Treaties, States Parties and Commentaries
  • Print page
Commentary of 1958 


Recent wars have emphasized in tragic fashion how necessary it is to have treaty rules for the protection of children. During the last World War, in particular, the mass migrations, bombing raids and deportations separated thousands of children from their parents. The absence of any means of identifying these children, some of whom were even too young to vouch for their own identity, had disastrous consequences. Thousands of them are irretrievably lost to their own families and thousands of fathers and mothers will always suffer the grief of their loss. It is therefore to be hoped that effective measures can be taken to avoid such harrowing experiences in the future.
The question of providing protection under a Convention for these innocent victims of the war has long engaged the attention of the Committee of the Red Cross, and of the International Union for Child Welfare, an organization set up, as is known, under the auspices of the International Committee of the Red Cross.
In 1938 the XVIth International Red Cross Conference in London asked the International Committee of the Red Cross, in its Resolution No. XIII, to pursue the study of this question in collaboration with the International Union for Child Welfare. The two organizations set up a joint committee which in 1939 produced a Draft Convention for the Protection of Children. Unfortunately the outbreak of hostilities put an end to this work.
During the War the International Committee of the Red Cross took action on many occasions in behalf of children. Worthy of particular mention are its efforts to arrange for adolescent prisoners of war, under eighteen years of age, to be placed in special camps; its proposal that international regulations should be drawn up making it obligatory for every small child to wear an identity disc giving its name, date of birth and domicile; its broadcasts concerning children separated from their parents; and, lastly, its organization of children's homes in the devastated countries. In these various matters, the International Committee of the Red Cross acted in close co-operation with the International Union for Child Welfare, as the London Resolution of 1938 had stipulated. Besides these specific actions, children benefited by a whole series of steps taken by the International Committee of the Red Cross as part of its general work in aid of civilians.
After the war the International Committee of the Red Cross was associated, so far as its resources allowed, with the highly praiseworthy [p.186] efforts made to reunite children and parents who had lost touch with each other. Some success was achieved in the face of great difficulties (1).
In 1946 a Draft Convention for the Protection of Children in the Event of International Conflict or Civil War was submitted by the Bolivian Red Cross to the Preliminary Conference of National Red Cross Societies for the study of the Geneva Conventions; the Conference recommended that the provisions in question should be incorporated in the new Geneva Convention relating to civilians; the idea of a separate Convention relating to child welfare was thus abandoned.
In 1947 the Conference of Government Experts recommended the same course. The International Committee of the Red Cross again incorporated a certain number of provisions relating to preferential treatment for children in its draft Civilians' Convention. These provisions were approved by the XVIIth International Red Cross Conference in 1948 and were later adopted without any substantial amendment by the Diplomatic Conference of 1949. In addition to the Article under discussion, Articles 14 , 16 , 23 , 38 , 50 , 51 and 68 of the present Convention make provision for special measures in favour of children (2).


An age limit of fifteen was chosen because from that age onwards a child's faculties have generally reached a stage of development at which there is no longer the same necessity for special measures. The same age limit is mentioned in Articles 14 and 23 , and it will be seen further on that fifteen is also the age limit for the application of Articles 38 and 50 .
In the case of orphans, and in that of children separated from their families but whose parents are still living, the situation in which the child finds itself must be a result of the war to entitle it to benefit under this article.
Children whose parents died before hostilities broke out may be assumed to be already enjoying the protection of other members of [p.187] their family, or, if they also have died, the protection and assistance of the State. In the same way, where children are separated from their families not as a result of the war, but for other reasons, by a decision of civil or penal law for example, they will be looked after under the social welfare measures instituted in application of the ordinary laws of the State.
Where children are deprived of their natural protectors as the result of an event of war, the Convention makes it obligatory for the country where they are living to adopt the necessary measures to facilitate, in all circumstances, their maintenance, their education and the exercise of their religion. The Convention does not specify the measures to be taken and the Parties to the conflict will therefore enjoy great freedom of action; they will apply the measures which seem most appropriate under the conditions prevailing in their territory.
The maintenance of the children concerned means their feeding, clothing, and accommodation, care for their health and, where necessary medical and hospital treatment.
In carrying out this task the Parties to the conflict are to give the children the benefit of existing social legislation supplemented, where necessary, by new provisions. They are to ensure that any child who has been found abandoned is entrusted as soon as possible to the tender care of a friend or, when there is no such person, ensure that he is placed in a crèche, children's home or infants' home. This provides a wide field of activity for private institutions and organizations such as the National Red Cross Societies whose help in this sphere was of inestimable service during and after the Second World War.
The idea of education must be understood in its broadest sense as including moral and physical education as well as school work and religious instruction. The Article specifies that this task is to be entrusted, as far as possible, to persons of the same cultural tradition as the parents.
That provision is most important. It is intended to exclude any religious or political propaganda designed to wean children from their natural milieu; for that would cause additional suffering to human beings already grievously stricken by the loss of their parents.
The principles set forth in Article 24 apply to all the children in question who are living in the territory of a Party to the conflict, whether they are nationals of that country or aliens. The effort made by certain delegations to have the Article transferred from Part II to Part III, Section II, where it would only have applied to children of foreign nationality, was not successful.


However well organized child welfare measures may be, they will never be able to protect the children completely from all the various privations suffered by the population of a belligerent country.
Paragraph 2 therefore makes provision for a more effective measure: it recommends that Parties to the conflict should facilitate arrangements for accommodating children in neutral countries.
It is not necessary that the neutral State should be a Party to the Convention, but the Diplomatic Conference provided the evacuated child with two safeguards which did not appear in the earlier drafts.
One safeguard stipulates that the consent of the Protecting Power must be obtained. The provision, however, only applies to children who are not nationals of the country where they have been living, nor of any country which has diplomatic representation there; it therefore applies primarily to children of enemy nationality; the transfer to a neutral country of children whose country is represented by a diplomatic mission will be subject to the mission's consent.
The reason why the consent of the Protecting Powers is required is to prevent children of enemy nationals from being evacuated for ideological reasons and sent to countries from which they may never come back. Children must only be evacuated for strictly humanitarian reasons (3).
The first condition, formal in character, is accompanied by a further safeguard of a practical nature which concerns all the children in question, nationals as well as aliens: they may only be evacuated when the State is assured that the principles stated in Paragraph 1 will be observed. That means that the country of reception must have the means of providing under all circumstances for their maintenance, their education and the exercise of their religion. Furthermore their education must, in a neutral country too, be entrusted as far as possible to persons of the same cultural tradition as the children's parents.
The meaning of this provision seems clear. The idea of transfer to a neutral country is based on the assumption that these essential rules will be more easily observed in a neutral country which is largely free of the restrictions of all kinds resulting from war. If that were not so, and the welfare of the children could be looked after better in the country where they normally live, there would be no reason for evacuating them.
[p.189] In connection with this subject mention may be made of the excellent work done by several Red Cross Societies belonging to neutral countries which gave a home to children from the belligerent countries during the last World War. Red Cross Societies are particularly well equipped to take an active part in applying the present provisions, which give legal form to this humanitarian work.


It will be noticed that the age limit here is twelve, whereas in the first two paragraphs it was fifteen years of age: this is in accordance with a recommendation made at the XVIIth International Red Cross Conference in Stockholm, where it was considered that children over twelve were generally capable of stating their own identity. Moreover, whereas the first two paragraphs refer only to war orphans and children separated from their families as a result of war, paragraph 3 refers to all children under twelve years of age. This extension of the field covered is fully justified, for it is essential to be able to identify all young children, whatever their situation may be.
The only practical means of identification mentioned by the Convention, by way of example, are identity discs; in this sphere too States will therefore be completely free to select the system of identification which they consider best. The comparative vagueness of the Convention in this matter can be explained by the fact that strongly marked differences of opinion on the subject arose at the Diplomatic Conference of 1949. The idea of identity discs was treated with scepticism by many delegates, who pointed out for instance how mistakes could arise from children losing or exchanging their identity discs. That danger certainly exists and although experience of this method of identification in the armed forces has been generally satisfactory, that does not necessarily prove anything in regard to children. Other delegates feared that the wearing of discs in occupied territories might lead to the persecution of certain categories of children, which would not be in accordance with the result sought. However that may be, the
number of children saved by wearing a disc will certainly be greater than the number of children whom it may harm. The fact that no better solution was proposed leads to the conclusion that identity discs may be of great service.
The identity discs used should be made of non-inflammable material and should bear the surname, date of birth and address of the child and its father's first name. These markings should either be engraved on the disc or inscribed in indelible ink. Further [p.190] particulars might be useful, to reduce the danger of mistakes arising: finger prints, a photograph, an indication of the child's blood group, rhesus factor, etc.
Paragraph 3 differs from the first two paragraphs in that it is not obligatory. It constitutes a strong recommendation to States to devote their full attention to this urgent question. The text obviously implies that the matter should be thoroughly studied in peace-time and even specific measures taken. The institution of a system of identification requires long preparation and it seems essential for the work to be undertaken in good time, so that children may carry a means of identification with effect from the first day of the war. The co-operation of National Red Cross Societies with governments would facilitate study of the question and, if necessary, the adoption of the above measures (4).
Finally it should be pointed out that although it was designed to operate in the case of a conflict, the provision could be equally well applied during national calamities, such as floods, earthquakes or other catastrophes which might also lead to the separation of families.
Some governments and National Red Cross Societies have already begun to study a practical programme and the International Committee is following their efforts with close interest (5).

Notes: (1) [(1) p.186] Special attention should be made of the
"Children's Tracing Service" run by the German Red Cross
in co-operation with the International Tracing Service of
the International Refugee Organization;

(2) [(2) p.186] All these provisions were considered in
co-operation with the International Union for Child

(3) [(1) p.188] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, p. 638;

(4) [(1) p.190] As the provision is optional, States are
naturally free to extend the measures of identification to
children over twelve or even to the whole population. On
the other hand, a State may consider, e.g. for financial
reasons, that it cannot arrange for the identification of
all children under twelve. If it were decided to identify
only new-born children as from a given date, that would be
fully in accordance with the spirit of the Convention;

(5) [(2) p.190] The ' Revue Internationale de la Croix-Rouge '
has reported the steps taken and the plans being studied.
See in particular the issues of February and December,
1955, and January, 1956;