For the most part, Australian law already complies with the minimum requirements contained in the Optional Protocol. The principal obligations are set out below, together with the corresponding domestic legislation and possible issues that arise in terms of compliance:
States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.
The Commission notes that the term ‘feasible’ has been understood in treaties relating to war to mean ‘practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations’.5
Defence instruction (General) PERS 33-4 (‘Defence Instruction'), issued pursuant to s 9A of the Defence Act 1903 (Cth), came into force on 28 June 2002 and seeks to meet Australia’s obligations under the Optional Protocol. It provides that the Australian Defence Force (‘ADF') will take all feasible measures to ensure that minors (defined as persons under the age of 18 years) do not participate in hostilities. The Commission notes the Defence Instruction appears to surpass the minimum obligation of the Optional Protocol by including direct as well as indirect participation in hostilities, as it provides that all feasible measures are to be taken to ensure that minors are not deployed to areas of operations where there is a likelihood of hostile action.6
While the Commission welcomes the protections contained in the Defence Instruction, it submits that it would be preferable if such fundamental protections were incorporated into the Defence Act itself. Amending the Defence Act would place responsibility for these protections with Parliament rather than the Secretary for Defence and Chief of the Defence Force. This would better entrench these important protections.
States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.
The Defence Act provides that recruitment to the Australian Army is voluntary,7 and persons who have not attained the age of 18 years are exempt from service in the Defence Force in times of war.8 This is supplemented by the Defence Instruction which provides that the recruitment of minors must be voluntary.9
The Commission reiterates that it would be preferable to incorporate the provisions of the Defence Instruction into the Defence Act.
- States Parties shall raise the minimum age for the voluntary recruitment of persons into their national armed forces from that set out in article 38, paragraph 3, of the Convention on the Rights of the Child, taking account of the principles contained in that article and recognizing that under the Convention persons under the age of 18 years are entitled to special protection.
- Each State Party shall deposit a binding declaration upon ratification of or accession to the present Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards it has adopted to ensure that such recruitment is not forced or coerced.
- States Parties that permit voluntary recruitment into their national armed forces under the age of 18 years shall maintain safeguards to ensure, as a minimum, that:
- Such recruitment is genuinely voluntary;
- Such recruitment is carried out with the informed consent of the person's parents or legal guardians;
- Such persons are fully informed of the duties involved in such military service;
- Such persons provide reliable proof of age prior to acceptance into national military service.
- Each State Party may strengthen its declaration at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall inform all States Parties. Such notification shall take effect on the date on which it is received by the Secretary-General.
- The requirement to raise the age in paragraph 1 of the present article does not apply to schools operated by or under the control of the armed forces of the States Parties, in keeping with articles 28 and 29 of the Convention on the Rights of the Child.
The Defence Instruction stipulates that the minimum age for recruitment to the ADF will be 17 years,10 with the exception of entrants to military schools, apprentices and members of cadet schemes, which article 3(5) exempts from the minimum age requirement.
The Defence Instruction also provides that persons wishing to join the ADF must supply a copy of their birth certificate, must have the written consent of their parent or guardian, and must be informed of the nature of the duties and responsibilities involved.11 The Commission notes however, that the Defence Instruction does not require that the recruitment be ‘genuinely’ voluntary, or that the minor be ‘fully’ informed about their duties or that their parents or legal guardians give ‘informed’ consent, as is required under the Optional Protocol.
The Commission suggests that the protections contained in the Defence Instruction should be expanded to meet those requirements. The Commission also reiterates that those matters would be better dealt with in legislation.
The Commission notes that during the negotiation of the Optional Protocol many delegations and NGOs as well as the International Committee of the Red Cross, the UN High Commissioner for Human Rights and the special representative of the Secretary-General for children in armed conflict advocated a minimum age of 18 for voluntary recruitment.12 In addition, the Committee on the Rights of the Child has repeatedly recommended that states do not voluntarily recruit persons below the age of 18 years.13
While, subject to the reservations outlined above, Australia already meets the minimum obligations contained in the Optional Protocol, the Commission suggests that the Australian government consider taking measures to incrementally implement this recommendation. In the interim it might consider providing further protections for voluntary recruits under the age of 18 years (remembering that the requirements of the Optional Protocol are minimum standards).
- Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.
- States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices.
- The application of the present article shall not affect the legal status of any party to an armed conflict.
The National Interest Analysis prepared by the Department of Foreign Affairs and Trade suggests that the obligation in Article 4(2) might be met by amending s 268.88 of the Criminal Code 1995 (Cth). Section 268.88 currently creates criminal offences of using, conscripting or enlisting persons under the age of 15 years in an internal armed conflict.
The National Interest Analysis suggests that increasing the minimum age below which it is an offence to use, conscript or enlist children from 15 years to 18 years would satisfy Australia’s obligation under article 4(2).
The Commission is of the view that if Australia wished to implement its obligation under article 4(2) in this way it would also be necessary to amend s 268.68 of the Criminal Code, which contains the same offences as s 268.88, but applies in international, as opposed to internal, armed conflict.
Nothing in the present Protocol shall be construed as precluding provisions in the law of a State Party or in international instruments and international humanitarian law that are more conducive to the realization of the rights of the child.
As regards the ‘provisions in the law of a State Party’, the Commission has suggested above that Australia consider adopting higher standards of protection for children involved in armed conflict than those contained in the Optional Protocol.
In relation to international instruments the Commission notes that the Additional Protocol II to the Geneva Conventions, which applies in non-international armed conflicts, provides that children who have not attained the age of fifteen years shall not be allowed to take part in hostilities.14
- Each State Party shall take all necessary legal, administrative and other measures to ensure the effective implementation and enforcement of the provisions of the present Protocol within its jurisdiction.
- States Parties undertake to make the principles and provisions of the present Protocol widely known and promoted by appropriate means, to adults and children alike.
- States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.
In the Commission’s view, the obligation in Article 6(2) to make the principles and provisions of the Optional Protocol widely known is a further argument for amending the Defence Act to enshrine the protections contained in the Optional Protocol. This would raise the profile of the protections and ensure that they are easily accessible to members of the public. The Commission understands that the Defence Instruction is only available upon written request to the Department of Defence.
Article 6(3) is likely to have limited significance for Australia given the absence of armed conflict in Australian territory. However, it would seem to require Australia to ensure that asylum seekers under the age of 18 years who have been involved in armed conflict are given all appropriate assistance for their physical and psychological recovery and their social reintegration. That might include creating a special category of visa for such children. This would also give effect to the pre-existing obligations in articles 22 and 39 of the Convention on the Rights of the Child to which Australia is already a party.15
- Each State Party shall, within two years following the entry into force of the present Protocol for that State Party, submit a report to the Committee on the Rights of the Child providing comprehensive information on the measures it has taken to implement the provisions of the Protocol, including the measures taken to implement the provisions on participation and recruitment.
- Following the submission of the comprehensive report, each State Party shall include in the reports it submits to the Committee on the Rights of the Child, in accordance with article 44 of the Convention, any further information with respect to the implementation of the Protocol. Other States Parties to the Protocol shall submit a report every five years.
- The Committee on the Rights of the Child may request from States Parties further information relevant to the implementation of the present Protocol.
The Commission understands that that this obligation would not significantly add to Australia’s existing treaty reporting mechanisms.