GlobalChild Platform

Article 38: Armed conflict

  1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.
  2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.
  3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.
  4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.

-UN Convention on the Rights of the Child

Overview of Article 38

Article 38 introduces a framework for the protection of children in situations of armed conflict, both as civilians and as combatants or recruits to State armed forces or non-State armed groups. When drafted, it was unique in introducing international humanitarian law (IHL) into a human rights treaty, thus affording it universal application, rather than being applicable only in times of armed conflict [1]. During the drafting process, Article 38 was probably the most contentious of all the CRC provisions, with strongly divided opinions in respect of the proposed minimum age of recruitment into armed forces, differentiation between recruitment into State and non-State forces, age and level of protection from participation in conflicts, and the extent of measures demanded of States in providing protection [2]. Disagreement arose as to whether the Working Group charged with drafting the text of the CRC had the mandate to review existing standards for protection in international humanitarian law, while fears were also expressed that the text might undermine or weaken those existing standards [3]. Faced with the risk of no provision at all, the result was a compromise text affording much lower levels of protection than many members of the Working Group were seeking. In response, the Optional Protocol on Children in Armed Conflict (OPAC) was developed to strengthen the standards, although it, too, falls short of the protections sought by many working in this field.

In summary, Article 38 requires of States that they ensure compliance with international humanitarian law, protect children under the age of 15 from direct participation in hostilities, refrain from recruiting children under 15 into armed forces and take measures to protect civilian children affected by armed conflict. OPAC strengthens these provisions by raising the voluntary recruitment age to 16 years, and encouraging further raising of that age, prohibiting compulsory recruitment under 18 years, as well as any recruitment under 18 years by armed groups, and imposing obligations on States to ensure that children under 18 do not directly participate in hostilities [4]. It is also important to note that the Committee insists that States have obligations to take measures to secure all the rights of children within their jurisdiction during times of conflict, with no differentiation between child civilians or combatants, thus affirming the human rights principle of universality [1, 5]. Furthermore, the CRC is not subject to derogation in time of public emergency [1, 6, 7].

Core attributes of Article 38

The core attributes of Article 38 are:

  • Respect for international humanitarian law (IHL) applicable to the child
  • Age limits on participation on hostilities
  • Age of recruitment
  • All feasible measures of care and protection


Each of these attributes can be measured in terms of structural or process implementation or in terms of outcomes achieved through implementation as outlined in the table below. Some indicators, for instance the structural ones, may be common to all attributes. Others are common to two or more attributes, while some indicators may be relevant to one attribute only. An attempt has been made to balance the use of objective and subjective data indicators as well as qualitative and quantitative ones.

What did children say?

These are some ideas that children from around the world shared with us during the Global Child Rights Dialogue (GCRD) project:

Relevant provisions within the SDGs
  1. Goal 8: Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all.
    • Target 8.7 Take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms.
  2. Goal 16: Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.
    • Target 16.1 Significantly reduce all forms of violence and related death rates everywhere.

Potential sources of data for users of the indicators sets
  • Armed forces training programmes
  • Data from Ministries of defence and armed forces
  • Data from Ministries of health and education
  • EMIS
  • Government legislation, regulation and documentation
  • International Committee of the Red Cross 
  • Primary research by National Human Rights Institutions for Children
  • Research and consultations with communities, including children
  • Sexual Violence in Armed Conflict (SVAC) Dataset (Nordås and Cohen, 2014)
  • UNSG Special Representative for Children and Armed Conflict 
  • World Development Indicators (World Bank, 2017)

References used for the overview
  1. Ang, F. (2005). Article 38:  Children in armed Conflicts. In A. Alen, J. Vande Lanotte, E. Verhellen, F. Ang, E. Berghmans, & M. Verheyde (Eds.), A Commentary on the United Nations Convention on the Rights of the Child (p.10, 29, 59). Leiden, The Netherlands: Martinus Nijhoff Publishers.
  2. Office of the United Nations High Commissioner for Human Rights (OHCHR). (2007). Legislative History of the Convention on the Rights of the Child. (Vol. 2, pp. 775-799). New York, United States of America and Geneva, Switzerland: United Nations. Retrieved from https://www.ohchr.org/Documents/Publications/LegislativeHistorycrc2en.pdf
  3. Office of the United Nations High Commissioner for Human Rights (OHCHR). (2007). Legislative History of the Convention on the Rights of the Child. (Vol. 2, p. 603). New York, United States of America and Geneva, Switzerland. Retrieved from https://www.ohchr.org/Documents/Publications/LegislativeHistorycrc2en.pdf
  4. United Nations General Assembly. (2000). Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (para. 1-4). Office of the Special Representative of the Secretary-General for Children and Armed Conflict. Retrieved from https://childrenandarmedconflict.un.org/tools-for-action/optional-protocol/
  5. United Nations Committee on the Rights of the Child. (2000). CRC Concluding observations, Cambodia (CRC/C/15/Add.128), (para 48). Retrieved from https://www.refworld.org/docid/3ae6afc524.html
  6. United Nation Office of the High Commissioner for Human Rights (OHCHR). (1992). UNCRC day of general discussion on children in armed conflicts (CRC/C/10), (para. 67). Retrieved from https://www.ohchr.org/Documents/HRBodies/CRC/Discussions/Recommendations/Recommendations1992.pdf
  7.  United Nations Children’s Fund (UNICEF). (2007). Implementation handbook for the Convention on the Rights of the Child (Fully rev. 3rd ed., p.573). Geneva, Switzerland: UNICEF.
References used to create indicators

Glossary/key words

Armed conflict
International humanitarian law divides armed conflicts into international armed conflicts and non-international armed conflicts. International armed conflicts include ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination’ (Geneva Protocol No. 1, 1949). Non-international armed conflicts are those ‘which take place in the territory of a [State] between its armed forces and [opposing] armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations’ (Geneva Protocol No. 2, 1949). They do not include ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature’ (Geneva Protocol No. 2, 1949) (UNICEF Office of Research-Innocenti, 2000).

De-mobilisation
“The term ‘demobilization’ refers to ending a child’s association with armed forces or groups. The terms ‘release’ or ‘exit from an armed force or group’ and ‘children coming or exiting from armed forces and groups’ rather than ‘demobilized children’ are preferred. Child demobilization/release involves removing a child from a military or armed group as swiftly as possible. This action may require official documentation (e.g. issuing a demobilization card or official registration in a database for ex-combatants) to confirm that the child has no military status” (United Nations, 2006).

Article 38 Indicator Tables

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