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New Zealand - Consideration of reports submitted by States parties under Article 8(1) of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict: Initial reports of States parties due in 2004 [2003] UNCRCSPR 21; CRC/C/OPAC/NZL/1 (30 July 2003)
UNITED NATIONS
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CRC
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Convention on the Rights of the Child
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Distr. GENERAL
CRC/C/OPAC/NZL/1 30 July 2003
Original: ENGLISH
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COMMITTEE ON THE RIGHTS OF THE CHILD
CONSIDERATION OF
REPORTS SUBMITTED BY STATES
PARTIES UNDER ARTICLE 8 (1) OF THE
OPTIONAL
PROTOCOL TO THE CONVENTION ON THE RIGHTS
OF THE CHILD ON THE
INVOLVEMENT OF CHILDREN
IN ARMED
CONFLICT
Initial reports of States parties due in 2004
NEW
ZEALAND[*]
[15 July 2003]
CONTENTS
Paragraphs Page
I. INTRODUCTION 1 - 4 3
II. INFORMATION RELATING TO ARTICLES 1-7
OF THE OPTIONAL PROTOCOL 5 -
62 4
A. Article 1 5 - 11 4
B. Article 2 12 - 13 4
C. Article 3 (paras. 1, 2-4 and 5) 14 - 39 5
D. Article 4 40 - 42 8
E. Article 5 43 - 45 8
F. Article 6 (paras. 1-2 and 3) 46 - 56 9
G. Article 7 57 - 62 10
Annex
Specific NZAID programming support
(since 1
January 2000) 12
Optional Protocol to the Convention on the Rights of the
Child
on the involvement of children in armed conflict
REPORT BY THE GOVERNMENT OF NEW ZEALAND
(Covering the period November 2001 to June
2003)
(Ratification registered on 13 November 2001)
I. INTRODUCTION
- This
is New Zealand’s first report since it ratified the Optional Protocol to
the Convention on the Rights of the Child on the
involvement of children in
armed conflict in November 2001.
- In
order to implement the Optional Protocol, the Defence Act 1990 was amended to
prohibit the direct participation of children under
18 years of age in active
duties.
- At
the time of ratification, New Zealand declared a voluntary recruitment minimum
age of 17 years and outlined the following safeguards
to ensure that recruitment
is not forced or coerced:
(a) New Zealand Defence Force recruitment
procedures require that the persons responsible for recruitment must ensure that
such recruitment
is genuinely voluntary;
(b) Legislative requirements that the consent of parents or guardians is
obtained for enlistment where such consent is necessary
under New Zealand law.
The parent or guardian must also acknowledge that the person enlisting will be
liable for active service
after reaching the age of 18 years;
(c) A detailed and informative enlistment process, which ensures that all
persons are fully informed of the duties involved in military
service
prior to taking an oath of allegiance;
(d) A recruiting procedure, which requires enlisted persons to provide their
birth certificate as reliable proof of age.
- Relevant
government agencies were consulted on the preparation of the present
report. Prior to the decision to sign the Optional
Protocol,
consultations were held with nongovernmental organizations and individuals
interested in human (specifically children’s)
rights. At that stage, the
Commissioner for Children and other government agencies were consulted. All
were in support of New Zealand’s
signature, and subsequent ratification,
of the Optional Protocol.
II. INFORMATION RELATING TO ARTICLES 1-7
OF THE OPTIONAL
PROTOCOL
A. Article 1
Legislative measures to prohibit the involvement of children
in direct hostilities
- Prior
to ratification, an amendment to the Defence Act 1990 gave statutory effect to
the standard limit of 18 years for active service
across all three Services
(Army, Air Force and Navy), regardless of geographical location. Section 37 of
the Defence Act 1990, states
that “no person serving in the Armed Forces
who is under 18 years is liable for active service”. The relevant
sections
of the Defence Act 1990 are attached as Appendix One.
- New
Zealand Defence Force Orders for Administration (Defence Force Orders) published
on 15 February 2002, sets out the New Zealand
Defence Force policy for the
recruitment and deployment in operations of persons under the age of 18
years.
- New
Zealand Defence Force Orders are established under Section 27 of the Defence
Act 1990. The Defence Act 1990 provides that, in
performing the functions
and duties and exercising the powers of the Chief of Defence Force, the Chief of
Defence Force may from
time to time, for the purposes of the Defence Act, issue
and promulgate Defence Force Orders, not inconsistent with the Defence Act,
the
Armed Forces Discipline Act 1971, or any other enactment.
- Defence
Force Orders state that service members are not to be posted on active service
or operational service outside New Zealand
unless they have reached the age of
18 years.
- Internal
audits by the New Zealand Defence Force are regularly conducted on quality
control and assurance to ensure that service members
under 18 years are not
posted on active services outside New Zealand.
- The
Defence Force Orders for recruitment are attached as Appendix Two.
- No
one under the age of 18 years serving in the New Zealand Armed Forces was taken
prisoner or participated in active duty during
hostilities outside New
Zealand.
B. Article 2
Compulsory recruitment
- Currently
there is no legislation in New Zealand providing for compulsory recruitment or
conscription.
- If,
in the future, the Government of New Zealand decides to introduce conscription
in any form, specific legislation will be required.
In such circumstances,
the minimum age of 17 years for voluntary recruitment into the Defence
Force would not be affected. In addition,
any future legislation establishing
conscription would need to comply with New Zealand’s international legal
commitments, including
article 1 of the Optional Protocol relating to direct
participation in hostilities.
C. Article 3
Paragraph 1
New Zealand’s minimum age for voluntary
recruitment
- At
the time of ratification, New Zealand deposited a declaration that the minimum
age for voluntary recruitment into the national
armed forces shall be 17
years.
- The
Defence Act 1990 does not currently set a minimum age for voluntary recruitment,
although it does specify (sect. 36 (1)) that
those under the age of 18 years who
are not or have not been married shall not be recruited without prior consent of
a parent or
guardian. The parent or guardian must also acknowledge that the
person enlisting will be liable for active service after reaching
the age of 18
years.
- Defence
Force Orders stipulate that individuals shall not be recruited for service until
they have reached the minimum age of 17 years.
An individual who has not
attained the age of 18 years, and who is not, or has not been, married, is
not to be recruited without
the prior written consent of a parent or guardian.
Such personnel are to provide reliable proof of their age prior to acceptance
for enlistment into the armed forces.
- In
deciding to maintain the minimum age of 17 years for voluntary recruitment, the
factors outlined below were noted.
- Analysis
shows that there is an inverse relationship between the age on enlistment and
retention after five years of service. This
is seen as an important factor for
an organization that is very dependent on the build-up and development of
institutional knowledge
and experience.
- The
New Zealand Defence Force’s recruitment criteria emphasize qualities such
as sound reasoning skills and a willingness to
work using other more practical
attributes, rather than academic qualifications. The New Zealand Defence Force
is, therefore, competing
with other employers for a relatively limited sector of
the labour market. If the recruitment age was raised, prospective recruits
may
seek alternative employment or remain unemployed, and therefore lose the
motivation to join the Armed Forces when they reach
the appropriate age.
- The
New Zealand Defence Force currently has difficulty attracting enough recruits to
fill technical positions, despite providing technical
training to qualification
levels. This could be exacerbated by raising the minimum recruitment age.
- Recruitment
into the armed forces has traditionally offered young people from lower
socio-economic groups, particularly those who
leave school at 17 years, the
opportunity to succeed in an environment where all recruits start on an equal
footing. Recruitment
is especially significant for those who may be less likely
to build and develop in other types of career options. Groundlevel entry
and
skill development of the like provided by the armed forces may not be readily
available on the same level elsewhere in New Zealand.
- New
Zealand’s process of signing and ratifying the Optional Protocol was
brought to the attention of non-governmental organizations
and individuals
interested in human (and specifically children’s) rights during the annual
consultations of the Ministry of
Foreign Affairs Human Rights Division and in
the context of regular general newsletters to the public. There were some
concerns
expressed about retaining the minimum age of 17 years for voluntary
recruitment but, overall, it was assessed that the benefits as
outlined above
outweighed any disadvantages in the New Zealand context.
Data on the numbers of voluntary recruits under 18
years
- Disaggregated
data on the voluntary recruitment of children under 18 years are attached as
Appendix Three. The disaggregated data
cover the period since the Optional
Protocol entered into force on 12 February 2002 until 30 May 2003.
- The
disaggregated data highlight the number of voluntary recruits living in smaller
urban settings and may be reflective of the view
that the New Zealand Defence
Force offers employment opportunities to persons from areas where full-time
employment and career development
may be less available.
- It
is also significant that of those voluntary recruits who provided ethnicity data
over this period, 29 per cent identified as New
Zealand Maori. Previous
analysis of recruitment has highlighted that of those Maori recruited below the
age of 18 years, almost
25 per cent have opted for technical positions within
the armed forces.
Paragraphs 2-4
Binding declaration on minimum age for voluntary recruitment
and safeguards
- New
Zealand’s declaration on the minimum age for voluntary recruitment also
included an outline of the safeguards to ensure
that such recruitment is not
forced or coerced.
- The
Defence Force Orders cover the four safeguards outlined in article 3, paragraph
3, of the Optional Protocol related to ensuring
that recruitment is genuinely
voluntary, that recruitment is done with the informed consent of parents or
guardians, that recruits
are fully informed of the duties involved in military
service, and that reliable proof of age is provided. In addition, the Defence
Act 1990, section 36 (4), states that:
“subject to section 14
of the Guardianship Act 1961, every application by a minor (being a minor who is
not and has not been
married) for enlistment in the Armed Forces shall be
accompanied by:
− A consent in writing from either parents of a minor, or guardians;
and
− A written acknowledgement by the person giving consent that he or she is
aware that the person enlisting will be liable for
active service at any time
after that person attains the age of 18 years”.
The recruitment process
- The
New Zealand Defence Force conducts recruitment drives from time to time which
include careers advice to those still at school,
advertising in a variety of
media and other
activities intended to attract persons of recruiting age to a career in the
armed forces. All three branches of the armed forces
- the Navy, the Army and
the Air Force - operate Internet web sites on careers in the armed forces.
- There
are a number of stages in the process of recruitment to a career with the armed
forces. The completion of an application form
is merely one aspect of the
process, and does not commit an individual to the armed forces in New
Zealand.
- All
applicants for voluntary recruitment are required to complete an application
form, including providing their birth certificate
as reliable verification of
their age. As noted above, an additional safeguard for those recruits under 18
years (who are not married)
is the requirement to produce written consent from
parents or guardians.
- Defence
Force Orders state that personnel who have not attained the age of 18 years are
to be fully informed of the duties involved
in military service. An Obligations
of Service is provided to all volunteer recruits and parents/guardians in
discussion and electronic
presentations. This information will in future be
incorporated in written form into current recruiting forms.
- The
New Zealand Defence Force Obligations of Service (attached as Appendix Four)
contains the information that is given to persons
who are being attested.
- The
recruitment process includes full medical examination, as well as fitness and
aptitude tests, to ensure that applicants are fit
and healthy and able to handle
the various physical and mental stresses they could encounter while serving in
the armed forces.
In addition, applicants are required to undergo a security
clearance and be either a New Zealand citizen or a permanent resident.
All
recruits across the armed forces are interviewed and required to attend
assessments days that include career counselling, physical
activities and
preparation training.
- Following
successful completion of these tests, voluntary recruits are required to undergo
an interview and undertake basic training
with their choice of Service. At any
time during basic training, recruits may choose to remove themselves from the
Service and depart
the armed forces. Once basic training is completed, recruits
are physically integrated into the armed forces.
- All
service in the armed forces is voluntary, subject to certain restraints about
the amount of notice that must be given if recruits
wish to terminate their
service. Any member of the armed forces can seek early discharge after giving
(usually) three months’
notice. During initial training a recruit can
seek release almost immediately.
Discipline of voluntary recruits under the age of 18
years
- Chapter
11 of the Manual of Armed Forces Law provides guidance to officers exercising
disciplinary powers and court martials. It
states
that:
“Generally it is undesirable to sentence members of the
armed forces to imprisonment if they are under 20 years of age.
“In general, detention is more suitable punishment for persons under 20
years of age than imprisonment, whatever the nature
of the offence.”
- The
Armed Forces Discipline (Exemptions and Modifications) Order 1983, Regulation 8,
provides that:
(a) No member of the armed forces who is under the
age of 17 years shall be sentenced to detention by an officer exercising summary
powers, or by a court martial, under the Armed Forces Discipline Act 1971;
(b) A member of the armed forces who has attained the age of 17 years but is
under the age of 18 years shall not be sentenced to
detention by an officer
exercising summary powers under the Armed Forces Discipline Act 1971, except
with the prior approval of a
superior commander.
- Over
the period of data collection (12 February 2002 to 30 May 2003), no recruits
under 18 years of age have been sentenced to detention
across the armed
forces.
Paragraph 5
Military schools
- No
military schools are in operation by the New Zealand Defence Forces.
D. Article 4
Armed groups and legislative provisions
- Existing
New Zealand legislation, in broad terms, prohibits and criminalizes the
recruitment and use in hostilities by armed groups
of persons under the age of
18 years.
- Section
73 of the Crimes Act 1961 covers treason, making it a crime for persons (of any
age) to engage in acts of hostility against
the armed forces or use force for
the purpose of overthrowing the Government.
- In
addition, sections 66 and 98A of the Crimes Act 1961 are relevant in relation to
criminal gangs. Although these sections do not
specifically criminalize
recruitment to a criminal gang of persons under the age of 18 years, the kind of
activities that could constitute
a “hostility” would be an offence
committed by a member of such a gang at any age.
E. Article 5
Other international instruments and international
humanitarian law
- New
Zealand is a party to the Rome Statute of the International Criminal Court. The
International Crimes and International Criminal
Court Act 2000 gives effect to
New Zealand’s obligations under the Rome Statute. Amongst other things,
this Act creates new
offences of genocide, crimes against humanity and war
crimes in the same terms as the Rome Statute. Accordingly, it is now an offence
under New Zealand law to conscript or enlist children under 15 years
of age into the armed forces or to use them actively in hostilities
in either an
international or internal armed conflict (art. 8 (2) (b) (xxvi) and 8 (2) (e)
(vii)). The offence carries a maximum penalty of life
imprisonment. New
Zealand has taken extraterritorial jurisdiction over these offences, and so
would be in a position to prosecute
New Zealanders who engage in such conduct
elsewhere.
- New
Zealand has also ratified the International Labour Organization (ILO) Convention
concerning the Elimination of the Worst Forms
of Child Labour (Convention No.
182) and will provide its first periodic report to ILO in 2003.
- New
Zealand is a party to the Geneva Conventions of 1949 and the Additional
Protocols thereto of 1977. The obligations under those
Conventions and
Protocols are implemented in New Zealand law by the Geneva Conventions Act 1958
(as amended in 1987).
F. Article 6
Paragraphs 1 and 2
Implementation and enforcement of the Optional
Protocol
- The
Defence Act 1990 was amended in 2001 to provide full compliance with the
Optional Protocol in respect of article 1.
- Operational
practice, in the form of New Zealand Defence Force Orders, implements the
Optional Protocol with regard to the minimum
age for voluntary recruitment and
the safeguards for the minimum recruitment age outlined in article 3, including
ensuring that recruitment
is genuinely voluntary; that recruitment is done with
the informed consent of parents or guardians; that recruits are fully informed
of the duties involved in military service; and that reliable proof of age is
provided.
- The
New Zealand Defence Force has responsibility for managing the recruitment and
selection of service personnel in conjunction with
the armed forces.
Implementation of the Optional Protocol is ensured through Defence Force
Orders.
- Members
of the armed forces, including those responsible for formulating and
implementing recruiting policy and those responsible
for recruiting activities,
are required by law to comply with the Defence Act and the orders made under it
and may face disciplinary
action for any failure to do so.
- The
armed forces have, at appropriate levels, inspectorates whose roles and
functions include ensuring that the relevant legislation
is complied with.
These functions are held at the Army, Navy and Air Force headquarters, as well
as at the New Zealand Defence Force
headquarters. Issues such as the age of
recruits and the age of Service members liable to be deployed on active service
will be
included in the functions of these inspectorates.
- The
New Zealand Defence Force provides regular training on the law of armed conflict
and refresher courses for all forces prior to
deployment to peacekeeping
operations overseas. The law of armed conflict training includes training on
respect for human rights
and special protection measures appropriate to, amongst
others, children.
- The
attached Appendices Five and Six contain a list of prescribed subjects taught in
the context of Law On Armed Conflict training
to all recruits on the Optional
Protocol.
- New
Zealand has not entered any reservations to the Optional Protocol.
Dissemination of the Optional Protocol
- The
Ministry of Foreign Affairs and Trade has worked actively in international human
rights forums to promote the ratification of
the Optional Protocol and, in the
context of its outreach to civil society, has publicized New Zealand’s
ratification and responsibilities
under the Optional Protocol.
- The
New Zealand Agency for International Development (NZAID) has responsibility for
international development assistance (see article
7 below).
Paragraph 3
Disarmament and demobilization
- This
article is not relevant to New Zealand.
G. Article 7
Technical cooperation and financial assistance
- NZAID
was established on 1 July 2002, as a semi-autonomous agency within the Ministry
of Foreign Affairs and Trade. Since its inception,
a considerable amount of
work has been undertaken to define NZAID policy framework in line with Cabinet
decisions taken by the Government
of New Zealand in 2001 on the shape and
direction of the New Zealand official development assistance programme.
- The
central focus of the Agency’s work and its development activities is
poverty elimination, through sustainable and equitable
development, for the
purpose of achieving a safe and just world free from poverty. Poverty is
defined as absolute poverty (failure
to meet basic needs), poverty of
opportunity (e.g. access to land, education), and vulnerability to poverty
(e.g. natural disasters).
- The
Policy framework and activities have been so adapted as to be consistent with
the United Nations millennium development goals
and other international
development targets. Human rights, gender equality and the environment are
newly mainstreamed into New Zealand’s
aid programme.
- The
core geographical focus of NZAID continues to be the Pacific. This recognizes
New Zealand’s proximity to remote, resource-poor
and vulnerable
islands. NZAID continues to work in parts of Asia (the current second major
geographical focus), where child labour,
including soldier issues, are
prominent.
- Education
assistance, particularly at the primary level, continues to be a core part of
NZAID work, comprising a quarter of the total
aid budget.
- Conflict
prevention, peace-building, and post-conflict support are integral parts of
New Zealand’s efforts to help partner countries
reduce poverty,
promote economic growth and improve people’s lives, in the context of
sustainable development. Peace, security
and good governance are critical to
long-term development efforts. NZAID is currently working to instil a culture
of conflict prevention
and peace-building in all our work with developing
countries, particularly in the Pacific, where lack of full public participation
in governance processes, financial and legal vulnerability, and ethnic divisions
have fuelled instability in recent years. Each
year, NZAID supports a number of
projects and programmes on good governance, community participation,
democracy-building, land tenure,
and specific conflict prevention and
post-conflict rehabilitation, all of which are designed to strengthen domestic
capacity to manage
and minimize conflict and instability and their consequences,
and to achieve better governance and democratic processes. We also
support a
number of more general poverty reduction programmes, particularly in the
Asia-Pacific region, which support economic and
social development and seek to
mitigate the root causes of conflict.
Annex
SPECIFIC NZAID PROGRAMMING SUPPORT
(since 1 January
2002)
Global
Coalition
to Stop Child Soldiers
Contribution towards the Stop Child Soldiers Campaign.
Bougainville, Papua New Guinea
Caritas
Trauma counselling (May 2002-June 2003) in Bougainville focused on parties to
the conflict, which included an adolescent/youth element.
Asia-Pacific Region
Coalition to Stop Child Soldiers
To develop the capacity of the Asia/Pacific Coalition Network to research,
monitor, campaign and advocate on behalf of the Stop Child
Soldiers
movement.
Sri Lanka
Community Children’s Fund
To fund the purchase of school equipment for children in the
conflict-affected eastern district.
Sri Lanka
Women’s Development Centre
Support for revolving credit scheme for sustaining payments to pre-school
teachers in conflictaffected eastern districts.
Sri Lanka
People’s Progressive Development Society
Funding for basic educational material for children in the conflict-affected
eastern districts.
Sri Lanka
People’s Progressive Development Society
To purchase educational equipment for a rehabilitation home for children
affected by conflict in the north and east of Sri Lanka.
Sri Lanka
Social Welfare Society
To fund purchase of equipment for a mini library to be used by rural children
in the conflictaffected eastern part of Sri Lanka.
United Republic of Tanzania
UNICEF working with local NGOs
To support non-formal education and counselling aimed at children in
circumstances needing special protection, including refugees
affected by armed
conflict.
- - - - -
[*] Related appendices are available for
consultation in the files of the secretariat in the language of submission
only.
GE.03-43346 (E) 290803
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