Rule 135. Children
Rule 135. Children affected by armed conflict are entitled to special respect and protection.
Volume II, Chapter 39, Section B.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The requirement of special protection for children can be found throughout the Fourth Geneva Convention and in Additional Protocol I.[1] These articles relate to the provision of food, clothing and tonics, care of children who are orphaned or separated from their families, treatment during deprivation of liberty and the distribution of relief consignments. Additional Protocol I also provides more generally that “children shall be the object of special respect”.[2] Relevant rules in the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child are mentioned below.
Numerous military manuals require special respect and protection for children.[3] This rule is also set forth in the legislation of several States.[4] It is further supported by official statements and other practice.[5] This practice includes references to the general requirement of special respect and protection made by States not, or not at the time, party to Additional Protocol I.[6]
Additional Protocol II states that “children shall be provided with the care and aid they require”.[7] Pursuant to the Convention on the Rights of the Child, States must respect and ensure respect for rules of international humanitarian law relevant to the child and they must take “all feasible measures to ensure protection and care of children who are affected by armed conflict”.[8] Similar language can be found in the African Charter on the Rights and Welfare of the Child.[9] The requirement of special respect for and protection of children is contained in other instruments pertaining also to non-international armed conflicts.[10]
The requirement to respect and protect children in armed conflict is set forth in many military manuals which are applicable in or have been applied in non-international armed conflicts.[11] It is also supported by other practice in the context of non-international armed conflicts.[12]
The rule has also been invoked in several resolutions of the UN Security Council and UN General Assembly in the context of specific conflicts such as Sierra Leone and Sudan but also in general.[13] In a resolution on children in armed conflicts, adopted in 1999, the UN Security Council called upon parties to armed conflicts “to undertake such feasible measures during armed conflicts to minimize the harm suffered by children”.[14]
The International Conferences of the Red Cross and Red Crescent in 1986 and 1995 adopted resolutions stressing the importance of respect for and protection of children in armed conflict.[15] The Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999, requires that all parties to an armed conflict take effective measures to ensure that “children receive the special protection, care and assistance” to which they are entitled.[16]
Practice indicates that the special respect and protection due to children affected by armed conflict includes, in particular:
•protection against all forms of sexual violence (see also Rule 93);
•separation from adults while deprived of liberty, unless they are members of the same family (see also Rule 120);
•access to education, food and health care (see also Rules 55, 118 and 131);
•evacuation from areas of combat for safety reasons (see also Rule 129);
•reunification of unaccompanied children with their families (see also Rules 105 and 131).
The UN Committee on the Rights of the Child recalled that provisions essential for the realization of the rights of children affected by armed conflict include: protection of children within the family environment; ensuring the provision of essential care and assistance; access to food, health care and education; prohibition of torture, abuse or neglect; prohibition of the death penalty; preservation of the child’s cultural environment; protection in situations of deprivation of liberty; and ensuring humanitarian assistance and relief and humanitarian access to children in armed conflict.[17]
Pursuant to the Convention on the Rights of the Child, “a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier”.[18] The Geneva Conventions and Additional Protocols use different age-limits with respect to different protective measures for children, although 15 is the most common.[19]
The Fourth Geneva Convention provides that “the death penalty may not be pronounced against a protected person who was under eighteen years of age at the time of the offence”.[20] Additional Protocol I provides that “the death penalty for an offence related to the armed conflict shall not be executed on persons who had not attained the age of eighteen years at the time the offence was committed”.[21] Additional Protocol II prohibits the pronouncing of the death penalty on children under 18 years of age at the time of the offence.[22] These rules are also set forth in a number of military manuals.[23]
The prohibition on imposing the death penalty on children under 18 years of age is also set forth in the International Covenant on Civil and Political Rights, the American Convention on Human Rights and the Convention on the Rights of the Child.[24]
[1] Fourth Geneva Convention, Articles 23–24, 38, 50, 76 and 89 (cited in Vol. II, Ch. 39, §§ 139–144); Additional Protocol I, Article 70(1) (adopted by consensus) (ibid., § 146).
[2] Additional Protocol I, Article 77(1) (adopted by consensus) (ibid., § 147).
[3] See, e.g., the military manuals of Argentina (ibid., §§ 162–163), Australia (ibid., § 165), Benin (ibid., § 166), Canada (ibid., § 167), Colombia (ibid., § 168), Ecuador (ibid., § 169), El Salvador (ibid., §§ 170–171), France (ibid., §§ 172–173), Germany (ibid., § 174), India (ibid., §§ 175–176), Indonesia (ibid., § 177), Italy (ibid., § 178) Kenya (ibid., § 179), Madagascar (ibid., § 180), Morocco (ibid., § 181), Netherlands (ibid., § 182), New Zealand (ibid., § 183), Nicaragua (ibid., § 184), Nigeria (ibid., § 185), Philippines (ibid., § 186) Spain (ibid., § 187), Sweden (ibid., § 188), Switzerland (ibid., § 189), Togo (ibid., § 190), United Kingdom (ibid., §§ 191–192) and United States (ibid., §§ 193–195).
[4] See, e.g., the legislation of Azerbaijan (ibid., § 197), Bangladesh (ibid., § 198), Belarus (ibid., § 199), Ireland (ibid., § 200), Norway (ibid., § 201) and Venezuela (ibid., § 202); see also the draft legislation of Argentina (ibid., § 196).
[5] See, e.g., the statements of France (ibid., § 205) and United States (ibid., §214) and the practice of Indonesia (ibid., § 207).
[6] See, e.g., the military manuals of India (ibid., § 175), Nigeria (ibid., § 185), Philippines (ibid., § 186) and United States (ibid., § 195) and the statements of Indonesia (ibid., § 207) and United States (ibid., § 214).
[7] Additional Protocol II, Article 4(3) (adopted by consensus) (ibid., § 148).
[8] Convention on the Rights of the Child, Article 38 (ibid., § 149).
[9] African Charter on the Rights and Welfare of the Child, Article 22 (ibid., § 151).
[10] Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia, § 4 (ibid., § 156); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, § 2.3 (ibid., § 157); Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines, Part III , Article 2(24) (ibid., § 158); UN Secretary-General’s Bulletin, Section 7.4 (ibid., § 159); UN Millennium Declaration, § 26 (ibid., § 160); EU Charter of Fundamental Rights, Article 24 (ibid., § 161).
[11] See, e.g., the military manuals of Argentina (ibid., § 163), Australia (ibid., § 165), Benin (ibid., § 166), Canada (ibid., § 167), Colombia (ibid., § 168), Ecuador (ibid., § 169), El Salvador (ibid., §§ 170–171), France (ibid., § 173), Germany (ibid., § 174), India (ibid., §§ 175–176), Italy (ibid., § 178) Kenya (ibid., § 179), Madagascar (ibid., § 180), New Zealand (ibid., § 183), Nicaragua (ibid., § 184), Nigeria (ibid., § 185), Philippines (ibid., § 186) Spain (ibid., § 187) and Togo (ibid., § 190).
[12] See, e.g., the practice of Colombia (ibid., § 204), Ghana (ibid., § 206) Philippines (ibid., § 209), Sri Lanka (ibid., § 210) and Sudan (ibid., §§ 211–212).
[13] See, e.g., UN Security Council, Res. 1181 (ibid., § 216), Res. 1296 (ibid., § 218) and Res. 1314 (ibid., § 219); UN General Assembly, Res. 48/157 (ibid., § 223) and Res. 55/116 (ibid., § 224).
[14] UN Security Council, Res. 1261 (ibid., § 217).
[15] 25th International Conference of the Red Cross, Res. IX (ibid., § 237); 26th International Conference of the Red Cross and Red Crescent, Res. II (ibid., § 238).
[16] 27th International Conference of the Red Cross and Red Crescent, Res. I (adopted by consensus) (ibid., § 239).
[17] UN Committee on the Rights of the Child, Report on the Second session, UN Doc. CRC/C/10, 19 October 1992, § 73.
[18] Convention on the Rights of the Child, Article 1.
[19] 18 years of age: compulsion to work in occupied territory (Fourth Geneva Convention, Article 51), pronouncement of the death penalty (Fourth Geneva Convention, Article 68) (cited in Vol. II, Ch. 39, § 347), execution of the death penalty (Additional Protocol I, Article 77 (adopted by consensus)) (ibid., § 350), pronouncement of the death penalty (Additional Protocol II, Article 6 (adopted by consensus)) (ibid., § 351); 15 years of age: measures to ensure that orphans and children separated from their families are not left on their own (Fourth Geneva Convention, Article 24) (ibid., § 140), same preferential treatment for aliens as for nationals (Fourth Geneva Convention, Article 38) (ibid., § 141), preferential measures in regard to food, medical care and protection adopted prior to occupation (Fourth Geneva Convention, Article 50) (ibid., § 142), additional food for interned children in proportion with their physiological needs (Fourth Geneva Convention, Article 89) (ibid., § 144), participation in hostilities and recruitment (Additional Protocol I, Article 77 (adopted by consensus), and Additional Protocol II, Article 4 (adopted by consensus)) (ibid., §§ 379–380); 12 years of age: arrangement for all children to be identified by the wearing of identity discs, or by some other means (Fourth Geneva Convention, Article 24).
[20] Fourth Geneva Convention, Article 68, fourth paragraph (cited in Vol. II, Ch. 39, § 347).
[21] Additional Protocol I, Article 77(5) (adopted by consensus) (ibid., § 350).
[22] Additional Protocol II, Article 6(4) (adopted by consensus) (ibid., § 351).
[23] See, e.g., the military manuals of Argentina (ibid., §§ 355–356), Australia (ibid., § 357), Canada (ibid., § 358), Netherlands (ibid., § 360), New Zealand (ibid., § 361), Switzerland (ibid., § 362), United Kingdom (ibid., § 363) and United States (ibid., § 364).
[24] International Covenant on Civil and Political Rights, Article 6(5) (ibid., § 348); American Convention on Human Rights, Article 4(5) (ibid., § 349); Convention on the Rights of the Child, Article 37(a) (ibid., § 352).
