Analysing the exclusion of child soldiers seeking asylum under article 1F of the 1951 refugee convention on the principle of the best interests of the child
Muthembwa, Yvonne Wanza
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This paper assesses the application of Article IF (a) of the Refugee Convention to child soldiers seeking asylum on the best interests principle of the Convention on the Rights of the Child. In conducting the assessment, there is an analysis of various international and regional legal instruments relevant to the rights of the child, refugee law and international criminal law. There is also an analysis of case law from select jurisdictions concerning the matter.There are several issues that have emerged from the analysis such as the lack of a uniform minimum age of criminal responsibility that has led to diverse application of Article I F (a) to child soldiers seeking asylum. There is also the issue of the legal threshold set out in Article IF (a) that has presented a challenge in applying the exclusion clause. The other issue is whether the interpretation of the Refugee Convention and the Convention on the Rights of the Child based on the Vienna Convention on the law of treaties will help to resolve the conflict. The conclusion made by this paper is that the current application of the exclusionary clause to child soldiers seeking asylum is against the best interests of the child,Thus it recommends that for the best interests of the child to be upheld, there is need for states to agree on a minimum age of criminal responsibility that will promote certainty in applying the exclusion clause as well as a revision of the legal threshold of the exclusion clause to reflect the current legal threshold in international criminal law.