III. RELEVANCE AND ADEQUACY OF EXISTING STANDARDS FOR THE PROTECTION OF CHILDREN
- Through the Convention on the Rights of the Child, now ratified by nearly all countries, the world has recognized that the rights of children include the right to have their basic needs met. It is a basic need of children to be protected when conflicts threaten and such protection requires the fulfilment of their rights through the implementation of international human rights and humanitarian law.
- States Parties to the Convention on the Rights of the Child are responsible for all children within their territory without discrimination.
In accepting the role of the Committee on the Rights of the Child in monitoring the implementation of the Convention on the Rights of the Child, States Parties have also recognized that the protection of children is not just a national issue, but a legitimate concern of the international community. This is especially important since many of the most serious violations of children’s rights are taking place in situations of conflict, such as Liberia and Somalia, where there is currently no functioning national Government. National and international strategies to protect children must empower and build the capacities of women, families and communities to address the root causes of conflict and strengthen local development.
- Increased efforts are needed to ensure that relief and protection measures specifically include child-centred actions. During the expert’s field visits and regional consultations, she found that many relief organizations offer assistance without taking into account the broader needs of children or ensuring effective cooperation. Moreover, in many cases only cursory attention was given to developing appropriate emergency responses that take age and gender into consideration.
- One of the greatest challenges in providing protection is to ensure safe access. Formerly, hospitals and refugee camps were considered miniature safe havens, but this is no longer the case. Humanitarian activities from relief convoys to health clinics have all become targets, imperiling families, children and those who try to assist them – particularly locally recruited staff. Many governmental and non-governmental agencies have been least able to assist internally displaced children and their families and to help those who are living in besieged communities.
- In some conflicts, temporary cessations of hostilities have been negotiated to permit the delivery of humanitarian relief in the form of “corridors of peace” and “days of tranquillity”. In El Salvador, Lebanon and Afghanistan, for example, these agreements were supported by all warring parties to permit the vaccination of children. In the case of Operation Lifeline Sudan, such arrangements were made to deliver relief supplies and vaccines during relative lulls in the conflict. The precedents set by these child-centred agreements are useful models to relate practical protection measures to the implementation of humanitarian and human rights law.
- Thus it is that we seek to have protection framed by the standards and norms embodied in international law, national legislation and local custom and practice. Politicians and soldiers have long recognized that they can achieve many of their objectives if they fight within agreed standards of conduct. Considerations and concerns in the area of protection have led to the development of two main bodies of law, humanitarian law and human rights law, that form the legal bases that afford children protection in situations of armed conflict.
- Many aspects of both bodies of law are relevant to the protection of children in armed conflict. The Convention on the Rights of the Child is of special note, as it is one of the most important bridges linking two bodies of law whose complementarity is increasingly recognized. Building on this complementarity, the international community must achieve the fullest possible protection of children’s rights. Any purported mitigating circumstances through which Governments or their opponents seek to justify infringements of children’s rights in times of armed conflict must be seen by the international community for what they are: reprehensible and intolerable. The next section of this report highlights features of the standards of humanitarian and human rights law and assesses their adequacy for meeting present needs.
- Humanitarian law
- The international humanitarian law of armed conflict, usually referred to simply as international humanitarian law 40/ limits the choice of means and methods of conducting military operations and obliges belligerents to spare persons who do not, or who no longer, participate in hostilities. These standards are reflected in the four Geneva Conventions of 12 August 1949 and the two 1977 Protocols Additional to these Conventions.
- The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War is one of the main sources of protection for civilian persons, and thus for children. It prohibits not only murder, torture or mutilation of a protected person, but also any other measures of brutality whether applied by civilian or military agents. The Fourth Geneva Convention has been ratified, almost universally, by 186 States.
- The Geneva Conventions of 1949 have been considered to apply primarily only to conflicts between States. However, the Conventions also include common article 3 which applies also to internal conflicts. This article enumerates fundamental rights of all persons not taking an active part in the hostilities, namely, the right to life, dignity and freedom. It also protects them from torture and humiliating treatment, unjust imprisonment or being taken hostage.
- In 1977, the Geneva Conventions were supplemented by two additional Protocols that bring together the two main branches of international humanitarian law – the branch concerned with protection of vulnerable groups and the branch regulating the conduct of hostilities.
- Protocol I requires that the fighting parties distinguish at all times between combatants and civilians and that the only legal targets of attack should be military in nature. Protocol I covers all civilians, but two articles also offer specific protection to children. Article 77 stipulates that children shall be the object of special respect and shall be protected against any form of indecent assault and that the Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason. Article 78 deals with the evacuation of children to another country, saying that this should not take place except for compelling reasons, and establishing some of the terms under which any evacuation should take place.
- Non-international armed conflicts, that is to say, conflicts within States, are covered by Protocol II. Protocol II supplements common article 3 and provides that children be provided with the care and aid they require, including education and family reunion. However, Protocol II applies only to a restricted category of internal conflicts: they must involve conflicts between the armed forces of a High Contracting Party and dissident armed forces or other organized armed groups. According to this criterion, it can be argued that Protocol II would not apply to the majority of current civil wars. The reason is obvious: few Governments (High Contracting Parties) are likely to concede that any struggle within their borders amounts to an armed conflict. Protocol II does not apply to an internal disturbance or tension, a riot or isolated acts of violence. Naturally, for children who are victims of such struggles, it makes little difference that the violence to which they are subject does not rise above this minimum threshold.
- While the Fourth Geneva Convention has been almost universally ratified, the Protocols have been ratified by far fewer States. To date, 144 States have ratified Protocol I, and those absent include a number of significant military powers; of Gulf War combatants, for example, the United States of America, the United Kingdom of Great Britain and Northern Ireland, France and Iraq have yet to ratify Protocol I. The situation with Protocol II is even less satisfactory: only 136 have ratified.
- In general, humanitarian law represents a compromise between humanitarian considerations and military necessity. This gives it the advantage of being pragmatic. It acknowledges military necessity yet it also obliges armed groups to minimize civilian suffering and, in a number of articles, requires them to protect children. However, these articles cannot be considered adequate to ensure the safety and survival of children trapped in internal conflicts.
- Human rights law
- Human rights law establishes rights that every individual should enjoy at all times, during both peace and war. The obligations, which are incumbent upon every State, are based primarily on the Charter of the United Nations and are reflected in the Universal Declaration of Human Rights (General Assembly resolution 217 A (III)).
- In formal legal terms, the primary responsibility for ensuring human rights rests with States, since they alone can become contracting parties to the relevant treaties. It follows that opposition groups, no matter how large or powerful, cannot be considered directly bound by human rights treaty provisions. It is significant, however, that the situation is precisely the opposite in relation to the application of international humanitarian law to non-state entities in internal conflicts. This relative inconsistency between the bodies of law is further ground for insisting that non-state entities should, for all practical purposes, be treated as though they are bound by relevant human rights standards. Nevertheless, just as the international community has insisted that all States have a legitimate concern that human rights be respected by others, so too it is clear that all groups in society, no matter what their relationship to the State concerned, must respect human rights. In relation to non-state entities, the channels for accountability must be established more clearly.
- Although human rights law applies both in peacetime and in war, there are circumstances where the enjoyment of certain rights may be restricted.
Many human rights treaties make allowance for States to derogate from their obligations by temporarily suspending the enjoyment of certain rights in time of war or other public emergency. However, human rights law singles out certain rights that can never be subject to derogation. These include the right to life; freedom from torture and other inhuman or degrading treatment or punishment; freedom from slavery; and the non-retroactivity of penal laws. In relation to rights from which derogation is permitted, strict conditions must be met: the emergency must threaten the life of the nation (and not merely the current Government’s grip on power); the relevant international bodies must be notified; any measures taken must be proportionate to the need; there must be no discrimination; and the measure must be consistent with other applicable international obligations. International bodies such as the Commission on Human Rights, the Human Rights Committee and the Committee on the Rights of the Child carefully scrutinize the assertion by any Government that derogation is necessary and justified.
- Human rights law has a number of specialized treaties which are of particular relevance to the protection of children in armed conflict. The International Covenant on Civil and Political Rights (General Assembly resolution 2200 A (XXI)) covers many rights including the right to life and the right to freedom from slavery, torture and arbitrary arrest. The International Covenant on Economic, Social and Cultural Rights (General Assembly resolution 2200 A (XXI)) recognizes the right to food, clothing, housing, health and education. The Convention on the Elimination of All Forms of Discrimination against Women (General Assembly resolution 34/180) is of particular note. In addition, there are treaties that deal with particular themes or groups of people, covering such issues as genocide, torture, refugees, and racial discrimination. In the context of this report, the most notable specialized treaty is the Convention on the Rights of the Child.
- Convention relating to the Status of Refugees
- As armed conflicts frequently produce large numbers of refugees, refugee law is of particular relevance. In its work, UNHCR relies principally on the Convention relating to the Status of Refugees adopted on 28 July 1951 and its Protocol of 1967. These instruments provide basic standards for the protection of refugees in countries of asylum; most important is the principle of non-refoulement. The 1951 Convention and the 1967 Protocol are complemented by regional refugee instruments – notably, the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa of 1969 and the Cartagena Declaration on Refugees of 1984. States have primary responsibility to ensure the protection of refugees within their boundaries. UNHCR is mandated to provide international protection for refugees and to find permanent solutions to refugee situations.
- Many refugees fleeing armed conflict have reason to fear some form of persecution on ethnic, religious, social or political grounds at the hands of one or more of the parties to a conflict, but others are fleeing the indiscriminate effects of conflict and the accompanying disorder, including the destruction of homes and food stocks that have no specific elements of persecution. While the latter victims of conflict require international protection, including asylum on at least a temporary basis, they may not fit within the literal terms of the 1951 Convention. States Parties and UNHCR, recognizing that such persons are also deserving of international protection and humanitarian assistance, have adopted a variety of solutions to ensure that they receive both. This is most recently exemplified by the regime of “temporary protection” adopted by States in relation to the conflict in former Yugoslavia.
- The standards of the Convention on the Rights of the Child are also of particular relevance to the refugee child. Through its guidelines on the protection and care of refugee children, UNHCR seeks to incorporate the standards and principles of the Convention into its protection and assistance framework.
- Convention on the Rights of the Child
- The most comprehensive and specific protection for children is provided by the Convention on the Rights of the Child, adopted by the General Assembly in resolution 44/25 in November 1989. The Convention establishes a legal framework that greatly extends the previous recognition of children as the direct holders of rights and acknowledges their distinct legal personality.
The Convention on the Rights of the Child has, in a very short space of time, become the most widely ratified of all human rights treaties. Currently, only six States have not ratified the Convention on the Rights of the Child: Cook Islands, Oman, Somalia, the United Arab Emirates, Switzerland and the United States of America.
- The Convention recognizes a comprehensive list of rights that apply during both peacetime and war. As stressed by the Committee on the Rights on the Child (A/49/41) these include protection of the family environment; essential care and assistance; access to health, food and education; the prohibition of torture, abuse or neglect; the prohibition of the death penalty; the protection of the child’s cultural environment; the right to a name and nationality; and the need for protection in situations of deprivation of liberty. States must also ensure access to, and the provision of, humanitarian assistance and relief to children during armed conflict.
- In addition, the Convention on the Rights of the Child contains, in articles 38 and 39, provisions specifically related to armed conflict. The former article is of major significance because it brings together humanitarian law and human rights law, showing their complementarity. Its provisions require that States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to children in armed conflicts, and paragraph 4 states that:
“In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.”
- If the Convention on the Rights of the Child were to be fully implemented during armed conflicts, this would go a long way towards protecting children. Children’s right to special protection in these situations has long been recognized. The Convention on the Rights of the Child has no general derogation clause and, in light of this, the Committee on the Rights of the Child stresses that the most positive interpretation be adopted with a view to ensuring the widest possible respect for children’s rights. In particular, the Committee has stressed that, in view of the essential nature of articles 2, 3 and 4, they do not admit any kind of derogation (A/49/41).
- As with other human rights treaties, the Convention on the Rights of the Child can only be formally ratified by States. Nevertheless, it is well worth encouraging non-state entities to make a formal commitment to abide fully by the relevant standards. Many non-state entities aspire to form governments and to invoke an existing Government’s lack of respect for human rights as a justification for their opposition. In order to establish their commitment to the protection of children, non-state entities should be urged to make a formal statement accepting and agreeing to implement the standards contained in the Convention on the Rights of the Child. There are encouraging precedents here. In 1995 in Sudan, for example, several combatant groups became the first non-state entities to commit to abide by the provisions of the Convention on the Rights of the Child. Significantly, once the commitments were enacted, the non-state entities immediately put information, reporting and complaint systems in place.
- While the Convention on the Rights of the Child offers comprehensive protection to children, it needs strengthening with respect to the participation of children in armed conflict. The Committee on the Rights of the Child has recognized the importance of raising the minimum age of recruitment to 18 years, and in 1994 the Commission on Human Rights established a working group to draft an optional protocol to the Convention to achieve this. The scope of the draft text has been significantly broadened to include articles on non-state entities, on rehabilitation and social reintegration of child victims of armed conflicts, and on a procedure of confidential enquiries by the Committee on the Rights of the Child. Despite the progress that has been made, there continues to be resistance on the issue of voluntary recruitment and on distinguishing between direct and indirect participation. The argument that the age of recruitment is merely a technical matter to be decided by individual Governments fails to take into account the fact that effective protection of children from the impact of armed conflict requires an unqualified legal and moral commitment which acknowledges that children have no part in armed conflict.
- Implementation of standards and monitoring of violations Standards will only be effective, however, if and when they are widely known, understood, and implemented by policy makers, military and security forces and professionals dealing with the care of children, including the staff of United Nations bodies, specialized agencies and humanitarian organizations. Standards should also be known and understood by children themselves, who must be taught about their rights and how to assert them. Everyone professionally concerned with the protection of children during armed conflict should familiarize themselves with both humanitarian and human rights law.
- International peacekeepers in particular, must be trained in humanitarian and human rights law and, particularly, about the fundamental rights of children. The Swedish Armed Forces International Centre has developed a training programme for peacekeeping regiments which includes components on child rights as well as rules of engagement, international humanitarian law and ethics. Child rights components, developed in collaboration with Ra”dda Barnen, provide an orientation about the impact of armed conflict on children and situations that peacekeepers are likely to encounter that would require a humanitarian response.
- Human rights and humanitarian standards reflect fundamental human values which exist in all societies. An aspect of implementation requiring greater attention is the translation of international instruments into local languages and their wide dissemination through the media and popular activities such as expositions and drama. In Rwanda, Save the Children Fund-US, Haguruka (a local NGO) and UNICEF supported the development of an official Kinyarwanda version of the Convention on the Rights of the Child. This has been adopted into Rwandan law and projects are being developed to implement its provisions widely.
- An effective international system for the protection of children’s rights must be based on the accountability of Governments and other actors. This in turn requires prompt, efficient and objective monitoring. The international community must attach particular importance to responding effectively to each and every occasion when those involved in armed conflicts trample upon children’s rights.
- Within the organs of the United Nations, the principal responsibility for monitoring humanitarian violations rests, in practice, upon the Commission on Human Rights. The Commission can receive information from any source and take an active role in gathering data. The latter role is accomplished through a system of rapporteurs and working groups, whose reports can be an effective means of publicizing violations and attempting to persuade States to change their policies. The reports of each of the rapporteurs and working groups should reflect the concerns of children in situations of armed conflict.
- Another dimension of monitoring by international bodies relates to the supervision of treaty obligations. Each of the principal human rights treaties has its own monitoring body composed not of formal representatives of States, but of independent experts. The various committees and, in particular, the Committee on the Rights of the Child, should embark upon more concerted and systematic monitoring and reporting to protect children in situations of armed conflict. They should also assist States in translating their political commitment to children into action, consequently elevating the priority accorded to this concern.
- The Geneva Conventions entrust to ICRC, IFRC and their National Societies the mandate to monitor respect for international humanitarian law. ICRC, IFRC and their National Societies report breaches of international humanitarian law and makes concrete recommendations on how to end breaches and prevent their recurrence. As has been noted, international humanitarian law also recognizes a role for other humanitarian organizations.
- Where protection of children is concerned, much broader participation in the monitoring and reporting of abuses is required. Many of those working for relief agencies consider that reporting on infractions of either humanitarian or human rights law is outside their mandate or area of responsibility.
Others are worried that they will be expelled from the country concerned or have their operations severely curtailed if they report sensitive information. But a balance must be struck. Without reports of such violations, the international community is deprived of vital information and is unable to undertake effective monitoring. Appropriate public or confidential channels should be established nationally through which to report on matters of grave concern relating to children. The High Commissioner for Human Rights, national institutions and national ombudspersons, international human rights organizations and professional associations should be actively utilized in this regard. The media should also do more to raise awareness of infringements of children’s rights.
- Specific recommendations on standards
- The expert submits the following recommendations on standards:
- The few Governments which have not become Parties to the Convention on the Rights of the Child should do so immediately;
- All Governments should adopt national legislative measures to ensure the effective implementation of relevant standards, including the Convention on the Rights of the Child, the Geneva Conventions of 1949 and their Additional Protocols and the 1951 Convention relating to the Status of Refugees and its Protocol;
- Governments must train and educate the judiciary, police, security personnel and armed forces, especially those participating in peacekeeping operations, in humanitarian and human rights law. This should incorporate the advice and experience of ICRC and other humanitarian organizations and, in the process, undertake widespread dissemination;
- Humanitarian organizations should train their staff in human rights and humanitarian law. All international bodies working in conflict zones should establish procedures for prompt, confidential and objective reporting of violations that come to their attention;
- Humanitarian organizations should assist Governments in educating children about their rights through the development of curricula and other relevant methods;
- Humanitarian agencies and organizations should seek to reach signed agreements with non-state entities, committing them to abide by humanitarian and human rights laws;
- Civil society should actively disseminate humanitarian and human rights law and engage in advocacy, reporting and monitoring of infringements of children’s rights;
- Building on existing guidelines, UNICEF should develop more comprehensive guidelines on the protection and care of children in conflict situations;
- Particularly in the light of articles 38 and 39 of the Convention on the Rights of the Child, the Committee on the Rights of the Child should be encouraged to include, in its report to the General Assembly, specific information on the measures adopted by States Parties to protect children in situations of armed conflict.