Girls Used in Armed Conflict – An analysis of the protection of girls, associated with armed groups or forces, through prohibitions on using children in armed conflict

Abstract: Since the 1970s, the practice of conscripting, enlisting or recruiting children into armed groups or forces has become increasingly common, and many children are used for various tasks in conflicts around the globe. Children are easily persuaded or forced into such armed groups or forces, and they suffer great harm from exposure to violence. Girls are generally recruited in the same manner as boys, and they experience, at large, the same consequences as boys. Girls do, however, also suffer gender specific consequences, related to sexual violence and/or pregnancies as well as related to disrupted social ties to their original societies. These consequences correspond to the gender specific use of girls, meaning that girls are typically held further away from the battlefield, as they are used as wives, sex slaves and/or perform domestic chores. Several international legal instruments prohibit children’s partaking in armed conflict. The Geneva Conventions of 1949 are silent on the matter, but other relevant legislation directly addresses the use of children in armed conflict. However, almost all of the relevant provisions prohibit only the use of children to “actively/directly participate in hostilities”. Said phrase has traditionally been a concern relating to the principal of distinction and in extension to the question of which (civilian) persons lose their protection against attack, because of their acts. It has been argued that an act, in order to qualify as direct participation, must a) likely affect the military of a party to an armed conflict or death, injury or destruction on protected persons or objects, and b) directly cause harm. The act must also, c), be intended to cause such qualified harm, as prescribed by a), in support of one fighting party and to the disadvantage of another. Protection which is afforded civilians, for as long as they do not actively participate in hostilities, is not afforded to members of organized armed groups. Such membership is determined by whether or not a person has assumed a continuous combat function. Further, a distinction has been made between accompanying or supporting persons, who do not take direct part in hostilities, and persons having a continuous combat function. Documents providing for principles and guidelines, academics, non-governmental organizations and the International Committee of the Red Cross advocates for a wide interpretation of “active/direct participation in hostilities”, in relation to children used in hostilities. Some of these interpretations specifically include all children who participate in armed conflict in any capacity, meaning that children used for domestic services, sexual purposes and/or used as “wives”, are to be considered as active/direct participants in hostilities. International jurisprudence on the matter offers a rather incoherent practice, both when interpreting “active/direct participation in hostilities” and when acknowledging girls used in armed conflict. There is no consistent guidance to be found, in delivered judgments, on how to determine which children are to be considered to be covered by the “active/direct participation in hostilities”-requisite. A hesitation towards expanding said term to cover children used further away from the battlefield can be noticed, but a positive development can also be observed. A reoccurring problem of how to address the use of girls in armed conflict can be identified in relevant jurisprudence. The prosecution in respective cases seems to repeatedly struggle with their charges on matters of sexual slavery, forced marriages and/or the use of girls as domestic servants. The courts have chosen different ways to acknowledge, or ignore, such use of girls. My conclusions are that by incorporating the term “active/direct participation” into almost every legal provision prohibiting the use of children in armed conflict, legislators have failed to acknowledge the use of girls by armed groups or forces. The term creates, in itself, a great uncertainty as to whether or not gender specific use of girls is to be considered prohibited or not. “Active/direct participation” should, in my opinion, be interpreted differently when used for the traditional purpose of applying the principle of distinction, and when used for the purpose of assessing liability for the use of children in armed conflict. Further, the hesitance found in international jurisprudence to expand said wording to cover tasks assigned to girls, has led to an even more weakened protection for girls used in armed conflict. The overall acknowledgment of girls’ experiences is poor, and the analyzed judgments show major flaws in bringing forward or allowing for charges on the matter. When charges of sexual violence have been brought before the court, the reasonings of the judges are unnecessarily complicated and next to offensive. In my opinion, a wider interpretation of “active/direct participation in hostilities” is favorable to girls used in armed conflict. A counterargument may be that a wider interpretation would put more children at risk for being considered combatant and thus lawful targets of attack. I, however, argue that the international humanitarian law narrative, needs adjustment when applied to children as they cannot be equated to adult civilians taking part in hostilities.