chapter  20
18 Pages

Children and the law of armed conflict: looking beyond the protection paradigm

WithJohn Tobin, Elliot Luke

The appalling experience of children in armed conflict has motivated the creation of a complex international architecture to ensure their protection. In 2003, the UN Security Council called for ‘an era of application’ with respect to the various legal norms which the international community has developed in order to protect children associated with armed conflict.1 This chapter aims to identify the central features and underlying values of these norms. Section 1 provides a brief historical analysis, which reveals a shift in states’ attitudes towards children, moving from a historically instrumentalist vision to the contemporary child protectionist paradigm. It also reveals a transformation of the orthodox understanding of the law of armed of conflict. Originally synonymous with international humanitarian law as the lex specialis for armed conflict, the contemporary understanding of a state’s obligations in times of armed conflict must now encompass international human rights law. Section 2 examines the content of the legal norms, particularly as they relate to the recruitment of children and their participation in conflict, and seeks to identify the applicable law. This section also outlines a model to navigate the tension and confusion caused by the concurrent application of international humanitarian law standards and international human rights standards concerning children in times of armed conflict. Finally, Section 3 looks beyond the child protection paradigm that dominates the current understanding and application of the law of armed conflict as it relates to children. It offers some reflections as to the consequences that might flow from the application of a rights-based model to the situation of children associated with armed conflict in which the narrative of victimhood is balanced against a vision of children as agents with evolving capacities.