Notes and References
Friday, July 27, 2012
From Faith to Reality: Protection of Children Affected by Armed Conflict under International Law
By Bakampa Brian Baryaguma
[Dip. Law (First Class)–LDC; Cert. PELD–NALI-K; Cert. Oil & Gas–Mak; LLB Student–Mak]
This essay appreciates the protection offered by international law to children affected by armed conflict as genuine, but avers that the protection offered is inadequate. To ensure their greater protection, it propounds that states not only bear the primary responsibility of preventing armed conflicts from taking place, but of protecting affected children once they occur. Nevertheless, the essay recognizes a collective responsibility of taming the savageness of man and making gentle the life of this world if progress from faith to reality is to be made. To this end, it analyzes the underlying challenges and makes appropriate recommendations.
The 1996 report of the expert of the Secretary-General, Ms Grac’a Machel, entitled Impact of Armed Conflict on Children reveals some of the horrendous effects of armed conflicts on children: ‘Some fall victim to a general onslaught against civilians; others die as part of a calculated genocide. Still other children suffer the effects of sexual violence or the multiple deprivations of armed conflict that expose them to hunger or disease. Just as shocking, thousands of young people are cynically exploited as combatants.’  These are chilling revelations of the plight of children affected by armed conflict–they are victimized and unprotected.
This essay discusses the protection that international humanitarian law and other relevant branches of international law provide to children affected by armed conflict. Part one introduces the problem and defines the key terms used. Part two discusses various provisions of international law which offer protection to children and examines their adequacy. Part three considers the challenges in ensuring greater protection and makes appropriate recommendations. Part four gives concluding remarks.
A. Definition of Key Terms
According to Article 1 of the Convention on the Rights of the Child, a child is, ‘... every human being below the age of eighteen years ...’. 
1.1. Armed Conflict
This is a fight, struggle or quarrel between two or more contending forces, involving the use of military equipment and personnel, including militia. It may either be international (state-state conflicts) or non-international (internally warring factions in a state).
1.2. International Law
Also known as the law of nations, international law is ‘The system of law regulating the interrelationship of sovereign states and their rights and duties with regard to one another,’ although some organizations, companies and individuals are also accommodated. 
1.3. International Humanitarian Law
International humanitarian law (hereinafter ‘humanitarian law’), is the branch of international law that governs the conduct of war.  Also known as the law of armed conflict, it sets out the situations when one can lawfully go to war and what can be done thereafter. Thus, ‘... it limits the choice of means and methods of conducting military operations and obliges belligerents to spare persons who do not, or who no longer, participate in hostilities.’ 
1.4. International Human Rights Law
International human rights law (hereinafter ‘human rights law’), is a branch of international law that ‘... establishes rights that every individual should enjoy at all times, during both peace and war.’ 
1.5. International Criminal Law
International criminal law (hereinafter ‘criminal law’), is a branch of international law that primarily spells out forbidden acts and omissions and imposes sanctions for violation thereof.
1.6. International Customary Law
International customary law (hereinafter ‘customary law’), refers to the unwritten rules of international law which, with time have acquired the force and status of law. Qualification depends on: (a) state practice supporting the existence of the rule (usus); and (b) a belief among states that the rule is legally binding (opinio juris).  In the Nicaragua Case, Court considered that ‘... opinio juris may be deduced from, inter alia, the attitude of the Parties and of States ...’ stating that conduct is an important indicator of opinio juris. 
2.0. Protection of Children under International Law and its Adequacy
International law offers protection to children affected by armed conflicts. The ensuing discussion considers various protective provisions of law and examines their adequacy.
A. Humanitarian Law
World leaders have sought to regulate the conduct of hostilities, through the laws of war, hoping to curtail the carnage and absurdity of armed conflict, ‘... in the best interests of humanity ...’.  The International Peace Conference, convoked in The Hague-Netherlands on the 18 May 1899, passed legal instruments including, the Hague Convention of 1899, followed by the Hague Convention of 1907, to curtail combatants’ means and methods in warfare–collectively referred to as the Law of The Hague. 
The atrocities of World War II unmasked the savagery of mankind when innocent civilians, were subjected to unprecedented intolerable suffering and humiliation! This necessitated the regulation of warfare regarding non-combatants, hence culminating into the adoption of the Geneva Conventions of
August 1949, supplemented by Additional Protocols–collectively
referred to as the Law of Geneva. 
Humanitarian law is therefore, constituted of two parts: the Law of The Hague and the Law of Geneva. This essay focuses on the latter. Suffice to say however, that the Law of The Hague,
... provides for regulation of the hostilities themselves; that is, it regulates the force unleashed in the hostilities. This has a direct, humanitarian impact upon reducing human suffering and unnecessary destruction or deprivation of values, because it reaches out to regulate the methods of attack, selections of weapons to be used–measuring such selections against the targets or objects of attack to determine the proportionality of the force used and the object to be attained–and also regulates the permissibility with regard to the targets of attack. 
case, the Court held that there is an obligation to respect the Geneva Conventions and even to ensure
respect for them, deriving from the general principles of humanitarian law to
which the Conventions merely give specific expression.  The Law of Geneva addresses a number of issues,
chief of which include: Nicaragua
1.0. Supplies for Children
Article 23 of Convention (IV) relative to the Protection of Civilian Persons in Time of War (hereinafter ‘fourth Geneva Convention’), requires combatants to ‘...permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen...’.
This protection is inadequate because it only concerns itself with children under fifteen years. Worse still, a wholesome reading of the article reveals that children under fifteen are only protected in consideration of their needy state, deserving of special protection due to inherent weaknesses;  without which no protection is guaranteed.
2.0. Fundamental Guarantees of Humane Treatment
Article 4(3) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977 (hereinafter ‘Protocol II’), provides children with fundamental guarantees of care and aid they require like receiving an education, family reunion and protection against participating in hostilities.
Commendable protection for children affected by non-international armed conflicts is offered here. Education equips children with self-sustaining skills and also inculcates in them the value of peace and non-violence; family reunions relieve children of the trauma of separation from loved ones which can be more distressing than the horrors of armed conflicts. 
However, the protection offered is rendered inadequate given the scope of Protocol II which, under Article 1(2) does ‘... not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.’ But, welfare is impaired irrespective of the nature of conflict because ‘For a child caught up in such situations there may, however, be little distinction. The effects of war are not limited by their classification under humanitarian law.’ 
3.0. General Protection of Children
Article 77(1) of the Protocol Additional to the Geneva Conventions of
12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts, 8 June 1977
(hereinafter ‘Protocol I’), states that, ‘Children shall be the object of
special respect and shall be protected against any form of indecent assault.’
Conflicting parties are enjoined to refrain from directly involving children
below the age of 15 years in direct hostilities including, recruiting them into
their armed forces;  holding them in quarters separate from adults, if
arrested, detained or interned for conflict related reasons;  exempting
them from the imposition of the death penalty for commission of armed conflict
related offences. 
This article has two outstanding controversies, in spite of its apparent broadness: first, the phrase Children shall be the object of special respect is very imprecise, incapable of certain definition;  second, it deals with specific issues, making it susceptible to strict interpretation, at the expense of many victims who may not qualify under its restrictive regime.
Humanitarian law is believed to be practical, thus more implementable, since it is a compromise between humanitarian considerations and military necessity. The former includes values such as compassion and humanity that, ‘... prohibits the employment of any kind or degree of force not necessary for the purpose of war, i.e., for the partial or complete submission of the enemy with the least possible expenditure of time, life, and physical resources,’ and the latter sees war as a necessary evil,  that ‘... permits a belligerent to apply only that degree and kind of regulated force, not otherwise prohibited by the laws of war, required for the partial or complete submission of the enemy with the least possible expenditure of time, life, and physical resources. 
The similarity of language demonstrates humanitarian law’s ability ‘... to strike a reasonable and pragmatic balance between military necessity and humanitarian requirements ...’  for the benefit of children affected by armed conflict.
B. Human Rights Law
Human rights law offers protection to children in armed conflict in a number of instruments especially, the following:
1.0. Convention on the Rights of the Child
Save for a few loopholes, children affected by armed conflict are comprehensively and specifically protected under this Convention which, generally recognizes children as a separate and distinct legal personality.
(a) Prevention of Economic Crisis
Article 27 protects children against economic want and deprivation for the good of their physical, mental, spiritual, moral and social development–the primary responsibility to achieve this being on ‘... parent(s) or others responsible for the child ... within their abilities and financial capabilities,’ assisted by states, operating in accordance with their national conditions and means.
Entrusting children’s economic wellbeing in the hands of the parent(s) or others responsible for the child renders the protection offered inadequate because armed conflicts cause impoverishment of people having parental responsibility.
Further, states can easily renege on their duty by feigning inability to deliver, while in reality they are engaged in unproductive ventures. UNICEF has noted that,
Even if they have never seen a gun, millions of children suffer from wars, as resources that could have been invested in development are diverted into armaments. Indeed, one of the most distressing realities of our time is that most wars have been fought in precisely those countries that could least afford them. 
(b) Protection of Health and Community Infrastructures
Article 24 concerns preservation of health and community infrastructures like hospitals and schools that are vital for the wellbeing and survival of children affected by armed conflicts, for purposes of preventing death from avoidable causes.
(c) Protection of the Right to Life and Survival
Article 6 recognizes that every child has the inherent right to life and obliges states to ensure to the maximum extent possible, the survival and development of the child. The focus is to address the most fundamental challenge in armed conflict–protecting the lives of affected children and safeguarding their survival. 
1. Article 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.’ The exception to the age limit is a contradiction in terms, casting unnecessary doubt and raising status issues.
2. Article 38 is diversionary in so far as it permits children who have attained the age of 15 years to participate in armed conflicts as an exception to the 18 years’ limit. Such unnecessary exceptions should be avoided for adequate protection to be achieved. The trauma and effect of conflict on children disregards age variations.
2.0. Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict 
This Protocol strengthens humanitarian and human rights law by addressing important criticisms against them for example, Article 38 of the Convention on the Rights of the Child. It was argued that by establishing 15 years as the minimum age for recruitment and direct participation in hostilities, this article deviated from ‘... all other provisions of the
CRC [which] protect children up to the age of eighteen
and because it actually does not imply any improvement to existing
international law on the issue of child recruitment.’ 
Article 1 sets 18 years as the minimum age for taking a direct part in hostilities; implying that states are required to raise the minimum age of direct participation in hostilities from 15 to 18 years. This obligation does not encompass indirect participation, which is equally dangerous for children.
Article 2 prohibits compulsory recruitment of children into the armed forces; implying that voluntary enlisting is lawful. This is exemplified by Article 3(1) which urges states to ‘... raise in years the minimum age for the voluntary recruitment of persons into their national armed forces ...’.
Article 3(3) provides safeguards for voluntary recruitment under 18 years. It must be genuine, based on informed consent and reliable proof of age. This article is highly optimistic and encouraging but, ‘In reality, the distinction between compulsory conscription and voluntary enlistment is not always as clear, since factors such as poverty, lack of physical protection and lack of opportunities might induce children to join voluntarily armed forces or groups.’ 
Article 4(1) prohibits non-state armed forces from recruiting or using children in hostilities and obliges states to take all feasible measures to prevent such recruitment and use. This article is timely because in most contemporary armed conflicts, non-state actors recruit and use majority of children.  Unfortunately, the inequality it condones by excluding national armies from its absolute application makes it unpopular to rival groups. Plus, it is illusory and fictitious because states may not effectively control the behaviour and actions of armed groups that are challenging their power.
C. Criminal Law
The 2002 Rome Statute of the International Criminal Court (hereinafter ‘the Rome Statute’), under Article 8(2)(e)(vii), listed ‘Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities’ as a war crime. Under Article 26, the Court is divested of jurisdiction over persons less than 18 years.
This Statute regards children primarily as victims, not perpetrators. This is consistent with the view that, ‘... where children have been forced to commit crimes, they are first and foremost victims and should not be prosecuted ... [considering that] they are not the rational actors in a particular case and can thus mitigate their legal responsibility for the crimes they have allegedly committed.’ 
Further more, Article 8(2)(e)(vii) distinguishes between conscripting and enlisting in the crime of child recruitment. Conscripting refers to forced entry into the armed forces through name lists of compulsory recruits while enlisting means individuals’ voluntary acts to join.  This crime applies to state and non-state entities alike. It appreciates that voluntary joining is vitiated by harsh conditions, like destitution and insecurity, which compel children to make decisions contrary to their best interests.
This article enhances the protection of children because it expands the scope of protection from merely taking a direct part in hostilities as under Article 1 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict to prohibiting active participation in hostilities. Involvement of children in armed conflict is given broader definition including, acting as spies and human shields. 
D. Customary Law
The case of Prosecutor v. Sam Hinga Norman confirmed the applicability of customary law in protection of children affected by armed conflict. Court held that the recruitment and use of children under 15 years in armed conflict constitutes a war crime under customary international law.  The uncertainty of customary law renders it inadequate.
3.0. Challenges in Ensuring Greater Protection for Children
Ensuring greater protection for children affected by armed conflict faces stiff challenges under international law. These include:
1. State Sovereignty
State sovereignty refers to the supreme and independent power or authority in government, as possessed or claimed by a state or community in a defined territory, based on the conception that there must be, within every political community of state, a determinate sovereign authority, whose powers are decisive and recognized as the rightful or legitimate basis of authority. 
Article 2(4) of the Charter of the United Nations prohibits states from interfering in internal affairs of other states. Hence, it is unsurprising to find that ‘... the world community continues to watch serious breaches of human rights and humanitarian law principles during situations of ... armed conflicts.’  Embattled Syrian President Assad’s government has invoked state sovereignty to ward off international criticism for human rights violations, in its brutal crackdown against civil protests calling upon him to step down from power.
2. Children and Criminal Responsibility
It is common knowledge that, ‘While children’s experiences of war crimes, crimes against humanity and genocide are first and foremost as victims, children are also sometimes recruited to be active parties to those crimes.’  They are deliberately forced to commit atrocities against their own families and communities, as part of initiation ceremonies.  This makes children perpetrators of conflict related crimes. The question is whether they should be held responsible for unlawful acts.
The dilemma is that, on the one hand, failure to prosecute them could be an added incentive for their adult commanders to use them for committing crimes eyeing impunity; on the state’s part, it could be a breach of international law.  On the other hand, it is possible that some children commit crimes on their free will and volition, so that excusing them would be tantamount to abetment and injustice. This illustrates the complexity of balancing culpability, a sense of justice and the best interests of the child.  Consequently, ‘... the international criminal justice system is faced with new and serious challenges.’ 
I recommend placing focus on political leaders and military masterminds who plan and instigate atrocities–for only then can the deterrent effect of international prosecutions be increased. 
3. Poor Record Keeping and Documentation
Article 8(2)(e)(vii) of the Rome Statute of the International Criminal Court expects the recruiting authority to know whether the recruit is older than 15 or not; implying that recruiters have a due diligence duty to inquire into the background of those they are recruiting and to have certain age verification procedures in place.  But this is somewhat impractical, in conflict-torn states, where birth registration is hardly done.
I recommend the encouragement and promotion of birth registration and documentation.
4. Balancing Belligerent Interests
Article 4 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict favours state actors at the expense of their non-state adversaries. UNICEF noted that, ‘In today’s armed conflicts, many of the offenders are not states at all but rather a loose collection of sub-national groups, civilian and military ... Nevertheless, many of the worst offenders are governments, and should be held to account.’  Further more, the International Committee of the Red Cross (ICRC), noted that,
The principal cause of suffering in armed conflicts remains the inability to respect the law in force, whether for lack of means or political will, rather than the deficiency or absence of rules. The reality of contemporary armed conflicts shows that international humanitarian law is violated daily, either by State forces or by non-governmental armed groups. 
Thus, it is important that as much as possible, international law be neutral, if it is to be respected by belligerents.
Effectiveness and enforceability of international law is critical to transforming its protection of children affected by armed conflict from articles of faith into expressions of reality. Obtaining the will and means to stop hostilities is important because, as the ICRC found,
... international humanitarian law, in its current state, provides a suitable legal framework for regulating the conduct of parties to armed conflicts. In almost all cases, what is required to improve the victims’ situation is stricter compliance with that framework, rather than the adoption of new rules. If all the parties concerned showed perfect regard for international humanitarian law, most current humanitarian issues would not exist. All attempts to strengthen humanitarian law should therefore build on the existing legal framework. There is no need to re-open the discussion on rules of long-established validity. 
With this, the future will certainly belong to children; they will get the best of mankind especially, now that the international community is ‘Determined to save succeeding generations from the scourge of war. 
1. Grac’a Machel, Impact of Armed Conflict on Children (1996), at 5.
2. GA Res. 44/25,
20 November 1989.
3. Elizabeth A. Martin (Ed.), A Dictionary of Law (2003), at 260.
4. Carolyn Hamilton and Tabatha Abu El-Haj, ‘Armed Conflict: the Protection of Children Under International Law’, at 3.
5. Grac’a Machel, supra note 1, at 49.
6. Ibid., at 50.
7. Kithure Kindiki, ‘The Legality and Applicability of Humanitarian Intervention to Internal Conflicts in Africa’ 7 EAJPHR (2001) 1, at 35.
8. International Court of Justice, Case Concerning Military and Paramilitary Activities in and against Nicaragua: (Nicaragua v. United States of America) (abridged version), 1986.
9. Final Act of the International Peace Conference; July 29, 1899.
10. Carolyn Hamilton and Tabatha Abu El-Haj, supra note 4, at 4.
12. Harry H. Almond, Jr., ‘Human Rights, International Humanitarian Law, and the Peaceable Adjustment of Differences in Africa’ 1 EAJPHR (1993) 2, at 154.
13. Nicaragua v. United States of America, supra note 8, at 9.
14. Carolyn Hamilton and Tabatha Abu El-Haj, supra note 4, at 7.
15. UNICEF, The State of the World’s Children 1996, at 24. This is the essence of protection of unaccompanied children, under Article 24 of the fourth Geneva Convention.
16. Carolyn Hamilton and Tabatha Abu El-Haj, supra note 4, at 18.
17. Article 77(2).
18. Article 77(4).
19. Article 77(5).
20. Carolyn Hamilton and Tabatha Abu El-Haj, supra note 4, at 14.
21. Ibid., at 5-6.
22. Harry H. Almond, Jr., supra note 13, at 150.
23. International Committee of the Red Cross, Strengthening legal protection for victims of armed conflicts (2011), at 6.
24. UNICEF, supra note 16, at 24.
25. Carolyn Hamilton and Tabatha Abu El-Haj, supra note 4, at 2.
26. Operational since 12 February 2002.
27. Radhika Coomaraswamy, ‘The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict – Towards Universal Ratification’ 18 IJCR (2010), at 538.
28. Ibid., at 540.
29. UNICEF, supra note 16, at 17.
30. No Peace Without Justice and UNICEF Innocenti Research Centre, International Criminal Justice and Children (2002), at 56.
31. Radhika Coomaraswamy, supra note 27, at 542.
32. Ibid., at 543.
33. Special Court for Siera Leone, Prosecutor v Norman, SCSL-03-08-PT, Motion on lack of Jurisdiction: Child Recruitment, filed 26 June 2003, referred to the Appeals Chamber by an Order of the Trial Chamber of 17 September 2003.
34. Kal Raustiala, ‘Rethinking the Sovereignty Debate in International Economic Law’ 6 JIEL (2003) 4, at 842.
35. Kithure Kindiki, supra note 7, at 20.
36. No Peace Without Justice and UNICEF Innocenti Research Centre, supra note 30, at 33.
37. Grac’a Machel, supra note 1, at 14.
38. Radhika Coomaraswamy, supra note 27, at 544.
39. Grac’a Machel, supra note 1, at 56.
40. No Peace Without Justice and UNICEF Innocenti Research Centre, supra note 30, at 54.
41. Ibid., at 55.
42. Radhika Coomaraswamy, supra note 27, at 542.
43. UNICEF, supra note 16, at 31 (emphasis added).
44. International Committee of the Red Cross, supra note 23, at 12.
45. Ibid., at 4.
46. Preamble to the Charter of the United Nations.