Appendix
AN OVERVIEW
OF INTERNATIONAL
LEGAL PROTECTION
OF CHILDREN
IN ARMED
CONFLICT
International humanitarian law and human rights
law provide clear protection for children. In the event of armed
conflict, either international or non-international, children
benefit from the general protection provided for civilians
not taking part in the hostilities. Non-combatant civilians are
guaranteed humane treatment and are covered by the legal provisions
on the conduct of hostilities. Given the particular vulnerability
of children, the Geneva Conventions of 1949 (GCIII and GCIV) and
their Additional Protocols of 1977 (API and APII) lay down a series
of rules according them special protection. Children who
take direct part in hostilities do not lose that special protection.
These Additional Protocols, plus the 1989 UN Convention on the
Rights of the Child an its recent Optional Protocol, in particular,
also set tight consultants on children's participation in hostilities.
HUMANITARIAN LAW[28]
General Protection
In the event of an international armed conflict,
children not taking part in the hostilities are protected by GCIV
relative to the protection of civilians and by API. They are covered
by the fundamental guarantees that these treaties provide, in
particular the right to life, the prohibitions on coercion, corporal
punishment, torture, collective punishment and reprisals (Art
27-34 GCIV and Art 75 API) and by the rules of API on the conduct
of hostilities, including both the principle that a distinction
must be made between civilians and combatants and the prohibition
on attacks against civilians (Art 48 and 51).
In the event of non-international armed conflict,
children are also covered by the fundamental guarantees for persons
not taking direct part in the hostilities (Art 3 common to the
GC and Art 4 APII). They are further protected by the principle
that "the civilian population as such, as well as individual
civilians, shall not be the object of attack" (Art 13
APII).
Special Protection
GCIV guarantees special care for children, but
it is API that lays down the principle of special protection:
"Children shall be the object of special respect and shall
be protected against any form of indecent assault. The Parties
to the conflict shall provide them with the care and aid they
require, whether because of their age or for any other reason"
(Art 77). This principle also applies to non-international armed
conflict (Art 4, para 3 APII).
Participation in Hostilities Protocols
The 1977 Additional Protocols
Participation by children in armed hostilities
occurs too frequently. This involvement, often instigated and/or
coerced by adults, may range from aiding combatants (bringing
them weapons and munitions, carrying out reconnaissance missions,
etc) to the actual recruitment of children as combatants in national
armed forces and other armed groups. The 1977 Additional Protocols
were the first international treaties to cover such situations.
Thus, API obliges States to take all feasible measures to prevent
children under 15 from taking direct part in hostilities. It expressly
prohibits their recruitment into the armed forces an encourages
Parties to give priority in recruiting among those aged from 15
to 18 to the oldest (Art 77). APII goes further, prohibiting both
the recruitment and the participation—direct or indirect—in
hostilities by children under 15 years of age (Art 4, para 3c).
Despite the above-mentioned rules, children
who take direct part in international armed conflict are recognised
as combatants and in the event of their capture are entitled to
prisoner-of-war status under GCIII. The Additional Protocols provide
that child combatants under 15 are entitled to privileged treatment
in that they continue to benefit from the special protection accorded
to children by international humanitarian law (Art 77, para 3
API and Art 4, para 3d APII).
THE 1989 CONVENTION
ON THE
RIGHTS OF
THE CHILD
This treaty, which has been almost universally
ratified, covers all the fundamental rights of the child. Article
38 extends the field of application of Art 77 API to non-international
conflict. Article 38 also prohibits the recruitment of children
under 15 years of age and urges that any recruitment of older
children should prioritise the oldest children (para 3). It thus
falls short of the ban on direct or indirect participation laid
down by APII. Article 38 further states that "States Parties
shall take all feasible measures to ensure protection and care
of children who are affected by an armed conflict" (para
4).
OPTIONAL PROTOCOL
TO THE
CONVENTION ON
THE RIGHTS
OF THE
CHILD
The Optional Protocol on the involvement of
children in armed conflict, adopted on 25 May 2000, generally
strengthens protection for children in armed conflict:
— the States Parties must take all
feasible measures to ensure that members of their armed forces
who have not reached the age of 18 years do not take direct part
in hostilities (Art 1);
— compulsory recruitment into the
armed forces of persons under 18 years of age is prohibited
(Art 2);
— the States Parties shall raise
the minimum age for voluntary recruitment from 15 years. This
rule does not apply to military academics (Art 3);
— armed groups distinct from the
national armed forces should not, under any circumstances, recruit
(whether on a compulsory or voluntary basis) or use in hostilities
persons under the age of 18 years, and the States Parties must
take legal measures to prohibit and criminalise such practices
(Art 4).
REFUGEE CHILDREN
The Convention relating to the Status of
Refugees (1951 Refugee Convention) defines refugees as persons
who are outside the country of their nationality or residence;
who have a well-founded fear of persecution for reasons of race,
religion, nationality, membership of a particular social group
or political opinion, and are thus unable, or unwilling to avail
themselves of the protection of that country, or are stateless
and unable or unwilling to return to their country of habitual
residence because of fear of persecution. Any person who has committed
a crime against peace, a war crime, or a crime against humanity
or serious non political crime outside the country of refuge prior
to admission as a refugee is precluded from claiming refugee status.
A key principle of refugee law is the right
of every refugee to be protected against forcible return, or refoulement,
to the territory from which he/she had fled. The closure of borders
and the refusal of entry to refugees is tantamount to refoulement.
It is widely accepted that the prohibition of
non-refoulement is part of customary international law. That means
that all States must respect the principle of non-refoulement,
even if they are not party to the 1951 Refugee Convention. By
granting asylum to a refugee, a country accepts its obligations
to protect the refugee against refoulement, to respect and safeguard
the refugee's human rights and to allow the refugee to remain
in its territory until a durable solution is found.
The 1951 Refugee Convention requires states
to accord refugees certain rights including the right not to be
discriminated against, the right to practice their religion and
the right of access to a court. The right to education in Article
22 is of particular importance to refugee children:
— The Contracting States shall accord
to refugees the same treatment as is accorded to nationals with
respect to elementary education (para 1);
— The Contracting states shall accord
to refugees treatment as favourable as possible, and, in any event,
not less favourable than that accorded to aliens generally in
the same circumstances, with respect to education other than elementary
education and, in particular, as regards access to studies, the
recognition of foreign school certificates, diplomas and degrees,
the remission of fees and charges and the award of scholarships
(para 2)
The Convention on the Rights of the Child
(Art 22) requires states to provide appropriate protection and
humanitarian assistance to refugee children:
— States Parties shall take appropriate
measures to ensure that a child who is seeking refugee status
or who is considered a refugee in accordance with applicable international
or domestic law and procedures shall, whether unaccompanied or
accompanied by his or her parents or by any other person, receive
appropriate protection and humanitarian assistance in the enjoyment
of applicable rights set forth in the present Convention and in
other international human rights or humanitarian instruments to
which the said States are Parties.
The CRC also requires states to co-operate with
the UN and NGOs to protect and assist a refugee child and for
the purpose of tracing the parents or other members of the family
of any refugee child. States are also required to provide children
separated from their parents or families "the stamp protection
as any other child permanently or temporarily deprived of his
or her family environment for any reason".
SECURITY COUNCIL
RESOLUTIONS 1261 & 1314
Security Council Resolution 1261, passed
on 25 August 1999, established that safe-guarding the protection,
rights and welfare of war-affected children everywhere is a crucial
peace and security concern that legitimately belongs on the agenda
of the Security Council.
The resolution urges all members states and
all parties of the UN system to intensify their efforts to ensure
an end to the recruitment and use of under-age combatants, as
well as facilitating the disarmament, demobilisation, rehabilitation
and reintegration of children already being used as soldiers.
In addition, it urges all warring parties to take "special
measures" to protect children, particularly girls, from rape
and other forms for sexual abuse.
Because children suffer disproportionately in
war, they have greatest stake in peace negotiations. With this
in mind, Resolution 1261 urges that appropriate priority be placed
during such negotiations on the protection and rehabilitation
of children. It also calls for agencies, organisations and Governments
implementing post-conflict reconstruction programmes to place
children's needs at the centre of planning and resource allocation.
Resolution 1261 also recognises the damaging
impact of the proliferation and cross-border flow of small arms
on the security of vulnerable populations, particularly children.
Resolution 1314 passed on 11 August 2000,
specifies a range of targeted and new measures for the protection
of children in conflict. Resolution 1314 emphasises the responsibility
of all countries to exclude from amnesty arrangements anyone responsible
for grave crimes against children. It calls for measures against
the illicit trade in natural resources such as diamonds, which
fuel war machines and contribute to the massive victimisation
of children.
The resolution calls for greater protection
and assistance to refugees and internally displaced persons—most
of whom are children and women—and stresses the importance
of addressing the special needs and vulnerabilities of girls affected
by armed conflict. It also calls for intensified efforts to obtain
the release of abducted children.
Resolution 1314 pays particular attention to
regional organisations; it encourages increased regional and cross-border
initiatives on child soldiers and the illicit traffic in small
arms, as well as the systematic development of child protection
policies and programmes. It also calls for the strengthening of
capacities of national institutions and civil society for the
protection of children.
28 This section is taken from "Legal Protection
of Children in Armed Conflict", 6 February 2001, International
Committee of the Red Cross, available at www.icrc.org. Back
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