Seventy years after the adoption of the Geneva Conventions, there are challenges that remain to be addressed. This briefing takes three pertinent examples, and discusses possibilities for addressing them.
Children
According to Save the Children, one child in six globally is affected by armed conflict.35 Hostilities are increasingly being conducted in urban areas, exacerbating the impact of conflict on children. They are killed or injured, are frequently displaced, and are unable to access medical care or education.
The Geneva Conventions and Additional Protocols include a number of provisions that aim to address the particular needs and vulnerabilities of children. In 2000, efforts were made to enhance the legal protection afforded to children by increasing the minimum age for participation in hostilities from that of 15 years in the Additional Protocols. The outcome of the negotiations was less than what had been desired: the Optional Protocol to the Convention on the Rights of the Child increased the minimum age of recruitment or use of children to 18 for organized armed groups, but did so only for compulsory recruitment for states; and merely required states to take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 do not take a direct part in hostilities.36
As in other areas of IHL, the development of new law is unlikely at present. Moreover, it is principally violations of the general rules on conduct of hostilities or humanitarian relief operations that underlie children’s plight, and it is difficult to see how these could be revised just for the benefit of children. Instead, the impact on children is a factor that belligerents should systematically and specifically consider when adopting precautions.
A number of initiatives have been undertaken since 2000 with the aim of promoting compliance with existing law. These include the monitoring and reporting framework established by the UN Security Council in 2005,37 and the Safe Schools Declaration of 2015.38 The Security Council mechanism focuses on the six grave violations of IHL against children that the international community found most pressing in 2005: recruitment or use; killing and maiming; abductions; sexual violence; attacks against school or hospitals; and denial of humanitarian access. These remain tragically relevant, but are by no means the only areas where compliance with the law must be enhanced. In 2020, other areas of IHL that warrant particular attention include the displacement of children and their deprivation of liberty.
Deprivation of liberty puts children in a situation of extreme vulnerability, but has only received limited attention; this area of law could benefit from clarification.39 IHL treaties contain some provisions that specifically focus on children deprived of their liberty, but do not systematically consider how children should be treated in the range of possible situations in which they may be deprived of their liberty. Some international human rights law treaties and soft law instruments address certain aspects of the deprivation of liberty of children, but they are not comprehensive. These existing rules could be usefully brought together in a single comprehensive document that addresses every step in the deprivation of liberty, from capture to release. Like similar exercises, this would clarify existing law, contribute to compliance during armed conflict, and inform policies.
35 Save the Children (2018), The War on Children: Time to end grave violations against children in conflict, London: Save the Children International, https://www.savethechildren.org.uk/content/dam/global/reports/education-and-child-protection/war_on_children-web.pdf.
36 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000, Articles 1, 2 and 4.
37 UN Security Council Resolution 1612 (2005); and Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘Monitoring and Reporting on Grave Violations’, https://childrenandarmedconflict.un.org/tools-for-action/monitoring-and-reporting/.
38 The Safe Schools Declaration is an intergovernmental political agreement that outlines a set of commitments to strengthen the protection of education from attack and restrict use of schools and universities for military purposes. It seeks to ensure the continuity of safe education during armed conflict. The Global Coalition to Protect Education from Attack (2020), ‘The Safe Schools Declaration’, https://ssd.protectingeducation.org/.
39 Manfred Nowak’s 2019 study on children deprived of liberty includes a chapter on armed conflict, but this is descriptive rather than legal. Nowak, M. (2019), United Nations Global Study on Children Deprived of Liberty, https://omnibook.com/view/e0623280-5656-42f8-9edf-5872f8f08562/page/1.