The OP specifies that State Parties shall cooperate in this through technical

The op specifies that state parties shall cooperate

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involved in the armed conflict. The OP specifies that State Parties "shall cooperate in [this] … through technical cooperation and financial assistance". (A7(1)) The Optional Protocol in reality Application A positive aspect of the Optional Protocol is that, as with the CRC, it will apply to all levels of conflict. This contrasts with existing humanitarian law, which only applies when the conflict has reached a specified level i.e. the provisions in Protocol II (internal conflicts) only apply when the armed opposition "exercise[s] such control over a part of its territory as to enable them to carry out sustained and concerted military operations…" Therefore the OP not only increases the protection in terms of recruitment for children but also applies when Protocol II cannot protect them. Ratification However, the OP is optional: states are under no obligation to sign and ratify it. It is imperative, therefore that there is international pressure to encourage ratification. On an optimistic note, children’s rights instruments have a history of fast ratification. The CRC came into force a record 9 months after it was open for signature and now has 191 ratifications. It may be that the international momentum that has driven the rise of children’s rights over the past decade or so will not only carry the OP into force sooner rather than later and but will also attract a large number of signatories. A special clause has been inserted to allow State Parties to the CRC, who have not ratified to proceed with signing and ratifying the OP (A9(1)). This was included for the benefit of the USA, which is the only country to have signed but not ratified the CRC. This is unprecedented in the development of international human rights instruments. It is therefore hoped that the USA, having succeeded in weakening the OP to accommodate its domestic policy, will sign and ratify quickly. Implementation Under A 6(1) OP State Parties will have an obligation to take measures to ensure effective implementation of its provisions. Unfortunately, the only monitoring mechanism is the examination by the Committee on the Rights of the Child reports that States are obliged to submit detailing the measures that have been taken for implementation (Article 8). The experience of country reports to the Committee under Article 44 of the CRC shows that a reporting obligation is not necessarily a guarantee of full implementation of children’s rights. The Realities of War The provisions of the Optional Protocol alone are not strong enough to prevent the recruitment of children. The reporting obligation is insufficient to ensure implementation and compliance. The harsh reality is that the priority for any armed group is victory. On occasion, armed groups and States have accepted obligations not to recruit and use children. But civil wars are particularly brutal and such obligations are often among their casualties. If victory or survival are at stake, then rebel leaders are likely to add one more grave breach to their list of war crimes rather than to honour an obligation they have under international law.
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  • Summer '16
  • Ramon Wawire

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