Select Committee on International Development Minutes of Evidence



  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.


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).


  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).


  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).


  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 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 Back

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