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ISIL Year Book of International Humanitarian and Refugee Law |
| You are here: | WorldLII >> Databases >> International >> Journals >> ISILYBIHRL >> 2001 >> [2001] ISILYBIHRL 2 |
R.K. DIXIT[*]
The main thrust of this article is to examine and evaluate the rules relating to the protection of children[1] among civilians who are perhaps the most vulnerable sections of society that suffer devastating inhuman miseries as a result of armed conflicts.
Before the Geneva Conventions regime, the subject of protection of civilians was governed by the laws of war as developed from time to time culminating in the Hague Conventions and in particular the Hague Convention concerning the laws and customs of war and the regulations annexed to it. The regulations confined themselves to a statement of the principle that the occupying Power must maintain law and order, and to a few elementary rules enjoining respect for family rights, for the lives of persons for private property and collective punishment. Absence of any separate international convention for the protection of civilians could be explained on the ground that it was, until quite recently, a cardinal principle of law of war that military operations must be confined to the armed forces and that the civilian population including children must enjoy complete immunity. This traditional concept was profoundly modified by the events of first world war. The ICRC reported to the Xth International Conference of the Red Cross held in Geneva in 1921 as follows:
“Civilians found themselves suddenly treated as criminals, taken to concentration camps or hastily improvised and quite unsuitable depots. For men, women and children, able-bodied or sick, people of all conditions, thrown together in deplorable over-crowding, and deprived of every comfort, such temporary hardship dragged on year after year, while they bore the brunt of indifference, if not of downright hatred and threats. Measures which, to begin with, might have been justified for security reasons, if they had really been temporary, soon became a means of reprisals and retortion, so that the civilian in captivity was a mere pawn in the hands of the detaining power”.[2]
During World War II, the situation was vastly changed for worse. The women participated in hostilities in greater numbers, in World War II, although they did not commonly bear arms. In addition, there were many more civilian victims than in earlier conflicts. Of the 50 million persons killed, it was estimated that 26 million were in the armed forces while 24 million were civilians. Hence the adoption of new legal rules taking such factors into consideration became imperative.[3]Sufferings of children became more glaring and appalling, in particular, the mass migrations, bombing raids and deportations maimed, wounded and separated thousands of children of all ages from their parents. The absence of any means of identifying little ones had disastrous consequences. Thousands of children were irretrievably lost to their own families and thousands of fathers and mothers will always suffer the grief of their loss. One cannot imagine the sufferings of these children who became orphaned at the tender age and never got love and affection.
The Geneva Conventions of 1949 mark a watershed in the codification and development of International Humanitarian Law[4]. The four Geneva Conventions of 1949 and the two Additional Protocols of 1977, popularly called the Geneva Conventions regime, have made significant contributions by laying down rules and principles of international humanitarian law for humanizing and ameliorating the conditions of victims of war which among others include the wounded, the sick and the civilians including children. The Geneva Conventions regime does not out-law the war or make the war illegal. "The essential purpose of these rules is", in the words of Starke, "to reduce or limit the suffering of individuals, and to circumscribe the area within which the savagery of armed conflict is permissible. For this reason, they were sometimes known as the ‘humanitarian law of war’ or the rules of ‘humanitarian warfare’. Indeed, the currently recognised title for these rules is ‘International Humanitarian Law’ as illustrated by the fact that the full name of the Geneva Conference of 1974-77 which adopted ... Protocols I and II in 1977, for the purpose of adding to and updating the Geneva Red Cross Conventions of 1949, was ‘the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts"[5].
Criticism has been made as to the utility and usefulness of these rules in as much as these rules have been frequently and extensively violated. In this connection it must be remembered that without them the general brutality of warfare would have been all the more horrifying and completely unchecked. Further, it must be observed that the very existence of rules and the fear of being accountable and punished for their violations have saved the lives of millions of people and have given them succour.
The Diplomatic Conference which met at Geneva from April 21 to August 12, 1949 adopted four Conventions, commonly known as the Geneva Conventions of 1949[6]. The Fourth Geneva Convention Relating to the Protection of Civilian Persons in Times of War deals with the protection of civilians including children. The two Protocols of 1977 which are Additional to the Geneva Conventions reaffirm and supplement the Geneva Conventions. For the sake of brevity the four Geneva Conventions and the two Protocols hereinafter will be referred to as I Gen. Con., II Gen. Con; III Gen. Con., IV Gen. Con. and Prot. I and Prot. II.
It is universally recognised and accepted that children form part of the civilian population and as such enjoy the rights and benefits accorded to the civilian population in addition to the special rights and protection under the Geneva Conventions regime during international armed conflict. Art. 13 of Part II of IV Gen. Con. emphasises this principle in no uncertain terms. Part II contains the rules relating to hospitals and safety zones and localities, protection of wounded and sick, evacuation, protection of civilian hospitals and its staff, land, air and sea transport, consignment of medical supplies, food and clothing, family news etc. Article 13 defines the field of application of Part II by specifying that the provisions of Part II are applicable to the whole of the populations of the countries in conflict i.e., to enemy or other aliens and neutrals as well as to the belligerents’ own nationals without any adverse distinctions based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the sufferings caused by war. It must be noted that the principle contained in this article calls for liberal and wide interpretation. The list of certain adverse distinctions such as based on race, nationality, religion or political opinion is declaratory but are not limitative in character. The children, as members of civilian population are also protected by these provisions - the very object of which is to alleviate the sufferings caused by international armed conflicts. In non-international armed conflicts, children are protected by the fundamental guarantees relating to the treatment of persons taking no active part in the hostilities, set forth in Article 3 common to the four Geneva Conventions. Under this article, children have the right to be treated humanely. There should not be any violence to their lives and person or dignity. Protocol II also codifies the principle according to which the civilian population as such as well as individual civilians, shall not be the object of attack[7].
The Fourth Geneva Convention contains a number of articles which provide special protection to children. The events of two world wars, as stated in the beginning, clearly established the need for special protection to children; however nowhere in the Convention this was stated as a principle. Protocol I fills this gap by stating in Article 77 that “children shall be the object of special respect and shall be protected against any form of indecent assault. 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”. Attention is invited to the use of terms ‘shall be object of special respect’, and ‘shall be protected against any form of indecent assault’. The use of the word ‘shall’ makes it a mandatory provision in the form of ‘duty’ and casts an obligation on the parties to carry out the provision in letter and spirit. Further the use of the word ‘special’ denotes the importance and emphasis which the Prot. I places on the protection of children. According to Oxford Advanced Learner’s Dictionary (4th ed.) ‘respect’ means politeness or consideration arising from admiration or regard; admiration felt or shown for a person or thing that has good qualities or achievements” . The use of the word ‘special’ before ‘respect’ puts ‘respect’ on much higher plane and makes the protection of children all the more important both in letter and spirit. In the words of Jean Pictet “the word ‘respect’ (respecter) means, according to the Dictionary of the French Academy, “to spare, not to attack (epargner, ne point attaquer) whereas ‘protect’ (proteger) means ‘to come to some one’s defence, to give help and support’. These words make it unlawful to kill, ill-treat or in any way injure — while at the same time they impose an obligation to come to his aid and give him any care of which he stands in need”.[8] This obligation to protect the children admits no derogation unless specifically mentioned.
Thus, it may be stated that the principle of special protection of children during international armed conflicts is expressly established. This provision also serves to re-affirm the numerous provisions which contain the detailed rules in favour of children. Protocol II makes a somewhat similar provision in Article 4 for application in non-international armed conflicts. It provides that ‘children shall be provided with the care and aid they require’.
For the purpose of protection of children from the effects of war, it is provided (Art. 14 of IV Gen. Con.) that in time of peace, the Contracting Parties to the Geneva Conventions, and the parties to the conflict, after the outbreak of hostilities, may establish in their own territory and if the need arises, in occupied areas, hospital and safety zones and localities so organised as to protect from the effects of war children under fifteen, expectant mothers and mothers of children under seven. The parties concerned may conclude agreements on mutual recognition of these zones and localities. The Protecting Powers and the International Committee of the Red Cross are to lend their offices in order to facilitate the establishment and recognition of these hospitals and safety zones.
It has been felt for a long time that family life is very essential for the care, upbringing and development of children, and past experience showed that children orphaned or separated from their families suffered most as a result of armed conflicts. The UNESCO had carried out a study on children affected by war conditions. The study concluded :
“When we study the nature of the psychological suffering of the child who is a victim of the war, we discover that it is not the facts of war itself - such as bombings, military operations - which have affected him emotionally; his sense of adventure, his interest for destruction and movement can accommodate itself to the worst dangers, and he is not conscious of his peril if he keeps near him his protector who, in his child’s heart, incarnates security, and if, at the same time, he can clasp in his arms some familiar object. It is the repercussion of events on the family affective ties and the separation with his customary framework of life which affect the child, and more than any thing the abrupt separation from his mother”.[9]
The above point inter alia the importance of family for the well being of the child has been emphasized time and again. It has been said that “war acquires comparatively little significance for children so long as it only threatens their lives, disturbs their material comfort or cuts their food rations. It becomes enormously significant the moment it breaks up family and uproots the first emotional attachments of the child within the family group”.[10]
International humanitarian law recognizes the importance of the family for children during armed conflicts and has given effect to it through various provisions in the Fourth Geneva Convention and the two Protocols.
Article 82 of the IV Gen. Con. provides that throughout the duration of their internment, members of the same family, and in particular parents and children, shall be lodged together in the same place of internment, except when separation of a temporary nature is necessitated for reasons of employment or health. Internees may request that their children who are left at liberty without parental care shall be interned with them. Wherever possible, interned members of the same family shall be housed in the same premises and given separate accommodation from other internees, together with facilities for leading a proper family life. The experience of the Second World War showed that internment was far less difficult to bear whenever internees could be grouped together in families. Children were benefited from the presence of their parents and were able to attend the school set up inside the camp. Further Art. 49 of IV Gen. Con. provides that if an Occupying Power undertakes evacuation of an area for certain reasons specified therein, it shall see that members of the same family are not separated. Thus the unity of the family is maintained.
Prot. I affirms and strengthens the principle of unity of family further by stating that the Contracting Parties and parties to the conflict shall facilitate in every possible way the reunion of families dispersed as a result of armed conflict and shall encourage in particular the work of humanitarian organisations engaged in this task (Art, 74). Prot. II (Art. 4 (3)(b)), which is applicable to non-international armed conflicts, states that all appropriate steps shall be taken to facilitate the reunion of families temporarily separated.
The principle of providing family life to the children is further strengthened by prescribing (Art. 76 of Prot. I) that pregnant women and mothers having dependent infants who are arrested or detained or interned shall have their cases considered with the utmost priority and the Parties to the conflict shall, to the maximum extent feasible, avoid pronouncement of death penalty on such mothers for an offence related to the armed conflict, and the death penalty shall not be executed on such women.
Art. 50 of IV Gen. Con. prescribes that the Occupying Power shall, with the co-operation of the national and local authorities, facilitate the proper working of all institutions devoted to the care and education of children. This obligation is very general in scope. This is intended to cater to a wide variety of institutions and establishments of a social, educational or medical character which exist under a wide variety of names. All these organisations and institutions which play a very valuable role for the welfare and development of children in normal times becomes increasingly importance in war times. The purpose of this obligation is that these institutions, devoted to the care and education of children, must continue to work even in times of armed conflict. The occupying authorities are bound not only to avoid interfering with their activities, but also to support them actively and even encourage them if the authorities of the country fail in their duty. Consequently, the occupying power must refrain from requisitioning staff, premises or equipment of these institutions and must give people, who are responsible for children, facilities for communicating freely with the occupation authorities. When their resources are inadequate, the occupying Power must ensure that the persons concerned receive food, medical supplies and other things which are needed to enable them to carry out their task. It is in this sense that the expression ‘proper working’ of children’s institutions should be understood.[11]
It is further prescribed that the occupying Power shall not hinder the application of any preferential measures in regard to food, medical care and protection against the effects of war which may have been adopted prior to the occupation in favour of children under fifteen years, expectant mothers and mothers of children under seven years. It must be understood that a belligerent who occupies the whole or part of a territory, where preferential measures are in force, can not abrogate them or put any obstacles in their application.
Art. 38 of IV Gen. Con. deals with the rights of non-repatriated persons inter alia the right to receive individual or collective relief, medical attention, practice religion etc. Regarding non-repatriated children, it is provided that children under fifteen years, pregnant women and mothers of children under seven years shall benefit by any preferential treatment to the same extent as the nationals of the state concerned. These measures granting preferential treatment may be most varied in scope and application. They may cover the granting of supplementary ration cards, facilities for medical and hospital treatment, special welfare treatment among others. The non-repatriated children have the right to get the same preferential treatment as the national children of the state concerned.
Maintenance
Articles 24 and 50 of IV Gen. Con. lays down very important rules for the protection and care of orphaned or separated children from their families as a result of war. It is provided that the Parties to the conflict shall take necessary measures to ensure that children under fifteen who are orphaned or are separated from their families are not left to their own resources and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition.
It may be noted that the age limit of fifteen has been chosen because from that age onwards, it is believed, a child’s faculties generally reach a stage of development at which there is no longer the same necessity for special measures. The benefit of this rule is available to those children who have been orphaned or separated from their families as a result of war. The maintenance of these children would mean their feeding, clothing, accommodation and care for their health including medical treatment. Jean Pictet is of the view that “in carrying out this task the parties to the conflict are to give the children the benefit of existing social legislation supplemented, where necessary, by new provisions. They are to ensure that any child who has been found abandoned is entrusted as soon as possible to the tender care of a friend or, when there is no such person, ensure that he is placed in a crèche, children’s home or infant’s home”.[12]
Education
Education of orphaned and separated children is very important for the proper upbringing and future better life of these children. The idea of education must be understood in its broadest sense as including moral and physical education and religious instruction. This task, as far as possible, be entrusted to persons of the same cultural tradition to which the children belong. It should exclude any religious or political propaganda designed to wean away children from their natural milieu (Article 24 of IV, Gen.Con.). It has already been mentioned earlier, that the occupying power has the duty to facilitate the proper working of all institutions devoted to the care and education of children in the occupied territory. It is further laid down in Art. 50 of IV Gen.Con. that should the local institutions be inadequate for the purpose, the occupying power shall make arrangements for the maintenance and education of orphaned or separated children, if possible by persons of their own nationality, language and religion.[13] The use of term ‘persons of their own nationality, language and religion’ in Art.50 should not be understood to mean differently than ‘cultural tradition’, rather they are complimentary and must be understood to convey the same meaning.
If children are evacuated to a foreign country the parties to a conflict are also obliged to provide education to children including religious and moral education according to their parents' desire with the greatest possible continuity while they are away.
The Convention (Art.17 of IV Gen. Con.) provides that the parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas of children and maternity cases along with wounded, sick etc. and for the passage of ministers of all religions, medical personnel and medical equipment. The use of words ‘the parties to the conflict shall endeavour’ in Article 17 may indicate that it is not mandatory to conclude agreements for the removal of persons like children and maternity cases. Belligerents should, nevertheless regard this provision as a very strong recommendation for the safety and survival of the most vulnerable sections of civilian population. It may also be argued that parties to a conflict are morally bound to protect the civilians, who do not take part in hostilities, from the effects of war particularly the weaker sections of civil society, consequently they are bound to conclude agreements in this regard. However the method of evacuation should be arranged by means of local agreements concluded between the belligerents concerned. These agreements should deal with such points as the number of people to be evacuated, means of transport and the route to be taken.
These rules are further elaborated by Art. 78 of Prot.I which prescribes that no party to a conflict shall arrange for evacuation of children, other than its own nationals, to a foreign country except for a temporary evacuation and that too for compelling reasons of health or medical treatment and safety of children. But in any case, even in these cases, the written consent of parents or legal guardians would be needed. If these persons cannot be found, the written consent of persons, who by law or custom are primarily responsible for the care of the children, will be needed.
Any such evacuation shall be supervised by the Protecting Power in agreement with the parties concerned; namely the party arranging for the evacuation, the party receiving the children and any parties whose nationals are being evacuated. In each case, all parties to the conflict shall take all feasible precautions to avoid endangering the evacuation.
Geneva Conventions regime attaches a great deal of importance to the identification of children so that they are easily united with their families. In this connection, mention may be made of the praiseworthy efforts made by the International Committee of the Red Cross (ICRC) to reunite children with their parents after the two world wars. The experience showed that the absence of any means of identifying the children who were orphaned or separated from their families had disastrous consequences. Some of these children were too young to vouch even their identity. Hence it has been laid down that the Parties to the conflict shall endeavour to arrange for all children under twelve to be identified by the wearing of identity discs, or by some other means. (Art.24 of IV Gen. Con.) This provision relating to identification is applicable to all children and is not limited to orphaned or separated children and the age limit is twelve. The extension of the field of application is justified because the children of tender age may be separated from their family any time during the conditions of armed conflict. Art. 50 supplements the provision of Art.24 in regard to the identification of children. Under Art.24, the obligation is on the parties to the conflict which may or may not be the occupying power, while under Art.50, the obligation is on the occupying power. It is provided that the Occupying Power shall take all necessary steps to facilitate the identification of children and the registration of their parentage. A special section of the Bureau set up in accordance with Art.136 shall be responsible for taking all necessary steps to identify children whose identity is in doubt. Particulars of their parents or other near relatives should always be recorded if available. Article 50 lays down that the occupying power is to take all necessary steps to facilitate the identification of children and the registration of their parentage by the local authorities. In other words, the occupying power must not do anything to hamper the normal working of the administrative services responsible for the identification of children.
Identification becomes all the more important with a view to facilitate the return of children to their families and country, if the children are evacuated to a foreign country. As discussed above, Article 78 paragraphs 1 and 2 of Prot. I deals with the subject of evacuation of children to a foreign country. Paragraphs 3 of the same article prescribes that the authorities of the Party arranging for evacuation and the authorities of the receiving country shall establish for each child a card with photographs, which they shall send to the Central Tracing Agency of the International Committee of the Red Cross which will bear the following information; (a) Surname of the child; (b) the child’s first name(s); (c) the child’s sex; (d) the place and date of birth (or, if that date is not known, the approximate age); (e) the father’s full name; (f) the mother’s full name and her maiden name; (g) the child’s next-of-kin; (h) the child’s nationality; (I) the child’s native language and any other languages he speaks; (j) the address of the child’s family; (k) any identification number for the child; (l) the child’s state of health; (m) the child’s blood group; (n) any distinguishing features; (o) the date on which and the place where the child was found; (p) the date on which and the place from which the child left the country; (q) the child’s religion, if any; (r) the child’s present address in the receiving country; (s) should the child die before his return, the date, place and circumstances of death and place of internment.
The above information should certainly facilitate the identification and the return of children to their families and country. It is reported that the work of ICRC of identifying and uniting the children with their families, as a result of II world war, still continues. During the Diplomatic conference, some concern was expressed about the possibility of including details on the child’s card which might endanger the child if it fell into the hands of those who might discriminate in their treatment. Hence an exception has been made not to have the details of the information, whenever it involves a risk of harm to the child.
In the present author’s opinion such exception is unwarranted. The absence of information may as a matter of fact prevent the children from being united with their families which may do more harm to the cause of children. Prejudices have to be overcome by positive remedial actions and not through a negative approach.
Article 50 of IV Gen. Con. expressly prohibits the occupying power to change the ‘personal status’ of children in any case. In the present context, the term ‘personal status’ denotes the personal attributes of a particular person which would include, nationality, ethnic origin, family and religion of children. It is forbidden to change the nationality, ethnic origin, family and religion. Experience shows that during the Second World War efforts were made to change the personal status of children. They were taken from their mothers to be provided with other parents and given another nationality. Expressed in this way, the principle of the inviolability of the child’s personal status represents a most desirable addition to the essential principles governing respect for the human person and for family rights.
The outbreak of hostilities immediately results in the severance of postal communications, and millions of civilian men, women and children are left without news of one another resulting in mental sufferings, agony and pain. During the two world wars, the International Committee of the Red Cross did a commendable job to redress this situation by forming civilian message service by which the effects of wartime ban on communications between enemy countries were thus mitigated.
Art. 25 of IV Gen. Con. prescribes that all persons, which includes children, in the territory of a party to the conflict, or in its occupied territory shall be enabled to give and to receive news of a strictly personal nature to members of their families, wherever they may be, speedily and without undue delay. The Parties could seek the cooperation of neutral intermediary such as Central Agency, under Art. 140, or the National Red Cross Societies. The family news may be restricted to twenty-five words and the number of messages which could be exchanged in a month may also be restricted.
The expression ‘family news’ should be taken as meaning all particulars, news questions, information etc. concerning the family life of a person. This right assumes all the more importance in the case of children, who have been separated from their families, because of their age and development.
Official Information Bureau
It is incumbent on each party to the conflict to establish an Official Information Bureau (OIB), upon the outbreak of a conflict, and in all cases of occupation, which will be responsible for receiving and transmitting information in respect of the protected persons who are in its power. Each party to the conflict shall, within the shortest possible period, give its Bureau information of any measure taken by it concerning any protected persons who are kept in custody for more than two weeks and who are confined to assigned residence or are interned. Each party to the conflict is required to direct its various departments concerned to inform the Bureau promptly with information about such protected persons relating to their transfers, releases, repatriations, escapes, admittance to hospital, births and deaths (Art. 136 of IV Gen. Con.)
As mentioned above, this provision is applicable in respect of protected persons including children who are in the power of a party to the conflict. In this connection it may be noted that paragraph 4 of Article 50 of IV Gen. Con. which relates to the protection of children under occupation prescribes that a special section of the Bureau shall be set up which shall be responsible for identifying children. The establishment of Information Bureau for the purpose of recording and giving information about the protected persons including children is the hallmark of guarantee that protected persons will not disappear without trace as happened during Second World War.
Central Information Agency (CIA)
Art. 140 of IV Gen. Con. further stipulates that a Central Information Agency for protected persons, in particular internees, shall be established in a neutral country. The function of the Agency will be to collect the information about transfers, releases repatriations, escapes, admittance to hospitals, births and deaths etc. mentioned in Art. 136 which may be obtained through official or private channels and to transmit it speedily to the countries of origin or of residence of the persons concerned or to their relatives.
The task of the Central Information Agency shall be to collect information from all sources about the protected persons including internees which include children also. This concentration of information, and the fact that the Agency brings together items of information from all the belligerent countries, makes its work of considerable value when war-torn countries are disorganised and their archives are scattered. It is of tremendous importance when protected persons are of uncertain nationality or the information relating to them must be communicated to a large number of countries.
The task of the Central Information Agency is just not to receive and collect the information, safe keeping and filing information, documents etc. but to transmit it also to various national bureaus. Another important task is to receive internment card and to inform his relatives of his detention, address and state of health.
The parties to the conflict are obliged to send information to the Agency under various articles of the Convention e.g. exchange of family correspondence (Art. 24), issue of duplicates of medical certificates (Art. 91), transmission of wills, powers of attorney etc. (Art. 113), death certificates (Art. 139) and personal valuable articles (Art. 139). The Central Information Agency shall receive the above information and transmit them as provided in the IV Geneva Convention.
Think of it, what a joy will it be to the parents and relatives of a child, presumed to be dead, to receive information that the child is alive and well and is living in a protected place. The task of exchanging information about family news and remitting to the families becomes easy through the work of Central Information Agency.
During an armed conflict children can be interned for security reasons or can be detained for violating the penal code.
It has been discussed above that members of the same family and in particular parents and children shall be lodged together in the same place of internment throughout the duration of their internment except when separation of temporary nature is necessitated for certain reasons. Internees may request that their children who are left at liberty without parental care shall be interned with them. Interned members of the same family shall be housed in the same premises and given separate accommodation from other internees together with facilities for leading a proper family life. (Art. 82, IV Gen. Con.) The Detaining Power shall provide maintenance for the support of those dependent on the internees (Art. 81, IV Gen. Con.). Children under fifteen years of age shall be given additional food, in proportion to their physiological needs (Art. 89, IV Gen. Con.). All possible facilities for the education of children shall be ensured. They shall be allowed to attend schools either within the place of internment or outside. Special playing grounds shall be reserved for children and young people.
Internees including children shall be subject to the laws in force in the territory in which they are detained. The authorities concerned shall take into consideration the age of internee while awarding disciplinary punishment.
The parties to the conflict shall release the internee as soon as possible. They shall endeavour, during the armed conflict, to conclude agreements for the release, the repatriation, the return to places of residence or the accommodation in a neutral country of certain classes of internees in particular children, pregnant women, and mothers with infants and young children among others (Art. 132 of IV Gen. Con.).
The detaining power has been given wide discretion in the matter of release of an internee. This discretion must be exercised liberally in the interest of respect for humanitarian principles. The children are to be specially benefited because of what children represent for the future of humanity. For the same reason, pregnant women, and mothers of infants and young children are also included in the special category of internees to be considered for release, repatriation and accommodation in a neutral country.
With regard to enlistment for work, it is prescribed that a protected person may not be compelled to work unless over the age of 18 years. (Art. 51 of IV Gen. Con.) Therefore the children under 18 years cannot be compelled to work during internment.
Question of imposing death penalty on children has been engaging the attention of all civil societies over the world. The Diplomatic Conferences which concluded the Geneva Conventions regime also deliberated on this subject and came out with the prescription making eighteen years the absolute age limit below which the death penalty may not be pronounced even if all the other conditions which make that penalty applicable are present. (Art. 68 of IV Gen. Con.) This provision corresponds to similar provisions in the penal code of many countries, and is based on the idea that a person who has not reached the age of eighteen years is not fully capable of sound judgement, does not always realize the significance of his actions and often acts under the influence of others, if not under constraint.[14]
Art. 77 of Prot. I reaffirms this principle by stating 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 when the offence was committed. As to non-international armed conflicts, Art. 6, of Prot. II states that death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of offence and shall not be carried out on pregnant women or mothers of young children.
The Geneva Conventions regime does not define a child or lays down any uniform particular age for the purpose of giving special protection to child, although the concept of children has an important place in the fourth Geneva Convention and the two protocols. The Geneva Conventions regime has fixed, broadly speaking, two age limits i.e. below 15 years and below 18 years. In most cases age limits are mentioned in various articles itself. In some articles, the term ‘children’ has been used which may be interpreted, unless the context otherwise requires, to mean under 18 years. Where no age limit is specified or the term ‘children’ has been used, the application of age must be governed by the degree of development of the physical and mental faculties of the persons concerned. The meaning given to the term ‘children’ will also, of course, depend on the legislation applicable in occupied territory. But, it will be safe to say that, in such cases, it will generally be below 18 years.
A close examination of the various articles of IV Gen. Con. shows that Articles 14, (relating to establishment of hospital and safety zones), 23 (consignment of relief supplies), 24, 38,50 (measures relating to child welfare), 89 (food and clothing) lay down the age of ‘below 15 years’ prescribing preferential treatment for children. Jean Pictet states that “international usage has now settled on an age limit of fifteen years as defining what is meant by “children” when no further description is given”.[15]
The IV Gen. Con. gives great importance to the subject of identification of children so that they can be easily identified and united with their families. Hence, Article 24, paragraph 3 provides that all children under twelve years of age be identified. This provision has been made keeping in view that children over twelve are generally capable of stating their own identity.
The Convention prescribes the age of ‘below 18 years’ in Article 51 (enlistment for labour) 68 (death penalty) of IV Gen. Con. and Article 77 of Protocol I dealing with death penalty.
Before the Second World War, the regular fighting took place between regular forces of the Parties to the conflict. Occasionally children did play a role in resistance movements in Europe and were imprisoned, deported and sent to concentration camps. During and since World War II, the increased participation of children in different forms in hostilities has been a disturbing factor which has been engaging the attention of the international community. Children’s involvement in armed conflict can extend from indirect help to actually taking up arms as part of regular or volunteer forces.
The Geneva Conventions of 1949 do not specifically deal with the question of combatant children. However Protocol I has set the ball rolling by prohibiting the enrolment of children, below fifteen years, in armed forces. Article 77, paragraph 1 of Protocol I provides:
“The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest”
From the above paragraph three things are clear : (1) the parties to the conflict shall prevent children under fifteen years from taking direct part in hostilities, (2) children under fifteen years shall not be recruited in armed forces, (3) in recruiting children between fifteen years and eighteen years old, priority shall be given to oldest among them.
The difference in the wordings i.e. ‘shall take all feasible measures’ ‘shall refrain’ and ‘shall endeavour’ should not make difference in the application of these measures. It only denotes the degree of obligation, if accusations are made against a party to the conflict for violating the measures. ‘The governments which negotiated this article adopted the wording finally used to avoid entering into absolute obligations with regard to the voluntary participation of children in hostilities’.[16] The word ‘recruitment’ would cover both compulsory and voluntary enrolment. The parties must refrain from enrolling children under fifteen years of age even if they volunteer to join armed forces. The threshold age of recruitment for children has been raised to fifteen years and that too with a rider that preference in recruitment should be given to older children. It transpires that during the negotiation of this provision one delegation had proposed that the limit on non-recruitment should be raised from fifteen to eighteen years. The majority of the delegates were opposed to extending the prohibition of recruitment beyond fifteen years, but in order to take this proposal into account it was provided that in the case of recruitment of persons between fifteen and eighteen years, priority should be given to the oldest.[17] According to Maria Teresa Dutli “It is this recommendation, that enables ICRC to impress upon Parties to a conflict the importance, on humanitarian grounds, of not allowing adolescents under eighteen to participate in hostilities, thus increasing the protection afforded to them. Naturally, the ICRC is also continually reminding belligerents that international humanitarian law prohibits both the recruitment of children under 15 years of age and the acceptance of their voluntary enrolment and calls on states to take all feasible measures to ensure that children do not take a direct part in hostilities”.[18]
Article 4, paragraph 3 (c) of Protocol II lays down a similar principle which is applicable to non-international armed conflict. It provides: “children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities.”
Children enrolled in the armed forces and who are between the age of fifteen and eighteen years and are caught taking part in hostilities do have the status of combatants and are ipso facto entitled to prisoner of war status under the terms of Art. 4 A, paragraph 1 of III Gen. Con. relating to the treatment of Prisoners of War. Article 16 of III Gen. Con. does permit privileged treatment based upon age. This would allow a party to the conflict to take age of the combatant into consideration while giving privileged treatment. For example, Article 49 of III Gen. Con. prescribes that the Detaining Power may utilize the labour of prisoners of war taking into account their age, sex etc.
Children between the ages of fifteen and eighteen years who are members of the armed forces of a Party to the conflict and who have fallen into the power of the enemy are prisoners of war. Such combatant children when become prisoners of war are protected like any other POW by the provisions of III Gen. Con., the fundamental principle of which is that POW must at all times be humanely treated and are entitled in all circumstances to respect for their person and their honour.
Paragraph 4 of Art. 77 of Prot. I explicitly prescribes that children, if arrested, detained or interned for reasons related to the armed conflict, shall be held in quarters separate from the quarters of adults except when they form part of the family and are accommodated as family.
Combatant children may be tried for offences related to the armed conflict, in particular, war crimes or offences against the legislation of the Detaining Power. In such cases penalty may be imposed but their responsibility in awarding the punishment should be evaluated according to their age, and, as a general rule, educational measures should be decided rather than penalties. In any case, death penalty shall not be executed on a child who was not eighteen years old when the offence was committed.
Paragraph 5 of Article 77 of Prot. I affirms the above principle and prescribes that death penalty for an offence related to the armed conflict shall not be executed on children who are below the age of eighteen years at the time the offence was committed.
As discussed above, the Parties to the conflict are required to take all feasible measures so that children under fifteen years of age do not take direct part in hostilities and are not recruited into their armed forces.
The question arises, what happens if inspite of the above provisions of paragraph 2 of Article 77 of Prot. I, children who have not attained the age of fifteen years are captured taking a direct part in hostilities. To take care of such cases, paragraph 3 of Art. 77 of Prot. I prescribes that in such exceptional cases, the children under fifteen years shall continue to benefit from the special protection accorded by this article whether or not they are prisoners of war. According to Maria Teresa Dutli, ‘children who participate in hostilities but are not combatants within the meaning of international humanitarian law remain subject to the domestic legislation of the countries of which they are nationals’[19]. If they are captured by the enemy power and come within the category of persons protected by the IV Gen. Con. such children are civilian internees and as such have the right to be reunited with their parents in the same place of internment, to be given physical conditions of internment appropriate to their age and additional food in proportion to their physiological needs, to receive education and be able to have physical exercise etc.[20]
Article 45 of Prot. I contains provisions relating to protection of persons who have taken part in hostilities. It is provided that a person who takes part in hostilities and is captured by an adverse party shall be presumed to be POW and shall be protected by the III Gen. Con. relating to the Prisoners of War. In case of doubt, he shall continue to be treated as POW until such time as his status has been determined by a competent tribunal. If it is decided that he is not entitled to POW status, and he does not benefit from more favourable treatment in accordance with the IV Gen. Con., he shall be entitled to protection as mentioned under Article 75 of the Protocol I which prescribes the fundamental guarantees available to such persons. It is a very detailed and long provision. It prohibits violence to life, health or physical or mental well-being of persons, and provides detailed rules for a fair trial.
Combatant children who are prisoners of war must, like all prisoners of war, be repatriated as soon as hostilities cease, except when they are required to face criminal proceedings and their consequences. When the ICRC helps in repatriation at the close of hostilities, it makes every effort to ensure that children are given priority on account of their vulnerability.[21]
The above study shows how numerous provisions of international humanitarian law establish, support and develop the principles of special protection for children in times of armed conflict. These principles cover a wide variety of areas and situations for different ages of children. And the emphasis has always been centred on the humanitarian aspect of the need and the measures suggested to meet the situation. For example, it has always been kept in mind that infants and children under fifteen are kept with their families and are well provided with food and clothing and education. The children are properly identified, and even when they commit offences, their age and development of faculties are taken into consideration while awarding punishment. Execution of death penalty is prohibited. The special protection is prescribed in no less than twenty-five of the provisions of the Geneva Conventions of 1949 and the two Additional Protocols of 1977. Participation of children under fifteen in hostilities is prohibited and the enrolment of children between fifteen and eighteen years of age is regulated.
Notwithstanding the above, it is seen, that children are still taking part in hostilities and continue to be the innocent victims of armed conflict which, unfortunately, are many. In this connection, it is observed that fault is not in the law but in its observance. Parties to the conflicts and their instrumentalities continue to be brutal, disregarding the well-established and clear principles of international humanitarian law, in seeking their objectives to win the wars. Apparently what is needed is not more law at present but its acceptance and observance in practice. It is essential that the law already in force – the Geneva Conventions regime – is observed in letter and spirit and the international community, through concerted effort, make it a crusade. In addition, the following measures may be considered for action:
(1) It is universally recognised that ICRC has done a tremendous good work in this regard and commands the highest respect and acceptance among the world community. However it may increase its activity of visits and fact-finding missions in times of conflict and peace in the cause of implementation.
(2) Conscience of the international community should be aroused through various activities.
(3) NGO’s and national humanitarian rights commissions should be encouraged to play an effective role through education, dissemination of information and as observers as is happening in the field of observance of human rights, arms control, environment etc.
(4) International sanctions which affect the children should be prohibited.
(5) More and more guidelines (standards) for the protection of children may be brought out for guidance and establishing standards.
[*]LL.B., LL.M., (Harvard); S.J.D. (Northwestern) Former Legal Adviser and Joint Secretary and Head (L&T Division), Ministry of External Affairs, Government of India; Deputy Leader of the Indian Delegation to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts held at Geneva 1974-77; also the Legal Adviser to the Indian Delegation and Chairman of the Legal Committee of the International Commission for Supervision and Control in Viet-Nam, 1966-68 and observed at first hand the sufferings of children and women in Viet-Nam War.
[1] Ilene Cerne, “The Convention on the Rights of the Child : What it Means for Children in War” International Journal of Refugee Law, vol.3(1991), pp.100-111; Jenny Kuper, International Law Concerning Child Civilians in Armed Conflicts (Clarendon Press, 1997); Mona Macksoud, Helping Children to Cope with the Stresses of War: A Manual for Parents and Teachers (UNICEF,1993); Richman Naomi, Communicating With Children, Helping Children in Distress (Save the Children, 1993); Paul Vlaadringerbroek and Hans Lan Van , Children on the Move : How to Implement Their Right to Family Life (Martinus Nihjhoff, 1996); M Everett Russler, Neil Bothby and Daniel J Steinbock, Unaccompanied Children Care and Protection in Wars, Natural Disasters and Refugee Movements (Oxford University Press, 1996).
[2] Extract quoted in :Sandra Singer ‘The Protection of Children During Armed Conflict Situations” International Review of the Red Cross, n. 252 (May-June 1986), p. 139.
[3] See Francoise Krill; “The Protection of Women in International Humanitarian Law”; International Review of the Red Cross, n. 249 (Nov.-Dec. 1985), p. 338.
[4] Fleck Dieter, The Handbook of Humanitarian Law in International Armed Conflicts (Oxford University Press, 1995); Herczegh Geza, Developments of International Humanitarian Law (Akademiai Kiado, 1984); K.Edward Kwakwa, The International Law of Armed Conflict: Personal and Material Field of Application (Kluwer Publishers, 1995).
[5] J.G. Starke: Introduction to International Law, p. 553, (10th ed.)
[6] First Convention : Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Second Convention : Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Third Convention: Geneva Convention relative to the Treatment of Prisoners of War; Fourth Convention: Geneva Convention relative to the Protection of Civilian Persons in Time of War.
7. Denise Plattner : “Protection of Children in Humanitarian Law”, International Review of the Red Cross, n. 240, (May-June 1984) pp. 141-142.
[8] Jean S. Pictet, Commentary on IV Geneva Convention Relating to the Protection of Civilian Persons in Times of War, (1958), p. 134 .
[9] Report on the Work of the Conference of Government Experts, vol. II, ICRC, (1972), p. 89; quoted in Denise Plattner: Protection of Children in International Humanitarian Law; ICRC, No. 240, p. 144 (May-June, 1984).
[10] Anna Freud etc: Uprooting and after — 1973 as reported in ISS Seminar on Unaccompanied Minor Refugees in European Resettlement Countries, (Frankfurt, March 1984); Quoted, in Sandra Singer: The Protection of children during armed conflict situations; ICFC, No. 252, p. 143, (May-June 1986).
[11] See generally note 8, p. 286.
[12] Ibid, p. 187.
[13] In Iran-Iraq war, Defence for Children International launched with the permission of Iraqi authorities an education programme in camp for Iranian POWs who were as young as 14 or 15. Teachers were recruited from other Iranian POWs and some Farsi-speaking Iraqis and subjects such as Mathematics, English, Art and Weaving were taught. See Sandra Singer, note 2 p. 150.
[14] Commentary of the Fourth Geneva Convention, ICRC, Geneva 1958, p. 347.
[15] Picrerq note 8 p.395
[16] See, Maria Teresa Dutli: Captured Child Combatants; International Review of the Red Cross, No. 278 (Sept. – Oct. 1990) p.423.
[17] See Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 1949, p.901
[18] Dut, note 16, p. 424.
[19] See Pictet note. 8, p.429; see also Articles 82, 82, 89 & 94 of IV Geneva Convention.
[20] Ibid., 13 p.424.
[21] Ibid., p. 430.
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