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Print Chapter 8 (PDF 104KB) | < - Report Home < - Chapter 7 : Chapter 9 - > |
Background
Features of the Agreement
Australia’s current compliance with the Protocol
Australian Defence Force policy
Contractors
Peacekeeping and other operations
Norwegian measures to protect children, and voluntary recruitment under 18 years
Consultation
Reservations concerning Australia’s ratification
Leadership role for Australia
Implementation
Amendment to the Criminal Code
Possible amendment to the Defence Act
Discrepancies between the Optional Protocol and the Defence Instruction
Article 6
Costs
Entry into force
Concluding observations and recommendation
8.1 | The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (New York, 25 May 2000) (the Optional Protocol) is intended to establish minimum safeguards to prevent the involvement of children in armed conflict. |
8.2 | The Optional Protocol strengthens the protections contained in the Convention on the Rights of the Child (the Convention), to which Australia is a Party.1 Moreover, the Optional Protocol establishes 18 as the minimum age for direct participation in hostilities, for compulsory recruitment by State Parties, and for recruitment into armed groups. It determines that State Parties shall raise the minimum age for voluntary recruitment beyond the current minimum of 15. |
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Background |
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8.3 | The recruitment and use of children in armed conflict continues to be a serious problem for the international community. The United Nations Children’s’ Fund (UNICEF) estimates that 300,000 child soldiers, persons under the age of 18, are involved in more than 30 conflicts worldwide.2 Mr Richard Sadleir, from the Department of Foreign Affairs and Trade (DFAT), stated
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8.4 | Mr Sadleir advised the Committee that Australia had
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8.5 | The Convention on the Rights of the Child (the Convention) entered into force generally on 2 September 1990 .5 The Human Rights and Equal Opportunity Commission (HREOC or the Commission) advised the Committee that the Convention is ‘the most widely ratified international human rights instrument with 192 state parties’.6 |
8.6 | Under Article 38 of the Convention, Australia is obliged to prevent persons who have not attained the age of 15 from being directly involved in hostilities or recruited into the Australian Defence Force (ADF). In addition, when recruiting among those who have attained the 15 years, but who have not attained the age of 18, Australia must endeavour to give priority to those who are oldest. |
8.7 | The National Children’s and Youth Law Centre advised the Committee that that during the drafting of the Convention, Article 38 was
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Features of the Agreement |
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8.8 | The National Interest Analysis (NIA) states that Australia was an ‘active participant throughout the negotiation of the Protocol and the final outcome fully reflects our preferred position’.8 |
8.9 | The Agreement establishes a number of key obligations, including
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Australia’s current compliance with the Protocol |
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Australian Defence Force policy |
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8.10 | The ADF is already in compliance with the Optional Protocol.10 The NIA states that on 28 June 2002, the Chief of the Defence Force and the Secretary of the Department of Defence jointly signed Defence Instructions (General) PERS 33-4 (the Defence Instruction).11 The purpose of the Defence Instruction is to give effect to the provisions of the Optional Protocol, detailing the ADF’s minimum voluntary recruitment age and the conditions of employment that apply to ADF members under 18 years of age.12 The Committee understands that the Defence Instruction was effective as at 30 June 2004, before Australia signed the Optional Protocol.13 |
8.11 | The Defence Instruction determines that the minimum voluntary recruitment age is 17 years. Air Commodore Lee Roberts stated that
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8.12 | The Defence Instruction determines that entrants to military schools, apprentices and members of Service cadet schemes are exempt from the minimum voluntary recruitment age of 17 years.15 Moreover
And
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8.13 | The NIA states that
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8.14 | Air Commodore Roberts advised the Committee of the number and proportion of permanent force personnel in the ADF under 18 years
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8.15 | Also
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8.16 | The Department of Defence submission to the Committee advised that the ‘number of personnel aged 17 in the Reserves is 129 males and 9 females’.22 At the public hearing on 10 August 2004 the Committee sought clarification on the application of age limits under the Optional Protocol to reservists. Air Commodore Roberts affirmed that they are treated ‘just the same as anyone else through the recruiting system’.23 Further
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Contractors |
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8.17 | The Committee was interested in the protections afforded to contractors and apprentices working for the Department of Defence in hostile environments. Air Commodore Simon Harvey stated
Group Captain Michael Maher added
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8.18 | To this point HREOC’s submission to the Committee considers that the ADF should take measures to ensure that minors are not directly or indirectly involved in armed conflict.27 Further, the Commission advised that as a minimum
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Peacekeeping and other operations |
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8.19 | The Defence Instruction determines that
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8.20 | The Committee sought clarification on ADF policy in relation to participation of persons under 18 in peacekeeping or armed conflict overseas. Group Captain Maher stated
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8.21 | He further explained that only in the most extreme cases will a minor be left of a unit, such as a ship, that goes into an operation.31 |
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Norwegian measures to protect children, and voluntary recruitment under 18 years |
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8.22 | The Justice and International Mission Unit, Synod of Victoria and Tasmania of the Uniting Church in Australia advised the Committee of Norway’s legislation that enables 17 year olds to have a military career without formally becoming members of the armed forces.32 |
8.23 | HREOC explained that it
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8.24 | The Justice and International Mission Unit, Synod of Victoria and Tasmania of the Uniting Church in Australia considers that it would be beneficial for Australia to adopt a similar scheme.35 |
8.25 | In addition, HREOC notes that during the negotiation of the Optional Protocol
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8.26 | The Commission suggests that
Also
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8.27 | The Committee was interested as to whether the ADF had considered the example of Norway. Air Commodore Robert advised
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Consultation |
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8.28 | The Committee is aware that there is broad community interest in, and support for Australia’s ratification of the Optional Protocol.40 Mr Sadleir advised that ratification would accord with the expectations of the public following Australia’s signature to the Optional Protocol in 2002.41 |
8.29 | The Committee understands that the state and territory governments were advised of the proposed treaty action through the Standing |
8.30 | The ACT and Queensland Governments advised the Committee that they support Australia’s ratification and recognise that it is ‘a significant step forward in efforts to protect the human rights of children worldwide’.43 |
8.31 | HREOC advised the Committee that it supports ratification and implementation of the Optional Protocol as it ‘is in the best interests of children as it contains important safeguards against their use in armed conflict’.44 |
8.32 | The Committee is aware that the Justice and International Mission Unit, Synod of Victoria and Tasmania of the Uniting Church in Australia also supports Australia’s ratification and believes that it would be a ‘step towards building a global moral repugnance to the use of child soldiers’.45 The Mission also acknowledged that they were ‘aware that there are veterans from the Vietnam War that report that they continue to suffer trauma’ from their experiences with child combatants.46 Moreover, the Mission considers that wide support for the Optional Protocol
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Reservations concerning Australia’s ratification |
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8.33 | The National Children’s and Youth Law Centre advised the Committee of one reservation they have in relation to Australia ’s ratification of the Optional Protocol concerning the involvement of young people in peacekeeping and reconstruction activities overseas.48 The Centre states that as the Australian military regularly
undertakes peacekeeping and reconstruction activities in states that are recovering from conflict
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8.34 | The Committee believes that the Defence Instructions adequately address the National Children’s and Youth Law Centre concerns (as discussed in paras 8.19-8.21). |
8.35 | The Australian Patriot Movement, whilst supporting Australia’s ratification, suggests that major states should also address the conditions that lead to children becoming involved in armed conflict.50 The Committee acknowledges the importance of prevention in this issue and understands that the Optional Protocol encompasses these concerns under Article 7, whereby
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8.36 | The Committee hopes that the Government will actively enforce Article 7 through the work of Australia’s foreign aid program in conjunction with the Department of Defence and DFAT. |
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Leadership role for Australia |
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8.37 | The Committee agrees with HREOC that ratification and implementation of the Optional Protocol would allow Australia to show leadership on the issue of children in armed conflict, and add further momentum to the international effort to protect children’s rights.51 The ACT Government states that
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8.38 | Moreover, HREOC considers that
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8.39 | The Committee understands that many states in the Asia Pacific region are yet to ratify the Optional Protocol. 54 Mr Sadleir stated that Australia’s For example
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8.40 | The NIA states that ratification will signal Australia’s strong support and continuing commitment to the promotion and protection of child rights in this area, and also to the broader objectives of the Convention.57 |
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Implementation |
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8.41 | As the ADF is already in compliance with the Optional Protocol no changes to Defence policy or regulations are required.58 |
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Amendment to the Criminal Code |
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8.42 | The NIA states that it is necessary for there to be one amendment to the Commonwealth Criminal Code to implement the Optional Protocol.59 It suggests that section 268.88, that creates criminal offences of using, conscripting or enlisting persons under the age of 15 years in an internal armed conflict, be amended as it
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8.43 | However, HREOC’s submission states that it is
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8.44 | At the Committee’s public hearing on 9 August 2004 Mr Geoff Skillen, from the Attorney-General’s Department, advised that the Government intends to introduce legislation that amends both sections of the Criminal Code referred to in the HREOC submission.62 |
8.45 | Mr Craig Lenehan, from HREOC, subsequently stated
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Possible amendment to the Defence Act |
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8.46 | The Committee is aware that HREOC considers it appropriate for the protections in the Defence Instructions to be incorporated into the Defence Act. Mr Lenehan explained that
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8.47 | At the Committee’s public hearing on 10 August Air Commodore Harvey advised
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8.48 | In response, HREOC submitted to the Committee that
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8.49 | The Committee considers that it is not necessary to incorporate the protections of the Defence Instruction into the Defence Act. However, the Committee is concerned that the inquiry evidence indicates that the Defence Instruction is only available on written request to the Department of Defence. The Committee particularly believes that all important policy documents should be readily accessible by the Australian community through a range of means. Further, as the Optional Protocol is available on the DFAT website, Australia’s implementing mechanism should be available on the Department of Defence website. |
Recommendation 6The Committee recommends that the Department of Defence ensure that the appropriate implementing mechanism for the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (New York, 25 May 2000) is readily available on the Department’s website and through other means. |
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Discrepancies between the Optional Protocol and the Defence Instruction |
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8.50 | The Committee acknowledges HREOC’s recognition that there are discrepancies between the wording of the Optional Protocol and the protections contained in the Defence Instruction. Specifically, the Defence Instruction does not require that the recruitment of persons under the age of 18 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 Article 3(3) of the Optional Protocol.67 HREOC considers that the Defence Instruction ‘be strengthened to better match the wording of the optional protocol’.68 The Committee considers that the Department of Defence should amend the implementing document to include the three additional aforementioned words. |
Recommendation 7The Committee recommends that the Department of Defence include ‘genuinely’, ‘fully’ and ‘informed’ where appropriate in the implementing mechanism for the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (New York, 25 May 2000) so as to accurately reflect the treaty. |
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Article 6 | |
8.51 | HREOC also considers that
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Costs |
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8.52 | The NIA states that ratification of the Optional Protocol will have no financial implications at Commonwealth or State and Territory levels.70 However, Parties to the Optional Protocol are required to submit a report to the Committee on the Rights of the Child concerning their compliance to the treaty within two years of it entering into force for the Party.71 According to the NIA, the associated costs for Australia with presenting the report to the Committee in Geneva can be covered by existing resources.72 |
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Entry into force |
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8.53 | The Optional Protocol was adopted by the UN General Assembly on 25 May 2000 and entered into force generally on 12 February 2002. As at 4 December 2004, there were 117 signatories and 88 parties to the Optional Protocol.73 |
8.54 | Australia signed the Optional Protocol on 21 October 2002. Under Article 10, it would enter into force for Australia one month after the date of the deposit of Australia’s instrument of ratification with the UN Secretary-General. |
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Concluding observations and recommendation |
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8.55 | The Committee believes that responsibility lies with the international community to condemn and prevent the involvement of children in armed conflict and that the Optional Protocol is an important mechanism to this effect. Australia’s ratification of the Optional Protocol would not only reflect the protections afforded through current Australian law and institutions, but it would contribute to the international effort to address the serious issue of the involvement of children in armed conflict. |
Recommendation 8The Committee supports the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (New York, 25 May 2000) and recommends that binding treaty action be taken |
1 | National Interest Analysis (NIA), para. 5. Back |
2 | NIA, para. 5. Back |
3 | Mr Richard Sadlier , Transcript of Evidence, 9 August 2004 , p. 23. Back |
4 | Mr Richard Sadlier , Transcript of Evidence, 9 August 2004 , p. 23. Back |
5 | Multilateral Treaties Deposited with the Secretary-General, Part I, United Nations Treaties, Chapter IV. Human Rights, 11. Convention on the Rights of the Child, <http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIV/treaty19.asp> (accessed 4 December 2004 ). Back |
6 | Human Rights and Equal Opportunity Commission (HREOC), Submission 18, p. 9. Back |
7 | National Children’s and Youth Law Centre, Submission, p. 1. Back |
8 | NIA, para. 6. Back |
9 | NIA, paras 11-17. Back |
10 | NIA, para. 7 and Group Captain Michael Maher , Transcript of Evidence , 10 August 2004 , p. 7. Back |
11 | NIA, para. 18 and Air Commodore Roberts, Transcript of Evidence, 10 August p. 8. Back |
12 | NIA, para. 18 and Defence Instructions (General) PERS 33-4 (the Defence Instruction), para. 4 . Back |
13 | Air Commodore Lee Roberts , Transcript of Evidence, 10 August 2004 , p. 2. Back |
14 | Air Commodore Lee Roberts , Transcript of Evidence, 10 August 2004 , p. 2. Back |
15 | Defence Instruction, para. 4 . Back |
16 | Defence Instruction, para. 17 . Back |
17 | Defence Instruction, para. 18 . Back |
18 | NIA, para. 19. Back |
19 | NIA, para. 19. See also Mr Richard Sadlier , Transcript of Evidence, 9 August 2004 , pp. 24-25. Back |
20 | Air Commodore Lee Roberts , Transcript of Evidence, 10 August 2004 , p. 2. Back |
21 | Air Commodore Lee Roberts , Transcript of Evidence, 10 August 2004 , p. 5. Back |
22 | Department of Defence, Submission, p. 1. Back |
23 | Air Commodore Lee Roberts , Transcript of Evidence, 10 August 2004 , p. 6. Back |
24 | Air Commodore Lee Roberts , Transcript of Evidence, 10 August 2004 , p. 6. Back |
25 | Air Commodore Simon Harvey , Transcript of Evidence, 10 August 2004 , p. 5. Back |
26 | Group Captain Michael Maher , Transcript of Evidence, 10 August 2004 , p. 5. Back |
27 | HREOC, Submission 18.1, p. Back |
28 | HREOC, Submission 18.1, p. Back |
29 | Defence Instructions, para. 12. Back |
30 | Group Captain Michael Maher , Transcript of Evidence, 10 August 2004 , p. 3. Back |
31 | Group Captain Michael Maher , Transcript of Evidence, 10 August 2004 , p. 3. Back |
32 | The Justice and International Mission Unit, Synod of Victoria and Tasmania of the Uniting Church in Australia , Submission, p. 2. Back |
33 | The Commission understands that the amendments came into force under Om lov om endringar i lov 17. juli 1953 nr. 28 om Heimevernet og lov 17. juli 1953 nr. om verneplikt (heving av aldersgrenser for militær teneste) and that no English translation is available. Back |
34 | HREOC, Submission 18.1, pp. 3-4. This information is taken from a paper circulated by the Norwegian Delegation to the European Conference on the Use of Children as Soldiers, Berlin, (18-20 October 1999), cited on the Coalition to Stop the Use of Child Soldiers website http://www.child-soldiers.org/cs/childsoldiers.nsf/0/367475ace298ace080256ble00533747?OpenDocument Back |
35 | The Justice and International Mission Unit, Synod of Victoria and Tasmania of the Uniting Church in Australia , Submission, p. 2. Back |
36 | HREOC, Submission 18, pp. 5-6 and Mr Craig Lenehan , Transcript of Evidence, 9 August 2004 , p. 29. See also HREOC, Submission 18.1, p. 4, The Justice and International Mission Unit, Synod of Victoria and Tasmania of the Uniting Church in Australia , Submission, p. 2, and National Children’s and Youth Law Centre, Submission, p. 3. Back |
37 | HREOC, Submission 18, p. 6. Back |
38 | HREOC, Submission 18.1, p. 4. Back |
39 | Air Commodore Lee Roberts , Transcript of Evidence, 10 August 2004 , pp. 2-3. Back |
40 | NIA, para. 6. Back |
41 | Mr Richard Sadlier , Transcript of Evidence, 9 August 2004 , p. 24. Back |
42 | NIA, para. 23 and NIA, Consultations Annex A. Back |
43 | ACT Government, Submission, p. 1 and Queensland Government, Submission, p. 1. Back |
44 | HREOC, Submission 18, p. 10. Back |
45 | Justice and International Mission Unit, Synod of Victoria and Tasmania of the Uniting Church in Australia , Submission, p. 1. Back |
46 | Justice and International Mission Unit, Synod of Victoria and Tasmania of the Uniting Church in Australia , Submission, pp. 1 and 2. Back |
47 | Justice and International Mission Unit, Synod of Victoria and Tasmania of the Uniting Church in Australia , Submission, p. 1.Back |
48 | National Children’s and Youth Law Centre, Submission, p. 3. Back |
49 | National Children’s and Youth Law Centre, Submission, p. 3. Back |
50 | National Patriot Movement, Submission 19.1, pp. 1-2. Back |
51 | HREOC, Submission 18, p. 9. Back |
52 | ACT Government, Submission, p. 1. Back |
53 | HREOC, Submission 18, pp. 10-11. Back |
54 | NIA, para. 8. Back |
55 | Mr Richard Sadlier , Transcript of Evidence, 9 August 2004 , pp. 23-24. See also NIA, para. 9. Back |
56 | NIA, para. 9. Back |
57 | NIA, para. 6. Back |
58 | NIA, para. 7. Back |
59 | NIA, para. 20. Back |
60 | NIA, para. 20. Back |
61 | HREOC, Submission 18, p. 7. Back |
62 | Mr Geoff Skillen , Transcript of Evidence, 9 August 2004 , p. 26. Back |
63 | Mr Craig Lenehan , Transcript of Evidence, 9 August 2004 , p. 29. Back |
64 | Mr Craig Lenehan , Transcript of Evidence, 9 August 2004 , p. 28. Back |
65 | Air Commodore Simon Harvey , Transcript of Evidence, 10 August 2004 , p. 4. Back |
66 | HREOC, Submission 18.1, p. 5. Back |
67 | HREOC, Submission 18, p. 5 and HREOC, Submission 18.1, p. 4. Back |
68 | Mr Craig Lenehan , Transcript of Evidence, 9 August 2004 , p. 28. Back |
69 | HREOC, Submission 18, p. 8. Back |
70 | NIA, para. 22. Back |
71 | See Article 8. Back |
72 | NIA, para. 22. Back |
73 | Multilateral Treaties Deposited with the Secretary-General, Part I, United Nations Treaties, Chapter IV. Human Rights, 11.b. Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, <http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIV/treaty21.asp> |
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