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Captured child combatants

Published online by Cambridge University Press:  13 January 2010

María Teresa Dutli
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Extract

The forms of violence which are all too frequently encountered in armed conflicts today have given rise to an increase in the numbers of civilian victims, and particularly of children, who, an account of their special vulnerability, are the most seriously affected. The active participation of children in hostilities, too, is a disturbing factor – serious enough to justify the increasing attention the subject is receiving within the international community.

Type
International humanitarian law and the protection of children
Information
International Review of the Red Cross (1961 - 1997) , Volume 30 , Issue 278 , October 1990 , pp. 421 - 434
Copyright
Copyright © International Committee of the Red Cross 1990

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References

1 Durand, André: From Sarajevo to Hiroshima: History of the International Committee of the Red Cross, Vol. 2, Henry Dunant Institute, International Committee of the Red Cross, Geneva, 1984, pp. 162–166.Google Scholar

2 On the subject of the protection of children during armed conflicts see Planner, Denise: “The protection of children in international humanitarian law”, in International Review of the Red Cross, No. 240, 05–06 1984, pp. 140–152 CrossRefGoogle Scholar; and Singer, Sandra: “The protection of children during armed conflict situations”, in International Review of the Red Cross, No. 252, 05–06 1986, pp. 133–168.CrossRefGoogle Scholar

3 For further details see Krill, Françoise: “United Nations Convention on the rights of the child: a controversial article on children in armed conflicts”, in Dissemination, No. 12, 08 1989, pp. 11–12 Google Scholar, and, by the same author: “The United Nations Convention on the Rights of the Child and his protection in armed conflicts”, in Mennesker og Rettigheter (Oslo), Vol. 4, No. 3, 1986.Google Scholar

4 The United Nations Convention, in 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”.

5 See also Sandoz, Yves, Swinarski, Christophe, Zimmermann, Bruno (editors): Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC, 1987) (hereinafter referred to as Commentary on the Additional Protocols), p. 899, paragraph 3179.Google Scholar

6 Commentary on the Additional Protocols, op. cit., p. 901 Google Scholar, paragraph 3188; Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts (Geneva, 1974–1977), Berne, Federal Political Department, 1978, Vol. III, p. 301 Google Scholar (CDDH/III/325, 30 April 1976).

7 Commentary on the Additional Protocols, op. cit., pp. 1379–1380 Google Scholar, paragraphs 4555–4558. See also Krill, F.: “The United Nations Convention on the Rights of the Child and its protection in armed conflicts”, op. cit., p. 42.Google Scholar

8 Article 38 of the Convention on the Rights of the Child reads as follows:

“1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.

2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.

3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but have not attained the age of eighteen years, the States Parties shall endeavour to give priority to those who are oldest.

4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict”.

It should be mentioned that, during the negotiations on the Convention on the Rights of the Child, the States invoked the same arguments as regards age and the “feasible” (rather than “necessary”) measures to be taken in the case of participation in hostilities as they did during the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law.

9 See Krill, F., op. cit., supra, Note 3.Google Scholar

10 Under the terms of Article 43 (paragraph 2) of Protocol I, concerning members of the armed forces, and of Article 2 of the Regulations respecting the Laws and Customs of War on Land, Annex to the Hague Convention of 18 October 1907, concerning the spontaneous uprising of the population (levée en masse).

11 They acquire this status under the terms of Article 4A, paragraph 1, of the Third Geneva Convention.

12 Commentary on the Additional Protocols, op. cit., p. 902, paragraph 3194.Google Scholar

13 Article 16 of the Third Convention, Article 49 (paragraph 1) of the Third Convention and Article 77 (paragraphs 4 and 5) of Protocol I. See also Plattner, D., op. cit. Google Scholar

14 Article 68 (paragraph 4) of the Fourth Convention and Article 77 (paragraph 59) of Protocol I.

15 Articles 82, 85 (paragraph 2), 89 (paragraph 5), 94 and 119 of the Fourth Convention. If they are in occupied territory, Articles 50, 51, 68 and 76 of the same Convention are also applicable.

16 Subject to the provisions of Article 5.

17 Respectively Articles 82, 85 (paragraph 2), 89 (paragraph 5) and 94 of the Fourth Convention.

18 Fourth Convention, Article 119.

19 Third Convention, Article 118.

20 Third Convention, Article 119 (paragraph 5).

21 Fourth Convention, Article 133.

22 Fourth Convention, Article 132 (paragraph 2).

23 Fourth Convention, Article 132 (paragraph 2).

24 Commentary on the Additional Protocols, op. cit., p. 1377, paragraph 4545.Google Scholar