BRIEFING TO THE PCOD ON THE UN OPTIONAL PROTOCOL ON THE RIGHTS OF THE CHILD ON THE INVOLVEMENT OF CHILDREN IN ARMED CONFLICT

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BRIEFING TO THE PCOD ON THE UN OPTIONAL PROTOCOL
ON THE RIGHTS OF THE CHILD ON THE INVOLVEMENT OF
CHILDREN IN ARMED CONFLICT
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SCOPE

• Aim
• Background
• Adoption of and Accession to Optional Protocol
• Provisions of the Protocol
• Obligations After Accession
• RSAs Legislation and Policy
• Constitutional Requirements
• Conclusion

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AIM

• The aim of the presentation is to brief the
  Portfolio Committee on Defence on the necessity
  for the ratification of the UN Optional Protocol
  on the Rights of the Child on the Involvement of
  Children in Armed Conflict

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BACKGROUND

• Rome Statute(ICC) Conscripting or enlisting of
  children under the age of 15 yrs or using them to
  participate actively in hostilities is regarded
  as a war crime
• 26th ICRC Conference (1995) Called on parties to
  conflict to take every feasible step to ensure
  that children below 18 yrs do not take part in
  hostilities

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BACKGROUND (Contd)

• ILO Convention no 182 (1999) on Prohibition and
  Elimination of Worst Forms of Child Labour
  Prohibits, inter alia, forced or compulsory
  recruitment of children for use in armed
  conflict

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OPTIONAL PROTOCOL

• UN General Assembly adopts Optional Protocol the
  UN Convention on the Rights of the Child on the
  Involvement of Children in Armed Conflicts on 25
  May 2000
• Authorisation by the President by means of
  Presidential Minute No. 667 for accession by RSA
  to the Optional Protocol on 8 February 2002

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PROVISIONS OF PROTOCOL

• The object of the Protocol is two pronged
• Article 1 Imposes an obligation on State Parties
  to ensure that members of their armed forces
  below 18 yrs (where already enlisted) do not take
  part in armed hostilities
• Article 2 Imposes an obligation to ensure that
  persons below 18 yrs are no compulsorily
  recruited into armed forces.
• In effect the Protocol raises the minimum age for
  recruitment from 15 (Article 38 of Convention)
  to 18 yrs for

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PROVISIONS OF PROTOCOL (Contd)

• Protocol does not prohibit voluntary enlistment
  of children under 18. Consent of guardians needed
  Art 3(2)
• In addition to the above, the Protocol imposes
  strict safeguards for any voluntary recruitment
  under the age of 18 yrs.
• However, the increase of the minimum age does not
  apply to schools operated by or under the control
  of the armed forces.

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PROVISIONS OF PROTOCOL (Contd)

• The Protocol is not limited to armed forces of
  States.
• To this end an obligation is imposed on State
  Parties to
• put in place legal measures to prevent such
  recruitment or use
• criminalise such practice and
• Ensure demobilisation or release from service of
  persons recruited or used in contravention of
  this Protocol.

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OBLIGATIONS AFTER ACCESSION

• Demobilisation and release of children under 18
• Legal measures to facilitate the implementation
  of Protocol
• Report on steps taken to implement the Protocol
• Lodging of Declaration of the age at which RSA
  will permit voluntary recruitment.

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RSAs Legislation and Policy

• RSA has already aligned itself with this
  Protocol
• The new Defence Act, 2002 section 52(1) raises
  the age of enlistment in the SANDF from 17 (old
  Defence Act, 1957 ) to 18 yrs.
• Notwithstanding the above the RSA must decide on
  whether to legislate against recruitment of
  children under 18 by non-state armed forces
  (Constitutional and policy implications?)

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Constitutional Requirements

• Section 231(2) of the Constitution provides that
• an international agreement binds the Republic
  only after it has been approved by resolution in
  both the NA and NCOP, unless it is an agreement
  referred to in sub-section 3
• Section 231(3) only applies to international
  agreements of a technical, administrative or
  executive nature which do not require
  ratification or accession.

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Constitutional Req. (Contd)

• The Protocol is a multilateral agreement which
  has legislative implications and therefore is not
  an agreement of a technical, executive or
  administrative nature.
• The Protocol has been referred to Parliament for
  ratification in compliance with Section 231(2)
  for ratification.

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CONCLUSION

• To fully comply with the Protocol it may be
  necessary for the RSA to review its legislative
  framework so as to criminalise the use of
  children in armed conflicts?
• The Defence Act is only applicable to State armed
  forces.

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QUESTIONS?