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A STUDY ON VIOLENCE AGAINST CHILDREN IN ARMED CONFLICT AREA
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A STUDY ON
VIOLENCE AGAINST CHILDREN IN ARMED CONFLICT AREA
AUTHORED BY -
AKSHARA B.[1]
INTRODUCTION
Armed
conflict is a situation where a person’s life is totally changed. In that
situation, we are witnessing for the violation of human and legal rights of
people’s in the conflicted area. Children’s are badly affected by this armed
conflict due to their vulnerability in the society. International Humanitarian Law is protecting
the rights of the people who are affected by the armed conflict, not the rights
of the people, who are directly involved in the war. International humanitarian
law mandates that the armed forces and groups to take measures to protect
children during the conflict. We are having various conventions and protocols
for protecting the rights of vulnerable peoples. But still, in current
scenario, we have to make more efforts to protect the rights of children, who
are affected by armed conflict. The researcher aims to study on the legal
protection available to children in conflicted area and violations against
children in times of war.
“A child
means every human being below the age of eighteen years unless, under the law
applicable to the child, majority is attained earlier”.[2]
The Geneva Conventions and Additional Protocols use different age-limits with
respect to different protective measures for children, although 15 is the most
common.[3]
There are at least 350 million children living in armed conflict area in the
world. This paper aims to examine the violations against children in conflicted
area and legal protection available to children in armed conflict area.
Violations against children in times of war
·
Killing and maiming of children
Any act in the context of
the armed conflict that effects in the death of one or more children is called
killing and any act that causes a grave, permanent, disabling injury, scarring
or mutilation to a child is called maiming. As a result of direct targeting and
also indirect actions such as, crossfire, landmines, cluster munitions,
improvised explosive devices or other indiscriminate explosive devices causes
killing and injuring of children. It is happening on the context military
operations, house demolitions, search and-arrest campaigns or suicide attacks.
·
Recruitment
or use of children in armed forces and armed groups
Recruitment or use of
children in armed forces and armed groups are widely happening in almost all
conflicted area. The armed forces and groups is recruiting and using these children,
both boys and girls, as fighters, porters, cooks, spies, messengers,
collaborators and sex slaves. The
recruitment or use of children in the war field or conflicted areas may be
compulsory, forced or voluntary conscription or enlistment. The international
treaties are prescribed minimum age for the same too.
·
Attacks
on schools and hospitals
Nowadays, attacks on
schools and health facilities are becoming normal in armed conflicts. Children
living in conflict zones are increasingly vulnerable at their school and in
hospital beds. Direct or indirect violence and threats against schools and
health facilities have an overwhelming effect on children. The Safe School
Declaration contains a number of commitments aimed at strengthening the
prevention of, and response to, attacks on education during armed conflict,
including by reducing the military use of education infrastructure
·
Abduction
of children
The unlawful removal,
confiscation, seizure, apprehension, taking or enforced disappearance of a
child either temporarily or permanently for the purpose of any form of
exploitation of the child is called abduction. This includes, but is not
limited to, recruitment in armed forces or groups, participation in
hostilities, sexual exploitation or abuse, forced labour, hostage-taking and
indoctrination. These children are taken for forced conscription, domestic
servitude and sexual exploitation, or kidnapped for ransom or revenge.
Sometimes, these children are subjected for horrific ill-treatment when they
are being held in detention, from rape to being forced to kill other children.
These activities may create overwhelmed impact on victims and their families.
If a child is recruited by force by an armed force or group, this is considered
as two separate violations – abduction and recruitment.
·
Denial
of humanitarian access for children
The denial of
humanitarian access has become too familiar in armed conflicts. The intentional
deprivation of, or impediment to the passage, of humanitarian support
indispensable to children’s survival, by the parties to the conflict, including
wilfully impeding relief supplies as provided for under the Geneva Conventions;
and significant impediments to the ability of humanitarian and assist affected
children, in situations of armed conflict.
·
Rape
or other grave sexual violence
Sexual violence means any
sexual act, attempt to obtain a sexual act, or acts to traffic a child’s
sexuality. It takes many forms, including rape, sexual slavery or trafficking,
forced pregnancy, sexual harassment, sexual exploitation, abuse and
forced abortion.
Sexual violence against
both adults and children has been used as a tactic of war across all conflicted
area. The effect of sexual violence on children is catastrophic – physically,
psychologically and socially. Children who have been victims of sexual violence
are often left with serious physical injuries. The children who has been
subjected to rape or sexual violence are at high risk of damage to children’s
reproductive systems, contracting sexually transmitted infections etc. The
result of the rape or other grave sexual violence are child pregnancy, drop out
of school, social exclusion and stigmatisation. This makes them more vulnerable
in the society and diminishing the scope of further education, livelihood and
marriage.
Role of IHL
in the protection of children in conflicted area
Humanitarian law deals
with those matters which have an impact of armed conflicts on the life,
personal integrity and liberty of human beings.[4]
The objectives of the humanitarian law is to protect persons who are not or are
no longer, directly engaged in hostilities such as wounded, ship wrecked,
prisoners of war and civilians and to limit the effects of violence in fighting
and to restrict on prohibit those means and methods of warfare which are
indiscriminate in character or came unnecessary sufferings to attainment of the
objectives of the conflict.[5]
Humanitarian law is meant to evade human sufferings, barbarism and cruelty in
armed conflicts. It provides protection to human beings from the consequences
of armed conflict and applies to international armed conflict as well as
non-international armed conflict.
The humanitarian law
concept may be found in Quran, Bible and Dharma in the Vedic period in India.
To humanize warfare and to protect the victims of armed conflicts, a systematic
development of modern humanitarian law in armed conflicts originated in the
second half of the 19th century. The Convention for the Amelioration
of the Wounded in Time of War, 1864, was the first Convention for providing
certain rules regarding the conditions of wounded soldiers in land armies.
Later in 1868, the Declaration of St. Petersburg expressly stated that the use
of weapons is against the laws of humanity. In 1899, the Peace Conference held
at Hague and the conference resulted in the adoption of three significant
conventions i.e., Convention for the Pacific Settlement of International
Disputes, Convention with respect to the Laws and Customs of War on Land and
Convention concerning the adaptation of the Geneva Convention to Naval Warfare.
Later in 1907, second Hague Conference held and it produced thirteen new
conventions. The Hague Convention No. IV of 1907 mandates the maximum possible
protection for victims of war-wounded, sick and shipwrecked members of armed
forces and civilian persons and rules were made accordingly. The rules made by
Hague Conventions which laid down the foundations of the law of war were sapped
because of the instances of their non-observance.[6]
During Second World War, warring parties had barbarously negated human values
and dignity. The entire world witnessed for the purposeful destruction of
civilian targets. In 1948, International Red Cross Conference held at Stockholm
and developed four Conventions which were approved in Geneva on 1949 ie.,
Convention for the Amelioration of the Condition of the Wounded, Sick in Armed
Forces in the Field (Convention No: I), Convention for Amelioration of the
Condition of the Wounded, Sick and Ship-wrecked Members of the Armed Forces at
Sea (Convention No: II), Convention Relative to the Treatment of the Prisoners
of War (Convention No: III) and Convention Relative to the Protection of Civilian
Persons in Time of War (Convention No: IV). One of the important aim of these
Conventions was to reduce or limit the suffering of individuals, and to
circumscribe the area within which the savagery of armed conflict is
permissible.[7] Hague
Law and Geneva Law applicable in armed conflict have become so closely
interrelated, known today as International Humanitarian Law. Hague Law includes
St. Petersburg Declaration of 1868, Conventions of 1899 and 1907. It also
included the Geneva Protocol of 1925 and the Hague Convention of 1954. Further,
the Geneva Law included the Conventions of 1864, 1906, 1929 and 1949 and the
three Protocols added later on. The Conventions protected the victims of war
and aimed to provide safeguards for disabled armed forces personnel and persons
not taking part in the hostilities. In
1977, two Additional Protocols to the Geneva Conventions of 1949 were adopted
and later in 2005 adopted the Third Additional Protocol to the Geneva
Conventions. The four Geneva Conventions of 1949 and their three Additional
Protocols presently form the basis and main source of international
humanitarian law.
International
humanitarian law provides wide protection for children, who are considered as
most vulnerable population in our society. The Geneva Conventions of 1949 and
Additional Protocols of 1977 lay down a series of rules for providing special
protection to the children. The Geneva Convention, Additional Protocols,
Convention on the rights of child, 1989 and its Optional Protocol to the Convention
on the Rights of the Child on the involvement of children in armed conflict,
mandates special protection for children’s but also sets limits on children’s
participation in conflicts. Moreover, the ILO Convention No. 182 on the
Prohibition and Immediate Action for the Elimination of the Worst Forms of
Child Labour, which prohibits the forced or compulsory recruitment of children
for use in armed conflict.
·
The Geneva Conventions of 1949 (including Additional Protocols)
International
humanitarian law provides wide-ranging protection for children as persons
taking no part in hostilities, and special protection as persons who are
particularly vulnerable.[8] Moreover,
children taking part in hostilities are also protected.[9]
Firstly
discussing about the general protection of children, as members of the civilian
population. Children’s are protected by Fourth Geneva Convention, which
protects the civilian persons in time of war. So they can take the benefit of
all the provisions of the fourth Geneva Convention which is available to the
civilians. The Fourth Geneva Convention provides the principles of humane
treatment and forbidding coercion, torture, corporal punishments etc. Moreover,
children benefit from the provisions of international humanitarian law, Protocol
I of 1977, relative to the conduct of the hostilities. Protocol II, 1977
codifies the principles according to which the civilian population shall not be
subjected for attack.
Secondly,
discussing about the special protection of children, as members of the civilian
population. The Fourth Geneva Convention provides many provisions in favour of
children. The Convention recognizes the need of special protection for children
against warfare. But it is not explicitly mentioned anywhere in the Convention.
However, Article 77 of the Protocol I states 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.” Protocol II of 1977 provides similar provisions
for non-international armed conflicts. Article 4 of the Protocol II mandates
that, “Children shall be provided with
the care and aid they require.” It provides special measures to protect the
rights of the children.
Further
it provides the special provisions for protection against the effects of
hostilities. Article 41 of the Fourth
Geneva Convention states that: “Children who have not attained the age of fifteen years and mothers of
children under seven come into the categories of the civilian population who
can be received into the hospital or safety zones established by the parties to
an international armed conflict.” Article 17 of the Fourth Geneva Convention mandates that, “the children and maternity cases come into
the category of civilian persons who should be evacuated from the encircled
areas.” In addition to this, Article 78 of Protocol I provides for the
temporary evacuation of children on account of their safety, if necessary. In case of non-international armed conflicts,
Article 4 of Protocol II provides for the temporary evacuation of children from
the conflicted area to a safer area within the country.
Protocol I mandates the
State Parties to an international armed conflict should provide care and aid to
the children. The Fourth Geneva Convention having various provisions to protect
the basic human rights of the children by considering the particular needs of
children. Article 23 of the Convention of 1949 states that, the Contracting
Party must allow the free passage of relief intended for children under fifteen
and maternity cases. Further, Article 50 of the Convention directs the
occupying power to make the appropriate arrangements for proper working of
institutions, which provides care to children. The Convention of 1949 mandates
the State Parties in conflict should provide adequate means of support, in
case, if they are unable to earn a living.[10]
The Parties to the Conflict shall provide additional food to nursing mothers
and children under fifteen, if there is any need arises.[11]
While distributing the relief consignments, priority shall be given to children
and maternity cases.[12]
Article 78 of Protocol I states that, the temporary evacuation shall provide in
case of any health emergency or medical treatment required by any children in
the conflicted areas.
It is
the duty of High Contracting Parties and parties to conflict to facilitate the
reuniting of families dispersed as a result of an international armed conflict.[13]
In the case of non-international armed conflicts, all appropriate steps shall
be taken to facilitate the reuniting of families temporarily separated.[14]
By protecting a child’s family, international humanitarian law is also
protecting the moral values, religion, culture and traditions in which he has
been brought up. Article 24 of the Fourth Geneva Convention mandates that, “the parties to a conflict shall ensure in
all circumstances that children under fifteen who are orphaned or separated
from their families may continue ‘the exercise of their religion and their
education’; as far as possible, their education shall be entrusted to persons
of a similar cultural tradition.” Further Article 78 of Protocol I lays
down that, “each child’s education,
including his religious and moral education as his parent’s desire, shall be
provided while he is away with the greatest possible continuity.”
The
Geneva Convention and its additional protocols provides wide range of
protection for the children in armed conflict areas.
Convention on the
rights of child
In
1989, Convention on the Rights of Child has been adopted by the United Nations.
This treaty covers all the fundamental rights of the child. The Convention
refers that States parties are required to make efforts to protect the rights
of children to survival; to develop to their full potential; to protection from
abuse, neglect, and exploitation; and to participate in family, cultural, and
social life. And also the Convention recognizes the family as "the fundamental group of society and the
natural environment for the growth and well-being of all its members and
particularly children." The Convention prohibits discrimination,
economic and sexual exploitation, or cruel, degrading, or inhuman treatment.
While laying down common standards, the Convention takes into account the different cultural, social, economic and political realities
of
individual States so that each State may seek its own means to implement the
rights common to all. There are
four
general principles enshrined in the
Convention. These are meant to help with the interpretation of the
Convention as a whole and thereby guide national programmes of implementation. The four principles are formulated, in particular, in Articles 2, 3,
6 and 12.[15]
Ø Non-discrimination (Art. 2)
Ø Best interests of the child (Art. 3)
Ø The right to life, survival and development (Art. 6)
Ø The views of the child (Art 12)
The preamble
of convention recalls the basic principles of the United Nations and specific
provisions of certain relevant human rights treaties and proclamations. It
reaffirms the fact that children, because of their vulnerability, need special
care and protection, and it places special emphasis on the primary caring and
protective responsibility of the family. It also reaffirms the need for legal
and other protection of the child before and after birth, the importance of
respect for the cultural values of the child's community, and the vital role of
international cooperation in securing children's rights.[16]
The CRC does not offer a precise definition of the best interests of the child.
While the term “best interests” broadly describes the well-being of a child, it
is not possible to give a conclusive definition of what is in the best interests
of the child, as this depends on a variety of individual circumstances, such as
the age and the level of maturity of the child, the presence or absence of parents,
the child’s environment, etc. It is important to be aware that for certain specific
actions, including adoption and separation
from parents against their will, the CRC requires that the best interests be the
determining factor, whereas for other actions it has to be a primary consideration,
which does not exclude other considerations to be taken into account.[17]
Article 38 extends the field of
application of Art. 77 Additional Protocol I to non-international armed
conflict. Article 38 urges States Parties to take all feasible measures to
ensure that those aged of less than 15 years do not take a direct part in hostilities
and that priority be given in recruitment to the oldest of those aged between
15 and 18. It thus falls short of the ban on direct or indirect participation
laid down by Additional Protocol II.
·
Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict
The objective of this
protocol is that to protect and promote the rights of the child and further it
is recognising the requirement of the special protection as well as continuous
improvement of the situation of children without any discrimination. The
protocol highlights, “the need to
increase the protection of children from involvement in armed conflict and it
is condemning the targeting of children in situations of armed conflict and
direct attacks, including places that generally have significant presence of
children, such as schools and hospitals.”[18]
Article 1 of the Protocol states that, “State
Parties shall take all measures to ensure that members of their armed forced
who have not attained the age of 18 years do not take a direct part in
hostilities.” Further the Protocol mandates that no child shall be
compulsorily recruited into the armed forces and the State Party should ensure
the same.[19] It is
strictly prohibiting the armed groups from recruiting or use in hostilities
persons under the age of 18 years and it is directing the State parties to take
actions to prevent such acts by adopting effective legal measures.
Conclusion
The four Geneva
Conventions of 1949 and their three Additional Protocols contain number of
provisions for the protection of certain categories of persons which the
parties to armed conflicts are required to observe in the interest of humanity.
The Geneva Conventions of 1949 and their three Additional Protocols require the
States Party to enact a national legislation to make serious violations of
these treaties punishable offences. India has ratified the fourth Geneva
Conventions of 1949 in 1959 and enacted the Indian Geneva Conventions Act in
1960 incorporating them in the Indian legal system.
Continued violations
against children will have consequences for future generations. The States
should take measures to prevent children being put at risk by upholding
international laws and standards and holding violators to account. And finally
State Parties to conflict should take appropriate measures to rehabilitate the
affected children. The States should adopt strategies for protecting civilians
and ensure that their forces are acting under the mandate of United Nations standards.
Further, armed forces and groups should avoid the use of explosive weapons in
highly populated area.
The States should
implement existing mechanisms to protect children in conflict, including the
Geneva Conventions, the Convention on the Rights of the Child and its Optional
Protocol on the Involvement of Children in Armed Conflict. Governments should
investigate and prosecute perpetrators of serious violations against children,
including the individuals in the sequence of command that are accountable for
violations. Children caught up in conflict violations must be treated as
victims, not perpetrators. There is a requirement of stronger political will
and pressure to guarantee that International Criminal Court (ICC),
international tribunals, commissions of inquiry and other mechanisms focus on
crimes against children.
[2] Convention on Child Rights, 1989, Article
1, General Assembly resolution 44/25 (United Nations)
[3] International Humanitarian Law
Databases, https://ihl-databases.icrc.org/customary-ihl/eng/docindex/v1_rul_rule135#Fn_4C6E6F6A_00019 (last visited Dec. 01, 2023)
[4] DR. H. O. AGARWAL, INTERNATIONAL
LAW AND HUMAN RIGHTS 927 (Central Law Publications 2019).
[5] DR. H. O. AGARWAL, INTERNATIONAL
LAW AND HUMAN RIGHTS 927 (Central Law Publications 2019).
[6] DR. H. O. AGARWAL, INTERNATIONAL
LAW AND HUMAN RIGHTS 930 (Central Law Publications 2019).
[7] J. G. STARKE, INTRODUCTION OF
INTERNATIONAL LAW 553 (Butterworths 1989)
[8]Denise Plattner: Protection
of Children in International Humanitarian Law, International Review of the
Red Cross No.240 (1984).
[9]Denise Plattner: Protection
of Children in International Humanitarian Law, International Review of the
Red Cross No.240 (1984).
[10] Fourth Geneva Convention, 1949,
Article 81 (United Nations)
[11] Fourth Geneva Convention, 1949,
Article 89 (United Nations)
[12] Protocol I of 1977, Article 70
(United Nations)
[13] Protocol I of 1977, Article 74 (United
Nations)
[16] CHILD RIGHTS INTERNATIONAL
NETWORK, http://www.crin.org/docs/resources/treaties/uncrc.asp (last visited
Dec. 20, 2023)
[17] UNHCR Guidelines on the
Formal Determination of the Best Interests of the
Child, Part 1, 2006 (United Nations)
[18]OHCHR, https://www.ohchr.org/en/instruments-mechanisms/instruments/optional-protocol-convention-rights-child-involvement-children
(last visited on Dec.25, 2023)
[19] Optional Protocol to the
Convention on the Rights of the Child on the involvement of Children in Armed
Conflict, Article 2, General Assembly Resolution A/RES/54/263, 2000 (United
Nations)
Article Information
A STUDY ON VIOLENCE AGAINST CHILDREN IN ARMED CONFLICT AREA
Authors: AKSHARA B.
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/23
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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