Treaties, States Parties and Commentaries
  • Print page
Commentary of 1958 
[p.284] ARTICLE 50 -- CHILDREN


The indescribable tragedy which the Second World War brought into the lives of millions of children forms one of the most distressing chapters in the history of the conflict and one which arouses the greatest pity.
Children were the innocent victims of events which afflicted them all the more cruelly because they were young and weak; they suffered hardships in violation of one of the most sacred of human laws -- the law that children must be protected, since they represent humanity's future. Mankind will long bear the trace of the deficiencies and wrongs caused by wartime atrocities.
In the commentary on Article 24 , mention was made of the action taken during the last war -- in particular by the International Union for Child Welfare and the International Committee of the Red [p.285] Cross -- to alleviate as far as possible the sufferings and distress of countless children who had been abandoned, separated from their families and transplanted, deported, enlisted in the armed forces or forced to work under compulsion. That action took various forms: in certain countries which had suffered particularly heavy devastation, children's homes were opened, a radio information service was organized to broadcast the names and description of children who were without news of their parents, proposals were put forward for an international code of rules for the identification of all young children by means of identity discs, parcels of relief supplies were despatched, etc. The International Union for Child Welfare and the Red Cross also studied the question of legal protection and, as has already been stated, a Draft Convention dealing
with the subject had been prepared in 1939. The question was therefore regarded immediately after the war as one of the main objects of the future Geneva Convention relating to civilians.
Article 50 reproduces in a more detailed form the substance of the provisions which the International Committee of the Red Cross had embodied in the Draft Convention submitted to the Diplomatic Conference of 1949 and adopted with certain modifications (1).


What should the word "children" be considered to mean for the purposes of Article 50? Although the conception of "children" has an important place in the Convention there is, as has already been pointed out, no general definition of the word. On the other hand the Convention has fixed various age limits in the provisions prescribing preferential treatment for children: fifteen years of age, in Articles 14 (hospital and safety zones), 23 (consignment of relief supplies), 24 and 38 (5) (measures relating to child welfare); twelve years of age in Article 24, paragraph 3 (identification); and, as will be seen, eighteen years of age in Articles 51, paragraph 2 (compulsory labour) and 68, paragraph 4 (death penalty).
Article 50, unlike those just mentioned, does not specify any age limit for the children to whom it refers, except in the last paragraph. Since, however, the establishments and institutions which paragraph 1 is intended to protect are generally for children and young people up to the age of fifteen, that appears to be a reasonable upper limit and might therefore serve here as a criterion. The application [p.286] of Article 50, however, cannot depend on any formal and often too rigid rule; its application must be governed by the degree of development of the physical and mental faculties of the persons concerned; it may therefore be applied to young people until such time as they attain their majority. The meaning given to the term "children" will also, of course, depend on the legislation of the occupied country, particularly in respect of identification.
The obligation of the Occupying Power to facilitate the proper working of institutions for children is very general in scope. The provision applies to a wide variety of institutions and establishments of a social, educational or medical character, etc., which exist under a great variety of names in all modern States (e.g. child welfare centres, orphanages, children's camps, childrens' homes and day nurseries, "medico-social" reception centres, social welfare services, reception centres, canteens, etc.). All these organizations and institutions, which play a most valuable social role even in normal times, become of increased importance in wartime when innumerable children are without their natural protectors, who have fallen on the battlefield, or have been victims of bombing, conscripted to do forced labour, interned or deported. Children's hospitals and homes are also protected under the present Convention. It will be seen later that medical and hospital services are the subject of still other special provisions (Articles 56 and 57 ) and are also protected under that heading.
These various establishments, organizations and institutions must be respected whatever their status under the law of the country and whether they are privately run or under State control. The only criterion in deciding whether they are to be protected is whether they are devoted to the care and education of children.
The Occupying Powers must, with the co-operation of the national and local authorities, facilitate the proper working of children's institutions. That means that the occupying authorities are bound not only to avoid interfering with their activities, but also to support them actively and even encourage them if the responsible authorities of the country fail in their duty. The Occupying Power must therefore refrain from requisitioning staff, premises or equipment which are being used by such establishments and must give people who are responsible for children facilities for communicating freely with the occupation authorities; when their resources are inadequate, the Occupying Power must ensure by mutual agreement with the local authorities that the persons concerned receive food, medical supplies and anything else necessary to enable them to carry out their task. It is in that sense that the expression "the proper working" of children's institutions should be understood.
[p.287] This provision assures continuity in the educational and charitable work of the establishments referred to and is of the first importance, since it takes effect at a point in children's lives when the general disorganization consequent upon war might otherwise do irreparable harm to their physical and mental development.


As has been seen, the arrangements for identification envisaged in Article 24 are not obligatory but take the form of an explicit recommendation to the Parties to the conflict. If a State has already adopted an identification system before its territory is occupied, the Occupying Power is bound to allow that system to continue and to facilitate its working.
On the other hand, if no steps have been taken, it is hard to imagine an Occupying Power itself organizing a complete system of identification. Consequently, the Diplomatic Conference merely laid down that the Occupying Power was to take all necessary steps to facilitate the identification of children and the registration of their parentage by the authorities of the occupied State (2); in other words, the Occupying Power must not do anything to hamper the normal working of the administrative services responsible for the identification of children, in particular newly born infants. The register offices must therefore continue to play their part, which is essential to the legal life of the community and individuals and to the administration of the country (the drawing-up of official documents, preservation of original records and certificates, the keeping of registers of births, deaths and marriages, etc.).
Without repeating what was said in regard to Article 24 , the extreme importance of having a system for identifying children, especially very young children, must be emphasized. That is the only way of preventing millions of them from being abandoned as a result of the events of war: exodus of the population, bombing raids, the destruction of towns, deportations or conscription for labour service. The responsibility for taking the necessary measures will rest with governments. Moreover, in addition to paragraph 2, there are further provisions in paragraph 4 of the Article concerning children whose identity the competent services of the occupied country have been unable to establish.
[p.288] The second sentence of paragraph 2 forbids the Occupying Power to change the family or personal status of children, or their nationality. Both the children and the parents are thus provided with a most valuable safeguard. Expressed in this way, the principle of the inviolability of the child's personal status represents a most desirable addition to the essential principles enjoining respect for the human person and for family rights which were set forth in Article 27 .
The clause forbidding the enlistment of children in formations or organizations subordinate to the Occupying Power is intended to prevent any repetition of the forcing of young people ' en masse ' to join various organizations and services, such as took place during the Second World War. Large numbers of children, victims of a practice of which international law disapproves, were during that conflict enlisted willy-nilly in organizations and movements devoted largely to political aims.
The question of compulsory enlistment in the armed or auxiliary forces of the Occupying Power is covered not by this clause, but by Article 51, paragraph 1 .


This paragraph should be compared with Article 24 , which lays down that Parties to the conflict are to take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of a war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. The object of Paragraph 3 is to make clear what the position of such children would be if the territory in which they are living were occupied. It lays down expressly that even in the case of occupation it is the authorities of the country in question, implicitly designated by Article 24 , who are in the first instance responsible for looking after children who are without their natural protectors.
The Occupying Power enters into the matter only when the local authorities have not carried out their duties and when there is no relative or friend who can provide for the maintenance and education of the children concerned. The Occupying Power is then bound to take the necessary steps; it may, for example, entrust the children who have been orphaned or separated from their family to some qualified person or institution. As laid down in Article 24 , such [p.289] persons should, if possible, be of the same nationality, language and religion as the children entrusted to their care (3).
This provision is of even greater importance in occupied territory, where so many families are dispersed as a result of the enemy invasion and so many children abandoned, a prey to all the horrors of war. The maintenance and education of war orphans and other homeless children opens up yet another immense field of activity for the National Red Cross Society of the occupied territory and for other humanitarian bodies, whose fruitful activity in past wars has eased the lot of countless children.


Provision is made, in accordance with paragraph 2 above, for the active co-operation of the Occupying Power in cases where the authorities of the occupied country are not successful in establishing a child's identity. Under paragraph 4 action is then to be taken by the "official Information Bureau" which, under the terms of Article 136 , the Parties to the conflict must set up on the outbreak of hostilities or in case of occupation. The primary function of these Bureaux is, as will be seen, to transmit to the State of origin all available information concerning measures taken in regard to its subjects by the Power in whose hands they are. The official Bureau which the Occupying Power is thus bound to open in occupied territory is a valuable source of information of all kinds. It is in a position to render useful service, particularly in the case of children whose identity has not been established by the local services concerned.
Moreover, as the Bureau will form part of an information service covering the whole of the territory of the Parties to the conflict, the searches undertaken will not be confined to the occupied territory but may also take place in other countries. The Conference accordingly laid down that a special section of the official Bureau was to be responsible for this task and for taking all necessary steps to determine the personal status of children who had not yet been identified (4).
To this end it is laid down that any available particulars of their father and mother or other near relatives, such as the place and date of birth, nationality, last known domicile, special marks, etc., must always be recorded. This stipulation is certainly useful, as the identification of homeless children, who sometimes do not even know [p.290] their own name, is often a matter of almost insuperable difficulty. It is therefore essential that the smallest clues and indications should be carefully collected and recorded.


Paragraph 5 covers persons who on account of their weakness are particularly deserving of protection and in general enjoy preferential treatment under wartime legislation. Such preferential treatment is accorded mainly in the respects mentioned in this paragraph, i.e. in regard to food (the issuing of supplementary ration cards, setting up of food centres, etc.), medical care (medical treatment, facilities for obtaining medicaments, etc.) and protection against the effects of war (5).
These are the provisions referred to in this paragraph when it stipulates that the Occupying Power is not to hinder the application of any preferential measures in regard to food, medical care and protection against the effects of war, which may have been adopted prior to the occupation in favour of the persons in question (6). A belligerent who occupies the whole or part of a territory where such measures are in force, cannot on any pretext abrogate them or place obstacles in the way of their application. This rule applies not only to preferential measures prescribed in the Convention but to any other measures of the same nature taken by the occupied State.
It may be pointed out in conclusion that this is only one case of the application of the great principle, which dominates the whole of the law of occupation, that an Occupying Power, unless absolutely prevented, is bound to respect the laws in force in the occupied country.

Notes: (1) [(1) p.285] For the origin of the Article, see ' Final
Record, ' Vol. II-A, pp. 664, 760, 809, and Vol. II-B, p.

(2) [(1) p.287] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 760 and

(3) [(1) p.289] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 828;

(4) [(2) p.289] See ibid., Vol. II-A, pp. 760, 828;

(5) [(1) p.290] In Article 38, para. 5, of the Convention, on
which comment has already been made, the Parties to the
conflict are officially recommended to give preferential
treatment to children under fifteen years, pregnant women
and mothers of children under seven years;

(6) [(2) p.290] See ' Final Record, ' Vol. II-A, pp. 664 and