By Bakampa Brian Baryaguma
[Dip. Law (First Class)–LDC; Cert. Oil & Gas–Mak; LLB
(Hons)–Mak]
bakampasenior@gmail.com;
www.huntedthinker.blogspot.ug
August 2022
1.
Introduction
Article 1 of the 1989 United Nations
Convention on the Rights of the Child
(hereinafter ‘the Convention’)[1] defines a child as, ‘… every human
being below the age of eighteen years unless under the law applicable to the
child, majority is attained earlier.’ Children
are affected by or get involved in armed conflicts either as members of the
civilian population or combatants, which renders them particularly vulnerable,
needing protection at all times, as a basic need[2] – and ‘… not
just [as] a national issue, but a legitimate concern of the international
community.’[3]
The
Convention is the benchmark standard for protection of children
internationally. It is a legally-binding international agreement setting out
the civil, political, economic, social and cultural rights of every child,
regardless of their race, religion or abilities.
Article 2 of the Convention requires that the rights which it protects
be secured without discrimination of any
kind for all children. The Convention therefore covers even children
affected by or involved in armed conflicts. In armed conflicts, the Convention
is supplemented by the Optional Protocol
to the Convention on the Rights of the Child on the Involvement of Children in
Armed Conflict. Article 38 of the Convention, provides for affected
children, as follows:
1.
States Parties undertake to respect and to ensure respect for rules of international
humanitarian law applicable to them in armed conflicts which are relevant to
the child.
2.
States Parties shall take all feasible measures to ensure that persons who have
not attained the age of fifteen years do not take a direct part in hostilities.
3.
States Parties shall refrain from recruiting any person who has not attained the
age of fifteen years 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, States Parties shall endeavour to give priority to those who
are oldest.
4.
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.[4]
Article
38 addresses four distinct albeit interconnected issues: the relevance of
international humanitarian law to children; the minimum age at which children
can take a direct part in armed
conflicts; the minimum age for the recruitment of children into armed forces;
and the obligations of states under IHL with respect to child civilians
affected by armed conflicts.[5] This provision protects children
affected by or involved in armed conflicts in two ways: first, it addresses the
phenomenon of child soldiers by
limiting the ability of sates to recruit or directly use children in
hostilities; and second, it addresses the plight of child civilians[6] by referencing the rules of IHL,
intending that children receive specific protections that exceed those
available to adults.[7]
It
follows therefore, that as a dictate of the Convention, armed forces and armed
groups are required by international humanitarian law (IHL) to take measures to
protect children during times of armed conflict. It should be noted though,
that the Convention is primarily a human rights (not humanitarian) law enactment.
Its invocation of IHL therefore, ‘… brings together humanitarian
law and human rights law, showing their complementarity,’[8] in
its quest to protect all children, including those affected by or involved in
armed conflicts. This essay explores the ways in which IHRL complements IHL in this
regard.
1.1.
About
International Human Rights Law
According
to the International Committee of the Red Cross (ICRC), ‘IHRL is a set of
international rules, established by treaty or custom, on the
basis of which
individuals and groups can expect and/or claim certain
behavior or
benefits from governments. Human rights are inherent entitlements
which belong to
every person as a consequence
of being human.’[9] It, ‘… establishes rights that
every individual should enjoy at all times, during both peace and war,’[10]
with the primary responsibility for ensuring observance of rights resting with states,
since they alone can become contracting parties to the relevant treaties.[11]
IHRL informs the relationship between states and individuals and encumbers
states with obligations.[12]
IHRL main treaty sources are the
International
Covenants on Civil and Political Rights and on Economic,
Social and Cultural
Rights (1966), as well
as Conventions on Genocide (1948), Racial Discrimination (1965),
Discrimination
Against Women (1979), Torture (1984) and Rights of the Child
(1989). But
there are numerous other non-treaty based principles and guidelines
(“soft law”) that also belong to the body of IHRL standards.
1.2.
About
International Humanitarian Law
IHL
is also known as the law of armed
conflict since it acts as the law in war and only applies during armed
conflicts.[13] It is the branch of international law that governs
the conduct of war.[14] According to the ICRC,
IHL is a set of international rules,
established by
treaty or custom, which are specifically intended to solve
humanitarian
problems directly arising from international or non-international
armed conflicts.
It protects persons and property that are, or may be, affected
by an armed
conflict and limits the rights of the parties to a conflict to
use methods
and means of warfare of their choice.[15]
IHL
aims to guide the behavior of those who are involved in armed conflicts[16]
and seeks to limit the effects of war on people, property, cultural patrimony
and the natural environment by protecting certain classes of persons and
prohibiting the use of certain weapons and methods of warfare, notably those that
are inherently indiscriminate or of a nature to cause superfluous injury.[17]
It also, ‘… obliges belligerents to spare persons who do not, or who no longer,
participate in hostilities.’[18] Thus, ‘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 … suffering …’.[19]
IHL main treaty sources applicable in
international
armed conflict are the four Geneva Conventions of 1949[20]
and their Additional
Protocol I of 1977.[21] The main treaty sources applicable
in non-international armed conflict are article 3 common to the Geneva
Conventions and
Additional Protocol II of 1977,[22] by virtue of which IHL also binds
non-state armed groups during armed conflicts.
2.
Impact
of Armed Conflicts on Children
Before
discussing the ways in which IHR complements IHL in protecting children
affected by or involved in armed conflicts, it is important to know why
protecting those children is important in the first place. It is because armed
conflicts affect children very much and in various ways. A detailed study of
these impacts is beyond the scope of this essay.
Suffice
to say however, that Grac’a Machel studied this matter and identified the main
impacts on children to be recruitment into child soldiering (child soldiers), displacement
internally and as refugees, sexual exploitation and gender-based violence, death
and injuries due to landmines and unexploded ordnance, imposition of economic sanctions,
destruction of health services, inadequate nutrition (malnutrition),
psychological harm, social disintegration and denial of access to education.[23]
3.
Protection
of Children in Armed Conflicts – Complementarity of IHRL and IHL
Much
as IHRL and IHL are distinct fields of law – so distinct in fact that, ‘…
international humanitarian law’s fundamental features are not always readily
reconcilable with human rights principles, particularly children’s rights
animated as they are by the best interests principle,’[24] nevertheless,
‘… the contemporary international law applicable in armed conflict has evolved
such that it is now informed both by international humanitarian law and human
rights law.’[25] This was confirmed by the International Court of
Justice in the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory (Request for
advisory opinion) case, holding that human rights law applies during armed
conflict.[26]
IHRL
complements IHL in the protection of children affected by or involved in armed
conflicts by focusing on the individual’s rights that the state cannot take
away, thereby guaranteeing those individuals certain levels of protection,
which, under IHL rules, even an enemy state cannot be permitted to disregard.
This is because, ‘… human beings do not cease to have fundamental rights just
because an armed conflict has begun …’.[27] To this end, the aims of
IHL merge with those of IHRL notwithstanding some divergence and a distinct
history between the two. Notable of these rights are the following:
1.
Right
not to be Enlisted in Armed Conflict
This right is inbuilt in Article 38 of the Convention in as far
as it
renders impermissible the recruitment and direct use of children below 15 years
in armed conflicts. Further, the article creates a similar right for younger
children among those who have attained 15 years but are still below 18 years. Such
children are exempted from direct involvement in hostilities.
2.
Right
to a Family Environment / Life
Every
child has a right to a family environment / life. This right is protected under
Articles 7 (1) and 8 (1) of the Convention, which articulate a bundle of rights
namely, identity, birth registration, nationality and parental knowledge and
care. Clearly, the idea is that family environment / life should be wholesome.
Families are important in the cause of child protection because it is there
that the root causes of conflict are first addressed and national and
international strategies to protect children generated. A child’s first learning environment
and teachers are in the family. Under IHRL, children are entitled to be part of
a loving family that will instill ethical values and morals in them.
3.
Right
to Health
Children
have the right to access and enjoy the highest attainable standard of health
and facilities for the treatment of illness and rehabilitation of health, under
Article 24 of the Convention. The gist of this right is ensuring the provision
of essential care and assistance for children. The full enjoyment of this right
necessitates diminishing infant and child mortality; development of primary
health care by combating disease and malnutrition, applying readily available
technology and providing adequate nutritious foods and clean drinking-water;
ensuring appropriate pre-natal and post-natal health care for mothers; accessing
basic education of child health and nutrition, advantages of breastfeeding,
hygiene and environmental sanitation and the prevention of accidents; and
developing preventive health care, parental guidance and family planning
education and services.
4.
Right
to Freedom of Expression
A
child has a right to freedom of expression under article 13 (1) of the
Convention. This right includes freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in writing or
in print, in the form of art, or through any other media.
5.
Right
to Freedom of Association and Peaceful Assembly
Children
enjoy this right under Article 15 of
the Convention. The right can only be restricted in conformity with the
law and as democratically necessitated in the interests of national security,
public safety, public order, protection of public health or morals or the
protection of other people’s rights and freedoms.
6.
Right
to Education
Children
enjoy the right to education, under Article
28 (1) of the Convention. The right should
be
achieved progressively and on the
basis of equal opportunity. Means should be provided for every child to go to a
classroom and have access to books and learning materials that can enrich their
intelligence and skills.
7.
Right
to Freedom from Torture
Under Article 37 (a) of the Convention, all children
have a right to freedom from torture
or other cruel, inhuman or degrading treatment or punishment. This is to protect children from abuse, harm
or neglect.
8.
Right
to Life
Every child has the inherent right
to life, protected under Article 6 (1) of the Convention. Enjoying this right
necessitates prohibiting the infliction of death penalty upon
children and this is fairly addressed under article 37 (a) of the Convention which
forbids imposing capital punishment without possibility of release for offences
committed by persons below 18 years.
The
right to life includes the right to survival and development, under Article 6
(2) of the Convention. This means that children should access
what they need in order to have a good life, going beyond the basic needs and focusing
more on the atmosphere of the place they are raised in. Children’s needs must
always be attended to so that they feel the support of people around them,
which in turn will build and strengthen their character in adulthood.
The
right to life also entails associated rights to food and the right to
livelihood since without these a child’s survival and development is severely
impaired.
9.
Right
to Cultural and Artistic Life
Children
have the right to participate fully in appropriate
cultural and artistic life, under Article 31 (2) of the Convention. For this reason, states are obliged to
encourage the provision of appropriate and equal opportunities for cultural,
artistic, recreational and leisure activity. This right hinges on
the need to preserve the children’s cultural environment. The use of the word appropriate denotes that children should not be exploited for events
that are deemed only for adults to do, for instance intensive manual labor.
10.
Right
to Liberty
IHRL
takes note of the need of protection in situations of deprivation of liberty.
It therefore prohibits unlawful
or arbitrary arrest, detention or imprisonment of children, under Article 37 of
the Convention. Depriving a child of his or her liberty should be in conformity
with law, only be used as a last resort and be brief. Once deprived of liberty,
every child should be treated with humanity, respecting his or her inherent
dignity, the needs of his or her age being taken into account and be separated
from adults unless that child’s best interests necessitate staying with them. Correspondences
with loved ones (save in exceptional circumstances) and prompt access to legal
and other appropriate assistance are also protected.
11.
Right
to Play and Recreation
Children
are entitled to have rest, leisure, engage in play and recreational activities appropriate to their age and to
participate freely in cultural life and the arts. The Convention protects this
right under Article
31 (1). The phrase activities appropriate to their age denotes that children should not be
exploited for events that are deemed only for adults to do.
12.
Right to an Adequate Standard of
Living
This right is recognized under Article
27 of the Convention. The right is necessary for the child's physical, mental, spiritual, moral and
social development. Parents and other caretakers bear the primary
responsibility to secure, within their abilities and financial capacities, the
conditions of living necessary for the child's development. States, however, are
obliged, in accordance with their national conditions and within their means,
to play a supplementary role in this endeavor by providing material assistance
and support programmes, particularly with regard to nutrition, clothing and
housing.
13.
Right to Protection against Reprisals
This right is one of the non-treaty based principles
and guidelines
(otherwise known as “soft law”), belonging to the body of
IHRL standards, which has arguably attained jus cogens status.[28]
By this right, ‘… an abusive state’s civilians and soldiers horse de combat are entitled to
protection against reprisals, even if that state initiated armed conflict in
violation of the jus ad bellum.’[29]
Violation of this IHRL soft law standard is tantamount to a grave breach of the
laws of armed conflict,[30] thus attracting individual punishment as
a war crime under Article 8 of the 1998 Rome
Statute of the International Criminal Court. Therefore, children caught on
the wrong side of an armed conflict are entitled to benefit from this right.
The foregoing rights apply during both peacetime and war.[31]
Children
enjoy them even in times of armed conflicts. This causes a convergence between
IHRL and IHL standards that reflect fundamental human
values which exist in all societies.[32] Hence, as of
necessity, protecting children from the impacts of armed conflict, ‘… requires the
fulfilment of their rights through the implementation of international human
rights and humanitarian law.’[33] As noted by the Committee on the
Rights of the Child, the framework for the realization of children’s rights
under the Convention is, ‘very often reflected in the provisions of
humanitarian law.’[34]
4.
Conclusion
Children
deserve the best of the earth. This is true in times of armed conflict as much
as it is in times of peace. The fullest protection possible for children
affected by or involved in armed conflicts is realized by international human
rights law complementing international humanitarian law. Therefore, as strongly
stated by Grac’a Machel, ‘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.’[35]
References
1.
General Assembly Resolution 44/25, 20
November 1989.
2.
Grac’a Machel, Impact of Armed
Conflict on Children (1996), at 47.
3.
Ibid.,
at 48.
4.
In the case of Prosecutor v. Sam Hinga Norman, No. SCSL-2004-14-AR72(E), the Appeals Chamber of the Special
Court for Sierra Leone held that the baseline requirements of Article 38 of the
Convention on the Rights of the Child
(notably the prohibition on child recruitment) has crystallized as customary
international law.
5.
Fiona Ang, A Commentary on the United Nations Convention on the Rights of the
Child, Article 38: Children in Armed Conflicts (2005), at 1509. Accessed
online at https://books.google.co.ug/books/about/A_Commentary_on_the_United_Nations_Conve.html?id=TcAqEAAAQBAJ&source=kp_book_description&redir_esc=y,
on 31 July 2022, at 20:40 Hrs.
6.
These are children who are affected by
armed conflict, although they are not recruited into armed forces or directly
used to participate in hostilities.
7.
Fiona Ang, supra note 5, observes that it is important to note that the
article does not import the entire corpus of IHL, but only uploads those rules
that are relevant to children and only when the rules are applicable to states.
8.
Grac’a Machel, supra note 2, at 52.
9.
International Committee of the Red
Cross, ‘International Humanitarian Law and International Human Rights Law:
Similarities and differences’, (2003), at 1.
10.
Grac’a Machel, supra note 2, at 50.
11.
Ibid.
12.
International Committee of the Red
Cross, supra note 9.
13.
Fiona Ang, supra note 5, at 1511.
14.
Carolyn Hamilton and Tabatha
Abu El-Haj, ‘Armed Conflict: the Protection of Children Under International
Law,’ 5 IJCR (1997), at 3.
15.
International Committee of the Red
Cross, supra note 9.
16.
Fiona Ang, supra note 5.
17.
Ibid.,
at 1511.
18.
Grac’a Machel, supra note 2, at 49. Machel says, ibid., at 48, that these guidelines and
limitations rose out of the recognition by politicians and soldiers, ‘… that
they can achieve many of their objectives if they fight within agreed standards
of conduct.’
19.
Ibid.,
at 50.
20.
The conventions are:
(i)
Geneva
Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field of 12 August 1949 (Geneva Convention I);
(ii)
Geneva
Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (Geneva Convention
II);
(iii)
Geneva
Convention Relative to the Treatment of Prisoners of War of August 12, 1949
(Geneva Convention III); and
(iv)
Geneva
Convention Relative to the Protection of Civilian Persons in Time of War of 12
August 1949 (Geneva Convention IV).
21.
Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June
1977.
22.
Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), 8
June 1977.
23.
Grac’a Machel, supra note 2.
Mrs.
Machel was the expert appointed by the
Secretary-General on 8 June 1994, to study the
impact of armed conflict on children, pursuant to General Assembly resolution
48/157 of 20 December 1993.
24.
Fiona Ang, supra note 5, at 1512.
25.
Ibid.,
at 1515.
26.
International Court of
Justice, Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory (Request for
advisory opinion) (2004). The Court anticipated that
circumstances would arise where the two would become complementary.
27.
Fiona Ang, supra note 5, at 1509.
28.
This means the principles
which form the norms of international law that cannot be set aside. These are peremptory norms of international law that are
accepted by the international community of states as fundamental principles
from which no derogation is permitted.
29.
Fiona Ang, supra note 5, at 1514.
The
term hors de combat means those that are out of action due to injury or damage.
The principle requires that those who no longer pose serious threats should not
be killed, injured or damaged further.
According to Wikipedia, ‘Jus ad bellum’ (2022), jus ad bellum is a set of criteria that
are to be consulted before engaging in war in order to determine whether
entering into war is permissible, that is, whether it will be a just war. It regulates
the resort to force. This is distinct from the set of rules that ought to be
followed during a war, known as jus in
bello, which is a synonym for IHL. Accessed online at https://en.wikipedia.org/wiki/Jus_ad_bellum,
on 2 August 2022, at 22:37 hrs.
30.
Ibid.
31.
Grac’a Machel, supra note 2, at 51.
32.
Ibid.,
at 53.
33.
Ibid.,
at 47.
34.
Fiona Ang, supra note 5, at 1514.
35.
Grac’a Machel, supra note 2, at 48.
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