A/HRC/39/49 of recruitment of child soldiers in both international and non-international armed conflicts.2 This is applicable to all actors in armed conflict, including private military and security companies. 20. International human rights law, applicable both in peacetime and in armed conflicts, provides complementary protection. Article 38 (3) of the Convention on the Rights of the Child also provides that States parties are to refrain from recruiting any person who has not attained the age of 15 years into their armed forces. Further, article 4 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict raises the age of possible recruitment of persons into armed forces and their participation in hostilities. It prohibits armed groups that are distinct from the armed forces of a State from recruiting or using in hostilities persons under the age of 18 years. The same article obliges States to take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices. The Special Court for Sierra Leone stated in its decision Prosecutor v. Sam Hinga Norman that, for the purposes of implementation of the Convention on the Rights of the Child and its Optional Protocol, all “feasible measures” and “appropriate legislation” were at the disposal of States to prevent child recruitment; it would seem that these also include criminal sanctions as measures of enforcement.3 21. Under international criminal law, the Rome Statute of the International Criminal Court provides that conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities constitutes a war crime in both international and non-international armed conflict. This was also confirmed by its case law (see Prosecutor v. Thomas Lubanga Dyilo, case No. ICC-01/04-01/06). The adopted terminology of “participate actively” comprises not only combat activities but also activities such as sabotage or spying. 22. It is recognized under international law that the prohibition of child recruitment also entails individual criminal responsibility. In this respect, the Special Court for Sierra Leone stated that, in creating the International Criminal Tribunal for Rwanda (ICTR) Statute, the Security Council explicitly recognized for the first time that serious violations of fundamental guarantees led to individual criminal liability and that that recognition had been confirmed later on by decisions and judgments of the ICTR; it added that the prohibition of child recruitment constituted a fundamental guarantee and that, although it was not enumerated in the ICTR or International Criminal Tribunal for the Former Yugoslavia (ICTY) statutes, it shared the same character and was of the same gravity as the violations that were explicitly listed in those statutes.4 It is worth highlighting that, in terms of culpability, the legal framework does not make distinctions according to the path by which the child entered the armed group. In other words, when it comes to the culpability of the adult recruiter, “voluntary” enlistment and forcible abduction into an armed group are treated identically. The “consent” of the minor is no defence for the adult who is accused.5 23. In addition, at the international level, efforts have been made to develop non-binding principles aiming to engage the private sector in respecting and protecting children’s rights. For example, the multi-stakeholder initiative Children’s Rights and Business Principles requires companies not to recruit or use children in security arrangements either directly or through private or public security service providers (principle 8). 2 3 4 5 6 See International Committee of the Red Cross, “Customary IHL database”, available at ihldatabases.icrc.org/customary-ihl/eng/docs/home (accessed 9 July 2018), rules 136 and 137. Decision on preliminary motion based on lack of jurisdiction (child recruitment) (case No. SCSL2004-14-Ar72(E)) of 31 May 2004. Ibid. Mark Drumbl and Gabor Rona, “Navigating challenges in child protection and the reintegration of children associated with armed groups”, in Cradled by Conflict: Child Involvement with Armed Groups in Contemporary Conflict, Siobhan O’Neil and Kato Van Broeckhoven, eds. (New York, United Nations University, 2018), pp. 210–232. Available at reliefweb.int/sites/reliefweb.int/ files/resources/Cradled_by_Conflict.pdf.