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Armed Conflict: the Protection of Children Under International Law
 

Carolyn Hamilton, Director, Children’s Legal Centre, Senior Lecturer in Law, University of Essex, and

Tabatha Abu El-Haj, Research Assistant, Children’s Legal Centre.

In the twentieth century, children have increasingly become the direct and indirect victims of armed conflict. The twentieth century has also seen the rise of the concept of children’s rights, most recently encoded in the United Nations Convention on the Rights of the Child. Neither humanitarian law (including the Geneva Conventions of 1949 and the Additional Protocols to the Geneva Conventions of 1977) nor human rights law has managed, as yet, to reduce the suffering and involvement of children in armed conflict. In 1994 Graša Machel was appointed as an expert to head a UN Study on the Impact of Armed Conflict on Children. The report of this study was presented to the UN General Assembly on November 8th 1996.1 The question for the Machel study, for which a version of this paper was originally written, was to discover a means by which children may be protected from armed conflict. Our task was to look at the relevance and adequacy of existing legal standards in relation to children and to assess whether the current international legal regulation of armed conflict adequately reflects and protects children’s rights. The authors recognise that humanitarian law has a limited purpose and was not intended to be a ‘children’s rights’, or indeed, human rights, instrument. We do not intend, in this paper, to criticise humanitarian law for failing to fulfil a function for which it was never intended, but instead to ascertain what gaps exist in the protection offered to children and to determine whether those gaps could be filled by judicious amendments to existing humanitarian law and children’s rights instruments. The paper, after examining the provisions in humanitarian law then explores the provisions of the United Nations Convention on the Rights of the Child. The notion of ‘protection’ under the Convention is compared and contrasted with the protection provided under the Fourth Geneva Convention and the Additional Protocols. Recognising that the United Nations Convention on the Rights of the Child provides a unique avenue for reform, the paper also considers substantial changes relating to it which might better protect children in situations of war.

As Graša Machel has put it: "It is unconscionable that we so clearly and consistently see children’s rights attacked and that we fail to defend them." The recent Machel report provides a unique opportunity for each of us working in the field of children’s rights as well as for our governments and other interested people to advocate for substantial changes in practice, law and attitude, knowing that the reports recommendations are backed by substantial and thorough research. This paper aspires to add to this conversation a fuller explication of the legal issues in relation to the protection of children in situations of armed conflict.

 

Part I: Problems Facing Children in Situations of Armed Conflict

Children caught up in areas of armed conflict face a wide range of economic, social and developmental problems. Space does not permit a full explication of the number or range of these problems, but the first part of this paper seeks to identify, through the enumeration of a number of key problems faced by children in situations of armed conflict, the areas in which legal reform is needed. If reforms are to be effective, they must address the real needs of these children.

 

The Right to Life and the Right to Survival

Article 6, United Nations Convention on the Rights of the Child

1. States Parties recognize that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and development of the child.

 

The most fundamental challenge for any international legal system which wishes to mitigate the suffering of children in war is to ensure their very survival. Unicef in its report, The State of the World’s Children 1996, estimates that there have been 2 million child deaths in the last decade. 2  Further, the proportion of child deaths has been rising steadily since the end of the Second World War. 3

The reason for the rise in the numbers of fatalities can be attributed to a number of disturbing new trends. First, in most wars in the last decade there has been an outright abandonment of any semblance of compliance with even the most basic provision of humanitarian law, the prohibition on indiscriminate attacks. Second, in recent decades most armed conflicts have been civil wars of one kind or another.4 Rather than set-piece battles between contending armies, recent conflicts have been complex affairs, fought in the streets of populated villages and cities where combatants, children and other civilians mingle, and the distinction between combatant and non-combatant is ignored. The failure, on the part of the parties to a conflict, to distinguish between civilian and combatant and the tendency to treat whole neighbourhoods and hamlets as military objectives has lead to higher child casualties.5 Third, the 1990’s have also seen a rise in ‘ethnic cleansing’ as in Bosnia and Rwanda. In such conflicts children are directly targeted as the future generations of the enemy. Thus, the major problem for children in situations of armed conflict is one of survival itself.

While many child deaths are directly attributable to hostilities, many more children are indirect victims falling prey to disease, malnutrition or starvation. The supply of food, absolutely essential for children, is nearly always disrupted by war. One 1980 study in a war zone in Uganda, attributed only 2% of deaths to violence whereas 20% were caused by disease and 78% by hunger.6 In Somalia in 1992, half or more of all the children under five years of age on January 1st were dead by the end of that year, around 90% of these died from the interaction of malnutrition and disease.7 Many children die because the humanitarian relief does not arrive or is not let in. In Somalia in the 1980’s, for instance, only 12% of food and shipments reached the people for whom they were intended. Others die because governments and armed groups make the growing of food impossible by the placing of landmines (as in Chechnya and Angola) or by a scorched earth policy (as in Tigray).8

 

The Breakdown of Health and Community Infrastructures

Article 24, UN Convention on the Rights of the Child

States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and the rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health or care services. ...

The breakdown of health and community infrastructures also leads to the death of children from avoidable causes. For instance, in Mozambique between 1982 and 1986, over 40% of health centres were destroyed. A similar situation can be observed in Chechnya where there has been huge damage to hospitals and where the remaining facilities are extremely poor. Very often skilled professionals, including doctors, nurses and hospital technicians, are among the first to flee war zones. The result is that those medical facilities which are functioning are likely to become under-staffed at a time when the number of patients in need is rapidly rising. As medical facilities are at full-stretch coping with the most serious physical injuries, there is little time or man-power to provide for the physical and psychological rehabilitation of child victims of war related trauma. Moreover, so little medical aid is available to many children that relief agencies tend to place an emphasis on what might be regarded as the most basic preventative treatment, that of vaccination.

Armed conflict also disrupts the infrastructures which support community health and well-being. It results in loss of housing and in poor sanitation. Power shortages are frequent, making cooking and keeping warm increasingly difficult; power shortages also mean increased health risks, not only from malnutrition and hypothermia, but also from accidents as a result of make-shift energy supplies. Armed conflict brings contaminated water as well as water shortages which in turn bring increased health risks. Children may also be left without sufficient clothing or footwear which can be particularly dangerous where the weather is cold. Such poor environmental conditions exacerbate health and development problems.

 

Economic Crisis

Article 27, United Nations Convention on the Rights of the Child

The States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development. ...

Economic crisis nearly always accompanies armed conflict. With economic crisis comes dislocation of services, increased difficulty in maintaining access to conflict-affected areas for service delivery, increased national debt and increased family impoverishment. For individual families, economic crisis is likely to begin with a father, brother or uncle being called away.9 With the main provider gone from the home, women and children are left to bear of the burden of running the house. Getting food and keeping warm can become enormously difficult tasks both emotionally and physically; families are likely to sink into, or near, poverty. Poorer families, and as such their children, will be disproportionately affected.10 The effects of poverty on children are well-known and are, once again, likely to affect both the survival and development of children.

 

Loss of Education

Article 28, United Nations Convention on the Rights of the Child

1. States Parties recognize the right of the child to education, ...

The destruction or closing of schools and universities, the displacement of the population and the fact that teachers are members of the professional class who are often among the first to leave zones of conflict, all result in loss of schooling for children and young people, bringing with it loss of life opportunities. In Chechnya barely 50% of schools were functioning in 1995, and virtually all child-care facilities had disappeared; those schools that continued to exist were overcrowded, insanitary and insecure.11 Where children are displaced during armed conflict, the general experience is one of inadequate facilities for their schooling. Loss of schooling is very hard to make up. Not only do the children and young people have their opportunities reduced in later life, but the community and ultimately the state also loses from their inadequate education as it results in a scarcity of the skilled labour needed for reconstruction.

 

 

 

Part II: Assessing Humanitarian Law

International humanitarian law (otherwise known as the law of armed conflict), is the body of international law which governs the conduct of war: it sets out the parameters of what is legally permissible during hostilities and includes the Geneva Conventions of 1949 and the Additional Protocols of 1977. Given that its focus is armed conflict, any explication of legal protection available to children in armed conflict must begin with an examination of these instruments. From what we know about children’s experiences in war and the fact that they are increasingly the victims, sometimes purposefully targeted, one must question the efficacy of the legal protection available under humanitarian law. We begin by analysing the purposes and aims of humanitarian law.

 

Understanding the Aims and Purposes of Humanitarian Law

There are two main branches of humanitarian law: the Law of Geneva and the Law of the Hague. The Law of Geneva could be described as a body of law protecting ‘victims of war’ who find themselves in the hands of a party to the conflict: i.e. Wounded and Sick; Wounded, Sick and Shipwrecked; Prisoners of War; and certain civilians (all categories of people who, one could say, have been rendered ‘outside the conflict’ as a result of some situation or other). The Law of the Hague, on the other hand, regulates the methods and means of warfare. Since parts of the Additional Protocols are developments relating to means and methods of warfare, they are also part of Hague Law.

One cannot point to a single reason for the development of humanitarian law. Instead its development has been inspired by a number of motives, including humanity, self-interest, military necessity, concern for the wounded, sick and victims of war and professionalism, as can be seen from the following quotations.

Animated by the desire to serve, even in this extreme case [armed conflict between nations], the interests of humanity and the ever progressive needs of civilization;...

...these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for belligerents... 12

...the two underlying motivations for the international law of armed conflicts are, first, humanitarian considerations and, second, self-interest... 13

Fear and hysteria are always latent in combat, often real, and they press us toward fearful measures and criminal behavior. The war convention is a bar to such measures. 14

As far as Europe is concerned, humanitarian law has its origins in the practice of professional armies, which from the seventeenth century began to create codes of conduct for their own discipline, and in a number of bilateral agreements on the treatment of prisoners taken after a battle. This was in contrast to the normal method of warfare of the middle ages where the entire enemy population, including captured soldier, could be murdered, tortured or enslaved at will by the victorious army. The change in outlook could be attributed to a number of factors, including the influence of certain religious and philosophical writers, and in particular the use of national professional armies whose value was recognised (hence the sparing of captured soldiers) and who were expected to behave according to professional needs (hence the prohibition of private rampages by soldiers). 15

In order to gain a real understanding of the provisions of humanitarian law it is important to recognise that there are two radically different logics at work in humanitarian law. Just as there are two branches within humanitarian law (one addressing the needs of victims and the other curtailing the means and methods of warfare) which share a common conviction that war is an evil which needs to be limited,16 it is equally true that there are two competing ideologies at work within humanitarian law (each with its own agenda) which at times converge and compromise. Those instances of convergence and compromise are the source of the legal conventions in question. Many of the authors see these two tendencies but describe them more as tensions within one ideology. We will argue that they are competing forces which create pockets of protection within the context of compromise.

On the one hand, there is the discourse of compassion for the suffering of victims (key phrases would be humanity, civilisation, public conscience). Those within this discourse, most notably the ICRC, are horrified by the casualties of war and seek to develop protections for victims of armed conflict. On the other hand, there is the discourse of military necessity which sees war as a necessary evil. It accepts rules governing armed conflict, but its acceptance does not derive from compassion: at times, it accepts the rules as necessary given cost/benefit analyses; at times it accepts rules out of a sense of honour and chivalry.

Sometimes the interests of the two simply overlap. This is most easily seen in the context of prisoners of war. In an article entitled "The Value of the 1977 Geneva Protocols for the Protection of Civilians," Louise Doswald-Beck explains how even the protection of civilians can arise out of the logic of military necessity, allowing the two schools of thought to agree on perhaps the most important issue for the former. She writes:

Military effectiveness involves economy of force and thus the need to concentrate on the real military strength of the opponent. Targeting of civilians is not only inhumane, but also wasteful... 17

It is important to see that even when the end result is humanitarian in nature, it may not have arisen solely out of consideration for compassion, humanity and public conscience; moreover, the content of such provisions is often a compromise.

More interestingly, the question arises why and when do the two discourses meet giving birth to legal compromises? It will be argued that the meetings occur because of a shared sense that war is evil, but they occur only when those in the latter camp (i.e. those enmeshed in the discourse of military necessity) are profoundly shocked by specific horrifying events. To develop on Walzer 18, movement in the law of armed conflict occurs at those moments when the militarily inclined cannot reconcile what they have witnessed with any rationalisations; it occurs at the moment when moral arguments of self-justification ring hollow.

As such, the 1868 St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes is just the first example of a weapons convention reacting to the horror of technological advances in weaponry. Similarly, the atrocities of the Second World War were unprecedented and shocked everyone’s moral conscience, thus the move to develop The Law of Geneva and to bring into being the Fourth Convention relating to Civilians. Consequently, it is not surprising that the Fourth Convention primarily aims to protect "[p]ersons ... who, at any given moment and in any manner whatsoever, find themselves, in the case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals." 19 One might attribute the focus on this particular group of civilians and the lack of further development of Hague Law for protection of civilians from the general conduct of hostilities or technological advances in weaponry, in 1949, as a reluctance on the part of the Allies to scrutinise their own conduct in the Second World War.20 Finally, the Additional Protocols arose out of concern about the escalation of violence against civilians, medical personnel and guerrillas in Vietnam and other Cold War conflicts as well as out of concern over how to handle conflicts in the name of self-determination. 21

For the purposes of this paper, the question is: recognising that humanitarian law is always a compromise between humanitarian and military objectives, can humanitarian law protect children in the ways called for by advocates of children’s rights? "Protection" from the viewpoint of children’s rights, as contained in the United Nations Convention on the Rights of the Child, would have to include: protection from the conduct of hostilities (death, disability, emotional distress) as well as from other adversities brought on by war (including starvation, malnutrition, displacement, poverty, educational disruption, community breakdown --including that of communal values, and separation from family). One possible argument in favour of humanitarian law as a vehicle for protecting children during times of armed conflict, would be that since it is a compromise, it is practical and, as such, is more likely to be implemented than instruments seen to be idealistic and which will easily be disregarded once the military retreats back into the discourse of harsh cost/benefit calculations. In order to assess, whether humanitarian law offers protection to children as defined above, the Fourth Geneva Convention and the 1977 Additional Protocols must be scrutinised to assess the real extent of the protection they offer.

 

An Analysis of the Fourth Geneva Convention: the Protection Offered to Children

The Law of Geneva purports to afford protection to victims, where ‘victims’ are those who are vulnerable. However, upon examination one finds that the notion of vulnerability has been narrowly defined. Initially, it only included combatants who had been wounded or shipwrecked or who had fallen ill. Later, with the introduction of the Fourth Geneva Convention, it was extended to include civilians, but for the most part the protection was restricted to a specific group of civilians. Thus, the concept of vulnerability was not readily conceived to include all civilians even though one might argue that all civilians are vulnerable in as much as they are by definition unarmed and, therefore, cannot defend themselves. 22

Another point to keep in mind is that the main function of the Fourth Geneva Convention "is to protect a strictly defined category of civilians from arbitrary action on the part of the enemy, and not from the dangers due to military operations themselves." 23This is a result of the fact that the Convention is part of the Law of Geneva which, as Frits Kalshoven has put it:

...serves to provide protection for all those who as a consequence of armed conflict, have fallen into the hands of the adversary. The protection envisaged here is, hence, not protection against the violence of war itself, but against the arbitrary power which one belligerent party acquires in the course of the war over persons belonging to the other party. 24

Thus, protection from the conduct of hostilities itself, is outside the scope of this Convention. 25,26

As such, even Part II which affords general protection "against certain consequences of war" to the civilian population does not provide protection from military operations. It is, however, the only section of the Fourth Geneva Convention which applies equally to a Party’s own civilian population, but the protection offered is extremely limited.27

Within this section there are some articles which relate to children, but once again the protection afforded is not particularly powerful:

 

Article 14: ...Parties … may establish … hospital and safety zones and localities so organized as to protect from the effects of war … children under fifteen ….

article 17: The Parties … shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of … children and maternity cases….

article 23: Each … Party … shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.

article 24: The Parties … shall take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of war, are not left to their own resources …[emphasis added].

It should be noted that only Article 24 singles children out specifically, but it only focuses on those "who are orphaned or are separated from their families as a result of war." All the other articles protect children among others considered in need of special protection due to inherent weakness.

Part III, section I provides some substantial protection to the civilian population generally --and, as such, to children. However, Part III only protects protected persons.28 Thus, it protects the general civilian population in the hands of the enemy, but it does not protect a Party’s own civilian population. Moreover, as we have seen ‘protection’ does not include protection from the conduct of hostilities.

It should be noted that the Fourth Geneva Convention primarily applies to international armed conflicts as defined in Article 2. However, in as much as Common Article 3 is in the Fourth Geneva Convention and applies to non-international conflicts, one should argue that the Fourth Geneva Convention applies (if only in a restricted sense) in non-international conflicts as well.29 This position allows for the mechanism of enforcement to regulate non-international conflicts.30

 

The Child Right’s Perspective

As we have seen, when one looks at the actual provisions of the Fourth Geneva Convention and analyses their applicability to the child population affected by armed conflict, one is faced with the sobering conclusion that the Fourth Geneva Convention is inadequate in assuring the protection of children and the promotion of children’s rights as envisaged in the United Nations Convention on the Rights of the Child: it fails to protect every child in his or her status as a child, and very little attention is paid to children’s special needs. In addition, as protection from the conduct of hostilities is outside the scope of the Convention, it does not protect children from military operations as such. One must confront the inevitable conclusion that children are not a focus of the Convention. Indeed, they are barely recognised as a separate group and are treated as only one segment of the vulnerable part of the civilian population.

But, why does the Fourth Geneva Convention have so little reference to children, especially as there is no separate instrument of humanitarian law relating to children?31 In view of the huge number of child victims in the Second World War, it is surprising that there is no separate instrument of humanitarian law relating to children. There were attempts in the 1930’s and 40’s to draft such an instrument. 32 In 1938, the ICRC co-operated with the International Union for Child Welfare to produce a Draft Convention for the Protection of Children in Emergency and Armed Conflict. 33 On 12th January 1939, the ICRC and Save the Children (SCF) accepted the draft, but owing to the outbreak of the Second World War, it was never taken any further. In 1946, another Draft Convention was submitted by the Bolivian Red Cross to the Preliminary Conference of the National Red Cross Societies for the Study of the Geneva Conventions; however, it was decided that its provisions should be incorporated into the Fourth Geneva Convention rather than push for a Fifth Convention. Pictet, in his commentary on the Fourth Convention, says little about the fate of this Fifth Convention but hints at the need for compromise throughout the negotiation process.

The failure to obtain a separate Fifth Convention has had serious consequences for children caught up in armed conflict. The focus on children and the need to protect them and promote their rights is itself devalued by the lack of a separate instrument in relation to them: they are not seen by states and other groups involved in armed conflict as a separate group in the population deserving of special protection. Moreover, the specific and, on occasion, very different needs of children have been subsumed into the general need for protection of the civilian population.

One possible excuse for the lack of a separate instrument for children is that at the time of the drafting of the Geneva Conventions, the concept of children’s rights was unknown, and thus the drafters could not have been expected to incorporate children’s rights, as we know them today, into the Convention. This argument, however, cannot be sustained. Children’s rights did not start with the drafting of the 1989 United Nations Convention on the Rights of the Child or with the United Nation’s Year of the Child in 1979. Children’s rights had clearly been in the minds of regional and international drafting bodies since the end of the First World War. This can be seen in a number of instruments relating to children, some aimed directly at children caught up in armed conflict and others aimed more generally at children. These include:

the International Convention for the Suppression of the White Slave Traffic (1910),

the ILO Conventions Fixing the Minimum Age For Admission of Children to Industrial Employment (1919),

the ILO Convention Concerning the Night Work of Young Persons Employed in Industry (1919),

the International Convention for the Suppression of the Traffic in Women and Children (1922),

the Children's Charter of the International Council of Women (1922),

the Declaration of Geneva (1924),

the Children's Charter of President Hoover's White House Conference on Child Health and Protection (1930),

the Bill of Rights for the Handicapped Child (1930),

a Children's Charter in Wartime (1942),

the Children's Charter for the Post-war World (1942), and

a Declaration of Opportunities for Children (1942).

The most well-known and widely applicable of these instruments is the Declaration of the Rights of the Child, otherwise known as the Declaration of Geneva (1924). This instrument recognises that the needs of the child extend beyond physical protection. In addition, the Children's Charter for the Post-war World (1942) states that it is "[t]he right of every child to proper food, clothing and shelter ... [as]... a first charge on the resources of the nation; [f]or every child there shall be available medical attention and treatment ... [and that t]here shall be full-time schooling for every child." The Eighth Pan-American Child Congress adopted a Declaration of Opportunities for Children (1942) which stated that: "[e]very child should live in a family having an adequate standard of living and a stable economic foundation; [t]he state should take measures to assure the economic stability of the family;" children should have the opportunity "to obtain the essential element of wholesome, healthful living" and be given appropriate education and have the opportunity "to develop responsibility and to learn to participate in the life of the community."

The development of children’s rights in the 1940’s was a response to the horrors of the Second World War and a recognition of the catastrophic effect of that war on children. The momentum to assure better protection and regard for the needs and rights of children is reflected in the fact that in 1948 the Social Commission, a Sub-Commission of the Economic and Social Council, had a ‘Children’s Charter’ on its agenda. Given the discussion of children’s rights in international and regional fora at the very time that the Geneva Conventions were being drafted, it is difficult to argue that the ‘child rights’ movement was unknown. It is equally difficult to argue that the notion that children’s rights and needs are different to those of adults, or that children suffered just as greatly, if not more than adults, in times of armed conflict had never been discussed in the international sphere.

Why then did the drafters of the Fourth Geneva Convention pay so little attention to the particular needs and protection of children in times of armed conflict? There are a number of possible explanations for this.

First, there was clearly an overriding need to achieve political consensus for the Conventions as a whole. While there were attempts to strengthen the Fourth Convention in its protection of children, a number of amendments were dropped in the spirit of compromise to enable the Convention to be adopted by consensus. There is, however, little explanation of why the 1924 Declaration of Geneva was not incorporated. A relatively anodyne children’s rights document in today’s terms, it would, at the very least, have allowed for the development of a concept of children’s specific needs and their need for special protection and treatment within humanitarian law.

A second explanation of why children were not treated as a separate group in need of special protection is propounded by Lisa Hitch in her article entitled "International Humanitarian Law and the Rights of the Child: Article 38." 34 Writing in 1989, she postulates that childhood "is per se, a relatively recent phenomenon and that it is really only in the post World-War II period that significant portions of the world community have had as much money and time to spend on extending the average length of childhood to the proportions that we see today."35 Thus, it was not considered necessary in 1949 to deal with the issue of specific protection for children in wartime. She further argues that because of the lack of a social concept of ‘childhood,’ children were frequently involved in fighting at a much younger age than would be thought normal in the world today.

It is difficult, however, to sustain this argument. Quite clearly, the 1924 Declaration and the work of the ILO prove that the concept of childhood was both well and widely understood, although admittedly many societies placed the age at which children moved into adulthood rather lower than 18. Further, there is little evidence to support the view that large numbers of children were combatants prior to the Second World War. Instead, it would seem that the active involvement of child soldiers is a post-Second World War phenomenon. 36

What is most likely to lie behind the omission of children as a separate category is quite simply other, greater concerns accompanied by a degree of indifference to the needs of children: indifference which was exacerbated by the fact that there was no body or delegate specifically representing children’s interests with any real influence over government delegations.

 

Leaving aside the history and philosophical approach of the Convention, there are also a number of substantive problems with the Convention from a children’s rights angle. First as we have seen above, the protection offered by the Convention, both in the articles relating to the civilian population and to children specifically, is limited in nature and, for the most part, only covers a very restricted group of children in the population.

A second substantive defect relates to the definition of ‘child’. Current children’s rights instruments treat humans up to the age of 18 as children, although in some areas of life children may obtain adult rights at an earlier age. The protections offered by the Fourth Geneva Convention do not, on the whole, extend specific protections to children over fifteen: for instance, Article 24 only applies to children up to the age of fifteen who have been separated from their parents as a result of war.37 Fifteen is not, however, the only age reference employed in the Convention. Children under seven have an additional right, to be with their mothers, if in such a safety zone. 38 An occupying power may not compel a child under the age of eighteen to work 39 or pronounce the death penalty against a protected person who committed an offence while under the age of eighteen. 40 Article 76, relating to conditions of detention in occupied territories, includes a provision acknowledging "the special treatment due to minors," but there is no definition of the term ‘minor’. The inconsistencies in definition of ‘child’ throughout the Convention lessen the protection available to children and are incompatible with current thinking in the field of children’s rights which establishes eighteen as the end of childhood and the age at which adult responsibilities can be enforced.

Before moving on to an analysis of the Additional Protocols, it is worth examining Article 24 in more detail, as it is arguably a significant, if partial, attempt to bolster the protection of children:

 

article 24

The Parties … shall take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition.

The Parties … shall facilitate the reception of such children in a neutral country for the duration of the war with the consent of the Protecting Power ….

They shall, furthermore, endeavour to arrange for all children under the twelve to be identified by the wearing of identity discs, or by some other means.

This article reflects an area of real concern to the Geneva Conference: the accidental separation of parents and children. This is the one article relating specifically to children, but it suffers from two limitations. First, as it is limited to children who are deprived of their parents as a result of war, it fails to address the needs of children who are still with their parents but have similar problems of maintenance and education. Second, as Pictet points out, there is a great deal of discretion in the implementation of this article which "provides a wide field of activity for private institutions and organisations such as the National Red Cross Societies." 41   The weakness with this approach is that the Contracting Party may leave such provision to private and voluntary bodies, who are largely unaccountable, rather than fulfil this function themselves.

Not withstanding the fact that the separation of children from their parents is a very significant problem which needs to be addressed, this article is neither a ‘child rights’ article nor an indication that the drafters of the Convention were addressing the need to protect children as children. Article 24, is rather an expression of parental or family rights and States’ concern in retaining their children. As indicated in commentaries, it arises from the fear and experience of children being lost, never to return, to their immediate or wider family and nation as a result of separation or ill-organised evacuation. Thus, there is an emphasis on the continuance of the child’s religion and cultural education to facilitate easy return, rather than an emphasis on ensuring that the individual child’s best interests are the first consideration.

A good example of the emphasis on retaining family and state rights rather than children’s best interests, was provided by the plight of certain groups of Bosnian orphans evacuated to Italy during hostilities in Bosnia. The children stayed Italy for over three years. During that time they were kept in an institutional setting, even though foster parents were available, to ensure that they maintained their native language and culture and did not settle too deeply into an Italian way of life. After the implementation of the Dayton the Bosnian government wanted the children to return. However, it was clear that, materially, there would be little in the way of facilities or provision for these children in Bosnia and their life chances and opportunities were likely to be poorer than if they stayed in Italy. Most of these children were in orphanages before the war and had no family wishing to care for them in Bosnia. Their chance of being adopted or fostered on returning to Bosnia was low, and a number of children, now teenagers, did not wish to return. If one was to address the best interests of these children when they first moved to Italy, it may well have been concluded that, as these children had not been placed with families in Bosnia pre-war, they would have benefited to a far greater extent from fostering with Bosnian or Italian families in Italy than being kept in an institution. If one was to address their best interests and their expressed wishes at the time the Bosnian government demanded their return, it is also possible to conclude that the children’s best interests lay in remaining in Italy.

 

An Analysis of the Additional Protocols of 1977: Protection Offered to Children

In 1977, after a long period of negotiation (1968-1977), two additional Protocols to the Geneva Conventions came into being. Their purpose was to strengthen humanitarian law in the light of the experience of the Vietnam war, the use of new weapons of war and the extensive suffering of civilians in contemporary armed conflict, particularly those fought in the name of self-determination.

 

Additional Protocol I

Protocol I, applicable in international armed conflicts as defined in Article 1, clearly marks progress in the development of the law of armed conflict. Among other things, it is the first real development of Hague Law since the early twentieth century and, as such, is significant in that it represents the first substantial move toward protecting civilians from the conduct of hostilities, protection which does not exist in any meaningful sense in either Hague Law, as it stood, or the Fourth Geneva Convention. 42 Protocol I also grants protection, previously only given to specific categories of protected persons, to the civilian population at large. One could say Protocol I represents a certain democratisation of protection; civilians, in as much as they do not partake in hostilities, are given general protection. This is in contrast to the Fourth Geneva Convention where ‘extreme vulnerability’ is the key to qualifying for protection.

At the heart of Protocol Is protection of civilians is a clear requirement that at all times fighting parties must distinguish between combatants and civilians and between military objectives and civilian objects 43, as well as a requirement that civilians and civilian objects may not be the object of attack. Thus, the law prescribes that the only legal targets of attack are military objectives, which are defined as "those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstance ruling at the time, offers a definite military advantage."

While not intending to undermine the significance of these provisions, it would be irresponsible to ignore the problems which arise out of the above configuration. In the first place, the definition of military objective is such that an object may be a lawful military objective while still retaining a partial civilian character. That partial civilian character, however, does not deprive the object of its status as a lawful military objective. Thus, an electrical generator which is making "an effective contribution to military action" is a lawful target even if its partial or total destruction could mean that civilians will go without electricity for a considerable length of time as a result. Moreover, if the enemy had only one electrical generator which was supplying both the military infrastructure and the entire civilian population with electricity, it would remain a lawful target. Secondly, while there are many advantages to this definition of military objective, it is a fluid definition. This means that things which at one time were not legitimate military objectives may come to be so over the course of the war.44 Thus, the main road through a populated town, which initially was not used by the military, may come to be used by them once other roads are destroyed, making it a lawful military objective. Finally, commentators do not, generally, give adequate attention to how the above provisions fits within the general customary principle of proportionality. If this section is studied without addressing the concept of proportionality, readers will be left with a totally inaccurate understanding of what is illegal under the law.

The principle of proportionality is a basic customary doctrine of the law of armed conflict. It provides that civilian casualties ought to be proportionate to the concrete and direct military advantage to be gained by the attack. In practice, it rarely forbids the attacking of a legitimate military objective; what it does is require the military to utilise that strategy which is most likely to result in the least civilian losses.

The principle of proportionality is articulated in various articles of Protocol I. For instance, Article 51(4) prohibits indiscriminate attacks: an indiscriminate attack is defined as one "which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated [emphasis added]." Thus, while civilians (including children) have gained protection under Protocol I, all protection is still within the framework of considerations of military necessity. Protocol I while offering protection to civilians, recognises that it is not feasible to impose a complete prohibition on the injuring or killing of civilians; as Louise Doswald-Beck points out:

Those which expect to find civilians virtually immune from hostilities ... will therefore be disappointed. ... [the Protocols are an attempt] to limit the use of military capabilities whilst preserving a combatant’s ability to win within these rules which is essential for the Protocols’ survival.45

Protocol I only really protects civilians from being the direct and intended target of attack. The ‘protection’ offered by the Protocol is, therefore, limited in nature, and is perhaps best understood as a term of art.

For specific protection of children one must look to Articles 77 and 78. The authors of the Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 claim that Section III, in which these articles are to be found, applies to all civilians; as such, Article 77 would apply to all children. While acknowledging that there is some ambiguity on the point, 46 they argue as follows about the meaning of the phrase in the power of a Party to the conflict:

the meaning of the words ‘in the power of a Party to the conflict’ is not immediately clear. ... [Similar phrases appear in other treaties]... In all these cases the persons concerned are in enemy hands or have fallen into the hands or power of the enemy.47

In our view the expression covers not only persons who have fallen into the hands of a Party to the conflict, but also those over whom it exercises, or would be able to exercise, authority, for the sole reason that they live in territory under its control.48

Another argument would be that since Article 72 makes clear reference to Parts I and III (and not Part II which applies to the general population) of the Fourth Convention the phrase ‘in the power of a Party to the conflict’ has its traditional meaning, i.e. relating to persons in the power of the enemy or third-party aliens in the territory of a party to the conflict. Under this interpretation Articles 77 and 78 would not protect a Party’s own child population.

 

article 77 –protection of children

Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason.

The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest.

If, in exceptional cases, despite the provisions of paragraph 2, children who have not attained the age of fifteen years take a direct part in hostilities and fall into the power of an adverse Party, they shall continue to benefit from the special protection accorded by this Article, whether or not they are prisoners of war.

If arrested, detained or interned for reasons relating to the armed conflict, children shall be held in quarters separate from the quarters of adults, except where families are accommodated as family units as provided in Article 75, paragraph 5.

The death penalty for an offence related to the armed conflict shall not be executed on persons who had not attained the age of eighteen years at the time the offence was committed.49

 

article 78 -evacuation of children

No Party to the conflict shall arrange for the evacuation of children, other than its own nationals, to a foreign country except for a temporary evacuation where compelling reasons of the health or medical treatment of the children or, except in occupied territory, their safety, so require. Where the parents or legal guardians can be found, their written consent to such evacuation is required. If these persons cannot be found, the written consent to such evacuations of the persons who by law or custom are primarily responsible for the care of the children is required. Any such evacuation shall be supervised by the Protecting Power in agreement with the Parties concerned, namely, the Party arranging for the evacuation, the Party receiving the children and any Parties whose nationals are being evacuated. In each case, all Parties shall take all feasible precautions to avoid endangering the evacuation

Whenever an evacuation occurs pursuant to paragraph 1, each child’s education, including his religious and moral education as his parents desire, shall be provided while he is away with the greatest possible continuity.

With a view to facilitating the return to their families and country of children evacuated pursuant to this Article, the authorities of the Party arranging for the evacuation and, as appropriate, the authorities of the receiving country shall establish for each child a card with photographs, which they shall send to the Central Tracing Agency of the International Committee of the Red Cross. Each card shall bear, whenever possible, and whenever it involves no risk of harm to the child, the following information: ... .

As one can see, except for paragraph 1 of Article 77, the special provisions relating to children in Protocol I are still primarily concerned with very specific issues: participation in armed conflicts; arrest, detention or internment; criminal sentencing; and evacuation of children. Paragraph 1 provides that children shall be the object of special respect. This is, however, a very loose term and no definition of it is to be found. It may mean no more than that children should be treated differently in the ways specified in humanitarian law: children should not be imprisoned or detained or recruited under the age of 15 years, and should be among the first to receive relief.

 

Analysis of Protocol I from a Child Right’s Perspective

While at first reading, coverage for children appears much greater (particularly when one considers Article 51), in fact, the increase in protection for children is relatively minimal. In War and Law Since 1945, Best is also sceptical of the level of real protection that is offered to civilians (and as such children).50 Further, the term ‘protection,’ as used in Protocol I, cannot be equated with, and is fundamentally at odds with, the meaning given to protection in international children’s instruments. ‘Protection’ in Protocol I is, in the end, a compromise between humanitarian ideals and military necessity. Any provision which allows for loss of civilian life, provided that the loss is not excessive in relation to the concrete and military advantage anticipated, is essentially incompatible with the right to life provisions of the United Nations Convention on the Rights of the Child and the earlier 1924 Declaration of Geneva and the 1959 United Nations Declaration on the Rights of the Child. It has been suggested that the right has the nature of an intransgressible norm (jus cogens).51 This is not, however, reflected in the definition of ‘protection,’ under Protocol I, which does not uphold a child’s fundamental right to life or their right to survival.

It is clear that there was some consideration of children in the drafting process of the Protocol and that amendments that would have given better protection to children were put before the drafting committees. Unfortunately, the need to protect children gave way, as in the drafting of the Fourth Geneva Convention, to the need for compromise in order to achieve consensus. 52 Once again, the final instrument does not reflect children’s rights as they were understood in 1977.

As previously mentioned, pressure for a Children’s Charter had built up a sufficient head of steam to be put on the agenda of the Social Commission in 1948 53 (before the drafting of the Geneva Conventions). At this juncture, the Secretary-General of the United Nations took the view that the 1924 Declaration of Geneva should be the starting point for future deliberations on children’s rights. It was accepted, however, that the Declaration, although a basis from which to work, was out of date, particularly bearing in mind developments in child welfare and human rights law. It was agreed that further discussion and thought was needed to formulate an appropriate instrument for children’s rights.

In 1950, a Concept-Declaration of the Rights of the Child 54 was proposed to ECOSOC, but the Declaration on Children’s Rights was not finalised until 1959.55 The Declaration is particularly important in that it explicitly uses the language of rights in relation to children. The Declaration, however, did not deal specifically with situations of armed conflict, other than to state in Principle 8 that the child shall in all circumstances be among the first to receive protection and relief. Nonetheless, there can be no doubt that the detrimental effect of armed conflict on children was very much in the minds of those seeking more potent protection for children in recognition of their rights.

In 1974, the General Assembly adopted the Declaration on the Protection of Women and Children in Emergency or Armed Conflict.56 This Declaration was adopted while the Diplomatic Conference on the Reaffirmation and Development of International Law Applicable in Armed Conflicts was working to bring international law into line with contemporary armed conflicts. 57 The 1974 Declaration states quite explicitly in Article 6 that children belonging to the civilian population and finding themselves in circumstances of emergency and armed conflict in the struggle for peace, self-determination, national liberation and independence, or who live in occupied territories, shall not be deprived of shelter, food, medical aid or other inalienable rights, in accordance with the provisions of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Declaration of the Rights of the Child or other instruments of international law.

 

Thus, the situation of children in armed conflict had already been the subject of considerable international debate; nonetheless, the Protocols do not even contain the level of rights found, for instance, in the 1959 Declaration on the Rights of the Child. The Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 58does not take such a pessimistic view:

In view of its character, this article [Article 77] serves as a development of both the Fourth Convention and other rules of international law which govern the protection of fundamental human rights in time of armed conflict, particularly the International Covenant of 1966 on Civil and Political Rights and the Declaration on the Rights of the Child, adopted unanimously in 1959 by the United Nations General Assembly.59

Protocol I, however, cannot be said to have incorporated the 1959 Declaration on the Rights of the Child. Interestingly, the 1959 Declaration on the Rights of the Child is only mentioned occasionally in the Commentary: for instance, in relation to Article 70 which reiterates provisions already in the Fourth Geneva Convention but adds ‘nursing mothers’ to the list of those to be accorded treatment or special protection:

Nursing mothers [were] added at the request of a delegate who stated that "babies needed food, and if mothers were to feed them, they too had to be fed." This proposal was unanimously accepted, and it was stressed that it was indeed in accordance with the UN Declaration of the Rights of the Child. 60

The Declaration on the Rights of the Child is not mentioned elsewhere in the Commentary as a reason for an amendment nor is there any suggestion that other parts of the Declaration should be expressly incorporated into the Protocol. Nonetheless, it is important to note that the drafters were aware of the instrument.

The lack of incorporation might once more be charitably explained on the basis that the drafters took the view that children were not the intended victims of armed conflict and that there was little need to legislate for them as they would not be directly targeted. 61 Alternatively, the lack of incorporation might be due to a lack of understanding by the Conference of what the 1959 Declaration requires of parties in recognising children’s rights. The Preamble of the 1959 Declaration refers to the child needing special safeguards and care, including appropriate legal protection by reason of his physical and mental immaturity. This need for care deriving from ‘vulnerability’ is recognised as the basis for provisions relating to children in both Protocols I and II. However, the Preamble also states, reiterating the 1924 Declaration of Geneva, that "mankind owes to the child the best it has to give" and that all children, without exception, shall be entitled to those rights. There is no indication that the Protocols seeks to uphold the notion that mankind owes to children the best it has to give. While armed conflict is inimical to the ‘best interests’ of children, bringing as it does the possibility of death or injury, disruption of life and the curtailment of services, freedom and dignity, all that Protocol I (and indeed, Protocol II) seek to offer is minimum standards, not the maximum possible levels of protection for children.

Although Article 77 may appear at first sight to increase the level of protection for children, the article is, by its very generality, likely to achieve little. Further, it fails to define the age of childhood. While there is nothing to stop parties to the Protocol interpreting the word ‘children’ as covering all those up to the age of eighteen, the Commentary suggests that the limit is fifteen years of age. This is the age limit of childhood used many times in the Fourth Geneva Convention 62 and is the age limit prescribed in paragraphs 2 and 3 of Article 77. Article 77(2) also uses the term ‘persons’ rather than child when referring to those between the ages of fifteen and eighteen. Thus, it may be deduced that the general provisions of Article 77 were intended to apply only to those up to the age of fifteen. The Commentary takes the view that the age of fifteen corresponds to the development of human faculties such that special measures are no longer required to the same degree. It refers to other international instruments which use the age of fifteen, including the Recommendation of 1965 relating to the minimum age for marriage. 63 Even if one ignored the above and argued that given Article 77(1) lacks a definition of ‘child’, the general provisions should apply to all children up to the age of eighteen, there are still special privileges which are only allocated to those under the age of fifteen (in particular, Article 77(2) and (3) and others relating to the Wounded, Sick and Shipwrecked which apply to new-born babies [see Article 8(a)]).

Protocol I has, from a children’s rights perspective, most of the failings to be found in the Fourth Geneva Convention: it does not incorporate children’s rights as they are understood today or as they were understood in 1977, and it does not really extend children much protection in their status as children, nor is the protection offered, afforded to all children equally. Further there is no consideration of the need to act in the child’s best interests.

 

Protocol II

Like Protocol I, Protocol II, which applies in non-international armed conflicts as defined in Article 1, affords some protection to civilians (and as such children) from the conduct of hostilities. However, there are three important things to note with respect to Protocol II:

There is no definition of civilians and combatants as a consequence of sensitivity about sovereignty.

There is no explicit obligation to minimise civilian losses although some protections against the conduct of hostilities exist.

There is no specific prohibition of reprisals against civilians.

The significance of this is slightly mitigated by the existence of customary international law with respect to internal conflicts; however, the exact content of that customary law is somewhat open to debate. In a recent decision of the Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 in the case of Dusko Tadiš the following provisions protecting civilians were held to be customary law:

a) the prohibition of intentionally attacking civilians (articulated in Article 13 of Protocol II);

b) the prohibition on attacking non-military objects and the requirement that at all times a distinction must be made between objects which are military objectives and those which are not --in particular, dwellings and other civilian installations should not be attacked;

c) the requirement that precautions are taken in attacking military objectives such that the civilian population is spared as much as possible;

d) the requirement that aerial attacks must only be initiated against ‘identifiable’ military objectives;

e) the prohibition of reprisals against either the civilian population, at large, or individual civilians;

f) the recognition that fundamental human rights, as laid out in international instruments, apply fully in all situations of armed conflict. 64

Protocol II is a watered-down version of Protocol I. This is because international law had traditionally viewed the domestic affairs of a state as prima facie beyond the scope of its jurisdiction as witnessed in Article 2(7) of the United Nations Charter. Civil wars are a particularly sensitive issue as every state sees the suppression of those who challenge its authority as its legitimate right. Given the issue of sovereignty, it is not surprising that Protocol II is not as exhaustive as Protocol I.

Nevertheless, and despite its deficiencies, Protocol II marks an important development in the law for, up until 1977, there was no protection in non-international armed conflicts other than Common Article 3 of the Geneva Conventions. This left children, unlucky enough to find themselves in an internal war, without proper legal protection. Protocol II supplements Common Article 3 whose humanitarian principles came to be regarded as too general and incomplete to provide an adequate guide to the conduct of hostilities in internal armed conflicts.

The most interesting feature of Protocol II is that we see for the first time in humanitarian law a provision relating to all children as children, namely Article 4(3):

 

Children shall be provided with the care and aid they require, and in particular:

they shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care; 65

all appropriate steps shall be taken to facilitate the reunion of families temporarily separated;

children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities;

the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured;

measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being.

Thus in Article 4(3) all children are being given fundamental guarantees in an attempt to ensure that they are treated humanely. Children feature in other articles of the Protocol but then only if they fall into specific categories: persons whose liberty has been restricted or [persons subject to] penal prosecutions.

 

Analysis of Protocol II from a Child Right’s Perspective

As with Protocol I, there was a move at the drafting stage to increase the level of protection for children and an effort to incorporate more of what was seen as children’s rights. Ultimately, however, the provisions did not even incorporate the relatively weak rights contained in the 1959 Declaration on the Rights of the Child and afford little more protection than that available under the Fourth Geneva Convention. The only real development is the generalisation of protection seen in Article 4(3(a)) and the addition of Article 4(3(e)). Given the earlier discussion of developments in children’s rights by 1977, one cannot attribute the absence of adequate protection to ignorance of the children’s rights movement. Moreover, the same criticism of the limited definition of ‘child’, which does not extend up to 18, in the Fourth Geneva Convention and Protocol I apply to Protocol II.

In addition, there is a real problem of the applicability of Protocol II which applies only if:

1.    "There is an armed conflict not covered by Article 1 of Additional Protocol I.

2.    The armed conflict takes place in the territory of a High Contracting Party.

3.    Involved in the conflict are the armed forces of a High Contracting Party and dissident armed forces or other organised armed groups.

4.    These dissident armed forces or other organised armed groups are under a responsible command.

5.    They have control over a part of the territory of the High Contracting Party so as to enable them to carry out sustained and concerted military operations and to implement Protocol II."66

6.    The situation is not an internal disturbance or tension, a riot or isolated and sporadic act or acts of violence or other similar act.

Thus, Protocol II is limited in its applicability: for instance, it would not have applied to the civil war in Lebanon to the extent that the conflict was not between the government and dissident groups. The non-State armed force or group must have progressed quite far in its struggle to satisfy such a stringent requirement of territorial control. Indeed, in Non-Combatant Immunity as a Norm of International Humanitarian Law, Judith Gail Gardam postulated in 1993 that Protocol II "would not apply to the majority of civil wars now current in the international arena."67

A further, very real problem exists in relation to the applicability of the Protocols: many states have not ratified these additional Protocols. 68 For instance, in the Gulf Conflict, neither the United States, the United Kingdom, France nor Iraq had ratified Protocol I. In addition, most governments, given their interest in maintaining sovereignty, are unlikely to be willing to concede that a situation within their borders amounts to an armed conflict as defined in Protocol II.

Another issue to note is that Protocol II does not apply to "situations of internal disturbance and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts".69 For a child caught up in such situations there may, however, be little distinction. The effects of war are not limited by their classification under humanitarian law. Fraser in his book Children in Conflict 70 about children in the ‘internal disturbances’ of Northern Ireland concludes that being in the area of conflict causes mental disturbance to virtually all children, and acute anxiety and depression if not psychosis in a considerable number. His conclusions are confirmed in other literature. 71Thus, violence does not need to escalate into all out civil war for it to profoundly affect children. 72

It should be noted as well that exposure to violence is not the only distressing aspect of political violence. For instance, a Unicef survey of children in Mosdar indicated that many children had experienced cold and hunger to the point that they thought they might die; this experience was for some more distressing than the fear of violence. In addition, children have been known to suffer anxiety because of absent family members (for instance fathers, brothers and uncles); in addition, the work which they may be forced to take up as a result of this family disruption is likely to mean children will have to mature much earlier, with many negative effects. 73 These are issues which arise irrespective of the actual level of violence or nomenclature of the conflict.

Situations of internal disturbances, like armed conflict, put children’s lives at risk from military operations, create economic crises (particularly if sanctions are employed), cause the separation of children from parents as a result of political detentions or deportations, and make child protection services more difficult to implement as the government loses control. Perhaps most importantly, internal disturbances are renowned for making education difficult as schools are shut down by authorities or boycotted in protest against them.

 

Where Protocol II does not apply (including situations of internal disturbances), or where its application is contested, Common Article 3 should apply. However, the protection afforded under Common Article 3 is quite limited:

 

common article 3

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

b) taking of hostages;

c) outrages upon personal dignity, in particular humiliating and degrading treatment;

d) the passing of sentences and the carrying out of executions without previous judgements pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

... An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. ... 74

There is consensus that Common Article 3 has a lower threshold below which it does not apply. However, no one is exactly sure what that threshold is. In such situations, human rights law continues to apply but is open to derogation.75 Moreover, where a state denies the very existence of an armed conflict, human rights law continues to apply. Unfortunately, as Theodor Meron points out in Human Rights in Internal Strife: Their International Protection:

Scholars have assumed that in conflict situations, either "human rights" or "humanitarian rights" or sometimes both will apply, excluding a legal void. ... Unfortunately, this is not always the case in reality. In many instances of armed conflict, States utilize a number of techniques to derogate from peacetime human rights without recognizing the applicability not only of humanitarian law as a whole, but even of common Article 3. ... In short, it must be recognized that there is a legal uncertainty, or perhaps even a lacuna, in the law.76

Whether or not there is a lacuna in the law, and what this consists of, there is certainly a lacuna in practice.

 

Reflections on the Law of Armed Conflict

Considerable problems continue to exist in relation both to the applicability and to the implementation of humanitarian law. Protection for civilians from the conduct of hostilities is found in the Additional Protocols, but the Protocols have still not been ratified by a number of states: 77 they are this not applicable to these states.

There is also a general problem of states not agreeing to the applicability of relevant humanitarian law. Thus, Israel throughout its occupation of the West Bank and Gaza denied the applicability of the Fourth Geneva Convention. Similarly, India is currently denying that the situation in Kashmir is a non-international armed conflict. There is at present no international court or tribunal with jurisdiction to adjudicate the classification of a particular conflict and, as such, to proclaim which body of law is to be applied. Thus, in many cases only Common Article 3 applies as protection for children, and this article, as we have seen, is very general and makes no specific reference to children at all.

While full implementation of applicable humanitarian law would provide considerable protection to civilians, in many conflicts the provisions of both customary and treaty law are openly disregarded leaving civilians, and therefore children, to face the full brunt of war unprotected. For instance, while starvation of civilians is forbidden by humanitarian law,78 various conflicts show us that it nevertheless occurs, particularly where the armed conflict involves a separatist attempt by one of the parties (as was the case in Biafra, Eritrea, and Chechnya). 79 Similarly, while humanitarian law forbids the targeting of hospitals and medical facilities, in reality hospitals are often targeted and, in certain conflicts, bearing the Red Cross has been seen as an invitation to attack. 80 Until these two issues are addressed, the number of child casualties will not be reduced.

 

Moreover, on analysing humanitarian law from a child right’s perspective, there are a number of over-arching problems, on top of those already mentioned above. In the first place, current humanitarian law conflicts with the fundamental principle of non-discrimination to be found in Article 2 of the United Nations Convention on the Rights of the Child. Protection under humanitarian law, particularly the Fourth Geneva Convention, depends upon one’s relationship to the Party to the conflict. To conform to the accepted notion of children’s rights, any protection given to children should be dependant simply on the fact that the child is under 18 years of age: the nationality, race, political persuasion of their parents or their relationship to the armed conflict is totally irrelevant.

Further, the philosophy of humanitarian law is not that of children’s rights, nor was it ever intended to be so. Article 3 of the United Nations Convention on the Rights of the Child requires that "in all actions concerning children, whether undertaken by public or private social welfare institution, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." The guiding principle of ‘best interests’ does not find a place in humanitarian law.

There is, however, another point to be made here. Even when current humanitarian law is rigorously applied, children still suffer physical and psychological damage. This is clearly shown by the experience of Iraqi children in the Gulf War. Raundalen and Melton are particularly revealing on this point. After studying Iraqi children they reported that:

we were struck by the degree of trauma that Iraqi children have experienced. Iraqi children had no concept of the American and allied bombing as a limited "surgical" operation aiming at important technical installations. Instead, the Iraqi children experienced the war as a deadly door-to-door action, and they feared that the door to their house could be the next. ... Many Iraqi children still express a daily fear that their own concrete houses could fall and crush their families. 81

Their point though is not to challenge that the American and allied bombings were "surgical;" in fact, the fear of public opinion led the Coalition forces to be especially scrupulous in their military tactics, and much of Protocol I was applied de facto. Raundalen and Melton’s discussion of the Al Ameriyah attack on an intelligence centre in Baghdad is particularly poignant. As the Coalition forces had no knowledge that civilians would be there, they had no legal obligation to modify their plan of attack, which was legal even under Protocol I, had it applied, because the bunker was a legitimate military target. Nonetheless, Raundalen and Melton found that:

The most acute event in many of their minds was the bombing of the shelter in the Baghdad suburb of Al Ameriyah, where more than 1000 people were killed, including many children. An enormous number of children in the Al Ameriyah neighborhood tried to cope with the terrible impressions of sounds of the bombing and sights and smells of burned bodies. They are tormented by memories of what they had touched. 82

Thus, even what is legal can be radically at odds with what we understand to be in the ‘best interests’ of children. From the perspective of the children interviewed in Baghdad, the Al Ameriyah incident whatever its legal status remained frightening and psychologically damaging. The law is never likely to be able to fully protect children from the realities of war. As such, any changes in the law must be accompanied with work to prevent the on-set of war; in the words of the ICRC:

Armed conflict cause unspeakable suffering, whatever is done to prevent it and however well international humanitarian law is respected. It is therefore vital to encourage and intensify all efforts to tackle the root causes of conflicts, such as poverty, inequality, illiteracy, racism and the uncontrolled growth of huge cities, the collapse of governmental and social structures, corruption, crime organized on a world-wide scale, drug trafficking and arms dealing.

To encourage compliance with international humanitarian law is not enough.83

 

Part III: the United Nations Convention on the Rights of the Child

The Dichotomy between Rhetoric and Reality: Articles 38 and 39

We have argued above that the present provisions of humanitarian law are not adequate and effective in protecting children from the effects of armed conflict. This inadequacy was acknowledged by the 1990 World Summit for Children in New York. The Summit, attended by more than 70 heads of State, recognised the need to improve humanitarian law and urged the "acceptance and observation of the Convention on the Rights of the Child"; in particular, it urged that "the 1990’s should see rapidly growing acceptance of the idea of special protection for children in time of war."

At present, however, there is a dichotomy between rhetoric and reality. The rhetoric is one of virtual world-wide acceptance and promotion of children’s rights through the medium of the United Nations Convention on the Rights of the Child, but the reality is one in which children are consistently subjected to the full brutality of war. The outstanding question is, of course, how might better protection be given to children caught up in armed conflict? This requires considerations both of changes to humanitarian law and of alternative means of addressing the needs of children in situations of armed conflict. Given the wide ratification of the United Nations Convention on the Rights of the Child,84 it presents a real avenue for reform.

The UN Convention on the Rights of the Child contains its own provisions relating to armed conflict in Articles 38 and 39:

Article 38:  85

1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.

...

4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.

Article 39

States Parties shall take all appropriate measures to promote physical and psychological recovery and social re-integration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and re-integration shall take place in an environment which fosters the heath, self-respect and dignity of the child.

The rights contained in Article 38 are not innovative and, from a child right’s view, are extremely disappointing. Article 38(4) only requires States to take ‘all feasible’ measures, it does not impose an absolute duty. There were attempts to raise the level of protection beyond that provided by humanitarian law,86 but this prime opportunity to increase the level of protection and respect for children during armed conflict was, once again, lost to the need to achieve consensus and to the view of certain states that the Convention was not a proper vehicle for rewriting humanitarian law. 87 Thus, the provisions in Article 38 represent the lowest common denominator. 88

The disappointment at the failure to grapple with the difficult question of improving protection for children in situations of armed conflict is reflected in the fact that the Committee on the Rights of the Child, recognising the inadequacy of the provisions in Article 38, chose the topic of ‘armed conflict’ for their first day of discussion. Although the discussion focused on the lack of protection for civilian children as well as the recruitment and use of child soldiers, it was the latter topic that the Committee felt able to take forward. A text was prepared for consideration at the World Conference on Human Rights held in Vienna in 1993,89 and a preliminary draft Optional Protocol on the involvement of children in armed conflicts was presented to the General Assembly of the United Nations.90 The Committee on the Rights of the Child did not make any firm recommendations for additional protection of civilian children in armed conflicts but recommended instead that a major UN study should be undertaken to consider their situation.91 The United Nations followed this recommendation. Graša Machel was appointed as the expert to head the study which was published in November 1996.92

 

Derogation from the Convention

The Convention on the Rights of the Child also contains general rights for children, including rights of protection, provision and participation. The full implementation of such rights during times of armed conflict would go a very considerable way to protecting children. It is unclear, however, precisely what status the Convention retains once armed conflict is taking place within a State. There is no reason why those States who have ratified the Convention should not continue to be bound by it in relation to all children within their jurisdiction. 93There is no provision in the Convention for derogation; however, the application of certain articles may be limited in certain circumstances. The right to leave the country,94 to freedom of expression, 95 to freedom of religion, 96 to freedom of association and peaceful assembly 97 can all be limited, as in other human rights instruments, on the basis of protection of national security, public order, public health, morals or the rights and freedoms of others. It is arguable that all provisions other than those which can expressly be restricted, remain in force during war.

However, some State delegations during the drafting process, relying on Article 38(4), concluded that only Article 38 applied in war-time situations. According to this analysis, once armed conflict begins, the State ceases to be under an obligation to implement the other provisions of the United Nations Convention on the Rights of the Child . Cohn 98 points out that if all the articles on the protection and care of children do in fact apply at all times, the necessity for Article 38(4) may be doubted, and it is, therefore, not unreasonable to suppose that the drafters expected that the Convention on the Rights of the Child would be subject to derogation during armed conflict. The Committee on the Rights of the Child appears to take a different view, holding that the whole Convention continues to apply in times of armed conflict or emergency. 99 Thomas Hammarberg, a member of the Committee on the Rights of the Child, has stated that:

Article 38 specifically addresses the situation of children in armed conflicts ... however all other articles of the Convention are relevant. In fact there is no derogation clause in this Convention, it applies in its entirety also in times of war or emergency. The child has a right to a family environment, to go to school, to play, to get health care and adequate nutrition - also during the armed conflict. The principles of the Convention are valid as well: that all children without discrimination should enjoy their rights, that the best interests of the child be a primary consideration in decisions, that the right to life, survival and development be protected .... 100

Jurisdictional Problems

A number of jurisdictional and practical problems must also be faced. In many internal armed conflicts, the State if it continues to exist at all, only does so in a muted form: although the state may technically retain control over territory, the infrastructure and organisation of the state may have all but disappeared and the ability to implement the Convention may be non-existent. In such instances, only humanitarian law exists in reality to fill the void. It may, in reality, if its provisions are implemented, be the only practical form of protection that covers children in such circumstances.

A second jurisdictional problem arises with non-state entities. In many internal conflicts, a state may lose control over a particular area of its territory to an armed group. The armed group now in control of the territory is not bound by the UN Convention on the Rights of the Child as, currently, the United Nations Convention on the Rights of the Child refers to ‘State Parties’, so that only formally recognised governments may accede to the Treaty. However, just as non-state entities who are parties to a conflict may declare their intention to accept and apply humanitarian legal principles,101 the Committee on the Rights of the Child should consider the adoption of mechanisms that would allow non-state entities in de facto control to make a declaration that they regard themselves as bound by the UN Convention on the Rights of the Child . That the Committee are prepared to acknowledge non-state entities’ commitment to the Convention on the Rights of the Child is shown by their acknowledgement of the Palestinian Authority’s ‘ratification’ of Convention on the Rights of the Child in April 1995.102 Machinery is needed to give effect to such ratifications and Declarations.

Some might argue that the Convention on the Rights of the Child, as a human rights instrument, has no place in times of armed conflict. However, an individual does not cease to have basic rights once an armed conflict begins. Moreover, human rights treaties continue to be applicable even if derogations may be permitted. More importantly, the two bodies of law have slightly different fields of application and as such are complementary (thus, for instance, one would look to human rights law for judicial guarantees for person detained during an armed conflict for reasons not relating to the armed conflict). 103 Finally, it is not unknown for humanitarian law to contain human rights concepts, such as Protocol II Articles 4(2) and Protocol I, Article 75 and Common Article 3 of the Geneva Conventions. In the light of the above, it is hard to see how one could seriously argue that the rights envisioned in the United Nations Convention on the Rights of the Child unilaterally come to an end with the outbreak of hostilities.

It is to be regretted that States did not take the opportunity during the drafting of the Convention to seek to remedy the deficiencies in the protection of children during armed conflict. 104 It has to be accepted, however, that the number of child deaths at this time was not as great and the Additional Protocols had been only recently drafted. The United Nations Convention on the Rights of the Child , it might be argued, has advanced respect for humanitarian law to a small degree. Even if a state has not acceded to or ratified the Fourth Geneva Convention 105 or the Protocols, it might nevertheless be bound to observe the humanitarian law provisions as a result of Article 38. However, Article 38(4) provides that States Parties undertake to respect and ensure respect for rules of international humanitarian law applicable to them in times of armed conflict. The view was expressed during the drafting of the United Nations Convention on the Rights of the Child that the phrase ‘applicable to them’ might be read to cover only those States which had specifically undertaken relevant humanitarian law treaty obligations. Unicef postulated, during the technical review, that this would be an incorrect interpretation. They contended that the language used clearly applied equally to the customary obligations of all States, and that this was clear from the Travaux Preparatoires.106 The interpretation of Article 38(4) is not as issue that has, as yet, been discussed by the Committee on the Rights of the Child.

 

Part IV: Recommendations for Change

In the horrifying new face of armed conflict, the challenge for the international community today is to meet the changing nature of armed conflict. In particular, does international law have the potential to create real protection for children and mitigate their suffering? While no system of law can ever eradicate the hardship of war, we believe that international law could be changed to enhance protection. To this end, we make the following recommendations for change.

 

Relating to Humanitarian Law

"Protection" under humanitarian law will always be a term of art; it will never amount to the level of protection for children envisioned in the United Nations Convention on the Rights of the Child. Nevertheless, humanitarian law represents a practical compromise between humanitarian and military considerations, and has value. For one, the military cannot rationalise disregard for humanitarian law by the claim that its demands are unreasonable and were not developed with the realities of war in mind: an argument which could be levied against human rights instruments, generally, and the United Nations Convention on the Rights of the Child, in particular. Not only was humanitarian law developed specifically with the brutality of armed conflict in mind, but it has always sought to accommodate military necessity, even at the expense of humanitarian considerations, in the pursuit of ‘feasibility’.

The task, then, for those of us interested in protecting children is to find ways to strengthen humanitarian law in its own terms while seeking more unconditional pledges for the protection of children in armed conflict from States through human rights instruments, in particular the United Nations Convention on the Rights of the Child. In as much as children are members of communities and it is important to their development that they remain so, much would be done for children if the civilian population at large was protected from the effects of armed conflict as provided for under humanitarian law, and particularly as envisioned in Protocol I. We suggest that the most effective way to improve the protection of children under humanitarian law is to improve compliance with its provisions. To that end, its applicability should be simplified, expanded and opened to adjudication, and its enforcement mechanisms should be strengthened. In addition, there are a few changes specifically relating to children which would have considerable effect in improving protection .

 

recommendations

1.    The determination of the applicability of specific treaties should be re-thought to encourage more wide-spread application. In particular, changes should be made with a view to ending current practice wherein States consistently contest the applicability of any humanitarian law. To that end, some provision must be made for adjudication of the classification of an armed conflict, either through the United Nations Security Council (although this option is somewhat problematic given our political reality) or through the jurisdiction of an international court.

2.    If children’s best interests are considered, it is clear that they deserve the highest level of protection possible under international humanitarian law. If one considers the law in its present form from the perspective of the child’s best interests, the distinction between protection offered in international conflict and that offered in internal conflict is unjustifiable. Consequently, a set of legally binding provisions relating to children and civilians in all situations of armed conflict should be drawn up. While one can see how considerations of state sovereignty may justify the lack of POW status for rebels, it is unclear how it can justify the discrepancy between protection offered to civilians (and as such children) in international conflicts and that offered in internal conflicts.

3.    Given that any amendments to current humanitarian law will require ratification by States before they are binding, it is important that customary international law in the area of armed conflict, and specifically non-international armed conflict, be explicated and reaffirmed by the world community.

4.    A permanent international court should be given jurisdiction to deal with alleged grave and other breaches of international humanitarian law in both international and non-international conflicts. In particular, NGOs should have standing to bring proceedings against parties to a conflict. The court should have the authority to adjudicate on the classification of a particular armed conflict.107

5.    States who have not done so should be actively encouraged to ratify the Additional Protocols.

6.    All States should abide by their obligations "to respect and to ensure respect" for the Fourth Geneva Convention and its Additional Protocols (Article 1). As regards international conflicts, States should respect their Fourth Geneva Convention "obligation to search for persons alleged to have committed, or to have ordered to have committed, such grave breaches," and to "bring such persons, regardless of their nationality, before its own courts" (Article 146). The obligation of compulsory universal jurisdiction in relation to grave breaches should become a reality rather than merely a subject for lectures on the law of armed conflict.

7.    All States should be required to include dilemmas relating to civilians and children in their military exercises so that officers, in particular, become familiar with the sorts of decisions they will have to make and the legality of those decisions. Such practices should be open to international review. Dissemination, even from the ICRC, is clearly not enough.

8.    All States should be legally obliged to accept impartial humanitarian aid aimed at the civilian population whatever the nomenclature of the situation. While in practice humanitarian aid and the entry of aid workers may be subject to the consent of the Parties to the conflict, legally it should not. Furthermore, if humanitarian bodies legally had a right to provide assistance, they might face less resistance on the ground.

9.    Specifically, relating to children:

  • All States should be required to accept any impartial humanitarian aid directed at children, especially vaccinations. If convoys need to be searched, it should be done by a neutral third party who has no interest in slowing the process down.
  • States should not be allowed to close schools, in whatever sort of conflict, for security reasons. Both parties to the conflict should be reminded of their obligations to permit children to receive education and should respect schools as neutral zones. The only justifiable reason for closing a school is if its students are in direct danger because the school is in the middle of the conflict zone.
  • Given their youth and the generally ambiguous nature of the recruitment of child-soldiers in most conflicts, relevant articles of humanitarian law should be amended such that in all conflicts soldiers under the age of 18 will be given POW status whatever the status of the Party for whom they are fighting. In the mean time, parties to conflicts around the world should make Declarations to the same effect, irrespective of what, if any, humanitarian law they accept applies. 108

 

Relating to the Convention on the Rights of the Child

1.    The Committee on the Rights of the Child should take an opportunity to state clearly that the Convention on the Rights of the Child continues to apply to all children within a State’s jurisdiction at all times and in all circumstances. It should also be made clear that no derogations are permitted other than those stated in the Convention itself.

2.    The Committee on the Rights if the Child should clarify the meaning of Articles 38(2) and (4). It should also re-examine Article 38(4) and declare what is expected of States. It might also reconsider the use of the word ‘feasible’ with a view to an amendment with a stronger and more precise term. It is, however, recognised that the same barriers raised against strengthening the term when the United Nations Convention on the Rights of the Child was originally drafted may be resurrected once more.

3.    Machinery should be put in place to allow non-state entities in de facto control of territory to declare their intention of being bound by the United Nations Convention on the Rights of the Child, and the Committee on the Rights of the Child should examine the extent of a non-state entity’s compliance with the Convention in the same way as that of a State Party.109

4.    There is a continuing need for education to familiarise governments, authorities and their populations with the Convention. This is already a requirement under Article 42 but should be reinforced by the Committee in their scrutiny of each country’s report. Where it is deemed that the information about the Convention is insufficient, but there are inadequate resources for greater dissemination and training, specialist agencies of the UN should provide assistance and finance for this task. Only with continual education can the values of the Convention on the Rights of the Child be absorbed by the population at large. Children should receive such education at primary and secondary school, and parents should receive information on the Convention at ante-natal classes, in hospital and through community medical services. A positive attempt should also be made to educate the military, and youth in military academies, on the provisions and interpretation of the Convention. States should be strongly encouraged to incorporate the Convention as a whole into their domestic law. The greater knowledge of the Convention that would come with incorporation and education would encourage familiarity within the population of the provisions and the values underlying the Convention.

5.    The role of the Committee on the Rights of the Child should become pro-active rather than passive in protecting children during times of armed conflict or emergency if the Convention is to have any meaning. A pro-active role would permit the Committee to receive information from NGO’s, IGO’s and governments that a serious emergency existed, allowing the Committee to initiate early action to ensure that children’s rights were respected by the parties to the conflict.

This suggestion has already been considered by the Committee on the Rights of the Child. 110 Their opinion was that any committee would have to rely heavily on the first-hand information it was sent. Rapid contact would have to be established between the chairperson and the officers of the Committee to enable the latter to decide whether to take action in any given situation. The Committee could then ask for information from the government of the country concerned. The Committee could bring an emergency to the attention of other UN bodies with responsibilities at field level.

We recommend that this function be performed by a specially appointed Standing Committee. The members of the committee would consist of neutral experts of good standing and experience in working with children, to be appointed by the Committee on the Rights of the Child. They should not represent any government. The remit of the Standing Committee would be to investigate allegations of emergencies, both by enquiry from the government and by visiting the areas in question (with the approval of the State Party concerned or the non-State entity in de facto control). Their role, with the assistance of staff, would be to assess and determine the needs and best interests of the child population in the affected areas and co-ordinate inter-agency response. UNHCR, Unicef and NGOs should work in liaison with the Standing Committee. Either the Standing Committee or one of the UN agencies should be appointed as a key co-ordinating agency, delegating appropriate functions to other agencies. Communication and co-ordination between all the agencies and NGO’s in the field is vital if protection is to be maximised. If the formalisation of this process through a Standing Committee would be unlikely to receive approval, consideration should be given to an international children’s NGO performing this role.

6.    NGOs should be actively encouraged to provide information on the plight of children in armed conflict or emergency  situations to the Committee on the Rights of the Child.  This can perhaps best be done either through the NGO group for the Convention on the Rights of the Child or by an existing children's NGO.  This would require considerable development of the NGO group and the appointment of responsible officers.  The NGO group should receive funding for this purpose from the UN.111

7.    There is a need for an independent body to monitor children's rights in times of armed conflict.  Wars tend to be ongoing and monitos need to be in the area of conflict for a considerable time including post-conflict. This role could possible be filled by the ICRC, but could also be done by a newly established or existing international children’s NGO. Local NGO’s should feed information into the international body allowing for as wide a coverage of the impact of armed conflict on children as possible. The establishment of such a body would also enable the constituency of children to be represented in the event of further diplomatic conference on humanitarian law.

Notes:

1.    Impact of Armed Conflict on Children: Report of the Expert of the Secretary General, Ms Graša Machel, submitted pursuant to General Assembly Resolution 48/157. UN Doc.A/51/306 26 August 1996.

2.    Unicef: (1996) p. 13.

3.    Ibid.

4.    For more details on the reality of armed conflicts as they are being fought see "Report on the Protection of War Victims" (September/October 1993) in no. 296 International Review of the Red Cross.

5.    In Chechnya during the period September 1994 to February 1995, 4.6% of all civilians wounded were children whereas from February 1995 to May 1995, 40% of casualties were children. Among the reasons for the increase was the fact that as the fighting subsided children were no longer sheltered in basements and were coming out to play more often, but both sides of the conflict had planted landmines indiscriminately throughout the war zone, especially in residential neighbourhoods. (See Balian, H. Armed Conflict in Chechnya: Its Impact on Children, Case Study for the Machel Study, November 1995 ).

6.    Unicef: (1996) p. 20.

7.    Green: (1994) p. 38.

8.    Such a policy would be contrary to Article 54 Protocol I (except where its a Parties own territory and is a defence against invasion) and Article 14 of Protocol II.

9.    See Cairns (1996) Children and Political Violence.

10.    Ibid.

11.    See Balian (1995).

12.    1907 Hague Convention IV Respecting the Laws and Customs of War on Land.

13.    Suter: (1976) p. 405.

14.    Walzer: (1977) p. 251.

15.    Louise Doswald-Beck (1989) "International Humanitarian Law: A Means of Protecting Human Rights in Time of Armed Conflict" in vol. 1 African Journal of International and Comparative Law, pp. 596-597.

16.    This should not, as such, come as a surprise. In Just and Unjust Wars, Michael Walzer points out that if it were not for a shared ethical understanding of the acceptable and unacceptable in times of war, there would be no need for denials or self-justifications on the part of politicians and military personnel (pp. 3&20).

17.    Louise Doswald-Beck (1989) "The Value of the 1977 Geneva Protocols for the Protection of Civilians" in Armed Conflict and the New Law: Aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention edited by Michael A. Meyer. p.153.

18.    (1977) Just and Unjust Wars.

19.    Article 4.

20.    See Sandoz et al: (1987) p. 587.

21.    One might speculate that a similar sort of dynamic led to the first Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (1864). Credit for this Convention is usually given to J. Henry-Dunant who was so appalled by the misery he witnessed at the Battle of Solferino that he wrote Un Souvenir de Solferino, founded what has developed into the ICRC, with its network of national organisations and started the movement to develop this first Convention. One must wonder, however, if the military generals at the time were not equally appalled by what they saw that evening after the Battle at Solferino. According to the Encyclopaedia Britannica, the battle which lasted a day resulted in nearly 40,000 casualties. It was Europe’s largest battle since Waterloo (Suter: (1976) p. 407).

22.    It is important to be wary of the claim that the Fourth Geneva Convention affords ‘protection to civilian persons.’ It is better to approach the text with the question: ‘who’ is protected and in ‘what respect’? The answer will differ depending on which section one is looking at. (This is an equally good starting point when looking at the Additional Protocols to the Geneva Conventions although the Protocols do contain substantial protections afforded to all civilians as civilians.)

23.    Pictet: (1958) p. 10.

24.    Kalshoven: (1987) p. 40.

25.    As stated earlier, the conduct of hostilities is the jurisdiction of Hague Law.

26.    As of 30 April 1996, 186 States have ratified the Geneva Conventions.

27.    article 15: Any Party to the conflict may … propose to the adverse Party to establish … neutralized zones….    article 25: All persons in the territory of a Party to the conflict, or in a territory occupied by it, shall be enabled to give news of a strictly personal nature to members of their families ….article 26: Each Party to the conflict shall facilitate enquires made by members of families dispersed owing to the war...

28.    Defined as "[p]ersons ... who, at any given moment and in any manner whatsoever, find themselves, in the case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals." Article 4.

29.    It should be noted as well that Common Article 3 encourages parties to a non-international conflict to make special agreements bringing into force as much of the Conventions as possible.

30.    Article 146 states that: "… Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article." In as much as Common Article 3 is a provision in the Convention, breaches of it can and should be prosecuted. High Contracting Parties embroiled in a non-international conflict clearly have a responsibility to suppress breaches of Common Article 3 in their national courts.

31.    The treatment of children during armed conflict is also contained to a limited extent in certain human rights treaties and in the United Nations Convention on the Rights of the Child.

32.    See Krill (1992).

33.    Resolution no. 13 (1938).

34.    Hitch: (1989).

35.    Hitch: (1989) p. 67.

36.    It is difficult, of course, to obtain absolute numbers. However, the serious use of child as combatants is linked to modern, light-weight weapons and has increased with the rise of internal conflicts.

37.    The age of fifteen was agreed upon because the conference considered that "from that age onwards a child’s faculties have generally reached a stage of development at which there is no longer the same necessity for special measures (Pictet: (1958) p. 186). This undoubtedly ties in with the age of recruitment for soldiers which was set at fifteen. Children under fifteen were regarded as too weak to contribute to the war potential of their country and, thus, particularly deserving of protection.

38.    Article 14. It is interesting that the age of seven for accompaniment by the mother was chosen. One wonders on what basis this age was settled upon. Evidence indicates that teenagers find separation from their parents equally distressing. (See Fraser (1973) Children in Conflict.)

39.    Article 51.

40.    Article 68.

41.    Pictet: (1958) p. 187.

42.    The only protections from actual hostilities afforded to the civilian population in traditional Hague Law are to be found in the 1907 Hague Convention IV, Respecting the Laws and Customs of War on Land & its annexed Regulations, in which there are a few provisions regarding "prohibition on attacking towns, villages, dwellings and buildings which are not defended, and respect for certain buildings dedicated to charitable purposes etc." (Sandoz et al: (1987) p. 586.) Also, Article 23(g) of the annexed Regulations amounts to a prohibition against wanton destruction of enemy property, including that of civilians. (See pp. 583-584 and General Introduction in Sandoz et al’s Commentary for more on this issue).

43.    ‘Civilian objects’ are defined in Article 52(1) as "all objects which are not military objectives;" moreover, Article 52(3) goes on to state that "[i]n case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used."

44.    Note that all military calculations are assessed in terms of the ‘conditions ruling at the time’. Given this fluidity, the need for a presumption that certain civilian objects are civilian is clear. Also note that all the outright prohibitions only come into effect once the threshold of ‘civilian’ has been met.

45.    Louise Doswald-Beck (1989) "The Value of the 1977 Geneva Protocols for the Protection of Civilians" in Armed Conflict and the New Law: Aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention edited by Michael A. Meyer, p. 153.

46.    Sandoz et al: (1987) p. 838.

47.    Ibid. p. 837.

48.    Ibid.

49.    Presumably the death penalty could be ‘pronounced’ just not ‘executed.’ Interestingly, Article 68 of the Fourth Geneva Convention is much tougher in that "[t]he penalty may not be pronounced against a protected person who was under eighteen years of age at the time of the offence" [emphasis added]. It is possible that this difference is based on the fact that Article 68 only covered protected persons, deemed worthy of additional special protection.

50.    Best: (1994) p. 256.

51.    See the Italian representative’s comments in the Report of the Working Group considering the Draft Convention on the Rights of the Child established by the Commission on Human Rights, to the Commission. E/CN.4/1988/28 paras.14-26. There are of course other norms that amount to ‘jus cogens’ (a norm that cannot be limited or derogated from by agreement between states in their relations with each other. E.g. States cannot agree inter se that they will allow prisoners of war that they hold to be freely killed.) See Higgins Problems and Process, International Law and How We Use It (1994). See also Hannikainen, Peremptory Norms Ius Cogens) in International Law: Historical Developments, Criteria, Present Status (1988). It is worth noting in this context that in a recent decision of the Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 in the case of Dusko Tadiš Prosecutor v. Tadiš, Case IT-94-1-AR72, Appeal on Jurisdiction (October 2, 1995), pp. 49-53 it was stated that, as a matter of customary law, fundamental human rights, as laid out in international instruments, apply fully in all situations of armed conflict.

52.    The Working Group of Committee III had three amendments to consider and discussed Article 77 for more than a week. Sandoz’s Commentary refers to discussions as being delicate. A compromise was eventually achieved and was adopted by Committee III and then by the Conference itself.

53.    Social Commission, Third Session, Summary Record of the Sixteenth Meeting, Lake Success, New York, Monday 19th April 1948 (E/CN.S/SR.60).

54.    See Social Commission (Sixth session), official records of the Economic and Social Council, Fifth Year, Eleventh Session, Supplement, No. 3, (E/1678, Annex II). See also the Report of the Social Commission (E/AC.7./L.24, 1950).

55.    This delay was due not only to low political priority being given to this Declaration, but also to considerable debate on the issues of illegitimacy, discrimination, the role of the State and the role of parents towards children.

56.    UN Doc. ECOSOC Res. 1515 (XLVIII) of 28 May 1970 requested the General Assembly to consider the possibility of drafting the Declaration, which was adopted by the General Assembly in Res. 3318 (XXIX).

57.    See UN Docs General Assembly Res. 2444 (XXII) of 19 December 1968, 2597 (XXIV) of 16 December 1969, 2674 (XXV) & 2675 (XXV) of 9 December 1970, 2676(XXV).

58.    Sandoz et al: (1987).

59.    Ibid. p. 899.

60.    Ibid. p.822. Resolution 1386 (XIV) of the General Assembly (O.R.XII p336, CDDH/11/SR.87 par. 48).

61.    The Protocol recognises the indirect nature of their victimisation by providing that they should be given relief as a matter of priority (thus meeting the requirements of Article 8 of the 1959 Declaration of the Rights of the Child) and that foreign children may be evacuated if there are "compelling reasons of the health or medical treatment of the children or, except in occupied territory, their safety, so require."

62.    See earlier discussion of the definition of ‘child’ in the Fourth Geneva Convention.

63.    Resolution 2018 (XX).

64.    Prosecutor v. Tadiš, Case IT-94-1-AR72, Appeal on Jurisdiction (October 2, 1995), pp. 55-56 & 61.

65.    This provision was added as a result of an amendment based on Article 18(4) International Covenant on Civil and Political Rights.

66.    Fleiner-Gerster & Meyer: (1985) p.276.

67.    Gardam: (1993) p. 129.

68.    As of 30 April 1996, 144 States have ratified Protocol I and 136 States have ratified Protocol II.

69.    Protocol II Article 1(2).

70.    Fraser: (1973).

71.    See McWhirter, "The Northern Ireland Conflict - Adjusting to Continuing Violence" in Kanhert, Pitt and Taipale (eds.) Children and War: Proceedings of Symposium at Siuntio Baths, Finland.

72.    This is not to deny that the effect may be greater where the conflict is more brutal or that different children within the same conflict will have different levels of exposure to the conflict. See Cairns: (1996) pp. 166-167.

73.    See Cairns (1996).

74.    An attempt was made by the Red Cross when the Fourth Geneva Convention was being drafted to expand the law relating to internal conflicts with a Common Article 2 to the Conventions:

In all cases of armed conflict which are not of an international character, especially cases of civil wars, colonial conflicts, or wars of religion, which may occur in the territory of one or more of the High Contracting Parties, the implementation of the principles of the present Convention shall be obligatory on each of the adversaries. The application of the Convention in these circumstances shall be in no way depend on the legal status of the parties to the conflict and shall have no effect on their status.

75.    States are able to derogate from certain provisions of human rights Conventions in times of emergency, which can include internal disturbances. However, it would appear that certain fundamental human rights standards continue to apply regardless of derogations as they have the status of customary law. The Restatement (Third) The Foreign Relations Law of the United States (American Law Institute 1987) seeks to define those fundamental human rights standards. It provides that: A State violates international law, if as a matter of State policy, it practices, encourages or condones (a) genocide, (b) slavery or the slave trade, (c) the murder or disappearance of individuals, (d) torture or other cruel, inhuman, or degrading treatment or punishment (e) prolonged arbitrary detention, (f) systematic racial discrimination, (g) a consistent pattern of gross violations of internationally recognised human rights.

76.    Meron: (1987) pp. 135-136.

77.    As of 30 April 1996, 144 States had ratified Protocol I and 136 States had ratified Protocol II.

78.    Article 54 Protocol I; Article 14, Protocol II.

79.    It should be noted that, under humanitarian law, parties are not legally required to accept humanitarian aid, except in occupied territories (as provided in the Fourth Geneva Convention).

80.    See Article 12 & 13 of Protocol I and Article 11 of Protocol II: protection does not cease for a civilian medical unit unless it commits hostile acts as defined by the law (where giving medical care to combatants is not a ‘hostile’ act) and even then a final warning is required.

81.    Raundalen and Melton: (1994) p. 26.

82.    Ibid. p. 26.

83.    "Report on the Protection of War Victims" pp. 404-405 in International Review of the Red Cross no. 296, September/October 1993.

84.    As of 15th March 1997, the UNCRC had 190 States Parties. The USA is a signatory to the Convention but has not as yet ratified. The Cook Islands and Somalia are the only two states who have neither signed not ratified.

85.    Article 38 is the first humanitarian provision to be contained in a UN human rights treaty.

86.    See Legislative History of the Convention on the Rights of the Child article 38 HR/1995/Ser.1/article 38.

87.    The delegate for the USA stated that the text adopted reaffirmed existing international humanitarian law on the protection of children in armed conflict, in particular, by adhering to the language of article 77 of Protocol 1 of the Geneva Conventions. He stated that the language was the result of lengthy debates in the Diplomatic Conference convened during the last decade to draft the Protocols and that his Government did not believe that the Working Group was an appropriate forum to revise existing international law in this area. See UN Doc. E/CN.4/1989/48 para. 603. For further details on the drafting of Article 38, see Detrick (1992) The United Nations Convention on the Rights of the Child: A Guide to the Travaux Preparatoires and Krill (1992) "The Protection of Children in Armed Conflicts" and Legislative History of the Convention on the Rights of the Child article 38 HR/1995/Ser.1/article 38.

88.    It is clear that both the Red Cross (in E/CN.4/1987/WG.1/WP.4), Radda Barnen (E/CN.4/1987/WG.1/WP.3) and UNICEF (E/CN.4/1989/WG.1/CRP.1) regarded article 38(4) as potentially offering less protection to children than that contained in the Fourth Geneva Convention and the Additional Protocols.

89.    The memorandum can be found in Annex V of the of the Committee on the Rights of the Child (UN Doc. CRC/C/16).

90.    The text of the draft optional protocol can be found in UN Doc. CRC/C/16 Annex VI. The Optional Protocol requires that States Parties shall refrain from recruiting any person who has not attained the age of eighteen years into their armed forces and requires that States Parties shall take all feasible measures to ensure that those who have not attained the age of eighteen years, do not take part in hostilities. The Optional Protocol is still being considered. (See Inter-Sessional Open-ended Working Group on a Draft Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict. 1st Session, Geneva, 2nd session, Geneva, UN. Doc. E/CN.4/1996/WG.13/2/Add.1. See also UN Doc.. E/CN.4/1996/WG.13/2 for joint NGO comments submitted by the Friends World Committee for Consultation (Quakers) made by the NGO Group for the Convention on the Rights of the Child and the International Council of Voluntary Agencies.)

91.    UN Doc. CRC/C/16 Annex VI.

92.    The Impact of Armed Conflict on Children: Report of the Expert of the Secretary-General, Ms. Graša Machel submitted pursuant to General Assembly Resolution 48/157.

93.    Article 2 UNCRC requires that "States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind...."

94.    Article 10(2).

95.    Article 13(2).

96.    Article 14(3).

97.    Article 15(2).

98.   See Cohn: (1994) p.100.

99.    See UN Doc. CRC/C/SR.90 (1994). The Committee clearly envisages that the Sudanese government should continue to aid children in the actual area of armed conflict even though they did not have full ‘control’ over the area. Second, there is a duty on the Sudan to aid those children who have been displaced into areas of government control. Thus, jurisdiction extends not only to the entire area of the state but also to all children within the jurisdiction. Cohn (1994) argues that the door is left open on this issue. Several NGOs aware of this issue preferred not to raise the point during drafting or to push for a distinct derogation clause, thus, preserving the argument that all articles are non-derogable unless otherwise explicitly stated. (See also UN Doc. CRC/C/SR.97 (1994), consideration of the initial report on Rwanda and UN Doc.. CRC/C/SR.228 (1995), consideration of report by Sri Lanka --particularly par. 12 where Mr Kolosov asked whether the inhabitants of the areas in which armed conflict were taking place had been informed of the Convention. A similar attitude is taken by Lopotka, "Importance of the Convention on the Rights of the Child" (1991/2).

100.    Keynote speech: "Children as a Zone of Peace - What Needs to be Done" in Aldrich and van Baarda (eds.) (1994) Conference on the Rights of Children in Armed Conflict.

101.    See Article 77 of Protocol I. Protocol II applying non-international armed conflict above a fairly high threshold would necessarily apply to non-state entities.

102.    The Machel Report recommends that non-state entities be urged to make a formal statement accepting and agreeing to implement the standards contained in the Convention on the Rights of the Child. There are precedents. In 1995, in Sudan, for example, several combatant groups became the first non-state entities to commit to abide by the provisions of the Convention on the Rights of the Child. Once the commitments were enacted, the non-state entities immediately put information, reporting and complaint systems in place. See UN Doc. A/51/306 Para.230.

103.    See "Report on the Protection of War Victims" (September/October 1993) in no. 296 International Review of the Red Cross, pp. 422-424.

104.    The ICRC has argued (in Dissemination, August 1989 p.12) that Article 38(4) of the Convention on the Rights of the Child threatens to undermine humanitarian law because many provisions in the Geneva Conventions and the Protocols designed to protect children lay down absolute obligations (as opposed to calling for feasible measures to be taken) and are thus much stronger and provide more protection. Cohn (1991) has argued that Article 41 deals with this criticism by declaring that "nothing in this Convention shall affect any provisions that are more conducive to the realization of the rights of the child and that may be contained in the law of a State Party or international law in force for that State" (p. 100).

105.    In fact virtually all States have ratified the Fourth Geneva Convention (186 as of 30th April 1996)

106.    See UN Doc. E/CN.4/1989/WG.1/CRP.1 p.40.

107.    The Machel Study recommends the establishment of an International Criminal Court with a permanent prosecution office to try genocide and other violations of international humanitarian law. UN Doc A/51/306 26th August 1996 para.249.

108.    There is, at present, a Draft Optional Protocol on the Recruitment of Children into the Armed Forces

109.    See footnote 102 above.

110.    At the seventh session of the Committee on the Rights of the Child a reference was made to a meeting of chairpersons of human rights treaty bodies. They had concurred that the Secretary-General should be empowered to bring cases of severe human rights abuse to the attention on the Security Council which could then take early warning measures to prevent civil strife. This issue was also raised earlier by the Committee on the Rights of the Child. See Seventh Session Committee on the Rights of the Child UN Doc. CRC/C/SR.157 (1994) par. 38. See also CRC/C/SR.75.

111.    NGO’s should be encouraged to adopt the Code of Conduct for The International Red Cross and Red Crescent Movement and Non-Governmental organisations (NGO’s) in Disaster Relief.