ADVISORY SERVICE

ON INTERNATIONAL HUMANITARIAN LAW

____________________________________

Legal Protection of Children

in Armed Conflict
International humanitarian law provides broad protection for children. In the event of armed conflict, either international or non-
international, children benefit from the general protection provided for civilians not taking part in the hostilities. Non-combatant
civilians are guaranteed humane treatment and covered by the legal provisions on the conduct of hostilities. Given the particular
vulnerability of children, the Geneva Conventions of 1949 (hereafter GCIII and GCIV) and their Additional Protocols of 1977 (API
and APII) lay down a series of rules according them special protection. Children who take direct part in hostilities do not lose
that special protection. The Additional Protocols, the 1989 Convention on the rights of the child and its recent Optional Protocol,
in particular, also set limits on children's participation in hostilities.

General protection Parties to the conflict shall provide Participation in hostilities

them with the care and aid they The 1977 Additional Protocols
In the event of an international armed require, whether because of their age
conflict, children not taking part in the or for any other reason» (Art. 77). This Participation by children in armed
hostilities are protected by GCIV principle also applies to non- hostilities occurs too frequently. This
relative to the protection of civilians international armed conflict (Art. 4, participation may range from aiding
and by API. They are covered by the para. 3 APII). The provisions setting combatants (bringing them weapons
fundamental guarantees that these out this protection may be summarized and munitions, carrying out
treaties provide, in particular the right as follows: reconnaissance missions, etc.) to the
to life, the prohibitions on coercion, actual recruitment of children as
corporal punishment, torture, collective Ÿ evacuation, special zones – Art. combatants in national armed forces
punishment and reprisals (Art. 27-34 14, 17, 24 (para. 2), 49 (para. 3) and other armed groups. The 1977
GCIV and Art. 75 API) and by the rules and 132 (para. 2) GCIV; Art. 78 Additional Protocols were the first
of API on the conduct of hostilities, API; Art. 4 (para. 3e) APII; international treaties to cover such
including both the principle that a situations. Thus, API obliges States to
distinction must be made between
Ÿ assistance and care – Art. 23, 24
take all feasible measures to prevent
(para. 1), 38 (para. 5), 50 and 89
civilians and combatants and the children under 15 from taking direct
prohibition on attacks against civilians (para. 5) GCIV; Art. 70 (para. 1) part in hostilities. It expressly prohibits
and 77 (para. 1) API; Art. 4 (para.
(Art. 48 and 51). their recruitment into the armed forces
3) APII;
and encourages Parties to give priority
In the event of non-international Ÿ identification, family reunification in recruiting among those aged from 15
armed conflict, children are also and unaccompanied children – to 18 to the oldest (Art. 77). APII goes
covered by the fundamental Art. 24-26, 49 (para. 3), 50 and 82 further, prohibiting both the recruitment
guarantees for persons not taking GCIV; Art. 74, 75 (para. 5), 76 and the participation – direct or indirect
direct part in the hostilities (Art. 3 (para. 3) and 78 API; Art. 4 (para. – in hostilities by children under 15
common to the GC and Art. 4 APII). 3b) and 6 (para. 4) APII; years of age (Art. 4, para. 3c).
They are further protected by the
principle that «the civilian population as Ÿ education, cultural environment – Despite the above-mentioned rules,
such, as well as individual civilians, Art. 24 (para. 1), 50 and 94 GCIV; children who take direct part in
shall not be the object of attack » (Art. Art. 78 (para. 2) API; Art. 4 (para. international armed conflict are
13 APII). 3a) APII; recognized as combatants and in the
Ÿ arrested, detained or interned event of their capture are entitled to
children – Art. 51 (para. 2), 76 prisoner-of-war status under GCIII. The
Special protection Additional Protocols provide that child
(para. 5), 82, 85 (para. 2), 89, 94
and 119 (para. 2) and 132 GCIV; combatants under 15 are entitled to
GCIV guarantees special care for Art. 77 (para. 3 and 4) API; Art. 4 privileged treatment in that they
children, but it is API that lays down (para. 3d) APII; continue to benefit from the special
the principle of special protection: protection accorded to children by
«Children shall be the object of special Ÿ exemption from death penalty – international humanitarian law (Art. 77,
Art. 68 (para. 4) GCIV; Art. 77 para. 3 API and Art. 4, para. 3d APII).
respect and shall be protected against
(para. 5) API; Art. 6 (para. 4) APII.
any form of indecent assault. The
The 1989 Convention on the rights is unable or unwilling to prosecute. In possible to pros ecute persons who
of the child order to take advantage of this have recruited children under 15
principle and to ensure repression at years of age or who have used
This treaty, which has been almost the national level, States should adopt children as active participants in
universally ratified, covers all the legislation enabling them to pros ecute hostilities (Art. 8, para. 2[b, xxvi,
fundamental rights of the child. Article the perpetrators of such crimes. and e, vii]).
38 extends the field of application of
Art. 77 API to non-international armed Detention and internment
National implementation
conflict. Article 38 urges States Parties
to take all feasible measures to ensure Ÿ States party to the 1977
Additional Protocols should take
that those aged of less than 15 years Despite the rules laid down by legislative or other measures to
do not take a direct part in hostilities international law, thousands of children ensure that any child under 15
(para. 2) and that priority be given in are nevertheless taking an active part years of age who is arrested,
recruitment to the oldest of those aged in hostilities and are themselves the detained or ni terned for reasons
between 15 and 18 (para. 3). It thus innocent victims of those events. relating to conflict enjoys the
falls short of the ban on direct or
special protection provided by
indirect participation laid down by APII. States have the primary responsibility international humanitarian law
to put an end to this situation. They are (Art. 77, para. 3 API and Art. 4,
Optional Protocol to the Convention therefore urged to ratify the treaties para. 3d APII).
on the rights of the child protecting children in armed conflict
and to take national measures adapted Death penalty
The Optional Protocol on the to their legal systems in order to
involvement of children in armed implement these treaties. Whether in Ÿ The States party to GCIV (Art. 68,
conflict, adopted on 25 May 2000, legislative or other form, these para. 4) and the Additional
generally strengthens protection for measures are intended to enable Protocols (Art. 77, para. 5 API
children in armed conflict: States to respect and to ensure and Art. 6, para. 4 APII) should
respect for the rules laid down by the take legislative measures under
Ÿ the States Parties must take all
treaties. penal and military law to prohibit
feasible measures to ensure that
the pronouncement or execution
members of their armed forces
It is suggested that priority be granted of a death sentence against
who have not reached the age of
to implementation of the following anyone aged less than 18 years at
18 years do not take direct part in
rules. the time of the offence, when the
hostilities (Art. 1);
offence is related to an armed
Ÿ compulsory recruitment into the Participation in hostilities conflict.
armed forces of persons under 18
years of age is prohibited (Art. 2); Ÿ A State bound by the Optional
Protocol to the Convention on the Dissemination
Ÿ the States Parties shall raise the rights of the child should take
minimum age for voluntary legislative measures prohibiting
recruitment from 15 years. This A large-scale effort to promote
and punishing both compulsory
rule does not apply to military knowledge of and compliance with
recruitment into the armed forces
academies (Art. 3); international humanitarian law is
of children under 18 years of age
required in order to ensure true respect
(Art. 2 and 6) and compulsory or
Ÿ armed groups distinct from the for children. States are legally obliged
voluntary recruitment – and any
national armed forces should not, to engage in dissemination activities
use of – children under 18 by
under any circumstances, recruit (Art. 47, 48, 127 and 144 of,
armed groups distinct from the
(whether on a compulsory or respectively, GCI, GCII, GCIII and
national armed forces (Art. 4).
voluntary basis) or use in GCIV; Art. 83 API; Art.19 APII; and Art.
hostilities persons under the age 6 of the Optional Protocol of 2000).
of 18 years, and the States Parties Ÿ States Party to the Convention
must take legal measures to on the rights of the child (Art.
Thus, States should include the
38, para. 3) or to API (Art. 77,
prohibit and criminalize such concept of child-specific protection in
para. 2) should take legislative
practices (Art. 4). peacetime training and exercises at all
measures prohibiting the
levels of the armed and national
Statute of the International Criminal conscription or enlistment in its
security forces.
Court (ICC) armed forces of children under 15,
and measures ensuring that
Likewise, consideration should be
priority in recruitment be given to
The Statute, adopted in Rome on 17 given to introducing this subject into
July 1998, includes in its list of war the oldest among those aged
the curriculum of universities and
crimes within the Court's jurisdiction between 15 and 18.
specialized institutions, and to
the active involvement in hostilities of organizing campaigns to raise
children under 15 or their recruitment Ÿ States Party to APII shall take
awareness among the general public,
legislative measures prohibiting
into national armed forces during an in particular among children and
the recruitment of children under
international armed conflict (Art. 8, adolescents.
15 and any participation by them
para. 2b [xxvi]) or into the national
in ni ternal conflicts (Art. 4, para.
armed forces or other armed groups
3c).
during a non-international armed
conflict (Art. 8, para. 2e[vii]). Ÿ In order to take advantage of the
principle of complementarity,
According to the principle of States party to the ICC Statute
complementarity, the Court has should ensure that their national 02/2003
jurisdiction in situations where a State criminal legislation makes it 0577/002;03 01 2003