Protecting children in situations of armed conflict

Session 7: Handout 7.1

The Evolution of Child Rights

The child as a subject in international proceedings and international law began making its presence known by 1924 when the League of Nations adopted the Declaration of the Rights of the Child. Although it was not a very detailed Declaration, it is noteworthy that this was the only "rights document" adopted by the League of Nations, and that the drafters were already taking a rights approach to protecting groups of children who were in particularly vulnerable situations. In this Declaration, the child’s right to development, food, health and shelter were at the core of what states felt they were obliged to address. The declaration explicitly stated that "the child must be the first to receive relief in times of distress". This call for children came again in Principle 8 of the Declaration on the Rights of the Child adopted by the United Nations in 1959, and has been kept alive to date. The late UNICEF Executive Director, James P. Grant, in connection to the 1990 World Summit for Children, declared that "the leaders of the world have agreed to be guided by the principles of a ‘first call for children’ – a principle that the essential needs of children should be given high priority in the allocation of resources, in bad times as well as in good times, at national and international as well as at family levels."

In 1989 the Convention on the Rights of the Child (CRC) was adopted by the United Nations General Assembly. It is a comprehensive human rights instrument, addressing the rights of one particular group of people. The CRC recognizes the indivisibility of human rights in that it covers economic, social and cultural rights, as well as civil and political rights in one and the same instrument. The 1949 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) sets out internationally accepted principles on the rights of women. The basic legal norm of the Convention is the prohibition of all forms of discrimination against women. It is not a comprehensive human rights instrument, as the CRC is, but creates legally binding obligations on States Parties to eliminate discrimination against women to enable them to fully enjoy their human rights. It has in recent years been reinforced by the Declaration on the Elimination of Violence against Women (1993) and the appointment of the Special Rapporteur on Violence against Women (1994). Both CRC and CEDAW complement the International Bill of Rights, consisting of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

In a matter of few years, the CRC was to become the most widely ratified human rights instrument. Today it has 191 state parties, almost the entire international community. The only two states which have not ratified the Convention are the United States and Somalia. The CRC, therefore, has universal application, and many of its provisions today form part of international customary law. In other words, even if a state has not ratified the CRC, that state would nevertheless be obliged to follow the principles of the CRC because of the overwhelming support for the CRC globally speaking. Practice is definitely showing us in that direction, and the number of ratifications must be a sign that States are sufficiently supporting the tenets of the Convention for customary law to take form.

In Article 1, the CRC defines the child as "every human being below the age of 18 years". It does not specify when the rights in the Convention start being applicable to the child, but it leaves it up to the individual nation state to decide when the rights of the child start. Some states have wanted the rights to be applicable from the moment of conception, while others have granted the rights from the moment of birth. The only exception with regard to the age of 18 years to be found in the Convention is in Article 38 dealing with recruitment of children into the armed forces. In this regard, the minimum age is set at 15. There is, however, an international campaign advocating that the age be raised to 18 through an additional protocol to the Convention. (See further section on child soldiers and demobilization.)

The CRC is a powerful tool because it applies to ALL children in ALL situations. This means that no derogations may be made from the Convention during times of emergency. From the child’s perspective and the perspective of the person or institution who is advocating on behalf of the child this is extremely important. Children living in armed conflict, situations of instability, turmoil and natural disasters are some of the poorest children in the world, but the same rights continue to apply to them.

The General Principles

Children are most likely to suffer the consequences of war, and often they are even the targets of warfare. It is important to have a good understanding of the basic over-arching principles on which child rights are based; it is important also to know specific provisions that are particularly useful in armed conflicts. Without this holistic frame of mind, there may be certain groups of children who fall between the cracks and whose rights are not being ensured. While UNICEF should not and cannot cover all the protection needs of children the organization should ensure that protection needs are met by creating an alliance of partnerships. The rights-based approach to programming can be used to identify risks, fill gaps, and relate to child protection issues as human rights issues rather than needs. Learning and using rights terminology is a potentially powerful tool for improving the protection of children.

The general principles of the CRC are umbrella provisions and the basis for all action taken by any government and other actors working to protect the rights of children. These principles are:

These principles are particularly important because they relate to every substantive right in the Convention, and they can help us in adopting a child rights approach in our work. In the following sections we will be dealing with the type of problems that normally arise in armed conflicts and other humanitarian crises by presenting some of the children’s dilemma. These sections will also help you deal with some of these dilemma and design practical strategies to protect the rights of the child.

The Convention on the Rights of the Child (CRC), allowing no derogations in times of emergency, is, of course, applicable during armed conflicts as well as during peace time. Most arguments presented in the Handouts and the Readings will therefore come from the CRC. However, other human rights instruments will also be referred to as relevant. International humanitarian law is primarily applicable in times of armed conflict, and certain arguments can therefore be drawn upon from that body of law.

UNICEF and the Concept of Child Protection

The protection of children means all activities aimed at ensuring respect and fulfilment of their rights as expressed in the CRC, in other international human rights instruments and international humanitarian law. Responsibility for ensuring such protection belongs to those with control and influence over children -- first and foremost the governments, de facto authorities and other institutions or organisations, as well as their families and communities.

Specific sets of articles in the CRC stipulate that children are "to be protected from" abuses, including violence and economic or sexual exploitation, and that children are "to be provided with" services such as rehabilitative care from effects of exploitation, abuse or armed conflict, along with special entitlements in cases where children are separated from their families or when families fail in their responsibilities.

The Committee on the Rights of the Child introduced the concept of "special protection measures" recognizing that children are particularly vulnerable in situations such as war, violence, abuse, separation from family, disability and detention.

It is on the basis of this concept that the Executive Board established in 1996 a new policy to guide UNICEF’s action on behalf of children in need of special protection measures (for further details refer to "A Review of UNICEF Policies and Strategies on Child Protection", document E/ICEF/1996/14 of 04 August 1996, and "Children in Need of Special Protection Measures: Report on Steps for Policy Implementation", document E/ICEF/1997/16 of 25 March 1997). The policy moves beyond the categorization of the children, to a focus on a proper assessment and analysis of their situation so as to be able to address that situation as a whole.

Over the past few years, UNICEF has implemented a rights-based approach to programming. This approach is an effort to give more weight to the CRC and CEDAW as the organisation’s guiding frames of reference. In terms of how the organisation approaches the situation of children, it has been and continues to be a rather dramatic change, in that UNICEF traditionally has mainly addressed children’s economic and social rights, paying very little attention to the protection of civil and political rights. With the CRC, the mandate of the organisation has been broadened to cover all matters in relation to children’s rights.

The programme implication of the protection policy is the identification and assessment of potentially harmful situations in which children are found and to design appropriate basic services as well as providing special protection measures for those children identified as being at risk.

The policy highlights six common and widespread set of circumstances, often interrelated and overlapping, which put millions of children in severe jeopardy:

(a) Harmful and disabling child labour;
(b) warfare and other forms of organised violence;
(c) sexual abuse and exploitation of children;
(d) childhood disabilities;
(e) temporary or permanent loss of family and/or primary caregivers;
(f) deficient laws, abusive legal and judicial processes.

The policy outlines a two-pronged strategy for addressing the situation of severely disadvantaged children, namely to:

1. provide appropriate social services across all the sectors to reach and support children at risk; and to

2. put in place targeted initiatives to reach disadvantaged children who are discriminated against, missed by or left out of mainstream programmes.

This two-pronged strategy is to be applied in country programmes of cooperation through preventive measures as part of the mainstream social sector programmes such as education and health, to reach those at risk of falling into situations of special disadvantage; as well as special protection measures for compensation and recovery for children already exposed to situations that harm their development and who require support.

In order for UNICEF to fulfill its obligation and mandate in relation to Article 38 of the CRC, which deals specifically with children in situations of armed conflict, the organization must ensure that protection activities are part of humanitarian assistance programmes. Article 38 specifies that "States Parties shall take all feasible measures to ensure the protection and care of children who are affected by an armed conflict", and it thus emphasises this two-fold understanding of humanitarian action.

In this context, protection will essentially have two principal objectives:

• The protection of children from harm inflicted by others. This objective must include the preventive aspects as well as the reparative aspects. UNICEF will ensure that all appropriate measures are taken to prevent children from harm and to promote the recovery and reintegration of children who have been affected.

• Fulfilling the humanitarian imperative, i.e. the right of the civilian population, and in particular children, to humanitarian assistance.

Following is a list of four points of action, through which the protection of children in emergency situations can be best achieved. In doing so, the particular needs and rights of girls and boys must be taken into account and gender-sensitive initiatives and programmes developed that address these.

The provision of social services and welfare care. In conflict situations, no less than in times of peace, children have rights to basic services and require access to health care, education, recreation, physical and psychological rehabilitation and social integration. Education in particular plays a key role. In specific circumstances, this can be achieved through the creation of periods of tranquillity and safe corridors in conflict zones.

The strengthening of institutions most likely to provide a caring, protective environment for children, in particular the immediate family. Priority will be given to measures strengthening the family and ensuring the child is helped to remain with the family and the family and other community-level institutions are strengthened to care and protect for the child.

The promotion of laws and values that embody respect for children and their rights, including dissemination of appropriate conventions and principles. The Convention on the Rights of the Child, particularly Articles 19-23 and 32-40, and the Geneva Conventions of 1949 and their Additional Protocols of 1977 provide internationally accepted principles for the protection of children in conflict situations. Children themselves are important actors in both designing and carrying out dissemination activities.

The creation of circumstances which specifically protect children and allow for the delivery of humanitarian aid, or remove them from potentially dangerous or exploitative environments. The creation of safe havens and corridors of tranquillity, or removing children from adult prisons and conditions of danger or possible abuse, the demobilisation and reintegration of boys and girls recruited by the military, become important activities to ensure the well being of children.

Impact of armed conflict on children

The Graça Machel study on the Impact of Armed Conflict on Children (A/51/306 of 26 August 1996) recognized that "children’s needs and aspirations cut across all ideologies and cultures." While this is true, during armed conflict, children nevertheless are particularly vulnerable to human rights violations. A most important outcome of the report on the impact of armed conflict on children was the ten point call for urgent action:

1. Implementing International Standards

Enforcement of standards as well as dissemination, awareness raising and education in the rights of the child.

2. Monitoring and Reporting Violations of Child Rights

Treating children in armed conflict as a distinct and priority concern and establishing effective monitoring mechanisms to assess child rights violations from a gender perspective.

3. Promoting Physical and Psychological Recovery and Social Reintegration

Children’s fundamental rights, such as right to health, nutrition, psychosocial well-being and education, must be a priority in all humanitarian assistance. These rights must be guaranteed in a non-discriminatory manner.

4. Increasing Commitment for Refugee and Internally Displaced Children

Provide care and protection, particularly regarding family reunification, the equitable delivery of humanitarian assistance and children’s rights to education.

5. Demobilizing Child Soldiers

Prevention of the recruitment of both boys and girls under the age of 18, demobilization of all children in armed forces and incorporation of their needs into peacekeeping, peace agreements and demobilization programmes.

6. Ending the Scourge of Land mines

States are urged to support a comprehensive international treaty to ban on the use, production, trade and stockpiling of anti-personnel mines. An integrated programme of humanitarian mine clearance, gender and age appropriate mine awareness and child centered rehabilitation and social reintegration (including assistance devices, physio-therapy, education, and vocational training) should be accelerated.

7. Preventing Gender-based Violence and Sexual Exploitation

Violations of the rights of girls and women in armed conflict, including murder, rape, sexual exploitation and forced pregnancy, must be prosecuted and appropriate legal and rehabilitative remedies made available.

8. Protecting Children from Sanctions

Assessment and monitoring the impact of sanctions on children and child focused humanitarian exemptions should be adopted.

9. Prevention

The international community should give priority to promoting sustainable and equitable patterns of human development and measures such as early warning, preventive diplomacy and education for peace. Women and children should always be central to and participate in all actions to promote peace, implement peace agreements and resolve conflicts.

10. Special Representative

A Special Representative on the Impact of Armed Conflict on Children should be named to keep the issues of children and armed conflict high on international human rights, humanitarian, peace, security and development agendas and to follow up on the report on the Impact of Armed Conflict on Children.