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LEGAL PROTECTION AFFORDED TO CHILDREN UNDER INTERNATIONAL HUMANITARIAN LAW
REPORT FOR THE STUDY ON THE IMPACT OF ARMED CONFLICT ON CHILDREN
by
Françoise J Hampson
University of Essex, UK
May 1996
Contents
Introduction
Legal context
2.1 International humanitarian law
2.1.1 the five thresholds
2.1.2 the parties bound
2.1.3 the basis of protection
2.1.4 IGOs and NGOs
2.2 International human rights law
2.2.1 the threshold
2.2.2 the parties bound
2.2.3 the basis for protection
2.2.4 IGOs and NGOs
2.3 International criminal law
2.3.1 crimes against humanity
2.3.2 genocide
2.4 Refugee law3 Children’s needs in situations of conflict
4 Effectiveness of protection
4.1 child civilians in international conflicts
4.1.1 general protection of civilians from the effects of hostilities
4.1.2 special protection of children from the effects of hostilities4.1.3 general protection of civilians living under belligerent
occupation or in the territory of a party to the conflict
4.1.4 special protection of children living under belligerent
occupation or in the territory of a party to the conflict
4.2 Child civilians in non-international conflicts
4.2.1 general protection of civilians in high-intensity
non-international conflicts
4.2.2 special protection of children in high-intensity
non-international conflicts
4.2.3 general protection of civilians in non-international conflicts
4.2.4 special protection of children in non-intentional conflicts
4.3 child civilians in internal disturbances and tensions
4.4 assessment of the effectiveness of the protection of child
civilians in situations of armed conflict
4.5 child soldiers
4.5.1 participation in the conflict
4.5.2 child prisoners of war
4.5.3 assessment of the effectiveness of the protection of
child soldiers in situations of armed conflict5 Application of human rights (HRsL) and humanitarian law (IHL) to
non-State entities, the UN and other peace-keeping forces
5.1 Non-State entities
5.1.1 IHL and non-State entities in international conflicts
5.1.2 IHL and non-State entities in non-international conflicts
5.1.3 HRsL and non-State entities
5.2 UN ‘peacekeeping’ forces
5.2.1 Types of operations
5.2.2 Whether UN as such bound by IHL
5.2.3 Whether national contingents bound by IHL5.2.4 Whether UN as such bound by HRsL
5.2.5 Whether national contingents bound by HRsL
5.3 Other ‘peacekeeping’ forces
5.3.1 Regional organisation or individual State
5.3.2 Other ‘peacekeeping’ forces and IHL
5.3.3 Other ‘peacekeeping’ force and HRsL
5.4 Assessment in relation to the protection of children6 Safe areas for children
6.1 Existing provisions on special zones in IHL
6.2 Security Council imposed régime
6.3 Practical realities
6.4 Possible use or development of the concept to provide
additional protection to children7 Displacement under humanitarian law
7.1 forms of displacement
7.2 evacuation
7.3 ‘voluntary’ displacement
7.4 forced displacement
7.4.1 forced displacement at the hands of an opposing party
7.4.2 forms displacement by own authorities
7.5 displacement and separation of children from their families
7.6 assessment in relation to the needs of children8 Improved respect for HRsL and IHL
8.1 education
8.2 institution building
8.3 response to early warning indicators
8.4 military training
8.5 effective enforcement
8.6 assessment in relation to the protection of children9 Gaps in the international legal protection of children affected by
armed conflicts10 Repression of breaches of IHL committed by children under the age of 18
10.1 age of criminal responsibility
10.2 proceedings
10.2.1 purpose
10.2.2 defence of superior orders
10.2.3 punishment
10.3 rehabilitationRecommendations for action
Bibliography
"The day will come when the progress of nations will be judged not by their military or economic strength, nor by the splendour of their capital cities and public buildings, but by the well-being of their peoples:
by their levels of health, nutrition and education;...
by the provision that is made for those who are vulnerable and disadvantaged;
and by the protection that is afforded to the growing minds and bodies of their children."1994, Progress of Nations Report, Unicef
"To kill the big rats, you have to kill the little rats"
Radio Mille Collines, Rwanda, 1994
The following report consists of an analysis of certain provisions in international humanitarian law, specifically in relation to the protection afforded to children in situations of armed conflict. In some contexts, international human rights law applicable in situations of armed conflict is also considered.
The study was undertaken for the Graca Machel ‘Study on the Impact of Armed Conflict on Children’. The setting up of the study was but one manifestation of the increasing concern about the impact of armed conflict on children. That is also reflected in texts such as the 1974 UN General Assembly ’Declaration on the Protection of Women and Children in Emergencies and Armed Conflicts’, the conference organised by the Swedish Red Cross, Swedish Save the Children and the Raoul Wallenberg Institute in 1991 on Children of War, the special conference in 1993 of the High Contracting Parties to the Geneva Conventions of 1949 on the Protection of Victims of War and the Amsterdam Conference on the Rights of Children in Armed Conflict. The problem is not new but, as the second quotation at the start of the Introduction illustrates, it shows no signs of going away.
The terms of reference of the study, which determined the areas examined, were to provide
1 As assessment of the effectiveness of protection afforded to children in situations of armed conflict and internal disturbances and tensions by existing international humanitarian law.
2 A discussion of the application of international human rights and humanitarian law to non-State entities, the United Nations and other peace-keeping forces.
3 A discussion of the desirability and feasibility of elevating the concept of safe areas for children during armed conflicts to a norm of international law.
4 An assessment of provisions relating to displacement under international humanitarian law.
5 A discussion of ways to improve respect for existing international human rights and humanitarian law in situations of armed conflict, including ways to inculcate successfully the values underpinning those laws.
6 Gaps in the international legal protection of children affected by armed conflicts and internal disturbances and tensions.
7 A discussion of ways to repress breaches of humanitarian law committed by children under the age of 18.
8 Recommendations for action, including re-enforcement of preventive measures.
9 A full bibliography
This report takes as its premise the fact of fighting. Realities on the ground produced by the fighting cannot be ignored. There is no point in making recommendations which are incapable of implementation in the face of that reality. It has, however, been thought appropriate to make recommendations which require those fighting to modify the conduct of the hostilities at certain times and/or in certain places in the interest of protecting the lives and well-being of children.
Terminology and abbreviations
Throughout this report, international humanitarian law (IHL) is used to refer to the body of treaty law which regulates the conduct of hostilities and the protection of victims, including
1907 Hague Convention IV Respecting the Laws and Customs of War on land and annexed Regulations (HC and HC/R)
1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, (Geneva Gas Protocol)
1949 Geneva Conventions (GC1, II, III, IV)
1977 Protocols to the Geneva Conventions of 1949 (Protocol I; Protocol II) and
1980 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (Certain Conventional Weapons Convention or CCWC).
Rules of customary international law applicable in armed conflicts will be referred to separately, where relevant, and identified as such (customary IHL). Human rights law (HRsL) refers to legal obligations entered into by States or arising under the UN Charter. As such, HRsL includes international and regional treaties dealing with a wide range of rights, issue specific treaties or agreements concluded internationally, regionally or under the auspices of a particular body (eg ILO conventions) and Charter mechanisms such as thematic and country Special Rapporteurs, the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities and the UN Commission on Human Rights. Human rights norms, on the other hand, refer to legally prescribed or proscribed standards of behaviour, without necessarily implying
that compliance with those standards represents a legal obligation for the party in question (see further 5 below).
Other terms will be defined as the need arises. In particular, various age thresholds may be applied in different contexts. Generally, child means anyone under the age of 18 years.
In order to examine specific rules designed to protect children, it is first necessary to understand the bodies of rules of which they form a part.
The treaties constituting IHL have attracted varying levels of ratification. The fourth Hague Convention of 1907 was widely ratified by the then existing States. The Nuremberg Tribunal held that the provisions in the annexed Regulations form part of customary law. The Geneva Conventions of 1949 have been ratified by nearly every state. The 1977 Protocols, which supplement the 1949 Conventions on the protection of the victims of war also bring up-to-date the Hague rules regarding the conduct of hostilities. Protocol I, which applies to international armed conflicts, has been ratified by over 130 States and Protocol II, applicable to non-international armed conflicts, by over 120. Certain militarily significant States have not or have not yet ratified the Protocols. The treaty texts on weapon use have received far less widespread ratification. The 1925 Geneva Gas Protocol is subject to many reservations regarding the right to respond in kind in the event of a violation of the Protocol, making the treaty in effect a non first use agreement. Subject to that qualification, its provisions may represent custom. The 1980 Certain Conventional Weapons Convention and its three annexed Protocols are the least widely ratified of the treaty texts. There has recently been an increase in the number of ratifications as conventional weapons have come under renewed scrutiny, particularly anti-personnel landmines.
The Hague Conventions contain a general participation clause, making them applicable as a matter of treaty law only to armed conflicts between States all of which have ratified. The Geneva Conventions apply between the parties who have ratified them, even if a party to the conflict has not done so. Since Protocol I supplements the Geneva Conventions of 1949, the Geneva convention rule presumably applies to up-dated provisions in the Hague Regulations, thereby reducing the impact of the general participation clause. Furthermore, under Article I common to the four Geneva Conventions, the High Contracting Parties ‘undertake to respect and to ensure respect for the present Conventions in all circumstances.’ The scope of that obligation is unclear.
Different substantive rules of IHL are applicable in five different situations. This gives rise to the problem of defining the thresholds. In a decentralised legal system, that decision is generally dependent on the State(s) in question. That is to say that organisations such as the International Committee of the Red Cross (ICRC) have to work within the limits imposed by the State’s determination, unless perhaps the Security Council has characterised the situation in a mandatory Chapter VII resolution. A tribunal, whether national or international, investigating alleged war crimes may well have to determine whether a conflict is international or non-international. It would depend on the national law in question whether the tribunal, military or civilian, was obliged to accept a characterisation of the conflict provided by the national authorities. In the case of an international tribunal, it would depend on its constituent statute. If the issue was left open or if the tribunal had jurisdiction over offences specific to international or non-international conflicts, the tribunal would have to characterise the situation itself.
The full range and detail of IHL is applicable in conflicts between two or more High Contracting Parties to the Geneva Conventions, even if one or more of them does not recognise the state of war. It is a product of the factual situation, an armed conflict. Similarly, the partial or total occupation by one party of the territory of another party renders the whole of IHL applicable, even if the occupation meets with no armed resistance.
Where an armed conflict might appear at first sight only to involve one State, it may nevertheless be treated as an international armed conflict if the State in question has ratified Protocol I, or if Article 1.4 of the Protocol represents customary law, and if the conflict is in the exercise of the right of self-determination as understood by the United Nations and is against colonial domination, alien occupation or a racist regime.
Where a conflict is taking place in the territory of only one State and is not international under Protocol I, it may come within the terms of Protocol II to the Geneva Conventions, if the State has ratified the Protocol. In order to do so, different types of requirements have to be met. First the conflict must be between the forces of the State and dissident armed forces. Second, the latter must be in such control over part of the territory as to enable them to carry out sustained and concerted military operations. Third, the dissident forces must be under responsible command and able to implement the Protocol. Finally, the Protocol excludes ‘internal disturbances and tensions...as not being armed conflicts’ (emphasis added). Such conflicts will hereinafter be described as high intensity non-international conflicts.
In any situation in which Protocol II is applicable, so is Article 3 common to the Geneva Conventions, which the Protocol supplements. Common Article 3 is, however, applicable in a much wider range of situations. It applies to any case of ‘armed conflict not of an international character’. There is no requirement that the forces of the State be involved, nor as to territorial control by nor as to the level of organisation of the dissident forces. It is not clear whether the minimum level of disruption threshold is the same as for Protocol II. The Protocol does not simply exclude internal disturbances and tensions but does so on the grounds that they do not constitute an armed conflict.
Common Article 3 applies to armed conflicts. The need to define the term ‘armed conflict’ arises out of the need to distinguish those situations from ones in which a small group of individuals mount an armed attack against, for example, a bank or police station. The motivation of the first may be financial and the second political but that is not sufficient, on its own, to render the latter an armed conflict. Equally, the fact that individuals are armed is not sufficient to turn an incident into an armed conflict. This points to at least two elements which must be present: a minimum level of intensity (ie the fighting should not be isolated or sporadic) and such degree of organisation in the non-State forces as to enable a command structure to function. If the minimum threshold for the application of Protocol II is higher than that traditionally applied to Common Article 3, then the protection of civilians will be better served by leaving open the question of the precise minimum threshold of common Article 3 but it is clear that there is one.
In situations falling below common Article 3, IHL is not applicable but, under its Statutes, the ICRC may offer its services to States.
In addition to the risk of manipulation of the thresholds by States, there are also cases in which it is genuinely difficult to characterise a situation. The conflict may change its characterisation over time or in different areas within the conflict zone, as illustrated by the case of the former Yugoslavia. A different type of characterisation problem occurs when one State comes to the assistance of the government of another State engaged in a conflict with dissident forces, as happened in the case of the Soviet intervention in Afghanistan.
States are bound by IHL, either by treaty ratification or under customary law. The obligation of States includes both liability to pay compensation where the State is in breach of its obligations and also liability to take certain measures in relation to the conduct of its armed forces.
In both high-intensity and other non-international armed conflicts, all the fighting parties are bound. This needs emphasising as the more usual position is that only States are bound by international legal obligations. The Convention and Protocol II, however, in terms impose obligations on all the fighting parties in a non-international conflict and not merely on individuals taking part in such conflicts. This is not without difficulties in practice. Not only are States concerned lest they appear to legitimise or accord some status to the non-governmental fighting party but in fact, in the eyes of the State, they are ‘rebels’, ‘guerrillas’ or ‘terrorists’. Whilst a captured combatant in an international armed conflict will not be tried for the mere fact of fighting, in a non-international conflict the fighter is waging war against the State. This is not merely criminal, in and of itself, but may be treasonable. However ‘properly’ the rebel fights, (s)he will be subject to criminal prosecution. One element regarded as important in securing respect for the rules in international conflicts is the equality of belligerents. That is not present in non-international conflicts.
In the case of international conflicts, all States have an obligation to seek out and try alleged perpetrators of ‘grave breaches’ of the Conventions. In other words, the Conventions create criminal offences subject not merely to universal but also to mandatory jurisdiction. Individuals have obligations under the Conventions. Furthermore, under Protocol I, individuals may be held criminally responsible for the violation of the rules on command responsibility.
In the case of non-international conflicts, states are under an obligation to ‘take measures necessary for the suppression of all acts contrary to the provisions of the present Convention.’ it is not clear that this in terms addresses the issue of jurisdiction. However, following the decision of the Appeal chamber of the Ad Hoc War Crimes Tribunal for the former Yugoslavia on jurisdiction in the Tadic Case it would appear that violations of common Article 3 are offences of universal permissive jurisdiction. To that extent, individuals may also be held criminally responsible by a foreign jurisdiction for their conduct in non-international armed conflicts, if its domestic law provides for the exercise of such a jurisdiction.
IHL is based on the obligations of parties to a conflict and not on the rights of individuals. The rules which the fighting parties are obliged to respect depend not only on the characterisation of the conflict but also on the group to which a person belongs. There are obligations towards civilians, the civilian population as such, the wounded, sick and shipwrecked, prisoners of war and civilians in the hands of an opposing party. The obligations do not arise on account of the inherent or individual characteristics of the ‘victim’.
IHL recognises a role not only for the ICRC but for other humanitarian organisations. Their activities are sometimes subject to the further requirement that they be ‘impartial in character and conducted without any adverse distinction’. Such provisions, dealing notably with relief actions, are likely to be of particular relevance to IGOs and NGOs specifically dealing with the impact of the conflict on children.
International human rights law is both treaty based, in which case the obligations of a State depend upon which treaties it has ratified, and also based on the UN Charter. Certain mechanisms have been developed, the operation of which do not depend on the consent of the particular State. Nevertheless, the refusal of the State authorities to co-operate with, for example, the UN Special Rapporteur on Torture will frustrate the proper functioning of the mechanism. The Charter mechanisms exist in a more political framework than the implementation and enforcement bodies to be found in human rights treaty texts but this does not mean that the person charged with fulfilling a mandate which owes its origin to the Charter is politically motivated. What the Charter mechanisms have in common is that, however clearly defined the scope of the norm in question and however ‘judicial’ the conduct of the monitor, the result is not a judicial or quasi-judicial finding. Progress in the respect for human rights within a particular State depends on the willingness of the State to listen and the degree to which it is subjected to political pressure. The principal tools of the UN Commission on Human Rights are persuasion and ‘the mobilisation of shame’. This does not mean that it has no effect but it does mean that is effect is conditional and variable and achieved in certain ways. The Charter mechanisms are perhaps better placed to address situations of gross and systematic violations of human rights since any solution is likely to be at least as much political as legal.
The UN Charter mechanisms might be contrasted with the bodies established to monitor the implementation and respect for rights contained in human rights treaties but this would be an oversimplification. The majority of the treaty monitoring bodies are composed of independent experts, not the representatives of States, and States are usually obliged to submit reports on implementation of the norms at periodic intervals. There is no sanction, beyond publicity, for a failure to submit a report. The principal tool of such mechanisms is again persuasion. They seek to enter into a dialogue with the States before them, the object of which is to promote the improved respect for the treaty commitments. Human rights undertakings are unilateral and objective in character. There is not the element of reciprocal interest present in IHL, at least in the case of international conflicts. The only "sanction" in the case of most of the human rights treaty mechanisms is an adverse report. This should not be allowed to detract from the significant part such bodies can play in at least three respects. First, they can clarify the scope of a norm. In the process of considering a particular phenomenon in one State and determining whether or not it violates a treaty right, the monitoring bodies will reveal the existence of other related problems elsewhere. Second, the detailed scrutiny given to a State’s report may help the State to define its own priorities for improved compliance. Third, the public nature of the report, particularly if widely reported in the national media, will assist local NGOs in their own campaigning.
The only human rights enforcement mechanisms capable of delivering a judgment binding on the State are the American and European Courts of Human Rights. These bodies may be seized of a case, directly or indirectly, by virtue of the exercise of the right of individual petition. This feature makes certain parts of human rights law unique in the field of international law. By individual action a process may be engaged which can result in a binding legal judgment against a State. There is no equivalent in IHL.
For historical and political reasons, human rights were in the past divided into civil and political rights to which immediate effect had to be given and economic, social and cultural rights which were more aspirational in character. In certain areas, the distinction is arbitrary and it has been increasingly recognised that rights have to be seen as a whole. Different types of rights may, in practice, need different models of implementation and enforcement.
Whilst the Charter mechanisms are potentially applicable to all UN members, the treaty monitoring mechanisms are subject to treaty ratification and, in some cases, to separate acceptance. The level of ratification varies considerably. In some cases this is a reflection of the debate between universalism and cultural relativism. It is noteworthy that the victims of serious human rights appear to prefer the former position. In other cases, particular systems have difficulties in certain specific fields, sometimes on religious grounds. The treatment of women in Islam is one such example.
The general human rights treaty texts are the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and three regional treaties, the American and European Conventions on Human Rights and the African Charter on Human and Peoples’ Rights. Specific texts relate inter alia to the Elimination of all Forms of Racial Discrimination, to the Elimination of all Forms of Discrimination Against Women and on the Political Rights of Women, ILO Conventions in the area of labour and, most relevantly, the UN Convention on the Rights of the Child. That has received more widespread adherence, and more rapidly, than any other human rights treaty. This is not necessarily reflected by an equal respect for the rights contained in the Convention.
HRsL applies both in peacetime and in war. Certain of the treaties contain provisions particularly applicable in time of armed conflict, such as Article 38 of the Convention on the Rights of the Child. Human rights treaty norms are often formulated in one of two ways. In some cases, the interest to be protected does not inherently require on balance to be struck between competing interests. The right can be formulated in straightforward terms. The prohibition of torture and of arbitrary killings and due process guarantees are formulated in such a way. It should be noted that this does not mean that the right is absolute or unqualified. In certain circumstances, for example, the use of lethal force will not be unlawful. Other human rights norms may require the striking of a balance between the interest of one individual and that either of other individuals or of the collectivity. The formulation of the right reflects that balance. The right is identified and the grounds on which limitations may be imposed are specified, together with the standard that applies in evaluating the alleged ground of limitation. The limitation is an integral part of the formulation of the right. The right to freedom of expression, for example, does not entitle an individual to incite ethnic or racial hatred resulting in violence. At the same time the legitimate grounds for limiting the exercise of the right cannot be used as an excuse for unnecessarily wide restrictions on the exercise of the right. Generally speaking, such provisions identify the right, list the grounds on which its exercise may be restricted and additionally require that such limitations be provided for in domestic law and be both necessary and proportionate. The need for a particular restriction on the exercise of a right may be affected by a situation of conflict. In other words, some limitations may be justified in time of conflict which would not be justified in peacetime. The rights that are formulated in this way, as opposed to those defined in more clear-cut terms, give the enforcement body a flexibility in the application of a norm to the facts, without the need for crossing the threshold at which derogation becomes possible.
In addition, the ICCPR and the American and European Conventions on Human Rights contain a clear-cut threshold. In time of war or other public emergency threatening the life of the nation, the State may take certain exceptional measures on condition that,
· the relevant enforcement bodies are notified;
· there is a need for the particular measure;
· the measure is proportionate to the need; and
· the measure is not inconsistent with other applicable international obligationsCertain rights, the list varies in different texts, cannot be derogated from in any circumstances. These include the prohibition of arbitrary killings and torture. The enforcement bodies reserve the right to determine whether such an emergency exists and, if so, whether the exceptional measure is necessary. The requirement that such measures be not inconsistent with other applicable international obligations means that they must conform to whatever norms of IHL are applicable on the facts.
This is reinforced by another provision which requires that nothing in the human rights text should be construed or applied so as to limit or derogate from the other legal obligations of the State. This potentially makes the Geneva Conventions and Protocols of relevance in a broader context than merely that of derogation.
An obvious question which has not yet been formally resolved is where the derogation threshold is located along the spectrum of disorder in relation to the IHL thresholds. In particular, is any State invoking the right to derogate estopped from denying that the situation comes at least within common Article 3 of the Geneva Conventions? If the human rights derogation threshold is not placed at least at the minimum threshold for the application of common Article 3, there will be a gap in the protection afforded by the law. In other words. the State will be allowed to modify the scope of its human rights commitments without the additional safeguards of IHL being applicable.
Human rights law only binds the State because, generally, only the State assumes international legal obligations. Individuals acting in the name of or on behalf of the State can engage its responsibility but they will not be personally responsible under most human rights treaty law. An exception exists under the Convention of the Elimination of Torture. The State’s obligation in relation to the prohibition of arbitrary killings, for example, may require it to initiate a thorough investigation and to prosecute the State official allegedly responsible for the killing but that official will not be personally criminally responsible under human rights treaty law but just under national criminal law.
Generally, HRsL regulates the relationship between the individual and the State. It does not address the dealings of private individuals inter se. Nevertheless, in certain limited circumstances, the State may be in violation of its own human rights commitments in failing to protect an individual from a violation at the hands of a third party.
The Charter mechanisms are, equally, directed at the activities of States. The biggest gap is in the absence of any obligations imposed on individuals or groups. So, for example, there is no mechanism available for holding groups such as Sendero Luminoso responsible for conduct inconsistent with human rights norms. They cannot, legally speaking, violate or breach human rights law. Whilst it is important that States should not be able to evade their own responsibilities by simply blaming "terrorist" groups, there would be the danger of a gap in the patterns of accountability if no international mechanism existed. The different position in IHL with regard to the responsibility of individuals and groups therefore assumes an even greater importance.
2.2.3 the basis for protection
An individual has rights vis-à-vis a State simply by virtue of being a human being. They are inherent and not earned. They therefore cannot generally be forfeited for bad behaviour.
The individual does not have to belong to a particular group to claim protection and, in particular, does not need to be a national of the State in question. The obligations of the State do not arise owing to a reciprocal assumption of obligations on the part of other States. Under human rights treaty law, the State has undertaken certain obligations to give effect to the rights of individuals.
Since the basis of protection is the relationship between the individual and the State, this can be engaged by the extra-territorial activities of the State. This potentially brings within the jurisdiction of human rights enforcement bodies the complaints of individuals not merely against foreign occupying forces but also foreign peacekeeping forces.
HRsL is generally formulated in terms of individual rights. The ICCPR does contain a provision on minority rights, in addition to a non-discrimination provision, but this has been interpreted as referring to an individual right exercised collectively, rather than as a right of the collectivity. Except in the case of the ILO, where the interests of employers, employees and Governments as groups are reflected in the very structure of the organisation, post 1945 HRsL has traditionally avoided dealing with the rights of collectivities. This is in contrast with the League of Nations, which was involved in the supervision of various Minority Rights Treaties. More recently the issues of indigenous peoples’ rights and, to a lesser extent, the rights of minorities as such have been addressed within the general framework of HRsL. An indigenous group usually consists of people who have lived in the territory from time immemorial. They often, but not invariably, are to be found in countries which have received significant numbers of immigrants, such as the USA, Canada, Australia and New Zealand. They are also be to be found in countries where most of the population has been in the area for a long time. Characteristic features include different cultural values from the rest of the population, a lifestyle dependent upon a particular relationship with the traditional lands of the group and the vulnerability of members of the group, their culture and lifestyle when confronted with the culture, in its broadest sense, of the rest of the population. A minority, on the other hand, is used here to designate a group representing less than the majority of the population, distinguishable or distinguishing themselves by a certain type of criteria and vulnerable to discrimination or assimilation. Their very existence is not threatened by mere proximity to other groups but may be under threat from measures adopted by the authorities, either intentionally or without due regard to the needs of the minority. The criteria include race, nationality, ethnicity, language and religion. In some circumstances, a group may manifest some of the characteristics of both an indigenous people and a minority. Whilst progress is being made in drafting a treaty text on the rights of indigenous peoples, the rights of minorities as such are proving more intractable.
The underlying rationale for HRsL is not like IHL or most areas of international law. International law generally consists of the reciprocal legal obligations of sovereign States. Even under customary law or in the more limited field of erga omnes obligations, every State is in the same position and the commitments are owed to other similar entities, States. In the case of human rights treaty law, States jointly make unilateral undertakings vis-à-vis individuals in their own jurisdiction.
2.2.4 The role of IGOs and NGOs
The existence of IGOs and NGOs is recognised in IHL but not specifically in relation to the promotion of human rights. Unicef is, however, specifically mentioned in the UN Convention on the Rights of the Child.
In fact, it is necessary to turn to the rules of procedure of certain human rights enforcement bodies to see evidence of NGO activities. In other instances, there is no formal provision regulating, for example, NGO submissions but they are known to happen. Thematic and country Special Rapporteurs acknowledge that one of their principal sources of information is NGOs.
It is not possible to overstate the significance of NGOs in developing HRsL and monitoring situations on the ground. They have a more direct impact on and relationship with the law itself and its enforcement than is the case with IHL. In situations of conflict, NGOs may be present in the field but most are there to deliver relief. Traditionally they have not been involved in IHL or its enforcement. That is changing in two respects. First, some NGOs monitor non-derogable human rights in situations of conflict. Others use not only that body of law but also applicable IHL. Second, NGOs involved in a wide spectrum of different activities have come together to mount a co-ordinated campaign for a ban on the manufacture, stockpiling and use of anti-personnel landmines on account of their effects. This has led more NGOs, including ones not used to the HRsL / IHL field, to become aware of the law and how it may be used.
2.3 International criminal law
The terms of reference refer to IHL and IHRsL. They do not, in terms, refer to crimes against humanity and genocide. Both may occur in armed conflict situations and both involve prohibited conduct subject to universal and/or international jurisdiction.
The Charter of the Nurenberg Tribunal defined crimes against humanity and specifically linked the crimes to the Second World War. The offences in question were "murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population..." Whilst at first sight this may appear to represent the criminalisation of the violation of human rights law, that is an oversimplification. A necessary element in the offence would appear to be that the actions happen on a wide scale and are either planned or, at the very least, not punished or prevented, thereby implying the acquiescence of those in authority. Where an individual commits one of the prohibited actions against a civilian, it would appear to be necessary to show that the perpetrator believed him/herself to be carrying out a policy directed against the civilian population. Charging a person with a crime against humanity for an individual violation of common Article 3 of the Geneva Conventions is therefore inappropriate, unless, possibly, it can be shown that the individual knew that the particular act was part of a pattern which constituted a crime against humanity. A possible example might be rape as part of a policy of ‘ethnic cleansing’. The chief significance of the charge lay not in the criminalisation of the activities in question, for they would have been criminal in any domestic legal system worthy of the name, but rather in the exercise of international and/or universal jurisdiction. The charge made possible the trial of individuals for activities in occupied territories which in many cases did not technically constitute war crimes. Where domestic law recognises universality as a basis for the exercise of criminal jurisdiction, the charge of a crime against humanity also makes possible the exercise of jurisdiction by a national criminal count.
The charge of crimes against humanity offers three further advantages in an attempt to secure the enforcement of international criminal law. First, at customary law the concept is not dependent upon there being an armed conflict or some connection with such a conflict. The jurisdiction of the Ad Hoc War Crimes Tribunal for the former Yugoslavia is more restrictive in that regard than customary law required. Second, and related to the first, there is no need to characterise any conflict that may be taking place, since the conflict itself is irrelevant. Third, crimes against humanity may be free of periods of limitation but this depends on the particular national law. The trial of Klaus Barbie in France was on a charge of crimes against humanity since, inter alia, war crimes charges, even if possible, would have been time barred.
The charge of genocide arises under the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. The offence consists of two elements. The mens rea or mental element is that the acts must be "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such". It is not clear whether seeking the removal of a group from one particular area or seeking the dispersal of a group so that it no longer constitutes a group is sufficient. Light may be shed on this question by the International Court of Justice, which currently has before it a complaint from Bosnia-Herzegovina against the Federal Republic of Yugoslavia (Serbia/Montenegro) alleging, inter alia, genocide.
The acts required to constitute the offence are any of the following:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) imposing measures intended to prevent births within the group;
(e) forcibly transferring children of the group to another group.In addition to those acts, conspiracy, direct and public incitement and attempt to commit genocide are made punishable, as is complicity.
The Convention envisages trial by a competent tribunal of the State where the act was committed or by an international penal tribunal having jurisdiction. Whilst this makes possible trials in Rwanda or by the Ad Hoc Tribunal for Rwanda, it was one of the reasons why the Parisian Court of Appeal declined to exercise jurisdiction over persons said to be in France and who had allegedly incited genocide on Radio Mille Collines.
The International Court of Justice in the Advisory Opinion on Reservations to the Genocide Convention said that the principles underlying the Convention form part of customary law. It is not clear whether, under customary law, the offence is one of universal permissive jurisdiction, in which case the courts of any State could try an alleged perpetrator, irrespective of nationality, provided domestic law provides for such jurisdiction. The offence is not a political offence for the purposes of extradition. At present, thousands are awaiting trial in Rwanda, including children, on charges relating to genocide. The situation is complicated by inadequate prison space and facilities and a virtually non-existent legal infrastructure. There are also thousands of others, outside Rwanda, who are alleged to have participated in genocide and who are currently at liberty.
Refugee law is outside the scope of the present report. Nevertheless, given that armed conflicts tend to produce refugees or would-be refugees, that internal displacement shares many of the characteristics of displacement across an international boundary and that the United Nations High Commissioner for Refugees is often present in or near conflict zones, some mention must be made of this body of law. In the case of the former Yugoslavia, UNHCR was named as the lead agency and the activities of IGOs and certain NGOs were co-ordinated through UNHCR.
UNHCR relies principally on the 1951 Convention Relating to the Status of Refugees and its own practice in dealing with displaced persons, rather than on IHL. It is, however, endeavouring to equip delegates in the field with some knowledge of IHL and IHRsL as tools.
In order to be a refugee a person needs to be outside the country of origin owing to "well-founded fear of being persecuted for reasons of race, religion, nationality [or] membership of a particular social group or political opinion". It will be noted that armed conflict is not, in itself, a sufficient reason. Certain States insist that the individual must have a fear of personal persecution; it is not enough that (s)he has a general fear based on membership of a group.
In part owing to the increasing reluctance of States to admit refugees, UNHCR has found itself increasingly involved in situations of internal displacement and even, in the case of the former Yugoslavia, in "preventive protection".
Where the movement of people is on a massive scale, problems different in kind, rather than merely in degree, may arise. These may elicit unusual ad hoc responses. The presence of hundreds of thousands of Iraqi Kurds on snow-covered hillsides, denied entry into Turkey, led to the creation of the "safe haven" in Northern Iraq. The flight of hundreds of thousands of Rwandans in a very brief period of time towards and into Zaire, led to Operation Turquoise, in which a UN-mandated French "peacekeeping" force controlled an area in the south-west of Rwanda to provide a safe place for Hutus. Some of those fleeing may have participated in acts of genocide.
UNHCR has evolved practices for dealing with refugee women and children and unaccompanied children. In the case of Rwanda, for example, working together with the ICRC and other agencies, it has standardised the process of data collection and tracing, in an attempt to reunite children and their parents or families. When considering safe areas and displacement further below, it will be important to remember that the agency most likely to be involved, apart from UNICEF, Save the Children Fund and the ICRC, is UNHCR.
3. CHILDREN’S NEEDS IN SITUATIONS OF CONFLICT
The UNICEF publication on ‘Children in Situations of Armed Conflict : A Guide to the Provision of Services’ identifies the major types of potential harm to children in situations of conflict as,
· loss of life
· injury, illness, malnutrition, disability
· torture, abuse, imprisonment, conscription
· family separation
· emotional trauma
· displacement
· family impoverishment
· education disruption
· social disruption, distortion of values.Remedial action in one field may lead to problems in another area, resulting in no net gain and possibly even net loss. Evacuation of children out of war zones will lead to family separation unless the whole family is evacuated. As Boyden and Gibbs report, ". . .a child living with his or her family in a war zone and repeatedly exposed to violence may in fact be far less susceptible to emotional or psychological distress than a child separated from his or her family and evacuated to a place of safety".
Similarly, whilst from a western perspective the sight of children bearing arms is peculiarly repugnant, it needs to be recognised that they may not necessarily have been conscripted, including both conscription into regular and irregular armed forces. There is evidence that the psycho-social impact of armed violence on child participants is greater than on child victims and there may be evidence that child soldiers are less likely to respect the rules limiting the ways in which force is used. For these reasons, it may be in the interests of parties to restrict participation to adults. Nevertheless, any programme which does not address the question of why some children want to fight is likely to be of limited effectiveness.
In other words, whilst the checklist of potential harm is useful as a starting-point, any proposals for reducing the likely incidence of one particular type of harm must take into account possible adverse consequences in other areas.
4. EFFECTIVENESS OF PROTECTION AFFORDED TO CHILDREN BY EXISTING IHL
4.1 Child civilians in international conflicts
4.1.1 general protection of civilians from the effects of hostilities
The parties to an international armed conflict are required to distinguish between combatants and military objectives on the one hand and civilians and civilian property on the other. Only the former can be targeted. Furthermore, any attack against a military (and therefore legitimate) objective must not be indiscriminate. That means that attacks which treat as one objective what are in fact clearly separated and distinct military objectives in an area containing a certain concentration of civilians are unlawful. Similarly an attack 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" is also unlawful.
Not only can civilian property not be targeted but there is a presumption that places usually used for civilian purposes, such as a house or a school, are not being used to make an effective contribution to military action and are therefore not a legitimate object of attack.
"Objects indispensable to the survival of the civilian population", such as foodstuffs and drinking water installations cannot be attacked where it is for the specific purpose of denying them for their sustenance value to the civilian population.
Precautions have to be taken in launching an attack to ensure that these rules will not be violated in the course of the particular attack envisaged. The prohibition of indiscriminate attack has an impact on the choice of weapon to be used.
Civilian medical units are entitled to protection provided they are not used to commit acts harmful to the enemy. The presence of combatants for medical reasons is not such an act. Civilian medical personnel are also to be protected, on account of the protection to be afforded to those in their care.
Offers to provide and deliver humanitarian relief can be made where the civilian population is not adequately provided for. In such circumstances, relief actions "shall be undertaken" (emphasis added) but this is "subject to the agreement of the Parties concerned".
Generally speaking, the rules in Protocol I on the protection of civilians apply to operations conducted in the State’s own territory where those at risk are principally its own nationals, subject to a limited exception in some circumstances in the case of a ‘scorched earth’ policy.
4.1.2 special protection of children from the effects of hostilities
Generally, children are treated in the same way as other civilians. Parties are required to endeavour to remove civilians from the vicinity of military objectives (see evacuation below). If possible, agreements are to be concluded for the removal of inter alia, children from besieged areas. The Parties to a conflict are obliged to provide children "with the care and aid they require, whether because of their age or for any other reason". Children are to be protected from any form of indecent assault. Rape committed as part of the conduct of hostilities or of an occupation is a war crime. This applies equally to the rape of girls and boys. Special safety zones (see below) may be created to protect, inter alia, children under fifteen from the effects of the hostilities.
Where children under fifteen are orphaned or separated from their families, they are to be looked after and educated, preferably by people from the same cultural tradition. It is envisaged that this may take place in a neutral country.
Whilst children are generally in need of the same types of protection as other civilians, they may be particularly vulnerable to the use of certain weapons. It is specifically prohibited to use booby-traps attached to or associated with "children’s toys or other portable objects or products specially designed for the feeding, health, hygiene, clothing or education of children". In determining the weapons to be used in an attack, there is no requirement that the impact specifically on children be taken into account, but it does of course form part of the impact on civilians generally. This raises a general issue in relation to the measurement of proportionality. If the balance is between the military advantage and the impact on civilians generally, that will yield one result. If, however, as part of the equation, particularly severe consequences for one group of civilians were to be taken into account, that might yield a different result. A course of action would be more likely to be found to be disproportionate. One such group of civilians is children, who are particularly vulnerable to malnutrition, disease and the use of certain weapons. They may also be more vulnerable to disruption in medical services.
4.1.3 general protection of civilians living under belligerent occupation or in the territory of a party to the conflict
A civilian in the territory of a party to the conflict is to be protected and humanely treated. (S)He should be entitled to leave that territory unless contrary to the national interest of the State. So far as possible, such civilians should be treated as they would be in peacetime but there are also certain specific guarantees. They should only be interned if absolutely necessary and that decision should be kept under review.
A detailed legal regime applies in the case of occupied territories, the essential thrust of which is to ensure that the Occupying Power changes as little as possible of the indigenous legal system and administration whilst ensuring that it meets the survival needs of civilians and its own security needs.
Transfers or deportations out of the occupied territory are prohibited. Evacuation is permissible but only for reasons of imperative military necessity. There are restrictions imposed on forced labour. The Occupying Power is required to ensure that the needs of local civilians are met with regard to food and medical assistance. There is a limited possibility of requisition but subject to the survival needs of the local civilian population being met. There is provision for the delivery of relief supplies where necessary, subject to a right to search the consignments and to determine the time and route to be taken.
Internment is subjected to detailed and rigorous regulation. The regime recognises that internees have not been detained in relation to criminal charges. They are to be properly housed and fed and their medical, religious, educational and recreational needs are to be provided for. As a way of enabling internees to be released during the conflict, Parties are encouraged to reach agreements for the "release, the repatriation, the return to places of residence or the accommodation in a neutral country of certain classes of internees".
4.1.4 special protection of children living under belligerent occupation or in the territory of a party to the conflict
Children in the territory of a party to the conflict are treated in the same way as other civilians.
In the case of belligerent occupation, the Occupying Power has to make the necessary arrangements for the maintenance and education of orphaned children or those separated from their families. The Occupying Power is required to take "all necessary steps to facilitate the identification of children and the registration of their parentage".
Where children under fifteen years of age benefited from preferential arrangements with regard to the medical care and protection from the effects of war, these arrangements are to remain applicable.
The Occupying Power is to work with the indigenous authorities to facilitate "the proper working of all institutions devoted to the care and education of children". Those under eighteen years of age cannot be required to work.
Where penal proceedings are instituted, the death penalty cannot be pronounced against a civilian who was under eighteen years of age at the time of the offence, even if the local law so provides. When they are detained following conviction, "proper regard" is to be paid "to the special treatment due to minors".
In the case of internment, parents and children are to be interned together. Internees may even request the internment of their children who would otherwise be at liberty but without parental care. Children under fifteen are to be given additional food. The education of "children and young people" must be ensured. Children are one of the classes of internees whose release during the conflict is envisaged.
4.2 Child civilians in non-international conflicts
4.2.1 general protection of civilians in high intensity non-international conflicts
Protocol II to the Geneva Conventions is much less detailed than Protocol I but its essential structure is similar. So, armed forces are required to distinguish between civilians and those taking part in hostilities and may not attack the former. Nor may they attack objects indispensable to the survival of the civilian population where the object is the starvation of the population. Medical personnel and units are protected from attack.
Those not participating in the hostilities are in all circumstances to be treated humanely and without adverse distinction. Certain specific acts of ill-treatment, in elaboration of common Article 3 of the Geneva Conventions, are prohibited. Those interned or detained have certain minimum protection and the key elements of due process are to be applied in criminal proceedings. At the end of the hostilities, the authorities in power are to grant as wide an amnesty as possible. This presumably refers to an amnesty for the fact of having fought rather than for conducting hostilities in violation of the rules.
4.2.2 Special protection of children in high-intensity non-international conflicts
In relation to the protection of children, there is a striking difference in Protocol II between protection from the effects of the hostilities and protection from specific acts of ill-treatment. In the case of the former, there is no special mention of children. They are treated in the same way as other civilians.
In the case of the latter, children benefit not only from the fundamental guarantees applicable to all civilians but also from a specific provision. They are to be provided with the care and aid they require. That includes, but is not confined to, education in keeping with the wishes of their parents, family reunion and, preferably with the consent of their parents or those responsible for their care, temporary removal from the conflict zone. The provisions also require that those under fifteen should not be recruited or allowed to take part in hostilities but, even if they do, the other protections remain applicable in the event of their being captured (see below).
No specific reference is made to child internees or detainees. The same is true of the due process provisions, save for the prohibition on sentencing to death those under eighteen years of age at the time of the offence.
4.2.3 General protection of civilians in non-international conflicts
Common Article 3 of the Geneva Conventions does not, on the face of it, address the conduct of the hostilities. Nevertheless, insofar as certain results are prohibited, means and methods of combat which necessarily produce those results are presumably prohibited by necessary inference. In addition, they may be prohibited by customary law principles. On that basis, it would appear possible to argue that civilians cannot be made the object of attack and they must be protected from indiscriminate attack. It may also be unlawful to attack objects indispensable to the survival of the civilian population.
Article 3 does prohibit specific acts of ill-treatment against those not taking an active part in the hostilities. They are to be treated humanely and violence to life, the taking of hostages and outrages upon personal dignity are prohibited.
Given the prevalence of serious violations of these rules in non-international conflicts, the obvious question is whether there is something particular to such situations or to the rules applicable which makes these conflicts peculiarly difficult to regulate. The usual response is that violations are commonplace because it is difficult to distinguish fighters from civilians. Whilst this is not inherent in non-international conflicts, such conflicts are likely to take the form of guerrilla warfare because, unlike inter-state conflicts, one party usually has no control over territory or a secure base from which to launch operations. In such circumstances, it is not surprising that fighters should melt into the civilian population but it would be possible, if dangerous, for them to distinguish themselves whilst deploying prior to the launching of an attack. To some extent, non-State fighters choose to hide behind civilian petticoats. It must also be remembered that many States show a tendency, in such situations, to assume that the civilian population are hostile unless they positively support the government. This results, amongst other things, in "disappearances" and unlawful killings which cannot be blamed on the nature of the hostilities.
Part of the answer must lie in persuading each party to the conflict that it is not in its interest to alienate and jeopardise the safety of the civilian population. Such an approach needs to be accompanied by a realistic prospect of trial for a violation of the rules before an impartial tribunal, which in this context means one outside the jurisdiction and control of the State. The armed forces of the State should be as likely to be charged as the non-State forces.
Reliance on human rights law is not a solution because the legal obligations only bind the State and do not give rise to individual criminal responsibility, except indirectly in the case of torture. That said, the State may be in breach of its human rights obligations if it fails to try identified perpetrators of serious human rights violations but that specific obligation is not owed to individual complainants.
There are useful elements in both IHL and IHRsL, even if neither, on its own, offers a solution to the problem. Under IHL, non-State forces are bound by the rules applicable in non-international conflicts. IHRsL permits the independent investigation of complaints against the armed forces at the instigation of an individual victim. In other words, the search for effective enforcement is best achieved by reliance on either or both of the bodies of rules, depending on which is most likely to be useful in the particular circumstances.
4.2.4 Special protection of children in non-international conflicts
Common Article 3 makes no reference at all to children. The phrase which prohibits the making of "adverse distinctions" on defined grounds does not provide an exception, permitting special protection on grounds such as youth/age. It is not clear whether it can be argued, based in part on the special provision in Protocol II, that children must be specially protected under applicable customary law principles.
4.3 Child civilians in internal disturbances and tensions
These situations fall outside the scope of IHL. They are regulated by HRsL. It is not clear whether States are free to derogate and apply certain rights in a more restricted way than usual in a situation falling below the threshold of common Article 3. It might be possible to argue that any limitation or derogation measure should be interpreted and applied so as not to restrict the rights of child civilians, on the grounds that that is not necessary and/or proportionate.
4.4 Assessment of the effectiveness of the protection of child civilians in situations of armed conflict
Any fighting entails disruption and instability. The function of IHL is not to eliminate civilian casualties. They are an inevitable concomitant of armed conflict. The only way to eliminate such casualties would be by eliminating war. The function of IHL is rather to reduce such casualties and the dislocation caused to civilians by the conflict to a minimum.
It is extremely difficult to evaluate the effectiveness of the rules themselves. On the face of them, the rules appear to provide for the effective protection of civilians in a realistically achievable way. It is not the rules that are the problem. The reason it is so difficult to evaluate their effectiveness is that the rules are not respected in practice (see 8 below). It is difficult to think of a single armed conflict over the past ten years, with the possible exception of the coalition operation in Iraq, which has not been marked by the systematic violation of these rules. In some cases, civilian casualties may have been the result of indiscriminate attacks. In others, they were the result of, at the very least, a flagrant disregard for the need to protect civilians. In some cases, the civilian population appears to have been the target of attack, as in the case, for example, of Sarajevo.
That said, it is possible to detect certain tensions within the rules themselves. One of the most striking examples is the desire, on the one hand, to keep families together and, on the other hand, to remove children from the area of conflict. It is not clear how these ought to be reconciled, leaving aside the question of whether agreement could be reached on a rule if a solution were identified.
Given the general desire to protect children from harm, it might be possible to envisage further rules for the benefit of that particular group. The concept of "days of tranquillity" (see 6 below) to enable the vaccination of children would be an example of something currently not provided for, since the children are neither wounded nor sick, but which might be achievable. In practice, such arrangements have to be situation specific. They depend not merely on the consent but on the co-operation of the parties. It would therefore be difficult to obtain agreement on such a proposal as a binding rule.
Another development which might assist in the protection of child civilians would be the refinement of the concept of proportionality (see 4.1.2).
There can be no doubt that the single measure most likely to enhance the effective protection of child civilians from the effects of hostilities would be the respect in practice of the existing rules.
The issue of the participation of children in armed conflicts has only attracted legal attention relatively recently. The first reference to the problem appears to be in the 1977 Protocols to the Geneva Conventions.
4.5.1 participation in conflicts
A separate report has documented the incidence of the participation of children in conflict. This section only considers IHL and not HRsL, in particular Article 38 of the Convention on the Rights of the Child.
Article 77 of Protocol I requires that Parties to an international conflict shall take "all feasible measures" to ensure that children under fifteen years of age do not take a direct part in hostilities. The other aspect of the provision concerns recruitment. States shall refrain from recruiting those under fifteen and, in recruiting those between fifteen and eighteen, Parties to the conflict "shall endeavour" to recruit the oldest first.
The Article is replete with exhortatory, rather than mandatory, language. It also fails to address a variety of issues. What constitutes taking "a direct part in hostilities"? It clearly includes fighting but it is not clear whether a messenger, cook or deliverer of ammunition would be included. The Article refers to recruitment. It is not clear whether, as a matter of law, that covers every means by which a person may join armed forces. In particular, where a child is kidnapped and compelled to join or, at the other extreme, where a child simply joins a group of soldiers without going through any formal procedure, it is open to question whether recruitment in any meaningful sense has taken place. As a matter of policy, it may be desirable to give the term as wide a meaning as possible, so as to include any process as a result of which a child joins armed forces.
Those opposed to fixing the minimum age at eighteen fall broadly into two groups. One consists of certain States who wish to be able to recruit at sixteen or seventeen but where the lengthy training involved means that in many cases the recruit will be eighteen before (s)he is deployed. The other group consists of States which assert that children should be free to join armed forces if they wish and which claim that, in their culture, the defence of their country is seen as an important and worthwhile cause and being a soldier is seen as marking the transition from childhood to becoming an adult. It would be interesting to know whether this only applies to soldiers or to other branches of the armed forces.
States wishing to recruit those under eighteen years of age should be called upon to consider at least two consequences of their actions. First, it is possible that younger soldiers are, for a variety of reasons, more likely to break the rules setting limits on the conduct of hostilities. The State has an obligation to prevent foreseeable violations of the rules. The very fact of recruiting such soldiers may represent a breach of IHL, which will only be exacerbated by any violations these soldiers go on to commit. Second, if it is the case that child soldiers have more psycho-social problems of adaptation after the conflict than child victims, States may be storing up problems with which they do not have the resources to cope when they surface at a later date.
Unusually, the equivalent provision applicable in high intensity non-international armed conflicts is expressed in stronger language. "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." There is no mention of children between the ages of fifteen and eighteen years. Common Article 3 of the Geneva Conventions, applicable in non-international conflicts, contains no provision at all in this area.
Child soldiers seem to have a particular fascination for the media. Their accounts tend to emphasise the atrocities in which the children have participated. This not only runs the risk of portraying them as monsters rather than victims but in the process distorts the public perception of the problem of child soldiers and may even jeopardise the safety of the children concerned.
In an international armed conflict, members of the armed forces of a party to the conflict are to be treated as prisoners of war upon capture. There is no such status for those who take part in non-international conflicts. In the eyes of the State, they are probably engaged in activity not merely of a criminal but also of a treasonable character. Those detained during a high intensity non-international armed conflict, subject to Protocol II, benefit from the provision dealing with internment and detention.
In the case of international armed conflicts, Article 77 of Protocol I provides that where a child under the age of fifteen years does in fact take a direct part in hostilities and falls into the power of an adverse Party, (s)he will continue to benefit from the protection to be afforded to children under the Article, whether or not they are prisoners of war. A similar provision applies in the case of high intensity non-international armed conflicts. In some respects that is more striking because the Article specifies in greater detail the care and aid a child is to receive than is the case with Article 77 of Protocol I.
The silence of both provisions with regard to children between the ages of fifteen and eighteen years presumably means that they are to be treated in the same way as other fighters, unless they continue to benefit from the general protection afforded to children, being under eighteen years of age.
Whilst Geneva Convention III on the treatment of Prisoners of War contains a few references to women PWs, no mention at all is made of child PWs. This is not surprising when it is recalled that the issue of child soldiers was not addressed until the conclusion of the Protocols to the Geneva Conventions in 1977.
4.5.3 Assessment of the effectiveness of the protection of child soldiers in situations of armed conflict
It would be useful if the IHL provisions and those in the Convention on the Rights of the Child on child soldiers were brought into line with one another. Whilst it would be possible to envisage the prosecution of a person who allowed a child under eighteen to join armed forces or participate in hostilities, that is unlikely to meet the need. Those States currently unwilling to see the age limit raised to eighteen years need to be persuaded as to its desirability and, in addition, the reasons why children want to join armed forces and/or participate in hostilities need to be examined, with a view to diverting the energies of such children along other paths.
5. APPLICATION OF HRsL AND IHL TO NON-STATE ENTITIES, THE UNITED NATIONS AND OTHER PEACEKEEPING FORCES
It is assumed that the non-State entities in question are organised fighting groups. The accountability of IGOs and NGOs, including the ICRC, working to provide relief in a variety of ways or to monitor respect for the applicable rules raise important but quite different concerns.
5.1.1 IHL and non-State entities in international conflicts
IHL is based on the notion that, in time of war, certain groups are authorised to take action which would normally be unlawful. The lawfulness of the resort to armed force is irrelevant to the applicability of IHL. It applies equally to the armed forces of an aggressor State as to those of a victim of aggression. It applies by virtue of the facts. Only certain groups are authorised to take exceptional action. If someone not a member of such a group engages in such activities, this does not make them, de facto, a member of the group. It means they have probably acted unlawfully. So, for example, a soldier can in war lawfully kill an enemy soldier. A civilian cannot do so and does not, by doing so, become a soldier. The civilian can be punished under national criminal law for an unjustifiable killing.
IHL, in other words, gives rights and obligations to certain groups. Whilst giving them the right to take action against military objectives, it imposes limits on the scope and manner of exercise of those rights. It also imposes obligations on them to protect the victims of war. The victims of war include enemy prisoners of war, that is to say members of similar groups fighting for an opposing Party to the conflict who were also authorised to take what would normally be unlawful action and who had similar rights and obligations. It therefore becomes important to know what these groups are which are bound by the laws and customs of war.
There are five such recognised groups in international conflicts. First, there are the armed forces of States. Within their ranks, they may include non-combatants (eg. medical personnel and chaplains) who are nevertheless members of the armed forces. Second, militia and volunteer corps are bound by "the laws, rights, and duties of war" on condition that they can be said to fulfil the following four cumulative requirements:
"1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognisable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war".The third category is known as a levée en masse. Where the inhabitants of a non-occupied territory spontaneously take up arms on the approach of the enemy in order to resist the invading troops, they may not have had the time to organise themselves into a militia or volunteer corps. Nevertheless, if they carry their arms openly and if they respect the laws and customs of war they are to be regarded as belligerents. The fourth group could be regarded as coming within the second. To avoid the uncertainty which had arisen in World War II, the third Geneva Convention clarified the position by stating that militias and other volunteer corps include "organised resistance movements" on condition that they satisfy the four requirements given above.
The fifth group is less clearly defined. It will be recalled that, in some circumstances, what appears to be a non-international conflict may be treated as an international armed conflict by virtue of Article 1.4 of Protocol I. This raises the problem of the status of the forces fighting for self-determination. Under Article 96.3 of Protocol I, the authority representing the people engaged in such a struggle may undertake to apply the Conventions and Protocol I by means of a unilateral declaration. This has the effect of bringing the Conventions and Protocol I into force for that authority, which assumes the same rights and obligations as a High Contracting Party. It also makes the Convention and Protocol binding upon all Parties to the conflict, which is presumably supposed to mean that the forces against whom they are fighting are not free to deny the effect of the declaration and the internationalisation of the conflict. Having the same rights as a High Contracting Party means that the authority can designate its armed forces.
In addition to extending the categories in this way, Protocol I diluted the four requirements which must be met but only in particular circumstances. "Recognising, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot [distinguish himself from the civilian population eg. not being in uniform], he shall retain his status as a combatant provided that, in such situations, he carries his arms openly:
(a) during each military engagement, and
(b) during such time as he is engaged in a military deployment preceding the launching of an attack in which he is to participate."The type of situation envisaged by this provision is organised resistance to military occupation.
Where people come into one of these groups, they are to be treated as prisoners of war upon capture. They cannot be tried for the fact of having taken part in hostilities but they can be tried for violating the laws and customs of war and for other violations of international criminal law arising out of the conflict. Whilst activities prior to the conflict would not normally be triable, where they are offences of universal jurisdiction whether committed in war or not, the Detaining Power is presumably free to try the individual if the domestic courts of the Detaining Power have jurisdiction. A prisoner of war does not forfeit that status as a result of conviction for acts committed prior to capture.
The quid pro quo for the protection of civilians and the obligation to distinguish between military and civilian objects is that civilians are not entitled to participate in hostilities. If they do so, they are not entitled to prisoner of war status and they can be tried for using armed force, even if they confined their activities to military objectives. This clear-cut distinction, necessary for the protection of the civilian population, has been somewhat fudged in Protocol I. It will be recalled that, in certain circumstances, a person can retain the status of combatant simply by carrying his arms openly at defined times. Where even that requirement is not satisfied, Article 44.4 provides that upon capture such a person "shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war". It is not clear whether this includes non-prosecution for the fact of participation in the hostilities. The fact that the previous paragraph speaks of a person retaining his status as a combatant may mean that other operations in which he has participated must have been in conformity with all the requirements so as to enable him to qualify for a status which he then retains in the particular circumstances.
Those not coming into one of the five categories are not bound by the laws and customs of war as represented by treaty law. Other groups may be bound by certain principles as a matter of customary law. They will not be entitled to the status of prisoner of war upon capture but the parties may conclude agreements or agree informally to accord them the same treatment as PWs. This would not only be humane but it would also serve military interests. Opposition forces are more likely to surrender if they know that they will be properly treated. If instead, they fight to the finish, that is likely to mean higher casualties on your own side.
5.1.2 IHL and non-State entities in non-international conflicts
Broadly speaking, the same principles apply to both conflicts coming within Protocol II and to those only coming within common Article 3.
On the one hand, the non-State forces are bound by the applicable provisions. Since IHL applies to groups and common Article 3 refers to "each Party to the Conflict", it would appear that the non-State forces are seen as a group and not merely a collection of individuals. It would therefore appear that the obligations of organisation, enforcing a disciplinary system and command responsibility would attach to those in charge of the group. This is in addition to individual criminal responsibility for violation of the rules, either as necessarily implicit in common Article 3 or under customary law.
On the other hand, the situation is very different from that in international conflicts. States do not accept that "rebels" should be free from prosecution if they fight according to the rules. States are unwilling to do anything which might appear to legitimise the resort to armed force. On the contrary, they perceive it to be criminal, possibly treasonable. This means that there is no question of recognising combatant or prisoner or war status in non-international conflicts. In other words, non-State forces are bound by the rules applicable in non-international conflicts but they can also be prosecuted before courts with territorial jurisdiction even if they confine their activities to attacking members of the armed forces of the State.
To take two hypothetical examples. In both cases X is a member of organised armed forces fighting against the armed forces of the State.
Example 1: During a non-international conflict in State A, X kills a member of the armed forces and is subsequently captured. X can be tried by the courts of State A. X cannot be tried by the courts of State B unless, in the circumstances, the offence is a terrorist offence and B has jurisdiction under a relevant treaty. X may be subject to extradition, depending on the agreement between A and B but B may, in the circumstances, treat the matter as a political offence and therefore outside the scope of the agreement.
Example 2: During the course of a non-international conflict in State A, X intentionally kills a child during the course of a military operation. X is subsequently captured. X can be tried before the Courts of State A both with participation in armed activities against the State and with the murder of the child. X could also be tried before the court of State B with the murder of the child in violation of common Article 3 of the Geneva Conventions, if it is an offence of universal permissive jurisdiction or under customary international law on the same basis. A precondition would be that as a matter of national law, the courts of State B had jurisdiction. The issue of participation in armed activities against the State would be dealt with as in example 1.
In these circumstances, it is clear that non-State entities have less incentive for complying with the rules than in the case of international conflicts, where they cannot be tried for fighting if they respect the rules. Nevertheless, they should be warned that violations of the rules regarding the protection of civilians may give rise to offences of universal jurisdiction. There is an apparent lack of even-handedness as between the state forces and those of non-State entities. This runs the risk of jeopardising the safety of the State forces. If the other side have nothing to lose, they will be more likely to fight to the finish. In order to meet the need for equality between the belligerents, without which the conflict is likely to be bloodier than it need be, whilst recognising the concern of the State not to recognise the status of the rebel forces or to appear to give them legitimacy, the parties should be encouraged to reach special agreements. These agreements should provide that captured fighting personnel will be treated as PWs but not formally given that status. The agreement should require both sides to define those groups that constitute their armed forces.
Non-State entities have three principal incentives for respecting the rules. First, they make military sense. To win, they need to take on the armed forces of the State, not civilians. Second, the way in which they conduct their operations seems to make a significant difference to national and international public opinion and non-State entities are dependent, to varying degrees, on public opinion. If those represent the carrot, the third incentive is the stick. Breaches of the rules may give rise to criminal liability, not only under the law of the territory but universally.
5.1.3 HRsL and non-State entities
Non-State entities are not bound by human rights treaty law. Those represent obligations assumed by States. They may be bound by customary human rights norms but the international enforcement mechanisms only apply to treaty law. Where a treaty requires that States make a practice criminal under national law (eg. torture) and ensure that their courts have jurisdiction, that may be done in such a way as to give domestic courts jurisdiction for violations of a customary norm. In that case, it might be possible to try a person who did not act with the authority of the State for, in effect, the alleged violation of a human rights norm. The actual charge, however, would be a "normal" criminal offence.
Whilst human rights enforcement and reporting mechanisms only formally deal with States, the activities of non-State entities will make a difference to that evaluation. They may give rise to a situation in which the State can legitimately invoke limitations or even derogate from its obligations. The responsibility of the State authorities is to protect those in the jurisdiction from such activities. It has become very apparent in recent years that whilst States may be the perpetrators of gross and systematic violations of human rights, equally it is difficult to find cases of effective human rights protection where there are no strong and effective State structures.
Human rights monitoring mechanisms, including NGOs, are faced with a dilemma. To say nothing about the activities of non-State entities which regularly flout human rights norms, whilst objecting to the activities of the State which breaches its human rights legal obligations, opens them to the charge of double standards. It is not inconsistent with demanding that a State respect its own commitments to recognise the situation on the ground. Indeed, it may even be necessary to the effective calling to account of the State and its agents. It enables the monitoring mechanism to say that, even given the situation, that does not justify the State in doing what it is shown to have done.
Whilst non-State entities are not bound by human rights treaty law, their conduct may have an impact on the assessment of the conduct of the State against which their actions are directed. In addition, they may find their activities treated as terrorist offences, which increases their likelihood of trial either in other States or in their own State, including following a successful application for extradition.
The question of the applicability of IHL to UN forces as such (ie. not as a collection of national contingents) is controversial and the position appears to be evolving.
Until recently, the UN was only involved in what might be termed "traditional peacekeeping". This involved deployment after a cease-fire agreement had been concluded and with the consent of all the parties. Whilst the force was lightly armed, in many respects its functions were of a policing rather than a military character. Not only were hostilities not taking place but, in the event of a localised breach of the cease-fire agreement, everyone understood the situation. The parties might fire at one another but not at the UN forces. Those forces did not get involved in the fighting but tried, by negotiation, to obtain a restoration of the cease-fire. In those circumstances, one can understand the reluctance to regard the UN as bound by IHL. It did not appear to be applicable in that situation.
Developments over the past decade have seen UN and other forces involved in a much wider range of operations. At least four different types of operations appear to exist. They give rise to different considerations with regard to the applicability of IHL. The type of operation involved depends primarily on the mandate but also on its actual interpretation in practice which will be influenced, amongst other things, by the resources available.
At the bottom end of the force spectrum is traditional peacekeeping. The force is deployed with consent and is impartial. It is only authorised to use force in self-defence, if the members or the unit come under attack. Slightly further up the spectrum is the situation known in the British military doctrine as "Wider Peacekeeping". It is like the first situation in that the force is deployed with consent but that consent may, on occasion, be lost locally, or tactically, for a brief period of time. The force is impartial and one of its objects is the reinforcing of consent but it may need to interpret self-defence in a more robust way than usual during those periods when the local loss of consent is being manifested. This has implications for the configuration of the force and, above all, for the equipment available to it. Such a situation may be more likely to arise where irregular forces, not used to accepting centrally-imposed discipline, are present. This suggests "Wider Peacekeeping" may be more commonly needed in intra State disputes.
The third stage in the spectrum is peace enforcement by which is meant the use of force to achieve a mandated objective not defined in terms of one or more of the parties. An example would be the use of all necessary means to secure the delivery of humanitarian relief or to protect a defined "safe area". Force must only be used in an even-handed or impartial manner but the forces do not need to act with the consent of the parties on the ground. Again, this has significant implications for the configuration of the force and the equipment needed. The implications for other forces in theatre engaged in "Wider Peacekeeping" also need to be borne in mind.
Finally, there is war fighting, under Chapter VII of the Charter , or in exercise of a State’s right to collective self-defence. Enforcement action does not need to be impartial or based on consent. It will usually be undertaken against a Party defined as an aggressor.
5.2.2 Whether the UN as such is bound by IHL
Two different issues need to be kept separate. One is whether IHL is applicable to the peacekeeping forces in the particular situation. That will be discussed in the next section. A separate issue, assuming IHL to be applicable to the peacekeeping forces, is whether it also binds the UN as such or only the national contingents.
The traditional view was that the UN as such was not bound by the detailed rules of IHL since it is not a party to the Geneva Conventions and Protocols and those treaties can only be implemented by entities having the attributes of States, notably territory and a system of criminal justice. In other words, not merely is the UN not a party but it could not meaningfully become one. Those advancing this view would argue that the UN could commit itself to acting in conformity with IHL principles but not to the legal obligations involved. Its commitment would be implemented by and is the responsibility of national contingents.
This view is being increasingly called into question. Whilst it does not have territory in the relevant sense, the UN has armed forces acting extra-territorially in its name. To that extent, it is in the same position as national contingents. Whilst it does not itself have a system of criminal justice, it could either delegate the function to national tribunals acting in the name of the UN or it could create such a jurisdiction of its own. There is an administrative tribunal for hearing complaints by UN employees. Another possibility would be the creation of an international criminal court with jurisdiction, inter alia, to try alleged violations of the laws and customs of war perpetrated by UN forces.
There are, nevertheless, difficulties of a practical nature. If UN forces detained a member of fighting forces, what should they do with him? Is he entitled to PW status? That depends on whether the UN forces are seen as a party to the conflict. Except in the case of enforcement action, the UN forces are there to fulfil a different role, even if they need to resort to force to achieve their objective. When defending a "safe area" from attack by any of the fighting parties, the UN forces may be taking part in hostilities but they are not a party to the conflict in the context of which such an operation is necessary.
It would seem unlikely that, at present, States would be prepared to subject members of their national contingents to trial by bodies other than national tribunals, either courts-martial or normal criminal courts. If the UN would find itself, for the time being at least, obliged to delegate the enforcement of its obligations to national tribunals, it is not clear that much would be gained by holding the UN to be bound by IHL. More might be achieved by giving the UN the right to call member States to account for the conduct of their armed forces. The UN would then be able to pass on allegations of violations of the rules and States would be under a duty to explain what investigation had been carried out and charges brought.
5.2.3 Whether national contingents are bound by IHL
Whether national contingents are bound to apply IHL depends on the situation on the ground. There are three difficulties. The first is whether the fighting involving the national contingents constitutes an "armed conflict". It is not clear whether that should be confined to fighting directly involving those forces or whether it is sufficient that an armed conflict is taking place between A and B in the presence of national contingents who may become indirectly caught up in the fighting. A second difficulty is the characterisation of the situation. If the conflict is non-international, does the presence of a peacekeeping force internationalise it? What is the relationship between the force and the non-State fighters? The final difficulty concerns the parties against whom the peacekeeping force may have to fight. Common Article 2 speaks of High Contracting Parties. Non-State fighters are not High Contracting Parties but they may be parties to a conflict.
These problems with the formal applicability of IHL also need to be considered in the context of the situation on the ground. In traditional peacekeeping, the peacekeeping forces should not need to resort to armed force and can only do so in self-defence. The situation should not cross the threshold for the applicability even of common Article 3. In "Wider Peacekeeping", the force will almost certainly only respond if it comes under attack but may respond in a more rigorous way. This may well cross the threshold. The fighting will probably be local and temporary but it may be intense. Peace enforcement, as defined above, could involve air strikes as well as more intense ground fighting over a longer period. In those two situations, some rules need to be applicable, notably on targeting and weapon use, but it is not clear that the full range of IHL is applicable, particularly the Prisoner of War Convention. Where peacekeepers are detained, the reaction appears to be to treat it as hostage-taking rather than as the capture of a prisoner of war.
It may be necessary to produce a code of conduct for these situations based on IHL but recognising the rapidly changing context in which it would be applicable. The peacekeeping forces are supposed by their presence to deter the use of force by other parties. Hostilities should be the exception rather than the norm. A useful model may be the concept of assistance to the civil power, which would reinforce the subsidiary character of the military presence.
In the case of enforcement action, there is no doubt that IHL is applicable to full-scale war fighting between national contingents and the other force.
In any situation in which force may be used, it is important that national contingents should establish mechanisms in theatre for the receipt and investigation of complaints. This should include an obligation to report back to the complainant on the action taken. This is not only necessary, where IHL is applicable, to give effect to the State’s obligations in the field of enforcement but also makes military sense. The force is likely to find the local population more co-operative if any complaints are seen to be addressed effectively.
5.2.4 Whether the UN as such is bound by HRsL
Whilst similar arguments might be thought applicable as in the case of IHL, there are significant differences. First, there are Charter-based (ie. non-treaty) mechanisms for the enforcement of HRsL, as well as treaty-based systems. Second, the UN has, as one of its purposes, the promotion of human rights. This would suggest that the UN is, at least, bound by Charter-based human rights norms. This would make it possible, in principle, for the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, the Commission on Human Rights and thematic Special Rapporteurs and Special Representatives to raise concerns about respect for HRsL on the part of the UN. In practice, the first two bodies are, to varying degrees, political. They would be unlikely to consider complaints against the UN that, indirectly, involved the conduct of their armed forces.
That is not true of the independent thematic Rapporteurs. It is understood that the Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions raised informally with the Secretary-General killings in Somalia, allegedly perpetrated by the Pakistani contingent in the peacekeeping force. Beyond such informal representations and the possibility of publicising the matter in the annual reports of the Special Rapporteurs, it is not clear how much more could be done in relation to the responsibility of the UN itself. Again, this is probably a responsibility the effective implementation of which it has to delegate to national authorities.
A further issue arises as to the accountability of UN agencies and the specialised agencies, such as DHA, UNICEF, UNHCR etc. As mentioned at the start of this section, that is beyond the scope of this report.
5.2.5 Whether national contingents are bound by HRsL
National contingents will be bound in the same way as the UN itself by Charter-based human rights law. In addition, they will be bound by any relevant and applicable human rights treaties ratified by the State from which the contingent comes. This is of considerable potential significance, particularly where the treaty contains effective enforcement machinery.
The treaties of most obvious relevance in situations of armed conflict are the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the regional human rights treaties and international and regional treaties on torture. The monitoring bodies whose function is primarily to receive reports should systematically enquire of States involved in peacekeeping operations, and not just of those involved in an armed conflict, how they have ensured respect for their human rights commitments. It will be recalled that the jurisdiction of the State extends, under human rights law, to extra-territorial actions performed by agents acting in the name of the State.
In principle, the quasi-judicial and judicial enforcement bodies would also have jurisdiction. This refers to the European and Inter-American Commissions and Courts of Human Rights. An aggrieved individual with a complaint against peacekeeping forces from a State bound by the American or European Convention on Human Rights could submit a complaint in the usual way. It could not be dismissed simply on the basis that the forces were acting extra-territorially. Whilst cases have been brought by individuals complaining of extra-territorial actions of armed forces, this has been in the context of belligerent military activities rather than peacekeeping operations. There is no reason, in principle, why the latter should be treated any differently.
Given that the basis exists for the exercise of jurisdiction, it seems surprising that States do not appear to take the precaution of submitting notices of derogation. Whilst States have done so with regard to internal situations, it is not known that any State has done so when involved as a participant in an inter-State conflict or in a peacekeeping operation. It would raise the question of whether such a situation can constitute a ‘public emergency which threatens the life of the nation’ (emphasis added). That is the precondition for derogation under the ICCPR. The American and European Conventions on Human Rights also refer to ‘time of war’, which might raise the problems discussed at 5.2.3.
The tools exist for monitoring, and in some circumstances, enforcing compliance with human rights commitments on the part of national contingents in peacekeeping forces. Those tools have either not been used at all or else not been used as effectively and systematically as they might be.
In certain circumstances, the UN has authorised non-UN forces to carry out a ‘peacekeeping’ mission. The coalition in the Gulf in 1991 was involved in enforcement action or, possibly, exercising Kuwait’s right to collective self-defence. In other cases, the UN has authorised action lower down the force spectrum. So, for example, France was authorised to carry out a short-term operation in Rwanda, some of the activities in the former Yugoslavia involved a UN force and others NATO. I-FOR is a NATO-led non UN force. In yet other cases, the UN has endorsed the operations of an existing military force, as in the case of ECOMOG in Liberia.
Where an ad hoc coalition is put together for a particular mission, it is not clear that the coalition has a legal personality separate from that of the national contingents. Elaborate command structures may be evolved to enable the forces to fight as one force but that would appear to be of military, rather than legal, significance.
Where, on the other hand, the authorised body is an existing regional organisation, it will have a measure of legal capacity. That may not however, be sufficient to argue that IHL is applicable to the activities of the organisation as such, as opposed to those of the national contingents. Where the organisation is invited to accept a UN mandate, respect for IHL by the organisation itself could be made a term of the mandate, which the organisation would be free to accept or reject. Subject to that qualification, it would seem that regional defence organisations are not, as such, bound by IHL.
IHL may be applicable to the activities of a national contingent engaged in ‘peacekeeping’ but not as part of a UN force. The position will be the same as for national contingents in a UN force and will depend on the situation on the ground. The position will be the same regardless of whether the force is acting on its own, as were the French forces in Operation Turquoise in Rwanda, or alongside other contingents.
Whilst regional defence organisations may, in general terms, be expected to respect customary norms of international human rights law, the monitoring and implementation mechanisms are not designed for calling non-State actors to account. Furthermore, such organisations are unlike the UN in that they do not have the promotion of human rights as one of the purposes of the organisation.
National contingents engaged in ‘peacekeeping’ but not as part of a UN force are bound by the human rights obligations of the State in the same way as when involved in a UN operation.
The issues discussed in this section have a very varying impact on the protection of children. Generally, peacekeeping forces, whether UN or not, are keen to do what they can to assist and protect children. It seems to be a part of their role which they enjoy and find worthwhile. That said, there are nevertheless situations in which children have been injured by peacekeeping forces in questionable circumstances. This seems to occur either as an unintended consequence of a lawful return of fire or where the forces are frightened of the local civilian population and mistrustful of them, as a result of which they may act precipitately in the face of what they see as a threat. That raises a general concern with the control of peacekeeping forces rather than a specific issue in relation to children.
The position with regard to non State entities is far more serious. Some of the worst violations of IHL have occurred in non-international conflicts, where at least one of the parties is a non State entity. The violations include the recruitment, both forced and voluntary, of children into its forces, the apparent intentional targeting of civilians, denying civilians essential foodstuffs and conducting hostilities indiscriminately, for example by the widespread use of unmarked minefields. Whilst the first is directed against children and the last may have a particular impact on children, in other cases children share the fate of the civilian population as a whole. The problem is not whether non State entities are bound by IHL but whether they respect it. This will be discussed further at 8 below.
Whilst places such as homes, hospitals, schools and churches cannot be the object of attack unless they are being used for military purposes, they can hardly be described as ‘safe’. There is always the risk that they may be hit, and those sheltering inside killed or injured, as the unintended result of a lawful attack against a military objective. This section of the report considers areas or zones which are supposed to receive a greater measure of protection.
6.1 Existing provisions on special zones in IHL
Different types of protected zones exist in IHL. Prior to the conclusion of the Geneva Conventions, there was some experience of such zones on ad hoc basis. Article 23 of the first Geneva Convention envisages the creation of hospital zones, but only for the military wounded and sick. Article 14 of the fourth Convention proposes the creation of hospital and safety zones for, inter alia, those under fifteen years of age and, in the case of children under seven, their mothers. Article 15 of the same Convention encourages the parties to reach agreement on a different type of zone. Neutralised zones can be created in the areas where the conflict is taking place. That means that they cannot be designated before a conflict breaks out. The zones created since 1949, whilst not exactly conforming to the categories established in the Conventions, probably owe their inspiration to those provisions.
Protocol I developed the concept of the neutralised zone. Whereas Article 15 of the fourth Geneva Convention envisaged the creation of areas in which particularly vulnerable groups such as children could seek shelter, Protocol I seeks to ensure the protection of places where civilians, and not merely those who are vulnerable in more specific ways, have already sought shelter. Article 59 develops the concept of open or undefended places as found in Article 25 of the Regulations annexed to Hague Convention IV. The Protocol provides for the creation of non-defended localities. Article 60 seeks to develop the concept of neutralised zones as found in the fourth Convention by providing for such zones in an organised way, rather than in the improvised way that occurs in combat areas.
The treaty texts simply provide for the possibility of the creation of such zones. The protection to be afforded to such areas depends on the agreement of the parties and not merely the unilateral designation of the zone so as to claim protection. In each case, it is envisaged that the area will have to satisfy certain conditions in order to qualify for any agreed protection. In particular, the zones have to be designated and/or delimited. Neutralised zones under the fourth Geneva Convention are open to the wounded and sick and to civilians who do not take part in hostilities and who do not engage in work of a military character whilst living in the zone. Similarly, non-defended localities under Protocol I must contain no combatants and no form of military activity can be undertaken in such an area. The same conditions apply to demilitarised zones under Article 60.
The essential preconditions for the establishment of specially protected zones in international conflicts are that they are for the protection of the wounded and sick, whether combatant or civilian and/or of civilians but should not contain active combatants, no military activity of any type should take place in or from them and they require the consent of the parties before there arises an obligation to respect their designation.
This is no provision on movement to or from the zone, including the delivery of relief to those in the zones. In other words, there is no provision, in this context, for relief corridors. Nor, beyond the general requirements imposed by the fourth Geneva Convention on an occupying power to secure the medical well-being of the population, is there provision for medical intervention for those neither wounded or sick. In other words, no specific arrangements are envisaged for the vaccination of children.
Only very limited use has been made of the concept of specially protected zones. They have, however, included designated zones in conflicts of a non-international character. There is no formal provision for such zones in either high intensity or other non-international conflicts.
The UN Security Council has tried to ensure the protection of certain areas by, in effect, imposing special régimes. ‘Operation Provide Comfort’ in Northern Iraq was designed to provide a ‘safe haven’ for Iraqi Kurds who had fled to Turkey and Iran. Whilst a memorandum of understanding was agreed with Iraqi representatives, in effect the operation was imposed on Iraq. The legitimacy of the operation depends on the scope of Security Council Resolution 688, which is a matter of dispute. Whilst the creation of the zone has, by and large, had the desired effect of providing an area in which Kurds may be free of Iraqi attack, it has not addressed the political question of the relationship between the Kurds and the Iraqi central authorities. The creation of the ‘safe haven’ enabled States to appear as if they were doing something, whilst disguising their inability or unwillingness to resolve the underlying problem.
The United Nations used the concept of protected zones in two different contexts in the former Yugoslavia. Four UN Protected Areas (UNPAs) were created in Croatia with the objective of demilitarising the areas. For a variety of reasons, the UNPAs more closely resemble a peace-keeping measure than a type of specially protected zone. Such zones, or ‘safe areas’, were supposedly created in the case first of Srebrenica and later Sarajevo, Tuzla, Zepa, Gorazde and Bilhac. They were singularly unsuccessful in preventing attacks on the areas or their inhabitants. There are a variety of reasons for that failure, including a lack of demilitarisation of the areas, no clear geographical delimitation of the areas protected, inadequate force levels to provide effective protection and uncertainty as to the scope of the mandate.
In principle, there may be a useful role for Security Council imposed ‘safe areas’ but only if certain requirements are met. First the area in question must be defined, preferably including a buffer zone. Second, the area must be demilitarised. Otherwise it appears that the peacekeeping forces are taking sides by allowing military action by one Party from within the area, whilst denying the other party the right to respond. Third, the mandate and the force levels must make it clear what can be done and that the resources exist to do it. The implications for other forces in theatre acting under a more restricted mandate need to be borne in mind. Fourth, it must be remembered that such areas are zones of temporary protection. If continued indefinitely, they would effectively become prisons. They can only provide temporary security whilst a long-term solution for the population concerned is negotiated. Those solutions would necessarily be very different in the case of Northern Iraq and Bosnia-Herzegovina. Again, however, it appears that a very flawed, conception of protection was used as a substitute for a policy, rather than to achieve it.
The Security Council régimes have been for the protection of areas and their population generally, rather than specifically for children. Some recognition of the special needs of children is to be found in the exceptions to the sanctions against Iraq but that is in a different context.
In order for a regime of specially protected areas to be effective, they must satisfy various conditions. If established with consent, they will in practice have to be demilitarised and will generally only be available to the wounded and sick or civilians. If established by force or the threat of force, they will again in practice have to be demilitarised but they may be able to shelter former combatants. In both cases, the zones can offer only temporary protection. They cannot be a substitute for a policy with regard to the situation on the ground.
6.4 Possible use or development of the concept to provide additional protection to children
Following a proposal made to UNICEF by Nils Thedin of Sweden, attempts have been made to meet the needs of children in novel ways. ‘Days of tranquillity’ and ‘corridors of peace’ have been negotiated. The nature of the activities involved needs to be identified.
In the cases of El Salvador, the Lebanon and Afghanistan, a temporary cessation of hostilities was agreed, sometimes on a repeated basis, to permit the vaccination of children. In other words, what was involved was a temporal space rather than geographical space. It was for a specific activity involving children, rather than the general protection of children.
In the case of Uganda, agreement was obtained for a ‘corridor of peace’ along which vaccines and the personnel to administer them could travel. This was a geographical zone of a particular type, a route rather than a place, and was again for a specific activity, rather than the general protection of children.
Only in the case of ‘Operation Lifeline Sudan’ have corridors for the delivery of relief, as well as vaccines, been negotiated. This occurred during a relative lull in the civil war. Along the eight corridors of tranquillity, there was a reduction in the fighting, which had the incidental benefit of permitting the local population to move about the countryside more freely.
All the examples other than Sudan involve vaccination programmes. The precedents suggest that temporal or geographical space can be negotiated for that purpose. It is noteworthy that State authorities have had to accept that negotiations also needed to be carried out with the rebel groups. Each party had to trust the other sufficiently to give effect to the agreement. It seems likely that the subject matter of the agreement played a part in creating that trust. The ‘vaccination space’ did not unduly inhibit the conduct of hostilities. They were interrupted either for a limited time or in a limited area.
The exception is the case of Sudan. The delivery of relief is not confined to children, even if they are the principal intended beneficiaries. The arrangement, again negotiated with warring parties in a civil war, is more closely related to IHL provisions on the delivery of relief than to those on safe areas. Article 59 of the fourth Geneva Convention and Article 69 of Protocol I deal with relief in occupied territories. Article 70 of Protocol I addresses relief actions in international conflicts and not in occupied territories and Article 18.2 of Protocol II provides for relief in high intensity non-international conflicts. In essence, the parties to a conflict are supposed to allow the delivery of relief of an impartial or humanitarian character where the population is in need but this is either in terms or in effect subject to their consent, on account of their ability to dictate the routes to be taken and to check the contents of relief convoys. ‘Operation Lifeline Sudan’ appears to be an agreement of this nature.
These special arrangements are of considerable significance, particularly if they were expressed as being in the interests of children, but they do not suggest that the concept of safe areas as usually understood in IHL could usefully be exploited for the benefit of children. They point rather to the possibility of developing corridors or space for child-specific needs, such as the medical or other evacuation of children and vaccination, and to the general possibility of negotiating the delivery of relief where the scale of the fighting makes that achievable. These represent two significantly different types of agreement. In the first, the parties are willing to accept real limitations on the conduct of hostilities at particular times or in particular places. They will make what represents a real ‘sacrifice’ in the interest of the well-being of children. If Sudan is the only example of similar type of operation for the delivery of relief generally, it suggests that parties will only make such an agreement where it represents much less of a ‘sacrifice’.
The precedents could usefully form the basis of model agreements of two types: child-centred agreements based on an interruption of the hostilities for a particular purpose and more general agreements for the delivery of relief. The second should always be tried but is less likely to obtain the consent of the parties than the first. No such arrangements can proceed without the consent, and indeed the co-operation, of the parties. That being the case, it would appear pointless to attempt to elevate the concept of safe areas for the benefit of children to a norm of international law. States would be unlikely to accept such a proposal and, even if they did, it could not, in practice, be implemented without the consent of the parties in control on the ground.
Nothing in these precedents suggests that the concept can be extended to provide children with protection from the effects of the hostilities in specially protected areas. To secure that objective, it would appear necessary to seek agreement on the establishment of non-defended localities and neutralised zones as envisaged by IHL. The precedents in that regard do not give rise to optimism but relief agencies do not seem to have anything to lose in making such proposals and children have a great deal to gain from them.
7 DISPLACEMENT UNDER HUMANITARIAN LAW
Displacement is used to include any movement from the place of habitual residence arising, directly or indirectly, from the conflict. It includes movement to places of safety within the same country; evacuation, whether on medical grounds or for safety, to another state; voluntary departure of an alien from the territory of a party to the conflict and movement into, within and out of occupied territory. It includes movement genuinely for the purposes quoted and also movement brought about by the unjustified manipulation of the facts and/or the law, including forced movement as a form of collective punishment. It includes both voluntary and involuntary displacement. The concept of voluntary displacement has to be treated with some caution. Where departure from one’s home is necessary to avoid a real risk of being killed, one may call into question whether the person can meaningfully said to be exercising a choice. Finally, it includes both individual and mass movements of people.
It needs to be remembered that where displacement involves crossing a frontier, issues of refugee law will arise. UNHCR officers may be present even in the country of origin. They will generally be operating within their own doctrine and body of principles, but against the backdrop of applicable IHL.
Whilst mass movements of people often accompany armed conflict, de facto population transfers are viewed with suspicion, not least on account of the experience in World War II. Facts may be ambiguous and susceptible of different interpretations. People may be fleeing to avoid the effects of hostilities or a party to the conflict may be deliberately pursuing a policy designed to secure the same end. The characterisation of the flight also involves the potential receiving State. Certain States are showing an increasing unwillingness to receive even small numbers of alleged refugees. In other cases, the problem is rather the disruption likely to be caused to the domestic political order, or lack of it, by a sudden influx of people on a massive scale.
These tensions and ambiguities are reflected in IHL itself, compounded, in the case of children, by the potentially conflicting desire to keep families together whilst removing children to places of safety. There seems to have been a shift of emphasis between the 1949 Conventions and the 1977 Protocols but whether this is because the view of the correct balance has changed or whether the 1977 Protocols were simply designed to fill perceived gaps in the law is hard to say.
IHL applicable in international conflicts will be discussed first, in each case, before turning to the rules applicable in high intensity non-international conflicts. Common Article 3 of the Geneva Conventions contains no provision on displacement.
Evacuation includes both movement to places of safety within the State and also to other countries. Under the fourth Geneva Convention, Parties are encouraged to establish safety zones in which certain groups can be protected from the effects of war, including children under fifteen and, in the case of children under seven, their mothers. The provision does not indicate whether the groups can be obliged to seek protection in such areas or whether they are merely to be made available. The hope is that there will be reciprocal recognition of such zones by the parties to the conflict and that they will be free from attack.
Similarly, the establishment of neutralised zones for civilians taking no part in hostilities is envisaged in regions where fighting is taking place. Again the object is the protection of such people, whether by choice or not is not specified. Furthermore, the parties are encouraged to reach ad hoc local agreement for the removal of, amongst others, children from besieged or encircled areas.
Articles 59 and 60 of Protocol 1 also envisage the creation of non-defended localities and demilitarised zones. Article 59 of the Protocol imposes an obligation on the parties to the conflict, to the maximum extent feasible, to "endeavour to remove the civilian population... from the vicinity of military objectives". It is not clear to what extent this might be interpreted as permitting the State to use coercion or whether it should be confined to attempted persuasion.
Out of country evacuation is only envisaged for children. Article 24 of the fourth Geneva Convention requires the parties to a conflict to facilitate the reception of children under fifteen, who are orphaned or separated from their families as a result of the war, in a neutral country for the duration of the conflict. This is supposed to be subject to certain safeguards.
The evacuation of children is dealt with in considerably more detail in Article 78 of Protocol I. Evacuation to a foreign country can only be arranged by the national authorities of the child, except as a temporary expedient "where compelling reasons of the health or medical treatment of the children" or their safety requires it. They cannot be evacuated from occupied territory, even in the interests of their safety. The written consent of parents, guardians or those primarily responsible for the care of the child is required. Detailed documentation is required "with a view to facilitating the return to their families and country". The provision clearly reflects a concern that a separation intended to be temporary may become permanent.
The evacuation of children for medical treatment is, in practice, subject to many other constraints. An elaborate procedure, involving a variety of different bodies and agencies, was put in place to deal with medical evacuation from Bosnia-Herzegovina. In practice, media coverage seemed to have a part to play in determining who would have the opportunity of receiving medical treatment abroad. It was common for such child casualties to be evacuated with at least one family member. The problem for the receiving State would be to know whether, after recovery, the patient and family members could be compelled to return to a war zone or whether they had to be given a choice.
Experience in World War II suggested that there was greatest risk of displacement in occupied territories. The general issue of displacement will be examined in the next section. Whilst generally it is prohibited, "...the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement." The occupying power is supposed to ensure "to the greatest practicable extent" that the evacuation is carried out in satisfactory conditions, including ensuring that family members are not separated and that arrangements are in place to receive the evacuees. They are to be transferred back to their homes as soon as the hostilities in the area have ceased.
The biggest danger is not so much the conditions of the evacuation as the very fact that it can happen at all. Whilst it is clearly an exception to the general prohibition of transfers of protected persons from occupied territory and is subjected to strict conditions (security of the population or imperative military reasons), there is the risk that the provision could be manipulated by the occupying power to circumvent the general rule.
In a non-international conflict, an analogous provision, Article 17 of Protocol II, uses the same criteria (security of civilians and imperative military reasons) but does not call the movement ‘evacuation’ but ‘displacement’. It will be considered in that context.
More surprisingly, even the provision on the movement of children to safety in Protocol II does not refer to evacuation but to the temporary removal of children from the area in which hostilities are taking place. Such transfers which, whenever possible, should be with the consent of parents or those responsible for the children, have to be effected within the country and the children must be accompanied by persons responsible for their safety and well-being.
Insofar as displacement for safety reasons is at the choice of the individual, this represents a form of voluntary displacement. The law on displacement is, in a sense, designed to ensure that those who wish to leave can do so but that no one can be compelled to leave home. This is manifested in varying ways in different contexts, depending on the nature and degree of the risk of abuse.
Thus, the right of an alien to leave the territory of a party to the conflict is spelt out in detail in Article 35 of the fourth Geneva Convention because there is a real risk that the alien might be prevented from doing so. Even so, the entitlement to leave the territory is qualified. It can be denied where "their departure is contrary to the national interests of the State".
There is no equivalent provision in the case of occupied territory or non-international conflicts, where the risk is rather of forced movement.
Generally speaking, this is most likely to arise in the case of occupied territory. The relevant provision appears to be drafted unequivocally. "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory... are prohibited, regardless of their motive". Furthermore, "the Occupying Power shall not deport or transfer parts of its own civilian populations into the territory it occupies". "Unlawful deportation or transfer" is a "grave breach" of the fourth Geneva Convention. That is reiterated in Article 85.4(a) of Protocol I. Nevertheless, the effectiveness of the prohibition is potentially substantially reduced by the exception of evacuation "if the security of the population or imperative military reasons so demand", discussed at 7.2 above.
In Protocol II, there is an analogous provision. "The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand". Again that is subject to "all possible measures" being taken with regard to the conditions of displacement. Civilians, as opposed to the civilian population, "shall not be compelled to leave their own territory for reasons connected with the conflict". That statement is not qualified in any way.
Whilst, on the face of them, these provisions appear to go a long way to preventing forcible displacement, it is possible for a Party to a conflict, whether international or non-international, to achieve the same result in other ways. The manner in which it conducts the hostilities may leave civilians with no choice but to move. If a place is besieged, resulting in the risk of starvation, or if food is scarce owing to the disruption of agriculture caused by actual hostilities or the presence of landmines, civilians are likely to leave.
Even within the framework of the law, the Party to the conflict desiring to move civilians may claim that this is essential for reasons of imperative military necessity. The real motive may be collective punishment for actual or perceived support given to the opposing party. Collective penalties are prohibited under Article 33 of the fourth Geneva Convention, Article 75.2(d) of Protocol I and Article 4.2(b) of Protocol II.
It would be in the interests of an unscrupulous Party to drive civilians into leaving without invoking the exception based on imperative military necessity. In that way, the Party could disclaim any responsibility for the fact of their departure, the conditions in which they left and the arrangements to receive them. The international community generally seems unable or unwilling, to take effective action against such manipulation of events, even where it recognises the truth of the situation.
Population transfers at the end of hostilities raise different issues. They may be part of a negotiated peace agreement. The willingness of the people to move ought to be a relevant factor but it may well not be a determining one, particularly in view of the ways in which they can be persuaded to want to move. The creation of facts on the ground is very hard to counteract, even if both the goal and the means to achieve it are unlawful.
In section 7.2, reference was made to the removal of civilians to safety zones and neutralised zones and from besieged areas and the vicinity of military objectives. It is not clear whether national authorities can compel people to move in such circumstances or whether they have discharged their obligations by negotiating the necessary agreements and making the necessary facilities available.
In the case of the evacuation of children, Article 78 of Protocol I is ambiguous. A Party cannot evacuate children, other than its own nationals, except in defined circumstances. The Article then goes on to attach requirements, such as the permission of parents, to the manner in which such evacuation is conducted. There are no qualifying conditions for the circumstances in which nationals can be evacuated. In particular, it is not specified whether national authorities can compel the evacuation of children and, if so, in what circumstances.
The provision in Protocol II on the displacement of the civilian population, discussed in the previous section, applies to the Parties to the conflict. They are likely to be of the same citizenship and to owe allegiance to the same State authorities not only as one another but also as the displaced civilian population. Any displacement will therefore occur at the hands of fellow citizens, some of whom may represent the State.
7.5 Displacement and separation of children from their families
In section 3 above, it was seen that children away from their families but in places of safety may suffer more in psycho-social terms than those who remain with their families but at greater risk. In sections 7.1 and 7.2 above, it was seen that the tension between these conflicting principles is reflected in the law. Organised evacuation, particularly under Protocol I, is subject to conditions designed to ensure that it will be as easy as possible to re-establish contact. This is further reflected in provisions on family re-unification. In international armed conflicts, "the Parties to the conflict shall facilitate in every possible way the reunion of families dispersed as a result of armed conflicts." In high intensity non-international conflicts, in the context of a provision dealing specifically with children, "all appropriate steps shall be taken to facilitate the reunion of families temporarily separated".
The work of humanitarian organisations in handling tracing and family reunification is expressly acknowledged. The ICRC has a long experience in this field. Following the genocide and armed conflict in Rwanda, ICRC, UNICEF, Save the Children Fund and UNHCR worked together to standardise the process for data collection and tracing. The problems in this field arise out of the scale and nature of the practical problems rather than any deficiency in the law.
There is genuine difficulty in deciding whether it is better for children to be evacuated or stay with their families, even at the price of greater risk. The provisions of IHL prohibiting forced displacement are susceptible to abuse. Where forced displacement does occur, it should not be exacerbated by resulting in the separation of families. It is in both the short and long-term interests of the parties to a conflict to avoid the social dislocation and problems of rehabilitation which may be occasioned by family separation. Armed conflict will almost inevitably lead to a certain level of family disruption. Every effort should be made, however, to ensure that children do not become separated from their families and, should that occur, that they are reunited as soon as possible.
A constant theme in this report has been the lack of respect for the existing rule of HRsL and IHL. In such a situation, it may be actually counter-productive to suggest new rules. They will contribute to an increasing gap between law and practice. Law then becomes part of the myth rather than a bridge between what is and what ought to be. It may even be the case that respect for IHL is actually deteriorating.
Concern with this situation led to the calling of an International Conference for the Protection of War Victims in the autumn of 1993. The participants were the Parties to the Geneva Conventions. The delegates asked the Swiss government "to convene an open-ended intergovernmental group of experts to study practical means of promoting full respect for and compliance with [humanitarian] law..."
The results to date have been disappointing. They appear to focus on the need for more widespread ratification of IHL treaties, more dissemination and an exchange of information on national implementing legislation, without any sanction for non compliance. This hardly seems to meet the need. Whilst lack of respect for some of the more detailed rules, for example on the operation of a PW camp, may be the result of ignorance, the violations of IHL which have featured so prominently in recent years are of a qualitatively different nature. Massacres of unarmed civilians, including women and children, have been commonplace. The intentional targeting of civilians has been routine. Those engaging in such activities either have no moral sense and do not think the actions wrong, or else they believe they are justified by a higher good, the military objective for which they are fighting. There is not enough of a ‘law habit’ in this field to expect forces to respect the rules as an end in itself. Sticks and carrots are needed. More of the same, which is what ratification, implementation and dissemination represent, cannot be the answer. What is lacking is a deterrent effect to prevent violations and effective enforcement, both to show that respect for the rules matters and as a deterrent. Potential sticks and carrots, in the form of tools of persuasion, already exist. What does not appear to exist, on a systematic or universal basis, is the willingness to use them. The following elements represent part of what is needed.
Education needs to encompass more than information. It needs to involve the whole population and should be designed to produce a moral sense of personal and social obligations. It involves contemplating the possibility of fighting and discussing the pressures any individual will come under in that situation.
Education in social obligations needs to develop the values of a civil society. Where the values exist but they are not reflected in the institutional culture or structures, it is more likely to lead to imprisoned dissidents than to respect for the rule of law. The values inherent in a civil society are closely linked to those necessary for the respect of human rights: pluralism, tolerance and democracy. If the values of a civil society are not to be simply a matter of political philosophy but of reality, this needs to be reflected in institution building. The institutions need to be based on accountability, participation and subjection to the rule of law.
It is not enough to seek to build a society based on certain values. Effective preventive action needs to be taken to ensure a society does not slip backwards. One of the purposes behind the European Convention on Human Rights was to ensure that the experience of Germany in the 1930s would not be repeated; any such situation would be nipped in the bud. The early warning indicators of potential conflict have been known for a long time. Gross and systematic violations of human rights obligations is one such indicator. Inflammatory propaganda attacking a particular group is another. Forces which fail to respect human rights norms are unlikely to respect those of IHL either. The UN Commission on Human Rights has the information but fails to act preventively for political reasons. Effective preventive action would, in fact, make both political and economic sense. It would have been cheaper, both for those countries and other States, to address the situations in the former Yugoslavia, Somalia and Rwanda at an earlier stage. If the international community wishes to prevent violations of IHL, it needs to demonstrate that commitment by prompt and impartial use of human rights mechanisms.
It is not enough for a State simply to train its armed forces in IHL. The civilian population also needs educating. Even within the armed forces, the mere provision of information is not enough. Situations testing knowledge of and respect for the rules need to be integrated into exercises. They need to be made a matter of command responsibility. Above all, members of the armed forces need to know that their commanding officers and political masters are committed to ensuring respect for the rules. This will be evidenced by the provision of the means to enforce respect for the rules in practice, through investigations and trials, and the will to do so. It is not enough that those rules relating to the functioning of the armed forces internally are enforced, such as obedience to orders and punishment of those going absent without leave. Violations of the laws and customs of war need to be treated in the same way.
Historically, States seem to have instituted proceedings with regard to the first type of offence but much less frequently in the case of the second. The recent examples of trials in Belgium and Canada arising out of the conduct of their armed forces in Somalia is a refreshing exception. Again, such proceedings are a matter of political will and reflect the gravity with which such offences are viewed by the military hierarchy.
Enforcement includes both politico/economic measures taken against the State with a view to persuading it to take the necessary steps to secure respect for IHL on the part of its armed forces and the subjection of individuals to criminal proceedings. The first type of enforcement usually takes the form of sanctions, including arms embargoes. It is notoriously difficult to obtain effective implementation of a sanctions regime and, even where that has been secured, sanctions do not appear to have had the effect intended. If they have any impact at all, they tend to bear down most heavily on the most vulnerable groups in society whilst not producing the change sought in government policy. As a means of achieving respect for IHL in the face of violations of the law, where a swift effect is necessary, sanctions would appear to serve little purpose.
The second type of enforcement, the subjection of individuals to criminal proceedings, needs to happen at both the national and international levels. It might be thought that progress had been made on this front by the establishment of the Ad Hoc War Crimes Tribunals for the former Yugoslavia and Rwanda. The first problem is that they only have jurisdiction over activities in two conflicts. There are many other conflicts going on at present where there is evidence of serious violations of the rules of IHL but not the slightest prospect, for a variety of reasons, of the establishment of similar tribunals. Second, even with regard to the two tribunals, there are difficulties. The tribunal for the former Yugoslavia has not, to date, been able to secure the co-operation of the parties in the surrender of those indicted, notwithstanding the terms of the Dayton agreement. In the case of Rwanda scores of thousands are awaiting trial in seriously overcrowded jails and appalling conditions. Proceedings cannot move fast owing to the destruction of the previous legal infrastructure. Rwanda needs resources for the training and equipping of the police, prosecutors and the creation of a court structure. Those resources are not forthcoming. If the international community was genuinely concerned about the enforcement of IHL, it would find the means necessary to assist Rwanda in rebuilding its legal infrastructure and the means to bring pressure to bear on the parties to the conflict in the former Yugoslavia to surrender indicted suspects. The threat of effective enforcement would complement the proper use of preventive mechanisms. The two combined represent the stick and carrot referred to at the start of this section.
A permanent war crimes tribunal would not be a solution to the problem of the enforcement of IHL but, in conjunction with other measures, it could have a part to play. The other measures necessary include those referred to earlier in this section. In order to fulfil a useful role, such a tribunal would have to satisfy certain conditions. They include, first, virtually every State would have to agree to surrender any person in its jurisdiction who had been indicted by the Tribunal and would have to do so in practice. Second, the necessary resources would need to be made available for it to be able to function effectively. Third, a reasonable proportion of those suspected of having committed offences within the tribunal’s jurisdiction would need to be tried, irrespective of rank or nationality. It would also need to pay scrupulous regard to the requirements of due process. If those requirements were satisfied, a permanent war crimes tribunal might be useful not only in punishing violations of IHL but thereby in deterring them. If the conditions were not satisfied, however, the existence of such a tribunal, not functioning as it should do, might be worse than if no tribunal had been created. For the tribunal to exist but not to deal with alleged offenders of a certain rank or a certain nationality would be a betrayal of the victims and would further undermine IHL.
Proposals for "corridors of peace" or "days of tranquillity" to enable the vaccination of children would make an undeniable difference to the protection of children. Nevertheless, such proposals do no more than scratch the surface of the problem. If armed conflicts have to be accepted as the reality, then the single thing that would have the biggest impact on the protection of the well-being and lives of children would be the respect in practice, in both international and non-international conflicts, of the existing rules of IHL on the means and methods of conflict and the protection of victims. If the parties will not respect the rules as an end in itself, they need to be persuaded and coerced into doing so. That is a matter of the political will of third States. If that will is lacking, the Conference on Protection of War Victims cannot be expected to achieve much progress in changing respect for the rules in practice. If that will were present, the Conference would be unnecessary.
9 GAPS IN THE INTERNATIONAL LEGAL PROTECTION OF CHILDREN AFFECTED BY ARMED CONFLICTS
Identifying gaps in international legal protection may either be a matter of filling in what are presumably inadvertent holes or suggesting ways in which the current legal protections could be improved. The first is less likely to encounter political opposition than the second. It is often difficult to distinguish between the two. If practical considerations are not taken into account, suggestions for improvements will be a waste of time. If they are, proposals may be so relatively trivial as to make no real inroads on actual needs. These proposals attempt to strike a balance between these two extremes.
As to applicability of IHL and HRsL, there is a gap in the lack of official pronouncements on the relationship between the derogation threshold in HRsL and the various thresholds in IHL. This should be left to independent human rights bodies to fill, on the grounds that they are more likely to adopt an intellectually coherent solution than are States. The bottom line should be that where a State has derogated or could derogate from IHRsL, then as a minimum common Article 3 of the Geneva Conventions is applicable.
In the case of the conduct of hostilities, there is a pressing need to address the problem of child combatants. This does not represent a gap but a clash of different values. It may be worth exploring whether there is any possibility of getting accepted an analysis of proportionality which takes into account particularly severe consequences for one group of civilians, in this case children.
In relation to children as victims of conflict, two subjects might usefully be considered. The first is medical. The system for medical evacuation for treatment of wounded or sick children from Bosnia-Herzegovina appeared, from media coverage, to be arbitrary, bureaucratic and overly dependent upon that media coverage. Any system may involve co-operation and co-ordination between WHO, UNICEF, UNHCR, ICRC, peacekeeping forces and local medical practitioners. These organisations need to develop a system that is as flexible and unbureaucratic as possible. In many cases, speed is vital. A child who is eventually evacuated may be less likely to receive the full benefit of treatment and to make a complete recovery, on account of the delay. If the problem lies with potential receiving States, general arrangements need to be put in place, using the good offices of the national Red Cress/Crescent and/or Save the Children Fund.
A second medical issue concerns the maintenance of the health of children. ‘Days of tranquillity’ for vaccinations to be carried out have the potential for making a very significant contribution. Whilst any particular arrangement is necessarily ad hoc and dependent not merely on the consent but also the co-operation of the fighting parties, model agreements could be designed and kept ready for use. There needs to be agreement as to which agency does what in relation to such an activity. Initially, parties to a conflict probably need to be approached confidentially. In certain circumstances, however, it might be useful to involve the media, so as to secure the pressure of international public opinion.
The second subject concerns the role of education, in the broadest sense, to mitigate the effects of a conflict and to assist in rehabilitation. Schools cannot be the target of attack and educational materials are not military objectives. Nevertheless, it may be appropriate to investigate the possibility of even greater protection, such as that enjoyed by medical facilities and medical equipment. If children can receive some form of education throughout the conflict, this might reduce the chances of their becoming participants or of their being injured whilst playing and might assist post war reconstruction by avoiding illiteracy. Helping children to work through their experiences might reduce psycho-social problems and the incidence of post traumatic stress disorder. To this end, educational materials should be regarded as essential to the survival of the civilian population and a vital element in relief. They should be defined broadly so as to include not merely books and writing materials but also paper, paints, crayons and musical instruments. This suggests that any standing arrangements for co-operation between specialised agencies and NGOs in the field of relief should include UNESCO. It would be possible to envisage giving teachers a specially protected status like that of medical personnel, on condition that they did not carry out activities incompatible with that status. In that case, it might also be possible to envisage the ‘recycling’ of detained teachers in much the same way as medical personnel.
As far as the conduct of armed forces is concerned, an apparent gap is the uncertainty as to the norms applicable to ‘Wider Peacekeeping’ and peace enforcement operations of peacekeeping forces. They may drift in and out of localised but intense outbreaks of fighting. Rather than arguing about the applicability of some or all of IHL to such operations, it may be more satisfactory to draft a code of conduct based on IHL but tailor-made for those situations.
When it comes to monitoring compliance with IHL commitments, three gaps may be discerned. First, independent human rights monitoring bodies should systematically require States to report on matters relating to respect for IHL. That includes reporting on implementation and dissemination of IHL, reporting on respect for non-derogable human rights law in situations of conflict and reporting on how compliance in ensured on the part of peacekeeping forces. The monitoring bodies can invoke non-derogable human rights law and also the provision requiring that human rights commitments be interpreted in conformity with other applicable treaty obligations. The bodies most obviously concerned are the Committee on the Rights of the Child and the Human Rights Committee under the International Covenant on Civil and Political rights.
The second gap is in the field of implementation and dissemination. States should be required to report to a monitoring body on implementation and dissemination of IHL, including dissemination to the civilian population. The body could function in a similar way to human rights monitoring bodies which receive reports on which States are questioned. Regrettably, in the light of the deliberations of the Conference on the Protection of War Victims, the proposal would appear to be unrealistic.
The third suggestion may be even more unrealistic. The International Fact Finding Commission, established under article 90 of Protocol I, has jurisdiction to enquire into alleged serious violations of the Geneva Conventions and Protocol I. It has indicated its willingness, with the agreement of the Parties, to investigate such allegations in non-international conflicts. Consideration should be given to supplementing Protocol II by an optional provision. That would authorise the IFFC to exercise its jurisdiction in such conflicts either, preferably, by virtue of acceptance of the provision or else upon request. The issue of whether a non State party to a conflict could make such a request would need to be addressed, given the field of application of Protocol II. In order to encourage acceptance of such a provision, and of its predecessor in Protocol I, States could consider adopting a rule that arms transfers can only lawfully be made to a State having accepted the jurisdiction of the IFFC under Protocol I and under the addition to Protocol II being suggested here. Experience suggests that, however keen Western European and North American States are on effective and independent fact finding, they are not sufficiently keen as to jeopardise arms sales. It should also be noted that the International Fact-Finding Commission has never been called upon to exercise its jurisdiction, even under Protocol I.
10 REPRESSION OF BREACHES OF IHL COMMITTED BY CHILDREN UNDER 18
IHL defines different categories of violations of its rules. ‘Grave breaches’ are defined in each of the four Geneva Conventions. They are formulated in terms of the persons protected by the particular Convention, which has the effect of confining the concept to international armed conflicts. Protocol I adds to the list of ‘grave breaches’. The offences are crimes of universal and mandatory jurisdiction. That is to say that States are obliged to prosecute alleged perpetrators, irrespective of nationality or the place of the offence. This means that they must ensure that their courts have jurisdiction to try the offences on that jurisdictional basis. The second category of breaches, which is not defined, is serious violations of the Geneva Conventions and Protocol I. They come within the jurisdiction of the IFFC. Then there are other breaches of the Geneva Conventions and Protocols and violations of the laws and customs of war. States are obliged to "take measures necessary for the suppression of all acts contrary to the provisions [of the Geneva Conventions] other than... grave breaches". This does not define the jurisdictional basis on which States are to act. If the actions in question are offences of universal jurisdiction, the exercise of the jurisdiction appears to be permissive rather than mandatory. States do not need to ensure that their courts have jurisdiction to try offences on that basis provided that they satisfy their obligation in some other way. Following the judgment on jurisdiction of the Appeal Chamber of the Ad Hoc War Crimes Tribunal for the former Yugoslavia in the Tadic case, it would appear that conduct which results in violations of common Article 3 constitutes an offence of universal jurisdiction.
IHL makes very limited provision for the conduct of proceedings in which it is alleged the defendant violated IHL. There are limited provisions on legal proceedings involving PWs and internees and a more general provision, in Article 75 of Protocol I, giving certain minimum due process guarantees. A more restricted range of due process guarantees also apply to penal prosecutions in situations of high intensity non-international conflict. Those rules contain no special provisions regarding children, beyond the prohibition on passing a death sentence on a person who was under eighteen years of age at the time of the commission of the offence (see further 10.2.3).
In these circumstances, guidance as to the applicable due process guarantees in the case of proceedings against child defendants needs to be sought in HRsL. The norms applicable may vary, depending on whether the State has derogated from the usual scope of those obligations and, if so, with what effect.
Criminal proceedings against child defendants charged with violations of IHL do need to take into account certain special features arising out of the exceptional situation and the exceptional nature of the charges.
The first problem concerns whether there should be a universal rule for the age of criminal responsibility. One of the arguments of those opposed to a prohibition on the participation of children in conflict is that young people mature at different ages in different cultures.
It may be that two different thresholds for criminal responsibility are appropriate. The first would be an age below which a child would not be held responsible in any circumstances. The second would be an age below which the child might be held responsible but only if the child knew the conduct to be wrong. Thereafter, a person will be held responsible, whether or not he/she knew the conduct to be wrong. The second category gives rise to particular problems in the case of violations of IHL, on account of the gravity of the offences and the extraordinary context in which they are perpetrated. Whilst normally one might expect a child to know that murder is wrong, the context might mean that the child did not regard a killing as murder or that the child had been so manipulated by propaganda or by collective hysteria as to think the killing right or even necessary. Such a claim might normally be dismissed but the orgy of killing in Rwanda suggests that there may be some force to it. Even in more localised instances of extraordinary brutality, such as happened in Mozambique and Angola, the participation of children in the killing of family members may suggest that they had ceased to see it as wrong. This represents a major policy dilemma. The vulnerability to manipulation of a child’s half-formed notions of right and wrong make children useful tools in the hands of unscrupulous forces. To hold that the child is not criminally responsible in effect endorses such manipulation. Just as an adult can be convicted for breaking a law even though the individual did not believe it to be wrong, it may be that there are offences of such gravity that a child should be convicted where the particular child did not believe the conduct to be wrong but the majority of children of that age and from that background would so have regarded it. It must be emphasised that this concerns only the age of criminal responsibility and not the applicability of defences, such as self defence . It may be that the appropriate solution is to hold a child responsible where the majority of children would think the action wrong but for the fact that the particular child’s moral development was disturbed in some way to be taken into account in determining the appropriate punishment.
There is a considerate body of literature on juvenile justice but not in the context of war crimes proceedings.
The function of proceedings for violation of IHL is to punish alleged perpetrators, providing a deterrent to other would-be perpetrators in the process. In the case of child defendants, if punishment is thought necessary and appropriate, it should also be accompanied by rehabilitation. This will be particularly important where the child’s experience during the conflict has led to the distortion or destruction of his/her sense of right and wrong. Since (re)gaining a sense of moral responsibility will be accompanied by a realisation of the enormity of what the child has done, rehabilitation may need to be handled by specially trained personnel.
Whilst the full range of normal defences will be open to a defendant in proceedings for violations of IHL, the issue of the alleged defence of superior orders is obviously of particular relevance in war crimes proceedings. The war crimes trials conducted not only at Nuremberg but elsewhere in Germany after World War II established that superior orders are not as such a defence but may be pleaded in mitigation.
What matters is whether, in the circumstances, the defendant had a moral choice. This assumes that the defendant is an autonomous moral actor. Children, for reasons discussed at 10.1, may not have developed into autonomous moral actors before the conflict or may have been so manipulated as not to be able to distinguish between right and wrong. It is suggested that the same solution should be adopted in this context as in relation to the age of criminal responsibility. If a child of that age and background would, in the circumstances, have had a moral choice, the particular child should not be able to rely on this as a defence. It may be relevant in mitigation.
A further argument may concern the reaction of a child to the order of an adult. It might be claimed that a child is trained in obedience "to his elders and betters" and that, for this reason the child should be able to rely on the defence. Soldiers are also trained to obey orders but even they are expected not to comply with patently unlawful orders. A child should not be able to rely on the defence where most children of a similar age and background would believe the order to be wrong. Again, this is more appropriately dealt with at the level of mitigation of sentence.
The Geneva Conventions of 1949 specifically prohibited the pronouncing of a sentence of death against a protected person who was under eighteen years of age at the time of the commission of the offence. This applied only to proceedings under Geneva Convention IV. In particular, there was no equivalent provision in relation to proceedings against prisoners of war.
The 1977 Protocols extend the scope of that provision but in different ways. Protocol I prohibits the execution, but not the pronouncement, of the death penalty on those under eighteen at the time of the commission of the offence, in the context of Article 77 on the protection of children. It does not form part of the due process fundamental guarantees in Article 75. Under those guarantees however, nothing in the Article "may be construed as limiting or infringing any other more favourable provision granting greater protection, under any applicable rules of international law...". This may enable the defendant to invoke the human rights obligations of the detaining power if it has accepted an obligation not to use the death penalty, even in time of war.
In Protocol II, the equivalent provision forms part of the due process guarantees in Article 6. It prohibits pronouncing the death penalty, and not merely executing it, on those who were under the age of eighteen at the time of the commission of the offence.
In situations only coming within common Article 3, there is no mention made of an age limit to the imposition of the death penalty. The only due process requirement is that "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples" is prohibited.
IHL contains no provisions on appropriate sentences or other types of punishment.
In a post conflict situation, there is likely to be a need for a wide range of rehabilitative counselling services. Rehabilitation is also part of the criminal law process. General post conflict rehabilitation and rehabilitation as part of the criminal process may be different in emphasis. Where there is a need for both, this may require the modification of each to some degree. There may be a need for trained personnel on a scale which the local community cannot hope to provide. Where possible, it may be preferable to train local personnel rather than for foreigners to attempt to carry out such rehabilitation.
Recommendations for action to improve the protection of children in situations of armed conflict fall into two categories. The first consists of modest changes likely to have only limited impact in relation to the scale of the need. The second category recognises the most important problem, respect for existing rules in practice, but the recommendations are less likely to lead to effective action.
A Recommended changes and developments
Requiring legal changes and developments
linking the derogation threshold in HRsL and the thresholds in IHL
defining proportionality so as to include not merely the impact on civilians generally but any specific impact on children
requiring weapon use to take into account not only military but also humanitarian considerations, including the impact of the weapon on children
continuing to work to prohibit direct or indirect participation in armed conflicts by persons under eighteen years of age
investigating the possibility of providing special protection for teachers and educational materials
drawing up code of conduct for peace-keeping forces in the variety of situations which they may face, based here appropriate on IHL
carrying out a study by experts to establish the customary law on the conduct of hostilities, including in non-international conflicts
Requiring administrative changes and developments
creating straightforward, not unduly bureaucratic procedures for the medical evacuation of wounded and sick children
creating model agreements for ‘days of tranquillity’ or ‘corridors of peace’ for the vaccination of children and the delivery of relief for children
the systematic calling of states to account by human rights monitoring mechanisms for the implementation, dissemination, respect and enforcement of IHL, in the context of ensuring protection for human rights in conformity with their other international legal obligations
B Recommendations with regard to existing legal obligations
creating an international task-force, comprised inter alia of the representatives of relevant IGOs and NGOs, including the ICRC, to ‘shadow’ the work of the Conference for the Protection of War Victims. The purpose of the task-force is to mobilise international public opinion to create the political will on the part of States to
make effective use of human rights monitoring mechanisms as an early warning indicator of likely conflicts;
provide for automatic and independent investigations of allegations of violations of IHL, in both international and non-international conflicts;
ensure that such an investigative mechanism is used, by providing that it may act upon receipt of well-attested allegations from IGOs and NGOs;
accept an obligation to report on implementation, dissemination and enforcement of IHL to an independent monitoring body established for that purpose;
establish a properly resourced permanent, international war crimes tribunal, with jurisdiction over violations of IHL in international or non-international conflicts, crimes against humanity and genocide;
make those offences crimes of universal and mandatory jurisdiction;
enable criminal proceedings to be instituted in national courts by anyone who establishes a prima facie case against the alleged perpetrator of such an offence;
impose effective sanctions by UN resolution or the resolutions of other appropriate organisations on States which refuse to co-operate in seeking out and surrendering those indicted by the international war crimes tribunal, unless they conduct an internationally monitored trial themselves;
ensure acceptance of an international agreement prohibiting arms transfers to any State not accepting and complying with the fact-finding and enforcement regime outlined above.
Whilst new rules would improve the protection of children in situations of armed conflict, what would make the biggest contribution to improved protection is the enforcement of the existing rules. They are a matter of legal obligation. The necessary tools exist now for enforcing those rules internationally or putting pressure on States to enforce those rules within their own jurisdiction. What is lacking is the political will to use those tools. Children are being killed and wounded and are dying as a result of the failure of States to use the means at their disposal to ensure the effective enforcement of international humanitarian law.
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