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Children’s rights concern in repressing war crimes

How children's rights in the prosecution of war crimes gained concern in International Humanitarian Law
Hello. In this week, the topic in our MOOC is children’s rights in connection with international criminal law, international medical law, and human rights. This is the, you know, the topic that we will try to address considering, in particular, the practice or the work of the ICC. Talking about the rights of children in armed conflicts–and so in connection with the situations that can be relevant in considering cases of international crimes–we have to notice that in, let’s say, classic international humanitarian law–the Geneva Conventions, the protocols– there is not such much space for the rights of the child. There are some provisions, for example, that you know proscribe enlistment, enrolment, and recruitment of children under 18 years old.
There is a clear prohibition of the using of, employing a children under 15 years old in combat situations but then the rest of the protection afforded to this population–this part of a population– is just included in the general provisions that protect the civilian populations in case of attacks and civilian, you know, objects–schools, for example, hospitals, and so on, in case of a conflict.
The situations of children in armed conflict was also taken into account in the CRC, the Convention of the Rights of the Child adopted in 1989, and this is quite important to underline because it is a case in which a human rights instrument–the Convention on the Rights of the Child–has some specific provisions, two articles indeed, that you know intrude into the area, into the field of humanitarian law. So the Convention on the Rights of the Child has indeed two articles that deal with the situations of children in armed conflict. So we may say that a human rights instrument contains, includes provisions that are of international humanitarian law because they pertain to situations of armed conflict.
These two, these two articles address the situations of children and say first that states cannot enroll, recruit children–that is people under 18 years old–in the armies; and second, that children under the age of 15 cannot have a, you know, active participation in combat. So in a sense, these provisions just reflect rules that already exist in the field of humanitarian law, in the Geneva Conventions, in the protocols. Article 39 addresses a different issue, which is the rehabilitation of children who have, who were victims of armed conflicts and in this case it, you know, covers entitlements and interests that are strictly related to the children’s rights, let’s say. A shift occurred in the early 90s, when the United Nations
appointed in 1994 the Special Representative of the Secretary-General on Children and Armed Conflict. The first special representative was Graça Machel. The report highlighted the disproportionate impact of war on children, describing the brutality millions of children caught up in conflicts were exposed to and it demonstrated the centrality of this issue for international human rights development, peace, and security agendas. Children were identified as the primary victims of a conflict and the Special Representative also included a set of recommendation to states. A children’s rights shift took place in the way of addressing the issue.
So in 2000, we had two developments: one concerns the link between the issue of children caught up in war situations and the peace and security agenda of the UN– Security Council in particular–and the other development has to do with the adoption of a new instrument on children’s rights and children’s rights in armed situations, in armed conflict. Security Council resolution 1314 of 2000
says that, I quote: “the deliberate targeting of civilian populations or other protected persons, including children, and the committing of systematic, flagrant, and widespread violations of international humanitarian and human rights law, including that related to children in situations of armed conflict, may constitute a threat to international peace and security, and in this regard the Security Council reaffirms its readiness to consider such situations, and where necessary, to adopt appropriate steps.” This means that situations of organized violence and conflict that affect civilian population and, in particular children, can trigger the initiative of the Security Council in the, in the context of Chapter 7 of the UN Charter.
In the same year, 2000, the General Assembly of the UN adopted an optional protocol to the COCs, the Convention on the Rights of the Child, a protocol on children’s rights in armed conflict, involved in a conflict, that reinforced in 2002, and has special provisions that, in a sense, amend some articles of the CRC stating, for example, that the minimum age to get enrolled and to participate in armed conflict, in combat situations in armed conflict, is 18 years old. So no longer the ceiling of, the limit of 15 years but no children under 18 can be involved in these situations and those states are invited to not enroll any minor in their armies.
The same provision apply also to non-state actors and non-state group that participate in some, in any, you know, internal conflict. And there are also extra provisions concerning reintegration, rehabilitation of children after the conflict has ended. In 2005, the UN Security Council adopted another resolution–resolution 1612 that creates a special monitoring mechanism on children in armed conflict. An annual report identified the states where conflict situation determined grave violation of international law to the detriment of children. States are explicitly named and encouraged to take appropriate measures. In 2007, in the framework of the United Nations, states adopted the Paris Principle Declaration. The declaration has the aim to combat unlawful recruitment or use of children by armed forces or armed groups.
Quite comprehensively the notion of child
soldiers refers to, and I quote: “any person below 18 years of age who is or has been associated with an armed force or armed group.” The generic language used in this definition was meant not to limit the category of child soldiers to children who participate in combat but include also sex slaves, porters, and others.

How has children’s rights in the prosecution of war crimes gained concern in International Humanitarian Law?

This video is the first of two and it focuses on the development of international provisions for children involved in armed conflict. The next video will focus on case law of the ICC.

For the whole week, you will learn the following:

  • How gradually, especially after the 90s, a concern for children involved in armed conflicts emerged in International Humanitarian Law, including within the UN

  • How the survival and safety of children involved in conflicts has become not only a concern for their family, but also for states and non-state armed groups

  • Which international law obligations have been adopted and which are the most significant judgments of the International Criminal Court in punishing warlords in connection with violence and exploitation of children

  • How the sad phenomenon of child-soldiers has unfolded and the initiatives undertaken by the United Nations to monitor and prevent the enlisting, enrolment in armed forces, and deployment in combat situations of children, as well as the efforts for their rehabilitation and integration after a conflict

  • How a children’s rights-driven approach has influenced the ICC prosecutions, while conceptual and operational gaps are still present and affect judgments and sentences.

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Human Rights and International Criminal Law: An Introduction

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