Abstract

SWART, Mia  and  HASSEN, Sabreen. A comparison between the position of child marriage 'victims' and child soldiers: Towards a nuanced approach. Afr. hum. rights law j. [online]. 2016, vol.16, n.2, pp.458-475. ISSN 1996-2096.  http://dx.doi.org/10.17159/1996-2096/2016/v16n2a7.

This article aims to juxtapose and draw analogies between the legal position of children affected by child marriage and child soldiers. It is argued that childhood is not an undifferentiated status or category. We do not subscribe to a catch-all approach with regard to the accountability of children or those who exploit children. It is vital to make distinctions according to the age and maturity of a child, whether in the context of child soldiering or child marriage. This is the practice in most domestic legal systems and has to a large extent been followed in international instruments. This approach might seem to diverge from the so-called 'straight 18 approach' in favour of standardisation of the minimum age at which children can enter into the armed forces or enter into marriage. In our view, the 'standardisation' approach should only be followed with regard to setting the age for the definition of children at 18 years. Within the category 'children', however, we support a sliding scale approach in dealing with child soldiers and children in early marriage, an approach which will vary according to factors such as the maturity of the child, the cultural context, domestic laws and legal criteria such as voluntariness. Whereas we emphasise that children under the age of seven do not possess criminal capacity and do not have the ability to give genuine consent to marriage, the position of children over the age of seven is more complex. We argue that children on the verge of adulthood should not be stigmatised for voluntarily entering into marriage.

Keywords : child soldiers; child marriage; accountability; criminal capacity.

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