武装冲突中儿童兵的可攻击性研究

On Child Soldiers’Targetablity in Armed Conflict

第二次世界大战以来,儿童权利保护问题受到广泛关注。《国际刑事法院罗马规约》将招募和使用儿童规定为战争罪,这一规定被视为对儿童权利保护的路径之一,但当今世界仍有大量的儿童被征募参与武装冲突。儿童兵叠加了儿童身份与战斗员身份,因此具备儿童要素与作战要素。目前国际公约中对儿童身份的判断尚存在不同年龄标准,卷入武装冲突中的儿童是否具备战斗员身份仍要受其是否“直接参加敌对行动”的限制。在武装冲突中能否攻击儿童兵仍是模糊地带,剥夺儿童兵的特殊保护,将其与成年战斗员等同视之并不可取。儿童兵的特殊身份及法律地位应当首先被阐释清楚。一方面必须注意到儿童兵作为儿童的事实,另一方面也应对其参与武装冲突的身份予以评价。应当适当减弱“持续作战职责”等成年战斗员标准对儿童兵的适用,在对儿童兵可攻击性的探索中必须同时兼顾战斗员的基本生命权利保护,平衡人道主义和军事必要原则,不能对敌对方施加过当的判断义务与保护义务。在武装冲突中交战方对儿童兵可攻击性的判断事关攻击指令的发出,而错误地攻击儿童兵将会损害儿童权利并引发国际刑事责任,对敌对行动中儿童兵冲突前期的合理保护路径亟待发展,在现有国际法框架下扩大对儿童兵的保护将成为新的发展趋势。

A large number of children are still recruited to participate in armed conflicts in the world today.Child soldiers are currently involved in 70 percent of the world's armed conflicts,and 80 percent of them are under the age of 15.Child soldiers are a product of the superposition of child status and combatant status,so they have the elements of children and combatant.The study of the targetability of child soldiers must be based on the premise of clarifying the status of child soldiers.Different international conventions have different ages for the classification and definition of children,and noting that children in hostilities have a variety of indirect or direct roles,the definition and the status of child soldiers should be clarified on the core of humanitarianism.Thus,the age of 18 years is more appropriate.Whether child soldiers can be targeted and attacked in armed conflict is ambiguous.It is not advisable to attack child soldiers arbitrarily in armed conflict,to deprive them of special protection,and to treat them on a par with their adult counterparts.The special status and legal position of child soldiers should be clarified.On the one hand,by paying attention to the fact that child soldiers are children who are naturally civilians and deserve special protection;they should be evaluated in terms of their status as direct participants in armed conflict.On the other hand,the direct participation of children in armed conflict should be analyzed,and children taking a direct part in hostilities should not be given the full privilege.This will cause a much worse situation of recruiting children into organized armed groups and using children to directly fight in the armed conflict.The continuous combat function is only applied to the members of the organized armed group.In order to better judge the status of child soldiers in armed conflict and to protect them,the application of adult criteria such as“Continuous Combat Function”to child soldiers should be correspondingly weakened.However,the status of a child involved in armed conflict as a combatant should still be limited by whether or not he or she is“Direct Participation in Hostilities.”The three cumulative elements of direct participation in hostilities(threshold of harm,direct causation,belligerent nexus)are ambiguous and insufficient,and a restrictive understanding should be adopted to protect the fundamental rights of children better when applying the judgment on the targetability of child soldiers.In applying the judgment of targetability to child soldiers,a restrictive understanding and interpretation should be adopted to protect the fundamental rights of children better.In the current jurisprudence of the International Criminal Court,the determination of whether a child soldier is taking an active part in hostilities is made on a case-by-case basis,making the integration of facts particularly important.Determination of targetability needs to be combined with specific legal provisions or principles of constraint to be effective and useful.In armed conflict,the determination of the belligerent on the targetability of child soldiers is related to the issuance of the order to attack,and the wrongful attack on child soldiers will harm the rights of children and trigger international criminal responsibility.The reasonable protection path for child soldiers in hostilities during the pre-conflict period needs to be developed urgently,and with the growing concern of the international community for the protection of the rights of the child,expanding the protection of child soldiers under the framework of the existing international law will become a new trend.