The protection of the child in international humanitarian law

The protection of the child in international humanitarian law
30-06-1984 Article, international review of the Red Cross, 747, Denise Plattner
Denise Plattner, lawyer to the ICRC



I. INTRODUCTION [1]

It was after the second world war that the legal protection of the child has found its place in international humanitarian law. Experiences of this conflict had indeed shown the need to develop an instrument of international public law designed to protect the civilian population in time of war, compelling way. The efforts of the ICRC in this area led to the adoption of the Fourth Geneva Convention of 1949, relative to the protection of civilian persons in time of war. Children, as members of the civilian population, were then developed for the benefit of this Convention. Furthermore, the diplomatic Conference of 1949 gave the day to the first regulation of international humanitarian law of non-international armed conflict, contained in article 3 common to the four Geneva Conventions of 1949. There also, children are protected, as all "persons who do not participate in hostilities".

After the second world war, the international community sees the emergence of new forms of conflict. Methods and means of combat is perfected. There is more and more conflicts involving of the organized armed forces and irregular fighters. The modern war cause much more severe losses among civilians and, of course, in children. From 1974 to 1977, a diplomatic Conference meets, to complement and develop international humanitarian law to account for this evolution. At the end of this Conference, in 1977, the two protocols additional to the Geneva Conventions are adopted. These instruments improve considerably the protection of the civilian population and, therefore, that of children. In Protocol I, applicable in international armed conflicts, or in Protocol II, relating to non-international armed conflict situations, the new provisions reaffirm and develop those of the Fourth Geneva Convention [2].

The international Committee of the Red Cross (ICRC), who works for the victims of armed conflict, has always been particularly sensitive to the plight of children during the war. Since the first world war in particular, he tried to limit their suffering by contributing to the consolidation of their legal protection, on the one hand, by its action in the countries affected by conflict, on the other hand.

IL. the PROTECTION of the child in the Geneva CONVENTIONS and additional protocols

In international humanitarian law, the child is the subject of a general protection, a person not participating in hostilities, and special protection, because of its quality to be particularly vulnerable. On the other hand, the child who is participating in the hostilities is also protected. The different aspects of the legal protection of the child will be examined successively in the following paragraphs.

A. General Protection of the child, Member of the civilian population

During an international armed conflict, the child falls in the category of persons protected by the Fourth Geneva Convention, relative to the protection of civilian persons in time of war. As such, it is including all the provisions relating to the treatment of protected persons, which set out the fundamental principle of human treatment, with respect for life and the physical and moral integrity, and prohibiting coercion, physical abuse, including torture, collective punishment, reprisals.

As a member of the civilian population, the child benefits from the rules of international law humanitarian relating to the conduct of hostilities. These rules, develop the principle of the distinction between civilians and combatants and the prohibition of attacks between the civilian population, found in what concerns international armed conflicts, their written expression in additional Protocol I of 1977.

In a non-international armed conflict, children are protected by the fundamental guarantees relating to the treatment of persons who do not participate in hostilities, set out in article 3 common to the four Geneva Conventions. Through this provision, the child has the right, at least, in these conflicts often very cruel to human treatment, excluding damage to life, body integrity, dignity.

Additional Protocol II of 1977 also codifies the principle according to which neither the civilian population as such nor civilian persons will have to be the object of attacks.

B. Special Protection of the child, Member of the civilian population

1. The principle

The Fourth Geneva Convention contains a very large number of provisions for children. They demonstrate that, already in 1949, it was intended to particularly protect the child against the war. Nowhere, however, this Convention does set out the principle that lies at the base of its many rules for children.

Additional Protocol I fills this gap. Section 77 States: "children must be the subject of a special respect and shall be protected against any form of indecent assault." The Parties to the t confli bring them care and aid they need because of their age or for any other reason. "The principle of the special protection of the child in an international armed conflict is thus devoted explicitly.

The same development was given to non-international armed conflict, by the additional protocol it. Article 4, entitled "Fundamental guarantees", contains a subsection devoted exclusively to children. It is stipulated that "the children will receive the care and aid they need." This article lists the specific measures which the children must be, giving specific content to the general rule above stated. The content of article 4 allows to appreciate the importance that the authors of the additional protocol it have given to the protection of the child in non-international armed conflicts and support that the principle of the special protection of the child in these conflicts is stated.

2. Special provisions for protection against the effects of hostilities

Infants are assimilated to the "wounded", as defined by Protocol I (art. 8, litt. a).

Children less than fifteen years and mothers of children under seven years are part of the civil population categories that may be allowed in the health areas and security established by the Parties to an international armed conflict under article 14 of the Fourth Geneva Convention. Similarly, children and women in layers fall into the category of civil persons who, under the Fourth Convention, should be evacuated from besieged or circled place (art. 17).

Additional Protocol I provides, however very strict conditions, the temporary children's evacuation, if it is made necessary for compelling reasons relating to their security (art. 78).

For non-international armed conflict, the additional Protocol encourages, under certain conditions, the temporary evacuation of the children of a sector where hostilities took place to a safer area of the country (art. 4, para. 3, litt. e).

3 Right to care and assistance

As mentioned previously, additional Protocol I imposes the obligation to provide care and assistance to children to the Parties to an international armed conflict.

In the Fourth Geneva Convention, several provisions take into consideration the special needs of children.

Thus, any High Contracting Party shall permit the free passage of aid intended for children under fifteen years of age and to women in childbirth (art. 23). An occupying power must facilitate the proper functioning of the institutions devoted to the care of children in the occupied territory (art. 50). A party in conflict has the obligation to provide for the maintenance of dependent of the internees who remain without sufficient means of subsistence or persons unable to earn themselves their lives (art. 81). Women in childbirth and children aged less than 15 years, a party in conflict had committed for reasons of security, must receive food supplements, according to their physiological needs (art. 89).

Under Additional Protocol I, priority will be given, among others, children and women in childbirth in the distribution of relief consignments (art. 70, by. 1).

Finally, the temporary evacuation of children pursuant to section 78 of this Protocol is also where reasons health or medical treatment of the children so require (art. 78, by. 1).

With regard to the armed conflict, not international, additional Protocol II, as mentioned previously, States the right to care and the children (art. 4, by. 3).

4. The child and his family

On the findings of a study by UNESCO on the child and the war, the provisions of international humanitarian law are designed to preserve the family unit in the armed conflicts are of particular importance. According to this study in effect:

"When one explores the nature of the psychological suffering in the child victim of the war, we discover that it is not the facts of war themselves - such as bombing, military operations that affected him emotionally." His sense of adventure, his interest in the destruction and the movement can accommodate the worst dangers, and it does not aware of the risk if he keeps with him the protector which, in the heart of child, embodies the security, and if it can at the same time tighten any familiar object in his arms.



"This is the impact of events on its family bonding and separation from the customary framework of life affecting the child and, above all, the brutal pullout to his mother" [3].

Additional Protocol I sets out the general duty of the High Contracting Parties and the Parties in conflict to promote the reunification of families which are found dispersed after the break-up of an international armed conflict (art. 74).

The unity of the family is taken into account in the different requirements for the treatment of persons deprived of freedom. The Fourth Geneva Convention provides that, as far as possible, the members of a family who were interned will be together in the same premises, will be accommodated separately from other internees, and that facilities will be granted them for a life of family (art. 82). Internees may request that their children left unattended are interned (art. 82). According to additional Protocol I, the unit of arrested, detained or interned families will be preserved as much as possible for their housing (art. 75, para. 5).

It is also the desire to preserve a p maternal availabilty to the child who is originally rules of additional Protocol I on the mothers of children in low age-dependent of them who are arrested, detained or interned. Their case must be considered in priority (art. 76, para. 2). The Parties to the conflict must avoid pronounce sentences of death against them, if the death sentence is pronounced, it will not be executed (art. 76, para. 3).

The protection of the family link was taken into consideration for the temporary evacuation of children pursuant to section 78 of the additional Protocol I. This operation is subject to very strict conditions. The consent of the parents, guardians or persons who act or custom attributed mainly the custody of the children is required (art. 78, by. 1). In addition, all measures must be taken to preserve the identity of the evacuated children (art. 78, para. 3).

The principle of the intangibility of the personal status of the child, set out in the Fourth Geneva Convention, an occupying power to amend the family status or the civil status of children (art. 50) is prohibited.

With regard to the protection of the family, also include article 51 of the Fourth Geneva Convention, which prohibits an occupying power to place on the work of protected persons of the age of 18.

Finally, the presentation of all the measures provided for by international humanitarian law to preserve the links between the child and his family would be incomplete if it did not, on the one hand, the provisions for purpose keep track of the people protected, on the other hand, those that allow members of their families of the fate of the persons protected.

In view of the Fourth Geneva Convention, the Parties to the conflict should endeavour to take measures to ensure that all children under 12 years are identified, including by the port of a plate of identity (art. 24). An occupying power must facilitate the identification of children and the registration of their parentage, and create, in its information on protected persons Office, a special section responsible for seeking the identity of children who would be remained uncertain (art. 50). Emphasis should be placed on the importance of a system for the identification of children and in particular the children. It is the only way to avoid that thousands of children are abandoned by the events of the war: mass exoduses, bombing, destruction of cities, deportations, etc.

The Fourth Geneva Convention also recognizes the right to any person on the territory of a party in conflict or in a territory occupied by it to its new members of his family, wherever they are (art. 25). Finally, thanks to the system put in place by the Geneva Conventions and the skills to the Central Agency of research recognized by the Geneva Conventions [4], parents can receive information about children who are in the power of a party conflict and vice versa (art. 136 et seq.).

For non-international armed conflict, the additional protocol it has that all appropriate measures must be taken to facilitate the reunification of families temporarily separated (art. 4, para. 3, litt d). The evacuation of children is subject to the consent of parents or persons who guard as the main act or custom"(art. 4, para. 3, litt. e). The death penalty will not be removed from the mothers of young children (art. 6, para. 4).

5. The cultural environment of the child

When the child remains with his family, he enjoys the cultural environment in which it is accustomed. By protecting the family environment of the child, international humanitarian law also protects moral values, religion, culture and traditions in which the child has been raised. If the child is orphaned or separated from its parents, this cultural environment may be affected by the conflict. According to the provisions of international law humanitarian relating to this category of children, that the authors of the Fourth Geneva Convention and additional Protocol I are required to the principle that children, international armed conflict, should benefit from an environment as close as possible from that to which they are accustomed.

Thus, in the Geneva Convention IV, the Parties to the conflict must in all circumstances facilitate, for children separated or orphaned, "the practice of their religion and their education." "It will if possible be entrusted to persons similarly cultural tradition" (art. 24). The home of these children in neutral countries should respond to the same principles (art. 24). The occupying power shall make arrangements to ensure the maintenance and education of children orphaned or separated, "if possible by persons of their nationality, language and religion,... in the absence of a close relative or a friend who could provide" (art. 50).

In additional Protocol I, article on the evacuation of children to a foreign country has that "the education of each child, including his religion education evacuated ieuse and such moral that the desire to his parents, will have to be ensured also continued as possible" (art. 78, para. 2).

6. The education of children

In addition to the provisions which are to be mentioned on the education of children orphaned or separated, the Fourth Geneva Convention imposes some general duties in the education of children to a party to an international armed conflict. The occupying power must facilitate the proper functioning of the institutions devoted to the education of children (art. 50). The detaining power shall ensure the training of children and adolescents interned, who can attend schools (art. 94).

For non-international armed conflict, additional Protocol II provides that children "shall receive an education, including religious and moral, as education that the wish their parents or, in the absence of parents, persons who have custody" (s. 4, para. 3, litt has).

7. The personal rights of the child

The Fourth Geneva Convention prohibits the occupying power to amend the personal status of children (art. 50). Their nationality and their civil status will therefore not suffer changes the fact of occupation that complements, for children, the fundamental principles of respect for the individual and family rights proclaimed in article 27 of this Convention. On the other hand, the occupying power shall not enlist children in formations or organizations dependent on it (art. 50). This prohibition is tinée to prevent the renewal of massive forced embeddings which occurred during the second world war, where many children had been enrolled Office in organizations and movements devoted primarily for political purposes.

8. Respect for the preferential treatment of the child

If the Fourth Geneva Convention does not set out the principle of the special protection which must be given to the child, two of its provisions stipulate however expressly that preferential regime granted to children by national legislation must be respected in international armed conflict. Indeed, often in war countries enact provisions for persons whose vulnerability calls for special measures: granting of additional food maps, facilities for medical and hospital care, social assistance, measures for protection against the effects of the war, etc. Children less than fifteen years and mothers of children of less than seven years who are nationals of the other party shall benefit from preferential treatment granted to nationals of corresponding categories (art. 38). Similarly, the occupying power shall not impede the application of preferential measures taken for these people before the occupation (art. 50).

9. The children arrested, detained or interned

International law permits a party to an international armed conflict to take measures to ensure its own security for protected persons. One of these measures is the internment. In addition, the occupying power may charge of protected persons, for an offence under the national legislation in force in the occupied territory, or for violation of the provisions that it will be enacted to ensure his own safety. The child, as any protected person may be committed. It can also be charged, as it could be in time of peace, for having committed an offence in criminal law, on occupied territory, or engaging in acts relating to security of the occupying power. It can, finally, unlike the right international humanitarian (see C below), have been enlisted in the armed forces and be captured as a combatant of these forces. International humanitarian law, taking account of these situations, provides specific provisions for children deprived of liberty.

Under the additional Protocol I, arrested, detained or interned child must be kept in premises separate from those of adults, except in cases where it housed with his family (art. 77, c. 4).

The Fourth Convention provides the grouping of the children with their parents interned (art. 82), whereas the additional Protocol I extends it to all persons who are in power of a party in conflict (art. 75),

by. (5) (see § 4 above).

The Fourth Geneva Convention provides for the training of children and adolescents interned (see § 6 above), and special locations for game and sports (art. 94). Food supplements (art. 89) are planned (see § 3 above). Finally, the Convention encourages release, repatriation, return instead of home or hospitalization in neutral country of children and mothers with infants and clinics ts young internees (art. 132).

According to the Geneva Convention IV, it will be taken into account, for minors charged with, the special regime provided for by the legislation in force before the occupation (art. 76).

Under the terms of additional Protocol I, the children participating directly in hostilities while they do not have fifteen years of age remain, if they fall in the power of an adverse party, for the benefit of the special protection granted by article 77 (art. 77, para. 3) (see C below).

For non-international armed conflict, the additional protocol contains a provision identical for children under fifteen years participating in hostilities (art. 4, para. 3, litt d) (see C below).

10. The child and the death penalty

The authors flowing of the Fourth Geneva Convention that additional protocols were set at 18 years the age limit below which no death sentence should be executed. According to the commentary to the Fourth Convention:

"It is an absolute limit as opposed to the execution of the death penalty, even if all the conditions that make this sentence are met." "It corresponds to provisions found in the criminal code of many countries, and is the idea that before eighteen years the individual is not fully capable of discernment, he does not always measure the scope of his actions and is often under the influence of others, if it is under the stress" [5].

With regard to the international armed conflict, additional Protocol I prohibits the execution of a sentence to death for an offence related to the armed conflict against the persons who had not eighteen years at the time of the offence (art. 77, by. 5). The Geneva Convention IV prohibits the sentence of death against a protected territory occupied person aged under eighteen at the time of the offence (art. 68).

For non-international armed conflict, additional Protocol II also prohibits decide the death penalty against persons of the age of 18 at the time of the offence (art. 6, para. 4).

11. The child an orphan or separate

The provisions that the Parties to an international armed conflict must take children orphaned or separated because of the war have already been raised in paragraphs devoted to the child and his family (see § 4) and the cultural environment of the child (see § 5).

The Fourth Geneva Convention attaches particular importance to the situation of children orphaned or separated from their families. The Parties in conflict have a duty to take the necessary measures to ensure that the maintenance and education of children under 15 years become orphans or separated because of the war are insured, and that they are not left to themselves (a rt. 24). The home in a neutral country is planned (art. 24). The authors of the Convention chose the age of fifteen years limit, because they felt that the development of faculties from this age did more with the same need for special measures [6]. Similarly, the occupying power must ensure that the maintenance and education of orphaned or separated children in the occupied territory are insured (art. 50).

C. the involvement of children in hostilities

The additional protocols contain provisions for a new problem, that of the participation of children in hostilities.

It is one of the consequences of the evolution in the nature of conflicts, characterized by the fact that civilians and combatants are often mixed. It is in this context that must be put the participation of children in hostilities, participation which may extend indirect aid to combatants until enlisting in the armed forces. It would have been realistic, or even possible to absolutely prohibit the participation of children in hostilities. Additional protocols tend to exclude to the extent possible, including prohibiting the recruitment of young people under 15 years (art. 77, para. 2 of the Protocol I and article 4 by. 3, litt. (c) of Protocol II). Protocol I further encourages the Parties to the conflict, if they enter persons over 15 years but under 18 years, to give priority to older (art. 77, by. 2).

If, despite the provisions of the additional protocols, children under 15 years are directly involved in hostilities and are captured, they remain for the benefit of the protection of children provided for by these instruments (art. 77, para. 3 of Protocol I and 4, para. 3, litt. (d) of Protocol II).

III. THE ACTION OF THE ICRC FOR CHILDREN VICTIMS OF CONFLICTS

The ICRC has always worked actively to the promotion of the legal protection of the child. It is already and, in 1939, the ICRC and the International Union for the protection of childhood, presented a draft Convention for the protection of the child, who does not live the day by the beginning of the second world war. Diplomatic conferences of 1949 first, and then from 1974-1977, ICRC is used to promote, and then develop and complement the legal protection of the child.

In its tradition of humanitarian institution and its mandate, the ICRC did however not wait the creation of legal provisions protecting children in armed conflict to undertake actions aimed at the protection of children on the ground. Throughout the conflict, the ICRC initiatives above the legal protection of the child, and seek to complete it or made up, when the implementation of international humanitarian law mechanisms fail.

During the second world war, in so many horrors and despite the difficulties it has encountered in its activities for civilians, including the lack of any legal basis, the ICRC was able to organize some actions, such as the placement of young people under 18 years in special camps, the Organization of radio broadcasts to facilitate the meeting of children separated from their parentsthe creation of homes to home in countries devastated by war.

There is an area in which the ICRC has provided and continues to make a contribution of paramount importance for children: the search for missing persons, the exchange of family messages and the reunification of families separated on both sides of the front. For more than a century, the Central Agency of the ICRC Research collects and transmits information on the missing, captured, refugee, released or repatriated persons and informed the families; When the normal channels of communication are cut, it ensures the transmission of family messages. In these tasks, the ICRC delegates involved in priority to find missing children, put them in contact and to bring with their family. The tasks of the Central Agency of research of the ICRC completed in recent years for children separated from their parents because of the war, include, among others, the identification of installed Khmer unaccompanied children in the refugee camps in Thailand by the conflict of Kampuchea. Therefore, in 1980, 3500 cases of unaccompanied minors have been registered by the ICRC, in collaboration with the High Commissioner of the United Nations for refugees and some voluntary agencies, with a view to bring together families separated by the conflict.

Assistance, children benefit from the actions of relief the ICRC undertakes for civil populations affected by conflict. In some cases, the main beneficiaries of ICRC assistance programs are children and adolescents. It was so, for example, in Zambia, the conflict in Rhodesia/Zimbabwe, where, on 29 000 refugees of Rhodesia/Zimbabwe, 18 000 were young people and young girls of less than 16 years, and 300 young women with their babies. The ICRC, to the end of the conflict (1980), provides for these persons a significant medical and material assistance.

Sometimes also to the ICRC to decide to take action specially for children. Include, in this regard, the programme of assistance to the orphanages that the ICRC undertook to Kampuchea, in 1981.

The ICRC seeks to protect all victims of armed conflict, and children, as such, are included in the ICRC interventions in these conflicts. It is said that the children will be visited by the ICRC to the power of a party in conflict and will be, in General, included in the approaches or interventions of the ICRC for victims of armed conflict. Children may, however, subject to a particular measure for the protection of the ICRC. This is so, for example, the day after the first visit of ICRC in the camp of Al-Ansar in southern Lebanon, where were held mainly Palestinian prisoners, 212 children under sixteen were released under the auspices of the ICRC. The Group of children was supported by the delegates of the ICRC, which ensured their return to their families in the different regions of the Lebanon (September-October 1982).

IV. CONCLUSION

Many of the provisions of international humanitarian law dedicated and develop the principle of the special protection of children in armed conflict. The action of the ICRC, as well when it is intended for all victims of armed conflict when it is for children in particular, that it tends to respect for international humanitarian law or that it is manifested by concrete measures listed in the daily tasks of its delegates, undoubtedly helps give a certain emotional to the principle of the protection of the child victim of the war. Indeed, this protection is part of the protection of civilians against the effects of hostilities. It is in this perspective that the protection of the child must first be located.

Notes

1 Work presented at the international Symposium "children and war", held in Siuntio Baths, Finland, from 24 to 27 March 1983.

2. At December 31, 1983, 38 States were parties to Protocol I, and 31 in the Protocol.

3 Excerpt from childhood, victim of the war, a study of the European situation, by Dr. Thérèse brush, UNESCO, 1949, Paris, pp. 11-12, cited in the "report on the work of the Conference of government experts" flight.II, ICRC, 1972, p. 98.

4. The origin of the provisions on the information in the Geneva Conventions Central Agency dates back to the first actions of the ICRC for victims of the conflict. But it was in 1914 that the ICRC created, for the first time, an agency tasked to collect and transmit information on the prisoners (wounded, sick and dead) and also on civilians, international prisoners of war. The existence and functioning of this agency was sanctioned by the 1929 Convention for the treatment of prisoners of war. During the second world war, the ICRC opened in Geneva, the Central Agency of prisoners of war, whose activity, which spread to civilians also, was considerable. The diplomatic Conference of 1949 confirmed the powers of the Central Intelligence Agency (d) years the Ille Geneva Convention, relative to prisoners of war, and repeated them in the Geneva Convention IV relative to the civilians. The main tasks of the cab in the light of the Geneva Conventions are the collection and transmission of information on protected persons. Currently, the Central Agency of research of the ICRC continues the work of the Central prisoners of war Agency. It operates under this name since the 1960s, as a Department of the ICRC and on a permanent basis.

5. Comment by the Fourth Convention of Geneva, international Committee of the Red Cross, Geneva, 1956, ad article 68, p. 372.

6. Ibid., ad article 24, p. 201