Abstract
Today, with around 250 million children living in situations of armed conflict, protecting children in conflicts is a major challenge for international children’s law and its implementation. This chapter examines the international legal provisions that protect children during armed conflict found in two separate but complementary legal regimes: international human rights law and international humanitarian law. It reviews the general legal protections given to children during conflict, notably their access to supplies vital for their physical and mental well-being (such as medical care, food, and clothing) and their access to activities essential for their development, particularly education. It also examines how international law protects children from participating in armed conflicts: it analyzes the prohibition of their recruitment and use in hostilities and also reviews how children arrested or detained must be treated. The chapter concludes with a brief overview of how the protection of children in armed conflict has become a major international issue over the last decades, notably within the UN system.
The views expressed in this chapter are those of the author and do not necessarily represent the views of, and should not be attributed to, the United Nations.
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Notes
- 1.
Some 17 million were displaced by violence and conflict within their own countries (UNICEF 2016c: 7, 18). This chapter does not deal with displacement and refugees issues as they are substantially covered elsewhere in this publication.
- 2.
In its previous decisions, the International Court of Justice (ICJ) stated that protections offered by human rights conventions do not cease in times of war, except by operation of the Article 4 provisions on derogations of the International Covenant on Civil and Political Rights (ICJ 1996: 239–240 paras. 24–25, 2004: 178 para. 106). The applicability of IHRL in situations in armed conflicts was also confirmed by the ICJ in the Case Concerning Armed Activities on the Territory of the Congo (ICJ 2005: 239–245 paras. 205–221). However, no derogations are allowed under IHL, except for a few exceptions (The Fourth Geneva Convention (1949), Article 5). See also Heintze (2004); Murray (2016: 82 para. 4.09).
- 3.
Some are of the view that, during armed conflicts, international humanitarian law is the applicable lex specialis, displacing international human rights law. However, a more generally held view is that international human rights law continues to apply during armed conflict, subject to applicable derogations: see footnote 2
- 4.
See also footnote 2.
- 5.
International armed conflicts are conflicts that involve at least two States (ICRC 2003: p. 1). They are subject to a wide range of rules, including those set out in the four Geneva Conventions and Additional Protocol I. While the precise definition of a non-international armed conflict is debated; the International Criminal Tribunal for the former Yugoslavia provides this definition, qualifying it as “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State” (ICTY 1995: para. 70). A more limited range of rules apply to internal armed conflicts and are laid down in Article 3 common to the four Geneva Conventions as well as in Additional Protocol II (ICRC, Advisory Service on International Humanitarian Law, p. 1).
- 6.
Like IHRL, IHL generally prohibits the imposition of the death penalty on children who were under 18 years of age at the time of the offence (Geneva Convention IV Article 68; AP II Article 6(4)). Additional Protocol I prohibits the execution of the death penalty for an offense related to the armed conflict on persons who had not attained the age of 18 at the time of the offense (AP I: Art. 77(5)).
- 7.
For example, the explicit requirements of Article 37(b) of the Convention on the Rights of the Child that require States to detain children only as a last resort and for the shortest appropriate period of time are not contained in IHL
- 8.
Pejic (2005: 377): “Even though internment in international armed conflicts is regulated by the Fourth Geneva Convention and Additional Protocol I, these treaties do not sufficiently elaborate on the procedural rights of internees, nor do they specify the details of the legal framework that a detaining authority must implement. In non-international armed conflicts there is even less clarity as to how administrative detention is to be organized.”
- 9.
See also Henckaerts and Doswald-Beck ICRC (2005): Rule 120: “Children who are deprived of their liberty must be held in quarters separate from those of adults, except where families are accommodated as family units.”
- 10.
Protections during non-international armed conflicts are usually less elaborated than those applicable during international armed conflicts because States have unusually been more reluctant to develop an international legal framework which could curb their capacity to deal with what they perceive to be internal matters (Sassòli et al. 2011: Part I, Chapter 12, p. 1).
- 11.
The right to education, enshrined in Art. 26(1) of the Universal Declaration of Human Rights, is also found in key international human rights treaties, including Art. 13 of the International Covenant on Economic, Social, and Cultural Rights and in Article 28 of the CRC. The Geneva Conventions and their Additional Protocols also contain several provisions protecting children’s right to education during armed conflict, including for certain particularly vulnerable children, namely, those orphaned or separated from their families (Art. 94 GCIV), interned children and young people (Art. 78(2) AP), and evacuated children (Art. 78(2) AP I). These IHL treaties also provide for an occupying power’s obligation to facilitate the proper functioning of educational institutions during military occupation (Art. 78(2) AP I). Education is also guaranteed during non-international armed conflicts, as parties must ensure that children receive the care and aid they require, including education (Art. 4(3) (a) AP II).
- 12.
Article 56 of the Hague Regulations of 1899 and 1907 also prohibits “all seizure of, and destruction, or intentional damage done to” certain institutions including those dedicated to education.
- 13.
AP I is exclusively applicable in situations of international armed conflicts, which are characterized by an armed conflict between two and more States Parties or by a situation of occupation (Common Art. 2 GC) or by an armed conflict in which peoples are fighting against colonial domination, alien occupation, or racist regimes in the exercise of their right of self-determination (Article 1(4) AP I).
- 14.
Since 1998, Child Soldiers International (formerly known as the Coalition to Stop the Use of Child Soldiers), a coalition that includes both human rights and humanitarian organizations, has been working to establish 18 as the minimum age for military recruitment in all countries worldwide as a part of their “Straight 18” campaign (Becker 2014: 598; Child Soldiers International). The Special Representative for the Secretary-General for Children and Armed Conflict launched a “Zero Under Eighteen” campaign in 2012 to promote universal ratification of OPAC (Coomaraswamy 2010).
- 15.
See Aptel (2014). In 2007, SCSL convicted former leaders of the Sierra Leonean Armed Forces Revolutionary Council and a leader of the Civil Defense Forces for conscripting children under 15 into armed groups and forces or using them to participate actively in hostilities (the conviction of the Civil Defense Forces’ leader was later overturned on appeal) (Judgment, Brima, Kamara, and Kanu (AFRC) (SCSL-04–16-T), Trial Chamber II (June 20, 2007); Judgment, Fofana and Kondewa (CDF) (SCSL-04–14-T), Trial Chamber I (Aug. 2, 2007); Judgment, Brima, Kamara, and Kanu (AFRC) (SCSL-2004–16-A), Appeals Chamber (Feb. 22, 2008); Judgment, Fofana and Kondewa (CDF) (SCSL-04–14-A), Appeals Chamber (May 28, 2008), paras. 139–146). In 2009, two prominent Revolutionary United Front leaders were also convicted for the crime (affirmed on appeal) (Judgment, Sesay, Kallon, and Gbao (RUF) (SCSL-04–15-T), Trial Chamber I (Feb. 25, 2009), paras. 2223–2234; Judgment, Sesay, Kallon, and Gbao (RUF) (SCSL-04–15-A), Appeals Chamber (Oct. 26, 2009)). In 2012, the SCSL convicted Charles Taylor, the former Liberian president, for the same crime (affirmed on appeal) (Judgment, Sesay, Kallon, and Gbao (RUF) (SCSL-04–15-T), Trial Chamber I (Feb. 25, 2009). paras. 2223–2234; Judgment, Sesay, Kallon, and Gbao (RUF) (SCSL-04–15-A), Appeals Chamber (Oct. 26, 2009)).
- 16.
The Chamber stated that the term “does not have to be given the same interpretation as the terms active or direct participation in the context of the principle of distinction between combatants and civilians, as set out, in particular, in Common Article 3 of the Geneva Conventions” (ICC 2014: para. 324). In the earlier decision by the Trial Chamber, the majority similarly stated that the expression “to participate actively in hostilities,” as opposed to the expression “direct participation” used in the Additional Protocol I to the Geneva Conventions, was intended to include a wide range of activities (ICC 2012a: para. 627). The Judgment stated that “those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants” (ICC 2012a: para. 628). However, although the Trial Chamber concluded that “girls under the age of 15 were used for domestic work, in addition to the other tasks they carried out as UPC/FPLC soldiers,” it did not equal to use to participate actively in hostilities (ICC 2012a: paras 878–882, 915).
- 17.
The existence of such a link, according to the Appeals Chamber, shall be made on a case-by-case basis, along with the guidance of the lists of activities set out in the ICRC commentary on the Additional Protocols and in the Preparatory Committee’s Draft Statute (ICC 2014: para 335).
- 18.
“UNAMI/OHCHR has received numerous reports alleging that ISIL and some associated armed groups are actively recruiting children as young as 13 as fighters” (UNAMI and OHCHR 2014: 17–18).
- 19.
The annexes were originally mandated by the Res. 1379 (2001), para. 16. The Working Group’s mandate also includes reviewing progress in the development and implementation of action plans. The mandate also includes making recommendations to the Council on possible measures to promote the protection of children affected by armed conflict and addressing requests to other bodies within the United Nations system for action to support implementation of Resolution 1612 (2005) within their respective mandates. (United Nations Security Council Subsidiary Organs, Working Group on Children in Armed Conflict https://www.un.org/sc/suborg/en/subsidiary/wgcaac. See UN Security Council 2004: para. 5(a), 2005a: paras. 7 and 8.). The Working Group comprises all 15 members of the Security Council and makes its decisions by consensus (https://www.un.org/sc/suborg/en/subsidiary/wgcaac).
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Aptel, C. (2018). The Protection of Children in Armed Conflicts. In: Kilkelly, U., Liefaard, T. (eds) International Human Rights of Children. International Human Rights. Springer, Singapore. https://doi.org/10.1007/978-981-10-3182-3_17-2
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