International humanitarian law prohibits an occupying power from forcibly recruiting persons in areas it controls, and limits voluntary recruitment. According to the Fourth Geneva Convention, meant to protect citizens who find themselves under the control of an enemy state, an "Occupying Power may not compel protected persons to serve in its armed or auxiliary forces."63 Moreover, "[n]o pressure or propaganda which aims at securing voluntary enlistment is permitted."64 The convention further prohibits such actions as corporal punishment, torture, and "any other measures of brutality" (article 32). To the extent that Rwanda is the occupying power in eastern DRC and its troops have participated in the forcible and often brutal recruitment of DRC civilians into the army of RCD-Goma, it is acting in violation of international humanitarian law.
Forcible recruitment by RCD-Goma under the authority of Rwandan forces would likewise be in violation of international humanitarian law. Unlike states65 dissident forces normally have no legal authority to conscript persons into armed service. They may assert such authority when a responsible command, in control of substantial territory and population for a sustained period of time, effectively exercises governmental-like authority within that territory. Even then, Human Rights Watch holds that conscription must be carried out in accordance with law and with a measure of fairness, rather than at the unfettered discretion of local authorities. Conscripts should know how long they must serve and should be able to notify their families of their whereabouts.
Even were RCD-Goma to exercise the necessary governmental-like authority to lawfully impose conscription in eastern DRC, it has not recruited persons in accord with any law or any measure of fairness. Local civilian and military authorities conscript men and children at their discretion, fail to inform them about how long they are to serve, and typically given them no opportunity to inform relatives of their whereabouts.
Protocol I to the Geneva Conventions prohibits the recruitment of children under the age of fifteen and requires States Parties to take all feasible measures to ensure that those under fifteen not take part directly in hostilities.66 The Convention on the Rights of the Child, ratified by Rwanda in 1991, provides similar prohibitions in article 38.67 Rwanda has signed , but not ratified, the African Charter on the Rights and Welfare of the Child, which requires that states parties refrain from recruiting children, defined as persons under the age of eighteen, and that they take all necessary measures to ensure that no children participate in hostilities.68
In addition to general prohibitions against conscription, RCD-Goma is legally bound by Protocol II to the Geneva Conventions, which applies to all forces in a noninternational armed conflict.69 Protocol II prohibits recruiting children under the age of fifteen or using them in hostilities.
Both Rwanda and RCD-Goma signed the Lusaka Accords of 1999 in which all parties agreed to end the recruitment and use of child soldiers.70 By recruiting children and training them for combat, both Rwanda and RCD-Goma have violated provisions of the Geneva Conventions as well as the Lusaka Accords of 1999.
In support of these international standards, Human Rights Watch takes the position that no one under the age of eighteen should be recruited (voluntarily or involuntarily) into the armed forces of state or nonstate actors, or take direct part in hostilities.
63 Fourth Geneva Convention of August 12, 1949, article 51. The convention applies to "all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance." (article 2.) Both Rwanda and the DRC are parties to the Geneva Conventions; Rwanda is also a party to Protocol I to the Geneva Conventions.
65 International law provides few restrictions on the ability of governments to raise armies and provide for the national defense. It is limited only by prohibitions against the conscription and military deployment of children under the age of eighteen (see below), and against cruel, inhuman, or degrading practices to compel compliance with conscription (see, e.g. Geneva Conventions of 1949, common article 3, and Protocol II, article 4(2)(a) and (c); the International Covenant on Civil and Political Rights, article 7; and the African Charter on Human and People's Rights, article 12).
66 Additional Protocol I to the 1949 Geneva Conventions, article 77 (Protection of Children).
67 General Assembly resolution 44/25 of November 20, 1989, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990. The Optional Protocol to this convention establishes eighteen as the minimum age for direct participation in hostilities, for compulsory recruitment, and for any recruitment or use in hostilities by nongovernmental actors as well as by governmental forces, but Rwanda has not signed this protocol.
68 OAU Doc. CAB/LEG/24.9/49 (1990), entered into force November 29, 1999, articles II and XXII.
69 Article 4(3)(c)-(d).
70 Article I(2).