Protecting Children in Armed Conflict

April 17, 2019
Protecting Children in Armed Conflict
Richard Burchill
Richard Burchill Director of Research & Engagement at TRENDS Research & Advisory

The UN has launched a new advocacy campaign ACT to Protect Children Affected by Conflict.  The purpose of this campaign is to further raise awareness of the issues involved with children affected by conflict.  At present there exists a range of legal and political initiatives that seek to protect children during conflict but adherence to obligations and principles is lacking.  The impact of armed conflict on children is well recognised however there is not enough being done on the ground to ensure standards are adhered to by all parties to a conflict.  Virginia Gamba, the UN Secretary General’s Special Representative for Children and Armed Conflict said at the launch of ACT to Protect “[w]ith more children suffering horrific abuses in war zones across the globe, we desperately need to reinvigorate our efforts to raise awareness”.  The ACT to Protect campaign highlights six areas where children are adversely impacted by conflict.  These are – recruitment and use in conflict; killing and maiming in the course of hostilities; sexual violence and forced marriage; attacks against schools and hospitals; abduction; and denial of humanitarian access.  These are the six “grave violations” of human rights and humanitarian law against children that are the focus of the Special Representative’s mandate.

As discussed below there exists a range of international legal obligations ensuring children are adequately protected and that their human rights are respected during armed conflict.  These date back to the 1949 Geneva Conventions and commitments and have been reinforced and expanded through the Convention on the Rights of the Child (1989) and the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2000).  In spite of the existing legal regime the instances of grave violations involving children in armed conflict are, unfortunately, increasing.  In 2016 there were 15,500 cases of grave violations against children verified by the UN.  In 2017 the number increased to 21,000, and in 2018 the continuance of grave violations showed no signs of decreasing (2018 report).  Responsibility for grave violations against children is widespread with governments, militias, and armed non-state actors all implicated in responsibility across the six grave violations.

Efforts to ensure awareness of the legal obligations upon parties to an armed conflict have not been lacking.  The Special Representative referred to three specific political initiatives that seek to ensure protection of children in armed conflict-the UNICEF Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, the Safe Schools Declaration and the Vancouver Principles on Peacekeeping and Preventing the Recruitment and Use of Child Soldiers.  These initiatives have been state led and have resulted in detailed guidelines regarding action to be taken to protect children during armed conflict as part of existing legal obligations.  The initiatives represent an important step in raising the level of political commitment of states and armed non-state actors for ensuring children are effectively protected in conflict.

The protection of children in armed conflict begins with the Four Geneva Conventions of 1949.  These conventions seek to mitigate the impact of violence in war, in particular with regard to vulnerable categories of persons – the sick, wounded, prisoners of war, etc.  Geneva Convention IV of 1949 directly addresses the protection of civilians in time of war.  The overall purpose of the treaty is that civilians, as non-combatants are not to be considered military targets and all measures are to be taken to respect this.  With respect to children Convention IV requires states parties to ensure children who are separated from their families are “not left to their own resources” and that measures are taken for ensuring their maintenance, religion and education are facilitated.  In situations of occupation during armed conflict, article 50 of Geneva Convention IV provides that the “institutions devoted to the care and education of children” are to be maintained.

These measures were furthered strengthened in international humanitarian law with the two Additional Protocols to the Geneva Conventions adopted in 1977.  Protocol 1 relating to the Protection of Victims of International Armed Conflicts specifically identifies the Protection of Children in Article 77.  This provision holds that 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.”  It also requires all adequate action is taken to ensure children under the age of 15 are not part of the armed forces or used by armed groups. Additional Protocol II on the Protection of Victims of Non-International Armed Conflicts includes in Article 4 on humane treatment that children “shall be provided with the care and aid they require”, with a particular emphasis on receiving education during conflict.  The article also covers not using children in the conduct of military operations and ensuring matters of family reunion or the removal of children from places of hostilities adequately respect the needs of children.

The Geneva Conventions clearly protect children during conflict, ensuring that children are not legitimate military targets and should not be participating in hostilities.  Furthermore, they require due care and attention to be given to the needs of children as a vulnerable group in conflicts.  One area of concern in the Geneva Conventions is the age of children subject to protection regarding the participation in hostilities, which is children under 15 years old.  However, later developments have developed a position where children under the of 18 should not be recruited or compelled to participate in hostilities.  At the same time, the age limit set in the Geneva Conventions for participation in hostilities continues to be the applicable standard in international humanitarian law.

The Convention on the Rights of the Child (CRC), entered into force in 1990 providing a comprehensive framework of ensuring respect for the human rights of children. The CRC is applicable both in peacetime and during conflict as the CRC does not have a derogation provision as other human treaties do, meaning that the obligations upon States are applicable in times of war, conflict and other emergencies.  The extensive ratification of the CRC, currently 196 States, creates a global consensus that the human rights of children are to be respected at all times.

The CRC also addresses armed conflict and children.  In Article 38 the CRC calls on States Parties “to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.”  Even though the CRC framework extends protection to all individuals under the age of 18, it defers to the Geneva Conventions regarding a child’s age for participation in armed conflict.  A shortcoming of the CRC is that Article 38 repeats Article 77 of Additional Protocol 1 that States “shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities.”  Extending protection to children under the age of 18 years old was a failure in the CRC drafting.

As a result of this shortcoming immediate action was taken by non-governmental organisations, interested states and members of the Committee on the Rights of the Child leading to the adoption of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, that entered into force in 2002.  The Optional Protocol, in Article 1, calls on States Parties to take “all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.”  Article 2 provides that no one under 18 will be “compulsorily recruited” into the military.  These articles strengthen the Geneva Convention obligations and correct the Article 38 CRC approach by setting a higher standard for age regarding participation in military action and making clear that no child under 18 can be forced into participating in hostilities.  More importantly, the Optional Protocol through Article 4 extends the prohibition on using children under 18 years old in conflict to armed non-state actors.  It is of course very difficult for States to ensure this obligation is met on their territory as armed non-state actors are likely to have rejected a State’s legitimacy in the legal and political system.  However, it follows the framework of the Geneva Conventions whereby “all parties” directly involved in a conflict have obligations under international humanitarian law.  Current trends in armed conflict involve a wide range of armed groups, militias, or irregular forces that are directly part of operations and states parties to the Optional Protocol will need to ensure their practices do not contravene the Article 4 obligation in relation to armed non-state actors under their command and control.

The three political initiatives identified by the Special Representative seek to build upon and develop existing legal obligations.  These initiatives are designed to raise awareness and knowledge of the situation of children in armed conflicts, as well as reinforcing the legal obligations upon the parties to an armed conflict. The UNICEF Paris Principles were adopted in 2007 alongside the Paris Commitments to protect unlawful recruitment of children by armed forces or groups.  The 2007 Paris conference was attended by 58 states, along with UNICEF, to address the unlawful recruitment of children into armed forces. The objectives of the Paris Principles and Commitments include-preventing the recruitment of children into armed forces, gaining the release of children who have been recruited into armed groups, trying to bring legal sanctions against those responsible for recruiting children into armed groups, and making efforts for effective reintegration programmes for children who have been participants in conflict.  The Paris Principles recognise that “political and legal efforts are not enough on their own to end recruitment. They also need to be accompanied by effective social programmes that tackle the root causes of recruitment.”  As of 2017, 110 states have signed up to the Paris Principles and Commitments.

The Safe Schools Declaration was adopted in 2015 following efforts of the governments of Argentina and Norway.  The 2015 Oslo conference was attended by 60 states resulting in the Safe Schools Declaration and the Guidelines for protecting schools and universities from military use during armed conflict.  The Safe Schools Declaration calls for specific recognition of the importance of protecting education during armed conflict.  The Declaration explains that when educational facilities are either destroyed or utilised by parties in an armed conflict it is a denial of the right to education for children and young people and given that it deprives communities “of the foundations on which to build their future.”  The Guidelines were adopted at the same Oslo Conference setting out measures to be taken in an armed conflict for protecting educational facilities that parties to a conflict should integrate into policy and practice.  The emphasis is on ensuring that educational facilities are not used for military operations, that the facilities are not destroyed, or viewed as legitimate military targets.  The Guidelines also hold that if one side of a conflict makes use of educational facilities, the other side should use great care in operations taking into account the impact upon children and young people and the long-term impact of damage to the educational facility.  Eighty six governments have endorsed the Safe Schools Declaration and Guidelines.

The ACT initiative also calls for adherence to the Vancouver Principles on Peacekeeping and Preventing the Recruitment and Use of Child Soldiers.  The Vancouver Principles focus on UN peacekeeping operations, adopted in 2017 through an initiative organised by the government of Canada.  The Vancouver Principles seek to build upon the success of the Paris Principles on preventing the recruitment of children by ensuring that UN peacekeeping operations are able to address the use and recruitment of children in armed conflicts.  Given the extensive presence of UN peacekeeping missions, and that many of these missions are present in conflicts where child use and recruitment by armed forces is prevalent the Principles seek to bring maximum awareness on the matter.  The Vancouver Principles are based on the belief that the“use and recruitment of child soldiers is a key enabler and driver of conflict around the world. Ending it requires a global effort.”  The Principles call for the creation and utilisation of child protection provisions in peacekeeping operations and to ensure peacekeepers receive appropriate training in this regard.  There is also a call for creating child protection focal points in the organisational and command structures of peacekeeping operations.  The extent of protection for children extends to prevention, ensuring international legal standards are respected, disarmament, demobilisation, reintegration and action to work on identifying the impact on the mental health of children due to conflict.

While not mentioned by the Special Representative, it is possible to add to the above regime the legal provisions of the Rome Statute of the International Criminal Court.  Article 8 of the Statute includes as a war crime the active participation of children under the age of 15 in hostilities  Further to this, the ICC Prosecutor has developed a specific Policy on Children, that strives to ensure that those responsible for violations against children in conflict will be prosecuted.

The increase in verified grave violations against children in times of conflict demonstrates the position of vulnerability children are in during times of unrest and, more of a concern, how this vulnerability is ignored and exploited by parties to an armed conflict.  The latest reports from the Special Representative for Children and Armed Conflict show worrying trends regarding a lack of awareness and action being taken by responsible parties in preventing children from being exploited during conflict. Armed conflict is, of course, detrimental to all involved.  But the impact upon children is even higher and the damages incurred and the trauma suffered have a long-term impact upon individuals and communities.  This makes the Special Representative’s evidence that the extent of violations is getting worse all the more worrisome both in relation to how war is being conducted and for the prospects of effective post-conflict resolution.  When children are killed, kidnapped, abused, or denied their human rights because of armed conflict, key actors for post-conflict reconstruction are lost and achieving sustainable peace is much more challenging.  A child who knows only violence and destruction is going to need substantive support in rehabilitation before they are able to contribute to rebuilding their society.  If children are not forced into participating in conflict and if their rights are respected by all parties to the greatest extent possible, in particular their right to education, then effective post-conflict rebuilding can begin right away, hopefully leading to a brighter future for all in society.

The ACT to Protect campaign will contribute to furthering awareness of the severity involved of exploiting children in armed conflict and the damage that is done to individuals and society when there are grave violations against children.  Of course, it is essential to address the core issues that lead to armed conflict.  Equally it is essential that when conflicts do arise children are adequately protected.  The important message from the ACT to Protect campaign is that all parties to an armed conflict have moral and legal obligations to ensure children are not utilised in military operation and that they are protected during the conflict.  The ACT to Protect Campaign supports the increase of political pressure and awareness upon all actors in a conflict so that respect for international humanitarian law and international human rights law in relation to children is part of conduct.