BRIEFING TO THE PCOD ON THE UN

OPTIONAL PROTOCOL ON THE RIGHTS OF THE CHILD ON THE INVOLVEMENT OF

CHILDREN IN ARMED CONFLICT

SCOPE

• Aim• Background• Adoption of and Accession to Optional

Protocol • Provisions of the Protocol• Obligations After Accession• RSA’s Legislation and Policy• Constitutional Requirements• Conclusion

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

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;

BACKGROUND (Cont’d)

• 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;

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

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 :

• 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.

PROVISIONS OF PROTOCOL (Cont’d)

PROVISIONS OF PROTOCOL (Cont’d)

• 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.

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.

RSA’s 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?)

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.

Constitutional Req. (Cont’d)• 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.

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.

QUESTIONS?