Protection of children by International Humanitarian Law
Aside from benefiting from the general protection provided to civilians, children are protected by International Humanitarian Law in two ways. First, by being protected from recruitment and participation in hostilities (Art. 77 of Protocol I prohibits recruitment and direct participation in hostilities of children under the age of 15 years, whereas Art 4, 3(c) of Protocol II also prohibits their indirect participation. The Rome Statute has recognized the recruitment and use of children under the age of 15 years in hostilities as an international crime, both in international and non-international armed conflicts), and second, by a number of specific provisions addressing their particular vulnerabilities. These provisions, which are contained in the Geneva Conventions and their Additional Protocols, include protection from the effects of hostilities (sanitary zones, evacuation), provision of special care and aid (medicine, food, clothing), protection of personal status, family and community ties (identity, registration, reunification, news), cultural environment, education, or limits to the death penalty. Other provisions specifically regulate the treatment of detained or interned children.
Protection in human rights law
Children are protected by general human rights instruments. In addition, they are entitled to the protection provided by the Convention on the Rights of the Child (CRC), which has been ratified by all states in the world, apart from Somalia and the United States of America. The CRC includes in its Article 38 a provision according to which states parties:
Article 38 has been subject to considerable criticism, for two reasons. First, because all other provisions protect the child until it has reached the age of 18. Second, because it adds nothing new and could even undermine existing standards contained in IHL (the parts relating to recruitment and participation in hostilities repeat Protocol I to the Geneva Conventions, which only prohibits direct participation, whereas Protocol II also prohibits indirect participation). The ICRC contributed to the drafting process of this provision, but became involved only at a late stage, so that its possibility to influence the final text was limited.
Development of an Optional Protocol
A number of states have for several years sought to develop an Optional Protocol to the CRC that would raise the minimum age for participation in hostilities and for recruitment to 18 years. In line with a 1995 resolution of the Council of Delegates, the ICRC has supported this initiative and participated in the drafting process. It has made its view known in international forums (through statements at the UN Commission on Human Rights and General Assembly) and participated actively in the UN Working Group established to draft the Optional Protocol.
Given that the Working Group has worked by consensus in order to adopt the text, and that there was absence of such because a handful of states opposed the adoption of the 18-years minimum age, there was almost no progress in the Working Group in previous years. To overcome the stalemate, several NGOs started a campaign aimed at generating enough political pressure to have the Optional Protocol developed outside the UN working group (this strategy was largely inspired by the Land Mines Campaign). The ICRC was not a formal member of the NGO coalition, but supported its work by participating in regional conferences organised by the Coalition, and more generally by sharing its legal expertise and operational experience. In January 2000, the UN Working Group finally met for substantive negotiations, and successfully concluded the drafting of an agreed text (the compromise position taken by States which previously had opposed consensus may have been motivated by concerns that the NGO campaign might eventually succeed). The agreed text has recently been adopted by the General Assembly in May 2000 and will be open for signature and ratification.
Overall, the Optional Protocol represents a clear improvement of existing international law, although the text also contains evident weaknesses. Of particular importance may be highlighted:
- undertake to respect and to ensure respect for relevant rules of International Humanitarian Law;
- ensure that children under 15 do not take a direct part in hostilities;
- refrain from recruiting those under 15 and give priority to the oldest among those under 18;
- in accordance with International Humanitarian Law, ensure protection and care of children affected by armed conflict.
1."States Parties shall 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 hostitities." (Article 1). In the opinion of the ICRC the obligation imposed on States to prevent participation in hostilities should have been made more absolute, and should also have covered indirect participation, which may often be equally dangerous for the children involved.
In its written observations submitted to the UN Secretariat, the ICRC calls on States to ratify the Optional Protocol as soon as this becomes possible and to effectively implement the obligations contained therein. It also reaffirms the willingness of the Movement to continue its work for the non-recruitment and non-participation of children in hostilities, including by identifying children at risk of becoming soldiers, providing them with alternative sources of income and respect, and by raising awareness in society not to allow children to join armed forces or groups.
2."States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces" (Article 2). This provision is in itself positive, but is considerably weakened by the following provision, which permits voluntary recruitment below the age of 18 years (it imposes the obligation on States to "raise the minimum age in years" for voluntary recruitment from the present age limit of 15 years, and this obligation does not apply to military schools) thus providing a possibility for circumventing the age limits set to recruitment. It is to be hoped that the Committee on the Rights of the Child will compensate for the weaknesses of the text by a strict interpretation, including by emphasising that all the relevant provisions of the Convention apply simultaneously.
3."Armed groups, distinct from the armed forces of a State, should not under any circumstances, recruit or use in hostilities persons under the age of 18 years." (Article 4, paragraph 1). The ICRC welcomes the fact that the issue of non-state actors has been included in the Optional Protocol, but regrets that the provision imposes a moral, as opposed to a legal obligation. Although Article 4 also provides for criminal repression under domestic law, this is likely to be of limited effect, because those who take up arms against the lawful Government of a country already expose themselves to the most severe penalties of domestic law, and because the capacity of a Government to enforce its laws is often very limited in situations of non-international armed conflicts. Third, it is uncertain whether non-state actors will feel bound by a norm which is different from that imposed on States, and thus whether it will be respected.