Practice Relating to Rule 135. Children

Note: For practice concerning the establishment of hospital and safety zones to protect children, see Rule 35.
Geneva Convention IV
Article 17 of the 1949 Geneva Convention IV provides: “The parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of … children …”. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 17.
Geneva Convention IV
Article 24, second paragraph, of the 1949 Geneva Convention IV provides:
The Parties to the conflict shall facilitate the reception of such children [orphaned or separated from their families] in a neutral country for the duration of the conflict with the consent of the Protecting Power. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 24, second para.
Additional Protocol I
Article 78(1) of the 1977 Additional Protocol I provides:
No Party to the conflict shall arrange for the evacuation of children, other than its own nationals, to a foreign country except for a temporary evacuation where compelling reasons of the health or medical treatment of the children or, except in occupied territory, their safety, so require. Where the parents or legal guardians can be found, their written consent to such evacuation is required. … In each case, all Parties to the conflict shall take all feasible precautions to avoid endangering the evacuation. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 78(1). Article 78 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.43, 27 May 1977, p. 254.
Additional Protocol II
Article 4(3)(e) of the 1977 Additional Protocol II provides:
Measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 4(3)(e). Article 4 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.50, 3 June 1977, p. 90.
Lieber Code
Article 19 of the 1863 Lieber Code provides:
Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the non-combatants, and especially … children, may be removed before the bombardment commences. 
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 19.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 4 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that all civilians be treated in accordance with Article 78(1) of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 4.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.3 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that all civilians be treated in accordance with Article 78(1) of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.3.
Argentina
Argentina’s Law of War Manual (1969) provides: “The belligerents shall endeavour to conclude agreements for the removal from besieged areas of … children”. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 1.014.
The manual also provides:
The belligerent parties shall facilitate the reception of such children in a neutral country for the duration of the conflict with the consent of the Protecting Power, if any, and under due safeguards. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 4.007.
Argentina
Argentina’s Law of War Manual (1989) provides:
No party in conflict shall undertake the evacuation of children to a foreign country. If an evacuation has been undertaken, they shall take all the necessary measures to facilitate the return of the children to their families and their country. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 4.12.
With respect to non-international conflicts in particular, the manual states: “All the necessary measures shall be taken so that, with the consent of their parents or guardians, they [children under 15 years] are transferred from the area in which hostilities are taking place.” 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 7.04.
Australia
Australia’s Defence Force Manual (1994) states: “The opposing parties are required to try and conclude local agreements for the removal from besieged or encircled areas of … children”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 735; see also Commanders’ Guide (1994), § 926.
The manual further states:
As is the case with women, children are granted special protection under LOAC. Important rules are shown below …
e. children who are not nationals of the state may not be evacuated by that state to a foreign country unless the evacuation is temporary and accords to certain conditions set out in [the 1977 Additional Protocol I]. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 947.
Australia
Australia’s LOAC Manual (2006) states:
7.38 … [In the context of siege warfare] The opposing parties are required to try and conclude local agreements for the removal from besieged or encircled areas of … children …
9.50 … [C]hildren who are not nationals of the state may not be evacuated by that state to a foreign country unless the evacuation is temporary and accords to certain conditions set out in G. P. I. [1977 Additional Protocol I]. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 7.38 and 9.50.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Brazil
Brazil’s Operations Manual for the Evacuation of Non-Combatants (2007) states:
In case the Ministry of Foreign Affairs does not state who is to be evacuated with priority, the Joint Command shall follow this guidance:
b) the table below sets out who shall be evacuated with priority.
Categories
B – Unaccompanied children (under 12 years of age).
D – Adults with children.
E – Adolescents (from 12 to 17 years of age). 
Brazil, Manual de Operações de Evacuação de Não-Combatentes, Ministério da Defesa, Estado-Maior de Defesa, MD33-M-08, Ordinance No. 1351/EMD/MD of 11 October 2007, published in Diário Oficial da União, No. 198, 15 October 2007, § 7.4.1(b).
The Operations Manual also states:
1.2.1 Non-Combatant Evacuation Operations are conducted by the Ministry of Defence, upon request by the Ministry of Foreign Affairs, for the evacuation of non-combatants whose lives are in danger, from their host country to a safe place of destination …
3.4.1 Non-Combatant Evacuation Operations … may be triggered by sudden changes in the government of the host country, changes in its political or military orientation with regard to Brazil, or hostile threats to Brazilian citizens by internal or external forces in that country.
Annex A. Rules of Engagement and the Law of Armed Conflict
3. The Law of Armed Conflict
According to the policy of the Ministry of Defence, the principles of the Law of Armed Conflict regulate the actions taken by the Joint Command in the defence of its personnel, property and equipment. 
Brazil, Manual de Operações de Evacuação de Não-Combatentes, Ministério da Defesa, Estado-Maior de Defesa, MD33-M-08, Ordinance No. 1351/EMD/MD of 11 October 2007, published in Diário Oficial da União, No. 198, 15 October 2007, §§ 1.2.1 and 3.4.1, and Annex A, § 3.
Cameroon
Cameroon’s Instructor’s Manual (1992) provides that at the approach of the enemy, “all persons shall be evacuated, with priority … children”. 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 67, § 242(1).
Cameroon
Cameroon’s Instructor’s Manual (2006) states: “In case of an evacuation, the parties to a conflict shall not evacuate children to a foreign country other than that of their own nationality, except if it is a temporary evacuation required for health or security reasons.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 30, § 131; see also p. 50, § 231 and p. 76, § 321.
Canada
Canada’s LOAC Manual (1999) provides:
Belligerents must also facilitate the reception of these children [children under 15 who have been orphaned or separated from their families] by neutral countries for the duration of hostilities, with the consent of the Protecting Power, if any. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 11-3, § 25.
The manual also states: “If circumstances permit, the parties to a conflict must endeavour to conclude local agreements for the removal from besieged areas of … children”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-4, § 35.
With respect to non-international armed conflicts in particular, the manual provides:
If the children’s safety requires their removal from the area in which they are, this should be done, whenever possible, with the consent of their parents or guardians. Persons responsible for the safety and well-being of the children should also accompany them. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-3, § 23.
Canada
Canada’s LOAC Manual (2001) states in its chapter on land warfare: “If circumstances permit, the parties to a conflict must endeavour to conclude local agreements for the removal from besieged areas of … children”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 614.6.
In its chapter on non-international armed conflicts, the manual states:
If the children’s safety requires their removal from the area in which they are, this should be done whenever possible with the consent of their parents or guardians. Persons responsible for the safety and well being of the children should also accompany them. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1714.2.
Chad
Chad’s Instructor’s Manual (2006) states: “In the case of evacuation, no party to the conflict shall evacuate children, other than its own nationals, to a foreign country except for temporary evacuation for compelling reasons regarding the health or security of the children.” 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 53.
Colombia
Colombia’s Basic Military Manual (1995) provides, with respect to non-international armed conflicts in particular: “All measures shall be taken in order to temporarily transfer the children to safety zones, accompanied by persons responsible for their safety.” 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 74.
Djibouti
Djibouti’s Manual on International Humanitarian Law (2004) states that “children may be temporarily evacuated for reasons related to armed conflict”. 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 26.
France
France’s LOAC Manual (2001) provides: “The Parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of … children”. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 64.
Indonesia
The Report on the Practice of Indonesia, with reference to the Military Manual (1982), states that children under 15 years of age, orphaned or separated from their families as a result of conflict, should be evacuated to neutral States. 
Report on the Practice of Indonesia, 1997, Chapter 5.3, referring to The Basics of International Humanitarian Law, Legal Division of the Indonesian Armed Forces, 1982.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the 1949 Geneva Convention IV, states: “This Convention includes provisions for the parties to a conflict to make local agreements for the evacuation of … children … from besieged or encircled areas”. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 209.
Netherlands
The Military Manual (1993) of the Netherlands provides:
Children shall not be evacuated without reason to a foreign country. Exception shall be made for a temporary evacuation where compelling reasons of the health and safety of the children so required. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. VIII-3.
Netherlands
The Military Manual (2005) of the Netherlands states:
Unnecessary evacuation of children to another country should be avoided. An exception is made for temporary evacuation, for compelling reasons relating to their health or safety. There are a number of detailed rules for such an evacuation. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0811.
In its chapter on non-international armed conflict, the manual states:
1060. Children must receive the care and help that they need.
1061. This involves … adopting measures (including temporary escorting, by adults responsible for their safety and wellbeing, as far as possible with the consent of their parents or carers) whenever children have to be transferred outside the area of hostilities to a safer part of the country. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 1060–1061.
New Zealand
New Zealand’s Military Manual (1992) provides:
Belligerents must also facilitate the reception of these children [children under 15 who have been orphaned or separated from their families] by neutral States for the duration of hostilities, with the consent of the Protecting Power, if any, and under due safeguards as above. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1112(1); see also § 1405(5).
The manual refers to Article 17 of the 1949 Geneva Convention IV, which “requires that belligerents endeavour to conclude local agreements for the removal from besieged or encircled areas of … children”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 508(3).
With respect to non-international armed conflicts in particular, the manual provides:
If children’s safety requires their removal from the area in which they are, the consent of their parents or guardians should be obtained whenever possible and the children accompanied by persons responsible for their safety and well-being. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1813(1).
Spain
Spain’s LOAC Manual (1996) provides: “In besieged or encircled areas where there is a civilian population, it shall be endeavoured to conclude local agreements with the enemy to organize the evacuation of … children”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, § 9.4.a.
Spain
Spain’s LOAC Manual (2007) states: “In besieged or encircled areas where there are civilians, efforts must be made to conclude local agreements with the enemy for the evacuation of … children.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 9.4.a.
Sweden
Sweden’s IHL Manual (1991) provides:
It is also possible for the parties to reach an agreement during a conflict that all acts of war shall cease temporarily within a given part of a conflict area. Such agreements are commonly made to afford protection to civilian populations, and specially to such exposed groups as children. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.4.1, p. 84.
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “Belligerents shall conclude special agreements in order to evacuate … children … from besieged areas.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 33.
The manual further provides that it is prohibited to evacuate children into a foreign country, except with the temporary authorization of the government. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 157.
Ukraine
Ukraine’s IHL Manual (2004) states:
As concerns children, international humanitarian law envisages the following:
- evacuation of children from the area in which hostilities are taking place shall be organized (if necessary and with the consent of their parents or persons who substitute them). 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.4.11.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states: “The belligerents should endeavour to conclude local agreements for the removal from besieged or encircled areas of … children”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 29.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) states: “A local cease-fire may be arranged for the removal from besieged or encircled areas of … children”. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 9, p. 34, § 3.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
There are no restrictions on the evacuation to a foreign country by a belligerent state of children of its own nationality. Children who are not nationals of a belligerent state may not be evacuated by that state to a foreign country unless:
a. evacuation is temporary;
b either:
(1) it is compelled by reason of the health or medical treatment of the children, or
(2) except in occupied territory, the safety of the children so demands;
c. the written consent of the parents or legal guardians of each child is obtained;
d. the evacuation is made under an agreement between the state arranging for the evacuation, the state(s) receiving the children and the state(s) whose nationals are evacuated;
e. the evacuation is supervised by the protecting power; and
f. the parties to the conflict take all feasible precautions to avoid endangering the evacuation. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.14.
United States of America
The US Field Manual (1956) provides:
The commanders of United States ground forces will, when the situation permits, inform the enemy of their intention to bombard a place, so that the noncombatants, especially … children, may be removed before the bombardment commences.  
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 43.
The manual further states: “The Parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of … children”. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 256; see also § 44.
The manual also provides:
The parties to the conflict shall facilitate the reception of such children [under fifteen, who are orphaned or are separated from their families as a result of the war] in a neutral country for the duration of the conflict with the consent of the Protecting Power, if any, and under due safeguards. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 263.
United States of America
The US Air Force Pamphlet (1976) states: “Removal of … children … from besieged or encircled areas is encouraged.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-3.
Azerbaijan
Azerbaijan’s Law on the Rights of the Child (1998) states: “[T]ake all possible measures to evacuate children located in the areas of military operations to more secure places and protect their lives”. 
Azerbaijan, Law on the Rights of the Child, 1998, Article 37.
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Guinea
Guinea’s Children’s Code (2008) states:
Article 437: During an armed conflict, measures for temporary evacuation of children as a result of hostilities shall be taken in accordance with the rules of International Humanitarian Law, particularly with regard to the consent of the parents or guardians, identification of children, their security and well-being … and their return.
Article 438: The provisions of the preceding article shall apply to children displaced internally in the Republic of Guinea due to natural disaster, internal conflict, civil unrest, and collapse of economic and social structure or any other reason. 
Guinea, Children’s Code, 2008, Articles 437–438.
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Articles 17 and 24 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 78(1), as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 4(3)(e), are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Philippines
The Act on Child Protection (1992) of the Philippines provides that children should be given priority during evacuations resulting from armed conflict. 
Philippines, Act on Child Protection, 1992, Sections 23–24.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Azerbaijan
In 2008, in its initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, Azerbaijan stated: “Pursuant to the Rights of the Child Act, the military authorities must do everything possible to evacuate children from conflict zones to safe places in order to protect their lives and health.” 
Azerbaijan, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 31 March 2011, UN Doc. CRC/C/OPAC/AZE/1, submitted 14 November 2008, § 7.
El Salvador
In 2002, in its second periodic report to the Committee on the Rights of the Child, El Salvador stated:
With regard to children who disappeared as a result of the armed conflict, some were evacuated from the conflict zones to ensure their physical safety; however, no specific record was kept of their movements or of whether they were handed over to humanitarian, governmental or non-governmental organizations. 
El Salvador, Second periodic report to the Committee on the Rights of the Child, 22 October 2003, UN Doc. CRC/65/Add.25, submitted 10 July 2002, § 499.
Germany
In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) entitled “Treatment of child soldiers by the German armed forces (Bundeswehr) during operations abroad”, Germany’s Federal Government wrote:
8. Which procedures are envisaged for the treatment of child soldiers injured, apprehended or detained by the Bundeswehr?
In the completed operation EUFOR RD CONGO, the following framework was adopted regarding apprehended or detained children and included in the pocket card of June 2006 for the German contingent of the operation EUFOR RD CONGO:
d) As soon as possible they are to be evacuated from the immediate danger zone. 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by Members Paul Schäfer, Jan van Aken, Sevim Dağdelen, further Members and the Parliamentary Group DIE LINKE, BT-Drs. 17/2998, 21 September 2010, pp. 4–5.
Nigeria
In 2008, in its combined third and fourth periodic reports to the Committee on the Rights of the Child, Nigeria stated:
In cases of domestic conflicts, such as communal clashes, riots and religious violence, the civilian population, including children, are usually protected by the deployment of police personnel and in extreme circumstances, military personnel. These personnel evacuate the vulnerable groups to safer environment where [p]sychological, posttraumatic and humanitarian assistance are given to child victims of armed conflict or violence by the combined efforts of [the] Government, NGOs and international agencies. 
Nigeria, Combined third and fourth periodic reports to the Committee on the Rights of the Child, 5 January 2009, UN Doc. CRC/C/NGA/3-4, submitted 19 May 2008, § 8.2.3.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include Article 4 providing guarantees to persons taking no active part in hostilities … due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions. 
Somalia, Report to the Human Rights Council, 11 April 2011, UN Doc. A/HRC/WG.6/11/SOM/1, § 75.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed:
We support the principle that no state arrange for the evacuation of children except for temporary evacuation where compelling reasons of the health or medical treatment of the children or safety, except in occupied territory, so require. 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 428.
United States of America
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].” 
Report on US Practice, 1997, Chapter 5.3.
UN Secretary-General
In 2000, in his report on the establishment of a Special Court for Sierra Leone, the UN Secretary-General stated:
Violations of common Article 3 of the Geneva Conventions and of Article 4 of Additional Protocol II thereto committed in an armed conflict not of an international character have long been considered customary international law. 
UN Secretary-General, Report on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, 4 October 2000, § 14.
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