and a number of non-governmental organisations are all pursuing separate agendas in the region. For the AU to determine its own role amongst this confusion of players is a daunting task, particularly with the organisation currently fighting battles on numerous fronts.

While the AU’s enforcement of its treaty provisions is undeniably inadequate, it has an effective platform from which to work. Commitments have been made and the organisation remains the best placed, in both a geographical and cultural context, to facilitate an end to the LRA’s violence and impunity. What the AU lacks, however, are the resources to effectuate concrete enforcement. Until its capacity has grown, cooperation with international organisations offers the AU an opportunity to pursue its agenda and enforce its commitments. When lives are at stake and the vulnerable are without protection, rhetoric is not enough. The AU has the will and must now find the means.

Written by Laura Clarke ⁽¹⁾

NOTES:

(1) Contact Laura Clarke through Consultancy Africa Intelligence’s Rights in Focus Unit (rights.focus@consultancyafrica.com).
(2) Taylor, I., 2010. The international relations of Sub-Saharan Africa. The Continuum International Publishing Group Ltd.: London.
(3) Freeland, S., 2008. Mere children or weapons of war: Child soldiers and international law. University of La Verne Law Review, 29, pp. 19-55.
(4) Silva, J. R., 2008. Child soldiers: A call to the international community to protect children from war. Suffolk Transnational Law Review, 31, pp. 681-710.
(5)Ibid.
(6) ‘African Charter on the rights and welfare of the child’, African Union, 1999, http://www.africa-union.org.
(7) Ibid.
(8) ‘Convention on the rights of the child’, United Nations, 1990, http://www2.ohchr.org.
(9) ‘Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I)’, 1977, http://www.icrc.org.
(10) ‘Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol II)’, 1977, http://www.icrc.org.
(11) ‘Rome Statute of the International Criminal Court’, United Nations, 1998, http://untreaty.un.org.
(12)Leibig, A., 2005. Girl child soldiers in northern Uganda: Do current legal frameworks offer sufficient protection? Northwestern University Journal of International Human Rights, 6(3), pp. 1-16.
(13)Ibid.
(14) Silva, J. R., 2008. Child soldiers: A call to the international community to protect children from war. Suffolk Transnational Law Review, 31, pp. 681-710.
(15) Mendes, E.P., 2010. Peace and justice at the International Criminal Court: A court of last resort. Edward Elgar Publishing Ltd.: Cheltenham.
(16) Taylor, I., 2010. The international relations of sub-Saharan Africa. The Continuum International Publishing Group Ltd.: London.
(17) Peace and Security Department website, http://www.au.int.
(18) ‘Communiqué’, Peace and Security Council meeting, 22 November 2011, http://www.au.int.
(19)Ibid.
(20) ‘Press release: Joint African Union United Nations mission to the countries affected by the Lord’s Resistance Army (LRA), 3 January 2012, http://www.au.int.