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Optional Protocol on the involvement of children in armed conflict to the Convention on the Rights of the Child

Published online by Cambridge University Press:  27 April 2010

Daniel Helle
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Extract

Pursuant to five sessions held in preceding years and two weeks of negotiations in the period of 10–21 January 2000, the Inter-Sessional Open-Ended Working Group of the United Nations Human Rights Commission adopted the text of Draft Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. It was formally presented to the Commission on Human Rights in April 2000, and will be forwarded through ECOSOC to the General Assembly for formal adoption in June 2000. The Draft Protocol will thereafter be open to ratification, and will enter into force three months after it has been ratified by ten States.

Type
Faits et documents/Reports and documents
Information
International Review of the Red Cross , Volume 82 , Issue 839: Humanitaire action and prevention/Action humanitaire et prévention , September 2000 , pp. 797 - 823
Copyright
Copyright © International Committee of the Red Cross 2000

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References

1 Text reproduced on pp. 810 (in French) and on pp. 817 (in English).xs

2 Exception: Somalia and the United States of America.

3 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, Art. 4 (excerpts): Article 4 - Fundamental Guarantees 3. Children shall be provided with the care and aid they require, and in particular: (…) (c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities (…).

4 The Plan of Action was prepared on the basis of a consultative process within and outside the Movement, and endorsed by the Council of Delegates in 1995.

5 The second commitment is “to take concrete action to protect and assist child victims of conflict”. Six objectives with corresponding tasks are outlined to implement these commitments.

As regards the first commitment, National Societies are inter alia asked to persuade their governments to promote this idea internationally and to adopt appropriate national legislation. The ICRC and the International Federation are requested to supply National Societies with relevant documents, to make their view known in international fora and to actively participate in the UN Working Group established to draft an Optional Protocol to the Convention on the Rights of the Child. Other objectives are to identify children at risk of becoming soldiers and provide them with alternative activities, and to raise awareness in society not to allow children to join armed forces or groups.

The components of the Movement are also asked to address psycho-social as well as physical needs of children. Separate sets of suggestions are made for children living with families and those who are unaccompanied. Finally, the Plan of Action contains the requests to advocate in favour of children who participated in armed conflict in order to make society and the local community accept these children.

6 Resolution 2 C.(d), reprinted in IRRC, No. 310, January-February 1996, p. 63. – Relevant parts of this resolution have been included in preambular para. 9 of the draft Optional Protocol.

7 See UN Doc. E/CN.4/1998/WG.13/2 (paras 53–105).

8 Protocol I, Art. 77, para 2: The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do connot take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years the Parties to the conflict shall endeavour to give priority to those who are oldest.

9 Examples taken from Sandoz, Y./Swinarski, C./Zimmermann, B. (eds), Commentary on the Additional Protocols of 8 June 1977, ICRC/Martinus Nijhoff Publishers, Geneva, 1987, para. 4557 (on Protocol II, Art. 4)Google Scholar

10 The alternative wording reads in relevant parts “shall not be used (…) to actively take part in hostilities”.

The ICC Statute lists among the war crimes “Conscripting or enlisting children under the age of fifteen years (…) or using them to participate actively in hostilities”. The understanding under which delegations eventually adopted “using” and “participate actively” in Rome was “in order to cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase or the use of domestic staff in an officer's married accommodation. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included within the terminology.” See Cottier, Michael, in Triffterer, Otto (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article, Nomos Verlagsgesellschaft, Baden-Baden, p. 261, with further references.Google Scholar

11 Pictet, Jean S. (ed.), Commentary, Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, pp. 284 ff. (ad Art. 50).Google Scholar

12 For a brief overview of the protection provided to children and as an example of a provision-specific interpretation, ibid., ad Art. 50, para. 1.

13 Examples of international instruments providing for the explicit responsibility of private individuals include the 1949 Convention on the Prevention and Punishment of the Crime of Genocide.