Protecting Children in Armed Conflict 9781509923038, 9781509923069, 9781509923052

Citation preview

Reviews ‘Many international laws prohibit subjecting children to wartime harms like killing, sexual violence, abduction, deprivation of basic necessities, and conscription. This comprehensive synthesis of the most significant frameworks – international criminal law, international humanitarian law, and international human rights law – provides an essential starting point for strengthening child protection during armed conflict.’ Diane Marie Amann, Emily & Ernest Woodruff Chair in International Law and Faculty Co-Director of the Dean Rusk International Law Center, University of Georgia School of Law ‘This book is a clarion call for concerted action to improve the protection of children in armed conflict in international law. It is a rigorous and comprehensive study that exposes the current shortcomings in existing international law. It offers convincing recommendations for significant improvements, which would not only clarify the obligations of parties to armed conflicts towards children but also enhance accountability mechanisms. The reader is left with one conclusion: implementing its recommendations is a moral obligation.’ Eyal Benvenisti, Whewell Professor of International Law, University of Cambridge ‘The U.N. reports more than 10,000 children who were killed or maimed in wars last year. In this masterful report, Shaheed Fatima and her colleagues demonstrate the deficiencies of our existing laws in protecting children in armed conflicts. They also meet the challenge of putting forward detailed and thoughtful proposals for reform. Though the authors are careful to acknowledge that law is only one part of a much larger problem, they are correct that strengthening the legal regime would also call greater attention to the urgent need to protect children in armed conflicts by all means. As numerous children around the globe continue to be victimized by armed hostilities, no government can choose to ignore this compelling report or the proposals it sets forth.’ Gabriella Blum, Rita E. Hauser Professor of Human Rights and Humanitarian Law, Harvard Law School ‘This book is not only an accessible and detailed guide to the relevant international law, but it will also surely set the agenda on this issue for years to come. It is brimming with imaginative and practical ideas to improve protection and accountability for violations of children’s rights in times of armed conflict.’ Andrew Clapham, Professor of International Law, Graduate Institute of International and Development Studies, Geneva

‘Despite the complex subject matter, this book is navigable and accessible for legal and nonlegal audiences alike. It provides a comprehensive guide to the intricate web of international law covering children in armed conflict, and related accountability mechanisms, revealing how children are too often denied effective legal protection. Fatima d ­ emonstrates how – with requisite political will – the international community could better safeguard the rights of children bearing the brunt of conflict. Grounded in detailed legal analysis, this book provides an urgent and powerful call to action on behalf of those without a seat at the table.’ Andrea Coomber, Director, JUSTICE ‘As this book shows only too well, much remains to be done if the rights of children in conflict are to be effectively protected. Children are still being killed, tortured, abused, forcibly recruited and abducted, and attacks on children, too often, are intended precisely as attacks on the very future of communities. This study focuses on these, the gravest violations that can devastate the lives of children in conflict, but it also looks to what could lie ahead, if the political will were there to gather the law in one place and, above all, to strengthen accountability and ensure a reckoning for wrongs done. Children need and demand something better if they are to grow and to reach their full potential in that small, yet so valuable space that childhood allows. And now is the time to act.’ Guy S. Goodwin-Gill, Professor, Kaldor Centre for International Refugee Law, University of New South Wales, Sydney, Australia; Emeritus Fellow, All Souls College, Oxford ‘A study of the utmost importance about what we can do to protect children from the evils of war.’ Sir Christopher Greenwood CMG QC, Judge, Iran-US Claims Tribunal; Judge, International Court of Justice (2009–2018); Professor of International Law, London School of Economics (1996–2008) ‘A thorough, timely and sadly necessary survey of what can be done to improve international law and accountability mechanisms to address the horror of many millions of children being caught up in war. Governments around the world would do well to study this volume and heed its recommendations.’ The Right Honourable, the Lord Hague of Richmond, Secretary of State for Foreign and Commonwealth Affairs (2010–2014); Leader of the House of Commons (2014–2015); Leader of the Opposition (1997–2001) This impressive study of the existing legal framework for the protection of children in international and non-international armed conflict and its shortcomings has been produced by a group of leading practitioners and academics. It is scholarly, practical and insightful and is likely to prove an important stimulus to the much-needed development of international humanitarian law and international human rights law in this field.’ Lord Lloyd-Jones, A Justice of the Supreme Court of the United Kingdom

‘This is an outstanding and substantial book. It explores in close detail all the relevant areas of IHL, IHRL and ICL with skill and insight. It brings together and clarifies the complex and scattered aspects of IHL, IHRL and ICL concerning children in armed conflict in a sophisticated and authoritative way, with very impressive coherence in structure and methodology across the chapters. The research is of a high quality and intellectually engaging, and has been applied appropriately to various practical situations, with clear and compelling ­recommendations.’ Robert McCorquodale, Professor of International Law and Human Rights, University of Nottingham; Barrister, Brick Court Chambers ‘The continuous victimisation of children in situations of armed conflict constitutes a painful reminder of the inadequacies of the international system of humanitarian and human rights protection, which was intended to remove these most vulnerable human being out of harm’s way. Unfortunately, Prof. Hersch Lauterpacht’s observation from 1952 that “international law is, in some ways, at the vanishing point of law” and that “the law of war is, perhaps even more conspicuously, at the vanishing point of international law” still holds true in the sense that, for child victims of armed conflict, the protection of international law is too often a mere chimera. It is this sad reality that the new book on “Protecting Children in Armed Conflict”, written by the superbly erudite lead author, Shaheed Fatima, and a team of practitioners and academics, effectively tackles, building on previous initiatives to enhance protection for children in armed conflict, such as those recommended in the 1996 Machel report to the UN General Assembly. This comprehensive book, which grew from a report for an inquiry into the protection of children in armed conflict headed by UK former Prime Minister, Gordon Brown, is a ‘must read’ book for all lawyers, academics and other professionals involved in efforts to improve existing levels of protection in armed conflict and in promoting children’s rights in general, and in situations of armed conflict in particular. Its main strength lies in the combination of studying the “trees” and the “forest” – thoroughly and critically reviewing the details of special protection regimes, dealing with the killing and ill-treatment of children, their recruitment, sexual abuse and abduction, and their protection against attacks on hospitals and schools and denial of humanitarian assistance, while advancing as a central insight the idea that the lack of a comprehensive legal approach and the lack of a comprehensive accountability mechanism that cuts across the different special protection regimes constitute a serious practical shortcoming of the existing protection system. The book’s sophistication also manifests itself in its emphasis on the linkage between improved legal protection and the acute need for political support for legal reforms. “Protecting Children in Armed Conflict” provides us with a clear and incisive diagnosis of the existing legal deficiencies, as well as with a useful and promising legal road map for improving upon the existing system of protection of children in armed conflict situations. One can only hope that the ongoing horror of child victims in armed conflicts around the world will eventually create the political conditions to implement the excellent and pragmatic legal recommendations laid down by Fatima and her team.’ Yuval Shany, Hersch Lauterpacht Chair in Public International Law, Hebrew University; Chair, UN Human Rights Committee

‘War is the most chronically tragic of human endeavors, all the more so when it, as it almost always does, victimizes our children and therefore our shared future. In this exceptional study, based on the Inquiry on Protecting Children in Conflict, Shaheed Fatima QC, aided by a group of distinguished collaborators, examines the system and content of those international law norms that protect this vulnerable group during armed conflicts. It is a moving account of the facts on the ground, a surgically precise and thorough dissection of the applicable law, and a powerful call for action. Perhaps most important are its practical and incisive targeted suggestions for addressing shortfalls in the law and its implementation. If there was ever a book that deserves to have an impact on the face of war, this is it.’ Michael Schmitt, Professor of International Law, University of Exeter; Charles H. Stockton Professor, US Naval War College; Francis Lieber Distinguished Scholar, US Military Academy at West Point ‘This new book draws much-needed attention to one of the most urgent and neglected issues of our time, of how to protect children in the face of armed conflict. In war zones around the world, grave violations of children’s rights continue to be carried out with impunity. This is an important and timely contribution to the debate on how to hold perpetrators to account, and uphold the rules that are designed to keep children safe.’ Helle Thorning-Schmidt, Prime Minister of Denmark 2011–15; CEO, Save the Children International ‘This book addresses one of the great moral and legal questions of our era – namely, why is the vast array of humanitarian law, international criminal law, and human rights law that is designed to protect children in conflict violated so systematically, and with such impunity? Shaheed Fatima offers more than a brilliant dissection of the international legal architecture. She throws down the gauntlet to a system that is failing to protect desperately vulnerable children from Syria to Yemen, Nigeria, South Sudan and Myanmar. Beyond the razor sharp legal analysis, this book is a call to action for governments, international agencies, the UN and nongovernment organisations. It should be mandatory reading for anyone concerned to see the rule of international law applied to the benefit of the millions of children living in war zones.’ Kevin Watkins, CEO Save the Children UK ‘This book is a thorough, objective and impressive account of the currently scattered rules of international law relating to the protection of children in armed conflict; what the law is, and how it might be improved. Detailed recommendations are made for the clarification and development of existing law. This includes a far-sighted proposal for an eventual single ­international legal instrument, with its own accountability mechanisms. This book is an invaluable resource for all involved in this vital field of law, both its present and its future. Governments, in particular, should consider the recommendations for change.’ Sir Michael Wood, Member of the UN International Law Commission; Legal Adviser to the UK Foreign and Commonwealth Office (1999–2006) ‘Topical, focused and well-written, this book contributes to clarifying, strengthening, and developing, legal protections for children in armed conflict.’ Gentian Zyberi, Professor of International Law and Human Rights, Norwegian Centre for Human Rights, University of Oslo

PROTECTING CHILDREN IN ARMED CONFLICT In armed conflicts around the world, children are being killed, raped, abducted and recruited to fight at a shocking scale. In light of this continuing general failure to protect children in conflict, it is questionable whether existing international law norms and institutions provide sufficient protection and accountability. Consideration needs to be given to whether international law can do more – practically and effectively – when moral lines are crossed. That is the purpose of this book. It reviews the position of children in armed conflict by reference to the ‘six grave violations’ as identified by the UN Security Council. It analyses the protection offered by international humanitarian law, international criminal law and international human rights law, and also assesses the related adjudicative accountability mechanisms. The analysis concludes with a number of recommendations and proposals for reform, with a view to enhancing accountability and deterring future violations. The book has been written by a team of lawyers, headed by Shaheed Fatima QC, and has drawn on the input of an expert advisory panel comprising leading academics, policymakers and activists. It has been written as part of the Inquiry on Protecting Children in Conflict. The Inquiry has been sponsored by Save the Children and Theirworld and chaired by former UK Prime Minister, Gordon Brown.

vi

Protecting Children in Armed Conflict Shaheed Fatima QC Lead Author Legal Panel and Contributors Sean Aughey Dr Rachel Barnes Jessica Boyd Isabel Buchanan Ravi Mehta Hanif Mussa Dr Federica Paddeu Jana Sadler-Forster Kevin Smith Consultants Professor Dame Carolyn Hamilton Professor Harold Hongju Koh

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 Copyright © Shaheed Fatima QC, 2018 Shaheed Fatima QC has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Fatima, Shaheed, author. Title: Protecting children in armed conflict / Shaheed Fatima QC. Description: Portland, Oregon : Hart Publishing, 2018. Identifiers: LCCN 2018028929 (print)  |  LCCN 2018030725 (ebook)  |  ISBN 9781509923045 (Epub)  |  ISBN 9781509923038 (hardback : alk. paper) Subjects: LCSH: Children—Legal status, laws, etc.  |  Children (International law)  |  Responsibility to protect (International law)  |  Children and war.  |  War—Protection of civilians. Classification: LCC K639 (ebook)  |  LCC K639 .F38 2018 (print)  |  DDC 341.6/7—dc23 LC record available at https://lccn.loc.gov/2018028929 ISBN: HB: 978-1-50992-303-8 ePDF: 978-1-50992-305-2 ePub: 978-1-50992-304-5 Typeset by Compuscript Ltd, Shannon

To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

For Zamir and Summar

x

Foreword No issue of human rights is more important than protecting children against abuse and harm, and nowhere is the risk to children greater than in the world’s fifty conflict zones. A total of 350 million children – one child in every six – are estimated to be living amidst conflict, an increase of 75 per cent from the 200 million of the early 1990s. Annual data from United Nations reports, particularly over the last five years, shows a marked trend upwards in reported violations against children in conflict. By many metrics, children are more at risk in conflict now than at any time in the last two decades. In the summer of 2016, I first heard Shaheed Fatima QC speak at a conference. She is a brilliant lawyer who represents states, multi-national companies, international organisations and NGOs before both domestic and international courts and tribunals. Later that year, and after the bombing of a school complex in Idlib, I asked Shaheed – whose expertise ranges from commercial law and regulatory law, to human rights and public international law – whether the international community could secure accountability for the killing of children in Syria. Shaheed advised that, for a range of reasons, there was little that could be done under international law to hold the perpetrators accountable. Shaheed’s opinion was a call to action. In April 2017, with the support of international charities Save the Children and Theirworld, I commissioned the Inquiry on Protecting Children in Conflict, with the aim of assessing whether international law can do more – practically and effectively – to uphold the rights of children in war. I invited Shaheed to convene and lead the Inquiry’s legal panel, which was tasked with undertaking an objective review of the international law and accountability mechanisms in this area, and drawing on the input of an advisory panel of leading policy-makers, thinkers and activists. The result – this volume – is a comprehensive and path breaking study of the legal framework for the protection of children in armed conflict. It considers laws and mechanisms by reference to the ‘six grave violations’ identified by the UN, and which provide the focus for the work of the UN Special Representative for Children and Armed Conflict, namely: killing and ill-treatment of children; recruitment and use of children; sexual violence; child abduction; attacks on hospitals and schools; and denial of humanitarian access and assistance. The report is remarkable in its scope, detail and accuracy. There have been limited attempts to synthesise the law in this area, and it is testament to the excellence and dedication of Shaheed and members of the legal panel that a report of such rigour has been written, in a matter of months, to address an urgent challenge. Shaheed, the nine legal panellists/contributors and the consultants – Professor Dame Carolyn Hamilton and Professor Harold Hongju Koh – have spent thousands of hours working on the report pro bono. On behalf of the Inquiry, I would like to thank them for their extraordinary efforts. I would also like to thank Andrew Hilland, the Director of the Inquiry for his invaluable work.

xi

Foreword The rationale for the Inquiry is that attacks on children are of a different order of magnitude: if states can agree to anything in this political climate, surely they can agree to protect the world’s most vulnerable in conflict. Historically, the protection of children has been viewed not only as an area most likely to secure international co-operation, but as a site for transforming international relations. And so it can be once again in 2018. In 1996, Graça Machel’s seminal report on the ‘Impact of Armed Conflict on Children’, led to the creation of a UN Special Representative for Children and Armed Conflict and an annual report to the Security Council that ‘names and shames’ states and non-state actors responsible for grave violations against children in war zones. We are all grateful for the vital work the Special Representative and her team does. Twenty years on, this book, the Legal Report for the Inquiry on Protecting Children in Conflict, will come to be seen as an authoritative study in this area. I believe it can change international opinion and lead to practical reforms that will enhance the protection of children in conflict. These reforms are needed now. Gordon Brown Fife, 15 May 2018

xii

Preface and Acknowledgements This book has been written as part of the Inquiry on Protecting Children in Conflict. I was invited to write a report in late 2016 – shortly after children were killed in October air strikes on a school district in Idlib, Syria – by former Prime Minister of the United Kingdom and Chair of the Inquiry, Gordon Brown. The report was to be an objective review of the adequacy and effectiveness of the international law framework protecting children in conflict. I agreed to produce such a report. This is it.  This report, and ultimately, book, has been a team effort. Although I am responsible for the final scope, structure and content of it, I have been greatly assisted by others, particularly the Legal Panel/Contributors, the Consultants and Andrew Hilland (Director of the Inquiry). Apart from a small budget for the research, all the work has been done on a pro bono basis. I am extremely grateful to them: –– Research was done by Dr Federica Paddeu and Daniella Lock. –– The reading for and initial drafting of Chapters was assigned, with a template ­structure, to members of the Legal Panel with whom I worked on shaping, writing and revising the contents. –– The Chapters were worked on by the following Legal Panel members: Chapter 1: Kevin Smith Chapter 2: Isabel Buchanan Chapter 3: Sean Aughey Chapter 4: Hanif Mussa and Kevin Smith Chapter 5: Jessica Boyd, Isabel Buchanan and Jana Sadler-Forster Chapter 6: Isabel Buchanan Chapter 7: Ravi Mehta Chapter 8: Dr Rachel Barnes and Jana Sadler-Forster –– Each of the Chapters was reviewed by the two Consultants to the Legal Panel: Professor Dame Carolyn Hamilton and Professor Harold Hongju Koh. –– Dr Federica Paddeu did multiple reviews of each of the Chapters. –– Sean Aughey reviewed Chapters 2 and 9; Dr Rachel Barnes reviewed Chapter 7 and Isabel Buchanan reviewed Chapter 9 and compiled Annex III. –– Editing, referencing and formatting assistance was provided by Joshua Cainer (Chapters 1, 4, 5 and 8); Daniella Lock (Chapter 7); Lauren Chaplin (Chapter 6) and Andrew Hilland (Chapters 1–9). A draft of this book was sent to expert individuals and organisations, for their comment and review. I am grateful to them for their input on the draft. The fact that they provided comments and reviewed the draft does not necessarily indicate their agreement with either our analysis or our suggestions. The advisory group included (in alphabetical order): Professor Philip Alston (New York University School of Law); xiii

Preface and Acknowledgements Professor Diane Marie Amann (University of Georgia School of Law); Dr Emily Baughan (University of Sheffield); Professor Christine Chinkin (London School of Economics and Political Science); Conflict Dynamics International; General Roméo Dallaire and the Roméo Dallaire Child Soldiers Initiative; Elisabeth Decrey Warner (co-founder and Honorary President, Geneva Call); the Global Coalition to Protect Education from Attack (GCPEA); the Rt. Hon. the Lord Hague of Richmond; Kevin Hyland OBE (the UK’s Independent Anti-Slavery Commissioner); Kate O’Regan (Director, Bonavero­ Institute of Human Rights, University of Oxford); Navi Pillay (UN High Commissioner for Human Rights 2008–2014); Save the Children International and Helle ­Thorning-Schmidt (CEO, Save the Children International and former Prime Minister of Denmark); and Bede Sheppard (Deputy Director, Children’s Rights, Human Rights Watch). In addition, we received comments from a number of other individuals and organisations. I am grateful to support from: Gordon Brown (and for his insights and selfless commitment to the work of this Inquiry); Save the Children UK (especially from the CEO Kevin Watkins and George Graham, and for funding the research phase); Theirworld and Michael Meyer, Head of International Law, British Red Cross (for providing the original 1939 and 1946 draft Conventions). All the royalties that will be received from the sale of this book have been donated to Save the Children UK. I would also like to express my gratitude to my clerks, management team and librari­ ans at Blackstone Chambers and the team at Hart Publishing, especially Tom Adams and Sinead Moloney, for all their support during this project. Finally, I want to thank my children, Zamir and Summar, for their patient understanding whilst I worked on this book. It is dedicated to them. Shaheed Fatima QC Blackstone Chambers, London 15 May 2018

xiv

Brief Contents Foreword by Gordon Brown��������������������������������������������������������������������������������������� xi Preface and Acknowledgements�������������������������������������������������������������������������������� xiii Table of Contents��������������������������������������������������������������������������������������������������� xvii Table of Cases��������������������������������������������������������������������������������������������������������� xix Table of Treaties���������������������������������������������������������������������������������������������������� xxix Table of Other International Materials�����������������������������������������������������������������������li 1. General Introduction�������������������������������������������������������������������������������������������� 1 2. Legal Sources, Structure and Accountability Mechanisms������������������������������������ 45 3. Killing and Ill-Treatment of Children�����������������������������������������������������������������104 4. Recruitment and Use of Children�����������������������������������������������������������������������174 5. Sexual Violence�������������������������������������������������������������������������������������������������235 6. Child Abduction������������������������������������������������������������������������������������������������286 7. Attacks Against Hospitals and Schools���������������������������������������������������������������311 8. Denial of Humanitarian Access and Assistance��������������������������������������������������376 9. Conclusion��������������������������������������������������������������������������������������������������������457 Annex I. Unofficial Translation of the 1939 Draft Convention�����������������������������������485 Annex II. Unofficial Translation of the 1946 Draft Convention����������������������������������489 Annex III. List of International and Non-Governmental Organisations���������������������507 Index�����������������������������������������������������������������������������������������������������������������������511

xv

xvi

Table of Contents Foreword by Gordon Brown��������������������������������������������������������������������������������������� xi Preface and Acknowledgements�������������������������������������������������������������������������������� xiii Brief Contents���������������������������������������������������������������������������������������������������������� xv Table of Cases��������������������������������������������������������������������������������������������������������� xix Table of Treaties���������������������������������������������������������������������������������������������������� xxix Table of Other International Materials�����������������������������������������������������������������������li 1. General Introduction�������������������������������������������������������������������������������������������� 1 I. Introduction���������������������������������������������������������������������������������������������� 2 II. The Machel Report: Overview�������������������������������������������������������������������� 2 III. Time to Re-Assess the Protection of Children �������������������������������������������� 5 IV. Children in Armed Conflict: 1923–1996������������������������������������������������������ 8 V. The Impact of Armed Conflict on Children: The 1996 Machel Report������� 17 VI. Following in Machel’s Footsteps: Developments Since 1996����������������������� 22 VII. The Six Issues Considered in this Book����������������������������������������������������� 33 VIII. Conclusion and Summary������������������������������������������������������������������������ 40 2. Legal Sources, Structure and Accountability Mechanisms������������������������������������ 45 I. Introduction�������������������������������������������������������������������������������������������� 46 II. Relevant Sources of International Law������������������������������������������������������ 49 III. General Problems with the International Law Framework������������������������� 65 IV. Accountability Mechanisms��������������������������������������������������������������������� 74 V. General Problems with Accountability Mechanisms���������������������������������100 VI. Conclusion and Summary�����������������������������������������������������������������������102 3. Killing and Ill-Treatment of Children�����������������������������������������������������������������104 I. Introduction�������������������������������������������������������������������������������������������105 II. Legal Framework������������������������������������������������������������������������������������108 III. Accountability Mechanisms ��������������������������������������������������������������������158 IV. Conclusion and Summary�����������������������������������������������������������������������171 4. Recruitment and Use of Children�����������������������������������������������������������������������174 I. Introduction�������������������������������������������������������������������������������������������174 II. Legal Framework������������������������������������������������������������������������������������176 III. Accountability Mechanisms ��������������������������������������������������������������������213 IV. Conclusion and Summary�����������������������������������������������������������������������230 5. Sexual Violence�������������������������������������������������������������������������������������������������235 I. Introduction�������������������������������������������������������������������������������������������235 II. Legal Framework������������������������������������������������������������������������������������238 xvii

Table of Contents III. Accountability Mechanisms�����������������������������������������������������������������������268 IV. Conclusion and Summary��������������������������������������������������������������������������284 6. Child Abduction������������������������������������������������������������������������������������������������286 I. Introduction ���������������������������������������������������������������������������������������������286 II. Legal Framework���������������������������������������������������������������������������������������290 III. Accountability Mechanisms�����������������������������������������������������������������������302 IV. Conclusion and Summary��������������������������������������������������������������������������309 7. Attacks Against Hospitals and Schools���������������������������������������������������������������311 I. Introduction����������������������������������������������������������������������������������������������312 II. General Rules Relevant to Attacks Against Hospitals and Schools��������������318 III. Attacks Against Hospitals�������������������������������������������������������������������������324 IV. Attacks Against Schools����������������������������������������������������������������������������354 V. Conclusion and Summary��������������������������������������������������������������������������372 8. Denial of Humanitarian Access and Assistance��������������������������������������������������376 I. Introduction����������������������������������������������������������������������������������������������377 II. Setting the Scene����������������������������������������������������������������������������������������380 III. Legal Framework���������������������������������������������������������������������������������������387 IV. Accountability Mechanisms�����������������������������������������������������������������������438 V. Conclusion and Summary��������������������������������������������������������������������������453 9. Conclusion��������������������������������������������������������������������������������������������������������457 I. Introduction����������������������������������������������������������������������������������������������457 II. Specific Suggestions�����������������������������������������������������������������������������������460 III. General Suggestion: A New Legal Instrument��������������������������������������������470 IV. Accountability�������������������������������������������������������������������������������������������472 V. Conclusion and Summary��������������������������������������������������������������������������483 Annex I. Unofficial Translation of the 1939 Draft Convention�����������������������������������485 Annex II. Unofficial Translation of the 1946 Draft Convention����������������������������������489 Annex III. List of International and Non-Governmental Organisations��������������������507 Index�����������������������������������������������������������������������������������������������������������������������511

xviii

Table of Cases I. International Tribunals African Commission on Human and Peoples’ Rights (AComHPR) DRC v Burundi, Rwanda and Uganda (Merits) 227/99 (29 May 2003) .................... 5.98.1 Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC, ACHR Application Nos 25/89, 47/90, 56/91, 100/93 (4 April 1996) ................... 7, 139 Kazeem Aminu v Nigeria, Communication no 205/97 (11 May 2000) .......................3.92 The Nubian Community in Kenya v Kenya (Merits) (28 February 2015) .............. 8.144.1 Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan (Merits) 279/03–296/05 (27 May 2009) .................. 5.98.1, 8.144.1 African Court of Human Rights (ACtHR) Request for Advisory Opinion by the African Committee of Experts on the Rights and Welfare of the Child on the Standing of the African Committee of Experts on the Right and Welfare of the Child before the African Court on Human and People’s Rights Re Question No 002/2013 (Advisory Opinion, 5 December 2014) ........ 2.141.1 Arbitral Awards Affaire des biens britanniques au Maroc espagnol (Spain v United Kingdom), 1 May 1925, Rapport III, (1949) 2 RIAA 615 .......................................................3.33 CEDAW Committee SVP v Bulgaria (24 November 2012) (UN Doc CEDAW/C/53/D/31/2011) ............... 5.80.2 European Court of Human Rights (ECtHR) Abdulkhanov and Others v Russia, App no 22782/06 (3 October 2013) .....................3.89 Akkoc v Turkey (2002) 34 EHRR 51 ...................................................................... 3.105 Al-Adsani v UK (2002) 34 EHRR 273 ................................................................... 9.33.3 Al Skeini v United Kingdom (2011) 53 EHRR 18 ........................ 2.141, 2.142, 3.116, 8.83 Andreou v Turkey, App no 45653/99 (27 October 2009) ............................................3.92 Aydin v Turkey, App no 57/1996/676/886 (Grand Chamber, 25 September 1997) ..... 5.77.1 Behrami v France, Saramati v France, Germany and Norway, Decision on Admissibility, (2007) 45 EHRR SE10 ......................................................... 3.147.2 Benzer and Others v Turkey App No 23502/06 (12 November 2013) .................... 8.144.2 Costello-Roberts v UK (1995) 19 EHRR 112 .................................................... 8.88.2(ii) Demir and Baykara v Turkey (Grand Chamber) (2009) 48 EHRR 54 ...................... 2.145 xix

Table of Cases Ergi v Turkey (2001) 32 EHRR 18 ............................................................................3.98 Esmukhambetov and Others v Russia App no 23445/03, (29 March 2011) ................3.98, 3.98.1, 3.98.7 Hassan v UK, App no 29750/09 (Grand Chamber, 16 September 2014) ....................2.31, 2.85, 2.146 Ireland v United Kingdom (1979–80) 2 EHRR 25 ................................................... 3.105 Isayeva v Russia (2005) 41 EHRR 38 ..............................................................3.98, 3.146 Isayeva, Yusupova and Bazayeva v Russia (2005) 41 EHRR 39 ...................................3.98 Jordan v United Kingdom (2001) 37 EHRR 2 ......................................................... 2.141 Kerimova and Others v Russia, Judgment, App nos 17170/04, 20792/04, 22448/04, 23360/04, 5681/05 and 5684/05 (3 May 2011) .......................................3.98 Khamzayev and Others v Russia, Judgment, App no 1503/02 (3 May 2011) ...............3.98 Khashiyev and Akayeva v Russia (2006) 42 EHRR 20 ............................................. 3.146 Khatsiyeva and Others v Russia, App no 5108/02 (17 January 2008)..........................3.98 Kurt v Turkey App no 24276/94 (1999) 27 EHRR 373 ...............................................6.23 MC v Bulgaria, App no 39272/98 (4 December 2003) ............................................ 5.77.2 O’Keeffe v Ireland, App no 35810/09 (Grand Chamber, 28 January 2014)............................................................................. 5.77.3, 8.88.2(ii) Orhan v Turkey App no 25656/94 (18 June 2002) .....................................................6.23 Rantsev v Cyprus and Russia, App no 25965/04 (7 January 2010) .............................5.79 Selmouni v France, Judgment, App. no. 25803/94 (28 July 1999) ............................. 3.103 Soering v UK (1989) 11 EHRR 439 .................................................................. 8.88.2(ii) Stewart v United Kingdom (1985) 7 EHRR 453 ........................................................3.89 Tagayeva and others v Russia, ECtHR App no 26562/07 (13 April 2017) ................. 7.139 Tyrer v UK (1978) 2 EHRR 1 ................................................................................. 2.145 Ukraine v Russia (II) App no 43800/14 .................................................................. 6.47.1 X and Y v The Netherlands, App no 8978/80 (26 March 1985) .................................5.70 Z v United Kingdom (2002) 34 EHRR 3........................................................... 8.88.2(ii) Extraordinary Chambers in the Courts of Cambodia (ECCC) Case File No.: 002/19-09-2007-ECCC-OCIJ, Closing Order (15 September 2010) ......5.55 Prosecutor v KAING Guek Eav alias Duch (Trial Chamber Judgment) 001/18-07-2007/ECCC/TC (26 July 2010) ....................................................... 2.145.2 Inter-American Commission on Human Rights (IAComHR) Juan Carlos Abella v Argentina (Merits), Case 11.137, IAComHR Report No 55/97, IACtHR OEA/Ser.L/V/II.95 doc. 6 rev. (18 November 1997) ............................. 3.96.3 Loayza-Tamayo v Peru, I-ACmHR, Applic No 11154 (6 May 1993) ..........................5.78 Raquel Martí de Mejía v Perú, I-ACmHR, Case No 10.970, Res No 5/96 (1 March 1996) ..................................................................................................5.78 Inter-American Court of Human Rights (IACtHR) Afro-Descendant Communities Displaced from the Cacaria River Basin (Operation Genesis) v Colombia .............................................................3.23, 3.91.1 xx

Table of Cases Bámaca-Velasquez v Guatemala, (Merits Judgment), IACHR Series C No 70 (25 November 2000) ........................................................................................ 3.96.3 Cruz-Sánchez et al. v Peru (Judgment), IACHR Series C No 292 (17 April 2015) ..... 2.148 Gómez Paquiyauri Brothers v Peru (Merits, Reparation and Costs Judgment), IACHR Series C No 110 (8 July 2004)............................................................ 2.147.1 Ituango Massacres v Colombia (Preliminary objections, merits, reparations and costs), IACHR Series C no 148 (1 July 2006) ................................................3.89 Las Dos Erres Massacre v Guatemala (Judgment, Reparations and Costs), IACHR Series C No 211 (24 November 2009) ............................................. 6.47.2(ii) Las Palmeras v Colombia (Preliminary Objections), IACHR Series C No 67 (4 February 2000) ............................................................................................ 3.96.3 Maripirán Massacre (Merits, Reparation and Costs Judgment) IACHR Series C No 134 (15 September 2005) ............................ 2.141, 2.142, 3.147.1 Molina Theissen v Guatemala (Merits, Reparation and Costs Judgment), IACHR Series C No 106 (4 May 2004) ............................................. 3.147.1, 6.47.2(i) Rochac Hernández et al v El Salvador, (Judgment, Reparations and Costs), IACtHT Series C No 285 (14 October 2014) .............................................. 6.47.2(iii) Santo Domingo Massacre v Colombia (Preliminary Objections, Merits and Reparations Judgment), IACHR Series C No 259 (30 November 2012)....... 3.96.3 Sawhoyamaxa Indigenous Community v Paraguay (Merits, Reparations and Costs), IACHR Series C No 146 (29 March 2006) ...................... 8.88.1, 8.88.2(ii) Vargas-Areco v Paraguay (Merits, Reparations and Costs: Judgment) IACHR Series C No 155 (26 September 2006) ................................................... 4.157 Vargas-Areco v Paraguay (Monitoring Compliance with Judgment: Order of the Court) (30 October 2008) ............................................................. 4.157 Vargas-Areco v Paraguay (Monitoring Compliance with Judgment: Order of the Court) (24 November 2010).......................................................... 4.157 International Court of Justice (ICJ) Application of the Genocide Convention (Bosnia v Serbia) [2007] ICJ Rep 43 .................................................................................... 2.95, 3.80, 3.83, 6.16, 8.129.2 Armed Activities (DRC v Rwanda) (Jurisdiction and Admissibility) [2006] ICJ Rep 6 ........................................................................................... 4.110.6 Armed Activities on the Territory of the Congo (DRC v Uganda) (Judgment) [2005] ICJ Rep 168................................................................................... 2.83, 2.86, 2.106, 4.130, 4.155 Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda) (Judgment on Jurisdiction and Admissibility) [2000] ICJ Rep 6 ............................................................................................. 9.33.3 Arrest Warrant of 11 April 2000 (DRC v Belgium) (Judgment) [2002] ICJ Rep 3 .............................................................................. 9.33.2(i), 9.33.3 Construction of a Wall (Advisory Opinion) [2004] ICJ Rep 136 ..................... 2.83, 2.86, 2.106, 3.22, 3.33, 8.83 Continental Shelf Case (Tunisia/Libya) (Merits) ICJ Rep 1982 ............................... 3.118 xxi

Table of Cases Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) [2012] ICJ Rep 99 ........................................................................................... 9.33.3 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding UNSCR 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16 ............................................................................................ 2.117 Legality of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 .....................2.83, 2.86, 3.23, 3.29, 3.96.1 Military Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14 ...................................................................................... 2.5, 3.13, 3.23, 3.44.3, 8.10, 8.37, 8.103.5, 8.129.1 North Sea Continental Shelf Cases (Judgment) [1969] ICJ Rep 3 ..................... 2.5, 3.118 Nuclear Tests (Australia v France) [1974] ICJ Rep 25 3 ........................................ 4.110.6 Nuclear Tests (New Zealand v France) [1974] ICJ Rep 457 .................................. 4.110.6 International Criminal Court (ICC) Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Pre-Trial Chamber I, Corrigendum of the Decision on the Confirmation of Charges, ICC-02/05-03/09-121-Corr-Red (7 March 2011) .............. 8.103.2, 8.103.4 Prosecutor v Ahmad Al Faqi Al Mahdi (Trial Chamber Judgment), ICC-01/12-01/15 (27 September 2016) ........................................................ 7.53, 7.85 Prosecutor v Bahar Idriss Abu Garda, Pre-Trial Chamber, Decision on the Confirmation of Charges, ICC-02/05-02/09- 243-Red (8 February 2010) ............................................................................ 8.103.2, 8.103.3, 8.103.4, 8.142.1 Prosecutor v Bosco Ntaganda, Appeals Chamber, confirmation of jurisdiction over two war crimes, ICC-01/04-02/07, 15 June 2017 ........................................ 9.12.6 Prosecutor v Bosco Ntaganda, Appeals Chamber, Judgment on the appeal of Mr Ntaganda against the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9”, ICC-01/04-02/06-1962 (15 June 2017)..................................................4.57, 5.18.1(iv) Prosecutor v Bosco Ntaganda, Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06 (9 June 2014) ...... 5.95.1 Prosecutor v Callixte Mbarushimana, Pre-Trial Chamber I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red (16 December 2011)............4.61 Prosecutor v Dominic Ongwen, Pre-Trial Chamber II, Decision on the Confirmation of Charges against Dominic Ongwen, ICC-02/04-01/15 (23 March 2016) ......................................................... 5.93.3, 6.45.1 Prosecutor v Georges Anderson Nderubumwe Rutaganda (Trial Judgment and Sentence) ICTR-96-3-T (6 December 1999) ................................................ 8.112 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Pre-Trial Chamber I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717 (30 September 2008)....................................................................................... 4.69.2, 5.40, 5.54.2 xxii

Table of Cases Prosecutor v Germain Katanga, Trial Chamber II, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/07-3436-tENG (7 March 2014) ............4.68 Prosecutor v Jean-Pierre Bemba Gombo, Pre-Trial Chamber II, Decision Pursuant to ICC 61(7)(a) and (b) on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424 (15 June 2009)..........................................4.61, 4.62.2(i), 5.24.2, 5.29 Prosecutor v Jean-Pierre Bemba Gombo, Trial Chamber III, Judgment pursuant to Article 74 of the Rome Statute, ICC-01/05-01/08-3343 (21 March 2016)....... 5.95.2, 8.105.2 Prosecutor v Ngudjolo Chui, Trial Chamber II, Judgment pursuant to article 74 of the Statute, ICC-01/04-02/12-3-tENG (18 December 2012) ........................... 5.31.2 Prosecutor v Omar Al Bashir, Pre-Trial Chamber I, Public Redacted Version of the Prosecutor’s Application under Article 58, ICC-02/05-157-AnxA (14 July 2008) .................................................................................. 8.111.1, 8.142.1 Prosecutor v Omar Al Bashir, Pre-Trial Chamber I, Second Decision on the Prosecutor’s Application for a Warrant of Arrest, ICC-02/05-01/09-94 (12 July 2010) .................................................................................. 8.111.1, 8.142.1 Prosecutor v Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the Appeal of Thomas Lubanga Dyilo Against his Conviction, ICC-01/04-01/06-3121-Red A 5 (1 December 2014).............................................4.71, 4.73, 4.75.2 Prosecutor v Thomas Lubanga Dyilo, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904 (7 August 2012) ................................................................................................ 7.113 Prosecutor v Thomas Lubanga Dyilo, Pre-Trial Chamber I, Decision on the Confirmation of Charges, ICC-01/04-01/06-803-tEN (29 January 2007) .............4.36, 4.67, 4.72, 4.74, 4.75.1, 8.99.4 Prosecutor v Thomas Lubanga Dyilo, Trial Chamber I, Decision Granting Leave to Make Representations in the Reparations Proceedings, ICC-01/04-01/06-2878 (20 April 2012) ................................................................................................. 7.113 Prosecutor v Thomas Lubanga Dyilo, Trial Chamber I, Decision on Sentence pursuant to Article 76 of the Statute ICC-01/04-01/06 ....................................... 4.149 Prosecutor v Thomas Lubanga Dyilo, Trial Chamber I, Judgment Pursuant to Article 74 of the Statute ICC-01/04-01/06-2842 (14 March 2012) ....................3.69, 4.52.2(i), 4.73, 4.752, 4.88, 4.146.1, 5.95 Prosecutor v Thomas Lubanga Dyilo, Trial Chamber II, Decision Setting the Amount of Reparations for which Thomas Lubanga Dyilo is Liable, ICC-01/04-01/06 (15 December 2017) ..................................................... 4.148, 4.149 Registered Vessels of Comoros, Greece and Cambodia, Pre-Trial Chamber I, Decision on the request of Comoros to review the Prosecutor’s decision not to initiate an investigation, ICC-01/13-34 (16 July 2015) (Gaza Flotilla case) ......................................................................... 8.103.5, 8.115.2, 8.115.3, 8.129.1, 8.142.1

xxiii

Table of Cases International Criminal Tribunal for Rwanda (ICTR) Prosecutor v Akayesu (Appeals Chamber Judgment) ICTR-96-4 (1 June 2001)..........3.65 Prosecutor v Akayesu (Trial Chamber Judgment) ICTR-96-4-T (2 September 1998) ................................................................... 3.68.1, 3.80, 3.145.1, 5.31.3, 5.37, 5.50.2, 6.16, 8.105.1, 8.111.1, 8.142.4 Prosecutor v Casimir Bizimungu (Trial Chamber Judgment) ICTR-99-50-T (30 September 2011)........................................................................................ 7.86.1 Prosecutor v Kambanda (Trial Chamber Judgment and Sentence) ICTR-97-23-S (4 September 1998) ....................................................................................... 3.145.1 Prosecutor v Kayishema (Appeals Chamber Judgment (Reasons)) ICTR-95-1-A (1 June 2001) .....................................................................................................3.83 Prosecutor v Kayishema and Ruzindana (Trial Judgement) ICTR-95-1-T (21 May 1999)...................................................................................................6.16, 8.108, 8.112 Prosecutor v Musema (Judgement) ICTR-96-13-T (27 January 2000) .......................6.16 Prosecutor v Nahimana et al (Appeals Chamber Judgment) ICTR-99-52-A (28 November 2007) ...........................................................................................3.76 Prosecutor v Nyiramasuhuko (Trial Judgment) ICTR-98-42-T (24 June 2011).......................................................................................... 7.3, 7.86.2 Prosecutor v Seromba (Appeals Chamber Judgment), ICTR-2001-66-A (12 March 2008) ................................................................................................3.81 International Criminal Tribunal for Yugoslavia (ICTY) Prosecutor v Aleksovski (Trial Chamber Judgment), IT-95-14/1 (29 June 1999) ...... 3.45.2 Prosecutor v Blaškic (Appeals Chamber Judgment), IT-95-14-A, (29 July 2004) .......3.74, 3.77, 3.78 Prosecutor v Blaškić, (Trial Chamber Judgment), IT-95-14 (3 March 2000) ....... 3.50.6(i), 4.150, 7.17.1, 7.137.2(i) Prosecutor v Boškoski & Tarculovski (Trial Chamber Judgment), IT-04-82 (10 July 2008) ....................................................................................................3.22 Prosecutor v Brďanin (Trial Judgment) IT-99-36-T (1 September 2004)................... 8.112 Prosecutor v Brima et al (Trial Chamber Judgment), SCSL-04-16-T (20 June 2007).................................................................................... 3.50.6(ii), 5.42 Prosecutor v Delalić, Mucić, Delić and Landžo (Čelebići case) (Trial Judgment) IT-96-21-T (16 November 1998) ........................................................ 5.19.3, 8.105.1, 8.105.2, 8.142.3 Prosecutor v Furundžija (Trial Chamber II Judgment), IT-95-17/1 (10 December 1998) ...................................................................... 3.50.6(iii), 5.24.2, 5.34, 5.37, 5.50.3 Prosecutor v Galić (Appeals Chamber Judgment), IT-98-29-A (30 November 2006) ................................................................................. 3.22, 3.23, 3.28, 3.33, 3.77, 7.3, 7.38, 7.87

xxiv

Table of Cases Prosecutor v Jelisić (Appeals Chamber Judgment), IT-95-10-A (5 July 2001) .............3.83 Prosecutor v Karadžić and Mladić (Trial Chamber, Review of the Indictments pursuant to Rule 61 of the Rules of Procedure and Evidence), IT-95-5-R61 and IT-95-18-R61 (11 July 1996) .........................................................................3.81 Prosecutor v Karadžic (Trial Chamber Judgment) T-95-5/18-PT (24 March 2016) ........................................................................................... 8.142.3 Prosecutor v Kordić and Čerkez (Appeals Chamber Judgment), IT-95-14/2-A (17 December 2004) ...........................................................................................3.77 Prosecutor v Kordić and Čerkez (Corrigendum to Appeals Chamber Judgment of 17 December 2004), IT-95-14/2-A (26 January 2004) ......................................3.23, 7.137.2(ii) Prosecutor v Kordic and Čerkez (Trial Chamber Judgment) IT-95-14/2-T (26 February 2001) .................................................................................... 7.137.2(ii) Prosecutor v Krnojelac (Appeals Chamber Judgment), IT-97-25-A (17 September 2003)......................................................................................... 8.109 Prosecutor v Krnojelac (Trial Judgment) IT-97-25-T (15 March 2002)..... 8.105.1, 8.142.3 Prosecutor v Krstić (Appeals Chamber Judgment), IT-98-33-A (19 April 2004) .........................................................................................3.80, 8.109 Prosecutor v Krstić (Trial Judgment) IT-98-33-T (2 August 2001) .......................... 8.109, 8.110, 8.142.3 Prosecutor v Kunarac et al (Appeals Chamber Judgment), IT-96-23-A & IT-96-23/1-A (12 June 2002)........................................ 3.65, 3.76, 3.78, 3.145.3, 5.31.1, 5.37 Prosecutor v Kunarac et al (Trial Chamber Judgment) IT-96-23-T & IT-96-23/1-T (22 February 2001) ............................. 5.24.2, 5.31.1, 5.37 Prosecutor v Kupreškić et al (Trial Chamber Judgment), IT-95-16 (14 January 2000) ............................................................................... 3.29.3, 7.16.8, 7.137.2(ii) Prosecutor v Kvočka et al (Appeals Chamber Judgment), IT-98-30/1-A (28 February 2005) .................................................................................... 3.50.6(iii) Prosecutor v Limaj (Judgment) ICTY, IT-03-66-T (30 November 2005) .................. 2.77.2 Prosecutor v Martić (Appeals Chamber Judgment), IT-95-11-A (8 October 2008) .....3.74 Prosecutor v Martić (Trial Chamber Judgment), IT-95-11 (12 June 2007).............. 3.29.3, 7.132.2(i) Prosecutor v Miodrag Jokic (Sentencing Judgment) IT-01-42/1-S (18 March 2004) ........................................................................................ 7.137.2(i) Prosecutor v Mladen Naletilić and Vinko Martinović (Trial Judgment) IT-98-34-T (31 March 2003) .......................................................................... 8.105,1 Prosecutor v Momir Nikolić, ICTY IT-02-60/1 (2 December 2003) ......................... 4.147 Prosecutor v Mucic et al (Trial Chamber Judgment), IT-96-21 (16 November 1998) ........................................................................................ 3.50.6 Prosecutor v Naletilić and Martinović (Appeals Chamber Judgment), IT-98-34-A (3 May 2006) ................................................................... 3.69, 7.137.2(i) Prosecutor v Ratko Mladić (Trial Chamber Judgment) IT-09-92-PT (16 December 2011) ...................................................................................... 8.142.3

xxv

Table of Cases Prosecutor v Tadić (Decision on the Defence Motion for an Interlocutory Appeal on Jurisdiction) ICTY, IT-94-1-A (2 October 1995) .............................. 2.77.1, 2.77.2, 3.50.6(1), 3.52.1, 3.65, 4.147, 7.16.6, 9.33.2(ii) Prosecutor v Tadic (Judgment) ICTY, IT-94-1-T (7 May 1997)................. 2.77.2(1), 8.109 International Tribunal for the Law of the Sea (ITLOS), Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Award on Jurisdiction and Admissibility) (2000) 23 UNRIAA 1 (4 August 2000) ....................................2.73 Special Court for Sierra Leone (SCSL) Prosecutor v Bockarie, SCSL-2003-04-I ............................................................... 8.142.2 Prosecutor v Brima, Kamara and Kanu (AFRC), Appeals Judgment, SCSL-04-16-A (22 February 2008)................................................................... 5.30.2, 5.51.1, 5.54.1, 5.56 Prosecutor v Brima, Kamara and Kanu (AFRC), Trial Chamber II Judgment, SCSL-04-16-T (20 June 2007) .................................................................4.71, 4.75.1, 4.130, 5.5.40, 5.30.2, 5.42, 5.51.1, 6.45.2 Prosecutor v Koroma, SCSL-2003-03-I ................................................................ 8.142.2 Prosecutor v Moinina Fofana and Allieu Kondewa (CDF), Appeals Chamber Judgment, SCSL-04-14-A (28 May 2008) ................... 4.71, 4.146.2 Prosecutor v Norman, Appeals Chamber, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), SCSL-2004-14-AR72(E) (31 May 2004)................................................................................. 4.28, 4.82, 4.156 Prosecutor v Sankoh, SCSL-2003-02-I ................................................................. 8.142.2 Prosecutor v Sesay, Kallon and Gbao (RUF), Trial Chamber I Judgment, SCSL-04-15-T (2 March 2009) ................................................................4.71, 4.75.1, 5.62.1, 8.103.2, 8.103.3, 8.103.4, 8.103.6, 8.142.2 Prosecutor v Taylor, Trial Chamber II Judgment, SCSL-03-01-T (18 May 2012) .......4.71, 4.146.3, 6.45.2 UN Human Rights Committee (HRC) Anarbai Umateliev and Mrs Anarkan Tashtanbekova v Kyrgyzstani (Views) Communication no 1275/04, UN Doc CCPR/C/94/D/1275/2004 (30 October 2008) ..............................................................................................3.92 Birindwa and Tshisekedi v Zaire, Communications Nos 241 and 242/1987, UN Doc CCPR/C/37/D/241/1987 and CCPR/C/37/D/242/1987 (2 November 1989)...................................................................................... 8.88.2(i) Casariego v Uruguay Communication no 56/79, UN Doc. CCPR/C/OP/1 (29 June 1981)................................................................................................. 6.22.2 Corey Brough v Australia, Communication no 1184/2003, UN Doc CCPR/ C/86/D/1184/2003 (17 March 2006) ............................................................ 8.88.2(ii)

xxvi

Table of Cases López Burgos v Uruguay Communication no 52/79, Supp. A/36/40 (final version 29 July 1981) .............................................................................. 6.22.7

II. Domestic Courts Canada Khadr v Canada (No 2) 2009 FCA 246 and 2010 SCC 3 Canadian Federal Court of Appeal (14 August 2009) .............................................................................. 2.131 Minister of Public Safety and Emergency Preparedness v XXXX, 2011 CanLII 93156 (CA IRB)............................................................................ 8.128 The Queen v Munyaneza (Désiré), Trial decision, 2009 QCCS 2201, [2009] QJ No 4913, ILDC 1339 (CA 2009), 22nd May 2009, Superior Court [QCCS] .............................................................................. 9.33.2(i) Colombia Control de Constitucionalidad del Ley Aprobaoria del Protocolo Facultativo de la Convencion Sobre los Derechos del Niño Relativos a la Participacion de Niños en Conflictos Armados Sentencia C-172/04 (2004) and Sentencia C-240/09, 1 April 20 ......................................................................................... 2.131 Prosecutor v Redon Herrera, Trial Judgment, Case no 2007-82701, ILDC 1819 (CO 2011), 16 December 2011 (Colombia) ....................................................... 2.131 Croatia Perišic & Others (Judgment) District Court of Zadar, Croatia (24 April 1997) ....... 8.141 Israel Physicians for Human Rights v Prime Minister of Israel, HCJ 201/09, 248/09; ILDC 1213 (IL 2009) ........................................................................................ 8.127 United Kingdom R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58 [2008] 1 AC 332 ........2.10 R v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No. 3) [2000] 1 AC 147................................................................................... 9.33.1 Serdar Mohammed v Ministry of Defence [2017] UKSC 2 [2017] AC 821 ........ 2.10, 2.85 Serdar Mohammed v Secretary of State for Defence [2015] EWCA Civ 843 [2016] 2 WLR 247 ........................................................................................... 2.77.3

xxvii

xxviii

Table of Treaties 1864 June 22 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (129 CTS 361) Art. 1 ............................................................................................................. 7.31.1 1899 July 29 Hague Convention II with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (187 CTS 429) Art. 27 ............................................................................................................ 7.31.1 Art. 46–47 .................................................................................................... 7.107.2 Art. 56. 46–47 ............................................................................................... 7.107.2 1907 Oct. 18 Hague Convention No IV on the Laws and Customs of Warfare on Land (205 CTS 277) Art. 27 ............................................................................................................ 7.31.1 Art. 46–47 .................................................................................................... 7.107.2 Art. 56 .......................................................................................................... 7.107.2 Oct. 18 Hague Convention No IV on the Laws and Customs of Warfare on Land, Regulations annexed to the Convention (205 CTS 277) Art. 23 ...............................................................................................................4.13 Art. 23(g)........................................................................................................ 7.17.2 Art. 28 ............................................................................................................ 7.17.2 Art. 42 ...............................................................................................................8.34 Art. 43 ...............................................................................................................8.34 Art. 47 ............................................................................................................ 7.17.2 Oct. 18 Hague Convention No IX respecting Bombardment by Naval Forces in Time of War (205 CTS 345) ........................................................................ 7.31.1 Art. 5 ............................................................................................................. 7.31.2 1910 May 10 International Convention for the Suppression of the White Slave Traffic .......1.21 1919 Nov. 28 ILO Convention No 5 Fixing the Minimum Age For Admission of Children to Industrial Employment (30 UNTS 81)..........................................1.21 xxix

Table of Treaties Nov. 28 ILO Convention No 6 Concerning the Night Work of Young Persons Employed in Industry (38 UNTS 93)...................................................................1.21 1923 Feb. 23 Declaration on Children’s Rights (International Save the Children Union) .................................................................................. 1.23–1.24 1926 Sept. 25 International Convention for the Abolition of Slavery and the Slave Trade (60 LNTS 253) Art. 2 ............................................................................................................. 6.22.4 1929 July 27 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (118 LNTS 303) Art. 130 ......................................................................................................... 2.1110 1930 June 28 ILO Convention No 29 on the Abolition of Forced Labour (39 UNTS 55) Art. 1 ............................................................................................................. 6.22.5 1945 June 26 Charter of the United Nations (https://treaties.un.org/) Chapter I Art. 2(4) ......................................................................................................2.10 Art. 2(7) ............................................................................ 2.78, 8.103.5, 8.134.2 Chapter V Art. 25 .................................................................................... 2.10, 2.125, 4.134 Art. 27(2) .................................................................................................. 2.117 Chapter VI ......................................................................................... 2.117, 8.122.2 Chapter VII .................................................................................. 2.10, 2.117, 8.4.3, 8.75.7, 8.122.2, 8.131, 8.131.8, 8.131.9, 8.150 Art. 39 ............................................................................... 2.119, 2.120, 8.122.4 Art. 41 ............................................................................................ 2.120, 8.123 Art. 42 ........................................................................................................2.10 Art. 51 ........................................................................................................2.10 Chapter XIV Art. 94(2) ................................................................................................. 2.92.4 Chapter XV Art. 103.......................................................................................................2.10

xxx

Table of Treaties June 26 Statute of the International Court of Justice (https://treaties.un.org/) Art. 34(1)......................................................................................................... 2.106 Art. 36 ............................................................................................................. 2.106 Art. 38 ...................................................................................................... 2.5, 2.106 Art. 65 ............................................................................................................. 2.106 1948 May 2 American Declaration of the Rights and Duties of Man (OAS Res. XXX) (ADRDM) ..............................................................................1.32 Art. 1 ................................................................................................................7.20 Art. 27 ...............................................................................................................7.20 Dec. 9 Convention on the Prevention and Punishment of the Crime of Genocide (78 UNTS 277) Art. I .................................................................................................................3.80 Art. II ................................................................................................................3.80 Art. II(e) .................................................................................................6.18.1, 6.19 Art. V........................................................................................................... 2.130.2 Dec. 10 Universal Declaration of Human Rights (UNGA Res. 217A (III)) (UDHR) ............................................................................................................1.32 Art. 3 ................................................................................................................3.90 Art. 5 ................................................................................................................7.20 Art. 9 ................................................................................................................2.84 Art. 16 ...............................................................................................................5.54 Art. 17 ...............................................................................................................7.20 Art. 25 ........................................................................................................ 2.7, 7.75 Art. 25(1)..................................................................................... 8.89, 8.89.1, 8.89.2 Art. 25(3)...........................................................................................................7.20 Art. 26 ............................................................................................................. 7.116 1949 Aug. 12 Geneva Convention Relative to the Protection of the Victims of International Armed Conflicts (Common Articles) Art. 1 .....................................................................................................2.99, 2.100, 4.129, 5.15, 5.51, 5.61, 5.106 (IHL/ICL (3)), 9.13.9 Art. 2 .................................................................................... 2.17, 2.18, 2.21, 2.77.1 Art. 3 .......................................................................................... 1.48, 1.107, 2.14.1, 2.16, 2.17–2.18, 2.53–2.54, 2.741, 2.77.3, 2.89.1, 2.101, 2.104.1, 2.130.1, 2.131, 2.148, 2.771.2, 3.13, 3.50.1, 3.50.4, 3.52.1, 3.52.2, 3.55.1, 3.59.3, 3.68.1, 3.72.2, 4.32, 5.18.2, 5.19.2, 5.19.3, 5.24.1, 5.28.2, 5.51.1, 5.60, 5.106, 6.17.2, 7.33, 7.44.3, 7.86, 8.30, 8.35, 8.36.1, 8.37, 8.46, 8.53–8.55, 8.56–8.58, 8.74 xxxi

Table of Treaties Art. 3(1) ......................................................................................................... 4.75.3 Art. 3(1)(a) ............................................................................................3.32, 3.50.3, 8.55, 8.56–9.58, 8.61.2, 8.65, 8.65.2, 8.67, 8.69.2, 8.72, 8.74, 8.79, 8.84, 8.91, 8.153, 9.12.6, 9.12.11, 9.19.1, 9.19.2, 9.47.1, 9.48.2 Art. 3(2) ............................................................................................................3.13 Art. 4 ................................................................................................... 3.59.3, 3.112 Art. 9/9/9/10 ............................................................................................... 8.4, 8.30 Aug. 12 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (75 UNTS 31) (GC I) ......2.18, 2.100, 7.24, 8.55.1 Art. 9 ................................................................................................................8.30 Art. 12 ............................................................................................................ 5.19.1 Art. 16 ...............................................................................................................6.43 Art. 19 ........................................................................................... 7.25.1, 7.30, 7.37 Art. 19(1)....................................................................................... 7.28, 7.31.1, 7.32 Art. 19(2)...........................................................................................................7.28 Art. 21 .................................................................................7.31.1, 7.31.3, 7.32, 7.37 Art. 22 ......................................................................................... 7.31.1, 7.31.3, 7.37 Art. 23 ........................................................................................................ 7.34.2(i) Art. 26 ............................................................................................................ 7.25.1 Art. 27 ............................................................................................................ 7.25.1 Art. 33 ...............................................................................................................7.37 Art. 34 ...............................................................................................................7.17 Art. 42 ................................................................................................. 7.34.1, 7.44.4 Art. 46 ...............................................................................................................7.30 Art. 49 ............................................................................................. 2.103.3, 2.130.1 Art. 50 ....................................................................................................7.17.2, 7.40 Aug. 12 Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (75 UNTS 85) (GC II) ........................................................................................2.18 Art. 12 ............................................................................................................ 5.19.1 Art. 50 .......................................................................................................... 2.130.1 Art. 51 ....................................................................................................7.17.2, 7.40 Art. 123 .............................................................................................................6.43 Aug. 12 Geneva Convention Relative to the Treatment of Prisoners of War (75 UNTS 135) (GC III) .....................................................................................2.18 Art. 14 ............................................................................................................ 5.19.1 Art. 25(4)...........................................................................................................5.17 Art. 38 .......................................................................................................... 7.107.1 Art. 72 .......................................................................................................... 7.107.1 Art. 97(4)...........................................................................................................5.17 Art. 108(2) .........................................................................................................5.17 Art. 121 ..................................................................................................... 2.103.4.4

xxxii

Table of Treaties Art. 125 ........................................................................................................ 7.107.1 Art. 129 ........................................................................................................ 2.130.1 Aug. 12 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (75 UNTS 287) (GCIV).............................................. 1.9, 1.29–1.32, 1.68, 1.112, 2.16, 2.17–2.20, 2.100, 3.13–3.16, 3.43.1, 3.50.6(iii), 3.55.2 Art. 19 ...............................................................................................................2.54 Part I Art. 4 ................................................................................................. 3.15, 4.12 Art. 7 ..........................................................................................................8.74 Art. 9 ........................................................................................................ 2.110 Art. 10 ................................................................................................. 8.61.2(i) Part II ................................................................................................................3.14 Art. 13 ........................................................................................... 3.14, 7.107.1 Art. 14–20 ................................................................................................ 7.31.1 Art. 14 ................................................................... 2.71.2, 3.16, 3.55.1, 7.34.2(i) Art. 15 ................................................................................................ 7.34.2(ii) Art. 16–18 ................................................................................................ 8.62.3 Art. 16 .............................................................................................3.14, 3.55.1 Art. 17 ........................................................... 2.71.2, 3.16, 3.45.1, 3.46.1, 3.55.1, 3.62.1, 8.62.1, 8.73, 8.79 Art. 18 ............................................................ 7.25.2, 7.30, 7.31.2, 7.34.1, 7.44.4 Art. 18(5) ....................................................................................................7.28 Art. 19 .................................................................................... 7.15, 7.31.3, 7.37 Art. 19(1) ....................................................................................................7.32 Art. 20–22 ................................................................................................ 8.62.3 Art. 21–22 ........................................................................................7.31.3, 7.37 Art. 22 ........................................................................................................7.37 Art. 23 ..................................................................... 3.16, 6.99.3, 8.38, 8.61.1(i), 8.62.2, 8.73, 8.127.1 Art. 24 ................................................................................. 2.71.2, 3.16, 3.45.1, 3.45.2, 7.107.1, 8.62 Art. 25 ............................................................................................... 3.16, 6.43 Art. 26 ....................................................................................... 3.16, 6.43, 8.62 Part III...............................................................................................................3.15 Part III, Section I Art. 27 .................................................................................. 3.45.2, 3.50.2, 8.46 Art. 27(1) ................................................................................................. 5.19.1 Art. 27(2) ................................................................................................. 5.18.1 Art. 28 ..................................................................................................... 7.16.8 Art. 30 ..................................................................................... 8.61.2(i), 8.127.1 Art. 32 ............................................................................... 3.49.2, 3.50.2, 5.19.1 Art. 33 ............................................................................................7.17.3, 7.30, 7.32, 8.45, 8.61.4 Art. 34 ..................................................................................................... 6.11.6

xxxiii

Table of Treaties Part III, Section II Art. 38(5) .............................................................................. 3.16, 3.55.1, 3.55.2 Art. 41 ..................................................................................................... 3.45.2 Art. 42 .................................................................................. 2.84, 3.45.2, 6.11.3 Art. 46 ..................................................................................................... 3.45.2 Part III, Section III Art. 49 .......................................................................................... 3.45.1, 6.11.7 Art. 50 ......................................................................... 2.71.2, 3.16, 4.5.1, 4.7.1, 4.8–4.14, 4.15, 4.52, 4.129, 7.107.1, 8.63, 8.73 Art. 51 ............................................................................ 3.16, 4.12–4.14, 6.11.5 Art. 53 .............................................................................................3.16, 7.17.3 Art. 55 .......................................................................................................7.28, 8.63.1, 8.103.5n225 Art. 56 .............................................................................................7.28, 8.63.1 Art. 57 ........................................................................................................7.28 Art. 59 ........................................................................................................8.52 Art. 60 ..................................................................................................... 8.63.2 Art. 61 ..................................................................................................... 8.63.2 Art. 63 ..................................................................................................... 8.63.2 Art. 68 .............................................................................................2.71.2, 3.16 Art. 69 ..................................................................................................... 8.63.1 Art. 76 ........................................................................................................3.16 Art. 76(5) ................................................................................................. 3.45.2 Art. 78 .................................................................................. 2.84, 3.45.2, 6.11.3 Part III, Section IV Art. 82 .................................................................................. 2.71.2, 3.16, 3.45.2 Art. 82(2) ................................................................................................. 3.45.2 Art. 82(3) ................................................................................................. 3.45.2 Art. 85 ..................................................................................................... 3.45.2 Art. 87 ..................................................................................................... 3.45.2 Art. 89–92 ................................................................................................ 3.45.2 Art. 89 ........................................................................................................3.16 Art. 94 ........................................................................................... 3.16, 7.107.1 Art. 108.................................................................................................. 7.107.1 Art. 131.................................................................................................. 2.101.4 Art. 132............................................................................................3.16, 3.55.2 Art. 132(1) ............................................................................................... 3.45.2 Art. 133(1) ............................................................................................... 3.45.2 Part III, Section V Art. 140............................................................................................3.45.1, 6.43 Part IV ....................................................................................................... 3.54.2(v) Art. 144.................................................................................................... 3.52.1 Art. 146.................................................................................... 2.103.1, 2.103.3, 2.130.1, 4.129, 5.58.2

xxxiv

Table of Treaties Art. 147............................................................................. 3.49.2, 3.49.5, 3.50.2, 3.67.1, 3.72.1, 4.243, 5.58.2, 7.17.2, 7.40, 8.105.1 Art. 149..................................................................................................... 2.111 Art. 158.......................................................................................................3.60 Annex 1 .............................................................................................. 7.34.2(i), 7.50 1950 Nov. 4 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) ........................................................1.32, 3.104 Art. 1 ....................................................................................................... 2.32, 8.83 Art. 2 ............................................................................................ 3.90, 3.96.2, 3.98 Art. 2(1) ............................................................................................................8.83 Art. 3 ................................................................................................................... 8, 88.2, 3.100, 5.76 Art. 4(2) ......................................................................................................... 6.22.5 Art. 5(1) ........................................................................................................ 6.22. 7 Art. 15 ...............................................................................................................2.31 Art. 15(1)...........................................................................................................3.94 Art. 15(2).................................................................................................. 2.31, 3.94 Protocol 1 (20 March 1952) (213 UNTS 221) Art. 1 ................................................................................................7.20, 7.121 1954 May 14 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (249 UNTS 215) ............................................................... 7.107.2 Art. 4 ................................................................................................................7.12 Protocol II (26 March 1999) (2253 UNTS 172) ............................................... 7.107.2 1956 Sept. 7 Supplementary Convention for the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (266 UNTS 3) Art. 1(d) ......................................................................................................... 6.22.4 1957 June 25 ILO Convention No 105 on the Abolition of Forced Labour Convention (320 UNTS 291) Art. 1 ............................................................................................................. 6.22.5 Art. 2 ............................................................................................................. 6.22.5 1961 Apr. 18 Vienna Convention on Diplomatic Relations (500 UNTS 95) (VCDR) ....... 9.33.3

xxxv

Table of Treaties 1963 Apr. 24 Vienna Convention on Consular Relations (596 UNTS 261) (VCCR) ......... 9.33.3 1966 Dec. 16 International Covenant on Civil and Political Rights (999 UNTS 171) (ICCPR) ........................................................................................................ 1.33.2, 1.48, 2.86, 3.104 Art. 4 ................................................................................................................2.31 Art. 4(2) ................................................................................................... 2.31, 6.24 Art. 6 .................................................................................................. 3.96.1, 8.88.1 Art. 6(1) ............................................................................................................3.90 Art. 6(5) .................................................................................................... 3.89n232 Art. 7 ................................................................................................... 3.100, 3.103, 5.76, 6.22.7, 8.88.2 Art. 8 ............................................................................................................. 6.22.4 Art. 8(3) ............................................................................................................6.22 Art. 9(1) ......................................................................................................... 6.22.7 Art. 10 ......................................................................................................... 8.88.2.ii Art. 10(1)........................................................................................................ 6.22.7 Art. 23 ............................................................................................................ 1.33.2 Art. 23(3)...........................................................................................................5.54 Art. 24 ............................................................................................................ 1.33.2 Art. 24(1)............................................................................................ 2.7, 2.52, 7.20 Dec. 16 International Covenant on Economic, Social and Cultural Rights (993 UNTS 3) (ICESCR) .................................................... 1.33.2, 1.48, 2.139 Art. 2(1) ............................................................................................................7.64 Art. 10(1)........................................................................................................ 1.33.2 Art. 10(3)................................................................................. 1.33.2, 2.7, 2.52, 7.20 Art. 13(1)............................................................................................... 7.117–7.119 1969 May 23 Vienna Convention on the Law of Treaties (1155 UNTS 331) (VCLT) Art. 26 ............................................................................................................. 2.100 Art. 30(3)......................................................................................................... 4.102 Art. 30(3)–(4)................................................................................................... 3.118 Art. 31(3)(c).............................................................................................. 2.31, 2.81 Nov. 22 American Convention on Human Rights (1144 UNTS 123) (ACHR) .......... 2.139 Art. 4 ................................................................................................................7.20 Art. 4(1) .................................................................................. 3.90, 3.96.3, 6.47.2(i) Art. 5 ........................................................................................... 3.100, 6.22.4, 7.20 Art. 5(1) ...................................................................................... 6.47.2(i), 6.47.2(ii) Art. 5(2) ............................................................................................. 5.76, 6.47.2(i) Art. 6(2) ......................................................................................................... 6.22.5 Art. 7 .............................................................................................. 6.22.7, 6.47.2(i) xxxvi

Table of Treaties Art. 17 ....................................................................................................... 6.47.2(ii) Art. 17(3)...........................................................................................................5.54 Art. 18 ....................................................................................................... 6.47.2(ii) Art. 19 .............................................................................................. 2.148, 6.47.2(i) Art. 21 ...............................................................................................................7.20 Art. 26 ............................................................................................................. 7.121 Art. 27 ...............................................................................................................7.20 Art. 57 ............................................................................................................. 2.148 Art. 61 ............................................................................................................. 2.148 Art. 65 ............................................................................................................. 2.148 1972 Apr. 10 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxic Weapons and on Their Destruction (1015 UNTS 163) Art. 1 ............................................................................................................. 3.29.1 1973 June 6 ILO Convention No 138 concerning Minimum Age for Admission to Employment (1015 UNTS 297).................................................................... 1.33.3 Art. 3 ............................................................................................................. 1.33.3 1974 Dec. 14 Declaration on the Protection of Women and Children in Emergency and Armed Conflict (UNGA Res. 3318 (XXIX)) ......................................1.33.4, 2.62 para. 1. ........................................................................................................... 3.40.1 para. 6 ................................................................................................ 8.133, 8.134.1 1977 June 8 Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (1125 UNTS 3) (API) .................................................................. 1.33.5, 2.16, 2.21–2.23, 2.58, 2.72, 2.77.2, 2.109, 3.52.2, 3.59, 3.72, 3.118, 3.158, 4.48, 4.54, 8.6, 9.14, 9.33.2(ii), 9.493 Preamble ...........................................................................................................3.60 Part I Art. 1 ................................................................................................2.99, 4.129 Art. 1(1) ......................................................................................................5.15 Art. 1(3) ......................................................................................................2.21 Art. 1(4) ................................................................................................... 2.77.1

xxxvii

Table of Treaties Art. 5 ........................................................................................................ 2.110 Art. 7 ........................................................................................................ 2.113 Part II, Section I .................................................................................................7.26 Art. 8 ............................................................................................ 3.55.1, 8.62.1 Art. 8(a) ........................................................................................ 3.55.1, 8.62.3 Art. 8(e) ...................................................................................... 7.25.3, 7.110.2 Art. 12(1) ................................................................................................. 7.25.3 Art. 12(2)(b)–(c) ....................................................................................... 7.25.3 Art. 12(3) ........................................................................................... 7.28, 7.47 Art. 12(4) ................................................................................................. 7.16.8 Art. 13 .................................................................................... 7.31.3, 7.32, 7.37 Art. 14 ........................................................................................................7.28 Part II, Section III Art. 32 ................................................................................................... 2.103.6 Art. 33 ........................................................................................... 2.103.6, 6.43 Part III, Section I Art. 35 ............................................................................................... 3.23, 3.29 Art. 43 ........................................................................................... 2.101, 3.26.1 Art. 43(1) ....................................................................................................4.30 Part IV, Section I Art. ...................................................................................................517, 7.16.9 Art. 48 ........................................................................................................3.23 Art. 49 ........................................................................................................3.24 Art. 50 ............................................................................................... 3.23, 3.74 Art. 50(1) ................................................................................................. 3.26.1 Art. 50(2) ................................................................................................. 3.26.1 Art. 51 .......................................................................................................3.23, 3.30, 3.33, 7.16.8, 7.106 Art. 51(1) ....................................................................................................3.24 Art. 51(2) ....................................................................................................3.27 Art. 51(3) ........................................................................................... 3.24, 4.23 Art. 51(4) ................................................................................ 3.28, 3.29, 7.16.6 Art. 51(5) ....................................................................................................3.30 Art. 51(5)(b) ................................................................................................3.31 Art. 52 ....................................................................................... 3.23, 8.65.1(iii) Art. 52(1) ...................................................................................... 3.26.1, 7.16.2 Art. 52(2) ........................................................................................3.30, 7.16.2, 7.16.4, 7.105, 7.109.1 Art. 52(3) ............................................................................ 7.16.5, 7.16.7, 7.105 Art. 53 ........................................................................................................7.12 Art. 54 .......................................................................................... 7.17.3, 8.48.1 Art. 54(1) .......................................................................................... 3.27, 8.43, 8.44, 8.61.4, 8.116.2(ii) Art. 54(2) ........................................................................................7.17.1, 8.44, 8.48.1, 8.61.1(i), 8.61.4 Art. 54(5) ...................................................................................... 7.17.1, 8.61.4 xxxviii

Table of Treaties Art. 57 ...........................................................................3.34, 3.37, 7.16.8, 7.106 Art. 57(1) ....................................................................................................3.35 Art. 57(2) ....................................................................................................3.36 Art. 57(2)(a)(i) ..................................................................................3.36, 4.21.1 Art. 57(2)(a)(ii) ............................................................................................3.36 Art. 57(2)(a)(iii) ...........................................................................................3.36 Art. 57(2)(b) ............................................................................................. 3.38.1 Art. 57(c) ................................................................................................. 3.81.2 Art. 58 ........................................................................................................3.39 Art. 59(2) ........................................................................................... 7.14.2(iii) Art. 59(6) ........................................................................................... 7.14.2(iii) Art. 60 ................................................................................................ 7.34.2(iv) Art. 65 ................................................................................................... 2.103.1 Part IV, Section II Art. 69 .................................................................................. 7.28, 8.48.1, 8.63.1 Art. 69(1) ............................................................................................. 8.61.1(i) Part IV, Section III .............................................................................. 3.18, 5.18.1(ii) Art. 70 ............................................................................................8.53, 8.54.1, 8.61.1, 8.73, 8.75.3, 8.99.3 Art. 70(1) ............................................................................. 3.17, 8.36.4, 8.36.5, 8.38, 8.40, 8.46, 8.47, 8.48.1, 8.62.2, 8.79 Art. 70(2) ..................................................................................... 8.39, 8.61.1(i) Art. 70(3) ...................................................................................... 8.48.1, 8.61.1 Art. 70(3)(c) .............................................................................. 8.48.1, 8.61.1(i) Art. 70(4) ......................................................................8.48.1, 8.61.1, 8.65.1(iii) Art. 70(5) ....................................................................................................8.38 Art. 71 .................................................................................................... 8.61.1, 8.61.1(ii), 8.63.2, 8.65.1(ii) Art. 72 ........................................................................................................3.18 Art. 72(2) ................................................................................. 1.37, 2.81, 2.140 Art. 73 ........................................................................................................3.18 Art. 74 .............................................................................................6.43, 8.8.62 Art. 75 ......................................................................................... 3.55.1, 3.59.3, 8.46, 8.51, 8.54.1, 8.69.2(iii) Art. 75(1) ...................................................................................... 3.50.1, 5.19.1 Art. 75(2) .............................................................................. 3.49.1, 3.50.2, 8.46 Art. 75(2)(a) ................................................................................................7.59 Art. 75(2)(b) ....................................................................................... 5.18.1(iii) Art. 75(2)(c) ............................................................................................. 6.11.6 Art. 75(3) ................................................................................................. 3.45.2 Art. 75(4) ....................................................................................................3.45 Art. 75(5) ....................................................................................................3.45 Art. 76 ............................................................................... 3.45.2, 3.55.2, 5.98.1 Art. 76(1) ............................................................................ 5.18.1(ii), 5.18.1(iii) Art. 76(3) ................................................................................................. 4.21.1 xxxix

Table of Treaties Art. 77 ................................................ 1.33.5, 2.22, 2.25, 3.17–3.18, 3.19, 3.43.2, 3.45.2, 3.51, 3.54, 3.55, 3.60, 3.62, 3.112, 3.158, 8.62.2, 8.73 Art. 77(1) .................................. 2.7, 3.43.1, 3.43.2, 3.43.4, 3.43.5, 3.45, 3.54.2(i), 3.54.2(iv), 3.86, 4.51.3, 5.15, 5.18.1(iv), 5.61, 5.106, 7.18, 7.44.1, 7.107.4, 8.36.3, 8.36.5, 8.50, 8.57, 8.88.4(iv), 9.13.9 Art. 77(2) .......................................................................... 2.81, 3.43.1, 4.6.1(ii), 4.15–4.31, 4.33, 4.36, 4.38, 4.39, 4.42, 4.47, 4.48, 4.49, 4.53, 4.87, 4.91, 4.98, 4.100, 4.102, 4.103, 4.174, 5.18.1(iv), 9.13.6 Art. 77(3) ................................................................... 3.55.2, 4.6.1(ii), 5.18.1(iv) Art. 77(4) ................................................................................... 3.45, 5.17, 5.18 Art. 78 ............................................................. 3.17–3.18, 3.45.1, 3.55.1, 7.107.1 Part V, Section I Art. 80 ...................................................................................................... 2.100 Art. 81 .......................................................................................... 8.65.2, 8.99.3 Art. 81(1) ....................................................................... 8.6, 8.61.2(i), 8.61.2(iii) Art. 81(2) ............................................................................ 8.61.2(iii), 8.61.2(v) Art. 81(3) ............................................................................................ 8.61.2(iv) Art. 81(4) ................................................................................................. 8.36.4 Art. 83 ..................................................................................................... 3.52.1 Part V, Section II Art. 85–86 ................................................................................................ 5.58.2 Art. 85(1) .............................................................. 2.103.3, 2.130.1, 2.140, 4.129 Art. 85(2) ....................................................................................................7.41 Art. 85(3)(b) ................................................................................................3.31 Art. 85(5) ................................................................................................. 3.67.1 Art. 86(1) .................................................................................. 2.103.1, 2.103.3 Art. 87 ........................................................................................... 2.79, 2.103.3 Art. 90 ...................................................................................................... 2.112 Art. 90(2) .................................................................................................. 2.112 Declaration of UK (2 July 2002) ...................................................................... 4.21.2 June 8 Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1125 UNTS 609)(AP II) ........... 89.1, 1.33.5, 2.14.1, 2.24–2.26, 2.58, 2.72, 2.89.1, 2.104.2, 2.109, 2.113, 2.130, 3.30, 3.46, 3.52.1, 3.52.2, 3.59, 4.48.2, 4.50–4.56, 7.16.6, 7.16.8, 7.26n67, 8.38.1, 8.53–8.54, 8.64–8.65, 8.66–8.70, 8.103.4, 9.19, 9.22, 9.47, 9.49(3) Preamble ...........................................................................................................3.60 Art. 1 ................................................................2.77.2, 2.101, 4.62.2(i), 4.129, 8.54.1 Art. 1(1) ....................................................................................... 2.24, 2.77.2, 2.101 Art. 4 ............................................................................. 3.19, 3.112, 8.69.2(iii), 8.84 Art. 4(1) ................................................................................... 3.50.4, 5.18.2, 5.19.2 Art. 4(2)(a) .................................................................................. 5.19.2, 7.59, 8.54.1

xl

Table of Treaties Art. 4(2)(b) .............................................................................................8.45, 8.54.1 Art. 4(2)(c) ..................................................................................................... 6.11.6 Art. 4(2)(e) .......................................................................................... 5.18.2, 5.19.3 Art. 4(2)(f) ........................................................................................... 6.11.4, 6.11.5 Art. 4(3) ............................................................... 1.33.5, 2.25, 3.43, 3.54, 3.55, 3.60, 3.61, 3.62, 3.86, 3.112, 3.158, 4.32–4.36, 4.48.2, 4.91.2, 4.102, 4.174, 5.15, 5.51.3, 5.61, 5.106, 7.44.1, 7.107.4, 8.54.2, 8.57, 8.64, 8.65, 8.73, 8.79, 8.88.4, 8.91, 8.153, 9.12.1, 9.12.10, 9.12.11, 9.13.3, 9.13.6, 9.13.7, 9.13.9 Art. 4(3)(a) ........................................................................... 3.54.2(iv), 7.18, 7.107.4 Art. 4(3)(b) ........................................................................................................6.43 Art. 4(3)(c) ..................................................................................... 4.6.2, 4.33, 4.34, 4.35, 4.36, 4.38, 4.42, 4.49, 4.52, 4.53, 4.55, 4.87.2, 4.118, 4.123, 4.174, 9.12.3, 9.12.5, 9.13.5, 9.13.6, 9.44.3 Art. 4(3)(d) ............................................................................................3.55.2, 4.6.2 Art. 4(3)(e) ......................................................... 3.46, 3.54.2(iv), 3.55.1, 3.62.1, 8.64 Art. 5 ............................................................................................................. 3.45.2 Art. 6(4) ............................................................................................................3.19 Art. 9–11 ........................................................................................................ 8.65.2 Art. 11(1)...........................................................................................................7.33 Art. 11(2).................................................................................................. 7.33, 7.39 Art. 12 ....................................................................................................7.33, 7.34.1 Art. 13(1).......................................................................................... 3.24, 3.39, 7.16 Art. 13(2)...........................................................................................................3.27 Art. 13(3).......................................................................................... 3.24, 3.32, 4.23 Art. 14 ................................................. 3.27, 7.17.1, 8.54.1, 8.100.1, 8.116.2(ii), 8.141 Art. 16 .......................................................................................................... 7.107.3 Art. 17 ............................................................................................................ 6.11.7 Art. 18(1)........................................................................................................ 8.65.2 Art. 18(2)....................................................................... 8.36.4, 8.53–8.54, 8.65, 8.84 Art. 19 .................................................................................................. 3.52.1, 4.129 1979 Dec. 18 Convention on the Elimination of All Forms of Discrimination Against Women (1249 UNTS 13) (CEDAW)...................................... 1.33.6, 5.3, 5.98 Art. 2 ................................................................................................................5.80 Art. 6 ............................................................................................................. 5.81.2 Art. 11(1)(f) .......................................................................................................7.57 Art. 12 ...............................................................................................................7.57 Art. 12(2)...........................................................................................................8.89 Art. 16 ....................................................................................................5.54, 5.81.3 Art. 16(2)........................................................................................................ 5.74.2 Art. 23 ............................................................................................................. 3.114 xli

Table of Treaties 1980 Oct. 10 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (1342 UNTS 137) ........................................................ 3.29.4 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) (1342 UNTS 171) Art. 1(5) ......................................................................................................3.37 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II) (1342 UNTS 168) Art. 1 ....................................................................................................... 3.29.4 Art. 3(2) ................................................................................................... 3.29.4 Art. 3(3) ................................................................................................... 3.29.4 Art. 3(4) ................................................................................................... 3.29.4 Art. 6(1)(b)(v) .......................................................................................... 3.29.4 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II as amended, 3 May 1996) (2048 UNTS 93) Art. 1 ....................................................................................................... 3.29.4 Art. 3(7) ................................................................................................... 3.29.4 Art. 3(8)(a) .................................................................................... 3.29.4, 7.16.7 Art. 3(10) ....................................................................................................3.37 Oct. 25 Hague Convention on the Civil Aspects of International Child Abduction (1343 UNTS 89).....................................................................2.145, 6.7.3 1981 June 26 African Charter on Human and Peoples’ Rights (1520 UNTS 218) (ACHPR) Art. 4 ..................................................................................3.90, 3.96.4, 5.98.1, 7.20 Art. 5 ..................................................................................5.76, 5.98.1, 6.22.4, 7.20 Art. 6 ............................................................................................................. 6.22.7 Art. 14 ...............................................................................................................7.20 Art. 15 ............................................................................................................ 6.22.5 Art. 16 .......................................................................................... 7.20, 8.89, 8.144.1 Art. 17(1)......................................................................................................... 7.121 Art. 18(3)...........................................................................................................2.55 Art. 46 .......................................................................................................... 2.152.2 Art. 48 .......................................................................................................... 2.152.1 Art. 49 .......................................................................................................... 2.152.1 Art. 62 .......................................................................................................... 2.152.3 1988 Nov. 17 Additional Protocol to the ACHR in the Area of Economic, Social and Cultural Rights (OASTS No 69) Art. 10(3)...........................................................................................................7.69 Art. 16 ...............................................................................................................2.54

xlii

Table of Treaties 1989 Nov. 20 Convention on the Rights of the Child (1577 UNTS 3) (CRC) .....................1.32, 1.34–1.37, 1.48–1.49, 1.51, 1.61–1.65, 2.7, 2.34–2.39, 2.47, 2.88, 2.140, 2.145, 2.148, 2.153, 3.88, 3.106–3.118, 3.147.3, 4.94–4.105, 4.155–4.157 Preamble ........................................................................................................ 3.51.3 Art. 1 ..................................................................................... 2.71.2, 4.99, 6.22.3(ii) Art. 2 ............................................................................................... 2.34, 2.37, 7.20 Art. 3 ...................................................................................................... 1.39, 2.34, 2.36, 2.37, 2.140, 7.20, 7.67 Art. 3(1) ............................................................................................................2.37 Art. 3(3) ............................................................................................................7.20 Art. 4 .................................................................. 3.146, 4.153.1, 5.96, 6.27.2(i), 6.46 Art. 6 ...................................................................................2.36, 3.91, 3.107, 3.109, 3.116, 3.158 (IHRL), 7.20 Art. 11 ...................................................................................................6.7.3, 6.21.1 Art. 12 .....................................................................................................2.37, 2.140 Art. 19 .............................................................................................. 5.67–5.69, 5.96 Art. 19(1)......................................................................................................... 3.102 Art. 19(2)......................................................................................................... 3.102 Art. 24 ...................................................................................................... 7.20, 7.67 Art. 24(1)...........................................................................................................7.71 Art. 28 ................................................................................................... 7.116, 7.120 Art. 29 ............................................................................................................. 7.120 Art. 31 ............................................................................................................. 3.116 Art. 34 ....................................................................................................5.67.2, 5.96 Art. 35 ........................................................................ 6.7.3, 6.8, 6.21.1, 6.25, 6.26.2, 6.27.2, 6.27.2(iii), 6.28–6.31, 6.46, 6.52, 6.56 Art. 37 .....................................................................................................3.158, 7.20 Art. 37(a).............................................................................. 3.89n232, 3.101–3.102, 3.107, 3.109, 3.116 Art. 37(b) ....................................................................................................... 6.22.7 Art. 37(c) ......................................................................................................... 3.101 Art. 38 .......................................................................................... 1.35, 1.37, 1.41.4, 2.36, 2.38, 2.71.2, 2.108, 2.153.1, 3.91, 3.107–3.118, 3.122, 3.148.1, 3.155, 3.158, 4.106, 4.109, 4.131, 7.77, 8.130, 9.12.2, 9.13.4, 9.44.3, 9.45 Art. 38(2)...................................................................................... 4.97–4.101, 4.118, 4.123, 4.174, 9.12.5, 9.44.3 Art. 38(3)....................................................................................... 2.140, 4.97–4.98, 4.104, 4.109.1, 4.110.1, 4.110.2, 4.110.5

xliii

Table of Treaties Art. 38(4).............................................................................................. 3.109–3.118, 3.158 (IHRL (1)–(2)), 8.44.3, 8.88.4(iv), 8.88.4(v), 8.88.4(vii), 8.91, 8.94, 8.95, 8.153, 9.12.2, 9.12.13, 9.13.4 Art. 39 ...............................................................................................................7.68 Art. 41 ............................................................................................................. 3.114 Art. 43 ............................................................................................ 1.38, 2.35, 2.153 Art. 44 .......................................................................................................... 2.153.3 1990 July 11 African Charter on the Rights and Welfare of the Child (OAU Doc. CAB/LEG/24.9/49) (ACRWC) ......................................... 1.39, 2.40–2.42, 6.25, 6.26, 6.27.2 14(2)(c) ..............................................................................................................8.89 Art. 1(1) ............................................................................................................2.40 Art. 2 ................................................................................................ 2.71.2, 4.109.2 Art. 4(1) ............................................................................................................1.39 Art. 5(1) ............................................................................................................3.91 Art. 5(2) ....................................................................................................... 3.113.2 Art. 5(3) ............................................................................................................3.89 Art. 14 ...............................................................................................................8.89 Art. 16(1)........................................................................................................ 5.71.1 Art. 17(2)(a) .................................................................................................... 3.101 Art. 20(2)(a) ......................................................................................................8.89 Art. 22 ......................................................................... 1.39, 2.40, 3.107, 3.122, 7.77, 8.6, 8.94, 8.130, 9.12.13 Art. 22(2).............................................................................................. 4.95, 4.109.2 Art. 22(3).............................................................................................. 3.110, 3.113, 3.117, 3.118, 9.13.4 Art. 23 .......................................................................................................... 8.145.1 Art. 23(1)...........................................................................................................8.86 Art. 23(2)...........................................................................................................8.86 Art. 23(3)...........................................................................................................8.86 Art. 27 ............................................................................................................ 5.71.2 Art. 29 ................................................................................6.21.2, 6.27.2, 6.27.2(iii), 6.28, 6.30, 6.48.1, 6.52, 6.56 (IHRL (2)), 6.57, 9.13.11, 9.44.3(vi) Art. 43 .......................................................................................................... 2.151.3 Art. 43(1)...................................................................................................... 2.151.3 Art. 44 .......................................................................................................... 2.151.1 Art. 45 ................................................................................................ 2.151.2, 3.122 Art. 46 .............................................................................................. 3.116, 6.27.2(i)

xliv

Table of Treaties 1992 Sept. 3 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (1974 UNTS 45) Art. 1(b) ......................................................................................................... 3.29.1 1993 May 29 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1870 UNTS 167) ..................................... 2.145 1994 June 9 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (33 ILM 1534 (1994)) ......................5.76 1996 May 3 European Social Charter (revised) (ETS 163) Art. 15 ...............................................................................................................7.69 1997 Sept. 18 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (2056 UNTS 241) (Mine Ban Treaty) ............................................................... 1.67.3 Art. 1(1) ......................................................................................................... 3.91.2 1998 June 10 Statute of the ACtHR (OAU Doc LEG/MIN/AFCHPR/PROT.1 rev.2) Art. 1 .............................................................................................................. 2.144 July 17 Statute of the International Criminal Court (ICC) (2187 UNTS 90) (Rome Statute)................................................................................ 1.71–1.72, 2.4.2, 2.28–2.29, 2.69, 2.73, 2.87, 2.130.2, 2.158.1, 2.159, 3.29.2n62, 3.65, 3.147.3, 3.150, 3.155, 3.159, 4.58, 4.127–4.150, 4.165, 4.173, 5.12, 5.16, 5.23–5.51, 5.58.1, 7.85, 7.93, 7.96, 7.110, 7.114, 7.145, 8.4.3, 8.103.5n225, 9.5, 9.34 Preamble ...........................................................................................................3.63 para. 2...................................................................................................... 3.67.3 para. 10 .................................................................................................. 2.130.2 Art. 1 ................................................................................................... 1.72, 2.130.2 Art. 5 ..................................................................................... 1.72, 2.28, 2.133, 5.23 Art. 6 ............................................................................................. 3.80, 5.34, 8.110 Art. 6(c) ................................................................................ 8.101.4, 8.110, 8.111.1

xlv

Table of Treaties Art. 6(e) ............................................................................................................6.16 Art. 7(1) ...............................................................................3.74, 3.75, 5.5.30, 8.106 Art. 7(1)(b) ...................................................................................................... 8.108 Art. 7(1)(c) ..................................................................................................... 6.17.1 Art. 7(1)(d) ...................................................................................................... 8.109 Art. 7(1)(g) .................................................................................. 5.30.1, 5.49, 5.51.1 Art. 7(1)(h) ...................................................................................................... 8.109 Art. 7(1)(i) ...................................................................................................... 6.17.1 Art. 7(1)(k) ................................................................................ 5.30.1, 6.17.1, 8.109 Art. 7(2)(a) ........................................................................................................3.76 Art. 7(2)(b) ..............................................................................................3.75, 8.108 Art. 7(2)(d) ..............................................................................................3.75, 8.109 Art. 7(2)(e) ........................................................................................................3.75 Art. 7(2)(f) .........................................................................................................5.45 Art. 8 .......................................................................................... 2.8, 3.67.3, 3.68.3, 3.86, 8.98, 8.100.1, 8.100.4, 8.114, 8.118 Art. 8(1) ............................................................................................................4.61 Art. 8(2) ................................................................................................... 4.62, 5.26 Art. 8(2)(a) .............................................................................................3.67.1, 7.42 Art. 8(2)(a)(ii) ...................................................................................... 5.27.3, 6.17.2 Art. 8(2)(a)(iii) ..................................................................................... 5.27.3, 7.19.1 Art. 8(2)(a)(iv) ........................................................................... 7.19.1, 7.52, 8.105.2 Art. 8(2)(b) ...................................................................... 3.67.2, 3.67.3, 3.68.3, 3.72, 4.62, 4.86–4.87, 7.19.1, 9.12.3 Art. 8(2)(b)(iii).......................................................................... 8.115, 8.153, 9.12.14 Art. 8(2)(b)(iv) ........................................................................................3.30, 7.52.1 Art. 8(2)(b)(v) ........................................................................................... 7.34.2(iii) Art. 8(2)(b)(ix)............................................................................ 7.12.2, 7.106, 7.112 Art. 8(2)(b)(xvi) ............................................................................................ 6.105.2 Art. 8(2)(b)(xx)............................................................................................... 3.67.2 Art. 8(2)(b)(xxi).............................................................................................. 5.27.2 Art. 8(2)(b)(xxii)........................................................................... 5.27.1, 5.49, 5.60, 5.106, 6.17.2, 9.12.6 Art. 8(2)(b)(xxiv) ............................................................................................ 7.52.2 Art. 8(2)(b)(xxv) ............................................................................. 8.99.1, 8.116.2(i) Art. 8(2)(b)(xxvi) ................................................................... 2.71.2, 2.130.2, 4.48.1, 4.49.2, 4.59.1, 4.66–4.76, 4.80, 4.81–4.83, 4.174, 4.174, 6.17.2, 9.12.4 Art. 8(2)(b)(xxvii) ........................................................................................... 3.67.3 Art. 8(2)(b)(xxviii) .......................................................................................... 3.67.3 Art. 8(2)(b)(xxix) ............................................................................................ 3.67.3 Art. 8(2)(c) ..................................................................................................... 3.68.1 Art. 8(2)(c)(i) ....................................................................................... 3.68.1, 5.28.2 Art. 8(2)(c)(ii) ...................................................................................... 3.68.1, 5.28.2

xlvi

Table of Treaties Art. 8(2)(e) ......................................................................................... 3.68.2, 3.72.2, 4.62.2, 4.86–4.87, 9.12.3 Art. 8(2)(e)(i) .................................................................................................. 7.19.2 Art. 8(2)(e)(ii) ................................................................................................. 7.19.2 Art. 8(2)(e)(iii) ............................................................. 8.104.1, 8.115, 8.153, 9.12.14 Art. 8(2)(e)(iv) ................................................................. 7.12.2, 7.19.2, 7.106, 7.112 Art. 8(2)(e)(v) .................................................................................... 7.19.2, 8.105.2 Art. 8(2)(e)(vi) ................................................5.28.1, 5.49, 5.60, 5.106, 6.17.2, 9.12.6 Art. 8(2)(e)(vii) ...................................................................... 2.71.2, 2.130.2, 3.68.2, 3.68.3, 4.49.2, 4.59.2, 4.77–4.80, 4.81–4.83, 4.174, 4.174, 6.17.2, 9.12.4 Art. 8(2)(e)(viii) .............................................................................................. 3.68.2 Art. 8(2)(e)(xvi) .............................................................................................. 3.68.3 Art. 8(2)(e)(xviii) ............................................................................................ 3.68.3 Art. 8(2)(f) .................................................................................................. 4.62.2(i) Art. 8(3) .................................................................................................... 4.62.2(ii) Art. 9 ................................................................................................................7.53 Art. 12–13 ............................................................................................ 2.28, 2.130.2 Art. 12 ....................................................................................................5.23, 9.36.1 Art. 13 ............................................................................................................. 2.119 Art. 13(b) ........................................................................................... 3.145.4, 4.151 Art. 15 ............................................................................................................. 4.150 Art. 17 ...................................................................................... 2.129, 2.130.2, 2.133 Art. 27 ............................................................................................................. 2.133 Art. 27(2)......................................................................................................... 2.133 Art. 29 .....................................................................................................1.72, 2.133 Art. 30 ............................................................................................................ 4.69.1 Art. 30(2)(b) ................................................................................................... 8.99.4 Art. 42(9)...........................................................................................................5.95 Art. 79 ............................................................................................................. 4.148 Art. 87(7)........................................................................................................ 9.36.1 Art. 98(1)......................................................................................................... 2.133 Art. 121 .......................................................................................................... 3.67.2 Art. 121(1) ....................................................................................................... 8.118 Art. 121(2) ....................................................................................................... 8.118 Art. 121(5) ...................................................................................................... 3.67.3 Art. 123 .......................................................................................................... 3.67.2 1999 June 17 ILO Convention No 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (2133 UNTS 161) ..................................................................2.43–2.44, 2.156–2.157, 4.110.3, 4.156 Art. 1 ................................................................................................... 4.95, 4.110.3 Art. 2 ....................................................................................................... 6.22.3(iii) xlvii

Table of Treaties Art. 3 .................................................................................... 4.95, 6.22.3(iii), 6.22.5 Art. 3(a) ........................................................................................ 1.67.6, 2.43–2.44 2000 May 25 Optional Protocol to the CRC on the Involvement of Children in Armed Conflict (2173 UNTS 222) (OPAC) ................................................ 1.12.3, 1.32, 1.36, 1.47.1, 1.60.1, 1.60.2, 1.61–1.65, 2.45–2.46, 2.66, 2.72, 2.108, 4.43, 4.85, 4.94.2, 4.96, 4.106–4.126, 4.131, 4.155–4.157, 4.160.2, 4.174, 8.145.2(ii), 9.12.5, 9.14, 9.44.3, 9.45, 9.49(2) Preamble ......................................................................................................... 4.106 Arts 1–4 ................................................................. 4.107, 4.124–4.126, 4.174, 9.13.8 Art. 1 ............................................................................ 4.43, 4.107.1, 4.109, 4.114.2 Art. 2 ...................................................................................... 2.71.2, 4.107.1, 4.110 Art. 3 .............................................................................................. 4.107.1, 4.160.1 Art. 3(1) ....................................................................................... 4.110.4(i), 4.110.5 Art. 3(2) ................................................................................................. 4.110.4(iii), 4.110.6, 4.126.2, 4.174, 9.13.8 Art. 3(3) ...................................................................................... 4.110.4(ii), 4.110.7 Art. 3(4) ................................................................................................. 4.110.4(iii), 4.110.6, 4.126.2, 4.174, 9.13.8 Art. 3(5) .................................................................................................... 4.110.4(i) Art. 4 .......................................................................... 4.107.2, 4.111–4.115, 4.160.2 Art. 4(1) ....................................................... 4.111–4.115, 4.119–4.120, 4.174, 9.13.8 Art. 4(2) ........................................................................ 1.70, 4.111.2, 4.115, 4.153.2 Art. 6 .............................................................................................................. 2.140 Art. 6(1) ....................................................................................................... 4.153.3 Art. 8 ........................................................................................................... 2.153.3 May 25 Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (2171 UNTS 227) (OPSC)......1.12.3, 1.36, 1.63, 2.47–2.48, 5.70, 5.83, 9.14, 9.49(3) Art. 1–3 ..................................................................................................... 6.22.3(ii) Art. 1 ............................................................................................................. 5.70.1 Art. 2 ..................................................................................... 2.47, 5.70.2, 6.22.3(ii) Art. 3 .....................................................................................................2.47, 5.70.3 Art. 4 ............................................................................................................. 5.70.4 Art. 5 ............................................................................................................. 5.70.5 Art. 9 ............................................................................................................. 5.70.6 Nov. 15 Convention against Transnational Organized Crime, Protocol to Prevent, Suppress, and Punish Trafficking in Persons especially Women and Children (Palermo Protocol) (2237 UNTS 319) Art. 3 ................................................................................................................. 6.7 Art. 3(a) ............................................................................................ 6.7.4, 6.22.3(i) Art. 3(c) ............................................................................................ 6.7.4, 6.22.3(i) xlviii

Table of Treaties Dec. 7 European Charter of Fundamental Rights (OJEC 2000/C 364/01) (CFR) Art. 14 ............................................................................................................. 7.121 Art. 24 ...............................................................................................................2.56 Art. 35 ...............................................................................................................7.69 Explanations Relating to the Charter of Fundamental Rights (OJEC 2000/C 303/17, C 303/25) ...................................................................2.56 2003 Jul. 11 Protocol to the ACHPR on the Rights of Women (http://www.achpr.org/files/instruments/women-protocol/achpr_instr_proto_ women_eng.pdf) (Maputo Protocol) Art. 10(3)...........................................................................................................7.70 2004 May 23 Arab Charter on Human Rights ((2005) 12 International Human Rights Reports 893) Art. 5–8 .............................................................................................................7.20 Art. 5 ................................................................................................................3.90 Art. 7(1) ............................................................................................................3.89 Art. 8(1) .......................................................................................................... 3.100 Art. 19–20 .........................................................................................................7.20 Art. 33(2)...........................................................................................................2.57 2005 May 16 Council of Europe Convention on Action against Trafficking in Human Beings (CETS 197) .......................................................................................... 6.48.3 Art. 2 ....................................................................................................... 6.22.3(iii) Art. 3 ....................................................................................................... 6.22.3(iii) Art. 4 ........................................................................................................ 6.22.3(iv) Dec. 8 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the adoption of an additional distinctive emblem (UNTS 43425) (APIII) Preamble ........................................................................................................ 7.34.1 2007 May 30 Statute of the Special Tribunal for Lebanon (STL) (S/RES/1757 (2007)) ............................................................................ 2.137.2 2008 May 30 Convention on Cluster Munitions (2688 UNTS 39) Art. 1(1) ......................................................................................................... 3.29.3

xlix

Table of Treaties 2011 Dec. 19 Optional Protocol to the CRC on a Communications Procedure (UNTS 27531) (OP3) ....................................................................... 1.36, 2.49–2.50, 2.158.1, 3.122, 3.148.1, 3.150, 3.155, 3.159, 4.162, 4.171, 4.175, 5.101, 6.52, 6.54, 6.57, 7.90.2, 7.93, 7.96, 7.1458.149, 8.151, 9.14.4, 9.36.2, 9.44, 9.45, 9.49(4) Art. 5–12 (Part II) ........................................................................................... 9.44.1 Art. 5 ........................................................................................................... 2.153.1 Art. 10 .......................................................................................................... 2.153.1 Art. 11 .......................................................................................................... 2.153.1 Art. 11(2)...................................................................................................... 2.153.1 Art. 12 .......................................................................................................... 2.153.1 Art. 13–14 (Part III) ........................................................................................ 9.44.2 Art. 13 ................................................................................................ 2.153.2, 3.122 Art. 14 ............................................................................................................. 3.122 2013 Jan. 30 Statute of the Extraordinary African Chambers (EAC) (https://www.hrw.org/ news/2013/09/02/statute-extraordinary-african-chambers) Art. 3 ........................................................................................................... 2.137.1

l

Table of Other International Materials Declarations 1923 Declaration of the Rights of the Child (1923) (Eglantyne Jebb’s draft) ....... 1.23, 7.4 1924 Geneva Declaration of the Rights of the Child (‘World Child Welfare Charter’) (League of Nations General Assembly) ........................1.25, 3.61.3 1934 Geneva Declaration of the Rights of the Child (‘World Child Welfare Charter’) (reaffirmation by League of Nations General Assembly)..........1.25 1959 UN Declaration of the Rights of the Child (UNGA Res. 1386) ........ 1.33.1, 3.5.4(v) 1974 Protection of women and children in emergency and armed conflict (UNGA Res 3318 (XXIX)) .....................................................................1.33.4, 2.52, 3.40.1, 3.54.2(v), 8.134.1 1993 Declaration on the elimination of violence against women (UNGA Res 48/104) ........................................................................................ 5.14.2 2000 Millennium Declaration (18 September 2000) ................................................... 3.7 2012 Declaration on the girl child (UNGA Res 160/140) ........................................ 5.82.2 Draft Conventions 1939 Draft Convention for the Protection of Children in Case of Armed Conflict (International Save the Children Union)............... 1.9, 1.25, 1.112, 6.13, 7.50, 7.144, 8.36, 9.1, 9.13.12 Preamble .................................................................................................. 3.54.2(iii) Art. 2 ................................................................................................................8.36 Arts. 3–8............................................................................................................7.50 Art. 3 ............................................................................................................. 3.45.1 Art. 3(1) ............................................................................................................7.50 Art. 3(2) ......................................................................................................... 7.50.1 Art. 4 ................................................................................................................7.50 Art. 5 ............................................................................................................. 7.50.4 Art. 6 ............................................................................................................. 7.50.5 Art. 7 .................................................................................................. 3.45.1, 7.50.1 Art. 8 ................................................................................................................7.50 Art. 9–11 ........................................................................................................ 7.50.8 Arts. 12–14 ........................................................................................................7.50 Art. 12(1)–(2).................................................................................................. 7.50.6 Art. 12(4)–(5).................................................................................................. 7.50.6 Art. 12(6)........................................................................................................ 7.50.6 Art. 12(9)........................................................................................................ 7.50.6

li

Table of Other International Materials Art. 13 ............................................................................................................ 7.50.6 Art. 14 ............................................................................................................ 7.50.7 1946 Draft Convention for the Protection of Children in the Event of International Conflict or Civil War (Bolivian Red Cross) ................ 1.9, 1.28–1.30, 1.112, 3.54.2(v), 3.62.1, 6.13, 8.36, 9.1 Art. 1 ................................................................................................ 1.28, 3.54.2(v) Art. 4 ................................................................................................................8.36 Art. 5 ................................................................................................................4.24 Annex 1 .............................................................................................................8.36 Annex 2 ............................................................................................... 3.54.1, 3.61.3 Annex 3 ................................................................................................... 3.54.1, 7.4 Annex 4 .............................................................................................................. 7.4 Annex 5 .............................................................................................................8.36 2017 Draft International Protocol on the Documentation and Investigation of Sexual Violence in Conflict: Best Practice on the Documentation of Sexual Violence as a Crime or Violation of International Law (2nd edn, 2017) ............................................................................................... 5.91.1 Elements of Crimes (EOC)........................................................... 4.78, 5.37, 8.44, 8.115 Art. 2(8)(b)(iii)................................................................................................. 8.120 Art. 2(8)(e)(iii) ................................................................................................. 8.120 Art. 6(3)(1), fn 5 ................................................................................................6.60 Art. 6(a)–(e), para. 4 ..........................................................................................3.80 Art. 6(b), para 1, fn 2 .........................................................................................3.81 Art. 6(c), fn 4 ................................................................................................... 8.111 Art. 6(c), fn 5 .....................................................................................................6.16 Art. 7 ....................................................................................................... 3.76, 3.78 Art. 7(1)(b) ...................................................................................................... 8.108 Art. 7(1)(g)-1 ............................................................................................ 5.37–5.39 Art. 7(1)(g)-2 .....................................................................................................5.40 Art. 8 ....................................................................................................... 5.37, 5.53 Art. 8(2) ................................................................................................... 3.65, 3.69 Art. 8(2)(a) ........................................................................................................3.70 Art. 8(2)(a)(ii)-1 .............................................................................................. 3.67.1 Art. 8(2)(a)(ii)-2 .............................................................................................. 3.67.1 Art. 8(2)(b)(iii)............................................................................................. 8.103.2, 8.153 (ICL (2)) Art. 8(2)(b)(iv) .......................................................................................... 3.30, 7.53 Art. 8(2)(b)(v) ....................................................................................................7.53 Art. 8(2)(b)(xxii)-1 .................................................................................... 5.37–5.39 Art. 8(2)(b)(xxii)-2 .............................................................................................5.40 Art. 8(2)(b)(xxv) ...............................................................................................8.44, 8.99.2, 8.116.2, 8.119 Art. 8(2)(b)(xxvi) ...............................................................................................4.67 Art. 8(2)(c) ........................................................................................................3.71 lii

Table of Other International Materials Art. 8(2)(e)(iii) ...................................................................... 8.104.2, 8.153 (ICL (2)) Art. 8(2)(e)(iv) ...................................................................................................7.53 Art. 8(2)(e)(vii) ..................................................................................................4.78 Art. 8(2)(e)(xvi) .............................................................................................. 3.68.1 Art. 8(2)(e)(xvii) ............................................................................................. 3.68.1 Art. 8(2)(e)(xviii) ............................................................................................ 3.68.1 General Comments (CESCR) 3 (ICESCR 2(1): nature of States Parties’ obligations) ..............................................7.64 13 (ICESCR 13: right to education) ................................................................... 2.153.4, 7.117–7.119 14 (ICESCR 12: right to the highest standard of physical and mental health) ...........7.64, 7.65, 7.66.2 General Comments (CRC) 1 (CRC 29(1): aims of education) .......................................................................... 7.120 3 (HIV/AIDS and the rights of the children)............................................. 2.153.4, 5.98.3 5 (general measures of CRC implementation) .......................................... 2.37, 6.27.2(i), 8.88.3(v), 8.88.4(v) 6 (treatment of unaccompanied and separated children outside their country of origin) ........................................................................................ 4.160.1, 6.27.2(i), 8.86 8 (right of the child to protection from corporal punishment and other cruel or degrading forms of punishment) ................................................................. 3.61.3 13 (CRC 19: right of the child to freedom from all forms of violence) .............. 5.68–5.69 15 (CRC 24: right of the child to the enjoyment of the highest attainable standard of health) .................................................................................. 7.57, 7.67, 7.68, 8.88.4(i), 8.88.4(viii) 20 (implementation of the rights of the child during adolescence) ....................... 4.160.1 General Comments (HRC) 17 (ICCPR 24: rights of the child)............................................................................2.52 29 (ICCPR 4 (states of emergency)) .........................................................................6.24 31 (ICCPR 2(1) (nature of general legal obligation imposed on States Parties to Covenant))..........................................................................................8.83, 8.88.1 General Recommendations (CEDAW) 19 (violence against women)................................................................................ 5.14.3, 5.80.2, 5.81.2, 5.81.3 28 (core obligations of States parties under CEDAW 2) ............................ 5.80.1, 7.140.3 30 (women in conflict prevention, conflict and post-conflict situations) .................. 1.33.6 General Recommendations (CEDAW/CRD), 31/18 (harmful practices)................. 5.74.2

liii

Table of Other International Materials ICRC Study on Customary IHL: Rules (2005/2009) (CIL Rules) by Rule 1........................................................................................................................3.23 2........................................................................................................................3.27 4........................................................................................................................4.30 5............................................................................................... 3.26.1, 3.26.2, 3.26.3 6........................................................................................................................3.24 7........................................................................................ 3.24, 7.16.2, 7.16.7, 7.105 8........................................................................................................... 3.30, 7.109.1 9.......................................................................................................... 3.26.1, 7.16.8 10 .................................................................................................................... 7.105 11–21 .............................................................................................................. 7.106 11 ................................................................................................ 3.29, 7.16.6, 7.16.8 12 ................................................................................................................... 7.16.6 14 ...........................................................................................................3.30, 7.16.8 15–21 ................................................................................................................3.34 15 ...........................................................................................................3.36, 7.16.8 16 ......................................................................................................................3.36 17 ......................................................................................................................3.36 18 ......................................................................................................................3.36 19 ................................................................................................................... 3.38.1 20 ................................................................................................................... 3.38.2 23–24 ................................................................................................................3.39 25–26 ............................................................................................................. 8.65.3 28 ............................................................................................................. 7.26, 7.33 31 ............................................................................................................. 8.61.1(ii), 8.65.1(i), 8.65.1(ii) 32 .............................................................................................. 8.61.1(ii), 8.65.1(iii) 35 ........................................................................................................ 7.34.3, 7.34.4 36 ................................................................................................................... 7.34.4 50 ................................................................................................................... 7.17.2 52 ............................................................................................. 7.17.2, 8.61.4, 8.65.4 53 ................................................................................................. 3.27, 8.43, 8.54.1, 8.61.2(ii), 8.61.4, 8.65.4 54 ..........................................................................................................7.17.1, 8.43, 8.61.1(i), 8.61.4, 8.65.4 55 ............................................................................................................ 8.37, 8.43, 8.53, 8.61.1(i), 8.65.1(i) 56 .............................................................................................................. 8.65.1(ii) 71 ...........................................................................................................3.29, 3.29.3 73 ................................................................................................................... 3.29.1 81 ................................................................................................................... 3.29.2 87 ................................................................................................................... 3.50.5 89 ................................................................................................................... 3.49.4 90 .................................................................................................................. 3.45.2, 3.50.2, 3.50.4, 5.19.3 liv

Table of Other International Materials 91 ................................................................................................................... 3.50.5 92 ................................................................................................................... 3.50.5 93 ....................................................................................................... 5.12, 5.18.3(i) 94 ........................................................................................... 5.12, 5.18.3(ii), 6.11.4 95 ................................................................................................................... 6.11.5 96 ................................................................................................................... 6.11.6 98 ................................................................................................................... 6.11.8 99 ................................................................................................................... 6.11.3 105 ....................................................................................................................6.12 109 ................................................................................................................. 3.55.1 117 ....................................................................................................................6.12 118 ................................................................................................................. 3.45.2 119 ....................................................................................................................5.17 120 ................................................................................................................ 2.59.1, 2.60, 3.45.2, 5.17 129 ...................................................................................................... 3.45.1, 6.11.7 135 ......................................................................................................... 2.7, 2.59.2, 3.43.6, 3.54.1, 3.54.2(iii), 3.54.2(v), 3.55.1, 3.60, 3.61, 3.62, 3.62.1, 3.67.1, 3.112, 3.158, 5.15, 5.51.3, 5.61, 6.12, 7.44.1, 8.19, 8.55.6, 8.57, 8.65.1(ii), 8.72, 8.79, 8.84, 8.153, 9.12.1, 9.12.10, 9.12.11 136 ......................................................................................... 2.59.3, 2.60, 4.6.1(iii), 4.6.2(ii), 4.7, 4.37, 4.38, 4.40, 4.42, 4.124, 4.174, 9.13.5 137 ......................................................................................... 2.59.4, 2.81, 4.6.1(iii), 4.6.2(ii), 4.7, 4.37, 4.38, 4.39, 4.42, 4.124, 4.174, 9.13.5, 9.48.1 139 ............................................................................................... 2.99, 2.101, 9.48.1 141 ................................................................................................ 2.58, 9.22, 9.47.1 142 ....................................................................................................................8.64 143 ................................................................................................ 2.58, 9.22, 9.47.1 144 ............................................................................................... 2.58, 2.100, 9.47.1 149–150 .................................................................................................... 2.58, 9.22 149 ....................................................................................................... 2.101, 9.48.1 153 .................................................................................................. 2.103.3, 2.104.3 156 ........................................................................................................3.67.2, 5.26, 5.58.1, 7.75, 8.100.2, 8.103.6 157–158 ......................................................................................... 2.58, 5.58.2, 9.22 157 ............................................................................................................. 9.11.2(i) 158 ................................................................................... 2.103.2, 2.104.2, 9.11.2(ii) 161 ................................................................................................ 2.58, 9.22, 9.47.1 lv

Table of Other International Materials ILC draft conclusions on identification of customary international law and commentaries (2016) ............................................................................ 2.5, 2.58 International and ad hoc courts/tribunals, statutes 1945 Statute of the International Court of Justice (ICJ) (https://treaties.un.org/) ............................................................................ 2.5, 2.106 1979 Statute of the IACtHR (http://www.corteidh.or.cr/index.php/ en/about-us/estatuto) ....................................................................................... 2.148 Art. 1 .............................................................................................................. 2.148 Art. 2 .............................................................................................................. 2.148 Art. 4(2)(b) ........................................................................................................5.34 1993 Statute of the International Criminal Tribunal for Yugoslavia (ICTY) (UNSCR 827 (1993)) ............................................................................ 2.135 Art. 3 ................................................................................................................3.75 Art. 4(2) ............................................................................................................3.80 Art. 4(f) ........................................................................................................ 8.105.2 Art. 5(g) ......................................................................................................... 5.30.1 Art. 5(i) .......................................................................................................... 5.31.3 1994 Statute of the International Criminal Tribunal for Rwanda (ICTR) (UNSCR 955 (1994)) (amended by UNSCR 1717) (2006)........................1.40, 2.134, 5.23, 7.3 Art. 1 .............................................................................................................. 2.134 Art. 2(2) ............................................................................................................3.80 Art. 2(2)(b) ........................................................................................................5.34 Art. 3(g) ......................................................................................................... 5.30.1 Art. 3(i) .......................................................................................................... 5.31.3 Art. 8 .............................................................................................................. 2.134 1998 Statute of the ACtHR (OAU Doc LEG/ MIN/AFCHPR/PROT.1 rev.2) .............. 2.144 Statute of the International Criminal Court (ICC) (Rome Statue): see the Table of Treaties 2002 Statute of the Special Court for Sierra Leone (SCSL) (annexed to the UN–Sierra Leone Agreement on the Establishment of the SCSL (2178 UNTS 138) (UNSCR 1315 (2000))) ............................................................ 1.73, 2.136, 4.63–4.64 Art. 2 .......................................................................................... 3.74, 5.19.3, 5.58.1 Art. 3(f) ........................................................................................................ 8.105.2 Art. 4 ................................................................................................... 4.64, 8.103.6 Art. 4(b) ...................................................................................................... 8.103.2, 8.103.6, 8.104.1 Art. 4(c) ............................................................................................................4.64 Art. 5 ................................................................................................................1.74 2004 Law on the Establishment of the ECCC for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (ECCC ‘Statute’) (https://www.eccc.gov.kh/sites/default/files/legal-documents/KR_Law_as_ amended_27_Oct_2004_Eng.pdf) .................................................................. 2.137.2 lvi

Table of Other International Materials 2007 Statute of the Special Tribunal for Lebanon (STL) (S/RES/1757 (2007)) ....... 2.137.2 2013 Statute of the Extraordinary African Chambers (EAC) (https://www.hrw.org/ news/2013/09/02/statute-extraordinary-african-chambers), Art. 3................... 2.137.1 Military manuals Lieber Code (1863) (Art. 19) ........................................................................... 3.37, 3.60 Manual of the Law of Armed Conflict (UK) ............................................................3.22 Non-state armed groups, agreements with El Salvador–FMNL (San José Agreement on Human Rights) (1990) .........................2.95 Philippines–Moro Islamic Liberation Front (MILF) (2009) .................................... 7.17.1 Sudan–Sudan People’s Liberation Movement (SPLM) (2002) ................................. 7.17.1 OAS Resolution on Children in Armed Conflict (2000) (AG/RES. 1709 (XXX-O/00)) .........................................................................................1.67.2, 2.66 Office of the Special Representative of the Secretary-General for Children and Armed Conflict, Working Papers (WP) and reports ‘Children and Justice During and in the Aftermath of Armed Conflict’ (WP 3 (2011)) ..................................................................................... 1.111, 4.128.1 ‘Children, Not Soldiers’ (2014) ................................................................................1.59 ‘Field Manual: Monitoring and Reporting Mechanism (MRM) on Grave Violations Against Children in situations of Armed Conflict’ (2014) ..... 3.3, 5.89, 8.9 Guidance Note on UNSCR 1998: ‘Protect Schools + Hospitals’’ (2014) ..................7.8.3, 7.35, 7.53, 7.54, 7.78, 7.105 Guidelines for Integrating Gender-Based Violence Interventions in Humanitarian Action (IASC, 2015) ............................................................. 5.21.1 Secretary-General’s Annual Reports 2009 ................................................................................................................ 2.104 2014–17 .............................................................................................................. 3.4 2016 ..................................................................................................... 7.80, 7.109.2 2017 ............................................................................................ 7.72, 7.81, 7.111.1, 7.130, 7.135.1 ‘Security Council Engagement on the Protection of Children in Armed Conflict: Progress Achieved and the Way Forward’ (2012) ................................. 3.136 ‘The Six Grave Violations Against Children During Armed Conflict: The Legal Foundation’ (WP1 (2013)) ............................................... 1.60.7, 7.2, 7.9.1 Strategic Review of the Machine Report (2007) ........................................................1.77 Principles and Guidelines ‘A World Fit for Children’ (UNGA Res. S-27/2) ................................................... 1.67.10

lvii

Table of Other International Materials Cape Town Principles and Best Practice on the Prevention of Recruitment of Children into the Armed Forces and Demobilization and Social Reintegration of Child Soldiers in Africa (1997) ............................. 1.67.7, 2.63, 2.65 Child Protection Strategy Reference Document (May 2008) (UNICEF) ...................... 3.7 Child Protection – Thematic Area Guide for: Guidelines for Integrating Gender-Based Violence Interventions in Humanitarian Action (IASC, 2015)..... 5.21.1 Deeds of Commitment (Geneva Call) ..................................................... 7.83, 9.46, 9.49 No 1 (Total Ban on Anti-Personnel Mines and Cooperation in Mine Action) (launched 2000) ......................................................................................... 5.92.2 No 2 (Protection of Children from the Effects of Armed Conflict) (launched 2010) .............................................................................. 1.67.4, 1.675, 2.104.1, 5.92.1 No 3 (Prohibition of Sexual Violence in Situations of Armed Conflict and the Elimination of Gender Discrimination) (launched 2012)................. 5.92.2 Ethical and safety recommendations for researching, documenting and monitoring sexual violence in emergencies (WHO, 2007) .............................5.90 EU Guidelines on Children and Armed Conflict (updated 2015) ...................1.67.2, 2.67, 5.42.1, 5.100, 6.42.1 General Guidelines Regarding the Form and Content of Initial Reports to be Submitted by States Parties under Art 44, Paragraph 1(a), of the Convention (30 October 1991) (CRC) UN Doc CRC/C/5...........................2.37 Guidelines for Investigating Deaths in Custody (2013) (ICRC)................................ 2.105 Guiding Principles on Business and Human Rights: Implementing the ‘Protect, Respect, Remedy’ Framework (16 June 2011) (OHCHR) ............ 1.67.10 Guiding Principles of Humanitarian Assistance (UNGA Res 46/182) .............8.32, 8.36.4 Guiding Principles on Internal Displacement (1998) (OCHA) ............................ 1.67.10, 8.40n84, 8.86, 8.134.4 Humanitarian Access in Situations of Armed Conflict: Handbook on the International Normative Framework, Version 2 (2014) (Swiss FDFA) ........ 8.7, 8.36.1, 8.48.4, 8.88.1, 8.89.5 Humanitarian Access in Situations of Armed Conflict: Practitioners’ Manual, Version 2 (2014) (Swiss FDFA, ICRC, OCHA and CDI) ................................... 8.36.1 Humanitarian Assistance (Institute of International Law, 2003) ........................ 8.8, 8.40 Humanitarian Charter and Minimum Standards in Disaster Response (2011) (Sphere Project) ............................................................................................ 1.67.10 Implementation Handbook for the Convention on the Rights of the Child (3rd edn, 2007) (UNICEF) .......................................................................2.37, 6.21.1 Integrated Disarmament, Demobilisation and Reintegration Standards (2006) (UN Inter-Agency Working Group on Disarmament, Demobilization and Reintegration) ........................................................................................ 1.67.10 Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law (2009) (ICRC) .........................................3.22, 3.26.1, 3.26.2 Minimum Standards for Child Protection in Humanitarian Action (CPWG, 2012) ..................................................................................... 5.21.2, 8.36.1 lviii

Table of Other International Materials Minimum Standards for Education in Emergencies, Chronic Crises, and Early Reconstruction (2004) (INEE) ............................................................................2.64 Minnesota Protocol ............................................................................................. 6.42.2 Monitoring and Reporting Mechanism (MRM) Guidelines and field manual ....................................................................... 1.60.6–1.60.8, 2.123, 3.131–3.142, 3.152–3.153, 3.156.2, 3.159, 4.139–4.143, 4.167–4.170, 5.89, 6.3, 6.7–6.8, 6.13–6.14, 6.21.1, 6.27.1, 6.38, 6.56, 7.8.6.7.129, 8.1.34, 8.9, 8.22, 8.132–8.133, 9.12.7, 9.38, 9.46, 9.48.1 Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (2007).................................................. 1.67.8, 2.65, 4.128.1 Policy on Accountability for Conduct and Discipline in Field Mission (1 August 2015) (UN) .........................................................................................5.21 Policy on Children (ICC Office of the Prosecutor)............................................... 1.67.10 Policy Paper on Sexual and Gender-Based Crimes (ICC OTP) (2014) .......................5.29, 5.33, 5.95, 5.102.2 Protecting Education in Insecurity and Armed Conflict: An International Law Handbook (BIICL) ........................................................................... 7.10, 7.12, 7.34.5, 7.44.5, 7.101, 7.111.3, 7.116, 7.135 Protecting Health Care: Key Recommendations (2016) (ICRC) .............................. 7.82.2 Provisional Guidance Note on the Implementation of Security Council Resolution 1960 (2010) ....................................................................... 5.90.2 Safe Schools Declaration and Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict (2015) ................... 1.67.9, 7.135.1, 7.135.2, 7.140.2 Sexual and Gender-Based Violence against Refugees, Returnees, and Internally Displaced Persons: Guidelines for Prevention and Response (UNHCR) (May 2003) .............................................................................................5.14.5, 5.15 Special measures for protection from sexual exploitation and sexual abuse (UN Secretary-General) (9 October 2003) ...........................................................5.21 Vancouver Principles on Peacekeeping and the Prevention of the Recruitment and Use of Child Soldiers (2017) ................................................. 2.65, 4.128.1, 4.141 UNGA Resolutions in date/number order 217A (III) (Universal Declaration of Human Rights): see Table of Treaties 1386 (XIV) (Declaration of the Rights of the Child): see Declarations 2675 (XXV) (Basic principles for the protection of civilian populations in armed conflicts) .......................................................................................... 7.34.5 3318 (XXIX) (Protection of Women and Children in Emergency and Armed Conflict) ...................................................................................... 1.33.4, 2.52, 3.40.1, 8.134.1 31/169 (International Year of the Child) ............................................................... 1.33.6

lix

Table of Other International Materials 44/25 (Convention on the Rights of the Child) .........................................................1.34 46/182 (Strengthening of the coordination of UN humanitarian emergency assistance) .............................................................................8.32, 8.36.4 48/104 (Declaration on the Elimination of Violence against Women) ..................... 5.14.3 48/157 (Protection of children affected by armed conflicts) .......................................1.43 51/45 (International agreement to ban anti-personnel landmines) .......................... 1.67.3 51/77 (Rights of the Child (Machel Report)) ................................................... 1.58, 1.61 58/114 (Strengthening of the coordination of UN emergency humanitarian assistance) ......................................................................................... 8.36.4, 8.134.3 58/156 (The girl child) .............................................................................................6.40 60/141 (The girl child) .............................................................................................6.40 61/146 (Rights of the Child) ....................................................................................6.40 62/126 (Policies and programmes involving youth: youth in the global economy – promoting youth participation in social and economic development) ..................6.40 62/140 (The girl child) .............................................................................................6.40 62/141 (Rights of the Child) ....................................................................................6.40 64/90 (Right to education in emergency situations) ................................................ 7.128 64/121 (Observer status for the International Humanitarian Fact-Finding Commission in the General Assembly) .......................................................... 7.140.2 66/140 (The girl child) .......................................................................................... 5.82.2 66/141 (Rights of the child) .................................................................................. 5.82.3 67/87 (Strengthening of the coordination of UN emergency humanitarian assistance) .................................................................................................... 8.134.4 70/104 (Safety and security of humanitarian personnel and protection of UN personnel).......................................................................................... 8.134.5 70/105 (Participation of ‘White Helmets’ in UN activities in the field of humanitarian relief, rehabilitation and technical cooperation for development)........................................................................................... 8.134.5 70/106 (Strengthening of the coordination of UN emergency humanitarian assistance)............................................................................... 8.134.5 S-27/2 (‘A World Fit for Children’) ...................................................................... 1.67.10 UNSC Presidential Statements S/PRST/1998/18 (29 June 1998).............................................................................. 3.124 S/PRST/2002/12 (7 May 2002) ............................................................................... 3.124 S/PRST/2004/40 (28 October 2004) ....................................................................... 5.89.3 S/PRST/2006/6 (22 March 2006) .................................................................. 3.125, 3.126 S/PRST/2006/33 (24 July 2006) .............................................................................. 3.124 S/PRST/2006/48 (28 November 2006) ..................................................................... 3.124 S/PRST/2008/6 (12 February 2008) ......................................................................... 3.124 S/PRST/2008/28 (17 July 2008) .............................................................................. 3.124 S/PRST/2009/9 (29 April 2009) ....................................................... 3.124, 3.125, 7.127.1 S/PRST/2010/10 (16 June 2010)................................................................. 3.124, 8.131.4 S/PRST/2011/21 (14 November 2011) ..................................................................... 3.125 S/PRST/2012/22 (19 October 2012) ........................................................................ 3.125 lx

Table of Other International Materials S/PRST/2012/23 (31 October 2012) ........................................................................ 3.124 S/PRST/2013/7 (6 June 2013) ................................................................................. 3.125 S/PRST/2013/8 (17 June 2013) .............................................................. 2.7, 3.124, 3.125 S/PRST/2015/25 (16 December 2015) ........................................................................ 2.7 S/PRST/2017/14 (9 August 2017) ............................................................ 8.116.5, 8.131.3 S/PRST/2017/21 (31 October 2017) ..................................................................... 7.127.1 UNSC Resolutions in date/number order 688 (1991) (Iraq) .................................................................................................. 7.34.5 758 (1992) (Bosnia and Herzegovina) .................................................................... 8.75.2 787 (1992) (Bosnia and Herzogovina).................................................................. 8.131.1 794 (1992) (Somalia) ............................................................................... 8.105.2, 8.122, 8.123.2, 8.131.1, 8.131.8 819 (1993) (Bosnia and Herzegovina) .................................................................... 7.34.5 824 (1993) (Bosnia and Herzegovina) .................................................................... 7.34.5 827 (1993) (ICTY): see International and ad hoc courts/tribunals 874 (1993) (Armenia-Azerbaijan).......................................................................... 8.75.2 955 (1994) (ICTR): see International and ad hoc courts/tribunals, statutes in date order 1193 (1998) (Afghanistan) .................................................................................... 8.75.2 1261 (1999) (Children and armed conflict) ................................................. 1.60.1, 2.118, 3.124, 4.133.1, 5.1, 8.131.2, 8.131.9 1296 (2000) (Protection of civilians in armed conflict) ........................................... 8.75.2 1314 (2000) (Children and armed conflict) ........................................................... 1.60.2, 2.121, 3.124, 4.133.2 1315 (2000) (Special Court for Sierra Leone (SCLT)): see International and ad hoc courts/tribunals, statutes 1325 (2000) (Women and peace and security) .......................................... 5.881(i), 5.89.3 1373 (2001) (Threats to international peace and security caused by terrorist acts) ............................................................................................. 8.77.3 1379 (2001) (Children and armed conflict) ........................................................... 1.60.3, 2.123.2, 3.124, 8.131.9 1386 (2001) (Afghanistan) ..................................................................................... 2.121 1460 (2003) (Children and armed conflict) .................................................. 1.60.4, 3.124 1493 (2003) (DRC) ................................................................................................ 4.135 1533 (2004) (DRC) ................................................................................................ 4.135 1539 (2004) (Children and armed conflict) ................................................ 1.60.5, 1.60.6, 3.124, 3.126, 4.133.3, 6.37.1, 8.133 1564 (2004) (Sudan) .............................................................................................. 3.123 1572 (2004) (Côte d’Ivoire) ................................................................................. 8.131.6 1591 (2005) (Sudan) ....................................................................... 3.128, 4.151, 8.131.6 1593 (2005) (Sudan) ....................................................................... 2.119, 4.141, 8.142.1

lxi

Table of Other International Materials 1612 (2005) (Children and armed conflict) ......................................... 1.59, 1.60.6, 2.123, 2.123.2, 3.124, 3.126, 4.139, 6.37.1, 8.131.4 1698 (2006) (DRC) ................................................................................................ 3.127 1717 (2006) (ICTR): see International and ad hoc courts/tribunals, statutes 1757 (2007) (Establishment of the STL) .............................................................. 2.137.2 1780 (2007) (Haiti) ................................................................................................ 3.125 1806 (2008) (Afghanistan) ..................................................................................... 3.125 1807 (2008) (DRC) ................................................................................................ 3.127 1820 (2008) (Women and peace and security) ........................................ 2.121, 5.88.1(ii), 5.90.1, 5.8811(ii) 1844 (2008) (Somalia)......................................................................................... 8.131.5 1857 (2008) (DRC) ............................................................................................... 4.136, 5.88.2(iii), 8.131.5 1868 (2009) (Afghanistan) ..................................................................................... 3.125 1882 (2009) (Children and armed conflict) .................................... 1.60.8, 2.123.3, 3.124, 3.126, 3.132, 3.133, 3.135, 4.33.4, 5.89, 5.89.2, 5.89.3 1888 (2009) (Women and peace and security) ....................................... 5.88.1(iii), 5.90.1 1916 (2010) (Somalia)..................................................................................... 8.131.7(ii) 1960 (2010) (Women and peace and security) .................................................. 5.88.1(iv), 5.88.2, 5.90.1, 5.90.2 1966 (2010) (International Residual Mechanism for Criminal Tribunals (MICT))........................................................................................... 2.135 1970 (2011) (Peace and security in Africa) .................................................... 2.119, 4.151 1974 (2011) (Afghanistan) ..................................................................................... 3.125 1975 (2011) (Côte d’Ivoire) ............................................................. 3.125, 3.128, 8.131.6 1996 (2011) (Sudan) .............................................................................................. 3.125 1998 (2011) (Children and armed conflict) .............................................. 1.60.9, 2.123.3, 3.124, 3.135, 7.1, 7.8.3, 7.35, 7.79.1, 7.127.1, 8.131.4 2002 (2011) (Somalia).................................................................... 3.127, 3.129.2, 6.17.2 2011 (2011) (Afghanistan) ..................................................................................... 3.125 2041 (2012) (Renewal of UNAMA’s mandate) ........................................................ 3.125 2053 (2012) (DRC). ............................................................................................... 3.125 2067 (2012) (Somalia)............................................................................................ 3.371 2068 (2012) (Children and armed conflict) ................................ 2.7, 3.124, 3.126, 8.131.5 2078 (2012) (DRC) ................................................................................................ 3.127 2093 (2013) (Somalia)........................................................................ 3.127, 3.137, 3.142 2093 (2013) (Somalia/AMISOM) ................................................... 3.142, 6.37.2, 8.131.5 2096 (2013) (Renewal of UNAMA’s mandate) ........................................................ 3.125 2102 (2013) (Somalia/UNSOM) ................................................................... 3.137, 3.142 2106 (2013) (Women and peace and security) ............................................. 5.58.1, 5.90.1 2124 (2013) (Somalia)............................................................................................ 3.138 2127 (2013) (CAR) ................................................................................................ 3.128

lxii

Table of Other International Materials 2139 (2014) (Middle East) ....................................................................... 1.103, 1.123.2, 7.127.1, 8.48.2, 8.131.1 2140 (2014) (Middle East/Yemen) ...........................................................................3.28, 8.131.3, 8.131.5 2143 (2014) (Children and armed conflict) .......................................... 2.83, 3.124, 3.126, 7.7.127.1, 7.37, 8.131.4 2145 (2014) (Afghanistan) .................................................................................. 7.127.1 2158 (2014) (Somalia/UNSOM) ............................................................................. 3.142 2164 (2014) (Mali).............................................................................................. 7.127.1 2165 (2014) (Middle East) ........................................................................ 1.60.9, 8.43.2, 8.104.6, 8.115.2, 8.123.2 2175 (2014) (Protection of civilians in armed conflict) ......................................... 8.105.2 2191 (2014) (Middle East) .................................................................................. 8.123.2 2206 (2015) (Sudan and South Sudan) ........................................................ 3.127, 5.88.2, 6.37.2, 7.79.2, 8.131.5 2211 (2015) (DRC) ................................................................................................ 4.134 2216 (2015) (Yemen) .............................................................................. 8.123.3, 8.131.5 2224 (2015) (Somalia)..................................................................................... 8.131.7(ii) 2225 (2015) (Children and armed conflict) ............................................ 1.60.9, 2.7, 2.83, 2.123.2, 3.124, 6.38, 7.127.1, 8.116.5, 8.131.2 2244 (2015) (Somalia)...................................................................................... 8.75.5(iv) 2253 (2015) (Threats to international peace and security caused by terrorist acts) ............................................................................................. 8.75.1 2258 (2015) (Syria) .................................................................................. 8.48.2, 8.123.2 2262 (2016) (CAR) ........................................................................3.128, 4.138, 5.88.2(i) 2286 (2016) (Protection of civilians in armed conflict) ............................................ 7.791 2293 (2016) (DRC) .................................................................................. 3.127, 3.129.2, 6.37.2, 7.79.2, 8.131.5 2317 (2016) (Somalia)............................................................................ 8.74.5(iv), 8.120 2332 (2016) (Syria) ............................................................................................. 8.123.2 2339 (2017) (CAR) ........................................................................ 3.128, 6.37.2, 8.131.5 2348 (2017) (DRC) ............................................................................................. 8.122.3 2353 (2017) (Sudan and South Sudan) ................................................................. 7.792.2 2364 (2017) (Mali).............................................................................. 5.89.3(iii), 8.122.3 2372 (2017) (Somalia)......................................................................................... 8.122.3 2374 (2017) (Mali).............................................................................................. 8.131.5 2401 (2018) (Middle East) ............................................................................8.14, 8.48.2

lxiii

lxiv

1 General Introduction ‘The only international language we understand is the cry of the child’.1

I. Introduction II. The Machel Report: Overview III. Time to Re-assess the Protection of Children  A. The Current Inquiry B. Overview of the Book C. The Need for the Inquiry IV. Children in Armed Conflict: 1923–1996 A. Historical Background and Pre-World War II Developments B. Post-World War II: A Renewed Focus C. Convention on the Rights of the Child D. Beyond the CRC V. The Impact of Armed Conflict on Children: The 1996 Machel Report A. Mitigating the Impact of Armed Conflict on Children B. Relevance and Adequacy of Existing Standards for the Protection of Children C. Accountability Mechanisms D. Reconstruction, Reconciliation and Conflict Prevention VI. Following in Machel’s Footsteps: Developments Since 1996 A. Secretary-General’s Special Representative for Children and Armed Conflict B. CRC and the OPAC: Increased but not Universal Ratification C. New Standards D. Enhanced Criminal Responsibility E. Revisiting the Machel Report VII. The Six Issues Considered in this Book A. Killing and Ill-Treatment of Children B. Recruitment and Use of Children C. Sexual Violence



1 Eglantyne

Jebb, Founder, Save the Children.

1

2 2 5 5 7 8 8 8 11 14 15 17 17 19 20 20 22 22 25 26 30 31 33 33 34 35

1.1–1.4  General Introduction D. Child Abduction E. Attacks on Hospitals and Schools F. Denial of Humanitarian Access and Assistance VIII. Conclusion and Summary

36 37 39 40

I. INTRODUCTION

1.1  We live in an era where a saturation of rolling news coverage and constant ­exposure to daily tragedies around the globe threatens to inure us to the human dimension of armed conflict. However, despite our diminished collective capacity to be shocked or moved, images of children2 in distress retain their potent power to evoke an emotional response and galvanise us into action. 1.2  Perhaps this explains why the world’s awareness of global conflict situations and their consequences for individuals is often framed through unforgettable images of children. From the widely-circulated images of Lizzie Van Zyl, a child victim of the Anglo-Boer War at the dawn of the twentieth century, images of the suffering of children have framed public awareness of, and opposition to, warfare.3 A generation ago, ­photojournalist Nick Ut’s image of a naked Phan Thi Kim Phuc – the ‘napalm girl’ fleeing a bombing along with other children – showed the human costs of the Vietnam War and forced American audiences to question the justification for that conflict. More recently, US President Donald Trump explained that, after seeing images of children killed and injured in the April 2017 chemical attack in Idlib, the sight of ‘innocent people, including women, small children and even beautiful little babies’ was so repulsive to him that ‘my attitude toward Syria and Assad has changed very much’.4 Tragically, armed conflict has an impact on children extending far beyond the conflict zones themselves: the image of the small, still, body of three-year-old Syrian refugee Alan Kurdi washed up on a T ­ urkish beach in September 2015 is an unforgettable reminder of the consequences of war. 1.3  Our emotional response, so justifiably provoked by the suffering and tragedy of our most vulnerable, provides that elusive factor – common ground – and, therefore, an opportunity for inspiring collective action for peace by returning to a basic and universal desire: to protect our children, and future generations, from the horrors of armed conflict. The situation is urgent – but there is room for hope. II.  THE MACHEL REPORT: OVERVIEW

1.4  In August 1996, the Secretary-General of the United Nations (UN) presented to the United Nations General Assembly (UNGA) the expert report ‘The Impact of Armed 2 ‘Children’ are generally defined as persons under the age of 18: see further Ch 2, para 2.71. 3 Emily Hobhouse, The Brunt of the War and Where it Fell (London, 1902). 4 Mark Landler, David E Sanger and Michael D Shear, ‘Trump’s View of Syria and Assad Altered After “Unacceptable” Chemical Attack’ The New York Times (New York, 5 April 2017) . All links to websites in this Chapter were accessed in June and July 2017.

2

The Machel Report: Overview  1.5–1.8 Conflict on Children’, by Mozambican politician and humanitarian advocate Graça Machel (the Machel Report).5 This ground-breaking effort represented more than two years of work by Machel and her team. Pursuant to UNGA Resolution 48/157 of 20 December 1993 the project was supported by the then-United Nations Centre for Human Rights, now the Office of the High Commissioner of Human Rights (OHCHR), the United Nations Children’s Fund (UNICEF), and the United Nations High Commissioner for Refugees (UNHCR). The Machel Report was the result of an international process involving wide-ranging consultation, including with experts in various fields, military personnel, representatives from government and civil society, and children. The recommendations in the report proposed a comprehensive agenda for action by states and the international community aimed at improving the protection, care and ­rehabilitation of children in situations of armed conflict. 1.5  More than 20 years later considerable progress has been made. The situation of ­children in armed conflict is firmly on the agenda worldwide. This is as a result of the collective drive that brought about the Machel Report and the motivation that it has helped to stimulate since then. Awareness of the issue has spread and frameworks have been established which enable the international community to monitor and report on related violations of international law. However, much remains to be done. Notwithstanding the ostensible legal and practical protections which exist for children, it is questionable, in light of the ongoing violations of their rights, whether they are adequately protected. 1.6  Before the Machel Report and since, dedicated advocates have helped promote the need to protect children in armed conflict. It appears that the collective good will and commitment of these individuals and organisations is being undermined by certain factors which combine to leave children that are caught up in armed conflict insufficiently protected by the rule of law. 1.7  The principal factor – perhaps evidencing the lack of political will – is the lack of compliance with and implementation of existing laws, including the lack of adequate and effective international adjudicative accountability mechanisms. However, improvements could also be made to the existing substance of international law protections. Thus: (i) existing legal protections are sometimes vague or ambiguous and could be clarified; (ii) existing legal protections are sometimes under-developed or absent and could be strengthened; and (iii) certain international law instruments would benefit from more widespread ratification (and, possibly, greater domestic implementation) in order to enhance the substance of the available protections as well as international accountability. 1.8  In addition to these specific factors, there are two systemic problems in relation to international humanitarian law (IHL) and international human rights law (IHRL); these problems do not apply to international criminal law (ICL). 1.8.1 The first problem is that the existing IHL and IHRL framework protecting children in armed conflict exists in multiple instruments as well as in customary international law (CIL). This means that it is challenging to identify and understand the 5 UNGA ‘Impact of Armed Conflict on Children, United Nations: Report of the expert of the SecretaryGeneral, Ms Graça Machel submitted pursuant to General Assembly resolution 48/157’ (26 August 1996) UN GAOR 51st Session UN Doc A/51/306/Add.1 (the Machel Report).

3

1.9  General Introduction relevant legal framework that is applicable in a given situation. This is likely to be particularly difficult for non-state armed groups and victims who are less likely to benefit from access to expert legal advice and representation than states. It is questionable whether any useful purpose is served by maintaining the scattered nature of the existing IHL and IHRL protections (and the distinctions on which they are based). This is especially so where there is overlap in the content of the relevant IHL and IHRL norms. That is why, as developed later in this book, we suggest that consideration is given to collecting, in one international instrument, the protections applicable to children in armed conflict and codifying relevant CIL. This would be a constructive legal improvement to the status quo. Consideration could also be given to consolidating certain IHL and IHRL norms, ie where there is consistent and overlapping legal content in a given IHL rule and IHRL rule then they could be brought together in one consolidated rule. We recognise, as developed in later Chapters, that there may not be adequate political will to support such a proposal to fruition but this is not something we have pre-judged, especially since (i) the debate generated by our proposal may provide renewed political focus and impetus to protecting children in armed conflict in other ways and (ii) our proposals are not time-sensitive. We are also aware that there may be reservations about whether the exercise of collecting, codifying and consolidating existing treaty and CIL protections risks a lowering of standards and consider this further in Chapter 9. 1.8.2  The scattered nature of the existing IHL and IHRL protections for children in armed conflict (and the fact that they do not exist in one international instrument) contributes to the second problem: there is no specific, civil, international adjudicative body relating to children and armed conflict. This makes it harder for victims to secure accountability on the international plane and requires them to go through the process of trying to identify if any of the existing international adjudicative bodies might be able to receive and determine their complaint. It also means that domestic implementation and enforcement of the relevant IHL and IHRL is likely to be less effective and developed than it might otherwise be. As we noted above, it is this – the lack of international adjudicative accountability – that is a key weakness of the existing legal framework. Our suggestion of one instrument is designed to address that weakness. We have already noted that there are other ways of enhancing the effectiveness of existing international mechanisms (see above, paragraph 1.7), but we consider that a single instrument with a single, civil international adjudicative body is likely to be an important part of holistic legal improvement. Of course, the law cannot operate in isolation and consideration will also need to be given to other issues – including those of a political nature – as we note in Chapter 9. 1.9  The lack of adequate laws was noted in 1939, when a convention on the position of children in armed conflict was first drafted. Another draft Convention, similarly seeking to protect children in armed conflict, was produced in 1946: see paragraphs 1.25 and 1.28 below. Neither convention materialised but the Geneva Conventions were adopted a few years later. However, the Fourth Geneva Convention (GCIV, see paragraph 1.30) did not recognise the particular needs of children and left a gap in the law. Although important legal instruments have been promulgated since then (notably the UN Convention on the Rights of the Child (CRC, see paragraphs 1.34ff)), none has sought, comprehensively, to 4

Time to Re-Assess the Protection of Children  1.10–1.12 address the position of children in armed conflict. As noted above, there is, therefore, no single instrument that sets out the applicable IHL and IHRL framework and there is no single, civil adjudicative body with the jurisdiction to adjudicate, develop and monitor accountability in this area. Thus, the position of children in armed conflict has not been directly or comprehensively considered in a single international instrument, governed by a single adjudicative accountability and oversight mechanism. We consider that this is likely to be one of the key reasons why, despite the progress there has been in the 20 years since the Machel Report, the present system still fails to provide adequate and effective protection. Consideration should, therefore, be given – now, again – to whether more can be done, practically and effectively, to clarify existing legal protections that are vague or ambiguous; fill substantive gaps and encourage more widespread ratification of the relevant international instruments. In addition, consideration should be given to whether steps (such as our suggestion of one instrument) might be taken to make the applicable (IHL and IHRL) legal framework easier to identify and to more effectively provide for enforcement and accountability. III.  TIME TO RE-ASSESS THE PROTECTION OF CHILDREN

A.  The Current Inquiry 1.10  In April 2017 former UK Prime Minister Gordon Brown announced a new Inquiry on Protecting Children in Conflict. Co-sponsored by international charities, Save the Children and Theirworld, the Inquiry was tasked with considering existing international laws and accountability mechanisms, and with considering steps that could be taken to strengthen the current framework for the protection of children. 1.11  This book has been written, as a report, as part of that Inquiry. It reviews the position of children in conflict in international law. It describes relevant norms under IHL, ICL and IHRL by reference to the six key areas of concern identified by the UN, as well as the accountability mechanisms by which these norms may be enforced or otherwise implemented and monitored, including through courts, ad hoc tribunals, UN treaty bodies and reporting structures. It analyses the adequacy of these norms and accountability mechanisms. Finally, the book makes a number of recommendations and suggestions for reform. 1.12  This book has not, therefore, been prepared with a specific outcome in mind. The purpose of it was to consider, objectively and comprehensively, whether the rule of law, and, in particular, international law, can do more to protect children caught up in armed conflict.6 Although, as lawyers, we have focussed on the law we recognise that protecting children in armed conflict requires multi-discplinary consideration and that the law is simply one of several strands. The conclusion of this book, as summarised and explained

6 Gordon Brown and Shaheed Fatima QC, ‘Fighting to Protect Children in Conflict’ (Just Security, 3 May 2017) . The focus of this book is on ‘children’ as a category, but many children may be vulnerable or suffer from ill-treatment or discrimination because they are also, eg, ethnic minorities, survivors of sexual violence etc.

5

1.12  General Introduction in Chapter 9, is that the law can, in a number of relevant respects, do more to protect children. In summary, 1.12.1  We identify certain existing legal protections that are vague or ambiguous. We suggest that these are clarified. See the summary in Chapter 9. 1.12.2  We identify certain areas where there are arguably gaps in protections. We suggest that the law is developed to fill these gaps. See the summary in Chapter 9. 1.12.3  We identify certain international law instruments which contain important provisions (relating to both the substance of protections and also to accountability) but which are not universally or adequately ratified. We suggest that greater efforts are made to secure more widespread ratification of these instruments. Thus, API, APII, OPAC and OPSC could benefit from further ratification to improve the commitment to the substantive protections therein (see paragraphs 1.33.5 and 1.36 below). In relation to accountability: those states that have not yet ratified the third Optional Protocol to the CRC (OP3) on a communications procedure – by which reports of violations of the CRC or the other Optional Protocols may be submitted by victims or advocates (see paragraph 1.36 below) – should be encouraged to do so and those states that have not yet ratified the Rome Statute and accepted the jurisdiction of the International Criminal Court (ICC, see paragraph 1.71 below) should be encouraged to do so. The Special Representative for Children and Armed Conflict could assist in raising awareness and securing greater ratification of such instruments. See further Chapter 9. 1.12.4  Finally, in relation to the scattered IHL and IHRL framework and the lack of a single, civil, international adjudicative mechanism: we suggest that consideration is given to one instrument, collecting together and codifying (re CIL) the applicable (and presently scattered) IHL and IHRL law regarding the protection of children in conflict. Having one instrument, instead of the multiple existing instruments as well as CIL, will make it easier to identify the applicable law and this, in turn, will make it easier to disseminate and explain the law, including to non-state armed groups and victims; to better secure and monitor domestic implementation and enforce it. Collecting and codifying the law in one instrument also provides an opportunity to consider consolidating the law and to clarify and develop the law (should the political will exist to do so). We do not anticipate that the instrument would need to include ICL since that is already adequately captured in the Rome Statute (see paragraph 1.71 below), although we suggest some potential refinements and developments to the existing ICL. 1.12.5  One potential form for this instrument would be as an Optional Protocol to the CRC. This form would enable the existence, and expertise, of the CRC Committee to be used and it would avoid the need to set up and finance a wholly new institution, together with the political and practical difficulties that might entail (see paragraph 1.38 below). As we explain below, the genesis of the Machel Report and the contemporary focus on the position of children in armed conflict lies in the CRC Committee’s important work (see paragraphs 1.41–1.44 below). Given this expertise it would be fitting to give the CRC Committee the competence to hear complaints and conduct inquiries regarding violations of the instrument and to monitor compliance and implementation. It is likely to be necessary, however, for the CRC Committee’s existing expertise to be expanded and amplified so that, eg, it includes individuals with 6

Time to Re-Assess the Protection of Children  1.13 specific knowledge and experience of IHL. The CRC Committee could be assisted in executing its amplified mandate by the Special Representative for Children and Armed Conflict. 1.12.6  If there is to be a new instrument then it should bind states and non-state armed groups. The former should be encouraged to ratify it and the latter should be encouraged, through the use of an identified process, to pledge to uphold the standards in it. Both states and non-state armed groups should be encouraged to accept the related competence of the CRC Committee. States should also be required to implement the relevant parts of the instrument into their domestic laws and to enable the enforcement of those norms by domestic courts. 1.12.7  We do not underestimate the complexity of the conceptual and practical legal problems that would have to be addressed in drafting and implementing such an instrument including, eg, the need to address the different objectives of the competing (IHL and IHRL) legal regimes, and the need to combine state responsibility with the responsibility of non-state armed groups. However, these are not insurmountable legal obstacles and there is already a precedent – in the form of the CRC – of a single international instrument that addresses both IHL and IHRL in the context of ­children’s rights. 1.12.8  Indeed, the principal obstacle regarding our proposal for one instrument is likely to be political in nature, rather than legal. Again, we do not underestimate the complexity of the problems that may arise but it may be that, even in the present international political climate, there is enough consensus and political will regarding the compelling need to protect children in conflict so as to drive reform in this area. In the event that our proposal proves to be unachievable – whether because it requires the sort of international political consensus and will that is unachievable in the near future or otherwise – we refer back to our other suggestions as noted above, paragraphs 1.12.1–1.12.3. B.  Overview of the Book 1.13  This book considers laws and mechanisms by reference to the ‘six grave violations’ identified by the UN and which provide the focus for the work of the Special Representative for Children and Armed Conflict (discussed further, paragraph 1.60.7 et seq below). Given this UN recognition and the international consensus on the importance of these issues we consider that they provide a useful starting point for a discussion of c­ hildren’s rights in conflict and we have structured our review of the law and accountability ­mechanisms accordingly. This means that there are certain important areas that we have not considered (for example, international law protections for refugees and displaced persons): see further Chapter 2, paragraph 2.3.1. We consider them in the following order: 1.13.1  Chapter 3 – Killing and Ill-Treatment of Children; 1.13.2  Chapter 4 – Recruitment and Use of Children; 1.13.3  Chapter 5 – Sexual Violence;

7

1.14–1.18  General Introduction 1.13.4  Chapter 6 – Child Abduction; 1.13.5  Chapter 7 – Attacks on Hospitals and Schools; and 1.13.6  Chapter 8 – Denial of Humanitarian Access and Assistance. 1.14  Our conclusions are set out in Chapter 9. C.  The Need for the Inquiry 1.15  The justification for the Inquiry, and this book, may seem self-evident: as noted above, paragraph 1.1, there may be few matters more compelling than the desire to protect children from armed conflict. However, we do not take for granted our premise: that this compelling issue requires re-assessment. 1.16  That premise is based on the fact that, despite the significant developments noted above, including the Machel Report, the situation of children in armed conflict is desperate. Children living in fragile states and conflict-affected countries face a plethora of elevated risks. According to the World Development Report 2011, they are more than twice as likely to be undernourished as children in low- and middle-income countries, and twice as likely to die before age five.7 After more than six years of war UNICEF has estimated that ‘8.4 million Syrian children, inside and outside the country, are in need of humanitarian aid’, with 1.75 million children no longer in school and some 2.5 million living as refugees or in need of safety.8 The conflict in Iraq has left more than three million people displaced, including at least 1.4 million children.9 The United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA) has estimated that by 2015, at least 60 million people worldwide had fled their homes because of conflict and violence. Half of them are children.10 1.17  It is in light of such facts that we have embarked upon a re-assessment of what the rule of law can do to help children in armed conflict.

IV.  CHILDREN IN ARMED CONFLICT: 1923–1996

A.  Historical Background and Pre-World War II Developments 1.18  For as long as there has been war, there have been children caught up in it. Many of the stories of children in armed conflict in history glorify that involvement – the Biblical example of a young David defeating Goliath and going on to achieve military success

7 World Bank, ‘World Development Report: Conflict, Security, and Development’ (World Bank, Washington DC 2011) 62. 8 UNICEF USA, ‘Syrian Children Under Siege’ (UNICEF USA) . 9 UNICEF, ‘Humanitarian Action for Children 2017: Overview’ (UNICEF, New York, January 2017) 7. 10 UNOCHA, ‘Global Humanitarian Overview 2016’ (UNOCHA, New York, December 2015) 3.

8

Children in Armed Conflict: 1923–1996  1.19–1.22 in King Saul’s army;11 the peasant-warrior Joan of Arc;12 or even in more recent times the countless stories of young men misrepresenting their age in order to join up and serve in World War I or World War II.13 1.19  The reality for children in armed conflict has been very different. A more representative example may be that of the notorious ‘Children’s Crusade’ in 1212, in which (according to tradition) thousands of children were recruited to wage war on ‘infidels’ in the Holy Land, in the belief that divine intervention would turn them into an elite fighting force, only to die along the way (from starvation, exhaustion or shipwreck) or to be sold into slavery.14 Centuries later, ‘powder monkeys’ were used in military vessels – ­ typically young boys whose work shuttling gunpowder between a ship’s hold and the artillery decks put them in some of the most dangerous positions on the ship.15 1.20  Although children have always been affected by armed conflict, since the first half of the twentieth century and the development of new technologies of modern warfare, for example aerial bombardment, there has been a drastic increase in the impact of armed conflict not just on combatants, but on entire communities. Children have been caught up in, and targeted by, violence that now stretches far beyond battle lines. 1.21  In addition to changes in warfare, the twentieth century marked increasing recognition of the vulnerability of children. At an international level, a number of instruments were passed aimed at improving conditions for children, including the International Convention for the Suppression of the White Slave Traffic 1910 (which addressed the trafficking of (mostly European) women and girls); the International Labour Organisation (ILO) Convention Fixing the Minimum Age For Admission of Children to Industrial Employment 1919; and the ILO Convention Concerning the Night Work of Young Persons Employed in Industry 1919. There were also innovations at the national level, as early welfare states made special provisions for the education and health of children. 1.22  After witnessing the horrors of World War I, British social reformer Eglantyne Jebb and her sister Dorothy Buxton recognised that children, and in particular, children affected by war, required special protections. In 1919 they founded the Save the Children Fund, and in 1920, supported and partially funded by the International Committee of

11 1 Samuel 17–18. For an analysis of the Biblical story relevant to the present subject, see David A Bosworth, ‘David, Jether, and Child Soldiers’ (2011) 36(2) Journal for the Study of the Old Testament 185–97. 12 The moral contradictions in the Joan of Arc story are evident in the title of the 2005 documentary Joan of Arc: Child of War, Soldier of God (Dir Pamela Mason Wagner, International Production Company, 2005) (Film). For a general biography of Joan of Arc, see, eg, Régine Pernoud and Marie-Véronique Clin, Joan of Arc: Her Story (Jeremy duQuesnay Adams tr, Jeremy duQuesnay Adams and Bonnie Wheeler ed, rev edn, London, St Martin’s Griffin, 1999). 13 See, eg, Dan Black and John Boileau, Old Enough to Fight: Canada’s Boy Soldiers in the First World War (Toronto, James Lorimer & Company, 2013); Harald Stutte and Günter Lucks, Hitlers Vergessene Kinderarmee (Hitler’s Forgotten Child Army) (Rowohlt Taschenbuch Verlag, Reinbek, 2014); Boy Soldiers of World War 2 (Dir Craig Collinson, Peachtree Films, 2014) (Film). 14 Among the most famous versions is that of Alberic of Troisfontaines – though modern historians have cast doubt on the traditional account: see, eg, Peter Raedts, ‘The Children’s Crusade of 1212’ (1977) 3(4) Journal of Medieval History 279–323. 15 Spencer C Tucker (ed), The Encyclopedia of the Wars of the Early American Republic, 1783–1812: A Political, Social, and Military History (Santa Barbara, ABC-CLIO, 2014) 463.

9

1.23–1.25  General Introduction the Red Cross (ICRC), Jebb and Buxton associated the fund with the International Save the Children Union.16 1.23  Increasingly, children were recognised as capable of possessing their own independent rights.17 The first international instrument on children’s rights, the Declaration on Children’s Rights, drafted by Eglantyne Jebb, was published by the International Save the Children Union on 23 February 1923. It recognised and affirmed the existence of rights specific to children and stated that adults had certain obligations and responsibilities in relation to children. The short text made five powerful demands: I. The child must be given the means requisite for its normal development, both materially and spiritually. II. The child that is hungry must be fed, the child that is sick must be nurtured, the child that is backward must be helped, the delinquent child must be reclaimed, and the orphan and the waif must be sheltered and succoured. III. The child must be the first to receive relief in times of distress. IV. The child must be put in a position to earn a livelihood, and must be protected against every form of exploitation. V. The child must be brought up in the consciousness that its talents must be devoted to the service of its fellow men.

1.24  The vision of rights that the Declaration articulated was based on the position of the young both as future workers and citizens, as well as in relation to their existing status as children. In particular, the Declaration affirmed the value of children to the wider international community: a child who received adequate care and protection could grow up to serve his or her ‘fellow men’. The text was approved by the League of Nations General Assembly on 26 November 1924 as the ‘World Child Welfare Charter’, making it the first human rights document approved by an inter-governmental institution.18 The League of Nations General Assembly approved the Declaration again in 1934, with signatories vouching to ensure that the provisions were incorporated into their domestic laws. 1.25  In 1938, the XVIth International Red Cross Conference in London asked the International Committee of the Red Cross to examine, in collaboration with the Save the Children International Union, the possibility of providing protection under a convention for children caught up in war. The XVIth International Red Cross Conference recognised that a second World War would pose an even greater threat to children due to shifting military technologies and the nature of ‘total war’, including aerial bombardment. The two organisations set up a joint committee which, in 1939, published a draft Convention for the Protection of Children in Case of Armed Conflict. However, the outbreak of hostilities in Europe in the same year ended work on the project in its nascent stages. We have located the draft Convention; our English language version is at Annex I. It sought to protect children aged 14 and under and, in particular, provided for ‘places for safety’: secured locations to be used for children. The draft Convention provided that parties to 16 Humanium, ‘Geneva Declaration of the Rights of the Child, 1924’ (Humanium) . 17 Emily Baughan and Juliano Fiori. ‘Save the Children, the Humanitarian Project, and the Politics of Solidarity: Reviving Dorothy Buxton’s Vision’ Disasters 39, No. 2 (2015): 129–145. 18 Geneva Declaration of the Rights of the Child (adopted 26 November 1924) .

10

Children in Armed Conflict: 1923–1996  1.26–1.28 the conflict would be obliged to notify each other of these secured locations and, once accepted, these would be ‘respected and protected in any circumstances’. An independent commission was to have control and oversight of the secured locations and competence to open an investigation into any alleged violation of the draft Convention. The authors of the draft Convention remained optimistic about the possibility of its influence right up until the start of World War II in August 1939. Although they failed to secure international agreement on the protection of children, their insights and planning underpinned the mass evacuation of children from major cities across Europe during that conflict. B.  Post-World War II: A Renewed Focus 1.26  In the aftermath of World War II, the attention of the international ­community was once again drawn to the impact of armed conflict on children. The harrowing experiences in that conflict – including death, mass migrations, parents entrusting their children to friends, relatives or even strangers overseas – tore families apart and often left ­children without any way of being identified or reunited with their loved ones. The need for ­additional protections for children was clear. 1.27  Founded in 1943 as the war still raged, the United Nations Relief and Rehabilitation Administration (UNRRA) recognised the centrality of children to reconstruction in Europe. It viewed healthy children not only as the potential economic citizens of the future, but underlined the importance of children’s emotional development for the future stability of their communities. UNRRA afforded special protections to child victims of World War II, including increased rations, medical care, play and education within displaced persons camps, as well as mass family reunification programmes.19 1.28  In 1946, the Bolivian Red Cross submitted a draft Convention for the Protection of Children in the Event of International Conflict or Civil War to the Preliminary Conference of National Red Cross Societies for the study of the Geneva Conventions.20 We have located the draft Convention; our English language version is at Annex II. It declared that the protection of minors under 14 years of age was a ‘superior duty’ from which ‘civilised peoples’ could not derogate, in particular when faced with situations resulting from war.21 It envisaged a central role for the ICRC in protecting children in conflict situations and stated that during such situations children would have a preferential right to government assistance. It emphasised the right of children to lodging, clothing, food, transportation and protection from bombings, as well as the right of children not to be separated from their siblings or their mothers. In addition, it confirmed the right of children to medical care, education and assistance from the government of the territory in which the child was located.

19 Tara Zahra, The Lost Children: Reconstructing Europe’s Families after World War II (Harvard UP, Cambridge MA, 2011). 20 Jean S Pictet (ed), ‘Commentary: IV Geneva Convention Relative to the Protection of Civillian Persons in Times of War 1949’ (Ronald Griffin and CW Dumbleton tr, Geneva, ICRC, 1958) 185 (1958 ICRC Commentary on GCIV). Available at . 21 Art 1, Bolivian Red Cross ‘Convention for the Protection of Children in the Event of International Conflict or Civil War’ (Draft) (1946): see Annex II.

11

1.29–1.32  General Introduction 1.29  Notwithstanding the Bolivian proposal for such an instrument the Preliminary Conference recommended that the draft provisions be incorporated into the new Fourth Geneva Convention relating to civilians, instead of existing as a standalone instrument.22 This issue was the subject of contemporaneous debate: the report of the Preliminary Conference notes that delegates considered whether a separate Convention relative to children should be adopted, or if it was preferable to insert relevant provisions into the Convention for Civilians. The report summarises why the latter approach was preferred: [A] minority of delegates stressed the complex nature of the problem and spoke in favour of a separate Convention, whereas a clear majority suggested the embodiment of all regulations concerning children either into the new Civilian Convention, or into the unified version of both Conventions. The reasons adduced in favour of the latter course were, in particular, the following: it is difficult to disjoin two questions which are in practice so closely related, since children in wartime share the fate of the civilian population, particularly of their mothers. Further, it seems hardly wise, when efforts are being made to secure amalgamation of all principles relatives to Prisoners of War and Civilians, to set up outside this general framework a separate Convention, which might not be signed by all States party to the general Convention.23

1.30  In 1947, the Conference of Government Experts recommended the same approach. A year later, the ICRC submitted its draft Convention for the Protection of Civilians, which incorporated some provisions relating to preferential treatment for ­children, though without the specific focus on children in the Bolivian proposal. In 1949, the D ­ iplomatic Conference adopted the draft Convention without substantial amendment as the Fourth Geneva Convention (GCIV), which entered into force in 1951. 1.31  GCIV has been criticised by commentators for failing to recognise the particular needs of children in times of armed conflict: The failure to obtain a separate Fifth Convention [specifically for children in armed conflict] has had serious consequences for children caught up in armed conflict. The focus on children and the need to protect them and promote their rights is itself devalued by the lack of a separate instrument in relation to them: they are not seen by states and other groups involved in armed conflict as a separate group in the population deserving of special protection. Moreover, the specific and, on occasion, very different needs of children have been subsumed into the general need for protection of the civilian population.24

1.32  Thus, the original legal architecture of GCIV left a gap in the law regarding the position of children. Many of the developments since GCIV – including the CRC and the OPAC – may be characterised, in part at least, as attempts to fill that gap. A number of other – general – measures followed in the years immediately following peace in 1945, each designed to put protections in place to ensure that the atrocities of the War would not be repeated. These included the United Nations Charter; the Universal Declaration of

22 1958 ICRC Commentary on GCIV (n 20) 185. 23 ICRC, ‘Report on the Work of the Preliminary Conference of National Red Cross Societies for the study of the Conventions and of various Problems relative to the Red Cross – Geneva, July 26 – August 3, 1946’ (ICRC, Geneva 1947) 101–02. 24 Carolyn Hamilton and Tabatha Abu El-Haj, ‘Armed Conflict: The Protection of Children Under International Law’ (1997) 5 International Journal of Children’s Rights 1–46, 12–13.

12

Children in Armed Conflict: 1923–1996  1.33 Human Rights (UDHR),25 the American Declaration of the Rights and Duties of Man,26 and the European Convention on Human Rights (ECHR).27 1.33  The next few decades involved an incremental increase in the general protections for children under international law. For example: 1.33.1  In 1959 the UNGA adopted Resolution 1386 proclaiming the Declaration of the Rights of the Child,28 which recognised rights including freedom from ­discrimination29 and the rights to a name and nationality,30 as well as specifically enshrining children’s rights to education, health care and special protection.31 1.33.2  In 1966 the UN adopted the International Covenant on Civil and Political Rights (ICCPR)32 and the International Covenant on Economic, Social and Cultural Rights (ICESCR),33 both of which entered into force in 1976. Both the ICCPR34 and the ICESCR35 articulate the need for protection for children from exploitation and promote the right to education. 1.33.3  In 1973 the ILO adopted Convention No 138 on the Minimum Age for Admission to Employment,36 which established 18 years as the minimum age for work that might be hazardous to an individual’s health, safety or morals.37 1.33.4  In 1974 the UNGA adopted Resolution 3318 proclaiming the Declaration on the Protection of Women and Children in Emergency and Armed Conflict.38 In this Declaration, the UNGA expressed ‘its deep concern over the sufferings of women and children belonging to the civilian population who in periods of emergency and armed conflict in the struggle for peace, self-determination, national liberation and independence are too often the victims of inhuman acts and consequently suffer serious 25 Universal Declaration on Human Rights (adopted 10 December 1948) UNGA Res 217A (III), UN Doc A/810 at 71 (UDHR). 26 Inter-American Commission on Human Rights, American Declaration on the Rights and Duties of Man (2 May 1948). 27 Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221 (ECHR). 28 Declaration of the Rights of the Child, UNGA Res 1386 (XIV) (20 November 1959) UN GAOR 14th Session Supp No 16 UN Doc A/4354. 29 Principles 1 and 10. 30 Principle 3. 31 Principles 4, 5 and 7. 32 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). 33 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR). 34 For example, Art 23, ICCPR protects the family and the need to make special provisions for the protection of children upon the dissolution of marriages. Art 24 states that every child shall have the right to ‘such measures of protection as are required by his status as a minor, on the part of his family, society and the State’, and makes particular reference to the right to birth registration, a name, and a nationality. 35 For example, Art 10(1), ICESCR describes the family as ‘the natural and fundamental group unit of society’, with protection and assistance required ‘for its establishment and while it is responsible for the care and education of dependent children’. It also, in Art 10(3), prohibits social or economic exploitation of children, and requires States to prohibit paid labour for children under a minimum age. 36 ILO Convention No 138 concerning Minimum Age for Admission to Employment (adopted 26 June 1973, entered into force 19 June 1976) 1015 UNTS 297. 37 Art 3, ILO Convention No 138. 38 Declaration on the Protection of Women and Children in Emergency and Armed Conflict, UNGA Res 3318 (XXIX) (14 December 1974) UN GAOR 29th Session Supp No 31 UN Doc A/9631.

13

1.34–1.35  General Introduction harm’. The Declaration calls for all Member States to prohibit and condemn attacks, bombings and the use of chemical and bacteriological weapons especially on women and children, as well as for the Member States to abide fully by their obligations under international law. 1.33.5  In 1977 Additional Protocol I (API)39 and Additional Protocol II (APII)40 to the Geneva Conventions were adopted (both entering into force in 1978). API and APII include a number of provisions relating to children.41 1.33.6  In 1979 the UN adopted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which protects the human rights of women and girls.42 In commemoration of the twentieth anniversary of the 1959 Declaration, the UNGA issued Resolution 31/169 declaring 1979 to be an International Year of the Child, which initiated the process and working group which would ultimately advocate for and draft a Convention on the Rights of the Child (CRC).43 C.  Convention on the Rights of the Child 1.34  The CRC is the most wide-reaching legally binding international instrument relating specifically to children, and one of the most widely-ratified international t­reaties.44 The adoption of the CRC represented the culmination of more than a decade of work, including sustained advocacy by Non-Governmental Organisations (NGOs) and other civil society groups. The UN Commission on Human Rights examined the issue from 1979 to 1986 alongside a working group, also created in 1979. The UNGA unanimously adopted the Convention on 20 November 1989 through Resolution 44/25, the thirtieth anniversary of the Declaration of the Rights of the Child.45 1.35  The CRC sets out the fundamental rights of children, including civil, political, economic, social, health and cultural rights, both on an individual basis as well as within the family unit. Article 38 of the CRC provides some specific protections for children in situations of armed conflict: see Chapter 2, paragraphs 2.34–2.39. 39 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3. 40 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609. 41 See, in particular, Art 77, API and Art 4(3), APII. 42 Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW). The CEDAW Committee has issued a number of recommendations which are relevant to the particular situation of female children in armed conflict, including General Recommentation 30 on women in conflict and post-conflict (UN Doc CEDAW/C/GC/30 (1 November 2013). 43 International Year of the Child, UNGA Res 31/169 (1 January 1979) UN GAOR 31st Session Supp No 39 UN Doc A/RES/31/169. 44 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC); see . 45 See further the ICRC’s overview of the drafting history of the Convention: ICRC, ‘Treaties States Parties and Commentaries: Convention on the Rights of the Child, 20 November 1989’ (ICRC). Available at .

14

Children in Armed Conflict: 1923–1996  1.36–1.38 1.36  The Optional Protocol to the CRC on the involvement of children in armed conflict (OPAC) (adopted in 2000) raises the age for direct participation in armed conflict to 18, bans compulsory recruitment for children under 18, and the voluntary recruitment of under-18s by non-state armed groups.46 In addition to the OPAC, a second Optional Protocol (on the sale of children, child prostitution and child pornography) was also adopted in 2000 (OPSC).47 OP3 (on a communications procedure) was adopted in 2011.48 1.37  The following Chapters of this book address the interpretation and implementation of the CRC and, as will be apparent, they are not without criticism. As one commentator explains: some of the shortcomings in the CRC provisions relating to armed conflict may be attributable to their legislative history.49 Thus, in the original draft of the CRC there were no provisions regarding the protection of children in armed conflicts. Some NGOs saw this as a gap in the treaty, and during the 1985 and 1986 sessions, the Working Group that was established to consider the new Convention received numerous proposed articles seeking to address this omission. A number of unsatisfactory draft proposals followed.50 These prompted the Chairman of the Working Group in the 1988 session to urge that the new text incorporate improved international standards by making use of the standards set out in Article 77(2) of the API.51 Although a compromise, as embodied in Article 38 of the CRC, was eventually achieved, there are a number of areas where Article 38 fails to meet the high standards which animate the rest of the treaty. For example, it requires States Parties only to take ‘all feasible’ measures to ensure the protection and care of children affected by armed conflict and it is the only provision in the treaty which protects children under 15 years old, as opposed to all those under the age of 18 years. D.  Beyond the CRC 1.38  The CRC provided a common lens for focussing on children’s rights. Efforts to implement the CRC have been aided by the UN Committee on the Rights of the Child (the CRC Committee), a body of 18 independent experts provided for under 46 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts (adopted 25 May 2000, entered into force 12 February 2002) 2173 UNTS 222 (OPAC). 47 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (adopted 25 May 2000, entered into force 18 January 2002) 2171 UNTS 227 (OPSC). 48 Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (adopted 19 December 2011, entered into force 14 April 2014) UN Doc A/RES/66/138 (OP3). 49 Chaditsa Poulatova, Children and Armed Conflict (Newcastle upon Tyne, Cambridge Scholars Publishing, 2013) 67–70. 50 Proposals were submitted by a range of participants in the open-ended working group. While all parties agreed on the general principle that children should not be involved in armed conflict, no consensus could be reached on specific wording. Disagreements focused, in particular, on age limits (with different factions arguing for 15, 16, or 18), and whether the ‘measures’ to be taken should be ‘necessary’, ‘feasible’, ‘practicable’, or ‘possible’. See Sharon Detrick, A Commentary on the United Nations Convention on the Rights of the Child: Article 38 (The Hague, Martinus Nijhoff, 1999) 645–58; Matthew Happold, Child Soldiers in International Law (Manchester, Manchester University Press, 2005) 70. 51 Art 77(2), API states, ‘The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not 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’.

15

1.39–1.42  General Introduction Article 43 to monitor and review implementation of the CRC: see further Chapter 2, paragraph 2.153.52 1.39  In addition to the CRC, the African Charter on the Rights and Welfare of the Child (ACRWC) was adopted in 1990 and entered into force in 1999.53 The ACRWC not only affirms a similar suite of rights to those set out in the CRC, but also contains (in Article 22), special protections for children in armed conflicts and requires (in Article 4(1)) that the best interests of the child be ‘the primary consideration’, taking this requirement to a higher standard than the standard of ‘a primary consideration’ which is contained in Article 3 of the CRC.54 1.40  The conflicts in the early 1990s in Yugoslavia and Rwanda prompted increased concern on the part of international observers about how to hold individual violators to account. An international tribunal was established to prosecute war crimes committed in each conflict: the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, and the International Criminal Tribunal for Rwanda (ICTR) in 1994. 1.41  In 1992, the CRC Committee decided to commit its first day of general discussion to the topic of children in armed conflict.55 It pointed to:56 1.41.1  The outstanding importance of the issue in the context of the promotion and protection of children’s rights and the role of the CRC; 1.41.2  The growing number of international conflicts (citing more than 150 since World War II), ‘using more sophisticated and brutal weapons and fighting methods, affecting a growing number of civilians, particularly children’; 1.41.3  ‘The urgency of creating awareness, raising concern and encouraging adequate action’ and 1.41.4  The need to underline the complexity of the question of children in armed conflicts, ‘which should not be simply reduced to the consideration of a single provision of the Convention, namely article 38’. 1.42  The CRC Committee agreed that the discussion ought to address a number of pressing concerns relating to children in armed conflict, including:57 a)

the relevance and adequacy of existing international instruments, including International Humanitarian Law, and the advisability of envisaging new standard-setting activities; b) the need to reinforce the adoption of preventative measures, designed either to prevent conflicts or to prevent children from taking direct or indirect part in the hostilities or suffering its effects;

52 UN Office of the High Commissioner for Human Rights, ‘Committee on the Rights of the Child’ (UN Office of the High Commissioner for Human Rights) . 53 African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, entered into force 29 November 1999) OAU Doc CAB/LEG/24.9/49 (ACRWC). 54 Emphases added. 55 UN Committee on the Rights of the Child, ‘Report adopted by the Committee at its 46th Meeting, on 9 October 1992’ (19 October 1992) UN Doc CRC/C/10, paras 61–77. 56 ibid, para 62. 57 ibid, para 63.

16

The Impact of Armed Conflict on Children: The 1996 Machel Report  1.43–1.46 c)

the need to ensure effective protection of children in a period of armed conflict, in the overall framework of the realization of all the rights of the child, inherent to his or her dignity and essential to the full and harmonious development of his or her personality; d) the need to ensure the promotion of the physical and psychological recovery and social reintegration of any child victim of, or affected by, an armed conflict, in an environment which fosters the health, self-respect and dignity of the child.

1.43  The discussions initiated in 1992 led to the CRC Committee proposing, a year later, that an independent expert be appointed to lead a study on the impact of armed conflict on children. On 20 December 1993, UNGA Resolution 48/15758 formally made the same recommendation, requesting the Secretary-General: To appoint an expert, working in collaboration with the Centre for Human Rights for the Secretariat and the United Nations Children’s Fund, to undertake a comprehensive study of this question, including the participation of children in armed conflict, as well as the relevance and adequacy of existing standards, and to make specific recommendations on ways and means of preventing children from being affected by armed conflicts and of improving the protection of children in armed conflicts and on measures to ensure effective protection of these children, including from indiscriminate use of all weapons of war, especially anti-personnel mines, and to promote their physical and psychological recovery and social reintegration, in particular, measures to ensure proper medical care and adequate nutrition, taking into account the recommendations by the World Conference on Human Rights and the Committee on the Rights of the Child.

1.44  In June 1994, then-UN Secretary-General Boutros Boutros-Ghali appointed Graça Machel as an independent expert with responsibility for chairing a study based on the terms of reference above. V.  THE IMPACT OF ARMED CONFLICT ON CHILDREN: THE 1996 MACHEL REPORT

1.45  On 26 August 1996, the Secretary-General presented the Machel Report to the UNGA. The publication, in accordance with its terms of reference, focused on the issue of children in armed conflict through the lens of the CRC, which it described as a ‘guiding source of operative principles and standards’.59 Although certain provisions of international law were referred to in the text,60 the Machel Report did not scrutinise the legal framework or analyse it in detail. A.  Mitigating the Impact of Armed Conflict on Children 1.46  The Machel Report drew particular attention to a number of key ways in which armed conflict impacted children. These included: 1.46.1  Child soldiers;61 58 UNGA Res 48/157 (20 December 1993) UN GAOR 48th Session Supp No 49 UN Doc A/RES/48/157, para 7. 59 Machel Report, para 10. 60 See para 1.48 below. 61 Machel Report, paras 34–62.

17

1.47  General Introduction 1.46.2  Refugees and internally displaced children;62 1.46.3  Sexual exploitation and gender-based violence;63 1.46.4  Landmines and unexploded ordnance;64 1.46.5  Sanctions and their impact on children;65 1.46.6  Health and nutrition;66 1.46.7  The physical and psychological consequences of conflict on children, as well as the need for promoting psychological recovery and social reintegration;67 and 1.46.8  The importance of continuing education for children affected by conflict.68 1.47  Each of the main sections of the Machel Report referred to above concluded with a number of recommendations. The recommendations included, among others: 1.47.1  In relation to child soldiers: building a global, cooperative campaign across all relevant UN institutions and NGOs to eradicate the use of children under the age of 18 years in the armed forces; engaging diplomatically with government and nonstate forces to encourage the demobilisation of child soldiers and adherence to the CRC; all peace agreements being drafted to include specific measures to demobilise and reintegrate child soldiers into society, and a call for the rapid and universal adoption of the (then forthcoming) OPAC;69 1.47.2  In relation to refugee and internally displaced children: adopting, as a matter of priority, and in all emergencies, procedures aimed at protecting unaccompanied children; caring for such children in family units wherever possible; increased cooperation between international agencies working with internally-displaced persons; ensuring the protection and care of households where a child is the primary responsible person; and strengthening national frameworks for preventing discrimination against women;70 1.47.3  In relation to sexual exploitation and gender-based violence: the need to ensure that all humanitarian responses in conflict situations emphasise the special reproductive health needs of women and girls, including family planning and medical needs arising from sexual assault; enhanced instruction for all military personnel (including peacekeepers) on their responsibilities towards civilian communities and especially women and children; improving reporting systems; clarifying the treatment of rape as a war crime; designing refugee and displaced persons camps with the security of women and girls in mind; and increased access to support systems for victims;71



62 ibid,

paras 63–90. paras 91–110. 64 ibid, paras 111–26. 65 ibid, paras 127–35. 66 ibid, paras 136–65. 67 ibid, paras 166–83. 68 ibid, paras 184–203. 69 ibid, para 62. 70 ibid, para 90. 71 ibid, para 110. 63 ibid,

18

The Impact of Armed Conflict on Children: The 1996 Machel Report  1.48–1.49 1.47.4  In relation to landmines and unexploded ordnance: the need for national legislation to be enacted immediately banning the production, use, trade and stockpiling of landmines; and a call to support a campaign for a worldwide ban, alongside international mine clearance programmes;72 1.47.5  In relation to sanctions: that, whenever they are imposed, they are tailored to minimise their impact on children and other vulnerable groups and that they provide for humanitarian, child-focused exemptions, as well as monitoring mechanisms to track this in practice;73 1.47.6  In relation to health and nutrition: that all parties to a conflict ensure the maintenance of basic health systems and services and water supplies; during conflicts, parties should facilitate ‘days of tranquillity’ and ‘corridors of peace’ to ensure continuity of basic child health measures and delivery of humanitarian relief; and that parties to conflict should refrain from destruction of food crops, water sources and agricultural infrastructure;74 1.47.7  In relation to psychosocial well-being: incorporating psychosocial considerations into all phases of emergency and reconstruction assistance programmes; taking local culture and political and social realities into account when caring for children, and preventing the institutionalisation of children wherever possible,75 and 1.47.8  In relation to education: making all possible efforts to maintain education systems during conflicts; preparing to sustain education outside formal school buildings, including within refugee or displaced persons camps; and extending the boundaries of emergency funding to include support for education.76 B.  Relevance and Adequacy of Existing Standards for the Protection of Children 1.48  The Machel Report referred to the main applicable provisions of international law, for example GCIV (including Common Article 3), API, APII, ICCPR, ICESCR, and most significantly, CRC, which it stated, ‘is of special note, as it is one of the most important bridges linking two bodies of law [IHL and IHRL], whose complementarity is increasingly recognized’.77 1.49  The Report considered the relevance and adequacy of the existing legal standards, and highlighted the interplay and inconsistencies between IHL and IHRL. In line with the overall message of the Report, Machel argued that ‘if the [CRC] were to be fully implemented during armed conflicts, this would go a long way towards protecting children’.78 Machel also noted that simply because the CRC was addressed to the States Parties did

72 ibid, para 126. 73 ibid, para 135. 74 ibid, para 165. 75 ibid, para 183. 76 ibid, para 203. 77 ibid, para 210. For general discussion of the relevance and adequacy of these and other provisions of international law, see ibid, paras 204–40. 78 ibid, para 229.

19

1.50–1.52  General Introduction not preclude outreach efforts being made in an attempt to engage other groups: ‘it is well worth encouraging non-state entities to make a formal commitment to abide fully by the relevant standards. Many non-state entities aspire to form governments … In order to establish their commitment to the protection of children, non-state entities should be urged to make a formal statement accepting and agreeing to implement the standards contained in the [CRC]’.79 More broadly, however, Machel observed that standards would only be effective if and when ‘they are widely known, understood, and implemented by policy makers, military and security forces and professionals dealing with the care of children, including the staff of [UN] bodies, specialized agencies and humanitarian organizations. Standards should also be known and understood by children themselves, who must be taught about their rights and how to assert them’.80 C.  Accountability Mechanisms 1.50  The Machel Report also addressed the implementation of standards and the mechanisms for monitoring violations.81 ‘An effective international system for the protection of children’, Machel wrote, ‘must be based on the accountability of Governments and other actors. This in turn requires prompt, efficient and objective monitoring’.82 Machel pointed to the central importance of UN institutions in the monitoring process, chiefly the Commission on Human Rights and the CRC Committee, but also those named in the Geneva Conventions (the ICRC, the International Federation of Red Cross and Red Crescent (IFRC), and their National Societies), as well as other international organisations. Machel called for all of these groups to work in conjunction with domestic organisations responsible for human rights. 1.51  The Machel Report made a number of recommendations in relation to monitoring and standards.83 These focused on achieving universal ratification of the CRC; governments adopting national legislative measures to ensure effective implementation of the relevant standards; and enhancing awareness of applicable standards, including through training and education in IHL and IHRL at all levels. The Report called on the CRC Committee to include, in its report to the UNGA, specific information on the ­measures adopted by States Parties to protect children in situations of armed conflict. D.  Reconstruction, Reconciliation and Conflict Prevention 1.52  A strong focus of the Machel Report was on reconstruction and reconciliation measures, as well as conflict prevention.84 The challenge, as summed up in the Report, is that ‘children are rarely mentioned in reconstruction plans or peace agreements,



79 ibid,

para 230. para 232. 81 ibid, paras 232–39. 82 ibid, para 235. 83 ibid, para 240. 84 ibid, paras 241–52. 80 ibid,

20

The Impact of Armed Conflict on Children: The 1996 Machel Report  1.53–1.55 yet ­children must be at the centre of rebuilding’.85 The Report called for a range of approaches, including the ‘quick impact’ reintegration assistance projects pioneered by UNHCR and others to help build the transition from the emergency phase to the longerterm reconstruction phase. Youth, the Report emphasised, must be seen as a resource: ‘Young people must not be seen as problems or victims, but as key contributors in the planning and implementation of long-term solutions’.86 1.53  Although truth commissions, human rights commissions and reconciliation groups can play an important role in community healing, the Machel Report noted the essential role of justice in helping achieve reconciliation. With that in mind, and in the interest of promoting accountability and ending impunity of perpetrators, the Report called for the international community to develop more systematic methods for apprehending and punishing individuals guilty of child rights abuses. Machel noted that for the gravest abuses, international law can be more appropriate than national action, citing the ICTY and the ICTR. However, the Report expressed concerns that these Tribunals ‘may have neither the resources nor the powers to fulfil their objectives’.87 The Report advocated for the creation of an international criminal court. 1.54  In relation to children as possible perpetrators of war crimes themselves, the Machel Report noted that: ‘as of June 1996 in Rwanda, 1,741 children were being held in detention in dreadful conditions. Of these, approximately 550 were under 15 years, and therefore beneath the age of criminal responsibility under Rwandan law’.88 The Machel Report identified a number of the considerations to be taken into account as part of a sensitive and nuanced balancing exercise when assessing the culpability of the child, including a community’s sense of justice, the ‘best interests’ of the child, the ultimate social reintegration of the individual, providing the child with an opportunity to participate in the proceedings affecting him or her, and viewing deprivation of liberty as a measure of last resort. 1.55  Although a majority of the Machel Report is dedicated to methods by which children might be protected from the most damaging consequences of armed conflict, both during and after the conflict, the Report emphasises that ‘clearly, the most effective way to protect children is to prevent the outbreak of armed conflicts’.89 Machel called on the international community to ‘shatter the political inertia that allows circumstances to escalate into armed conflict and destroy children’s lives. This means addressing the root causes of violence and promoting sustainable and equitable patterns of human ­development’,90 including through promoting education and demilitarisation efforts. The Report pointed to broader international efforts to promote good governance and enable individuals to participate fully in the civil and political decision-making processes in their countries and communities. Those efforts, Machel noted, are the primary responsibility of national governments and the international community, but offer a vital role for



85 ibid,

para 241. para 242. 87 ibid, para 249. 88 ibid, para 250. 89 ibid, para 253. For a general discussion of conflict prevention, see ibid, paras 253–65. 90 ibid, para 253. 86 ibid,

21

1.56–1.59  General Introduction civil society organisations too, including religious, community and traditional leaders, scholars, NGOs and women’s organisations, all of whom have important contributions to make in aid of conflict prevention, mediation and capacity building. 1.56  With this in mind, the Report made a number of recommendations aimed at sustaining momentum and keeping issues of monitoring and implementation firmly on the agenda in relation to children in conflict.91 First among these was a call for the establishment of a special representative of the Secretary-General on children and armed conflict, who would act as a standing observer, assessing progress achieved and difficulties encountered in the implementation of the recommendations presented by the Machel Report. 1.57  The Machel Report concluded with a call for bold action: it concentrated on what is practical and what is possible. In addition, it declared: ‘We must be daring’.92 ‘There is a clear and overwhelming moral case for protecting children while seeking the peaceful resolution of wars and challenging the justification for armed conflict’.93 The Report decried the ‘spurious claims that the involvement of children in armed conflict is regrettable but inevitable’,94 calling for children to be recognised as ‘zones of peace’.95 VI.  FOLLOWING IN MACHEL’S FOOTSTEPS: DEVELOPMENTS SINCE 1996

A.  Secretary-General’s Special Representative for Children and Armed Conflict 1.58  UNGA Resolution 51/77, adopted on 20 February 1997, welcomed the Machel Report and noted ‘the recommendations included therein which address the prevention of the involvement of children in armed conflict, the reinforcement of preventive measures, the relevance and adequacy of existing standards, the measures required to improve the protection of children affected by armed conflict and the actions needed to promote the physical and psychological recovery and social reintegration of children affected by armed conflict’.96 It requested that the Secretary-General ensure the Report be distributed as widely as possible.97 Following the recommendation of the Machel Report, Resolution 51/77 established a mandate for a Special Representative to be appointed for a three-year term with a mission as set out in the Machel Report, namely: to strengthen the protection of children affected by armed conflict; raise awareness; promote the collection of information about the plight of children affected by war; and foster international cooperation to improve their protection.98 1.59  Since 1997, the Special Representative for Children and Armed Conflict has reported yearly to the UNGA and the Human Rights Council, and raised the challenges



91 ibid,

paras 266–311. para 312. 93 ibid, para 313. 94 ibid, para 316. 95 ibid, para 318. 96 UNGA Res 51/77 (20 February 1997) UN GAOR 51st Session Supp No 49 UN Doc A/RES/51/77, para 13. 97 ibid, para 15. 98 ibid, paras 35–37. 92 ibid,

22

Following in Machel’s Footsteps: Developments Since 1996  1.60 faced by children before the United Nations Security Council (UNSC), as well as bringing them to the attention of relevant governments of states in situations of armed conflict.99 Since 2005, the Special Representative for Children and Armed Conflict has been assisted by the UNSC Working Group on Children in Armed Conflict, established pursuant to UNSC Resolution 1612 (2005) of 26 July 2005.100 The Special Representative also works with other UN agencies, notably UNICEF, to protect children in conflict: an example of one of their joint projects is the ‘Children, Not Soldiers’ campaign, which aims to end the recruitment and use of child soldiers by government armies.101 Since 2000, the work of the Special Representative on Children and Armed Conflict and partners has led to the release of more than 115,000 child soldiers.102 The individuals that have held the position of Special Representative have been persons with global reputations and established expertise in related legal fields: Olara Otunnu (first appointed 1997); Radhika Coomaraswamy (first appointed 2006); Leila Zerrougui (appointed 2012) and Virginia Gamba (appointed 2017). 1.60  The UN, acting in particular through the UNSC, has frequently reiterated its commitment to efforts to enhance protections for children in armed conflict. Of the numerous UNSC Resolutions adopted since the publication of the Machel Report, the following are among the most significant: 1.60.1  UNSC Resolution 1261 (1999)103 condemned the targeting of children in armed conflict, ‘including killing and maiming, sexual violence, abduction and forced displacement, recruitment and use of children in armed conflict … and attacks on objects protected under international law, including places that usually have a significant presence of children such as schools and hospitals.’ It supported efforts to draft the OPAC and requested the Secretary-General to report on the implementation of the Resolution. It was this landmark Resolution, therefore, that led to the SecretaryGeneral’s annual reports on children and armed conflict; the first being the July 2000 report. It is to these reports that later, related, UNSC Resolutions refer. 1.60.2  UNSC Resolution 1314 (2000)104 urged all parties to armed conflict to respect the provisions of international law, including the newly-adopted OPAC, and for states to sign and ratify that instrument. 1.60.3  UNSC Resolution 1379 (2001)105 undertook, where sanctions were to be imposed, to consider their economic and social impact on children, with a view to providing appropriate exemptions in light of their specific needs. It also recommended

99 See the description of the role of the Special Representative for Children and Armed Conflict included in the second paragraph of United Nations Permanent Missions, ‘Special Representative of the Secretary-General for Children and Armed Conflict’ (UN Permanent Missions) . 100 UNSC Res 1612 (26 July 2005) UN Doc S/RES/1612. 101 Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘Children, Not Soldiers’ (Office of the Special Representative of the Secretary-General for Children and Armed Conflict) . 102 UN News Centre, ‘UN commemorates 20 years of protecting children in armed conflicts’ (UN News Centre, 8 February 2017) . 103 UNSC Res 1261 (30 August 1999) UN Doc S/RES/1261. 104 UNSC Res 1314 (11 August 2000) UN Doc S/RES/1314. 105 UNSC Res 1379 (20 November 2001) UN Doc S/RES/1379.

23

1.60  General Introduction that the Secretary-General attach to his or her report a list of parties to armed conflict that recruit or use children in violation of international obligations applicable to them in situations that are on the UNSC’s agenda or that may be brought to the attention of the UNSC by the Secretary-General. 1.60.4  UNSC Resolution 1460 (2003)106 endorsed the Secretary-General’s call for an ‘era of application’ of international norms and standards for the protection of children affected by armed conflict. It also called on parties on the list annexed to the Secretary-General’s report to provide information on steps taken by them to halt their recruitment and use of children in armed conflict. 1.60.5  UNSC Resolution 1539 (2004)107 called on parties referred to in the SecretaryGeneral’s report to prepare concrete, time-bound action plans to halt the recruitment and use of children. However, UNSC Resolution 1539 only requested such an action plan in relation to ‘recruitment and use’, notwithstanding that there are five other ‘grave violations’ now monitored by the UNSC and the Special Representative for Children and Armed Conflict (see below, paragraph 1.60.7). 1.60.6  UNSC Resolution 1539 also called on the Secretary-General to develop an action plan for a ‘systematic and comprehensive monitoring and reporting mechanism’ (MRM) ‘in order to provide timely, objective, accurate and reliable information on the recruitment and use of child soldiers in violation of applicable international law and on other violations and abuses committed against children affected by armed conflict’.108 Following the presentation of the MRM action plan, the UNSC adopted UNSC Resolution 1612 (2005).109 This requested the Secretary-General to implement the MRM. It also established the UNSC Working Group on Children in Armed Conflict (referred to above, paragraph 1.59), composed of all members of the UNSC, to review the reports of the MRM, review progress in the development and implementation of action plans and consider other relevant information. 1.60.7  The MRM is a process managed by country-based task forces co-chaired by the highest UN representative in the country and the UNICEF country representative. It is designed to systematically monitor, document and report on abuses of the rights of children in situations of armed conflict. Although it started with a focus on recruitment and use the MRM now attempts to hold to account those who commit any of the ‘six grave violations’ of children’s rights during armed conflict, namely: 1. 2. 3. 4. 5. 6.

Recruitment or use of child soldiers; Killing or maiming of children; Sexual violence against children; Attacks against schools or hospitals; Abduction of children; Denial of humanitarian access to children.110

106 UNSC Res 1460 (30 January 2003) UN Doc S/RES/1460. 107 UNSC Res 1539 (22 April 2004) UN Doc S/RES/1539. 108 UNSC Res 1539 (22 April 2004) UN Doc S/RES/1539, para 2. 109 UNSC Res 1612 (26 July 2005) UN Doc S/RES/1612. 110 Office of the Special Representative on Children and Armed Conflict, ‘Working Paper No 1 – The Six Grave Violations Against Children During Armed Conflict: The Legal Foundation’ (Updated edn, Office of the Special Representative of the Secretary-General, New York November 2013) 9.

24

Following in Machel’s Footsteps: Developments Since 1996  1.61–1.62 1.60.8  These six grave violations were selected due to their ability to be monitored and quantified, their egregious nature, and the severity of their consequences on the lives of children.111 The central importance of the six grave violations has since been reiterated frequently, including in UNSC Resolution 1882 (2009).112 1.60.9  More recent resolutions have highlighted issues of contemporary concern. For example, UNSC Resolution 1998 (2011)113 called on the Secretary-General to list, in the annexes to his reports on children and armed conflict, those parties to armed conflict that carry out recurrent attacks on schools and hospitals, UNSC Resolution 2165 (2014)114 established a mechanism to monitor denial of humanitarian access in Syria and UNSC Resolution 2225 (2015)115 urged the Secretary-General to list those parties to armed conflict responsible for the abduction of children. B.  CRC and the OPAC: Increased but not Universal Ratification 1.61  In a comparatively short period of time, the CRC achieved near-universal ratification: within one year of it becoming open for signature, the CRC had been ratified by 67 Member States, and within two years, 105. By the time UNGA Resolution 51/77 was adopted, 187 States had ratified the CRC, and at present, 196 States and other entities endowed with (full or some measure of) international legal personality have ratified it. More recently, on 23 January 2015, the newest state, South Sudan, became the 195th state to ratify the CRC,116 and on 1 October 2015, Somalia – which had signed the CRC in 2002, but was unable to ratify it due to political instability and a lack of a ­functioning Government – became the 196th and latest state to ratify it. 1.62  The only state that has not ratified the CRC is the United States.117 Although it signed the CRC on 16 February 1995, it has resisted calls to join the rest of the international community and achieve universal ratification of the instrument. This is something of a paradox, as the United States played an active role in the decade-long drafting process which preceded the CRC’s publication, commenting on nearly all of the 41 substantive articles and proposing the original text for seven articles, three of which are taken directly from the United States Constitution and were inserted at the request of President Ronald Reagan’s administration.118 111 ibid. 112 UNSC Res 1882 (4 August 2009) UN Doc S/RES/1882. 113 UNSC Res 1998 (12 July 2011) UN Doc S/RES/1998. 114 UNSC Res 2165 (14 July 2014) UN Doc S/RES/2165. 115 UNSC Res 2225 (18 June 2015) UN Doc S/RES/2225. 116 Office of the High Commissioner for Human Rights, ‘UN Committee hails South Sudan’s ratification of Convention on the Rights of the Child’ (Office of the High Commissioner for Human Rights, 4 May 2015) . 117 UN Treaty Collection, ‘Status of Treaties: Convention on the Rights of the Child’ (UN Treaty Collection) . 118 Jenni Gainborough and Elisabeth Lean, ‘Convention on the Rights of the Child and Juvenile Justice’ (2008) 7(1) Child Welfare League of America The Link 1–12, 1. The seven Articles drafted by the United States include Arts 10 (Family Reunification), 12 (Freedom of Opinion), 13 (Freedom of Expression), 14 (Freedom of Thought, Conscience, and Religion), 15 (Freedom of Association and Assembly), 16 (Right to Privacy), and 25 (Periodic Review of Placement for Children in Alternative Care).

25

1.63–1.66  General Introduction 1.63  Yet, notwithstanding regular calls for ratification – including by Barack Obama, who as a candidate during the 2008 Presidential Campaign called the United States’ failure to do so ‘embarrassing’119 – the CRC has never been put forward for the Senate to consider, the first step under US constitutional provisions for a signed treaty to become ratified. The reasons give for this are varied, and their legitimacy is debated.120 Even though the United States has not ratified the CRC it has ratified the OPAC and OPSC.121 1.64  The OPAC creates obligations regarding the use and involvement of children in armed conflict by any armed group, state or non-state, and contains provisions which apply in times of peace and in times of war, irrespective of whether an armed conflict is international or non-international. 1.65  The ICRC has commented that although the OPAC ‘represents a clear improvement of existing international law … the text also contains evident weaknesses’.122 Key weaknesses identified by the ICRC include the following: 1.65.1  The failure to include an absolute obligation on Parties to prevent the involvement of children in hostilities; 1.65.2  The possibility that children may be ‘voluntarily’ recruited into state armed forces below the age of 18 years, and 1.65.3  The fact that the provision referring to non-state armed groups is framed as a moral, not a legal obligation. C.  New Standards 1.66  The two decades since the publication of the Machel Report in 1996 have seen a number of international developments aimed at strengthening the protections available for children in armed conflict. 119 Patrick Geary, ‘United States: Is Obama’s Win Also a Victory for Children’s Rights?’ (Child Rights International Network, 5 November 2008) . The remarks were made at a Presidential Youth Debate at Walden College in October 2008. 120 For example, ParentalRights.org, has claimed that ‘the [CRC] allows and even demands that national governments interfere in decisions of individual families and parents. By invoking the “best interests of the child,” policymakers and government agents have the authority to substitute their own decisions for those of the child or parent. In short, parents lose their rights to be parents, and become merely caregivers.’: see Peter Kamakawiwoole, ‘Why We Oppose It’ ParentalRights.org (11 November 2008) . Other opponents of ratification have argued that it would usurp American sovereignty and federal principles, including by binding the Government to make certain financial commitments, or by infringing on States’ exclusive authority to legislate in the areas of families and children: see Karen Attiah, ‘Why won’t the U.S. ratify the U.N.’s child rights treaty?’ Washington Post (Washington 21 November 2014) ). 121 UN Treaty Collection, ‘Status of Treaties: Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict’ (UN Treaty Collection) . The United States ratified OPAC and OPSC on 23 December 2002. 122 ICRC, ‘Treaties, States Parties and Commentaries: Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000’ (ICRC) .

26

Following in Machel’s Footsteps: Developments Since 1996  1.67 1.67  These international developments have ranged from ‘hard law’ to ‘soft law’, and from international measures to regional ones. The OPAC is one of a number of significant recent instruments, including among others: 1.67.1  The ACRWC referred to at paragraph 1.39 above. 1.67.2  Although the ACRWC is the only regional instrument specifically addressing children’s rights, other regional organisations have formally declared their commitment to similar principles. These include the Organization of American States’ Resolution on Children in Armed Conflict,123 and the European Union’s Guidelines on Children and Armed Conflict (revised in 2008).124 1.67.3  The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (1999), known informally as the ‘Ottawa Treaty’ or simply the ‘Mine Ban Treaty’, was adopted in 1997 and entered into force in 1999.125 The Machel Report’s call for a total worldwide ban on landmines added a further push to the process regarding such mines which had been initially launched in 1980.126 A few months after the adoption of the Machel Report, UNGA Resolution 51/45 called upon all countries to conclude a new international agreement totally prohibiting anti-personnel mines ‘as soon as possible.’127 After a series of conferences to discuss draft versions of the treaty, the final edition was signed in Oslo in September 1997, and the treaty entered into force a year and a half later. There are currently 162 States Parties, and while 35 states remain outside the Treaty, according to the International Campaign to Ban Landmines, ‘most of them do not actually use or produce antipersonnel mines’.128 1.67.4  Since 2000, Geneva Call, an NGO dedicated to promoting respect by armed non-state actors (ANSAs)129 for international humanitarian norms in armed conflict and other situations of violence, has engaged with approximately 90 ANSAs130 on

123 Organization of American States, ‘Resolution on Children in Armed Conflict’ General Assembly Res AG/ RES. 1709 (XXX-O/00) (5 June 2000). 124 EU General Affairs Council, ‘Update of the EU Guidelines on Children and Armed Conflict’ (25 September 2015). 125 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (adopted 18 September 1997, entered into force 1 March 1999) 2056 UNTS 241. See further, ICRC, ‘Treaties, States Parties and Commentaries: Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997’ (ICRC) . 126 ICRC, ‘Treaties, States Parties and Commentaries: Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997’ (ICRC) . 127 UNGA Res 51/45 (10 December 1996) UN GAOR 50th Session Supp No 49 UN Doc A/RES/51/45. 128 International Campaign to Ban Landmines, ‘Treaty Status’ (ICBL) . 129 For the purposes of its mission, Geneva Call focuses on ANSAs which it considers to be ‘entities that are involved in armed conflict, which are primarily motivated by political goals and which operate outside State control, thereby lacking legal capacity to become party to relevant international treaties. These include armed groups, national liberation movements, and de facto governing authorities.’ Geneva Call, ‘Armed Non-State Actors’ (Geneva Call) . This is a different definition from ‘non-state armed group’, which is explained in Ch 2, para 2.14. 130 Geneva Call, ‘Mission’ (Geneva Call) .

27

1.67  General Introduction ‘deeds of commitment’, a mechanism which allows ANSAs to pledge to respect specific humanitarian norms and be held publicly accountable for their commitments. To date, 52 ANSAs have signed the Deed of Commitment banning anti-personnel mines.131 1.67.5  Geneva Call also has a Deed of Commitment protecting children in armed conflict.132 It requires ANSAs to agree to prohibit the use of children in hostilities; ensure that children are not recruited into, or forcibly associated with, armed forces; release or disassociate children in safety and security; protect children from the effects of military operations and do their best to provide children with the aid and care they need, in cooperation with specialised child protection agencies. Of the 63 groups that are listed as perpetrators of violations against children in the Secretary-General’s 2017 report on children in armed conflict, 54 are ANSAs. To date, 26 ANSAs (including many not listed in the Secretary-General’s report) have signed this Deed of Commitment.133 Geneva Call is in dialogue with more than 20 others.134 1.67.6  The ILO Convention 182 (Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour), which was adopted in 1999 and entered into force in November 2000, includes in its definition of the ‘worst forms of child labour’, ‘all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict’.135 1.67.7  From time to time, conferences, symposia and other international diplomatic gatherings provide an opportunity to reiterate commitments to previously articulated principles, or to articulate new commitments. In 1997, participants at a symposium convened by UNICEF adopted the Cape Town Principles and Best Practices on the Prevention of Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa: see Chapter 2, paragraph 2.63.136 1.67.8  Ten years later, the 2007 ‘Paris Principles’ (formally known as the 2007 Principles and Guidelines on Children Associated with Armed Forces or Armed

131 Geneva Call, ‘Deed of Commitment’ (Geneva Call) . By signing the Deed of Commitment, ANSAs agree to prohibit, under any circumstances, the use, production, stockpiling, and transfer of anti-personnel mines, and to undertake and cooperate in stockpile destruction, mine clearance, victim assistance, mine awareness, and various other forms of mine action, in cooperation with specialised organisation. See Geneva Call, ‘Deed of Commitment Under Geneva Call for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action’ (Geneva Call, launched in 2000) . 132 Geneva Call, ‘Deed of Commitment Under Geneva Call for the Protection of Children from the Effects of Armed Conflict’ (Geneva Call, launched in 2010) . 133 Geneva Call, ‘Deed of Commitment’ (Geneva Call) . 134 Geneva Call, ‘Child Protection’ (Geneva Call) . 135 ILO Convention No 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (adopted 17 June 1999, entered into force 19 November 2000) 2133 UNTS 161, Art 3(a). 136 Cape Town Principles and Best Practice on the Prevention of Recruitment of Children into the Armed Forces and Demobilization and Social Reintegration of Child Soldiers in Africa (Cape Town, 27–30 April 1997).

28

Following in Machel’s Footsteps: Developments Since 1996  1.68 Groups) updated and affirmed Parties’ commitment to the Cape Town Principles: see Chapter 2, paragraph 2.65.137 1.67.9  A leading current initiative is the Safe Schools Declaration.138 This is an intergovernmental political commitment that provides countries with the opportunity to express their support for: protecting students, teachers, schools and universities from attack during times of armed conflict; ensuring the continuation of safe education during armed conflict; and implementing concrete measures to deter the military use of schools. The declaration139 was developed through consultations with states in a process led by Norway and Argentina in Geneva in early 2015, and was opened for endorsement at the Oslo Conference on Safe Schools on 29 May 2015. Currently, 72 States have endorsed the declaration.140 See further Chapter 7, paragraph 7.135.1. 1.67.10  A number of other principles, of varying legal effect, relate incidentally to children in armed conflict. They include the Guiding Principles on Internal Displacement;141 the Humanitarian Charter and Minimum Standards in Disaster Response (The Sphere Project);142 ‘A World Fit for Children’, the statement of principles adopted by the UNGA’s Special Session on Children in 2002;143 the Integrated Disarmament, Demobilisation and Reintegration Standards;144 the ICC Office of the Prosecutor’s Policy on Children,145 and the Guiding Principles on Business and Human Rights.146 1.68  However, as noted at paragraph 1.9 above, none of the post-World War II legal instruments and measures have comprehensively addressed the gap left by GCIV, viz, detailed consideration of the position of children in armed conflict. There is, therefore,

137 The Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (Paris, February 2007). Note that there is a potentially significant difference between the definition of ‘child soldier’ in the Cape Town Principles (which refers to, inter alia, ‘… anyone accompanying [armed groups], other than family members’), and the definition of ‘children associated with an armed force or an armed group’ in the Paris Principles, which has no similar carve-out for family members. In many instances, the communities around non-state armed groups may include children of members of those groups. Efforts to prevent or protect children associated with armed groups may conflict with the right of those children to live with their families. 138 Global Coalition to Protect Education from Attack, ‘Safe Schools Declaration’ (29 May 2015) available at . 139 See also: . 140 The list is set out here: . 141 United Nations Commission on Human Rights, ‘Report of the Representative of the Secretary-General, Mr Francis M Deng, submitted pursuant to Commission resolution 1997/39’ (11 February 1998) 54th Session UN Doc E/CN.4/1998/53/Add.2. The Guiding Principles are contained in the Annex to that Report. 142 The Sphere Project, The Sphere Handbook: Humanitarian Charter and Minimum Standards in Humanitarian Response 3rd edn (Rugby, Practical Action Publishing, 2011). . 143 A World Fit for Children: resolution adopted by the General Assembly UNGA Res S-27/2 (11 October 2002). 144 United Nations Inter-Agency Working Group on Disarmament, Demobilization and Reintegration, The Integrated Disarmament, Demobilization and Reintegration Standards (2006). 145 ICC Office of the Prosecutor, Policy on Children, (ICC, November 2016) . 146 OHCHR, Guiding Principles on Business and Human Rights: Implementing the ‘Protect, Respect, Remedy’ Framework (16 June 2011).

29

1.69–1.73  General Introduction no single instrument that sets out the applicable IHL and IHRL framework and there is no single, civil, international adjudicative body with the jurisdiction to adjudicate, develop and monitor accountability in this area. 1.69  In addition to developing international standards, domestic standards have also developed. This book does not attempt a comprehensive analysis of such efforts. However, one example is the ‘Canadian Armed Forces Joint Doctrine Note 2017-01 – Child Soldiers’, published on 2 March 2017, which has been described by the Canadian Government as an initiative which ‘directly supports the UNSCR 1261, which urges parties to armed conflict to abide by concrete commitments made to ensure the protection of children in situations of armed conflict’.147 D.  Enhanced Criminal Responsibility 1.70  Comparatively few international human rights treaties contain provisions regarding the criminalisation and prosecution of human rights violations. Of the legal instruments that are specifically relevant to children in armed conflict and that have been mentioned above, only OPAC includes such a provision (in Article 4(2)).148 1.71  The two decades since the Machel Report have seen an increased willingness and capacity within the international community to impose criminal liability on individuals for breaches of international law. As noted above (paragraph 1.53), the Machel Report noted the positive contributions of the ICTY and ICTR to international justice, and added its voice to calls for the establishment of an International Criminal Court. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted, establishing the functions, jurisdiction and structure of the ICC in The Hague.149 It entered into force in July 2002, after achieving 60 ratifications. At the time of writing, there are 124 States Parties to the treaty. 1.72  The ICC was established to try ‘the most serious crimes of international concern’150: genocide, crimes against humanity, war crimes, and the crime of aggression.151 These crimes ‘shall not be subject to any statute of limitations’.152 The interests of children are prominent within the descriptions of the four major categories of crimes over which the ICC has jurisdiction: see further Chapter 2, paragraph 2.133. 1.73  A further push towards individual accountability for crimes committed under international law came in 2000 with the establishment of the Special Court of Sierra 147 Canadian Armed Forces/Department of National Defence, ‘News Release: Canadian Armed Forces sets precedent with Child Soldier Doctrine,’ (Government of Canada, 2 March 2017) . 148 Various international instruments criminalise particular violations, for example crimes relating to terrorism. As noted at para 1.107 below, a detailed discussion of the impact of terrorism on children is beyond the scope of this book. 149 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (Rome Statute). 150 Art 1, Rome Statute. 151 Art 5, Rome Statute. 152 Art 29, Rome Statute.

30

Following in Machel’s Footsteps: Developments Since 1996  1.74–1.76 Leone (SCSL). In response to a letter dated 12 June 2000 from the President of Sierra Leone to the Secretary-General, on 14 August 2000 the UNSC unanimously adopted UNSCR 1315 (2000) requesting the Secretary-General to start negotiations with the Sierra Leonean government to create a Special Court.153 The SCSL was subsequently established by an agreement154 between the UN and the Government of Sierra Leone, and officially began its operations on 1 July 2002. 1.74  The SCSL was ground breaking in a number of respects. It was the first international court established by agreement between the UN and the state where crimes were committed; the first so-called ‘hybrid court’, where the involvement of the state and its nationals was considered of paramount importance; the first international tribunal to be established and to operate in the country where the alleged crimes took place, with a bespoke building constructed in Freetown; and the first court to view outreach and legacy as core elements of its work from a very early stage.155 The SCSL’s mandate, established under the Statute for the Special Court for Sierra Leone, included a hybrid jurisdiction empowering the Prosecutor to bring charges not only for war crimes, crimes against humanity, and other serious violations of international humanitarian law, but also certain serious violations of Sierra Leonean law.156 In addition, other specific international tribunals established include the Extraordinary Chambers in the Courts of Cambodia, in relation to the Khmer Rouge regime; the Special Panels of the Dili District Court in East Timor, and the Special Tribunal for Lebanon: see further Chapter 2, paragraph 2.137. E.  Revisiting the Machel Report 1.75  Since 1996 the Machel Report has continued to be a touchstone for progress in the area of children in armed conflict. In addition to the new measures and enhanced commitments it has inspired there have been two major follow-ups to the Machel Report itself. 1.76  In September 2000, the International Conference on War-Affected Children presented Machel with an opportunity to consider the progress made since the Machel Report was first presented to the UN. The assessment she presented, entitled ‘The Machel Review 1996–2000: A Critical Analysis of Progress Made and Obstacles Encountered in Increasing Protection for War-Affected Children’ (the 2000 Report),157 noted that, at that 153 UNSC Res 1315 (14 August 2000) UN Doc S/RES/1315. 154 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (adopted 16 January 2002, entered into force 12 April 2002) 2178 UNTS 138 . 155 SCSL and No Peace Without Justice, ‘Impact and Legacy Survey for the Special Court for Sierra Leone’ (Special Court for Sierra Leone and No Peace Without Justice, August 2012) 1 . 156 Statute of the Special Court for Sierra Leone (adopted 16 January 2002, entered into force 12 April 2002) 2178 UNTS 138, Art 5. The Statute is annexed to the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone. 157 UNGA, ‘The Machel Review 1996–2000: A Critical Analysis of Progress Made and Obstacles Encountered in Increasing Protection for War-Affected Children’, (26 January 2001) UN GAOR 55th Special Session UN Doc A/55/749 .

31

1.77–1.78  General Introduction time, approximately 20 million children had been uprooted from their homes, either as refugees or as internally displaced persons.158 In assessing global actions taken between 1996 and 2000, Machel identified a number of major and overarching themes, including ending impunity for crimes against children and ending tolerance for war; ensuring children’s centrality to the peace and security agenda; improved monitoring and reporting on child rights violations in conflict; the gender dimension of conflict and peace-building; adolescents as the ‘greatest resource’ in rebuilding war-affected communities; children under siege from HIV/AIDS (which she called ‘the single most powerful new factor compounding the dangers for children in a conflict’ to emerge in the previous five years); improving information, data collection and analysis on children in conflict; training and sensitisation on child rights and gender; supporting civil society to protect children; and mobilising resources for war-affected children.159 Under each of the headings she had used in her initial report (set out at paragraph 1.46 above), Machel noted the key developments to have taken place in that area, reiterating recommendations or articulating new recommendations for improvement. In addition, the 2000 Report identified and made recommendations in certain newly-significant areas in which she called upon the international community to focus its attention, such as media and technology, which had emerged as increasingly relevant to the situation of children in armed conflict in the years since 1996. Overall, the 2000 Report concluded that while much work had been done, much work remained to be done. 1.77  In 2006, work began on a 10-year Strategic Review of progress made since the original Machel Report. The Strategic Review was co-convened by UNICEF and the Special Representative on Children and Armed Conflict, with more than 40 UN agencies, NGOs and academic institutions contributing to the report.160 The initial findings were presented to the General Assembly in October 2007, as part of the Special Representative on Children and Armed Conflict’s annual report.161 A companion publication providing an in-depth look at progress and the remaining gaps followed in October 2009.162 1.78  The Strategic Review noted the changing characteristics of armed conflict, and the consequences for children. Among the emerging themes highlighted were: 1.78.1  One-sided violence becoming a feature of armed conflicts, with poorlyresourced and lightly-armed groups often preying on civilians; 1.78.2  An emerging category of ‘asset wars’, where economic interests commercialise and prolong conflict, with the risk that conflicts become self-perpetuating and protracted; 1.78.3  Conflicts involving non-state actors and shifting landscapes of transnational organised crime, where security vacuums lead to an increase in paramilitary forces

158 ibid. 159 ibid, 8–10. 160 UNICEF and the Office of the Special Representative of the Secretary-General for Children and Armed Conflict, Machel Study 10-Year Strategic Review: Children and Conflict in a Changing World (UNICEF, New York, 2009) (10-Year Strategic Review) 2. 161 UNGA, ‘Report of the Special Representative of the Secretary-General for Children and Armed Conflict’ (13 August 2007) UN Doc A/62/228. 162 UNICEF, 10-Year Strategic Review (n 160).

32

The Six Issues Considered in this Book  1.79–1.82 and the privatisation of conflict – causing grey areas around the definitions of armed conflict, and 1.78.4  A security discourse increasingly defined by terrorism and counterterrorism. 1.79  The recommendations made in the Strategic Review were prefaced with an acknowledgment that ‘the most effective way of protecting children’s rights is to prevent conflict and promote peace’.163 Against that backdrop, the recommendations were grouped within four overarching areas for action. These included securing universal implementation and compliance with international norms, with ending impunity as a top priority; caring for and protecting children in armed conflict; strengthening capacity, knowledge and partnership and preventing conflict and building peace.164 VII.  THE SIX ISSUES CONSIDERED IN THIS BOOK

1.80  The six issues considered in Chapters 3–8 of this book are, as explained above, intended to reflect some of the major topics relevant to the issue of children in armed conflict today. As illustrated by the selection of contemporary examples below, each is of pressing concern. A.  Killing and Ill-Treatment of Children 1.81  Some of the most horrifying recent examples of armed conflict have been attacks against children. 1.82 In Iraq, as of February 2017, an estimated 350,000 children were trapped in ­western Mosul. Save the Children described in evocative terms the grim choice for the children there: bombs, crossfire and hunger if they stayed or execution and snipers if they tried to run.165 As of May 2017, the UN estimated 200,000 children and their families remained trapped in the west of the city, cut off from access to clean water and in danger of disease.166 Echoing the Machel Report’s calls for ‘corridors of peace’, Save the ­Children called for an immediate creation of safe and secure escape routes for the people of West Mosul.167 The situation elsewhere in that country has been equally grim: the 2015 report of the Special Representative on Children and Armed Conflict documented ‘the killing of 679 children in Iraq (121 girls, 304 boys, 254 of unknown gender) and injury to

163 See n 161, para 102. 164 ibid, paras 102–17. 165 Maurizio Crivallero, ‘Save the Children statement on launch of offensive into western Mosul’ (Save the Children UK, 17 February 2017) . 166 UNICEF UK, ‘Crisis in Mosul: what’s happening in Mosul and how is UNICEF helping?’ (UNICEF UK) . 167 Save the Children UK, ‘Save the Children warns of deadly chaos as Iraqi government calls for civilians to flee last ISIS-held districts in west Mosul’ (Save the Children UK, 25 May 2017) .

33

1.83–1.86  General Introduction 505 others (111 girls, 282 boys, 112 of unknown gender) in 498 incidents (of which 356 could be verified), representing the highest number of documented child casualties since the establishment of the [MRM] in 2008’.168 1.83  According to the 2016 report of the Special Representative on Children and Armed Conflict presented to the UNGA, ‘children were disproportionately affected by the intensifying conflict in Afghanistan. The number of child casualties verified by the UN rose by 14 per cent since 2014 and reached the highest number ever recorded. One in four civilian casualties in 2015 was a child’.169 1.84  In the Central African Republic, the period between January to December 2014 was characterised by a sharp increase in the number of documented cases of killing of children, including babies as young as three months old. Children were caught in crossfire, killed with machetes and killed or injured by bullets. For example, in January 2014, four boys between nine and 10 years of age were beheaded by the non-state armed group ex-Séléka in retaliation for an attack against Muslim community members in Bangui.170 Between January and February 2014, 22 children, including nine girls, were killed during attacks by the non-state armed group anti-Balaka against ex-Séléka and Muslim ­communities.171 In August, Muslim youths associated with ex-Séléka attacked the Saint Joseph Cathedral in Bambari, killing 20 children and injuring four.172 B.  Recruitment and Use of Children 1.85  According to the UN, tens of thousands of boys and girls are associated with armed forces and groups in conflicts in more than 20 countries around the world. In the 2017 annual report of the Secretary-General on children and armed conflict, 61 of the 63 parties to conflict identified for grave violations against children were identified as recruiters and users of ‘child soldiers’.173 Not all ‘child soldiers’ are active in combat; some are used as porters, cooks, spies or ‘wives’ for fighters. The children are often kidnapped, but sometimes they are manipulated or indoctrinated, or promised money or a chance of a better life.174 1.86  The recruitment and use of children is particularly endemic in certain conflict areas. In the Democratic Republic of the Congo during the period from January to December 2014, the UN documented 241 cases of recruitment of children and at least 57 instances of use of children as ‘child soldiers’.175 However, in 2014 the UN secured the

168 Report of the Secretary-General, ‘Children in armed conflict’ (5 June 2015) UN Doc A/69/926, para 74. 169 Report of the Secretary-General, ‘Children in armed conflict’ (20 April 2016) UN Doc A/70/836, para 21 (emphasis added). 170 See n 168, para 42. 171 ibid. 172 ibid. 173 Report of the Secretary-General, ‘Children in armed conflict’ (24 August 2017) UN Doc A/72/361. 174 War Child UK, ‘Child Soldiers’ (War Child UK, 31 December 2015) . 175 See n 168, para 59.

34

The Six Issues Considered in this Book  1.87–1.89 release of 121 children (110 boys, 11 girls) from the FARDC.176 The children, who were as young as eight years old, had been ‘arrested, detained, and sometimes mistreated, including with beatings and deprivation of food and medical care, because of their alleged association with armed groups. Reports also indicate some children were used by security forces to gather intelligence and several children died from diseases or starvation while detained in the FARDC’s Kotakoli Camp’.177 1.87  In the Central African Republic, the UN documented 40 cases of child recruitment and use between January and December 2015.178 However, violations are thought to be largely underreported because of lack of access and limited monitoring capacity on the ground.179 A majority of ‘child soldiers’ deployed in the area were abducted by warlord Joseph Kony’s Lord’s Resistance Army (LRA). The UN has described the conflict in that area as ‘a war fought by children on children’ – with ‘child soldiers’ making up almost 90 per cent of the LRA’s soldiers.180 C.  Sexual Violence 1.88  In May 2017, Deputy Secretary-General Amina J Mohammed reported to the UNSC that the deep silence that had traditionally shrouded crimes of sexual violence was finally breaking, giving way to greater visibility and political will. ‘Global understanding of this scourge is shifting’, she observed, adding that it was rightly viewed as a legitimate threat to peace and security requiring an operational security and justice response.181 1.89  Despite this shift in understanding, sexual violence remains a pervasive scourge of armed conflict. In Côte d’Ivoire in 2014, the UN Operation documented 325 cases of rape, with 230 of the incidents committed against minors aged between two and 17 years. Most of these appear to be directly linked to armed conflict or its aftermath: according to the Special Representative of the Secretary-General for Sexual Violence in Conflict, the greatest risks of sexual assault in Côte d’Ivoire are in the western and northern parts of the country, which have the highest concentrations of ex-combatants.182 The UN verified

176 (French) ‘Forces Armeés de la République Democratique du Congo’. The FARDC has subsequently been de-listed in relation to recruitment and use of children, but remains listed for rape and other forms of sexual violence against children. See further ibid, para 60, and n 173, para 246. 177 US Department of State – Office to Monitor and Combat Trafficking in Persons, ‘Trafficking in Persons Report: July 2015’ (US Department of State, July 2015), 128 . 178 See n 169, para 35. 179 See n 168, para 41 (which notes that there were 464 cases of new recruitment between January and December 2014 but that violations were thought to be ‘largely underreported because of lack of access and limited monitoring capacity on the ground.’). 180 United Nations, ‘Uganda: Child soldiers at centre of mounting humanitarian crisis’ (10 Stories the World Should Hear More About – 2004 Stories, 2004) . 181 UNSC, ‘Shame, Stigma Integral to Logic of Sexual Violence as War Tactic, Special Adviser Tells Security Council, as Speakers Demand Recognition for Survivors’ (15 May 2017) Meetings Coverage SC/12819 . 182 Report of the Secretary General, ‘Conflict-related sexual violence’ (23 March 2015) UN Doc S/2015/203, para 69.

35

1.90–1.92  General Introduction 18 cases of rape and other forms of sexual violence committed by Forces républicaines de Côte d’Ivoire elements against girls.183 In September 2014, the Government of Côte d’Ivoire officially launched a national strategy to combat gender-based violence, with support from United Nations Action against Sexual Violence in Conflict and coordinated by UNFPA.184 And in the Democratic Republic of the Congo, from January to September 2014 the UN confirmed 334 cases of conflict-related sexual violence – that is, sexual violence that is directly or indirectly linked (temporally, geographically or causally) to a conflict185 – involving children (332 girls and two boys), out of a total of 698 confirmed cases (including against adults).186 1.90  Finally, although sexual violence is committed most frequently against girls: in the Central African Republic, the UN interviewed several boys following allegations of repeated acts of sexual violence by elements of ‘Operation Sangaris’ in and around the M’Poko camp for displaced persons in Bangui between December 2013 and May 2014. Their national authorities opened an investigation that is ongoing.187 In addition, rape and other forms of sexual violence against children continue to be of great concern in that country, where a 2015 UN report documented 2,527 cases of conflict-related sexual violence, including ‘rape perpetrated to terrorise civilians, with many victims being assaulted in their homes, during door-to-door searches and while sheltering in fields or the bush’.188 D.  Child Abduction 1.91  The past few years have seen Boko Haram terrorise civilians in Nigeria, particularly in the Chibok region in the north-east. Video statements released by Boko Haram indicated that the abductions were ‘in retaliation against the Government for the detention of relatives and also served as punishment for schoolchildren attending ­Western-style schools’.189 In one incident, on 24 November 2014, Boko Haram attacked a town called Damasak, blocking all four roads leading into the town and trapping ­residents and traders. The insurgents occupied Zanna Mobarti Primary School, shutting the gates and locking in more than 300 students, reported to be aged between seven to 17. The Boko Haram militants then used the school as a military base, bringing scores of other women and children abducted across the town there as captives. Hundreds of the children abducted remain missing.190 1.92 In Iraq and Syria, the UN has confirmed that over 1,000 girls and boys have been abducted by ISIS, and added that it considers this figure to be significantly 183 See n 168, para 57. 184 ibid, para 71. 185 ibid, para 2. 186 ibid, para 23. 187 See n 168, para 44. 188 See n 183, para 14. 189 See n 168, para 7. 190 Human Rights Watch, ‘Nigeria: A Year On, No Word on 300 Abducted Children – Government Response to Damasak Attacks Woefully Inadequate’ (Human Rights Watch, 29 March 2016) .

36

The Six Issues Considered in this Book  1.93–1.95 under-reported.191 In one incident in Syria on or around 29 May 2014, ISIS abducted approximately 150 young boys on their way home from a school exam in Aleppo. They were released from captivity after a few months; however, while in captivity, they were physically abused, indoctrinated and made to observe violent practices.192 E.  Attacks on Hospitals and Schools 1.93  The 2016 report of the Special Representative on Children and Armed Conflict observed that attacks on schools and hospitals were occurring with disturbing frequency, linked to the increasing use of air strikes and explosive weapons in populated areas.193 Armed groups particularly targeted girls’ access to education, although attacks on schools and hospitals were also carried out by government forces.194 In conflict zones across 22 countries, ‘More than 25 million children between 6 and 15 years old, or 22 per cent of children in that age group, are missing out on school’, according to UNICEF in April 2017. ‘At no time is education more important than in times of war’, said UNICEF Chief of Education Josephine Bourne. ‘Without education, how will children reach their full potential and contribute to the future and stability of their families, communities and economies?’195 From 2013–16, the ICRC recorded 2,400 targeted attacks against patients, health-care workers, transport and health centres in 11 countries.196 1.94  On a related note, sobering trends are visible in relation to the number of children whose education has been affected by armed conflict: at the primary school level, South Sudan has the highest rate of out-of-school children with close to 72 per cent of children missing out on education, followed by Chad and Afghanistan.197 These three countries also have the highest rate of girls who are out of school. At the lower-secondary-school level, the highest rates of out-of-school children are found in Niger, South Sudan and the Central African Republic.198 1.95  Almost half of all medical facilities in Syria are closed or only partially functioning. The World Health Organization recorded 126 attacks on health facilities in 2016, citing this as an increasingly common tactic over the five years of a war that is estimated to have killed more than 400,000 people. In November 2016, an air raid hit a children’s hospital in Syria’s rebel-held east Aleppo, ‘forcing medical staff to evacuate patients,

191 See n 168, paras 7, 77 and 204. 192 See n 168, para 7. Human Rights Watch has put the number of victims at 153: Human Rights Watch, ‘Syria: ISIS Holds 130 Kurdish Children – Kept Hostage for One Month’ (Human Rights Watch, 30 June 2014) . 193 See n 169, para 7. 194 ibid. 195 UNICEF, ‘25 million children out of school in conflict zones’ (UNICEF, 24 April 2017) . 196 See n 169, para 7. 197 UNICEF, ‘25 million children out of school in conflict zones’ (UNICEF, 24 April 2017) . See further the work done in this area by the Global Coalition to Protect Education from Attack (GCPEA), a consortium of NGOs: . 198 ibid.

37

1.96–1.97  General Introduction including several newborn babies still in incubators’.199 This attack left only four out of seven hospitals still operating in the district. As a result, hospitals and clinics in the area have been forced to move operations underground after months of relentless bombardment. A Syrian doctor, writing in response to a 2016 attack which killed 50 and wounded some 80 others, described as the most heart-breaking aspect of his work the need for doctors to choose which patients to save in circumstances where there are not enough doctors to treat everyone; their hospitals, ‘though they were the targets of bombs, still overflow[ed] with the sick and injured’.200 Schools in Syria have also been the targets of attacks: during 2016, the UN verified 76 attacks on schools and 11 attacks on education personnel resulting in 28 casualties among education personnel, a 40 per cent increase compared with 2015.201 To cite just one example, UNICEF reported that on 26 October 2016 a school in Idlib, northwest Syria, was ‘repeatedly attacked’, causing the deaths of 22 children and six teachers.202 1.96 In Afghanistan, the ICRC has described how ‘hospitals are under attack, and children are paying the price’.203 An attack on the Médecins sans frontières hospital in Kunduz in October 2015 caused deaths and injuries of 49 medical staff. The hospital was the only fully functioning trauma care facility for the north-eastern region of Afghanistan and had provided lifesaving procedures to 5,000 people in the period running up to the attack.204 An Afghan father described how his 15-year-old son lost both feet after stepping on a mine. He could not get proper care in Kunduz City, since the only trauma centre there had been destroyed, so he took a taxi for more than 200 miles to the capital, Kabul. By the time his son received treatment there, nothing could be done, and he ultimately died of his wounds.205 1.97  The impact of these attacks on the health-care system and health professionals has been profound. Casualties among children increased by 24 per cent from 2015 to 2016, according to the UN Assistance Mission in Afghanistan. The World Health Organization has reported that more than one million of Afghanistan’s children suffer from acute malnutrition, an increase of more than 40 per cent since January 2015. Communicable diseases are also up, for example, a reported 169 measles outbreaks in 2015, a staggering 141 per cent increase from 2014.206

199 Al Jazeera, ‘Syria war: Air raid hits children’s hospital in Aleppo’ Al Jazeera (19 November 2016) . 200 Osama Abo El Azz, ‘In Aleppo, We Are Running Out of Coffins’ New York Times (New York, 4 May 2016) . 201 n 173, para 180. 202 UNICEF, ‘Statement by UNICEF Executive Director Anthony Lake on deadly attacks against schools in Idlib, northwest Syria’ (26 October 2016), . 203 Christine Monaghan, ‘Afghanistan: Hospitals are under attack, and children are paying the price’ (ICRC, 30 May 2017) . We note that, in Afghanistan, attacks on schools remain a significant problem as well: see, eg n 176, para 28. 204 UNGA, ‘Report of the Special Representative on Children and Armed Conflict’ (25 July 2016) UN Doc A/71/205, para 6. 205 Christine Monaghan, ‘Afghanistan: Hospitals are under attack, and children are paying the price’ (ICRC, 30 May 2017) . 206 ibid.

38

The Six Issues Considered in this Book  1.98–1.102 1.98  The State of Palestine has suffered brutal impacts on schools and hospitals. In Gaza, during a two-month period in 2014, at least 262 schools were damaged in Israeli air strikes. Three public schools were completely destroyed, two Government schools were attacked and destroyed by air strikes, and at least 23 others were severely damaged. In addition, 274 kindergartens were damaged.207 Later that year, there were an additional seven instances of attacks on schools reported.208 During the same two-month period in 2014, 17 of the 32 hospitals in Gaza were damaged by Israeli air strikes or shelling. On one day, Al-Aqsa Martyrs Hospital was directly hit numerous times. Reportedly, no warning of the attack was given; as the UNSC warned, ‘that attack raises concerns about observance of the special protection accorded to hospitals under international law’.209 1.99 In Yemen, there have been numerous attacks documented against schools. In his 2014 Report, the Secretary-General reported 35 ‘attacks against schools on protected personnel, or threats against protected personnel’ as well as the documented military use of four schools by Al-Houthi/Ansar Allah and Salafist forces ‘resulting in the closure of the schools since October 2013’.210 The national armed forces were also reported as having used a school as a barracks from 19 January to 1 March 2013. F.  Denial of Humanitarian Access and Assistance 1.100  Recent reports by the Special Representative on Children and Armed Conflict and various NGOs have decried the failure by parties to armed conflict to permit and protect channels of humanitarian access to affected areas. 1.101 In South Sudan, the UN has reported having limited or no access to certain areas controlled by Sudan People’s Liberation Movement-North (SPLM-N) since the outbreak of conflict in 2011.211 Negotiations that included discussion regarding access were not successful, which affected the delivery of assistance to children. In 2012, for example, the Government and SPLM-N failed to reach an agreement on facilitating the vaccination of children in areas held by SPLM-N. As a result, at least 165,000 children could not receive polio vaccinations, and 575,000 children were denied other routine immunisation.212 1.102  In some cases, aid workers have been targeted. Recent examples have occurred in South Sudan213 as well as Afghanistan, where the UN verified 72 of 83 reported i­ ncidents 207 See n 168, para 98. The Guardian reported that more than 300 people (including children and women) were injured and at least 47 were killed: see Raya Jalabi, Tom McCarthy and Nadja Popovich, ‘Gaza crisis: a closer look at Israeli strikes on UNRWA schools’ (Guardian, 8 August 2014): . 208 See n 168, para 101. 209 ibid, para 105. On 22 July 2014, the BBC reported that 70 people had been injured and at least 5 were killed by the attacks on Al Aqsa: . 210 Report of the Secretary-General, ‘Children in armed conflict’ (15 May 2014) UN Doc A/68/878 S/2014/339, paras 158–59. 211 UNGA, ‘Report of the Secretary-General on children and armed conflict in the Sudan’ (6 March 2017) UN Doc S/2017/191, para 52. 212 ibid, para 52. 213 Karen McVeigh, ‘Seven dead in worst attack on aid workers since South Sudan war began’ The Guardian (London, 27 March 2017) .

39

1.103–1.106  General Introduction in 2014 affecting humanitarian access to children in Afghanistan. There were 125 abductions of humanitarian personnel, the killing and injuring of 41, and nine attacks on humanitarian convoys, including two UN convoys. Armed groups, notably the Taliban, were responsible for 85 per cent of all verified incidents.214 1.103  One of the worst recent examples of denial of humanitarian access is in Syria, where human rights groups and the UN have repeatedly criticised the Syrian Government’s refusals to permit aid to enter the country.215 VIII.  CONCLUSION AND SUMMARY

1.104  The issues raised in the Machel Report remain of pressing concern. However, political, technological, cultural, demographic and economic developments have contributed to those issues being presented in new permutations and in the form of different challenges. We note some factual features of the existing challenges. 1.105  First, the changing nature of conflict: inter-state conflicts have declined worldwide, but (as the 10-year Strategic Review of the Machel Report foreshadowed), like the mythological hydra, more small-scale, low-intensity intra-state wars – that is to say, non-international armed conflicts – have emerged to take their place. Often, these have an international element: for example non-state armed groups such as the LRA, originally based in Uganda, are active in a number of central African nations.216 Al-Qaida, affiliate groups, or groups inspired or spawned by it, such as its previous associate Boko Haram, have metastasised across the globe.217 ISIS, the most high-profile non-state armed group in recent memory, has an apparently international reach. The changing nature of armed conflict is particularly threatening to children as it tends to be waged by ill-trained combatants – who may have little or no knowledge of the relevant international law framework – armed with light, readily-available small weapons which nevertheless have the capacity to inflict serious harm.218 That harm is disproportionately threatening to children: injuries that an adult could sustain might kill a child. The same weapons are, horrifyingly, also more easily wielded by children too. 1.106  Second, the civilian setting: a worrying trend in modern armed conflict, reflective of its increasingly non-international character, is the tendency to bring the battle

214 See n 168, para 37. 215 See, eg, UNSC Res 2139 (22 February 2014) UN Doc S/RES/2139, calling for unhindered access for humanitarian aid agencies. See also Physicians for Human Rights, ‘Access Denied: UN Aid Deliveries to Syria’s Besieged and Hard-to-Reach Areas’ (Physicians for Human Rights, March 2017) ; Human Rights Watch, ‘Syria: Defying Security Council on Aid Access’ (Human Rights Watch, 28 March 2014) . 216 UNSC Committee established pursuant to resolution 2127 (2013) concerning the Central African Republic, ‘Lord’s Resistance Army’ (UNSC Subsidiary Organs, 7 March 2016) . 217 UN News Centre, ‘Boko Haram, Nigerian group that kidnapped schoolgirls, put on UN terror sanctions list’ (UN News Centre, 23 May 2014) . 218 UNSC, ‘Human Cost of Illicit Flow of Small Arms, Light Weapons Stressed in Security Council Debate’ (13 May 2015) Press Release SC/11889 .

40

Conclusion and Summary  1.107–1.109 into civilian settings. The 10-year Strategic Review alluded to this, identifying one-sided ‘conflicts’ featuring lightly-armed militia terrorising local populations. A common consequence of the ‘asset wars’ discussed above (paragraph 1.78.2) is often that children are used in various forms of hazardous labour to keep economic channels flowing. By their very nature, such factual scenarios complicate neat categorisation of venues such as schools and hospitals as humanitarian sites. 1.107  Third, the role of terrorism: in contrast to the state-versus-state conflicts of past centuries, or even the so-called revolutionary ‘freedom fighters’ of the twentieth century who aspired to become legitimate governments, many of today’s non-state armed groups are using terror as both an explicit tactic as well as a standalone aim. The threats to children range from the general, such as Boko Haram’s mass abductions of school children,219 to the specific, such as Malala Yousafzai being shot in the head in 2012 by the Pakistani Taliban for attending school.220 Notwithstanding the devastating impacts of terrorism on children, terror incidents can and typically do take place outside of armed conflict scenarios; an in-depth analysis of the relevant law in that area is therefore beyond the scope of this book.221 We note, however, that Common Article 3 to the 1949 Geneva Conventions (discussed at Chapter 2, paragraph 2.17) does apply to non-state armed groups in certain circumstances – and therefore, potentially, to terrorist groups as well. 1.108  Fourth, changes in technology: the 10-year Strategic Review expressed the hope that modern technologies might assist UN agencies and civil society groups to monitor and verify child rights violations in conflict situations, as well as allow them to promote community awareness in health, education and other vital areas. While that has certainly been the case, the proliferation of technology has proved to be a double-edged sword: social media can be used for propaganda and to recruit and indoctrinate children to spread conflict; mobile phones can be used both to call for emergency services as well as to detonate bombs; and drones and remote-controlled weaponry, while removing an attacking force’s personnel from danger, run the risk of accidentally targeting civilians. In recent years, examples have included the tactic by ISIS of using children as executioners in propaganda videos, or forcing them to become suicide bombers.222 Again, although advances in technology can and do impact children in conflict situations, their relevance is not isolated to such situations, and, as a result, a detailed analysis of the issue is beyond the scope of this book. 1.109  Plus ça change, plus c’est la même chose. Today, more than 20 years on from the Machel Report, this book identifies many of the same pressing concerns, and, in some respects, arrives at the same conclusion as both the Machel Report and the

219 See n 190. 220 UN News Centre, ‘Malala Yousafzai designated youngest-ever UN Messenger of Peace’ (UN News Centre, 10 April 2017) . 221 For an in-depth look at some of the ways children are exploited for terrorist purposes and how policymakers might strengthen protections in this area, see United Nations Interregional Crime and Justice Research Institute, ‘Children and Counter-Terrorism’ (UNICRI, Torino 2016). 222 Uran Botobekov, ‘Central Asian Children Cast as ISIS Executioners’ The Diplomat (20 September 2016) ; Martin Chulov, ‘Isis deploys child suicide bombers as Iraqi army advances’ The Guardian (London, 11 November 2016) .

41

1.110–1.112  General Introduction 10-year S­ trategic Review: while there are examples which justify feeling positive about progress to date, the situation for children in conflict remains serious. More has been done than ever before, but equally, more needs to be done than ever before. 1.110  Success stories: substance. However, there is room for optimism too, including in the success stories that have emerged following engagement with ANSAs and securing their agreement to abide by international principles. For example: 1.110.1  In September 2016, Colombian rebel group the FARC223 began handing over its ‘child soldiers’ with an ultimate aim of returning them to their families.224 The move was part of an agreement which ultimately led to a comprehensive peace accord with the Colombian Government which became effective in November 2016. 1.110.2  Elsewhere, one commentator has argued that the ‘naming and shaming’ process of listing armed parties to conflicts (both state and non-state) has achieved some success, ‘particularly in relation to encouraging armed group engagement with international legal obligations’.225 He cites the example of the Karenni National Progressive Party in Myanmar, which issued a statement appealing ‘once again to Ban Ki-moon, the Secretary-General of the United Nations, for the name of our armed force, the Karenni Army, to be removed from the list of non-state armed groups utilizing child soldiers’.226 1.111  Success stories: procedural accountability. The past 20 years have also seen developments in the kinds of accountability mechanisms employed to help states and victims ensure justice and attempt to end impunity. These mechanisms commonly fall into two forms: judicial courts or tribunals, ie formal bodies operating to set rules of procedure; and more informal, non-judicial processes.227 The most common non-judicial accountability mechanism over the last 20 years has been the Truth and Reconciliation Commission, of which there have been more than 25 worldwide.228 Children are increasingly playing a role in such mechanisms, as victims, and in some cases, as witnesses. The coming years will no doubt see new variations on these mechanisms incorporating different approaches to provide victims with an opportunity to provide testimony, help achieve reconciliation and assist rebuilding efforts, and ensure that justice is achieved. 1.112  A summary of this Chapter is as follows: • This Chapter summarises the developments in protecting children in armed conflict from the start of the twentieth century, especially in international humanitarian law (IHL), international human rights law (IHRL) and international criminal law (ICL).

223 (Spanish) ‘Fuerzas Armadas Revolucionarias de Colombia’. 224 BBC News, ‘Colombia Farc rebels hand over child soldiers’ BBC News (11 September 2016) . 225 Daragh Murray, Human Rights Obligations of Non-State Armed Groups (Oxford, Hart Publishing, 2016) 279. 226 Karenni National Progressive Party, ‘Call for the Karenni Army’s name to be removed from the list of nonstate armed groups making use of child soldiers in armed conflict’ (12 February 2008) Press Release No 1/08, cited in Murray, ibid, 279. The group remains listed. 227 Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘Working Paper No. 3: Children and Justice During and in the Aftermath of Armed Conflict’ (Office of the Special Representative of the Secretary-General for Children and Armed Conflict, New York, September 2011) 14. 228 ibid, 20.

42

Conclusion and Summary  1.112 • A convention on the position of children in armed conflict was first drafted in 1939. Another draft convention, similarly seeking to protect children in armed conflict, was produced in 1946. Neither convention materialised. • The original legal architecture of the Fourth Geneva Convention (GCIV) did not recognise the particular needs of children in times of armed conflict and therefore left a gap in the law. Many of the developments since GCIV – including the UN Convention on the Rights of the Child (CRC) and the Optional Protection on the Involvement of Children in Armed Conflict (OPAC) – may be characterised as attempts to fill that gap. Although these are important legal instruments, none of them has comprehensively addressed the position of children in armed conflict. The IHL and IHRL framework protecting children in armed conflict is scattered across multiple instruments and in customary international law (CIL). There is, therefore, no single instrument that sets out the applicable IHL and IHRL framework and there is no single, civil, international adjudicative body with the jurisdiction to adjudicate, develop and monitor accountability in this area. • The 1996 Machel Report highlighted gaps in the protection available to children in conflict, made valuable recommendations and led to significant developments and initiatives, including the increased attention and focus on the topic through the office of the Special Representative on Children and Armed Conflict; the UN Security Council focus and the annual reports of the Secretary-General. • The factual and political landscape has changed since the Machel Report in 1996. This means the nature of the remedial task – to fill the original gap in the legal architecture – has changed and broadened too. • Before the Machel Report and since, dedicated advocates have helped promote the need to protect children in armed conflict. The collective good will and commitment of these advocates is being undermined by certain factors which combine to leave children that are caught up in armed conflict insufficiently protected by the rule of law. • Thus: (i) existing legal protections are sometimes vague or ambiguous and could be clarified; (ii) existing legal protections are sometimes under-developed and could be strengthened, and (iii) certain international law instruments would benefit from more widespread ratification (and, possibly, greater domestic implementation) in order to enhance the substance of the available protections as well as accountability. We make specific suggestions in response to these factors in the chapters that follow. • In addition to these specific factors, there are two overarching, systemic problems in relation to IHL and IHRL. • The first problem is that the existing IHL and IHRL framework protecting children in armed conflict exists in multiple instruments as well as in CIL. This means that it is challenging to identify and understand the relevant legal framework that is applicable in a given situation. This is likely to be particularly difficult for non-state armed groups and victims who are less likely to benefit from access to expert legal advice and representation than states. It is questionable whether any useful purpose is served by maintaining the scattered nature of the existing IHL and IHRL protections (and the distinctions on which they are based). This is especially so where there is overlap in the content of the relevant IHL and IHRL norms. That is why we make a general 43

1.112  General Introduction suggestion: that consideration is given to collecting, in one international instrument, the protections applicable to children in conflict and codifying CIL. Consideration could also be given to whether to consolidate IHL and IHRL ie where there is consistent and overlapping legal content in a given IHL rule and IHRL rule then they could be brought together in one consolidated rule. A single instrument would be a constructive legal improvement to the status quo. We recognise that there may not be adequate political will to support such a proposal at the present time but that is not something that we have pre-judged, especially since our proposals are not time-sensitive and may find support in the future. We are also aware that there may be concerns about whether the exercise of collecting, codifying and consolidating existing treaty and CIL protections risks a lowering of standards and consider this further in Chapter 9. We do not anticipate that the instrument would need to include ICL since that is already collected in the Rome Statute and there is a single, criminal, international adjudicative mechanism in the form of the International Criminal Court. • The scattered nature of the existing IHL and IHRL protections for children in armed conflict (and the fact that they do not exist in one international instrument) contributes to the second problem: there is no specific, civil, international adjudicative body relating to children and armed conflict. This means that it is harder for victims to secure accountability on the international plane. It also means that domestic implementation and enforcement of the relevant IHL and IHRL is likely to be less effective and developed than it might otherwise be. Our suggestion of one instrument is designed to address this weakness in accountability. Although, as we have noted, there are other ways of enhancing the effectiveness of existing international mechanisms (viz, greater ratification of certain instruments), we consider that a single instrument with a single, civil, international adjudicative body is likely to be an important part of holistic legal improvement. • These two overraching problems may explain why, despite the progress there has been in the 20 years since the Machel Report, the present system still fails to provide adequate and effective protection for children. Consideration should, therefore, be given – now, again – to whether more can be done, practically and effectively, to clarify existing legal protections that are vague or ambiguous; fill substantive gaps and encourage more widespread ratification of certain international instruments. In addition, consideration should be given to whether steps (such as our suggestion of one instrument) might be taken to make the applicable (IHL and IHRL) legal framework easier to identify and to more effectively provide for enforcement and accountability. We recognise that this may be politically challenging but it would be, in our opinion, a constructive legal development. • We go on, in the rest of this book, to consider the existing legal framework and accountability mechanisms in order to make our specific and general suggestions for how the remedial task may, now, be undertaken.

44

2 Legal Sources, Structure and Accountability Mechanisms ‘The impact of armed conflict on children must be everyone’s concern and is everyone’s responsibility.’1

I. Introduction 46 II. Relevant Sources of International Law 49 A. Treaty Law 50 1. International Humanitarian Law 51 2. International Criminal Law 55 3. International Human Rights Law 56 B. Customary International Law 61 C. Soft Law 63 1. International Initiatives 63 2. Regional Initiatives 64 III. General Problems with the International Law Framework 65 A. Clarify Vague or Ambiguous Protections 65 B. Develop Missing or Inadequate Protections 65 C. Encourage Further Ratification of Existing Instruments 66 D. Collect the Complex and Scattered IHL and IHRL66 1. Classification of Armed Conflict and IHL 68 2. Relationship between Treaty Law and CIL 70 3. Relationship between IHL/IHRL 71 IV. Accountability Mechanisms 74 A. Accountability Mechanisms Overview: A Spectrum 74 B. IHL Accountability Mechanisms 77 1. Domestic Adjudicative Mechanisms 77 2. International Adjudicative Mechanisms 81 3. Other Accountability Mechanisms 82

1 UNGA ‘Impact of Armed Conflict on Children, United Nations: Report of the expert of the SecretaryGeneral, Ms. Graça Machel submitted pursuant to General Assembly resolution 48/157’ (26 August 1996) UN GAOR 51st Session UN Doc A/51/306/Add.1 (the Machel Report).

45

2.1–2.3  Legal Sources, Structure and Accountability Mechanisms C. ICL Accountability Mechanisms 1. Domestic Adjudicative Mechanisms 2. International Adjudicative Mechanisms 3. Other Accountability Mechanisms D. IHRL Accountability Mechanisms 1. Domestic Adjudicative Mechanisms 2. International Adjudicative Mechanisms 3. Other Accountability Mechanisms V. General Problems with Accountability Mechanisms VI. Conclusion and Summary

90 90 92 94 94 94 96 100 100 102

I. INTRODUCTION

2.1  The purpose of this Chapter is to provide a more detailed legal introduction, to supplement and expand upon the general introduction given in Chapter 1. This ­Chapter describes the principal sources of law, the structure of the legal framework and the principal accountability mechanisms regarding the issue of children in armed conflict. It provides the detailed legal context for Chapters 3–9. 2.2  We begin with two preliminary points. 2.3  First, in terms of scope: the issue of protecting children in armed conflict covers an enormous range of topics and multiple layers of law: international, regional and domestic. We have had to choose our focus. We note the following by way of explanation for that focus: 2.3.1  We consider the six grave violations that have been identified by the United Nations (UN) for the purposes of the monitoring and reporting mechanism (MRM): see Chapter 1, paragraph 1.60. Given this UN recognition and the international consensus on the importance of these issues they provide a useful starting point for a discussion of children’s rights in conflict. We acknowledge, however, that there are other pressing issues affecting children in conflict which require consideration, especially if our suggestion of a single instrument is taken forward (and we do not suggest that the single instrument should be restricted to the six grave violations). Such issues include the position of children as perpetrators of harmful acts or offences, the detention of children and the position of children as refugees. There are also other, broader, issues, such as peacekeeping operations and occupation (both of which give rise to distinct legal issues) that we have not generally covered but to which we occasionally refer. 2.3.2  Our focus is on international law in a general sense, rather than regional international laws which are binding only on certain states. We have included some reference to regional treaties and initiatives to illustrate the range of coverage in certain areas but we have not sought to exhaustively capture regional international law and practice. 2.3.3  Similarly, we occasionally refer to domestic laws and initatives by way of illustration. Those occasional references are not intended to diminish the significance of domestic law: not only is domestic law significant in and of itself, but domestic implementation and enforcement of international law is an essential part of securing accountability for violations of international law. Importing international law into 46

Introduction 2.4 domestic law has a number of positive ramifications. These include the fact that such domestication makes international law more accessible and enforceable: for example, it becomes easier for claimants to invoke and rely on international law in civil claims; reliance on international law before domestic courts generates case law which develops the international law norms in question; the cases (which may amount to state practice for the purposes of customary international law (CIL)) may lead to court orders enforcing international law, whether directly or indirectly and those court orders are more likely, and more easily able, to be upheld and enforced. Domestic implementation and enforcement therefore plays a vital role in contributing to a culture of compliance; it complements substantive international law and international accountability mechanisms. We have not considered the detailed extent to which there has been domestic implementation and enforcement of the various international laws that we describe regarding children in conflict and whether this has been effective. However, we infer – from the relatively limited case law and commentary regarding such domestication as there has been – that the extant domestication does not adequately provide, or has not been adequately invoked in order to so provide, the robust protection needed to safeguard the position of children in conflict. In light of that, we make a number of general recommendations in Chapter 9 regarding domestic implementation and enforcement. 2.4  Second, in terms of approach: this book considers both the substantive legal framework and accountability mechanisms. 2.4.1  Substantive framework: we introduce the legal sources and the legal framework that are discussed and applied in the subsequent Chapters. In Chapters 3–8 we describe the substantive legal framework relevant to each of the six grave ­violations; analyse that framework for general problems and deficiencies and then suggest improvements. Where we consider that there is a generally adequate framework we have not analysed its specific components to see whether the general adequacy could be further refined or improved. That is because we consider that it is more important, at this stage, to conduct an overall assessment of whether the substantive framework is fit for purpose. Further, in-depth analysis of refinements and adjustments is more appropriate at a later stage once that initial issue has been considered and resolved (ie once it is agreed that there is such a framework). Our general conclusions about the substantive legal framework are briefly summarised and introduced in this Chapter, see paragraphs 2.69ff below, and fully presented in Chapter 9. 2.4.2  In summary, in relation to the substantive framework, and as introduced in Chapter 1, paragraph 1.12, we make specific suggestions regarding (i) clarification of vague or ambiguous laws and (ii) development of inadequate or missing substantive laws, as well as (iii) encouraging more widespread ratification of international instruments (eg Additional Protocol I and II to the Geneva Conventions: see paragraph 2.21ff below). In addition, we make the general suggestion that the substantive international humanitarian law (IHL) and international human rights law (IHRL) framework (or, at least, some parts of it) should be collected and codified (re CIL) in one international instrument. Consideration could also be given to consolidating certain IHL and IHRL norms, ie where there is consistent and overlapping legal content in a given IHL rule and IHRL rule then they could be brought together in one consolidated rule. It might also 47

2.4  Legal Sources, Structure and Accountability Mechanisms be possible – depending, for example, on political will and international ­consensus – for the collection, codification and consolidation exercise to expand to include clarification or further development of substantive protections. We do not anticipate that the instrument would need to include international criminal law (ICL) since that is already adequately collected in the Rome Statute, although we suggest some potential refinements in the existing ICL. The single instrument we suggest could be promulgated as an additional Optional Protocol to the UN Convention on the Rights of the Child (CRC). Capturing the law in one instrument would not only enable easier identification and dissemination of the relevant legal framework but – importantly – it would provide for the possibility of greater accountability since one adjudicative body could be entrusted with developing and applying the norms in the instrument, for example by receiving and deciding civil claims by victims. We turn to accountability next. 2.4.3  Accountability mechanisms: in addition to the legal framework we have addressed accountability. We describe the general spectrum of accountability mechanisms that exist in the context of children and armed conflict. Our focus is on adjudicative accountability mechanisms: ie those mechanisms involving a court, tribunal or UN treaty body where a claim, prosecution or complaint is resolved and determined. This is because adjudicative accountability – the determination of rights and obligations by an independent and impartial tribunal governed by the rule of law – is one of the strongest forms of accountability. However, we have also considered other accountability mechanisms, such as those that exist within the framework of the UN. We have not considered in exhaustive detail how each of those accountability mechanisms have been applied in practice in relation to the six grave violations. Instead we have undertaken a more general review, by giving illustrations of how those mechanisms, along the range of the spectrum, have been applied in the context of each of the six grave violations. We have analysed the accountability mechanisms by reference to illustrations, for specific and general problems and deficiencies: the specific problems (and suggested improvements) have been noted in each Chapter as they arise whilst the more general problems (and suggested improvements) are summarised below, paragraph 2.158, and presented in Chapter 9. We have taken a similar approach to that set out above in relation to the substantive framework: ie where we consider that there are generally adequate adjudicative accountability mechanisms (both in terms of their existence and their functioning) we have not analysed them to see whether the general adequacy could be further refined or improved. Once again, that is because we consider that it is more important, at this stage, to conduct an overall assessment of whether the accountability mechanisms are fit for purpose and that further, in-depth analysis of refinements and adjustments would be more appropriate after it is apparent that there is such a framework. 2.4.4  In summary, in relation to accountability, and as introduced in Chapter 1, ­paragraph 1.12.3, there could be greater encouragement of more widespread ratification of the existing third Optional Protocol to the Convention on the Rights of the Child on a communications procedure – by which reports of violations of the CRC or the other Optional Protocols may be submitted by victims or advocates – and of the Rome Statute of the International Criminal Court (see paragraphs 2.50 and 2.29 respectively, below). The Special Representative for Children and Armed Conflict 48

Relevant Sources of International Law  2.5–2.7 could assist in raising awareness and securing greater ratification of such instruments. In addition, and further to our suggestion of a new international instrument: we suggest that an international entity (for example, the CRC Committee) could be given the competence to hear complaints and conduct inquiries into violations of the norms contained therein. If the CRC Committee were to be given such a role then it is likely that changes would be needed to its present composition (for example to include a greater number of members with expertise in IHL) and work arrangements. Such modifications seem more realistic and achievable than the alternative prospect of setting up an entirely new adjudicative body for the purposes of our suggested single instrument. II.  RELEVANT SOURCES OF INTERNATIONAL LAW

2.5  The protection of children in armed conflict is regulated by two principal sources of international law:2 treaty law and CIL.3 Both of these sources of law are considered below. We also identify some sources of ‘soft law’, ie international instruments that contain non-binding agreements or standards, but which may in time come to be regarded as reflecting rules of CIL or later codified in a treaty: see paragraphs 2.61ff below. 2.6  There are three broad areas of international law relevant to children in armed conflict: IHL, ICL, and IHRL. In this Chapter we introduce these three main areas of international law by providing an overview of the principal treaty law and CIL relevant to children in armed conflict. 2.7  Treaty law and CIL, as sources of both IHL and IHRL, include an overarching principle, known as the ‘principle of special protection’, which reflects the fact that the particular vulnerabilities of children qualify them for special protection.4 The scope of 2 The sources of international law are set out in Art 38, Statute of the International Court of Justice 1945, 59 Stat. 1055 (ICJ Statute). Art 38 provides, ‘1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognised by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognised by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.’ 3 A rule of CIL requires the presence of two elements: state practice and opinio juris. See North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (Judgment) [1969] ICJ Rep 3 available at para 77; and Case Concerning Military Activities in and against Nicaragua (Nicaragua v US) (Judgment) [1986] ICJ Rep 14 available at para 207. All websites referred to herein were accessed in June–August 2017. See also Draft Conclusions 2 to 10, ILC draft conclusions on identification of customary international law and commentaries, ILC Report, UN Doc. A/71/10 (2016), chap V. 4 Re IHL see, eg, Art 77(1), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (API); Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law: Volume 1: Rules (Cambridge, CUP, 2005, reprinted with corrections 2009) (ICRC Study on Customary IHL) Rule 135, which provides, ‘Children affected by armed conflict are entitled to special respect and protection’ (479ff). These Rules are also available online, where they are updated: see . We refer to them as ICRC, CIL Rule [X]. With regard to IHRL see, eg, Art 25, Universal Declaration on Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR); Art 24(1), International Covenant on Civil and Political Rights

49

2.8–2.10  Legal Sources, Structure and Accountability Mechanisms the principle is vague but it is designed to ensure that children as a group are afforded special protection by the law. One commentator has suggested that it requires parties to a conflict actively to assist or protect children, rather than merely to refrain from harming them.5 To similar effect, in a number of United Nations Security Council (UNSC) Resolutions and Presidential Statements, the UNSC has referred to the need for states to ‘take special measures to protect children’ in situations of armed conflict.6 A.  Treaty Law 2.8  In this section we introduce the three broad areas of treaty law relevant to children in armed conflict – IHL, ICL and IHRL – in turn.7 2.9  There are a large number of IHL, ICL and IHRL treaties that arguably protect children in armed conflict; at least 80 according to one commentator.8 This introduction focuses on those instruments that contain special protections for children: that is, protections specific to them as children rather than protections that are generally available (for example, to civilians). However, later Chapters address both special and general protections where necessary and include reference to additional treaties, for example the Convention on the Elimination of all Forms of Discrimination Against Women is not mentioned below but it is considered in Chapter 5. 2.10  We also note that where the UNSC issues UNSC Resolutions they may give rise to obligations under the United Nations Charter (UNC) that prevail over other obligations. This is as a result of the combined operation of Articles 25 and 103, UNC. These provide, respectively, as follows: ‘The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’ (Article 25) and, ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charted shall prevail’ (Article 103).

(adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR); Art 10(3), International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) and the UN Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC), in general. 5 Jenny Kuper, International Law Concerning Child Civilians in Armed Conflict (Oxford, OUP, 1997) 107. 6 See, for example, UNSC Res 2225 (18 June 2015) UN Doc S/RES/2225, para 1; UNSC Res 2143 (7 March 2014) UN Doc S/RES/2143, para 1; UNSC Res 2068 (19 September 2012) UN Doc S/RES/2068, para 2; UNSC Presidential Statement 25 (2015) UN Doc S/PRST/2015/25; UNSC Presidential Statement 8 (2013) UN Doc S/PRST/2013/8. These are all available at . 7 For convenience we have sought to group the relevant treaty law into these three areas. However, there are areas of overlap. For example, some treaties (such as the CRC) contains both IHL protections and IHRL rights whilst ICL draws its content primarily from IHL: see, eg Art 8, Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (Rome Statute). The number of ratifications to the treaties described below are given as of 6 February 2018. 8 Gus Waschefort, International Law and Child Soldiers (Oxford, Hart, 2017) 6–8. A comprehensive list of treaties that protect children in armed conflict can be found in International Bureau for Children’s Rights, Guide on Children in Armed Conflict: A guide to international humanitarian and human rights law (International Bureau for Children’s Rights 2010) (IBCR guide), available at , 363ff.

50

Relevant Sources of International Law  2.11–2.12 Resolutions adopted under Chapter VII of the UNC, are generally understood to be binding ‘decisions’ which may, depending on their proper interpretation, give rise to obligations pursuant to Article 103. Other Resolutions (such as those relating to sanctions) may also be binding. Circumstances may arise, therefore, where States may be obliged, as a matter of international treaty law (ie the UNC), to take certain steps as a result of ‘decisions’ of the UNSC.9 It is for this reason that, in the context of our assessment of non-adjudicative accountability mechanisms, we have taken account of UNSC Resolutions where relevant. However it is difficult to ascertain the extent to which, if any, these instruments have a concrete legal effect other than in ad hoc cases. 1.  International Humanitarian Law 2.11  IHL, or jus in bello,10 imposes constraints on the conduct of armed conflict. These constraints relate, broadly, to the conduct of hostilities and the treatment of persons.11 2.12  The purpose of IHL is to regulate both the conduct of hostilities and the treatment of persons by balancing the two principles of military necessity and humanity. This balance is expressed in the detailed rules of IHL. The principle of military necessity is defined by the International Committee of the Red Cross (ICRC) as permitting ‘­measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law. In the case of an armed conflict the only legitimate military purpose is to weaken the military capacity of the other parties to the conflict’.12 The definition, meaning and scope of application of the principle of humanity is controversial and the subject of debate: for example, in international law it has been said to describe the collective existence of human beings, that is, to provide the basis for a normative legal framework that looks beyond sovereignty to a concept more universal that is focussed on protecting all individuals and treating them ‘humanely’. However, this conceptualisation has been criticised for ignoring difference and thereby disadvantaging certain groups, or even excluding them from the concept of humanity.13 The principle is defined by the ICRC as forbidding ‘the infliction of suffering, injury or destruction not necessary for achieving the legitimate purpose of a conflict.’14 See further Chapter 3, paragraph 3.22. 9 For example, see R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58 [2008] 1 AC 332 and Serdar Mohammed v Ministry of Defence [2017] UKSC 2 [2017] AC 821, also considered below at para 2.77.3 and n 111. 10 It is distinct from jus ad bellum (sometimes referred to as jus contra bellum) which imposes constraints on when states may resort to war or the use of armed force. The basic principles are set out in the UNC. Art 2(4) contains a prohibition on the threat or use of inter-state force. Arts 42 and 51 set out two exceptions: the UNSC may use, or authorise the use of inter-state force ‘to maintain or restore international peace and security’ and states have an inherent right of individual or collective self-defence if an ‘armed attack’ occurs. 11 IHL has been described as containing three ‘currents’: the laws of The Hague, Geneva and New York: see Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War 4th edn (Cambridge, CUP, 2011) Ch 2. 12 ICRC Casebook, available at . 13 See, eg, the discussion in Larissa Fast, ‘Unpacking the Principle of Humanity: Tensions and Implications’ (2016) 97 International Review of the Red Cross 111–31, 116–24 and the contrasting views advanced in Theodor Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conscience’ (2000) 94 American Journal of International Law 78 and Anotonio Cassesse, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’ (2000) 11 European Journal of International Law 187. 14 ICRC, International Humanitarian Law: Answers to your Questions (ICRC 2015) available at , 6.

51

2.13–2.16  Legal Sources, Structure and Accountability Mechanisms 2.13  IHL applies in times of armed conflict only and there is a distinction between the rules applicable in international armed conflict (IAC) and non-international armed conflict (NIAC). These terms, IAC and NIAC, are considered further below, paragraphs 2.76ff. 2.14  IHL imposes obligations on all parties to armed conflicts, including non-state armed groups: 2.14.1  There is no universally accepted definition of non-state armed groups. However, the term is generally regarded as referring to an organised armed group that is not part of, or under the command of, the state/state institutions (for example, the army, police force) and that uses force in an attempt to achieve its objectives. Such groups are usually not given any formal or political recognition by states. Under both Common Article 3 to the Geneva Conventions and Additional Protocol II (APII), the group must have a certain degree of organisation – which may be indicated by a working command structure, the ability to plan and coordinate as a group and the ability to procure and distribute weapons as a group (see below at paragraph 2.77.2). 2.14.2  The characteristics of non-state armed groups can vary widely: some may control territory and have established administrative structures with representatives in many countries; others may have only loose command structures, control no territory and focus instead on a policy of disruption against the state; others may control no territory but operate transnationally; some may be opportunistic, interested in gaining material resources and power; others may act on the basis of religious or political ideology; some may be small, conducting guerrilla war; others may be engaged in armed conflict on a larger scale.15 2.14.3  As explained below, given the proliferation of NIAC and non-state armed groups, two key gaps in the protection of children are (i) the lack of clear and comprehensive substantive international laws that bind such groups (which makes strong domestic laws all the more necessary), and (ii) the lack of international legal mechanisms for holding such groups to account (which makes strong domestic enforcement and other forms of engagement, such as Deeds of Commitment,16 necessary). 2.15  The protection offered by IHL to an individual depends on his/her status as a member of a particular group. As a group, children are generally entitled to three levels of protection under IHL: (i) those that apply in general to all civilian members of the population; (ii) those that apply to children as alien civilian members of the population; and (iii) those that apply to children owing to their particular vulnerability. 2.16  The main IHL treaties relating to children in armed conflict are set out below, in chronological order. In summary, the relevant IHL treaty provisions relating to children in IAC are in the Fourth Geneva Convention (GCIV) and Additional Protocol I (API). The  relevant IHL treaty provisions in NIAC are less developed but include Common ­Article 3 and APII. 15 For more detail on the classification and characteristics of non-state armed groups see DCAF and Geneva Call, Armed Non-State Actors: Current Trends & Future Challenges (2015) Working Paper No 5 and Vincent Bernard, ‘Editorial: Understanding Armed Groups and the Law’ (2011) 93 882 International Review of the Red Cross 261. 16 Ch 1, para 1.67.5.

52

Relevant Sources of International Law  2.17–2.18 The Geneva Conventions (1949) 2.17  The four Geneva Conventions are the most significant IHL treaties.17 Their ­overarching goal is to protect persons who are not taking a direct part in hostilities. The Geneva Conventions apply to ‘all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them’, in other words, the Geneva Conventions apply in IAC.18 A minimum set of provisions, set out in Common Article 3, apply ‘in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties’, in other words, Common Article 3 applies in NIAC.19 Common Article 3 is binding on non-state armed groups: The exact mechanism by which common Article 3 becomes binding on an entity that is not a High Contracting Party to the Geneva Conventions is the subject of debate. Explanations include: that an entity claiming to be representing a State or parts of it, in particular by exercising effective sovereignty over it, enters into the international obligations of that State; that following the ratification of the Geneva Conventions by a State, common Article 3 becomes part of domestic law and therefore binds all individuals under the State’s jurisdiction, including members of a non-State armed group; that common Article 3 and other humanitarian law treaties intended to bind non-State Parties to non-international armed conflicts are international treaty provisions lawfully creating obligations for third parties, similar to how treaties can, under certain circumstances, create obligations for States not party to them; that when a State ratifies a treaty, it does so on behalf of all individuals under its jurisdiction, who can therefore become the addressees of direct rights and obligations under international law; that it ‘derives from the fundamental nature of the rules [common Article 3] contains and from their recognition by the entire international community as being the absolute minimum needed to safeguard vital humanitarian interests’; and that non-State armed groups can also consent to be bound by common Article 3, for example through the issuance of a unilateral declaration or special agreement between Parties to an armed conflict. A variety of these legal theories have been advanced to explain how non-State armed groups are bound by common Article 3, but it is undisputed that the substantive provisions of common Article 3 bind all such armed groups when they are party to an armed conflict.20

2.18  The First Geneva Convention (GCI) protects wounded and sick soldiers on land during armed conflict; the Second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea during armed conflict; the Third Geneva Convention

17 The text of and ICRC commentaries to the Geneva Conventions can be found here: . In this book, we refer to the 1958 commentary on GCIV as the 1958 ICRC Commentary on GCIV. There is an ongoing project to update the commentaries (at the time of writing only the updated commentaries for the First and Second Geneva Conventions have become available): see here for further information . 18 Common Art 2, Geneva Conventions. 19 Common Art 3, Geneva Conventions. 20 See ICRC Commentary to GCI (which includes the updated 2016 commentary; hereafter 2016 ICRC Commentary on GCI) available at paras 507–508 (internal citations omitted, emphasis added). See also Tilman Rodenhäuser, Organizing Rebellion (Non-State Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law) (Oxford, OUP, 2018), Ch 2 and 171–72.

53

2.19–2.24  Legal Sources, Structure and Accountability Mechanisms applies to prisoners of war; and, GCIV protects civilians, including those in occupied territory. As the Geneva Conventions have been universally ratified, all parties to an interstate conflict are bound by them;21 each party to NIAC is bound by the provisions of Common Article 3, which means, as noted above, that Common Article 3 binds non-state armed groups as well as states. 2.19  GCIV was the first multilateral treaty to specifically provide for children in armed conflict although, as we have noted in Chapter 1, paragraphs 1.25–1.29, there were two previous attempts, in 1939 and 1946, to codify the protections for children in armed conflict in one self-standing treaty. GCIV provides for both the general protection of children, as part of the civilian population, and, additional, special protection. The general protections are forfeited when, and for as long as, a child takes direct part in hostilities. The special protections cannot be forfeited. 2.20  GCIV came into force in 1950 and has 196 States Parties.22 Additional Protocol I to the GC (1977) (API) 2.21  Adopted in 1977, API23 expands the protections in the Geneva Conventions. It applies in IAC, viz, as described in Common Article 2.24 2.22  Along with APII (see below, paragraph 2.24ff), API was the first IHL instrument to regulate the recruitment and use of children in armed conflict. It contains special provisions for the protection of children, including Article 77. 2.23  API came into force in 1978. It has 174 States Parties.25 Additional Protocol II to the GC (1977) (APII) 2.24  Adopted in 1977, APII expands the Geneva Convention protection26 available in NIAC but it defines NIAC in a specific way, referred to hereafter as NIAC (APII). Thus, APII applies to all armed conflicts not covered by API and which take place ‘in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized army groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.’27 Although not stated in the text of APII

21 Common Art 2, Geneva Conventions. 22 States Parties to GCIV (and details of dates of ratification and signature) are available at . 23 API and its commentaries can be found here: . 24 Art 1(3), API. 25 States Parties to API (and details of dates of ratification and signature) are available at . 26 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (APII) and its commentaries can be found here: . 27 Art 1(1), APII.

54

Relevant Sources of International Law  2.25–2.29 itself, its drafting history and the ICRC Commentary on the Additional Protocols make clear that APII binds non-state armed groups as well as States Parties: The question is often raised how the insurgent party can be bound by a treaty to which it is not a High Contracting Party. It may therefore be appropriate to recall here the explanation given in 1949: the commitment made by a State not only applies to the government but also to any established authorities and private individuals within the territory of that State and certain obligations are therefore imposed on them. The extent of rights and duties of private individuals is therefore the same as that of the rights and duties of the State. Although this argument has occasionally been questioned in legal literature, the validity of the obligation imposed upon insurgents has never been contested.28

2.25  Special protections for children are set out in Article 4(3), APII. The specific protections (particularly with regard to child recruitment) are broader and stronger than those under Article 77, API.29 2.26  APII came into force in 1978. It has 168 States Parties.30 2.  International Criminal Law 2.27  ICL consists of norms that proscribe certain conduct and give rise to individual criminal responsibility where persons engage in that conduct. There is considerable overlap between IHL and ICL. 2.28  The principal ICL instrument is the Rome Statute,31 which binds States Parties and grants the International Criminal Court (ICC) jurisdiction over States Parties and individual citizens of those States Parties. The ICC has jurisdiction over genocide, crimes against humanity and war crimes32 when committed (i) by any individual in the territory of a State Party, or (ii) by nationals of States Parties (whether in the territory of party or non-party States).33 Our primary focus in this book is on war crimes, set out in Article 8; by definition these can only be committed during armed conflict. We consider the scope of the ICC’s jurisdiction at paragraph 2.133 below. 2.29  The Rome Statute came into force in 2002. It has 123 States Parties.34

28 Yves Sandoz and others (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Leiden, Martinus Nijhoff Publishers, 1987) para 4444; emphasis added. Note also: ‘[APII and Common Article 3] grant the same rights and impose the same duties on both the established government and the insurgent party’ (para 4442). We refer to this commentary hereafter in this book as the ICRC Commentary on the AP. It is also available at . 29 There are differing views as to the reasons for this. See Ch 4. 30 States Parties to APII (and details of their date of signature and ratification) are available at . 31 The full text of the Rome Statute of the International Criminal Court, adopted on 17 July 1998, entered into force on 1 July 2002, 2187 UNTS 3, is available at: . 32 Art 5, Rome Statute. 33 Arts 12–13, Rome Statute. 34 State Parties to the Rome Statute are listed here .

55

2.30–2.34  Legal Sources, Structure and Accountability Mechanisms 3.  International Human Rights Law 2.30  The primary object of IHRL is to regulate the manner in which states treat persons within their jurisdiction. It does this by providing substantive and procedural rights for the purpose of protecting individuals. Unlike IHL, IHRL confers the same rights on every person without distinction and the level of protection afforded does not, therefore, depend on a person’s nationality, legal status or connection to the armed conflict. IHRL treaties generally only impose obligations on the relevant States Parties. Non-state armed groups are not, therefore, commonly considered to be bound by the obligations in such treaties. 2.31  IHRL is generally applicable at all times: during armed conflict and in peace time. However, states may derogate from some IHRL treaty provisions in certain circumstances. For example, Article 15, European Convention on Human Rights (ECHR) and Article  4, International Covenant on Civil and Political Rights (ICCPR), permit derogation in a time of public emergency, subject to certain requirements.35 Interpretation of IHRL treaty provisions may, in certain circumstances, also entail having regard to relevant rules of IHL (treaty law and CIL) even where this may be said to amount to a substantive modification of the former.36 2.32  The jurisdictional reach of IHRL treaties is a developing area: for example, the case law of the European Court of Human Rights (ECtHR) extends the application of the ECHR to certain limited extra-territorial situations, including occupation and in circumstances where there is effective control of an area or state agent authority over the alleged victim.37 2.33  The main IHRL treaties relating directly to children in armed conflict are set out immediately below, in chronological order. We also note, more briefly, other, more general, IHRL treaties (including in the context of accountability mechanisms: see paragraph 2.51ff). Convention on the Rights of the Child (1989) 2.34  The Convention on the Rights of the Child (CRC) recognises and protects the social, civil, political, economic, health and cultural rights of children. It allows states considerable flexibility to implement the requirements set out therein in a way that is compatible with their domestic legal systems and cultural circumstances: for example, the CRC defines a child as any human being under the age of 18, unless, under the law

35 Art 15(1), Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) (ECHR). The provisions that cannot be derogated from are set out at Art 15(2), ECHR and Art 4(2), ICCPR. 36 See, eg, Hassan v UK App no. 29750/09 (Grand Chamber, ECtHR, 16 September 2014) and Art 31(3)(c), Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331. 37 For details of Art 1, ECHR case law applying the ECHR extra-territorially see para 2.147. On the application of IHRL to occupation: see the UN Human Rights Committee, General Comment No 31 ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (26 May 2004) UN Doc CCPR/C/21/ Rev.1/Add.13, para 10.

56

Relevant Sources of International Law  2.35–2.38 applicable to the child, majority is attained earlier. In addition to the specific rights of children, the CRC establishes a number of guiding principles applicable to all state activities and legislation concerning children, including a principle of non-discrimination,38 and a principle that ‘in all actions concerning children … the best interests of the child shall be a primary consideration.’39 2.35  The CRC also established the CRC Committee, a body of 18 independent experts. The CRC Committee oversees implementation of the CRC. It may (i) issue comments on the interpretation of the CRC; (ii) receive communications; (iii) conduct inquiries and (iv) receive and review country reports regarding the CRC.40 See further paragraph 2.153 below. 2.36  We have classified the CRC as being part of IHRL even though it contains IHL (in Article 38). This is since many of its provisions are in the nature of IHRL. However, unlike many IHRL treaties, the CRC does not contain a derogation clause. In 1994, the CRC Committee expressed the opinion that no provisions of the CRC could be derogated from in times of armed conflict, although some of the protected rights may be limited by law.41 In the context of armed conflict, the two provisions of the CRC of most significance are Articles 3 and 38. 2.37  Article 3(1) provides ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ The CRC Committee has elevated Article 3 (alongside Articles 2, 6, 12, CRC) to the status of a general principle: it regards these four general principles as overarching rights, particularly necessary for the fulfilment of all other rights protected by the CRC.42 The CRC Committee has emphasised that the best interests principle should be reflected in national legislation.43 2.38  Article 38 specifically addresses the rights of children in armed conflict. It provides that States Parties must respect their obligations under IHL; regulates the participation of children in hostilities and requires States Parties to take ‘all feasible measures’ to protect and care for child civilians affected by armed conflict. This provision made the CRC the

38 Art 2, CRC. 39 Art 3, CRC. 40 Art 43, CRC. 41 See Thomas Hammarberg, Vice-Chair of the CRC Committee, Keynote speech to the 1994 Amsterdam Conference on the Rights of Children in Armed Conflict, quoted in Stuart Maslen, ‘Relevance of the Convention on the Rights of the Child to Children in Armed Conflict’ (1996) 6 Transnational Law and Contemporary Problems 329, 330, n 1. Also see Ilene Cohn, ‘The Convention on the Rights of the Child: What it Means for Children in War’ (1991) 3 1 International Journal of Refugee Law 100–11, 105. 42 These four general principles were articulated by the CRC Committee in ‘General Guidelines Regarding the Form and Content of Initial Reports to be Submitted by States Parties under Art 44, Paragraph 1(a), of the Convention’ (30 October 1991) UN Doc CRC/C/5 available at , para 13. 43 See, for example, CRC Committtee, General Comment No 5 ‘General measures of implementation for the CRC’ (27 November 2003) UN Doc CRC/GC/2003/5, para 6; and further discussion in UNICEF, Implementation Handbook (3rd edn, 2007) available at , 39. Article 6, CRC protects the right to life and Article 12, CRC relates, inter alia, to the right of a child (who is capable of forming his or her own views) to express those views freely in all matters affecting the child.

57

2.39–2.44  Legal Sources, Structure and Accountability Mechanisms first IHRL treaty to contain IHL obligations, thereby blending legal regimes. The effect of Article 38 is considered in Chapter 3. 2.39  The CRC came into force in 1990. It has 196 States Parties.44 There are three Optional Protocols to the CRC which are addressed at paragraphs 2.45–2.50 below. African Charter on the Rights and Welfare of the Child (1990) (ACRWC) 2.40  Like the CRC, the African Charter on the Rights and Welfare of the Child (ACRWC) recognises and protects the social, civil, political, economic, health and cultural rights of children. The ACRWC requires States Parties to adopt legislative or other measures to give effect to the Charter.45 Article 22 directly addresses the use of children in armed conflict: it prohibits their recruitment as soldiers and direct participation in fighting wars. Like the CRC, the ACRWC does not contain a derogation clause. 2.41  Part II of the ACRWC established a Committee of Experts on the Rights and Welfare of the Child (the ACRWC Committee or the African Committee of Experts), which is responsible for overseeing the implementation of the ACRWC. It may (i) issue comments on the interpretation of the Charter; (ii) receive communications; (iii) commence investigations; and (iv) receive and review country reports regarding the C ­ harter. 2.42  The ACRWC entered into force in 1999. It has 41 States Parties.46 Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (ILO Convention 182) (1999) 2.43  ILO Convention 182 lists the ‘forced or compulsory recruitment of children for use in armed conflict’ as one of the worst forms of child labour.47 It applies to all children under 18 years. It is accompanied by ILO Recommendation 190, which calls on Member States to make such recruitment a criminal offence. 2.44  ILO Convention 182 came into force in 2000. It has been ratified by 181 Member States.48

44 The full text of the CRC is available at: . Details of States Parties are available here: . 45 Art 1(1), African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, entered into force 29 November 1999) OAU Doc CAB/LEG/24.9/49 (ACRWC). 46 The full text of the ACRWC is available at: . 13 African states have not yet ratified the ACRWC, details of ratifications are available at: . 47 Art 3, ILO Convention C182: Worst Forms of Child Labour Conventions 1999 (adopted 17 June 1999, entered into force 19 November 2000) (ILO 182). 48 The full text of ILO 182 is available at: ; details of ratifications are available at: . The full text of ILO Recommendation R190: Worst Forms of Child Labour Recommendation (87th session, Geneva, June 1999) (ILO Recommendation 190) is available at: .

58

Relevant Sources of International Law  2.45–2.50 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000) (OPAC) 2.45  The OPAC49 was intended to raise the standard of protection for children above the CRC, API and APII. It aims to promote the principle of non-recruitment and non-participation in armed conflict of children under the age of 18 years. It is the most detailed instrument on this topic. The OPAC binds States Parties and, to some degree, non-state armed groups. The OPAC cannot be derogated from in times of armed conflict. It is considered in detail in Chapter 4. 2.46  The OPAC came into force in 2002. It has 167 State Parties.50 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (2000) (OPSC) 2.47  The OPSC supplements the CRC by providing states with detailed requirements to end the sexual exploitation and abuse of children. Among other things, the OPSC defines ‘sale of children’, ‘child prostitution’ and ‘child pornography’,51 and creates obligations on governments to criminalise and punish these acts.52 2.48  The OPSC came into force in 2002. It has 174 State Parties.53 Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (2011) (OP3) 2.49  The Optional Protocol on the Convention on the Rights of the Child on a communications procedure (OP3) enables, amongst other things, individual complaints to be brought before the CRC Committee regarding violations of the CRC, the OPAC and the OPSC and provides an inquiry procedure for grave or systematic violations. The role of the CRC Committee is considered below, paragraph 2.153. 2.50  OP3 came into force in 2014. It has 37 States Parties – a strikingly low figure when compared with the near universal ratification of the CRC.54

49 The full text of the Optional Protocol on the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (adopted 25 May 2000, entered into force 12 February 2002) 2173 UNTS 222 (OPAC) is available at: . 50 Those parties and details of ratification are listed at . 51 Art 2, Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (adopted 25 May 2000, entered into force 18 January 2002) 2171 UNTS 227 (OPSC). 52 Art 3, OPSC. 53 Those parties and details of ratification are listed at . 54 The full text of Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (adopted 19 December 2011, entered into force 14 April 2014) UN Doc A/RES/66/138 (OP3) and details of ratifications is available at: .

59

2.51–2.56  Legal Sources, Structure and Accountability Mechanisms Other IHRL Treaties 2.51  The principle of the special protection for children is expressed in most, but not all, human rights treaties.55 The entitlement is expressed differently between the major IHRL treaties. 2.52  International Covenant on Civil and Political Rights (ICCPR): In addition to the general protections under the ICCPR which apply to children as individuals within a State’s jurisdiction,56 Article 24(1) states ‘Every child shall have, without any discrimination as to race, colour, language, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society, and the State’.57 2.53  International Covenant on Economic, Social and Cultural Rights (ICESCR): Article 10(3) of the ICESCR provides: ‘Special measures of protection and assistance … on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law.’ 2.54  American Convention on Human Rights (ACHR):58 Article 19 of the ACHR provides ‘Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the State’. In addition, ­Article 16 of the 1988 Protocol on Economic, Social and Cultural Rights provides that ‘Every child, wherever his parentage, has the right to the protection that his status as a minor requires from his family, society and the State’.59 2.55  African Charter on Human and People’s Rights (ACHPR):60 Article 18(3) of the ACHPR provides ‘The State shall … ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions’. 2.56  European Union Charter of Fundamental Rights (EU Charter):61 Article 24 of the EU Charter is modelled on the CRC.62 It provides, amongst other things, that ‘1. Children 55 There is no express article on children’s rights in the ECHR, although certain provisions specifically concern the treatment of minors: see eg Art 5(1)(d) on detention. However, like various other IHRL treaties, Art 8 provides for a limited right to respect for family life, which includes respect for the well-being and security of children. 56 Human Rights Committee, General Comment No 17 ‘Article 24 (Rights of the child)’ (7 April 1989) UN Doc HRI/GEN/1/Rev.8, para 2: ‘[c]hildren benefit from all of the civil rights’ found in the ICCPR. 57 See generally, Sarah Joseph and Melissa Castan, ‘Protection of Children – Article 24’ in Sarah Joseph (ed), The International Covenant on Civil and Political Rights: Cases, Materials and Commentary 3rd edn (Oxford, OUP, 2013) 701. 58 American Convention on Human Rights (adopted 21 November 1969, entered into force 18 July 1978) OAS Treaty Series No 36; 1144 UNTS 123 (ACHR). 59 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (adopted 17 November 1988, entered into force 16 November 1999) OAS Treaty Series No 69. 60 African Charter on Human and People’s Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 218 (ACHPR). 61 Charter of Fundamental Rights of the European Union (signed and proclaimed by the European Parliament, the Council and the Commission of the European Union, Nice, 7 December 2000) Official Journal of the European Union (26 October 2012) C 326/391 (EU Charter). 62 ‘Explanations Relating to the Charter of Fundamental Rights’, Official Journal of the European Union (14 December 2007) C 303/17, C 303/25.

60

Relevant Sources of International Law  2.57–2.58 shall have the right to such protection and care as is necessary for their well-being’ and ‘2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.’ 2.57  Arab Charter:63 Article 33(2) of the Arab Charter provides ‘The State and society shall ensure … the prohibition of all forms of violence or abuse … particularly against women and children. They shall also ensure the necessary protection and care for … children … and shall provide adolescents and young persons with the best opportunities for physical and mental development.’ B.  Customary International Law 2.58  Despite the number of multilateral treaties currently in force regarding children and armed conflict, CIL remains valuable and relevant for three main reasons. First, CIL is universally binding on states64 and some CIL may bind non-state actors too, for example certain rules of customary IHL bind non-state armed groups. Although this is a complex issue65 we have, as noted below, relied upon the ICRC’s CIL Rules as describing and evidencing the present state of CIL and we also rely on the ICRC’s conclusions that the majority of the CIL Rules that exist in NIAC are equally applicable to non-state armed groups.66 Second, and as a result of its universally binding nature, CIL may be able to ‘fill in the gaps’ in treaty law, for example by providing protection in areas that lack detailed treaty regulation, such as conduct in NIAC. Third, some norms in treaties (such as API and APII) that a state has not ratified may codify, crystallise or later become CIL and thus bind the state even if it does not choose to ratify the instrument.67

63 Arab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March 2008) reprinted in (2005) 12 International Human Rights Reports 893. 64 CIL is of universal application, with the rare exception of those situations where a state has persistently objected to the practice in question. For further detail on persistent objection see, ILC Draft Conclusion 15, ‘Draft conclusions on identification of customary international law and commentaries’, ILC Report, UN Doc. A/71/10 (2016), chap V: ‘1. Where a State has objected to a rule of customary international law while that rule was in the process of formation, the rule is not opposable to the State concerned for so long as it maintains its objection. 2. The objection must be clearly expressed, made known to other States, and maintained persistently.’ 65 For consideration of the extent to which CIL may be said to bind non-state armed groups, see, eg, Marco Sassòli, ‘Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law’ (2010) 1 International Humanitarian Legal Studies 5–51 and Rodenhäuser (n 20), 176. 66 The CIL Rules that bind states but not non-state armed groups are: Rules 141 (legal advisers for armed forces); 143 (dissemination among the civilian population); 144 (ensuring respect erga omnes); 149–50 (responsibility and reparation); 157–58 (jurisdiction over and prosecution of war crimes); and 161 (international co-operation in criminal proceedings). See Jean-Marie Henckaerts and Els Debuf, ‘The ICRC and the Clarification of Customary International Humanitarian Law’ in Brian D Lepard (ed), Reexamining Customary International Law (Cambridge, CUP, 2017) 161–88, 168. 67 See Draft Conclusion 11, ILC draft conclusions on identification of customary international law and commentaries, ILC Report, UN Doc. A/71/10 (2016), chap V: ‘1. A rule set forth in a treaty may reflect a rule of customary international law if it is established that the treaty rule: (a) codified a rule of customary international law existing at the time when the treaty was concluded; (b) has led to the crystallization of a rule of customary international law that had started to emerge prior to the conclusion of the treaty; or (c) has given rise to a general practice that is accepted as law (opinio juris), thus generating a new rule of customary international law. 2. The fact that a rule is set forth in a number of treaties may, but does not necessarily, indicate that the treaty rule reflects a rule of customary international law.’

61

2.59–2.60  Legal Sources, Structure and Accountability Mechanisms 2.59  The ICRC has published a Customary IHL database which ‘codifies’ rules of CIL; it is available online and regularly updated.68 It is composed of two parts: part one presents an analysis of 16169 existing rules of customary IHL (this list of rules is nonexhaustive); part two details the underlying state practice and opinio juris supporting the existence of the rules set out in part one.70 Some concerns have been expressed about the methodology underlying the ICRC study, notably by the United States.71 However, numerous states and UN bodies have referred to the study in support of describing the current state of particular rules of CIL which appears, to us, to be an implicit endorsement of the ICRC’s methodology.72 In this book we refer to the Rules and rely on them as describing and evidencing the present state of CIL. However, we acknowledge that – if our single instrument proposal is to be further considered – then it may be necessary to address in detail whether the relevant Rules, as formulated by the ICRC, accurately reflect CIL and warrant incorporation into a new instrument. Notable rules relating to children in armed conflict are as follows: 2.59.1  ICRC, CIL Rule 120: ‘Children who are deprived of their liberty must be held in quarters separate from those of adults, except where families are accommodated as family units.’ 2.59.2  ICRC, CIL Rule 135: ‘Children affected by armed conflict are entitled to special respect and protection.’ 2.59.3  ICRC, CIL Rule 136: ‘Children must not be recruited into armed forces or armed groups.’ And, 2.59.4  ICRC, CIL Rule 137: ‘Children must not be allowed to take part in hostilities.’ 2.60  However, even where there are existing rules of CIL they may suffer from vagueness and uncertainty. In general, it is often difficult to prove whether a rule of CIL has

68 Customary IHL database available at . 69 The vast majority apply to both IAC and NIAC (although there is some difference in the wording re IAC/ NIAC in Rules 124 (ICRC access to persons deprived of their liberty); 126 (visits to persons deprived of their liberty); 128 (release and return of persons deprived of their liberty); 129 (displacement)). Twelve of the Rules apply to IAC only: these are Rules 3 (definition of combatants); 4 (definition of armed forces); 41 (export and return of cultural property in occupied territory); 49 (war booty); 51 (public and private property in occupied territory); 106–08 (conditions for POW status, spies, mercenaries); 130 (transfer of own civilian property in occupied territory); and 145–47 (reprisals). Two of the Rules apply to NIAC only: Rules 148 (reprisals in NIAC) and 159 (amnesty). Apart from Rule 45 (which is not relevant for the purpose of this book: it relates to the prohibition of widespread, long-term, and severe damage to the natural environment), the remaining 160 Rules ‘reflect basic rules of IHL to which no state has felt the need to persistently object.’ See Henckaerts and Debuf (n 66) 187. 70 Although the Study is of rules of Customary IHL ‘practice under international human rights law has been included in the study’ (ICRC Study on Customary IHL, xxx). An explanation of the rationale and methodology involved in the ICRC study is here: . 71 The United States has noted its concerns ‘about the methodology used to ascertain rules and about whether the authors have proffered sufficient facts and evidence to support those rules.’ See the response of the USA here: . The response of one of the co-authors of the ICRC Study on Customary IHL (Jean-Marie Henckaerts, ‘Customary International Law: a response to the US comments’ (2007) 89 866 International Review of the Red Cross 473) is here: . 72 For some examples see Henckaerts and Debuf (n 66) 169–78.

62

Relevant Sources of International Law  2.61–2.63 been established. More specifically, there is a lack of uniform state practice regarding the definition of a ‘child’ in relation to Rule 120;73 similarly, there is no consensus or uniform practice in respect to the age for child recruitment at Rule 136.74 C.  Soft Law 2.61  We use the term ‘soft law’ to describe international instruments, bilateral or multilateral in character, that contain non-binding agreements or standards. Consideration of domestic soft law is beyond the scope of this book. So defined, soft law comes in a great variety of forms. It can be embodied in instruments that are international or regional; general or specific; declaratory or aspirational. Soft law tends to indicate emerging norms, which may harden in time into the basis for formal treaties or agreements, or custom followed out of a sense of legal obligation. The list below is illustrative, not exhaustive and chronological, under each heading, beginning with the first established. Further, and more specific, soft law is referred to in each Chapter (for example the Safe Schools Declaration is considered in Chapter 7). 1.  International Initiatives 1974 Declaration on the Protection of Women and Children in Emergency and Armed Conflict, GA Res 3318 (XXIX) 2.62  This declaration provides some special protections for children in armed conflict, whilst confirming the obligations states have under IHL and IHRL.75 1997 Cape Town Principles and Best Practices on the Prevention of Recruitment of Children into the Armed Forces and on Demobilisation and Social Reintegration of Child Soldiers in Africa (Cape Town Principles) 2.63  The Cape Town Principles were adopted at a symposium held by the United Nations Children’s Fund (UNICEF) in 1997.76 Most of the attendees were NGOs. The principles – a compilation of good practices – focus on ending the recruitment and use of children under 18 in armed conflict, demobilising children who are part of armed groups and forces, and ensuring the demobilisation and reintegration of children as part of peace processes.77

73 See ICRC commentary to Rule 120, ICRC Study on Customary IHL, 433ff, available at . 74 See ICRC commentary to Rule 136, ICRC Study on Customary IHL, 482ff available at . 75 A full text of the declaration is available here: . 76 A full text of the principles is available here: . The principles were initially regional but subsequently became international, which is why they are placed in this section of the book. 77 For further detail see IBCR guide, (n 8) 111.

63

2.64–2.68  Legal Sources, Structure and Accountability Mechanisms 2004 Minimum Standards for Education in Emergencies, Chronic Crises, and Early Reconstruction 2.64  These minimum standards provide guidance and a framework for coordination of educational activities of national governments, other authorities, funding agencies, and national and international agencies during conflict and post-conflict situations.78 2007 Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (Paris Principles) 2.65  In 2007, representatives from 58 countries gathered to commit themselves to ending the recruitment and use of children in armed conflict. The Paris Principles are the result of that meeting.79 In many ways, they reconfirm the Cape Town Principles. By 21 February 2017, the Paris Principles had been endorsed by 105 states.80 The Paris Principles were adopted at the same conference as the Paris Commitments, by which signatory States commit themselves not to recruit/use children in armed conflict.81 2.  Regional Initiatives 2000 Organisation of American States Resolution on Children and Armed Conflict 2.66  In this resolution, the Organisation of American States calls upon Member States to sign and ratify OPAC and ILO 182, and to respect IHL.82 2003 EU Guidelines on Children and Armed Conflict (revised in 2008) 2.67  These guidelines were the EU’s first attempt to summarise its policies on the protection of child rights in armed conflict. The guidelines seek to encourage a more coordinated approach to this issue.83 2014 African Commission on Human and Peoples’ Rights Resolution on the Situation of Women and Children in Armed Conflict 2.68  In this resolution, the African Commission on Human and Peoples’ Rights called on Member States to, amongst other things, condemn and prevent, through 78 For further detail see IBCR guide, (n 8) 115–16. A full text of the standards is available here: . 79 A full text of the principles is available here: . 80 See here . 81 Available at . See also the Vancouver Principles on Peacekeeping and the Prevention of the Recruitment and Use of Child Soldiers (November 2017), which build upon the Paris Principles, available here: . 82 A full text of the resolution is available here: . 83 For further detail see IBCR guide, (n 8) 116–17. A full text of the guidelines is available here: .

64

General Problems with the International Law Framework  2.69–2.71 legislation, violence against women and children in armed conflict. The Commission also initiated a study on the impact of armed conflicts on the rights of women and children in Africa.

III.  GENERAL PROBLEMS WITH THE INTERNATIONAL LAW FRAMEWORK

2.69  In order to provide some context for the analysis that follows in Chapters 3–8 we set out, here, by way of introduction, a summary of our conclusions on the international law framework regarding children in armed conflict. In our opinion, there are four problems with the substantive international law framework for protecting children in armed conflict. Before summarising them we note, as already explained in Chapter 1, that we consider that the principal weakness of the existing legal framework is the need to improve accountability. However, there is certainly room for improving some of the substantive protections. First, substantive protections are occasionally vague or ambiguous and could be clarified. Second, substantive protections are sometimes inadequate or lacking altogether and could be developed. Third, certain international law instruments which contain important substantive provisions could benefit from further ratifications (and others, containing important accountability mechanisms, could also benefit from ratification: see below). Fourth, although ICL is contained in one instrument (the Rome Statute), the relevant IHL and IHRL is complex and scattered across a variety of sources of law which means that it is challenging to identify the law. This is one of the two systemic problems (the other is the lack of compliance and accountability) that we identified in Chapter 1 and above and in response to which we suggest that consideration is given to a single instrument on children and armed conflict. We introduce these matters in turn below, note them where relevant in each of Chapters 3–8 and then develop them in Chapter 9.

A.  Clarify Vague or Ambiguous Protections 2.70 The first key problem is that some existing substantive protections are vague or ambiguous. Some of this lack of clarity is a consequence of the piecemeal development of the law; some of it may be a consequence of the difficulties in reconciling differences of opinion regarding the appropriate level or type of protection. But it is desirable, in order to strengthen the rule of law, to have as clearly defined and specific protections as possible in place of the vague or ambiguous ones. We identify these in the Chapters to follow and summarise them in Chapter 9.

B.  Develop Missing or Inadequate Protections 2.71 The second key problem (which overlaps to some extent with the first category where the vagueness or ambiguity may lead to inadequate protection) is that some substantive protections are inadequate or lacking altogether. Again, we identify these in 65

2.72–2.73  Legal Sources, Structure and Accountability Mechanisms the Chapters to follow and summarise them in Chapter 9. However, a striking illustration of arguable inadequacy is the fact that not all protections extend to those under 18: 2.71.1  The meaning of childhood varies widely between anthropological, sociological, psychological and cultural definitions.84 However, in the domestic law of many states the age of majority, the dividing line which distinguishes a child from an adult, has been codified and is generally set to 18.85 2.71.2  The situation is more complex as a matter of international law.86 For example, the CRC defines a child as a person under 18 years of age; so too does much of IHRL.87 However, Article 38 CRC only provides key protections for persons under the age of 15. As for IHL: many provisions of GCIV apply to children of different ages.88 And other provisions in GCIV refer to ‘children’, a term that is not defined in the Geneva Conventions.89 The Additional Protocols divide the treatment of children into those under the age of 15, and those aged between 15 to 18; different protections apply to each class. With regard to ICL, it is a criminal offence to recruit a child under the age of 15.90 C.  Encourage Further Ratification of Existing Instruments 2.72 The third key problem is that certain international law instruments which contain important substantive provisions are not universally ratified and would benefit from further ratification. This applies to API, APII, OPAC and OPSC. See paragraphs 2.29 and 2.50 above for other instruments, OP3 and the Rome Statute, that should be further ­ratified to increase accountability. D.  Collect the Complex and Scattered IHL and IHRL 2.73 The fourth key problem is that the international legal regime governing the issue of children in armed conflict has (as is often the case with international law91) developed 84 For detailed consideration of the ‘politics of age’ see Waschefort (n 8); and, David Rosen, Armies of the Young: Child Soldiers in War and Terrorism (New Brunswick NJ, Rutgers University Press, 2005) 132–58. For detailed consideration of the definition of ‘child’ in international law, see Claire Breen, ‘When is a Child not a Child? Child Soldiers in International Law’ (2007) 8 2 Human Rights Review 71–103. 85 For example, 18 is the age of majority in the UK, Australia, Canada, Russia, most of Europe, and most US States. 86 Roberta Arnold, ‘Children and Armed Conflict’, (2006) Max Planck Encyclopaedia of Public International Law section B for a survey of the different ages provided for in different legal instruments. 87 Art 1, CRC. As to the IHRL that defines a child as a person under 18, see: Art 2, OPAC, which prohibits the conscription of children under the age of 18; Art 2, ILO 182; Art 2, ACRWC. 88 See, for example, Art 14, which applies to children under 7; Art 24, which applies to children under 12 and 15; Art 68, which applies to children under 18. 89 See, for example, Arts 17, 50 and 82, GCIV. 90 See Arts 8(2)(b)(xxvi) and (e)(vii), Rome Statute. 91 See, for example, the comment of the Tribunal, established Part XV, Annex VII of the United Nations Convention on the Law of the Sea, in Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Award on Jurisdiction and Admissibility) (2000) 23 UNRIAA 1 (4 August 2000), para 52: ‘The current range of international legal obligations benefits from a process of accretion and cumulation.’

66

General Problems with the International Law Framework  2.74 in a piecemeal and haphazard way. Today, it consists of treaty rules of IHL, ICL and IHRL as well as CIL and domestic law. The complexity of the legal framework is illustrated by the length and detail of this book. Moreover, different rules are applicable in different kinds of armed conflicts and to different entities. Sometimes they are inconsistent; sometimes they overlap. In our opinion consideration should be given to collecting and codifying (re CIL), in one instrument, the applicable rules. Consideration should also be given to whether it is is possible to consolidate certain IHL and IHRL norms, ie where there is consistent and overlapping legal content in a given IHL rule and IHRL rule then they could be brought together in one consolidated rule. ICL is adequately captured in the Rome Statute. Collection, codification and consolidation of the overlapping aspects of IHL and IHRL is desirable because (i) it would enable the easier identification and dissemination of the applicable legal framework (in order to minimise the impact of the problems we note at paragraph 2.74 below, and others), and (ii) because if the applicable substantive framework (or, at least, the key parts of it) is in one instrument then it makes managing accountability that much easier, as we explain below, paragraph 2.158. These ideas are further developed in Chapter 9. 2.74  Three particular difficulties, that illustrate the complexity of the existing law, are as follows: 2.74.1  Classification of armed conflict and IHL. The existing legal framework is unnecessarily complicated by the need to classify a conflict in question (ie as either IAC or NIAC (APII) or general NIAC (Common Article 3)) before the source and content of the applicable IHL can be identified. This classification may be factually and politically difficult: see paragraphs 2.76ff below. The consequence of classification may not always make a difference to the outcome, for example where the content of the relevant norm that is applicable in IAC/NIAC (APII)/NIAC (Common Article 3) is similar. But the analysis still needs to be undertaken before that conclusion can be arrived at. The prerequisite of classification therefore complicates the process of identifying the relevant applicable law. If our proposal of a single instrument is taken forward that instrument would need to define a state of armed conflict (so as to trigger the application of the substantive provisions of that instrument) and this may not be without complexity. However, it would simplify the existing law because it would replace the three existing definitions of armed conflict with one definition. 2.74.2  Relationship between treaty law and CIL. There may be difficulties in reconciling existing sources of law – such as treaty obligations and CIL – where they regulate the same subject matter and their provisions are inconsistent. There may also be difficulty in determining whether an obligation contained in a treaty has also attained the status of an obligation under CIL (so as to bind non-states parties to that treaty): we discuss this at paragraph 2.81 below. 2.74.3  Relationship between IHL and IHRL. Not only does the search for the relevant applicable legal norm, whether of IHL or IHRL, require a consideration of multiple sources of law (and the relationship between them), but it also requires an understanding of the relationship between the different branches of law (ie IHL/IHRL) in order to determine which one is the applicable law. This may not always make a difference to the outcome, for example where the content of the relevant IHL and IHRL norm is similar. But the analysis still needs to be undertaken before that conclusion can be 67

2.75–2.77  Legal Sources, Structure and Accountability Mechanisms known and that analysis makes identification of the applicable law more complex. At paragraph 2.83ff below, we consider the relationship between IHL and IHRL. 2.75  We turn now to consider these particular difficulties in more detail. 1.  Classification of Armed Conflict and IHL 2.76  As noted above, IHL treaty provisions are applicable in specific contexts. IHL recognises two different classifications of armed conflict: IAC and NIAC. Different rules apply in each, although they sometimes overlap. Classification of a conflict as IAC or NIAC is often factually and politically complex. 2.77 The factual complexity is apparent from the definitions (insofar as they are discernible) of IAC and NIAC: 2.77.1  IAC. An IAC is an armed conflict between states.92 This is a factual, objective assessment; a declaration of war is not necessary.93 There is no minimum threshold for the duration of the conflict or its intensity.94 A struggle for national liberation against colonial domination and alien occupation and against racist regimes is also considered IAC.95 IAC is regulated by the most detailed IHL framework. 2.77.2  NIAC. It is harder to define, and therefore to identify, NIAC. IHL includes two types of NIAC: (i) Common Article 3 of the Geneva Conventions: Common Article 3 describes NIAC as ‘armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.’ It has been described as existing where violence between a state and a non-state armed group, or between nonstate armed groups (so long as these groups operate with a certain level of organisation), has reached a threshold of sufficient intensity.96 It may be difficult to ascertain: (i) whether the non-state armed group has adequate levels of organisation; and, (ii) whether the violence in question is of sufficient intensity. Common Article 3 of the Geneva Conventions governs conduct in all such NIAC. (ii) APII uses a more restrictive definition of NIAC: a NIAC (APII) exists where there is an armed conflict between a state and a non-state armed group that is

92 See Prosecutor v Tadic (Decision on the Defence Motion for an Interlocutory Appeal on Jurisdiction) ICTY, IT-94-1-A (2 October 1995), para 70: ‘… we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State. [IHL] applies from the initiation of such armed conflict and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment [IHL] continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.’ 93 Common Art 2, Geneva Conventions. 94 ICRC Commentary on the AP, para 62. See also Jann K Kleffner, ‘Scope of Application of Humanitarian Law’ in Dieter Fleck (ed), The Handbook of International Humanitarian Law 3rd edn (Oxford, OUP, 2013), 45, para 202. 95 For national liberation struggles, see Art 1(4), API. 96 See Prosecutor v Tadic (Decision on the Defence Motion for an Interlocutory Appeal on Jurisdiction) ICTY, IT-94-1-A (2 October 1995), para 70; Tadic (Judgment) ICTY, IT-94-1-T (7 May 1997), paras 561–68; Prosecutor v Limaj (Judgment) ICTY, IT-03-66-T (30 November 2005), para 84.

68

General Problems with the International Law Framework  2.78 organised ‘under responsible command [and] exercise[s] such control over a part of [a state’s] territory as to enable them to carry out sustained and concerted military operations and to implement [APII].’97 There are two key distinctions between NIAC (APII) and the definition in Common Article 3. First, APII requires non-state armed groups to have territorial control. Second, APII only applies to armed conflicts between a state’s armed forces and non-state armed groups; it does not apply to conflicts between non-state armed groups. APII also requires that the non-state armed group is engaged in sustained and concerted military operations. Where NIAC satisfies APII’s additional criteria, APII will regulate the conflict in addition to Common Article 3; otherwise, only Common Article 3 is applicable.98 APII contains far fewer, and less detailed, provisions than API (which regulates IAC). This is principally due to states’ concerns regarding sovereignty, including the need to avoid indirectly conferring any recognition or legitimacy upon non-state armed groups. 2.77.3  ‘Internationalised’ NIAC. Legally, IHL recognises only IAC or NIAC. However, recent armed conflicts may be difficult to categorise within these traditional definitions – as illustrated by the conflict in Syria99 – and this has led to some consideration of a possible, future, category of internationalised NIAC.100 No such legal category exists at present but the purpose of such attempts to fashion a hybrid category appears to be to recognise, and reflect, the political reality by (i) legal characterisation of a conflict as an internationalised NIAC; and (ii) the creation of a synthesised legal framework, for this category, which borrows features from IHL applicable in IAC and in NIAC. 2.78  The classification of a conflict may also be politically sensitive. For example, in relation to IAC: in some circumstances, states will resist the classification of a conflict as IAC for the effect it may have on international and diplomatic relations.101 In relation 97 Art 1, APII. 98 This is made clear by Art 1(1), APII: ‘This Protocol, which develops and supplements [Common Article 3] without modifying its existing conditions of applications …’. 99 Commentators have observed that: (i) by late spring 2011, the level of violence within Syria was such that an armed conflict existed; (ii) by March 2012, the Free Syria Army (FSA) was of sufficient organisation that NIAC existed between the FSA and the Syrian government; (iii) as part of that NIAC, external support for the Syrian government was provided by the Russian Federation, Iran and various foreign militia engaged in hostilities against the FSA (this potentially created an internationalised NIAC); and (iv) external support for the FSA was provided by Turkey, Jordan, Qatar, Saudi Arabia, the EU and the US (which – if one of these states is deemed to control the FSA – could potentially create IAC); and further, (v) there are questions as to whether a separate IAC came into existence between Syria and Israel. See Louise Arimatsu and Mohbuba Choudhury, ‘The Legal Classification of the Armed Conflicts in Syria, Yemen and Libya’ (Chatham House, March 2014) available at , 15–19. 100 See, eg, Mohammed v Secretary of State for Defence [2015] EWCA Civ 843, [2016] 2 WLR 247, para 170ff. In the ICRC’s view, there is no need for any such ‘hybrid’ category. The reasons for that view are detailed in the 2016 ICRC Commentary to GCI, Common Article 3 at paras 465–482, available at . 101 In Syria, for example, there is some question over whether there exists IAC between Syria and the US, as the US (at the invitation of Iraq) is using force against IS on Syrian territory without Syria’s consent. This classification is resisted by the US. See Adil Haque, ‘The United States is at War with Syria (According to the ICRC’s New Geneva Convention Commentary)’ (Blog of the European Journal of International Law, 8 April 2016) available at .

69

2.79–2.81  Legal Sources, Structure and Accountability Mechanisms to NIAC: states often refuse to recognise the existence of NIAC in their territory as such recognition could amount to state recognition of the non-state armed group and (in some cases) its occupation of state territory.102 2.79  Authoritative classification of conflict. Where matters concerning the conduct of hostilities come before a court, it will be required to rule upon the classification of the conflict in order to discern the applicable IHL. However, such rulings are of limited utility in authoritatively classifying armed conflict. This is primarily because such a ruling will usually be given after the relevant conflict has ended and in such cases it will not assist in identifying the applicable rules whilst it is ongoing. The ICRC is competent to classify conflicts, and on the basis of that classification will advise parties to the conflict of their duties under IHL. However, the ICRC’s classification does not bind states – who may disagree with it – and it will often not be made public.103 Military (and political) leaders may also form a view, in order to identify the applicable IHL, but their views are unlikely to be publicly known and may not be agreed by other parties to the conflict.104 2.80  Armed conflict. If our suggestion of a single instrument is taken up it will require the existence of an armed conflict before the provisions in it are engaged. We anticipate that this would be a defined term. Defining armed conflict in the instrument and applying the definition (to ascertain whether an armed conflict exists in a given situation) may not be without complexity. However, we consider that one definition of armed conflict would be an improvement on the present law, viz (i) so that the three existing definitions are replaced with one definition and (ii) so that the various existing protections (depending on the nature of the armed conflict in question) are replaced with, insofar as possible, standardised protection that applies, clearly and unambiguously, in all situations of armed conflict. 2.  Relationship between Treaty Law and CIL 2.81  Since treaty law and CIL are different sources of law, they may both apply to a given situation but with different consequences. For example, Article 77(2), API, and ICRC, CIL Rule 137 both regulate the participation of ‘child soldiers’ in hostilities but the

102 In relation to Northern Ireland, see eg Statement of the United Kingdom, 1503rd meeting of the Security Council, UN Doc S/PV.1503, 20 August 1969, invoking the ‘domestic jurisdiction’ clause in Art 2(7) of the UN Charter and stating that ‘[e]vents in Northern Ireland are … an internal matter for the United Kingdom Government. It is within the competence of the Government of the United Kingdom to restore and maintain order. That we are doing.’ In relation to Gaza, the Government of Israel stated that, since the start of the second intifada, ‘Israel is engaged in an armed conflict short of war’: see Sharm el-Sheikh Fact-finding Committee, ‘First Statement of the Government of Israel’, 28 December 2000, para 282. 103 See Interview with Kathleen Lawand, ‘Internal conflicts or other situations of violence – what is the difference for victims?’ (ICRC, 10 December 2012) ; and Andrew Carswell, ‘Classifying the Conflict: A Soldier’s Dilemma’ (2009) 91 873 International Review of the Red Cross , 153, n 38. We note that the Rule of Law in Armed Conflict Project (run by the Geneva Academy of International Humanitarian Law) and the Uppsala Conflict Data Program at the Department of Peace and Conflict Research at Uppsala University publicly classify conflicts. 104 See Art 87, API and Carswell, ibid.

70

General Problems with the International Law Framework  2.82–2.84 Article 77(2) protection is narrower than that under Rule 137.105 In such situations, a question may arise over how these different sources should be applied where they both contain content that applies to the same/similar issue. Consideration may need to be given to such matters as (i) whether the rule of CIL emerged after the treaty’s conclusion; (ii) whether it existed at the time and (iii) to the application of various rules of treaty interpretation, including Article 31(3)(c) of the Vienna Convention on the Law of Treaties (Article 31 is the ‘General rule of interpretation’ and is widely regarded as codifying CIL): ‘There shall be taken into account, together with the context … any relevant rules of international law applicable in the relations between the parties.’ The application of these, and other, interpretative rules may be contested and lead to lack of clarity or ambiguity. 2.82  The potential for such lack of clarity and ambiguity is a real one in relation to children in armed conflict since there are a large number of relevant treaty provisions and rules of CIL. This, in turn, may make it difficult to identify the applicable legal framework in a given situation. Whilst states (and their armed forces) may be able to navigate such legal intricacies, it is likely to be far harder for non-state armed groups and victims to be able to gain access to expert legal advice and understand the applicable legal framework. Setting out the framework in one instrument has the benefit of ensuring that as many people as possible – states, non-state armed groups, victims, NGOs – are able to identify and understand the applicable legal framework regarding children in armed conflict. This should make it easier to secure compliance and increase accountability. 3.  Relationship between IHL/IHRL 2.83  As stated above, paragraphs 2.11ff, IHL only applies in an armed conflict. IHRL, on the other hand, although applicable primarily in peace-time, also applies in an armed conflict, subject to derogation clauses (see above, paragraphs 2.31ff). This means that both IHL and IHRL norms may be applicable at the same time and to the same situation. This has been recognised by the International Court of Justice (ICJ): see below, ­paragraph 2.86.106 It is also recognised in many UNSC Resolutions, which often urge parties to armed conflict to comply with their obligations under both IHL and IHRL.107 2.84  The fact that both IHL and IHRL may be applicable to the same situation gives rise to difficulties because of the different, and sometimes inconsistent, content of IHL and IHRL norms. For example, IHL permits the internment and detention of civilians during IAC,108 whereas IHRL prohibits arbitrary detention109 and IHRL imposes more

105 Art 77(2) provides that parties shall take ‘all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces.’ ICRC, CIL Rule 137 simply provides that ‘children must not be allowed to take part in hostilities’ (ICRC Study on Customary IHL, 485ff). 106 See, for example, Legality of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion, 9 July 2004) [2004] ICJ Rep 136; DRC v Uganda (Judgment, 19 December 2005) [2005] ICJ Rep 168. These cases are considered in the footnotes below at nn 115ff. 107 See, for example, UNSC Res 2143 (7 March 2014) UN Doc S/RES/2143 and UNSC Res 2225 (18 June 2015) UN Doc S/RES/2225. 108 Arts 42 and 78, GCIV. 109 See, eg, Art 9, UDHR; Art 5, ECHR.

71

2.85–2.86  Legal Sources, Structure and Accountability Mechanisms r­ estrictive conditions on the use of lethal force in the context of the conduct of hostilities than IHL (see further Chapter 3).110 2.85  There are no general provisions in IHL and IHRL treaties for resolving such norm conflicts, for example there is no hierarchy of norms set out in such treaties. Instead, the resolution of such norm conflicts has been addressed on an ad hoc basis, including by courts.111 The relationship has been interpreted differently by different international and regional bodies.112 2.86  Perhaps the principal mechanism by which such conflicts have been sought to be managed is lex specialis.113 The maxim lex specialis derogat lege generali is a canon of construction and conflict resolution which states that specific rules should take precedence over general standards.114 The ICJ has considered the relationship between IHL and IHRL as one of lex specialis in three significant cases: the Nuclear Weapons advisory opinion,115 the Construction of a Wall advisory opinion,116 and in DRC v Uganda.117 However, the ICJ case law gives little detail on the application of lex specialis and since lex specialis does not clearly point to how the relationship between IHL and IHRL should be regulated, there are a number of ways that this could operate in practice, with different consequences for the regulation of armed conflict.118

110 The ICRC analysed the interplay between IHL and IHRL in their 2011 Challenges Report, 15–20, available at . 111 See, eg, Hassan v UK App no 29750/09, (Grand Chamber, ECtHR, 16 September 2014) and Serdar Mohammed v Ministry of Defence [2017] UKSC 2 [2017] AC 821. 112 For a summary of this difference see Kristin Hausler and others, Protecting Education in Insecurity and Armed Conflict (BIICL 2013) 47–54, where the authors set out the approaches of the ICJ, international human rights treaty bodies, international tribunals, the African Commission, the IACtHR, the ECtHR. 113 There are other mechanisms. For example: (i) Most Favourable Principle. This provides that the rule that provides the best protection must prevail: for further (critical) analysis see Waschefort (n 8), 81ff. (ii) Systemic Coherence. This provides that the relevant norms should adapt to accommodate the other, to the end of achieving systematic coherence between the two branches of law, rather than privileging one body of law over the other. For further analysis see Derek Jinks, ‘International Human Rights Law in Time of Armed Conflict’ in Andrew Clapham and Paola Gaeta (ed), The Oxford Handbook of International Law in Armed Conflict (re-print edn, Oxford, OUP, 2015), 666ff. 114 For a detailed discussion of lex specialis see ILC, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission’ (13 April 2006) UN Doc A/CN.4/L.682, paras 46ff. 115 The ICJ: (i) observed that the ICCPR, in particular the right not to be arbitrarily deprived of life, continued to apply during armed conflict; but, (ii) the test of what amounts to ‘arbitrary deprivation of life’ is determined by reference to the lex specialis; and, (iii) the lex specialis in armed conflict is IHL: Legality of Nuclear Weapons, Advisory Opinion (1996), para 25. 116 The ICJ: (i) observed that the protection of IHRL does not cease to apply during armed conflict (save through derogation) and, (ii) held that where both IHL and IHRL apply to a situation, the court will take into consideration both branches of law, but treat IHL as the lex specialis: Palestinian Wall, Advisory Opinion (2004), para 106. 117 The ICJ: (i) observed that both IHL and IHRL should be taken into account and, (ii) found violations of IHL and IHRL: DRC v Uganda (2005), paras 216–20. 118 For example: first, at one end of the spectrum, lex specialis could be said to require the complete displacement of the relevant IHRL norm by the relevant IHL norm. Second, it could be used so that the relevant IHL norm only displaces that part of the relevant IHRL norm where there is direct conflict between the two norms. Third, it could be applied so that IHL is deployed to determine the meaning of abstract standards in IHRL, thereby blunting the application of IHRL in armed conflict.

72

General Problems with the International Law Framework  2.87–2.89 2.87  It would not be helpful, in the context of this book, to embark upon an abstract analysis of whether lex specialis, or some other mechanisms (see n 113) might best protect children in armed conflict. Instead, we have referred to this debate regarding the IHL/ IHRL relationship to illustrate the lack of clarity regarding the applicable legal framework. This lack of clarity contributes to our conclusion that it is desirable to simplify, and move away, wherever possible, from the IHL/IHRL classification in this area, and to collect, codify and consolidate in one instrument the applicable IHL and IHRL legal framework for children in armed conflict. (As we noted earlier: we do not anticipate that the instrument would need to include ICL since that is already covered by the Rome Statute although we suggest some potential developments in the existing ICL.) 2.88  Our suggested consolidation may not be possible in relation to all relevant norms but, as is apparent from our review in the following Chapters, there is often considerable overlap in some of the content of the substantive protection provided by the relevant rules of IHL and IHRL. For example, some of the content of IHL and IHRL is similar in relation to the prohibition on sexual violence. In such cases, it creates unnecessary complexity to adhere to the classification of IHL/IHRL. Where there are differences between IHL and IHRL – for example the extent of a state’s obligation to conduct an investigation into loss of life – those can be distinguished as appropriate. Furthermore, there is already a precedent for a treaty that seeks to combine IHL and IHRL: the CRC. We suggest that the new instrument could build on that precedent by being framed as an instrument regarding the international law relating to children’s rights, rather than by reference to the terminology of IHL and IHRL. We emphasise that the purpose of the suggested consolidation in one instrument is not only to make the law simpler – and therefore easier to explain and disseminate – but also to enhance compliance and accountability by bringing all the relevant norms under the jurisdiction of one international, civil, adjudicative body. 2.89  We conclude this section by summarising the position of non-state armed groups, which we have already considered above. 2.89.1  There is limited IHL treaty law that is applicable to the conduct of hostilities in NIAC and therefore to non-state armed groups. That law is set out in Common Article 3 and APII (see above, paragraph 2.77.2). Common Article 3 contains basic protection and although APII contains more detailed provisions (albeit less detailed than API): (i) it applies to a more limited form of NIAC (see above, paragraph 2.77.2(ii)), and (ii) it only binds non-state armed groups operating in the countries that have r­ atified APII (168). This lack of substantive, detailed IHL treaty law that binds non-state armed groups is particularly problematic since the majority of recent armed conflicts are NIAC, not IAC (although both IAC and NIAC can exist simultaneously in a single state). 2.89.2  As we have noted above, paragraphs 2.58ff, customary IHL is an important supplementary source of law but – even supposing that it is accepted that there exists a particular rule of CIL – it is not always a straightforward matter to ascertain which rules of CIL may be said to bind non-state armed groups and, even where such rules may be identified, there remains the difficulty, noted above paragraphs 2.81ff, over the inter-relationship between rules of CIL and similar (and applicable) treaty rules. For the purposes of this book we have, as noted above, paragraph 2.58, conducted our analysis on the basis that the Rules in the ICRC Study on Customary IHL that are described 73

2.90–2.92  Legal Sources, Structure and Accountability Mechanisms as applicable in NIAC, and that are not identified as applicable only to states, may be relied upon as describing existing CIL that binds non-state armed groups. However, we anticipate that this is a matter that will require careful consideration in the event that there is political will to consider our suggestion of a new instrument. 2.89.3  It is debated whether, and in what circumstances, non-state armed groups may be bound by IHRL treaties and customary IHRL.119 2.90  Consideration should be given, by the relevant institutions, to the clarifications and developments of the law that we propose in Chapters 3–8 and to encouraging more widespread ratification of certain instruments. These specific suggestions are summarised in Chapter 9. 2.91  However, additionally, we have a more far-reaching and general suggestion. The existing situation, with the systemic problem of complex and scattered laws, is not conducive to creating strong international law protection for children caught in armed conflict. We suggest, therefore that consideration is given to collecting, codifying and consolidating, insofar as possible, in one legally binding instrument, the applicable IHL and IHRL framework. That process would also provide the opportunity to consider the clarifications and developments that we have suggested. We develop this in Chapter 9. As noted above, paragraph 2.73, this suggestion – of one new instrument – also has important ramifications for accountability: see further below, paragraph 2.158. Indeed, accountability is one of driving rationales for one instrument, as noted at paragraph 2.4.2 above. IV.  ACCOUNTABILITY MECHANISMS

A.  Accountability Mechanisms Overview: A Spectrum 2.92  International law must be applied and enforced – through mechanisms that apply legal standards to identified facts, assess whether particular acts or practices are or are not lawful, and, where appropriate, grant relief – in order to be effective. Accountability mechanisms may be seen as existing in a spectrum ranging from, at one end, ‘hard’ adjudicative accountability mechanisms through to softer forms of adjudicative accountability and into other, non-adjudicative, forms of accountability. As explained above our focus, in this book, is on adjudicative accountability because the determination of rights and obligations by an independent and impartial tribunal governed by the rule of law is one of strongest forms of accountability. However, we have taken account of other forms of accountability in order to convey an impression of the wide-ranging activity regarding the protection of children in conflict. The spectrum may be described as follows: 2.92.1  Adjudicative accountability mechanisms. At one end of the spectrum are adjudicative mechanisms which result in a judgment that is binding on the defendant (whether that is an individual or a state) and regarding which there is an available ‘hard’ enforcement process. This includes judgments given by domestic courts as



119 Rodenhäuser

(n 20), Chs 5–6. See also para 2.95 and Ch 8, para 8.84.

74

Accountability Mechanisms  2.92 a matter of domestic law120 (and where the defendant may be a public body or an individual) and judgments given by the ICC or an ad hoc tribunal (where the defendant will be an individual and where the judgment may, for example, require the defendant to serve a custodial sentence). 2.92.2  Further along this spectrum are judgments of international courts and tribunals, again produced as a result of an adjudicative mechanism, that are binding on the defendant state as a matter of international law. The judgment may declare that the state has violated an international law obligation or require it to provide reparation through, for example, the payment of compensation. There is often no ‘hard’ legal enforcement process for such judgments – although there may be a softer legal or diplomatic process.121 2.92.3  Yet another, softer, form of adjudicative accountability exists in the form of treaty bodies. Certain committees that have been set up pursuant to treaties provide an accountability mechanism. For example, as noted at paragraph 2.153, the CRC Committee has an adjudicative function (ie it is competent to receive and consider complaints against States Parties) and the ACRWC Committee also has a similar adjudicative function (see paragraph 2.151). However, the decisions of these treaty bodies are not accompanied by ‘hard’ enforcement mechanisms: see further below, paragraphs 2.150ff. 2.92.4  Non-adjudicative accountability mechanisms. There are a wide range of other accountability mechanisms. Perhaps most notable is the UNSC. States may be subject to binding decisions (as a matter of international law, pursuant to the UNC) as a result of UNSC Resolutions: see above, paragraph 2.10. For example, UNSC Resolutions may require states to impose sanctions on certain entities or individuals. If a state fails to comply with its obligations under a UNSC Resolution, there is no ‘hard’ legal enforcement action available to the UNSC but a number of other steps may be taken. For example: the UNSC may ‘name and shame’ states that fail to comply with such Resolutions. In addition, states’ obligations under the UNC (pursuant to UNSC Resolutions) may affect their other international law obligations and, therefore, UNSC Resolutions may be taken into account by courts when adjudicating on those other legal obligations (see n 9 for examples of two cases where the UK courts have considered the effect of UNSC Resolutions on the UK’s international law obligations pursuant to the ECHR). UNSC Resolutions may impose obligations

120 In relation to the possibility of prosecutions or claims before domestic courts we note that domestic legal systems have traditionally been classified as either ‘monist’ or ‘dualist’ to describe the approach taken by the state in question to the domestic implementation of the treaties it has ratified on the plane of international law. In monist systems, such treaties typically have direct legal effect and do not require domestic implementing legislation. In dualist systems, such treaties typically have no direct legal effect unless they are implemented by domestic legislation. 121 For example: (i) under Art 94(2), UNC, the UNSC can enforce judgments of the ICJ. However, under Art 94 the UNSC will only make recommendations or decide upon measures to be taken to give effect to the judgment if it deems this ‘necessary’. (ii) The adoption of necessary measures for the execution of ECtHR judgments is supervised by the Committee of Ministers of the Council of Europe (which is composed of representatives of the governments of the 47 Member States, and is assisted by the Department for the Execution of Judgments of the European Court of Human Rights). For details of this supervision process see here .

75

2.93–2.95  Legal Sources, Structure and Accountability Mechanisms on states but they may also express condemnation of certain acts and, as such, contribute towards political accountability. The UNSC may also contribute to accountability in other ways, for example through the Working Group: see below, paragraphs 2.118 and 2.123.6. 2.92.5  Accountability may be secured by formalised processes of reporting, ­advocacy, information gathering (often by way of reporting obligations) and monitoring. Some of the mechanisms at this end of the spectrum seek to identify the extent of a state’s compliance with international law obligations; monitor the extent of ongoing violations and identify areas for improvement. See, for example, the work of the Special Representative for Children and Armed Conflict, the annual reports of the Secretary-General on Children and Armed Conflict, the MRM and the monitoring functions of the CRC Committee and the ACRWC Committee (see below, paragraphs 2.123, 2.126 and 2.150ff). 2.92.6  Finally, accountability may be secured by the general information gathering, monitoring and advocacy work done by NGOs. 2.93  Before describing some of the relevant accountability mechanisms on this spectrum in a little more detail we make three introductory points. 2.94  First, our description of the existing framework of accountability mechanisms focuses on the processes that exist as a matter of international law; domestic accountability mechanisms are beyond the scope of this book as we noted at the outset of this Chapter. However, a key component of our proposals for next steps is the need for international law to be more rigorously and consistently enforced and upheld at the domestic level: by domestic legislatures, executives and courts. Domestic judicial enforcement may not be practically possible in states where the NIAC is taking place (for example because law enforcement or judicial infrastructure has broken down or is inadequate) and therefore it is essential that the legal framework of other122 (indeed, all) states enables them to participate in and facilitate such enforcement, where possible. In light of this, it is necessary to consider potential obstacles to domestic enforcement which may arise if such enforcement is sought to be carried out in states other than those where the NIAC is situated. Key obstacles are the issues of jurisdiction and immunity although it is inevitable that there will be other, practical, obstacles to starting domestic court proceedings, such as difficulties in promptly securing the necessary evidence. We consider these aspects of domestic enforcement further in Chapter 9. 2.95  Second, the defendants to the accountability mechanisms that involve adjudication or similar processes can be both states and individuals. This is because they are the legal actors that are subject to international law obligations and the jurisdiction of international, regional and domestic courts under IHL, ICL and IHRL. Non-state armed groups are also subject to certain obligations, primarily as a matter of IHL. As IHRL is generally

122 Where a NIAC is or has taken place and has resulted in deterioration or break down of law enforcement or the judiciary then the courts of neighbouring (rather than more distant) states may be well placed to prosecute, in their own courts, international crimes. They may have better access to witnesses and other evidence and may face fewer language and other cultural barriers (eg regarding the interpretation of evidence) than courts further away. However, there may be other difficulties in such states: eg lack of judicial independence or other rule of law concerns.

76

Accountability Mechanisms  2.96–2.98 only enforceable against states,123 it does not bind non-state armed groups although there may be ad hoc exceptions to this rule (for example, if a state has recognised the capacity of a non-state armed group for the purposes of entering into a bilateral human rights agreement with them, then the group may be bound by the terms of that agreement).124 Even though a non-state armed group may be bound by certain international laws, it is questionable whether it could, or would, be made a party to hard enforcement processes. This is primarily because it will either lack, or be regarded as lacking, legal personality as a matter of international or domestic law. This is, in part at least, because recognising legal personality could be regarded as undesirable since it may amount to formal recognition of the political legitimacy of the non-state armed group. Enforcing international law against such non-state armed groups is therefore one of the core challenges in this area. We consider this further in Chapter 9. 2.96  Third, by focussing our description, analysis and proposals on adjudicative accountability mechanisms we do not intend to diminish the role or significance of non-adjudicative accountability mechanisms. Indeed, we refer to examples of such mechanisms because they play an important part in securing accountability. However, we have focussed on adjudicative mechanisms since we consider that adjudicative accountability – the determination of rights and obligations by an independent and impartial tribunal governed by the rule of law – provides one of the strongest possible forms of accountability. Furthermore, as lawyers, we are better placed to analyse legal mechanisms rather than other, policy-based, mechanisms. 2.97  With those introductory points, we turn now to giving an overview of the ­principal accountability mechanisms in relation to the substantive legal framework set out above and by reference to IHL, ICL and IHRL. This is the background for the following Chapters of this book, each of which consider accountability mechanisms, with a focus on adjudicative accountability, in the specific context of their subject matter. B.  IHL Accountability Mechanisms 1.  Domestic Adjudicative Mechanisms 2.98  As noted above, this book does not review existing domestic implementation of the relevant international law or the domestic forms of acccountability (adjudicative or otherwise). However, in the section below, we provide a broad description of what IHL requires of states, domestically. We do so in order to develop what we have noted earlier, viz, the importance of domestic implementation and accountability as a way of securing compliance with international law. 123 For the possibility that the actions of an individual may be attributable to a state see, eg, Bosnia v Serbia 2007 ICJ Reports 43 at paras 397–407. 124 For example, the San José Agreement on Human Rights was entered into by the Frente Farabundo Martí para la Liberación Nacional (which was a non-state armed group at that time, ie in July 1990) and the Government of El Salvador; in that agreement the parties committed to respect human rights in El Salvador. Agreement available at . See the third recital to section I which states, ‘Bearing in mind that the Frente Farabundo Martí para la Liberación Nacional has the capacity and the will and assumes the commitment to respect the inherent attributes of the human person.’

77

2.99–2.100  Legal Sources, Structure and Accountability Mechanisms Duties to Respect and Ensure Respect 2.99  The context for the obligations of states to act upon IHL, including by giving domestic effect to it, are the duties to respect and ensure respect. States Parties to the Geneva Conventions and API are required to ‘respect and to ensure respect for’ the provisions of those treaties ‘in all circumstances’.125 CIL applicable in IAC and NIAC also requires that states and non-state armed groups respect and ensure respect for IHL.126 These obligations, to respect and ensure respect, reaffirm the binding nature of the Geneva Conventions and API, and the fact that these instruments impose both negative and positive obligations. 2.100  The duty ‘to respect’ reaffirms the general principle of pacta sunt servanda.127 The precise meaning and scope of the positive obligation to ‘ensure respect’ is fact-­ sensitive but, in short, it requires that States Parties do everything reasonably in their power to bring IHL violations to an end. This is a legal obligation.128 According to the 2016 ICRC Commentary on GCI (to Common Article 1 of GCI) the obligation to ‘ensure respect’ encompasses: (i) the armed forces and other persons or groups whose conduct is attributable to States Parties; (ii) the whole population over which a State Party exercises authority; and (iii) other states or non-state armed groups that are party to a conflict.129 Except where GCIV and API require States Parties to take specific measures, States Parties have some latitude in choosing the measures by which to ensure respect for those instruments, as long as the chosen measures are adequate to achieve the desired result.130 The duty to ensure respect is to be discharged with due diligence.131 Its precise content depends on the specific circumstances, including the gravity of the breach, the means reasonably available to the state, and the degree of influence it exercises over those responsible for the breach.132 More specifically, under CIL, states are forbidden from encouraging violations of IHL by others and must ‘exert their influence, to the degree possible, to stop violations of [IHL]’.133

125 Common Art 1, Geneva Conventions and Art 1, API. 126 ICRC, CIL Rule 139, ICRC Study on Customary IHL, 495ff. 127 See generally the rule codified in Art 26, Vienna Convention on the Law of Treaties: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’ 128 See Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva 12 August 1949, 2016 ICRC Commentary on GCI (n 20), Article 1: Respect for the Convention, paras 143–173 available at . 129 ibid, section E. 130 ibid, para 146. For example, for a suggestion that the duty to respect and ensure respect entails an obligation to investigate allegedly unlawful killings see ESC, Report of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, Philip Alston, UN Doc E/CN.4/2006/53 (8 March 2006), para 34. Note also Art 80, API which requires States Parties to ‘take all necessary measures for the execution of their obligations under the Conventions and this Protocol’. The ICRC Commentary on the AP, at paras 3288 and 3290, states that the concept of execution in this provision ‘covers measures introducing all or the relevant parts of the treaty into the legal order of each Contracting Party in accordance with the rules of its constitution’ and ‘actual application’. 131 ibid, paras 150 and 165–66. 132 ibid, paras 150 and 165. 133 ICRC, CIL Rule 144, ICRC Study on Customary IHL, 509ff. For further consideration of the scope of the duty to ensure respect see Knut Dörmann and Jose Serralvo, ‘Common Article 1 to the Geneva Conventions and the obligation to prevent international humanitarian law violations,’ (2014) 96 International Review of the Red Cross, 707–736, 726–732, available at.

78

Accountability Mechanisms  2.101–2.103 2.101  States are required to organise themselves appropriately, and are responsible for violations of IHL applicable in IAC and NIAC committed by members of their armed forces or others whose conduct is attributable to them under the law of state responsibility.134 While non-state armed groups are under an obligation to respect IHL,135 and required to operate under ‘responsible command’, the issue of the responsibility of non-state armed groups under international law for the conduct of their members is underdeveloped.136 This is a politically sensitive issue, since the possibility of international responsibility implies that the relevant non-state armed group enjoys international legal personality and status.137 In practice, as explained below, the relevant UN monitoring mechanisms are regularly required to make an assessment of whether certain conduct may be attributed (in a factual sense) to particular non-state armed groups.138 Domestic Investigation and Punishment 2.102  A particularly powerful mechanism for ‘hard’ accountability is the investigation of alleged violations and the punishment of perpetrators by state authorities at the domestic level: this may be achieved through regular domestic criminal law/procedures as well as through specific military codes/courts. We summarise the relevant obligations below. 2.103  IAC/all civilians: the following obligations to investigate/prosecute exist, amongst others, in IAC: 2.103.1  Grave breaches: States Parties to GCIV139 and API are required to: (i) enact legislation to criminalise ‘grave breaches’ (as extended by API); (ii) search for persons alleged to have committed grave breaches and (iii) prosecute or extradite such persons.140 The obligation to prosecute implies an obligation to investigate grave breaches. It also entails an obligation to provide for the universal jurisdiction of domestic courts over persons alleged to have committed grave breaches. As noted above, it is beyond the scope of this book to assess the extent to which states have done so.141 2.103.2  War crimes other than grave breaches: CIL requires the investigation of war crimes allegedly committed by national or armed forces, on a state’s territory.142 134 Art 43, API; Art 1, APII; ICRC, CIL Rule 149, ICRC Study on Customary IHL, 530ff. See also Articles on Responsibility of States for Internationally Wrongful Acts, annexed to UNGA Res 56/83 (28 January 2002) UN Doc A /RES/56/83. 135 Art 1(1), APII; ICRC Commentary on the AP (n 28), para 4442; ICRC, CIL Rule 139, ICRC Study on Customary IHL, 495ff. 136 See, eg, commentary to ICRC, CIL Rule 149: ‘It can therefore be argued that they incur responsibility for acts committed by persons forming part of such groups, but the consequences of such responsibility are not clear’ (ICRC Study on Customary IHL, 536). 137 Geneva Call’s Deeds of Commitment avoid this problem through assigning obligations to non-state armed groups whilst agreeing with the groups that this will not affect their legal status, pursuant to Common Article 3 of GCIV. 138 See eg (n 185). 139 We have focussed on GCIV because it is the Geneva Convention most relevant to the six grave violations. 140 Art 146, first and second paras, GCIV; Arts 85 and 86(1), API. 141 See for the ICRC’s database on national implementation of IHL. Details of state practice relating to domestic enforcement of war crimes is available at . 142 ICRC, CIL Rule 158.

79

2.104  Legal Sources, Structure and Accountability Mechanisms Moreover, if the state has established jurisdiction over such war crimes on another basis (for example universal jurisdiction), it is required to exercise that jurisdiction wherever possible. 2.103.3  Other breaches (ie breaches that do not amount to war crimes or grave breaches): States Parties to GCIV and API are required to take measures necessary to suppress all other breaches of those treaties arising from either acts or failure to act when under a duty to do so.143 States Parties may choose to discharge this obligation by criminalising other breaches in domestic law. However, they are not required to do so. It is also unclear whether the obligation to suppress violations of GCIV and API may entail an obligation to investigate, and what standard of investigation may be required.144 Where appropriate, commanders must initiate disciplinary or penal actions against those committing breaches of the Geneva Conventions or API.145 This implies a duty to investigate alleged breaches. 2.103.4  POWs and civilian internees killed or injured in special circumstances: Article 121 of GCIII and Aricle 131 of GCIV specifically require States Parties to immediately launch an official ‘enquiry’ into any death or serious injury of a POW or civilian internee in their custody which is ‘caused or suspected to have been caused by a sentry, another internee [or POW], as well as any death the cause of which is unknown’. If this indicates the guilt of one or more persons, the Detaining Power shall take all necessary steps to ensure the prosecution of those responsible. 2.103.5  Duty of commanders: commanders are required to prevent and, where necessary, to suppress and to report to competent authorities breaches of API and the Geneva Conventions, with a view to initiating disciplinary or penal action against the perpetrators. This implies a duty to investigate the alleged breach. 2.103.6  Duty to account for missing persons: Article 32, API recognises the ‘right of families to know the fate of relatives’. Article 33 requires States Parties to search for persons who have been reported missing by an adverse Party, and the ICRC Commentary refers to the need for a ‘real investigation’.146 2.104  NIAC: the following, more limited, obligations exist in NIAC. They apply to states and non-state armed groups: 2.104.1  Common Article 3 encourages parties to ‘bring into force, by special agreements, all or part’ of that provision. As the Special Representative for Children and 143 Art 146, third paragraph GCIV; Art 85(1) (acts) and Art 86(1) (failure to act when under a duty to do so), API. 144 The 2016 ICRC Commentary to GCI (n 20), Art 49, para 2896 states ‘The use of the formulation “shall take measures necessary for the suppression of all acts contrary to the Convention” implies that States Parties may take a wide range of measures to ensure that violations of the Conventions are stopped and measures taken to prevent their repetition. It is a far-reaching provision. States Parties will determine the best way to fulfil these ­obligations, for example by instituting judicial or disciplinary proceedings for violations of the Conventions other than grave breaches, or by taking a range of administrative or other regulatory measures or issuing instructions to subordinates. The measures chosen will depend on the gravity and the circumstances of the violation in question, in accordance with the general principle that every punishment should be proportional to the severity of the breach.’ 145 Art 87, API. See also ICRC, CIL Rule 153. 146 ICRC Commentary on the AP (n 28), para 1224. See also para 1233, referring to the need to carry out a ‘true investigation’.

80

Accountability Mechanisms  2.105–2.107 Armed Conflict has observed, ‘child protection dialogue with non-state actors’ is critical to achieving ‘the cessation of violence against children in situations of armed conflict and the provision of programmes for victims depends to a large extent on the establishment of such dialogue’.147 The Deed of Commitment for the Protection of Children from the Effects of Armed Conflict developed by the NGO Geneva Call has been signed by 23 non-state armed groups.148 2.104.2  APII does not expressly mention any obligation to investigate alleged breaches of APII. However, the investigation and prosecution of war crimes allegedly committed by national or armed forces, or on a state’s territory (or otherwise if there is jurisdiction), is required under ICRC, CIL Rule 158 (this rule only applies to states). 2.104.3  The duty of commanders, set out above at paragraph 2.103.5 and under ICRC, CIL Rule 153, also applies in NIAC. 2.105  The ICRC has published a set of Guidelines for Investigating Deaths in Custody.149 2.  International Adjudicative Mechanisms International and Regional Courts 2.106  ICJ.150 The ICJ was established by the UNC in 1945. It is located in The Hague, Netherlands. It settles disputes between states in accordance with international law.151 The ICJ does not have automatic jurisdiction over Member States of the UN; instead States are required to consent to the jurisdiction of the Court.152 Furthermore, only States can be parties to disputes before the ICJ.153 As a result, although cases concerning children and armed conflict may, in some circumstances, be brought before the ICJ, this has rarely happened. The ICJ also has advisory jurisdiction, which it can exercise to give legal opinions to bodies authorised by, or in accordance with, the UNC to make such a request.154 2.107  Other international/regional courts may also consider IHL issues but there is no court tasked to specifically oversee breaches of the Geneva Conventions (note, in light of

147 UNGA, ‘Report of the Special Representative to the Secretary-General for Children and Armed Conflict’ (6 August 2009) UN Doc A/64/254, para 19. 148 See and . The Deed of Commitment specifically reaffirms, among other things, the duty to treat child detainees humanely (para 5) and the duty to protect children from violence (para 7(ii)). 149 ICRC, Guidelines for Investigating Deaths in Custody (2013), available at . 150 Key cases brought before the ICJ relating to children in armed conflict include the following. (1) Armed Activities on the Territory of the Congo, Democratic Republic of the Congo v. Uganda (Judgment) [2005] ICJ Rep 168. In this matter the ICJ found Uganda to be guilty of serious violations of IHRL and IHL with regard to the recruitment and use of children. (2) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Authority (Advisory Opinion, 9 July 2004) [2004] ICJ Rep 136. In this matter the ICJ found that by constructing a wall in occupied Palestine, Israel had breached its obligations under IHL and IHRL. 151 Art 38, ICJ Statute. 152 Art 36, ICJ Statute. 153 Art 34(1), ICJ Statute. 154 Art 65, ICJ Statute. See also Kuper (n 5), 145–46.

81

2.108–2.112  Legal Sources, Structure and Accountability Mechanisms the overlap between IHL and ICL, the role of the ICC and also the potential competence of the CRC Committee to consider complaints regarding Article 38, CRC and OPAC, see below paragraph 2.153.1). This is in contrast to IHRL accountability mechanisms, which are usually linked to breaches of a particular treaty: see, eg, the ECHR and the ECtHR. These IHRL mechanisms are considered below at paragraphs 2.139ff. Treaty Bodies 2.108  There are no treaty bodies specific to IHL: but, as noted above, the CRC Committee may have competence to hear complaints regarding Article 38, CRC and also regarding OPAC (the same applies to the ACRWC Committee regarding the relevant provisions of the ACRWC). However, IHRL treaty bodies may consider IHL, for example incidentally or as part of the background, when considering IHRL in armed conflict (see below at paragraphs 2.150ff). 3.  Other Accountability Mechanisms Specific Accountability Mechanisms under IHL Treaty Law 2.109  The various accountability mechanisms in IAC that exist under GCIV and API – Protecting Powers, enquiry procedures, the IHFFC, and meetings of the HCPs to API and periodic meetings (all of which are described below) – have rarely been used in practice. There are no specific accountability mechanisms for alleged violations of IHL appliable in NIAC envisaged under GCIV or APII. This is consistent with concerns regarding sovereignty and the expectation that the state party to the conflict will address matters internally. 2.110  Protecting Powers: GCIV requires States Parties to agree to designate a neutral state or independent organisation to safeguard their humanitarian interests and monitor compliance with IHL.155 In practice, however, this has happened only very rarely.156 2.111 ‘Enquiry’ procedures: GCIV provides the possibility that a Party to the conflict may require a formal ‘enquiry procedure’ in the case of an alleged violation of the Convention, with the detailed procedure to be agreed between the parties.157 In practice, however, only four attempts to use the formal enquiry mechanism have been made since the procedure was first introduced in 1929, and none have resulted in the actual launching of the procedure.158 2.112  International Humanitarian Fact-Finding Commission: the IHFFC was established in 1991 pursuant to Article 90, API. Subject to the consent of the state parties to the conflict, it is competent: (i) to enquire into any facts alleged to be a grave breach or other serious violation of the Geneva Conventions or API, and (ii) to facilitate, through 155 Art 9, GCIV and Art 5, API. 156 The last reported instance was the IAC between the United Kingdom and Argentina over the Falklands/ Malvinas Islands in 1982. 157 Art 149, GCIV. The formal enquiry procedure was first provided for in Art 30 of the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (Geneva, 27 July 1929) 118 LNTS 303. 158 Silja Vöneky, ‘Implementation and Enforcement of International Humanitarian Law’ in Fleck (n 94), 689, para 1422.

82

Accountability Mechanisms  2.113–2.115 its good offices, the restoration of an attitude of respect for those instruments.159 In 2009, the UNGA granted the IHFFC observer status.160 However, it has only been triggered once.161 2.113  Meetings of the High Contracting Parties to API: Article 7, API provides that the depository of API (ie the Swiss Federal Council) shall convene a meeting of the HCPs ‘to consider general problems concerning the application of the Conventions and of the Protocol’ only upon the request of one or more Parties to API and subject to the agreement of the majority of HCPs.162 The depository has never organised such a meeting since API entered into force. 2.114  Since 1995 the depository has been specifically requested by the International Conference of the Red Cross and Red Crescent, to ‘organize periodical meetings of the States party to the 1949 Geneva Conventions to consider general problems regarding the application of IHL’.163 It was envisaged that the outcome of these meetings be transmitted to the next International Conference as well as to the HCPs. To date, this initiative has only triggered one meeting.164 2.115  Reform proposals: since at least 2003, it has been widely recognised by states and the ICRC that there is a need to improve compliance with IHL. Resolution I recognised ‘the importance of exploring ways of enhancing and ensuring the effectiveness of mechanisms of compliance with international humanitarian law, with a view to strengthening legal protection for all victims of armed conflict’.165 The Resolution also invited the ICRC to pursue further research and discussion aimed at exploring ways to strengthen the application of IHL, in cooperation with states who have a primary role in developing IHL. 159 Art 90(2), API. 160 UNGA Res 64/121 (16 December 2009) UN Doc A/RES/64/121. 161 See . For consideration of the implications for IHL accountability related to the recent triggering of the IHFFC, see . The IHFFC’s potential relevance as a mechanism for improving respect for IHL during armed conflict has been emphasised on several occasions. For example, the participants of the 31st International Conference of the Red Cross and Red Crescent (28 November – 1 December 2011) expressed a desire to find ways of making the IHFFC more efficient. More recently, at an informal meeting in July 2012, several States noted the potential of the IHFFC and advocated its use. See also Ch 7 para 7.78 for an example of recent proposed use of the IHFFC. 162 Unlike many international treaties, GCIV and API (as well as APII) do not provide that the HCPs shall meet regularly in the format of an ‘Assembly of States Parties’ or ‘Meeting of States Parties’ to discuss matters of common concern regarding the interpretation or application of IHL. 163 Recommendation VII, ‘Meeting of the Intergovernmental Group of Experts for the Protection of War Victims, Geneva, 23–27 January 1995: Recommendations’ IRRC No 304 January–February 1995, 37–38, as endorsed by Resolution I of the 26th International Conference of the Red Cross and Red Crescent (7 December 1995), paras 4 and 7 (referred to below as Resolution I). 164 On 19–23 January 1998, the representatives of 129 States Party to the GCs and 36 observer delegations met in Geneva to discuss two general topics related to the implementation of IHL: (i) respect for and security of the personnel of humanitarian organisations; and (ii) armed conflicts linked to the disintegration of State structures. The report of the meeting records that States wished the debates to be informal and did not intend to negotiate any new texts. Nevertheless, it is clear that the meeting served as a useful opportunity to identify the nature of the problems under consideration and for the discussion of potential remedies. 165 Resolution I, para 5.

83

2.116–2.117  Legal Sources, Structure and Accountability Mechanisms 2.116  Following the 31st International Conference, the Swiss Government and the ICRC jointly launched an initiative aimed at facilitating regular engagement between states on the issue of strengthening IHL compliance mechanisms.166 Between 2012 and 2015, nine Meetings of States on Strengthening Compliance with International Humanitarian Law were convened. In addition, the Swiss Government and the ICRC held a series of bilateral and multilateral discussions with states. Notwithstanding some earlier support for reforming the IHFFC, and general support for a regular ‘Meeting of States’ which could submit activity reports to the International Conference,167 there was no consensus among states at the 32nd International Conference in 2015. A compromise resolution was adopted, recommending the continuation of a state-driven intergovernmental process to agree on the features and functions of a potential Meeting of States and to find ways to enhance the implementation of IHL by the International Conference and IHL regional forums.168 In pursuit of these objectives – set down in Resolution 2 of the 32nd International Conference – the intergovernmental process to strengthen respect for IHL continues. Three formal intergovernmental meetings were held under the mandate of Resolution 2 between 2016 and 2017, and further meetings will take place in 2019. UNSC 2.117  Under Chapters VI and VII, UNC, if the UNSC has determined a situation to be a threat to the peace, breach of the peace or an act of aggression, it can enforce peace and security through either pacific settlement of the dispute or through enforcement action, either with or without the use of armed force. The UNSC’s ability to act is necessarily limited by the fact that it has five permanent members, each of whom has a power to veto decisions on everything other than procedural matters.169 This may, therefore, prevent the UNSC taking action (and has done so).170

166 For a comprehensive overview of the history of this intiative, which is still actively ongoing, see Jelena Pejic, ‘Strengthening compliance with IHL: The ICRC Swiss Initiative’, (2016) 98 International Review of the Red Cross 315–330, available at . 167 Chair’s Conclusions, Second Meeting of States on Strengthening Compliance with International Humanitarian Law (Geneva, 17–18 June 2013), 3 and 11–12. The Second Meeting also considered the possible functions of an IHL compliance system in greater detail (including, inter alia, periodic reporting, fact-finding, early warnings, urgent appeals, non-binding legal opinions and a possible format for regular dialogue on IHL compliance among states). 168 32nd International Conference of the Red Cross and Red Crescent, Resolution 2: Strengthening Compliance with International Humanitarian Law (8–10 December 2015), ICRC Doc 32IC/15/R2. 169 Art 27, UNC. Art 27(2) provides ‘decisions of the Security Council on [all matters other than procedural matters] shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.’ However, this Art has been modified by the subsequent practice of the UNSC: it is not necessary for a decision to be adopted with the concurring vote of the P5, an abstention on their part will suffice. See: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, para 22. 170 For example (i) in October 2016, the veto of the Russian Federation prevented adoption of a resolution (proposed by Spain and France) that demanded an immediate halt of aerial bombardments and military flights over Aleppo: UNSC ‘Security Council Fails to Adopt Two Draft Resolutions on Syria, Despite Appeals for Action Preventing Impending Humanitarian Catastrophe in Aleppo’ (8 October 2016) Meetings Coverage SC/12545.

84

Accountability Mechanisms  2.118–2.121 2.118  As we noted in Chapter 1, paragraph 1.60, the issue of children and armed conflict has been on the UNSC’s agenda since UNSC Resolution 1261 in 1999. There are three principal uses of the UNSC’s powers that are relevant in the present context: referral to the ICC, imposition of sanctions, and ad hoc intervention (including by way of UNSC Resolutions) in specific conflicts. There is also a UNSC Working Group that is part of the UN information gathering and monitoring process and the UNSC may issue Presidential Statements. These are not binding but reflect the consensus of UNSC members and are therefore an indicator of international opinion. The UNSC has issued 10 presidential statements relating to children and armed conflict since 1998.171 The Special Representative for Children and Armed Conflict has referred to these statements as an important tool to better protect children in armed conflict.172 2.119  Referral to the ICC. The UNSC’s broad powers under Chapter VII (recognised by Article 13, Rome Statute) enable it to refer a situation to the ICC where it considers there to be ‘a threat to the peace, breach of the peace, or act of aggression.’173 If the UNSC refers a situation to the ICC then individuals can be prosecuted by the ICC, (i) regardless of whether or not they are nationals of a State Party to the Rome Statute, and (ii) regardless of whether or not they committed the crimes in the territory of a State Party.174 To date, the UNSC has only made two referrals to the ICC: Sudan and Libya.175 The highly politicised nature of the UNSC, and the veto powers of the permanent members, is in large part the reason for so few referrals. 2.120  Sanctions. The UNSC’s Chapter VII powers enable it to impose sanctions – such as arms embargoes, travel bans and financial measures – in order to maintain or restore international peace and security.176 2.121  Ad hoc intervention in specific conflicts. As set out above at paragraph 2.10, UNSC Resolutions are binding on all Member States and may displace other o ­ bligations: the specific language and context of the Resolution will need to be scrutinised to see whether that is so. UNSC Resolutions may be used on an ad hoc basis, in the context of specific conflicts. They may also express condemnation or encourage compliance: for example, UNSC Resolutions have often called on states to comply with their obligations as a matter of IHL in a number of recent armed conflicts.177

(ii) In May 2014, China and the Russian Federation vetoed the adoption of a resolution calling for the situation in Syria to be referred to the ICC: ‘Russia and China veto UN move to refer Syria to international criminal court’, The Guardian (22 May 2014) . 171 Presidential statements on children in armed conflict are at . 172 See Special Representative on Children and Armed Conflict website at . 173 Art 39, UNC. 174 For discussion of these referrals see Sonja Grover, Prosecuting International Crimes and Human Rights Abuses Committed Against Children (Berlin, Springer, 2010) 85. 175 UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593, and UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970. 176 Arts 39 and 41, UNC. 177 See, for example (i) UNSC Res 1314 (11 August 2000) UN Doc S/RES/1314, in which the UNSC stated that ‘violations of international humanitarian and human rights law, including that relating to children, in situations of armed conflict, may constitute a threat to international peace and security’; (ii) UNSC Res 1386

85

2.122–2.123  Legal Sources, Structure and Accountability Mechanisms Other UN Involvement 2.122  A number of UN officials, bodies and initiatives assist in securing accountability and generally improving the implementation of IHL protections for children in armed conflict. In addition to the UNSC (see above, paragraphs 2.117ff), these include the UNGA, the Special Representative for Children and Armed Conflict, the United Nations Human Rights Council (UNHRC) and the MRM. We consider these in alphabetical order below. We have already referred, above and in Chapter 1, paragraph 1.60, to the Secretary-General’s reporting role, viz, the annual reports on children and armed conflict. There are also other bodies/offices that may consider issues relevant to children in armed conflict, eg the UN Human Rights Committee (which monitors implementation of the ICCPR) and a number of Working Groups and Special Rapporteurs.178 2.123  MRM. The MRM179 was established in 2005. Its stated purpose is to ‘collect and provide timely, objective, accurate and reliable information on the recruitment and use of child soldiers in violation of applicable international law and on other violations and abuses committed against children affected by armed conflict.’180 At the time of the MRM’s establishment, the Special Representative for Children and Armed Conflict stressed that the MRM should not be relied on to supplant the role of national authorities, who bear primary responsibility for protecting children in armed conflict.181 In summary, the MRM operates as follows. 2.123.1  Its role and function is set out in UNSC Resolution 1612. Implemented by the Secretary-General, the MRM is a collaborative project, utilising the expertise of national governments, regional organisations, UN bodies and civil society actors to gather information on children in armed conflict. It is managed in-country by a Country Task Force on Monitoring and Reporting (Country Task Force). 2.123.2  The MRM’s purpose is to monitor parties listed in the annexes to the Secretary-General’s annual report on children and armed conflict. When the MRM was first established, the Secretary-General’s report only listed parties that recruited and used children in situations of armed conflict.182 Since the MRM’s establishment, additional violations have become ‘trigger violations’ for the purposes of listing in

(20 December 2001) UN Doc S/RES/1386, in which the UNSC called upon all Afghan forces to strictly adhere to IHRL and IHL and (iii) in UNSC Res 1820 (19 June 2008) UN Doc S/RES/1820, the UNSC suggested that violations of IHL and IHRL may ‘exacerbate situations of armed conflict and may impede the restoration of international peace and security’. 178 A list can be found here: . 179 For further background detail on the MRM, and the circumstances that led to it, see Ch 1, para 1.60. 180 See UNSC Res 1612 (26 July 2005) UN Doc S/RES/1612, para 2(a). 181 Report of the Special Representative for Children and Armed Conflict to the Sixtieth Session of the Commission on Human Rights (15 February 2005) UN Doc E/CN.4/2005/77, paras 15 and 55. 182 See UNSC Res 1612 (n 180), para 3, which requests ‘the Secretary-General to implement without delay, the above-mentioned reporting mechanism, beginning with its application … to parties in situations of armed conflict listed in the annexes to the Secretary-General’s report’. Since 2000, the Secretary-General’s annual report has been presented to the UNSC and UNGA. These reports can be found in the Special Representative for Children and Armed Conflict’s virtual library, available at . The UNSC Resolutions relevant to children in armed conflict and providing a background to the estbalishment of the MRM are summarised in Ch 1, para 1.60.

86

Accountability Mechanisms  2.123 the annexes (and, thereby, for the purposes of implementation of the MRM). Of the six grave violations – ie the violations that the Special Representative for Children and Armed Conflict is focussed on ending and preventing and which serve as the basis to gather information and report on violations – all but denial of humanitarian access are now ‘trigger violations’.183 The legal source of the five trigger violations is not a single treaty but is described generally in the applicable UNSC Resolutions as ‘international obligations’ and ‘international law’. The MRM Field Manual, Annex 2 (International Legal Foundations and Standards) makes it clear that the legal sources include treaties and CIL and cover IHL, ICL, IHRL.184 2.123.3  The MRM monitors ‘parties’ to conflict, this includes both state and nonstate actors.185 When UN-verified information confirms that armed forces or armed groups have committed a trigger violation, the Secetary-General lists those parties in the annexes to his/her report. The Secretary-General’s annual report includes two annexes. Annex I of the annual report lists the state and non-state parties who have committed one of the trigger violations and are also on the UNSC’s formal agenda. Annex II lists those state and non-state parties who have committed one of the trigger violations but are not on the UNSC’s agenda. 2.123.4  A MRM is formally established when a situation is published in one of the annexes to the Secretary-General’s report.186 The implementation of the MRM, however, depends on which annex the situation is listed in. Where parties are listed in Annex I, the implementation of the MRM in the relevant country is automatically triggered. Once triggered, it will apply to all parties in that country.187 Where parties are listed in Annex II, the UN is required to consult with the national government of the relevant country before implementing the formal MRM process. 2.123.5  After the implementation of the MRM is triggered in a country, a Country Task Force is set up by its co-chairs; the Country Task Force is usually co-chaired by the highest UN authority in the country, and UNICEF.188 The primary function of the Country Task Force is to gather, vet and integrate information and provide reports

183 The trigger violations were established by the following UNSC Resolutions: UNSC Res 1379 (20 November 2001) UN Doc S/RES/1379, para 16 (child recruitment and use) – this ‘trigger violation’ pre-dates the establishment of the MRM and was originally the only cause for listing in the annexes to the Secretary-General’s annual report; UNSC Res 1882 (4 August 2009) UN Doc S/RES/1882, para 3 (killing and maiming, sexual violence); UNSC Res 1998 (12 July 2011) UN Doc S/RES/1998, para 3 (attacks on schools and hospitals); and, UNSC Res 2225 (18 June 2015) UN Doc S/RES/2225, para 3 (abduction). 184 See . 185 The MRM’s regulation of non-state actors is seen by many to be a remarkable step forward. For a detailed consideration of the innovative aspects of the MRM, see Perinaz Kermani Mendez, ‘Moving from Words to Action in the Modern “Era of Application”: A New Approach to Realising Children’s Rights in Armed Conflicts’ (2007) 15 International Journal of Children’s Rights 219–49, 229ff; and Ann-Charlotte Nilsson, Children and Youth in Armed Conflict (Leiden, Brill, 2013), 886ff. 186 See MRM guidelines available here: . 187 See MRM guidelines available here: . 188 MRM Field Manual, ‘Steps Towards Establishing the MRM’, available at .

87

2.124  Legal Sources, Structure and Accountability Mechanisms on grave violations against children. It is composed of key members of existing child protection networks – such as UN agencies and international and local NGOs.189 2.123.6  UNSC Resolution 1612 also established a Working Group on Children and Armed Conflict (Working Group). The Working Group is composed of all 15 members of the UNSC. It meets approximately every two months. Its objective is to review reports (from the in-country MRMs) on violations against children committed by parties listed in the annexes to the Secretary-General’s annual report; review the progress of action plans; make recommendations to the UNSC on possible measures to promote the protection of children affected by armed conflict; and address requests to other bodies within the UN system to take action to support implementation of UNSC Resolutions.190 Upon observing that certain parties have committed grave violations, the Working Group may undertake a broad range of actions, including: making recommendations for technical assistance to the country in question; making recommendations to donors for greater funding for child protection; forwarding information to the UNSC Sanctions Committee and forwarding information to relevant justice mechanisms, such as the ICC.191 2.123.7  Parties may be removed from the Secretary-General’s annexes (‘de-listed’) once the UN verifies that the violations for which the party was listed have ended and action plans on those violations have been finalised.192 Action plans are signed by the relevant armed parties, with their implementation overseen by the Country Task Force.193 The MRM is generally terminated in-country when all parties have been de-listed for one cycle of the Secretary-General’s annual report.194 2.123.8  Where a MRM is established in a country, civil society actors will contribute to that larger monitoring and reporting effort. Where there is no MRM in place, a variety of civil society actors may monitor compliance with and implementation of children’s rights (see below the role of the ICRC and NGOs, paragraphs 2.127ff). 2.124  UN Human Rights Council. The HRC is a UN intergovernmental body responsible for promoting and protecting human rights around the world; it has 47  seats, filled by Member States who are elected by the UNGA for 3 year terms. It holds three sessions a year and can hold special sessions upon the request of an HRC member

189 For more detail of the role and responsibility of the Country Task Force see the MRM Guidelines available at E.1. 190 See the website of the Working Group at . 191 See MRM Guidelines available here: E.4(1); and website of the Working Group available here . For a detailed consideration of the ‘soft power’ of the Working Group and MRM implementation in general, see Matthew Happold, ‘Protecting Children in Armed Conflict: Harnessing the Security Council’s “Soft Power”’ (2010) 43 Israel Law Review, 360–80. 192 See MRM Guidelines available here: G.1. 193 Since the launch of the MRM framework until mid-2017, 26 listed parties had signed 27 action plans, including 11 government forces and 15 non-state armed groups. Of those, nine parties complied fully with their action plans and were subsequently de-listed. (See ‘Action Plans with Armed Forces and Armed Groups’ .) 194 See MRM Guidelines available here: I.

88

Accountability Mechanisms  2.125–2.127 with support of one-third of the HRC. From time to time it passes resolutions with respect to children’s rights. None have hitherto focussed on children in armed conflict.195 The HRC holds an annual day on the rights of the child in March, the only day on which children’s rights feature exclusively on its agenda. 2.125  UNGA. The Special Representative for Children and Armed Conflict presents an annual report to the UNGA. This report gives information on the progress achieved and challenges faced and outlines ongoing projects to better address the plight of children in armed conflict. Every year, the UNGA adopts a resolution on the rights of the child, which addresses current issues and challenges.196 UNGA Resolutions, unlike UNSC Resolutions, are not binding on states.197 2.126  UN Special Representative for Children and Armed Conflict. As detailed in ­Chapter 1, paragraphs 1.58–1.59, in 1996 the UNGA created the mandate for a new Special Representative for Children and Armed Conflict and since 1997 the Special Representative has reported yearly to the UNGA and the UNHRC. There are four essential strands to that mandate: strengthening the protection of children affected by armed conflict; raising awareness; promoting the collection of information about the plight of children, and fostering international co-operation to improve protection. Other Bodies/NGOs 2.127  ICRC. The ICRC was established in 1863. It operates worldwide, assisting people affected by armed conflict and promoting IHL. It is independent and neutral; its mandate stems from the Geneva Conventions and the Statutes of the International Red Cross and Red Crescent Movement. It is based in Geneva, Switzerland. The ICRC plays an important role in monitoring, developing and encouraging the implementation of international law relevant to armed conflict. It works through local and international offices that seek to help the victims of IAC, NIAC and other violence, and to prevent suffering through strengthening IHL and humanitarian principles. The ICRC’s ‘modes of action’ are: raising awareness of responsibility (reminding parties of their obligations), support (supporting parties in fulfilling their obligations) and substitution (where authorities are unable to take appropriate measures to fulfil their obligations, the ICRC will take action in their place, where it can).198 However, there are limitations on its role. For example, the ICRC will not undertake fact-finding in any particular country without the consent of the government and generally does not publish reports on its activities (discretion being

195 A non-exhaustive list of those resolutions can be found here: ; and a database with all HRC documents can be found here: . 196 The website of the Special Representative for Children and Armed Conflict details the engagement of the UNGA on children in armed conflict: . 197 Under Art 25, UNC, Members of the UN only agree to accept and carry out the decisions of the UNSC, not the UNGA. 198 For further detail, see ICRC, The ICRC: its Mission and its Work (ICRC, March 2009) available at: generally and 19ff.

89

2.128–2.130  Legal Sources, Structure and Accountability Mechanisms an operative condition of much of the ICRC’s work).199 Every four years, the ICRC holds its International Conference, which brings together the world’s largest humanitarian network and the world’s governments to debate major humanitarian challenges. Having debated these issues, the Conference adopts resolutions that guide its prticipants in carrying out humanitarian activities. 2.128  NGOs. At Annex III we have listed a number of NGOs active in promoting the application of IHL for the protection of children in armed conflict. C.  ICL Accountability Mechanisms 1.  Domestic Adjudicative Mechanisms 2.129  The role of domestic courts (regular domestic courts and military courts) is important in the enforcement of ICL. That role exists alongside, and complements, the role of international courts. Thus, the jurisdiction of international courts is carefully calibrated around domestic jurisdiction. Some international courts, such as the ICC, can only prosecute if the relevant State Party is unwilling or unable to do so in its domestic courts.200 Others, such as the ICTY and SCSL (defined below), leave all but the most serious perpetrators to be prosecuted in domestic courts. 2.130  Implementation of ICL treaty-provisions into domestic law. A number of the treaty provisions set out above at paragraphs 2.8ff are subject to the requirement of domestic implementation (that is, a requirement that the state criminalise the relevant conduct in domestic law) and/or enforcement (that is, a requirement that states prosecute for a breach of international criminal law). Thus: 2.130.1  IHL applicable in IAC:201 the strictest obligations for domestic criminalisation of international crimes are set out in the Geneva Conventions and API. As noted above, paragraph 2.103.1, these treaties require States Parties to adopt criminal legislation, with universal jurisdiction, that punishes grave breaches committed in IAC (only: see further Chapter 9).202 Under these same provisions, States Parties are also required

199 See the ICRC’s website at ; Kuper (n 5), 159ff; and, Eibe Riedel, ‘Economic, Social, and Cultural Rights in Armed Conflict,’ in Clapham and Gaeta (n 113), 465ff. 200 See Art 17, Rome Statute (note that the ICC has the ultimate power to decide whether a country is ‘unwilling’ or ‘unable’ to prosecute a case). This is known as the principle of ‘complementarity’, and is addressed at para 2.133 below. 201 The Geneva Conventions do not require states to criminalise violations of Common Art 3 or APII in NIAC: see 2016 ICRC Commentary to GCI (n 20), Common Art 3 available at paras 871–80. At para 878 the commentary notes, ‘it is accepted in customary law that States have a right to vest universal jurisdiction over war crimes, including serious violations of common Article 3, in their domestic courts.’ 202 See Art 49, GCI; Art 50, GCII; Art 129, GCIII; Art 146, GCIV; and, Art 85(1) API. Notably, the Geneva Conventions and API require states to enact universal prescriptive and enforcement jurisdiction for grave breaches: Art 50, GCII, eg, states ‘the High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present convention.’ This obligation is not limited to nationals of the High Contracting Party or persons in their territory.

90

Accountability Mechanisms  2.131 to search for persons alleged to have committed grave breaches and either prosecute or extradite them. 2.130.2  ICL: through the principle of complementarity, the Rome Statute encourages, but does not require, States Parties to enact domestic legislation that incorporates the international crimes set out in the Rome Statute.203 Notably, the Rome Statute, in contrast with the Geneva Conventions, does not oblige states to criminalise the international crimes and does not explicitly call for the prohibition of those crimes under universal jurisdiction. The scope of states’ obligations to prosecute (or extradite) persons accused of crimes under ICL varies depending on the crime. 2.131  It is beyond the scope of this book to cover whether states have adequately followed through on these domestic implementation measures.204 However, there appear to be few reported instances of domestic cases that have expressly used ICL to address the situation of children in armed conflict.205 We infer from this – viewed in the context of the continuing violations of children’s rights in armed conflict and the limited reach of international tribunals – that domestic implementation and enforcement of ICL requires ongoing attention.206 We therefore suggest that consideration should be given to strengthening (i) the obligations requiring domestic implementation and (ii) the reporting and monitoring framework which assesses state compliance with such implementation. We develop these proposals in Chapter 9.

203 See preamble (para 10) and Arts 1, 17, Rome Statute (which provide for the principle of complementarity); and Arts 8(2)(b)(xxvi) and 8(2)(e)(vii), Rome Statute (which criminalise conscription of children in IAC and NIAC). Also note that the Genocide Convention imposes an obligation on states to criminalise genocide in domestic law (see Art V). 204 Resources detailing the extent of domestic implementation of children’s rights are available here: in respect of case law ; and legislation . 205 Four examples of cases in which domestic courts have considered children and armed conflict are as follows. (i) Khadr v Canada (No 2) 2009 FCA 246 and 2010 SCC 3 Canadian Federal Court of Appeal (14 August 2009) in which the court considered the principle of special protection in respect of a detained minor in Guantanamo Bay. (ii) Prosecutor v Redon Herrera, Trial Judgment, Case no 2007-82701, ILDC 1819 (CO 2011), 16 December 2011 (Colombia) in which the court considered numerous aspects of violations against children in a NIAC. (iii) Control de Constitucionalidad del Ley Aprobaoria del Protocolo Facultativo de la Convencion Sobre los Derechos del Niño Relativos a la Participacion de Niños en Conflictos Armados Sentencia C-172/04 (2004) (available at: ) and Sentencia C-240/09, 1 April 2009 (available at ) in which the Supreme Court of Columbia considered the application of the CRC and OPAC. (iv) Gaza: one case concerning use of child human shields was brought before an Israeli court. Two soldiers were convicted of acting in ‘excess of authority’ and ‘unbecoming conduct’ for forcing a nine-year old Palestinian boy to open bags suspected of being booby-trapped. The soldiers were convicted but sentenced to only a three-month probation period and demotion of their rank: IDF MAG COPRS, ‘Indictment Filed in Connection with “Cast Lead” – Military Advocate for Operational Affairs’ (11 March 2011), available at . See IDF MAG CORPS, ‘Investigating the Gaza Operation – an Interview with Deputy Military Advocate for Operational Affairs (9 March 2011), available at . 206 For example, the 2016 ICRC Commentary on GCI (Common Art 3) (n 20) makes clear that domestic tribunals have rarely exercised universal jurisdiction over perpetrators of war crimes: ‘As at 2015, there seem to have been only 17 reported cases over the previous 60 years where domestic courts or tribunals have exercised universal jurisdiction over perpetrators of war crimes. Interestingly, the vast majority of these cases arose in the last 20 years and concerned events which took place in non-international armed conflicts. This limited number of national prosecutions based on universal jurisdiction can be explained by a variety of factors. The likelihood of

91

2.132–2.134  Legal Sources, Structure and Accountability Mechanisms 2.  International Adjudicative Mechanisms 2.132  The principal international and ad hoc courts/tribunals are set out in alphabetical order below. 2.133  ICC. The ICC was created in 2002. It is located in The Hague, Netherlands, although it may sit elsewhere. The ICC is the first and only permanent international court in which individuals charged with crimes under ICL can be prosecuted and tried. As set out above at paragraph 2.28, it has jurisdiction over genocide, crimes against humanity, and war crimes207 when committed by any individual in the territory of a State Party to its Statute or by nationals of States Parties (whether in the territory of Party or non-Party States). The Rome Statute provides that immunities or special procedural rules which may attach to the official capacity of a person do not bar the ICC from exercising its jurisdiction. However, in practice, the position is complicated.208 There is no statute of limitations for prosecution by the ICC.209 As noted above at paragraph 2.129, there is an important constraint on the ICC’s jurisdiction: the principle of ‘complementarity’, under which the ICC will only have jurisdiction where the relevant State Party is unwilling or unable to investigate or prosecute the crime in its own courts.210 In November 2016, the ICC Prosecutor, Fatou Bensouda, launched the ‘Policy on Children’, to more particularly address child related offences.211 2.134  International Criminal Tribunal for Rwanda. The ICTR was a temporary international tribunal, established in 1994 and located in Arusha, Tanzania.212 It had jurisdiction to prosecute persons (nationals and non-nationals) responsible for serious violations of IHL committed in the territory of Rwanda between January and December 1994.

prosecutions on the basis of universal jurisdiction is usually dependent on the presence of the alleged offender in a country which is willing and able to extend its jurisdiction over the offender. Some prosecutions on the basis of universal jurisdiction have faced insurmountable problems of proof. Access to evidence and witnesses, and obtaining the cooperation of the authorities of the States where the crimes have been committed, can be difficult. The distance between the domestic courts of a third State and the place and time of the suspected criminal conduct makes the prosecution’s work hazardous, and can lead to acquittal for lack of evidence. Lastly, such prosecutions can be costly for the State carrying them out. Nevertheless, prosecutions by the domestic courts of other States can be a valuable alternative in the absence of prosecution in the States where the crimes were committed, as well as a necessary complement to prosecutions by international courts or tribunals.’ See at para 880 (internal citations omitted; emphasis added). 207 Art 5, Rome Statute. 208 Art 27, Rome Statute. Art 27(2) provides ‘immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.’ However, Art 98(1), Rome Statute, provides that the ‘Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.’ 209 Art 29, Rome Statute. 210 Art 17, Rome Statute. 211 The Office of the Prosecutor, Policy on Children (2016) available at ; and ICC Press Release, ‘ICC Prosecuor, Fatou Bensouda, launches Policy on Children: “we must strengthen our resolve to end impunity for atrocity crimes against and affecting children”’ (18 November 2016) available at . 212 UNSC 955 (1994) (8 November 1994) S/RES/955 (1994).

92

Accountability Mechanisms  2.135–2.137 It also had jurisdiction to prosecute Rwandan citizens who committed such crimes in neighbouring countries during the same time period.213 The ICTR jurisdiction could take precedence over the jurisdiction of national courts whenever it requested to do so.214 The ICTR began hearing cases in 1997 and delivered its last trial judgment in 2012, when the Mechanism for International Criminal Tribunals (MICT) assumed responsibility for the ICTR’s residual functions. The ICTR closed on 31 December 2015. 2.135  International Criminal Tribunal for Yugoslavia. The ICTY was a temporary international war crimes tribunal, established in 1993 by the UNSC and located in The Hague, Netherlands.215 It had jurisdiction to prosecute individuals responsible for grave breaches of the Geneva Conventions; violations of the laws or customs of war; genocide and crimes against humanity committed on the territory of the former Yugoslavia since 1991. The ICTY focussed on prosecution of senior leadership responsible for war crimes, leaving it to national courts to prosecute those with less direct responsibility. In 2003, the ICTY developed a ‘completion strategy’. The MICT was established by the UNSC in 2010 pursuant to that strategy.216 The MICT continues the jurisdiction, rights and obligations of the ICTY (and ICTR, see paragraph 2.134).217 The ICTY closed on 21 December 2017. 2.136  Special Court for Sierra Leone. The SCSL was created in 2002 in the aftermath of the Sierra Leone civil war.218 It had jurisdiction over grave ICL crimes as well as certain crimes under the law of Sierra Leone, committed by nationals or non-nationals in the territory of Sierra Leone since November 1996. The Court was based in Freetown, Sierra Leone. It was the first international court to try perpetrators for violations of IHL relating to the recruitment of children under 15. The SCSL’s mandate extended to the end of 2009. It closed in 2013, after which the Residual Special Court for Sierra Leone was established to oversee the SCSL’s continuing legal obligations.219 2.137  Further examples of other exceptional arrangements. 2.137.1  Extraordinary African Chambers. The EAC was established under an agreement between the African Union and Senegal. It was created in 2013. It is located in Dakar, Senegal. It has jurisdiction over those ‘most responsible for crimes and serious violations of international law, [CIL] and international conventions ratified by Chad, committed in the territory of Chad’ (Article 3, Statute of the EAC) between June 1982 and December 1990. 2.137.2  Special Tribunal for Lebanon. The STL is an international tribunal. It was created in 2009. Its headquarters are located near The Hague. Its primary mandate is

213 Art 1, Statute of the International Criminal Tribunal for Rwanda (established by UNSC Res 955, ibid, last amended by UNSC Res 1717 (13 October 2006) UN Doc S/RES/1717) (ICTR Statute). 214 Art 8, ICTR Statute. 215 UNSC Res 827 (25 May 1993) UN Doc S/RES/827. 216 UNSC Res 1966 (22 December 2010) UN Doc S/RES/1966. 217 UNSC Res 1966, ibid. 218 UNSC Res 1315 (14 August 2000) UN Doc S/RES/1315; and, Agreement Between the UN and the Government of Sierra Leone for the Establishment of a Special Court for Sierra Leone (16 January 2002), at . 219 The website of the Residual Court is available at: .

93

2.138–2.140  Legal Sources, Structure and Accountability Mechanisms to conduct the trials of those accused of carrying out an attack in 2005 which killed 22 people, including the former Prime Minister of Lebanon, and injured others. 2.137.3  Extraordinary Chambers in the Courts of Cambodia. The ECCC is an ad hoc Cambodian court with international elements. Judges were appointed in 2006. It is located in Phnom Penh, Cambodia. It has jurisdiction over senior leaders of Democratic Kampuchea (the name of the state established by the Khmer Rouge) and others for crimes committed (under Cambodian and international law) between April 1975 and January 1979. 3.  Other Accountability Mechanisms 2.138  The UNSC powers are set out and considered above at paragraphs 2.117ff. The UNSC can exercise these powers in response to breaches of ICL.

D.  IHRL Accountability Mechanisms 1.  Domestic Adjudicative Mechanisms 2.139  The context in which domestic courts may adjudicate on IHRL is as follows. Unlike the IHL provisions noted above (at paragraphs 2.11ff), most of the IHRL treaties referred to above (at paragraphs 2.30ff, such as the ICCPR and ACHR) do not expressly require contracting states to implement them into national law as such. Some states have given such treaties direct, or indirect, effect as a matter of their domestic law. 2.140  However, some of the IHRL treaty provisions described above do oblige States Parties to take measures to implement those provisions into national law. For ­example: under OPAC, States Parties must take legal, administrative or other measures to ensure effective implementation220 and under the CRC States Parties must take legislative, administrative and other measures to prohibit recruitment of children under 15.221 As a result of these international law obligations, many states have incorporated children’s rights into their respective domestic laws: however, the extent of implementation is unclear.222 A study conducted by UNICEF in 2012, considering domestic implementation of the CRC in 12 countries, found that no country had fully implemented the CRC but that Articles 3 and 12 had been most widely incorporated into domestic law.223

220 Art 6, OPAC. 221 Art 38(3), CRC, and Arts 77(2) and 85(1), API. 222 Reports on implementation submitted to the CRC Committee are available here ; and an overview of national laws on children’s rights is available here . 223 UNICEF and Laura Lundy, Ursula Kilkelly, Bronagh Byrne and Jason Kang, The UN Convention on the Rights of the Child: A Study of Legal Implementation in 12 Countries (Queen’s University Belfast 2012) available at 99ff.

94

Accountability Mechanisms  2.141–2.142 Where such provisions have been properly implemented into domestic law, they will likely give rise to enforceable rights and obligations before domestic courts. As noted above, ­paragraph 2.131, a review of domestic implementation is beyond the scope of this book but we note the existence of this form of accountability since it is important and should be used wherever possible. 2.141  Furthermore, we note in particular that IHRL requires that every alleged violation of the right to life occurring within a state’s jurisdiction must be investigated, even in armed conflict.224 While not expressly stated in the various IHRL treaties, this investigative obligation has been consistently held to be an implicit component of the state’s positive obligations to safeguard the right to life. The existence of the investigative obligation is also affirmed in a report of the UN Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions,225 and in a series of soft law instruments.226 The ECtHR has held Article 2, ECHR requires that Member States must investigate every death that results from the use of force by state agents.227 2.142  Whereas IHL does not prescribe any criteria to assess the effectiveness of investigations, an established set of criteria exist under IHRL. The investigation must be undertaken expeditiously and with due diligence by an independent and impartial body; the next-of-kin must be given an opportunity to participate in the process; and all possible steps must be taken to gather evidence, including witness testimony, ballistic examinations and medical examinations.228 However, it is generally recognised that the reasonable steps available to ensure that an effective and independent investigation is conducted may be more limited in armed conflict than in peacetime.229

224 See, eg, Al Skeini v United Kingdom (2011) 53 EHRR 18, paras 163–64; Case of the ‘Maripirán Massacre’ v Colombia (Merits, Reparation and Costs Judgment), Inter-American Court of Human Rights Series C No 134 (15 September 2005), paras 216–41; Commission Nationale des Droits de l’Homme et des Libertés v. Chad (ACommHPR, 11 October 1995), para 22. See also UNHCR, ‘General Comment No. 31’, UN Doc. CCPR/21/Rev.1/Add.13, paras 3, 15 and 18. 225 See, eg, ‘Report of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions’, Philip Alston, UN Doc. E/CN.4/2006/53 (8 March 2006), paras 35–36. 226 See, eg, UN ECOSOC, ‘Principles on the Effecive Prevention and Investigation of Extra-Legal, Arbitrary or Summary Executions’, Resolution 1989/65 (24 May 1989); UN Congress on the Prevention of Crime and the Treatment of Offenders, ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’ (7 September 1990); UNGA, ‘Declaration on the Protection of All Persons from Enforced Disappearance’, UN Doc. A/RES/47/133 (18 December 1992). 227 See, eg, Al Skeini and others v United Kingdom (n 224), para 163. As to the requirements of the investigation see Jordan v United Kingdom (2001) 37 EHRR 2, paras 103–21. 228 See, eg, UNGA, ‘Human Rights in Palestine and other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict’ (Goldstone Report), UN Doc. A/HRC/12/48 (15 September 2009), para 1611; The Public Commission to Examine the Maritime Incident of 31 May 2010 (Turkel Commission), Second Report, ‘Israel’s Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International Law’ (February 2013), 118–35. For relevant case law see, eg, Al Skeini v United Kingdom (n 224), paras 161–177; Case of the ‘Maripirán Massacre’ (n 224), para 223. 229 See, eg, Al Skeini v United Kingdom (n 224), para 164; Case of the ‘Maripirán Massacre’ (n 224), para 222. See also ‘Report of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions’, Philip Alston (n 225), para 36: ‘It is undeniable that during armed conflict circumstances will sometimes impede investigation. Such circumstances will never discharge the obligation to investigate – this would eviscerate the non-derogable character of the right to life – but they may affect the modalities or particulars of the investigation.’

95

2.143–2.145  Legal Sources, Structure and Accountability Mechanisms 2.  International Adjudicative Mechanisms International and Regional Courts 2.143  The principal international and regional IHRL courts of potential relevance to children in armed conflict are set out in alphabetical order below. 2.144  African Court of Human Rights. The ACtHR was established by Article 1 of the Protocol to the ACHPR in 2004, to complement the protective mandate of the African Commission on Human and People’s Rights (the role of the Commission is set out below at paragraph 2.152).230 The ACtHR has contentious and advisory jurisdiction over all disputes submitted to it concerning the interpretation and application of the ACHPR, the Protocol to the ACHPR and any other human rights instrument ratified by the states concerned.231 There is no enforcement mechanism for judgments of the Court; States Parties to the Protocol to the ACHPR agree (at Article 30) to comply with judgments of the Court within the time stipulated by the court. 2.145  European Court of Human Rights. The ECtHR was established in 1959. It sits in Strasbourg, France. The ECtHR has jurisdiction to decide complaints (applications) submitted by individuals (persons, groups or NGOs) or states concerning violations of the ECHR by a High Contracting Party to the ECHR.232 Judgments of the ECtHR are enforced by the Committee of Ministers of the Council of Europe, which is composed of representatives of the governments of the 47 Member States, and is assisted by the Department for the Execution of Judgments of the European Court of Human Rights.233 The Court cannot take up a case on its own initiative. As noted above, n 55, specific consideration of children’s rights is not prominent in the text of the ECHR.234 However, the ECtHR applies the international law rules of treaty interpretation to the ECHR and takes other relevant rules of international law into account.235 As a result, judgments of the ECtHR relating to children sometimes refer to the broader international law provisions on the rights of the child.236 The ECtHR has also – albeit to a limited extent – relied on the CRC (of which all 47 ECHR High Contracting Parties are States Parties) as an interpretative guide when considering matters that involve children.

230 Art 2, Protocol to the African Charter on Human and People’s Rights on the Establishment of the African Court on Human and People’s Rights (adopted 10 June 1998, entered into force 1 January 2004) OAU Doc LEG/ MIN/AFCHPR/PROT.1 rev.2 (Protocol to the ACHPR). 231 The AU is working toward merging the ACtHR and the Court of Justice of the AU into a new body: The African Court of Justice and Human Rights (see the Protocol on the Statute of the African Court of Justice and Human Rights, available here: ). 232 Arts 32, 33 and 34, ECHR. 233 For details of this process, see . 234 Minors are only referred to in Arts 5 and 6, ECHR; Art 5 of the Seventh Protocol, ECHR; and, Art 2 of the First Protocol, ECHR. 235 See Demir and Baykara v Turkey (Grand Chamber Judgment) (2009) 48 EHRR 54, paras 65–68, 85; Magdalena Forowicz, The Reception of International Law in the European Court of Human Rights (Oxford, OUP, 2010), Ch 3; Ursula Kilkelly, ‘The Best of Both Worlds for Children’s Rights? Interpreting the European Convention on Human Rights in the Light of the UN Convention on the Rights of the Child’ (2001) 23 Human Rights Quarterly 308–26, 313; and, Tyrer v UK (1978) 2 EHRR 1. 236 See Forowicz (n 235), Ch 3 for consideration of the impact of the Hague Convention on the Civil Aspects of International Child Abduction, the Hague Convention on Intercountry Adoption, the CRC and ILO 182 on the case law of the ECtHR.

96

Accountability Mechanisms  2.146–2.150 2.146  The case law of the ECtHR also provides examples of the ECHR being applied in the context of armed conflict.237 In such cases, the ECtHR has taken IHL into account, in its interpretation and application of the ECHR.238 For example, the ECtHR has considered IHL where IHL provisions were relied on by one of the parties before it.239 However, until recently, ECtHR judgments, even those arising in the context of armed conflict, have generally made relatively limited reference to IHL provisions.240 2.147  The ECHR is important as a means of securing accountability for violations in armed conflict since the ECtHR has interpreted Article 1, ECHR, jurisdiction as applying to extra-territorial acts by states.241 2.148  Inter-American Court of Human Rights. The IACtHR was established in 1979. It is charged with applying the ACHR.242 It is located in San José, Costa Rica. The court exercises both adjudicatory and advisory jurisdiction.243 There are currently 25 ­American nations that have ratified or adhered to the ACHR.244 Only States Parties and the Commission have standing to bring a case before the IACHR; the Commission appears in all cases before the IACtHR.245 Article 65, ACHR provides that judgments of the Court are enforced by the Court issuing a note of instances of non-compliance to the General Assembly of the OAS. Article 19, ACHR explicitly refers to the rights of the child and the IACtHR has used the CRC to interpret that provision. As with the ECtHR, the IACtHR has sometimes referred to IHL when interpreting and applying the ACHR.246 2.149  ICJ. See above, paragraph 2.106. Treaty Bodies 2.150  The treaty bodies in this section perform a range of functions but we have included them in adjudicative mechanisms since they have a dispute resolution function (albeit one that we consider is under-used: see further Chapter 9). We have grouped the functions 237 For an ECtHR fact sheet detailing cases concerning armed conflict see here: . 238 Under Art 32, ECHR, the ECtHR’s jurisdiction extends to all matters concerning the interpretation and application of the ECHR and the Protocols thereto. The ECtHR, unlike the ICC, has no jurisdiction to find that IHL has been violated. 239 See Hassan v the UK App no 29750/09 (ECtHR 16 September 2014) para 107; and Daragh Murray, Practitioners’ Guide to Human Rights Law in Armed Conflict (Oxford, OUP, 2016) 38. 240 For an examination of the relevant case law up to 2010 see Forowicz (n 235), Ch 8. 241 For an ECtHR fact sheet detailing cases that concern extra-territorial jurisdiction of States Parties to the ECHR see here: . 242 Art 1, Statute of the Inter-American Court of Human Rights (adopted 1 October 1979, entered into force 1 January 1980) (Statute of the IACtHR), available at: . 243 Art 2, Statute of the IACtHR. 244 Website of the IACtHR, available at: . 245 Arts 57 and 61, American Convention on Human Rights (adopted 21 November 1969, entered into force 18 July 1978) 1144 UNRS 123 (ACHR). 246 In Cruz-Sánchez et al v Peru, for example, the IACtHR relied on IHL as an aid in the application of the ACHR, and faulted Peru for killing fighters in contravention of Common Art 3 and for failing to adequately investigate the crime scene in a timely manner: see Series C, No 292. Judgment of 17 April 2015 (in Spanish) can be found here: . A summary of the case, in English, is available here: .

97

2.151–2.152  Legal Sources, Structure and Accountability Mechanisms loosely as dispute resolution (where the bodies receive and determine complaints); inquisitorial (where the bodies may investigate and report on specific issues) and monitoring (where the bodies gather information and review progress on implementation). We list the relevant treaty bodies in alphabetical order. 2.151  African Committee of Experts on the Rights and Welfare of the Child. The African Committee of Experts was established by the ACRWC. The Committee oversees implementation of the ACRWC. It has a number of functions. 2.151.1  Dispute Resolution. Individual complaints/communications can be made to the Committee of Experts by any person, group or NGO recognised by the Organisation of African Unity, by a Member State, or the United Nations.247 To date, it has not heard any individual communications regarding situations of children in armed conflict. In 2014, the ACtHR held that the Committee should be able to make requests for advisory opinions to the ACtHR.248 No requests appear to have been made. 2.151.2  Inquisitorial. The Committee may investigate any matter falling within the ambit of the ACRWC. It can also request from States Parties any information relevant to the implementation of the ACRWC and may also investigate the implementing measures of States Parties.249 In 2016, the African Committee of Experts published a study on the impact of conflict and crises on children in Africa, making recommendations for the better protection of children’s rights in those circumstances.250 2.151.3  Monitoring. States Parties are required to submit reports to the Committee of Experts detailing the measures they have adopted which give effect to the provisions of the ACRWC.251 2.152  African Commission on Human Rights.252 The Commission was established in 1987. Its secretariat is located in Banjul, Gambia. The Commission oversees the implementation of the ACHPR. It has a number of functions. 2.152.1  Dispute Resolution. The Commission can consider complaints and communications brought against State Parties to the ACHPR, by individuals, NGOs or other states.253 247 Art 44, ACRWC. 248 Request for Advisory Opinion by the African Committee of Experts on the Rights and Welfare of the Child on the Standing of the African Committee of Experts on the Right and Welfare of the Child before the African Court on Human and People’s Rights Requestion No. 002/2013 (Advisory Opinion, 5 December 2014) available at: . 249 Art 45, ACRWC. 250 The study is available here: . 251 Art 43, ACRWC. These reports are to be submitted within two years of the entry into force of the ACRWC for the State Party concerned; and thereafter every three years (Art 43(1)). 252 Communications addressed to the Commission that relate to children include Communication 295/04 available at: . This concerned, inter alia, an allegation of unlawful killing of a child by the police. 253 Arts 48–49, ACHPR (which provide that communications can be submitted by other states) and Art 55 (which provides that communications can be submitted by individuals and organisations). Also see the Commission’s Information Sheet No.3 on the Communications Procedure, available at .

98

Accountability Mechanisms  2.153 2.152.2  Inquisitorial. The Commission may resort to any appropriate measures of investigation into the implementation of ACHPR rights.254 2.152.3  Monitoring. States Parties to the ACHPR must submit reports to the Commission on the legislative or other measures taken to implement the rights and freedoms of the ACHPR.255 2.153  CRC Committee. The CRC Committee was established in 1991. It oversees implementation of the CRC, OPAC, and OPSC. It has a number of functions. 2.153.1  Dispute Resolution. OP3 establishes a complaint mechanism by which individuals (and groups of individuals, or organisations on their behalf) can complain of violations of the CRC (including Article 38 which concerns compliance with IHL) and the Optional Protocols to the CRC Committee. Communications may also be made by one State Party against another State Party.256 Upon considering a communication, the CRC Committee must give its views and recommendations to the parties concerned – States Parties must give due consideration to these views and recommendations.257 As part of its follow-up procedure, the CRC Committee examines the measures taken by the relevant State Party with regard to implementing the decision.258 The CRC Committee has not yet heard any complaints in relation to children in armed conflict. 2.153.2  Inquisitorial. OP3 also establishes an inquiry procedure for grave and systematic violations of child rights.259 Under this inquiry procedure, if the CRC Committee receives ‘reliable information indicating grave or systematic violations’ of the CRC, OPAC or OPSC, the CRC Committee can designate one or more of its members to conduct an inquiry. This may involve a visit to the territory of the state concerned (if that state consents). Upon completion of the investigation, the CRC Committee will communicate its findings to the state concerned; that state then has a maximum of six months to submit its observations to the CRC Committee. The CRC Committee may then include a summary of the inquiry in its report to the UNGA. At the time of ratification, states may declare that they do not recognise the competence of the CRC Committee to conduct inquiries.260 2.153.3  Monitoring. Under the CRC, States Parties are required to submit regular reports to the CRC Committee, giving details of how the rights protected by the CRC are being implemented.261 Upon examining each country report, the CRC Committee will address any concerns it has to the State Party in the form of ‘concluding observations’. States Parties to the OPAC also report to the CRC Committee on the steps they

254 Art 46, ACHPR. Mission reports are available at . 255 Art 62, ACHPR. These reports are available at . 256 Arts 5 and 12, OP3. 257 Arts 10 and 11, OP3. 258 Art 11(2), OP3. 259 Art 13, OP3. 260 The Principality of Monaco is the only signatory to OP3 that does not recognise the competence of the CRC Committee to conduct inquiries: see here (which also gives general details of the ratification and declaration status of OP3): . 261 The implementation mechanisms of the CRC are set out in Part II, which begins at Art 42. See particularly Art 44, CRC.

99

2.154–2.158  Legal Sources, Structure and Accountability Mechanisms have taken to reform their domestic laws and procedures in accordance with article 6 of the OPAC.262 2.153.4  Interpretive. The CRC Committee is also able to produce General Comments regarding the interpretation of the CRC: so far it has issued 22 General Comments.263 Although some of them make passing references to children in armed conflict,264 the CRC has not considered this issue (or the more general issue of armed conflict) directly or comprehensively. 3.  Other Accountability Mechanisms UNSC 2.154  UNSC powers are considered above at paragraphs 2.117ff. The UNSC can exercise these powers in response to a violation of IHRL. Other UN Involvement 2.155  UN bodies and the MRM also provide accountability for IHRL violations. These are addressed above at paragraphs 2.122ff in relation to IHL. Other Accountability 2.156  ILO Committee of Experts on the Application of Conventions and Recommendations. The ILO Committee of Experts was established in 1926. Its role is to provide an impartial and technical evaluation of the state and application of international labour standards, ie it has a monitoring role. Once a country has ratified an ILO convention, it must report regularly to this committee (which is composed of 20 jurists) on the measures it has taken to implement it.265 The Committee has issued a number of observations in relation to ILO 182.266 2.157  NGOs. At Annex III we have listed a number of NGOs active in promoting the application of IHRL for the protection of children in armed conflict. V.  GENERAL PROBLEMS WITH ACCOUNTABILITY MECHANISMS

2.158  Just as there are a variety of sources of international law regulating children in armed conflict, there are, as we have described above, various avenues for securing 262 Art 8, OPAC. 263 All General Comments are available here . 264 See, eg, General Comment No 3 ‘HIV/AIDS and the rights of the children’ (17 March 2003) UN Doc CRC/ GC/2003/3 paras 30, 38; and General Comment No 13 ‘The right of the child to freedom from all forms of violence’ (18 April 2011) UN Doc CRC/GC/13 paras 3(i), 7(a), 72(g). 265 For details of reporting requirements, see here: . 266 These are available on the ILO website, at: .

100

General Problems with Accountability Mechanisms  2.158 accountability. Although our focus is on adjudicative accountability, we consider the extent to which various avenues – adjudicative and non-adjudicative – have been used, by giving illustrations of their application in practice in the specific contexts addressed in Chapters 3–8. We consider the adequacy of adjudicative accountability in general in the context of children and armed conflict in Chapter 9. The overarching theme is one of consistent under-enforcement of the applicable legal norms: despite the existence of these norms and the ongoing violations/arguable violations of children’s rights relatively few cases appear to result in a concluded judgment. By way of introduction, we summarise our suggestions from Chapter 9: 2.158.1  As noted above, we suggest improvements to the substance of various rules: clarification of vague/ambiguous protections as well as potential development where there is missing/inadequate protection. We also suggest that more widespread ratification is needed of certain instruments. These instruments include not just substantive protections (which, following ratification, should result in greater domestic ­implementation/compliance) but also, in two significant instances, accountability mechanisms. Thus, we consider that those states that have not accepted the jurisdiction of the ICC should be encouraged to ratify the Rome Statute and those states that have not ratified OP3 (to accept the competence of the CRC Committee) should be urged to do so. The Special Representative for Children and Armed Conflict could assist with encouraging such ratification. We also suggest the development of the existing non-adjudicative accountability mechanisms for non-state armed groups: Geneva Call’s Deeds of Commitment and action plans under the MRM (see above, paragraph 2.123.7). 2.158.2  In addition to these suggestions, and as noted above, we make the more far-reaching proposal for one instrument. This may be politically challenging but we consider that it would be a constructive legal development, primarily because compliance and accountability would be improved if there was one instrument that contained the relevant substantive framework and if there was one civil, international body with an adjudicative/oversight role regarding that instrument. This would make the following more effective: identification of the law; dissemination of the law; implementation/compliance and domestic enforcement; monitoring domestic implementation/compliance and enforcement; developing relevant norms; international adjudication and conducting inquiries into any alleged violations. 2.158.3  We suggest that the instrument imposes obligations on states regarding domestic implementation and that consideration is given to issues such as universal jurisdiction and the operation of international law immunities. Furthermore, we suggest that the norms should be stated as binding non-state armed groups and we suggest including a defined process (similar to that developed by Geneva Call through their Deeds of Committment) whereby they could pledge to uphold the norms and to accept the jurisdiction of the CRC Committee in relation to m ­ onitoring ­compliance etc. 2.158.4  If our proposal is accepted: we consider that the CRC Committee should be given the competence to monitor compliance, receive complaints and conduct inquiries into alleged violations of the norms contained in the instrument. We anticipate that this may mean that the composition of the CRC Committee will require 101

2.159  Legal Sources, Structure and Accountability Mechanisms consideration, for example to include individuals with specific IHL expertise, and that other, practical or logistical, changes may be required. However we consider that it is likely to be more practical and politically viable to seek to amend the composition/ arrangements of an existing body (which already has established expertise in relation to the rights of children) than to seek to create a wholly new entity/institution. VI.  CONCLUSION AND SUMMARY

2.159  A summary of this Chapter is as follows: • This Chapter summarises the relevant legal sources, structure and accountability mechanisms regarding the position of children in international armed conflict (IAC) and non-international armed conflict (NIAC). It does so by reference to international humanitarian law (IHL), international criminal law (ICL) and international human rights law (IHRL) and by reference to instruments and customary international law (CIL). • As for the scope of this book: (1) We have focussed on the six grave violations that have been identified by the UN for the purposes of the Monitoring and Reporting Mechanism (MRM). There are, therefore, certain topics that we do not address in this book, such as the detention of children, children as refugees and peacekeeping operations. (2) Our focus is on international law. • As for the approach that we have taken: we consider both the substantive legal framework and accountability mechanisms. (1) In relation to the substantive framework: we introduce the legal sources and the legal framework that are discussed and applied in subsequent Chapters. (2) In relation to accountability mechanisms: we describe the general spectrum of accountability mechanisms that exist in the context of children and armed conflict. We have focussed on adjudicative accountability mechanisms since the determination of rights and obligations before an independent and impartial tribunal governed by the rule of law is one of the strongest forms of accountability. However, we have also described other accountability mechanisms, such as those that exist within the framework of the UN. • In relation to the substantive legal framework: (1) There are four general problems with the legal framework. First, substantive protections are occasionally vague or ambiguous and need to be clarified. Second, substantive protections are sometimes inadequate or lacking altogether and need to be developed. Third, some international instruments (for example Additional Protocols I and II) could benefit from further ratification. Fourth, although ICL is adequately consolidated in the Rome Statute, there is a systemic problem with IHL and IHRL: the law is scattered, complex and difficult to identify. (2) To address these difficulties we make some specific suggestions: (i) clarification of existing vague/ambiguous protections; (ii) development of inadequate/­missing 102

Conclusion and Summary  2.159 protections and (iii) greater ratification of certain international instruments. We also make a more general suggestion in response to the systemic problem with IHL and IHRL: to collect, codify (re CIL) and, if possible, consolidate, into one instrument, the existing IHL and IHRL norms. This process would also provide the opportunity to consider the clarifications and developments that we have suggested. However, in addition to simplifying the substantive framework, the purpose of the single instrument would be to improve accountability: by giving one international, civil, adjudicative body jurisdicition to, for example, receive complaints regarding violations of the norms in that instrument. • In relation to accountability mechanisms: the overarching theme, from a review of international adjudicative mechanisms and in light of the extent of ongoing violations of children’s rights, is one of under-enforcement. To address this, amongst other things, greater efforts are needed to secure more widespread ratification of existing international accountability mechanisms, ie of OP3 (the Optional Protocol on a communications procedure) and the Rome Statute. We also suggest, further to our proposal of a single instrument and in the event that the proposal is taken further, that a single, civil, international adjudicative mechanism is needed. One possibility would be for the CRC Committee to take on that role (appropriately strengthened so as to have the necessary IHL expertise and logistical support) and be given jurisdiction to, for example, receive complaints into alleged violations of the norms in that instrument.

103

3 Killing and Ill-Treatment of Children ‘Collectively, we should be guided by a principle of exceptional consideration for children as the most vulnerable segment of the population that deserves unconditional protection.’1

I. Introduction II. Legal Framework A. International Humanitarian Law 1. The Legal Framework 2. Problems and Deficiencies in the Legal Framework 3. Suggestions to Improve the Legal Framework B. International Criminal Law 1. The Legal Framework 2. Problems and Deficiencies in the Legal Framework 3. Suggestions to Improve the Legal Framework C. International Human Rights Law 1. The Legal Framework 2. Problems and Deficiencies in the Legal Framework 3. Suggestions to Improve the Legal Framework III. Accountability Mechanisms  A. Application of Accountability Mechanisms 1. IHL Accountability Mechanisms 2. ICL Accountability Mechanisms 3. IHRL Accountability Mechanisms B. Problems and Deficiencies in Accountability Mechanisms C. Suggestions to Improve Accountability Mechanisms IV. Conclusion and Summary

105 108 108 108 128 134 139 139 145 145 146 146 153 156 158 158 158 166 167 169 171 171

1 UNGA, ‘Report of the Special Representative to the Secretary-General for Children and Armed Conflict’, UN Doc A/64/254 (6 August 2009), para 19.

104

Introduction 3.1–3.3 I. INTRODUCTION

3.1  This Chapter considers the core protections for children in armed conflict r­ egarding (i) killing (including loss of life in the conduct of hostilities), and (ii) i­ll-treatment (ie, torture and cruel, inhuman or degrading treatment or punishment).2 In this context it addresses the status of, and some of the core protections afforded to, children in armed conflict under (i) international humanitarian law (IHL), which regulates both the conduct of hostilities and the treatment of persons, (ii) international criminal law (ICL), and (iii) international human rights law (IHRL). With respect to all three legal regimes, children benefit from both (i) general rules which are applicable to all civilians (including children) and, (ii) special rules which apply only to children (or to certain categories of children).3 This Chapter addresses both sets of rules. 3.2  The killing, maiming and ill-treatment during armed conflict of children who take no part in hostilities are issues that have received less attention, both in legal scholarship4 and from the international community, than the issue of children who are associated with armed forces or armed groups. This Chapter focuses on children who are not associated with armed forces or armed groups. The recruitment and use of children in armed conflict is addressed in Chapter 4. 3.3  Killing and ill-treatment broadly correspond to the concept of the ‘killing and maiming’ of children, which is one of the ‘grave violations’ identified by the Monitoring and Reporting Mechanism (MRM). 3.3.1  The MRM Field Manual defines ‘killing’ and ‘maiming’ as follows:5 ­(i) ­‘killing’ means ‘[a]ny action in the context of the armed conflict that results in the 2 As explained in Ch 2, para 2.3.1, we have not considered peacekeeping operations in this book. 3 This distinction is of greater relevance in relation to IHL and the rules governing the treatment of children who are present in territory which is under the control of a party to the conflict. By contrast, the orthodox position is that the majority of the rules governing the conduct of hostilities apply to all civilians equally without distinction. 4 For examples of scholarly commentary, in chronological order, see Denise Plattner, ‘Protection of Children in International Humanitarian Law’ (1984) 230 IRRC 140; Geraldine van Bueren, ‘The International Legal Protection of Children in Armed Conflicts’ (1994) 43 ICLQ 809; Françoise Hampson, ‘Legal Protection Afforded to Children under International Humanitarian Law: Report for the Study on the Impact of Armed Conflict on Children’, (Essex, University of Essex, 1996); Jenny Kuper, International Law Concerning Child Civilians in Armed Conflict (OUP 1997); Carolyn Hamilton and Tabatha Abu El-Haj, ‘Armed Conflict: The  Protection of Children under International Law’ (1997) 5 International Journal of Child Rights 1; R. K. Dixit, ‘Special Protection of Children During Armed Conflicts Under the Geneva Conventions Regime’ (2001) 1 Isil Year Book of International Humanitarian and Refugee Law 12; Jenny Kuper, Military Training and Children in Armed Conflict: Law, Policy and Practice (Martinus Nijhoff 2005); Vesselin Popovski, ‘Protection of Children in International Human Rights Law and Human Rights Law’ in Roberta Arnold and Noelle Quénivet (eds), International Humanitarian Law and Human Rights Law: Towards a Merger in International Law (Martinus Nijhoff 2008) 383; Sylvain Vité, ‘Protecting Children During Armed Conflict: International Humanitarian Law’, (2011) 5(1) Human Rights & International Legal Discourse 14; Karl Hanson, ‘International Children’s Rights and Armed Conflict’ (2011) 5 Human Rights & International Legal Discourse 40; Ann-Charlotte Nilsson, Children and Youth in Armed Conflict (The Raoul Wallenberg Institute human rights library, vol. 43, Martinus Nijhoff 2013), chapter 10, ‘The Legal Protection of Children and Armed Conflict’; and Katarina Månsson, ‘The principle of humanity in the development of ‘special protection’ for children in armed conflict: 60 years beyond the Geneva Conventions and 20 years beyond the Convention on the Rights of the Child’ in Kjetil Mujezinović Larsen, Camilla Guldahl Cooper and Gro Nystuen (eds), Searching for a ‘Principle of Humanity’ in International Humanitarian Law (Cambridge, CUP, 2012) 149. 5 Office of the Special Representative of the Secretary-General for Children and Armed Conflict (OSRSGCAAC), United Nations Children’s Fund (UNICEF) and United Nations Department of Peacekeeping

105

3.4  Killing and Ill-Treatment of Children death of one or more children’; and (ii) ‘maiming’ is defined as meaning ‘[a]ny action that causes a serious, permanent, disabling injury, scarring or mutilation to a child’, as well as acts of torture. The Field Manual alternately uses the term ‘injuring’, apparently without any difference being intended. In this Chapter we prefer the term ‘ill-treatment’ and use it to encompass acts of torture and inhuman or degrading ­treatment or punishment. 3.3.2  The MRM Field Manual focuses on killing and maiming in the conduct of hostilities: ‘Killing and injuring of children as a result of direct targeting and also indirect actions, including: crossfire, landmines, cluster munitions, improvised explosive devices or other indiscriminate explosive devices. Killing or injuring can take place in the context of military operations, house demolitions, search-and-arrest campaigns, or suicide attacks.’ 3.4  In 2013, the annual report of the Secretary-General on children in armed conflict referred to ‘a significant spike in the killing and maiming of children in several situations’ and called for ‘redoubling of efforts to better implement available tools to address the plight of children affected by armed conflict’.6 Since that time, the Secretary-General’s annual reports on children in armed conflict have recorded a dramatic increase in the total number of child casualties including deaths, in 11 situations which have been on the UN Security Council’s (UNSC) agenda since 2014. This is reflected in the table below, which is based on the (underreported) figures contained in the annual reports issued between 2014 and 2017, where available:7 Year (year of report)

No. of children killed or maimed (at least)

No. of children killed (at least)

2013 (2014)8

5,003

1,421

(2015)9

7,010

2,355

2014

(continued)

Operations (DPKO), ‘Field Manual: Monitoring and Reporting Mechanism (MRM) on Grave Violations Against Children in situations of Armed Conflict’ (June 2014), 9. 6 UNGA/UNSC, ‘Children and armed conflict: Report of the Secretary-General’, A/68/878-S/2014/339 (7 March 2014), 2, para 6. 7 These figures include children associated with a party to the conflict. Separate data is not generally available for children who are not associated with armed forces or armed groups. Further, specific data for killings is not always available. 8 UNGA/UNSC, ‘Children and armed conflict, Report of the Secretary-General’, UN Doc A/68/878-S/2014/339 (15 May 2014). The 11 situations on the agenda of the Security Council, and the paragraphs of the 2014 report from which the data is drawn, are: (i) Afghanistan, para 25 (1694, including 545 killed); (ii) Central African Republic (CAR), para 39 (142, including 27 killed); (iii) Democratic Republic of Congo (DRC), para 62 (164, including 68 killed); (iv) Iraq, para 73 (1661, including 335 killed); (v) Mali, para 103 (57, including 6 killed); (vi) Myanmar, para 110 (13, including 7 killed); (vii) Somalia, para 118 (731, including 237 killed); (viii) South Sudan, para 125 (146, including 63 killed); (ix) Sudan, paras 133 and 139 (205, including 97 killed); (x) Syrian Arab Republic, paras 144-153 (no figures available); and (xi) Yemen, para 157 (190, including 36 killed). The 2014 report also refers to additional casualties and deaths in situations not listed in Annex I and therefore excluded from the table above, including in Lebanon, para 88 (32, including 11 killed) and Libya, para 93 (19, including 14 killed). 9 UNGA/UNSC, ‘Children and armed conflict, Report of the Secretary-General’, UN Doc A/69/926*S/2015/409* (5 June 2015). The 11 situations on the agenda of the Security Council, and the paragraphs of

106

Introduction 3.5 Year (year of report)

No. of children killed or maimed (at least)

No. of children killed (at least)

2015 (2016)10

8,048

3,106

2016 (2017)11

8,472

2,777 (excluding Somalia where 1,121 killed/maimed)

3.5  In his 2017 annual report, the Secretary-General observed that, in 2016, ‘Children continued to be exposed to an unacceptable risk of killing and maiming in a number of country situations. In Afghanistan, the United Nations verified 3,512 child casualties, the highest number ever recorded. In Yemen, the United Nations verified 1,340 child casualties. The cross-border activities of Islamic State in Iraq and the Levant (ISIL), coupled with responses to that group, also led to significant child casualties, with over 2,000 children documented as killed or maimed in Iraq and the Syrian Arab Republic. The number of child casualties in the Democratic Republic of the Congo was also the highest recorded since 2012.’12 The Secretary-General expressed ‘grave concern’ about the ­‘alarming levels of killing and maiming of children’ and called upon parties to armed conflicts, the

the 2015 report from which the data is drawn, are: (i) Afghanistan, paras 26 and 30 (2502, including 710 killed); (ii) CAR, para 42 (435, including 146 killed); (iii) DRC, para 61 (172, including 80 killed); (iv) Iraq, para 74 (1184, including 679 killed); (v) Mali, para 126 (32, including 9 killed); (vi) Myanmar, para 139 (7, including 2 killed); (vii) Somalia, para 149 (520, number killed unclear); (viii) South Sudan, para 162 (310, including 90 killed); (ix) Sudan, paras 175 and 181 (391, including 197 killed); (x) Syrian Arab Republic, para 197 (1139, including 368 killed) and (xi) Yemen, para 210 (318, including 74 killed). For additional specific data not reflected in the table above see eg regarding Lebanon, para 113 (25, including 21 killed) and Libya, para 118 (at least 30 reported killed). 10 UNGA/UNSC, ‘Children and armed conflict, Report of the Secretary-General’, UN Doc A/70/836-S/2016/360 (20 April 2016). The 11 situations on the agenda of the Security Council, and the paragraphs of the 2016 report from which the data is drawn, are: (i) Afghanistan, para 24 (2829, including 733 killed); (ii) CAR, para 36 (247, including 62 killed); (iii) DRC, para 47 (136, including 80 killed); (iv) Iraq, para 61 (809, including 338  killed); (v) Mali, para 95 (51, including 12 killed); (vi) Myanmar, para 103 (75, including 25 killed); (vii) Somalia, para 115 (753, number killed unclear); (viii) South Sudan, para 124 (608, including 480 killed); (ix) Sudan, paras 134 and 141 (227, number killed unclear); (x) Syrian Arab Republic, para 154 (1145, including 591 killed); and (xi) Yemen, para 167 (1,168, including 785 killed). For additional specific data not reflected in the table above see eg regarding Lebanon, para 83 (14, including three killed) and Libya, para 88 (at least 60 reported casualties, number killed unclear). 11 UNGA/UNSC, ‘Children and armed conflict, Report of the Secretary-General’, UN Doc A/72/361-S/2017/821 (24 August 2017). The 11 situations on the agenda of the Security Council, and the parts of the 2017 report from which the data is drawn, are: (i) Afghanistan, para 24 (3512, including 923 killed); (ii) CAR, para 39 (66, including 34 killed); (iii) DRC, para 65 (240, including 124 killed; plus 110 allegedly killed/maimed by machete); (iv) Iraq, para 78 (410, including 229 killed); (v) Mali, para 114 (47, including 12 killed); (vi) Myanmar, para 126 (51, including 6 verified killed); (vii) Somalia, para 137 (1121, number killed unclear); (viii) South Sudan, para 146 (179, including 108 verified killed); (ix) Sudan, paras 157 and 163 (207, including 87 killed); (x) Syrian Arab Republic, para 176 (1299, including 652 killed); and (xi) Yemen, para 190 (1340, including 502 killed). These figures include children associated with parties to the conflict. Specific data for additional situations on the agenda of the UNSC, which is not reflected in the table above, includes: (xii) Colombia, para 52 (8, including 6 killed), (xiii) Israel and State of Palestine, para 88 (936, including 36 killed), (xiv) Lebanon, para 100 (8, number killed unclear), and (xv) Libya, para 106 (at least 119 reported casualties, including 51 reportedly killed). Specific data for other situations not on the agenda of the UNSC, and not reflected in the table above, include (xvi) India, para 203 (213 killed), (xvii) Nigeria, para 209 (488, including 304 killed), (xviii) Philippines, para 226 (28, including 14 killed), and Thailand, para 232 (32, including 5 killed). 12 ibid, para 6.

107

3.6–3.9  Killing and Ill-Treatment of Children S­ ecurity Council and Member States to take immediate action to prevent these violations againt children occurring.13 3.6  The remainder of this Chapter is structured as follows: 3.6.1  Part II addresses the legal framework. IHL, ICL and IHRL are addressed in turn in Sections A, B and C. Each Section describes the key provisions of the law; identifies problems and deficiencies with those rules and makes recommendations as to how the law might be improved. IHL is addressed first since it is the primary legal framework which governs armed conflict. It covers both the conduct of hostilities and the treatment of persons. ICL flows from IHL and is therefore considered second. Finally, we consider IHRL. This is the structure followed in most of the remaining Chapters too. 3.6.2  Part III addresses the accountability mechanisms for implementation and enforcement of the law, focusing on international adjudicative mechanisms. Section A describes the mechanisms which are currently available. Section B identifies problems and deficiencies with the current mechanisms. Section C contains suggestions for improving implementation, enforcement and accountability. 3.7  Almost 30 years ago, the 1990 World Summit for Children urged that ‘the 1990s should see rapidly growing acceptance of the idea of special protection for children in time of war’. A decade later, the Millennium Declaration called on the international community to ‘spare no effort to ensure that children … that suffer disproportionately the consequences of … armed conflicts … are given every assistance and protection’.14 Today, the general principle – that children are entitled to special treatment in armed conflict – is firmly established in IHL and IHRL. However, substantial challenges remain in particularising the content of the IHL and IHRL rights to which children are entitled and in ensuring the effective implementation and enforcement of those rights. We introduce those challenges in this Chapter and develop them in the following Chapters. II.  LEGAL FRAMEWORK

A.  International Humanitarian Law 1.  The Legal Framework Introduction 3.8  We note three introductory points at the outset. 3.9  First, IHL addresses: (i) the conduct of hostilities (ie military operations), and (ii) the treatment of persons who are in the territory or custody of a party to the conflict.15 In this Chapter, we consider both (i) and (ii) by focusing on the status and protection of

13 ibid, para 235. 14 UNGA, ‘United Nations Millennium Declaration’, UN Doc A/RES/55/2 (18 September 2000), para 26. For consideration of the relationship between the Millennium Development Goals concerning children and armed conflict see UNICEF, ‘Child Protection Strategy Reference Document’, May 2008. 15 The dual character of the law is reflected in the traditional distinction between the rules regulating the conduct of hostilities, commonly known as ‘Hague Law’, and the rules relating to the protection of victims

108

Legal Framework  3.10–3.13 children who are not associated with armed forces or armed groups16 but we describe, where necessary, some of the broader framework and provisions.17 3.10  Second, in both contexts, the level of protection afforded by IHL to an individual depends on his/her legal status as a member of a particular group within the theatre of armed conflict. As to (i), the conduct of hostilities, the rules generally treat all civilians alike. By contrast, in the case of (ii), the treatment of persons in the hands of a party to the conflict, different protections apply to different categories of civilians. The distinction is particularly relevant in international armed conflict (IAC), with alien civilians (ie foreign nationals) being treated as ‘protected persons’ who are entitled to additional protections. Thus, as one commentator observed some 20 years ago, ‘children can be entitled to three levels of protection under [IHL]: first, as members of the civilian population generally; secondly, as children, owing to their particular vulnerability; and finally, as members of a specific category of children (such as enemy alien) if they qualify as such.’18 It remains the case that, as the same commentator observed at that time, the majority of specific IHL rules falling within the second category impose obligations upon the parties to the conflict to assist or protect children, rather than simply to refrain from harming them.19 Despite these three levels of protections, it is not clear that children benefit from the greatest level of protection under IHL available to any group. For example, the ‘wounded and sick’ benefit from greater protection. 3.11  Third, as explained in Chapter 2, IHL does not give the same level of protection to all those under 18.20 Instead, IHL treaty law uses different age-limits with respect to different protective measures for children or refers generally to ‘children’ but attaches special importance to children under the age of 15. Overview of Key IHL Instruments: Scope of Application, Structure and Relevance to Children 3.12  The three key IHL instruments are the Fourth Geneva Convention (GCIV), Additional Protocol I (API) and Additional Protocol II (APII). They have been introduced in Chapter 2, paragraphs 2.17 to 2.26. We summarise below the salient aspects of each for the purposes of this Chapter. 3.13  GCIV.21 Common Article 3, in Part I, provides that all persons taking no active part in hostilities must be treated humanely, irrespective of nationality or other ground of distinction. Rather than defining ‘humane treatment’, Common Article 3 specifies a

of war, commonly known as ‘Geneva Law’. Geneva Law also imposes obligations with respect to ensuring humanitarian access and the delivery of humanitarian aid: see Ch 8. 16 Additional specific protections are addressed in later Chapters of this book: recruitment and use (Ch 4); sexual violence (Ch 5), abduction (Ch 6), attacks against hospitals and schools (Ch 7) and denial of humanitarian access and assistance (Ch 8). 17 This Chapter does not address in detail the specific rules applicable to children in occupied territory: see Ch 2, para 2.3.1. 18 Kuper, Child Civilians (n 4), 74. 19 ibid, 107. 20 Ch 2, para 2.71. 21 The main function of GCIV ‘is to protect a strictly defined category of civilians from arbitrary action on the part of the enemy, and not from the dangers due to military operations themselves’: see Jean S. Pictet (ed),

109

3.14–3.16  Killing and Ill-Treatment of Children limited number of acts which are absolutely prohibited at any time and in any place in all non-international armed conflict (NIAC) situations. In addition, Common Article 3(2) provides an obligation to collect (ie rescue) and care for the ‘wounded and sick’. The provisions of Common Article 3 are reflected in rules of customary international law (CIL) and constitute the ‘minimum yardstick’ for any armed conflict.22 3.14  The provisions of Part II of GCIV ‘cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion’.23 Thus, the protections under Part II apply to the entire civilian population of states that are party to an armed conflict, including the state’s own nationals. However, certain subgroups within the civilian population are singled out for special treatment. For example, one subgroup of civilians afforded ‘particular protection and respect’ are the ‘wounded and sick, as well as the infirm, and expectant mothers’.24 3.15  Part III addresses ‘protected persons’, ie civilians ‘in the hands of a Party to the conflict or Occupying Power of which they are not nationals’.25 It does not protect a party’s own civilian population. 3.16  GCIV contains a number of provisions that expressly refer to children.26 However, GCIV does not expressly state that children are entitled to special treatment. Nor, except for Article 24, is there a provision that identifies specific protections just for children, and even Article 24 is ‘an expression of parental or family rights and States’ concern in retaining their children’, rather than an expression of children’s rights per se.27 In this Chapter we will consider briefly Articles 17, 24, 68 and 76 and 82. ‘Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Times of War 1949’ (Ronald Griffin and C.W. Dumbleton tr, ICRC, Geneva 1958), 10 . We refer to this as the 1958 ICRC Commentary on GCIV. All websites referred to in this Chapter were accessed in June-September 2017. 22 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, paras 218–19, finding that Common Art 3 reflects elementary considerations of humanity and ‘a minimum yardstick applicable to all armed conflicts because the minimum rules applicable to international and non-international conflicts are identical’. See also Prosecutor v Mucić et al (Appeals Chamber Judgment), IT-96-21-A (20 February 2001), paras 143 and 150. 23 Art 13, GCIV. 24 Art 16, GCIV. Art 16 does not, therefore, expressly include children within its scope. See also Kuper, Child Civilians (n 4), 78. 25 Art 4, GCIV. The phrase ‘in the hands of’ a party is used in a very general sense to mean that the person is in the territory of a party to the conflict: see 1958 ICRC Commentary on GCIV (n 21), 47. As to the meaning of the phrase ‘in the power of’ a party, see (n 30) below. 26 In Part II: Art 14 (hospital and safety zones and localities) expressly refers to ‘children under fifteen’; Art 17 (evacuation from besieged areas) expressly refers to ‘children and maternity cases’; Art 23 (free passage of consignments of medical supplies, food and clothing) expressly refers to ‘clothing and tonics intended for children under fifteen’; Art 24 (measures relating to child welfare) expressly refers to ‘children under fifteen’ and ‘children under twelve’. Note also Arts 25 (family news) and 26 (dispersed families) of GCIV which relate to families. And in Part III: Art 38(5) (non-repatriated persons) refers to ‘children under fifteen years’; Arts 50 (children in occupied territories) refers to ‘children’, ‘children under fifteen years’ and ‘mothers of children under seven years’; Art 51 (prohibiting forced labour of persons under 18) refers to ‘persons over eighteen years of age’; Art 68 (prohibiting the pronouncement of the death penalty) refers to ‘a protected person who was under eighteen years of age at the time of the offence’; Art 76 (treatment of detainees) refers to ‘the special treatment due to minors’; Arts 82 (grouping of internees) refers to ‘children’; Art 89 (food for internees) refers to ­‘children under fifteen years of age’; Art 94 (recreation, study, sport and games for internees) refers to ‘of children and young people’, and Art 132 (transfer of internees during hostilities or occupation) refers to ‘in particular c­ hildren, pregnant women and mothers with infants and young children’. 27 Hamilton and El-Haj (n 4), 17. See also Popovski (n 4), 387.

110

Legal Framework  3.17–3.18 3.17  API. API contains three provisions that specifically refer to children. The most significant is Article 77 (Protection of children). This provision recognised, for the first time in the context of armed conflict, that children ‘shall be the object of special respect’ and specified a number of more precise obligations regarding the recruitment and use of children; arrested, detained or interned children and the death penalty. The other provisions are: Article 70(1) (Relief actions) and Article 78 (Evacuation of children). This Chapter considers Articles 77 and 78; Article 70 is considered in Chapter 8. This Chapter does not consider the death penalty, which is outside the scope of this book. 3.18  Articles 77 and 78 are contained in Section III of Part IV of API (Treatment of persons in the power of a Party to the conflict).28 Two introductory points regarding Section III are as follows. First, the rules contained in Section III are stated to be additional to those found in GCIV and to the protections under IHRL.29 Second, although there is some ambiguity30 regarding the scope of application of Section III, the preferable interpretation – relying on (i) four contextual arguments31 and (ii) the ICRC (International Committee of the Red Cross) Commentary on the AP32 – is that Section III applies to all civilians in the power (ie territory and enforcement jurisdiction) of a party to the conflict, regardless of their nationality. 28 See Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC, 1987) (hereafter referred to as the ICRC Commentary on the AP), 838, paras 2910–16 recognising that the meaning of the phrase ‘in the power of a Party’, and the distinction with the different phrase ‘in the hands of’, in this context is ‘not immediately clear’. The Commentary suggests, at para 2912, that the preferable view is that ‘the expression covers not only persons who have fallen into the hands of a Party to the conflict, but also those over whom it exercises, or would be able to exercise, authority, for the sole reason that they live in territory under its control.’ The travaux préparatoires are of little assistance; as the Commentary notes, ‘the discussions during the Diplomatic Conference, particularly in Committee III, were long and difficult; they did not shed a great deal of light on the precise scope of this Section, particularly Article 75 (Fundamental guarantees).’ See also Michael Bothe, Karl Partsch, Waldemar Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (Leiden, Martinus Nijhoff 1982), 499. 29 Art 72, API. 30 Section III (S III) is, as noted above, entitled ‘Treatment of persons in the power of a Party to the conflict’. There is some ambiguity as to the meaning of the phrase ‘persons in the power of a Party’, ie whether it (and therefore S III) applies to the entirety of the civilian population, including civilians which are a State party’s own nationals. The ‘civilian population’ is defined in Art 50(2) (within Part IV, S I) as comprising ‘all persons who are civilians’. The ambiguity regarding the scope of application of S III arises from the facts that (i) the title of S III does not explicitly refer to civilians and (ii) the defined term civilian population does not appear in the text of the rules in S III. Moreover, the provision which sets out the field of application of S III (Art 72) does not clearly state the persons to which S III applies. 31 As to the four contextual arguments: first, Art 72 implicitly confirms that the field of application of S III applies to all civilians. The provision refers to civilians and to other applicable rules of international law relating to the protection of fundamental human rights, which would necessarily include the state’s own nationals. Second, S III is located within Part IV which is entitled Civilian Population without any qualification. Third, if the drafters had intended to only refer to non-national civilians who are in the hands of a party to the conflict, it is far more likely that they would have used the defined term ‘protected persons’ which appears in both GCIV and Art 73, API. Fourth, confining Art 77 to alien children would significantly and unreasonably narrow the scope of protection against the recruitment and use of children by armed forces or armed groups, since children are often forcibly recruited from a state’s civilian population. One counter-argument is that Art 72 refers to Parts I and III of GCIV, but not Part II. However, the reference to Part I is itself ambiguous because it contains protections afforded both to all persons (Common Art 3) and to protected persons. In any event, the reference in Art 72 to those specific parts of GCIV is not phrased exhaustively (particularly Parts I and III). See Hamilton and El-Haj (n 4), 20. 32 The ICRC Commentary states, ‘[i]n general it must be conceded that the provisions of this Section apply to a Party to the conflict’s own nationals, except where the article itself indicates otherwise’: See ICRC Commentary on the AP (n 28), 838, para 2915.

111

3.19–3.22  Killing and Ill-Treatment of Children 3.19  APII. As Chapter 2 notes, at paragraphs 2.24 and 2.77.2, there is a specific category of NIAC (APII). APII contains two provisions that refer to children: Article 4 (Fundamental guarantees) addresses children in subparagraph 3 – but arguably provides less strong protection than that provided in Article 77, API.33 Article 6(4) prohibits the pronouncement of the death penalty on persons who were under the age of 18 at the time of the offence. We focus on Article 4 in this Chapter. As explained at paragraph 3.17 above, the death penalty is outside the scope of this book. 3.20  With that overview, we turn first to considering the IHL framework regarding the conduct of hostilities and then the framework regarding the treatment of persons. (For the investigative obligations in IHL: see Chapter 2, paragraphs 2.102 to 2.104). IHL Rules Governing the Conduct of Hostilities 3.21  In the following section we consider the protections for children from the conduct of hostilities, and whether the relevant rules and principles adequately protect children from killing and ill-treatment. The fundamental rules of IHL governing the protection of the lives of all civilians during the conduct of hostilities apply in both IAC and NIAC and so may be addressed together.34 The rules are structured around two overarching principles of IHL: military necessity and humanity and three other, closely-related, principles: distinction, proportionality and precautionary measures. Their key features, insofar as relevant to this book, are set out below. We then consider the question whether these rules and principles adequately protect children from killing and ill-treatment. We conclude that they do but we make some suggestions for improvement. 3.22  The principles of military necessity and humanity. The protection afforded under IHL is inherently qualified, to a variable extent, by considerations of military necessity.35 For example, IHL permits incidental harm to civilians (including children) as a result of an attack on a military objective subject to the principle of proportionality, which is considered below. Furthermore, the prohibition on direct attacks against civilians (see below, paragraph 3.24) does not mean that civilians have an absolute right to be protected from harm.36 The principles of military necessity and humanity have been described by the ICRC as follows, citing the United Kingdom’s ‘Manual of the Law of Armed Conflict’: Today, the principle of military necessity is generally recognized to permit “only that degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the conflict, namely the complete or partial submission of the

33 Kuper, Child Civilians (n 4), 78. 34 This Chapter does not specifically address the protection of civilian objects. The status of hospitals and schools is addressed in Ch 7. 35 See Legality of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136, 219 Separate Opinion of Judge Kooijmans, para 34 observing that ‘military necessity and proportionality have always been intimately linked in international humanitarian law’. See also Prosecutor v  Boškoski  & Tarčulovski (Trial Chamber Judgment), IT-04-82 (10 July 2008), para 178: ‘the principle of proportionality is inherent to military necessity’. See also Hamilton and El-Haj (n 4), 19. 36 Prosecutor v Galić (Appeals Chamber Judgment), IT-98-29-A (30 November 2006), para 190: ‘the absolute prohibition on targeting civilians does not exclude the possibility of legitimate civilian casualties incidental to the conduct of military operations’.

112

Legal Framework  3.23–3.24 enemy at the earliest possible moment with the minimum expenditure on life and resources.” Complementing and implicit in the principle of military necessity is the principle of humanity, which “forbids the infliction of suffering, injury or destruction not actually necessary for the accomplishment of legitimate military purposes.” In conjunction, the principles of military necessity and humanity reduce the sum total of permissible military action from that which IHL does not expressly prohibit to that which is actually necessary for the accomplishment of a legitimate military purpose in the prevailing circumstances.37

3.23  The principle of distinction. It is a long-standing ‘basic rule’ of IHL treaty law and CIL that ‘the right of the Parties to the conflict to choose methods or means of warfare is not unlimited’.38 The principle of distinction is codified in Articles 48, 50, 51 and 52 of API.39 The principle is also widely accepted to be declaratory of CIL, and to apply in all armed conflict situations (ie both IAC and NIAC).40 International courts and tribunals, including the International Court of Justice (ICJ), the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the Inter-American Commission on Human Rights (IACommHR) have recognised the fundamental nature of the rule of distinction.41 3.24  Attacks may be directed against combatants and military objectives on the basis of their status as combatants and military objectives.42 By contrast, civilians (including children) must be respected and protected from dangers arising from military operations.43 As a matter of treaty law and CIL, applicable in IAC and NIAC, civilians are protected against direct attack ‘unless and for such time as they take a direct part in hostilities’.44

37 See ICRC: Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law (ICRC, Geneva 2009), p.79 (internal footnotes omitted) available here . 38 Art 35, API. See earlier Art 22, Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907: ‘The right of belligerents to adopt means of injuring the enemy is not unlimited’. See also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226, 258, para 80. The ICRC Commentary on the AP explains that this rule ‘implies principally the obligation to respect the rules of international law applicable in cases of armed conflict’ and affirms that ‘[m]ilitary necessity cannot justify any derogation from rules which are drafted in a peremptory manner’: ICRC Commentary on the AP (n 28), paras 1404–05. See also Prosecutor v  Kordić and Čerkez (Corrigendum to Appeals Chamber Judgment of 17 December 2004), IT-95-14/2-A (26 January 2004), clarifying that ‘the prohibition against attacking civilians … may not be derogated from because of military necessity’. 39 Art 48, API provides, ‘In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.’ 40 Rule 1, Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Law: Volume 1: Rules (Cambridge, CUP, 2005; reprinted with corrections 2009) and referred to hereafter as ICRC Study on Customary IHL. The rules therein are referred to hereafter as ICRC, CIL Rule X. 41 See eg Legality of the Threat or Use of Nuclear Weapons (n 38), para 78 referring to a ‘cardinal principle’ of IHL; Nicaragua (n 22), para 218 referring to ‘fundamental general principles of international humanitarian law’; Prosecutor v Galić (Trial Chamber Judgment), IT-98-29-T (5 December 2003), para 45; Case of the AfroDescendant Communities Displaced from the Cacaria River Basin (Operation Genesis) v Colombia, Judgment, IACtHR, (20 November 2013), para 222. 42 The term ‘attack’ is defined by Art 49, API as meaning ‘acts of violence against the adversary, whether in offence or in defence.’ 43 Art 51(1), API; Art 13(1), APII. 44 Art 51(3), API; Art 13(3), APII; ICRC, CIL Rules 6 and 7, ICRC Study on Customary IHL, 19–29.

113

3.25–3.27  Killing and Ill-Treatment of Children 3.25  Four particularly important aspects of the principle of distinction are: (i) the definition of ‘civilians’; (ii) the prohibition on direct attacks; (iii) the prohibition on ­indiscriminate attacks, and (iv) the position of civilians who take a direct part in ­hostilities. We outline each of these next. 3.26  Definition of ‘civilian’ 3.26.1  IHL treaty law applicable in IAC defines a ‘civilian’ as anyone who is not a member of the armed forces or of a levée en masse. In case of doubt, a person should be considered to be a civilian.45 The ‘civilian population’ is defined as comprising ‘all persons who are civilians’ without any reference to nationality or other ground of distinction.46 3.26.2  By contrast, IHL treaty law applicable in NIAC does not expressly define a ‘civilian’ or the ‘civilian population’. The ordinary meaning of ‘civilian’ excludes members of the armed forces of a state, and members of an organised armed group, which is party to the conflict. This interpretation is supported by the context, including the equivalent IAC treaty and CIL rules.47 It is also confirmed by the travaux préparatoires.48 3.26.3  Under CIL ‘civilians’ are defined as ‘persons who are not members of the armed forces’.49 The ‘civilian population’ is defined as ‘all persons who are civilians’. 3.27  Prohibition on direct attacks. It is prohibited to make the civilian population and individual civilians the object of attack. Further, ‘[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited’.50 ­Starvation of civilians as a method of warfare is also prohibited.51 45 See Arts 50(1), API; ICRC, CIL Rules 4 and 5, ICRC Study on Customary IHL, 14–19. See also ICRC: Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law (ICRC, Geneva 2009), Recommendation I: ‘For the purposes of the principle of distinction in international armed conflict, all persons who are neither members of the armed forces of a party to the conflict nor participants in a levée en masse are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in hostilities.’ As to the meaning of ‘armed forces’ see Art 43, API. 46 Arts 50(1) and (2), API. This Chapter does not consider in detail the definition of a ‘civilian object’, as to which see Art 52(1), API; ICRC, CIL Rule 9, commentary at ICRC Study on Customary IHL, 32–34. The definition of a ‘military objective’ is set out at (n 75) below. 47 See ICRC, CIL Rule 5, commentary: ‘The definition that “any person who is not a member of armed forces is considered to be a civilian” and that “the civilian population comprises all persons who are civilians” was included in the draft of Additional Protocol II. The first part of this definition was amended to read that “a civilian is anyone who is not a member of the armed forces or of an organized armed group” and both parts were adopted by consensus in Committee III of the Diplomatic Conference leading to the adoption of the Additional Protocols. However, this definition was dropped at the last moment of the conference as part of a package aimed at the adoption of a simplified text.’ ICRC Study on Customary IHL, 17–19. 48 See ICRC, CIL Rule 5, commentary: ‘It can be argued that the terms ‘dissident armed forces or other organized armed groups … under responsible command’ in Article 1 of Additional Protocol II inferentially recognized the essential conditions of armed forces, as they apply in international armed conflict (see Rule 4), and it follows that civilians are all persons who are not members of such forces or groups.’ Note also ICRC: Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC, Geneva 2009), Recommendation II, 16: ‘all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in hostilities.’ ICRC Study on Customary IHL, 17–19. 49 ICRC, CIL Rule 5, ICRC Study on Customary IHL, 17–19. 50 Art 51(2), API; Art 13(2), APII; ICRC, CIL Rule 2, ICRC Study on Customary IHL. 51 Art 54(1) and 85(3), API; Art 14, APII; ICRC, CIL Rule 53, ICRC Study on Customary IHL, 186–89. See further Ch 8.

114

Legal Framework  3.28–3.29 3.28  Prohibition on indiscriminate attacks. Indiscriminate attacks are prohibited in both IAC and NIAC. In relation to IAC, API defines indiscriminate attacks as those that: (i) are not directed against a specific military objective, or (ii) employ methods or means of combat that are not directed at a specific military objective, or (iii) employ methods or means of combat the effects of which cannot be limited as required by API (including the principle of proportionality, as to which see para 3.30 below).52 For NIAC (and also for IAC, in addition to API), the prohibition on indiscriminate attacks is found in CIL.53 Thus, the use of certain methods or means of combat may be lawful in some situations whilst being unlawful in others. 3.29  The general prohibition on indiscriminate attacks – as well as the complementary protection for combatants against superfluous injury or unnecessary suffering54 – ­underpins more specific prohibitions including on the use of certain weapons.55 The use of weapons that are indiscriminate by nature (ie incapable of distinguishing between civilian and military targets) is prohibited in all circumstances as a matter of both treaty law56 and CIL.57 The ICRC Study on Customary IHL concluded that this general rule is applicable in both IAC and NIAC.58 However, the approach to, and the factors relevant in, identifying what is an inherently indiscriminate weapon are less well settled. The general 52 Art 51(4), API. It follows from element (iii) identified at para 3.28 that certain methods or means of combat, which are not inherently indiscriminate (and therefore not prohibited in all circumstances), may be lawful in some situations while being unlawful in others. See further, eg, Laurent Gisel, ‘The use of explosive weapons in densely populated areas and the prohibition of indiscriminate attacks’ in Edoardo Greppi (ed), Conduct of Hostilities: the Practice, the Law and the Future (2015, International Institute of Humanitarian Law) 100 at 103: ‘Warfare in populated areas is certainly a situation which might render indiscriminate particular means or methods that could lawfully be used in other situations.’ 53 ICRC, CIL Rule 11, ICRC Study on Customary IHL, 37–40. The accompanying commentary and summary of relevant practice refers, inter alia, to the following statement of the ICTY Trial Chamber in its Judgment in Prosecutor v Galić (n 41), para 57: ‘indiscriminate attacks are expressly prohibited by [API]. This prohibition reflects a well-established rule of customary law applicable in all armed conflicts.’ 54 See Art 35, API: ‘[i]t is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering’. This is now a rule of CIL that applies in all types of armed conflict: see William Boothby, The Law of Targeting (Oxford, OUP, 2012), 270, para 13.13. The ICJ has characterised this prohibition as a cardinal rule of IHL: Legality of the Threat or Use of Nuclear Weapons (n 38), para 78. 55 There is no requirement under IHL that the use of every weapon must be ‘authorised’. Rather, the relevant question is whether the use of the relevant weapon is prohibited or restricted either under treaty law or CIL. See ICRC Commentary on the AP (n 28), para 1408. 56 See, eg, Art 51(4), API. As explained at para 3.28 above, the prohibition of indiscriminate attacks is not limited to the prohibition of inherently indiscriminate weapons. See, further, the travaux préparatoires: Report of Committee III at CDDH, Official Records Vol. XV, CDDH/215/Rev.1, 274: ‘Many but not all of those who commented were of the view that the definition [of indiscriminate attacks] was not intended to mean that there are means or methods of combat whose use would involve an indiscriminate attack in all circumstances. Rather it was intended to take account of the fact that means or methods of combat which can be used perfectly legitimately in some situations could, in other circumstances, have effects that would be contrary to some limitations contained in the Protocol, in which event their use in those circumstances would involve an indiscriminate attack.’ 57 In the Legality of the Threat or Use of Nuclear Weapons (n 38), at para 79, the ICJ described this as a ‘cardinal principle’ and one of the fundamental rules that must be ‘observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of customary international law’. See also ICRC, CIL Rule 71, ICRC Study on Customary IHL, 244–50. 58 ICRC, CIL Rule 71, ICRC Study on Customary IHL, 244–50. See also Legality of the Threat or Use of Nuclear Weapons (n 38), Separate Opinion of Judge Guillaume, 288, para 5 stating that CIL contains an ‘absolute prohibition … of so-called “blind” weapons which are incapable of distinguishing between civilian targets and military targets.’

115

3.29  Killing and Ill-Treatment of Children prohibition has been supplemented by a number of treaty provisions which prohibit the use of specific weapons identified as being inherently indiscriminate (or at least prone to indiscriminate use). 3.29.1  Chemical and biological weapons: the use of chemical weapons and biological weapons is prohibited in any circumstances (ie including IAC and NIAC) as a matter of treaty law,59 and also as a rule of CIL.60 The use of chemical and bacteriological weapons is also severely condemned as one of the most flagrant violations of IHL in the soft law Declaration on the Protection of Women and Children in Emergency and Armed Conflict. 3.29.2  Landmines: the Mine Ban Treaty 1997 prohibits the use of anti-personnel landmines in any circumstances (ie including IAC and NIAC).61 The preamble to the treaty states that one of the key objects and purposes is ‘to put an end to the suffering and casualties caused by anti-personnel mines, that kill or maim hundreds of people every week, mostly innocent and defenceless civilians and especially children’. It has been suggested that the ban on anti-personnel mines may not (as of 2012) have attracted sufficient widespread and consistent adherence so as to be regarded as a rule of CIL but there is support for the contention that it should be regarded as an emerging CIL rule.62 3.29.3  Cluster munitions: the Convention on Cluster Munitions 2008 prohibits the use of cluster munitions under any circumstances.63 The preamble expresses concern that cluster munition remnants kill or maim civilians, including women and children. As to the position under CIL, although no international consensus on an absolute prohibition has yet emerged,64 cluster munitions have been classified as an

59 Art 1(b), Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, adopted on 3 September 1992, entered into force on 29 April 1997, 1974 UNTS 45. See also Art 1, Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxic Weapons and on Their Destruction, adopted on 10 April 1972, entered into force on 26 March 1975, 1015 UNTS 163, which prohibits the development, production etc. of microbial or other biological agents or toxins and weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict. 60 ICRC, CIL Rules 73 (Biological Weapons) and 74 (Chemical Weapons), ICRC Study on Customary IHL, 256–63. 61 Art 1(1), Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, concluded 18 September 1997, entered into force on 1 March 1999, 2056 UNTS 211. 62 Boothby (n 54), 264–65, paras 13.8–13.9. See the commentary to ICRC, CIL Rule 81, suggesting that state practice ‘appears to indicate an obligation to eliminate anti-personnel mines is emerging’, ICRC Study on Customary IHL, 280–83. See also P Herby and K Lawand, ‘Unacceptable Behavior: How Norms Are Established’, in J Williams, SD Goose and M Wareham (eds), Banning Landmines – Disarmament, Citizen Diplomacy, and Human Security (US, Rowman and Littlefield, 2008), 208, referring to a ‘universal-norm-in-waiting’. 63 Art 1(1), Convention on Cluster Munitions, CCM/77, concluded 30 May 2008, entered into force on 1 August 2010, 2688 UNTS 39. As at 24 August 2017, 102 States are party to the Convention and a further six have signed but not yet ratified: for details see the UNTC website at . 64 See eg Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict 3rd edn (Cambridge, CUP, 2016) 90: ‘By imposing a blanket prohibition on the use of cluster munitions (as defined), the CCM breaks new grounds. Quite a few States, led by the US, are opposed to the far-reaching treaty prohibition and refuse to become Contracting Parties.’

116

Legal Framework  3.30 inherently indiscriminate weapon by the ICTY65 and by the ICRC in its Study on Customary IHL.66 3.29.4  Conventional weapons: the Convention on Certain Conventional Weapons 198067 and its annexed Protocols restrict the use of certain weapons. Protocol II to the Convention prohibits the indiscriminate use of mines, booby-traps, and other devices and prohibits such weapons from being directed against civilians.68 Protocol II specifically prohibits booby-traps attached to or associated with children’s toys or other portable objects or products specially designed for the feeding, health, hygiene, clothing or education of children.69 In 1996, Protocol II was amended to encompass both IAC and NIAC,70 and to explicitly prohibit the indiscriminate use of landmines in sites used for civilian purposes, such as places of worship and schools.71 One commentator has taken the view (as of 2012) that the prohibitions contained in Amended Protocol II have not yet attracted sufficient widespread and consistent adherence so as to be regarded as rules of CIL.72 3.30  The principle of proportionality.73 The principle of proportionality is expressly codified in Article 51, API (and therefore applies to IAC) but it is not mentioned in either Common Article 3 or APII. However, since the rule is established under CIL, it applies to NIAC too.74 The principle provides that incidental harm to civilians as a result of an attack on a military objective75 (also referred to as ‘collateral damage’) must not be expected to be excessive76 in relation to the concrete and direct military advantage a­ nticipated.77 65 Prosecutor v Martić (Trial Chamber Judgment), IT-95-11 (12 June 2007), para 463 finding that c­luster ­munitions are incapable of hitting specific targets. See also Prosecutor v Kupreškić et al (Trial Chamber Judgment), IT-95-16 (14 January 2000), para 524 concerning modified air bombs which may only be directed against a general area. 66 ICRC, CIL Rule 71, commentary: ‘The following weapons have been cited in practice as being indiscriminate in certain or all contexts: … cluster bombs’. ICRC Study on Customary IHL, 244–250. 67 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, adopted on 10 October 1980, entered into force on 2 December 1983, 1342 UNTS 137. 68 Arts 3(2), 3(3) and 3(4), Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), adopted on 10 October 1980, entered into force on 2 December 1983, 1342 UNTS 168. 69 Art 6(1)(b)(v), Protocol II. 70 Art 1, Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Amended Protocol II), adopted on 3 May 1996, entered into force on 3 December 1998, 2048 UNTS 93; Doc. CCW/CONF.I/16 (Part I). 71 Arts 3(7) and 3(8)(a), Amended Protocol II (n 70). 72 See eg Boothby (n 54), 265, para 13.9. 73 The rule of proportionality appears as a species of indiscriminate attack in Article 51(5), API. However, it is clearer to deal with the concepts separately so as not to confuse the rule of proportionality and the rule of distinction. See further Judith Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge, CUP, 2004) 94–95. 74 ICRC, CIL Rule 14, ICRC Study on Customary IHL, 46–50. 75 Military objectives are those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage: Art 52(2), API; ICRC, CIL Rule 8, ICRC Study on Customary IHL, 29–32. 76 It is not clear to what extent, if at all, the determination of what is excessive should take into account the long-term effects of the attack on civilians. Neither API, APII or the ICRC Study on Customary IHL address this issue. 77 The only military advantage that may be considered is the concrete and direct military advantage anticipated from the attack. The meaning of attack for the assessment of the military advantage is debated.

117

3.31–3.33  Killing and Ill-Treatment of Children Where  the  harm is excessive, the attack will be considered to be indiscriminate and, as such, prohibited.78 3.31  A violation of the principle of proportionality – ie launching an indiscriminate attack affecting the civilian population or civilian objects – is defined as a grave breach of API when it is committed wilfully in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects and causes death or serious injury to body or health.79 3.32  Civilians who take a direct part in hostilities: Civilians, including children, who take up arms and directly participate in hostilities temporarily lose the right to invoke immunity from direct attack,80 and need not be considered as part of the proportionality assessment of incidental casualties. The concept of direct (and indirect) participation in hostilities is considered in more detail in Chapter 4. 3.33  The principle of proportionality is implemented on a case-by-case basis, and is inevitably dependent on discretion and judgement on the part of the individual force commander.81 A Committee established by the ICTY Prosecutor to review the NATO bombing campaign in the Former Yugoslavia recognised, ‘The main problem with the principle of proportionality is not whether or not it exists but what it means and how it is to be applied. It is relatively simple to state that there must be an acceptable relation between the legitimate destructive effect and undesirable collateral effects … One cannot easily assess the value of innocent human lives as opposed to capturing a particular

The  debate is illustrated by the following: (i) a number of states have adopted reservations or interpretative declarations stating that the expression ‘military advantage’ refers to the advantage anticipated from the military attack as a whole and not only from isolated or particular parts of that attack (see the statements of the United Kingdom, Australia, Germany, Italy and the Netherlands available on the ICRC website: ); (ii) the ICRC Commentary states that the phrase ‘concrete and direct’ limits the military advantage to that which is substantial and relatively close, and that advantages which are hardly perceptible and those which would only appear in the long-term should be disregarded (ICRC Commentary on the AP (n 28), 684, para 2209) and (iii) the war crime codified in the Rome Statute refers to the ‘concrete and direct overall military advantage anticipated’ (Art  8(2)(b)(iv), Rome Statute of the International Criminal Court, adopted on 17 July 1998, entered into force on 1 July 2002, 2187 UNTS 3), and the Elements of Crimes adds that the military advantage need not be ‘temporally or geographically related to the object of the attack’ (Art 8(2)(b)(iv) para 2, footnote 36, Elements of Crimes of the International Criminal Court, ICC-ASP/1/3). 78 Art 51(5)(b), API. 79 Art 85(3)(b), API ICRC Commentary on the AP (n 28), 996, para 3479. 80 Only ‘[p]ersons taking no active part in the hostilities’ benefit from the protection afforded by para 1 of Common Art 3, and Art 13(3) of APII states that civilians lose their immunity from attack for such time as they are directly participating in hostilities. Some forms of special protection, such as the protection of women and children against indecent assault (ie sexual attacks), can never be displaced or suspended. See further Ch 5. 81 Marco Sassòli, Antoine Bouvier and Anne Quintin, How Does Law Protect in War? vol I, 3rd edn (ICRC, 2011) 164. See also eg Dinstein (n 64), 132 (‘not an exact science’); Gary Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge, CUP, 2010) 272–85. Note the reasoning of a BritishUnited States Claims Arbitral Tribunal writing in 1910: ‘The determination of these necessities ought to be left in a large measure to the very persons who are called upon to act in difficult situations, as well as to their military commanders. A non-military tribunal, and above all an international tribunal, could not intervene in the field save in the case of manifest abuse of this freedom of judgment’. Cited in Affaire des biens britanniques au Maroc espagnol (Spain v. United Kingdom), 1 May 1925, Rapport III, (1949) 2 RIAA 615, 645 and translated in Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (London, Steven & Sons, 1953; reprinted by Cambridge, Grotius Publications, 1987) 65.

118

Legal Framework  3.34–3.37 ­military objective.’82 Guidance on the application of the principle of proportionality has been provided by the ICTY: ‘The basic obligation to spare civilians and civilian objects as much as possible must guide the attacking party when considering the proportionality of an attack. In determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.’83 See also the ICRC Commentary on Article 51 API which suggests that, where there is room for hesitation, the interests of the civilian population should prevail.84 3.34  Precautionary measures. In order to avoid unnecessary harm to the civilian population, parties to the conflict are required to take a number of precautionary measures which are codified in Article 57, API and recognised as rules of CIL applicable to IAC and NIAC.85 3.35  The basic rule, in Article 57(1), API is that constant care should be taken to spare the civilian population, civilians and civilian objects. 3.36  Article 57(2), API then provides that those who plan or decide upon an attack are required to (i) do ‘everything feasible’ to verify that the objectives to be attacked are neither civilians nor civilian objects;86 (ii) take ‘all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimising, incidental loss of civilian life, injury to civilians and damage to civilian objects’;87 and (iii)  refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects (or a combination thereof), which would be excessive in relation to the concrete and direct military ­advantage anticipated.88 3.37  One controversial issue is the extent to which a party to the conflict may rely on the need to achieve success in a military objective as a justification for taking the view that taking particular precautions is not ‘feasible’. The term ‘feasible’ is not defined in API,89 although it is defined in other IHL treaties. For example Art 1(5) of Protocol III to the Convention on Certain Conventional Weapons 1980 defines ‘feasible precautions’ as ‘those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.’ The ordinary meaning of the term ‘feasible’ is ‘capable of being done, accomplished

82 Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, 8 June 2000, (2000) 38 ILM 1257, para 48 (emphasis added). 83 Galić, ICTY Trial Chamber Judgment (n 41), para 58 (emphasis added). 84 ICRC Commentary on the AP (n 28), para 1979. See also Legality of the Construction of a Wall (n 35), 246 Separate Opinion of Judge Elaraby, para 3.2: military necessity ‘has to be interpreted in a strict manner with a view to preserving the basic humanitarian considerations’. 85 ICRC, CIL Rules 15–21, ICRC Study on Customary IHL, 51–67. 86 Art 57(2)(a)(i), API; ICRC, CIL Rules 15 and 16, ICRC Study on Customary IHL, 51–58. 87 Art 57(2)(a)(ii), API; ICRC, CIL Rule 17, ICRC Study on Customary IHL, 56–58. 88 Art 57(2)(a)(iii), API; ICRC, CIL Rule 18, ICRC Study on Customary IHL, 58–60. 89 In the draft of API the ICRC had used the expression ‘take all reasonable steps’. Some scholars have suggested that the requirement to take feasible precautions entails an obligation of due diligence (ie reasonableness): see eg Dinstein, The Conduct of Hostilities (n 64), 139 (‘due diligence and acting in good faith’).

119

3.38–3.39  Killing and Ill-Treatment of Children or carried out, possible, practicable’.90 Some states91 and commentators92 consider that the success of military operations is a relevant consideration in this context. The ICRC Commentary to Article 57 states that this criterion ‘seems to be too broad, having regard to the requirements of this article. There might be reason to fear that by invoking the success of military operations in general, one might end up by neglecting the humanitarian obligations prescribed here. Once again the interpretation will be a matter of common sense and good faith. What is required of the person launching an offensive is to take the necessary identification measures in good time in order to spare the population as far as possible. It is not clear how the success of military operations could be jeopardized by this.’ The ICRC Commentary on the AP adds that ‘in cases of doubt, even if there is only slight doubt, [those who plan or decide] must call for additional information and if need be give orders for further reconnaissance’.93 3.38  The taking of precautions also requires as follows: 3.38.1  Parties must cancel or suspend an attack in certain circumstances, for e­ xample, if it becomes apparent that the objective is not a military one or that the attack may be expected to cause incidental loss of civilian life, or injury to civilians, which would be excessive in relation to the concrete and direct military advantage anticipated.94 3.38.2  Parties to the conflict must give ‘effective advance warning … of attacks which may affect the civilian population, unless circumstances do not permit’.95 The phrase ‘circumstances do not permit’ is another way of expressing the idea that it is not ‘feasible’ to provide a warning. 3.39  The parties to the conflict are also required to take precautionary measures against the effect of attacks and to protect civilians under their control. In particular, the parties

90 ICRC Commentary on the AP (n 28), 681, para 2198, n 6 quoting the Oxford Dictionary. 91 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), vol VI, CDDH/SR.42, Annex (explanations of vote), 224 (Canada), 226 (Germany), 231 (Italy), 241 (USA). See also eg United Kingdom declaration dated 2 July 2002, available at stating that the United Kingdom ‘understands the term ‘feasible’ as used in the Protocol to mean that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations’. 92 See eg Bothe et al (n 28), 357 (‘“Feasible” is interpreted to mean “that which is practicable or practically possible, taking into account all circumstances a the time including those relevant to the success of military operations”’); Boothby (n 54), 121 (‘The obligation to do ‘everything feasible’ is a duty to do that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations’). For an example of such an approach in IHL treaty law see Art 3(10), Convention on Certain Conventional Weapons, Amended Protocol II (n 70) which contains the following explanation: ‘Feasible precautions are those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations’. Art 3(10) then sets out a non-exhaustive list of such circumstances. The same definition of ‘feasible precautions’ also appears in the other Protocols to the Convention on Certain Conventional Weapons. 93 ICRC Commentary on the AP (n 28), para 2195. 94 Art 57(2)(b), API; ICRC, CIL Rule 19, ICRC Study on Customary IHL, 60–62. 95 Art 57(c), API; ICRC, CIL Rule 20, ICRC Study on Customary IHL, 62–65. The provenance of this rule stretches back at least as far as the attempt to codify existing rules and customs of war as at 1863 in the Lieber Code: see Art 19, Instructions for the Government of Armies of the United States in the Field (Lieber Code), General Order No. 100, Adjutant General’s Office, 24 April 1863 (Government Printing Office 1898): ‘Commanders, wherever admissible, inform the enemy of their intention to bombard a place, so that the noncombatants, and especially … children, may be removed before the bombardment commences’.

120

Legal Framework  3.40–3.43 to the conflict are required, ‘to the maximum extent feasible’, to endeavour to remove individual civilians and the civilian population from the vicinity of military objectives and to avoid locating military objectives within or near densely populated areas.96 3.40  Children and conduct of hostilities. The description above shows that age does not matter in relation to the IHL principles regarding the conduct of hostilities since all civilians are treated the same. For example: 3.40.1  Although children are sometimes identified as being particularly ­vulnerable,97 the principle of distinction does not give them greater protection than other civilians;98 3.40.2 The principle of proportionality requires a calculation in which every human life is accorded the same weight; and 3.40.3  The obligation to take precautions and the extent of the precautions required is not affected by the age of the civilians who may be present at the intended attack site. 3.41  Even though children do not attract special protection under the IHL principles regarding the conduct of hostilities we consider that they are adequately protected as part of the civilian population. However, we suggest that consideration should be given to whether children should be given greater weight in the application of the principle of proportionality and the obligation to take precautions: see further paragraph 3.60 below. IHL Rules Governing the Treatment of Persons 3.42  This section addresses the treatment of persons under IHL. We consider, first, the general treatment of children in armed conflict, insofar as it is addressed by IHL and conclude, as developed below, paragraphs 3.54 and 3.55, that the extent to which they are protected could be clarified and particularised. Second, we consider the applicable IHL regarding (i) killing and (ii) torture and ill treatment. Although the applicable IHL is of general application, we consider that it is adequately protective of children. 3.43  First, the general treatment of children in armed conflict:99 3.43.1  IAC: As noted above, paragraphs 3.16 to 3.18, GCIV does not contain any generalised obligation to ‘respect’, ‘protect’ or ‘care’ for children. By contrast, API100 provides that children shall be the object of ‘special respect’ and shall be protected 96 Art 58, API; ICRC, CIL Rules 23–24, ICRC Study on Customary IHL, 71–76. Although APII does not specifically require such precautions, Article 13(1) provides that ‘the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.’ 97 See, eg, para 1, UNGA, Declaration on the Protection of Women and Children in Emergency and Armed Conflict, UN Doc A/RES/3318(XXIX) (14 December 1974). 98 As explained in Ch 4 a broader interpretation of direct participation in hostilities will expose children who are associated with armed forces or armed groups to a greater risk of liability to direct attack. 99 In addition to the law set out below, the need to provide special treatment for children is also set out in soft law. See, eg, the preamble to the Declaration on the Protection of Women and Children in Emergency and Armed Conflict (n 97), which applies to all armed conflict situations without distinction, affirms the General Assembly’s understanding of ‘the need to provide special treatment of women and children belonging to the civilian population’. The Declaration calls on all States to abide fully with their obligations under IHL, as well as IHRL, and to take ‘[a]ll efforts … to spare women and children from the ravages of war’: paras 2–4. 100 Art 77(1), API. For further consideration of indecent assault see Ch 5.

121

3.43  Killing and Ill-Treatment of Children 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.101 This duty of special respect, care and aid applies to all ‘children’ (without any express qualification or limitation) in the territory of a party to the conflict.102 On this interpretation, children who take a direct part in hostilities (as to which see Chapter 4) are entitled to both the specific protections under Article 77(2), API as well as the general protections for all children under Article 77(1). 3.43.2  The ICRC Commentary on the AP explains that the term ‘children’ is intentionally not defined for these purposes because there was no consensus. However, at the very least, all children under 15 are covered by Article 77, API.103 It is not clear whether Article 77(1) would now be regarded as applying to children aged 18 and under. 3.43.3  The phrase ‘the care and aid they require, whether because of their age or for any other reason’ means that all the factors relevant for determining the aid required must be taken into account in each individual case.104 The drafters recognised that additional care and aid may be required for mentally or physically handicapped ­children. It has also been suggested that a greater standard of assistance may be required for other especially vulnerable categories of children such as very young children.105 3.43.4  NIAC (APII): The status of children in NIAC (APII) is articulated in Article  4(3), APII.106 It provides, ‘children shall be provided with care and aid they require’ and then sets out a non-exhaustive list of particular protections.107 The existence of a legal duty is expressed by the use of the phrase ‘children shall be provided’.108

101 ICRC Commentary on the AP (n 28), at 900, para 3180, states that, ‘according to the Rapporteur the last words, or for any other reason, refer to … those who are physical or mentally handicapped’. However, the ­ordinary meaning of the phrase is not so limited. 102 ICRC Commentary on the AP (n 28), 899, para 3177. Indeed, the travaux préparatoires record that the specific purpose of this provision was to extend to all children in the territories of States involved in a conflict, some of the provisions of GCIV irrespective of whether or not (a) the territory was occupied, and (b) the children fell within the definition of protected persons ie non-national civilians: see comments of the ICRC in Summary Record of 45th meeting of Committee III (5 May 1976), CDDH/III/SR.45, para 6, published in Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977) (Federal Political Department Bern 1978), Vol XV, 64. See also ICRC Commentary on the AP (n 28), 898–99, para 3174. 103 ICRC Commentary on the AP (n 28), 899–900, paras 3178–79: ‘The word “children” is not clarified in any way, and this omission is intentional. The Rapporteur said: “It should also be noted that the Committee decided not to place specific age limits in paragraphs 1 and 4 and that there is no precise definition of the term ‘children’ ” … there is no doubt that all human beings under fifteen should, within the meaning of the Fourth Convention and this Protocol, be considered and treated as children’. 104 Committee III Report of the Fourth Session (Geneva, 17 March–10 June 1977), CDDH/407/Rev.1, para 60: ‘the phrase any other reason was included to cover possible problems not resulting solely from age, such as the state of health, mental retardation, etc.’ See also (n 101) and ICRC Commentary on the AP (n 28), para 3180: ‘according to the Rapporteur the words, “or for any other reason”, refer to retarded children, or in modern terminoloy, those who are physically or mentally handicapped.’ 105 See eg Kuper, Military Training (n 4), 35. 106 Kuper, Child Civilians (n 4), 78. 107 ICRC Commentary on the AP (n 28), para 4545: ‘The general principle of protection laid down at the beginning of the paragraph is illustrated with a list of obligations implied by it (sub-paragraphs (a)–(e)). As indicated by the words in particular, this list is illustrative only and does not in any way prejudice other ­measures which may be taken.’ 108 ibid, para 4547.

122

Legal Framework  3.44 Although Article 4(3) does not include the text which is in Article 77(1), API, viz, the phrase ‘whether because of their age or for any other reason’, the words ‘they require’ in Article 4(3) oblige the party to the conflict to take into account all relevant circumstances of the individual child.109 3.43.5  As with Article 77(1), API, the term ‘children’ in the opening sentence of Article  4(3) was intentionally not defined, since the age of majority varies between states.110 As a minimum, all children under 15 are covered.111 However, the ICRC Commentary recognises that since ‘[b]iological and psychological maturity varies’, ‘the possibility that aid is required by children over the age of 15 cannot be excluded’.112 3.43.6  CIL: The principle that children are entitled to special respect and protection is also reflected in CIL, applicable in both IAC and NIAC: ICRC, CIL Rule 135. Notably, unlike the equivalent treaty provisions in API and APII, the CIL rule is stated to apply to children ‘affected by the armed conflict’. While the term ‘affected’ may naturally be read broadly, the ICRC Commentary suggests that, where that term is used in API and APII, it performs a limiting function such that, for example, the relevant obligation may not extend to all children in the territory of a party to the conflict.113 It appears that there is no uniform practice as to the age of children covered by CIL Rule 135.114 3.43.7  We consider that the general position of children in armed conflict could be clarified and particularised. See below, paragraphs 3.61 and 3.62 for our suggestions for improvement in this regard. 3.44  In addition to these general provisions regarding children and their treatment and entitlement to protection, there are a number of more specific provisions relating to (i) removal and evacuation; (ii) detention and internment and (iii) the death penalty. We consider these next (excluding the death penalty which, as noted at paragraph 3.17 above is outside the scope of this book) even though they do not relate to killing

109 ibid, para 4548 citing O.R. IV, 101, CDDH/III/28; O.R. XV, 65, CDDH/III/SR.45 (n 102), para 9. The draft article proposed by the ICRC used the similar formulation ‘the care and aid their age and situation require’ (Art 32). 110 ibid, para 4549: ‘The Conference intentionally did not give a precise definition of the term “child”.’ 111 ibid, para 4549: ‘The moment at which a person ceases to be a child and becomes an adult is not judged in the same way everywhere in the world. Depending on the culture, the age may vary between about fifteen and eighteen years. Subparagraph (c) determines the lower limit of fifteen years for recruitment into the armed forces. The text refers to “children who have not attained the age of fifteen years”, which suggests that there may be children over fifteen years. This age was chosen as a realistic basis, and because the Conventions had already taken it into account to ensure that children should have the benefit of priority measures.’ 112 ibid, para 4550. 113 ibid, 866–67, para 3011: ‘The word “affected” [by the armed conflict] in this context means: ‘touched by or concerned. It remains to determine how far this category of persons extends. When there is armed conflict, all those who find themselves in the territory of the countries at war or in occupied territory, are affected in some way or another. This is very probably not what was intended, particularly because of the words “in so far”; it cannot therefore be denied that there are persons who are not affected in the sense of this article. In general those who contravene the normal laws of the State (ordinary criminals) and who are punished on these grounds, are not “affected” within the meaning of this article. On the other hand, if security measures are taken against certain individuals because of their attitude, whether true or alleged, with regard to the conflict, Article 75 certainly applies to them.’ 114 The relevant age limit applicable to the corresponding CIL rule is not addressed in the ICRC’s commentary on CIL Rule 135: ICRC Study on Customary IHL, 479–82.

123

3.45  Killing and Ill-Treatment of Children or ill-treatment and even though we do not necessarily consider that these specific provisions are adequately protective. Our reason for doing so is that these provisions illustrate a point: that IHL can be tailored and particularised to recognise the specific needs of children. As such, these provisions provide helpful precedent by reference to which the law could be clarified or developed. 3.45  In IAC: 3.45.1  Removal and evacuation: removal (in country) and evacuation (out of country) of children are considered in Article 17, GCIV and Article 78, API respectively.115 The parties to the conflict shall ‘endeavour to conclude’ local agreements for the removal from ‘besieged or encircled areas’,116 of wounded, sick, infirm, and aged persons, children and maternity cases: Article 17, GCIV.117 The rules governing evacuation are different for national and alien children. As to nationals, the parties to the conflict shall facilitate the reception of children under 15 who are orphaned or separated from their families in a neutral country for the duration of the conflict subject to the consent of the Protecting Power: Article 24, GCIV. Children under 12 must be made identifiable by being issued with identity discs, or other means of identification.118 Alien children may be evacuated only: (i) where essential for the health or safety of the children, and (ii) with the consent of the parents or guardians where they can be found: Article 78, API. Evacuated children must be issued with an identification card, a copy of which must be sent to the Central Tracing Agency of the ICRC.119 According to guidance issued by the interested UN agencies and humanitarian organisations, ‘the guiding principle must be the best interests of the child’, ie whether the evacuation and separation from family would lead to more harm than good for the child.120

115 Note that practice in IAC and NIAC establishes evacuation from areas of combat for safety reasons as an exception to the prohibition on displacement of the civilian population: ICRC, CIL Rule 129, ICRC Study on Customary IHL, 457–62. 116 See 1958 ICRC Commentary on GCIV (n 21), 138: Even ‘vast territories’ may be besieged and encircled areas, the key question being whether the encircled belligerent has the necessary hospitals and equipment within the encircled area to ensure that the wounded, sick, and other civilians in question are properly looked after. 117 Prior to GCIV, in 1939, the International Save the Children Union had proposed a draft Convention which would have required States Parties to seek to agree secure locations for the protection of children ‘outside the military zone, the urban and industrial centres, and … away from any military target’: Arts 3 and 7, International Save the Children Union, ‘Convention Project for the Protection of Children in Case of Armed Conflict’ (12 January 1939): see Annex I hereto. Safety zones and zones of protection are addressed in Ch 7. 118 Children over the age of 12 were thought to be able to identify themselves: see 1958 ICRC Commentary on GCIV (n 21), 188. For additional protections regarding evacuation to/from occupied territories see Art 49, GCIV. 119 This is a refinement of the requirement of identity discs under Art 24, GCIV. The establishment of the Central Tracing Agency is provided for in Art 140, GCIV. The identifying card should contain the following information: names, sex, date and place of birth or age, parents’ names, nationality, native language and languages spoken, address, state of health, blood group, distinguishing features, date and place child was found, date and place from which the child left the country, religion, present address. However, information may be omitted where its inclusion would involve risk a risk of harm to the child, eg on grounds of religious persecution. 120 UNHCR/UNICEF, Joint statement on the evacuation of children from the Former Yugoslavia (13 August 1992) printed in Everett Ressler, Evacuation of Children from Conflict Areas, Considerations and Guidelines, UNHCR and UNICEF (Geneva 1992). See also UNHCR/UNICEF, Joint Statement No 2, Further Considerations Regarding the Evacuation of Children from former Yugoslavia (16 December 1992), published in UNICEF, Technical Notes: Special Considerations for Programming in Unstable Situations (UNICEF 2000), Ch 7, Annex 1.

124

Legal Framework  3.46 3.45.2  Detention and internment of children are considered in GCIV and API. Internment (and assigned residence) are the most severe ‘measures of control’ that may be taken by a state with respect to civilians whose activity is deemed to pose a serious threat to its security: Articles 27, 41–42 and 78, GCIV. Protected persons (ie  alien  civilians) may only be interned where this is absolutely necessary for the security of the Detaining Power.121 Internment must cease as soon as the reasons which necessitated it no longer exist, and in any event ‘as soon as possible after the close of hostilities’: Articles 24, 46, 132(1) and 133(1), GCIV and Article 75(3), API. Internees must be provided with adequate food, water, clothing, shelter and medical attention.122 Proper regard shall be paid to the special treatment due to minors who are detained.123 Children should be accommodated in the same place as family units, wherever ­possible.124 In all other situations, children must be held in separate accommodation from adults.125 The age below which an unaccompanied child is to be separately accommodated is not specified in Article 77.126 Although the matter is not settled, the drafting history suggests that whether such protection is extended to 16 to 18 year olds is left to the national law, tradition, and the decision of the parties to the conflict, who are expected to act in light of the purposes of Article 77.127 Notably, Article 76 of API provides that the cases of all pregnant women and mothers of dependent infants who are arrested, detained or interned for reasons related to the armed conflict must be considered with the utmost priority. However, this obligation is not stated to extend to children generally, and no corresponding entitlement is contained in Article 77. 3.46  In NIAC (APII): 3.46.1  Removal and evacuation: removal (in country) is addressed in Article 4(3)(e). Measures shall be taken, if necessary, and wherever possible with the consent of their

121 Art 42, GCIV. As to the position in NIAC (APII), APII recognises the fact of civilian internment but does not expressly authorise it. 122 Arts 85, 87 and 89–92, GCIV. In NIAC (APII), all persons deprived of their liberty for reasons relating to the armed conflict are entitled to food, water, health, hygiene, shelter and protection against the dangers of the conflict to the same extent as the local civilian population: see Art 5, APII. See also ICRC, CIL Rule 118, which applies in IAC and NIAC: ICRC Study on Customary IHL, 428–31. The lack of adequate food, water or medical treatment amounts to inhumane treatment: See ICRC, CIL Rule 90, ICRC Study on Customary IHL, 315–19; Prosecutor v Aleksovski (Trial Chamber Judgment), IT-95-14/1 (29 June 1999), paras 158, 164, 173 and 182. 123 Art 76(5), GCIV. 124 Art 82(2), GCIV and Art 75(5), API. Contrary to Kuper, Child Civilians (n 4), 88, n 70, the entitlement under Art 82 GCIV is not limited to occupied territory. Cf the specific protections under Arts 50–51 GCIV for persons in occupied territory. 125 Art 82(3), GCIV; Art 77(4), API. Note that Art 77(4) of API was not contained in the ICRC draft Art 68, and was added following a proposal from the Swiss delegation: see O.R. XV, 67, CDDH/III/SR.45 (n 102), para 17. The rule that children must be held in separate accommodation from adults is also recognised in CIL applicable in IAC and NIAC: see ICRC, CIL Rule 120, ICRC Study on Customary IHL, 433–35. 126 The ICRC Commentary to Art 77(1), API suggests that 15 years of age is the absolute minimum: see ICRC Commentary on the AP (n 28), 899, para 3179. 127 Report of Committee III Fourth Session, CDDH/407/Rev.1 (n 104), para 63: ‘It should also be noted that the Committee decided not to place specific age limits in paragraphs 1 and 4 and that there is no precise definition of the term “children”. Whether persons of sixteen, seventeen, or eighteen years of age would thus have to be detained separately from adults is left to national law, traditions, and the decision of the Parties to a conflict who, it is expected, will act in light of the purposes of Article 68.’

125

3.47–3.49  Killing and Ill-Treatment of Children parents or persons by law or custom who are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being. This is broader than the protection under Article 17 of GCIV, since it applies to all areas of hostilities. However, removal is to be used only as an exceptional and temporary measure.128 APII deliberately omits the possibility of the evacuation of children to a foreign country.129 3.46.2  Detention and internment: no specific reference is made to child internees or detainees in APII.130 3.47  See below, paragraphs 3.55 and 3.62, for our analysis and suggestions for improvement in relation to these specific provisions. 3.48  We turn now to the legal framework regarding the two specific issues of killing and ill-treatment. We make two observations at the outset. First, this IHL framework is adequately protective of civilians, including children. This means that the provisions of ICL that are informed by this IHL framework are also adequately protective: see ­paragraphs 3.85 to 3.86 below. Second, the protections offered by the IHL framework overlap with those offered by the IHRL framework and could, therefore, be consolidated in one instrument: see paragraphs 3.59.1 and 3.106 below. 3.49  As to (i), killing: the murder of persons in the hands of a party to the conflict, including children, is prohibited in all armed conflict situations. Thus: 3.49.1  IAC/all civilians: the murder of any civilian who is in the power of a party to the conflict is absolutely prohibited at any time and in any place whatsoever.131 3.49.2  IAC/protected persons: additional protections are afforded to alien civilians as protected persons. The murder of protected persons in the hands of a party to the conflict is absolutely prohibited and wilful killing constitutes a grave breach.132 3.49.3  NIAC (all)/all civilians: the murder of persons taking no active part in the hostilities is absolutely prohibited at any time and in any place whatsoever.133 3.49.4  CIL: murder is prohibited under CIL applicable in IAC and NIAC (all).134 3.49.5  Definition of murder: for all of the above purposes murder is defined as ­intentional killing.135

128 ICRC Commentary on the AP (n 28), 1381, para 4560. 129 ibid. 130 See further Hampson (n 4), para 4.2.2. 131 Art 75(2), API. 132 Arts 32 and 147, GCIV. 133 Common Art 3(1)(a). This protection applies without any adverse distinction on grounds of race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. Although there is no express reference to discrimination on grounds of age, the non-exhaustive nature of the clause (‘any other similar criteria’) means that this too is prohibited. 134 ICRC, CIL Rule 89: ‘Murder is prohibited.’ 135 ‘Wilful killing’ is sometimes used a synonym for murder: see eg Art 147, GCIV. However, no difference is intended: see 1958 ICRC Commentary on GCIV (n 21), 587.

126

Legal Framework  3.50 3.50  As to (ii), torture and other ill-treatment: the torture or cruel, inhumane or degrading treatment and punishment of persons in the hands of a party to the conflict, including children, is absolutely prohibited in all armed conflict situations.136 Thus: 3.50.1  IAC/all civilians: all civilians affected by the armed conflict who are in the power of a party to the conflict must be treated humanely in all circumstances.137 3.50.2  IAC/protected persons: Article 27, GCIV requires that all protected persons shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof. Article 32, GCIV prohibits any measure of such a character as to cause the physical suffering or extermination of protected persons including murder, torture, corporal punishment, and mutilation.138 The torture or inhuman treatment of protected persons constitutes a grave breach of GCIV.139 3.50.3  NIAC (all)/all civilians: any and all forms of violence to the life and person, of persons taking no active part in the hostilities, are prohibited at any time and in any place whatsoever. This is part of the requirement to treat humanely.140 3.50.4  NIAC (APII)/all civilians: Articles 4(1) and 4(2), APII restate and supplement the requirement to accord humane treatment under Common Article 3. The main development of the concept of humane treatment in Article 4, APII is the express incorporation of an absolute prohibition on sexual violence, which is considered further in Chapter 5. 3.50.5  CIL: The obligation to treat civilians humanely is also protected under CIL applicable in IAC and NIAC (all).141 More specifically, this includes a prohibition on: (i) torture and cruel, inhuman or degrading treatment (ICRC, CIL Rule 90); (ii) corporal punishment (ICRC, CIL Rule 91); and (iii) mutilation and medical, scientific or biological experimentation (ICRC, CIL Rule 92). 3.50.6  Definitions: (i) Cruel treatment, which is not specifically defined in GCIV or in the APs, refers to a broad category of intentional acts or omissions which cause serious mental or physical suffering or injury or constitute a serious attack on human dignity.142 136 In addition to the law set out below, the prohibition is also included in soft law instruments. See, eg, para 4, Declaration on the Protection of Women and Children in Emergency and Armed Conflict (n 97): ‘All necessary steps shall be taken to ensure the prohibition of measures such as persecution, torture, punitive measures, degrading treatment and violence, particularly against that part of the civilian population that consists of women and children.’ 137 Art 75(1), API. Humane treatment (or inhuman treatment) is not defined. However, the following acts are among those prohibited at any time and in any place whatsoever under Art 75(2), API: (i) violence to the life, health, or physical or mental well-being of persons, in particular: murder, torture of all kinds (physical or mental), corporal punishment, mutilation; and (ii) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault. 138 See also Art 32, GCIV: ‘No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties’. 139 Art 147, GCIV. 140 This includes murder, torture, mutilation and cruel treatment: Common Art 3(1)(a). Outrages upon personal dignity, in particular humiliating and degrading treatment, are also prohibited: see Common Art 3(1)(c). 141 ICRC, CIL Rule 87: ‘Civilians and persons hors de combat must be treated humanely.’ ICRC Study on Customary IHL, 306–08. 142 Prosecutor v Mucić et al (Trial Chamber Judgment), IT-96-21 (16 November 1998), para 552. See also the ICRC 2016 commentary to the First Geneva Convention (hereafter 2016 ICRC Commentary on GCI), available

127

3.51–3.52  Killing and Ill-Treatment of Children International courts and tribunals have recognised that cruel treatment includes beatings,143 and the use of human shields.144 (ii) Mutilation, which is not specifically defined in GCIV or in the APs, includes ‘permanently disfiguring the victim, or … permanently disabling or removing an organ or appendage of the victim without medical justification’.145 (iii) Torture, which is not specifically defined in GCIV or in the APs, entails the infliction of severe pain and suffering for a specific purpose. The 1958 ICRC Commentary on GCIV refers to the infliction of suffering on a person to obtain from that person, or from another person, confessions or information.146 The ICRC Commentary to APII is broader, stating that the act of torture is reprehensible in itself regardless of its perpetrator, and cannot be justified in any circumstances.147 More recently, international criminal tribunals have relied on the definition of ‘torture’ in Article 1(1), of the United Nations Convention Against Torture (UNCAT) which specifies the purposes of (i) obtaining information or a confession, (ii) punishment, and (iii) intimidation or coercion.148 However, in contrast with Article 1 of UNCAT, since IHL applies to all parties to the conflict (ie it applies to non-state armed groups in NIAC), there is no requirement that the perpetrator of torture is a state or public official.149 It is well-established that the prohibition of torture is a norm of jus cogens status.150 2.  Problems and Deficiencies in the Legal Framework 3.51  This section identifies five problems and deficiencies in the current IHL framework. The first two problems are general ones. The third relates to IHL regarding the conduct of hostilities. The fourth and fifth relate to IHL regarding the treatment of children who are in the hands of a party to the armed conflict. 3.52  The two problems of a general nature are as follows.

at . See paras 615–23 on Art 3. 143 Prosecutor v Tadić (Trial Chamber Judgment), IT-94-1 (7 May 1997), para 726. 144 Prosecutor v Blaškić, (Trial Chamber Judgment), IT-95-14 (3 March 2000), para 186. See also 2016 ICRC Commentary on GCI (Art 3) (n 142), para 620: ‘Specific acts that have been considered cruel by the ICTY include the lack of adequate medical attention, inhumane living conditions in a detention centre, beatings, attempted murder, the use of detainees to dig trenches at the front under dangerous circumstances, and the use of human shields.’ 145 Prosecutor v Brima et al, (Trial Chamber Judgment), SCSL-04-16-T (20 June 2007), para 724. See also 2016 ICRC Commentary on GCI (Art 3) (n 142), para 606: ‘Practices documented in contemporary armed conflicts illustrate conduct that qualifies as mutilation. These include such acts as amputating hands or feet, cutting off other body parts, mutilation of sexual organs, or carving someone’s body. Other examples cited include taking out a person’s eye, knocking out teeth, injuring internal organs or scarring a face with acid.’ 146 1958 ICRC Commentary on GCIV (n 21), 598. On the requirement of a specific purpose see also 2016 ICRC Commentary on GCI (Art 3) (n 142), paras 640–44. 147 ICRC Commentary on the AP (n 28), para 4533. 148 See eg Prosecutor v Kvočka et al (Appeals Chamber Judgment), IT-98-30/1-A (28 February 2005), para 284. 149 ICRC Commentary on the AP (n 28), para 4533: the act of torture is reprehensible in itself, regardless of its perpetrator, and cannot be justified in any circumstances. See also 2016 ICRC Commentary on GCI (Art 3) (n 142), para 645. The definition of ‘torture’ under Art 1 of UNCAT is addressed at para 3.104 below. 150 See eg Prosecutor v Furundžija, (Trial Chamber II Judgment), IT-95-17/1 (10 December 1998), paras 153–57.

128

Legal Framework  3.52 3.52.1  First, the IHL legal framework is scattered and complex. Further to our introductory observation in Chapter 2, paragraphs 2.73 to 2.75, this first subject-specific Chapter provides an illustration of the difficulty in identifying some of the applicable IHL rules. The description above shows that, in order to identify the IHL applicable to the treatment of persons, it is necessary to navigate multiple sources of law and to take account of the nature of the armed conflict, ie IAC, NIAC (APII) or NIAC (Common Article 3) (cf the IHL rules applying to the conduct of hostilities which apply to all types of armed conflict: see paragraph 3.21 above). Whilst the applicable rules can be discerned and identified it is questionable, to say the least, whether the path to that identification should be as complicated as is presently the case. Furthermore, although the substance of the law that is applicable in an IAC may be similar to that applicable in NIAC that conclusion is only apparent after careful legal analysis.151 That analysis requires familiarity with the different kinds of armed conflict and the treaty provisions and CIL that govern them. The complexity of the legal framework diminishes the effectiveness of the law and its protections. It is likely to be particularly difficult for non-state armed groups and victims to navigate this framework since they are less likely to benefit from access to expert legal advice and representation that is available to the armed forces of states, and the rules requiring dissemination of APII are more vague than the equivalent rules requiring dissemination of GCIV and API.152 3.52.2  Second, non-universal ratification of API and APII: API does not benefit from universal ratification. This means that the only universal and applicable IHL rules are those under GCIV (which are less developed than those in API) and CIL (the content of which may be more susceptible to being challenged since it is not codified). Furthermore, even where the relevant state accepts that a situation has reached the threshold of a NIAC under APII, or this is authoritatively established, the problem remains that APII, like API, does not benefit from universal ratification. This means that, with the exception of Common Article 3, CIL is the sole source of generally applicable IHL rules in NIAC. CIL as a source of law (whether in IAC or NIAC) may be problematic, even if it is assumed that there is no debate over whether the rule in question has the status of CIL and even if the CIL rule is considered clear and applicable in a particular case. This is because the domestic law of states varies on the question of whether CIL is a source of law. This is significant in terms of the domestic enforceability of that rule: if the state in question does not recognise CIL or the particular rule of CIL as a source of domestic law then it may be impossible or difficult to enforce the CIL rule through domestic courts. In contrast, if the source of the rule is a treaty provision (because it has been ratified by the state in question) then this is likely to make domestic enforcement of that rule more realistic (for example, because of the duty to respect and ensure respect in API which includes domestic implementation: see Chapter 2, paragraphs 2.99 to 2.101). 151 See eg Emily Crawford, ‘Blurring the Lines between International and Non-International Armed Conflicts: The Evolution of Customary International Law Applicable in Armed Conflicts’ (2008) 15 Australian International Law Journal 29; Yoram Dinstein, Non-International Armed Conflicts (Cambridge, CUP, 2014) at 211–19. See also Prosecutor v Tadić (n 143), para 127. 152 Compare the detailed provisions of Art 144, GCIV and Art 83, API with Art 19, APII which simply states ‘This Protocol shall be disseminated as widely as possible.’

129

3.53–3.54  Killing and Ill-Treatment of Children 3.53  Third, and in relation to the IHL framework regarding the conduct of h ­ ostilities: the generally adequate IHL protections from killing and ill-treatment afforded to civilians could arguably be developed to take express account of the special position of children which is already recognised in other contexts under IHL. A striking difference between the IHL governing the conduct of hostilities and the IHL on treatment of persons is that, as we noted above, paragraph 3.40, in the context of the conduct of hostilities, there is no special consideration of children.153 That seems counter-intuitive given the vulnerability of children. For example it has been suggested that ‘law and morality seem to be in opposition since most military planners would give higher priority to protecting the mothers and children and that the failure to appreciate this point … leads to much of the dispute in this area’.154 This is, however, a difficult issue because there may be undesirable ramifications if the position of children is expressly or differently treated. Furthermore, it may be said that it is unnecessary to specify the position of children since that may be taken into account in the fact-sensitive application of these principles. We consider these issues further at paragraph 3.60 below. 3.54  Before describing the two problems regarding IHL and the treatment of persons we repeat the point made at paragraph 3.48 above: viz, that we regard the existing protections regarding killing and ill-treatment as being adequate to protect children. The problems that we identify relate to the wider legal framework regarding the position of children in armed conflict. Thus, fourth, one problem with the legal framework regarding the treatment of persons is that the general provisions regarding the position of children are different under API, APII and CIL and inadequately particularised. Thus, 3.54.1  First, the three formulations are different. Whereas the obligation under Article 77, API (applicable in IAC) is to afford children ‘special respect … care and aid’,155 Article 4(3) of APII (applicable in NIAC (APII)) requires that children be granted ‘care and aid’.156 These terms are not defined in API or APII.157 Meanwhile, ICRC, CIL Rule 135 (applicable in IAC and all forms of NIAC) uses a third formulation: ‘children affected by the armed conflict are entitled to special respect and protection’. The co-existence of these three different formulations is unhelpful, since it may be interpreted as meaning that children are entitled to different protections depending on the classification of the armed conflict and the source of legal

153 Hampson (n 4), para 4.2.2. 154 Charles Garraway, ‘Direct participation and the principle of distinction: squaring the circle’ in Caroline Harvey, James Summers and Nigel White, Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe (Cambridge, CUP, 2014) 169 at 179. 155 The only reference to ‘protection’ in Art 77, API is in the specific context of indecent assault. 156 The only reference to ‘special protection’ in Art 4(3), APII is in the specific context of the recruitment and use of children by armed forces or armed groups. 157 We note that the draft 1946 Convention prepared by the Bolivian Red Cross used the different terminology of a right to ‘assistance’, with specific obligations being set out in Annexes 2–5. Of particular interest, Annex 2 provided that minors under 14 have a ‘preferential right to assistance’ (para 15), and ‘priority for protection in case of air strikes and in case of evacuation’ (para 17). Annex 3 provided that minors under 14 have a right to medical assistance to the same standard as the forces of the territory where they find themselves, and a right to priority over adults (para 25). See Bolivian Red Cross, ‘La Paz Convention for the Protection of Children in times of International Wars or of Civil Unrest – Project’, prepared for the Preliminary Conference of the Red Cross Societies for the study of conventions and issues related to the Red Cross, Geneva, 26 July to 3 August 1946 (unofficial English translation at Annex II).

130

Legal Framework  3.54 obligation.158 It is unclear whether states and non-state armed groups have in fact interpreted these provisions differently. If they have not then these different formulations are an unnecessary complication. They should be discarded and the language used to express the protection should be standardised. If they have: it is difficult to see why the nature of the armed conflict should govern the formulation of special treatment to be accorded to children. The protection should be standardised. Consideration should also be given to whether ‘children’ should be defined so as to include all persons aged 18 and under. 3.54.2  Second, the lack of definition of the obligations entailed in API and APII means that it is debatable what specific protections children are entitled to. That makes it challenging to enforce and implement those entitlements. Further, it is questionable whether the protections that are expressly recognised as forming part of the principle of special treatment of children in Article 77, API and Article 4(3), APII are sufficient. (i) Article 77, API: although this provision was discussed for more than a week,159 there appears to have been little consideration of the meaning of the duty of special respect, and the precise content and scope of this duty remains unclear.160 The words ‘special respect’ were substituted for ‘privileged treatment’ (the ­formulation used in the ICRC draft).161 However, the travaux contain no suggestion that the change of words reflected any intention to incorporate a lesser ­standard.162 (ii) Article 4(3), APII: the ICRC Commentary states that the obligation to ‘care and aid’ under Article 4(3) of APII should be interpreted broadly as ‘impos[ing] a legal duty, to protect children from the consequences of hostilities by providing the care and aid they require, preventing physical injury or mental trauma and ensuring that they develop normally as circumstances permit’.163 So the ICRC interprets Article 4(3) as requiring both protection and respect of children. (iii) It does not appear that the language of either Article 77, API or Article 4(3), APII was drafted with the distinction between the terms ‘respect’ and ‘protect’ in mind (see n 158). The formulation of ICRC, CIL Rule 135 indicates that state practice 158 For example, in principle, the terms ‘respect’, ‘protection’, ‘care’ and ‘aid’ are capable of bearing different meanings under IHL. According to the ICRC Commentary on the AP (n 28), 146, para 446, ‘respect’ means ‘to spare, not to attack’, while ‘protect’ means ‘to come to someone’s defence, to lend help and support … to come to their rescue’. 159 Report of Committee III, Fourth Session, CDDH/407/Rev.1 (n 104), para 59: ‘Article 68 was the subject of discussion in the Committee for one week. The final text was a compromise in many respects and was not completely satisfatory to a number of representatives. Nevertheless, it was adopted by consensus.’ 160 ICRC Commentary on the AP (n 28), 900, para 3181 does not contain any elaboration and instead appears to link the duty of special respect to the more specific protection against indecent assault in Art 77(1), including by analogy to Art 76(1) (Protection of women). 161 The final version of Art 77(1) should be contrasted with Art 68(1) of the ICRC draft: ‘Children shall be the object of privileged treatment. The Parties to the conflict shall provide them with the care and aid their age and situation require. Children shall be protected against any form of indecent assault’. 162 The words ‘privileged treatment’ were removed because it was thought that the latter might be misread as implying the unmerited advantages conferred by birth or wealth: see O.R. XV, 70, CDDH/III/SR.45 (n 102), para 33 (United Kingdom). 163 ibid, para 4546.

131

3.54  Killing and Ill-Treatment of Children and opinio juris, including in relation to Article 77, API and Article 4(3) APII, support the existence of an obligation of ‘special respect and protection’.164 (iv) As a matter of treaty interpretation, the ordinary meaning of Article 77(1), API and Article 4(3), APII make it clear that the list of specific rights is not exhaustive. This is evident from the use of the inclusive phrase ‘in particular’ in both provisions. However, it remains unclear precisely how much further these obligations go and which specific rights (in addition to those expressly identified) they require be guaranteed.165 It has been suggested that, although the provisions in both API and APII ‘may appear at first sight to increase the level of protection for children [they are] by [their] very generality, likely to achieve little.’166 (v) A number of factors contribute to the uncertainty in respect of these obligations including the ad hoc development of protections and the narrow approach to simplification of API that underpins APII.167 Perhaps most significant is the unclear rationale for the special treatment of children: neither GCIV, API nor APII explicitly identify the rationale.168 Two possible rationales are as follows: (i) children are inherently extremely physically vulnerable and defenceless169 and (ii) children are inherently ‘innocent’,170 (for example because they are not capable of understanding the implications of their actions and therefore may lack certain capacities).171 An additional important consideration recognised by the UNGA, which may also be implicit in IHL, is that ‘it is the child who guards our future … and this future must be protected’.172 The second rationale, (ii), if it is accepted, 164 Emphasis added. For an earlier example of the proposed use of this formulation see the preamble to the 1939 draft Convention (n 117), referring to ‘the desire to ensure the respect and the protection of children living in States engaged in armed conflicts’: Annex I hereto. 165 See eg Hamilton and El-Haj (n 4), 22: Art 77(1) API ‘may mean no more than that children should be treated differently in the ways [already] specified in humanitarian law: children should not be imprisoned or detained or recruited under the age of 15 years, and should be the first to receive relief.’ 166 Hamilton and El-Haj (n 4), 25. See also at 28 suggesting that APII ‘afford[s] little more protection than that available under the Fourth Geneva Convention. The only real development is the generalisation of protection seen in Article 4(3)(a) and the addition of Article 4(3)(e)’. 167 APII reflects an effort to condense the core provisions of API. In some instances, precision appears to have been sacrificed in favour of concision. Further, the travaux to Art 4(3), APII records that a decision was taken not to include, among the specific obligations enumerated, those children’s rights already recognised under general international law. For example, it was thought unnecessary to expressly prohibit any penal prosecution of a child who was not old enough at the time the offence was committed to understand the implications of his acts: see Committee III Report of Fourth Session, CDDH/407/Rev.1 (n 104), para 65. It was felt that the application of such rights should be left to national legislation. 168 Plattner (n 4), 142. 169 O.R. XV, 64, CDDH/III/SR.45 (n 102), para 6 (ICRC). 170 It is common to find references, including in modern UN documents, to ‘innocent children’. But it is often not clear whether the term ‘innocent’ refers to the fact that children are harmless, because they are not ­participating in hostilities, or a moral judgement. For an earlier example see the preamble to the 1946 draft Convention (n 157): ‘protection to children, innocent victims of the collateral damage from external and internal conflicts’. 171 See eg O.R. XV, 66, CDDH/III/SR.45 (n 102), para 13 (Nigeria). 172 UNGA, Verbatim Record (20 November 1959), UN Doc. A/841, para 36. See also Art 1 of the 1946 draft Convention (n 157): ‘The High Contracting Parties recognize that the protection of minors below 14-years-old, the physical and moral health of which the very fate of mankind depends upon, is a superior duty to which civilized peoples cannot escape, in particular in situations that may result from warfare and methods of repression, applied in the context of war, and by certain Governments in the event of civil unrest, social, economic and political crises, in the area of legislation concerning minorities, disasters and public calamities, and solemnly

132

Legal Framework  3.55 may have particular relevance to the rules governing the conduct of hostilities and in particular the concept of direct participation in hostilities and the principle of distinction. However, the ICRC Commentary to Article 4(3), APII appears to favour rationale (i), although the meaning of ‘vulnerable’ in this context is not explained.173 The precise rationale underpinning Article 77, API, Article 4(3), APII (and ICRC, CIL Rule 135) remains uncertain and underdeveloped. 3.55  Fifth, following on from the fourth point and also in relation to IHL regarding the treatment of persons: some of the other specific provisions protecting children are arguably inadequate. For example: 3.55.1  Removal and evacuation – no express prior obligation of search and ­collection: It is unclear whether API, APII or ICRC, CIL Rule 135 impose an obligation to search for children and collect them by removing them from the immediate theatre of hostilities (including after military operations) to areas where they can receive the care and assistance they require, including by facilitating humanitarian organisations to assist in these tasks.174 By contrast, search, collection and rescue are established elements of the obligations owed to the ‘wounded and sick’, which include pregnant women and newborn babies but not children generally.175 In other respects, children under 15 are entitled to the same protection as the wounded and sick: see for example Articles 14, 17 and 38(5), GCIV. It is difficult to see why children should not benefit from the same protection in relation to search and collection. 3.55.2  Detention and internment – no priority: As explained above, Article 76 of API provides that the cases of all pregnant women and mothers of dependent infants who are arrested, detained or interned for ‘reasons related to the armed conflict’176 must be considered with the ‘utmost priority’. This appears to require that the relevant procedure (be it criminal or administrative) must be undertaken on an expedited basis, rather than that there should be any particular outcome in terms of liability or responsibility. According to the ICRC Commentary, the essential purpose is to ensure that such women ‘should be released as soon as possible’ and reunited with their dependent undertake to repudiate, prevent such acts and refrain from them in their mutual relations and in the respective national jurisdictions’ (unofficial translation) (emphasis added). 173 See ICRC Commentary on the AP (n 28), para 4544: ‘[c]hildren are particularly vulnerable; they require privileged treatment in comparison with the rest of the civilian population. This is why they enjoy specific legal protection’. In support of this understanding, the Commentary cites Principle 8 of the declaration on the Rights of the Child and the Declaration on the Protection of Women and Children in Emergency and Armed Conflict (n 97), as well as Arts 75, 77 and 78, API (see n 43). See also Månsson (n 4), 154 suggesting that Art 4(3) parallels the concept of special protection in Art 77, API. 174 For example, the related obligation in NIAC (APII) under Article 4(3)(e), APII – to ‘remove children temporarily from the area in which hostilities are taking place to a safer area within the country’ (emphasis added) if necessary and wherever possible with the consent of their parents or guardians – appears to have been formulated more narrowly than this obligation to facilitate the steps to search for and collect children. 175 See Common Art 3 and Art 16, GCIV; Art 10, API; Art 8, APII, and ICRC, CIL Rule 109, ICRC Study on Customary IHL, 396–399. See also ICRC Commentary on the AP (n 28), paras 446 and 4635. As to the definition of ‘wounded’ and ‘sick’ see Art 16, GCIV and Art 8(a), API. These terms are not defined in APII, and the ICRC Commentary suggests that the same meaning as in Art 8(a) API applies: ICRC Commentary on the AP (n 28), paras 4636–37. 176 ICRC Commentary on the AP (n 28), para 3164 refers to ‘all the cases which may arise: arrest for committing a breach, arrest for the purpose of interrogation, internment for present or past opinions or for any other reasons’.

133

3.56–3.57  Killing and Ill-Treatment of Children infants.177 It is implicit that the lawfulness of the arrest, detention or internment of such persons must be reviewed with the utmost priority. This obligation to accord such priority is not stated to extend to children who have been arrested, detained or interned, and no corresponding entitlement (or, indeed, any priority) is contained in Article 77, API. This is so notwithstanding the fact that: (i) in other respects, children are entitled to the same protections as such persons (see for example Articles 132 and 38(5), GCIV), and (ii) Article 77(3), API and Article 4(3)(d), APII expressly state that children who take a direct part in hostilities who ‘fall into the power of an adverse Party’ (Article  77(3), API) or ‘are captured’ (Article 4(3)(d), APII) (ie in both cases including such children who are arrested, detained or interned) shall continue to benefit from the special protection accorded to children under Article 77, API and Article 4(3), APII. 3.  Suggestions to Improve the Legal Framework 3.56  The evolving nature of armed conflict (see Chapter 1, paragraph 1.105) has given rise to new legal challenges. However, states and other relevant actors generally agree that IHL remains an appropriate legal framework for regulating the conduct of the parties to armed conflict and for providing protection for the persons affected.178 In 2011, following a two-year study and extensive consultation with states, the ICRC concluded that in most cases the rules of IHL are fit for purpose and that the best means of meeting victims’ needs is to ensure respect for the existing rules, rather than seeking to create new rules.179 3.57  However, alongside this, it has been recognised that there is a need to strengthen the protection of certain categories of persons. The history of IHL, at least from the adoption of the first Geneva Convention in 1864, has been characterised by the periodic adaptation and updating of treaty law and CIL to provide for greater protection and respond to the changing nature of armed conflict. In the specific context of special protection for children, the progressive development of the safeguards governing out-of-country evacuation is a good example of this.180 More recently and generally, since 2011, efforts have been made to enhance the protections for persons deprived of their liberty, particularly in situations of NIAC.181

177 See ICRC Commentary on the AP (n 28), para 3155: ‘This paragraph was added by the Conference, as it was concerned to ensure that pregnant women and mothers of young children should be released as soon as possible’. See also para 3165: ‘“With the utmost priority” is an unusual expression which suggests that there are several degrees of priority. No doubt this means priority in relation to cases of other arrested, detained or interned women who are not pregnant nor have dependent infants, and it is priority in relation to all cases, including men. The word “utmost” was used to emphasize that the provision is mandatory, and to express the intent that pregnant women should be released as soon as possible and that mothers should be reunited with their dependent infants without delay.’ 178 See, eg, Jelena Pejic, ‘Strengthening compliance with IHL: The ICRC-Swiss Initiative’ (2016) 98(1) International Review of the Red Cross 315, 316. 179 ICRC, ‘Strengthening Legal Protection for Victims of Armed Conflicts’, 31st International Conference of the Red Cross and Red Crescent, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts – Report (October 2011), 4–5. 180 See further Van Bueren (n 4), 820–23. 181 See the programme of work endorsed in ICRC, ‘Resolution 1 – Strenghening legal protection for victims of armed conflicts’ (1 December 2011), 31st International Conference of the Red Cross and the Red Crescent,

134

Legal Framework  3.58–3.59 3.58  We agree that the most pressing obstacle to the protection of children from killing and ill-treatment in armed conflict under IHL is the failure to implement and comply with the existing legal rules182 and the lack of effective accountability where there is such non-compliance. However, there is room for substantive improvement too. In light of the deficiencies identified at paragraphs 3.51 to 3.55 above, we make the following suggestions for the potential improvement of existing safeguards in IHL concerning children. 3.59  Two improvements of a general nature are as follows: 3.59.1  First, collection, codification and consolidation of IHL rules. Further to Chapters 1 and 2: consideration should be given to collecting all (or, at least, the key) currently recognised IHL principles concerning children in armed conflict in a single instrument. This could include the general IHL rules on the conduct of hostilities as well the general and child-specific rules on the treatment of persons. The purpose of this would be to make the legal framework easier to identify and understand. This is likely to be particularly important for non-state armed groups and victims since they are less likely to benefit from access to legal advice and representation. In addition to collecting together the relevant law, this instrument could seek, where possible, to codify (re CIL) and consolidate the current rules which apply equally in NIAC and IAC identified above. This consolidation would overcome, or at least reduce, the need to classify a conflict before the protection afforded to children under IHL can be identified (although as noted in Chapter 2, paragraph 2.80 it would still be necessary to define and establish the existence of an ‘armed conflict’). The exercise of collection, codification and consolidation would also provide an opportunity to clarify and develop the law, although it would not, of course, hinder the future development and emergence of CIL. Having the legal framework in one instrument could have a significant effect in improving accountability – one entity could be given jurisdiction to interpret and apply the provisions. See further Chapter 9 where we consider the suggestion of a single instrument with one, civil, international adjudicative body in more detail. 3.59.2  Second, encourage universal ratification of API and APII: this would assist in strengthening the protection of children in IAC and NIAC (APII) since those instruments contain more detailed provisions regarding children than GCIV and CIL. 3.59.3  Alternatively, encourage declarations by parties to armed conflict that the relevant provisions of API and APII reflect CIL. While CIL is binding in any event, declarations of this kind would assist in strengthening the protection of children. This is especially in relation to non-state armed groups (even though they are generally

Geneva, Switzerland, 28 November–1 December 2011, available at . See generally preambular para 8: ‘Mindful of the need to strengthen international humanitarian law, in particular through its reaffirmation in situations when it is not properly implemented and its clarification or development when it does not sufficiently meet the needs of the victims of armed conflict’. 182 See, eg, UN Secretary-General, 2017 Annual Report (n 11), para 12: ‘Given the number of incidents of killing and maiming of children documented in the present report, I also call for a renewed focus to ensure respect for the principles of distinction, proportionality and precaution under international humanitarian law. Specifically, when making operational decisions, armed forces need to take into account that, in situations where armed groups hold territory, a significant number of children may be in close proximity to military positions or even be used as human shields.’ See also para 236.

135

3.60  Killing and Ill-Treatment of Children regarded as being bound by IHL treaties despite the lack of clarity as to the legal basis by which they are so bound)183 and states which have not ratified API and/or APII. Two examples of such declarations, albeit in terms not specific to children, are provided by (i) the 2011 report of Somalia to the HRC, and (ii) the acknowledgement by the United States, in 2011, that Article 75 of API (which the US has not ratified) reflects CIL.184 Parties to a given conflict which have been listed in Annex I to the SecretaryGeneral’s annual report could be encouraged to incorporate such declarations in any Action Plan they may conclude, as to which see paragraphs 3.134ff below. 3.60  Third, and in relation to the conduct of hostilities: consideration could be given to developing the law so as to require the express consideration of children in the application of the principles of proportionality and precautionary measures. It may be difficult or unnecessary to take express account of the position of children in relation to all IHL principles, for example the principle of distinction. However, the application of the principles of proportionality and precautionary measures could be clarified or developed so as to expressly require particular consideration and weight to be given to children who are not taking a direct part in hostilities. For example, as one commentator has suggested, the concept of proportionality could be refined to recognise that particular means or methods of warfare (such as a particular attack or the use of a particular weapon in specific circumstances) may have especially severe consequences for children.185 More generally, the position of children could be specified as an express factor that needs to be given weight and considered in evaluating proportionality, for example in military manuals. Similarly, the requirement to take all ‘feasible’ precautions could involve express and heightened standards for children. Such express consideration of children, in the content of both of these principles, would reflect their special treatment in Article 77, API; ­Article 4(3),

183 See Ch 2, para 2.17 and further, eg, Daragh Murray, ‘How International Humanitarian Law Treaties Bind Non-State Armed Groups’ (2015) 20 Journal of Conflict and Security Law 101, suggesting that the preferable view is that the treaty parties have jurisdiction to legislate, by way of treaty, for non-state armed groups present in their territories. Although there is considerable jurisprudence concerning international organisations and CIL, there are few decisions directly concerning the question whether non-state armed groups are bound by CIL. See, eg, the decision of the Appeals Chamber of the SCSL in Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Case Nos SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E) (13 March 2004), para 47: ‘It suffices to say, for the purpose of the present case, that no one has suggested that insurgents are bound because they have been vested with personality in international law of such as a nature as to make it possible for them to be a party to the Geneva Conventions. Rather, a convincing theory is that [non-state armed groups] are bound as a matter of international customary law to observe the obligations declared by Common Article 3 which is aimed at the protection of humanity.’ 184 As to Somalia, see Report to the Human Rights Council, 11 April 2011, UN Doc. A/HRC/WG.6/11/SOM/1, para 75: ‘Somalia has not ratified APII and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of APII represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include Article 4 providing guarantees to persons taking no active part in hostilities … due to the fact that these norms are reflected in Common Article 4 of the Geneva Conventions’. Attention may also usefully be drawn to UN Secretary-General, ‘Report on the establishment of a Special Court for Sierra Leone’, UN Doc. S/2000/9/15 (4 October 2000), para 14, recognising that Article 4 APII has ‘long been considered [CIL]’. As to the United States, see ‘Fact Sheet: New Actions on Guantánamo and Detainee Policy’, 7 March 2011, available at (‘The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well’). Where the existence and/or context of CIL is unclear, such statement may, instead, amount to binding unilateral statements. 185 Hampson (n 4), para 4.4. See also para 4.1.2.

136

Legal Framework  3.61 APII and ICRC, CIL Rule 135.186 Neither of these suggestions would displace or modify the fundamental principle of distinction. However, both of them would require consideration of a number of questions including potentially adverse ramifications. For example, would giving such express consideration to children (i) undermine the protection of civilians generally or (ii) potentially expose children to other risks, for example the risk of them being used as human shields? Practical issues will also require consideration (for example potential difficulties in distinguishing older children from adults).187 3.61  Fourth, and in relation to the treatment of persons: the law should be clarified or developed by standardising and particularising the special treatment of children under Article 77, API; Article 4(3), APII and ICRC, CIL Rule 135. We make three suggestions in this regard. 3.61.1  First, the expression and content of the protection provided under these provisions could be standardised so that, for example, it is clearly understood that they all entail a duty of ‘respect’ and ‘protection’ according to the established meaning of those terms in IHL (and there is no room for ambiguity as to whether, for example, Article 4(3), APII connotes lower protection because it only refers to ‘care and aid’). 3.61.2  Second, and in light of our observation at paragraph 3.54.2 above, it could be clarified that the specific rights presently identified in Article 77, API and Article 4(3), APII are not exhaustive. Other specific rights could then be developed by reference to the general requirement of special treatment. See paragraph 3.60 above for one example of how the general requirement of special treatment could be used to develop protection in relation to the conduct of hostitilies and see paragraph 3.62 below for examples of how the general requirement could be used to develop protection in relation to search and collection and detention and internment. 3.61.3  Third, the rationale for the principle of the special treatment of children could be articulated to assist in the further development of how children should be protected. The ICRC Commentary to Article 4(3), APII regarding the inherent vulnerability of children could be developed by reference to, for example, (i) the acceptance that the child ‘by reason of his physical and mental immaturity, needs special safeguards and care’,188 and (ii) the rationale articulated by the CRC Committee for special protection of children under IHRL: ‘The distinct nature of children, their initial dependent and developmental state, their unique human potential as well as their vulnerability,

186 In relation to the principle of precaution see Art 19 of the Lieber Code (n 95): ‘Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the non-combatants, and ­especially … children, may be removed before the bombardment commences’ (emphasis added). 187 Further considerations are the principle of humanity and the dictates of public conscience: see Art 158, GCIV; preamble, API; preamble, APII. For the suggestion that such principles should play a role in the interpretation of ambiguous rules of IHL see, eg, Theodor Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conscience’ (2000) 94 AJIL 78, 87–88. See also Republic of Colombia, Constitutional Court, Ruling No C-225/95, Re: File No L.A.T-040; unofficial translation in Marco Sassòli and Antoine Bouvier and Anne Quentin, How Does Law Protect in War?, vol II (Geneva, ICRC, 2006) 2273 finding that APII ‘must not be interpreted in isolation but must be viewed at all times within the context of the entire body of humanitarian principles’. 188 Preamble, CRC (emphasis added). See also, to the same effect, preamble, Geneva Declaration of the Rights of the Child, League of Nations, adopted on 26 September 1924, available at .

137

3.62  Killing and Ill-Treatment of Children all  demand the need for more, rather than less, legal and other protection from all forms of violence’.189 3.61.4  Consideration should also be given to whether ‘children’ should be defined so as to include all persons aged 18 and under. 3.62  Fifth, following on from the fourth point and also in relation to the treatment of persons: the special treatment of children under Article 77, API; Article 4(3), APII and ICRC, CIL Rule 135 could be used to develop specific legal protections. We make two suggestions in light of the examples we considered above, paragraph 3.55: 3.62.1  Search and collection before removal and evacuation: Article 77, API and Article 4(3), APII could be recognised as imposing an obligation to search for children and collect them by removing them from the immediate theatre of hostilities (including after military operations) to areas where they can receive the care and assistance they require, whenever circumstances permit and it is in the best interests of the child to do so, including by facilitating humanitarian organisations to assist in these tasks. This would supplement (i) the obligation in IAC under Article 17, GCIV to seek to ‘endeavour to conclude’ local agreements for the removal of children from besieged or encircled areas, and (ii) the obligation in NIAC (APII) under Article 4(3)(e), APII, if necessary and wherever possible with the consent of their parents or guardians, to ‘remove children temporarily from the area in which hostilities are taking place to a safer area within the country’. It would also bring the special treatment of children in line with the existing obligations regarding the special treatment of the wounded and sick in this respect, as well as move closer to the aim of the 1946 draft Convention.190 However, removing children from the immediate theatre of hostilities raises questions about whether, and the circumstances in which, they should be separated from their families and caregivers. It also creates the risk that separation may facilitate the recruitment or use of children in armed conflict. In order to meet these concerns, and in order to achieve consistency, any new or enhanced obligation could be subject to the same safeguards as Article 4(3)(e), APII, namely (i) necessity; (ii) consent of the parent/guardian wherever possible, and (iii) ensuring that children who are rescued and removed are accompanied by persons responsible for their safety and wellbeing. The ICRC could be invited to consider whether the existence of such an obligation is part of ICRC, CIL Rule 135. 3.62.2  Priority for consideration re detained or interned children: Article 77, API could be recognised as requiring that arrested, detained or interned children should have their cases (including the lawfulness of their detention) determined with the utmost priority in IAC. As noted above, we do not consider that this relates to the separate question of their liability or responsibility. This would bring the special treatment of children in line with the special treatment of pregnant women and mothers of dependent infants in this respect, and the recent general recognition that children should be considered to be one of a number of particularly vulnerable categories of 189 CRC Committee, ‘General Comment No 8: the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment’, UN Doc CRC/C/GC/8 (2 March 2007), para 21. 190 Annex 2, para 17, 1946 draft Convention (n 157): minors under 14 ‘will be given priority for protection in case of air strikes and in case of evacuation’.

138

Legal Framework  3.63–3.64 detainees.191 It would also be consistent with the fact that the special protection due to children under Article 77, API is expressly stated to continue to apply to children (or at least children who take a direct part in hostilities) who ‘fall into the power of an adverse Party’ (ie, including such children who are arrested, detained or interned). The ICRC could consider whether this is part of ICRC, CIL Rule 135 or whether it should be added to the elements of protection for future discussions on strengthening legal protection for persons deprived of their liberty.192 In this connection, we note that the detention of children, particularly where they are unaccompanied (for example in refugee camps), often leaves them vulnerable to recruitment or use by parties to a conflict: see further Chapter 4. B.  International Criminal Law 1.  The Legal Framework 3.63  The preamble to the Rome Statute recalls that ‘during this [last] century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity’. In this section we address some of the core international crimes which are of most relevance to children and the two issues of killing and ill-treatment. We also consider briefly the issues of unlawful detention and forcible deportation. Thus, we consider certain war crimes, crimes against humanity, and genocide. We outline the material elements and the mental elements of each crime and, where appropriate, consider its specific relevance to children. War Crimes 3.64  Children are protected against war crimes as a consequence of their status as persons protected under GCIV and the Additional Protocols. 191 The work of the ICRC on strengthening legal protection for persons deprived of their liberty in armed conflict has recorded broad consensus among states that children should be considered to be particularly vulnerable detainees. See, eg, ICRC, ‘Thematic consultation of government experts on conditions of detention and particularly vulnerable detainees’, Report, January 2015, 45, available at ; ICRC, Background Document, ‘Strengthening International Humanitarian Law Protecting Persons Deprived of Their Liberty’, April 2015, (‘ICRC, Background Document’), 11, available at (‘Children themselves also require specific protection and care. Prison conditions and facilities are often not adapted to their needs and vulnerabilities’); ICRC, Annex II: Elements of Protection, Chair’s Conclusions, Meeting of all States on Strengthening Humanitarian Law Protecting Persons Deprived of their Liberty, 29 April 2015, Geneva (‘ICRC, Chair’s Conclusions’), para 7, available at (‘In addition to the challenges faced by detainee populations as a whole, certain categories of detainees suffer additional hardship when authorities fail to address their specific needs. Women, children, the elderly and persons with a disability are among the most vulnerable in such cases’). 192 See ICRC, Chair’s Conclusions, Annex II (n 190), para 21 identifying the following elements of protection for discussion: (a) notification of detention, family contact and access to counsel, (b) accommodation, (c)  education, (d) nutrition and exercise, (e) juvenile female detainees, (f) children left unaccompanied, (g)  release and alternatives to detention. Specific consideration does not appear to have been given to the question of priority for the consideration of the cases of arrested/detained/interned children. See also ICRC, Background Document (n 191).

139

3.65–3.67  Killing and Ill-Treatment of Children 3.65  In the description below, we focus on war crimes as defined in the Rome ­Statute. War crimes give rise to individual criminal responsibility of the perpetrator. A war crime may be committed by a member of the regular or irregular armed forces of one of the parties to the conflict, or by civilians.193 A key condition is that the conduct must be closely related194 or associated with195 the conflict. 3.66  Material elements: The material element of the definition of ‘war crimes’ differs depending on the classification of the conflict. 3.67  IAC: There are two categories of war crimes. The distinction is drawn based on the severity of the offence. 3.67.1  Grave breaches: grave breaches of GCIV and API give rise to individual criminal responsibility.196 The grave breaches of GCIV, which reflect CIL,197 include: (i) wilful killing (ie murder), (ii) torture or inhuman treatment,198 (iii) wilfully causing great suffering or serious injury to body or health, and (iv) unlawful deportation or unlawful confinement of protected persons.199 API extended the concept of grave breaches of GCIV in two ways. First, additional violations, including wilful direct attacks and knowingly indiscriminate attacks against civilians, are also grave breaches. Second, for States Parties to API, the obligations under GCIV with respect to grave breaches apply to all civilians in the power of an adverse party to the conflict, as well as to the wounded and sick. 3.67.2  Other serious violations: Article 8(2)(b), Rome Statute vests the ICC with jurisdiction over ‘[o]ther serious violations of the laws and customs applicable in international armed conflict’ and specifies, amongst others, the following acts: (i)  intentionally directing attacks against civilians; (ii) intentionally launching an attack in the knowledge that such attack will cause incidental loss or injury to civilians which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;200 (iii) attacking or bombarding undefended populated areas which are not military objectives; (iv) subjecting persons who are in the power of an 193 See eg Art 8(2), ICC Elements of Crimes (n 77). 194 See eg Tadić (n 143), para 70; Prosecutor v Kunarac et al (Appeals Chamber Judgment), IT-96-23-A and IT-96-23/1-A (12 June 2002), para 55. See also Prosecutor v Akayesu (Appeals Chamber Judgment) ICTR-96-4 (1 June 2001), para 444 referring to a nexus requirement. 195 Art 8(2), ICC Elements of Crimes (n 77). 196 Art 85(5), API provides that grave breaches of the Geneva Conventions and of API shall be regarded as war crimes. As to grave breaches of GCIV, see Art 8(2)(a), Rome Statute. As to grave breaches of API, the vast majority of these are instead included in Art 8(2)(b) Rome Statute as ‘[o]ther serious violations of the laws and customs applicable in international armed conflict’. 197 ICRC, CIL Rule 156, ICRC Study on Customary IHL, 568–603. 198 Art 8(2)(a)(ii)-1 and 8(2)(a)(ii)-2 of the ICC Elements of Crimes (n 77) distinguish between the war crime of torture and the war crime of inhuman treatment on the basis that only the former involves the infliction of plain or suffering ‘for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any other reason based on discrimination of any kind.’ 199 Art 147, GCIV. 200 The ICC does not have jurisdiction over the use of inherently indiscriminate weapons per se. Art 8(2)(b)(xx) of the Rome Statute provides that the ICC may be vested with jurisdiction over the use of ‘weapons, projectiles and material and methods of warfare … which are inherently indiscriminate in violation of the international law of armed conflict’, applicable in IAC but only if they are ‘the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in Arts 121 and 123.

140

Legal Framework  3.68 adverse party to physical mutilation or to medical or scientific experimentation which are neither justified by medical treatment nor in the person’s best interests, and which cause death or seriously endanger health; (v) killing or wounding individuals belonging to the hostile nation; (vi) committing outrages upon personal dignity, in particular humiliating and degrading treatment; (vii) the use of human shields; and (viii) intentionally using starvation of civilians as a method of warfare.201 3.67.3  2017 amendments: In December 2017, the Assembly of States Parties adopted three amendments to Article 8(2)(b) of the Rome Statute, introducing as new war crimes in IAC (as well as in NIAC) the use of certain weapons, namely: (i) ­‘[e] mploying weapons, which use microbial or other biological agents, or toxins, whatever their origin or method of production’; (ii) ‘[e]mploying weapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays’ and (iii) ‘[e]mploying laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with eyesight devices’.202 These amendments and new crimes do not apply to nationals of, or conduct on the territory of, State Parties which do not ratify or accept the amendment.203 3.68  NIAC: Again, there are two categories of war crimes. 3.68.1  Common Article 3:204 Article 8(2)(c), Rome Statute vests the ICC with jurisdiction over serious violations of Common Article 3, which are defined as including, amongst others, (i) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; and (ii) committing outrages upon personal dignity, in particular humiliating and degrading treatment.205

201 According to the commentary in the ICRC Study on Customary IHL, additional or more specific war crimes exist under CIL, many of which overlap to a significant extent with the offences enumerated in Art 8(2)(b) of the Rome Statute: see ICRC, CIL Rule 156 which refers to, amongst others, (i) slavery and deportation to slave labour, (ii) collective punishments, (iii) despoliation of the wounded, sick, shipwrecked or dead, (iv) unjustifiable delay in the repatriation of civilians, and (v) the practice of apartheid or other inhuman or degrading practices involving outrages on personal dignity based on religious discrimination. Notably, the war crimes recognised in this Rule do not include a violation of the obligation to take all ‘feasible’ precautions, including with respect to issuing warnings where practicable. ICRC Study on Customary IHL, 568–603. 202 Resolution ICC-ASP/16/Res.4 (14 December 2017), available at https://asp.icc-cpi.int/iccdocs/asp_docs/ Resolutions/ASP16/ICC-ASP-16-Res4-ENG.pdf. The new crimes in IAC were inserted as Arts 8(2)(b)(xxvii), 8(2)(b)(xxviii) and 8(2)(b)(xxix) of the Rome Statute respectively. Note that an earlier proposal by Belgium, which also proposed the three amendments adopted, for the criminalisation of ‘using anti-personnel mines’ was dropped at the Assembly of States Parties: see Report of the Working Group on Amendment (15 November 2017), ICC-ASP/16/22, available at ; Addendum, Report of the Working Group on Amendments (13 December 2017), ICC-ASP/16/22/Add.1, available at . 203 Art 121(5), Rome Statute. See also ibid, preambular para 2. 204 International criminal tribunals have held that CIL imposes individual criminal responsibility for serious violations of Common Art 3 and APII: see Tadić (n 143), para 613; Prosecutor v Akayesu (Trial Chamber Judgment), ICTR-96-4 (2 September 1998), para 615; Prosecutor v Norman et al (Appeals Chamber, Decision on Preliminary Motion on Lack of Jurisdiction Ratione Materiae: Nature of the Armed Conflict), SCSL-04-14AR72(E) (31 May 2004), para 24. A serious violation has been defined as a breach of a rule protecting important values and the breach must involve grave consequences for the victim: see Tadić (n 143), para 610(iii); Akayesu (n 194), para 616. 205 Art 8(2)(c)(i) and (ii), Rome Statute (n 77).

141

3.69–3.73  Killing and Ill-Treatment of Children 3.68.2  Other violations: Article 8(2)(e), Rome Statute vests the ICC with jurisdiction over ‘[o]ther serious violations of the law and customs applicable in armed conflicts not of an international character’. Such acts are defined more narrowly than in IAC and include, amongst others, (i) intentionally directing attacks against civilians not taking a direct part in hostilities; (ii) ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand, and (iii) subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experimentation which are neither justified by medical treatment nor in the person’s best interests, and which cause death or seriously endanger health. 3.68.3  2017 amendments: As noted above, at paragraph 3.67.3, in 2017 three new war crimes in NIAC regarding the employment of certain weapons were added to Article 8 of the Rome Statute.206 3.69  Mental elements: To be responsible for a war crime, the accused must intend to perform the prohibited act(s) and must do so with the requisite knowledge and intention. This includes an awareness of the factual circumstances that established the existence of an armed conflict.207 3.70  IAC: the perpetrator must have been aware of the factual circumstances that established the protected status of the victim.208 3.71  NIAC: the perpetrator must have been aware of the factual circumstances that established that the persons against whom the relevant act was perpetrated were ­civilians.209 3.72  It follows from the above that, 3.72.1  IAC: There is no specific reference to the position of children in the definition of grave breaches of GCIV or API or in the other serious violations set out in Article 8(2)(b), Rome Statute (for recruitment and use of children see Chapter 4). 3.72.2  NIAC: Again, there is no specific reference to the position of children in Common Article 3 or in the other violations set out in Article 8(2)(e), Rome Statute (for recruitment and use of children see Chapter 4). Crimes Against Humanity 3.73  Children are protected against crimes against humanity by virtue of their status as members of the civilian population. 206 Pursuant to Resolution ICC-ASP/16/Res.4 (n 208), the new crimes were inserted as Arts 8(2)(e)(xvi), 8(2)(e)(xvii) and 8(2)(e)(xviii) of the Rome Statute respectively. 207 Art 8(2), Elements of Crimes (n 77). See also Prosecutor v Naletilić and Martinović (Appeals Chamber Judgment), IT-98-34-A (3 May 2006), para 119; Prosecutor v Lubanga (Trial Chamber Judgment), ICC-01/0401/06-2842 (14 March 2012), pursuant to Art 74 of the Statute, paras 1016 and 1018. See generally Art 30, Rome Statute (n 77). Note that the default element of ‘intention’ does not include recklessness: see Prosecutor v Bemba, Case no. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, 15 June 2009, paras 362–369; William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford, OUP, 2016), 269–330 and 2016 ICRC Commentary on GCI, para 2939. 208 Art 8(2)(a), Elements of Crimes (n 77). 209 Art 8(2)(c), Elements of Crimes (n 77).

142

Legal Framework  3.74–3.77 3.74  Material elements: A crime against humanity is defined in Article 7(1), Rome Statute as (i) one of a number of specified crimes which is (ii) committed as part of a widespread or systematic attack against (iii) any civilian population (as that term is understood in IHL210).211 A crime against humanity may be committed during peacetime or during armed conflict, IAC or NIAC.212 It may be committed by any person, including civilians. We address each of the three elements of the definition of crimes against humanity below. 3.75  A crime: Article 7(1), Rome Statute defines ‘crimes against humanity’ as including: murder, extermination,213 torture,214 rape and sexual violence (as to which see ­Chapter 5), and other (unspecified) inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health. Also included are deportation or forcible transfer of population,215 and imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law. 3.76  Widespread or systematic attack: an attack against the civilian population may involve the use of armed force, mistreatment or any act of violence.216 It must be widespread or systematic. Whereas widespread refers to the large-scale nature of the attack and the number of victims, systematic refers to the organised nature of the acts of violence and the improbability of their random occurrence.217 There is, however, no requirement that the individual perpetrator’s conduct must be widespread or ­systematic.218 3.77  Against any civilian population: whereas war crimes may be committed against an individual civilian or a limited number of civilians, crimes against humanity must be directed more generally against the civilian population. It is not, however, necessary

210 See Art 50, API. 211 See eg Prosecutor v Blaškić (Appeals Chamber Judgment), IT-95-14-A, (29 July 2004), paras 110–16; Prosecutor v Martić (Appeals Chamber Judgment), IT-95-11-A (8 October 2008), paras 291–302. 212 See eg Art 3, ICTR Statute; Art 2, SCSL Statute; Art 7(1), Rome Statute (n 77). 213 Extermination is defined in Art 7(2)(b) of the Rome Statute as including the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population. 214 For these purposes, ‘torture’ is defined as the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody for under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions: Art 7(2)(e), Rome Statute. 215 Deportation of forcible transfer of population is defined in Art 7(2)(d) of the Rome Statute as forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law. 216 Art 7(2)(a) of the Rome Statute (n 77) defines attack to mean a course of conduct involving the multiple commission of acts referred to in para 1, which refers to murder, extermination, enslavement, etc. See also Elements of Crimes (n 77) for Art 7, introduction: ‘[t]he acts need not constitute a military attack.’ It is debated whether, under CIL, crimes against humanity must be committed in the pursuit of some sort of policy. Although the ICTY Appeals Chamber has rejected this (Kunarac et al (n 194), para 98) such a requirement is reflected in the definition of attack directed against any civilian population in Art 7(2)(a), Rome Statute which defines as a course of conduct pursuant to or in furtherance of a State or organizational policy to commit such attack. 217 Kunarac et al (n 194), para 94. 218 Kunarac et al (n 194), para 96. See also Prosecutor v Nahimana et al (Appeals Chamber Judgment) ICTR-99-52-A (28 November 2007), para 924.

143

3.78–3.82  Killing and Ill-Treatment of Children to show that the entire population of the territory in which the attack takes place were targeted.219 Nor is it necessary to show that the entire population were civilians.220 3.78  Mental elements: The perpetrator must: (i) intend to commit the specific act; (ii) have knowledge of the attack on the widespread or systematic attack against the civilian population; and (iii) have the knowledge or intention that the specific conduct was part of or in furtherance of that attack.221 Beyond this, the motives of the perpetrator are irrelevant.222 3.79  There is no specific reference to the position of children in the definition of crimes against humanity. Genocide 3.80  Where children belong (or are believed to belong) to a distinct national, ethnic, racial or religious group, they are also protected against the crime of genocide in peacetime and during armed conflict, IAC and NIAC.223 Genocide includes (i) killing, and (ii) causing serious bodily or mental harm to members of the group with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such.224 3.81  Material Elements: ‘Quintessential examples of serious bodily … harm include torture and non-fatal physical violence that causes disfigurement or serious injury to the external or internal organs’.225 This has been held to include inhuman or degrading treatment.226 The phrase ‘serious mental harm’ has been understood to mean more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat.227 3.82  Genocide also includes ‘forcibly transferring children of the group to another group’, as to which see Chapter 6.

219 Kunarac et al (n 194), para 90. 220 See eg Blaškić (n 211), paras 113 and 115; Kordić and Čerkez (Appeals Chamber Judgment), IT-95-14/2-A (17 December 2004), paras 97 and 50; Galić (Appeals Chamber Judgment) (n 36), para 144. 221 Art 7, Elements of Crimes (n 77). See also Kunarac et al (n 194), para 102. 222 Kunarac (n 194), para 103; Blaškić (n 211), para 124. 223 Art I, Convention on the Prevention and Punishment of the Crime of Genocide, concluded on 9 December 1948, entered into force on 12 January 1951, 78 UNTS 277 (Genocide Convention). See also Akayesu (n 194), para 521: ‘the victim is chosen not because of his individual identity, but rather on account of his membership of a national, ethnical, racial or religious group. The victim of the act is therefore a member of a group, chosen as such, which, hence, means that the victim of the crime of genocide is the group itself and not only the individual’. See too Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, [2007] ICJ Rep 43, 121, para 187. 224 Art II, Genocide Convention; Art 4(2), ICTY Statute; Art 2(2), ICTR Statute, Art 6, Rome Statute. The Rome Statute introduces the additional material element, which does not reflect CIL that the conduct took place in the context of a manifest pattern of similar conduct directed against the relevant group or was conduct that could itself effect such destruction: see Art 6(a)–(e), para 4, Elements of Crimes (n 77) and Prosecutor v Krstić (Appeals Chamber Judgment), IT-98-33-A (19 April 2004), para 224. 225 Prosecutor v Seromba (Appeals Chamber Judgment), ICTR-2001-66-A (12 March 2008), para 46. 226 Art 6(b), para 1, footnote 2, Elements of Crimes (n 77) stating that the provision may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment. See also Prosecutor v Karadžić and Mladić (Trial Chamber, Review of the Indictments pursuant to Rule 61 of the Rules of Procedure and Evidence), IT-95-5-R61 and IT-95-18-R61 (11 July 1996), para 93. 227 ibid.

144

Legal Framework  3.83–3.87 3.83  Mental elements: the perpetrator must (i) intend to commit the relevant act,228 and (ii) commit that act with the specific intent to destroy, in whole or in part, the relevant group as such.229 It is this specific intent that distinguishes the crime of genocide from mass murder. The meaning of intent to destroy the group ‘as such’, and the extent to which this requires a motive based on the group’s national/ethnic/racial/religious status, is debated.230 The ICTY and the ICTR have rejected the existence of a separate motive requirement.231 3.84  With the exception of forcible transfer, as to which see Chapter 6, there is no specific reference to the position of children in the definition of genocide. 2.  Problems and Deficiencies in the Legal Framework 3.85  Generally speaking, and like much of IHL, we consider that the existing framework of ICL does not require revision in order to further protect children from killing and ill-treatment. Although – as we have noted above at paragraphs 3.72, 3.79 and 3.84 – the position of children is not singled out we consider that the existing general protections provide adequate protection for children too. The main concerns we identify regarding ICL relate to the practical enforcement and implementation of ICL (as to which see ­paragraphs 3.144 and 3.145 below). 3.86  We note, however, that consideration could usefully be given to whether the definition of ‘war crimes’ in the Rome Statute should include specific violations of the ‘special respect’ provision (Article 77(1), API) and the ‘care and aid’ provision ­(Article  4(3), APII). This consideration could follow from the suggestions above, viz, that the scope of these provisions requires clarification and consideration should be given to whether they can be interpreted as including additional protection for children: see above, paragraphs 3.61–3.62. 3.  Suggestions to Improve the Legal Framework 3.87  In light of the above, we do not suggest that improvement in the legal framework governing the protection of children generally is required other than for consideration to be given to whether the law should be developed by the potential expansion of the definition of ‘war crimes’. 228 See, eg, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (n 223), para 44. See also at para 580: ‘The dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent.’ 229 ibid, para 187. 230 The majority of states rejected the inclusion of an explicit motive requirement due to concern that this would unduly limit the scope of the Convention: see UNGA Sixth Committee (3rd Session), UN Doc A/C.6/ SR.76 (16 October 1948); UNGA Sixth Committee (3rd Session), UN Doc A/C.6/SR.77 (18 October 1948). However, a UK proposal to delete all references to motive was rejected by 28-9-6: see UN Doc A/C.6/SR.76, 128. For the UK proposal see UNGA Sixth Committee (3rd Session), ‘United Kingdom: Amendments to articles II and III’, UN Doc A/C.6/222 (7 October 1948). 231 See eg Prosecutor v Jelisić (Appeals Chamber Judgment), IT-95-10-A (5 July 2001), para 71; Prosecutor v Kayishema (Appeals Chamber Judgment (Reasons)), ICTR-95-1-A (1 June 2001), para 161.

145

3.88–3.90  Killing and Ill-Treatment of Children C.  International Human Rights Law 1.  The Legal Framework 3.88  IHRL provisions regarding the general status of children have been set out in ­Chapter  2, paragraphs 2.30 to 2.57. In this Chapter, we address the specific IHRL protections regarding (i) killing, and (ii) torture and ill treatment, given the particular significance of these rules in the context of armed conflict. These protections apply to all persons, including children. Like much of IHL and ICL, we consider that the general IHRL provisions regarding killing and ill-treatment are adequate to protect children too but further consideration needs to be given to the scope of protection offered by the UN Convention on the Rights of the Child (CRC) in armed conflict. Right to Life232 3.89  The ‘right to life’ has been described by IHRL bodies as ‘the supreme right’,233 ‘one of the most important rights’,234 and ‘a fundamental human right’.235 However, there is no absolute ‘right to life’. 3.90  International and regional human rights treaties all provide for a ‘right to life’ in the form of a prohibition on arbitrary killing: see Article 6(1), International Covenant on Civil and Political Rights (ICCPR);236 Article 2, European Convention on Human Rights (ECHR);237 Article 4(1), American Convention on Human Rights (ACHR);238 Article 4, African Charter on Human and Peoples’ Rights (ACHPR)239 and Article 5(2),

232 As noted above, para 3.17, the death penalty is outside the scope of this book. However we note that IHRL prohibits the imposition (in addition to the execution) of the death penalty for offences committed by children under 18 under any circumstances. See Art 37(a), CRC; Art 6(5), ICCPR; Art 4(5), ACHR; Art 5(3), ACRWC; Art 7(1), Arab Charter. 233 HRC, General Comment No. 6: Art 6 (Right to Life) (30 April 1982), published in UN, ‘Compilation of General Comments and General Recommendations by Human Rights Treaty Bodies’, UN Doc HRI/GEN/1/ Rev.9 (Vol. I) (27 May 2008), 176. 234 Stewart v United Kingdom (1985) 7 EHRR 453. See also eg Abdulkhanov and Others v Russia, Judgment, App no 22782/06 (ECHR, 3 October 2013), para 51. 235 Case of the Ituango Massacres v Colombia (Preliminary objections, merits, reparations and costs), InterAmerican Court of Human Rights Series C no 148 (1 July 2006), para 128. 236 Art 6(1), ICCPR: ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’. The right to life is non-derogable: Art 4. See also HRC, General Comment No. 6 (n 233), para 1: the right to life ‘is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation’. 237 Art 2, ECHR: ‘1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection’. Derogation is addressed in Art 15. 238 Art 4(1), ACHR: ‘Every person has the right to have his life respected. This right shall be protected by law … No one shall be arbitrarily deprived of his life.’ No derogation is permitted even in time of war: Art 27. 239 Art 4, ACHPR: ‘Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.’ No provision is made for derogation.

146

Legal Framework  3.91–3.94 Arab Charter.240 All but one of these instruments expressly provides that the right to life shall be ‘protected by law’,241 and that this right is non-derogable.242 The right to life is also protected under various soft law instruments including Article 3 of the Universal Declaration on Human Rights (UDHR).243 These protections apply to all persons, including children. 3.91  In addition, various international and regional human rights treaties recognise that the child has an inherent right to life: Article 6, CRC244; Article 5(1), African Charter on the Rights and Welfare of the Child (ACRWC)245 and Article 3, Cairo Declaration.246 3.92  The ‘right to life’ applies in relation to all potentially lethal force, rather than being limited to situations where there is an intent to kill or where killing actually occurs.247 IHRL imposes upon the state both negative obligations (to refrain from the arbitrary deprivation of life),248 as well as positive obligations (to prevent and punish arbitrary deprivation of life; the investigative obligation is considered in accountability below, paragraph 3.146).249 3.93  IHRL imposes strict conditions on the use of lethal force by state authorities. In summary, the use of lethal force must be (i) in accordance with law, (ii) necessary to meet a legitimate aim, and (iii) proportionate to the aims sought to be achieved. 3.94  As to the existence of a legitimate aim, the majority of the relevant IHRL treaties are formulated generally so as to permit non-arbitrary use of potentially lethal force, leaving the relevant judicial entity to clarify the scope of the prohibition. ­Article  2(2), ECHR is unique in identifying a closed list of specific legitimate aims for the deprivation of life. Of most relevance to this book is the recognition that lethal force may be used ‘in defence of any person from unlawful violence’ or ‘in action lawfully taken for the purpose of quelling a riot or insurrection’ (which could include NIAC).

240 Art 5, Arab Charter: ‘(1) Every human being has the inherent right to life. (2) This right shall be protected by law. No one shall be arbitrarily deprived of his life.’ 241 The exception is Art 4, ACHPR. 242 The exception is Art 15, ECHR which permits derogation for ‘lawful acts of war’. 243 Art 3, UDHR provides ‘Everyone has the right to life …’. 244 Art 6, CRC: ‘(1) States Parties recognize that every child has the inherent right to life. (2) States Parties shall ensure to the maximum extent possible the survival and development of the children.’ As noted in Ch 2, para 2.36 we consider the CRC in the IHRL sections of this book even though it contains IHL (in Article 38). This is since many of its provisions are in the nature of IHRL. 245 Art 5(1), ACRWC: ‘Every child has an inherent right to life. This right shall be protected by law.’ 246 Art 3, Cairo Declaration on Human Rights in Islam, adopted at the 19th Session of the Islamic Conference of Foreign Ministers, Res. 49/19-P, Cairo, 5 August 1990, annexed to letter dated 19 September 1990 from the Permanent Representative of Egypt to the UN addressed to the Secretary-General, UN Doc A/45/421-S/21797 (20 September 1990): ‘In the event of the use of force in case of armed conflict, it is not permissible to kill nonbelligerents such as … children’. 247 See eg Andreou v Turkey, Judgment, App no 45653/99 (ECHR, 27 October 2009), para 46: Article 2 ‘covers not only intentionally killing but also situations where it is permitted to ‘use force’ which may result, as an unintended outcome, in the deprivation of life’. See also Anarbai Umateliev and Mrs Anarkan Tashtanbekova v Kyrgyzstani (Views) HRC Communication no 1275/04, UN Doc CCPR/C/94/D/1275/2004 (30 October 2008), para 9.5; and Kazeem Aminu v Nigeria, Communication no 205/97 (AComHPR, 11 May 2000), para 18. 248 See eg HRC, General Comment No. 6 (n 233), para 3. 249 See eg ibid, para 5: ‘… the Committee has noted that the right to life has been too often narrowly interpreted. The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures.’

147

3.95–3.96  Killing and Ill-Treatment of Children The drafters of the ECHR specifically contemplated the use of lethal force in armed conflict, and provided for the possibility of derogation ‘in respect of deaths resulting from lawful acts of war’ in A ­ rticle 15.250 3.95  It is necessary to distinguish between the right to life in the differing contexts of (i) law-enforcement operations and (ii) the conduct of hostilities; the focus of this ­Chapter is on the latter. We also consider the procedural/investigative elements of the right to life in the context of the accountability mechanisms, in Chapter 2, paragraph 2.141 and below, paragraph 3.146. 3.96 In law-enforcement operations, IHRL permits the use of potentially lethal force only as a last resort where ‘absolutely necessary’, ie where a person (irrespective of their status) represents an imminent threat, and to achieve a legitimate aim.251 By contrast, it is generally accepted that where the deprivation of life takes place during the conduct of hostilities in an armed conflict, and is authorised and consistent with the principles of IHL, then it will not be considered ‘arbitrary’ under IHRL. This includes the use of lethal force against combatants or fighters, as well as incidental deaths resulting from proportionate attacks directed against military targets. See, for example, the interpretation and application of:252 3.96.1  Article 6, ICCPR;253 3.96.2  Article 2, ECHR;254

250 Art 15(1), ECHR enables the High Contracting Parties to take measures derogating from certain of their obligations under the Convention ‘in time of war or other public emergency threatening the life of the nation’, subject to the specified conditions. Art 15(2), ECHR expressly permits derogation from Art 2, ECHR ‘in respect of deaths resulting from lawful acts of war’. 251 This strict framework for the use of force in law-enforcement operations is reflected in the non-binding Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. 252 We note that Art 3(a), Cairo Declaration (n 246) explicitly provides that ‘[i]n the event of the use of force and in case of armed conflict, it is not permissible to kill non-belligerents such as … children’, thereby implying that lethal force may be used against belligerents. We have not found English language examples regarding the interpretation and application of this provision. 253 See, eg: (i) Legality of the Threat or Use of Nuclear Weapons (n 38), 240, para 25; (ii) UNGA, ‘Report of the Secretary-General on Respect for Human Rights in Armed Conflicts’ (1970), UN Doc A/8052, 104: ‘To the extent that in present international law ‘lawful acts of war’ are recognised, such lawful acts are deemed not to be prohibited by Art 6 … if they do not violate internationally recognised laws and customs of war’; (iii) HRC, Draft General Comment No. 36, UN Doc. CCPR/C/GC/R.36/Rev.2 (2 September 2015), para 63: ‘Uses of lethal force authorized and regulated by and complying with international humanitarian law are, in principle, not arbitrary … practices inconsistent with international humanitarian law … violate article 6 of the Covenant’; and (iv) for examples of the HRC criticising states for the disproportionate use of force see Concluding Observations on the Federal Republic of Yugoslavia (Serbia and Montenegro) (6 November 1992) in Report of the Human Rights Committee, UN Doc A/48/40 (7 October 1993), 73, para 332; Concluding Observations on the Russian Federation, UN Doc. CCPR/C/79/Add.54 (26 July 1995), para 27. 254 The ECtHR has accepted that Art 2, ECHR applies during armed conflict (both IAC and NIAC), and must be interpreted consistently with the relevant rules of IHL. See Varnava and Others v Turkey (2010) 50 EHRR 21, para 185: ‘Article 2 [of the ECHR] must be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally accepted role in mitigating the savagery and inhumanity of armed conflict.’ For a summary of cases in which the Court has applied the ECHR to armed conflict situations see ‘Factsheet – Armed Conflicts’, European Court of Human Rights, June 2017, available at .

148

Legal Framework  3.97–3.98 3.96.3  Article 4(1), ACHR255 and 3.96.4  Article 4, ACHPR.256 3.97  We turn now to a more detailed review of ECtHR case law on Article 2, ECHR, since this is particularly well-developed. 3.98  In a series of cases,257 the ECtHR has accepted that the use of lethal force may pursue the legitimate aim of restoring power by a government over territory and suppressing an armed insurgency in circumstances where ‘active resistance’ is expected.258 The ECtHR has also echoed the principle of distinction under IHL by referring to the existence of ‘legitimate military targets’.259 In a number of cases, the ECtHR has found violations of Article 2 for failure to take adequate precautions during armed conflict.260 The ECtHR’s case law establishes the following key principles regarding Article 2, ECHR, which apply, and in some cases extend, the principle of precaution under IHL: 3.98.1  Article 2 provides that use of force which may result in the deprivation of life must be no more than ‘absolutely necessary’ for the achievement of one of the purposes set out in Article 2(2).261 Consequently, the force used must be ‘strictly proportionate’ to the achievement of the permitted aims.

255 The IACtHR has held that the relevant rules of IHL may be taken into consideration as elements for the interpretation of the ACHR: see eg (i) Case of Bámaca-Velasquez v Guatemala, (Merits Judgment), InterAmerican Court of Human Rights Series C No 70 (25 November 2000), para 209; (ii) Case of Las Palmeras v Colombia (Preliminary Objections), Inter-American Court of Human Rights Series C No 67 (4 February 2000), paras 32–33; (iii) Case of the Santo Domingo Massacre v Colombia (Preliminary Objections, Merits and Reparations Judgment), Inter-American Court of Human Rights Series C No 259 (30 November 2012), para 211, (iv) Case of the Afro-Descendant Communities Displaced from the Cacaria River Basin (Operation Genesis) v Colombia (n 41), para 222, and (v) Case of Juan Carlos Abella v Argentina (Merits), Case 11.137, IACommHR Report No 55/97, Inter-American Court of Human Rights OEA/Ser.L/V/II.95 doc. 6 rev. (18 November 1997), paras 178–79. 256 See African Commission on Human and Peoples’ Rights, ‘General Comment No. 3 on the African Charter of Human and Peoples’ Rights: The Right to Life (Article 4)’ (November 2015), para 32: ‘In armed conflict, what constitutes an ‘arbitrary’ deprivation of life during the conduct of hostilities is to be determined by reference to international humanitarian law.’ 257 Note that in these cases, rather than concede that the situation in Chechnya amounts to a NIAC and rely on Art 2(2)(c) ECHR (ie the argument that the use of lethal force was necessary for the purpose of quelling an insurrection), Russia sought to justify the use of lethal force as necessary to protect persons from unlawful violence under Art 2(2)(a). 258 Isayeva, Yusupova and Bazayeva v Russia (2005) 41 EHRR 39, paras 187–89: ‘The Court accepts that the situation that existed in Chechnya at the relevant time called for exceptional measures by the State in order to regain control over the Republic and to suppress the illegal armed insurgency. Given the context of the conflict in Chechnya at the relevant time, those measures could presumably include the deployment of army units equipped with combat weapons, including military aviation and artillery. The presence of a very large group of armed fighters in Katyr-Yurt, and their active resistance to the law-enforcement bodies, which are not disputed by the parties, may have justified use of lethal force by the agents of the State, thus bringing the situation within paragraph 2 of Article 2.’ 259 ibid, para 175. 260 See eg Ergi v Turkey (2001) 32 EHRR 18; Isayeva v Russia (2005) 41 EHRR 38; Isayeva, Yusupova and Bazayeva v Russia (n 258); Kerimova and Others v Russia, Judgment, App nos 17170/04, 20792/04, 22448/04, 23360/04, 5681/05 and 5684/05 (ECHR, 3 May 2011); Khatsiyeva and Others v Russia, Judgment, App no  5108/02 (ECHR, 17 January 2008); Esmukhambetov and Others v Russia, Judgment, App no 23445/03, (ECHR, 29 March 2011); Khamzayev and Others v Russia, Judgment, App no 1503/02 (ECHR, 3 May 2011). 261 This term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether state action is ‘necessary in a democratic society’ under paras 2 of Arts 8 to 11 of the Convention: see Esmukhambetov v Russia (n 260), para 138.

149

3.98  Killing and Ill-Treatment of Children 3.98.2  Given the importance of the protection afforded by Article 2, deprivations of life are to be carefully scrutinised, particularly where deliberate lethal force is used, taking into consideration not only the actions of state agents who actually administer the force but also ‘all the surrounding circumstances including such matters as the planning and control of the actions under examination’.262 3.98.3  The state must plan military operations ‘so as to minimise, to the greatest extent possible, recourse to lethal force’,263 and to ‘avoid or mimimise, to the greatest extent possible, the risk of a loss of life, both of persons at whom the measures were directed and for civilians’.264 This includes an obligation to choose the means and methods of attack in light of the potential for incidental damage.265 3.98.4  Appropriate care must be taken to ensure the identity of a target. The state must assess whether intelligence as to targeting is ‘clear and reliable’, whether it has been ‘thoroughly verified’,266 and whether supplementary investigation is required given the likelihood that civilians are present.267 3.98.5  The state is required to consider risks to civilian life arising, not only from its own use of combat power, but also from the fire-power of the adversary.268 3.98.6  At the planning stage, where possible, the state must take steps to secure the evacuation of civilians. This requires ‘serious calculations’ including as to ‘how long such an evacuation would take, what routes evacuees were supposed to take, what kind of precautions were in place to ensure safety, what steps were taken to assist the vulnerable and infirm etc’.269 Where civilians are held hostage by fighters, the state must show that it has taken steps to attempt to organise a safe exit, including by seeking to negotiate their evacuation with the fighters.270 3.98.7  Where it is not possible to evacuate civilians, ‘meaningful steps’271 must be taken to ensure that they are warned of an attack in advance.272

262 ibid. See also eg Isayeva v Russia (n 260), para 175. 263 Isayeva v Russia (n 260), para 171; Isayeva v Russia (n 258), para 175. 264 Kerimova v Russia (n 260), para 248. 265 Isayeva v Russia (n 260), para 189; Ergi v Turkey (n 260), para 79. See also Esmukhambetov v Russia (n 260), para 149 finding that ‘It furthermore does not appear that the authorities had considered at all comprehensively the limits and constraints on the use of indiscriminate weapons within a populated area’. 266 Kerimova v Russia (n 260), para 250. See also Khatsiyeva v Russia (n 260), paras 136–37. 267 Khatsiyeva v Russia (n 260), paras 136–37. See also Isayeva v Russia (n 260), paras 188–89, finding that since it was likely that civilians were present in the area, the state should have taken further measures – and in particular the deployment of forward air controllers – to assist in the target verification process. 268 See Ergi v Turkey (n 260), para 80, holding that the choice of location by Turkish forces for an ambush against PKK ‘terrorists’ did not satisfy this requirement, as it placed civilians present in the village ‘at considerable risk of being caught in the cross-fire between security forces and any PKK terrorists’. 269 Isayeva v Russia (n 260), para 187. See also Esmukhambetov v Russia (n 260), para 149, finding that the authorities did not take any steps to ‘securing their evacuation’. 270 Khamzayev v Russia (n 260), para 184. 271 The ECtHR does not appear to have decided a case in which it was found that warning was not feasible, as per the IHL standard. Instead, the Court has referred to the requirement to take ‘meaningful steps’: see eg Khamzayev v Russia (n 260), para 184. 272 See eg Isayeva v Russia (n 260), para 187 and Esmukhambetov v Russia (n 260), para 149, both finding that the State had failed to take any steps to ensure that civilians were informed of the attack beforehand.

150

Legal Framework  3.99–3.103 3.99  Many of these principles are also summarised in the HRC’s draft General Comment No 36.273 Torture and Cruel, Inhuman or Degrading Treatment or Punishment 3.100  IHRL reinforces the requirement of humane treatment under IHL of persons in the hands of a state party to the conflict. In addition to murder, a number of IHRL treaties prohibit torture and cruel, inhuman and degrading treatment or punishment and clarify the scope of these concepts.274 This right is non-derogable as UNCAT makes clear in Article 2(2): ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be involved as a justification of torture’. 3.101  IHRL recognises that detention may give rise to conditions in which there may be an increased risk of torture and ill-treatment. For example, Article 37(c), CRC provides that ‘[e]very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person’. Similarly, Article 17(2)(a), ACRWC which concerns the ‘administration of juvenile justice’ specifically provides that States Parties shall ‘ensure that no child who is detained or imprisoned or otherwise deprived of his/her liberty is subjected to torture, inhuman or degrading treatment or punishment’. 3.102  In addition, Article 37(a), CRC specifically provides that States Parties shall ensure that ‘No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment’. Moreover, Article 19(1) requires States Parties to ‘take all appropriate legislative, administrative, social and educational measures to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse whoever has the care of the child’. Such protective measures include ‘identification, reporting, referral, investigation, treatment and follow up of instances of child mistreatment, and, as appropriate, for judicial involvement’.275 3.103  Definitions: the severity of conduct may be conceived as existing in a spectrum. Torture is at one end of the spectrum and includes the most extreme acts, inflicting severe pain or suffering. From torture the spectrum moves into inhuman or degrading treatment or punishment.276 The classification of an act may depend on the c­ haracteristics

273 HRC, Draft General Comment No. 36 (n 253), paras 11 and 63. Para 63 of the draft proposes that ‘State parties should, subject to compelling security considerations, disclose the criteria for attacking with lethal force individuals or objects whose targeting is expected to result in deprivation of life, including the legal basis for specific attacks, the process of identification of military targets and combatants or persons taking a direct part in hostilities, the circumstances in which relevant means and methods of warfare have been used, and whether less lethal alternatives for attaining the same military objective were considered.’ 274 See Art 7, ICCPR; Art 3, ECHR; Art 5, ACHR; Art 8(1), Arab Charter; Arts 1(1) and 16(1), UNCAT. 275 Art 19(2). See also Art 39, CRC, which provides that ‘States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child’. 276 Contrast the position under ICL: see (n 198) above.

151

3.104–3.105  Killing and Ill-Treatment of Children of the victim and may change over time as human rights standards become more stringent.277 3.104  Torture: Article 1, UNCAT defines ‘torture’ as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.’ Unlike under IHL, a necessary component of torture in UNCAT is the fact that the act was committed by a public official or a person acting in an official capacity. Other prohibitions on torture, for example in the ICCPR and ECHR, do not require commission by a public official. 3.105  Inhuman or degrading treatment or punishment: in order to fall within the scope of this prohibition, the treatment must reach a minimum level of severity. This assessment depends on the circumstances of each case including ‘the duration of the treatment, its physical or mental effects and, in some cases, the sex, age, and state of health of the victim’.278 For example, the combined application of the ‘five techniques’ (wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink) has long been held to be prohibited inhuman and degrading treatment.279 Similarly, it is recognised that corporal punishment and solitary confinement of children may amount to torture or inhuman or degrading treatment or punishment.280

277 See HRC, General Comment No. 20, Art 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment)’ in ‘Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’, UN Doc HRI/GEN/1/Rev.1 (29 July 1994), 30, para 4: ‘The Covenant does not contain any definition of the concepts covered by article 7, nor does the Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied.’ See also Selmouni v France, ECtHR Judgment of 28 July 1999, para 101: ‘Certain acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in the future … the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.’ 278 Akkoc v Turkey (2002) 34 EHRR 51 (subjecting a detainee to electric shocks, hot and cold water treatment, blows to the head, and threats to the detainee’s children). 279 Ireland v United Kingdom (1979–80) 2 EHRR 25. 280 Regarding corporal punishment see, eg, Commission on Human Rights Resolution 1998/38 (‘Torture and other cruel, inhuman or degrading treatment or punishment’), para 3: ‘Reminds Governments that corporal punishment can amount to cruel, inhuman or degrading punishment or even to torture’, UN Doc E/CN.4/1998/38 (1998); HRC, ‘General Comment No 20 (n 277), para 5: ‘The prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim. In the Committee’s view, moreover, the prohibition must extend to corporal punishment, including excessive chastisement ordered as punishment for a crime or as an educative or disciplinary measure.’ Regarding solitary confinement see, eg, UNGA, ‘Interim Report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment’, UN Doc A/66/268 (5 August 2011), para 77: ‘the Special Rapporteur holds the view that the imposition of solitary confinement, of any duration, on juveniles is cruel, inhuman or degrading treatment and violates article 7 of the International Covenant on Civil and Political Rights and article 16 of the Convention against Torture’. See also UNGA Resolution 45/113 ‘United Nations Rules for the Protection of Juveniles Deprived of their Liberty’ (14 December 1990), para 67: ‘All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a

152

Legal Framework  3.106–3.108 2.  Problems and Deficiencies in the Legal Framework 3.106  As we note above, paragraph 3.88, the general IHRL provisions regarding killing and ill-treatment are adequately protective of children. This section identifies two specific problems and deficiencies regarding the CRC. Before doing so, however, we note that there is considerable overlap and consistency as between IHL rules (re treatment of persons) and IHRL rules in relation to killing and ill-treatment. This means that if our proposal of one single instrument is pursued then it should be possible to ­consolidate, in that instrument, the relevant protections that presently exist in IHL and IHRL so that there are streamlined provisions, ie where there is consistent and overlapping legal content in a given IHL rule and IHRL rule then they could be brought together in one consolidated rule. (The instrument could have a separate section regarding IHL and the conduct of hostilities.) 3.107  First, it is unclear whether all of the CRC applies in armed conflict and, if it does not, to what extent it so applies.281 As noted above, paragraphs 3.91 and 3.102, Articles 6 and 37(a), CRC protect the right of life and prohibit torture and other ill treatment respectively. However, it is debated whether the entirety of the CRC applies in armed conflict or whether Article 38 displaces the other provisions of the CRC during armed conflict.282 None of the reservations and interpretative declarations made by States Parties address this issue.283 The travaux préparatoires also offer little assistance, since the issue does not appear to have been discussed.284 The CRC Committee has taken the view that the absence of any general derogation clause supports the application of the entirety of the CRC at all times, with the exception of those provisions which are inherently limited.285 3.108  However, it has been pointed out that ‘if all the articles on the protection and care of children do in fact apply at all times, the necessity for Article 38(4) may be doubted, and it is, therefore, not unreasonable to suppose that the drafters expected that the [CRC]

dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned.’ 281 The position is also unclear regarding the scope and effect of Art 22, ACRWC. 282 For consideration of this debate see eg Ilene Cohn, ‘The Convention on the Rights of the Child: What it Means for Children in War’ (1991) 3(1) International Journal of Refugee Law 100 at 105 and Hamilton and El-Haj (n 4), 37–38. 283 Although many States commented on Art 38, they did so primarily with respect to the provision concerning the recruitment and use of children by armed forces or armed groups. See . 284 It has been suggested that ‘some State delegations during the drafting process, relying on Article 38(4), concluded that only Article 38 applied in war-time situations’: Cohn (n 282), 105, cited by Hamilton and El-Haj (n 4), 38. However, there is no citation to primary materials in either of these articles and the official legislative history of Art 38 contains no such statements: see OHCHR, ‘Legislative History of the Convention on the Rights of the Child’, Vol II, HR/PUB/07/1, 775–800, available at . An early proposal submitted jointly by various NGOs stated that the draft article was ‘[w]ithout prejudice to the application of other relevant articles of the Present Convention’: E/CN.4/1982/WG.1, para 13. However, this wording was not retained, and does not appear to have been discussed. 285 CRC Committee, Fourth Session, Summary Record of the 90th Meeting, Geneva, 29 September 1993, UN Doc CRC/C/Sr.90 (5 October 1993). See also Thomas Hammerberg (then a member of the CRC Committee), ‘Children as Zones of Peace: What Needs to be Done’ in George Aldrich and Ted van Baarda (eds) Conference on the Rights of the Child in Armed Conflict (The Hague, International Dialogues Foundation, 1994) quoted in Hamilton and El-Haj (n 4), 38. See too Kuper, Child Civilians (n 4), 46.

153

3.109–3.111  Killing and Ill-Treatment of Children would be subject to derogation during armed conflict.’286 Contrary to the CRC Committee’s reasoning, it may also be argued that no derogation mechanism was necessary since the special regime established under Article 38 implies that other provisions of the CRC were not intended to apply during armed conflict. Furthermore, it has been suggested that, depending on the precise circumstances, it may not be possible for children’s rights to be preserved to their full extent in situations of armed conflict.287 For example ‘when children are in the midst of the combat … it may be unrealistic for the state and/or other agencies to do more than attempt to secure the right to survival’.288 3.109  This lack of clarity in the scope of application of the CRC is unhelpful. In the specific context of killing and ill-treatment it means there is ambiguity as to whether Articles 6 and 37 apply or whether Article 38 alone applies (displacing Articles 6 and 37). This is especially significant given the different thresholds of protection in Article 6 (‘maximum extent possible’) and Article 38(4) (‘all feasible measures’). It also means, more generally, that it is harder to identify the applicable IHRL framework during armed conflict. 3.110  Second, and if Article 38 does displace the other provisions of the CRC during armed conflict, the ‘feasible’ standard set by Article 38(4) CRC entails a lower degree of protection for children than IHL. Article 38(4), CRC provides, ‘In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflict, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.’ Article 22(3), ACRWC is similarly drafted. 3.111  The inclusion of the word ‘feasible’ in Article 38(4) reflects a difficult political compromise.289 During the negotiation of Article 38 of the CRC, numerous delegations objected that the word ‘feasible’ inappropriately lowered the standard under IHL,290 in particular by failing to reflect the absolute prohibition against attacks on civilians,291 and supported the word ‘necessary’ as an alternative.292 This was strongly opposed by the 286 Hamilton and El-Haj (n 4), 38, citing Cohn (n 282), 105. 287 Evidence of Carolyn Hamilton recorded in International Bureau for Children’s Rights, ‘Report of the First Hearings on the Protection of War-Affected Children: Securing Children’s Rights in the Context of Armed Conflict’, Colchester, UK, 3–6 April 2000, 14–15: ‘[i]t is necessary to accept that in situations of conflict, ­especially in complex emergencies, children’s rights cannot all be preserved to their full extent’. 288 ibid. 289 UNESC, Commission on Human Rights, ‘Report of the Working Group on a draft convention on the rights of the child’, UN Doc E/CN.4/1989/48 (2 March 1989), para 620. See also para 734 recording that the Swiss delegation ‘referred to the speed and confusion which characterized the meeting during which article 38 … was adopted and asked that a transcript of that meeting be annexed to the report’. 290 See UNESC, Commission on Human Rights, Written statement submitted by the ICRC, UN Doc. E/ CN.4/1987/WG.1.WP.4 (22 January 1987); UNESC, Commssion on Human Rights, Written statement submitted by Rädda Barnen, UN Doc E/CN.4/1987/WG.1/WP.3 (5 January 1987); UNESC, Commission on Human Rights, ‘Report of the Working Group on a draft convention on the rights of the child’, UN Doc E/CN.4/1987/25 (9 March 1987), paras 160–65 (Switzerland and Sweden); UNESC, Commission on Human Rights, ‘Report of the Working Group on a draft convention on the rights of the child’, UN Doc E/CN.4/1988/28 (6 April 1988), para 72 (Sweden); UN Doc E/CN.4/1989/WG.1/CRP.1, 40 (UNICEF), 41 (ICRC), 49 (UNHCR) also published in Legislative History, vol II (n 284), 791–92; and see the report of the debate in UN Doc E/CN.4/1989/48 (n 289), 110–16, especially para 602. 291 See eg UN Doc E/CN.4/1987/WG.1.WP.4 (n 290), 17 (ICRC); UN Doc. E/CN.4/1987/WG.1/WP.3 (n 290) (Rädda Barnen). 292 UN Doc E/CN.4/1989/48 (n 289), para 607.

154

Legal Framework  3.112–3.113 United States delegation, at the second reading, on the ground that it would be impossible to fulfil a duty to take all ‘necessary’ steps since armed conflicts inevitably have harmful consequences for civilians.293 The alternative terms ‘practicable’ and ‘possible’ were suggested but not supported.294 3.112  That political tension may explain the drafting of Article 38(4): it is odd that a provision that is expressly framed by reference to IHL should include the standard of ‘all feasible measures’ which fails to incorporate the full extent of relevant rules of IHL. Thus: while certain rules of IHL are defined by reference to a standard of feasibility – such as the requirement to take precautions – others are absolute obligations such as the prohibition on direct attacks; the prohibition on indiscriminate attacks, and the fundamental guarantees under Common Article 3 and Article 4, APII. Furthermore, IHL rules which entitle children to special treatment in IAC295 and NIAC296 are not conditioned by considerations of whether it is ‘feasible’ to provide such protections. Instead, these rules of IHL simply provide that children ‘shall’ be afforded,297 or ‘are entitled’ to,298 such protections. 3.113  In addition to this odd drafting, the use of ‘feasible’ in Article 38(4), CRC (and Article 22(3), ACRWC) is troubling for a number of other reasons. These include the following. 3.113.1  The use of ‘feasible’ may299 encourage states to justify a failure to comply with their obligations under IHRL by asserting that they need to achieve success in military operations and, therefore, that the measure in question was not ‘feasible’. 3.113.2  The use of ‘feasible’ in Article 38(4) is a lower standard than under IHL and, as such, it is inconsistent with the general requirement in Article 6(2), CRC and Article 5(2) ACRWC which requires States Parties to ‘ensure to the maximum extent possible, the survival, protection and development of the child’.300 3.113.3  Although greater protection remains available under IHL, including CIL,301 such rules are not incorporated under the protective umbrella of the CRC or ACRWC and do not benefit from the monitoring and accountability mechanisms established by those treaties.

293 UN Doc E/CN.4/1989/48 (n 289), paras 603 and 618. Notably, the United States delegation had earlier supported the inclusion of the term ‘necessary’ during the discussion in the Working Group in 1986: see UNESC, Commission on Human Rights, ‘Report of the Working Group on a draft convention on the rights of the child’, UN Doc E/CN.4/1986/39 (13 March 1986), para 142. 294 UN Doc E/CN.4/1989/48 (n 289), para 619. 295 Art 77, API; ICRC, CIL Rule 135, ICRC Study on Customary IHL, 479–82. 296 Art 4(3), APII; ICRC, CIL Rule 135, ICRC Study on Customary IHL, ibid. 297 Art 77, API; Art 4(3) APII. 298 ICRC, CIL Rule 135, ICRC Study on Customary IHL, 479–482. 299 It is not clear whether either Art 38(4), CRC or Art 22(3), ACRWC have had this result, since there is a lack of evidence of practice regarding their application and interpretation. 300 A higher standard has been endorsed in certain soft law instruments. For example, Art 4 of the Declaration on the Protection of Women and Children in Emergency and Armed Conflict (n 97) states that ‘[a]ll efforts shall be made by States involved in armed conflicts … to spare women and children from the ravages of war. All the necessary steps shall be taken.’ (emphasis added). 301 UN Doc E/CN.4/1989/48 (n 289), para 635: ‘on the basis that ”international law” was to be given the broad interpretation as covering customary international law, consensus was reached on a text for article 21.’

155

3.114–3.116  Killing and Ill-Treatment of Children 3.114  Finally, although it has been suggested that Article 41, CRC ‘could be invoked to raise the unsatisfactory standard set in Article 38’302 this is not a solution for the problems with Article 38(4). Article 41, CRC states ‘[n]othing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in (a) the law of a State Party; or (b) international law in force for that State.’ Similarly worded provisions are commonly found in other treaties,303 including in IHRL treaties. According to their ordinary meaning, and established usage, the purpose of such ‘saving clauses’ is to make it clear that the present treaty does not affect (or is without prejudice to) the applicability of other rules of international law. The travaux préparatoires confirm that ‘the main concern of the drafting group was to ensure that the present convention would not derogate from the existing human rights obligations undertaken by States Parties’.304 This does not assist with Article 38(4) because the text expressly refers to the other rules of international law (viz, IHL) and does so in an expressly restrictive way. 3.  Suggestions to Improve the Legal Framework 3.115  In light of the potential deficiencies identified above, we make two suggestions for the potential improvement of existing protections of children under IHRL. These are in addition to our broader suggestion that the applicable IHL and IHRL rules, especially where they overlap in content, should be collected, codified and consolidated in one instrument. See further Chapter 9. 3.116  First, the law could be clarified or developed by a reconsideration of the scope of application of the CRC in armed conflict. This could be done by the CRC Committee issuing a General Comment on, for example, Article 38 alone or on the applicability of other CRC provisions during armed conflict.305 We recognise that, hitherto, the CRC Committee has taken the view that the entirety of the CRC applies during armed conflict. However, we note that one possible, alternative approach has been developed by the ECtHR when it has applied the ECHR outside peacetime.306 Applying that approach, by analogy, would 302 See Kuper, Child Civilians (n 4), 50 and Van Bueren (n 4), 820. See also the Report of the Working Group to the Commission on Human Rights, UN Doc E/CN.4/1989/48 (n 289), para 725 recording the concerns of the Portuguese delegation ‘deeply regret[ting]’ that Art 38(4) ‘did not measure up to the level of protection ensured by other legal instruments adopted by the international community’, and noting that Portugal would take account of Art 41. 303 Indeed, Art 41, CRC was modelled on Art 23, CEDAW: see UNESC, Commssion on Human Rights, ‘Report of the Working Group on a draft convention on the rights of the child’, UN Doc E/CN.4/1983/62 (25 March 1983), para 16. 304 1989 Report of the Working Group to the Commission on Human Rights, UN Doc E/CN.4/1989/48 (n 289), para 625. See also para 631: ‘There was a consensus in the Working Group that the aim of article 21 was to ensure that the convention established a minimum standard of rights to be enjoyed by children’. 305 Rule 77(1), Committee on the Rights of the Child, Rules of Procedure, UN Doc CRC/C/4/Rev.4 (18 March 2015): ‘The Committee may prepare general comments based on the articles and provisions of the Convention with a view to promoting its further implementation and assisting States parties in fulfilling their reporting obligations.’ 306 See Al-Skeini v United Kingdom (2011) 53 EHRR 18, para 137: ‘It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored”’.

156

Legal Framework  3.117–3.118 involve starting from the premise that there should be a presumption that a state is able to protect children’s rights under the CRC during armed conflict but that the rights in the CRC may be ‘divided and tailored’ such that only certain provisions which are ‘relevant to the situation of the individual’ apply during armed conflict. This should mean that certain rights (for example the right to life and the prohibition on torture or other cruel, inhuman or degrading treatment or punishment under Articles 6 and 37(a)) are protected even though others may not be (for example the right to rest and leisure, and to participate fully in cultural life, under Article 31). In the former situations, and where a violation of the CRC was alleged, the onus would be on the state to justify and explain any claimed practical inability to guarantee certain specific rights. It would, in such cases, be necessary to assess carefully the particular circumstances in any given conflict situation, including by reference to the intensity of hostilities. Since the ACRWC Committee may draw inspiration from the CRC, it could complement the CRC Committee’s General Comment with one regarding the ACRWC or a joint General Comment could be produced.307 3.117  Second, the law could be developed by strengthening the ‘feasible’ standard in Article 38(4) CRC (and Article 22(3) ACRWC). Notwithstanding the absence of evidence of state practice regarding the interpretation and application of these provisions, we suggest that they should be strengthened in order to make them consistent with the IHL standards to which they expressly refer. One formulation, which avoids the controversy over the terms ‘feasible’ and ‘necessary’, and instead continues to incorporate the relevant IHL rules by reference, is as follows: ‘The Parties shall comply with their obligations under international humanitarian law to protect the civilian population in armed conflict, including their obligations to afford special respect and protection, including care and aid, to children who are affected by an armed conflict’. 3.118  Strengthening Article 38(4), CRC is desirable even if the whole of the CRC applies in situations of armed conflict. As explained in Chapter 2, paragraphs 2.86 to 2.87, as a general rule, IHL is treated as the lex specialis during armed conflict. However, where two treaties address the same subject matter (in this case, the CRC and the applicable rules of IHL), between states which are parties to both treaties, the later treaty may prevail as the lex posterior.308 Moreover, as between treaty parties, a treaty obligation will generally prevail over an obligation under CIL concerning the same subject matter.309

307 Art 46, ACRWC states ‘The Committee shall draw inspiration from International Law on Human Rights, particularly from the provisions of the African Charter on Human and Peoples’ Rights, the Charter of the Organization of African Unity, the Universal Declaration on Human Rights, the International Convention on the Rights of the Child, and other instruments adopted by the United Nations and by African countries in the field of human rights, and from African values and traditions.’ 308 Art 30(3)–(4), Vienna Convention on the Law of Treaties, adopted 22 May 1969, entered into force 27  January 1980, 1155 UNTS 114. For a detailed examination of the complex scope and application of the lex posterior principle, and its relationship with the lex specialis principle, see UNGA, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, UN Doc A/CN.4/L.682, 13 April 2006, 118ff. 309 North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands) ICJ Reports 1969, 42, para 72. See also Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Merits) I.C.J. Reports 1982, 38, para 24: ‘it is well understood that, in practice, rules of [general] international law can, by agreement, be derogated from in particular cases or as between particular parties’.

157

3.119–3.121  Killing and Ill-Treatment of Children In this connection we recall that the CRC is one of the most widely ratified IHRL treaties. In light of the differing sources and standards of relevant rules, and the uncertain application of the lex specialis and lex posterior rules, it may be unclear which obligation applies. Thus, it could theoretically be argued that the (later) codification of the ‘feasible’ standard in Article 38 dilutes the applicable rules of IHL (in API, APII and CIL). It is also important that any modification of Article 38(4), CRC is replicated in Article 22(3), ACRWC so that there consistency regarding the scope of these similar provisions. III.  ACCOUNTABILITY MECHANISMS

3.119  For a general overview of accountability mechanisms see Chapter 2 and for our conclusions regarding these mechanisms see Chapter 9. In the sections below we set out illustrations of the ways in which existing accountability mechanisms have been used in relation to children in armed conflict and focusing, in particular, on killing and torture, organised along the spectrum explained in Chapter 2, paragraph 2.92, and grouped by reference to IHL, ICL and IHRL. We then go on to consider specific problems with those existing mechanisms, as they arise in the context of this Chapter, and finally, make some suggestions for improvement. A.  Application of Accountability Mechanisms 1.  IHL Accountability Mechanisms Adjudicative Accountability Mechanisms 3.120  Domestic courts. As we have noted elsewhere in this book: domestic courts have the strongest enforcement powers but a review of domestic case law and the extent to which domestic legal systems have implemented related IHL, ICL or IHRL norms, is beyond the scope of this work. We have already noted, in Chapter 2, paragraphs 2.102 to 2.105, the various IHL obligations regarding domestic investigation and punishment. 3.121  International and regional courts. There is no court specifically tasked to adjudicate alleged violations of the Geneva Conventions (or IHL in general). So far as we are aware, the ICJ has not had the occasion to consider specifically the protection of children in armed conflict. The position of international criminal and human rights courts and tribunals is considered separately below.310

310 As to the relationship between IHL and the international criminal tribunals, see, eg, Hortensia D. T. Gutierrez Posse, ‘The Relationship between international humanitarian law and the international criminal tribunals’, (2006) 88(861) International Review of the Red Cross 65, 68: ‘The development of international humanitarian law has been accompanied by the formulation of principles and the adoption of multilateral treaties intended to be universal and applicable to war crimes. The rules set down in the statutes of international criminal courts and the work the courts have done and are doing within the scope of their respective mandates reflect that development and at the same time highlight the direct relationship between the object and purpose of international humanitarian law and the establishment of the tribunals. Their jurisprudence, although not an independent law-making process, is a particularly useful additional means of determining the existence of a rule of law, its meaning and its scope.’

158

Accountability Mechanisms  3.122–3.124 3.122  Treaty bodies. Although there are no treaty bodies that deal specifically with the enforcement of IHL rules regarding children,311 the CRC Committee and the ACRWC Committee could be required to examine alleged IHL violations, including the targeting of children, killing and ill-treatment, if individual communications were brought pursuant to Article 38, CRC (under the mechanism provided for in the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (OP3)) and Article 22, ACRWC. However, OP3 has only been ratified by a small number of states and, to date, no such claims have been determined. In addition to considering individual communications: where there is reliable information indicating grave or systematic violations by a State Party of Article 38, and the relevant State has not declined to recognise the competence of the CRC Committee, the CRC Committee could undertake a formal confidential inquiry pursuant to Articles 13–14, OP3. A similar investigation procedure for ‘any matter falling within the ambit of the present Charter’ is provided for in Article 45 of the ACRWC and, unlike Article 13 of OP3, it is not expressly envisaged that States Parties may opt out of this accountability mechanism.312 Other Accountability Mechanisms 3.123  UNSC. There are two principal ways in which the UNSC has contributed to accountability for IHL violations regarding children in armed conflict. The first is by expressions of concern and condemnation of such violations. The second is by the imposition of sanctions. We consider each of these below. The UNSC has also established commissions of independent experts to investigate violations of IHL committed in various territories, for example in Resolution 1564 (2004) the UNSC requested the ­Secretary-General to establish an international commission of inquiry to investigate reports of violations of IHL and IHRL in Darfur by all parties.313 3.124  Expression of concern and condemnation of violations of IHL regarding ­children. As explained in Chapter 1, paragraph 1.60, since 1999 the Security Council has adopted a series of thematic resolutions314 and Presidential Statements315 condemning, amongst other things, the targeting and killing and maiming of children in armed conflict. The UNSC has occasionally stressed the need for perpetrators to be brought to justice.316 311 The role of CRC Committee in the context of children associated with armed forces or armed groups and OP3 is addressed in Ch 4. 312 It does not appear that any States Parties to the ACRWC have entered reservations to Article 45: see the list of current reservations available on the ACRWC’s website at . 313 UNSC Res 1564 (18 September 2004), para 12. 314 See UNSC Res 1261 (25 August 1999), UNSC Res 1314 (11 August 2000), UNSC Res 1379 (20 November 2001), UNSC Res 1460 (2003), UNSC Res 1539 (2004), UNSC Res 1612 (26 July 2005), UNSC Res 1882 (4 August 2009), UNSC Res 1998 (12 July 2011), UNSC Res 2068 (19 September 2012), UNSC Res 2143 para 1, UNSC Res 2225 (18 June 2015). 315 See, eg, S/PRST/1998/18 (29 June 1998), S/PRST/2002/12 (7 May 2002), S/PRST/2005/8 (23 February 2005), S/PRST/2006/33 (24 July 2006), S/PRST/2006/48 (28 November 2006), S/PRST/2008/28 (17 July 2008), S/PRST/2008/6 (12 February 2008), S/PRST/2009/9 (29 April 2009), S/PRST/2010/10 (16 June 2010), S/PRST/2013/8 (17 June 2013). 316 See, eg, S/PRST/2009/9 (n 315), emphasising the need for concerned member states to take i­mmediate action against perpetrators of serious violations against children and to bring them to justice through national justice systems and where applicable, international justice mechanisms and mixed criminal courts and tribunals; S/PRST/2012/23 (31 October 2012), reiterating condemnation of all violations of applicable international law committed against girls, including killing and maiming, and asking for those responsible to be brought to justice.

159

3.125–3.127  Killing and Ill-Treatment of Children 3.125  In addition, the UNSC has adopted country specific Resolutions317 and Presidential Statements318 expressing concern and/or condemning violence against children, including targeting and killing and maiming, in specific armed conflict situations. A limited number of these UNSC Resolutions have expressly called for perpetrators to be brought to justice.319 Other methods of expressing concern and condemning violations are referred to in Chapter 2, paragraphs 2.117 to 2.126. 3.126  Sanctions. Since 2005, the UNSC has expressed a general intention to consider using targeted sanctions against parties identified by the Secretary-General as being ‘in violation of applicable international law relating to the rights and protection of ­children’.320 That intention has been reiterated in subsequent presidential statements and resolutions,321 a number of which have specifically referred to the possibility of adopting sanctions against ‘persistent perpetrators’ of violations and abuses against children in armed conflict.322 In 2011 and 2012, the UNSC adopted Resolutions in which it expressed an intention – when establishing, modifying or renewing the relevant sanctions regimes – to consider including measures against parties that violate international law relating to the rights and protection of children in armed conflict.323 In these Resolutions the UNSC also directed the Working Group on Children and Armed Conflict to consider a broad range of options for increasing pressure on persistent perpetrators. 3.127  Sanctions: designation/listing criteria. Three examples of operating UN sanctions regimes that specifically authorise designation on the basis of the targeting and killing and maiming of children are as follows: (i) DRC (since 2006);324 (ii) Somalia/Eritrea 317 See, eg: (i) Haiti, UNSC Res 1780 (2007) ‘condemned strongly the grave violations against children affected by armed violence’; (ii) Afghanistan, UNSC Res 1806 (2008), UNSC Res 1943 (2010) and UNSC Res 2011 (2011); (iii) Côte d’Ivoire, UNSC Res 1975 (2011) demanded an immediate end of ‘violence against civilians, including … children’, including killing and maiming; and (iv) South Sudan, UNSC Res 1996 (2011) d ­ emanding that all parties cease ‘all violations and abuses against children in violation of applicable international law such as … killing and maiming’. 318 See, eg: (i) CAR, S/PRST/2011/21 (14 November 2011) condeming, inter alia, killing and maiming of children by the Lords Resistance Army (LRA); (ii) DRC, S/PRST/2006/6 (22 March 2006) referring to SCR 1612 in urging the LRA to release all children and S/PRST/2012/22 (19 October 2012) condemning, inter alia, killing and maiming of children by M23; and (iii) Somalia, S/PRST/2013/7 (6 June 2013), welcoming the launch of UNSOM and referring to Somalia’s commitment to eliminate killing and maiming of children. 319 See, eg: (i) Afghanistan, UNSC Res 1868 (2009), UNSC Res 1917 (2010), UNSC Res 1974 (2011), UNSC Res 2041 (2012) and 2096 (2013) renewing UNAMA’s mandate authorisation; and (ii) DRC, UNSC Res 2053 (2012). 320 UNSC Res 1612 (2005), para 9. Note UNSC Res 1539 (2004), para 5(c) refering to the consideration of ‘targeted and graduated measures, through country-specific resolutions, such as, inter alia, a ban on the export or supply of small arms and light weapons and of other military equipment on military assistance, against these parties if they refuse to enter into a dialogue, fail to develop an action plan or fail to meet the commitments included in their action plan’ specifically concerned the recruitment and use of children. 321 See, eg, in chronological order: S/PRST/2006/6; S/PRST/2009/9; UNSC Res 1882 (2009), para 7(c); S/PRST/2010/10; UNSC Res 1998 (2011), para 13(e); UNSC Res 2068 (2012), para 3(b); S/PRST/2013/8; and UNSC Res 2143 (2014), para 10. 322 See eg UNSC Res 2068 (2012), para 3; UNSC Res 2143 (2014), para 10. 323 UNSC Res 1998 (12 July 2011), para 9(c); UNSC Res 2068 (2012), adopted 11-0-4 (Azerbaijan, China, Pakistan and Russia abstaining). See earlier S/PRST/2010/10 (16 June 2010). 324 The travel ban and asset freeze were first extended to designated ‘individuals committing serious violations of international law involving the targeting children in situations of armed conflict, including killing and maiming’ by UNSC Res 1698 (2006), para 13. This criterion was included in subsequent UNSC Res renewing the mandate of the DCR Sanctions Committee: see eg UNSC Res 1807 (2008), para 13(d); UNSC Res 1857 (2008), para 4(e); UNSC Res 2078 (2012), para 4(e); UNSC Res 2293 (2016), para 7(e).

160

Accountability Mechanisms  3.128–3.129 (since 2011);325 and (iii) South Sudan (since 2015).326 The DRC and Somalia/Eritrea regimes include the killing and maiming of children as an independent criterion. The South Sudan regime is narrower; it requires that such acts ‘threaten the peace, security or stability of South Sudan’, and recognises only that they ‘may’ do so.327 A similar approach was previously taken under the CAR sanctions regime but later removed. 3.128  Other sanctions regimes permit (or permitted) designation on the basis of violations of IHL or IHRL, thereby encompassing violations against children in principle. For example, Sudan (since 2005);328 Côte d’Ivoire (from 2011 to 2016);329 Yemen (since 2014)330 and CAR (since 2017).331 The precise designation criteria vary, for example: 3.128.1  Whereas the Côte d’Ivoire regime is limited to ‘serious’ violations of IHL, the Sudan, CAR and Yemen regimes apply to violations of IHL generally. 3.128.2  The Yemen regime is limited to violations of IHL/IHRL which threaten the peace, security or stability of Yemen. 3.128.3  The CAR sanctions regime also specifically authorises designation on the basis of the recruitment and use of children in armed conflict, but there is no specific reference to targeting or killing and maiming children.332 3.129  Sanctions: implementation. Although a comprehensive assessment of the listing by the various sanctions committees is beyond the scope of this book, see the following illustrations of the way in which five of the sanctions regimes have operated in practice. 325 The sanctions apply to individuals and entities designated ‘as being responsible for violations of applicable international law in Somalia involving the targeting of civilians including children … in situations of armed conflict, including killing and maiming’: see UNSC Res 2002 (2011), para 1(e); UNSC Res 2093 (2013), para 43(e). 326 UNSC Res 2206 (2015), para 7(d) referring to ‘[t]he targeting of civilian, including … children, through the commission of acts of violence (including killing, maiming, torture … or through conduct that would constitute a serious abuse or violation of human rights or a violation of international humanitarian law.’ 327 UNSC Res 2206 (2015), para 6. 328 UNSC Res 1591 (2005), para 7(c) referring to individuals who ‘commit violations of international humanitarian or human rights law or other atrocities’. 329 UNSC Res 1975 (2011), para 12 referring to individuals who ‘commit serious violations of human rights and international humanitarian law’. Note that the earlier designation criteria referred to individuals ‘responsible’ for such violations: see UNSC Res 1572 (2004), para 9. 330 UNSC Res 2140 (2014), paras 17–18: stating that sanctions shall be applied ‘to individuals or entities ­designated  … as engaging in or providing support for acts that threaten the peace, security or stability of Yemen’ and that such acts ‘may include’ ‘[p]lanning, directing or committing acts that violate applicable international human rights law or international human rights law, or acts that constitute human rights abuses, in Yemen’. 331 UNSC Res 2339 (2017), para 17(b) ‘Further decides … that the measures … shall also apply to the individuals and entities designated by the Committee as … [i]nvolved in planning, directing, or committing acts that violate [IHRL] or [IHL], as applicable, or that consitute human rights abuses or violations … including targeting of civilians’. See earlier UNSC Res 2262 (2016), para 13(b) to the same effect. Note that unlike in UNSC Res 2127 (2013), para 56, this designation criteria is not limited to individuals engaging in or providing support for acts that undermine the peace, stability or security of the CAR. This is a separate criterion in UNSC Res 2262, para 12 and UNSC Res 2339, para 16. 332 UNSC Res 2339 (2017), para 17(d). Cf the preamble ‘Strongly condemn[s] … the threats of violence, human rights violations and abuses and international humanitarian law violations, including against … children’. The focus on recruitment and use of children reflects the expressed intention of the UNSC in UNSC Res 2127 (2013), para 56.

161

3.130  Killing and Ill-Treatment of Children 3.129.1  DRC Sanctions Committee: since 2010, the DRC Sanctions Committee has listed at least three individuals333 and three entities (FDLR, M23 and ADF)334 for, amongst other things, the killing and maiming of children. In each instance, this was one of various designation criteria used. 3.129.2  Somalia/Eritrea Sanctions Committee: has not listed any individuals or ­entities for the targeting of children, including killing and maiming, under UNSC Res 2002 (2011) or UNSC Res 2093 (2013). 3.129.3  South Sudan Sanctions Committee: on 1 July 2015, the South Sudan Sanctions Committee listed six individuals. The narrative summaries for four of these individuals expressly refer to the killing of children.335 3.129.4  Yemen Sanctions Committee: has not listed any individuals or entities for serious violations of IHL or IHRL which threaten the peace, security or stability of Yemen. 3.129.5  CAR Sanctions Committee: has listed the LRA and its leader, Joseph Kony for, amongst other things, planning, directing or committing acts that violate IHRL and IHL, including targeting of civilians. The narrative summaries do not specifically refer to the killing or maiming of children. 3.130  UN Human Rights Council. While the HRC is primarily concerned with IHRL, rather than IHL, it has nevertheless adopted various resolutions mandating experts to investigate violations of IHL.336 333 The three individuals are: (i) CDi.031 Innocent Zimurinda, listed on 1 December 2010 for, inter alia, responsibility for killing children who are no associated with armed forces or armed groups; (ii) CDi.029 Ntabo Ntaberi Sheka, listed on 28 November 2011 for, inter alia, targeting of children including cruel, inhuman and degrading treatment; and (iii) CDi.008 Sultani Makenga, listed on 13 November 2012 for, inter alia, ‘serious violations of international law involving the targeting of … children in armed conflict, including killing and maiming’. Note also that other individuals (CDi.001 Eric Badege, CDi.028 Jean-Marie Lugerero Runiga, and CDi.004 Innocent Kaina, all M23 leaders) have been listed, inter alia, for killing child recruits who were attempting to escape. Badege was also designated for attacks against civilians, but not children specifically. See the narrative summaries available on the Committee’s website: . 334 FDLR (CDe.005) and M23 (CDe.006) were both listed on 23 December 2012, inter alia, for ‘serious violations of international law involving the targeting of … children in armed conflict, including killing and maiming’. The ADF (CDe.001) was listed on 30 June 2014, inter alia, for ‘numerous violations of international human rights law and international humanitarian law against … children, including killing, maiming’. See the narrative summaries available on the Committee’s website: . 335 The four individuals are: SSi.002 Simon Gatwesch Dual, SSi.003 James Koang Chuol, SSi.004 Santino Deng Wol, and SSi.005 Marial Chanuong Yol Mangok. See also SSi.006 Peter Gadet who was listed for, inter alia, targeting of civilians generally. See the narrative summaries available on the Committee’s website: . 336 For a summary of selected relevant practice see OHCHR, Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law: Guidance and Practice, UN Doc. HR/PUB/14/7 (2015), 11: ‘Some mandates of commissions/missions have referred only to [IHRL], while others, pertaining to situations of armed conflict, have referred also to [IHL] … [For example,] the mandate of the United Nations Fact-finding Missions on the Gaza Conflict (2009) required it to “investigate all violations of [IHRL] and [IHL]”. Commissions/missions have exercised discretion in deciding the applicable law framework in the situations they were investigating. For example, although the mandates of the Commissions of Inquiry for Libya (2011–2012) and the Syrian Arab Republic (2011–2014) referred only to [IHRL], both bodies interpreted their mandates to include [IHL] when the situation in these countries reached the level of an internal armed conflict. The mandates of some commissions/missions also refer to international criminal law, for

162

Accountability Mechanisms  3.131–3.134 3.131  MRM, naming and shaming and action plans. The ‘killing’ and ‘maiming’ of children is one of the six ‘grave violations’ covered by the mandate of the MRM. We set out the definitions of these terms as adopted in the MRM Field Manual, and noted that slightly different definitions have been adopted in at least one Action Plan, at paragraph 3.3 above. 3.132  Naming and shaming: In UNSC Resolution 1882 (2009), the UNSC called on the Secretary-General to include in Annex I to the annual report ‘parties to armed conflict that engage in patterns of killing and maiming of children’.337 Between 2009 and 2012, there were few specific listings on the ground of killing and maiming. Since 2012, the killing and maiming of children has featured more prominently in the Secretary-General’s reports. 3.133  In the Secretary-General’s 2016 report, 20 parties were listed in Annex I as engaging in patterns of killing and maiming children across eight countries (Afghanistan, CAR, DRC, Iraq, Somalia, South Sudan, Syria, Yemen).338 In 2017, two additional parties in two of these countries (Afghanistan and DRC) were listed in Annex I on the same basis.339 In addition, in relation to the situation in Nigeria, which is not on the agenda of the Security Council, Boko Haram has been listed in Annex II since 2016. A number of these parties are designated persistent violators, having been listed for at least five years.340 3.134  Only two of the 23 parties listed have signed an action plan on the issue of killing and maiming children. Further, we note that in relation to the situation in Yemen, the Saudi Arabia-led coalition was removed from the 2016 Annex I list shortly after its publication but was included in the 2017 Annex I list with the indication that the party had put in place measures during the reporting period aimed at improving the protection of children.341 example, the Commission of Inquiry on the Syrian Arab Republic was required to “establish the facts and circumstances … of the crimes perpetrated”, and also to identify perpetrators of violations “that may constitute crimes against humanity”.’ 337 UNSC Res 1882 (2009), para 3. 338 Parties in Afghanistan: (i) Haqqani Network, (ii) Hezb-i-Islami of Gulbuddin Hekmatyar, (iii) Taliban forces, including the Tora Bora Front, Jama’at al-Da’wa ila al-Qur’an wal-Sunna and the Latif Mansur Network; parties in the CAR: (iv) Former Séléka coalition and associated armed groups, (v) local defence militias known as the anti-balaka, (vi) Lord’s Resistance Army; parties in the DRC: (vii) Allied Democratic Force, (viii) Lord’s Resistance Army, (ix) Nduma Defence of Congo/Cheka; parties in Iraq: (x) Islamic State in Iraq and the Levant; parties in Somalia: (xi) Al-Shabaab, (xii) Somali National Army; parties in South Sudan: (xiii) Sudan People’s Liberation Army, (xiv) Sudan People’s Liberation Movement/Army in Opposition; parties in Syria: (xv) Ahrar al-Sham, (xvi) Government forces, including the National Defence Forces and the shabbiha militia, (xvii) Islamic State in Iraq and the Levant, (xviii) Nusrah Front; parties in Yemen: (xix) Houthis/Ansar Allah, (xx) Saudi Arabia-led coalition (removed from the list shortly after publication; see further para 3.133). Note that the names of some of these parties have been slightly modified in the 2017 report. 339 Additional party in Afghanistan: (iv) ISIL-Khorasan Province; additional party in DRC: Mai-Mai Mazembe. See further UN Secretary-General, 2017 Annual Report (n 11), para 244. 340 See UNSC Res 1882 (2009), paras 7(c) and 16. 341 See Secretary-General, 2017 Annual Report (n 11), para 200: ‘The United Nations was informed of measures taken by the coalition in 2016 to reduce the impact of conflict on children, including through their rules of engagement and the establishment of a joint incident assessment team mandated to review all incidents involving civilian casualties and identify corrective actions. The initiatives are steps in the right direction. Nevertheless, I urge the coalition to improve its approach since, despite these measures, grave violations against children continued at unacceptably high levels since 2016. In this regard, I remain deeply concerned about the plight of children in Yemen and strongly request parties to take urgent measures to end violations against children. Furthermore, I urge the coalition, in particular Saudi Arabia as leader of the coalition, to continue to refine and implement the preventive and corrective measures put in place in 2016 to protect children, and

163

3.135–3.138  Killing and Ill-Treatment of Children 3.135  Action plans: In UNSC Resolution 1882 (2009), the UNSC called on parties (including non-state armed groups) engaged in the killing and maiming of children to prepare action plans outlining steps to stop these crimes. The UNSC has reiterated this call: see, for example, UNSC Resolution 1998 (2011). Further, the UNSC has urged specific parties to armed conflicts to conclude action plans to prevent the killing and maiming of children.342 To date, four action plans have been concluded that address the killing and maiming of children to varying degrees in three different armed conflicts: one for each of Afghanistan and Somalia and two in relation to South Sudan. We refer to these action plans in chronological order below. In addition, the MRM has developed a template action plan. 3.136  Afghanistan: on 30 January 2011, Afghanistan signed an action plan on the recruitment and use of children in armed conflict. The issue of killing and maiming was addressed in an annex.343 We have been unable to obtain a copy of the action plan. 3.137  Somalia: on 6 August 2012, the Transitional Federal Government of Somalia signed an action plan committing the Somalia National Army, as well as armed militia and military groups under its control, to end the killing and maiming of children.344 This was the first specific action plan on killing and maiming. The UNSC welcomed the signing of this action plan, stressed that perpetrators must be brought to justice and referred to the action plan in a number of later resolutions on Somalia.345 We note the following features of the 2012 Somalia action plan: 3.137.1  The preamble to the action plan reaffirms obligations under IHL and IHRL, referring expressly to the Geneva Conventions, Additional Protocols, the CRC and its Protocols. 3.137.2  Article 4.1(a) commits the Government and the Somali National Armed Forces ‘[t]o halt immediately the killing and maiming of children in contravention of international law’. 3.137.3  Article 5.2.4 recalls that ‘Children are especially protected under international humanitarian law, international criminal law and human rights law from acts of killing or maiming.’ 3.138  South Sudan: 3.138.1  On 24 June 2014, the Government of the Republic of South Sudan signed a deed of re-commitment to the 13 March 2012 action plan on the recruitment and use to deepen its engagement with the United Nations and my Special Representative on this issue. In this regard, I wish to note that at the time of preparation of the present report, Saudi Arabia has created a child protection unit at the coalition headquarters.’ 342 See eg South Sudan. UNSC Res 1996 (2011) referring to ‘specific time-bound commitments’. 343 UNSC, Report of the Secretary-General on children and armed conflict in Afghanistan, UN Doc S/2011/55 (3 February 2011), 15, para 58, refers to the approval of the Action Plan on prevention of the killing and maiming of children. See also SCR 1943 (2010) welcoming the establishment of the Afghan Inter-Ministerial Steering Committee on Children and the Afghan Government’s intention to develop an action plan. See also the report prepared by Ambassador Jean-Marc de la Sablière, ‘Security Council Engagement on the Protection of Children in Armed Conflict: Progress Achieved and the Way Forward’, UN Office of the Special Representative of the Secretary-General for Children Affected by Armed Conflict (15 June 2012), 20, available at . 344 Available at . 345 See UNSC Res 2067 (2012), UNSC Res 2093 (2013), UNSC Res 2124 (2013), and UNSC Res 2102 (2013).

164

Accountability Mechanisms  3.139–3.143 of children, and made the additional commitment on behalf of the Sudan People’s Liberation Army to end all grave violations against children.346 3.138.2  On 26 December 2015, the Sudan People’s Liberation Army – in Opposition – signed an action plan to prevent the recruitment and use of children and their killing and maiming.347 3.139  Template action plan: In March 2012, the MRM developed a template action plan on killing and maiming.348 Article 5.3 states, ‘Children are especially protected under international humanitarian law, international criminal law and human rights law from acts of killing or maiming.’ However, the template action plan differs from the Somalia action plan in three key respects (as set out below) and, appears to adopt a stronger IHRL perspective than the Somalia action plan: 3.139.1  First, its preamble does not expressly refer to the Geneva Conventions and the Additional Protocols; 3.139.2  Second, it does not include a definition of ‘killing’ and ‘maiming’; and 3.139.3  Third, Article 5.1 provides, ‘[a]ll measures to assure the protection from and the prevention of violations of killing and maiming of children shall be determined by the best interests of such children’. 3.140  Action plans: implementation: Detailed consideration of all steps taken to secure the implementation of action plans on killing and maiming is beyond the scope of this Chapter. We note the following by way of illustration. 3.141  Afghanistan: the UNSC used its visit to Afghanistan in 2011 to assess progress on the action plan.349 3.142  Somalia: in a number of Resolutions on the situation in Somalia, the UNSC has urged the Government to implement the action plan.350 The terms of reference for the UNSC’s visit to Somalia in 2014 reaffirmed the importance of the full implementation of the action plan.351 However, the report to the UNSC did not address this issue.352 3.143  ICRC and NGOs. In addition to the MRM, the ICRC and various NGOs play an important role in the monitoring and gathering of information regarding compliance

346 See UMISS, ‘Government of South Sudan Recommits to Action Plan to end recruitment and use of children’, 25 June 2014, available at . 347 The action plan is referred to in the Secretary-General’s 2016 annual report (n 10), para 131. We have been unable to obtain a copy. 348 Template Action Plan (12 March 2012), available at . 349 See UN News Centre, ‘Security Council team urges greater protection of children during Afghanistan visit’, 7 June 2011, available at . 350 See eg UNSC Res 2093 (2013) renewing AMISOM; UNSC Res 2124 (2013) increasing AMISOM force strength; UNSC Res 2102 (2013) establishing UNSOM; and UNSC Res 2158 (2014) renewing UNSOM’s mandate. 351 UNSC, ‘Letter dated 8 August 2014 from the President of the Security Council addressed to the SecretaryGeneral’, UN Doc S/2014/579 (8 August 2014), 4. 352 UNSC, Verbatim Record (19 August 2014), UN Doc S/PV.7245.

165

3.144–3.145  Killing and Ill-Treatment of Children with IHL rules concerning children.353 For example, Watchlist on Children in Armed Conflict regularly calls on the UNSC to condemn grave violations of children’s rights including killing and maiming.354 2.  ICL Accountability Mechanisms Adjudicative Accountability Mechanisms 3.144  Domestic courts. See above, paragraph 3.120, regarding domestic imple­mentation. 3.145  International criminal courts and tribunals. A number of international criminal courts and tribunals have adjudicated upon claims that children were killed or ill-treated. These allegations have generally been treated as part of crimes against civilians. Some examples of references to children in the jurisprudence of international criminal courts are as follows:355 3.145.1  ICTR: In Kambanda, the ICTR found that the defendant ‘was personally asked to take steps to protect children who had survived the massacre at the hospital and he did not respond. On the same day, after the meeting, the children were killed. He acknowledges that he failed in his duty to ensure the safety of the children and the population of Rwanda.’356 Kambanda was convicted of genocide, conspiracy to commit genocide, complicity in genocide, and two counts of crimes against humanity; murder and extermination. In Akayesu, the ICTR heard evidence that girls as young as 12 had been killed, and treated this as an aggravating factor.357 3.145.2  ECCC (Extraordinary Chambers in the Courts of Cambodia): In Kaing, the ECCC found that the defendant was responsible for the execution of children at the Khmer Rouge’s S-21 prison.358 3.145.3  ICTY: In Galić, the finding that the defendant had committed the war crime of terrorising the civilian population included a finding that children were specifically targeted.359 The ICTY has also treated the status of child victims as an aggravating

353 We note that the draft 1939 Convention proposed that the International Save the Children Union could play an even greater role by mediating disputes between parties to that Convention: see Art 16, draft 1939 Convention (n 117). See Annex I. 354 For a recent example see Watchlist on Children in Armed Conflict, ‘Children and Armed Conflict, Monthly Update: August 2017’, 1 calling on the UNSC to ‘[c]ondemn the use of children as human shields by the Kamuina Nsapu militia and the high number of children killed or maimed in military operations against the militia’ in the Democratic Republic of Congo. 355 The question of accountability for violations of Art II(e) of the Genocide Convention is addressed in Ch 6. 356 Prosecutor v Kambanda (Trial Chamber Judgment and Sentence), ICTR-97-23-S (4 September 1998), para 39(ix). 357 Prosecutor v Akayesu (Trial Chamber Judgment) (n 204), para 421. 358 The Trial Judgment found that ‘Children taken to S-21 were executed within the S-21 complex and at Choeung Ek. Children of a young age were typically executed immediately after being separated from their parents, though some were kept for a short period of time before being executed … In one recorded instance, confirmed by the Accused, about 160 children held at S-24 were executed’: Prosecutor v KAING Guek Eav alias Duch (Trial Chamber Judgment), 001/18-07-2007/ECCC/TC (26 July 2010), paras 214–15. 359 Galić (n 41), paras 584 (‘Even children were targeted in schools, or while playing outside, riding a ­bicycle …’), 592–93 (‘The evidence shows that the SRK attacked civilians, men and women, children and elderly in particular while engaged in typical civilian activities or where expected to be found, in a similar pattern of

166

Accountability Mechanisms  3.146 factor. In Kunarac, the Appeals Chamber affirmed that the Trial Chamber was referring to ‘the status of women and children who are specifically accorded protection under the Geneva Conventions and other IHL instruments in times of armed conflicts’ and ‘it was reasonable to conclude that the callous attacks on defenceless women merited specific assessment’.360 3.145.4  ICC: The UNSC may ‘refer’ situations, where crimes under the ­jurisdiction of the ICC appear to have been committed, to the Prosecutor of the ICC.361 This power has not been used in relation to children, including in the context of killing and ill-treatment. In the Lubanga case, the decision of the ICC Prosecutor to charge Thomas Lubanga only for crimes related to the recruitment and use of children in the DRC was criticised as overlooking the other crimes he was alleged to have committed, including killings.362 In November 2016, the Office of the Prosecutor of the ICC adopted a ‘Policy on Children’.363 We note a number of features of the Policy, which are most relevant to the killing and ill-treatment of children: (i) ‘The Office recognises that, owing to their physical and emotional development and their specific needs, treatment, potentially amounting to torture and related crimes, may cause greater pain and suffering to children than to adults. It will bear this in mind when considering whether treatment against children may amount to a crime under the Statute.’364 (ii) ‘The Office will ensure that an assessment of the impact of the alleged crimes on children is incorporated into its analysis of the gravity of potential cases.’365 (iii) ‘[C]hildren may be acutely or disproportionately affected by other crimes within the jurisdiction of the Court, including killings, mutilation, torture …’366 (iv) ‘In its submissions on sentencing, the Office will pay close attention to crimes against or affecting children, and will request a sentence which adequately reflects the seriousness of the crimes against this vulnerable group.’367 3.  IHRL Accountability Mechanisms Adjudicative Accountability Mechanisms 3.146  Domestic courts/investigations. As is the case in relation to IHL (see ­paragraph  3.120, above), states can promote accountability for violations of IHRL by conduct throughout the city of Sarajevo’) and 745 (referring to evidence that ‘snipers would kill civilians, be it women, children, elderly people, for apparently no other reason than to terrorise the population’. 360 Prosecutor v Kunarac et al (Trial Chamber Judgment), IT-96-23-T and IT-96-23/1-T (22 February 2001), paras 864, 867 and 874–75. 361 Art 13(b), Rome Statute (n 77). 362 See eg ‘Joint Letter to the Chief Prosecutor of the International Criminal Court’ dated 31 July 2006, from eight international human rights organisations, available at . 363 The Office of the Prosecutor, ‘Policy on Children’, ICC (November 2016), available at . 364 ibid, para 50. 365 ibid, para 58. 366 ibid, para 86. 367 ibid, para 101.

167

3.147  Killing and Ill-Treatment of Children incorporating their obligations within their domestic legal systems, and establishing judicial remedies. IHRL treaties sometimes expressly require domestic implementation. For example, Article 4, CRC requires that States Parties ‘shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention.’ To the extent that states recognise breaches of IHRL as breaches of domestic law, ‘hard’ accountability may be achieved through the relevant domestic courts. A review of the ways in which states have or have not met this obligation (and the effectiveness of domestic accountability mechanisms) is beyond the scope of this book. In addition, some IHRL provisions regarding the right to life and the prohibition against torture include an investigative obligation: for example Articles 2 and 3, ECHR, have been interpreted as including an obligation on the state to undertake an independent and effective investigation where there has been loss of life or ill-treatment.368 3.147  International and regional courts. We have already noted, at paragraphs 3.92 to 3.105 above, various decisions of international and regional courts applying and enforcing IHRL in the context of the right to life and the prohibition of torture and ill-treatment, including in relation to the conduct of hostilities. In addition to the cases mentioned above, we note the following examples of decisions which were specifically concerned with children: 3.147.1  IACtHR: In The Massacre of Maripirán v Colombia, the IACtHR considered the massacre of indigenous communities, including three children, during NIAC. The Court recognised that the massacre affected the child population with particular intensity.369 In The Gómez Paquiyauri Brothers v Peru, the Court considered the arbitrary detention, torture and extrajudicial killings of two children during a situation in Peru that it classified as a NIAC.370 Similarly, Molina Theissen v Guatemala concerned a case of enforced disappearance of a 14 year-old during the civil war in Guatemala.371 3.147.2  ECtHR: Behrami v France concerned an alleged violation of the right to life brought on behalf of the father of a child who was killed by landmines dropped by NATO in Kosovo in 1999. The application was held to be inadmissible due to the attributability of conduct to the UN, rather than the respondent State.372 3.147.3  Finally, in relation to the ICC, we note that the ICC Prosecutor’s Policy on Children expressly takes account of IHRL and provides that the Rome Statute will be interpreted and applied consistently with IHRL. It states, in relevant part, ‘the Office accords particular consideration to pertinent provisions of the [CRC] and relevant jurisprudence … Reference may also be made to a range of other … [IHRL] sources. 368 As to the investigative obligation under Art 2, ECHR see Ch 2, paras 2.141 to 2.142. As to the corresponding investigative obligation under Art 3, ECHR see, eg, Khashiyev and Akayeva v Russia (2006) 42 EHRR 20, paras 174–80; Isayeva v Russia (n 260), para 227. 369 Case of the ‘Maripirán Massacre’ v Colombia (Merits, Reparation and Costs Judgment), Inter-American Court of Human Rights Series C No 134 (15 September 2005), para 160. 370 Case of the Gómez Paquiyauri Brothers v Peru (Merits, Reparation and Costs Judgment), Inter-American Court of Human Rights Series C No 110 (8 July 2004). 371 Case of Molina Theissen v Guatemala (Merits, Reparation and Costs Judgment), Inter-American Court of Human Rights Series C No 106 (4 May 2004). 372 Behrami v France, Saramati v France, Germany and Norway, Decision on Admissibility, (2007) 45 EHRR SE10.

168

Accountability Mechanisms  3.148–3.150 Accordingly, the Office will: [e]nsure that it continues to interpret and apply the Statute in line with internationally recognised human rights and other sources of law described in article 21, including those relating to children.’373 3.148  Treaty bodies. The various bodies established under IHRL treaties (discussed at Chapter 2, paragraphs 2.150 to 2.153) perform a range of functions, including the resolution of complaints, inquisitorial and monitoring roles. These treaty bodies have had very limited engagement with the killing and ill-treatment of children (other than children associated with armed forces or armed groups as to which see Chapter 4). For example: 3.148.1  CRC Committee: As noted above, the CRC Committee has given little consideration to the application of the CRC during armed conflict, including Article 38, in its General Comments. It has not considered any individual communications alleging breach of that provision under OP3 because only a small number of states have ratified OP3. 3.148.2  ACERWC: One of the objectives of the ACERWC 2016 Continental Study was to ‘[a]ssess the role of children as victims and witnesses to gross violations, including killings [and] maimings’.374 The Continental Study recalled that the killing and maiming of children has been reported in CAR, Somalia and South Sudan.375 The ACERWC has generally not addressed the question of killing and maiming of children in its recommendations and conclusions on the reports of State Parties to the ACRWC. Other Accountability Mechanisms 3.149  Some IHL accountability mechanisms are equally applicable in the context of IHRL, for example the UNSC and the MRM: see above, paragraphs 3.123 to 3.142. B.  Problems and Deficiencies in Accountability Mechanisms 3.150  General problems and deficiencies in existing adjudicative accountability mechanisms are considered in Chapter 9. The most important ones in the context of this Chapter are the limited ratification of OP3 and of the Rome Statute. Only 35 States are Parties to OP3, and one of these (Monaco) has declared that it does not recognise the competence of the CRC to conduct inquiry procedures.376 The CRC Committee is an important accountability mechanism but it is, as a result of the limited ratification of OP3, severely under-used. The overwhelming number of non-States Parties include almost all countries currently affected by armed conflict. For example, of the 11 States affected by conflict situations which are currently on the agenda of the Security Council and listed in Annex I of the Secretary-General’s 2014–2017 reports for the grave violation 373 ICC, Policy on Children (n 363), para 36. 374 ACERWC Continental Study, 6, s 1.2. The Study is available here: . 375 ibid, 28 and 75 to 77. 376 See the table of signatures and ratifications on the United Nations website available at .

169

3.151–3.153  Killing and Ill-Treatment of Children of killing and m ­ aiming children, none are parties and only one State (Mali) has even signed OP3.377 Similarly, in relation to the Rome Statute, only four of those 11 States (Afghanistan, CAR, DRC and Mali) are parties.378 We consider this further in Chapter 9. 3.151  We also note two specific problems in relation to other accountability mechanisms in the context of the issues considered in this Chapter. These are as follows. 3.152  The use of targeted sanctions by the UNSC appears to be inconsistent. As outlined above, paragraph 3.128, the use of sanctions in connection with the killing and ­ill-treatment of children appears to have been inconsistent. While the DRC and South Sudan committees have made use of this listing criteria, as one of a number of reasons, the same is not true of the Somalia/Eritrea committee. This is so notwithstanding the fact that Al-Shabaab, which has been listed for other reasons, is included, as part of the MRM, in Annex I of the Secretary-General’s 2016 and 2017 reports on children and armed conflict and has not signed an action plan.379 Most of the listings were made before the 2009 introduction of killing and maiming children as a criterion for listing in Annex I of the Secretary-General’s annual reports, but the earlier listings do not appear to have been revisited with a view to adding this as a further reason for designation in light of continued killing and maiming of children. The question whether targeted sanctions are an effective means of achieving accountability is beyond the scope of this book.380 However, insofar as sanctions are to be properly regarded as an effective means of enforcement, consideration should be given to whether their use, as a means for securing accountability for the killing and maiming of children, could be made more consistent and systematic. 3.153  Second, mismatch between MRM definitions and action plans. The definitions of ‘killing’ and ‘maiming’ in the MRM Field Manual have not been incorporated into all specific action plans (as to which see above, paragraphs 3.131 to 3.142). This may undermine the need for consistency and certainty in standard-setting. For example, the following italicised text of the definitions in the 2012 Somalia Action Plan381 indicates text which is not included the MRM Field Manual: 3.153.1  ‘Killing’ means ‘any action that results in the death of one or more persons under the age of 18 years, where the perpetrator belonged to [the State or a non-state entity under Government control]. The conduct took place in the context of and was associated with an armed conflict. This includes but is not limited to extrajudicial (outside the legal process), summary (spot decision), arbitrary (without due process) or indiscriminate killings.’382

377 See the list of relevant states at n 8–11 above. Mali signed OP3 on 28 February 2012. 378 Afghanistan deposited its instrument of accession on 11 February 2003; CAR deposited its instrument of ratification on 3 October 2001; DRC deposited its instrument of ratification on 11 April 2002; and Mali deposited its instrument of ratification on 16 August 2000. 379 See para 3.134 and (n 341) above. 380 An assessment of the effectiveness of sanctions is outside the scope of this book. However, we note that the Secretary-General’s 2012 annual report on children and armed conflict stated, without reference to supporting evidence, that: ‘The threat of sanctions sends a powerful signal to parties that perpetrate grave violations, and has contributed to greater compliance with the Security Council agenda on children and armed conflict’: see UNGA/UNSC, ‘Report of the Secretary-General on children and armed conflict’, UN Doc A/66/782-S/2012/261 (26 April 2012), para 220. 381 Somalia Action Plan (n 344). 382 ibid, Art 2.8 (emphasis added).

170

Conclusion and Summary  3.154–3.158 3.153.2  ‘Maiming’ means ‘the intentional or indiscriminate cause of permanent or disabling injury, scarring and/or defacing, or mutilation to one of more persons under the age of 18 years’.383 C.  Suggestions to Improve Accountability Mechanisms 3.154  We make three suggestions to improve the problems identified above. In addition, and as developed in Chapter 9, in relation to our suggestion of one new instrument, the role of the CRC Committee could be enhanced to provide accountability. 3.155  First, we suggest that it is necessary, in order to enable greater use of the existing powers of the CRC Committee, to encourage wider ratification of OP3. Greater ratification of OP3, particularly by conflict affected states would assist in strengthening the accountability mechanisms available to child victims of violations of Article 38, CRC. Similarly, we suggest that it is necessary to encourage wider ratification of the Rome Statute, to enable prosecutions to be brought regarding the killing and ill-treatment of children. 3.156  Furthermore, we suggest: 3.156.1  Greater consistency in UNSC resolutions. Where applicable, there should be consistent use of the designation criteria of killing and maiming children for targeted sanctions. The UNSC and the Special Representative for Children and Armed Conflict could encourage the relevant sanctions committees to consider using this designation criteria for those entities that are, or are to be, listed in the Secretary-General’s annual report on children and armed conflict. Consideration could be given to adding to the designation criteria for existing (or new) sanctions committees concerning the killing and maiming of children during armed conflict. 3.156.2  Consistency between the MRM and action plans. Consistent use should be made of a standard definition of ‘killing’ and ‘maiming’ in the MRM Field Manual, the Template Action Plan and specific action plans. IV.  CONCLUSION AND SUMMARY

3.157  In conclusion, the main recommendations of this Chapter can be summarised as follows. 3.158  Recommendations on legal framework: • General points on IHL: (1) The international humanitarian law (IHL) legal framework is scattered and complex. This diminishes its effectiveness. It is likely to be particularly difficult for non-state armed groups and victims to navigate this framework since they are less likely to benefit from access to the expert legal advice and representation

383 ibid,

Art 2.9 (emphasis added).

171

3.158  Killing and Ill-Treatment of Children that is available to the armed forces of states. Consideration should, therefore, be given to the collection, codification and consolidation of IHL rules. The purpose of collecting and codifying, re customary international law (CIL) the law would be to make the legal framework easier to identify and understand. Consolidation could be undertaken where, for example, the same or similar rules exist in international armed conflict (IAC) and non-international armed conflict (NIAC). Having the legal framework in one instrument could improve accountability – one entity could be given jurisdiction to interpret and apply the provisions. (2) Additional Protocol I (API) and Additional Protocol II (APII) have not been universally ratified. Universal ratification of API and APII should be encouraged. This would assist in strengthening the protection of children since those instruments contain more detailed provisions than the Fourth Geneva Convention (GCIV) and CIL. Alternatively, parties to armed conflict should be encouraged to declare that the relevant provisions of API and APII reflect customary international law. • IHL and the conduct of hostilities: (1) IHL regarding the conduct of hostilities contains no special consideration of children. The law could be developed so as to require the express consideration of children in the application of the principles of proportionality and precautionary measures. The position of children could be specified as an express factor that needs to be given weight and considered in evaluating proportionality, for ­example in military manuals. Similarly, the requirement to take all ‘feasible’ precautions could involve express and heightened standards for children. Any such development must be carefully considered to avoid potentially adverse ramifications. • IHL and the treatment of persons: (1) The general provisions regarding the position of children are different under API, APII and CIL and inadequately particularised. The law should be clarified or developed by standardising and particularising the special treatment provisions (Article 77, API; Article 4(3), APII and ICRC, CIL Rule 135). Consideration should also be given to whether ‘children’ could be defined so as to include all persons aged 18 and under. (2) Some of the other specific IHL provisions protecting children are arguably inadequate. For example, in relation to removal and evacuation there is no express prior obligation to search for, and collect, children and there is no provision for arrested, detained or interned children to be given priority in having their cases determined. These provisions could be developed by reference to the special treatment provisions, for example by recognising an obligation to search for children and collect them by removing them from the immediate theatre of hostilities and by requiring that arrested, detained or interned children should have their cases considered as a matter of priority. • ICL: the existing framework of international criminal law (ICL) does not require revision in order to further protect children from killing and ill-treatment but consideration could be given to whether the law should be developed so that the definition

172

Conclusion and Summary  3.159 of ‘war crimes’ in the Rome Statute includes specific violations of the care and aid provisions (Article 77(1), API; Article 4(3), APII). • IHRL (international human rights law): (1) It is unclear whether all of the Convention on the Rights of the Child (CRC) applies in armed conflict and, if it does not, to what extent it so applies. This lack of clarity is unhelpful since it makes it harder to identify the applicable law. In the context of killing and ill-treatment it means there is ambiguity as to whether Articles 6 and 37 apply or whether Article 38 alone applies (displacing Articles 6 and 37). This is especially significant given the different thresholds of protection in Article 6 (‘maximum extent possible’) and Article 38(4) (‘all feasible measures’). The law should be clarified or developed by a reconsideration of the scope of application of the CRC in armed conflict. This could be done by the CRC Committee issuing a General Comment on, for example, Article 38 alone or on the applicability of other CRC provisions during armed conflict. (2) If Article 38 does displace the other provisions of the CRC during armed conflict, the ‘feasible’ standard set by Article 38(4) CRC entails a lower degree of protection for children than IHL. The law could be developed by strengthening the ‘feasible’ standard in Article 38(4), CRC (and Article 22(3), African Charter on the Rights and Welfare of the Child) in order to make them consistent with the IHL standards to which they expressly refer. 3.159  Recommendation on international adjudicative mechanisms: • The CRC Committee is an important accountability mechanism but it is, as a result of the limited ratification of the Optional Protocol to the CRC on a Communications Procedure (OP3), severely under-used. The overwhelming number of non-States Parties include almost all countries currently affected by armed conflict. The Rome Statute is similarly under-ratified. It is necessary, in order to make proper use of the existing powers of the CRC Committee and the International Criminal Court (ICC), to encourage wider ratification of OP3 and of the Rome Statute. • The use of targeted sanctions by the UN Security Council could be made more consistent. Where applicable, there should be consistent use of the designation criteria of killing and maiming children for targeted sanctions. • The definitions of ‘killing’ and ‘maiming’ in the Monitoring and Reporting Mechanism (MRM) Field Manual have not been incorporated into all specific action plans which may undermine the need for consistency and certainty in standard-setting. Consistent use should be made of a standard definition of ‘killing’ and ‘maiming’ in the MRM Field Manual, the Template Action Plan and specific action plans.

173

4 Recruitment and Use of Children ‘The forced recruitment and use of child soldiers is one of the most appalling human rights abuses in the world today.’1

I. Introduction II. Legal Framework A. International Humanitarian Law 1. The Legal Framework 2. Problems and Deficiencies in the Legal Framework 3. Suggestions to Improve the Legal Framework B. International Criminal Law 1. The Legal Framework 2. Problems and Deficiencies in the Legal Framework 3. Suggestions to Improve the Legal Framework C. International Human Rights Law 1. The Legal Framework 2. Problems and Deficiencies with the Legal Framework 3. Suggestions to Improve the Legal Framework III. Accountability Mechanisms  A. Application of Accountability Mechanisms 1. IHL Accountability Mechanisms 2. ICL Accountability Mechanisms 3. IHRL Accountability Mechanisms B. Problems and Deficiencies in Accountability Mechanisms C. Suggestions to Improve Accountability Mechanisms IV. Conclusion and Summary

174 176 176 176 186 190 191 191 199 201 202 202 210 211 213 214 214 220 223 226 229 230

I. INTRODUCTION

4.1  Children associated with armed forces or armed groups because of their recruitment or use, are one of the most striking examples of how armed conflict can affect 1 Secretary-General Ban Ki-moon, Statement, 12 February 2009, SG/SM/12098. Available at . All websites referred to in this Chapter were accessed between June–September 2017.

174

Introduction 4.2–4.4 children. Images of armed children are a regrettably common feature of modern conflict, although it is difficult to estimate the numbers of affected children worldwide with any certainty.2 Profligate use of children (cf recruitment, which raises different issues) is often a signal, like the proverbial ‘canary in the coal mine’, that parties to armed conflict are prepared to dispense with observing basic rules of international law. Unsurprisingly, the practice has attracted universal condemnation and enormous media attention – yet still it persists. 4.2  The recruitment and use of children has also been scrutinised by academic and policy commentators including in relation to the following questions: how to define and estimate the number of such children; why children become ‘soldiers’; how to end their supply and demand; how to punish those that recruit and use children; whether to punish such children themselves and how to rehabilitate them. 4.3  Despite the high-profile nature of the issue, it has been difficult to eliminate the recruitment and use of children in conflict. There are numerous reasons for this, including cultural considerations, military strategic exigencies, economic demands and the ease with which some weapons may be used by children. Children may continue to join armed groups for a variety of reasons, including because doing so affords them relative power and influence or because it is the ‘least worst’ of available survival options in a dangerous environment. There are also legal reasons for the difficulty in eliminating recruitment and use. 4.4  This Chapter is structured as follows: 4.4.1  Part II addresses the substantive legal framework. International humanitarian law (IHL), international criminal law (ICL) and international human rights law (IHRL) are addressed in turn in Sections A, B and C. Each section describes the key provisions of the law, identifies problems and deficiencies with those rules, and makes recommendations as to how the law might be improved. 4.4.2  Part III addresses the accountability mechanisms for implementation and enforcement of the law, focussing on adjudicative accountability. Section A addresses the application of accountability mechanisms under each of IHL, ICL and IHRL. Section B addresses problems and deficiencies in the existing accountability mechanisms, and Section C offers a suggestion for improvement. 2 For most of the past two decades, the most common estimate was 300,000, see, eg, UNGA, ‘The Machel Review 1996–2000: A Critical Analysis of Progress Made and Obstacles Encountered in Increasing Protection for War-Affected Children’ (26 January 2001) UN Doc A/55/749 ; Rachel Brett, ‘Contribution for Children and Political Violence’ in World Health Organization, ‘WHO Global Report on Violence – Child Soldiering: Questions and Challenges for Health Professionals’ (May 2000) 1; Siddharth Chatterjee, ‘For Child Soldiers, Every Day Is A Living Nightmare’ Forbes (9 December 2012) . However, that figure has been challenged: see Glenn Kessler, ‘The zombie claim that 300,000 children are used as child soldiers’ The Washington Post (Washington, DC, 22 January 2016) . Child Soldiers International now states, ‘It is not known how many children are involved with state and non-state militaries worldwide, but the number is believed to be in the tens of thousands and may be more than a hundred thousand’: Child Soldiers International, ‘How many children are used for military purposes worldwide?’ (Child Soldiers International) .

175

4.5–4.6  Recruitment and Use of Children II.  LEGAL FRAMEWORK

A.  International Humanitarian Law 1.  The Legal Framework Overview 4.5  As explained in Chapter 2, IHL is the primary source of law applicable in armed conflict. The relevant provisions of IHL that are applicable depend on the nature of the armed conflict in question, ie whether it is an international armed conflict (IAC) or noninternational armed conflict (NIAC). 4.6  By way of overview: 4.6.1  The provisions applicable in IAC: (i) Article 50, GCIV: The Fourth Geneva Convention (GCIV) addresses the ­recruitment and use of children. However, it does so in a limited way, namely that Article 50 only addresses the obligations of an occupying power in respect of a civilian population (including children). (ii) Article 77(2), API: Additional Protocol I (API) addresses, in Article 77(2), the recruitment and use of children during IAC, including in situations other than occupation. Also notable is Article 77(3) which provides that if, in exceptional cases and despite Article 77(2), children under 15 take a direct part in hostitilies and fall into the power of an adverse Party, they shall continue to benefit from the special protection accorded by Article 77, whether or not they are prisoners of war. (iii) CIL: The International Committee of the Red Cross (ICRC) study on customary IHL3 has identified two rules of customary international law (CIL) that address the recruitment and use of children in both IAC and NIAC. These are ICRC, CIL Rules 136 and 137.4 4.6.2  The provisions applicable in NIAC: (i) Article 4(3)(c), APII: Additional Protocol II (APII) addresses, in Article 4(3)(c), the recruitment and use of children during NIAC, as defined in APII (and which we refer to as NIAC (APII)). Also notable is Article 4(3)(d) which states that the special protection provided by Article 4(3) to children under 15 shall remain applicable to them if they take a direct part in hostilities despite the provisions of Article 4(3)(c).

3 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law: Volume 1: Rules (Cambridge, CUP, 2005, reprinted with corrections 2009) (hereafter ICRC Study on Customary IHL). There is a question as to whether these rules are exclusively rules of IHL, since the authors of the ICRC study also took into account IHRL in deciding what rules of CIL could be derived: see Gus Waschefort, International Law and Child Soldiers (Oxford, Hart Publishing, 2015) 101–02. 4 ICRC Study on Customary IHL, 482–88. We use this notation (ICRC, CIL Rule [X]) to refer to rules in the ICRC Study on Customary IHL.

176

Legal Framework  4.7–4.11 (ii) CIL: As noted above, ICRC, CIL Rules 136 and 137 are generally applicable in NIAC as well as IAC. 4.7  In general, these provisions address two broad categories of prohibited conduct. The first relates to the recruitment of children. The second relates to their participation in hostilities. However, there are material differences in the scope of protection provided pursuant to each provision. In order to explain those differences, we consider the provisions in turn as follows: 4.7.1  the provisions only applicable during IAC (Article 50, GCIV and Article 77(2), API); 4.7.2  the provision applicable during NIAC (Article 4(3)(c), APII); and 4.7.3  the provisions applicable during both IAC and NIAC (ICRC, CIL Rules 136 and 137). IAC: Article 50, GCIV 4.8  Article 50, GCIV provides in relevant part: The Occupying Power shall take all necessary steps to facilitate the identification of children and the registration of their parentage. It may not, in any case, change their personal status, nor enlist them in formations or organisations subordinate to it.

4.9  Article 50 therefore contains a prohibition on an Occupying Power ‘enlisting’ children in ‘formations or organisations’ subordinate to the Occupying Power. The principal terms and concepts in the provision are analysed below. 4.10  Children: GCIV does not define ‘children’ for these purposes. Commentators have expressed different views on whether a child is a person under the age of 15 years5 or a person under the age of 18 years.6 We consider that there is a strong argument that, at least for the purposes of Article 50, the category of children is not limited to those under the age of 15. This is because Article 50 itself contains other provisions specifically addressing the position of ‘children under fifteen years’.7 The use of that description would have been unnecessary if the category of children was already limited only to those under the age of 15 years. 4.11  Enlisting: There is little interpretive guidance on the meaning of enlistment in relation to Article 50. The concept is discussed in further detail below, at ­paragraphs 4.71–4.73, in the context of the relevant ICL prohibitions on the enlistment and conscription of children.

5 Jean S Pictet (ed), ‘Commentary: IV Geneva Convention Relative to the Protection of Civillian Persons in Times of War 1949’ (Ronald Griffin and CW Dumbleton tr, ICRC 1958) 395, available at . This is referred to hereafter as the 1958 ICRC Commentary on GCIV. 6 See, eg, Waschefort (n 3), 55. 7 Art 50 provides in relevant part: ‘The Occupying Power shall not hinder the application of any preferential measures in regard to food, medical care and protection against the effects of war, which may have been adopted prior to the occupation in favour of children under fifteen years, expectant mothers, and mothers of children under seven years’ (emphasis added).

177

4.12–4.15  Recruitment and Use of Children 4.12  However, some useful context is provided by Article 51, GCIV. This provision does not concern children directly but addresses a broader category of ‘protected persons’.8 Article 51 provides in relevant part: The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted. The Occupying Power may not compel protected persons to work unless they are over eighteen years of age … Protected persons may not be compelled to undertake any work which would involve them in the obligation of taking part in military operations … In no case shall requisition of labour lead to a mobilization of workers in an organization of a military or semimilitary character.9

4.13  Against this background, for the purposes of Article 50, it seems that enlistment ought to include both voluntary enlistment and any form of compelled enlistment. This is for three reasons. First, Article 50 contains no reference to compulsion (unlike Article 51). Second, the drafters of GCIV recognised a concept of voluntary enlistment (which they used in Article 51) but chose not to frame Article 50 in terms of voluntary enlistment alone.10 Third, the obligation of the Occupying Power, which is not to enlist, appears to be a strict obligation as to an outcome and does not, as a matter of language, require any enquiry into the reasons why a child might seek to enlist, including the extent of compulsion involved. 4.14  Formations or organisations: It is likely that ‘formations or organisations’ subordinate to the Occupying Power would include not only the armed forces of the Occupying Power but also other organisations, such as state-sponsored youth movements. Indeed, it has been suggested that Article 50 should be understood to reflect concerns that had arisen in the context of the Nazi occupation of Europe during the Second World War and the establishment of ideology-based youth movements in occupied territories.11 IAC: Article 77(2), API 4.15  Article 77(2), API: API addresses the position of ‘child soldiers’ during IAC more generally than Article 50 GCIV including in situations other than occupation. Article 77(2) provides: The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they 8 Protected persons are defined in Art 4 GCIV as those ‘who, at any given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals’. This category does not encompass nationals of a State which is not bound by GCIV or nationals of a neutral State or co-belligerent State where normal diplomatic representation has been maintained with the belligerent State. 9 Emphasis added. 10 As the 1958 ICRC Commentary on GCIV explains, regarding Art 51, the Diplomatic Conference appears to have made a conscious decision to extend the obligations of an Occupying Power to include a prohibition on voluntary enlistment: (n 5), 292–93. Art 23 of the Hague Regulations had only prohibited the forced participation of nationals of the hostile party in operations of war directed against their own country. The breadth of the second sentence of Art 51 proved to be controversial, but a proposal that it be deleted was rejected: see ‘Final Record of the Diplomatic Conference of Geneva of 1949’ Vol II-A, 665 and 776–77. 11 See, eg, Matthew Happold, Child Soldiers in International Law (Manchester, Manchester University Press, 2005) 56.

178

Legal Framework  4.16–4.19 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.

4.16  Article 77(2) therefore contains two broad categories of obligations. The first category relates to the participation of children in hostilities. The second relates to their recruitment. Parties to the conflict are required: 4.16.1  To take ‘all feasible measures’ in order that children under the age of 15 years do not take a ‘direct part’ in hostilities; and 4.16.2  To refrain from ‘recruiting’ children under the age of 15 years into their ‘armed forces’. In recruiting those under the age of 18 years they are to ‘endeavour to give priority’ to those who are oldest. 4.17  The concepts used in Article 77(2) are discussed below. However, it is instructive to consider the context in which Article 77(2) was adopted. Article 77(2), as adopted, is materially narrower than the provision which the ICRC submitted for adoption to the diplomatic conference at which API was discussed. The ICRC’s draft stated, ‘The Parties to the conflict shall take all necessary measures in order that children aged fifteen or under shall not take any part in hostilities and, in particular they shall refrain from recruiting them in their armed forces or accepting their voluntary enlistment’.12 It was envisaged that: 4.17.1  The provision should also provide protection to children who had attained the age of 15 years rather than applying only to those under the age of 15 years; 4.17.2  In respect of participation in hostilities, a standard of ‘all necessary measures’ (rather than ‘all feasible measures’) should apply, and children should not take ‘any part’ in hostilities (rather than a ‘direct part’), and 4.17.3  In respect of recruitment, ‘voluntary enlistment’ would be prohibited in addition to the practice of recruitment (in so far as this was considered to be a different concept). 4.18  There is no formal record of the negotiating history of Article 77(2), but it could reasonably be inferred that the ICRC’s proposal was revised with a view to offering narrower protection in the interests of reaching a politically acceptable compromise.13 4.19  Participation in hostilities and feasible measures: There are three key points here. First, Article 77(2) only requires parties to take all feasible measures in order that children do not participate directly in hostilities. It is an obligation that relates to the conduct of the Party rather than to the result that is to be achieved. In other words, Article 77(2) appears to recognise that even though a Party has taken all feasible measures, a child under the age of 15 years may nevertheless end up participating directly in hostilities. In such circumstances, the Party will not violate Article 77(2).

12 See further Happold, ibid 60. 13 The negotiation of that provision was assigned to Committee III of the conference, which set up a Working Group to discuss it. There are no records of the discussions in the Working Group, save for the Rapporteur’s report of the work. The Rapporteur indicated that the text of Art 77(2) was the result of a compromise which was in many respects not satisfactory to all of the negotiating parties. For further consideration of the drafting process, see Happold (n 11), 60.

179

4.20–4.22  Recruitment and Use of Children 4.20  Second, Article 77(2) does not define what is meant by a ‘feasible measure’. The only example of a feasible measure provided for in the language of Article 77(2) is for the Party ‘in particular’ to refrain from recruiting children into its armed forces. Given that the particular obligation to refrain from recruiting children appears on its face to be unqualified, it is arguable that refraining from recruiting children will always be considered a feasible measure for the purposes of Article 77(2).14 4.21  Third, and as a consequence of the second point, there is considerable debate as to what else constitutes a feasible measure: 4.21.1  The ICRC’s commentary on Article 77(2) cross-refers to the use of similar language in Article 76(3) of API, which provides for parties to the conflict to take steps ‘to the maximum extent feasible’.15 In the context of Article 76(3) the commentary indicates that the word ‘feasible’ should be understood as meaning ‘capable of being done, accomplished or carried out, possible or practicable’.16 4.21.2  Declarations made by a number of the signatories to API indicate that in their understanding the word ‘feasible’ should also take account of all relevant circumstances, including military considerations. For example, the declaration made by the United Kingdom states that it ‘understands the term “feasible” as used in the Protocol to mean that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations’.17 4.21.3  Perhaps the most controversial issue is the extent to which a Party may rely on the need to achieve success in a military operation to argue that a particular measure is not feasible. Some commentators take the view that success in military operations is relevant to whether a measure is feasible on the basis that this reflects the understanding at the time Article 77(2) was agreed to.18 Other commentators argue that such a construction is likely to deprive the obligation of value as it is likely to widen substantially the discretion of parties in deciding whether a measure is feasible.19 It also puts military success above the interests of children. 4.22  ‘Direct participation’ in hostilities: There are differing views on the meaning of direct participation for the purposes of Article 77(2).

14 See further, Waschefort (n 3), 61–62. 15 See Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (The Hague and Geneva, ICRC and Martinus Nijhoff, 1987), para 3184 (hereafter ICRC Commentary on the AP). Art 76(3) states: ‘To the maximum extent feasible, the Parties to the conflict shall endeavour to avoid the pronouncement of the death penalty on pregnant women or mothers having dependent infants, for an offence related to the armed conflict. The death penalty for such offences shall not be executed on such women.’ See also Art 57(2)(a)(i) API which refers to an obligation to ‘do everything feasible’. 16 See ICRC Commentary on the AP, ibid para 3171. 17 Declaration of the United Kingdom of Great Britain and Northern Ireland to API (2 July 2002), available at . 18 See, eg, Michael Bothe, Karl Josef Partsch and Waldemar A Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 1st edn (The Hague, Martinus Nijhoff, 1982) 372–73. 19 Waschefort (n 3), 62.

180

Legal Framework  4.23–4.24 4.23  By way of context, the concept of ‘direct participation in hostilities’ is also used elsewhere in IHL to define the ‘principle of distinction’: see Chapter 3, paragraph 3.23ff. This principle provides that civilians generally enjoy immunity from attack during an armed conflict (whether IAC or NIAC) as long as they do not take a direct part in ­hostilities.20 Even in this context, there is no comprehensive definition of direct participation in hostilities: 4.23.1  The ICRC Study on Customary IHL notes, ‘A precise definition of the term “direct participation in hostilities” does not exist’21 and, so far as concerns State practice ‘outside the few uncontested examples cited above, in particular use of weapons or other means to commit acts of violence against human or material enemy forces, a clear and uniform definition of direct participation in hostilities has not been developed in State practice’.22 4.23.2  The ICRC has, however, offered Interpretive Guidance on the concept of direct participation in hostilities and made recommendations on how the concept should be defined. It recommends a relatively narrow construction: V.  Constitutive Elements of Direct Participation in Hostilities In order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria: 1.  the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury or destruction on persons or objects protected against direct attack (threshold of harm), and 2.  there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and 3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus) … VI.  Beginning and End of Direct Participation in Hostilities Measures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of that act.23

4.24  In the context of the principle of distinction, this narrow construction of direct participation in hostilities has the effect of increasing the protection available to civilians, since only a narrower range of acts will result in a loss of immunity. However, for the purposes of Article 77(2), the position is quite different. The more narrowly the concept of direct participation is defined, the greater the potential for parties lawfully to employ

20 In respect of IAC, see Art 51(3), API. In respect of NIAC, see Art 13(3), APII. 21 ICRC Study on Customary IHL, 22. 22 ibid, 23. 23 Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (ICRC, 2009) 16–17 (emphasis added), available at .

181

4.25–4.27  Recruitment and Use of Children children to participate indirectly in hostilities.24 So, for example, it may lead to the lawful use of children in the transportation of food and other supplies. 4.25  For this reason, some commentators have favoured a broad construction of the concept in the context of Article 77(2).25 In particular, the ICRC’s commentary on ­Article 77(2) suggests that although the language of ‘direct’ participation has been used, Article 77(2) should be construed so that parties are not permitted to require children to participate indirectly in hostilities either. The commentary conceives of indirect participation as including ‘in particular, gathering and transmission of military information, transportation of arms and munitions, provision of supplies …’. The reason given for this proposed construction of Article 77(2) is that ‘The intention of the drafters of the article was clearly to keep children under fifteen outside armed conflict …’.26 4.26  Other commentators have argued that this broad construction cannot be derived from the application of the principles of treaty interpretation. They have contended that Article 77(2) should be interpreted and applied so as not to extend to the indirect participation of children in hostilities.27 The reasons for construing Article 77(2) in this way include the following: (i) the language of Article 77(2) is expressly limited to direct participation; (ii) there is no proper basis for making inferences about the presumed intention of the drafters other than by reference to the language of Article 77(2) (especially since it appears to embody a compromise); and (iii) the potential implications of a broader construction for the immunity of children involved in conflict. So, for example, one implication of a broader construction may be that children involved only in the transportation of food and other supplies, who would ordinarily retain civilian immunity, may become legitimate targets for opposing forces because they are to be treated as participating directly in hostilities. 4.27  Recruitment of children: There is continuing debate about whether recruitment for the purposes of Article 77(2) includes only a practice that involves some force or compulsion of the child, or whether it also encompasses acceptance of voluntary steps taken by a child to enlist in armed forces.28

24 Reconciling protections for ‘child soldiers’ with the principle of distinction has long been a concern for the drafters of instruments of IHL. For example, the draft convention produced by the Bolivian Red Cross in preparation for the Preliminary conference of the Red Cross Societies for the study of conventions and issues related to the Red Cross, held in Geneva in July 1946, addressed this issue in draft article 5. This provided that no children under the age of 14 should be ‘… considered as enemies or prisoners, or subjected to retaliation or persecution of any kind …’ and that ‘[s]imilarly, no child of this age may be employed or used, even temporarily, in any industry or activity of war, whether it is a principal or auxiliary industry or activity’. See Annex II. 25 See, eg, Alison Dundes Renteln, ‘The Child Soldier: The Challenge of Enforcing International Standards’ (1999–2000) 21 Whittier LR 191–205. Renteln argues that Art 77(2) ‘prohibits all types of child involvement in armed conflict’ at 193. 26 ICRC Commentary on the AP (n 15), para 3187. 27 See, eg, Hans-Joachim Heintze and Charlotte Lülf, ‘Special Rules on Children’ in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (Oxford, OUP, 2015) 1302, para 36 where they suggest that ‘children may be involved in transporting of weapons and munitions, as well as in the collection of information by reconnaissance missions, and these actions are not covered …’ by Art 77(2). 28 That debate is rendered academic if and in so far as it is accepted that a child is not capable of enlisting voluntarily so that any recruitment of a child is necessarily a form of compulsory recruitment.

182

Legal Framework  4.28–4.31 4.28  It has been suggested that on its plain meaning the term recruitment ‘implies some active soliciting of “recruits”, ie to pressure or induce them to enlist: it is not synonymous with “enlistment”’.29 That interpretation is supported, to some extent, by the fact that the drafters of Article 77(2) appear to have chosen not to prohibit expressly the ­acceptance of voluntary enlistment, when it was initially proposed that they should do so.30 The ICRC’s commentary states, ‘Committee III noted that sometimes, especially in occupied territories and in wars of national liberation, it would not be realistic to totally prohibit voluntary participation of children under fifteen’.31 The reluctance to refer to any form of voluntary enlistment might also reflect the variety of different ages at which states recognised that a person was capable of exhibiting genuine volition and consenting in the same way as an adult. 4.29  Other commentators take the view that the term ‘recruitment’ does in fact include voluntary enlistment. Indeed, it has been asserted that this also reflects the plain meaning of the term,32 presumably on the basis that even a person who has voluntarily enlisted for service can still be said to have been recruited into the armed forces. A construction of recruitment that includes voluntary enlistment is also suggested to better reflect the object and purpose of API, which is to protect civilians from the effects of armed conflict. 4.30  Recruitment and armed forces: The prohibition on recruitment applies only in respect of recruitment into the armed forces of a Party. Article 43(1), API provides: The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognised by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.33

The definition of armed forces therefore encompasses armed groups that may not necessarily represent the principal armed forces of the state so long as the requirements of organisation, command and responsibility are met.34 4.31  Endeavour to give priority: The word ‘endeavour’ is synonymous with ‘try’. It may, therefore, be sufficient for a Party to show it has taken steps to ‘try’ to give priority to older children, even if those steps have been unsuccessful in practice. Thus, the obligation to ‘endeavour’ to give priority to older children connotes a weaker obligation than that to take all feasible measures. In practice, moreover, it is unclear how it may be established that a Party has failed to endeavour to give priority to older children in its recruitment practices. 29 Prosecutor v Sam Hinga Norman, Appeals Chamber, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), SCSL-2004-14-AR72(E) (31 May 2004), Dissenting Opinion of Justice Robertson, para 27. 30 Contrast also Art 3(1) of the Optional Protocol on Armed Conflict to the Convention on the Rights of the Child, which addresses the practice of ‘voluntary recruitment’. 31 ICRC Commentary on the AP (n 15), para 3184. For the Rapporteur’s account, see OR XV, p 465, GDDH/407/Rev. 1, para 63. 32 See, eg, Happold (n 11), 65: the term recruitment ‘covers both voluntary enlistment and conscription into a state’s armed forces’. 33 Emphasis as in original. 34 See further the definition of ‘armed forces’ stated in ICRC, CIL Rule 4: see ICRC Study of Customary IHL, 14–17. See also Waschefort (n 3), 71.

183

4.32–4.34  Recruitment and Use of Children NIAC: Article 4(3) APII 4.32  Article 4(3), APII: As noted above and in Chapter 2, NIAC (APII) is different from the NIAC to which Common Article 3 applies. Article 4(3) provides, in relevant part: 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; (d)  the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured …

4.33  Article 4(3)(c) therefore prohibits (i) ‘allowing’ children aged under 15 years to ‘take part’ in hostilities, and (ii) the ‘recruitment’ of children aged under 15 years into ‘armed forces or groups’. Article 4(3)(c), APII appears to provide for broader protection than Article 77(2), API. In particular: 4.33.1  The obligations under Article 4(3)(c), APII are not restricted to State Parties but apply also to non-state armed groups; 4.33.2  The restriction on participation by children in hostilities is framed in more absolute terms. The obligation is one of outcome: it imposes a prohibition on allowing children to take part. It is therefore stronger than the Article 77(2), API obligation which is simply one to take all feasible measures in order that they do not take part; 4.33.3  On its face, the prohibition refers to any participation by children in hostilities rather than only to direct participation; 4.33.4  Similarly, the restriction on recruitment is framed in more absolute terms – children shall not be recruited. 4.34  Prohibition on participation in hostilities: It is widely agreed that Article 4(3)(c) imposes an absolute prohibition on permitting children to participate in hostilities. However, there is disagreement as to why it does so. This is relevant to understanding whether, and the extent to which, the distinctions between Article 77, API and Article  4(3)(c), APII are justified. One view is that the absolute prohibition was inadvertently included.35 Another is that the absolute prohibition served a specific purpose. In particular, it is suggested that the parties negotiating APII wished to make it more

35 See William A Schabas, The International Criminal Court: A Commentary on the Rome Statute 2nd edn (Oxford, OUP, 2016) 286: ‘The slight difference in the texts [of API and APII] is intriguing, because the prohibition is formulated more strongly with regard to non-international armed conflict, surely a reflection of inconsistency in the drafting process rather than any normative dispute.’ See also Happold (n 11), 68. Art 4(3) was debated by the same Working Group and Committee which discussed Art 77, API. The draft that emerged from their discussion was identical to that of Art 77, API. However, the Pakistani delegate put to the plenary session of the Conference a different text. No explanation for the textual changes was given, other than that the new text was intended to make the provision acceptable to State Parties. The text was adopted by consensus. The Rapporteur for the Working Group which produced the initial text later noted that he was not sure whether States had noticed the change in the text relating to child combatants. Happold cites George H Aldrich, ‘Comments on Paul Tavernier’s “Combatants and Non-Combatants”’ in Iger F Dekker and Harry HG Post, The Gulf War of 1980–88: The Iran-Iraq War in International Legal Perspective (The Hague, Martinus Nijhoff, 1992) 149.

184

Legal Framework  4.35–4.36 difficult (both in legal and political terms) for dissident groups within their territories to achieve military advantage by recruiting young children.36 Parties may also have taken the view that dissident groups were more likely to use children to participate in hostilities. 4.35  Participation: On its face, Article 4(3)(c) applies to any participation by children, ie direct and indirect participation. It is highly likely that Article 4(3)(c) prohibits forms of indirect participation for the following reasons:37 4.35.1  The language of Article 4(3)(c) is unqualified. The drafters of Article 4(3) must have had the distinction between direct and indirect participation in mind, since Article 4(3)(d) refers expressly to the protections that should apply to children who have taken ‘a direct part in hostilities’. The omission of the word ‘direct’ in Article 4(3)(c) therefore seems to evidence an intention to include indirect participation. 4.35.2  Furthermore, it does not appear necessary to construe Article 4(3)(c) as applying only to direct participation in order to read it consistently with Article 4(3)(d). This is because the latter provision may have the purpose of addressing the circumstances in which children have lost their civilian immunity as a result of direct participation in hostilities. Article 4(3)(d) makes clear that even in such circumstances the special protection provided by Article 4(3) should remain applicable to children. 4.35.3  The ICRC’s commentary on Article 4(3)(c) does not state expressly whether indirect participation is to be included. However, the commentary acknowledges that taking part in hostilities includes participating ‘in military operations such as ­gathering information, transmitting orders, transporting ammunition and foodstuffs, or acts of sabotage’.38 A number of these examples are consistent with the concept of indirect participation. 4.36  Recruitment of children: Again, the principal issue is whether recruitment for the purposes of Article 4(3)(c) includes voluntary enlistment. Some commentators have taken the view that the meaning of recruitment does not differ as between A ­ rticle 77(2), API and Article 4(3)(c), APII, and that voluntary enlistment does not fall within either ­provision.39 There is, however, support for the contrary construction of Article 4(3)(c), which extends the meaning of recruitment to encompass voluntary ­enlistment. For ­example, the ICRC’s commentary on Article 4(3)(c) states, ‘The ­principle of ­nonrecruitment also prohibits accepting voluntary enlistment’.40 In Prosecutor v Lubanga, the Pre-Trial Chamber of the International Criminal Court (ICC) appeared to refer with approval to that s­ tatement.41 36 Howard Mann, ‘International Law and the Child Soldier’ (1987) 36(1) ICLQ 32–57, 50. 37 See, for example, H J Heintze and C Lülf, ‘Special Rules on Children’ in A Clapham et al (eds), The 1949 Geneva Conventions: A Commentary (Oxford, OUP, 2015) 1306, where the authors express the view that Article 4(3)(c) entails a total prohibition on participation, both direct and indirect. 38 ICRC Commentary on the AP (n 15), para 4557. 39 Waschefort (n 3), 73. 40 ICRC Commentary on the AP (n 15), para 4557. 41 Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Thomas Lubanga Dyilo, Pre-Trial Chamber I, Decision on the Confirmation of Charges, ICC-01/04-01/06-803-tEN (29 January 2007) [244]. Some commentators have argued that the fact that Art 4(3)(c) prohibits the participation of children in hostilities means that ‘recruitment’ should be understood in a broader sense. It is argued that since all members of armed forces or armed groups can be said to be participants, mere membership by a child, even if as a result of the acceptance of voluntary enlistment, would constitute a form of prohibited participation within the

185

4.37–4.42  Recruitment and Use of Children IAC and NIAC: Rules 136 and 137 4.37  ICRC, CIL Rules 136 and 137: the ICRC Study on Customary IHL42 has identified two rules of CIL that apply to the recruitment and use of children in both IAC and NIAC: 4.37.1  Rule 136: ‘Children must not be recruited into armed forces or armed groups.’43 And 4.37.2  Rule 137: ‘Children must not be allowed to take part in hostilities’.44 4.38  Children: The formulation of the relevant rules does not define the category of protected children, whether by reference to a particular age range or otherwise. However, in respect of each rule, the ICRC have suggested that children ought to be understood as those below 15 years of age. This reflects Article 77(2), API and Article 4(3)(c), APII.45 4.39  Participation: Rule 137 seems to impose an absolute prohibition on participation in hostilities, including indirect participation and CIL therefore appears to provide for a higher level of protection than Article 77(2), API during times of IAC. See Chapter 2, paragraphs 2.81–2.82 on the difficulty of different standards in treaty and CIL rules. 4.40  Recruitment: The language of Rule 136 is not clear on whether the prohibition on recruitment also encompasses voluntary enlistment. The authors of the study have not specified whether voluntary enlistment is included. 2.  Problems and Deficiencies in the Legal Framework 4.41  The principal shortcomings in relation to the recruitment and use of children in armed conflict concern the existing protections for children under the age of 15. In the analysis below we identify four such deficiencies. 4.42  However, we begin by considering whether the law should be developed so as to extend the protections afforded by IHL to children aged 15 years or over (even if the protections were to be extended in this way, the four deficiencies that we consider below would require to be addressed). It is important to note, at the outset, that the age limits specified under rules of IHL ought to be considered separately from age limits prescribed by analogous rules of IHRL (see Section C below). This is because IHL provides the ­foundation for provisions of ICL imposing individual criminal responsibility meaning of Art 4(3)(c). See Mann (n 36), 49–50 and Radhika Coomaraswamy, ‘The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict – Towards Universal Ratification’ (2010) 18 IJCR 535–49, 538. This seems, however, to be an argument about the meaning of participation in hostilities rather than about the meaning of recruitment. 42 As noted above, there is a question as to whether these rules are exclusively rules of IHL, since the authors of the ICRC study relied on evidence of practice and opinio juris relating to IHRL as well for the identification of customary law. For further information, see Waschefort (n 3), 101–02. 43 See ICRC Study on Customary IHL, 482–85 . 44 See ICRC Study on Customary IHL, 485–88 . 45 In respect of Rule 136 the authors state, ‘Although there is not, as yet, a uniform practice with respect to the minimum age for recruitment, there is agreement that it should not be below 15 years of age’: ICRC Study on Customary IHL, 485. Similarly, in relation to Rule 137 it is suggested: ‘Although there is not, as yet, a uniform practice regarding the minimum age for participation in hostilities, there is agreement that it should not be below 15 years of age’: ICRC Study on Customary IHL, 488.

186

Legal Framework  4.43–4.46 in r­ elation to the recruitment and use of children (see Section B below). At present, each of the principal provisions of IHL (Article 77(2), API, Article 4(3)(c), APII, and ICRC, CIL Rules 136 and 137) apply only in respect of children under the age of 15 years. The only potential exceptions are (i) Article 50, GCIV, which relates to the obligations of an occupying power during IAC and applies to children under the age of 18 years; and (ii) Article 77(2), API in so far as it imposes a distinct obligation to endeavour to prioritise the recruitment of older children amongst those who have already attained the age of 15 years but have not attained the age of 18 years. There is obviously merit in seeking to extend IHL protections for children during armed conflict if that is possible, particularly with a view in the future to enhancing ICL protections. If it is possible to achieve that aim, by way of amendment to API and APII, then that should be pursued. 4.43  However, it is not clear that developments in state practice would support an extension of existing protection by increasing the age limits applicable to the rules of customary IHL, ie in relation to ICRC, CIL Rules 136 and 137. Of course, such a consensus may develop in the near future. On the one hand, the evidence in the ICRC Study on Customary IHL (updated to 2016), does not appear to demonstrate that as at 2016 the practice and opinio juris of states was sufficiently consistent in respect of children aged 15 years of age and over so as to provide the necessary state practice to enable higher age limits to be specified in CIL. Furthermore, we refer below, at paragraph 4.99 to the reluctance of number of states, even in the context of IHRL rules, to extend a prohibition on voluntary enlistment into state armed forces to children over 15 but under 18 years. On the other hand, we note that: (i) the relevant IHRL instruments (including OPAC: see paragraph 4.94.2 below) were concluded some years ago; (ii) even then states were willing to agree that all feasible measures should be taken to ensure that children under the age of 18 years should not participate directly in hostilities (Article 1, OPAC), and that (iii) the views of states may continue to develop further. It is difficult to form an accurate contemporaneous assessment of developments in state practice. Therefore there is a question as to whether existing studies fully reflect the extent of recent developments in state practice. Indeed, we are informed that new research due to be published by Child Soldiers International will tend to show that there is in fact a greater established consensus in favour of raising age limits than has so far been suggested. 4.44  In this developing factual context regarding CIL and until there is a move to amend the age limits in API and APII: we suggest that the IHL protections available for children aged under 15 years are consolidated and clarified. These younger children may be more vulnerable to exploitation including by reason of being less able to make mature judgements. Ensuring they are appropriately protected must be a priority. The raising of age limits should, however, continue to be an objective. The timeframe within which that objective can realistically be pursued will depend on how quickly agreement can be established in favour of increasing age limits. Nothing we say in this Chapter should be interpreted as diminishing the importance of that objective. 4.45  The four key deficiencies in the protections available for children under 15 years of age are as follows. 4.46  First, the existing IHL protections applicable to child soldiers under 15 years of age are scattered and complex. As explained above, the existing rules are set out across a number of instruments, including GCIV, API, APII. Understanding these rules requires 187

4.47–4.48  Recruitment and Use of Children familiarity with a number of underlying distinctions including the different types of armed conflict. The treaty provisions are supplemented by rules of CIL. Substantive differences in protections have developed as between IAC and NIAC. Often there is no satisfactory explanation for the differences in approach. The development of CIL has to some extent mitigated these problems because the ICRC have concluded that under CIL equal protections apply during both IAC and NIAC. Nonetheless, as is illustrated by the description in the preceding paragraphs, IHL remains difficult to navigate in this area. It is likely to be particularly challenging for non-state armed groups and victims to identify the applicable legal framework since they are less likely to have access to expert legal advice and representation. 4.47  Second, the use of ‘feasible measures’ in Article 77(2), API is problematic for a number of reasons. 4.47.1  It is unclear why parties to an IAC are only obliged to take ‘feasible measures’ to ensure that children under the age of 15 do not take a direct part in hostilities, whilst parties to NIAC are subject to an absolute prohibition. The difference appears to be unprincipled because of the lack of an objective justification for it. 4.47.2  The standard reflected in Article 77(2), API is also inconsistent with CIL that is applicable during IAC. CIL provides for an absolute prohibition in relation to the participation of children in hostilities. Accordingly, States Parties to API in their relations with each other are subject to inconsistent obligations during IAC. This leaves open the possibility that the text of Article 77(2), API might be relied upon to justify non-compliance with the more onerous obligation imposed by CIL. 4.47.3  The use of ‘feasible measures’ is also problematic because it seems to afford states considerable discretion in the steps they are obliged to take to prevent the participation of children in hostilities. Given that discretion, monitoring compliance with the obligation is also likely to be difficult. 4.48  Third, the narrow protection offered by ‘direct participation’ in Article 77(2), API is difficult to regard as justifiable. This is for the following reasons. 4.48.1  Article 77(2), API does not properly reflect developments in the CIL a­ pplicable to IAC. The authors of the ICRC study consider that, during IAC, CIL imposes a wider prohibition on participation in general. Furthermore, as will be explained below, ­paragraph 4.75, ICL applicable to IAC, in particular, Article 8(2)(b)(xxvi), Rome Statute, has been construed to impose individual criminal responsibility in respect of the use of children to participate in hostilities even where they have not participated directly. 4.48.2  The limitation is inconsistent with the IHL prohibitions that apply during NIAC. In particular, Article 4(3), APII prohibits wider participation. We cannot identify a compelling practical reason why the legal classification of an armed conflict should govern the extent to which the participation of children in hostilities is to be justified. Furthermore, the willingness of parties to APII to agree to a general prohibition on participation applicable to NIAC suggests it is realistic and achievable to agree upon such a prohibition in the context of IAC.46 46 168 States have ratified APII and 174 States have ratified API. Each of the States that have ratified APII have also ratified API. The six States which have ratified API but have declined to ratify APII

188

Legal Framework  4.49 4.48.3  In light of the above, retaining ‘direct participation’ in Article 77(2) makes the legal framework unnecessarily complex and potentially incoherent. For example, in order to further protect children some commentators have suggested a strained construction of the term, which essentially ignores the adjective ‘direct’. The ICRC’s commentary on Article 77(2) reflects this tendency. In our view, such strained construction is not conducive to a clear and coherent legal framework. 4.48.4  Moreover, the use of ‘direct participation’ is problematic because the same term is used in the context of the principle of distinction. As such, an expanded meaning of ‘direct participation’ in the context of Article 77(2), API may, for example, lead to a similar broadening of the meaning of the term in the context of the principle of distinction and that would, as noted above, paragraphs 4.23–4.26, undermine the scope of civilian immunity. In our view it is preferable for an autonomous concept to be adopted in the context of Article 77(2), API so as to avoid confusion with the principle of distinction. 4.49  Fourth, the absence of a clear prohibition on voluntary enlistment in IHL means there is inadequate protection. At present, IHL lacks an express and clear prohibition on the voluntary enlistment of children under the age of 15 years during armed conflict. Although there is at least a good argument of construction that Article 4(3)(c), APII imposes such a prohibition, no similarly strong argument can be made in respect of ­Article 77(2), API. The use of the term recruitment, without further clarification, is at best ambiguous, and at worst unhelpful or deficient. The absence of a clear prohibition is problematic for the following reasons: 4.49.1  The absence of a clear and express IHL prohibition on voluntary enlistment potentially leaves it open to parties to a conflict to argue that they have complied with IHL because children under the age of 15 years have voluntarily enlisted rather than been recruited. That is unsatisfactory for at least two reasons. First, it may undermine the efficacy of the existing IHL prohibitions on recruitment because parties to a conflict may be able to contend that in a particular case a child had voluntarily enlisted when he had in fact been recruited, and it would be difficult to establish the truth of the matter. Second, it is doubtful whether, in a situation of armed conflict, decisions made by a child under the age of 15 years to enlist with armed forces or an armed group can ever be described as truly voluntary, although recent scholarship has emphasised the importance of recognising the agency even of young children.47 4.49.2  As will be explained below, ICL applicable to both IAC (Article 8(2)(b)(xxvi), Rome Statute) and NIAC (Article 8(2)(e)(vii), Rome Statute) has been construed to impose individual criminal responsibility in cases where a child under 15 years of age is voluntarily enlisted. If that is the position as a matter of ICL, then IHL should be clarified, to avoid a situation in which an individual, acting in accordance with IHL, is found nevertheless to be criminally responsible for that conduct. are Angola, Iraq, Democratic People’s Republic of Korea, Mexico, Syrian Arab Republic and Vietnam. The ratification data is available at and . 47 See, for example, Mark A Drumbl, Reimagining Child Soldiers in International Law and Policy (Oxford, OUP, 2012).

189

4.50–4.54  Recruitment and Use of Children 3.  Suggestions to Improve the Legal Framework 4.50  In light of the points above, we make four suggestions for the potential improvement of existing safeguards in IHL concerning ‘child soldiers’: 4.51  First, the question of whether IHL protections should be extended to children aged 15 years or over should be monitored, and consideration should be given to increasing age limits as soon as possible. We note the commendable work done by the Special Representative of the Secretary-General for Children and Armed Conflict in relation to the ‘Straight 18’ campaign. We also note that several advocacy organisations we have consulted consider that a consensus is either already emerging or could be established in the near future. 4.52  Second, consideration should be given to incorporating all IHL protections concerning the recruitment and use of children into a single instrument. The purpose of this would be to make it easier to identify the law and to improve its clarity and coverage. This should, in turn, assist in the process of training and increase the prospects of more effective compliance. The instrument could therefore include the content of following provisions: Article 50, GCIV, Article 77(2), API (possibly with the amendments suggested below), and Article 4(3)(c), APII (possibly with the amendments suggested below). Depending on political will (for example, the extent to which ICRC, Rules 136 and 137 are accepted as applying to all armed conflicts), it may even be possible to standardise the law so that there is no need for different provisions applying to IAC and NIAC or for multiple definitions of armed conflict. In that case there would be a single provision applicable in all armed conflict (which would be a defined term: see further Chapter 2 for a summary of our proposal and Chapter 9 where this suggestion is more fully developed). 4.53  Third, consideration should be given to developing the law by amending Article 77(2), API, so that: 4.53.1  It imposes an absolute prohibition on the participation of children under the age of 15 years in hostilities rather than merely requiring parties to IAC to take feasible measures to ensure that children do not participate; 4.53.2  The prohibition applies to the use of children to participate in hostilities in general and is not limited to their direct participation, so as to reflect the approach taken in Article 4(3)(c), APII, and 4.53.3  The voluntary enlistment of children under the age of 15 years is prohibited as well as their recruitment. 4.54  Alternatively, individual states that have ratified API could be encouraged to reflect this more protective content in their domestic laws and military manuals. This may be the more cautious option if there is a well-founded concern that re-visiting the drafting of API in the present political climate would risk a lowering in the standard of protections. We are not in a position to judge whether this is so, especially since it is difficult to reconcile this possibility of lowered standards with the suggestion that state practice is increasingly evidencing stronger protections, as noted above at paragraph 4.43. We have already noted in Chapter 3, paragraph 3.59 that those states that have not ratified API should be encouraged to do so; those states should also be encouraged to include more protective content regarding recruitment and use in their domestic laws and military manuals. 190

Legal Framework  4.55–4.59 4.55  Fourth, consideration should be given to clarifying or developing the law by amending Article 4(3)(c), APII, to state, for the avoidance of doubt, that the voluntary enlistment of children under the age of 15 years during armed conflict is prohibited. 4.56  Again, alternatively, individual states that have ratified APII could be encouraged to reflect this more protective content in their domestic laws and military manuals. As we have noted above, paragraph 4.54, this may be the more cautious option. We have also already noted in Chapter 3, paragraph 3.59 that those states that have not ratified APII should be encouraged to do so; those states should also be encouraged to include more protective content regarding recruitment and use in their domestic laws and military manuals. B.  International Criminal Law 1.  The Legal Framework Overview 4.57  ICL imposes individual criminal responsibility for the violation of international law norms. There is a close relationship between ICL and IHL; conduct cannot ordinarily constitute a war crime unless it also constitutes a violation of IHL.48 4.58  The principal provisions of ICL concerning ‘child soldiers’ are set out in the Rome Statute of the ICC. Indeed, the very first verdict given by the ICC convicted Thomas Lubanga of war crimes, in relation to child soldiers, committed during a NIAC in the Democratic Republic of the Congo. He was sentenced to 14 years’ imprisonment. However, as we note below, in addition to those crimes under the Rome Statute, there are also crimes recognised as a matter of CIL. 4.59  ICL contains prohibitions on the recruitment and use of children during both IAC and NIAC. By way of overview: 4.59.1 IAC: (i) Article 8(2)(b)(xxvi), Rome Statute: Defines as a war crime during IAC ‘Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities’. (ii) CIL: Conduct falling within Article 8(2)(b)(xxvi) is also likely to constitute a crime as a matter of CIL, as will be explained below. 4.59.2 NIAC: (i) Article 8(2)(e)(vii), Rome Statute: Also defines as a war crime during NIAC ‘Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities’. 48 The decision of the Appeals Chamber of the ICC in Ntaganda may be considered controversial in so far as it dissociates war crimes from their IHL foundation. See Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Bosco Ntaganda, Appeals Chamber, Judgment on the appeal of Mr Ntaganda against the ‘Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9’, ICC-01/04-02/06-1962 (15 June 2017).

191

4.60–4.62  Recruitment and Use of Children (ii) CIL: Conduct falling within Article 8(2)(e)(vii) is also likely to constitute a crime as a matter of CIL, as will be explained below. 4.60  Before addressing the provisions of ICL applicable in IAC and NIAC respectively, we provide some context concerning the Rome Statute of the ICC, and the Statute of the Special Court for Sierra Leone, which have influenced how ICL has been interpreted and developed. 4.61  Rome Statute. The relevant ICL provisions are contained in Article 8 of the Rome Statute. Article 8(1) provides for the Court’s substantive jurisdiction in respect of war crimes: ‘The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’.49 4.62  Article 8(2) then distinguishes between war crimes that can be committed during IAC and NIAC respectively: 4.62.1  IAC: Article 8(2)(b) identifies certain war crimes that can be committed during IAC, including the war crimes relating to child soldiers defined in Article 8(2) (b)(xxvi). 4.62.2  NIAC: Article 8(2)(e) identifies war crimes that can be committed during NIAC, including the war crimes relating to child soldiers defined in Article 8(2)(e)(vii). The concept of NIAC for the purposes of Article 8(2)(e) is qualified by two provisions: (i) Article 8(2)(f) states: Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.

This definition of NIAC is broader than that used in Article 1, APII in two relevant respects. First, it is unnecessary to establish that the relevant armed groups exercised control over part of the territory of the state.50 Second, there is no express requirement that the armed groups be ‘under responsible command’.51 49 In interpreting this provision, the ICC has taken the view that it retains jurisdiction in respect of single acts amounting to a war crime. Pre-Trial Chamber II has observed, ‘the term “in particular” makes it clear that the existence of a plan, policy or large-scale commission is not a prerequisite for the Court to exercise jurisdiction over war crimes but rather serves as a practical guideline for the Court’: see Situation in the Central African Republic in the Case of the Prosecutor v Jean-Pierre Bemba Gombo, Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424 (15 June 2009) para 211. Further, ‘a single act could also amount to a war crime within the jurisdiction of the Court’: see Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Callixte Mbarushimana, Pre-Trial Chamber I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red (16 December 2011), para 94. 50 See Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Thomas Lubanga Dyilo, Trial Chamber I, Judgment Pursuant to Article 74 of the Statute ICC-01/04-01/06-2842, para 536. 51 For further information, see Schabas (n 35), 233. However, as to this second aspect, the ICC has interpreted Art 8(2)(f), and in particular the reference to ‘organised armed groups’, as incorporating a requirement that they be under responsible command. A responsible command ‘entails some degree of organization of those armed groups, including the possibility to impose discipline and the ability to plan and carry out military operations’: see Prosecutor v Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo (n 49), para 234.

192

Legal Framework  4.63–4.67 (ii) Article 8(3) states: Nothing in paragraphs 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State by all legitimate means.

The purpose of the provision is not entirely clear.52 It is unlikely that Article 8(3) has the effect of excluding from NIAC steps taken by a government to re-establish law and order, if they would otherwise constitute war crimes within the meaning of Article 8(2)(e). 4.63  Statute of the Special Court of Sierra Leone (SCSL). The main relevance of the SCSL to this Chapter of the book is two-fold. First, the jurisprudence of the SCSL has been important in the development of CIL concerning recruitment and use. Second, the ICC has relied on the jurisprudence of the SCSL in interpreting the Rome Statute. 4.64  Article 4, Statute of the SCSL criminalised ‘other serious violations of international humanitarian law’ including ‘Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities’ under Article 4(c). As discussed below in the application of its retrospective jurisdiction the SCSL was required to determine whether the conduct prohibited by Article 4(c) in fact constituted a crime as a matter of CIL as from 30 November 1996, so that a prosecution under Article 4(c) would not offend against legal principles concerning retrospective penalisation. 4.65  The remainder of this section addresses: (i) the provisions of ICL applicable in IAC, namely Article 8(2)(b)(xxvi) and CIL; and (ii) the provisions of ICL applicable in NIAC, namely Article 8(2)(e)(vii) and CIL. IAC 4.66  Article 8(2)(b)(xxvi), Rome Statute: Article 8(2)(b) includes within the definition of ‘war crimes’: (b)  Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: … (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

4.67  Elements of the crime proscribed by Article 8(2)(b)(xxvi) have been specified as follows:53 1.  The perpetrator conscripted or enlisted one or more persons into the national armed forces or used one or more persons to participate actively in hostilities. 2.  Such person or persons were under the age of 15 years.

52 See Schabas (n 35), 297–98. 53 See . (footnotes added).

193

4.68–4.70  Recruitment and Use of Children 3.  The perpetrator knew or should have known that such person or persons were under the age of 15 years. 4.  The conduct took place in the context of and was associated with an [IAC].54 5.  The perpetrator was aware of the factual circumstances that established the existence of an armed conflict.55

4.68  Article 8(2)(b)(xxvi) in fact specifies three different types of acts committed in the context of and associated with an IAC, which amount to a war crime:56 4.68.1  ‘Conscripting’ children under 15 years of age into the ‘national armed forces’. 4.68.2  ‘Enlisting’ children under 15 years of age into the ‘national armed forces’. 4.68.3  ‘Using’ children under 15 years of age to ‘participate actively in hostilities’. 4.69  There is also a mental element required to constitute the relevant offence. 4.69.1  Article 30 of the Rome Statute specifies the general rules in relation to the mental element. Article 30(1) states: Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.57

4.69.2  In relation to the material element concerning the age of the child, the offence specified under Article 8(2)(b)(xxvi) derogates from Article 30. It is sufficient that the perpetrator ‘should have known’ that the child was under 15 years of age. The consequence is that negligent conduct can be penalised; a perpetrator who could, with due diligence, have ascertained that a child was under 15 years of age will commit the crime even if he did not know that the child was under 15 years of age.58 4.70  The conduct prohibited by Article 8(2)(b)(xxvi) is analysed further below, ­paragraphs 4.71–4.76.

54 As to the extent of the relationship between the armed conflict and the commission of the alleged crime, see, for example, Lubanga, Decision on the Confirmation of Charges (n 41), para 287: the conduct is required ‘to have been closely related to the hostilities occurring in any part of the territories controlled by the parties to the conflict. The armed conflict need not be considered the ultimate reason for the conduct and the conduct need not have taken place in the midst of battle. Nonetheless, the armed conflict must play a substantial role in the perpetrator’s decision, in his or her ability to commit the crime or in the manner in which the conduct was ultimately committed’. 55 There is no requirement that the perpetrator needs to be aware of the nature of the armed conflict and its legal classification. 56 Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Germain Katanga, Trial Chamber II, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/07-3436-tENG (7 March 2014), para 1041. 57 For these purposes: ‘… a person has intent where: (a) In relation to conduct, the person means to engage in conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.’ ‘… knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.’ 58 See Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Pre-Trial Chamber I, Decision on the Confirmation of Charges, ICC-01/04-01/07717 (30 September 2008), paras 251–52.

194

Legal Framework  4.71–4.72 4.71  Conscripting or enlisting children: Article 8(2)(b)(xxvi) refers to ‘conscripting or enlisting’ children rather than to their ‘recruitment’ (in contrast to the relevant ­provisions of IHL considered above). The principal characteristic of conscripting a child into national armed forces is the use of some form of compulsion: see the case law of the ICC59 and the SCSL.60 In contrast to conscription, the enlistment of a child does not require compulsion: see the case law of the ICC61 and the SCSL. 62 4.72  Relationship between ‘conscripting or enlisting’ and ‘recruitment’: The jurisprudence of the ICC and the SCSL has treated recruitment as an omnibus category that includes both conscription and enlistment. For example, the ICC has concluded that ‘“conscripting” and “enlisting” are two forms of recruitment, “conscripting” being forcible recruitment, while “enlisting” pertains more to voluntary recruitment’.63 Similarly, the SCSL has held, ‘Conscription and enlistment are both types of recruitment, and while conscription involves an element of express compulsion or coercion, this element is absent in enlistment’.64 Some commentators have been willing to support this categorisation, at least in the context of ICL.65 Others take the view that it is inaccurate to refer to enlistment as a form of recruitment since recruitment requires more than the mere enlistment of a child who has decided voluntarily to join an armed force.66 59 The ICC has held that the conscription of children necessarily involves a form of compulsion. Furthermore, ‘the element of compulsion necessary for the crime of conscription can be established by demonstrating that an individual under the age of fifteen years joined the armed force or group due to, inter alia, a legal obligation, brute force, threat of force, or psychological pressure amounting to coercion’: see Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the Appeal of Mr Thomas Lubanga Dyilo Against his Conviction, ICC-01/04-01/06-3121-Red A 5 (1 December 2014), para 278. It is clear from that statement that the compulsion need not be unlawful as a matter of domestic law. However, unlawful compulsion will also fall within the meaning of conscription. 60 The SCSL has held that conscription ‘implies compulsion, in some instances through the force of law’: see Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (the AFRC Accused), Trial Chamber II, Judgment, SCSL-04-16-T (20 June 2007), para 734. It also ‘encompasses any acts of coercion, such as abductions and forced recruitment of children by an armed group with the purpose of using them to participate actively in hostilities’: see Prosecutor v Charles Ghankay Taylor, Trial Chamber II, Judgment, SCSL03-01-T (18 May 2012), para 441. 61 The ICC has held that ‘“enlisting” pertains more to voluntary recruitment’: see Lubanga, Decision on the Confirmation of Charges (n 41), para 246. It is capable of encompassing any conduct that accepts a child as part of the relevant armed force. The ICC has rejected the argument that the acceptance must be for the specific purpose of using the child to participate actively in hostilities: see Lubanga, Judgment Pursuant to Article 74 of the Statute (n 50), para 609. Furthermore, since enlistment is consistent with a voluntary act on the part of the child, the ICC has held that the consent of the child is not a defence to the charge of enlistment: see Lubanga, ibid, para 617. 62 The SCSL has stated, ‘The act of enlisting presupposes that the individual in question voluntarily consented to be part of the armed force or group’: see Prosecutor v Moinina Fofana and Allieu Kondewa (the CDF Accused), Appeals Chamber, Judgment, SCSL-04-14-A (28 May 2008), para 140. Enlistment means ‘accepting and enrolling individuals when they volunteer to join an armed force or group’: see Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (the RUF Accused), Trial Chamber I, Judgment, SCSL-04-15-T (2 March 2009), para 185. However, enlistment is not confined to a formal enrolment process and encompasses ‘any conduct accepting the child as part of the militia’: see Prosecutor v Moinina Fofana and Allieu Kondewa (the CDF Accused), Appeals Chamber, Judgment, SCSL-04-14-A (28 May 2008), para 144. 63 Lubanga, Decision on the Confirmation of Charges (n 41), para 246. 64 Taylor, Judgment (n 60), para 442. 65 See, eg, Kai Ambos, ‘The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues’ (2012) 12 Int Crim LR 115–53, 132; and Sylvain Vité, ‘Between Consolidation and Innovation: The International Criminal Court’s Trial Chamber Judgment in the Lubanga Case’ (2012) 15 Yearbook IHL 61–85, 71–74. 66 Waschefort (n 3), 109.

195

4.73–4.75  Recruitment and Use of Children 4.73  The reasons why Article 8(2)(b)(xxvi) uses the concepts of conscription and enlistment rather than recruitment are also controversial. According to one view, the use of recruitment may have provided insufficient protection as it would have tended to exclude purely passive acts of enlistment.67 However, the Appeals Chamber of the ICC has suggested that this formulation may have been used out of a concern that recruitment would capture conduct that ought not to be penalised, such as running a general recruitment campaign directed to those under the age of 15 years, even if not for the purpose of persuading them to join the military at that age.68 That observation has been criticised on the basis that it reflects an unreliable analysis of the travaux preparatoires of the Rome Statute.69 4.74  National armed forces: The relevant conscription or enlistment must be directed towards the ‘national’ armed forces. The ICC has held that ‘the term “the national armed forces” is not limited to the armed forces of a State’.70 However, the relevant armed forces must be ‘under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party’.71 4.75  Using children for active participation: ICL uses the concept of ‘active participation’ rather than ‘direct participation’ or ‘participation’, which are used in IHL. 4.75.1  The ICC has held that active participation is a wider term than direct participation: ‘Active participation’ in hostilities means not only direct participation in hostilities, combat in other words, but also covers active participation in combat-related activities such as scouting, spying, sabotage and the use of children as decoys, couriers or at military check-points.72

However, it does not extend to activities that are clearly unrelated to hostilities. Therefore, active participation does not encompass ‘food deliveries to an airbase or the use of domestic staff in married officers’ quarters’.73 This definition is also consistent with the jurisprudence of the SCSL.74 67 William A Schabas, An Introduction to the International Criminal Court 5th edn (Cambridge, CUP, 2017) 125. 68 Lubanga, Judgment on the Appeal of Mr Thomas Lubanga Dyilo Against his Conviction (n 59), para 285. 69 See Schabas (n 35), 288. 70 Lubanga, Decision on the Confirmation of Charges (n 41), para 285; see generally paras 268–85; see also Lubanga, Judgment Pursuant to Article 74 of the Statute (n 50), Separate and Dissenting Opinion of Judge Odio Benito, para 13. 71 See Lubanga, Decision on the Confirmation of Charges (n 41), para 271. 72 Lubanga, Decision on the Confirmation of Charges (n 41), para 261. 73 Lubanga, Decision on the Confirmation of Charges (n 41), para 262. This definition effectively adopts the commentary provided in ‘Report of the Preparatory Committee on the Establishment of an International Criminal Court: Draft Statute & Draft Final Act’, UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome 15 June–17 July 1998) (14 April 1998) UN Doc A/ CONF.183/2/Add.1, 21, fn 12: ‘The words “using” and “participate” have been adopted 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 itself, would be included within the terminology’. The Report is available at . 74 See, eg, AFRC, Judgment (n 60), paras 736–37; and RUF, Judgment (n 62), para 188.

196

Legal Framework  4.76 4.75.2  A question arises as to how to determine whether a form of indirect participation constitutes active participation in hostilities. The Trial Chambers of the ICC initially reasoned that the extent of risk of harm to the child solider was ­critical.75 However, the Appeals Chamber has criticised that reasoning and held that active participation requires a sufficient link between the activity and the hostilities but is not necessarily to be assessed by the extent of danger to which the child was exposed.76 Whether or not there is active participation has to be assessed on a case-by-case basis. 4.75.3  Commentators disagree about the meaning of ‘active’ participation, and its relationship with the concept of ‘direct’ participation used in IHL concerning ‘child soldiers’.77 Some have supported the conclusions of the ICC. They take the view that active participation is indeed a broader formulation than direct participation, and there is no need for ICL to be construed by reference to IHL in this respect since the concepts serve different purposes in each area of the law.78 Others disagree, noting that the equivalent French language provisions of ICL use the adjective ‘direct’. They also emphasise that ICL should be interpreted by reference to IHL as the lex specialis in relation to armed conflict.79 4.76  Use: The reference to the ‘use’ of children to participate actively in hostilities has proved significant in the debate on whether Article 8(2)(b)(xxvi) extends to prohibit the sexual abuse of children associated with armed forces by members of those armed forces.80 So far as relevant for present purposes, most commentators are agreed that sexual abuse does not fall within the meaning of the war crime of using children to participate actively in hostilities (and should more properly be prosecuted as the war crime of rape or sexual slavery).81 On sexual violence, see Chapter 5.

75 ‘The decisive factor, therefore, in deciding if an ‘indirect’ role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target’: Lubanga, Judgment Pursuant to Article 74 of the Statute (n 50), para 628. 76 Lubanga, Judgment on the Appeal of Mr Thomas Lubanga Dyilo Against his Conviction (n 59), para 333. 77 The concept of ‘active’ participation is in fact used in other areas of IHL. See, for example, Art 3(1), GCIV, which refers to taking an ‘active part in hostilities’. 78 See, eg, Roman Graf, ‘The International Criminal Court and Child Soldiers: An Appraisal of the Lubanga Judgment’ (2012) 10 JICJ 945–69, 961–65. 79 Joe Tan, ‘Sexual Violence Against Children on the Battlefield as a Crime of Using Child Soldiers: Square Pegs in Round Holes and Missed Opportunities in Lubanga’ (2012) 15 Yearbook IHL 117–51, 133ff. 80 In her Separate and Dissenting Opinion in Prosecutor v Lubanga, Judge Odio Benito argued that sexual abuse is a form of ‘use’ prohibited by Art 8(2)(b)(xxvi) because ‘Girls who are used as sex slaves or “wives” of commanders or other members of the armed group provide essential support to the armed groups’: see Lubanga, Judgment Pursuant to Article 74 of the Statute (n 50), Separate and Dissenting Opinion of Judge Odio Benito, para 20. This reasoning reflected the written submission made by the UNSG Special Representative in Lubanga who argued that the ICC should have regard whether a child soldier was providing an ‘essential support function’ in determining whether there was the use of children to participate actively in hostilities: see Radhika Coomaraswamy, ‘Written submissions of Ms Coomaraswamy’ (CHM-0003), EVD-CHM-00007, paras 23 and 24–26. 81 See, eg, Tilman Rodenhäuser, ‘Squaring the Circle? Prosecuting Sexual Violence against Child Soldiers by their “Own Forces”’ (2016) 14 JICL 171–93; Tan (n 79); and Waschefort (n 3), 128.

197

4.77–4.82  Recruitment and Use of Children NIAC 4.77  Article 8(2)(e)(vii), Rome Statute includes within the definition of war crimes: (e)  Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: … (vii)  Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities.

4.78  The elements of the crime have been specified as follows:82 1.  The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities. 2.  Such person or persons were under the age of 15 years. 3.  The perpetrator knew or should have known that such person or persons were under the age of 15 years. 4.  The conduct took place in the context of and was associated with [a NIAC]. 5.  The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

4.79  Article 8(2)(e)(vii) specifies three different types acts committed in the context of or associated with an NIAC, which amount to a war crime: 4.79.1  ‘Conscripting’ children under 15 years of age into the ‘armed forces or groups’. 4.79.2  ‘Enlisting’ children under 15 years of age into the ‘armed forces or groups’. 4.79.3  ‘Using’ children under 15 years of age to ‘participate actively’ in hostilities. 4.80  The crime under Article 8(2)(e)(vii) is in identical form to that under Article 8(2)(b)(xxvi), save that for the purposes of Article 8(2)(e)(vii) the conscription or enlistment need not be into the ‘national’ armed forces. We refer to the analysis of the concepts used in Article 8(2)(b)(xxvi) set out above paragraphs 4.71–4.76 which is equally applicable here. CIL 4.81  Conduct falling within Article 8(2)(b)(xxvi) (in the case of IAC) and Article 8(2)(e)(vii) (in the case of NIAC) also constitutes a crime as a matter of CIL. 4.82  Whether these crimes were recognised at CIL was controversial for some time. While there seemed to be agreement that, as early as 1996, the crime of forcible recruitment of children for the purpose of using them to participate actively in hostilities was a part of CIL,83 there remained doubts regarding the criminalisation under CIL of the

82 See . 83 Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (n 29), Dissenting Opinion of Justice Robertson, para 5.

198

Legal Framework  4.83–4.85 voluntary enlistment of children.84 In 2002, a majority of the SCSL Appeals Chamber held in the landmark Norman decision that both conscripting and enlisting children had been prohibited by customary international criminal law as early as 1996,85 a decision which attracted criticism from academic commentators86 as well as one from of the judges of the SCSL.87 4.83  The ICRC Study on Customary IHL has now confirmed that the recruitment and use crimes, as defined in the Rome Statute, currently constitute war crimes under CIL.88 The ICRC Study states, ‘Although this is a relatively recent prohibition, the inclusion of such acts as war crimes in the Statute of the International Criminal Court was uncontroversial.’89 Moreover, the Study notes that the recruitment of children and their use to participate actively in hostilities are prohibited under the legislation of many States90 and that the recruitment and use of children in numerous NIACs ‘has been repeatedly and vigorously condemned by the international community.’91 2.  Problems and Deficiencies in the Legal Framework 4.84  In general, we consider that the existing framework of ICL concerning the recruitment and use of children is adequate and is not in need of significant revision (although we have not sought in this Chapter to address the particular problems which may arise in respect of the sexual abuse of children who become ‘child soldiers’ or are otherwise associated with armed forces or groups). We consider that those states that have not ratified the Rome Statute should be encouraged to do so. This will strengthen substantive protection and it will also help improve accountability which is, as we note in Section III below and Chapter 9, the main concern regarding ICL. We also identify three potential areas for improvement. 4.85  Before addressing these three areas, we note that we have considered, as a preliminary matter, whether there is justification for amending the crimes of recruitment and use to apply in respect of all children under the age of 18. There is clear merit in progressively increasing the protections available to older children as soon as possible. However, it is questionable that there would be sufficiently widespread support for such a course in the short term. In particular, states may object to the criminalisation of the voluntary enlistment of children under the age of 18, particularly where such enlistment is not with a view to

84 See, eg, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN S/2000/915 (4 October 2000), paras 17–18. See also: Schabas (n 35), 221, arguing that the provisions on child recruitment in the Rome Statute were a ‘new crime’. 85 Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (n 29). 86 See, eg, Matthew Happold, ‘International Humanitarian Law, War Criminality and Child Recruitment: The Special Court for Sierra Leone’s Decision in Prosecutor v Samuel Hinga Norman’ (2005) 18 LJIL 283; Waschefort (n 3), 108–16. 87 Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (n 29), Dissenting Opinion of Justice Robertson, paras 4, 15 and 22. 88 ICRC Study on Customary IHL, 580 (IAC), and 593 (NIAC). 89 In respect of IAC, see ICRC Study on Customary IHL, 584. The same observation is included in the section on war crimes applicable during NIAC, see ibid, 596. 90 ICRC Study on Customary IHL, at 584 (IAC) and 596 (NIAC). 91 ICRC Study on Customary IHL, at 596.

199

4.86–4.88  Recruitment and Use of Children active participation in hostilities. A number of states allow for the voluntary enlistment of children under the age of 18 years into their national armed forces.92 For these reasons, we consider that the priority ought to be to ensure that existing provisions of ICL are complied with, implemented and enforced rather than seeking, in the first instance, to broaden their scope. However, if sufficiently widespread support can be established for amending the crimes of children soldiering to apply to older children, then such an amendment should be pursued, ideally in line with analogous developments in IHL. 4.86  As to potential problems we have identified with the existing legal framework: first, there is some conceptual inconsistency between ICL and IHL which makes the law complex. This is problematic because war crimes, including those established in Article 8(2)(b) and (e) of the Rome Statute, are defined as ‘serious violations of the laws and customs applicable in’ IAC and NIAC; that is, war crimes must involve a violation of IHL. 4.87  In this context, there is a significant tension in the development of IHL and ICL concerning the recruitment and use of children. In particular: 4.87.1  Within ICL ‘recruitment’ is generally understood to encompass both conscription and voluntary enlistment. However, as noted above, as a matter of IHL, and in particular in relation to IAC (Article 77(2), API and CIL), the concept of recruitment has often been understood more narrowly and as excluding purely voluntary enlistment. Accordingly, in a situation of IAC, an individual might be criminally responsible for the voluntary enlistment of children under 15 years, whilst the state on whose behalf such enlistment has taken place may be able to argue that it has not breached IHL. This potential inconsistency is unsatisfactory. 4.87.2  Similarly, ICL refers to the concept of the ‘active’ participation of children in hostilities whilst IHL refers either to their ‘direct’ participation in respect of IAC (Article 77(2), API) or to their participation in general in respect of NIAC (Article 4(3)(c), APII). Again, if the concept of ‘active’ participation is broader than direct participation, as the ICC has held, then it would appear that there may be situations concerning the use of ‘child soldiers’ in IAC where an individual may be held criminally responsible for their active participation but the state on whose behalf the children participated could still argue it has not breached IHL. 4.88  Second, it may be difficult to determine whether a child has enlisted voluntarily or not. ICL specifically prohibits the voluntary enlistment of children under the age of 15 years as well as their conscription. In a conflict setting, however, it may not be realistic to argue that a child under the age of 15 years has acted voluntarily in enlisting. Indeed, both the ICC and SCSL have acknowledged the difficulty in assessing whether a child

92 State Parties to OPAC are required to make declarations certifying the minimum age at which persons can voluntarily enlist in national armed forces. The United Kingdom has declared an age of 16 years. The United States has declared an age of 17 years. Others that have declared ages below 18 years include Austria, Bangladesh, Brazil, India, Jordan, New Zealand, and Saudi Arabia. The declarations can be accessed here: UN Treaty Collection, ‘Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict’ (UN, 21 August 2017) .

200

Legal Framework  4.89–4.93 under the age of 15 years has acted voluntarily in enlisting, and acknowledged that a child under the age of 15 years may not be capable of acting voluntarily in enlisting.93 4.89  Third, the meaning of active participation is unclear. It is still not clear which acts of indirect participation by a child in hostilities will constitute the war crime of ‘active’ participation in hostilities. 3.  Suggestions to Improve the Legal Framework 4.90  As noted at paragraph 4.84 above, we suggest that encouragement needs to be given to those states that have not ratified the Rome Statute to do so. In addition, in light of the deficiencies identified above, we make three suggestions for improvement. 4.91  First, the law should be clarified or developed by addressing the conceptual ­inconsistency between ICL and IHL. This may be addressed in two ways: 4.91.1  Where there is inadequate justification for the relevant inconsistency, we consider that IHL should be revised to reflect the higher standards of conduct expected as a matter of ICL. In particular, in our view, there would be little justification for the prohibition on the recruitment of children under the age of 15 years not extending to their voluntary enlistment during IAC. As already indicated above, we consider that Article 77(2), API may usefully be amended to make clear, for the avoidance of doubt, that voluntary enlistment is also prohibited. 4.91.2  Where there is adequate justification for a difference in approach, ICL and IHL ought to be understood and developed distinctly. For example, we consider that the concept of ‘direct participation’ in hostilities, in so far as it is used to define the principle of distinction in IHL, ought to be understood separately from the concept of ‘active participation’ in the context of ICL. The reason for this is that to extend ‘direct participation’ as a matter of IHL along the lines of the ICC’s broader definition of ‘active’ participation, could entail an undesired (and unwarranted) limitation on the scope of the civilian immunity of children. If additional protections are to be provided to child soldiers as a matter of IHL applicable to IAC, it would make more sense to develop an absolute prohibition on the participation of child soldiers in hostilities during IAC (to reflect the formulation used in respect of NIAC in Article 4(3), APII), than to borrow from the concept of active participation in ICL. 4.92  Second, the difficulty of ascertaining the volition of a child under the age of 15 years in a conflict setting should lead prosecutors at the ICC – in making prosecutorial decisions and laying charges – to consider, in each case, whether to charge for an offence of ‘conscripting’ a child under the age of 15 years in preference to, or alongside, an offence of ‘enlisting’. 4.93  Third, the meaning of ‘active participation’ ought to be clarified in the jurisprudence of the ICC. Whilst it may not be possible to provide a comprehensive definition applicable in all circumstances, the ICC ought to offer further guidance about the sorts

93 See, eg, Lubanga, Judgment Pursuant to Article 74 of the Statute (n 50), paras 610–15; and RUF, Judgment (n 62), para 187.

201

4.94–4.97  Recruitment and Use of Children of acts that will or will not constitute use of children to participate actively in hostilities. Such clarity is necessary in order to respect the fundamental principles of legality and legal certainty. C.  International Human Rights Law 1.  The Legal Framework Overview 4.94  This section considers the key general IHRL94 protections for ‘child soldiers’, which are contained within the scheme of the Convention on the Rights of the Child (CRC) namely: 4.94.1  Articles 38(2) and (3), CRC: These are the principally relevant provisions concerning the recruitment and use of children. 4.94.2  Articles 1 to 4, OPAC: The Optional Protocol on Armed Conflict (OPAC) was developed because of general dissatisfaction with the extent of protection offered under Articles 38(2) and (3), CRC. 4.95  In order to provide the broader context in which the CRC and OPAC are to be understood, we also refer in passing to (i) Articles 1 and 3, ILO Convention No 182, which is an international instrument principally concerned with labour practices; and (ii) Article 22(2), African Charter on the Rights and Welfare of the Child (ACRWC), the only regional IHRL instrument which expressly addresses the recruitment and use of children. 4.96  As with IHL, the provisions of IHRL generally address two broad categories of prohibited conduct. The first relates to the recruitment of children. The second relates to their participation in hostilities. However, there are material differences in the scope of protection provided by each provision, and the structure of the OPAC provisions is complex. In order to explain those differences, and the relevant structure, rather than address the provisions thematically, we consider each provision in turn. Accordingly, the remainder of this section addresses: (i) Articles 38(2) and (3) CRC; and (ii) Articles 1 to 4 OPAC. 4.97  Articles 38(2) and (3), CRC: Article 38(2) provides: ‘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’. Article 38(3) states: 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 who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.

94 On one view, Arts 38(2) and (3), CRC might be considered as provisions of IHL contained within an instrument of IHRL. However, for ease of reference, and given the classification of the CRC as an instrument of IHRL, this Chapter addresses Arts 38(2) and (3) as provisions of IHRL.

202

Legal Framework  4.98–4.102 4.98  Articles 38(2) and (3) of the CRC are in near identical form to Article 77(2), API. States Parties to the CRC are required: 4.98.1  To take all ‘feasible measures’ to ensure that persons who have not attained the age of 15 years do not take a ‘direct part’ in ‘hostilities’; and 4.98.2  To refrain from ‘recruiting’ any person who has not attained the age of 15 years into their ‘armed forces’. In recruiting those under the age of 18 years they are to ‘endeavour’ to give priority to those who are oldest. 4.99  Persons who have not attained the age of 15 years: Articles 38(2) and (3) do not refer to children. That is because, pursuant to Article 1, CRC, for the purposes of the CRC, ‘a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’. Article 38, CRC is in fact the only provision of the CRC which is expressly limited to persons under the age of 15 years, irrespective of whether, under the law applicable to the child, majority is obtained later in the relevant state.95 4.100  Participation in hostilities and feasible measures: Article 38(2) provides for a qualified obligation only to take those measures that are feasible. For guidance on what may be meant by feasible measures see the discussion above at paragraphs 4.19–4.21 in relation to Article 77(2), API. As the text of Article 38(2) is in near identical form to Article 77(2), API, it would be surprising if the meaning of the relevant concepts were to vary substantially as between the two provisions. 4.101  Direct participation: Article 38(2) refers only to direct participation in hostilities rather than to any form of participation in hostilities. As to the general meaning of direct participation, see paragraphs 4.22–4.26 above. Article 38(2) does not expressly include any form of indirect participation.96 4.102  Hostilities: The CRC does not define hostilities. Under Article 31(3) of the Vienna Convention on the Law of Treaties (VCLT), the meaning of hostilities might be ascertained in light of other applicable rules of international law, including IHL, and,

95 The lower age limit specified in Art 38(2) and (3) has attracted considerable criticism, as noted in Daniel Helle, ‘Optional Protocol on the Involvement of Children in Armed Conflict to the Convention on the Rights of the Child’ (2000) 82 IRRC 797–823, 798. 96 As one commentator notes, ‘direct participation in hostilities’ as used in Art 38(2) may only include taking part in actual combat and exclude other similarly dangerous activities. See Matthew Happold, ‘The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict’ (2000) 3 Yearbook IHL 226–44, 228. The negotiating history of the CRC suggests that States Parties did not intend Art 38(2) to encompass indirect participation. For example, in 1986, during negotiations for what became Art 38(2), CRC, the representative of Venezuela had suggested imposing an obligation that extended to participation ‘in any way’, but that formulation was not accepted: see United Nations, ‘Report of the Working Group on a draft Convention on the Rights of the Child’ (E/CN.4/1986/39), para 132. The declarations made by States upon ratification of the CRC provide some further insight into how this aspect of Art 38(2) has been interpreted: The declarations can be accessed at UN Treaty Collection, ‘Convention on the Rights of the Child’ (UN, 21 August 2017) . The declaration of the Netherlands made on 6 February 1995 stated, ‘it is of the opinion that States would not be allowed to involve children directly or indirectly in hostilities’. However, that understanding is not widely shared. For example, the declaration made by Argentina upon signature and confirmed upon ratification on 4 December 1990 acknowledged that Art 38(2) did not ‘categorically … prohibit the use of children in armed conflicts’. Similarly, the reservation offered by Uruguay upon ratification on 20 November 1990 also acknowledged that Art 38(2) only extends to direct participation in hostilities.

203

4.103–4.107  Recruitment and Use of Children accordingly, the meaning of hostilities may not vary as between Article 38(2), CRC and Article 77(2), API. On that basis, hostilities would only include episodes of violence that occurred within an armed conflict. However, some commentators have argued that the term should be interpreted differently in the context of the CRC. It has been argued that since the CRC is an instrument of IHRL which is applicable outside of armed conflict (whether IAC or NIAC),97 the word ‘hostilities’ seems capable of a broad construction. If that is right, Article 38(2) may require States Parties to take all feasible measures to ensure that those under the age of 15 years do not take a direct part in hostilities such as uprisings and internal disturbances. Article 77(2), API and Article 4(3), APII would not be applicable in such circumstances since there would be no IAC or NIAC (APII).98 4.103  Recruitment: As to the meaning of recruitment for the purposes of Article 38(3), and whether it includes the acceptance of voluntarily enlistment, see the discussion above at paragraphs 4.27–4.29 in relation to Article 77(2), API. Nothing further on this question could be inferred from the travaux préparatoires of the CRC. Although in 1986 the UK representative proposed replacing ‘recruiting’ with ‘conscripting’ or using the alternative formulation ‘recruiting compulsorily’ in what was then Article 20(2) of the draft: this amendment was not made, and it is unclear whether the reason for rejection was that it was thought to be unnecessary or because it would limit the protection afforded.99 Since the CRC is applicable in times of peace, Article 38(3) prohibits recruitment in times of peace as well as during IAC and NIAC. 4.104  Armed forces: Article 38(3) only requires States Parties to refrain from recruiting those under the age of 15 years into their armed forces. The term ‘armed forces’ is not defined by the CRC. Even if it might be broadly construed, the obligation seems to apply only in respect of the armed forces of the State. Accordingly, Article 38(3) may not of itself require the State to prohibit recruitment by non-state armed groups. 4.105  Endeavour to give priority: As to the likely meaning of endeavouring to give priority, see paragraph 4.31 above. 4.106  Articles 1–4, OPAC: The preamble to OPAC recognises that it was produced as a result of the dissatisfaction with Article 38, CRC. The States Parties recognise in the preamble that ‘to strengthen further the implementation of rights recognized in the Convention on the Rights of the Child there is a need to increase the protection of children from involvement in armed conflict’. 4.107  The principal substantive obligations in relation to recruitment and use are encompassed in Articles 1 to 4 of OPAC. OPAC distinguishes between the armed forces of the State and other armed groups. 4.107.1  Articles 1 to 3 address the position so far as concerns the armed forces of the State. In this context: (i) Article 1 addresses participation in hostilities;

97 This is without prejudice to its application during armed conflict, as to which see Ch 2, para 2.34ff. 98 Waschefort (n 3), 90. 99 United Nations, ‘Report of the Working Group on a draft Convention on the Rights of the Child’ (E/CN.4/1986/39), para 130.

204

Legal Framework  4.108–4.109 (ii) Article 2 concerns compulsory recruitment; and (iii) Article 3 addresses voluntary recruitment. 4.107.2  Article 4 addresses other armed groups and deals compendiously with duties relevant to armed groups. 4.108  The remainder of this section will distinguish between the provisions applicable to the armed forces of the State and those applicable to other armed groups. One of the difficulties in interpreting OPAC is that the CRC Committee has not issued interpretive guidance in relation to OPAC, whether in the form of a General Comment or otherwise. Armed Forces of the State 4.109  Direct participation in hostilities: Article 1 concerns participation in hostilities and provides: ‘States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.’ 4.109.1  Age limit: Article 1 applies to all persons under 18 years of age and therefore represents an extension to the protection afforded by Article 38(2), CRC so far as concerns the armed forces of the State. 4.109.2  Feasible measures: Article 1 imposes an obligation to take all feasible measures rather than an absolute prohibition on the direct participation of those under 18 years of age in hostilities. The likely meaning of ‘feasible measures’ has been considered above. The parties to OPAC plainly had Article 38, CRC in mind when entering into OPAC and chose to replicate concepts used in the CRC. Accordingly, it would be surprising if the meaning of feasible measures varies as between the CRC and OPAC.100 The reason why Article 1 only requires a State to take feasible measures, rather than imposing a more onerous obligation, may be because it is lawful under OPAC for a State voluntarily to recruit a child under the age of 18 years into its armed forces (see further below, paragraphs 4.110.4–4.110.7). This creates a practical difficulty in thereafter restricting the child’s direct participation in hostilities. As one commentator has noted: ‘The fact that under-18s may be recruited into States Parties’ armed forces renders it likely that such persons will, in situations of armed conflict, and whatever precautions are taken, from time to time be attacked by enemy troops’.101 Article 1, OPAC imposes a weaker obligation than Article 22(2) of the ACRWC, which provides in relevant part that: ‘States Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities …’.102 Pursuant to Article 2 of the ACRWC, a child is defined as any person under the age of 18 years. As one commentator has noted, Article 22(2) imposes

100 Furthermore, in joining OPAC, a number of States have confirmed their view on the meaning of feasible measures. The United States has, for example, declared that it refers to ‘those measures that are practical or practically possible, taking into account all the circumstances ruling at the time, including humanitarian and military considerations’. The declarations are accessible at UN Treaty Collection (n 92). 101 Happold (n 96), 237; see also Michael J Dennis, ‘Newly Adopted Protocols to the Convention on the Rights of the Child’ (2000) 94(4) AJIL 789–96, 791. 102 Emphasis added.

205

4.110  Recruitment and Use of Children ‘an obligation of result [that no child shall take a direct part in hostilities] rather than an obligation of means’.103 4.109.3  Direct participation: Article 1, OPAC only addresses direct p ­ articipation in hostilities and is unlikely to encompass any form of indirect participation in ­hostilities.104 Commentators also seem to be agreed that indirect participation is excluded by Article 1, OPAC.105 4.109.4  Hostilities: The likely meaning of hostilities has been considered above at paragraph 4.102 in relation to Article 38, CRC. 4.110  Recruitment: Article 2 addresses compulsory recruitment and provides: ‘States Parties shall ensure that persons who have not attained the age of 18 years are not ­compulsorily recruited into their armed forces’. 4.110.1  Age limit: Article 2 applies in respect of all children who have not attained the age of 18 years. In this respect, the restriction on compulsory recruitment goes further than Article 38(3), CRC, which only applies to children under the age of 15 years. 4.110.2  Shall ensure: Similarly, Article 2 requires states to ‘ensure’ that children are not compulsorily recruited rather than to ‘refrain’ from recruiting them (the formulation used in Article 38(3)). This imposes a positive obligation on states. Accordingly, a state would be required to take pro-active steps to ensure that there was no compulsory recruitment. 4.110.3  Compulsory recruitment: OPAC does not define the concept of compulsory recruitment. However, it is inherent in the use of the term that the recruitment must involve some ‘compulsion’. Compulsion by dint of a legal obligation or by the use of any coercive force ought to be sufficient, in accordance with the ordinary meaning of the word. The concept of compulsory recruitment is also used in the ILO Convention No 182.106 4.110.4  Voluntary recruitment. Article 3 addresses voluntary recruitment. It is structured as follows: (i) Article 3(1) concerns raising the minimum age for voluntary recruitment, and provides: States Parties shall raise in years the minimum age for the voluntary recruitment of persons into their national armed forces from that set out in article 38, paragraph 3, of the Convention on the Rights of the Child, taking account of the principles contained in

103 Waschefort (n 3), 97. 104 The declaration made by the United States (n 92) suggests that in its understanding the phrase means: ‘(i) Immediate and actual action on the battlefield likely to cause harm to the enemy because there is a direct causal relationship between the activity engaged in and the harm done to the enemy; and (ii) does not mean indirect participation in hostilities, such as gathering and transmitting military information, transporting weapons, munitions, or other supplies, or forward deployment’. 105 See Happold (n 96), 237; Dennis (n 101), 792; Coomaraswamy (n 41), 539. 106 Art 1 requires States to take ‘immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency’. Art 2 defines the term ‘child’ to include all persons under the age of 18. Art 3 defines the term ‘the worst forms of child labour’ to include, under Art 3(a), ‘forced or compulsory recruitment of children for use in armed conflict’.

206

Legal Framework  4.110 that article and recognizing that under the Convention persons under the age of 18 years are entitled to special protection.107

Pursuant to Article 3(5), however: The requirement to raise the age in paragraph 1 of the present article does not apply to schools operated by or under the control of the armed forces of the States Parties, in keeping with articles 28 and 29 of the Convention on the Rights of the Child.

(ii) Article 3(3) addresses safeguards in respect of voluntary recruitment. It provides: States Parties that permit voluntary recruitment into their national armed forces under the age of 18 years shall maintain safeguards to ensure, as a minimum, that: (a)  Such recruitment is genuinely voluntary; (b)  Such recruitment is carried out with the informed consent of the person’s parents or legal guardians; (c)  Such persons are fully informed of the duties involved in such military service; (d)  Such persons provide reliable proof of age prior to acceptance into national military service.

(iii) Article 3(2) sets out a procedure for giving effect to Articles 3(1) and 3(3): Each State Party shall deposit a binding declaration upon ratification of or accession to the present Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards it has adopted to ensure that such recruitment is not forced or coerced.

Article 3(4) provides that in respect of such declarations: Each State Party may strengthen its declaration at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall inform all States Parties. Such notification shall take effect on the date on which it is received by the Secretary-General.

4.110.5  The obligation to raise the minimum age: Since Article 3(1) requires the minimum age for voluntary recruitment to be raised ‘in years’, it imposes an obligation to raise such minimum age to at least 16 years. One commentator has observed that whilst it could be said that the obligation under Article 3(1) would be satisfied by raising the minimum age to 15 years and one day, this is a questionable interpretation.108 We agree; such a construction appears to be based on reproductions of the text of Article 3(1) that mistakenly omit the words ‘in years’. Furthermore, and in any event, in raising the minimum age, States are required to take account of the principles set out in Article 38(3), CRC109 (and it is implicit in Article 3(1), that states may lawfully 107 The text of Article 3(1) has not always been accurately or consistently reproduced. In particular, the words ‘in years’ are omitted in the English and French language versions of OPAC available on the OHCHR website (but included in the Spanish language version). Those words were, however, present in the final English language draft text of OPAC produced by the Working Group: see UN Doc E/CN.4/2000/74, para 62. 108 See also Happold (n 96), 238, fn 77: ‘A strict reading might hold that as the obligation is only to raise the minimum age for recruitment from 15 years, an increase to 15 years and one day would be sufficient to ensure compliance with the provision. Such an interpretation, however, would hardly be the result of reading the treaty in good faith in the light of its object and purpose’. 109 A question may arise as to whether a State which is a party to OPAC but not to the CRC is obliged to take account of the principles in Art 38(3), CRC. This, however, is of limited practical relevance as only the United States has failed to ratify the CRC.

207

4.110  Recruitment and Use of Children permit the voluntary recruitment of children under the age of 18 years).110 Since Article 38(3), CRC permits the recruitment of children who are 15 years old, it seems likely that the intended effect of Article 3(1), OPAC is that States Parties to OPAC are required to raise the minimum age for voluntary recruitment to, at least, 16 years.111 The only principle which seems to be directly relevant is the principle to endeavour to give priority to older children. In this respect, whilst states may be required to raise the minimum age to 16 years, they are encouraged to go further and give priority to older children. 4.110.6  The consequence of raising the minimum age: Once the minimum age has been raised, what is the State Party obliged to do pursuant to OPAC? Article 3 is not clear in relation to this issue. However, OPAC may well impose an obligation not to reduce that minimum age. States are required by Article 3(2) to deposit a binding declaration; by so doing the state will have committed itself to a minimum age. Since Article 3(4) only provides for such declaration to be subsequently ‘strengthen[ed]’, it is at least strongly arguable that a State will not be permitted to reduce the minimum age. This has been referred to as a ‘ratchet mechanism’.112 Alternatively, the binding declaration under Article 3(2) may be considered a unilateral act having the force of an international commitment,113 preventing the state from subsequently reducing the minimum age. 4.110.7  Safeguards and their objectives: Pursuant to Article 3(3), states are also required to maintain safeguards with a view to ensuring that recruitment is genuinely voluntary, that it is informed, and that the age of the child is properly verified as part of the recruitment process. Article 3(3) does not describe or define what would constitute a relevant safeguard. Pursuant to Article 3(2), states are required to give a binding declaration identifying the safeguards they have implemented. However, the binding declaration need only address the safeguards that are intended to ensure recruitment is not ‘forced or coerced’, and therefore potentially may not encompass all of the safeguards required under Article 3(3). It is doubtful that the obligation to maintain safeguards in respect of the voluntary recruitment of children under 18 years of age is sufficient to ensure that recruitment is genuinely voluntary. In particular, children under 18 years may be compelled to enlist due to factors such as ‘poverty, lack of physical security and lack of opportunities’.114 In those circumstances, even if such children have been informed of their duties and obtained the consent of their parents to their recruitment, it may be difficult to characterise their recruitment as genuinely ‘voluntary’. We do not address this issue further since it involves matters that extend far beyond purely legal reform, for example the factors that limit the opportunities for children, particularly in areas of the world affected by armed conflict. 110 It may be that Art 3(1) imposes a weaker obligation than Art 22(2) of the ACRWC, which requires States to ‘refrain in particular, from recruiting any child’. However, that would depend on whether ‘recruitment’ for the purposes of Art 22(2) includes voluntary recruitment. 111 Helle (n 95), 805. 112 Happold (n 96), 238. 113 See: Nuclear Tests (Australia v France) [1974] ICJ Rep 253, para 43; Nuclear Tests (New Zealand v France) [1974] ICJ Rep 457, para 46. For the requirements of unilateral acts, see: Armed Activities in the Territory of the Congo (DRC v Rwanda) (Jurisdiction and Admissibility) [2006] ICJ Rep 6, paras 46–55. 114 Coomaraswamy (n 41), 540.

208

Legal Framework  4.111–4.114 Armed Groups 4.111  Article 4 addresses armed groups as distinct from the armed forces of the state. 4.111.1  Article 4(1) provides: ‘Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years’. 4.111.2  Article 4(2) provides: ‘State Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalise such practices’. 4.112  Armed groups ‘distinct from the armed forces of a State’: The formulation appears to be wide enough to encompass armed groups that are allied to the state, as long as they are distinct from the armed forces of the state. The application of Article 4(1) does not appear to depend on the allegiance of the armed groups. In practice, however, Article 4(1) may most often apply to those armed groups that are involved in hostilities with the armed forces of a state. 4.113  The standard expected of armed groups: Article 4(1) sets out the standard with which armed groups are required to comply. It is unlikely that Article 4(1) was intended to impose any direct obligation on armed groups. This is for three reasons. First, the language of the provision – and the use of the phrase ‘should not’ – is hortatory.115 Second, OPAC is conceived of as an instrument of IHRL, rather than IHL, and instruments of IHRL are generally directed to the obligations of the state rather than to non-state actors. Third, the report of the working group charged with considering a draft of OPAC indicates that specific consideration was given to imposing a legal obligation on non-state groups, using mandatory language, but that proposal ultimately did not find favour.116 The report also notes that ‘many delegations were cautious, wishing to avoid equating armed groups with States Parties and not to provide recognition to such groups in an international legal document’.117 4.114  We note that the standard of behaviour expected from armed groups under Article 4(1) is much higher than that expected of the armed forces of the state under Articles 1 to 3. In particular: 4.114.1  There is an absolute prohibition on persons under the age of 18 years participating in hostilities, rather than an obligation simply to take feasible measures to ensure they do not do so. 4.114.2  The prohibition extends to any ‘use’ of persons under the age of 18 years in hostilities. The notion of ‘use’ in Article 4(1) is likely to be much broader than the concept of direct participation in hostilities used in Article 1, and will include various forms of indirect participation. This is because a person is still used in hostilities even

115 As one commentator has remarked, Art 4(1) ‘seems to impose a moral, as opposed to a legal, obligation under international law’: see Helle (n 95), 806. 116 See the ‘New Article A’ addressed in UN Commission on Human Rights, ‘Report of the working group on a draft optional protocol to the Convention on the Rights of the Child on involvement of children in armed conflicts on its second session’ (21 March 1996) 52nd Session, UN Doc E/CN.4/1996/102, paras 118–24. 117 UN Commission on Human Rights, ibid, para 31.

209

4.115–4.118  Recruitment and Use of Children if he is only participating indirectly in hostilities, for example, by performing a logistical support or supply function rather than engaging in combat. 4.114.3  Voluntary recruitment of persons under the age of 18 years is not permissible in any circumstances. In contrast, persons under the age of 18 years may be voluntarily recruited into the armed forces of a State. 4.115  Feasible measures: The only obligation of the state is to take all feasible measures to prevent recruitment and use of child soldiers by armed groups which would violate the standard set out in Article 4(1). Again, no separate definition is provided of feasible measures, but Article 4(2) makes clear that the adoption of domestic legislation which both prohibits and criminalises such practices will be considered a feasible measure that the state is bound to take. The fact that Article 4(2) is framed only in terms of ‘feasible measures’ may reflect the practical reality that states may exercise limited control over armed groups operating in their territories.118 2.  Problems and Deficiencies with the Legal Framework 4.116  First, OPAC has not been universally ratified. OPAC has significantly improved IHRL concerning child soldiers. At present 167 states have ratified OPAC, 12 have signed OPAC but not yet ratified, and some 18 states have neither signed nor ratified OPAC.119 Those 30 states that have not yet ratified should be encouraged to ratify OPAC. Nonetheless, despite the increase in protections achieved by OPAC, in our view there are two other problems in the existing IHRL framework for addressing ‘child soldiers’. 4.117  Second, the differences between IHL and IHRL on the recruitment and use of children makes the law complex. As we have noted in Chapter 2, paragraphs 2.83 to 2.91 the general relationship between IHL and IHRL is complex. In the specific context of this Chapter the potential for difficulty is apparent: there are gaps and inconsistencies in the two regimes and so a state may have differing obligations under different instruments, even though they are applicable to the same situation. 4.118  One illustration of this problem is as follows. Consider the rules against the participation of children under the age of 15 years in hostilities. Article 4(3)(c), APII contains an absolute prohibition on the parties to a NIAC (including states) in respect of all such participation. However, pursuant to Article 38(2), CRC, states are only required to take feasible measures to ensure that there is no ‘direct’ participation in hostilities, even in respect of children under the age of 15 years who might have voluntarily enlisted in the state’s armed forces. This means that the same state would have different obligations under APII and CRC, even though both instruments would be applicable in a NIAC (APII). This inconsistency has been largely addressed by OPAC, given that states are not permitted voluntarily to enlist children under the age of 16 years, so that there ought to be no opportunity for children under 16 to take any part in hostilities on behalf of the

118 Dennis (n 101), 793. 119 ICRC, ‘Treaties, States Parties and Commentaries: Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 25 May 2000’ (ICRC), available at .

210

Legal Framework  4.119–4.124 state. However, in respect of those small number of states that have not ratified OPAC, these problems may persist. 4.119  Third, there is imbalance in the OPAC obligations relevant to the armed forces of the state and other armed groups. As noted above, the standard expected from non-state armed groups under Article 4(1) is much higher than that expected of state armed forces under Articles 1 to 3. This risks undermining OPAC since it may be viewed as imposing a double standard.120 One commentator has suggested that the difference may even encourage non-state groups to make greater use of children in contravention of the law.121 4.120  It might be argued that the scheme of OPAC is unproblematic because Article 4(1) does not in fact impose any legal obligation on non-state armed groups. However, that does not appear to be a sufficient answer. Pursuant to Article 4(2), states are required to implement domestic legislation penalising activities of armed groups which do not satisfy the standard specified in Article 4(1). Accordingly, the net result of OPAC is that states and non-state armed groups are (or will be) subject to differing obligations, whether these stem from international law (for states) or domestic law (for non-state armed groups), so far as concerns the recruitment and use of children.122 3.  Suggestions to Improve the Legal Framework 4.121  We have four suggestions for addressing these deficiencies in the legal framework. 4.122  First, greater ratification of OPAC should be encouraged. This would help increase standards of protection in general. It would also be helpful to have greater consistency by consolidating the multiple existing norms of IHL and IHRL: see paragraph 4.124 below. 4.123  Second, the law could be clarified by the CRC Committee issuing a General Comment regarding Article 38(2), CRC; Article 4(3)(c), APII and also OPAC. This may assist in clarifying some the existing interpretative difficulties. It may also assist in managing the relationship between IHL and IHRL norms in this area. 4.124  Alternatively, consideration should be given to the possibility of consolidating the protections that presently exist in IHL and IHRL. In earlier Chapters we have suggested that consideration is given to whether one instrument could collect together and codify (in relation to CIL) the law applicable to children in armed conflict. In those Chapters we have also suggested consolidating rules of IHL and IHRL where they have similar content. The purpose of the collection, codification and consolidation would be to make the law easier to identify and, therefore, to improve the prospects of effective training and compliance and also accountability. In the context of this Chapter, and given the various standards of protection that are embodied in the different IHL and IHRL rules, consolidation is likely to be a challenging exercise, even if the necessary political will exists to 120 Helle (n 95), 808. 121 Waschefort (n 3), 96. 122 We note, however, that it may not have been practical to impose upon armed groups the same standards that are expected of states. In particular, one reason given by states to justify the differing approach as between armed forces of the state and other armed groups is that non-state groups may not have the institutional ­capacity to, for example, provide for safeguards in respect of voluntary enlistment: see Coomaraswamy (n 41), 540–41.

211

4.125–4.126  Recruitment and Use of Children try to agree a single instrument. If greater ratification of OPAC is successfully achieved then one possible approach would be to collect (rather than consolidate) the relevant applicable norms in one instrument as follows: (i) the norm that embodies the highest existing standard of protection in IHL (ICRC, CIL Rules 136 and 137); (ii) the norm that embodies the highest existing standard of protection (re states) in IHRL (Articles 1–3, OPAC) and (iii) the norm that embodies the highest existing standard of protection (re non-state armed groups) in IHRL (Article 4, OPAC). Such an exercise would still be helpful because it would be an authoritative collection of the law and make the law easier to identify and understand. 4.125  Third, addressing the inconsistency between Articles 1 to 3 and Article 4(1) of OPAC, is likely require a long-term and multi-faceted strategy. There is no simple solution. On the one hand, amending Article 4(1) so as to require a lower standard for armed groups is unattractive since that may lead to the inference that the recruitment and use of children under the age of 18 years is acceptable. On the other hand, and in light of existing state practice, there may be practical difficulties (at least at present) in raising the standards in relation to the armed forces of the state. Thus, it is questionable whether a sufficiently strong consensus exists at present in favour of a total prohibition on the voluntary enlistment of children under the age of 18 years. Some states continue to enlist such children. This includes Austria, Bangladesh, India, New Zealand, the United ­Kingdom and the United States. However, as we have noted above, paragraph 4.43, there may be cause for optimism that they could be persuaded to move away from such practices in the near future, although that may have other implications for those over 18. For example, during the course of negotiating OPAC it was suggested that the prohibition on the voluntary enlistment of children under 18 years of age might mean that states would then have to conscript or otherwise forcibly recruit those over the age of 18 years, although it is unclear whether that argument would be maintained today.123 4.126  In the circumstances, and until a sufficiently strong consensus can be established in favour of raising the standards in relation to the armed forces of the state, the inconsistency between Articles 1–3 and Article 4(1), OPAC may be reduced by taking the following two steps: 4.126.1  First, the law could be developed by heightening the standards in domestic law: consideration should be given to imposing an express requirement upon states to incorporate into domestic law, including into domestic criminal law and military manuals where appropriate, the standards set out in Articles 1 to 3 of OPAC so far as concerns state armed forces. This should assist in reducing the perceived unfairness of the law by at least enabling public authorities to be held accountable in domestic law for failures to meet the international law standards applied to non-state armed groups. 4.126.2  Second, the law could be developed by heightening the standards in international law: concerted action should be taken by the international community to encourage states to raise the minimum age for voluntary recruitment so far as possible, in order to reduce the perceived inconsistency in the law. States who have already made declarations pursuant to Article 3(2), OPAC specifying a minimum age for voluntary



123 See

the discussion in Dennis (n 101), 790.

212

Accountability Mechanisms  4.127–4.128 recruitment below 18 years of age should be encouraged to strengthen those declarations under Article 3(4), OPAC, ie by increasing the minimum age where possible. Those states that have not already done so should be encouraged to make declarations under Article 3(2), OPAC, specifying 18 years of age as a minimum age for voluntary recruitment. III.  ACCOUNTABILITY MECHANISMS

4.127  As explained in Chapter 2, paragraph 2.92ff accountability measures may be conceptualised as falling on a spectrum. In the sections below we refer to illustrations of the ways in which existing accountability mechanisms have been used in relation to recruitment and use, organised along the Chapter 2 spectrum, focussing on international adjudicative mechanisms and grouped by reference to IHL, ICL and IHRL. We then go on to consider specific problems with those existing mechanisms, as they arise in the context of this Chapter, and finally, make suggestions for improvement. General accountability concerns are addressed in Chapter 9. 4.128  Three points deserve emphasis at the outset: 4.128.1  First, the recruitment and use of children raises unique obstacles to achieving accountability. This may explain the concerted recent international action on this issue (see, for example, the Paris Principles (2007) and the Vancouver Principles (2017): Chapter 2, paragraph 2.65). Recruitment and use are well-established as war crimes under the Rome Statute and CIL – but children involved in armed conflict in this way, often very young in age, may have committed war crimes or other atrocities themselves. The conflict in Uganda has been described as ‘a war fought by children on children’,124 but the same could be said of other conflicts around the world. Although, as we explained in Chapter 2 paragraph 2.3.1, issues relating to child perpetrators are beyond the scope of this book, these realities require engagement with areas of considerable complexity, and may demand new approaches to the notion of victims and perpetrators.125 4.128.2  Second, and in a similar vein, the welter of rules in this area reflects a combination of efforts to respond to situations of egregious abuses, as well as attempts to create a clear set of prophylactic bright lines – which may be overinclusive at times – in order to prevent slippery slopes. This in turn may appear to create the potential for tension between an apparent reactiveness which risks being seen as ‘too little too late’, and a proactive eagerness which may appear to put the ‘cart before the horse.’

124 United Nations, ‘Uganda: Child soldiers at centre of mounting humanitarian crisis’ (10 Stories the World Should Hear More About – 2004 Stories, 2004), available at . 125 The Special Representative for Children and Armed Conflict has outlined two threshold questions to be answered when a state considers prosecuting a child, namely ‘(1) whether the court has jurisdiction to try a case against the child; and (2) whether the child has criminal responsibility’: see Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘Working Paper No. 3: Children and Justice During and in the Aftermath of Armed Conflict’ (Office of the Special Representative of the Secretary-General

213

4.129–4.130  Recruitment and Use of Children 4.128.3  Third, those who recruit and use children in armed conflict may also be violating international and domestic law in other areas, including for example laws relating to trafficking or terrorism. Although a detailed discussion of how those other laws might apply to the situation of children in conflict is beyond the scope of this book, we note that pursuing perpetrators for those breaches may offer alternative or additional routes to achieving accountability. A.  Application of Accountability Mechanisms 1.  IHL Accountability Mechanisms Adjudicative Accountability Mechanisms 4.129  Domestic courts. The most direct means of ensuring accountability for breaches of IHL is for countries to enshrine IHL within their domestic legal systems and to provide domestic penalties for breach. The IHL instruments relevant to recruitment and use – GCIV, API and APII – do not require states to criminalise conduct which violates the relevant provisions regarding recruitment and use.126 Instead, Article 1, GCIV and Article 1, API impose an obligation on High Contracting Parties to respect and to ensure respect for GCIV and API respectively in all circumstances: see further Chapter 2 paragraph 2.99ff. Article 146, GCIV – which applies to Article 50, GCIV – also requires High Contracting Parties to ‘take measures necessary for the suppression of all acts contrary to the provisions of the present Convention’. Article 19, APII, simply requires that APII ‘shall be disseminated as widely as possible.’ Of course, states may choose to implement the IHL obligations in these instruments domestically, and doing so may be a means of achieving the outcomes envisaged by those instruments. Although analysing the ways in which countries have done so (or the effectiveness of such measures) is beyond the scope of this book, to the extent that countries recognise breaches of IHL as breaches of their own law, ‘hard’ accountability can be achieved through relevant domestic channels. 4.130  International and regional courts. Although there is no court specifically tasked with overseeing breaches of the Geneva Conventions (or IHL in general), there are cases where IHL has been applied by international and regional courts in the context of the recruitment and use of children. For example, the International Court of Justice (ICJ) applied IHL in a case involving ‘child soldiers’, and the rights of children in armed conflict more broadly. In Armed Activities on the Territory of the Congo,127 the ICJ found that Uganda had violated IHL and IHRL, with its national forces ‘involved in the training

for Children and Armed Conflict, New York, September 2011) (SRSG Working Paper No 3), 34. To these we might add a third question, namely, the consideration of whether, even in the event that the answer to the two questions above is ‘yes’, a prosecution should, as a matter of policy, be brought against the child. 126 Cf Art 146, GCIV which requires States Parties to ‘undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed’ any of the ‘grave breaches’ set out in Art 147, GCIV. See also Art 85(1), API. 127 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Merits: Judgment) [2005] ICJ Rep 168.

214

Accountability Mechanisms  4.131–4.132 of child soldiers’128 and ‘fail[ing] to prevent the fresh recruitment or re-recruitment of children as child soldiers’.129 In its decision, the Court applied GCIV and API.130 Another example is the SCSL: it considered GCIV, API and APII in cases involving ‘child soldiers’, such as Prosecutor v Norman,131 Prosecutor v Alex Tamba Brima, Ibrahim Bazzy Kamara, and Santigie Borbor Kanu,132 and Prosecutor v Issa Hassan Sesay, Morris Kallon, and Augustine Gbao.133 4.131  Treaty bodies. As explained in Chapter 2, at paragraph 2.108, there are no specific treaty bodies established pursuant to IHL treaties. The spectrum of accountability considered in this book also includes the potential for the application of IHL by IHRL treaty bodies. The CRC Committee, while not an IHL treaty body as such, nevertheless has competence over certain IHL matters: in particular, over the rules on recruitment and use of child soldiers in Article 38, CRC and in OPAC. In relation to these, the CRC Committee has adjudicative, inquisitorial, and monitoring functions. However, to date, the adjudicative and inquisitorial mechanisms have not been used in relation to recruitment and use. The CRC Committee’s role has therefore focused on monitoring, namely reviewing initial reports which must be submitted by states who have ratified OPAC, and then considering states’ regular follow-up reports. In the exercise of this function, the CRC Committee has referred to IHL either incidentally or as part of the background considerations. For example, the CRC Committee’s 2016 report on Nepal exercised some oversight over that country’s Commission of Inquiry on Disappeared Persons and the Truth and Reconciliation Commission, which has competence for acts which contravened international humanitarian and human rights law and crimes against humanity.134 Other Accountability Mechanisms 4.132  UNSC. There are three principal ways in which the UNSC has contributed to accountability for IHL violations regarding recruitment and use of children in armed conflict. The first is by expressions of concern and condemnation for such violations. The second is by the imposition of sanctions. The third is through the Working Group. We consider each of these below.

128 ibid, para 211. 129 ibid, para 210. 130 The Court concluded, at para 220, that Uganda was ‘internationally responsible for violations of [IHRL] and [IHL] committed by [its armed forces] and by its members in the territory of the DRC and for failing to comply with its obligations as an occupying Power in Ituri in respect of violations of [IHRL] and [IHL] in the occupied territory’. That finding led the Court to order that reparations be paid by Uganda to the DRC, with the parties to seek to reach agreement between themselves in the first instance as to the amount to be paid, failing which the question could be settled by the Court. However, 12 years later, the parties have not agreed, and protracted proceedings are under way in relation to the issue: see Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Order) General List No 116 (2016), available at . 131 Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) (n 29). 132 AFRC, Judgment (n 60). 133 RUF, Judgment (n 62). 134 OHCHR, ‘Committee on the Rights of the Child reviews the reports of Nepal’ (20 May 2016), available at .

215

4.133–4.134  Recruitment and Use of Children 4.133  Expression of concern and condemnation of violations of IHL regarding ­children. A number of United Nations Security Council (UNSC) Resolutions refer to child soldiers. For example, 4.133.1  UNSC Resolution 1261 (1999),135 urged ‘an end to the recruitment and use of children in armed conflict in violation of international law through political and other efforts’136 as well as ‘the disarmament, demobilization, rehabilitation and reintegration of children used as soldiers in violation of international law’;137 4.133.2  UNSC Resolution 1314 (2000),138 requested parties to include ‘provisions for the protection of children, including the disarmament, demobilization and reintegration of child combatants, in peace negotiations and in peace agreements and the involvement of children, where possible, in these processes’139 and addressed regional initiatives for the protection of children in armed conflict, urging states to ‘Consider declaring regional initiatives towards full implementation of the prohibition of the use of child soldiers in violation of international law’;140 4.133.3  UNSC Resolution 1539 (2004),141 outlined the scope of actions that constitute grave violations against children in armed conflict, including using and recruiting child soldiers; and 4.133.4  UNSC Resolution 1882 (2009),142 strongly condemned ‘all violations of applicable international law involving the recruitment and use of children by parties to armed conflict’143 and repeated previous calls on parties listed in the annexes to the Secretary-General’s annual report to prepare and implement action plans to halt recruitment and use of children.144 4.134  UNSC Resolutions tend to refer to the recruitment and use of children alongside exhortations in relation to the other grave violations; in a conflict-specific context which is therefore not of broader application;145 in an ex post facto way in respect of existing breaches; or by way of general condemnation, lacking targeted action points. This does not diminish the importance of UNSC Resolutions but it does make it difficult to assess the extent to which UNSC Resolutions have reduced the recruitment and use of children or had a direct impact on the conduct of states. Nevertheless, as explained in ­Chapter 2 at paragraph 2.10, UNSC decisions are binding on states by virtue of ­Article 25, UN ­Charter and, even if not binding, these Resolutions provide a ‘strong mandate for

135 UNSC Res 1261 (30 August 1999) UN Doc S/RES/1261 (1999). 136 ibid, para 13. 137 ibid, para 15. 138 UNSC Res 1314 (11 August 2000) UN Doc S/RES/1314 (2000). 139 ibid, para 11. 140 ibid, para 16(f). 141 UNSC Res 1539 (22 April 2004) UN Doc S/RES/1539 (2004). 142 UNSC Res 1882 (4 August 2009) UN Doc S/RES/1882 (2009). 143 ibid, para 1. 144 ibid, para 5. 145 See, eg, UNSC Res 2211 (26 March 2015) UN Doc S/RES/2211 (2015) extending the mandate of the UN Organisation Stabilisation Mission in the DRC, which cited the continuing instances of recruitment and use of children in that country, and the need to vigorously implement the action plan agreed by the Government to halt recruitment and use: see, in particular, paras 15(f) and 32.

216

Accountability Mechanisms  4.135–4.137 international action to protect the security and rights of children in situations of armed conflict’.146 They are therefore valuable since, at the very least, they may serve as a policy guide and may influence domestic (political or legal) measures. 4.135  Sanctions. One of the more robust accountability mechanisms open to the UNSC is the imposition of economic sanctions. Economic sanctions, embargoes and travel bans increasingly have been used as a coercive tool through their application to individuals for violations of IHL and IHRL, including violations of children’s rights. Under Resolution 1493 (2003), the UNSC imposed individual targeted sanctions, consisting of: an arms embargo; prohibitions on training and financial assistance on certain named individuals and entities; a travel ban on individuals; and an assets freeze on designated individuals and entities.147 Resolution 1533 (2004)148 established a Committee to consider and designate individuals and entities to be subject to the sanctions. 4.136  The Committee has listed individuals for recruiting and using children in armed conflict. Resolution 1857 (2008) renewed and extended previously-imposed measures, applying them to, among other individuals and entities:149 Political and military leaders operating in the Democratic Republic of the Congo and recruiting or using children in armed conflicts in violation of applicable international law.

4.137  Among the individuals listed by the Committee under Resolution 1857 is Lt Col Innocent Zimurinda, one of the commanders of the FARDC,150 the state armed forces in the Democratic Republic of the Congo, who was listed on 1 December 2010. Among the reasons given by the UNSC Committee for his listing were the reports from the UNSC DRC Sanctions Committee’s Group of Experts that Lt Col Zimurinda ‘was witnessed first-hand refusing to release three children from his command in Kalehe, on August 29, 2009’, and that he ‘holds direct and command responsibility for child recruitment and for maintaining children within troops under his command’, as well as a 21 May 2010 statement from the Special Representative of the Secretary-General that Innocent Zimurinda ‘has been involved in the arbitrary execution of child soldiers’.151 Since his listing by the UNSC, Lt Col Zimurinda has also been sanctioned by the United States Department of the Treasury’s Office of Foreign Asset Control (OFAC),152 as well as by the European Union.153

146 Watchlist on Children and Armed Conflict, ‘Protecting Children: Implementation of UN Security Council Resolution 1379’ (Watchlist on Children and Armed Conflict, 2003) 1. 147 UNSC Res 1493 (28 July 2003) UN Doc S/RES/1493 (2003). 148 UNSC Res 1533 (12 March 2004) UN Doc S/RES/1533 (2004). 149 UNSC Res 1857 (31 March 2008) UN Doc S/RES 1857 (2008), para 4(d). 150 (French) ‘Forces Armeés de la République Democratique du Congo’. 151 Security Council Committee Established Pursuant to Resolution 1533 (2004) Concerning the Democratic Republic of the Congo, ‘Narrative Summaries of Reasons for Listing: CDi.031 – Innocent Zimurinda’ (Security Council Committee Established Pursuant to Resolution 1533 (2004) Concerning the Democratic Republic of the Congo, 29 October 2014), available at . 152 US Department of the Treasury, ‘Recent OFAC Actions – December 2, 2010’ (US Department of the Treasury, 2 December 2010), available at . 153 Council Decision 2010/788/CFSP of 20 December 2010 concerning restrictive measures against the Democratic Republic of the Congo and repealing Common Position 2008/369/CFSP [2010] OJ L336/30.

217

4.138–4.141  Recruitment and Use of Children 4.138  Sanctions imposed by UNSC Resolutions can also apply to non-state armed groups in effect, ie by determining the behaviour of states in relation to those entities, notwithstanding that the UNSC has no direct coercive control over the non-state armed groups themselves. A number of non-state armed groups known to recruit and use children have been, or are, the subjects of UNSC sanctions. These include, for example, the Lord’s Resistance Army, which was made the subject of a travel ban (for key individuals) and an asset freeze on 7 March 2016 under Resolution 2262 (2016) relating to the Central African Republic (CAR).154 Resolution 2262 authorised the Committee to list individuals and entities ‘recruiting or using children in armed conflict in the CAR, in violation of applicable international law’.155 States and regional entities have various mechanisms for following up on and implementing UN sanctions: the EU, for example, implements such measures into the domestic law of the EU member States through EU Council Decisions and Regulations which have direct legal effect in each Member State. 4.139  UNSC Working Group. UNSC Resolution 1612 (2005)156 established a UNSC Working Group on Children in Armed Conflict consisting of all 15 members of the UNSC. The Working Group reviews the reports of the monitoring and reporting mechanism (MRM) (see further paragraph 4.140 below), and publishes Conclusions in which they may make recommendations to parties to conflict, Member States, the UN system, donors, and other relevant actors.157 Although the Conclusions are not binding in themselves, the Working Group may also make recommendations to the UNSC which can lead to binding measures such as sanctions. In addition, the Conclusions of the Working Group are public and may therefore operate to increase pressure on parties to whom they are addressed. 4.140  MRM. The most significant monitoring and information gathering mechanism in the context of IHL and recruitment and use is the MRM, which has been described in Chapter 2, paragraph 2.123. 4.141  For the purposes of the MRM: Recruitment: refers to compulsory, forced or voluntary conscription or enlistment of children into any kind of armed force or armed group(s) under the age stipulated in the international treaties applicable to the armed force or armed group in question. Use of children: refers to the use of children by armed forces or armed groups in any capacity, including, but not limited to, children, boys and girls, used as fighters, cooks, porters, messengers, spies and collaborators. It does not only refer to a child who is taking or has taken a direct part in hostilities.158

154 UNSC Res 2262 (27 January 2016) UN Doc S/Res/2262 (2016). See also Security Council Committee Established Pursuant to Resolution 2127 (2013) Concerning the Central African Republic, ‘Narrative Summaries of Reasons for Listing: CFe.002 – Lord’s Resistance Army’ (Security Council Committee Established Pursuant to Resolution 1533 (2004) Concerning the Democratic Republic of the Congo, 7 March 2016), available at . 155 UNSC Res 2262, para 13(c). 156 UNSC Res 1612 (26 July 2005) UN Doc S/RES/1612 (2005), para 8. 157 See: UNSC Subsidiary Organs, ‘Working Group on Children in Armed Conflict’, available at . 158 See Monitoring and Reporting Mechanism on Grave Violations Against Children in Situations of Armed Conflict, ‘MRM Field Manual’ (Monitoring and Reporting Mechanism on Grave Violations Against Children

218

Accountability Mechanisms  4.142–4.143 4.142  To review all the measures taken across all listed countries in relation to recruitment and use is beyond the scope of this book. However, by way of overview we note as follows: 4.142.1  From 2006–17, parties in a total of 15 countries were listed in Annex I to the Secretary-General’s annual report in relation to instances of recruitment and use. As of the 2017 report, listed parties currently cover 12 countries, all of which have at least one party listed in association with recruitment and use of children;159 4.142.2  Of those, certain countries featured more regularly, including Afghanistan, the DRC, Myanmar and Sudan, where instances of child soldiering were reported or alleged in every report during that period.160 South Sudan has been cited in connection with incidents of recruitment and use in every report since it became a State in 2012; 4.142.3  Nevertheless, there were a number of positive items in the reports, including in Chad, Nepal and Burundi, where violations relating to recruitment and use were previously identified but subsequently addressed. Recruitment and use was last documented in those countries in the 2013, 2011 and 2009 reports, respectively. 4.143  Afghanistan provides a representative illustration of the sorts of measures which have been adopted within the framework of the MRM in relation to recruitment and use: 4.143.1 In March 2010, as part of steps taken towards the development of an action plan, the Ministry of the Interior issued an executive order, ‘prohibiting children from being recruited or used within the [Afghan National Police (ANP)], requiring children found in ANP ranks to be separated within 30 days; and calling for investigations and disciplinary action against those found to be in violation of this order’. The UN Assistance Mission in Afghanistan (UNAMA) undertook its first unannounced verification visit to the ANP recruitment and training centre in Kunduz City in May 2010,

in Situations of Armed Conflict), available at (emphasis as in original). The Field Manual cites the definition set out the in the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (Paris, February 2007) (the Paris Principles). See also the Vancouver Principles on Peacekeeping and the Prevention of the Recruitment and Use of Child Soldiers (November 2017), which build upon the Paris Principles: Ch 2, (n 81). 159 Report of the Secretary-General, ‘Children in armed conflict’ (24 August 2017) UN Doc A/72/361. As of 2017, two countries – both with listed parties associated with the recruitment and use of children in armed conflict – were included in Annex II to the Secretary-General’s report, ie situations ‘not on the agenda’ of the UNSC (Nigeria and the Philippines). 160 Although the reports are typically as specific as possible in terms of documenting precise numbers of recruitment and use violations (and whether those cases are ‘reported’, ‘verified’, ‘documented’ etc), in the reports for some particular years the problem is highlighted as a longstanding issue, but without specific numbers attached. See, eg: the 2009 report in relation to Afghanistan, which noted, ‘Allegations of recruitment of children by armed groups, including those associated with the Taliban, have been received from all regions, particularly from the south, south-east and east’ (Report of the Secretary-General, ‘Children and armed Conflict’ (26 March 2009) UN Doc A/63/785–S/2009/158, para 10); or the 2007 report in relation to the DRC, which noted, ‘There has been a decrease in the number of cases of recruitment of children in the reporting period, which can be attributed to several factors, including the progress made in the implementation of the disarmament, demobilization and reintegration programme for children, the army integration process, the decrease in the number of active fighting zones and persistent lobbying by child protection networks against the recruitment of children. Despite this overall trend, all the parties to conflict listed in my 2006 report (A/61/529-S/2006/826) continue to recruit, use and abduct children’ (Report of the Secretary-General, ‘Children and armed conflict’ (21 December 2007) UN Doc A/62/609-S/2007/757, para 38).

219

4.144–4.146  Recruitment and Use of Children and noted that the executive order was clearly posted on the walls of the centre, and trainers and new recruits were fully aware of its contents.161 4.143.2 In March 2012, the Afghan Government submitted its first progress report detailing the steps taken towards implementation of the agreed action plan under the MRM relating to underage recruitment by the national security force.162 4.143.3 In 2015, a Presidential decree criminalising underage recruitment by the Afghan National Defence and Security Forces entered into force. Three new child protection units within ANP recruitment centres were inaugurated, bringing the total to seven.163 The child protection units aim to identify and reject underage applicants and refer them to the appropriate protection services. 4.143.4 In 2016, additional child protection units were established, bringing the national total to 13. In the Secretary-General’s 2015 report on Afghanistan, such units were alleged to have resulted in the rejection of 418 underage applicants to the ANP and the Afghan Local Police.164 4.144  There are a number of NGOs with a particular focus on the issue of recruitment and use. These entities contribute to monitoring, reporting, and raising awareness about this issue, and include Child Soldiers International and the Roméo Dallaire Child Soldiers Initiative, in addition to the other NGOs working in the area of children in armed conflict more generally. 2.  ICL Accountability Mechanisms Adjudicative Accountability Mechanisms 4.145  Domestic courts. We have already noted, above, the limited IHL requirement relating to domestic implementation in the context of recruitment and use. We have not found any reported instances of domestic proceedings involving references to ICL in the context of recruitment and use. 4.146  International criminal courts and tribunals. Numerous ICC and ad hoc tribunal prosecutions, particularly those in the SCSL, have dealt with crimes relating to

161 Report of the Secretary-General, ‘Children and armed conflict’ (23 April 2011), UN Doc A/65/820-S/2011/250, para 8. 162 In particular, the Ministry of the Interior reported the establishment of a monthly monitoring and reporting system, public campaigns on birth registration, and training of Afghan national security forces personnel on age assessment procedures. It also provided information on training on child rights and prevention of underage recruitment conducted in seven ANP zones, in addition to activities intended to raise awareness in relation to gender-based violence and underage recruitment in 77 schools and 24 mosques. In parallel, the Ministry pursued efforts to prevent the falsification of national identity cards through the development of a biometric identity card system. Child centres established within national police recruitment centres in Ghor, Badghis, Herat and Farah Provinces documented attempts to enlist children into the national police and the army. Consequently, 122 underage recruits were rejected in 2012. See Report of the Secretary-General, ‘Children and armed conflict’ (15 May 2013) UN Doc A/67/845-S/2013/245, para 33. 163 Report of the Secretary-General, ‘Children in armed conflict’ (20 April 2016) UN Doc A/70/836-S/2016/360, para 31. 164 UNSC, ‘Report of the Secretary-General on children and armed conflict in Afghanistan’ (15 May 2015) UN Doc S/2015/336, para 62.

220

Accountability Mechanisms  4.147–4.148 recruitment and use of children. Their judgments have, collectively, substantially advanced jurisprudence relating to the crimes of recruitment and use. In particular, we note: 4.146.1 The Lubanga judgment165 (noted at paragraph 4.58 above), in which the defendant became the first person to be indicted by the ICC (in the event, solely on charges of recruiting and using child soldiers); 4.146.2  In every case in which judgment was given by the SCSL, the defendant was found guilty of at least one charge of recruiting and using ‘child soldiers’. Particularly notable decisions include Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu,166 in which the SCSL became the first court to prosecute and find individual responsibility for conscripting, enlisting and using children in armed conflict (as well as the first court to consider an appeal). The SCSL conducted a thorough analysis and found that this crime formed part of CIL (subsequently upheld and clarified in Prosecutor v Moinina Fofana and Allieu Kondewa).167 4.146.3  Prosecutor v Charles Ghankay Taylor,168 in which the SCSL found the former Liberian Head of State guilty of (among other things) conscripting, enlisting and using ‘child soldiers’. He was sentenced to a 50-year term (a de facto life sentence). 4.147  These examples illustrate that, like domestic criminal law, ICL operates, alongside other purposes, to punish and to deter. In doing so, it reinforces international legal norms regarding recruitment and use. Although there is ongoing debate about the effectiveness of ICL as a deterrent,169 international tribunals view deterrence as part of their mission: for example, the preamble to the Rome Statute notes the Parties’ ‘Determin[ation] to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of these crimes’, and the International Criminal Tribunal for Yugoslavia (ICTY) has indicated in some judgments that deterrence is one of the Tribunal’s proper aims.170 High-profile prosecutions and convictions therefore serve a valuable function in putting perpetrators on notice that international criminal justice has a broad and real reach. 4.148  Courts and tribunals may also award reparations payments to victims. However, there is a significant difference between a court awarding reparations and victims receiving them171. In a recent decision in the Lubanga case, the ICC set the amount of

165 Lubanga, Judgment Pursuant to Article 74 of the Statute (n 50). 166 AFRC, Judgment (n 60). 167 CDF, Judgment (n 62). 168 Taylor, Judgment (n 60). 169 Waschefort (n 3), 132–34. Space precludes an analysis of the different viewpoints on this issue; however, see, eg, Wasana Punyasena, ‘Conflict Prevention and the International Criminal Court: Deterrence in a Changing World’ (2006) 14 Michigan State Journal of International Law 39–70; Michael L Smidt, ‘The International Criminal Court: An Effective Means of Deterrence?’ (2001) 167 Military Law Review 156–240. 170 Prosecutor v Dusko Tadić a/k/a/ ‘Dule’, Appeals Chamber (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1-AR72 (2 October 1995), para 72; Prosecutor v Momir Nikolić, ICTY IT-02-60/1 (2 December 2003), paras 89–90. 171 See (n 130).

221

4.149–4.150  Recruitment and Use of Children Lubanga’s liability for collective reparations at USD 10,000,000.172 However, the court also noted that, while Mr. Lubanga’s personal indigence was not a relevant consideration in the context of determining the amount of reparations for which he was to be liable, it did mean that, in practice, if any funds were to be paid to victims, these would have to come from other sources.173 To that end, the Court called on the Board of Directors of the ICC’s Trust Fund for Victims174 to consider what amounts could be set aside to implement the reparations in this case, and instructed the Trust Fund to make contact with the Government of the DRC to discuss how the Government might contribute to the reparations process. The effectiveness of this reparations award therefore remains to be seen – and insofar as one function of reparations is as an accountability mechanism holding perpetrators to account (as opposed to simply a means of compensating victims for harm suffered), the recent Lubanga decision illustrates some of the hurdles to enforcing them against individual perpetrators. 4.149  In weighing up the gravity of crimes committed, international courts have tended to treat the fact that victims were children as an aggravating factor.175 As the ICC held in Lubanga, ‘The crimes of conscripting and enlisting children under the age of fifteen and using them to participate actively in hostilities are undoubtedly very serious crimes that affect the international community as a whole’.176 In the recent Lubanga reparations decision noted above, the ICC held that, in order for a person to establish that he or she was one of Lubanga’s victims, the ‘key element’ was demonstrating ‘child soldier status’.177 Similarly, the ICTY has held that where victims are women or children, such status indicates special vulnerability.178 That vulnerability, in turn, has a number of ramifications for how those individuals should be expected to participate in the trials of their aggressors, however issues such as child witnesses are beyond the scope of this book. 4.150  Issuing indictments and overseeing prosecutions are the most high-profile aspect of the mandates of the ICC and other international courts and tribunals. Those bodies, and other actors designated under the statutes which establish them, often make contributions to the ‘soft’ side of the accountability spectrum in relation to ICL. For example, the Rome Statute permits the Prosecutor of the ICC to initiate investigations on the basis of crimes within the jurisdiction of the Court, seeking information as necessary from states, organs of the UN, or other organisations or ‘reliable sources that he or she deems appropriate’.179

172 Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Thomas Lubanga Dyilo, Trial Chamber II, Decision setting the amount of reparations for which Thomas Lubanga Dyilo is liable, ICC-01/04-01/06 (15 December 2017) (French only). 173 ibid, paras 283–87. 174 Established under Article 79, Rome Statute. 175 See, eg, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Thomas Lubanga Dyilo, Trial Chamber I, Decision on Sentence pursuant to Article 76 of the Statute ICC-01/04-01/06, paras 36–44. See also the Dissenting Opinion of Judge Odio Benito. The use, enlistment and conscription of children as soldiers were held to be very serious crimes involving significant harm to victims and their families. 176 Lubanga, Decision on Sentence pursuant to Article 76 of the Statute (n 175), para 37. 177 Lubanga, Decision setting the amount of reparations for which Thomas Lubanga Dyilo is liable (n 171), paras 66–67. 178 Prosecutor v Tihomir Blaškić, Trial Chamber (Judgment) ICTY IT-95-14-T (3 March 2000), para 786. 179 Art 15, Rome Statute.

222

Accountability Mechanisms  4.151–4.155 Other Accountability Mechanisms 4.151  The UNSC may ‘refer’ situations where crimes under the jurisdiction of the ICC appear to have been committed to the Prosecutor of the ICC.180 3.  IHRL Accountability Mechanisms Adjudicative Accountability Mechanisms 4.152  Domestic courts. As is the case in relation to IHL, domestic governments can help promote accountability for breaches of IHRL by implementing those measures within their domestic legal systems and by providing penalties for their breach. 4.153  In contrast to the general position under IHL – namely that key instruments require domestic criminalisation of certain grave violations, but otherwise impose an obligation ‘to respect and to ensure respect’ for their provisions – the main IHRL instruments relating to recruitment and use expressly provide for States Parties to implement their provisions domestically: 4.153.1  Article 4, CRC requires that ‘States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention’. 4.153.2  Article 4(2), OPAC requires that States Parties ‘shall take all feasible measures to prevent … recruitment and use [by ‘armed groups that are distinct from the armed forces of a State’], including the adoption of legal measures necessary to prohibit and criminalize such practices.’ 4.153.3  Article 6(1), OPAC requires that States Parties ‘shall take all necessary legal, administrative and other measures to ensure the effective implementation and enforcement of the provisions of the present Protocol within its jurisdiction’. 4.154  To the extent that countries recognise breaches of IHRL as breaches of their own law, ‘hard’ accountability can be achieved through relevant domestic courts and other tribunals. A review of the ways in which countries have or have not met this obligation (or the effectiveness of such measures) is beyond the scope of this book. 4.155  International and regional courts. Another forum for ‘hard’ accountability for breaches of IHRL is that of international and regional courts. The ICJ’s Armed Activities on the Territory of the Congo case discussed above (paragraph 4.130) is a helpful example in the IHRL context as well. There, the ICJ held that Uganda, through its military, had committed serious breaches of IHRL relating to the training of ‘child soldiers’, and was consequently required to pay reparations. The Court cited in particular the CRC and OPAC as applicable to the case, and found that Uganda violated its obligations under

180 Art 13(b), Rome Statute. The referral power has been used twice, in relation to the situations in Darfur (UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593 (2005)) and Libya (UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970 (2011)). In addition to referring the respective situations to the ICC, the UNSC imposed a range of sanctions, including arms embargos, travel bans, and asset freezes: in the case of Darfur, these were set out in an accompanying resolution (UNSC Res 1591 (29 March 2005) UN Doc S/RES/1591 (2005)), and in the case of Libya, these were included in UNSCR 1970 itself.

223

4.156–4.159  Recruitment and Use of Children those instruments (among others). This helped support its conclusion that Uganda was internationally responsible for violations of IHL and IHRL.181 4.156  Likewise, in Prosecutor v Norman,182 the SCSL included IHRL (the CRC and OPAC, but also the ACRWC and ILO Convention No 182) in its analysis of the allegations of recruitment and use against Sam Hinga Norman. 4.157 In Vargas-Areco v Paraguay (2006),183 the Inter-American Court of Human Rights considered the case of a teenager who, after being recruited into military service in the Paraguayan Armed Forces at the age of 15, was shot from behind by a non-­ commissioned officer while trying to run away. Although none of the charges brought concerned recruitment and use, the case provided the Court with an opportunity to consider applicable domestic legislation, compare it with applicable IHRL (including the CRC and the OPAC), and order Paraguay ‘to modify its domestic legislation regarding the recruitment of minors under the age of 18 into the Paraguayan Armed Forces, pursuant to international standards’ – although it did not specify how that obligation ought to be met.184 That order seems to have been effective: although as of 2008, Paraguay had only partially complied with this requirement,185 a subsequent monitoring assessment by the Court in 2010 found that the necessary legislation had been fully enacted.186 4.158  Treaty bodies. The various bodies established under IHRL treaties (discussed at Chapter 2, paragraphs 2.150–2.153) perform a range of functions, including adjudicative, inquisitorial, and monitoring roles. We note the following illustrative e­ xamples of their involvement with recruitment and use of children. 4.159  The African Committee of Experts on the Rights and Welfare of the Child has, amongst other things:187 4.159.1  Conducted and published comparative continental studies. Some of these have touched upon the issue of child soldiers, including its 2016 study on the impact of conflict and crises on children in Africa.188 However, the approach in such studies has typically been to highlight the issue, and flag the IHRL prohibitions. For example, the 181 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Merits: Judgment) (n 127), paras 217–20. 182 Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) (n 29). 183 Inter-American Court of Human Rights, Case of Vargas-Areco v Paraguay (Merits, Reparations and Costs: Judgment) (26 September 2006) Series C No 155. 184 ibid, para 164. The heading of this section made specific reference to the American Convention on Human Rights (‘Adapting domestic legislation to the American Convention’), although reference in para 164 to ‘international standards’ is broader, and is likely to include the CRC and OPAC, which were among the ‘international standards’ referred to elsewhere in the judgment. Although the relevant Paraguayan legislation did notionally ban minors from serving in the military, a loophole provided that some minors could serve with the permission of their parents (ibid, para 127). In the event, the ‘ban’ on minors’ service was honoured more in the breach (para 128). 185 Inter-American Court of Human Rights, Case of Vargas-Areco v Paraguay (Monitoring Compliance with Judgment: Order of the Court) (30 October 2008), ‘Considering’ paras 33–36 and ‘Declares’ para 2(f). 186 Inter-American Court of Human Rights, Case of Vargas Areco v Paraguay (Monitoring Compliance with Judgment: Order of the Court) (24 November 2010), ‘Decides’ para 1(c). 187 The Committee does not appear to have decided individual communications regarding recruitment and use. 188 African Committee of Experts on the Rights and Welfare of the Child, ‘Continental Study on the Impact of Conflict and Crises on Children in Africa’ (ACERWC, October 2016), available at .

224

Accountability Mechanisms  4.160 report of an ‘advocacy mission’ to the CAR, to assess the situation of children affected by conflict there, included a section highlighting recruitment and use of children as an area of concern, and a recommendation that the CAR ‘take the necessary measures to prevent the recruitment and use of children by armed groups’.189 4.159.2  Submitted questions to state representatives in country-specific reports or observations: for example, in observations made in response to a progress report submitted by Liberia, the Committee of Experts recommended that Liberia ‘put in place practical measures to prevent recruitment and use of Liberian children and youths by armed groups operating in border areas, particularly near Côte d’Ivoire’.190 Similarly, in recommendations and observations sent to the Government of Uganda in relation to the implementation report filed by that country, the Committee of Experts noted that Uganda’s Report ‘doesn’t provide enough data on the status of child soldiers in Uganda, [and] it recommends consequently that more information should be mentioned in the next reports’.191 4.160  As to the CRC Committee: 4.160.1  It may publish General Comments which interpret IHRL in a way that is relevant to the issue of ‘child soldiers’.192 4.160.2  Of particular relevance to the issue of ‘child soldiers’ is the CRC Committee’s responsibility to review the initial reports (submitted by States who have ratified OPAC) on the steps they have taken to implement the OPAC domestically, and on progress in the enjoyment of children’s rights within their jurisdiction. States are then obliged to submit follow-up reports every five years. The CRC Committee’s published consideration of those reports contain useful guidance to those countries about how protections against child soldiering may be strengthened. For example, the 22 January 2015 report by the Committee in relation to Iraq noted with concern ‘the recruitment of children by armed groups, particularly in refugee camps in Iraq, and … the use of children, including children with disabilities, for terrorist acts’.193 The Committee observed that 189 African Committee of Experts on the Rights and Welfare of the Child, ‘Mission Report of the ACERWC to assess the situation of children affected by the conflict in Central African Republic’ (ACERWC, December 2014), 28. 190 African Committee of Experts on the Rights and Welfare of the Child (2016) (n 188), 143–44. 191 African Committee of Experts on the Rights and Welfare of the Child, ‘Recommendations and Observations sent to the Government of the Republic of Uganda by the African Committee of Experts on the Rights and Welfare of the Child on the Initial Implementation Report of the African Charter of the Rights and Welfare of the Child’ (ACERWC, 2010), 8. 192 See, eg, CRC Committee, ‘General Comment No. 6 (2005): Treatment of unaccompanied and separated children outside their country of origin’ (1 September 2005) UN Doc CRC/GC/2005/6, paras 54–60, on State obligations deriving from Art 38, CRC and Arts 3 and 4, OPAC, as well as in relation to former child soldiers. See also CRC Committee, ‘General Comment No. 20 (2016) on the implementation of the rights of the child during adolescence’ (6 December 2016) UN Doc CRC/C/GC/20, para 40: ‘The Committee reminds States parties of the obligation to recognize that persons up to the age of 18 years are entitled to continuing protection from all forms of exploitation and abuse. It reaffirms that the minimum age limit should be 18 years for … recruitment into the armed forces … in view of the degree of associated risk and harm’. We have not found any examples of the CRC Committee using its adjudicative or inquisitorial function in relation to recruitment and use. 193 Office of the High Commissioner for Human Rights, ‘Committee on Rights of Child examines reports of Iraq under Convention, on children in armed conflict and sale of children’ (Office of the High Commissioner for Human Rights, 22 January 2015), available at .

225

4.161–4.163  Recruitment and Use of Children ‘Iraqi law seemed to have gaps in terms of punishing the enrolment of children and more had to be done for the protection and rehabilitation of former child soldiers and children traumatized by armed conflicts’.194 In a similar vein, the 2016 periodic report by the Committee in relation to the United Kingdom noted that ‘the minimum age for voluntary recruitment as 16 years has not been changed and child recruits make up 20 per cent of the recent annual intake of the United Kingdom Regular Armed Forces’, concluding that ‘[s]afeguards for voluntary recruitment are insufficient, particularly in the light of the very low literacy level of the majority of under-18 recruits …’. The Committee recommended that the United Kingdom reconsider many of its recruiting practices relating to children, and raise the minimum age for recruitment into the armed forces to 18 years.195 Even if no specific guidance on recruitment and use is given, the regular reporting process provides a forum for Committee Experts to raise issues germane to that topic: for example, as part of its consideration of periodic reports submitted by India, an Expert raised the case of seven children who were being investigated for being involved in armed action against Indian forces after being recruited as child soldiers, although no formal recommendations resulted from the inquiry.196 Other Accountability Mechanisms 4.161  Other relevant accountability mechanisms, UNSC Resolutions and the MRM, have already been addressed above in the IHL accountability section at paragraphs 4.132–4.144. B.  Problems and Deficiencies in Accountability Mechanisms 4.162  General problems and deficiences in existing accountability mechanisms, including the limited ratification of OP3 and of the Rome Statute, are considered in Chapter 9. Here we note four specific problems in the context of the issues considered in this ­Chapter. 4.163  First, there is a profound obstacle to accountability given the underlying conditions that enable recruitment and use of children in armed conflict. The kinds of cultural, social and political circumstances out of which situations can develop where grave ­violations – including recruitment and use – become widespread often mean that the rule of law, access to justice and effective enforcement are illusory notions. Even where recruitment and use is illegal under a country’s domestic law, there is faint possibility of an effective ‘deterrent’ when the country’s law enforcement institutions – including the police, prosecutors and courts – are not capable, competent or equipped to hold war criminals to account.

194 ibid. 195 CRC Committee, ‘Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland’, UN Doc CRC/C/GBR/CO/5 (12 July 2016), paras 84–85. 196 Office of the High Commissioner for Human Rights, ‘Committee on Rights of Child examines reports of India under Convention and Protocols on Children in armed conflict, Sale of Children’ (Office of the High Commissioner for Human Rights, 3 June 2014), available at .

226

Accountability Mechanisms  4.164–4.167 4.164  Academic commentary has described such predicaments as illustrating the need to address the ‘supply’ of ‘child soldiers’ (that is, the factors that influence the decision to join an armed group), rather than just the ‘demand’ (the factors that influence the decision to enlist children, which include, among others, the issues of legality and enforcement capability discussed above, as well as the military advantages that using children can bring).197 For international law to be used effectively in relation to an ‘undesired social reality’, a ‘thorough understanding of the nature and extent of that social reality or phenomenon is at the very least greatly beneficial and more likely imperative’.198 4.165  Second, given the high profile nature of recruitment and use, capture of suspects and trial is especially important but it is questionable whether it has been effectively or adequately used. Not only is the ICC’s jurisdiction limited but, in addition, many of the 71 states that have not ratified the Rome Statute including Rwanda, Sri Lanka and Somalia, are states where recruitment and use has been well-documented. Linked to this is the fact that notwithstanding the many successful prosecutions for recruitment and use of children noted above, many others have escaped justice.199 Although recruitment and use is a widely-documented and pernicious feature of many modern conflicts, some of the most high-profile perpetrators continue to operate with impunity. In 2005, the ICC issued a warrant for the arrest of Joseph Kony, commander-in-chief of the Lord’s Resistance Army.200 However, despite a ‘viral’ campaign in 2012 aimed at raising awareness and marshalling political support behind attempts to bring him to justice, he remains at large. Whether this is due to an unwillingness or inability on the parts of the states in which Kony is active to apprehend him, or a lack of support from the international actors calling for his seizure, is debatable.201 However, the failure of the ICC (and the international community as a whole) to impose accountability on such individuals risks undermining the perceived effectiveness of international enforcement mechanisms. See further Chapter 9. 4.166  Third, it is unclear whether, as we have noted in other Chapters, designation criteria are consistently used when the UNSC imposes sanctions.202 4.167  A fourth concern is that there are a number of difficulties with the MRM. The MRM is a complex, comprehensive framework which engages a wide range of UN agencies and other participants at local, national and international levels. We note

197 Jens Christopher Andvig and Scott Gates, ‘Recruiting Children for Armed Conflict’ in Scott Gates and Simon Reich (eds), Child Soldiers in the Age of Fractured States (Pittsburgh, University of Pittsburgh Press, 2010) 77–92. See also Waschefort (n 3), 50–51. 198 Waschefort (n 3), 207. 199 We acknowledge, of course, that many of the most high-profile recruiters and users of child soldiers are ‘held to account’ through armed conflict itself. It may be considered unlikely, for example, that ISIS leader Abu Bakr al-Baghdadi will ever be tried in a court or tribunal. If the total number of convictions for child soldiering seems low, it may be because some of the worst offenders have themselves been killed in combat. 200 Situation in Uganda in the Case of the Prosecutor v Joseph Kony and Vincent Otti, ICC-02/04-01/05. Case Information Sheet available at : ICC, ‘Case Information Sheet: Situation in Uganda in the Case of the Prosecutor v Joseph Kony and Vincent Otti’ (ICC, 10 September 2015). 201 See, eg Patricia M Wald, ‘Apprehending War Criminals: Does International Cooperation Work?’ (2012) 27(2) American University International LR 240–41. 202 See further Chapter 9, paragraph 9.15.

227

4.168–4.169  Recruitment and Use of Children that the MRM is, of course, a monitoring mechanism, carried out by a country-based task force comprised of various actors (see further Chapter 1, paragraph 1.60.7). We further acknowledge that the MRM is not (and is not intended to be) an adjudicative mechanism, and that we have focussed on adjudicative mechanisms in this book. Nevertheless, we note three concerns that are especially relevant to the issue of recruitment and use: 4.168  First, sometimes the positive steps taken pursuant to that programme (both in relation to information gathering/monitoring, as well as outreach and advocacy efforts) are rather overtaken by much larger-scale domestic and international political realities. From a review of the Secretary-General’s annual reports, it appears that major events that appear to affect the reported figures include: (i) transitions of power;203 (ii) escalations or resurgences of conflict;204 and (iii) entry into political agreements, including Action Plans through the MRM (although evidence on this front is mixed).205 In most situations documented in the Secretary-General’s reports, the correlation between the application of the MRM and the resulting number of cases of recruitment and use, if any, is difficult to identify – although, again, we acknowledge that enforcement is not the aim of the MRM. 4.169  Second, issues can arise where MRM rules may be applied too rigidly. There appear to have been few structured, rigorous analyses of the efficacy of MRM establishment and implementation. However, one such analysis, assessing the effectiveness of the MRM in Nepal206 pointed to how, pursuant to an Action Plan entered into by parties to the conflict there, it was agreed that more than a thousand soldiers who had been recruited while under the age of 18 would be released. Due to delays by the parties in complying with the process, by the time the ‘verified minors’ were discharged from the armed forces, the vast majority were adults. Although recruited as children, for the individuals in question – now of age – the army had become their career and livelihood. The circumstances of their dismissal were poorly explained to them, and many were of the impression that their dismissal was because they had failed to live up to new standards. The Nepali word chosen for ‘disqualified’ – ‘ayogya’ – carried extremely negative connotations. For the ‘verified minors’ in question, being dismissed from their jobs had serious negative impacts, affected their ability to earn a livelihood, and carried social stigma. According to the author, ‘the frustration felt by many “verified minors” following their disqualification and discharge has had a small, but tangibly negative impact on the

203 Afghanistan and Somalia both experienced increased reported figures of recruitment and use surrounding an election period, suggesting that political instability may have led to a desire by armed groups to bolster their numbers. 204 For example, the CAR, DRC, Somalia, Syria and Yemen all saw an increase in reported or verified figures on recruitment and use when conflict either escalated or resurged. In the CAR, there was a drop from 2012 to 2013, but when hostilities resumed and the situation worsened as fighting between armed groups increased, so too did the instances of recruitment and use. Similarly, after a three-year period of decline in instances of recruitment between 2010 and 2012, following the resurgence of conflict in the DRC, numbers rose from 272 in 2012 to 578 in 2013 and 910 in 2014, before falling again in 2015. 205 Since 2012, significant conflict-related agreements (including Action Plans, Peace Agreements, ceasefires, and national reconciliations) have been signed in the DRC, Mali, South Sudan, Somalia, the CAR, Myanmar and Chad. In the first three of these, results have been mixed or figures have worsened to some degree; in the remaining four countries, the agreements coincided with an improvement in recruitment and use figures. 206 Sophie Hodgson, ‘Whose Action Plan? An Analysis of the UN Security Council Regulation 1612 Action Plan and Monitoring and Reporting Mechanism in Nepal’ (2012) 4(2) J Human Rights Pract 164–86 (‘Whose Action Plan?’).

228

Accountability Mechanisms  4.170–4.171 security situation in Nepal’.207 The analysis concluded that, through its rigid pursuit of the goal of decommissioning child soldiers, the implementation of the Action Plan failed to give due consideration to the UN’s ‘Do No Harm’ agenda and cut across international laws whose guiding principle is the ‘best interests of the child.’208 Although there is not enough information to suggest that the MRM is, on the whole, applied too rigidly, this may be an issue that requires further consideration. 4.170  Third, the role of non-state armed groups in the MRM can also be problematic. Non-state armed groups may only be motivated to demonstrate compliance with laws relating to ‘child soldiers’ when their political goals overtake their military goals. In those cases, releasing children and desisting from the recruitment of children are consistent with the agendas of parties to the conflict. However, where those political imperatives cease to apply – for example, where a peace process collapses – rates of recruitment and use may rise again.209 Even the question of how to engage with non-state armed groups within the overall schema of the MRM can be fraught. Although the MRM monitors grave violations by all parties to conflict, and action plans can be entered into with any listed party (state or non-state), in practice, state actors are easier to engage. This is attributable to a range of factors. For example, engagement with state actors may be easier because of the relationships the UN agencies in-country will have with the governments in question and because the states have representatives at the UN who can facilitate communication at the UNSC level, or with the Special Representative of the Secretary-General for Children and Armed Conflict. Furthermore, non-state actors may be sequestered from the MRM process for other practical reasons in-country, including security concerns, or because governments specifically prevent engagement with non-state armed groups for this purpose. While not a fault of the MRM itself, per se, these practical issues may operate to limit its effectiveness. C.  Suggestions to Improve Accountability Mechanisms 4.171  We have one specific suggestion for improving the accountability framework in light of the above. Our general consideration of accountability, including the need for greater ratification of OP3 and the Rome Statute, is in Chapter 9.

207 ibid, 183. 208 ibid, 181–82. It may be argued that the example represents a failure to plan adequately for assistance to demobilised adults, and not a failure of the MRM, per se. However, one of the lessons to be learned is that such considerations ought to form part of any Action Plan adopted under the MRM. 209 Katy Barnett and Anna Jeffreys, ‘Full of promise: How the UN’s Monitoring and Reporting Mechanism can better protect children’ (Overseas Development Institute, Humanitarian Practice Network, Paper Number 62, September 2008), available at , 9–10. Barnett and Jeffreys, at fn 16, cite a press release, UN News Centre, ‘DR Congo: UN mission says recruitment of child soldiers is surging’ (14 December 2007), available at , which reported that: ‘Hundreds of under-age boys and girls are being forcibly recruited by rival armed groups in the Democratic Republic of the Congo (DRC) and sent to the front lines of the escalating conflict in North Kivu province in the far east of the country … Many of the estimated 8,500 former child soldiers who have been rescued by the UN and other humanitarian organizations since 2004 have been re-recruited in the last few months or used as sex slaves’.

229

4.172–4.174  Recruitment and Use of Children 4.172  Consistency in UNSC Resolutions. We recommend that there should be consistent use of recruitment and use as a designation criteria for sanctions (so as to avoid, for example, suggestions of bias in relation to how those criteria are applied).

IV.  CONCLUSION AND SUMMARY

4.173  In conclusion, the main recommendations of this Chapter can be summarised as follows. 4.174  Recommendations on legal framework: • IHL: (1) The principal provisions of international humanitarian law (IHL) – Article 77(2), Additional Protocol I (API); Article 4(3)(c), Additional Protocol II (APII) and ICRC, Customary International Law (CIL) Rules 136 and 137 – apply primarily in respect of children under the age of 15 years. There is obviously merit in seeking to extend IHL protections for children during armed conflict if that is possible, particularly with a view in the future to enhancing ICL protections. If it is possible to achieve that aim, by way of amendment to API and APII, then that should be pursued. However, it is not clear that developments in state practice would support an extension of existing protection by increasing the age limits applicable to the rules of customary IHL, ie in relation to ICRC, CIL Rules 136 and 137. In light of the developing factual context regarding CIL and until there is a move to amend the age limits in API and APII: we suggest that the IHL protections available for children aged under 15 years are consolidated and clarified. However, the question of whether IHL protections should be extended to include children aged 15 years or over should be monitored, and consideration should be given to increasing age limits as soon as possible. (2) Existing IHL protections applicable to children under 15 years of age are scattered across a number of instruments and complex. Understanding these rules requires familiarity with a number of underlying distinctions including the different types of armed conflict. The treaty provisions are supplemented by rules of CIL. Substantive differences in protections have developed as between international armed conflict (IAC) and non-international armed conflict (NIAC). Often there is no satisfactory explanation for the differences in approach. The development of CIL, which applies in both contexts, has to some extent mitigated these problems. Nonetheless, IHL remains difficult to navigate in this area. It is likely to be particularly challenging for non-state armed groups and victims to identify the applicable legal framework since they are less likely to have access to expert legal advice and representation. Consideration should be given to collecting (and codifying) all IHL protections concerning the recruitment and use of children into a single instrument. The purpose of this would be to make it easier to identify the law and to improve its clarity and coverage. This should, in turn, assist in the process of training and increase the prospects of more effective compliance.

230

Conclusion and Summary  4.174 (3) The use of ‘feasible measures’ in Article 77(2), API is problematic for a number of reasons: (i) it is unclear why parties to an IAC are only obliged to take ‘feasible measures’ to ensure that children under the age of 15 do not take a direct part in hostilities, whilst parties to NIAC are subject to an absolute prohibition. (ii) The standard reflected in Article 77(2), API is inconsistent with the CIL that is applicable during IAC, which provides for an absolute prohibition in relation to the participation of children in hostilities. (iii) The use of ‘feasible measures’ seems to afford states considerable discretion in the steps they are obliged to take to prevent the participation of children in hostilities. (4) The narrow protection offered by ‘direct participation’ in Article 77(2), API is difficult to regard as justifiable because (i) it does not properly reflect the CIL applicable to IAC which imposes a wider prohibition on participation in general; (ii) ICL applicable to IAC, in particular, Article 8(2)(b)(xxvi), Rome Statute, has been construed to impose individual criminal responsibility in respect of the use of children to participate in hostilities even where they have not participated directly and (iii) the limitation is inconsistent with the IHL prohibitions that apply during NIAC since Article 4(3), APII prohibits wider participation. (5) The absence of a clear prohibition on voluntary enlistment of children under 15 years in IHL is unsatisfactory because (i) parties to a conflict may argue that they have complied with IHL because children under the age of 15 years have voluntarily enlisted rather than been recruited and (ii) IHL is less protective than ICL which, in relation to both IAC (Article 8(2)(b)(xxvi), Rome Statute) and NIAC (Article 8(2)(e)(vii), Rome Statute) imposes individual criminal responsibility in cases where a child under 15 years of age is voluntarily enlisted. (6) In light of the points noted at (3)–(5) above, consideration should be given to developing the law by amending Article 77(2), API, so that (i) it imposes an absolute prohibition on the participation of children under the age of 15 years in hostilities rather than merely requiring parties to IAC to take feasible measures to ensure that children do not participate; (ii) the prohibition applies to the use of children to participate in hostilities in general and is not limited to their direct participation, so as to reflect the approach taken in Article 4(3)(c), APII, and (iii) the voluntary enlistment of children under the age of 15 years is prohibited as well as their recruitment. Alternatively, individual states that have ratified API could be encouraged to reflect this more protective content in their domestic laws and military manuals. (7) In light of the point noted at (5) above, consideration should be given to clarifying or developing the law by amending Article 4(3)(c), APII, to state, for the avoidance of doubt, that the voluntary enlistment of children under the age of 15 years during armed conflict is prohibited. Again, alternatively, individual states that have ratified APII could be encouraged to reflect this more protective content in their domestic laws and military manuals.

231

4.174  Recruitment and Use of Children • ICL: (1) Encouragement needs to be given to those states that have not ratified the Rome Statute to do so. This will strengthen substantive protection and it will also help improve accountability. (2) There is clear merit in progressively increasing the protections available to older children. However, it is questionable that there would be sufficiently widespread support for amending the crimes of recruitment and use to apply in respect of all children under the age of 18. If sufficiently widespread support can be established for such amendment then it should be pursued, ideally in line with analogous developments in IHL. Therefore, the question of whether ICL protections should be extended to include children aged 15 years or over should be monitored, and consideration should be given to increasing age limits once a consensus can be established in favour of such a change. (3) There is some conceptual inconsistency between ICL and IHL which makes the law complex because war crimes, including those established in Article 8(2)(b) and (e) of the Rome Statute, are defined as ‘serious violations of the laws and customs applicable in’ IAC and NIAC; that is, war crimes must involve a violation of IHL. For example (i) in ICL ‘recruitment’ is generally understood to encompass both conscription and voluntary enlistment but as a matter of IHL, and in particular in relation to IAC (Article 77(2), API and CIL), the concept of recruitment has often been understood more narrowly and as excluding purely voluntary enlistment. And (ii) ICL refers to the concept of the ‘active’ participation of children in hostilities whilst IHL refers either to their ‘direct’ participation in respect of IAC (Article 77(2), API) or to their participation in general in respect of NIAC (Article 4(3)(c), APII). The law should be clarified or developed by addressing the conceptual inconsistency between ICL and IHL. This may be addressed in two ways. (i) Where there is inadequate justification for the relevant inconsistency, IHL should be revised to reflect the higher standards of conduct expected as a matter of ICL. For example, Article 77(2), API could be amended to make clear that voluntary enlistment is prohibited. (ii) Where there is adequate justification for a difference in approach, ICL and IHL ought to be understood and developed distinctly. For example, the concept of ‘direct participation’ in hostilities, in so far as it is used to define the principle of distinction in IHL, ought to be understood separately from the concept of ‘active participation’ in the context of ICL. If additional protections are to be provided to ‘child soldiers’ as a matter of IHL applicable to international armed conflict, it would make more sense to develop an absolute prohibition on the participation of ‘child soldiers’ in hostilities (to reflect the formulation used in respect of non-international armed conflict in Article 4(3), APII), than to borrow from the concept of active participation in ICL. (4) Although ICL specifically prohibits the voluntary enlistment of children under the age of 15 years as well as their conscription, it may be difficult to determine whether a child has enlisted voluntarily or not. Prosecutors at the International Criminal Court (ICC) should therefore consider, when making prosecutorial

232

Conclusion and Summary  4.174 decisions and laying charges, whether to charge for an offence of ‘conscripting’ a child under the age of 15 years in preference to, or alongside, an offence of ‘enlisting’. (5) The meaning of ‘active participation’ (for the purposes of Articles 8(2)(b)(xxvi) and 8(2)(e)(vii), Rome Statute) is unclear. For example, it is not clear which acts of indirect participation by a child in hostilities will constitute the war crime of ‘active’ participation in hostilities. The meaning of ‘active participation’ ought to be clarified in the jurisprudence of the ICC. • IHRL: (1) The Optional Protocol on Armed Conflict (OPAC) has not been universally ratified. Those states that have not yet ratified it should be encouraged to do so to strengthen existing protections. (2) The differences between IHL and international human rights law (IHRL) on the recruitment and use of children makes the law complex. There are gaps and inconsistencies in the two regimes and so a state may have differing obligations under different instruments, even though they are applicable to the same situation. The law could be clarified by the CRC Committee issuing a General Comment regarding regarding Article 38(2), CRC; Article 4(3)(c), APII and also regarding OPAC. This may assist in clarifying some of the existing interpretative difficulties. It may also assist in managing the relationship between IHL and IHRL norms in this area. Alternatively, consideration should be given to the possibility of consolidating (in the single instrument we have suggested) the protections that presently exist in IHL and IHRL. (3) There is imbalance in the OPAC obligations relevant to the armed forces of the state and other armed groups. The standard expected from non-state armed groups under Article 4(1) is much higher than that expected of state armed forces under Articles 1 to 3. This risks undermining OPAC since it may be viewed as imposing a double standard. Addressing the inconsistency between Articles 1 to 3 and Article 4(1) of OPAC is likely require a long-term and multi-faceted strategy. Until a sufficiently strong consensus can be established in favour of raising the standards in relation to the armed forces of the state, the inconsistency between Articles 1–3 and Article 4(1), OPAC may be reduced by taking the following two steps. First, the law could be developed by heightening the standards in domestic law. Consideration should be given to imposing an express requirement upon states to incorporate into domestic law, including into domestic criminal law and military manuals where appropriate, the standards set out in Articles 1 to 3, OPAC so far as concerns state armed forces. This should assist in reducing the perceived unfairness of the law by at least enabling public authorities to be held accountable in domestic law for failures to meet the international law standards applied to non-state armed groups. Second, the law could be developed by heightening the standards in international law. Concerted action should be taken by the international community to encourage states to raise the minimum age for voluntary recruitment so far as possible, in order to reduce the perceived inconsistency in the law. States who have already made declarations pursuant to 233

4.175  Recruitment and Use of Children Article 3(2), OPAC specifying a minimum age for voluntary recruitment below 18 years of age should be encouraged to strengthen those declarations under Article 3(4), OPAC, ie by increasing the minimum age where possible. Those states that have not already done so should be encouraged to make declarations under Article 3(2), OPAC, specifying 18 years of age as a minimum age for voluntary recruitment. 4.175  Recommendations on international accountability mechanisms: • General problems and deficiences in existing accountability mechanisms, include the limited ratification of the Optional Protocol on a communications procedure (OP3) and of the Rome Statute. Given the high profile nature of recruitment and use, capture of suspects and trial is especially important but it is questionable whether it has been effectively or adequately used. Not only is the ICC’s jurisdiction limited but, in addition, of the states that have not ratified the Rome Statute many, including Rwanda, Sri Lanka and Somalia, are states where recruitment and use has been well-documented. Greater ratification of both OP3 and of the Rome Statute should be encouraged. • It is unclear whether designation criteria are consistently used when the UN Security Council imposes sanctions. There should be consistent use of recruitment and use as a designation criteria for sanctions.

234

5 Sexual Violence ‘Sexual violence is a brutal form of physical and psychological warfare … The prevention of sexual violence must remain one of our highest priorities.’1

I. Introduction II. Legal Framework A. International Humanitarian Law and International Criminal Law 1. The Legal Framework 2. Problems and Deficiencies in the Legal Framework 3. Suggestions to Improve the Legal Framework B. International Human Rights Law 1. The Legal Framework 2. Problems and Deficiencies in the Legal Framework 3. Suggestions to Improve the Legal Framework III. Accountability Mechanisms A. Application of Accountability Mechanisms 1. IHL Accountability Mechanisms 2. ICL Accountability Mechanisms 3. IHRL Accountability Mechanisms B. Problems and Deficiencies in Accountability Mechanisms C. Suggestion to Improve Accountability Mechanisms IV. Conclusion and Summary

235 238 240 240 257 259 260 260 267 268 268 268 268 277 280 282 284 284

I. INTRODUCTION

5.1  Since 1999, the UN Security Council (UNSC) has strongly condemned sexual violence against children in armed conflict.2 It was added as a trigger violation for i­ nclusion in the 1 António Guterres, the current UN Secretary-General, quoted when he was UN High Commissioner for Refugees in the Office of the UN High Commissioner for Refugees (UNHCR), ‘UNHCR chief reiterates commitment to prevention of sexual violence’ (UNHCR, 25 November 2009). 2 UNSC Res 1261 (30 August 1999) UN Doc S/RES/1261, para 2. We begin by noting this Resolution since our focus in this Chapter, and book, is on children. More general international condemnation of sexual violence in armed conflict is reflected in the characterisation of rape as war crime and crime against humanity in the Rome Statute of the International Criminal Court (Rome Statute) and can be found even earlier in time in the IHL prohibitions which we will go on to consider at paras 5.16ff.

235

5.2–5.3  Sexual Violence annexes to the UN Secretary-General’s annual report in 2009 and is, therefore, part of the UN monitoring and reporting mechanism (MRM): see Chapter 2, paragraph 2.123. This development reflected the UNSC’s deep concern ‘about the high incidence and appalling levels of brutality of rape and other forms of sexual violence committed against children, in the context of and associated with armed conflict including the use or commissioning of rape and other forms of sexual violence in some situations as a tactic of war’.3 5.2  Current situations of concern set out in the Secretary-General’s 2017 annual report include those in Nigeria, the Democratic Republic of the Congo (DRC), Sudan, ­Somalia, South Sudan and the Syrian Arab Republic. In Somalia and South Sudan there were more than 100 verified incidents of sexual violence against children in armed conflict in 2016.4 Save the Children has estimated that in some cases ‘more than 80% of those affected by sexual violence in conflict-affected areas are children’.5 For example, in Sierra Leone more than 70 per cent of sexual violence cases recorded by the International Rescue Committee in 2012 involved girls under 18, and more than 20 per cent involved girls under 11. In post-conflict Liberia, 83 per cent of survivors of gender-based violence in 2011–12 were younger than 17, and almost all of these cases involved rape. During the post-election crisis in Cote d’Ivoire, between 1 November 2010 and 30 September 2011, children made up 51.7 per cent of victims of recorded sexual violence and in more than half of these cases the survivors were under 15 years old. More recently, children have been abducted and sexually abused by Islamic State in Iraq,6 and by Boko Haram in Nigeria.7 5.3  The reported child victims of sexual violence in armed conflict are overwhelmingly female.8 For this reason, sexual violence in armed conflict (including against children) has been recognised as a form of discrimination against women for the purposes of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). However, there is increasing recognition that boys can be victims too.9 For the purposes 3 UNSC Res 1882 (4 August 2009) UN Doc S/RES/1882, preamble. 4 UNGA, ‘Report of the Secretary-General on children and armed conflict’ (24 August 2017) UN Doc A/72/361-S/2017/821. At para 7, the Secretary-General notes that ‘[s]exual violence against girls was prevalent in Nigeria, as well as in other country situations, such as the [DRC], the Sudan, Somalia, South Sudan and the Syrian Arab Republic. Incidents of sexual violence against children in Somalia are detailed at para 138 (311 ­incidents); in South Sudan at para 147 (142 incidents). 5 Save the Children, ‘Unspeakable Crimes Against Children: Sexual Violence in Conflict’ (Save the Children, 2013), available at , 2. All websites referred to in this Chapter were accessed in June–September 2017. 6 See, eg, Amnesty International, ‘Escape from Hell: Torture and Sexual Slavery in Islamic State Captivity in Iraq’ (Amnesty International, 2014), available at . 7 See, eg, International Alert and UNICEF, ‘“Bad Blood”: Perceptions of children born of conflict-related sexual violence and women and girls associated with Boko Haram in northeast Nigeria – Research Summary’ (International Alert and UNICEF, February 2016), available at . 8 See International Bureau for Children’s Rights (IBCR), Children and Armed Conflict: A Guide to International Humanitarian and Human Rights Law (IBCR, 2010) 186, which reiterates that child victims of sexual violence are overwhelmingly female, and adds that the perpetrators of sexual violence are also overwhelmingly male. 9 For consideration of how the international humanitarian discourse should move away from a focus on women and girls as the only victims of sexual violence, see Chris Dolan, ‘Letting go of the gender binary:  Charting new pathways for humanitarian interventions on gender-based violence’ (2014) 96 IRRC 485–501. For a consideration of the degree of male sexual violence in armed conflict, see Sandesh Sivakumaran, ‘Sexual Violence Against Men in Armed Conflict’, (2007) 18(2) EJIL 253–276; Dustin A. Lewis,

236

Introduction 5.4–5.7 of this book we address the issue of sexual violence against children generally but we acknowledge that the gendered nature of the associated harms can in principle require different medical, social and legal responses. 5.4  Although we know that there is a high incidence of sexual violence against children in armed conflict, it is impossible to gauge the full magnitude of the problem, leading to the description by the International Committee of the Red Cross (ICRC) of sexual violence as a ‘silent crime’.10 Instances of sexual violence – both in times of armed conflict and peace and both in the developing and developed world – are routinely underreported, owing to stigma, fear and embarrassment.11 We note, at paragraph 5.103 below, the difficulties that exist in information-gathering and monitoring in the context of sexual violence. 5.5  Historically, sexual violence was characterised as a side-effect of armed conflict; the act of impulsive combatants. However, since the 1990s at least, international legal and human rights institutions have recognised sexual violence as a deliberate strategy of armed conflict.12 Sexual violence in armed conflict is often linked to other forms of violence, such as killing (see Chapter 3), the recruitment and use of child soldiers (see Chapter 4) and abduction (see Chapter 6). It is committed by state agents, individuals who are part of non-state armed groups, peacekeepers and others. 5.6  There is a wide range of causes of, and motivations for, sexual violence in armed conflict. It can be used as a strategy to create fear, terrorise populations, retaliate, undermine or punish an opposition, or change the ethnic composition of a society. 5.7  There is also a wide range of conduct that may fall within the scope of ‘sexual violence’, including: rape; sexual torture and mutilation; forced abortion; enforced ­prostitution; sexual slavery; enforced sterilisation; assault; and other sexual humiliation and harassment, for example, forced undressing of women and marching them in public, forcing women to perform exercises naked, and situations where children are forced to witness sexual violence.13 Most of this conduct can be committed against both men and women. ‘Unrecognised Victims: Sexual Violence against Men in Conflict Settings under International Law’ (2009) 27(1) Wisconsin International Law Journal 1–49 and UNHCR, We keep it in our heart: Sexual violence against men and boys in the Syria crisis (UNHCR, October 2017) available at . For consideration of the problem of the invisibility of men and boys as the victims of sexual and gender-based violence, see Maria Eriksson Baaz and Maria Stern, ‘Understanding and addressing conflict-related sexual violence: Lessons learned from the Democratic Republic of Congo’ Policy Notes 2010/3, 3. 10 IRRC, ‘Q&A: The ICRC’s Approach to Sexual Violence in Armed Conflict – In Conversation with Peter Maurer’ (2014) 96 IRRC 449–55, 451. 11 In England, eg, it is estimated that 75–95 per cent of rapes are not reported to the police: see, HM Crown Prosecution Service Inspectorate, ‘Without Consent: A report on the joint review of the investigation and prosecution of rape offences’ (Her Majesty’s Inspectorate of Constabulary, 2007), available at , 8. The International Violence Against Women Survey has collected data that shows that even in countries with strong democratic legal and justice systems and at times of peace, about 60–70 per cent of crimes of sexual violence are not reported. In conflict-affected situations, the UN Development Fund for Women estimates that only one in 20 crimes of sexual violence is reported, and an even smaller number is reported to police or authorities: see IBCR, Children and Armed Conflict (n 8), 191, where further detail is given for the reasons of this lack of reporting. 12 IBCR, Children and Armed Conflict (n 8), 185–86. 13 For detail of the variety of sexual violence, how it varies across conflicts, and the policy implications of this, see Elisabeth Jean Wood, ‘Conflict-related violence and the policy implications of recent research’ (2014) 96 IRRC 457–78.

237

5.8–5.14  Sexual Violence 5.8  As a result, it is difficult to generalise about the causes or nature of sexual violence against children across conflicts and cultures.14 5.9  This Chapter considers the legal framework and accountability mechanisms regulating sexual violence against children in armed conflict. Part II considers the legal framework. It addresses the applicable international humanitarian law (IHL), international criminal law (ICL) and international human rights law (IHRL), identifying the existing law, its limitations, and making suggestions for improvement. Given the close relationship between IHL and ICL we consider them together and deal separately with IHRL. Part III identifies the accountability mechanisms that exist in relation to IHL, ICL and IHRL, problems with those mechanisms, and suggestions for improvement. Part IV sets out our conclusions and provides a summary of the Chapter. II.  LEGAL FRAMEWORK

5.10  We begin with five points by way of introduction. 5.11  First, the legal framework that applies to sexual violence against children in armed conflict is generally robust, comprehensive and affords adequate substantive protection. As one commentator has put it, [S]exual violence is absolutely and adequately prohibited under international law, and more precisely under international humanitarian law (IHL) and human rights law. Moreover, during the last twenty years, international criminal law has considerably evolved and has criminalized the most serious forms of sexual violence at the international level. These three bodies of international law strongly complement and positively influence each other in this field.15

5.12  Second, the core strength of the existing legal framework is reflected in (i) the characterisation of rape and other forms of sexual violence as war crimes and crimes against humanity in the Rome Statute and (ii) the rules of customary international law (CIL) and associated treaty provisions under which rape, other forms of sexual violence and sexual slavery are prohibited (see ICRC, CIL Rules 93 and 94 below, at paragraph 5.18.3). We address these elements of the legal framework in detail below, beginning with a description of IHL, which laid the foundation for the provisions on sexual violence war crimes in the Rome Statute. 5.13  Third, the protections for children derive primarily from general protections applying to broader groups. However, this general application does not diminish the scope or adequacy of the protection provided for children against sexual violence. 5.14  Fourth, in this Chapter we focus on sexual violence against children in armed conflict, which is, as noted above one of the six grave violations for the purposes of the MRM and the work of the Special Representative of Children and Armed Conflict.

14 Children can also be the victims of conflict-related sexual violence that is neither perpetrated in the conduct of hostilities, nor perpetrated by a party to the conflict, such as the forced marriage of offspring for the purpose of their protection from hostilities. That particular issue is not addressed in this book. 15 Gloria Gaggioli, ‘Sexual violence in armed conflicts: a violation of international humanitarian law and human rights law’ (2014) 96 IRRC 503–38, 505.

238

Legal Framework  5.14 We  do not consider wider issues of gender-based violence (GBV), ie violence that is directed against a person on the basis of gender or sex in armed conflict. However, to put sexual violence in context, we note the following: 5.14.1  The issue of sexual violence overlaps with the broader issues of GBV and violence against women. 5.14.2  ‘Violence against women’ was defined in the 1993 UNGA Declaration on the Elimination of Violence Against Women as ‘any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.’16 5.14.3  The Committee on the Elimination of Discrimination Against Women (CEDAW Committee) has defined ‘gender-based violence’ as ‘violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.’17 5.14.4  These definitions focus on women and girls partly because the majority of victims of such acts are believed to be women and girls but GBV also includes violence against men and boys. 5.14.5  The office of the UN High Commissioner for Refugees (UNHCR) has described sexual and gender-based violence by reference to five categories (as noted above, this Chapter focuses on sexual violence, which may not be limited to the forms of conduct set out in (i) below): (i) Sexual violence (rape and marital rape; child sexual abuse, defilement and incest; forced sodomy/anal rape; attempted rape or attempted forced sodomy/anal rape; sexual abuse; sexual exploitation; forced prostitution/sexual exploitation; sexual harassment; and sexual violence as a weapon of war or torture). (ii) Physical violence (physical assault; and trafficking/slavery). (iii) Emotional and psychological violence (abuse/humiliation and confinement). (iv) Harmful traditional practices (female genital mutilation; early marriage; forced marriage; honour killing and maiming; infanticide/neglect; and denial of education for girls or women). (v) Socio-economic violence (discrimination and/or denial of opportunities and services; social exclusion/ostracism based on sexual orientation; and obstructive legislative practices).18 16 UNGA Res 48/104 (20 December 1993) UN Doc A/RES/48/104, Art 1. 17 CEDAW Committee, ‘General recommendations and suggestions: General Recommendation No. 19 – Violence against women’ in ‘Report of the Committee on the Elimination of Discrimination Against Women: Eleventh Session’ (UN, 1993) UN Doc A/47/38, para 6, available at . 18 See UNHCR, ‘Sexual and Gender-Based Violence against Refugees, Returnees, and Internally Displaced Persons: Guidelines for Prevention and Response’ (May 2003), available at , 15–18.

239

5.15–5.16  Sexual Violence 5.15  Fifth, our consideration of sexual violence is, necessarily, based purely on legal analysis. We note, however, that criminalising sexual violence is just one element of the multi-disciplinary response that is necessary to tackle sexual violence against children in armed conflict. Other elements of that multi-disciplinary response may include consideration of whether the protections for children could be enhanced by (i) strengthening the measures that could be taken to prevent sexual violence against children and (ii) strengthening the measures that could be taken to rehabilitate child victims of sexual violence. We make two observations in this regard. First, it is apparent that many of the relevant actors in this field are aware of and engaged in considering and providing such a multi-disciplinary response.19 However, second, to the extent that states are not so engaged, and insofar as it may be necessary to encourage states to adopt a more holistic response by reference to a legal prompt to do so, we consider that such prompts exist in both IHL and IHRL. Thus, in IHL, the need to provide children with the ‘care and aid’ they require in armed conflict (Article 77(1) of Additional Protocol I to the Geneva Conventions (API) and Article 4(3) of Additional Protocol II to the Geneva Conventions (APII)), and with ‘special respect and protection’ (ICRC, CIL Rule 135), could be used to bolster the case for a more consistent, systematised response to prevention and rehabilitation (in addition to the existing, specific protections by which sexual violence is prohibited and criminalised). In addition, each party to a conflict is required by Common Article 1 of the 1949 Geneva Conventions and Article 1(1), API to respect and ensure respect for IHL by its armed forces and other persons or groups acting in fact on its instructions, or under its direction or control. This includes those IHL rules which prohibit sexual violence. States must thus exert their influence, insofar as possible, to stop violations of IHL.20 In IHRL, the positive obligations in, for example, Article 3 of the European Convention on Human Rights (ECHR) (as to which see paragraph 5.77.3 below) could be used in a similar way in relation to preventative measures. A.  International Humanitarian Law and International Criminal Law 1.  The Legal Framework International Humanitarian Law 5.16  We begin with IHL. This is because even though sexual violence is clearly prohibited under ICL, and those criminal prohibitions are now at the centre of the legal architecture governing this area, IHL is the legal foundation upon which the Rome Statute provisions on sexual violence as war crimes is built. The development of IHL, and its 19 For detail on, eg, the ICRC’s multi-disciplinary response to sexual violence in armed conflict, see: ‘Q&A: The ICRC’s Approach to Sexual Violence in Armed Conflict,’ (2014) 96 IRRC, 449–455. 20 See Ch 2, paras 2.99ff on the duty to respect and ensure respect. For further discussion of the meaning and scope of this positive obligation, see the 2016 ICRC Commentary on GCI, on Common Article 1, paragraphs  143–173 (available here: ), and Knut Dörmann and Jose Serralvo, ‘Common Article 1 to the Geneva Conventions and the obligation to prevent international humanitarian law violations,’ (2014) 96 IRRC 895, 707–736, available at: .

240

Legal Framework  5.17–5.18 evolution into the war crimes that are now set out in the Rome Statute, illustrates the way in which protections in armed conflict that start off by being applicable to one category of persons (‘protected persons’: see below, at paragraph 5.18), can be expanded to being of general application to all persons and can lead to universal condemnation and criminalisation of the prohibited conduct. 5.17  IHL protections against rape and other forms of sexual violence fall into two broad categories: (i) explicit prohibitions on rape/sexual violence; and (ii) prohibitions on broader categories of violence or harm that encompass rape and other forms of sexual violence (this includes general prohibitions, such as torture).21 As we note, at ­paragraphs 5.24–5.28 below, these two categories are reflected in ICL: various forms of sexual violence are expressly designated as war crimes (and also crimes against humanity where they are part of a widespread or systemic attack on a civilian population with knowledge of the attack), but rape and sexual violence may also fall under the more general war crimes of torture, inhuman treatment or outrages upon personal dignity, and the more general crime against humanity of ‘other inhumane acts’. In addition, sexual violence that is committed with certain specific intentions may constitute the crime of genocide. 5.18 The explicit IHL prohibitions apply both to international armed conflict (IAC) and to non-international armed conflict (NIAC). We note the scope of the prohibitions and consider the relevant definitions, for example the meaning of rape, sexual slavery etc, in the context of ICL, at paragraphs 5.26–5.55, below. We describe first the IHL treaty provisions, by reference to IAC and NIAC, and then the relevant CIL, which applies in both IAC and NIAC: 5.18.1  IAC: the development of IHL shows that protections were initially granted, in the Fourth Geneva Convention (GCIV), to a limited group of ‘protected persons’. These were then expanded to encompass all women in the power of a party to a conflict (in Additional Protocol I (API)) and, eventually, they became recognised as being of universal application, in CIL. Thus: (i) Article 27(2), GCIV provides, ‘Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault’. ‘Women’ for these purposes includes females of all ages22 who are ‘protected persons’ under GCIV: see Chapter 3, paragraph 3.15 regarding ‘protected persons’ in IAC. 21 In addition, IHL contains ancillary protections that are not explicitly related to sexual violence, but that may be seen as designed, in part, to reduce the risk of its occurrence. These include, for example: Arts 25(4), 29(2), 97(4) and 108(2), Third Geneva Convention (GCIII), requiring sex-segregated accommodation, washing facilities, and premises for disciplinary punishment, as well as female supervision, for female prisoners of war (POWs); Art 77(4), API, which provides that children who are arrested, detained or interned for reasons related to the armed conflict shall be held in quarters separate from the quarters of adults, except where they are accommodated as a family; and ICRC, CIL Rules 119 and 120, dealing, similarly, with accommodation of women and children deprived of their liberty, respectively (see Jean-Marie Henckaerts and Louise DoswaldBeck, Customary International Humanitarian Law: Volume 1: Rules (Cambridge, CUP, 2005, reprinted with corrections 2009) (hereafter ICRC Study on Customary IHL) 431–35. 22 See Jean S Pictet (ed), Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Times of War 1949 (Ronald Griffin and CW Dumbleton tr, Geneva, ICRC, 1958) 206 (hereafter 1958 ICRC Commentary on GCIV).

241

5.18  Sexual Violence (ii) Article 76(1), API is in similar terms to Article 27(2), GCIV,23 but offers broader protection because it extends to all women in the territory of a Party to the conflict.24 The ICRC Commentary on the AP explains that its purpose was to extend the circle of beneficiaries of this protection.25 (iii) Article 75(2)(b), API prohibits as a ‘fundamental guarantee’ in IAC ‘enforced prostitution and any form of indecent assault’. These are given as examples of the broader prohibition on ‘outrages on personal dignity’. Unlike Article 76(1), API and Article 27(2), GCIV, this provision is gender- (as well as age-) neutral. The expressions ‘outrages on personal dignity’ and ‘any form of indecent assault’ in Article 75(2)(b) have been interpreted as including any form of sexual violence.26 (iv) Article 77(1), API provides ‘Children shall be the object of special respect and shall be protected against any form of indecent assault’.27 Like Article 76(1), it applies to all civilians in the power of a Party to the conflict, so that it requires the protection of civilian children (under 15)28 from indecent assault by members of their own Party as well as members of the opposing Party.29 Indecent assault has been interpreted as including any form of sexual violence.30 5.18.2  NIAC: As we noted in Chapter 2, paragraph 2.77.2, there are two forms of NIAC: NIAC (Common Article 3) and NIAC (APII). Rape and sexual violence are not expressly prohibited by Common Article 3 but are encompassed within the scope of prohibited acts: we therefore consider it below at paragraph 5.19.2. Rape and sexual violence are expressly prohibited in NIAC (APII). Article 4(2)(e), APII prohibits ‘outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault’ in relation to the persons defined in Article 4(1), APII, ie ‘All persons who do not take a direct part or who have ceased to take part in hostilities’. The ICRC Commentary on the AP suggests that this provision was drafted particularly with the problem of sexual violence against children in mind.31

23 ‘Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault’. 24 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva and Leiden, ICRC and Martinus Nijhoff, 1987) para 3151. We refer to this commentary hereafter in this Chapter as the ICRC Commentary on the AP. See Ch 3, para 3.18, for an explanation of why the Articles in S III, API (which contains Art 76) apply to all civilians in the territory. 25 ICRC Commentary on the AP (n 24), para 3147. 26 See ICRC Study on Customary IHL, 324. 27 Emphasis added. 28 It is unclear whether ‘children’ in Art 77(1) might further extend to children under the age of 18. ‘Children’ is not defined in API, and the travaux préparatoires show that this was a deliberate choice on the part of delegates to the conference; but Arts 77(2) and 77(3), containing provisions on ‘child soldiers’, refer specifically to ‘children who have not attained the age of 15 years’. This suggests that ‘children’ as it appears in Art 77(1) may be taken to have a broader meaning. 29 See further, Ch 3, para 3.43. See also para 5.60, below, and Ch 4 for consideration of The Prosecutor v Bosco Ntaganda ICC-01/04-02/06-1962 and the position regarding ‘child soldiers’. 30 See ICRC Study on Customary IHL, 324. 31 The Commentary states: ‘The ICRC draft contained a separate paragraph relating to the protection of women. During the discussions it became clear that it was necessary to strengthen not only the protection of women, but in addition that of children and adolescents who may also be the victims of rape,

242

Legal Framework  5.19 5.18.3  The following rules of CIL are also relevant and applicable in both IAC and NIAC: (i) ICRC, CIL Rule 93 provides that ‘rape and other forms of sexual violence are prohibited’ and the commentary on this rule states that ‘indecent assault’, like ‘outrages on personal dignity’, refers to ‘any form of sexual violence’.32 (ii) ICRC, CIL Rule 94 prohibits slavery in all its forms. This includes sexual slavery.33 5.19  The prohibitions on broader categories of violence or harm that encompass rape and sexual violence also apply in relation to IAC and NIAC. They include the following  – addressed, again, by reference to the respective treaty provisions for IAC and NIAC and then the relevant CIL rules: 5.19.1  IAC: Article 27(1), GCIV entitles ‘protected persons’ to respect for their ‘persons’ and ‘honour’ (among other things), to humane treatment, and to protection ‘especially against all acts of violence or threats thereof and against insults and public curiosity’. These acts have been interpreted as protecting against sexual violence without regard to the victim’s gender.34 In addition, Article 32, GCIV prohibits any measure of such a character as to cause the physical suffering or extermination of protected persons including murder, torture, corporal punishment, and mutilation; and Article 75(1), API provides that all civilians affected by the armed conflict who are in the power of a Party to the conflict must be treated humanely in all circumstances.35 Article 14, GCIII states that female members of the armed forces who have fallen into the power of the enemy are entitled in all circumstances to ‘respect for their persons and honour’;36 and Article 12, GCI and GCII provide that members of the armed enforced prostitution or indecent assault. Therefore a reference to such acts was added to sub-paragraph (e). Furthermore, a separate article specifically devoted to protection of women and children was adopted in the Working Group. When the Protocol was adopted in plenary meetings, that article was deleted by consensus, as the subject matter is already covered by sub-paragraph (e) under consideration here’ (citations omitted). See ICRC Commentary on the AP (n 24), paras 4539–40. 32 ICRC Study on Customary IHL, 323–24. See Patricia Viseur Sellers and Indira Rosenthal, ‘Rape and Other Sexual Violence’ in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (Oxford, OUP, 2015) who suggest in fn 86, that the following, incomplete, list is illustrative of acts that would constitute indecent assault: ‘vaginal, labial, penile, testicular, breast and anal mutilations; insertions of objects and liquids into the genitals and anus; burning of pubic hair; insertion of genitalia into one’s own or another person’s orifice, or into an animal, plant, tree, or inanimate object; rape … compelled sexual acts between protected persons, especially family members, members of the same sex, internees, the aged, sick, disabled, military comrades or with the deceased; forced nudity, forced public display while nude, forced performance of duties while nude; forced masturbation, forced masturbation of other protected persons or members of Detaining Power; being compelled to watch infliction of sexual violence on others; or sexual insults, threats, intimidation, coercion, punishment or threats of sexual violence; forced circumcision; forced abortion; forced pregnancy; forced birth; or mutilation of a pregnant womb’. 33 The commentary on ICRC, CIL Rule 94 states ‘In a report submitted in 1998 to the UN Sub-Commission on Human Rights, the Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slaverylike Practices during Wartime stated that “sexual slavery is slavery and its prohibition is a jus cogens norm.”’ (emphasis as in original): see ICRC Study on Customary IHL, 330. 34 Viseur Sellers and Rosenthal (n 32), para 8, citing Dustin A Lewis, ‘Unrecognized Victims: Sexual Violence Against Men in Conflict Settings under International Law’ (2009) 27 Wisconsin International Law Journal 1–49, 23. 35 See also Ch 3, para 3.50. 36 See Jean S. Pictet, Commentary on the Third Geneva Convention Relative to the Treatment of Prisoners of War, ICRC, Geneva, 1960, Commentary on Article 14, which states that the main intention of this provision was to defend women prisoners against rape, forced prostitution and any form of indecent assault.

243

5.20–5.21  Sexual Violence forces who are wounded, sick or shipwrecked ‘shall be treated humanely’ and that ‘any attempts upon their lives, or violence to their persons, shall be strictly prohibited’. 5.19.2  NIAC: As noted above, Common Article 3 contains a prohibition on broad categories of violence. It protects ‘Persons taking no active part in the hostilities’ from ‘violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture’ and ‘outrages upon personal dignity, in particular humiliating and degrading treatment’. Rape and other forms of sexual violence fall within the scope of this protection because, as noted below and for example, such conduct may constitute torture, cruel treatment and/or humiliating and degrading treatment.37 The prohibitions on broader categories of violence also exist in NIAC (APII): Article 4(1), APII entitles all persons who do not, or who have ceased to, take a direct part in hostilities to respect for their persons and honour, and to humane treatment, and Article 4(2)(a) prohibits violence to the life, health and physical or mental well-being of such persons, including cruel treatment such as torture. 5.19.3  The relevant rule of CIL (applicable in both IAC and NIAC): ICRC, CIL Rule  90 prohibits ‘Torture, cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating or degrading treatment’. Rape may constitute torture38 and is an ‘outrage upon personal dignity’39 and therefore falls within the scope of this Rule. Other forms of sexual violence may constitute torture, ‘cruel or inhuman treatment’, ‘outrages upon personal dignity’, or ‘humiliating or degrading treatment’.40 5.20  IHL treaty provisions do not define ‘rape’ or ‘sexual violence’ or ‘indecent assault’. However, ICL has addressed this definitional lacuna: see paragraphs 5.36ff, below.41 5.21  In addition to the treaty provisions regarding IAC and NIAC, there are a number of soft law instruments (ie general guidelines and minimum-standard documents) and policy guidelines that have been produced by UN agencies on specific issues relating to children in conflict situations.42 For example: 5.21.1  In 2005, a taskforce of the UN Inter-Agency Standing Committee (IASC) working on GBV published guidelines to assist humanitarian actors and communities 37 Christine Chinkin, ‘Gender and Armed Conflict’ in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (Oxford, OUP, 2014) 682. 38 The ICRC commentary to Rule 90 notes that the International Criminal Tribunal for the former Yugoslavia (ICTY) and regional human rights bodies have held that rape may constitute torture: see ICRC Study on Customary IHL, 318. 39 Article (4)(2)(e), APII lists ‘rape, enforced prostitution and any form of indecent assault’ as outrages upon personal dignity. The Statutes for the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) also list rape, enforced prostitution and any form of indecent assault as outrages upon personal dignity under Common Article 3. 40 See, eg, Prosecutor v Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo (Trial Judgment) IT-96-21-T (16 November 1998), para 1066. 41 In the absence of treaty definitions, the definition of ‘rape’ was derived from CIL, codified in the case law of the ICTR and ICTY and now set out in the International Criminal Court’s (ICC) Elements of Crimes (see paras 5.37–5.39 below). 42 There are a number of relevant UN guidelines on the conduct of peacekeeping forces, including the Policy on Accountability for Conduct and Discipline in Field Mission, dated 1 August 2015, available at and UN Secretariat, ‘Secretary-General’s Bulletin: Special measures for protection from sexual exploitation and sexual abuse’ (9 October 2003) UN Doc ST/SGB/2003/13. We do not consider these since, as noted in Ch 2, para 2.3.1, issues regarding peacekeeping operations are beyond the scope of this book.

244

Legal Framework  5.22–5.24 affected by (amongst other things) armed conflict in coordinating, planning, implementing, monitoring and evaluating actions to prevent and mitigate GBV. The Guidelines were updated in 2015 and include a section on child protection.43 5.21.2  The Minimum Standards for Child Protection in Humanitarian Action, produced by the Child Protection Working Group (CPWG) (formed of a number of NGOs, UN agencies and others) addresses sexual violence in Standard 9.44 International Criminal Law 5.22  The IHL prohibitions detailed above provide the foundation for the ICL protections against sexual violence, which are now of central importance in the protective framework. ICL imposes, individual criminal responsibility (as well as command responsibility) for the violation of IHL prohibitions on sexual violence. 5.23  As explained in Chapter 2, paragraph 2.28, the principal ICL instrument is the Rome Statute of the ICC, and the ICC is the only permanent international court in which individuals charged with crimes under ICL can be prosecuted and tried. The ICC has jurisdiction over genocide, crimes against humanity and war crimes45 when committed by any individual in the territory of a State Party or by nationals of States Parties (wherever located).46 Our discussion below is focussed on the Rome Statute, although we take account of, where relevant, CIL and International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and Special Court of Sierra Leone (SCSL) case law. 5.24  By way of overview, under the Rome Statute sexual violence may constitute a crime as follows: 5.24.1  Various forms of sexual violence are expressly prohibited as war crimes, as set out below. These are rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and any other form of sexual violence also constituting a grave breach of the Geneva Conventions (in IAC) or Common Article 3 (in NIAC). 5.24.2  In addition, as in the case of IHL, sexual violence within armed conflict may fall under broader prohibitions that are also war crimes. It may, in principle, constitute: an outrage upon personal dignity, in particular humiliating and degrading treatment; inhumane treatment; or torture.47 These broader prohibitions provide another layer 43 IASC, ‘Child Protection – Thematic Area Guide for: Guidelines for Integrating Gender-Based Violence Interventions in Humanitarian Action’ (IASC, 2015). For the full set of Guidelines, see IASC, ‘Guidelines for Integrating Gender-Based Violence Interventions in Humanitarian Action’ (IASC, 2015). 44 CPWG, The Minimum Standards for Child Protection in Humanitarian Action (CPWG, 2012), available at , 91–96. Standard 9 states that ‘Girls and boys are protected from sexual violence, and survivors of sexual violence have access to age-appropriate information as well as a safe, responsive and holistic response.’ 45 Art 5, Rome Statute. It also has jurisdiction over the crime of aggression but that is not relevant for the purposes of this Chapter. 46 Art 12, Rome Statute. 47 Examples of cases in the ICTY where sexual violence has been charged pursuant to broader prohibitions of this sort include: Prosecutor v Dragoljub Kunarac, Radomir Kovač and Zoran Vuković (Trial Judgment) IT-96-23-T & IT-96-23/1-T (22 February 2001) (acts of forced nudity as outrages on personal dignity); Delalić (Trial Judgment) (n 40) (rape as torture and cruel treatment, and forced fellatio as inhuman treatment and cruel treatment); and Prosecutor v Anto Furundžija (Trial Judgment) IT-95-17/1-T (10 December 1998) (rape as

245

5.25–5.28  Sexual Violence of protection: they may be used where there are evidential or legal difficulties in proving that the conduct in question constitutes one of the expressly prohibited forms of sexual violence. 5.24.3  Where sexual violence in armed conflict has specific additional features, as set out below, it may also constitute a crime against humanity or genocide. 5.25  We consider these categories below, before considering the key definitions, the position of children, and finally the discrete issue of forced marriage under ICL. 5.26  War crimes.48 By definition, war crimes49 may only be committed in the context of armed conflict. Article 8(2) of the Rome Statute identifies the specific war crimes over which the ICC exercises jurisdiction with respect to both IAC and NIAC. 5.27  In the case of IAC, war crimes include both express prohibitions against sexual violence and broader prohibitions which encompass acts of sexual violence. Thus, war crimes in IAC include the following: 5.27.1  ‘Committing rape, sexual slavery, enforced prostitution, forced pregnancy … enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions’.50 5.27.2  ‘Committing outrages upon personal dignity, in particular humiliating and degrading treatment’.51 5.27.3  Grave breaches of the Geneva Conventions. These are identified at Article 8(2)(a)(i)–(viii) and include ‘torture or inhuman treatment’52 and ‘wilfully causing great suffering or serious injury to body or health’,53 when committed against ‘protected persons’. 5.28  Similarly, in NIAC war crimes include express prohibitions against sexual violence and broader prohibitions, which encompass acts of sexual violence. Thus, war crimes in NIAC include the following: 5.28.1  ‘Committing rape, sexual slavery, enforced prostitution, forced pregnancy … enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions’.54 5.28.2  Serious violations of Common Article 3. These are identified at 8(2)(c)(i)–(iv) and include ‘violence to life and person, in particular murder of all kinds, mutilation,

torture and an outrage upon personal dignity). In Prosecutor v Bemba, in the ICC, rape was initially charged as torture and an outrage upon personal dignity as well as rape, but (while it accepted that the conduct fell within these broader prohibitions) the Pre-Trial Chamber took the view that the charges under these heads were in that case fully subsumed under the charge of rape, which constituted the ‘most appropriate legal characterisation of the conduct’: see Prosecutor v Jean-Pierre Bemba Gombo, Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges against Jean-Pierre Bemba Gombo, ICC-01/0501/08 (15 June 2009), paras 205 and 312. 48 Art 8, Rome Statute. 49 ICRC, CIL Rule 156 states that serious violations of IHL constitute war crimes, see ICRC Study on Customary IHL, 568–603. 50 Art 8(2)(b)(xxii), Rome Statute. 51 Art 8(2)(b)(xxi), Rome Statute. 52 Art 8(2)(a)(ii), Rome Statute. 53 Art 8(2)(a)(iii), Rome Statute. 54 Art 8(2)(e)(vi), Rome Statute.

246

Legal Framework  5.29–5.30 cruel treatment and torture’55 and ‘committing outrages upon personal dignity, in particular humiliating and degrading treatment’,56 when committed against persons taking no active part in the hostilities. 5.29  While it is clear that the same conduct (for example, rape) may be criminalised under both the explicit and the broader provisions, the question whether it is appropriate to charge the conduct in question cumulatively – ie under both the explicit and the broader provisions – may depend upon both the particular facts and circumstances of the case and what form of charge constitutes ‘the most appropriate legal characterisation of the conduct presented’.57 Cumulative charges may not always be permitted to proceed by the ICC.58 Nonetheless, the ICC’s Office of the Prosecutor (ICC OTP) has expressed an intention to continue to seek to bring cumulative charges: In principle, the Office will bring charges for sexual and gender-based crimes explicitly as crimes per se, in addition to charging these acts as forms of other violence within the Court’s subject-matter jurisdiction, where the material elements are met, e.g., charging rape as torture, persecution, and genocide. The Office will seek to bring cumulative charges in order to reflect the severity and multi-faceted character of these crimes fairly, and to enunciate their range supported by the evidence in each case.59

5.30  Crimes against humanity may be committed outside, as well as within, armed conflict. However, they must be committed ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.60 Where this condition is satisfied, a wide range of sexual violence may constitute a crime against humanity. Thus: 5.30.1  Article 7(1)(g) of the Rome Statute provides that, ‘Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’ may constitute crimes against humanity.61 5.30.2  Article 7(1)(k) of the Rome Statute also identifies ‘other inhumane acts of a similar character [to the other acts prohibited in Article 7(1)] intentionally causing great suffering, or serious injury to body or to mental or physical health’ as crimes against humanity. In Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (the AFRC Accused), the Appeals Chamber of the SCSL noted that international jurisprudence had, for these purposes, identified a large number of sexual crimes as constituting ‘Other Inhumane Acts’, including forcible transfer, sexual and physical violence perpetrated upon dead human bodies, other serious physical

55 Art 8(2)(c)(i), Rome Statute. 56 Art 8(2)(c)(ii), Rome Statute. 57 Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges against Jean-Pierre Bemba Gombo (n 47), para 312. 58 See, eg, Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges against Jean-Pierre Bemba Gombo (n 47). 59 ICC OTP, ‘Policy Paper on Sexual and Gender-Based Crimes’ (ICC OTP, June 2014), available at , para 72 (emphasis as in original). 60 Art 7(1), Rome Statute. 61 Rape (though not other forms of sexual violence) is identified as a crime against humanity in the statutes of both the ICTY and ICTR: see Art 5(g), Statute of the ICTY and Art 3(g), Statute of the ICTR.

247

5.31–5.32  Sexual Violence and mental injury, forced undressing of women and marching them in public, forcing women to perform exercises naked, sexual violence, humiliation and harassment.62 5.31  Rape and sexual violence have been prosecuted as crimes against humanity as well as war crimes. For example: 5.31.1 In Prosecutor v Dragoljub Kunarac, Radomir Kovač and Zoran Vuković before the ICTY, the three accused were charged with rape as both a crime against humanity and a war crime.63 5.31.2 In Prosecutor v Mathieu Ngudjolo Chui, allegations of rape and sexual slavery were prosecuted before the ICC both as crimes against humanity and as war crimes.64 5.31.3 In Prosecutor v Jean-Paul Akayesu, sexual violence not amounting to rape was prosecuted before the ICTR as the crime against humanity of ‘other inhumane acts’65 (and as the war crimes of outrages upon personal dignity, degrading and humiliating treatment and indecent assault). The Trial Chamber confirmed that the various types of crime (war crimes, crimes against humanity and genocide) ‘have different elements and, moreover, are intended to protect different interests’, such that it was ‘legitimate to charge these [different] crimes in relation to the same set of facts’.66 5.32  The possibility of prosecuting sexual violence as a war crime or as a crime against humanity (or, indeed, as genocide: see below, at paragraph 5.34) is important because it means that a charge can be chosen to reflect the context of the crime. It has been observed that, in the case of the Office of the Prosecutor of the ICTY (ICTY OTP), the choice of how to charge a crime of sexual violence was guided by the objective of accurately labelling and reflecting the criminal conduct in the charges: The prosecutorial decision to charge sexual violence as a war crime, crime against humanity, or genocide, or under multiple categories, will send different messages about the relationship between the sexual violence and the broader context. Likewise, the selection of crime type within each category – for example, whether to charge rape separately, under a broader label such as persecution or both – may affect how the sexual violence is perceived and adjudicated.67

62 Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (the AFRC Accused), Appeals Chamber, Judgment, SCSL-2004-16-A (22 February 2008), para 184 (citations omitted). The Appeal Chamber concluded para 184 with the observation, ‘In effect, the determination of whether an alleged act qualifies as an “Other Inhumane Act” must be made on a case-by-case basis taking into account the nature of the alleged act or omission, the context in which it took place, the person circumstances of the victims including age, sex, health, and the physical, mental and moral effects of the perpetrator’s conduct upon the victims’ (emphasis added). 63 Kunarac (Trial Judgment) (n 47) and (Appeal Judgment) IT-96-23 & IT-96-23/1-A (12 June 2002). 64 Prosecutor v Mathieu Ngudjolo Chui, Trial Chamber II, Judgment pursuant to article 74 of the Statute, ICC-01/04-02/12-3-tENG (18 December 2012). The accused was acquitted and the Appeals Chamber upheld the acquittal, see Appeals Chamber, Judgment on the Prosecutor’s appeal against the decision of Trial Chamber II entitled ‘Judgment pursuant to article 74 of the Statute’, ICC-01/04-02/12-271. 65 Prosecutor v Jean-Paul Akayesu (Trial Judgment) ICTR-96-4-T (2 September 1998), para 688. ‘Other inhumane acts’ were listed as crimes against humanity in both the ICTY and ICTR statutes: see Art 5(i), Statute of the ICTY and Art 3(i), Statute of the ICTR. 66 Akayesu (Trial Judgment) (n 65), para 469. 67 Laurel Baig, Michelle Jarvis, Elena Martin Salgado and Giulia Pinzauti, ‘Contextualizing Sexual Violence: Selection of Crimes’ in Baron Serge Brammertz and Michelle Jarvis (eds), Prosecuting Conflict-Related Sexual Violence at the ICTY (Oxford, OUP, 2016) 173; see further 174–77.

248

Legal Framework  5.33–5.37 5.33  Similarly, the ICC OTP has stated in its Policy Paper on Sexual and Gender-Based Crimes that: Where supported by the evidence, the Office will also charge acts of sexual and gender-based crimes as different categories of crimes within the Court’s jurisdiction (war crimes, crimes against humanity, and genocide), in order to properly describe, inter alia, the nature, manner of commission, intent, impact and context.68

5.34  Genocide is defined in Article 6 of the Rome Statute as any of the acts listed in ­Article 6, when committed ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. The listed acts include, in Article 6(b), ‘Causing serious bodily or mental harm to members of the group’.69 In Prosecutor v Anto Furundžija, the Trial Chamber of ICTY stated that rape could in principle amount to genocide, if the requisite elements of that crime were met.70 However, to date there have been no convictions before an international tribunal of sexual violence as genocide. Again, the decision as to whether to charge rape as genocide will be guided by the objective of accurately reflecting the purpose and nature of the criminal conduct in the charge sheet. For instance, it has been observed in commentary by former and present staff members of ICTY OTP that: … charging sexual violence as genocide connects it to a campaign of crimes in two major ways. First, sexual violence can be linked with a range of other destructive acts inflicted on members of a protected group, namely, a national, ethnical, racial, or religious group. Second, convictions for sexual violence as genocide recognize that the crimes were carried out for a destructive purpose.71

5.35  In summary: rape and other forms of sexual violence in conflict are criminalised in ICL, both explicitly and – to the extent that they fall under the broader prohibitions identified above – implicitly. The context and purpose of the prohibited conduct will affect whether it is chargeable as a war crime, crime against humanity or genocide; and its precise nature and gravity may determine whether it is charged as rape, another form of specified sexualised wrongdoing, or under a broader category such as torture, an outrage upon human dignity or other inhumane acts. The protections are robust. Although they are not specific to child victims they clearly encompass children and provide them with adequate protection. 5.36  Definitions: introduction. IHL does not define the principal prohibited conduct (for example, rape). Definitions have been developed by courts or tribunals in the context of ICL and are now set out in the ICC’s Elements of Crime. We consider the principal definitions in turn below. In general, we consider that these definitions are adequate to encompass the commission of these crimes against children, though we note some ­qualifications. 5.37  Definition of rape. The jurisprudence of the ICTY and ICTR has played a crucial role in the incremental development of definitions of ‘rape’ in ICL. Starting from a broad 68 ICC OTP (n 59), para 73. 69 This form of genocide is also prohibited by Art 4(2)(b) of the ICTY Statute and Art 2(2)(b) of the ICTR Statute. 70 Furundžija (Trial Judgment) (n 47), para 172. 71 Baig, Jarvis, Salgado and Pinzauti (n 67), 210.

249

5.38–5.40  Sexual Violence definition in the ICTR case of Akayesu,72 the key cases that developed the definition include Furundžija73 and Kunarac.74 The ICC’s Elements of Crimes integrates these definitions, identifying the essential elements of rape – both as a war crime and as a crime against humanity – as follows, in a definition that has achieved a large degree of international consensus:75 1.  The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. 2.  The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.76

5.38  A footnote to the latter paragraph of this definition states that ‘It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity’.77 5.39  We consider that this definition is as appropriate to capture cases of rape of children as to capture cases of rape of adults, although the question of when children can be said to consent to sexual conduct (or to have an ‘age-related incapacity’ to consent) raises specific questions, as discussed further below, at paragraph 5.51. 5.40  Definition of ‘sexual slavery’. The definition of ‘sexual slavery’ was considered by the SCSL in two cases about forced marriage/sexual slavery: AFRC78 and

72 Akayesu (Trial Judgment) (n 65), paras 598 and 688 (defining rape as a ‘physical invasion of a sexual nature, committed on a person under circumstances which are coercive’). 73 Furundžija (Trial Judgment) (n 47), para 185 (defining ‘the objective elements of rape’ as ‘(i) the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (ii) by coercion or force or threat of force against the victim or a third person’). 74 Kunarac (Trial Judgment) (n 47), paras 437–38 and 460: the Trial Chamber agreed with part (i) of the definition in Furundžija but considered that part (ii) had been ‘more narrowly stated than is required by international law’ (at para 438) and it therefore reformulated it as ‘where such sexual penetration occurs without the consent of the victim’ (at 460). On appeal, see Kunarac (Appeal Judgment) (n 63), paras 128–33: the Appeals Chamber concurred with the Trial Chamber’s definition of rape and emphasised that the Trial Chamber had ‘sought to explain the relationship between force and consent. Force or threat of force provides clear evidence of nonconsent, but force is not an element per se of rape’ (at 129, emphasis as in original). 75 Gaggioli (n 15), 508–09. 76 See ICC, Elements of Crimes (ICC, 2011) 8 (for the crime against humanity of rape) and 28 and 36–37 (for the war crimes of rape) (citations excluded). Under the Elements of Crimes, acts satisfying this description will only be war crimes if, in addition, (1) ‘The conduct took place in the context of and was associated with’ an international armed conflict (in IAC) and an armed conflict not of an international armed character (in NIAC), and (2) ‘The perpetrator was aware of factual circumstances that established the existence of an armed conflict’: see ICC, Elements of Crime, 28 for IAC and 36–37 for NIAC. They will only be crimes against humanity if, in addition (1) ‘The conduct was committed as part of a widespread or systematic attack directed against a civilian population’, and (2) ‘The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population’: see ICC, Elements of Crime, 8. 77 See ICC, Elements of Crimes (n 76), 8, fn 16 (for the crime against humanity of rape) and 28, fn 51 and 37, fn 64 (for the war crimes of rape). 78 Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (the AFRC Accused), Trial Chamber, Judgment, SCSL-04-16-T (20 July 2007), paras 703–14 and Appeals Chamber, Judgment (n 62), paras 181–203. The Trial Chamber held that forced marriages were included within sexual slavery whereas the

250

Legal Framework  5.41–5.43 Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (the RUF Accused).79 It has also been considered by the ICC in Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui.80 The ICC’s Elements of Crimes contains the following definition of sexual slavery (both as a war crime and a crime against humanity): 1.  The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. 2.  The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.81

5.41  A footnote to paragraph 1 states that the conduct described ‘includes trafficking in persons, in particular women and children’.82 5.42  In the AFRC case the Trial Chamber of the SCSL noted, in relation to the ICC Elements of Crimes definition, that the powers of ownership listed in the first element of this definition are non-exhaustive; that there is no requirement for any payment or exchange; that deprivation of liberty may include extracting forced labour or otherwise reducing a person to servile status; and that ownership does not require confinement to a particular place.83 This analysis means that the concept of sexual slavery is broad and flexible enough to apply to various forms of enslavement and to take into account specific characteristics of the victim. For example, an assessment of whether there has been ‘deprivation of liberty’ may differ as between an adult victim and a child victim since children, especially younger children, may more commonly be subject to forms of authority or control by virtue of their status as children. Whether they have been deprived of their liberty in the sense required by the definition in Brima appears to be flexible enough to enable a nuanced assessment in light of their specific characteristics. 5.43  Definition of ‘enforced prostitution’. The ICC’s Elements of Crime defines enforced prostitution as follows: 1.  The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.

Appeals Chamber held that forced marriages were a distinct crime of humanity (ie an ‘other inhumane act’: Art 2(i), Statute of the SCSL). 79 Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (the RUF Accused), Trial Chamber I, Judgment, SCSL-04-15-T (2 March 2009), paras 152–63, 1465–73 and 2307. The accused were convicted, cumulatively, of sexual slavery and forced marriages (as a crime against humanity of ‘other inhumane acts’). 80 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Pre-Trial Chamber I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717 (30 September 2008), paras 428–36. The ICC regarded sexual slavery as including forced marriage situations. 81 See ICC, Elements of Crime (n 76), 8 (for the crime against humanity of sexual slavery) and 28 and 37 (for the war crimes of sexual slavery). See n 76, above, for the additional requirements in order to constitute a war crime and a crime against humanity, respectively. 82 See ICC, Elements of Crime (n 76), 8, fn 18 (for the crime against humanity of sexual slavery) and 28, fn 53 and 37, fn 66 (for the war crimes of sexual slavery). 83 AFRC (Trial Judgment) (n 78), para 709.

251

5.44–5.49  Sexual Violence 2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature.84

5.44  This definition adequately covers both children and adults: it is flexible enough to allow age to be taken into account, for example in relation to the phrase ‘incapacity to give genuine consent’. 5.45  Definition of ‘forced pregnancy’. Forced pregnancy is explicitly defined in ­Article  7(2)(f) of the Rome Statute as ‘the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law’.85 The ICC’s Elements of Crime reflects this definition: 1.  The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.86

5.46  Although this refers to ‘women’ we consider that it must be intended to cover all females that are able to become pregnant. 5.47  Definition of ‘enforced sterilization’. The ICC’s Elements of Crime defines enforced sterilisation as follows: 1.  The perpetrator deprived one or more persons of biological reproductive capacity. 2.  The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent.87

5.48  This definition adequately covers both children and adults. Again, it enables age to be taken into account when considering whether ‘genuine consent’ was given. 5.49  Definition of ‘sexual violence’. Articles 7(1)(g), 8(2)(b)(xxii) and 8(2)(e)(vi) of the Rome Statute criminalise ‘any other form of sexual violence of comparable gravity’; ‘any other form of sexual violence also constituting a grave breach of the Geneva Conventions’ and ‘any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions’, respectively. In this context, ‘sexual violence’ is broadly defined in the ICC’s Elements of Crime as follows: 1.  The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 84 See ICC, Elements of Crime (n 76), 9 (for the crime against humanity of enforced prostitution) and 29 and 37 (for the war crimes of enforced prostitution). See n 76, above, for the additional requirements in order to constitute a war crime and a crime against humanity, respectively. 85 Art 7(2)(f) concludes, ‘This definition shall not in any way be interpreted as affecting national laws relating to pregnancy’. 86 See ICC, Elements of Crime (n 76), 9 (for the crime against humanity of forced pregnancy) and 29 and 38 (for the war crimes of forced pregnancy). See n 76, above, for the additional requirements in order to constitute a war crime and a crime against humanity, respectively. 87 See ICC, Elements of Crime (n 76), 9 (for the crime against humanity of enforced sterilization) and 29 and  38 (for the war crimes of enforced sterilisation) (citations omitted). See n 76, above, for the additional requirements in order to constitute a war crime and a crime against humanity, respectively.

252

Legal Framework  5.50–5.51 2.  Such conduct was of a gravity comparable to [the other offences in Article 7(1)(g) of the Rome Statute88/that of a grave breach of the Geneva Conventions89/that of a serious violation of Common Article 3].90 3.  The perpetrator was aware of the factual circumstances that established the gravity of the conduct.91

5.50  One question that arises out of this definition is when sexual conduct satisfying the description in paragraph 1 will be of ‘a gravity comparable to’ the identified benchmarks. As to this: 5.50.1  Mutilation of sexual organs, enforced contraception, forced marriage, forced inspections for virginity and forced public nudity have all been considered as crossing the ‘gravity’ threshold.92 5.50.2  Even acts which do not involve physical contact may be included within the scope of sexual violence: see Akayesu, in which the ICTR defined ‘sexual violence’ as ‘any act of a sexual nature which is committed on a person under circumstances which are coercive’,93 acknowledging that this could include acts which do not involve physical contact, such as that of forcing the victim to undress and do gymnastics naked in public.94 5.50.3  This broad interpretation of sexual violence reflects the fact that it can affect the moral integrity of the victim, as well as the physical integrity. In Furundžija, the ICTY Trial Chamber defined ‘sexual assault’ as embracing ‘all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation in a way that is degrading and humiliating for the victim’s dignity’.95 5.50.4  The breadth of the concept of ‘sexual violence’ so interpreted is to be welcomed, particularly from the perspective of children. Children in conflict situations are not only victims of, but may also be witnesses to or non-consenting participants in physical sexual assault against others. It is right that such children, whose ‘moral integrity’ and ‘dignity’ may be particularly vulnerable to such abuse, should be identifiable themselves as victims of sexual violence. 5.51  The position of children. Despite the prevalence of child victims of sexual violence, there has been little consideration of the distinctive position of children in relation to rape and other forms of sexual violence in ICL case law. We suggest that the status of a victim as a child is relevant to at least the following aspects of ICL as described above: 5.51.1  Gravity: As explained above, the Rome Statute criminalises as a war crime any form of sexual violence of ‘comparable gravity’ to grave breaches of the Geneva 88 In the case of a crime against humanity. 89 In the case of a war crime during IAC. 90 In the case of a war crime during NIAC. 91 See ICC, Elements of Crime (n 76), 10 (for the crime against humanity of sexual violence) and 30 and 38 (for the war crimes of sexual violence). See n 76 above, for the additional requirements in order to constitute a war crime and a crime against humanity, respectively. 92 See Gaggioli (n 15) and the references there provided. 93 Akayesu (Trial Judgment) (n 65), paras 598 and 688. 94 Akayesu (Trial Judgment) (n 65), para 688. 95 Furundžija (Trial Judgment) (n 47), para 186.

253

5.51  Sexual Violence Conventions (in the case of IAC) or serious violations of Common Article 3 (in the case of NIAC), and as a crime against humanity any form of sexual violence of ‘comparable gravity’ to those offences explicitly identified in Article 7(1)(g), Rome Statute. We suggest that it is (at the very least) arguable that the status of the victim as a child is relevant to the gravity of an offence involving sexual violence. This is consistent with observations made by the Appeals Chamber of the SCSL in AFRC96 and by the ICTY Trial Chamber in Kunarac.97 Thus, a form of assault which might not otherwise cross the ‘gravity’ threshold if committed against an adult might nonetheless do so if committed against a child. This may apply, for example, in relation to certain nonphysical forms of sexual violence referred to above. 5.51.2  Consent/abuse of power: The definition of rape in the ICC’s Elements of Crime (see above, at paragraph 5.37) is satisfied if, amongst other things, the ‘invasion’ was committed against a person who is ‘incapable of giving genuine consent’. Sexual violence is defined in terms that include acts of a sexual nature committed by an abuse of power or by taking advantage of a person’s ‘incapacity to give genuine consent’. Enforced prostitution and sterilisation also require consideration of consent. In the case of young victims, or children below a certain age, it is questionable whether they are capable of genuinely consenting to any sexual activity.98 This is reflected in the ICC, Elements of Crime footnote (see above) which could be interpreted as creating a presumption that children cannot give genuine consent.99 Alternatively, it may reasonably be supposed that any such purported ‘consent’ must necessarily be consequent upon unequal positions of power and, therefore, that there may be room for inferring abuse of power. Assumptions about the age of genuine consent to sexual activity are embodied in the laws of states that criminalise sexual activity below a certain age. At the very least, therefore, and if there is no existing presumption that children cannot give genuine consent: the threshold for establishing ‘genuine consent’ should be higher in relation to child victims of sexual violence, than in the case of other victims. 5.51.3  Prevention and rehabilitation: Our consideration of sexual violence is, necessarily, based purely on legal analysis and the focus of the law, both IHL and ICL, is, unsurprisingly, on the prohibition and criminalisation of sexual crimes per se. Nevertheless, as noted above, at paragraph 5.15, prohibiting and criminalising sexual violence is just one element of the multi-disciplinary response that is needed for tackling sexual violence against children in armed conflict. We anticipate that it is very

96 AFRC (Appeals Judgment) (n 62), para 200: ‘In assessing the gravity of forced marriage in the Sierra Leone conflict, the Appeals Chamber has taken into account the nature of the perpetrators’ conduct especially the atmosphere of violence in which victims were abducted and the vulnerability of the women and girls especially those of a very young age. Many of the victims of forced marriage were children themselves’. 97 Kunarac (Trial Judgment) (n 47), paras 874 and 879 where the Trial Chamber identified the youth of the victims as an aggravating circumstance. 98 For a consideration of consent in the context of recruitment and use, see Prosecutor v Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, 14 March 2012, paras 615–17, available at and Ch 4. 99 See, eg, the assessment that in the case of a child (by reference to age of consent in laws of states), ‘nonconsent is presumed’ in Roy S. Lee, The International Criminal Court: Elements of Crimes and Rules of Procedures and Evidence (Transnational Publishers, 2001), at 189.

254

Legal Framework  5.52–5.54 likely that most of the relevant actors in this field are engaged in providing such a multi-disciplinary response, encompassing prevention and rehabilitation. However, to the extent that states are not and insofar as it may be necessary to encourage states to adopt a more holistic response by reference to a legal prompt to do so; we consider that the need to provide children with the ‘care and aid’ they require in armed conflict (Article 77(1), API and Article 4(3), APII), the special respect and protection provision (ICRC, CIL Rule 135) and the duty to respect and ensure respect (Common Article 1) could be used to bolster the legal case for a more consistent, systematised response on prevention and rehabilitation. See paragraph 5.15 above. 5.52  Forced marriage. Forced marriage is a discrete and developing issue that is connected with sexual violence against children in armed conflict. For example, the abduction of girls in armed conflict may be for the purpose of their ‘recruitment’ into armed forces or groups, and may be combined with forced marriage and physical labour. It is impossible to give reliable estimates of the numbers of victims of such conduct; this is partly because the concept of ‘forced marriage’ may be considered differently in different cultures. However, widespread cases of kidnapping, rape, forced marriage, forced pregnancies, forced childbearing and sexual slavery (categories that, at the very least, overlap) have been documented in relation to conflicts in Sierra Leone, Liberia, Uganda, Rwanda and the DRC.100 5.53  Forced marriage has been characterised as a ‘multi-layered’ crime, the commission of which usually involves sexual slavery, sexual violence and forced labour; but it is ­arguable that it does not fit neatly into any of these offences.101 It is not expressly identified by the Rome Statute as a crime in its own right, in contrast to rape, sexual slavery and sexual violence.102 In this regard, it resembles the position of child abduction: see Chapter 6. 5.54  Forced marriage has, however, been recognised by the SCSL as a crime against humanity, distinct from the crimes of rape, sexual slavery and sexual violence:103 5.54.1  In the AFRC case, allegations of forced marriage were charged as a crime against humanity under the category of ‘other inhumane acts’. The Trial Chamber found that the conduct identified by the prosecution under the description ‘forced marriage’ satisfied the definition of ‘sexual slavery’ under Article 2, such that the

100 See Annie Bunting, ‘“Forced Marriage” in Conflict Situations: Researching and Prosecuting Old Harms and New Crimes’ (2012) 1(1) Canadian Journal of Human Rights 165–85, 171–76 for detailed consideration of the evidence arising out of these conflicts. 101 See Micaela Frulli, ‘Advancing International Criminal Law: The Special Court for Sierra Leone Recognizes Forced Marriage as a “New” Crime against Humanity’ (2008) 6(5) Journal of International Criminal Justice 1033–42, 1036. 102 The ambiguity regarding the status of forced marriage is compounded by the facts that (i) ‘child brides’ may be recruited either from the adverse party or from the perpetrator’s own party, and (ii) as ‘brides’ of soldiers, they may be required also to participate in hostilities. The particular problem of intra-party sexual violence against children is considered at para 5.60 below. 103 See Bunting (n 100) and Frulli (n 101). Forced marriage is also prohibited by many IHRL instruments, including Art 16, Universal Declaration of Human Rights (UDHR), Art 23(3), International Covenant on Civil and Political Rights (ICCPR) and Art 16, Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The prohibition also appears in a number of regional human rights instruments, eg Art 17(3), American Convention on Human Rights (ACHR).

255

5.55–5.56  Sexual Violence charge of ‘forced marriage’ was redundant.104 It held that there was ‘no lacuna in the law which would necessitate a separate crime of “forced marriage” as an “other inhumane act”’.105 However, the Appeals Chamber rejected the proposition that forced marriage was subsumed in the crime of sexual slavery.106 It noted two distinctions: first, forced marriage involves compelling a person into a ‘forced conjugal association’, a state associated with distinctive psychological, mental and moral suffering; second, unlike sexual slavery, forced marriage ‘implies a relationship of exclusivity between the “husband” and “wife” which could lead to disciplinary consequences for breach of this exclusive arrangement’.107 5.54.2 In Prosecutor v Germain Katanga, by contrast, the ICC Pre-Trial Chamber held that ‘sexual slavery’ adequately encompasses situations in which women and girls are forced into ‘marriage’.108 There was no discussion of the distinction drawn in the AFRC case between forced marriage and sexual slavery. 5.55  The issue of forced marriage is currently under consideration in Case 002/02 in the Extraordinary Chambers in the Courts of Cambodia (ECCC). Closing statements were delivered in June 2017 and judgment is awaited. Allegations of (predominantly adult) victims being forced by the CPK regime to enter conjugal relations in coercive circumstances have been charged as the crime against humanity of ‘other inhumane acts through acts of forced marriage’ as well as the crime against humanity of rape.109 Notably, the focus of the factual allegations is on the element of coercive, state-mandated entry into conjugal relations, as much as on the associated sexual coercion (perpetrated, in that case, not by the conjugal partner in question, but by the regime which monitored and enforced consummation of marriage). However, the ECCC has recognised that enforced sexual relations in the context of forced marriage can themselves amount to the ‘other inhumane act’ of sexual violence.110 5.56  In our opinion, the forms of sexual ownership and physical violence associated with forced marriage are likely to be adequately covered by the existing ICL prohibitions regarding rape, sexual slavery and other forms of sexual violence. However, the SCSL Appeals Chamber’s insight in the AFRC case was that forced marriage may be associated with certain distinctive forms of mental, psychological or social suffering (ie suffering that is different from, and additional to, physical violence). Such mental, psychological or social suffering is not a necessary concomitant of rape, sexual slavery or sexual violence. It is in light of this observation that we consider below the arguments in favour of the suggestion that, at least in the case of children, further consideration should be given to whether forced marriage should be recognised as a distinctive crime.

104 AFRC (Trial Judgment) (n 78), paras 703–14. 105 AFRC (Trial Judgment) (n 78), para 713. 106 AFRC (Appeals Judgment) (n 62), para 195. 107 AFRC (Appeals Judgment) (n 62), para 195. Consistently with this, in RUF (Trial Judgment) (n 79), the accused were convicted of both sexual slavery and the ‘other inhumane act’ of forced marriage. 108 Katanga, Pre-Trial Chamber I, Decision on the Confirmation of Charges (n 80), para 431. 109 See Case File No.: 002/19-09-2007-ECCC-OCIJ, Closing Order, paras 1442, 1525(v), 1545, 1546, 1548 and 1549. 110 ibid, para 1433.

256

Legal Framework  5.57–5.58 2.  Problems and Deficiencies in the Legal Framework 5.57  As we noted at the outset of this Chapter, the IHL and ICL legal regimes for protection of children from rape and other forms of sexual violence in conflict are comprehensive and well-developed when viewed as a whole. Thus, there is no doubt that rape and other forms of sexual violence (of sufficient seriousness): (i) constitute violations of IHL in both IAC and NIAC; (ii) constitute war crimes (in both IAC and NIAC) and crimes against humanity and may, in principle, constitute genocide; and (iii) that children of both sexes are encompassed in these protections. 5.58  We note that in IAC rape and other forms of sexual violence are not expressly identified as grave breaches of the Geneva Conventions. However, this has not created a gap in protection for the following reasons: 5.58.1  First, this has not created a gap in substantive protection. This is because, as noted at paragraph 5.27, above, sexual violence in IAC can amount to ‘torture or inhuman treatment’, ‘wilfully causing great suffering’ or ‘causing serious injury to body or health’, each of which is itself a grave breach of the Geneva Conventions.111 The ICRC commentary on CIL Rule 156112 states that rape ‘would have to be considered a grave breach’ on this basis.113 There are examples of cases where rape has been prosecuted under the grave breaches provisions.114 Furthermore, there is increasing support internationally for acknowledgment that sexual violence per se should be regarded as a grave breach of the Geneva Conventions. For example: (i) the delegates to the International Conference for the Protection of War Victims held in Geneva in 1993 declared that ‘acts of sexual violence directed notably against women and children … constitute grave breaches of international humanitarian law’;115 and (ii) two thirds of UN Member States endorsed the UNGA declaration on ‘Commitment to End Sexual Violence in Conflict’, adopted in 2013, pursuant to which states recalled ‘that rape and other forms of serious sexual violence in armed conflict are war crimes and also constituted grave breaches of the Geneva Conventions and their first Protocol’.116 In any event, there is no gap in substantive protection because, as set out in detail above, rape and other forms of sexual violence across a whole spectrum of gravity are expressly recognised as war crimes and crimes against humanity in the Rome Statute.

111 See Gaggioli (n 15), 526, referring to Henckaerts and Doswald-Becks (eds), Customary International Humanitarian Law, Vol. 1: Rules (Cambridge, ICRC, Cambridge University Press, 2005). 112 This provides that ‘Serious violations of international humanitarian law constitute war crimes’. 113 ICRC Study on Customary IHL, 585. 114 See, eg, ICTY, Delalić (Trial Judgment) (n 40). In this case some of the accused were convicted of rape as torture under Art 2, Statute of the ICTY, which provides, ‘The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions … (b) torture or inhuman treatment’. 115 The declaration is available here: . 116 See UNGA, ‘A Declaration of Commitment to End Sexual Violence in Conflict’ (24 September 2013), available at . In that same year, the G8 also adopted a ‘Declaration on Preventing Sexual Violence in Conflict (11  April 2013), available at . This declaration states at para 4: ‘Ministers recalled that rape and other forms of serious sexual violence in armed conflict are war crimes and also constitute grave breaches of the Geneva Conventions and their first Protocol’. This Declaration was recognised in the preamble to Security Council Resolution 2106 (24 June 2013), UN Doc S/Res/2106 (2013).

257

5.59–5.61  Sexual Violence 5.58.2  Second, this has not created a gap in the structure of accountability (though in practice, it is highly challenging to secure convictions). The classification of offences as a ‘grave breach’ of the Geneva Conventions is important because it affects a state’s legal obligations. For example, under Articles 146–47, GCIV, as extended by Articles 85–86, API, states have obligations to prosecute or extradite perpetrators of grave breaches of the Geneva Conventions. These obligations do not arise in the case of war crimes that are not grave breaches. However, ICRC, CIL Rules 157–58 and the associated commentary suggests that, as a matter of CIL, states must investigate war crimes (including rape) and, if appropriate, prosecute suspects.117 5.59  Although we regard the substantive IHL and ICL framework as being generally adequate, we consider that there is potential scope for improvement or development in three respects. 5.60  First, the position of ‘child soldiers’ abused by their own group is currently unclear. One distinctive feature of sexual violence against ‘child soldiers’ in times of conflict is that the perpetrators and victims of such assaults often belong to the same party – for example, children may be abducted in order to supply sexual services to combatants on their own side of the conflict, or for the purposes of forced marriage to such combatants. This has complicated the prosecution of such offences as war crimes: in particular, it is unclear whether the status requirements of the Geneva C ­ onventions118 (for IAC) and of Common Article 3119 (for NIAC) apply to the war crimes in Articles 8(2)(b)(xxii) and 8(2)(e)(vi), Rome Statute – with the effect that those war crimes exclude, from the pool of potential victims, ‘child soldiers’ abused by their own group. If such victims are excluded, this would constitute a gap in protection. The ICC rejected the submission that these status requirements applied to those war crimes in Prosecutor v Bosco Ntaganda, affirming that IHL prohibitions on rape and sexual slavery could apply within a party’s own forces.120 However, the decision in that case may be controversial insofar as it may be read as expressly dissociating war crimes from the status requirements in their IHL foundation. 5.61  Second, there is scope for greater focus on states’ wider obligations regarding children, for example to prevent sexual violence against children and the rehabilitation of child victims. As explained above, IHL and ICL proscribe and criminalise various forms of sexual violence against children. But Article 77(1), API goes wider than proscription: it provides not only that children shall be ‘protected against any form of indecent assault’, but also that ‘Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason’. Article 4(3),

117 ICRC, CIL Rule 157 provides, ‘States have the right to vest universal jurisdiction in their national courts over war crimes’: see ICRC Study on Customary IHL, 604–07. ICRC, CIL Rule 158 provides, ‘States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects’: see ICRC Study on Customary IHL, 607–11. See n 49, above, for ICRC, CIL Rule 156, defining ‘war crimes’ as ‘serious violations’ of IHL. 118 The protection of the GCIV, for example, only extends to ‘protected persons’, ie civilians in the hands of a Party to the conflict or an Occupying Power of which they are not nationals: see Ch 3, para 3.15. 119 Common Art 3 applies to ‘Persons taking no active part in the hostilities’. 120 ICC-01/04-02/07, 15 June 2017.

258

Legal Framework  5.62–5.64 APII similarly requires that, in the case of NIAC, ‘Children shall be provided with care and aid they require’.121 ICRC, CIL Rule 135 reflects this special status of children.122 In our view, there is scope for these provisions (and Common Article 1: see paragraph 5.15 above) to be used as a legal prompt to encourage states to take positive measures to prevent sexual violence against children in armed conflict, and to provide child victims of such violence with the care and aid they require in order to recover and be rehabilitated. See further paragraph 5.77 below, regarding the positive obligations under Article 3, ECHR. 5.62  Third, as noted above, at paragraph 5.53, there is no express protection in ICL against forced marriage. Whether such protection is needed is debatable. On the one hand, this may be considered unnecessary, since: (i) the physical sexual aspects of the conduct which would thereby be criminalised are already prohibited (viz the prohibitions on rape, sexual slavery, sexual violence); and (ii) as explained below, IHRL already imposes obligations on states to prohibit non-consensual marriage and to specify a minimum age for legal marriage (see paragraphs 5.74–5.75, below). On the other hand, we note the following points: 5.62.1  There is an argument that the extant prohibitions do not adequately encompass the non-physical aspects of forced marriage. Forced marriage may involve the distinctive wrong of being forced into a ‘conjugal’ relationship with the aggressor, as the SCSL has recognised. This is something that may have its own cultural significance, and involve distinct forms of emotional, moral or psychological harm. These harms may be singularly acute for children who may be especially vulnerable to the psychological manipulation associated with, and to the forms of stigma or societal exclusion that may result from, such a ‘conjugal’ relationship.123 5.62.2  The IHRL obligations in question do not provide a means of holding individual perpetrators (as opposed to states) to account unless the obligations have been implemented domestically by a state and are effectively enforced. They may, in any event, not be engaged where the forced conjugal relationship is not a recognised ‘marriage’ under the laws of the state because, for example, it does not involve the requisite formalities. 3.  Suggestions to Improve the Legal Framework 5.63  In light of the above, we consider that the position of ‘child soldiers’ abused by their own group would benefit from clarification. As noted above, at paragraph 5.60, we suggest that further principled consideration is given to whether, and how, the IHL prohibitions on rape etc, can be described as applying regardless of whether the child victim is a civilian or ‘soldier’. 5.64  In addition, we suggest that consideration is given to establishing a greater focus on states’ wider obligations regarding children, for example to prevent sexual violence

121 See Ch 3, para 3.43 for commentary on these provisions. 122 Rule 135 states, ‘Children affected by armed conflict are entitled to special respect and protection’: see ICRC Study on Customary IHL, 479–82. 123 In RUF (Trial Judgment) (n 79), para 1466, the Trial Chamber found that ‘the use of the term “wife” by the rebels was deliberate and strategic, with the aim of enslaving and psychologically manipulating the women’.

259

5.65–5.68  Sexual Violence against children and the rehabilitation of child victims and to the question of whether there is a need to expressly prohibit forced marriage. B.  International Human Rights Law 1.  The Legal Framework 5.65  There are a number of IHRL instruments that contain explicit provisions relating to rape or other forms of sexual violence. In addition, almost all IHRL instruments contain broader protections which have been held implicitly to encompass prohibitions on rape or sexual violence. Furthermore, a number of ‘soft law’ (ie nonlegally-binding) human rights instruments have addressed the problem of sexual violence against children. We consider these categories in turn. Explicit Provisions 5.66  In some IHRL instruments, states parties assume specific obligations to protect children or women of all ages from sexual violence and related harms. We note four relevant examples below. 5.67 The UN Convention on the Rights of the Child (CRC) contains the following relevant provisions: 5.67.1  Article 19 provides, 1.  States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.124

5.67.2  Article 34 provides, States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a)  The inducement or coercion of a child to engage in any unlawful sexual activity; (b)  The exploitative use of children in prostitution or other unlawful sexual practices; (c)  The exploitative use of children in pornographic performances and materials.

5.68  The protections contained in Article 19 have been the subject of detailed comment by the UN Committee on the Rights of the Child (CRC Committee), in General



124 Emphasis

added.

260

Legal Framework  5.68 Comment No 13, albeit that this is addressed to the question of violence against children generally, rather than sexual violence specifically.125 General Comment No 13: 5.68.1  states that ‘the extent and intensity of violence exerted on children is alarming’ and that ‘measures to end violence must be massively strengthened’ (paragraph 2); 5.68.2  identifies as its objectives, amongst others, those of overcoming ‘isolated, fragmented and reactive initiatives’ to addressing child caregiving and protection and promoting a ‘holistic approach’ to implementing Article 19, CRC (paragraph 11); 5.68.3  defines sexual abuse126 and states that ‘sexual abuse and exploitation’ for the purposes of Article 19, CRC include (at paragraph 25): (a)  The inducement or coercion of a child to engage in any unlawful or psychologically harmful sexual activity; (b)  The use of children in commercial sexual exploitation; (c)  The use of children in audio or visual images of child sexual abuse; (d)  Child prostitution, sexual slavery, sexual exploitation … trafficking … sale of children for sexual purposes … and forced marriage.127

5.68.4  provides a wide-ranging definition of ‘violence among children’ which includes ‘sexual violence’ (paragraph 27); 5.68.5  identifies ‘harmful practices’ falling within the scope of Article 19, CRC which include female genital mutilation, virginity testing, forced marriage and early marriage (paragraph 29); 5.68.6  states that, in the case of ‘Children without obvious primary or proxy caregivers’ (a situation which affects many children in conflict zones), ‘The State party is obliged to take responsibility as the de facto caregiver or the one “who has the care of the child”, even if these children are not within the context of physical care settings such as foster homes, group homes or NGO facilities’ (paragraph 35); 5.68.7  sets out a comprehensive analysis of what constitute ‘all appropriate legislative, administrative, social and educational measures’, which is notably detailed and exacting (paragraphs 38–57). This includes requirements: (i) to ensure the ‘absolute prohibition of all forms of violence against children in all settings and effective and appropriate sanctions against perpetrators’ (­paragraph 41(d)); and (ii) to ensure the ‘protection of child victims and witnesses and effective access to redress and reparation’ (paragraph 41 (f)).

125 CRC Committee, ‘General Comment No. 13 (2011): The right of the child to freedom from all forms of violence’ (18 April 2011) UN Doc CRC/C/GC/13. 126 The definition is contained in fn 9 to para 25 and states: ‘Sexual abuse comprises any sexual activities imposed by an adult on a child, against which the child is entitled to protection by criminal law. Sexual activities are also considered as abuse when committed against a child by another child, if the child offender is significantly older than the child victim or uses power, threat or other means of pressure. Sexual activities between children are not considered as sexual abuse if the children are older than the age limit defined by the State party for consensual sexual activities’. 127 For the footnote omitted from this quotation, see n 126.

261

5.69–5.71  Sexual Violence 5.69  Given the CRC’s almost universal ratification, the gender-neutrality of its provisions, and the interpretation of the scope of the Article 19 obligations by the CRC Committee in General Comment No 13, this instrument contains adequate substantive protections for children against sexual violence. This protection appears to extend to situations of armed conflict: we have already observed the ambiguity regarding the scope of application of the CRC (see Chapter 3, paragraphs 3.107–3.109) but we note that General Comment No 13 includes references to armed conflict/armed actors, from which we infer that the protections of Article 19 are, at least prima facie, applicable in that context.128 5.70 The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and pornography (OPSC) contains detailed requirements to end the sexual exploitation and abuse of children, including those set out below. Although the OPSC has been widely ratified it does not benefit from universal ratification: see Chapter 2, paragraphs 2.47–2.48. We suggest that those states that have not yet ratified it should be encouraged to do so in light of the specific protections it provides. 5.70.1  Article 1 states that ‘States Parties shall prohibit the sale of children, child prostitution and child pornography as provided for by the present Protocol’. 5.70.2  Article 2 defines ‘Sale of children’ as ‘any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration’ and ‘Child prostitution’ as ‘the use of a child in sexual activities for remuneration or any other form of consideration’. 5.70.3  Article 3 places minimum obligations on States Parties to ensure that certain acts and activities are covered under domestic criminal law, regardless of ‘whether these offences are committed domestically or transnationally and/or on an individual or organized basis’. Article 3 includes offering, delivering or accepting, by whatever means, a child for the purpose of sexual exploitation of the child and offering, obtaining, procuring or providing a child for child prostitution. 5.70.4  Article 4 identifies the grounds on which jurisdiction must be exercised by States Parties in relation to the offences set out in Article 3. 5.70.5  Article 5 characterises the offences in Article 3 as extraditable offences. 5.70.6  Article 9 requires States Parties to implement or strengthen domestic laws and policies to prevent the offences referred to in the OPSC. 5.71 The African Charter on the Rights and Welfare of Children (ACRWC), contains the following relevant provisions: 5.71.1  Article 16(1) is in similar terms to Article 19, CRC, and requires States Parties to ‘take specific legislative, administrative, social and educational measures 128 See paras 3(i) (‘The Committee is also aware of  … violence against children frequently used by armed groups and State military forces’), 7(a) (‘The Committee also recognizes the direct relevance to article 19 of … the Optional Protocol on the involvement of children in armed conflict’), 26 (‘Torture and inhuman or degrading treatment or punishment … includes violence in all its forms against children … typically applied by … other institutions and persons who have power over children, including non-State armed actors’) and 72(g) (‘Children in emergencies are extremely vulnerable to violence when, as a consequence of social and armed conflicts … children become separated from their caregivers and caregiving and safe environments are damaged or even destroyed’).

262

Legal Framework  5.72 to protect the child from all forms of torture, inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse’;129 5.71.2  Article 27 requires them to undertake ‘to protect the child from all forms of sexual exploitation and sexual abuse’. 5.72 The 2011 Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) arose out of a series of initiatives led by the Council of Europe (CoE) designed to combat domestic violence against women.130 The Convention entered into force on 1 August 2014. To date it has been ratified by 24 states.131 It contains detailed provisions encompassing sexual violence and related wrongs, including the following: 5.72.1  Article 2 states that the Convention applies ‘to all forms of violence against women, including domestic violence, which affects women disproportionately’, and confirms that the Convention applies in times of armed conflict as well as peace. 5.72.2  Article 3(f) states that ‘women’ includes ‘girls under the age of 18’. 5.72.3  Article 36 addresses ‘Sexual violence, including rape’, and states: 1.  Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised: a.  engaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object; b.  engaging in other non-consensual acts of a sexual nature with a person; c.  causing another person to engage in non-consensual acts of a sexual nature with a third person. 2. Consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances.

5.72.4  Article 37 addresses ‘Forced marriage’ and requires Parties to ‘take the necessary legislative or other measures to ensure that the intentional conduct’ of ‘forcing an adult or a child to enter into a marriage’ and of ‘luring an adult or a child to the territory of a Party or State other than the one she or he resides in with the purpose of forcing this adult or child to enter into a marriage’ is criminalised. 5.72.5  Article 39 requires Parties to criminalise forced abortion and forced sterilisation. 5.72.6  Article 40 deals with ‘Sexual harassment’ and requires Parties to ‘take the necessary legislative or other measures to ensure that any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of

129 Emphasis added. 130 Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) (adopted 11 May 2011, entered into force 1 August 2014) CETS 210. 131 CoE Treaty Office, ‘Chart of signatures and ratifications of Treaty 2010’ (1 October 2017), available at .

263

5.73–5.75  Sexual Violence violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment, is subject to criminal or other legal sanction’. 5.72.7  Article 44 addresses the grounds on which jurisdiction may be established over the offences in the Convention. 5.72.8  Article 46 identifies as an aggravating circumstance the fact that ‘the offence was committed against or in the presence of a child’. 5.72.9  Articles 49–58 imposes detailed obligations on Parties to investigate, prosecute and protect against all forms of violence covered by the Convention (including, in Article 57, the obligation for Parties to ‘provide for the right to legal assistance and to free legal aid for victims’ under the conditions provided by domestic law). 5.73  It is apparent from this brief summary that this instrument is detailed and comprehensive as regards sexual violence against women. Notably, unlike the CRC, it contains explicit definitions of rape and sexual violence, and expressly encompasses forced marriage. However, as a basis for protecting the rights of children, it is limited by its gender focus and its generality, for example, the fact that it does not take into account specific, child-related issues, such as questions of consent: see above, paragraph 5.51. 5.74  Finally, marriage is addressed in two treaties: 5.74.1 The Convention on Consent to Marriage, Minimum Age of Marriages and Registration of Marriages,132 which states at Article 1, ‘No marriage shall be legally entered into without the full and free consent of both parties’. Article 2 requires States Parties to ‘take legislative action to specify a minimum age for marriage’. The Convention has 55 States Parties.133 5.74.2  CEDAW which states at Article 16(2), ‘The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory’. 5.75  Neither of these Conventions specify a minimum age of marriage but the CEDAW Committee and the CRC Committee have jointly recommended 18 years as the minimum legal age of marriage for girls and boys, with or without parental consent.134 There is still a lack of international consensus on this issue – one source states that every year 15 million girls are married before the age of 18.135

132 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (adopted 7 November 1962, entered into force 9 December 1964) 521 UNTS 231. 133 UN Treaty Collection, ‘Status of Treaties: Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages’ (UN Treaty Collection), available at . 134 CEDAW Committee and CRC Committee, ‘Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/general comment No. 18 of the Committee on the Rights of the Child on harmful practices’ (14 November 2014) UN Doc CEDAW/C/GC/31-CRC/C/GC/18, para 55(f). 135 See Girls Not Brides, ‘About Child Marriage’ (Girls Not Brides), available at .

264

Legal Framework  5.76–5.77 Implicit Protections 5.76  Human rights instruments often contain prohibitions on torture or other cruel, inhuman or degrading treatment: see Chapter 3, paragraphs 3.100ff.136 Rape and sexual violence can fall within the scope of such prohibitions.137 5.77  For example, Article 3 (prohibition on torture) of the ECHR has been construed and applied as including rape: 5.77.1 In Aydin v Turkey the Grand Chamber of the European Court of Human Rights (ECtHR) held that the rape of a 17-year old girl constituted a violation of Article 3, ECHR. The girl had been detained by security forces, during a conflict and state of emergency in South-East Turkey, for the purposes of obtaining information in an interrogation context. The ECtHR held that it was an ‘especially grave and abhorrent form of ill-treatment’.138 5.77.2 In MC v Bulgaria, the ECtHR considered the rape of a 14-year old girl by two men. The ECtHR found a violation of Articles 3 and 8 (right to respect for private and family life), ECHR. The Court noted that victims of rape, particularly young girls, often fail to physically resist rape; as a result, the ECtHR urged states to prosecute any non-consensual act, regardless of whether the victim had resisted physically.139 5.77.3  We note that the ECtHR has construed Article 3, ECHR as including positive obligations in this context: for example, in O’Keeffe v Ireland, the Grand Chamber of the ECtHR considered the sexual abuse of a schoolgirl, aged nine, by a lay teacher in an Irish National School. The Grand Chamber observed that Article 3 ‘requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment … the required measures should, at least, provide effective protection in particular of children and other vulnerable persons and should include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge’,140 and that ‘effective measures of deterrence against grave acts … can only be achieved by the existence of effective criminal-law provisions backed up by law-enforcement machinery … the existence of useful detection and reporting mechanisms are fundamental to the effective implementation of the relevant criminal laws’.141 It held that, on the facts of that case, Ireland had failed to implement effective mechanisms for the detection and reporting of illtreatment.142 As noted above, at para 5.61, these positive obligations may be used as a legal prompt to require states to provide systematic protection for children against sexual violence. 136 For instance Art 7, ICCPR; Art 3, ECHR; Art 5(2), ACHR; Art 5, African Charter on Human and Peoples’ Rights (ACHPR); Arts 4 and 11 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (adopted 11 July 2003, entered into force 25 November 2005) CAB/LEG/66.6 (Sept 13, 2000); Arts 2 and 7 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (adopted 09 June 1994, entered into force 05 March 1995) 33 ILM 1534 (1994). 137 See Gaggioli (n 15), 519–25 for a survey of cases in which regional courts have found sexual violence to contravene IHRL protections. 138 Aydin v Turkey, App no 57/1996/676/886 (ECtHR, Grand Chamber, 25 September 1997), para 83. 139 MC v Bulgaria, App no 39272/98 (ECtHR, 4 December 2003), paras 154–63. 140 O’Keeffe v Ireland, App no 35810/09 (ECtHR, Grand Chamber, 28 January 2014), para 144. 141 ibid, para 148. 142 ibid, paras 162–169.

265

5.78–5.81  Sexual Violence 5.78  Rape and sexual violence have also been recognised as forms of torture or inhumane treatment by the Inter-American Commission on Human Rights,143 the Human Rights Committee (HRC)144 and the UN Committee Against Torture (CAT).145 5.79  In addition, the ECtHR has found that sexual slavery and trafficking are encompassed by the ECHR prohibition on slavery under Article 4, ECHR,146 and that sexual violence can violate the right to privacy under Article 8, ECHR.147 5.80  Sexual violence also engages the obligations of State Parties under CEDAW relating to discrimination against women. The CEDAW Committee has confirmed: 5.80.1  that the protections apply to girls, who are part of the larger community of women and are more vulnerable to discrimination by way of maltreatment, exploitation and violence, among other things148 and 5.80.2  that discrimination for these purposes includes GBV, which includes acts that inflict sexual harm.149 5.81  Moreover, the CEDAW Committee has acknowledged the specific application of these obligations in conflict situations. In ‘General recommendation No. 30 on women in conflict prevention, conflict and post-conflict situations’150 it has observed that: 5.81.1  conflicts place women and girls at a heightened risk of various forms of GBV, including in particular sexual violence;151 5.81.2  trafficking in women and girls is exacerbated during and after conflict;152 and 5.81.3  girls are particularly susceptible to forced marriage during conflict.153 It has also emphasised the mutually reinforcing nature of ICL and IHL provisions and jurisprudence relating to sexual violence and States’ obligations under CEDAW to

143 Raquel Martí de Mejía v Perú, I-ACmHR, Case No 10.970, Res No 5/96 (1 March 1996) and LoayzaTamayo v Peru, I-ACmHR, App No 11154 (6 May 1993). 144 See, eg, the concluding observations on the Russian Federation made by the HRC, ‘Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant’ in UNGA, ‘Report of the Human Rights Committee: Vol I – Seventy-ninth session (20 October–7 November 2003, Eightieth session (15 March–2 April 2004) and Eighty–first session (5–30 July 2004)’ (UN, 2004) UN Doc A/59/40 (Vol 1), para 64(13), expressing concern about continuing reports of human rights violations in Chechnya, regarding torture ‘including rape’. 145 See, eg, the concluding observations on the USA made by CAT, ‘Consideration of reports submitted by States Parties under article 19 of the Convention’ in UNGA, ‘Report of the Committee against Torture: Twentythird session (8–19 November 1999) and Twenty-fourth session (1–19 May 2000)’ (UN, 2000) UN Doc A/55/44, paras 179–80. 146 Rantsev v Cyprus and Russia, App no 25965/04 (ECtHR, 7 January 2010), paras 272–309. 147 X and Y v The Netherlands, App no 8978/80 (ECtHR, 26 March 1985), para 22. 148 CEDAW Committee ‘General recommendation No. 28 on the core obligations of States parties under ­article 2 of the Convention on the Elimination of All Forms of Discrimination against Women’ (16 December 2010) UN Doc CEDAW/C/GC/28, para 21. 149 CEDAW Committee ‘General recommendation No. 19 on Violence against Women’(1992) UN Doc A/47/38, para 6. This was confirmed in SVP v Bulgaria (24 November 2012) UN Doc CEDAW/C/53/D/31/2011, para 9.3 in relation to the sexual assault of a 7-year old child. 150 UN Doc CEDAW/C/GC/30 (1 November 2013). 151 ibid, paras 34–37. 152 ibid, paras 39–40. See also CEDAW Committee ‘General recommendation No. 19 on Violence against Women’(1992) UN Doc A/47/38, para 16. States parties are required by Article 6 to take measures to suppress all forms of traffic in women and exploitation of the prostitution of women. 153 ibid, paras 62–63. States Parties undertake to eliminate forced marriage under Article 16, CEDAW.

266

Legal Framework  5.82–5.83 prevent, investigate and punish sexual and gender-based violence, recommending that State Parties, when implementing their obligations under CEDAW, give due consideration to those complementary protections.154 Soft Law 5.82  We note the following examples of soft law regarding sexual violence and children: 5.82.1  On 19 March 2010, the HRC issued a Resolution on ‘Rights of the child: the fight against sexual violence against children’.155 This condemned all forms of sexual violence and abuse against children in all settings – including armed conflict  – and urged states to take a number of steps, including to strengthen existing legislation and policy designed to criminalise and eliminate all forms of sexual violence and sexual abuse against children, and to ensure accountability.156 5.82.2  On 19 December 2011, the UNGA adopted a Resolution on ‘the girl child’.157 Among many things, this urges all states and the international community to ‘respect, promote and protect the rights of the girl child, taking into account the particular vulnerabilities of the girl child in pre-conflict, conflict and post-conflict situations … to protect them from sexually transmitted infections, including HIV infection, gender-based violence, including rape, sexual abuse and sexual exploitation, torture, abduction and forced labour’.158 5.82.3  On the same date, the UNGA adopted a Resolution on ‘Rights of the child’ in which it, amongst other things, condemned violations and abuses committed against children in armed conflict including ‘rape and other sexual violence against children’.159 2.  Problems and Deficiencies in the Legal Framework 5.83  Taken together with the IHL and ICL protections described above, we consider that the substantive IHRL protections for children against sexual violence in armed conflict are generally robust. We would, however, suggest that those states that have not yet ratified OPSC should be encouraged to do so in light of the specific protections it provides. We note that, unlike IHL and ICL, IHRL does explicitly address forced marriage and

154 ibid, paras 24–25. 155 HRC, ‘Rights of the child: the fight against sexual violence against children’ (19 March 2010) UN Doc A/HRC/13/L.21. 156 See HRC, ‘Rights of the child: the fight against sexual violence against children’ (n 155), in particular: ‘Condemns in the strongest terms rape and other forms of sexual violence committed against children in situations of armed conflict … calls upon all parties to armed conflict to comply strictly with their obligations under applicable international law to protect children in armed conflict, urges them to immediately end such practices and to take all possible measures to protect boys and girls from rape and all forms of sexual violence, and calls upon States to assist child victims of these violations in situations of armed conflict and to seek to end impunity for perpetrators’ (para 11) and ‘calls upon all parties to armed conflict … to make commitments and prepare and implement concrete and effective time-bound action plans to end these violations’ (para 12). 157 UNGA Res 66/140 (27 March 2012) UN Doc A/RES/66/140 (The girl child). 158 UNGA Res 66/140 (n 157), para 32. 159 UNGA Res 66/141 (4 April 2012) UN Doc A./RES/66/141, para 23.

267

5.84–5.88  Sexual Violence imposes obligations on states to prohibit non-consensual marriage or marriage below a state-specified age. 3.  Suggestions to Improve the Legal Framework 5.84  We make no positive recommendations in relation to the existing IHRL framework. If, however, as we have otherwise suggested, there is to be a single instrument collecting, codifying (re CIL) and, possibly, consolidating the protections for children in armed conflict, then we suggest that this should encompass the existing IHRL protections as well. This is not so much because the substantive standards require strengthening or clarification but in order to include those standards within the oversight and supervision of one body: see further Chapter 9. III.  ACCOUNTABILITY MECHANISMS

5.85  For a general overview of accountability mechanisms see Chapter 2. In the sections below, we set out illustrations of the ways in which existing accountability mechanisms have been used in relation to children in armed conflict, focussing, in particular, on sexual violence, organised along the spectrum explained in Chapter 2, at paragraph 2.92, grouped by reference to IHL, ICL and IHRL. We then go on to consider specific problems with those existing mechanisms as they arise in the context of this Chapter, and, finally, make suggestions for improvement. A.  Application of Accountability Mechanisms 1.  IHL Accountability Mechanisms Adjudicative Accountability Mechanisms 5.86  Domestic courts. As we have noted elsewhere in this book, domestic courts have the strongest enforcement powers but a review of domestic case law, and the extent to which domestic legal systems have implemented related IHL, ICL or IHRL norms, is beyond the scope of this book: see further Chapter 9. 5.87  International and regional courts. As IHL provides the legal foundation for the ICL provisions in the Rome Statute on sexual violence and war crimes, see below for the discussion of prosecutions under ICL, at paragraphs 5.94–5.95. Other Accountability Mechanisms 5.88  UN Security Council. There are three principal ways in which the UNSC has contributed to accountability for IHL violations regarding children in armed conflict. The first is by expressions of concern towards and condemnation of such violations. The second is by the imposition of sanctions. The third is through the UNSC Working Group on Children and Armed Conflict. We consider each of these below. 268

Accountability Mechanisms  5.88 5.88.1  Expressions of concern towards and condemnation of violations of IHL regarding children. Following a period of increased focus on the subject in the 1990s, there have been a number of UNSC Resolutions condemning sexual violence in conflict areas (for more general UNSC Resolutions concerning children and armed conflict see  Chapter 1, paragraph 1.60).160 These are notable because while UNSC Resolutions often lack specific action points, those relating to sexual violence have often identified specific recommended steps to be taken by a range of entities and individuals in combatting sexual violence in armed conflict. For example: (i) In 2000, UNSC Resolution 1325,161 called on ‘all parties to armed conflict to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict’. It specifically emphasised the responsibility of states to put an end to impunity by prosecuting those ‘responsible for genocide, crimes against humanity, and war crimes including those relating to sexual and other violence against women and girls’. (ii) In 2008, UNSC Resolution 1820 condemned the use of rape and other forms of sexual violence during war time, in particular against women and children.162 It noted that sexual violence ‘can significantly exacerbate situations of armed conflict and may impede the restoration of international peace and security’ (paragraph 1) and demanded the ‘immediate and complete cessation by all parties to armed conflict of all acts of sexual violence against civilians with immediate effect’ (paragraph 2). The Resolution set out a number of measures that could be contemplated in protecting women and children, for example for states to prosecute (paragraph 4) and for the Secretary-General to develop and implement training programmes (paragraph 6). It also demanded, in paragraph 3, that: all parties to armed conflict immediately take appropriate measures to protect civilians, including women and girls, from all forms of sexual violence, which could include, inter alia, enforcing appropriate military disciplinary measures and upholding the principle of command responsibility, training troops on the categorical prohibition of all forms of sexual violence against civilians, debunking myths that fuel sexual violence, vetting armed and security forces to take into account past actions of rape and other forms of sexual violence, and evacuation of women and children under imminent threat of sexual violence to safety …

(iii) In 2009, UNSC Resolution 1888,163 amongst other things, requested that the Secretary-General should appoint a Special Representative to address sexual violence in armed conflict and coordinate efforts among relevant stakeholders, primarily through the inter-agency initiative, ‘United Nations Action Against Sexual Violence in Conflict’ (paragraph 4). Such a Special Representative was later appointed.



160 Viseur

Sellers and Rosenthal (n 32). Res 1325 (31 October 2000) UN Doc S/RES/1325. 162 UNSC Res 1820 (19 June 2008) UN Doc S/RES/1820. 163 UNSC Res 1888 (30 September 2009) UN Doc S/RES/1888. 161 UNSC

269

5.88  Sexual Violence (iv) In 2010, UNSC Resolution 1960164 called upon the Secretary-General to include in his annual reports detailed information on, and to list in an annex, parties to armed conflicts that are ‘credibly suspected of committing or being responsible for patterns of rape and other forms of sexual violence in situations of armed conflict’ and stated that the list would be used as a basis for more focused UN engagement with those parties, including the imposition of sanctions (­paragraph  3). It also reiterated the intention to consider including, in relation to targeted sanctions, ‘designation criteria pertaining to acts of rape and other forms of sexual violence’ (paragraph 7) and requested the Secretary-General to establish monitoring, analysis and reporting arrangements (MARA) on conflictrelated sexual violence (paragraph 8).165 The Resolution also requested that the Secretary-General ‘ensure full transparency, cooperation and coordination of efforts between the Special Representative for Children and Armed Conflict and the Special Representative for Sexual Violence in Conflict’ (paragraph 9). 5.88.2  Sanctions. In Resolution 1960, the UNSC reiterated its intention of including designation criteria relating to rape/sexual violence when adopting or renewing targeted sanctions (paragraph 7). Such designations have already been used in two operating UN sanctions regimes – against the DRC and South Sudan – noted in Chapter 3.166 The narrative summaries of a number of individuals listed pursuant to these (and other) regimes refer to rape or sexual violence, including in the cases of: (i) Joseph Kony (DRC), listed in 2016 pursuant to UNSC Resolution 2262 (2016), paragraphs 12 and 13(b), (c) and (d);167 (ii) James Koang Chuol (South Sudan), listed in 2015 pursuant to UNSC Resolution 2206 (2015), paragraphs 6, 7(a) and (d) and 8;168 and (iii) Innocent Zimurinda (DRC), listed in 2010 pursuant to UNSC Resolution 1857 (2008), paragraph 4.169

164 UNSC Res 1960 (16 December 2010) UN Doc S/RES/1960. 165 The Annual Reports on Conflict-Related Sexual Violence and MARA are considered further at para 5.90, below. 166 See, eg, UNSC Res 2206 (3 March 2015) UN Doc S/RES/2206, para 7(d) regarding South Sudan and UNSC Res 2293 (23 June 2016) UN Doc S/RES/2293, para 7(e) regarding the DRC. 167 See UNSC Res 2262 (27 January 2016) UN Doc S/RES/2262 and Security Council Committee Established Pursuant to Resolution 2127 (2013) Concerning the Central African Republic, ‘Narrative Summaries of Reasons for Listing: CFi.009 Joseph Kony’ (Security Council Committee Established Pursuant to Resolution 2127 (2013) Concerning the Central African Republic, 7 March 2016), available at . 168 See UNSC Res 2206 (n 166) and Security Council Committee Established Pursuant to Resolution 2206 (2015) Concerning South Sudan, ‘Narrative Summaries of Reasons for Listing: SSi.003 James Koang Chuol’ (Security Council Committee Established Pursuant to Resolution 2206 (2015) Concerning South Sudan, 1  July 2015), available at . 169 See UNSC Res 1857 (22 December 2008) UN Doc S/RES/1857 and Security Council Committee Established Pursuant to Resolution 1533 (2004) Concerning the Democratic Republic of the Congo, ‘Narrative Summaries of Reasons for Listing: CDi.031 – Innocent Zimurinda’ (Security Council Committee Established Pursuant to Resolution 1533 (2004) Concerning the Democratic Republic of the Congo, 29 October 2014), available at .

270

Accountability Mechanisms  5.89 5.88.3  UNSC Working Group on Children and Armed Conflict. See Chapter  2, paragraph 2.123.6. The Working Group can take a number of possible actions ­ in response to grave violations.170 For example, in relation to sexual violence in Afghanistan, the Working Group issued a public statement in 2015 urging all armed groups referred to in the Secretary-General’s Annual Report to ‘take immediate and specific measures to put an end to and prevent perpetration of sexual violence by members of their respective groups, in particular the practice of bacha baazi, to take measures so that perpetrators are brought to justice and to publicly declare an end to such practice’.171 5.89  MRM. See Chapter 2, paragraph 2.123, for a description of the MRM. Rape or other grave sexual violence was included as one of the six grave violations that acts as a trigger for the MRM process, by UNSC Resolution 1882 (2009).172 5.89.1  Definitions. The definitions in the MRM Field Manual reflect the definitions noted above.173 5.89.2  Naming and shaming: In UNSC Resolution 1882 (2009), the UNSC called on the Secretary-General to include in Annex I to his Annual Report on Children and Armed Conflict, ‘parties to armed conflict that engage … in patterns of killing and maiming of children and/or rape and other sexual violence of children, in situations of armed conflict’.174 The 2016 Annual Report listed 16 parties in Annex I as committing rape and other forms of sexual violence against children, across six states (Central African Republic (CAR), DRC, Iraq, Mali, South Sudan and the Syrian Arab Republic).175 The Report also refers to the difficulty of documenting conflict-related 170 See UNSC, ‘Options for possible actions by the CAAC Working Group of the Security Council (“toolkit”)’ (11 September 2006) UN Doc S/2006/724. 171 UNSC, ‘Working Group on Children and Armed Conflict: Conclusions on children and armed conflict in Afghanistan’ (3 May 2011) UN Doc S/AC.51/2011/3, para 11(g) (emphasis as in original). See also, para 12 for the recommendations of the Working Group to the UNSC. The practice of bacha baazi involves the use of boys as sex slaves by men in positions of power. 172 UNSC Res 1882 (n 3). 173 For example: (i) ‘A violent act of a sexual nature to a child … encompasses rape, other sexual violence, sexual slavery, enforced prostitution, forced marriage/pregnancy, or enforced sterilization’; (ii) ‘Rape/attempted rape: is an act of non-consensual sexual intercourse. This can include the invasion of any part of the body with a sexual organ and/or the invasion of the genital or anal opening with any object or body part. Any penetration is considered rape. Efforts to rape someone, which do not result in penetration, are considered attempted rape’; (iii) ‘Sexual violence’ is defined as ‘any sexual act, attempt to obtain a sexual act, or acts to traffic a child’s sexuality’ and as taking ‘many forms, including rape, sexual slavery and/or trafficking, forced pregnancy, sexual harassment, sexual exploitation and/or abuse, and forced abortion’. See Office of the Special Representative of the Secretary General for Children and Armed Conflict (OSRSG-CAAC), UNICEF, and United Nations Department of Peacekeeping Operations (DPKO), ‘MRM Field Manual’ (Office of the Special Representative of the Secretary General for Children and Armed Conflict (OSRSG-CAAC), UNICEF, and United Nations Department of Peacekeeping Operations (DPKO), 2014), 10, available at . 174 UNSC Res 1882 (n 3), para 3. In some cases the annual reports refer to implementation strategies. For example, the country-specific section on Afghanistan in the Secretary-General’s 2014 annual report on children and armed conflict, where there continues to be a significant problem of sexual violence against children, refers to the commitment by the Afghan Government that ‘any act of sexual violence against children by elements of the Afghan national security forces [would be] subject to criminal investigation, and [that] an educational programme to prevent the practice of bacha-baazi, [had been] prepared’: see Report of the Secretary-General, ‘Children in armed conflict’ (15 May 2014) UN Doc A/68/878-S/2014/339, para 26. 175 See Report of the Secretary-General, ‘Children in armed conflict’ (20 April 2016) UN Doc A/70/836-S/2016/360. Parties listed in the CAR: (i) Ex-Séléka coalition and associated armed groups,

271

5.89  Sexual Violence sexual violence, in particular in the Syrian Arab Republic, where there were no verified cases of sexual violence against children in 2015 despite continuing reports of forced marriage of girls to fighters in ISIL controlled territory and of Yazidi girls captured in Iraq in 2014 being trafficked into Syria and used as sex slaves.176 The Report does note numbers of cases of sexual violence in other places, for example: (i) 254 verified cases of sexual violence against children in the DRC, perpetrated mainly by non-state armed groups (FRPI (Force de résistance patriotique d’Ituri), Raia Mutomboki and Mayi Mayi Simba), as well as by the FARDC (Forces Armées de la République Démocratique du Congo), the Congolese National Police and the National Intelligence Agency;177 (ii) 164 incidents of sexual violence affecting 174 children in Somalia, committed by clan militias, unknown armed elements, the Somali National Army, Al-Shabaab and Ahl al-Sunna wal-Jama’a and AMISOM (The African Union Mission in Somalia);178 and (iii) 45 incidents of sexual violence in Sudan affecting 60 children, perpetrated by unidentified armed men, militias, the Rapid Support Forces, armed nomads, the Sudanese Armed Forces and the police and JEM-Wing for Peace.179 5.89.3  Action Plans. UNSC Resolution 1882 (2009), also called on parties (including non-state armed groups) which had been listed in the annexes to the Secretary-General’s Annual Reports as a result of engaging in rape or other sexual violence against children, to prepare concrete, time-bound action plans to halt those violations and abuses.180 So far, three action plans which specifically address (to a greater or lesser extent) sexual violence against children in armed conflicts have been produced, for Afghanistan, DRC and Mali. These plans are referred to below. In addition, a template action plan has been created. (i) Afghanistan: Afghanistan signed an action plan on the recruitment and use of children in armed conflict on 30 January 2011. Sexual violence against children was addressed in an annex.181 We have been unable to obtain a copy of the action plan. and (ii)  local defence militias known as the anti-Balaka, (iii) Lord’s Resistance Army. Parties listed in the DRC: (iv) Forces armées de la République Démocratique du Congo, (v) Forces démocratique de libération du Rwanda, (vi) Forces de résistance patriotiques en Ituri, (vii) Lord’s Resistance Army, (viii) Mayi Mayi Simba, (ix) Raia Mutomboki. Parties in Iraq: (x) Islamic State in Iraq and the Levant. Parties listed in Mali: (xi) Mouvement national de libération de l’Azawad, (xii) Mouvment pour l’unicité et le jihad en Afrique de l’Ouest, (xiii) Ansar Eddine. Parties listed in South Sudan: (xiv) Sudan People’s Liberation Army. Parties listed in Syria: (xv) Government forces, including the National Defence Forces and the shabbiha militia, (xvi) Islamic State in Iraq and the Levant. 176 Report of the Secretary-General, ‘Children in armed conflict’ (20 April 2016) (n 175), para 156. 177 ibid, para 48. 178 ibid, para 116. 179 ibid, para 142. 180 UNSC Res 1882 (n 3), para 5. We note that a number of countries have also produced Action Plans to implement UNSC Res 1325 on women, peace and security (n 161), which was encouraged in a Statement by the President of the Security Council in 2004 (UN Doc S/PRST/2004/40). Many of these address sexual and gender based violence in armed conflict. 181 The Action Plan and its annex on sexual violence is referred to in UNSC, ‘Report of the Secretary-General on children and armed conflict in Afghanistan’ (3 February 2011) UN Doc S/2011/55, para 58. See also UN News

272

Accountability Mechanisms  5.90 (ii) DRC: on 4 October 2012 the FARDC signed an action plan to stop and prevent child recruitment and other grave child rights violations, which included references to sexual violence (see, in particular, Article 2).182 The action plan included, inter alia, a commitment by the Congolese Government to investigate allegations of sexual violence and to pursue criminal prosecutions against perpetrators (­Article 2, paragraph 8). (iii) Mali: the Coordination des Mouvements de l’Azawad (CMA), a coalition of armed movements, signed an action plan with the United Nations on 5 March 2017 to end and prevent the recruitment and use of, and sexual violence and all other grave violations against children.183 (iv) Template action plan: a template action plan for use between any party and the UN Country Task Force on Monitoring and Reporting in order to eliminate sexual violence against children has been produced.184 We note that the template does not include a definition of sexual violence or of rape. 5.89.4  Implementation of Action plans. Detailed consideration of steps taken to secure the implementation of action plans on sexual violence is beyond the scope of this Chapter but we note that the Secretary-General’s Annual Reports on Children in Armed Conflict refer to implementation.185 5.90  Other UN information-gathering and monitoring. In general, informationgathering and monitoring is a necessary prerequisite for designing and enhancing appropriate prevention and response mechanisms and strategies. For example, it is only if the incidence of sexual violence is documented that it is possible to provide direct assistance/ services to victims/survivors and collect evidence for use in adjudicative accountability mechanisms. However, this raises particular difficulties in the highly sensitive Centre, ‘New UN-Afghan pact will help curb recruitment, sexual abuse of children – UN’ (UN News Centre, 3 February 2011), available at . 182 The action plan is available in French: . 183 See UNSC Res 2364 (29 June 2017) S/RES/2364 (2017) which welcomes the signing of the action plan by the coordination armed group and the UN and calls for its full and immediate implementation. See also UNSC, ‘Report of the Secretary-General on the situation in Mali’ (30 March 2017) UN Doc S/2017/271, para 40 which explains: ‘The action plan is binding on all armed groups that make up CMA, including the Mouvement national de libération de l’Azawad. The United Nations will continue discussions with other armed groups with a view to signing similar action plans to ensure the release and reintegration of all children from armed groups in accordance with relevant Security Council resolutions’. 184 Available here: . 185 For example, in relation to Afghanistan, the Secretary-General’s 2016 Report welcomed measures taken by the Afghan Government to meet its obligations under the action plan, including criminalising underage recruitment by the Afghan National Defence and Security Forces and the inauguration of three new child protection units within Afghan National Police recruitment centres: see Report of the Secretary-General, ‘Children in armed conflict’ (20 April 2016) (n 175), para 31. The report did not address the extent to which progress, if any, has been made in relation to sexual violence. In relation to the DRC, the Secretary-General’s 2016 report notes, ‘Throughout 2015, the Government maintained its commitment to implementing the action plan signed with the United Nations in 2012, including through the work of the President’s personal adviser on sexual violence and child recruitment. In September, the Minister of Defence endorsed a road map outlining pending activities for the full implementation of the action plan. To accelerate the process, three new provincial joint technical working groups were established’: Report of the Secretary-General, ‘Children in armed conflict’ (20 April 2016) (n 175), para 54.

273

5.90  Sexual Violence context of sexual violence. This explains, in part at least, the underreporting of sexual violence. It is in light of such difficulties that specific consideration has been given to­ information-gathering and monitoring of sexual violence: see, for example, the World Health Organization’s (WHO) eight ‘Ethical and safety recommendations for researching, documenting and monitoring sexual violence in emergencies’.186 The eighth recommendation is that ‘additional safeguards must be put into place if children (i.e. those under 18 years) are to be the subject of information gathering’.187 For example, ‘specialist technical advice and support should be sought in order to ascertain whether it is acceptable to involve children in [such] inquiries into sexual violence’ and ‘Consent procedures must be designed with children’s specific needs, age and level of understanding in mind’.188 In light of that backdrop, we note the following UN information-gathering and monitoring mechanisms: 5.90.1  Secretary-General’s Annual Reports on Conflict-Related Sexual Violence.189 In addition to the Annual Reports on children and armed conflict, the SecretaryGeneral also prepares Annual Reports on Conflict-Related Sexual Violence, on the implementation of UNSC Resolutions 1820 (2008), 1888 (2009) and 1960 (2010), and pursuant to 2106 (2013),190 as referred to at paragraph 5.88.1 above. As with the Secretary-General’s Reports on Children and Armed Conflict, the reports on Conflict-Related Sexual Violence include an annex in which parties that are suspected of committing or being responsible for patterns of rape and other forms of sexual violence in situations of armed conflict on the Security Council agenda are listed.191 The reports do not have children as their primary focus. However, when referring to incidents of sexual violence the Reports on Conflict-Related Sexual Violence generally indicate where an incident has involved child victims, including providing data where available, on the numbers of children affected in a particular incident or conflict. 186 WHO, WHO Ethical and safety recommendations for researching, documenting and monitoring sexual violence in emergencies (WHO, 2007), available at . 187 WHO (n 186), 27–29. 188 ibid, 27. 189 Conflict-related sexual violence is defined in the reports on Conflict-Related Sexual Violence as referring to: ‘rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, enforced sterilization, forced marriage, and any other form of sexual violence of comparable gravity perpetrated against women, men, girls or boys that is directly or indirectly linked to a conflict. This link may be evident in the profile of the perpetrator (often affiliated with a State or non-State armed group, including a terrorist entity or network), the profile of the victim (who is frequently an actual or perceived member of a persecuted political, ethnic or religious minority, or is targeted on the basis of actual or perceived sexual orientation and gender identity), the climate of impunity (which is generally associated with State collapse), cross-border consequences (such as displacement or trafficking in persons) and/ or violations of the provisions of a ceasefire agreement. The term also encompasses trafficking in persons when committed in situations of conflict for the purpose of sexual violence/ exploitation.’ UNSC, ‘Report of the Secretary-General on Conflict-Related Sexual Violence’ (15 April 2017), (UN Doc S/2017/249). Available here . 190 See UNSC Res 1820 (n 162), UNSC Res 1888 (n 163), UNSC Res 1960 (n 164) and UNSC Res 2106 (24 June 2013) UN Doc S/RES/2106 (2013). The reports are available here: . 191 The most recent report lists 50 parties (the majority of which are non-state actors), based in the CAR, Côte D’Ivoire, DRC, Iraq, Mali, Somalia, South Sudan and Syria. It also lists Boko Haram as a party of concern on the Security Council’s Agenda (Report of the Secretary-General, ‘Conflict Related Sexual Violence’ (15 April 2017) n 189.

274

Accountability Mechanisms  5.91 The information relating to children in the reports appears to be broadly similar to the information contained in the Annual Reports on Children in Armed Conflict: for example, the report covering the period January-December 2015 contains information relating to sexual violence against children which is broadly similar to that contained in Report on Children in Armed Conflict covering the same period. 5.90.2  MARA. The MARA mechanism, referred to at paragraph 5.88.1, above, was established by UNSC Resolution 1960 (2010)192 to gather information on conflictrelated sexual violence with the purpose of helping to reduce the risk of sexual violence and improving assistance to survivors. The data collected is used to produce the Reports on Conflict-Related Sexual Violence.193 The data is collected by field-based organisations and networks (including UN agencies and NGOs).194 The information is then fed to country-level working groups, whose function it is to review information, monitor and verify incidents of sexual violence, analyse data, trends and patterns, prepare reports, and build capacity to strengthen MARA.195 The MARA Guidelines explain that ‘To ensure a coherent UN approach to prevent and address conflictrelated sexual violence, the Working Group will monitor and verify information on such violations against women, men and children’.196 Once the information has been collated the working group passes it on to the Special Representative. The MARA Guidelines stress the importance of coordination between MARA and the MRM.197 5.91  Domestic and regional initiatives and protocols. We note, for example, that 5.91.1  There are positive examples of domestic initiatives which implement IHL. One example of an initiative directed at international reform is the United Kingdom’s Preventing Sexual Violence Initiative (PSVI), which was set up in 2012 to raise awareness of the extent of sexual violence against women, men, girls and boys in armed conflicts. As part of the initiative, the UK drafted an International Protocol on the Documentation and Investigation of Sexual Violence in Armed Conflicts.198 The nonbinding protocol sets out best practice on how to document, or investigate, sexual violence as a war crime, crime against humanity, act of genocide or other serious violation of ICL, IHL or IHRL. 5.91.2  There are also regional initiatives. For example, some regions have undertaken to commit to ending impunity through protocols. One such example is the Protocol on the Prevention and Suppression of Sexual Violence against Women and Children, which was part of the Security, Stability and Development Pact in the Great Lakes Region, 2006, seeking to bring an end to the conflict in the Great Lakes region.199 192 UNSC Res 1960 (n 164). 193 Provisional Guidance Note on the Implementation of Security Council Resolution 1960 (2010), 11. 194 See the flowchart at Provisional Guidance Note on the Implementation of Security Council Resolution 1960 (2010), 18. 195 Provisional Guidance Note on the Implementation of Security Council Resolution 1960 (2010), 7. 196 ibid, 7. 197 ibid, 15. 198 Sara Ferro Ribeiro, Danaé van der Straten Ponthoz on behalf of the UK Foreign & Commonwealth Office, ‘International Protocol on the Documentation and Investigation of Sexual Violence in Conflict: Best Practice on the Documentation of Sexual Violence as a Crime or Violation of International Law’ (2nd edn, 2017), available at . 199 See .

275

5.92  Sexual Violence The Protocol sets out a framework under which Member States undertake to prosecute and punish perpetrators of sexual violence, and establishes a regional mechanism for providing legal, medical, material and social assistance, including counselling and compensation to women and children survivors.200 This was followed by the Goma Declaration on Eradicating Sexual Violence, signed on 18 June 2008 by the Member States of the International Conference on the Great Lakes Region and others. The Goma Declaration set out recommendations that the Member States, regional and international signatories should carry out in order to give practical effect to the commitments made in the Protocol on the Prevention and Suppression of Sexual Violence against Women and Children and other international treaties (including the CRC). It was recommended, for example, that at a national level Member States should establish a Committee for the Protection of Women and Children from sexual violence to ensure follow up, dissemination and implementation of the Protocol.201 5.92  ICRC/NGOs. The ICRC and various NGOs play an important role in the monitoring and gathering of information regarding compliance with IHL rules concerning sexual violence. 5.92.1  ICRC. In 2014, the ICRC undertook a four-year commitment to consolidating and expanding its efforts to address sexual violence in armed conflicts.202 5.92.2  Geneva Call. Geneva Call’s second203 Deed of Commitment, launched in 2010, focussed on the ‘Protection of Children from the Effects of Armed Conflict’.204 By signing this Deed, armed non-state actors (ANSAs) agree, inter alia, to ‘protect children against sexual and other forms of violence’. To date, 29 ANSAs have signed this Deed.205 Geneva Call also has a third Deed of Commitment that focuses specifically on sexual violence in armed conflict, although the commitments do not mention children specifically. This third Deed of Commitment, launched in 2012, is entitled ‘Prohibition of Sexual Violence in Situations of Armed Conflict and the Elimination of Gender Discrimination’.206 By signing this Deed, ANSAs agree, inter alia, to prohibit all forms

200 ‘Protocol on the Prevention and Suppression of Sexual Violence against Women and Children’ (30 November 2006), available at . 201 ‘The Goma Declaration on Eradicating Sexual Violence and Ending Impunity in the Great Lakes Region’ (18  June 2008), para 17, available at . 202 As part of that commitment, the ICRC published an issue of the International Review of the Red Cross on ‘Sexual Violence in Armed Conflict’ (2014) 96 (894), available at . 203 The first Deed of Commitment was the ‘Deed of Commitment Under Geneva Call For Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action’, available at https://genevacall.org/ wp-content/uploads/dlm_uploads/2013/12/DoC-Banning-anti-personnel-mines.pdf. 204 ‘Deed of Commitment Under Geneva Call for the Protection of Children from the Effects of Armed Conflict’, available at . The reference to sexual violence is at para 7(ii). 205 See Geneva Call’s website at . 206 ‘Deed of Commitment Under Geneva Call for the Prohibition of Sexual Violence in Situations of Armed Conflict and Towards the Elimination of Gender Discrimination’, available at . In relation to gender discrimination, para 5 states, ‘TO FURTHER ENDEAVOUR, in addition to our obligation to treat all persons taking no active part in hostilities humanely and without adverse distinction, to eliminate any act or practice of discrimination between men and women in our policies and processes. Towards this end,

276

Accountability Mechanisms  5.93 of sexual violence, to take all feasible measures towards effectively preventing acts of sexual violence in areas where they exercise authority, to endeavour to provide victims with access to the assistance and care they need, to ensure confidentiality of victims to the extent possible, to endeavour to eliminate discriminatory policies and practices between women and men, and to endeavour to ensure greater participation of women in decision-making processes. To date, 23 ANSAs have signed this Deed.207 2.  ICL Accountability Mechanisms Adjudicative Accountability Mechanisms 5.93  Domestic courts. See above, paragraph 5.86, regarding domestic implementation. However, we note that, 5.93.1  Pursuant to the principle of complementarity (which requires domestic courts to prosecute crimes under ICL), some states have made notable progress in prosecuting those responsible for sexual violence against children in their own courts. The Secretary General’s 2016 annual report on Children in Armed Conflict, for example, comments that in the DRC:208 Efforts continued by the Government to hold the perpetrators of grave violations accountable. At least 68 individuals, including high ranking officers of FARDC and the Congolese National Police, were arrested, with 37 receiving sentences of up to 20 years’ imprisonment for sexual violence against girls.

5.93.2  In addition to domestic prosecutions of crimes corresponding to those set out in the ICC Statute, some countries continue to use traditional justice mechanisms (or traditional mechanisms updated in response to the demands of transitional justice). The Gacaca system in Rwanda, for example, has had jurisdiction over crimes of sexual violence since 2008.209 While the system has been praised for its ability to deal rapidly with cases, it has also been the subject of considerable criticism due to, inter alia, concerns that it fails to guarantee fair trial rights. Particular concern has been expressed about the appropriateness of the process in cases involving allegations of sexual violence because, for example, the process lacks formality and often uses local judges, who may be well known to the victim and/or accused.210 5.93.3  Military justice is another way in which states have sought to hold soldiers to account, albeit that it, too, has been the subject of significant commentary and criticism. The use of military justice in the DRC has, for example, been the subject of a

we will take concrete measures to ensure, among other things, equal protection before the law, equal enjoyment of rights and remedies, equal access to health care and services and equal access to education.’ 207 See Geneva Call’s website, ibid, (n 205). 208 Report of the Secretary-General, ‘Children in armed conflict’ (20 April 2016) (n 175), para 55. 209 Emily Amick, ‘Trying International Crimes on Local Lawns: The Adjudication of Genocide Sexual Violence Crimes in Rwanda’s Gacaca Courts’ (2011) 20 Journal of Gender and Law 1–97, 2–3. 210 Human Rights Watch, ‘Justice Compromised: the Legacy of Rwanda’s Community-Based Gacaca Courts’ (May 2011), 112–118, available at .

277

5.94  Sexual Violence number of studies.211 On the one hand, as Human Rights Watch (HRW) has reported, there have been some positive developments in the system: ‘Military Justice officials know more about the issue and appear more willing to try cases of sexual violence. They are also taking steps to protect children who are victims of rape, and closed sessions are now held as a matter of course when the victim is a child.’212 HRW notes further that in the DRC, ‘Military courts have been proactive in applying the Rome Statute to cases of war crimes and crimes against humanity, including for the crime of sexual violence. In April 2006, a military court in the province of Equateur in western Congo tried and found guilty seven soldiers on crimes against humanity for the collective rape of at least 119 women and girls in the village of Songo Mboyo in 2003’.213 They also note, however, that progress has been slow, and that while there have been successful prosecutions of lower ranking soldiers, the higher ranks have not been prosecuted. Moreover, the system remains vulnerable to political interference.214 HRW concluded that, in part because of those concerns, a mixed chamber – consisting of international and Congolese professionals – as part of the civilian justice system, might be a more appropriate forum for prosecutions.215 In its 2015 Report on the Minova Rape Case in the DRC, HRW noted that there has been ‘increasing recognition at the regional and international level that military tribuanls should not be involved in prosecuting grave human rights violations against civilans and that military tribunals should only prosecute purely military offenses’.216 As HRW notes, this reflects Principle 29 of the UN Commission on Human Rights Updated Set of Principles for the Promotion and Protection of Human Rights through Action to Combat State Impunity.217 5.94  International criminal courts/tribunals. Case law and prosecutorial practice shows a gradual move towards greater recognition of (i) the need to prosecute sexual violence and (ii) the need to prosecute sexual violence as such, rather than as part of broader prohibitions. For example, many ICC cases have involved children in some way; some of these have included allegations of sexual violence. Historically, allegations of sexual violence tended to be prosecuted as the more general crimes of torture or inhumane treatment. Or sexual violence was not prosecuted because of missed opportunity

211 See, for example AfriMAP and The Open Society Initiative for Southern Africa, ‘The Democratic Republic of Congo: Military Justice and human rights – An urgent need to complete reforms, A discussion paper’ (2009), available at . 212 Human Rights Watch, ‘Soldiers Who Rape, Commanders Who Condone: Sexual Violence and Military Reform in the Democratic Republic of Congo’ (July 2009), 46, available at . 213 ibid, 47. 214 ibid, 47–50. 215 ibid, 53–55. 216 Human Rights Watch, ‘Justice on Trial: Lessons from the Minova Rape Case in the Democratic Republic of Congo’ (2015), 89–90, available at . 217 UN Commission on Human Rights Updated Set of Principles for the Promotion and Protection of Human Rights through Action to Combat State Impunity, E/CN.4/2005/102/Add.1 (8 February 2005), Available at . Principle 29 provides: ‘The jurisdiction of military tribunals must be restricted solely to specifically military offences committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts or, where appropriate, in the case of serious crimes under international law, of an international or internationalized criminal court.’

278

Accountability Mechanisms  5.95 or apparent lack of focus on such crimes. For example, in Lubanga charges involving sexual offences could have been brought, but were not: the case involved allegations of sexual violence against girl soldiers but the offence was charged as the crime of enlisting or conscripting child soldiers, rather than as a sexual offence. This is because although the Trial Chamber heard evidence of sexual violence against children, it concluded that it could not consider that evidence because the prosecution had not applied to include rape and sexual enslavement at the relevant procedural stages and the facts relating to sexual violence were therefore not included in the Decision on the Confirmation of Charges.218 5.95  However, there appears, now, to be an increasing tendency to bring specific charges of rape and other sexual offences. Following the Lubanga case, the OTP at the ICC has committed to raising the prosecution of sexual violence on its agenda through its charging decisions.219 The work of the OTP is supported by the ICC’s Gender and Children Unit (established in 2003), which is responsible for providing expert advice on sexual and gender-based crimes and crimes against children and is made up of staff with legal and psychosocial expertise.220 For example in three recent ICC cases sexual violence, including against children, has been charged:221 5.95.1  Ntaganda involves allegations of rape and sexual slavery of girl soldiers in the DRC.222 5.95.2 In Prosecutor v Jean-Pierre Bemba Gombo Bemba was found guilty of two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape and pillaging), including rape by soldiers of girls as young as 11 years old, in the context of the conflict in the Central African Republic. However, Bemba was acquitted an appeal on 8 June 2018.223 5.95.3  The ongoing trial against former LRA commander Dominic Ongwen224 involves allegations of abduction of children and distribution of female abductees as so-called ‘wives’, and of forced pregnancy.225

218 Prosecutor v Lubanga, Judgment, Trial Chamber, Case No ICC-01/04-01/06, (14 March 2012), para 630. 219 ‘The Office will ensure that charges for sexual and gender-based crimes are brought wherever there is sufficient evidence to support such charges. It will bring charges for sexual and gender-based crimes explicitly as crimes per se, in addition to charging such acts as forms of other violence within the competence of the Court where the material elements are met, e.g. charging rape as torture. The Office will seek to bring cumulative charges in order to reflect the severity and multifaceted character of these crimes fairly, and to enunciate their range, supported by the evidence in each case.’ See ICC OTP ‘Policy Paper on Sexual and Gender-Based Crimes, International Criminal Court’ (June 2014), 6, para 7. 220 See Regulations 6 and 12 of the Regulations of the Office of Prosecutor and Art 42(9) of the Rome Statute and ICC OTP ‘Policy Paper on Sexual and Gender-Based Crimes’ (June 2014) 41–42, para 112. 221 A similar trend can be observed in ICTR cases, following the judgment in Akayesu in which the ICTR found that rape (including of girls) and other forms of sexual violence can constitute genocide: ICTR-96-4-T, paras 449ff. 222 Prosecutor v Bosco Ntaganda, Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06 (9 June 2014). 223 Prosecutor v Jean-Pierre Bemba Gombo, Trial Chamber III, Judgment pursuant to Article 74 of the Rome Statute, ICC-01/05-01/08 (21 March 2016). See for example paras 469, 490, 493 and 510–13 Appeals Chamber, ICC-01/05-01/08A (8 June 2018). 224 Prosecutor v Dominic Ongwen, Pre-Trial Chamber II, Decision on the Confirmation of Charges against Dominic Ongwen, ICC-02/04-01/15 (23 March 2016). 225 Prosecutor v Dominic Ongwen, ibid, eg paras 59 and 109–10.

279

5.96–5.98  Sexual Violence 3.  IHRL Accountability Mechanisms Adjudicative Accountability Mechanisms 5.96  Domestic courts. As we have noted above, paragraph 5.67, Articles 19 and 34, CRC, call on States Parties to protect the child from all forms of abuse (including sexual abuse) and sexual exploitation respectively. As noted in Chapter 3, paragraph 3.146, Article 4, CRC requires domestic implementation of the rights recognised in the CRC. Thus, to the extent that states recognise breaches of IHRL as breaches of domestic law, ‘hard accountability’ may be achieved through the relevant domestic courts.226 As we have noted elsewhere, a review of domestic implementation is beyond the scope of this book. 5.97  Regional courts. The case law is limited: the only regional human rights court that appears directly to have considered sexual abuse of children during armed conflict is the ECtHR.227 5.98  Treaty bodies. The relevant treaty bodies do not appear to have directly considered sexual violence against children in armed conflict to any significant degree. 5.98.1  African Commission on Human and Peoples’ Rights. We note two examples of cases that have come before the Commission concerning sexual violence in armed conflict. Neither case directly addressed sexual violence against children. In DRC v Burundi, Rwanda and Uganda228 the Commission held that the systematic rape and killing of Congolese women and young girls by the Rwandan and Ugandan forces violated Article 76, API and CEDAW. In Sudan Human Rights Organisation & Centre on Housing Rights and Evictions v Sudan229 the Commission held that Sudan had failed to prevent mass torture, rape (of women and girls) and other gross violations of human rights in the Darfur region, and that Sudan had also failed to investigate these offences. The Commission found a violation of several articles of the ACHPR, including Articles 4 and 5. 5.98.2  African Committee of Experts on the Rights and Welfare of the Child. To date, the Committee has only published two General Comments, neither of which relates to sexual violence against children in armed conflict. However, it has addressed this issue in other documents.230

226 There may also be other domestic fora, eg we note that some countries have national Human Rights Commissions before which individual victims of sexual violence may file a claim for compensation. In Uganda for instance, civil claims for financial compensation for sexual violence by a state official can be lodged against the Attorney General before the Human Rights Commission (see, eg, Vahidar Nainar, Manual: Litigation Strategies for Sexual Violence in Africa (Redress, 2012) 11). 227 For some explanations for the limited case law concerning sexual violence against women, see the work of Alice Edwards. She has argued that there is an emerging negative trend in human rights jurisprudence of ‘what could be conceived of as the requirement for a higher standard of proof in cases of sexual violence’: Alice Edwards, Violence against Women under International Human Rights Law (Oxford, OUP, 2010) 226–27. Surveying cases of sexual violence that have come before international and regional IHRL courts and bodies, Edwards observes that before both the Inter-American Court of Human Rights and the ECtHR a higher standard of proof was expected to establish rape than other forms of physical violence. 228 (Merits) 227/99 (29 May 2003), available at . 229 (Merits) 279/03–296/05 (27 May 2009), available at . 230 For example, in its Mission Report on the situation of children affected by the conflict in the Central African Republic, the Committee noted that: of the 254 cases of sexual violence against women and children perpetrated

280

Accountability Mechanisms  5.99 5.98.3  CRC Committee. The CRC Committee does not appear to have received any communications on sexual violence.231 Nor has the CRC Committee published any General Comments directly addressing sexual violence against children in armed conflict. We have already considered General Comment No 13 above. We note that there is passing reference to armed conflict in General Comment No 3 – it concerns HIV/AIDS and the rights of the child232 and provides that when states are developing programmes to protect children from violence and abuse, ‘the relationship between HIV/AIDS and the violence or abuse suffered by children in the context of war and armed conflict requires specific attention’ (paragraph 38). Other Accountability Mechanisms 5.99  UN. We do not repeat below those IHL UN accountability mechanisms that are equally applicable in the context of IHRL (ie the role of the UNSC and the MRM: see paragraphs 5.88ff). 5.99.1  Human Rights Council (HRC). As we have noted in Chapter 2, ­paragraph  2.124, the HRC promotes and protects rights around the world. So far, it has not taken any specific action in relation to sexual violence against children in armed conflict. However, the HRC has taken more general action in relation to children, sexual violence and/or armed conflict. For example, (i) In April 2010, the HRC adopted a resolution on ‘Rights of the child: the fight against sexual violence against children’.233 Among other things, it calls upon parties listed in the annexes to the Secretary-General’s annual report to prepare and implement concrete and time-bound action plans to end sexual violence violations (paragraph 11).

by armed groups between July and September 2014, no alleged perpetrators have been charged (para 15); and, rape and sexual abuse of children are the most frequently reported cases in police and gendarmerie stations (para 16). The Committee urged the CAR to take concrete steps to protect children against sexual abuse and to effectively investigate all cases of sexual abuse (para 27). See ACERWC, Mission Report of the ACERWC to Assess the Situation of Children Affected by the Conflict in Central African Republic, (December 2014), available at . See also: in its Advocacy Mission Report on the situation of children in South Sudan, the Committee noted that: the grave rights violations committed against children in South Sudan between December 2013 and June 2014 included sexual violence (para 13); a Work Plan was endorsed in South Sudan on 26 August 2014, one of the objectives of which was to end sexual violence against children (para 16); the conflict in South Sudan had resulted in extremely high levels of sexual violence against boys and girls (para 22ff); crimes of sexual violence are usually committed with impunity as survivors tend not to report them, for fear of being stigmatised and discriminated against (para 23). The Committee recommended that South Sudan establish processes to ensure that survivors of sexual violence are provided comprehensive support (paras 24–25). See ACERWC, Report of the Advocacy Mission to Assess the Situation of Children in South Sudan (August 2014), available at . 231 As noted in Ch 9 a search of the Committee’s database lists four communications; three are inadmissibility decisions on matters that are unrelated to armed conflict and sexual violence and the fourth is a discontinuance decision, available at . 232 CRC Committee, General Comment 3. ‘HIV/AIDS and the rights of the child’ (17 March 2003), available at . 233 UNHRC Res 13/20 (15 April 2010) UN Doc A/HRC/RES/13/20.

281

5.100–5.102  Sexual Violence (ii) In 2006, the UNGA and HRC published a report of the UN High Commissioner for Human Rights on systematic rape, sexual slavery and slavery-like practices during armed conflicts.234 The report noted that women and children continue to be the main victims of sexual violence human rights violations.235 5.99.2  UNICEF lists sexual violence as one of its 17 ‘child protection issues’ (the areas on which UNICEF is working to improve child protection).236 In Sudan, for example, UNICEF is the lead humanitarian Protection Agency for children and alongside working with the Government on legislative reforms, it supports Community Based Child Protection Networks, a connection of chiefs, community leaders, youth and female representatives who offer protection to children, and supports Family and Child Protection Units within the Sudanese police, which provide support to child victims and offenders, with most cases involving sexual or gender-based violence.237 5.100  Regional initiatives. The 2003 EU Guidelines on Children and Armed Conflict (revised in 2008) require the periodic reports of EU Heads of Mission, Heads of Mission of civilian operations, EU Military Commanders and EU Special Representatives to address, amongst other things, sexual and gender-based violence against children (paragraph 10). B.  Problems and Deficiencies in Accountability Mechanisms 5.101  General problems and deficiencies in existing accountability mechanisms – including the need for greater ratification of OP3 and the Rome Statute – are considered in Chapter 9. In the context of this Chapter we note two problems. First, the inherent, and multiple difficulties in prosecuting sexual offences against children in armed conflict and, second, the fact that although there are multiple, overlapping, UN information gathering and monitoring processes these may benefit from having a greater focus on the specific issue of sexual violence against children in armed conflict. We consider each of these in turn below. We begin by recalling that, as explained in Chapter 2, this book has not addressed peacekeeping operations. Accordingly, we do not consider here the allegations of sexual violence against children by UN peacekeepers. This is clearly an issue that requires developed and express consideration. 5.102  First, as explained in Chapter 2 and developed in Chapter 9, in considering accountability mechanisms we have been concerned primarily (i) to ascertain whether suitable and adequate adjudicative accountability mechanisms exist and (ii) to make general recommendations where they do not so exist. Although we have sometimes made general recommendations about the ways in which some, existing, adjudicative accountability mechanisms could be improved we have not sought to appraise in detail

234 UNGA ‘Report of the United Nations High Commissioner for Human Rights’ (11 July 2006) UN Doc A/HRC/Sub.1/58/23. 235 ibid, at Summary and Conclusions. 236 See UNICEF website, available at . 237 See UNICEF Sudan website, available at .

282

Accountability Mechanisms  5.103 the effectiveness of each existing accountability mechanism. We have not, for example, assessed whether the ICC’s prosecutorial practices and policies could be improved to secure better accountability for crimes against children. However, we note the following: 5.102.1  The unique challenges in bringing domestic prosecutions for sexual violence are heightened in the context of sexual violence against children in armed conflict. This may explain why prosecutions for sexual violence against children in armed conflict are not as prominent as they might otherwise be. 5.102.2  However, even when such prosecutions are brought (we note the recent illustrations of ICC prosecutions for sexual violence against children in armed conflict): the limited number of successful prosecutions is probably attributable, in part at least, to the difficulties in bringing such cases. As the ICC OTP notes, ‘the investigation of sexual and gender-based crimes presents its own specific challenges. These include the under-or non-reporting owing to societal, cultural, or religious factors; stigma for victims; limited domestic investigations; and the associated lack of readily available evidence; lack of forensic or other documentary evidence, owing inter alia, to the passage of time; and inadequate or limited support services at national level.’238 Where children are involved, the process may be even more complex. Children may be even less willing to speak about their experience, and unless the matter was witnessed by adults, children may struggle to articulate what has happened until a significant period later, if at all. 5.102.3  The OTP is clearly sensitive to child-related concerns (see, for example, the Policy on Children) but in light of the two points noted above, there may be room for further analysis of whether ICC practices and procedures could be enhanced to secure greater accountability for crimes of sexual violence against children.239 5.103  Second, although there are a number of relevant UN information gathering and monitoring processes these may benefit from having a greater focus on the specific issue of sexual violence against children in armed conflict. For example, while the Reports on Children and Armed Conflict provide information on the number of incidents involving children there appears to be limited engagement with the particular challenges posed by sexual violence for children and little analysis of the broader context of sexual violence in the conflict in question.

238 ICC OTP, Policy Paper on Sexual and Gender-Based Crimes (June 2014) 5–6 (emphasis added). See also William H Wiley, ‘The Difficulties Inherent in the Investigation of Allegations of Rape before International Courts and Tribunals’, in Morten Bergsmo, Alf Butenschøn Skre and Elisabeth J Wood (eds), Understanding and Proving Sex Crimes (Torkel Opsahl Academic EPublisher, 2012) 369 (emphasis added): ‘when rape and related sexual violence charges have not made and do not make their way into indictments, the reason for this is invariably rooted in the particular complexity of gathering sufficient evidence to warrant charging one or more specific individuals with the relevant war crime(s), crime(s) against humanity and even genocide. Put another way, rape, amongst other crimes of a sexual nature, is a disproportionately difficult offence to investigate.’ Similar considerations to those arising at the investigation stage may affect which charges are brought; one commentator has observed that considerations such as ‘the availability, willingness, and credibility of witnesses, the perceived relative importance of diverse charges as well as selected locations for investigation all impact upon decision-making with respect to laying charges.’ See Christine Chinkin, ‘Key Issues in Times of Armed Conflict’, in Andrew Clapham, Paola Gaeta, Tom Haeck and Alice Priddy (eds), The Oxford Handbook of International Law in Armed Conflict (Oxford, OUP, 2014) 694. 239 For example, to ensure that opportunities are not missed: see Lubanga, (Trial Judgment) (n 218), para 5.94.

283

5.104–5.106  Sexual Violence C.  Suggestion to Improve Accountability Mechanisms 5.104  In light of paragraphs 5.101–5.103 above, we suggest that further consideration could usefully be given to (i) whether ICC practices and procedures could be enhanced to secure greater accountability for crimes of sexual violence against children and (ii) whether UN information gathering and monitoring processes may benefit from a greater focus on sexual violence against children in armed conflict.

IV.  CONCLUSION AND SUMMARY

5.105  In conclusion, the main recommendations of this Chapter can be summarised as follows. 5.106  Recommendations on legal framework: • IHL and ICL: (1) The international humanitarian law (IHL) and international criminal law (ICL) legal regimes for the protection of children from rape and other forms of sexual violence in conflict are comprehensive and well-developed when viewed as a whole but there is potential scope for improvement or development in the following three respects. (2) The position of ‘child soldiers’ abused by their own group is currently unclear. In particular, it is unclear whether the status requirements of the Geneva Conventions, for international armed conflicts (IAC) and of Common A ­ rticle  3, for non-international armed conflicts (NIAC) apply to the war crimes in Articles 8(2) (b)(xxii) and 8(2)(e)(vi), Rome Statute – with the effect that those war crimes exclude, from the pool of potential victims, ‘child soldiers’ abused by their own group. The International Criminal Court (ICC) rejected the submission that these status requirements applied to those war crimes in Prosecutor v Bosco Ntaganda, affirming that IHL prohibitions on rape and sexual slavery could apply within a party’s own forces. However, the decision in that case may be controversial insofar as it may be read as dissociating war crimes from the status requirements in their IHL foundation and so the law regarding the position of ‘child soldiers’ abused by their own group would benefit from further clarification. (3) Although IHL and ICL proscribe and criminalise various forms of sexual violence against children, Article 77(1), Additional Protocol I (API) and Article 4(3), Additional Protocol II (APII) go further and require that children should be provided with ‘ care and aid’. These provisions (and Common Article 1 of the Geneva Conventions) could be used as a legal prompt to encourage states to take positive measures to prevent sexual violence against children in armed conflict, and to provide child victims of such violence with the care and aid they require in order to recover and be rehabilitated. Consideration should be given to developing the law by establishing a greater focus on states’ wider obligations regarding children, for example to prevent sexual violence against children and the rehabilitation of child victims. 284

Conclusion and Summary  5.107 (4) There is no express protection in ICL against forced marriage. Whether such protection is needed is debatable but it is arguable that the existing prohibitions do not adequately encompass the non-physical aspects of forced marriage and it is notable that the relevant international human rights law (IHRL) obligations do not provide a means of holding individual perpetrators (as opposed to states) to account unless the obligations have been implemented ­domestically by a state and are effectively enforced. Consideration should be given to whether the law needs to be developed so as to expressly prohibit forced marriage. • IHRL: taken together with the IHL and ICL protections, the substantive IHRL protections for children against sexual violence in armed conflict are generally robust but those states that have not yet ratified the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and pornography (OPSC) should be encouraged to do so in light of the specific protections it provides. 5.107  Recommendations on international accountability mechanisms: • The unique challenges in bringing domestic prosecutions for sexual violence are heightened in the context of sexual violence against children in armed conflict. This may explain why prosecutions are not as prominent as they might otherwise be. Even when such prosecutions are brought: the limited number of successful prosecutions is probably attributable, in part at least, to the difficulties in bringing such cases. The ICC’s Office of the Prosecutor is clearly sensitive to child-related concerns and has promulgated a Policy on Children but further consideration could usefully be given to whether ICC practices and procedures could be enhanced to secure greater accountability for crimes of sexual violence against children. • Although there are a number of relevant UN information gathering and monitoring processes these may benefit from having a greater focus on the specific issue of sexual violence against children in armed conflict. For example, while the Reports on Children and Armed Conflict provide information on the number of incidents involving children there appears to be limited engagement with the particular challenges posed by sexual violence for children and little analysis of the broader context of sexual violence in the conflict in question.

285

6 Child Abduction ‘Abduction is now being used as a tactic to terrorize or target particular ethnic groups or religious communities, and children have been a particular focus.’1

I. Introduction  II. Legal Framework A. International Humanitarian Law 1. The Legal Framework 2. Problems and Deficiencies in the Legal Framework 3. Suggestions to Improve the Legal Framework B. International Criminal Law 1. The Legal Framework 2. Problems and Deficiencies in the Legal Framework 3. Suggestion to Improve the Legal Framework C. International Human Rights Law 1. The Legal Framework 2. Problems and Deficiencies in the Legal Framework 3. Suggestions to Improve the Legal Framework D. Soft Law III. Accountability Mechanisms A. Application of Accountability Mechanisms 1. IHL Accountability Mechanisms  2. ICL Accountability Mechanisms 3. IHRL Accountability Mechanisms B. Problems and Deficiencies in Accountability Mechanisms C. Suggestions to Improve Accountability Mechanisms IV. Conclusion and Summary

286 290 290 290 291 292 293 293 294 294 295 295 299 301 302 302 303 303 305 306 308 309 309

I. INTRODUCTION

6.1  In his most recent annual report on children in armed conflict, the UN SecretaryGeneral noted that instances of child abduction had increased in several states since 2015. The number of abductions in the Central African Republic between January and 1 Ban Ki-Moon, UN Secretary-General (2007–16). Remarks made on 18 June 2015 at the Security Council Open Debate on Children and Armed Conflict, available at . All links to websites in this Chapter were accessed in June and July 2017.

286

Introduction 6.2–6.4 December 2016 had almost doubled compared to 2015, with one non-state armed group responsible for the abduction of 84 children. In Myanmar, abductions had increased since 2015 with 30 reported incidents. In Somalia, the Secretary-General noted that ‘the number of abductions spiked compared with 2015’: there were 950 abductions, with Al-Shabaab responsible for 87 per cent of them.2 Although not specifically mentioned in the Secretary-General’s most recent report, schools have historically been a common site for mass abductions. For example, in 2014, 276 girls were abducted by Boko Haram from their school in Chibok in north-eastern Nigeria; and in 2014, ISIL abducted 153 Kurdish children who were on their way home from taking exams in Aleppo (for further detail on attacks on schools, see Chapter 7).3 The harmful consequences of abduction are potentially far-reaching, affecting abductees, their families and their communities. They include death,4 physical and psychological injury (such as PTSD)5 and breakdown in community relations.6 6.2  However, child abduction is rarely an end in itself. Abduction is primarily a precursor to other violations of children’s rights. For example, children may be abducted for recruitment and use in hostilities, for sexual exploitation or abuse, for forced labour or as part of a hostage taking. One consequence of this is that there is limited law and scholarship specifically and exclusively addressing child abduction per se. Accordingly, it is particularly important to read this Chapter alongside others in this book: especially Chapter 4 (on recruitment and use in hostilities) and Chapter 5 (on sexual violence). 6.3  Child abduction was included as one of the six grave violations – the basis on which information-gathering and reporting on children’s violations is conducted by the ­Monitoring and Reporting Mechanism (MRM) of the United Nations – in 1999, following United Nations Security Council Resolution (UNSC Resolution) 1261. It was added as a trigger violation for inclusion in the annexes of the UN Secretary-General’s annual report in 2015.7 This development reflected the increasingly visible use of child abduction as a ‘tactic to terrorize’.8 6.4  The structure of this Chapter, as with the others in this book, is as follows. After this introduction, Part II considers the legal framework regulating child abduction in 2 UNGA, ‘Report of the Secretary-General on Children and Armed Conflict’ (2017) UN Doc A/72/361. Child abduction in the CAR is considered at para 44. Child abduction in Myanmar is considered at para 39. Child abduction in Somalia is considered at para 140. 3 See, eg, ‘Nigeria Chibok abductions: what we know’ (BBC, 8 May 2017) ; and ‘Syria: ISIS holds 130 Kurdish children’ (Human Rights Watch, 30 June 2014) . 4 Benjamin Maiangwa and Daniel Agbiboa, ‘Why Boko Haram kidnaps women and young girls in northeastern Nigeria’ (2014) (3) Conflict Trends 51, 54. 5 Nina Winkler et al, ‘From War to Classroom: PTSD and Depression in Formerly Abducted Youth in Uganda’ (3 March 2015), available at . 6 Kennedy Amone-P’Olak et al, ‘Sexual Violence and General Functioning among Formerly Abducted Girls in Northern Uganda: the Mediating Roles of Stigma and Community Relations – the WAYS Study’ (2016) 16(64) BMC Public Health, available at . 7 See para 6.38 below. On the MRM see Ch 2, para 2.123. The MRM field manual, referred to below, is at . 8 UN Secretary-General (2007–16). Remarks made on 18 June 2015 at the Security Council Open Debate on Children and Armed Conflict. See .

287

6.5–6.7  Child Abduction armed conflict. It addresses the applicable international humanitarian law (IHL), international criminal law (ICL) and international human rights law (IHRL): identifying the existing law; problems and deficiencies; and, suggesting improvements. Part III then considers accountability mechanisms. It addresses the existing accountability mechanisms for IHL, ICL and IHRL in turn (considered according to the spectrum set out in Chapter 2 at paragraph 2.92); some of the problems with those mechanisms; and suggests improvements. Part IV sets out our conclusions and provides a summary of the Chapter. 6.5  We begin with three introductory points. 6.6  First, the consideration of child abduction raises two inter-connected issues: how should child abduction be defined and how should it be treated (viz, as a prohibited act in its own right or as a component, a prerequisite, of other prohibited acts such as recruitment and use or forced labour etc). The second issue closely informs the first. Unhelpfully, the definition of abduction is not systematically addressed in any instruments relating to armed conflict and there is a difference in the way it is treated: it is not expressly prohibited in IHL and ICL but it is expressly prohibited in IHRL. We consider both the definition and the treatment in turn in the second and third introductory points. 6.7  Second, in relation to the definition: 6.7.1  Abduction is commonly understood as the removal of a child from the care of his or her parents or guardians without their express consent. This definition does not take account of ‘why’ the child is abducted or the consequences to the child of such an abduction. An abduction (‘removal without consent’) may take place in times of armed conflict but it may also be a domestic criminal offence or give rise to a civil claim for damages in non-conflict contexts. 6.7.2  In the context of armed conflict, child abduction is defined in the MRM field manual as the ‘unlawful removal, seizure, capture, apprehension, taking or enforced disappearance of a child either temporarily or permanently for the purpose of any form of exploitation of the child’. See further, paragraph 6.13.2 below where we suggest that this should be amended, at the end, to read ‘for the purpose of any form of exploitation of the child or a prohibited act’ in order to include situations where the child is not ‘exploited’, for example arbitrary detention or hostage-taking. 6.7.3  As the definition in the MRM field manual makes clear: child abduction in armed conflict9 does not require removal of a child across an international frontier.10

9 Compare this with child abduction outside armed conflict, in which abduction is generally understood to mean the ‘wrongful removal of a child across an international frontier or the wrongful retention of a child within a foreign jurisdiction’. This summary of the definition is provided by Peter McEleavy, ‘Child Abduction’ (2010) Max Planck Encyclopaedia of Public International Law, at para 1. It is significantly based on the Convention on the Civil Aspects of International Child Abduction (adopted on 25 October 1980, entered into force 1 December 1983) 1343 UNTS 98 (the Hague Convention on Child Abduction), available at. 10 Some human rights treaties, although they do not define abduction, do allude to the difference between parental, custody disputes and abduction more generally. For example, at Art 11, the Convention on the Rights of the Child (adopted on 20 November 1989, entered into force on 2 September 1990) 1577 UNTS 3 (the CRC) addresses parental abduction and custody, providing, ‘(1) States Parties shall take measures to combat the illicit transfer and non-return of children abroad. (2) To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements’; and at Art 35, the CRC addresses abduction

288

Introduction 6.8 6.7.4  The MRM definition is similar in striking respects with that of trafficking (in IHRL): Article 3(a) of the Trafficking Protocol defines trafficking in persons as the ‘recruitment, transportation, transfer, harbouring or receipt of persons by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.’11 Article 3(c) adds, ‘The recruitment, transportation, ­transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a)’. 6.7.5  Comparing this to child abduction as defined in the MRM field manual we note: (i) abduction may be one of the means (ie one of the prerequisites) for ­trafficking; (ii) but trafficking does not require abduction; (iii) the definition of ­trafficking (like abduction) does not require transfer across borders (but, as explained in ­paragraph 6.22.3 below, the Trafficking Protocol only requires States to criminalise trafficking that is transnational and involves an organised criminal group) and (iv) trafficking (like abduction) involves ‘exploitation’. The definition of trafficking in Article 3 of the Trafficking Protocol therefore encompasses the requirements of abduction and is broader in scope than abduction. 6.7.6  Both the MRM definition and the definition in the Trafficking Protocol require the abduction to be for the purpose of ‘exploitation’. However, the context of these definitions (armed conflict or otherwise) may connote differences in the kind of ‘exploitation’ that is envisaged, for example the MRM definition may contemplate recruitment and use whereas the trafficking definition may connote sale or slavery.12 Both definitions connote that the abduction may be perpetrated by a private citizen, member of the armed forces or an non-state armed group. 6.7.7  We consider the MRM definition to be a helpful one and as one that should be adopted more widely, subject to our suggested expansion, see below paragraph 6.13.2. 6.8  Third, and as to how child abduction should be treated: we consider that the direct and express prohibition in IHRL, for example Article 35, UN Convention on the Rights of the Child (CRC), is preferable to the indirect prohibition in IHL and ICL since it leads to the greatest protection for children by clearly prohibiting the threshold act of taking a child. Abduction is generally a preliminary act undertaken with the ­intention of

more broadly, providing, ‘States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form’. See Sharon Detrick, A Commentary on the United Nations Convention on the Rights of the Child (Leiden, Martinus Nijhoff Publishers, 1999) 203, for the distinction between Arts 11 and 35, CRC. 11 Emphasis added. 12 In relation to the MRM: the definition of ‘abduction’ does not exhaustively define exploitation but states that exploitation includes ‘recruitment in armed forces or groups, participation in hostilities, sexual exploitation or abuse, forced labour, hostage-taking and indoctrination.’ In relation to the Trafficking Protocol: exploitation is also not exhaustively defined in Art 3(a) but by reference to ‘a minimum’.

289

6.9–6.11  Child Abduction e­xploiting the child, and rarely is it for the benefit of the child or in the child’s best ­interests.13 While abduction of a child is a crime in the domestic legislation of most states, the legislation may be inadequate to protect children from abduction within an armed conflict context. We therefore recommend that if there is to be a new international instrument (as we have suggested elsewhere), then abduction should be prohibited in the terms of the definition contained in the MRM.

II.  LEGAL FRAMEWORK

6.9  For a general overview of the sources of international law applicable to children in armed conflict, see Chapter 2. Below are details of the IHL, ICL and IHRL applicable specifically to child abduction in armed conflict; the relevant treaty provisions and rules of customary international law (CIL) are addressed within these categories. A.  International Humanitarian Law 1.  The Legal Framework 6.10  There are no express, direct prohibitions on child abduction in IHL as a matter of either treaty law or CIL and, therefore, there is no definition of ‘abduction’ in the context of armed conflict.14 6.11  However, children are indirectly protected against abduction – as defined in the MRM field manual – if the removal takes place for the purposes of a prohibited act, including the following, which exist in the contexts of international armed conflict (IAC) and non-international armed conflict (NIAC): 6.11.1  Removal for recruitment and use in hostilities. See Chapter 4. 6.11.2  Removal for the purpose of rape and sexual violence. See Chapter 5. 6.11.3  Removal for the purposes of arbitrary detention. See Articles 42 and 78, Fourth Geneva Convention (GCIV) regarding internment and assigned residence; and ICRC, CIL Rule 99.15

13 The acts following abduction invariably involve direct and serious harm to the child. Cf child abduction in non-armed conflict contexts, such as domestic kidnapping or hostage-taking, where the child is used as a means to an end (eg procuring a ransom) and then released. 14 The ICRC (International Committee of the Red Cross) Rules (see Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Law: Volume 1: Rules (Cambridge, CUP, 2005; reprinted with corrections 2009)), contain several express references to abduction in general: including in the context of (i) Rule 31 (Humanitarian relief personnel must be respected and protected), noting state practice condemning, amongst other acts, the abduction of such personnel (108) and (ii) Rule 34 (Civilian journalists engaged in professional missions in areas of armed conflict must be respected and protected as long as they are not taking a direct part in hostilities) noting state practice condemning, amongst other acts, the abduction of journalists (117–18). 15 ibid, 344–52.

290

Legal Framework  6.12–6.13 6.11.4  Removal for the purpose of slavery. See Article 4(2)(f), Additional Protocol II (APII) and ICRC, CIL Rule 94.16 The commentary on Rule 94 makes it clear that the CIL prohibition on slavery includes trafficking17 and, therefore, since trafficking may be understood as being broader than abduction, abduction. 6.11.5  Removal for the purposes of forced labour. See Article 51, GCIV; Article 4(2)(f), APII and ICRC, CIL Rule 95.18 6.11.6  Removal with the intention of using the child as a hostage. See Article 34, GCIV; Article 75(2)(c), Additional Protocol I (API); Article 4(2)(c), APII and ICRC, CIL Rule 96.19 6.11.7  Removal as part of the forced displacement of a civilian population. See Article 49, GCIV, which prohibits individual or mass forcible transfer regardless of motive; Article 17, APII, which prohibits the displacement of the civilian p ­ opulation; and ICRC, CIL Rule 129, which prohibits deportation or forcible transfer of the civilian population in IAC and NIAC unless for reasons of security or military imperative.20 6.11.8  Removal as part of enforced disappearances. See ICRC, CIL Rule 9821 which prohibits enforced disappearance in IAC and NIAC (there are no IHL instruments that protect against or prohibit enforced disappearances; ICL and the Rome Statute is considered at paragraph 6.15ff). 6.12  There are also general rules of CIL protecting children and families which encompass protection against abduction. See ICRC, CIL Rules 105 (family life must be respected as far as possible);22 117 (each party to the conflict must take all feasible measures to account for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate)23 and 135 (children affected by armed conflict are entitled to special respect and protection).24 2.  Problems and Deficiencies in the Legal Framework 6.13  There are two gaps in the existing IHL legal framework: (i) there is no definition of ‘abduction’ in the context of armed conflict25 and, (ii) there are no provisions in IHL that specifically address or prohibit the act of child abduction in armed conflict. We consider that: 6.13.1  First, neither of these gaps appear to have led to a material deficiency in the substantive protection regarding child abduction (cf the accountability problems at

16 ibid, 327–30. 17 ibid, 329. 18 ibid, 330–34. 19 ibid, 334–36. 20 ibid, 457–62. 21 ibid, 340–44. 22 ibid, 379–83. This requires the maintenance of family unity; contact between family members and the provision of information on the whereabouts of family members. 23 ibid, 421–27. 24 ibid, 479–82. 25 Nor was child abduction in armed conflict defined in either the 1939 or 1946 draft conventions on children in armed conflict: see Ch 1, paras 1.25–1.29 and Annexes I and II hereto.

291

6.14  Child Abduction paragraph 6.34ff). Arguably, therefore, there is no need to amend the existing legal framework. Thus: (i) although there is no formal definition of ‘abduction’ in the context of armed conflict there appears, nevertheless, to be a general understanding that child abduction in armed conflict connotes the taking of a child, without parental consent, by armed forces, non-state armed groups or others for the purposes of a prohibited act or exploitation. That general understanding is reflected in the definition in the MRM field manual. As to (ii) (and as noted above, paragraph 6.11): despite the lack of direct IHL prohibition (a) the act of taking a child without parental consent appears to be adequately prohibited, albeit indirectly, through other prohibitions. And (b) those prohibitions – which are likely, in their practical application, to offer overlapping protection26 – appear to cover the vast majority of potential situations in which children may be taken without parental consent, in armed conflict. 6.13.2 However, second, we consider that it would be desirable to address (i), ie by identifying a definition of ‘abduction’ since this would clarify the existing legal framework and this is likely to assist in enhancing domestic implementation and accountability. We consider that the definition in the MRM field manual should be adopted, subject to it being amended, at the end, to read ‘for the purpose of any form of exploitation of the child or a prohibited act’. We suggest the addition of ‘or a prohibited act’ in order to include situations where the treatment of the child could not be characterised as ‘exploitation’, for example where the child is arbitrarily detained or taken hostage. 3.  Suggestions to Improve the Legal Framework 6.14  In light of the above, paragraph 6.13, we suggest that, if (as we have otherwise suggested) there is a new international instrument on children in armed conflict, it should include a provision defining abduction and, if there is not, then the ICRC should consider whether to undertake work on such a definition. For the reasons set out at paragraph 6.7 above, we consider that, 6.14.1  The MRM field manual definition, with our suggested amendment, should be adopted. 6.14.2  The definition should state that the taking may be done by anyone (private citizen, armed forces or non-state armed groups). And 6.14.3  The definition should state that the taking of the child does not need to be across an international frontier and encompasses both domestic and international abductions.

26 For example, a child abducted and recruited as a ‘child soldier’ will be able to claim the IHL protections against recruitment and use set out in Ch 4; a child abducted for sexual exploitation will be able to claim the IHL protections set out in Ch 5; a child abducted for no such explicit purpose will still be able to claim the general IHL protections set out above at para 6.11ff, such as protections against enforced disappearance, deprivation of liberty and forced labour.

292

Legal Framework  6.15–6.16 B.  International Criminal Law 1.  The Legal Framework 6.15  There is no definition of ‘child abduction’ in ICL. In referring to that term in this section we refer to it as describing a taking without parental consent. Other than in cases where abduction is part of genocide, child abduction is not directly prohibited either as a war crime or a crime against humanity. 6.16  In relation to genocide: forcibly transferring children of a targeted group to another group with the intent to destroy in whole or in part the targeted group as such is prohibited as genocide.27 The forcible transfer of children may entail biological, but also cultural genocide.28 The crime of genocide includes the threat of forcible transfer too.29 The term ‘forcibly’ is not restricted to physical force but also applies to other types of coercion: the key point is that the transfer must be involuntary.30 It is debated whether the transfer of children must also be permanent. The travaux préparatories show that this issue was raised, but not answered, during the debates in the UNGA’s Sixth (Legal) Committee.31 The ordinary meaning of the term transfer, and the absence of any express minimum duration requirement in Article II(e), suggests that temporary transfer is sufficient.32 In its judgment in the Bosnia Genocide case, the ICJ held that forcible transfer requires deliberate, intentional acts.33 It must, in addition, meet the required genocidal intent. Genocidal intent can be inferred from the following illustrative examples: forcing abducted children to commit atrocities against their own communities; sexual violation of abducted children; severing ties between abducted children and their families; and forcing children to endure cruel and inhumane training.34 27 Art II(e), Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277, and Art 6(e), Rome Statute of the International Criminal Court (adopted on 17 July 1998, entered into force on 1 July 2002) 2187 UNTS 90 (Rome Statute) (both of these provisions prohibit ‘forcibly transferring children’ of one group to another). See William Schabas, Genocide in International Law 2nd edn (Cambridge, Cambridge University Press, 2009) 201ff for a detailed consideration of this aspect of the crime of genocide, as set out in the Rome Statute. 28 ILC Draft Code 1996 Commentary to Art 17, para 17: ‘The forcible transfer of children would have particularly serious consequences for the future viability of the group as such.’ See also UN Economic and Social Council, ‘Draft Convention on the Crime of Genocide’ UN Doc E/447 (26 June 1947) 27 which explains the concept of cultural genocide: ‘The separation of children from their parents results in forcing upon the former at an impressionable and receptive age a culture and mentality different from their parents. This process tends to bring about the disappearance of the group as a cultural unit in a relatively short time. The experts were agreed that this point should be covered by the Convention on genocide, but their agreement did not go further than that.’ 29 Prosecutor v Akayesu (Judgement) ICTR-96-4-T (2 September 1998), para 509; Prosecutor v Kayishema and Ruzindana (Judgement) ICTR-95-1-T (21 May 1999), para 118; Prosecutor v Musema (Judgement) ICTR96-13-T (27 January 2000), para 159. 30 Rome Statute (Elements of Crimes) ICC-ASP/1/3 fn 5. 31 UN GAOR, 6th Committee, 3rd Session, 82nd Meeting (23 October 1948) UN DocA/C.6/SR.82 189–190 (Czechoslovakia) and 191 (Belgium). 32 See also ILC Draft Code 1996 Commentary to Art 17, para 18: ‘The article clearly indicates that it is not necessary to achieve the final result of the destruction of a group in order for a crime of genocide to have been committed. It is enough to have committed any one of the acts listed in the article with the clear intention of bringing about the total or partial destruction of a protected group as such.’ 33 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, para 186. 34 Sonja Grover, ‘Child soldiers as Victims of “Genocidal Forcible Transfer”: Darfur and Syria as Case Examples’ (2013) 17(3) International Journal of Human Rights 412.

293

6.17–6.19  Child Abduction 6.17  Furthermore, as with IHL, child abduction is indirectly prohibited in ICL when it occurs as a factual threshold act leading to other violations, for example: 6.17.1  Crimes against humanity. Particular crimes that may involve child abduction as a factual precursor include: (i) enforced disappearance;35 (ii) inhumane acts36 and (iii) enslavement.37 6.17.2  War crimes. Particular crimes that may involve child abduction as a factual precursor include: (i) inhuman treatment in IAC;38 (ii) the commission of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence also constituting a grave breach of either the Geneva Conventions generally (in IAC) or Common Article 3 to the Geneva Conventions (in NIAC),39 and (iii) conscripting or enlisting children under the age of 15 into the national armed forces (in IAC) or armed forces or groups (in NIAC) or using them to participate actively in hostilities.40 2.  Problems and Deficiencies in the Legal Framework 6.18  The practical protection offered by genocide is limited in relation to child abduction. This is because, 6.18.1  The scope of genocide is narrow. Only forcible transfers that have the aim of indefinitely moving a group of children from a protected group to another group, and in doing so alienating those children from their families and home communities, will infringe Article II(e) of the Genocide Convention. Although the actus reus of forcible transfer may be present in many abductions, it will often be difficult to establish the necessary genocidal mens rea and as a result it will be difficult to prosecute many abductions as genocide.41 6.18.2  Further, and more generally, observers have noted that the provisions on forcible transfer of children in the Genocide Convention are essentially dormant.42 3.  Suggestion to Improve the Legal Framework 6.19  Despite the limited protection offered by the Genocide Convention, we do not consider that it is necessary, or desirable, to expand the scope of Article II(e). This is primarily because (i) ICL already contains indirect protection against child abduction 35 Art 7(1)(i), Rome Statute. For the history of the criminal prohibition of enforced disappearance see Brian Finucane, ‘Enforced Disappearance as a Crime under International Law: A Neglected Origin in the Laws of War’ (2010) 35 Yale Journal of International Law 171, in which the author argues that conduct amounting to enforced disappearances has long been criminal under international law and that the origins of this criminal prohibition lie in IHL, not in IHRL. 36 Art 7(1)(k), Rome Statute. 37 Art 7(1)(c), Rome Statute. 38 Art 8(2)(a)(ii), Rome Statute. 39 Arts 8(2)(b)(xxii) and 8(2)(e)(vi), Rome Statute. See also Ch 5. 40 Arts 8(2)(b)(xxvi) and 8(2)(e)(vii), Rome Statute. See also Ch 4. 41 For examples of states in which children have become the victims (usually though recruitment and use) of the genocide of forcible transfer see Grover (n 34), 419ff. 42 See, for example, Grover (n 34), 422–23.

294

Legal Framework  6.20–6.21 (see above, paragraph 6.17) and (ii) those prohibitions appear to cover the vast majority of potential child abductions in armed conflict. We also observe that the nature of the crime of genocide is that a necessary element of the crime of genocide is intent to destroy a group; as set out above at paragraph 6.18. This is difficult to establish, and in any event will likely not be the intention behind a large number of child abductions. As a result, it is questionable whether expanded protection under the Genocide Convention would materially assist in protecting children generally from abduction in armed conflict. However, although we do not consider that ICL protections need to be expanded we consider, below, whether States Parties to the CRC should be encouraged to prohibit child abduction as a matter of domestic law: see paragraph 6.27.2. 6.20  As noted at paragraph 6.13.2 above, we consider that the law could be clarified if a definition of ‘abduction’ was adopted. This is likely to assist in enhancing domestic implementation and accountability. C.  International Human Rights Law 1.  The Legal Framework 6.21  There are only two IHRL treaties – the CRC and the African Charter on the Rights and Welfare of the Child (ACRWC)43 – that contain a specific prohibition on child abduction itself, ie on the act of taking a child. Thus: 6.21.1  CRC. Article 35 provides, ‘States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.’ Abduction is not defined. Notably: (i) there is no requirement that the child should be abducted across an international frontier or retained in a foreign jurisdiction (this is consistent with the MRM field manual ­definition);44 (ii) ‘for any purpose’ in this prohibition means that there is no need for 43 African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, entered into force 29 November 1999) OAU Doc CAB/LEG/24.9/49 (ACRWC). 44 It is clear from the CRC’s travaux préparatoires that the States Parties considered ‘abduction’ at Art 11, CRC, as applicable to international abduction only, and ‘abduction’ at Art 35, CRC, as applicable to international abduction and abduction within one state. The CRC’s travaux préparatoires show that the inclusion of the word ‘abduction’ in Art 35 was the subject of much debate. For example: Austria and Finland observed that ‘abduction’ was a broad notion which covered delicate and controversial matters, including parental child abduction; they noted that use of the term ‘abduction’ in existing conventions on parental child abduction made it inappropriate in the context of Art 35. Venezuela felt that attention should be paid to child disappearance; noting that abduction in Art 11 referred solely to abduction by a parent, whilst abduction at Art 35 was aimed at covering child abduction in any form and for any purposes dealing with profit. Delegations of the USA and the International Commission of Jurists pointed out that Art 11 applied to international abduction only, and that draft Art 35 would apply to both international abduction and to abduction within one country. See UN Doc E/AN.4/1987/25, paras 80–83, available at (note that at the time this document was produced, what is now Art 11 was Art 6 ter; what is now Art 35, was discussed as ‘draft article B’ and Art 18 quater). See also Detrick (n 10), 604. See also UNICEF, Implementation Handbook for the Convention on the Rights of the Child (3rd edn, 2007), which considers child abduction in situations of armed conflict under this provision. Note in particular the comments that Art 35 ‘also requires measures to deal with internal abductions within the jurisdiction’ and that the conscription of children into armed forces is ‘arguably an abduction of children’ (532 and 537), available at .

295

6.22  Child Abduction the taking to be for the purpose of ‘exploitation’ (cf MRM field manual definition above, paragraph 6.7.2) and (iii) ‘in any form’ at the end of Article 35 indicates the broad reach of the provision. 6.21.2  ACRWC. Article 29 calls on governments to take ‘appropriate measures to prevent the abduction, the sale of, or traffic of children for any purpose’. Abduction is not defined. Again, however, there is no requirement for the child to be abducted across an international frontier or retained in a foreign jurisdiction and no need for ‘exploitation’. 6.22  Other IHRL treaties protect against abduction indirectly, by prohibiting conduct that is likely to include, as a prerequisite, child abduction. For example: 6.22.1  Removal for the purposes of recruitment and use in hostilities. See Chapter 4. 6.22.2  Removal for the purpose of rape and sexual violence. See Chapter 5. 6.22.3  Removal for the purposes of trafficking of children. Trafficking is defined in a number of treaties, including the following: (i) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention Against Transnational Organised Crime (the Trafficking Protocol):45 Article 3(a) defines trafficking in persons as the ‘recruitment, transportation, transfer, harbouring or receipt of persons by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs’.46 Article 3(c) adds, ‘[t]he recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a)’.47 The Trafficking Protocol does not require, in the definition of trafficking, that it take place across borders. However, it requires States to criminalise trafficking only insofar as it is transnational (and involves an organised criminal group): see Articles 4 and 5. (ii) Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (OPSC):48 Articles 1–3

45 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United National Convention against Transnational Organised Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319, treaty text and details of parties and signatories available at . 46 Emphasis added. 47 See John Cerone, ‘Human Trafficking’ (2007) Max Planck Encyclopaedia of Public International Law for consideration of the drafting of Trafficking Protocol. 48 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (adopted 25 May 2000, entered into force18 January 2002) 2171 UNTS 227 (OPSC). The text of the Protocol and details of signatories available at .

296

Legal Framework  6.22 require States Parties to prohibit and criminalise the sale of children. Article 2 defines the sale of children as ‘any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration.’49 (iii) ILO Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO 182):50 Articles 2 and 3 define ‘child’ as anyone under the age of 18 and ‘the worst forms of child labour’ as including ‘all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict’. (iv) The Council of Europe Convention on Action Against Trafficking in Human Beings 2008 (the CoE Trafficking Convention):51 Article 4 defines ‘­trafficking in human beings’ and ‘child’ in the same terms as the Trafficking Protocol. Article  18 requires Parties to criminalise the intentional trafficking of persons. Articles 36–38 establish a monitoring mechanism, which is considered below at paragraph 6.48.3. 6.22.4  Removal for the purposes of slavery. Slavery is prohibited by a number of international instruments. These include Article 2, Slavery Convention (which requires High Contracting Parties to undertake to prevent and suppress, so as to completely abolish, the slave trade)52 and Article 1, Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions Similar to Slavery (which requires States Parties to bring about the complete abolition of slavery).53 Other treaties include: Article 4(1), European Convention on Human Rights (ECHR); Article 8, International Covenant on Civil and Political Rights (ICCPR); Article 6(1), American Convention on Human Rights (ACHR); Article 5, African Charter on Human and Peoples’ Rights (ACHPR) and Article 3(a), ILO 182. 6.22.5  Removal for the purposes of forced labour. A number of treaties prohibit forced labour. For example, three ILO Conventions require Members to suppress

49 A child is defined as any person under the age of 18: Art 1, CRC. 50 C182 Worst Forms of Child Labour Conventions 1999 (No 182) (adopted 17 June 1999, entered into force 19 November 2000), available at . 51 Council of Europe Convention on Action Against Trafficking in Human Beings, CETS No 197 (adopted 16 May 2005, entered into force 1 February 2008), available at . 52 The Slavery Convention (adopted 25 September 1926, entered into force 9 March 1927) 60 LNTS 253. Note that there have been subsequent amendments to the 1926 text: . 53 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (adopted 7 September 1956, entered into force 30 April 1957) 266 UNTS 3. Art 1(d), requires States Parties to take all practicable and necessary legislative and other measures to bring about the complete abolition of ‘[a]ny institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.’

297

6.23–6.24  Child Abduction and/or abolish forced or compulsory labour: the Forced Labour Convention;54 the Convention on the Abolition of Forced Labour;55 and Article 3(a), ILO 182. See also Article 4(2), ECHR; Article 8(3), ICCPR and Article 6(2), ACHR and Article 15, ACHPR.56 6.22.6  Removal as part of enforced disappearance. Enforced disappearance is specifically prohibited by the Convention for the Protection of All Persons from Enforced Disappearance57 and the Inter-American Convention on Forced Disappearance of Persons.58 It is not specifically protected under general IHRL treaties, although general protection regarding the act of enforced disappearance is included within other rights, such as the right to personal liberty and security. 6.22.7  Removal for the purpose of or as part of arbitrary detention. A number of treaties prohibit arbitrary detention.59 6.23  Finally, abduction is also likely to engage the treaty law and CIL prohibitions on inhuman and degrading treatment in relation both to the children themselves and their families.60 6.24  We note that there is some evidence supporting a rule of CIL prohibiting ­abduction61 but it is debateable whether such a rule exists. 54 Art 1, Forced Labour Convention (1930) No 29 (adopted 28 June 1930, entered into force 1 May 1932) 39 UNTS 55, available at . 55 Arts 1 and 2, Abolition of Forced Labour Convention (1957) No 105 (adopted 25 June 1957, entered into force 17 January 1959), available at . 56 Art 15, African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) OAU Doc CAB/LEG/67/3 (ACHPR) does not prohibit forced labour but provides for the right to work under equitable and satisfactory conditions and to receive equal pay for equal work. 57 Arts 1 and 2, International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 December 2006, entered into force 23 December 2010) 2716 UNTS 27163. 58 See Arts I and II, the Inter-American Convention on the Forced Disappearance of Persons A No 60 (adopted 9 June 1994, entered into force 28 March 1996). The text of the Convention is available here . Details of ratifications are available here . 59 See Art 37(b), CRC; Art 5(1), ECHR; Art 9(1), ICCPR; Art 7, ACHR and Art 6, ACHPR. See UN Human Rights Committee (UNHRC), CCPR General Comment No 29 ‘Article 4 Derogations during a State of Emergency’ (31 August 2001) UN Doc CCPR/C/21/Rev.1/Add.11. ICCPR case law illustrates the fact that child abduction may be included within the scope of the more general protection of Art 9, ICCPR. For example: (1) In Quinteros v Uruguay (107/81) a mother submitted a complaint to the UNHRC on behalf of herself and her daughter, who had been abducted by Uruguayan security forces and (at the time of the decision) had not been released. The UNHRC found a violation of Arts 7, 9 and 10(1), ICCPR. With respect to the mother, the UNHRC noted the ‘anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts’; as a result, they held that ‘she too is a victim of the violations of the Covenants suffered by her daughter’ (at para 14). (2) López Burgos v Uruguay (52/79) and (3) Casariego v Uruguay (56/79), in which the UNHRC held that illegal abduction by state organs was a violation of Art 9(1), ICCPR. 60 See, for example: (1) Kurt v Turkey App no 24276/94 (1999) 27 EHRR 373 in which the ECtHR considered the disappearance/kidnap of the applicant’s son by the Turkish security forces. The ECtHR found, inter alia, a violation of Art 3 (prohibition of torture and degrading treatment) on the part of the applicant (ie the disappeared person’s mother). And (2) Orhan v Turkey App no 25656/94 (ECtHR, 18 June 2002) in which the ECtHR considered the destruction of the applicant’s village by a military convoy and the disappearance of his two brothers and his son. The ECtHR found, inter alia, a violation of Art 3 (prohibition of torture and degrading treatment) concerning the applicant (the abducted person’s father and brother). 61 See, eg, ‘In those provisions of the [ICCPR] that are not listed in article 4, paragraph 2, there are elements that in the Committee’s opinion cannot be made subject to lawful derogation under article 4.

298

Legal Framework  6.25–6.26 2.  Problems and Deficiencies in the Legal Framework 6.25  As noted above, IHRL, unlike IHL, does expressly prohibit the act of abduction itself, ie regardless of whether it leads to other prohibited acts. However, there are arguably two gaps in the existing IHRL legal framework: (i) there is no definition of ‘abduction’ in the context of armed conflict and, (ii) the specific IHRL treaty provisions regarding child abduction in armed conflict, in the CRC and the ACRWC, do not define the meaning or scope of the ‘appropriate measures’ that are required to be taken thereunder. For the reasons developed below at paragraph 6.26ff, we conclude that, 6.25.1  First, neither of these gaps appear to have led to a deficiency in the substantive protection (however see the problems in accountability below, paragraph 6.51ff) regarding child abduction. Arguably, therefore, the existing legal framework does not require amendment to remedy these gaps. 6.25.2 However, second, we consider that it is desirable to remedy these gaps in order to provide comprehensive protection regarding child abduction. We consider that it is more important to define abduction than to define the meaning of ‘appropriate m ­ easures’ for the reasons set out below. 6.26  As to our first conclusion, that these gaps have not led to a deficiency in the substantive protection available to children: 6.26.1  As to (i), and the lack of an IHRL definition of ‘abduction’ in the context of armed conflict: despite this definitional gap, there appears to be adequate general understanding regarding the definition of ‘abduction’. 6.26.2  As to (ii), and the lack of definition of ‘appropriate measures’ in both the CRC and the ACRWC: we consider that this is unlikely to limit the protection that should be provided by States Parties because: (a) the extent of the prohibition on child abduction itself is clearly articulated in the CRC and ACRWC and, as a result, (b) States Parties appear to have used their discretion to develop prohibitions on abduction that are suitable to their domestic legal framework and implementation processes – and which are important since they could be applicable in a NIAC. For example, with regard to the CRC, many states (for example Ecuador,62 Denmark,63

Some illustrative examples are presented below … (b) The prohibitions against taking of hostages, abductions or unacknowledged detention are not subject to derogation. The absolute nature of these prohibitions, even in times of emergency, is justified by their status as norms of general international law’ (para 13b; emphasis added). See UNHRC, CCPR General Comment No 29 ‘Article 4: Derogations during a State of Emergency’ (31 August 2001) UN Doc CCPR/C/21/Rev.1/Add.11. 62 Ecuador’s Comprehensive Criminal Code protects against abduction through prohibitions on various forms of trafficking (including for sexual exploitation, labour exploitation, promise of marriage, debt bondage, illegal adoption and forced recruitment). This is implemented in a number of ways, including a regional action plan to combat trafficking and a national plan for the prevention and punishment of trafficking in persons: see CRC Committee, ‘Consideration of Reports Submitted by States Parties under Article 44 of the Convention Combined Fifth and Sixth Periodic Reports of States Parties due in 2016: Ecuador’ (22 May 2017) CRC/C/ ECU/5-6, para 192ff. 63 Denmark protects against abduction through criminalising trafficking. It launched an action plan to combat human trafficking in 2015. This plan includes training for the police and others whose work may bring them into contact with trafficked persons: see CRC Committee, ‘Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Fifth Periodic Reports of States Parties due in 2016: Denmark’ (14 October 2016) CRC/C/DNK/5, para 173ff.

299

6.27  Child Abduction Tajikistan64) have taken domestic measures to implement Article 35. Although we have not conducted a review of all domestic implementation measures, it appears that states generally protect against abduction indirectly, through prohibitions on trafficking. 6.27  As to our second conclusion, that it is nonetheless desirable to enhance protection against child abduction by remedying these gaps: 6.27.1  As to (i) and the lack of an IHRL definition of ‘abduction’ in the context of armed conflict: although there may be general understanding regarding the meaning of ‘abduction’ we consider that it is desirable, to ensure clarity and uniform and coherent development of the related rules of law, to define the concept. For the reasons set out above, paragraph 6.7, we consider that a useful definition of child abduction is provided in the MRM field manual, subject to our suggested amendment. 6.27.2  As to (ii) and the lack of definition of ‘appropriate measures’ in either Article 35, CRC and Article 29, ACRWC: (i) Although neither of these provisions defines the meaning or scope of ‘appropriate measures’, there are at least other aids to interpreting the phrase.65 First, Article 4, CRC, requires States Parties to ‘undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention’. Second, what is to be regarded as ‘appropriate’ is clearly context-sensitive; this is illustrated by a General Comment considering the treatment of unaccompanied children outside their country of origin in which the CRC stated that:66 necessary measures [to be undertaken under Article 35] include identifying unaccompanied and separated children; regularly inquiring as to their whereabouts; and conducting information campaigns that are age-appropriate, gender-sensitive and in a language and medium that is understandable to the child. Adequate legislation should also be passed and effective mechanisms of enforcement should be established with respect to labour regulations and border crossing.



Applied to abduction, we suggest that ‘appropriate’ measures may require further consideration of how to prevent abduction and further consideration of domestic measures by which abducted children should be identified, treated and assisted (this is especially urgent when the abduction has been transnational and the child is taken to a foreign country).

64 Tajikistan adopted a law in 2014 which provides that the child victims of human trafficking shall enjoy the rights and freedoms guaranteed by the international legal instruments governing children’s rights that are recognised by Tajikistan. This law is supported by a number of initiatives, including an action plan to strengthen efforts to combat human trafficking: see CRC Committee, ‘Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Combined Third to Fifth Periodic Reports of States Parties due in 2015: Tajikistan’ (28 September 2016) CRC/C/TJK/3-5, para 358ff. 65 Art 46, ACRWC provides that the Committee of Experts will draw inspiration from, inter alia, the CRC. 66 CRC Committee, General Comment No 6: ‘Treatment of Unaccompanied and Separated Children Outside their Country of Origin’ (1 September 2005) UN Doc CRC/GC/2005/6. See also: (a) CRC Committee, ‘Report on the 22nd Session’ (7 December 1999) UN Doc CRC/C/90, in which the Committee sets out detailed conclusions and recommendations on general measures of implementation to be undertaken by States Parties (para 291) and (b) CRC Committee, General Comment No 5 ‘General Measures of Implementation of the Convention on the Rights of the Child’ (27 November 2003) UN Doc CRC/GC/2003/5.

300

Legal Framework  6.28–6.31 (ii) It would be desirable – in order to ensure that the scope of CRC and the ACRWC is clear and susceptible of practical and consistent implementation across States Parties to those treaties – if this kind of (or other) clarification could be given regarding the phrase ‘appropriate measures’. We consider the potential mechanisms for doing this below, paragraph 6.28ff. (iii) States Parties to the CRC and ACRWC should incorporate and implement the prohibition on child abduction as set out at Article 35, CRC, and Article 29, ACRWC so that violations of the prohibition – to include domestic abduction and international abduction – can be enforced in domestic courts. Given the existing framework on trafficking and the likelihood that there are domestic laws prohibiting the taking of children without parental consent, this is unlikely to require major amendment to existing laws. The extent of implementation may be monitored by the Committees. The importance of requiring this route to implementation is that – in addition to domestic courts, and provided that the competence of the Committees is recognised – there will be another layer of potential scrutiny and accountability, viz, the CRC Committee and the ­African Committee. This should assist in the development of consistent standards and implementation practices, internationally. An express domestic prohibition on child abduction in armed conflict provides a framework within which the obligation to take ‘appropriate measures’ can, and should, be developed and monitored. This can be done by the Committees with a particular emphasis on, for example, ways in which abductees may be assisted and rehabilitated. 3.  Suggestions to Improve the Legal Framework 6.28  In light of the above, paragraphs 6.25ff, we suggest that the existing IHRL framework should be developed so as to (i) define abduction and (ii) clarify the obligation in Article 35, CRC and Article 29, ACRWC by providing guidance on the scope of ‘appropriate measures’ in the context of armed conflict. 6.29  With regard to the CRC: (i) abduction could be defined by the CRC Committee, for example, by way of a General Comment, and (ii) the scope of ‘appropriate measures’ (in Article 35, CRC) could be developed in the General Comment or by the Special Representative for Children and Armed Conflict, who could (potentially in conjunction with the CRC Committee) identify measures suited to addressing the consequences of abduction in armed conflict on children and the way in which such measures should be domestically implemented. 6.30  With regard to the ACRWC: both the definition of child abduction and the scope of ‘appropriate measures’ (in Article 29, ACRWC) could be considered by the African Committee of Experts, also by way of a General Comment (whether separate or jointly with the CRC). 6.31  Alternatively, and if there is a new international instrument on children in armed conflict, we suggest that it could contain a definition of child abduction in armed conflict as a clarification to the prohibition contained in Article 35, CRC.

301

6.32–6.34  Child Abduction D.  Soft Law 6.32  In addition to the legal framework described above, there are a number of soft law initiatives that aim to assist in, amongst other things, preventing child abduction in armed conflict. We include an example below to illustrate the content of such instruments. As noted in Chapter 2, paragraph 2.61, the endorsement or adoption of this kind of soft law instrument does not generally bind a state on the plane of international law but soft law may be helpful in assessing the policy or legal aspirations of states/institutions and may, ultimately, contribute to the development of substantive legal norms. 6.33  The Safe Schools Declaration.67 This declaration was adopted in Oslo on 29  May  2015 and was the result of a process led by the governments of Norway and Argentina. It is an inter-governmental political commitment that provides countries with the opportunity to express their support for: protecting students, teachers, schools and universities from attack during times of armed conflict; ensuring the continuation of safe education during armed conflict; and implementing concrete measures to deter the military use of schools. Currently, 74 States have endorsed the declaration.68 Those signatories agree to undertake initiatives to prevent or respond to attacks on schools, including abduction from schools (however, there is no special focus on abduction in the ­declaration). See further Chapter 7. III.  ACCOUNTABILITY MECHANISMS

6.34  For a general overview of accountability mechanisms see Chapters 2 and 9. In the sections below we set out illustrations of the ways in which existing accountability mechanisms have been used in relation to child abduction in armed conflict, organised along the spectrum explained in Chapter 2, at paragraph 2.85, and grouped by reference to IHL, ICL and IHRL (the inevitable overlap between these categories is reflected through cross references in the section below). We then go on to consider specific problems with those existing mechanisms, as they arise in the context of this Chapter, and finally, make suggestions for improvement.

67 The Safe Schools Declaration is available at . 68 See here for the text of the Declaration and a list of endorsing states . Of the endorsing states at least 14, ie Afghanistan, Angola, Armenia, Central African Republic, Chad, DRC, Kenya, Lebanon, Mozambique, Nigeria, Palestine, Somalia, South Sudan and Sudan are currently experiencing some form of armed conflict. The Global Coalition to Protect Education from Attack provides further information on the Declaration here , where there is also a link to the relevant guidelines. Geneva Call has also published a booklet – intended to serve as guidance to fighters and leaders of non-state armed groups – to ensure the protection of education in armed conflict. It is based on the guidelines to the Declaration and is available here .

302

Accountability Mechanisms  6.35–6.37 A.  Application of Accountability Mechanisms 1.  IHL Accountability Mechanisms Adjudicative Accountability Mechanisms 6.35  Domestic courts. As we have noted elsewhere in this book: domestic courts have the strongest enforcement powers but a review of domestic case law and the extent to which domestic legal systems have implemented related IHL, ICL or IHRL norms, is beyond the scope of this book: see further Chapter 9. 6.36  International and regional courts. We have not found any case law of international and regional courts that directly considers breaches of IHL relating to child abduction in armed conflict (although IHL is considered in the case law of the ICL and IHRL courts set out below). This is unsurprising in light of the lack of an express prohibition on child abduction in IHL. Other Accountability Mechanisms 6.37  UN Security Council. There are three principal ways in which the UNSC has contributed to accountability for IHL violations regarding children in armed conflict. The first is by expressions of concern and condemnation of such violations. The second is by the imposition of sanctions. The third is through the Working Group. We consider each of these below. 6.37.1  Expressions of concern and condemnation of violations of international law regarding children in armed conflict. In two UNSC Resolutions on children and armed conflict, unanimously adopted in 2004 and 2005,69 the UNSC strongly condemned the abduction of children in armed conflict and welcomed regional and sub-regional initiatives to end abduction of children, urging Member States, UN entities and other organisations to take appropriate measures to control abduction of children. 6.37.2  Sanctions. The UNSC has included abductions as designation criteria in the resolutions by which it imposed sanctions regarding the Central African Republic,70 Democratic Republic of Congo,71 Somalia,72 and South Sudan.73 6.37.3  Working Group on Children in Armed Conflict. In recent Conclusions, the Working Group expressed strong condemnation of, and grave concern, about child abduction in, for example, Afghanistan,74 the Central African Republic,75 Iraq.76 69 UNSC Res 1539 (22 April 2004) UN Doc S/RES/1539, paras 1, 3, and 12(e), and UNSC Res 1612 (26 July 2005) UN Doc S/RES/1612, paras 13, 16. 70 UNSC Res 2339 (27 January 2017) UN Doc S/Res/2339, para 17(b). 71 UNSC Res 2293 (23 June 2016) UN Doc S/Res/2293, para 7(e). 72 UNSC Res 2002 (29 July 2011) UN Doc S/RES/2002, para 1(e) and UNSC Res 2093 (6 March 2013) UN Doc S/RES/2093, para 43(e). 73 UNSC Res 2206 (3 March 2015) UN Doc S/Res/2206, para 7(d). 74 UNSC, Working Group on Children and Armed Conflict, ‘Conclusions on children and armed conflict in Afghanistan’ (11 May 2016) UN Doc S/AC.51/2016/1, para 9(b). 75 UNSC, Working Group on Children and Armed Conflict, ‘Conclusions on children and armed conflict in the Central African Republic’ (19 December 2016) UN Doc S/AC.51/2016/3, paras 3, 8(a), (g), 9(c). 76 UNSC, Working Group on Children and Armed Conflict, ‘Conclusions on children and armed conflict in Iraq’ (18 August 2016) UN Doc S/AC.51/2016/2, paras 7(b), 8(a).

303

6.38–6.42  Child Abduction 6.38  MRM. In 2015, following the unanimous adoption of a UNSC Resolution, child abduction was included as a trigger for listing parties in the Secretary-General’s annual report.77 The MRM has led to the collection of information on instances of child abduction in those countries in which the MRM is established. In summary, since 2012, the MRM has reported high numbers of abductions in Afghanistan (the numbers of abductions in Afghanistan increased almost fourfold from 2015–16), Somalia and South Sudan. 6.39  Special Representative for Children and Armed Conflict. No global campaign has yet been initiated by the Special Representative for Children and Armed Conflict in relation to the issue of child abduction. 6.40  UN General Assembly. In Resolutions adopted in 2003, 2006 and 2007, the UNGA urged states to take special measures to protect girls from abduction and forced labour.78 In the supplement to a Resolution adopted in 2007 on youth policies and programmes the UNGA noted that youth are among the main victims of armed conflict partly by reason of their vulnerability to abduction.79 In Resolutions adopted in 2006 and 2007 on the rights of the child, the UNGA condemned the abduction of children, particularly in situations of armed conflict.80 6.41  Secretary-General’s Annual Reports. A number of the Secretary-General’s annual reports on children and armed conflict have strongly condemned the abduction of children. As detailed above at paragraph 6.1, the Secretary-General’s most recent annual report expressed concern at continuing large-scale abduction. 6.42  Regional guidelines and protocols. We note two examples of relevant guidelines/ protocols. 6.42.1  EU Guidelines on Children in Armed Conflict.81 Paragraph 10 of the Guidelines requires EU Heads of Mission, Heads of Mission of civilian operations, EU Military Commanders and EU Special Representatives to include in their periodic reports details of abduction of children and the measures taken to combat abduction by the relevant parties. 6.42.2  The Minnesota Protocol.82 Revised in 2016, the Minnesota Protocol aims to promote the effective investigation of potentially unlawful death, but its provisions also apply to suspected enforced disappearance.83 It provides a common standard for investigations and a set of principles and guidelines for those conducting the investigation.

77 UNSC Res 2225 (18 June 2015) UN Doc S/RES/2225; a summary of the day-long debate surrounding adoption of the Resolution is available here: . The debate noted the need to reintegrate abducted children upon their release. 78 UNGA Res 58/156 (22 December 2003) UN Doc A/RES/58/156, para 15; UNGA Res 60/141 (11 January 2006) UN Doc A/RES/60/1419 para 15; UNGA Res 62/140 (18 December 2007) UN Doc A/RES/62/140, para 19. 79 UNGA Res 62/126 (18 December 2007) UN Doc A/RES/62/126, Annex, para 44. 80 UNGA Res 61/146 (19 December 2006) UN Doc A/RES/61/146, para 16; UNGA Res 62/141 (18 December 2007) UN Doc A/RES/62/141, para 53. 81 The EU Guidelines on Children in Armed Conflict are available at: . 82 The Minnesota Protocol is available at: . 83 Section 1, paras 1–2.

304

Accountability Mechanisms  6.43–6.45 6.43  ICRC. The consequences of abduction – including transnational displacement, tracing and reunification – are governed by specific laws and international policies.84 As part of the Restoring Family Links Movement, the ICRC takes a lead role in assisting persons separated from their families; wherever required, it carries out direct action to provide this assistance. Another part of the ICRC’s role in the Movement is ensuring the operation of the Central Tracing Agency (which is provided for in the Geneva Conventions).85 The Agency collects and receives information about prisoners of war and protected civilians and transmits it to the prisoner/protected person’s country of origin. It also acts as coordinator of the National Societies of the Red Cross and Red Crescent and decides what action is to be taken in situations of armed conflict to restore family links.86 2.  ICL Accountability Mechanisms Adjudicative Accountability Mechanisms 6.44  Domestic courts. See above, paragraph 6.35, regarding domestic enforcement and implementation. 6.45  International courts and tribunals. Examples of cases in which child abduction has been considered in the context of ICL are as follows. 6.45.1  International Criminal Court (ICC). In Prosecutor v Dominic Ongwen,87 Ongwen is charged with 70 counts of war crimes, including forced marriage and the conscription and use of children. Factual allegations include the abduction of girls and women (for example, to serve as domestic servants and sexual slaves) and abduction of children under the age of 15 for the purposes of recruitment into an armed group.88 The trial began in January 2017 and is ongoing. 6.45.2  Special Court for Sierra Leone (SCSL). In Prosecutor v Brima, Kamara, and Kanu89 Brima and others were convicted of, amongst other things, the conscription of children under the age of 15 into armed forces or groups or using them to participate actively in hostilities; this was upheld on appeal. In Prosecutor v Taylor,90 Taylor was convicted of various crimes involving child abduction, for example sexual violence and enlisting and recruiting ‘child soldiers’. The Court found that the fighting forces raped large numbers of girls, several of whom were also captured or abducted; that an unknown number of women and girls were abducted or forcefully detained and used 84 For example, asylum and refugee law, provisions of the CRC, General Comments of the CRC Committee and the IHL right to family reunification (see Art 74, API; Art 4(3)(b), APII; Arts 25, 26, 140, GCIV). 85 See Art 16, GCI; Art 123, GCII; Art 140, GCIV; Art 33, API. 86 See website of Restoring Family Links, available at . 87 Prosecutor v Dominic Ongwen, Decision on the Confirmation of Charges against Dominic Ongwen, ICC-02/04-01/15 (23 March 2016). Documents for the case can be found here: . 88 See the ‘Alleged Crimes’ section of the Case Information Sheet , and Ongwen, Decision on the Confirmation of Charges against Dominic Ongwen (n 87), s III. 89 Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (the AFRC Accused), Trial Chamber, Judgment, SCSL-04-16-T (20 July 2007). 90 Prosecutor v Charles Ghankay Taylor, Trial Chamber II, Judgment, SCSL-03-01-T (18 May 2012).

305

6.46–6.47  Child Abduction as sexual slaves and that throughout 1996 and 1997 they continuously abducted and trained children below the age of 15 to fight as soldiers.91 3.  IHRL Accountability Mechanisms Adjudicative Accountability Mechanisms 6.46  Domestic courts. See above, paragraph 6.35, regarding domestic enforcement and implementation. Article 4, CRC requires that States Parties ‘shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention’. This applies to Article 35, CRC. To the extent that states recognise breaches of IHRL as breaches of domestic law, ‘hard’ accountability may be achieved through the relevant domestic courts. A review of the ways in which states have or have not met this obligation (and the effectiveness of domestic accountability mechanisms) is beyond the scope of this book. 6.47  Regional courts. Examples of cases in which child abduction has been considered in the context of IHRL are as follows. 6.47.1  European Court of Human Rights (ECtHR). The claim in Ukraine v Russia (II),92 pending before the ECtHR, alleges that the abduction, by armed representatives of the separatist forces in Eastern Ukraine, of three groups of children in Eastern Ukraine and their temporary transfer to Russia on three occasions between June and August 2014 violated the ECHR. Reliance is placed on Articles 2 (right to life); 3 (prohibition on torture); 5 (right to liberty and security); 8 (respect for private and family life) and Article 2 of Protocol No 4 (freedom of movement), ECHR. 6.47.2  Inter-American Court of Human Rights (IACtHR). The IACtHR has decided a number of cases featuring child abduction in armed conflict. For example: (i) In Molina-Theissen v Guatemala93 the court considered the forced disappearance of a 14-year old boy in Guatemala. The boy was kidnapped by members of the Guatemalan Army during a period of internal conflict in the country. It held, in accordance with the acknowledgment of responsibility by the state, that a number of ACHR provisions were violated, including Articles 4(1) (right to life), 5(1) and (2) (right to humane treatment), 7 (right to personal liberty), and 19 (rights of the child).94 The court ordered that as part of its reparation, the state must (inter alia) (i) investigate the facts of the case, with the aim of identifying, trying and punishing the direct perpetrators and masterminds of the forced disappearance and that the results of this process must be made public; (ii) publicly acknowledge

91 See, eg, 346ff (in particular, paras 983–84, 989, 1016, 1060, 1066, 1073, 1089, 1092, 1098, 1102, 1108, 1127, 1367); 496ff (in particular, paras 1367, 1378, 1393, 1418, 1424, 1432, 1434, 1596ff) of the Trial Judgment (n 90). 92 Ukraine v Russia (II) App no 43800/14. See the Press Release issued by the Registrar of the ECtHR (26 November 2014) ECHR 345, at . 93 Molina-Theissen v Guatemala (Judgment, Reparations and Costs), Inter-American Court of Human Rights Series C No 106 (4 May 2004). 94 For detailed consideration of the judgment see Sonja Grover, The Torture of Children During Armed Conflicts (Berlin, Springer, 2014), para 5.2.1.

306

Accountability Mechanisms  6.48 international responsibility; (iii) name an educational centre after the disappeared children and (iv) pay compensation.95 (ii) In Case of the ‘Las Dos Erres’ Massacre v Guatemala96 the court considered the massacre of 251 inhabitants of the community of Las Dos Erres, in 1982, perpetrated by the specialised group within the armed forces of Guatemala, named kaibiles. In the context of the massacre, one of the kaibiles abducted a six-year old survivor. The court noted (and considered it relevant factual background to the case under consideration) that in Guatemala there was a pattern of separation of children from their families and abduction and illegal retention of those children. This abduction was sometimes perpetrated by the same soldiers that participated in the massacres and in some cases the children’s names were changed and their identities denied.97 The court held that the state had violated a number of the abducted child’s rights under the ACHR, including Article 5(1) (right to humane treatment) and Articles 17 and 18 (rights of the family and to a name).98 It reiterated the ‘special gravity’ of the state’s systematic tolerance of abduction and illegal retention within its territory and its failure to adopt positive measures to prevent this practice.99 The court ordered that as part of its reparations, the state must (inter alia) (i) investigate the facts of the violations in a serious and effective manner and prosecute and punish those responsible; (ii) create a webpage for the search of children abducted and retained illegally and (iii) pay compensation.100 (iii) In Rochac Hernández et al v El Salvador101 the court considered the forced disappearance of four children between 1980 and 1982 during the internal armed conflict in El Salvador. It held that a range of rights had been violated. 6.48  Treaty bodies. 6.48.1  African Committee of Experts on the Rights and Welfare of the Child. To date the Committee has not heard any individual communications regarding the violation of Article 29, ACRWC. The Committee’s General Comments have not addressed child abduction. In the report following its investigatory mission to the Central African Republic to assess the situation of children in armed conflict, the Committee of Experts noted the abduction of children by the Lords Resistance Army.102 In the

95 See paras 58–61, 67–73, 87, 88, 98, 106(3), 106(5), 106(6). 96 Case of the ‘Las Dos Erres’ Massacre v Guatemala (Judgment, Reparations and Costs), Inter-American Court of Human Rights Series C No 211 (24 November 2009). 97 ibid, para 170ff. 98 ibid, paras 155–200, 214–16, 310(4)–(5) (where consideration is also given to the violations regarding another child survivor). 99 ibid, paras 198–99. 100 ibid, paras 271–74, 310(8), 310(17). 101 Rochac Hernández et al v El Salvador, (Judgment, Reparations and Costs), Inter-American Court of Human Rights Series C No 285 (14 October 2014). The judgment is only available in Spanish. Summary in English available at . As the judgment is only available in Spanish, we are unable to note the manner in which the court treated the question of abduction. 102 ACERWC, ‘Mission Report on the ACERWC to Assess the Situation of Children Affected by the Conflict in Central African Republic’ (December 2014), 16-17. See < http://www.refworld.org/docid/555c51244.html>.

307

6.49–6.51  Child Abduction report following its investigatory mission to South Sudan, the Committee noted the high instances of abduction of children generally and the vulnerability of adolescent girls particularly.103 We consider the role of the Committee further in Chapter 9. 6.48.2  CRC Committee. The General Comments issued by the CRC Committee have not addressed child abduction (cf our suggestion that child abduction should be defined in such a General Comment, see paragraph 6.29 above). The CRC Committee has not addressed any communications specific to child abduction. We consider the role of the Committee further in Chapter 9. 6.48.3  The Group of Experts on Action Against Trafficking in Human Beings (GRETA). Established by the CoE Trafficking Convention in 2008, the GRETA is a group of between 10 and 15 members whose role it is to monitor the implementation of the Convention by States Parties. It meets in plenary sessions three times a year, carries out visits to countries and publishes country reports evaluating legislative and other measures taken by parties to give effect to the provisions of the Convention. Other Accountability Mechanisms 6.49  In this section we do not repeat the material noted above which is equally applicable in the context of IHRL, for example the UNSC Resolutions, the Working Group and the MRM. 6.50  UN Commission on Human Rights.104 In Resolutions adopted in 2003, 2004 and 2005 on the abduction of children in Africa, the UN Commission on Human Rights (i) called for the release and safe return of abducted children; (ii) called upon A ­ frican states to protect children at risk of abduction (from both armed forces and nonstate armed groups) and increase cooperation to combat networks of abduction and (ii) requested African states to provide assistance to returning abductees, taking into account the special needs of girl abductees.105 In a further Resolution adopted in 2005 on the rights of the child, the UN Commission on Human Rights urged all parties to armed conflict to end all violations against children, including abduction.106 B.  Problems and Deficiencies in Accountability Mechanisms 6.51  General problems and deficiences in existing accountability mechanisms are considered in Chapter 9. Here we note two specific problems in the context of the issues considered in this Chapter. 103 ACERWC, ‘Report on the Advocacy Mission to Assess the Situation of Children in South Sudan’ (August 2014), 13, 16, 24, 25, available at . 104 The UN Commission on Human Rights was established in 1946, was composed of 53 Member States, could respond to a range of human rights problems and set standards to govern the conduct of States. It ceased to exist from 2006 when it was replaced by the UN Human Rights Council. 105 UN Commission on Human Rights Res 2003/85 (25 April 2003) UN Doc E/CN.4/RES/2003/85, paras 4, 5, 9; UN Commission on Human Rights Res 2004/47 (20 April 2004) UN Doc E/CN.4/RES/2004/47, paras 4, 5, 9; UN Commission on Human Rights Res 2005/43 (19 April 2005) UN Doc E/CN.4/RES/2005/43, paras 2, 4–6, 9. 106 UN Commission on Human Rights Res 2005/44 (19 April 2005) UN Doc E/CN.4/RES/2005/44, para 36.

308

Conclusion and Summary  6.52–6.56 6.52  First, we consider that the CRC Committee is under-used (the same applies to the ACRWC Committee). As noted above, paragraph 6.21 (and leaving aside genocide) the only express, existing prohibitions on child abduction in international law are contained in the CRC and the ACRWC. However, as considered further in Chapter 9, the mechanism of individual communications is rarely used in relation to the CRC Committee: for example, a search for decisions of the CRC Committee yields four results, which is no doubt partly because of the very limited ratification of the Optional Protocol to the CRC on a communications procedure (OP3). We also note that neither Committee has produced a General Comment to assist in the interpretation and consideration of child abduction in armed conflict. 6.53  Second, the UNSC’s use of targeted sanctions does not consistently cite abduction as a listing criteria. As noted above at paragraph 6.37.2, the Democractic Republic of Congo, Central African Republic, Somalia and South Sudan committees cite abduction as a listing criteria. However, the Iraq committee does not. This is despite the fact that, as noted above at paragraph 6.1, IS in Iraq is listed in the annexes to the SecretaryGeneral’s 2016 annual report on children and armed conflict as a party that carried out child ­abduction and is specifically noted as carrying out such abductions on a wide scale. C.  Suggestions to Improve Accountability Mechanisms 6.54  In light of our analysis above, we suggest that: 6.54.1 First, further ratification of OP3 should be encouraged to encourage recourse to the CRC Committee. 6.54.2  Second, the UNSC’s use of targeted sanctions may benefit from greater consistency in the use of abduction as a listing criteria. IV.  CONCLUSION AND SUMMARY

6.55  In conclusion, the findings and recommendations of this Chapter can be summarised as follows. 6.56  Recommendations on legal framework: • IHL (international humanitarian law): there is no definition of ‘abduction’ in the context of armed conflict. The law should be clarified by the identification of such a definition. The definition in the Monitoring and Reporting Mechanism (MRM) field manual (viz., ‘unlawful removal, seizure, capture, apprehension, taking or enforced disappearance of a child either temporarily or permanently for the purpose of any form of exploitation of the child’) should be adopted, subject to it being amended, at the end, to read ‘for the purpose of any form of exploitation of the child or a prohibited act’. The definition should state that the taking may be done by anyone (private citizen, armed forces or non-state armed groups), and that the taking of the child does not need to be across an international frontier and encompasses both domestic and international abductions. If there is to be a new international instrument on children 309

6.57  Child Abduction in armed conflict (as we have suggested), it should include a provision defining abduction and, if there is not, then the ICRC should consider whether to undertake work on such a definition. • ICL (international criminal law): there is indirect protection against child abduction and those prohibitions appear to cover the vast majority of potential child abductions in armed conflict but there is no definition of ‘abduction’. As suggested above, in relation to IHL, the adoption of such a definition would clarify the law. • IHRL: (1) International human rights law (IHRL), unlike IHL, does expressly prohibit the act of abduction itself, ie regardless of whether it leads to other prohibited acts. However, there is no IHRL definition of ‘abduction’ in the context of armed conflict. Although there may be general understanding regarding the meaning of ‘abduction’ the law could be clarified by defining the concept. As noted above, a useful starting point for a definition of child abduction is provided in the MRM field manual. A definition could be promulgated in a General Comment by the CRC Committee and the African Committee of Experts (whether separately or jointly with the CRC Committee). Alternatively, and if there is a new international instrument on children in armed conflict, we suggest that it could contain a definition of child abduction in armed conflict as a clarification to the prohibition contained in Article 35, Convention on the Rights of the Child (CRC). (2) The specific IHRL treaty provisions regarding child abduction in armed conflict, in the CRC and the African Charter on the Rights and Welfare of the Child (ACRWC), do not define the meaning or scope of the ‘appropriate measures’ that are required to be taken thereunder (under Articles 35 and 29, respectively). Applied to abduction, ‘appropriate’ measures may require (i) further consideration of how to prevent abduction and (ii) further consideration of domestic measures by which abducted children should be identified, treated and assisted. The scope of ‘appropriate measures’ could be developed, for example in General Comments by the CRC Committee or the African Committee of Experts. The Special Representative for Children and Armed Conflict could (potentially in conjunction with the Committees) identify measures suited to addressing the consequences of abduction in armed conflict on children and the way in which such measures should be domestically implemented. 6.57  Recommendations on international accountability mechanisms: • The only express, existing prohibitions on child abduction in international law are contained in the CRC and the ACRWC. However, the mechanism of individual communications is rarely used in relation to these Committees. Neither Committee has produced a General Comment to assist in the interpretation and consideration of child abduction in armed conflict. Further ratification of OP3 (the Optional Protocol on a communications procedure) should be encouraged so as to encourage greater use of the CRC Committee. • The UN Security Council’s use of targeted sanctions may benefit from greater consistency in the use of abduction as a listing criteria. 310

7 Attacks Against Hospitals and Schools ‘The real collateral damage of many conflicts over the past five years lies in the breakdown of basic services and infrastructure as well as in the disruption or loss of livelihoods.’1

I. Introduction II. General Rules Relevant to Attacks Against Hospitals and Schools III. Attacks Against Hospitals A. Legal Framework 1. IHL 2. ICL 3. IHRL B. Accountability Mechanisms 1. Application of Accountability Mechanisms 2. Problems and Deficiencies in Accountability Mechanisms 3. Suggestions to Improve Accountability Mechanisms IV. Attacks Against Schools A. Legal Framework 1. IHL 2. ICL 3. IHRL B. Accountability Mechanisms 1. Application of Accountability Mechanisms 2. Problems and Deficiencies in Accountability Mechanisms 3. Suggestions to Improve Accountability Mechanisms V. Conclusion and Summary

312 318 324 324 324 338 339 345 345 352 353 354 355 355 361 362 364 364 372 372 372

1 UN Security Council, ‘Report of the UN Secretary-General on the Protection of Civilians in Armed Conflicts’ (28 November 2005), UN Doc S/2005/740, para 5.

311

7.1–7.3  Attacks Against Hospitals and Schools I. INTRODUCTION

7.1  In 1996, the Machel Report included a call to ‘claim children as “zones of peace”’.2 It considered hospitals3 and schools4 to be particular ‘zones’ where peace is critical to ensuring that children benefit from and exercise their rights to education and health, guaranteed by international law. 7.2  Since 2011, the United Nations Security Council (UNSC) has expressly recognised ‘recurrent attacks on hospitals and schools’ as a grave violation in the context of children in armed conflict. It has urged parties to armed conflict to refrain from actions that impede children’s access to education and to health services and request[ed] the Secretary-General to continue to monitor and report, inter alia, on the military use of hospitals and schools in contravention of international humanitarian law, as well as on attacks against, and/or kidnapping of teachers and medical personnel.5 7.3  The importance of protecting hospitals and schools from attack is reflected in the specific prohibition on such attacks under international criminal law (ICL), as recognised by decisions of the International Criminal Tribunal for Yugoslavia (ICTY)6 and Rwanda (ICTR).7 It is also borne out in the rebuttable presumptions established by international humanitarian law (IHL): that hospitals and schools should be treated as civilian objects,

2 Graça Machel, ‘Impact of Armed Conflict on Children’ (26 August 1996) UN Doc A/51/150 (the Machel Report), para 318. 3 In relation to hospitals, the Machel Report noted, ‘[i]n most wars, and particularly in internal conflicts, health facilities come under attack, in direct violation of the Geneva Conventions … from 1982 to 1987 in Nicaragua, for example, 106 of the country’s 450 health units were eventually put out of service as result of complete or partial destruction, and a further 37 health posts were closed owing to frequent attacks’ (ibid, para 146). It further noted, ‘[a] concentration on military needs also means that children injured in a conflict may not get effective treatment or rehabilitation. Effects on general health care can be just as severe. Health services suffer from a shortage of personnel as health workers move to other areas or leave the country’ (ibid, para 147). 4 In relation to schools, the Report noted, ‘[s]chools are targeted during war, in part because they have such high profiles’ and the fact that in ‘rural areas, the school building may be the only substantial permanent structure, making it highly susceptible to shelling, closure or looting’: ibid, para 186. The destruction of schools and limitation of access to them has knock-on effects, such as increased recruitment of children as ‘soldiers’. For instance, the Report noted that at the time in Afghanistan, ‘approximately 90 per cent of ­children now ha[d] no access to schooling, [and] the proportion of soldiers who are children is thought to have risen in recent years from roughly 30 to at least 45 per cent’ (ibid). See also UNGA, ‘Children and Armed Conflict: Report of the Secretary-General’ (7 September 2001) UN Doc A/56/342-S/2001/852, para 2 (­identifying knock-on effects of the destruction of buildings critical to health and educational services, including the ­recruitment of children as ‘soldiers’). For recruitment and use, see Ch 4. 5 UNSC Res 1998 (12 July 2011) UN Doc S/RES/1998, paras 4 and 5. The UNSC’s shorthand also refers to ‘recurrent attacks or threats of attack against protected persons in relation to schools and/or hospitals’. See UNSC Res 1998 (12 July 2011) UN Doc S/RES/1998, para 3(b). However, ‘the military use of schools and hospitals … is not a criterion for listing’ (emphasis added) in the Secretary General’s annual report, but is simply a matter which the UNSC urged States to ‘monitor and report’ upon. See Office of the Special Representative of the SecretaryGeneral for Children and Armed Conflict, ‘Working Paper No. 1: The Six Grave Violations Against Children During Armed Conflict: The Legal Foundation’ (October 2009 (updated November 2013)), 20, available at ). All websites referred to in this Chapter were accessed in June–August 2017. 6 See, eg Prosecutor v Galić (Appeals Chamber Judgment), ICTY- IT-98-29-A (30 November 2006), at para 7.87 below. 7 See, eg Prosecutor v Nyiramasuhuko (Trial Judgment), ICTR-98-42-T (24 June 2011) at para 7.86.2 below.

312

Introduction 7.4–7.6 and therefore as entitled to protection (although, as we explain in paragraph 7.28 below, hospitals are also protected by more specific rules).8 These protections are substantial and significant but there are problems of non-compliance and lack of accountability. 7.4  This Chapter adopts this focus on the protection of hospitals and schools.9 The importance of good health and education10 for children exposed to armed conflict is self-evident. Indeed, the condemnation of attacks against hospitals and schools is long-standing.11 7.5  This Chapter deals with attacks against hospitals and schools, and associated contraventions of international law, in turn. This is because the legal regimes which govern them have distinct features and they raise different policy considerations. However, we begin by considering common themes and examining the scope for achieving consistent protections for children at both of these locations under IHL, ICL and international human rights law (IHRL). Domestic law, which is also important in achieving these protections, is outside the scope of this book: see Chapter 2, paragraph 2.3. 7.6  The structure of the Chapter is as follows: 7.6.1  Part II identifies those parts of the general legal framework of IHL, ICL and IHRL that are particularly relevant to attacks against hospitals and schools. This general framework provides the existing protections for hospitals and schools, which we identify as important and worthy of affirmation. 7.6.2  Part III analyses the specific legal framework and accountability mechanisms in relation to attacks against hospitals. It examines the relevant rules of IHL, ICL and

8 These presumptions are made explicit by the provisions on hospitals in the Geneva Conventions (see paras 7.28ff below), and in relation to schools by virtue of Art 52(3), Protocol Additional to Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (API) (see para 7.105 below). 9 It does not, therefore, consider other buildings or locations, attacks or threats against which may also pose particular risks to the sick and vulnerable, such as holy sites, religious institutions (other than schools) or refugee camps. 10 For instance, the Machel Report noted, ‘[w]hile all around may be in chaos, schooling can represent a state of normalcy’. See Graça Machel, ‘Impact of Armed Conflict on Children’ (n 2), para 185. The Secretary-General’s 2000 annual report recorded that ‘[t]he very routine of schooling, however informal, can be a therapeutic source of continuity and stability for children facing traumatic situations’. See ‘Report of the Secretary-General: Children and armed conflict’ (19 July 2000) UN Doc A/55/163-S/2000/712, para 44. See also Allison Anderson, Jennifer Hofmann, and Peter Hyll-Larsen, ‘The Right to Education for Children in Emergencies’ (2011) 2 Journal of International Humanitarian Legal Studies 84, 87–89. 11 For example, the Declaration on Children’s Rights (1923), included within its five key commitments that, ‘the child that is sick must be nurtured, [and] the child that is backward must be helped’. See Geneva Declaration of the Rights of the Child (adopted 26 November 1924) . Similarly, the 1946 draft Convention for the Protection of Children in the Event of International Conflict or Civil War proposed by the Bolivian Red Cross (and attached as Annex II to this book) recognised that the ‘overly deficient state of health and excessive mortality of children’ were reasons for action. To address this, it identified ‘medical assistance’ and ‘education’ as two specific forms of assistance that states should be required to provide to the victims of conflict: Annex 3 provided that children should have the right to the same medical assistance as troops of the country in which they are located and with a right of ‘priority’. Para 32 of Annex 3 provided that no party to a conflict should prevent or slow down the sending of medical assistance to children. Annex 4 of the draft Convention was dedicated to education and required children to have adequate buildings and materials as well as sufficient professional teachers (para 34): see Convention for the Protection of Children in the Event of International Conflict or Civil War, (Draft), Explanatory Note (1946) para 1 and preamble, para 1.

313

7.7–7.8  Attacks Against Hospitals and Schools IHRL in turn. Each section describes the key provisions of the law and the key existing accountability mechanisms; identifies problems and deficiencies with those rules and mechanisms, and makes recommendations for improvement. 7.6.3  Part IV adopts the same approach as Part III, in relation to attacks against schools. 7.6.4  Part V sets out our conclusions. 7.7  We begin with six introductory points. 7.8  First, the lack of clear definitions. There is a lack of clarity in what is meant by a ‘hospital’ or a ‘school’, although this is less pronounced in the case of hospitals (see paragraph 7.24 below). This lack of clarity leads to debate as to whether certain facilities are protected at all, which risks undermining the protection of these ‘zones of peace’:12 7.8.1  While the UNSC has explicitly identified ‘hospitals’ and ‘schools’ as places requiring special protection, it is not always clear on the ground which facilities are to be given this status or the circumstances in which they retain or lose it. Parties to armed conflicts may also make misleading assertions about the nature of facilities which are the object of attacks in order to remove their existing legal protections. 7.8.2  As we note in paragraphs 7.8.4–7.8.5 below,13 there is no specific definition for either hospitals or schools in the relevant treaties. This is probably because of the difficulty in capturing, in one definition, the numerous relevant permutations which may need to be taken into account.14 For example, the mere presence of medical personnel in a military building would not change its nature. Nor would all establishments used for training (including religious or military training) be deemed ‘schools’: an establishment used to train Al-Qaeda cells would not be intended to fall within the definitions of ‘school’ set out below. Furthermore, a practical change in the use of buildings during armed conflict may lead to a change in legal characterisation, for example, where there is (frequent) military use of hospitals and schools. 7.8.3  For the purposes of this book, we adopt the working definitions in the ‘Glossary of definitions relevant to SCR 1998 (2011)’, contained in the Special Representative for Children and Armed Conflict’s Guidance Note on attacks on hospitals and schools. We have done so since this is the most authoritative source on the meaning and application of UNSC Resolution 1998 of which we are aware. It does not appear to have led to any dissent or disagreement among UNSC members.15

12 See, eg Betcy Jose, ‘When Hospitals are Targets: How International Law Failed in Syria’, Foreign Affairs, May 10, 2016, available at , recording the statement by the Syrian government that ‘large parts of the east are held by jihadist rebels, including al Qaeda-linked Jabhat al-Nusra … Hospitals under their control are therefore considered legitimate targets.’ 13 In relation to hospitals, see also paras 7.24 to 7.27. 14 See (n 66) below. 15 The Office of the Special Representative for Children and Armed Conflict, ‘Protect Schools + Hospitals Guidance Note on Security Council Resolution 1998’ (2014), Annex II available at . This is – so far as we are aware – the most authoritative analysis of these terms in the context of UNSC Res 1998.

314

Introduction 7.9 7.8.4  The term ‘hospitals’ refers to the following. We note that this definition includes military hospitals (see further paragraph 7.24 below): all health care facilities, including medical units and services, whether military or civilian, fixed or mobile, permanent, ad hoc or temporary, aiming at the delivery of preventive and/ or curative medical care. The term includes, for example, hospitals in the strict sense of the word, medical depots, maternity wards, medical transports, blood transfusion centers, mobile vaccination and community-based services. Such health care facilities are known to the community as such and are not required to be recognized or authorized by parties to conflict; they may or may not be marked with the distinctive emblem of the Geneva Conventions or other context-specific identification.

7.8.5  The term ‘schools’ refers to the following: all learning sites and education facilities, as determined by the local context, including both formal and informal, secular and religious, providing early childhood, primary and ­secondary education, as well as vocational training to children. ‘Schools’ include all school-related spaces, structures, infrastructure and grounds attached to them, such as water, sanitation and hygiene facilities, which are recognizable and known to the community as such, but may or may not be marked by visible boundaries or signage.16

7.8.6  Both of these are very broad definitions. The Field Manual of the Monitoring and Reporting Mechanism (MRM) does not include these terms in its glossary, and adopts slightly different and narrower definitions. It records, under ‘attacks against hospitals’, attacks on ‘medical facilities’ defined as ‘places where the sick and wounded are collected and/or provided with health-care services’. Similarly, ‘schools’ are said to denote ‘a recognizable education facility or learning site … recognized and known by the community as a learning space and marked by visible boundaries’.17 7.8.7  The issue of definition is related to the temporal question of when such sites are protected under international law. For example, a hospital that is put to a nonhealthcare military use (and which thereby loses its protection under IHL) may still be a hospital, simply one that is no longer protected by the specific regime for hospitals under IHL. 7.9  Second, practical limitations and the need for enforcement. Ensuring practical protection for hospitals and schools requires political will to assist with compliance and enforcement of the law in practice; perhaps even more so than the other issues considered earlier in Chapters 3–6. 7.9.1  Thus, even though the Office of the Special Representative for Children and Armed Conflict asserted, in its first working paper, that the ‘protection afforded to

16 For the avoidance of doubt, we understand the reference to ‘all learning sites and educational facilities’ to include higher education establishments, such as colleges, and universities, insofar as they are attended by children under 18 years of age. 17 See Annex II: International Legal Foundations and Standards’ in the OSRSG-CAAC, UNICEF, DPKO, ‘Monitoring and Reporting Mechanism (MRM) on Grave Violations Against Children in situations of Armed Conflict: Field Manual’ (June 2014), 68 available at .

315

7.10  Attacks Against Hospitals and Schools schools and hospitals is comprehensive’,18 the Secretary-General’s 2016 and 2017 annual reports were critical of the realities on the ground (see further, Chapter 1, paragraphs 1.93–1.99): Attacks on schools and hospitals were prevalent in 2015, linked to the increasing use of air strikes and explosive weapons in populated areas. Armed groups particularly targeted girls’ access to education, although attacks on schools and hospitals were also carried out by government forces. Member States should consider, where necessary, changes in policies, military procedures and legislation to protect schools and hospitals.19 In 2016, in nearly all the countries mentioned in the present report, schools and hospitals were subjected to air strikes as well as ground operations. I urge parties to conflict to be cognizant of the long-term impact of conducting hostilities in heavily populated or residential areas, such as the persistence of explosive remnants of war.20

7.9.2  Similarly, a report produced by the World Health Organization (WHO) in 2016 recorded 594 attacks on healthcare facilities and providers over a two-year period, of which 53 per cent were reportedly perpetrated by state actors and 62 per cent of the attacks were reported as intentionally targeted at healthcare.21 7.9.3  These figures and reports demonstrate the practical limitations of the legal regime, and the extent to which effective protection for children in armed conflict in this regard can only be improved by increased political investment and enforcement on the ground.22 7.10  Third, limited commentary and analysis. There is little comprehensive commentary on, and analysis of, the legal rules that specifically apply to attacks against hospitals and schools during armed conflict.23 This may reflect the fact that the analysis of attacks

18 See, Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘Working Paper No. 1: The Six Grave Violations Against Children During Armed Conflict: The Legal Foundation’ (October 2009 (updated November 2013)), 18, available at . 19 UNGA, ‘Report of the Secretary-General: Children and Armed Conflict’ (20 April 2016) UN Doc A/70/836–S/2016/360, para 7. 20 UNGA, ‘Report of the Secretary-General: Children and Armed Conflict’ (24 August 2017) UN Doc A/72/361–S/2017/821, para 13. 21 See WHO, ‘Attacks on Health Care: Report on Attacks on Health Care in Emergencies’ (May 2016) WHO/OHE/ERM/PPE/2016.2, 7–8. 22 See, for instance, the observations of the UN Special Rapporteur on the right to education in his Interim Report in 2011 to the UNGA, stressing that ‘[t]o further ensure accountability, the capacity of domestic and international justice systems must also be enhanced, allowing for the prosecution of perpetrators, including non-State actors’: UNGA, ‘Interim report of the Special Rapporteur on the right to education’ (5 August 2011) UN Doc A/66/269, para 72. 23 With some notable exceptions, including, in relation to the rules relevant to hospitals under IHL, see: Elzbieta Mikos-Skuza, ‘Hospitals’ in Andrew Clapham, Paola Gaeta, and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (Oxford, OUP, 2015), 207–230; and, in relation to schools, Human Rights Watch, ‘Schools and Armed Conflict’ (20 July 2011), available at ; British Institute of International and Comparative Law (BIICL), Protecting Education in Insecurity and Armed Conflict: An International Law Handbook available at ; and Gregory Bart, ‘Ambiguous Protection of Schools under the Law of War – Time for Parity with Hospitals and Religious Buildings’ (2009) 40 Georgetown Journal of International Law 405. We note that Gregory Bart was Commander, Judge Advocate General’s Corps of the US Navy and formerly Chief, Operational Law and Policy for Special Operations Command.

316

Introduction 7.11–7.13 against hospitals and schools reflects a policy choice by the UNSC and, as a matter of law, there are other, more general, ways of analysing the protections and rights that are engaged by cases involving such attacks (for example, by reference to the right to life in IHRL: see Chapters 3 and 8). 7.11  Fourth, there is more IHL regulation for hospitals than schools. As we explain below, paragraphs 7.14 to 7.18, both hospitals and schools benefit from the general protections that exist regarding civilian objects. However, in addition, IHL provides specific protection for hospitals and medical units. This position appears to be a consequence of the historic development of IHL and its emphasis on medical facilities and the protection of the wounded and sick. Schools have attracted less specific IHL protection. We recommend that greater symmetry be achieved between the two regimes to ensure that equivalent legal protections are in place for these important facilities. 7.12  Fifth, persons versus buildings. In contrast to the other Chapters in this book, this Chapter focuses on the protection of facilities, buildings and objects rather than persons.24 7.12.1  In IHL, hospitals and medical facilities have attracted specific protection. They are considered qualitatively different from other civilian buildings because of their importance to wounded and sick combatants. By contrast, as developed below, schools have not attracted the same specific protection, and the regime applicable to schools has been described as ‘ambiguous’.25 7.12.2  ICL, in the Rome Statute, recognises that specific buildings, including those ‘dedicated to … education’ and ‘hospitals, and places where the sick and wounded are collected’ are worthy of specific protection against intentionally directed attacks.26 7.12.3  Hospitals and schools are important in the IHRL context because, ‘essential elements of ESC [economic, social and cultural] rights do require the existence, maintenance and availability of physical structures’.27 7.13  Sixth, the relevant actors. The relevant actors in this Chapter are similar to those in other contexts considered in this book, although they are involved in different ways. They include: 7.13.1  States. These are the primary providers of healthcare and educational services. They may also be responsible for any state armed forces implicated in the relevant armed conflict. Thus, states may suffer from the consequences of attacks against hospitals and schools or may be involved in perpetrating such attacks.

24 We note that this Chapter does not consider the protection of buildings with a particular cultural ­significance, which may include educational facilities: see Art 53, API. See also the so-called Roerich Pact, on the ‘Protection of Artistic and Scientific Institutions and Historic Monuments’ (adopted 15 April 1934, entered into force 26 August 1935) between the USA and other American Republics (10 States ratified this treaty), as well as the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict (adopted May 1954, entered into force 1956), in particular Art 4 available at: . 124 States are parties to the Hague Convention. For more detail on this regime see BIICL (n 23), 209–11. 25 See Bart (n 23). 26 Art 8(2)(b)(ix) (IAC) and Article 8(2)(e)(iv) (NIAC), Rome Statute of the International Criminal Court, adopted on 17 July 1998, entered into force on 1 July 2002, 2187 UNTS 3. 27 See, eg Gilles Giacca, Economic, Social and Cultural Rights in Armed Conflict, (Oxford, OUP, 2014), 56.

317

7.14–7.16  Attacks Against Hospitals and Schools 7.13.2  Non-state actors. These include: (i) non-state armed groups, some of whom may have de facto control over areas of a state’s territory during non-international armed conflict (NIAC) and may, thereby, provide healthcare and educational services. They may also be responsible for violence against facilities and; (ii) providers of humanitarian services, including NGOs and international entities such as the International Committee of the Red Cross (ICRC), which often provide services directly to populations affected by armed conflict.28 7.13.3  UN forces, including peacekeeping missions, may also be directly responsible for, or involved with, the provision of healthcare and educational services at hospitals and schools. They may also occupy hospitals or schools for military purposes. However, as noted in Chapter 2, paragraph 2.3.1, this book does not address the regulation of peacekeeping forces. II.  GENERAL RULES RELEVANT TO ATTACKS AGAINST HOSPITALS AND SCHOOLS

7.14  In Parts III and IV below we consider the specific rules which relate to attacks against hospitals and schools respectively. 7.15  However, in addition to the specific protections, there are a range of general protections which exist for hospitals and schools. These general protections may be applicable even if the specific rules are not. For instance, even if a civilian hospital loses its specific protected status under IHL – because it is being used to commit ‘outside their humanitarian duties, acts harmful to the enemy’ (Article 19, Fourth Geneva Convention (GCIV)) thereby becoming a legitimate military objective – any attack on that hospital must still respect the principles of proportionality and precautions. Detailed consideration of these principles is set out in Chapter 3; below we note the most salient aspects of the principles for the purposes of this Chapter. 7.16  IHL: The following general principles of IHL are relevant to attacks against hospitals and schools. These are part of IHL relating to the conduct of hostilities (see Chapter 3, paragraph 3.9 for the distinction between IHL rules relating to the conduct of hostilities and IHL rules relating to the treatment of persons): 7.16.1  The principle of distinction prohibits attacks against civilian persons and objects. The prohibition against attacks on civilian persons is considered in Chapter 3, paragraphs 3.23 to 3.29. 7.16.2  In relation to civilian objects, the prohibition is set out in Article 52(1) and (2) of Additional Protocol I (API) in relation to international armed conflicts (IAC). 28 See, for instance, a report of an armed attack on Bangassou hospital, managed by Médecins Sans Frontières (MSF) and the Central African Republic Ministry of Health, as well as seizure of its main gates by an ‘auto-defense’ group: Médecins Sans Frontières, ‘Central African Republic: Unacceptable violence in Bangassou Hospital’ (26 May 2017) available at .

318

General Rules Relevant to Attacks Against Hospitals and Schools  7.16 No similar provision for NIAC is contained in Additional Protocol II (APII). However, the ICRC Study on Customary IHL notes, in the commentary to CIL, Rule 7, that it has been argued that the same protection applies to NIAC by virtue of the ‘concept of general protection’ referred to in Article 13(1), APII. 29 7.16.3  Both hospitals and schools benefit from this general prohibition on deliberate attacks against civilian objects, for so long as they remain ‘civilian objects’. 7.16.4  As to the characterisation of an object as a ‘civilian object’: in IAC ‘civilian objects’ are all objects which are not military objectives as defined in Article 52(2). Article 52(2), API provides, ‘Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are confined to those objects which by their nature, location, purpose or use make an effective contribution to ­military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’. Therefore, the assessment of whether a civilian object is being used for military objectives requires consideration of two elements: (i) the nature, location, purpose or use which makes an effective contribution to military action and (ii) the total or partial destruction, capture or neutralisation which in the circumstances ruling at the time offers a definite ­military advantage. These two elements must simultaneously be present for there to be a ­military objective.30 The assessment required by Article 52(2) ‘will not always be easy to interpret, particularly for those who have to decide about an attack and on the means and methods to be used.’31 7.16.5  Article 52(3), API provides, ‘[i]n case of doubt whether an object which is normally dedicated to civilian purposes, such as … a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used’. Therefore, API contains a presumption that a civilian object is not being used for military objective. The ICRC Commentary on the AP explains that this provision was ‘adopted only after long and difficult discussions’ and that it, ‘constitutes an important step forward in the protection of the civilian population, for in many conflicts the belligerents have “shot first and asked questions later”’ although ‘it remains the case that the text adopted by the Diplomatic Conference largely relies on the judgment of soldiers who will have to apply these provisions’.32 7.16.6  Also included within the principle of distinction is the prohibition on indiscriminate attacks. As noted in Chapter 3, these are attacks which by their very nature are not directed against a specific military objective or cannot be limited to such ­objectives. Thus, ‘an indiscriminate attack implies that the attacker is indifferent as to 29 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law: Volume 1: Rules (Cambridge, CUP, 2005, reprinted with corrections 2009), 25. This is referred to hereafter as the ICRC Study on Customary IHL. This is also available online at Customary IHL database available at . ICRC, CIL Rule 7 provides, ‘[t]he parties to the conflict must at all times distinguish between civilian and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects.’ 30 See Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (eds) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, Martinus Nijhoff, 1987), 659 at paras 2018. This is referred to hereafter the ICRC Commentary on the AP. 31 ibid, para 2016. 32 ibid, paras 2030, 2035 and 2037.

319

7.16  Attacks Against Hospitals and Schools whether the targets are civilians or not’ and this will be determined by the attacker’s ‘state of mind’.33 This prohibition could apply to an attack against, for instance, an area in which a hospital is located, where the attack does not sufficiently differentiate between military objectives and civilian objects. Indiscriminate attacks are expressly prohibited in IAC by Article 51(4), API. There is no similar provision in APII34 although the principle is accepted to be part of CIL applicable to both IAC and NIAC: ICRC, CIL Rules 11 and 12.35 7.16.7  The general prohibition on indiscriminate attacks underpins more specific prohibitions, including on the use of particular weapons. As noted in Chapter 3, paragraph 3.29, specific treaties have identified certain types of prohibited w ­ eapons. Certain provisions in those treaties refer to schools, for instance Article 3(8)(a), Amended Protocol II of the Convention on Certain Conventional Weapons (applicable in IAC and NIAC: ICRC, CIL Rule 7).36 This reflects the language of Article 52(3) API, which is considered at paragraph 7.105 below. No similar reference is made to hospitals. This prohibition on the use of particular weapons may also overlap with the protections contained in IHRL.37 7.16.8  The principles of precaution and proportionality. The first principle requires that constant care be taken to spare the civilian population, civilians and civilian objects from armed conflict and that parties to conflict take necessary precautions to limit the effects of attacks. This principle is expressly codified in Article 57, API and therefore applies to IAC.38 Although a similar provision was not included in the final text of APII,39 it is accepted to be part of CIL also applicable to NIAC: ICRC, CIL

33 Christine Bell and Julia Pfeiffer, ‘Indiscriminate Attack’ (2011) Max Planck Encyclopaedia of Public International Law, paras 2–3. 34 A similar provision was included in the draft of APII but it was sacrificed in order to agree a simplified text. See the commentary to ICRC, CIL Rule 11. ICRC Study on Customary IHL (n 29), 37. 35 See Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-941-AR72 (2 October 1995), para 127 and ICRC, CIL, Rules 11 and 12, ICRC Study on Customary IHL (n 29), 37–43. Rule 11 provides, ‘Indiscriminate attacks are prohibited’. Rule 12 provides, ‘Indiscriminate attacks are those: (a) which are not directed at a specific military objective; (b) which employ a method or means of combat which cannot be directed at a specific military objective; or (c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.’ 36 See the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 to the Convention on Certain Conventional Weapons (adopted 3 May 1996, entered into force 3 December 1996) 2048 UNTS 93. For instance, Art 3(8)(a) of Amended Protocol II identifies, among the circumstances amounting to the ‘indiscriminate use’ of ‘mines’, ‘booby traps’ and ‘other devices’ that ‘a school’ is an ‘object which is normally dedicated to civilian purposes’ and will be presumed not to be used to make an ‘effective contribution to military action’. 37 For example, the right to health. See, eg the comments of the Special Rapporteur on the enjoyment of the high standard of physical and mental health: ‘[l]ike landmines, cluster bombs constitute a violation of the right to health of those civilians who are caught up in armed conflict – and like landmines, they should be banned’. See Special Rapporteur on the enjoyment of the high standard of physical and mental health, ‘Healthy Environments for Children’ (7 April 2003) (Statement) referred to in Ann-Charlotte Nilsson, Children and Youth in Armed Conflict (Leiden, Martinus Nijhoff Publishers, 2013), 101. 38 See, eg in the context of the protection of medical units, A. Breitegger, ‘The legal framework applicable to insecurity and violence affecting the delivery of health care in armed conflicts and other emergencies’, International Review of the Red Cross (2013), 95 (889), 108–110. 39 As in (n 34) above, a similar provision was included in the draft of APII but was sacrificed in order to agree a simplified text. See the commentary to ICRC, CIL Rule 11. ICRC Study on Customary IHL (n 29), 52.

320

General Rules Relevant to Attacks Against Hospitals and Schools  7.17 Rule 15.40 The second principle requires proportionality in relation to any action taken to achieve a military objective, including attacks against facilities such as hospitals and schools. A ‘concrete and direct’ military advantage must be anticipated by such action. This principle is expressly codified in Article 51, API (and therefore applies to IAC). It is accepted that it applies to NIAC under CIL: ICRC, CIL Rule 14.41 The use of human shields is strictly prohibited in both IAC42 and NIAC.43 If civilians in hospitals and schools are used as human shields this may constitute a breach of IHL, in addition to the prohibition of attacks against the facilities themselves.44 See Chapter 3, ­paragraphs 3.30 to 3.39 in relation to the principles of precautions and proportionality. 7.17  There are also general rules of IHL relating specifically to civilian property, including property that belongs to the state,45 which are of particular relevance to attacks against hospitals and schools. These are also part of IHL relating to the conduct of hostilities. They include the following. 7.17.1  The prohibition of attacks on civilian objects indispensable to the survival of the civilian population. In relation to IAC, Article 54(2), API prohibits parties from attacking, destroying, removing or rendering useless such objects, ‘for the specific purpose of denying them their sustenance value to the civilian population or to the adverse Party, whatever the motive’. Similar provision exists in NIAC: Article 14, APII.46 The primary focus of these provisions is on the intentional deprivation of the means of sustenance of a population.47 Although the examples given in API include ‘crops’, ‘drinking water installations’ and ‘supplies and irrigation works’, it is arguable that certain critical medical facilities may be ‘indispensable’ to the survival of the civilian population, and that the facilities supplying hospitals and schools may not be attacked.48 In the context of IAC, an express exception is recognised in cases of ‘imperative military necessity’ (Article 54(5), API) – the so-called ‘scorched-earth 40 See Prosecutor v Kupreškić (Trial Chamber Judgment) IT-95-14-T (14 January 2000), para 524; and ICRC, CIL Rule 15, ICRC Study on Customary IHL (n 29), 52–53. Rule 15 provides: ‘In the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimise, incidental loss of civilian life, injury to civilians and damage to civilian objects’. 41 ICRC Study on Customary IHL (n 29), 46–50. This provides, ‘[l]aunching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.’ 42 Art 28, GCIV and Art 51(7), API. 43 See ICRC, CIL, Rule 97: ‘The use of human shields is prohibited.’ ICRC Study on Customary IHL (n 29), 337–40. 44 See, in particular, the specific prohibition in Art 12, para 4 of API of the use of ‘medical units’ (defined below) ‘to shield military objectives from attack.’ 45 This includes the real and personal property of duly recognised and authorised aid societies, pursuant to Art 34, First Geneva convention (GCI). 46 See also ICRC, CIL Rule 54: ‘Attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population is prohibited’: ICRC Study on Customary IHL, (n 29), 189–193. 47 For instance, through the intentional starvation of a population. See ICRC Study on Customary IHL (n 29), 190. It is noted here that France and the United Kingdom have made reservations to Art 54(2), API on the basis that it relates only to such cases. 48 Examples of hospitals and schools being regarded as ‘indispensable’ to the civilian population, in the context of NIAC, include a 2002 agreement between the Government of Sudan and the Sudan People’s Liberation Movement (SPLM), as well as a 2009 agreement between the Moro Islamic Liberation Front (MILF) and the Government of the Philippines committing the parties to ‘[r]efrain from targeting or intentionally attacking civilian properties or facilities such as schools, hospitals … health and food distribution centers … or

321

7.18–7.19  Attacks Against Hospitals and Schools policy’ scenario – but this does not appear to apply in NIAC given the absence of such language in Article 14, APII.49 7.17.2  The prohibition of wanton destruction and seizure of civilian property.50 The ‘extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’ constitutes a ‘grave breach’ of the Geneva Conventions.51 This applies in IAC. It is accepted to be CIL, and thus also to apply in NIAC.52 7.17.3  The protection of property in occupied territories. In relation to IAC, the rules concerning occupation provide a specific prohibition of the destruction of real or personal property, including state property ‘except where such destruction is rendered absolutely necessary by military operations’.53 This could be taken to apply to h ­ ospitals and schools. 7.18  Also relevant are general IHL provisions protecting children in IAC and NIAC: Article 77(1), API requires children to be provided with the ‘care and aid they require’ whilst Article 4(3)(a), APII provides for children to receive ‘care’ and ‘aid’. It is unclear whether ‘care’ and ‘aid’ would include access to certain facilities: see Chapter 3,­ paragraph 3.43. 7.19  ICL: A number of general rules of ICL prohibit intentional attacks on civilians and civilian objects. They, therefore, prohibit attacks against hospitals and schools, in addition to the more specific rules in Parts III and IV below. In the Rome Statute, the prohibitions are divided into those concerning IAC and those concerning NIAC: 7.19.1  IAC: the Rome Statute recognises, as a war crime, intentional attacks against civilians and civilian buildings.54 In particular, Article 8(2)(a)(iv) characterises as a ‘[g]rave breach’ of the Geneva Conventions the ‘[e]xtensive destruction and objects or facilities indispensable to the survival of the civilian population and of a civilian nature’. See Sandesh Sivakumaran, The Law of Non-International Armed Conflict (Oxford, OUP, 2012) 343 and UN, ‘Report of the Secretary-General: Children and armed conflict’ (13 April 2010) UN Doc A/64/742-S/2010/181, para 42. 49 See ICRC, CIL Rule 54, ICRC Study on Customary IHL (n 29), 192–93. 50 See also the prohibition of pillage or looting of real and personal property of enemy nationals, including property belonging to the state – IAC: Arts 28 and 47, Hague Regulations; Art 33, GCIV; NIAC: Art 4(2)(g), APII; ICRC, CIL Rule 52, ICRC Study on Customary IHL (n 29), 182–185. See also, eg, Eritrea-Ethiopia Claims Commission, ‘Partial Award on Western Front, Aerial Bombardment and Related Claims’ (19 December 2005) 25 RIAA 291, paras 29–30, 36–37 and 46. The Commission found Ethiopia liable for violations of IHL for the looting and damage to hospitals and schools in Teseney, Guluj, Tabaldia and Barentu. At paras 52–54, it found there to be a ‘lack of proof’ of the looting of a school in Shambuko. 51 Art 23(g), Hague Regulations 1907; Art 50, GCI; Art 51, Second Geneva Convention (GCII) and Art 147, GCIV. Although the Jean Pictet (ed), Commentary, IV Geneva Conventions Relative to the Protection of Civilian Persons in Time of War (ICRC, 1958), 601 (hereafter 1958 ICRC Commentary on GCIV) suggests that an ‘isolated incident would not be enough’, in Prosecutor v Tihomir Blaškić, (Trial Chamber Judgment) ICTYIT-95-14-T (3 March 2000), para 157, the Trial Chamber of the ICTY considered that the destruction of a single civilian hospital bombed intentionally would constitute a ‘grave breach’ of the Convention. 52 ICRC, CIL Rule 50: ‘[t]he destruction or seizure of the property of an adversary is prohibited, unless required by imperative military necessity’: ICRC Study on Customary IHL (n 29), 175–177. 53 Art 53, GCIV. This provision is supplemented by Art 54, API. A withdrawing Occupying Power may, if military necessity requires it, conduct a ‘scorched earth policy’ to prevent or slow down the advance of enemy troops pursuant to which it may destroy bridges, roads etc but not objects indispensable for the civilian population’s survival (e.g. foodstuffs, irrigation and sanitation facilities). See ICRC Commentary on the AP, (n 30) above at paras 2021–2023. 54 Art 8(2)(a)(iii)–(iv), Rome Statute.

322

General Rules Relevant to Attacks Against Hospitals and Schools  7.20 appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’. Article 8(2)(b) identifies ‘further serious violations of the laws and customs applicable in international armed conflict’ which include intentional attacks against civilian populations or objects ((i)–(ii)), intentionally launching attacks with the knowledge of incidental and excessive ‘loss of life or injury to civilians or damage to civilian objects’ as well as attacking undefended buildings ((iv)–(v)), ‘[d]estroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war’ ((xiii)) and pillaging ((xvi)). 7.19.2  NIAC: A number of provisions in the Rome Statute replicate the IAC prohibitions for NIAC. Thus, ‘serious violations of the laws and customs applicable in armed conflicts’ include intentional direct attacks against civilian populations and buildings (Article 8(2)(e)(i)–(ii)), pillaging ((v)) and the destruction or seizure of property unless this is ‘imperatively demanded by the necessities of the conflict’ ((xii)). 7.20  IHRL: IHRL treaties protect the rights to health and education: see, for example, Article 25, Universal Declaration on Human Rights (UDHR);55 Article 24, International Covenant on Civil and Political Rights (ICCPR);56 Article 10, International Convention on Economic, Social and Cultural Rights (ICESCR)57 and Article 3, Convention on the Rights of the Child (CRC).58 A range of other human rights may also be engaged by attacks against hospitals and schools. These include: the right to life,59 the prohibition of torture, inhuman and degrading treatment,60 the principle of non-discrimination61 and the right to property.62 55 See Art 25 (3), UDHR. This provides, ‘[e]veryone has the right to a standard of living adequate for the health and well-being of himself, and of his family’. See also Art 24, CRC. This provides, ‘childhood [is] ­entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection’. 56 See Art 24 (1), ICCPR. This provides, ‘[e]very child shall have … the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.’ 57 See Art 10 (3), ICESCR. This provides, ‘[s]pecial measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other ­conditions. Children and young persons should be protected from economic and social exploitation.’ 58 See Art 3 (3), CRC. This provides, ‘[S]tates Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.’ As will be seen below, the CRC Committee imposes obligations on the maintenance of certain buildings, including hospitals and schools, for the realisation of this right. 59 See, eg, Art 3, UDHR; Art 6, ICCPR; Art 6, CRC. In regional IHRL treaties, this right is protected by Art 4, African Charter on Human and People’s Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 218 (ACHPR); Art 4, American Convention on Human Rights (adopted 21 November 1969, entered into force 18 July 1978) OAS Treaty Series No 36j1144 UNTS 123 (ACHR); Art 1, American Declaration of the Rights and Duties of Man (2 May 1948) (OAS Res XXX) (1992) OEA/Ser.L.V/II.82 doc.6 rev.1 at 17; Arts 5–8, Arab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March 2008), reprinted in (2005) 12 Int’l Hum Rts Rep 893; Art 2, European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR). 60 See, eg, Art 7, ICCPR; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) (1984) 1465 UNTS 85 (in general); Art 5, UDHR; Art 37, CRC. In regional IHRL treaties, this prohibition is recognised in: Art 3, ECHR; Art 5, ACHPR; Art 5, ACHR; Art 27, American Declaration of the Rights and Duties of Man; Inter-American Convention to Prevent and Punish Torture (adopted on 9 December, entry into force on 28 February 1987); Art 8, Arab Charter on Human Rights; Arts 19–20, Cairo Declaration on Human Rights in Islam (5 August 1990). 61 See eg Art 24, ICCPR; Art 2, ICESCR; Art 2, CRC. 62 See, eg, Art 17, UDHR. In regional IHRL treaties, this right is protected by Art 14, ACHPR; Art 21, ACHR and Art 1, Protocol 1 to the ECHR (adopted on 20 March 1952, entry into force 1954) ETS 9.

323

7.21–7.24  Attacks Against Hospitals and Schools 7.21  In conclusion, it is apparent that there is a framework of legal principles that can be applied to protect hospitals and schools from attack in armed conflict. This general substantive framework is adequate. However, the application of the IHL framework to specific facts may give rise to difficulties and to differing conclusions. For example, as noted at paragraph 7.16.4 above, the question of whether a civilian object has been, or is being, used as a military objective requires an inquiry into a range of factors. That inquiry will involve an exercise of judgement and factual analysis. This means that it may be difficult to predict, with certainty, the legally correct characterisation of the object in question. Apart from this particular weakness in the IHL framework, in our view the general substantive protections are adequate and significant. 7.22  The principal reason that they fail to provide protection is because there is a lack of compliance with the applicable norms and a lack of adequate enforcement and accountability in relation to violations. We emphasise below that greater political resolve and practical implementation and enforcement of existing protections are essential to ensuring that children are protected from attacks against hospitals and schools. The general substantive framework has been enhanced for hospitals, as we explain in Part  III. That enhanced framework also suffers from lack of compliance, enforcement and a­ ccountability. So enhancing substantive protections does not necessarily lead to better practical protection. Consideration still needs to be given to improving accountability (as to which, see paragraphs 7.93 to 7.99 and 7.141 to 7.142 below). However, such enhanced substantive protections are important in marking out the status of hospitals. In contrast, the general substantive framework has not been equally enhanced for schools: see Part IV. We suggest that consideration is given to such enhancement. Like hospitals, this may not, by itself, be sufficient to lead to better practical protection (since compliance, enforcement and accountability still require separate consideration) but it would be a positive development to recognise the status of schools. III.  ATTACKS AGAINST HOSPITALS

A.  Legal Framework 7.23  Hospitals (and, therefore, children in hospitals) are protected by IHL, ICL and IHL. Hospitals are given ‘independent, privileged status’63 by rules of IHL and ICL. They are also regarded as critical infrastructure necessary for the realisation of children’s human rights under IHRL, in particular the right to health. 1. IHL Identifying ‘Hospitals’ Protected by IHL 7.24  We begin with a preliminary point about military hospitals. Paragraph 7.8 above notes the absence of a specific definition of ‘hospital’ in IHL treaties and that the



63 Bart

(n 23), 408.

324

Attacks Against Hospitals  7.25 definition in the ‘Glossary of definitions relevant to SCR 1998 (2011)’ includes military hospitals. It is partly in light of this expansive definition that we have chosen to take into account military hospitals (and the First Geneva Convention (GCI)) in this C ­ hapter. We have also done so for two other reasons. First, there is some overlap between the provisions of GCI and GCIV and it is helpful to consider both Conventions and their respective commentaries in order to understand the legal framework regarding hospitals. Second, the reality on the ground may be that children end up in military hospitals during armed conflict, as the demarcation between civilian and military medical units may become blurred. However, whilst recognising this possibility, this Chapter focuses on civilian hospitals given the prohibition on the recruitment and use of children and the consequent expectation that they should not be present in military medical establishments. 7.25  There is no definition of ‘hospitals’ on land in either GCI (re military hospitals) or GCIV (re civilian hospitals). 7.25.1  Article 19, GCI refers in general to ‘fixed establishments and mobile medical units of the Medical Service’.64 The original 1952 Commentary to GCI explains this lack of specificity on the basis that ‘[d]efinitions may often be dangerous, … and the Conference rightly refrained from any attempt to produce one’.65 7.25.2  Similarly, Article 18, GCIV does not define ‘civilian hospitals’, although it makes clear that (i) they must be ‘organized to give care to the wounded and sick, the infirm and maternity cases’ and (ii) they must be formally recognised as ‘civilian ­hospitals’ by certificates issued by States Parties to a conflict. It is apparent from the original commentary to Article 18, GCIV that the specific protections conferred on civilian hospitals by IHL only extend to sufficiently equipped establishments which can, and do, function as hospitals.66 7.25.3  Article 8(e), API defines ‘medical units’ broadly (and as including military and civilian medical units): establishments and other units, whether military or civilian, organized for medical purposes, namely the search for, collection, transportation, diagnosis or treatment – including first-aid treatment – of the wounded, sick and shipwrecked, or for the prevention of disease. The term includes, for example, hospitals and other similar units, blood transfusion centres, preventive 64 In this context, ‘Medical Service’ refers to both the medical services of the armed forces of the relevant State Parties to an armed conflict, as well as to medical services of a National Red Cross Society or ‘another organization, including from a neutral country, assisting the medical services of armed forces on the basis of Articles 26 and 27 GCI’, see Mikos-Skuza (n 23). See also, ICRC, Commentary of the First Geneva Convention (2nd edn (ICRC, 2016)), para 1783 available at . This is referred to hereafter as the 2016 ICRC Commentary on GCI. 65 See Jean Pictet (ed), Commentary, I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (ICRC, 1952), 195 (hereafter 1952 ICRC Commentary on GCI). The 2016 ICRC Commentary on GCI (n 64) records, ‘The Convention does not define the notions of “fixed establishments” and “mobile medical units”’, at para 1775. However, in accordance with their ordinary meaning, ‘fixed’ can be understood as attached or positioned securely [Concise Oxford English Dictionary (12th edn), (Oxford, OUP, 2011), 538 and ‘establishments’ as something ‘set up on a firm or permanent basis’, ibid, 488. 66 This explains the lack of a more prescriptive definition by reference to ‘the great variety of cases which may arise’ and encourages ‘the measures of application in each country to specify as precisely as possible the conditions for recognition of an establishment as a civilian hospital’: 1958 ICRC Commentary on GCIV (n 51), 147.

325

7.26–7.27  Attacks Against Hospitals and Schools medicine centres and institutes, medical depots and the medical and pharmaceutical stores of such units. Medical units may be fixed or mobile, permanent or temporary.

Accordingly, the protections of API – in particular the prohibition on the attack of medical units (Article 12(1)) – extend to a wide range of civilian and military medical facilities. However, the prohibition on the attack of medical units in Article 12(1), API, only applies to civilian medical units where they belong to one of the parties to the conflict and satisfy the requirements of recognition and authorisation of units in Article 12(2)(b)-(c). 7.26  As set out above, GCIV and API impose some formalities on the identification of ‘civilian hospitals’ and ‘medical units’, by way of the certification or authorisation requirements.67 (In contrast, schools do not benefit from a special regime of protection and there is no such need for certification or authorisation. Instead, schools are protected by the presumption that they are civilian buildings: see further, paragraph 7.108 below.) However, GCIV and API do not identify the process for such certification or ­authorisation. For example there is no guidance identifying the state entity responsible for providing certification, or according to what criteria,68 and whether there should be an independent oversight mechanism of the certification process. Instead, this responsibility is left to the States Parties. This gives rise to some practical difficulties, since it requires States to certify – prospectively – that a building will not be used for nonmedical purposes.69 Moreover, the position of non-state armed groups is not addressed by the IHL treaties at all, even though they may be responsible for, and in control of, functioning hospitals. 7.27  As is apparent from the preceding paragraphs, certain facilities are given specific protection in IHL. This includes fixed and mobile healthcare facilities, as well as landbased and naval healthcare facilities. However, we do not consider naval facilities or medical transports in detail in this book.70 Instead, we refer to ‘hospitals’ to include the range of land-based facilities identified above, in accordance with the definition set out at paragraph 7.8.4 above.

The Commentary also clarified that, ‘[i]t will suffice if the hospital devotes itself to one category only, as in the case of maternity hospitals. A civilian hospital must have the staff (including administrative staff) and the equipment required to fulfil its purpose. It must be organized to give hospital care. That is the essential point. It is not necessary for the hospital to function permanently as a hospital. The Diplomatic Conference considered that establishments converted into auxiliary hospitals as an emergency measure consequent upon the events of war, should not be excluded from the protection of the Convention … The deciding factor is … that it must be effectively possible to give hospital treatment and care, and that necessarily implies a modicum of organization.’ See ibid, 144. 67 In relation to NIAC, although there is no explicit requirement for authorisation or certification in APII, state practice appears to support the conclusion that such authorisation is required before a medical unit can rely upon the special protective regime for hospitals – see ICRC, CIL Rule 28, ICRC Study on Customary IHL (n 29), 95. 68 For instance, 1958 ICRC Commentary on GCIV (n 51), 144. This notes that the drafters specifically chose not to include a criterion of size, although it was recognised that states could take this into account and set a minimum threshold of – for instance – 20 beds, for an establishment to qualify as a ‘hospital’. 69 See 1952 ICRC Commentary on GCI, (n 65), 148–49; Mikos-Skuza (n 23), 211–12 at paras 11–13. 70 We have examined hospitals on land because they provide an obvious and direct analogy by which to consider schools. This does not negate the need for critical evaluation of other healthcare facilities, which may assist in strengthening protection.

326

Attacks Against Hospitals  7.28–7.31 Three Key Aspects of IHL 7.28  IHL protects and regulates military and civilian hospitals in three principal ways:71 7.28.1  There is a prohibition on making hospitals the ‘object of attack’ (the ­prohibition on targeting); 7.28.2  Related to the prohibition on targeting is the right to identify hospitals as protected areas. This may be done either (i) by using a distinctive emblem or (ii) the use of protected zones (the right to identification for protection); and 7.28.3  There are consequences, in particular a loss of protection, where hospitals are used to commit ‘outside their humanitarian duties, acts harmful to the enemy’ (the consequences of ‘military use’). 7.29  We consider each of these in turn. In doing so, we describe the position first under IAC and then NIAC. 7.30  The prohibition on targeting. In IAC, the prohibition on targeting is a strict one and includes a duty to ‘respect and protect’ hospitals and medical facilities. Thus, ­military and civilian hospitals may ‘in no circumstances be attacked, but shall at all times be respected and protected by the Parties to the conflict’.72 7.31  The duty to ‘respect and protect’ hospitals and medical facilities: 7.31.1  This duty has existed in some form since the Geneva Convention of 1864.73 Amongst other facilities it applies to military hospitals74 and civilian hospitals.75 7.31.2  The duty to ‘respect and protect’ hospitals involves two separate obligations, as identified by the ICRC Commentary on GCI.76 First, it entails an obligation

71 A related protection for hospitals is the recommendation contained in both Art 19, para 2, GCI and Art  18, para 5, GCIV (as well as Article 12(3), API) that States Parties ensure that hospitals are located far from military objectives, to minimise the risk of their exposure to collateral damage. We also note that additional protections for hospitals are set out under the law of occupation including: (i) maintenance of medical establishments: Art 56, GCIV and (ii) the limitations on requisitioning medical facilities: Arts 55 and 57, GCIV and Arts 14 and 69, API. 72 Art 19, GCI and Art 18, GCIV. This includes a prohibition of reprisals against hospitals: see Art 46, GCI and Art 33, GCIV. The commentary on both Art 19, GCI and Art 18, GCIV conclude that the specific prohibition of attacks on hospitals were inspired by the scale of aerial bombardments in modern conflicts: see 1952 ICRC Commentary on GCI (n 65), 196; 1958 ICRC Commentary on GCIV (n 51), 147. 73 Art 1, Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (adopted on 22 August 1864, entered into force on 22 June 1865) (1864) 129 CTS 361, imposed such an obligation in relation to military hospitals only. It has now been superseded by GCI. 74 Arts 19, para 1 and 21–22 (loss of protection), GCI. Similar protection, ‘to spare as far as possible … hospitals, and places where the sick and wounded are collected’ was also contained in the Hague Regulations – see Art 27 of the Hague II Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted on 29 July 1899, entered into force 4 September 1900) (1898–99) 187 CTS 429 (Hague Convention II); Art 27, Convention (IV) Respecting the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) (1907) 205 CTS 277 (Hague Convention IV); Art 5, Convention (IX) Concerning Bombardment by Naval Forces in Time of War (adopted 18 October 1907, entered into force 26 January 1910) (1907) 205 CTS 345 (Hague Convention IX). 75 Arts 14–20 (incl. 18 and 19 (loss of protection)), GCIV. 76 1952 ICRC Commentary on GCI (n 65), 147. See also 2016 ICRC Commentary on GCI (n 64), para 1792: ‘“to respect” entails obligations of a negative nature, ie to refrain from engaging in certain conduct, while “to protect” implies obligations of a positive nature, i.e. to take certain active measures’.

327

7.32–7.33  Attacks Against Hospitals and Schools of non-interference: parties to armed conflict are obliged to refrain from attacking hospitals benefitting from the protective regime and to refrain from interfering with their operation. Second, it includes the obligation to enable them to continue to give treatment to the wounded in their care.77 The ICRC Commentary on GCIV suggests, in relation to Article 18, GCIV, that ‘[w]hile the word “respect” expresses positively the idea behind the prohibition of attack, the word “protect” strengthens that idea by making it obligatory to ensure that respect and impose it on others’.78 The ‘duty to protect’ requires ‘the taking of feasible measures to support the functioning of medical establishments and units’, in other words ‘a Party must actively help to ensure the delivery of medical supplies or equipment or ensure more generally that the medical units are not deprived of other vital resources such as electricity or water’.79 7.31.3  The duty to ‘respect and protect’ ceases to apply if hospitals are used to commit, ‘outside their humanitarian duties, acts harmful to the enemy’.80 See paragraph 7.38 below. 7.32  In the event that hospitals and other medical facilities do become military objectives there is nevertheless a requirement that the assailant should give due warning of any attack with a reasonable time limit before proceeding to an attack.81 These ‘­stringent criteria’ are designed to ensure that the impact of the attack on the wounded and sick is not excessive. In other words, they are designed ‘to ensure the humane treatment of the wounded themselves, who could not be held responsible for any unlawful acts committed’.82 7.33 In NIAC: the prohibition against targeting hospitals derives from two sources. First, Article 11(1), APII provides that medical units and transports are to be ‘respected and protected at all times and shall not be the object of attack’ (Article 12 addresses the use of the distinctive emblem to identify them). This protection lapses if the medical facility in question is used to ‘commit hostile acts, outside its humanitarian function’. However, protection only ceases after a warning has been given, setting a reasonable time-limit whenever appropriate, and after the warning has remained unheeded (Article 11(2), APII). Second, some commentators assert that this protection is implicit in Common Article 3 to the Geneva Conventions.83 The ICRC Study on

77 See 2016 ICRC Commentary on GCI (n 64), para 1799. 78 See 1958 ICRC Commentary on GCIV (n 51), 148. 79 See 2016 ICRC Commentary on GCI (n 64), para 1807. 80 See Arts 21–22, GCI (military hospitals; Art 22 sets out five situations which do not deprive a military hospital of the protection guaranteed by Art 19); Art 19, GCIV (civilian hospitals); and Art 13, API (medical units). 81 See Art 21, GCI; Art 19(1), GCIV; Art 13, API. 82 1952 ICRC Commentary on GCI (n 65), 201. See also 1958 ICRC Commentary on GCIV (n 51), 155, in similar terms, although with an emphasis that the patients of a civilian hospital ‘of course’ could not ‘be held responsible for any unlawful acts committed’. 83 The ICRC Commentary to APII records that the ‘object and purpose’ of the rules in APII was clearly defined by a delegate of Committee II of the Diplomatic Conference: ‘to make explicit what was implicit in the very simple general statement in Article 3 common to the Geneva Conventions … by formulating a number of derivative rules specifying the protection to be given to medical personnel, units and installations, the standard of care, and so forth’. See ICRC Commentary on the AP (n 30), para 4627. Common Art 3 provides, amongst other things, that in NIAC (1) ‘Persons taking no active part in hostilities’ including former combatants placed ‘hors de combat’ by sickness, wounds’ (i) ‘shall in all circumstances be treated humanely’ and (ii) in respect of

328

Attacks Against Hospitals  7.34 Customary IHL notes that there is no official contrary state practice, and concludes that this is CIL.84 7.34  The right to identification for protection: As noted above, paragraph 7.28.2, IHL treaties include two ways in which parties to armed conflict may identify military and civilian hospitals in order to protect them from targeting. These are (i) by marking them with distinctive emblems or (ii) through the use of certain protected zones. We address each of these in turn. 7.34.1  Marking with distinctive emblems: The marking of a hospital does not confer protected status upon it;85 the identification is a practical tool for ensuring respect for that protected status. In both IAC and NIAC hospitals may be marked with a distinctive emblem: the Red Cross, Red Crescent, Red Lion or the Red Crystal.86 In IAC, the marking of military hospitals on land is regulated by Article 42, GCI, and requires the consent of the military authorities. Similarly, in relation to civilian ­hospitals, Article 18, GCIV provides that hospitals may be marked if authorised by the State. In NIAC, Article 12, APII provides that a distinctive symbol ‘shall be displayed by … medical units’ and ‘shall not be used improperly’. 7.34.2  Protected zones: Another way in which hospitals can be protected from attack is through the establishment of protected zones as foreseen under IHL. IHL treaties governing IAC provide for the creation of the following zones: (i) Hospital and safety zones and localities: which are ‘so organized as to protect the wounded and sick from the effects of war’.87 These are designed to be far removed from the areas of conflict, demarcating a geographic area where medical care can be safely received by civilian populations. They are established by the consent of the parties: Annex I to GCIV includes a draft Agreement relating to hospital zones for parties to armed conflict upon which to model their agreements; (ii) Neutralised zones: which relate to ‘where fighting is taking place’88 and, ‘thus are not far from the frontline, but they may be established in a locality which may be isolated from the combat zone’.89 Again, such zones are established by the consent and written agreement of the parties. Examples of zones instituted through the good offices of the ICRC include: in Dhaka during the Indo-Pakistani War (1971), in Phnom Penh during the Cambodian Civil War (1975) and around the Cathedral at Port Stanley during the Falklands/Malvinas conflict (1982). them it is prohibited to do ‘violence to life and person’ or commit ‘outrages upon personal dignity’, and (2) ‘The wounded and sick shall be collected and cared for’. 84 See ICRC, CIL Rules 28 (medical units) and 29 (medical transports) and the related commentary (see ICRC Study on Customary IHL (n 29) at 94 and 100). See also Mikos-Skuza (n 23), 223–25. 85 This is made explicit at para 4 of the preamble to Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005, which states that the ‘obligation to respect persons and objects protected by the Geneva Conventions and the Protocols additional thereto derives from their protected status under international law and is not dependent on use of the distinctive emblems, signs or signals’. See, similarly, para 12 of Annex C of the UNSC, ‘Final report of the Panel of Experts on Yemen for the UNSC’ (31 January 2017) UN Doc S/2017/81. 86 The latter was added as a recognised emblem by the Conference which drafted APIII. 87 Art 23, GCI; Art 14, GCIV. 88 Art 15, GCIV. 89 See Natalino Ronzitti, ‘Protected Areas’ in Clapham, Gaeta and Sassòli (n 23), 374 at para 24.

329

7.34  Attacks Against Hospitals and Schools (iii) Non-defended localities: which consist of ‘any inhabited place near or in a zone where armed forces are in contact which is open for occupation by an adverse Party’.90 They can be established unilaterally or by the consent of the parties and must be marked by clearly visible signs (Article 59(6), API).91 (iv) Demilitarised zones: these are established by agreement of the parties to the conflict and require that no military personnel or material can be brought within the zone.92 Accordingly, they are to be established outside combat zones. 7.34.3  Although the IHL rules governing NIAC do not expressly provide for the creation of protected zones ‘there is nothing preventing parties to a NIAC from entering into a special agreement to this effect on the basis of [Common Article 3].’93 7.34.4  There are practical examples regarding the creation of protected zones.94 It is clear that they can be established narrowly, including around a single building. Or they can be extended to a collection of buildings.95 Their establishment requires some form of supervisory mechanism for their effective functioning. 7.34.5  Finally, for completeness, we note the possibility of UNSC ‘safe’ zones. These are so-called ‘safe’ or ‘safety’ zones declared by the UNSC. They are imposed by ­military means. They differ from the protected zones envisaged by IHL. Examples of UNSC ‘safe’ zones include those in Bosnia and Herzegovina96 and Iraq.97 In principle, safety zones should not be the subject of attack.98 They may be enforced through the imposition of a ‘no-fly’ zone – as in the case of ‘Operation Provide Comfort’ in northern Iraq for the Kurdish population in 1991. However, there are some examples which suggest that these mechanisms can be ineffective.99

90 Article 59(2), API. 91 These zones correspond to so-called ‘“open towns”’: ICRC Study on Customary IHL (n 29), 122. The prohibition of attacks on non-defended localities applies to IAC and NIAC: ICRC, CIL Rule 37, ICRC Study on Customary IHL (n 29), 122–26 and in the context of IAC such attacks constitute a war crime: Article 8(2)(b)(v), Rome Statute. 92 Art 60, API. 93 Knut Dörmann and Hans-Peter Gasser, ‘Protection of the Civilian Population’ in Dieter Fleck (ed), The Handbook of International Humanitarian Law (Oxford, OUP, 2013), 249. The ICRC considers that the prohibition of attacks on hospital zones is a rule of CIL: ICRC, CIL Rule 35. ICRC Study on Customary IHL (n 29), 119–20. 94 See, ICRC, CIL Rules 35 and 36, ICRC Study on Customary IHL (n 29), 120–121. Sivakumaran gives a number of examples, such as a hospital zone established around Jaffna hospital in Sri Lanka in 1990, a demilitarised and neutral zone established around Kampala between the Ugandan Government and the National Resistance Movement in 1985 or a 1990 Ceasefire Agreement between the Government of Nicaragua and the YATAMA Atlantic Front of the Nicaraguan Resistance. See Sivakumaran (n 48), 383–384. 95 See, Sivakumaran (n 48), 385, referencing a demilitarised zone around a college, a hospital and a hotel in Dhaka during the secession of Bangladesh from Pakistan in 1971. 96 See UNSC Res 819 (16 April 1993) UN Doc S/RES/819 and UNSC Res 824 (26 March 1993) UN Doc S/RES/824. 97 See UNSC Res 688 (5 April 1991) UN Doc S/RES/688. 98 See, eg UNGA Resolution 2675 (XXV) (9 December 1970) UN Doc A/RES/2675, para 6, which provided that ‘[p]laces or areas designated for the sole protection of civilians, such as hospital zones … should not be the object of military operations’. 99 See BIICL (n 23), 212. Most notoriously, a ‘safe zone’ was established around the town of Srebenica by UNSC Res 819 (16 April 1993) UN Doc S/RES/819, para 2 and UNSC Res 824 (16 May 1993) UN Doc S/RES/824 (1993), para 3. However, in July 1995, UN peacekeepers present there did not intervene when the Bosnian Serbs conducted an operation which resulted in the execution of more than seven thousand Bosnian Muslim boys and

330

Attacks Against Hospitals  7.35–7.38 7.35  The consequences of ‘military use’: The concept of ‘military use’ of a military or civilian hospital is one which is regularly referred to by UN bodies, as well as by NGO commentators examining attacks on hospitals. The concept is also used in relation to attacks on schools: see paragraph 7.105 below. In her Guidance Note, the Special Representative for Children and Armed Conflict clarified that the term – as used in UNSC Resolution 1998 – refers to: a wide range of activities in which armed forces or armed groups use the physical space of a school [or a hospital] in support of the military effort, whether temporarily or for a protracted period of time.100

7.36  In practice, the military use of hospitals is relatively common – as recorded by the MRM (examined below) – and the UNSC has emphasised that this potentially exposes civilians, including children, present at hospitals to lawful attack under IHL, as the hospitals may have lost protection and turned into military objectives, subject to the rules on proportionality and precautions.101 7.37  Although the concept of ‘military use’ is often used, the legal formulation in IAC is, as set out at paragraph 7.15 above and 7.38 below, that hospitals may lose their protection if they are used to commit ‘outside their humanitarian duties, acts harmful to the enemy.’ The duty to ‘respect and protect’ ceases to apply if hospitals are used to commit such acts.102 The rationale for such a loss of protection includes the following: the function of hospitals is to care for the wounded and sick; that function explains their protected status; when they are used, outside that function, to interfere, directly or ­indirectly, in military operations then the rationale for their protection is removed.103 7.38  There is no treaty definition of ‘outside their humanitarian duties’ or ‘acts harmful to the enemy’. However, it is clear that ‘outside their humanitarian duties’ must be narrowly construed.104 In Prosecutor v Stanislav Galić,105 the ICTY Appeals Chamber identified, ‘actions that result in the loss of protection under international humanitarian law for hospitals’, by reference to the ICRC Commentary on the AP.106 These actions included the use of a hospital as a shelter for uninjured combatants, as a firing point,

men, in conduct described by the ICTY Appeal Chamber as ‘a crime against all of h ­ umankind’ (Prosecutor v Radislav Krstić (Appeals Chamber Judgment) ICTY-IT-98-33-A (19 April 2004), para 36). See also, eg news reports of breaches of a safe zone in Sri Lanka: ‘Sri Lanka: growing UN concern as civilians in ‘safe zone’ come under fire’ (UN News Centre, 17 February 2009) available at . 100 See the Office of the Special Representative for Children and Armed Conflict, ‘Protect Schools + Hospitals Guidance Note on Security Council Resolution 1998’ (n 15), para 3.4 and Annex II. 101 See UNSC Res 2143 (7 March 2014) UN Doc S/RES/2143. 102 See Arts 21–22, GCI (military hospitals; Art 22 sets out five situations which do not deprive a military hospital of the protection guaranteed by Art 19); Art 19, GCIV (civilian hospitals); and Art 13, API (medical units). See also 2016 ICRC Commentary on GCI (n 64), paras 1809–10 and 1839–45. Note also Art 33, GCI which addresses the situation where, eg, a military hospital falls into the hands of the other party to the conflict: see 2016 ICRC Commentary on GCI (n 64), paras 2325–41. 103 See 2016 ICRC Commentary on GCI (n 64), para 1841. 104 See, eg, 2016 ICRC Commentary on GCI (n 64), paras 1809–10, 1844–45. See also Mikos-Skuza (n 23), 218. 105 See Galić (n 6), paras 342–43. 106 ICRC Commentary on the AP (n 30) paras 551, 555 and 4728. The same list, with minor modifications, is in the 2016 ICRC Commentary on GCI (n 64), paras 1842.

331

7.39–7.43  Attacks Against Hospitals and Schools an arms dump or as a military observation post. By contrast, simply nursing sick or wounded combatants, or the presence of small arms and ammunition taken from them, which had not yet been handed to the relevant service, would not be sufficient. Similarly, civilian hospitals are able to have armed units or security forces for the purposes of self-defence. 7.39  In relation to NIAC: there is a prohibition on ‘military use’ in Article 11(2), APII and as a matter of CIL. See above, paragraph 7.33. ‘Grave Breaches’ of IHL 7.40  An attack against a hospital that violates the special protections set out above is not regarded as a ‘grave breach’ of IHL.107 7.41  There is one notable exception: Article 85(2), API extends the characterisation of actions which are ‘grave breaches’ of GCIV to be ‘grave breaches’ of API when carried out, ‘against … medical units or medical transports which are under the control of the adverse Party and are protected by this Protocol’.108 The ICRC Commentary on the AP clarifies that the reference to ‘control of the adverse Party … is justified by the fact that such persons and objects may come, for example, from a non-belligerent State, an aid society recognized and authorized by such a State or even an impartial international humanitarian organization which makes them available to a Party to the conflict’.109 7.42  Despite not being a ‘grave breach’ of IHL within the meaning of Article 8(2)(a) of the Rome Statute, intentionally directing attacks against hospitals is nevertheless characterised as a war crime. This is because it is a ‘serious violation of the laws and customs applicable in international armed conflict [or NIAC], within the established framework of international law’: see Article 8(2)(b)(ix), with the same language in Article 8(2)(e)(iv) for NIAC. See further, below, paragraph 7.52ff. Problems and Deficiencies in the IHL Legal Framework 7.43  The summary above shows that there is a detailed regime regulating attacks against hospitals on land. At least in principle, these rules provide substantial protections for civilians (as well as for others such as wounded combatants and fighters). The importance of these legal protections should be politically recognised and reaffirmed, particularly in the context of the plight of children in armed conflict. Instead of the content of the law, we consider that it is lack of compliance and accountability that is problematic.110 This is examined in the accountability section, paragraph 7.75ff below.

107 See Art 50, GCI; Art 51, GCII; Art 147, GCIV. As noted in Ch 2, para 2.103, the significance of the characterisation of ‘grave breaches’ is in relation to the enforcement (and related) obligations which are imposed on states. The concept only applies in IAC, as noted in Ch 2, paras 2.103 and 2.130.1. 108 Emphasis added. 109 ICRC Commentary on the AP (n 30) at para 3468. 110 See, eg, Mikos-Skuza (n 23), 228: ‘the weakness of the regime … is less about outdated or controversial provisions, and much more about the lack of efficient means for their implementation’.

332

Attacks Against Hospitals  7.44 7.44  Nevertheless, we make five observations about the substantive IHL framework regarding hospitals: 7.44.1  First, and perhaps unsurprisingly, since the focus of this part of the IHL regime is on protecting buildings rather than people, there is no particular focus on the protection of children, or recognition of their unique vulnerability. However, their entitlement to ‘care and aid’ under both Article 77(1), API and Article 4(3), APII (and pursuant to ICRC, CIL Rule 135),111 is difficult to reconcile with the fact that parties to armed conflict are not required expressly to consider or take measures to ensure the interests of children are accounted for in military planning, nor to minimise the impact of attacks against hospitals on them. We have already considered this issue in Chapter 3. 7.44.2  Second, the existing IHL framework is complex. The relevant rules are set out in a number of treaties accompanied by differing versions of commentaries. Key concepts in the framework are ambiguous and open to interpretation (such as ‘outside their humanitarian duties, acts harmful to the enemy’). Whilst we acknowledge the importance of a flexible framework, we consider that, taken together, the multiplicity of sources, different versions of commentaries and vague terms undermine legal certainty and, therefore, the effectiveness of the law. 7.44.3  Third, although there is consensus that the relevant rules of IHL apply to nonstate armed groups in NIAC, this is not stated clearly in the pertinent treaties.112 The core protections in Common Article 3 apply to them113 and the ICRC has commented that the provisions of APII apply to such groups, ‘regardless of whether they have agreed to abide by the Geneva Conventions or their Additional Protocols’.114 However, no indication is given as to the manner in which enforcement of such obligations will be assured. This lack of substantive regulation leads, in turn, to a substantial enforcement gap: see Chapter 9. 7.44.4  Fourth, the IHL regime envisages, as far as military considerations permit,115 the use of distinctive emblems by hospitals (particularly civilian hospitals) to ensure their identification: see, paragraph 7.34.1 above. This identification is required, as is

111 ICRC Study on Customary IHL (n 29), 479–82. 112 See also, Katja Schöberl, ‘Buildings, Material and Transports’, in Clapham, Gaeta and Sassòli (n 23), 834–835 at para 30, explains that this was in order ‘to avoid any form of recognition of non-state armed groups’. 113 See, eg, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Judgment) [1986] ICJ Rep 14, at para 219; Katherine Footer and Leonard Rubenstein, ‘A Human Rights Approach to Health Care in Conflict’ (2013) 95 IRRC 167, 172–73. See also International Commission of Inquiry on Darfur, ‘Report of the International Commission on Inquiry on Darfur to the UN Secretary-General’ (25 January 2005), para 172 available at . See also Ch 2, paras 2.17 and 2.24. 114 See Footer and Rubenstein (n 113), 173; Annyssa Bellal, Gilles Giacca, and Stuart Casey-Maslen, ‘International law and armed non-state actors in Afghanistan’, in (2011) 93 (881) IRRC 47, 62–63; and Report of the UNSG, ‘Respect for Human Rights in Armed Conflicts’ (20 November 1969), UN Doc A/7720, para 171. 115 Both the 1958 ICRC Commentary on GCIV (n 51), 152 and the 2016 ICRC Commentary on GCI (n 64), paras 2650–53, recognise ‘[t]he danger that marking may facilitate the enemy’s operations’ and that ‘where there is reason to conclude that medical units and establishments will be better protected if they are not marked with the emblem, the competent military authorities may decide that these medical units and establishments will not be marked’ (para 2652; emphasis in original).

333

7.45–7.46  Attacks Against Hospitals and Schools apparent from Article 42, GCI and Article 18, GCIV which refer to ‘shall be hoisted’ and ‘shall be marked’ (emphases added) respectively. However, practice is variable and it is questionable whether this tool is effective in protecting hospitals. For example, parties may not want to use an emblem in the case of military field hospitals for logistical and military reasons so as not to reveal tactical troop deployment116 or they may display a distinctive emblem over a hospital despite its military use. 7.44.5  Fifth, there are practical limitations on the current regime concerning protected zones. The first is that the consent and agreement of the parties is needed before such zones can be established (although, as noted at paragraph 7.34.2(iii)) above non-defended localities may be unilaterally established). This is justified by important reasons of legal principle and practicality. However, it may also involve a cumbersome and sensitive process between belligerents, who may not wish to cooperate in any way, even in order to respect IHL and protect innocent civilians. Second, despite recommending the use of such zones, the BIICL Handbook recognises, ‘[i]n practice … the use of safety zones has proved to have a limited success, especially in non-international armed conflicts’.117 Commentators have also stressed that the regime for hospital zones is ‘no more than a “theoretical possibility”’, since such zones are supposed to be situated at a distance from battle but ‘are difficult to implement in densely populated regions with industrial infrastructure where the fighting is presumed to take place’.118 Suggestions to Improve the Legal Framework 7.45  In light of the above, we make three suggestions for improving the current IHL regime regarding hospitals. 7.46  First, consideration should be given to collecting and codifying the applicable IHL rules in one instrument. In relation to the second and third issues identified above (the complexity of the existing framework and the position of non-state armed groups), we consider that the collection and codification (re CIL) of the relevant rules of IHL (including those set out above, paragraphs 7.28 to 7.39) in a single instrument, ideally with one commentary, would provide clarity and enhance the effectiveness of the law. For example, this would assist in the training of military personnel by making the law more easily identifiable, as well as in engaging with non-state armed groups to assist with their

116 See, eg, Mikos-Skuza (n 23), 212–13. There is also evidence from Syria that certain civilian medical facilities have not used the emblem for fear of deliberate targeting: see UNHRC, ‘Assault on medical care in Syria’, (13 September 2013) UN Doc A/HRC/24/CRP.2, para 6. 117 BIICL (n 23), 212 (at footnote 180). As stated by Human Rights Watch, a perverse outcome from the creation of such zones can be that they: ‘lead large numbers of civilians, often of a particular ethnicity or religion, to congregate in a single place, making them a clear and exposed target for warring parties that may want to attack them. And any area that is off limits for attack will attract fighters, especially members of non-State armed groups, making them less safe. Safe zones by their nature are also rich sources for armed groups to grab aid and new recruits – putting civilians, including children, at additional risk. And the creation of safe zones may suggest that civilians not in safe zones somehow have fewer protections than those inside. This increases the risk of attack or denial of assistance to those outside the zone.’ See Human Rights Watch, ‘Q & A: Safe Zones and the Armed Conflict in Syria’ (16 March 2017) available at . 118 Ronzitti (n 89).

334

Attacks Against Hospitals  7.47–7.48 identification and compliance with such norms. It would also bring greater awareness of the existing legal framework for other relevant stakeholders, which could encourage increased compliance and the use of existing accountability mechanisms. Moreover, in relation to the first issue identified above (the lack of direct consideration of children), if the process of a single instrument is pursued then it would provide an opportunity to consider whether the law could more expressly take account of, and protect, children in armed conflict. 7.47  Second, consideration should be given to developing the law by establishing formal obligations of notification of the location of hospitals between parties to an armed conflict. This would be a potential development in relation to the fourth issue noted above (the questionable effectiveness of distinctive emblems). Thus, the law could be developed by establishing more formal obligations of communication and notification upon parties to armed conflicts in relation to (i) the locations of civilian and military hospitals or (ii) buildings and facilities displaying the distinctive emblems provided for by IHL treaties. Article 12(3), API already invites parties to a conflict to notify each other of the location of their medical units, although this is not mandatory. A more formal obligation to notify could take a range of forms, for example, it could require (i) communication between parties to a conflict to identify, at the outbreak of the conflict, relevant hospitals, with confirmation by a neutral third party (such as the ICRC or another aid society) and (ii) regular inspections by a neutral third party or a joint commission established for this purpose. Such a formal obligation of notification, with its emphasis on the sharing of information between belligerents about ‘no-go’ civilian objects, could strengthen the preexisting regime regarding the use of distinctive emblems (see above, paragraph 7.34.1). However, it may also suffer from the same drawbacks as the distinctive emblem regime. For example, parties may not wish to notify for military reasons or because they fear that such notification would increase, rather than decrease, the hospital’s exposure to risk of attack. It may also have practical drawbacks. For example, consideration would need to be given to how such an obligation could be applied to non-state armed groups. However, the overall impact of an obligation to notify may be to increase the visibility of hospitals and to limit the ability of those parties breaching IHL rules to claim ignorance of their location and status. As such, it merits further consideration. 7.48  Allied to the development of such notification obligations, consideration could also be given to the potential for practical (rather than legal) mechanisms to assist with independent verification in order to address challenges to the protection of hospitals. As we have noted above, the current, general framework of IHL includes the presumption as to the civilian nature of certain objects but this has not always led to the effective protection of hospitals and schools. This may be because of ambiguity regarding the purpose for which a building is being used. A verification procedure, for determining the use of a facility and the intended beneficiaries, may be difficult on the ground but it may be helpful in increasing the prospect that appropriate facilities benefit from legal protection. Such a verification procedure would need political engagement and investment by states and other actors. As with the regime for protective emblems, the verification of sites on the ground would not limit the presumption of the civilian nature of healthcare facilities but should be seen as a mechanism for implementing the protection to which they are entitled as civilian objects by limiting the extent to which parties to armed conflict may challenge 335

7.49  Attacks Against Hospitals and Schools the civilian nature of the objects in question. It could also be used by independent third parties as a tool for reinforcing the existing specific protective regime for hospitals (and, see below, which we suggest should be mirrored for schools). 7.49  Third, consideration should be given to developing the law by reinforcing the use of IHL protected zones. A third potential way in which to reinforce the existing protections in practice (and in response to the fifth point noted above, regarding shortcomings in the use of protected zones) would be to develop the law by expanding, and reinforcing, rules on zones to ensure geographic protections for the vulnerable.119 For example: 7.49.1  Given the potential for such zones to provide relief to civilians, and to reinforce the principle of distinction, parties could be encouraged by international institutions (for example the UNSC) to consider using such zones or consenting to them once proposed. One way of making such encouragement systematic would be if parties were required to designate such zones at the outbreak of an armed conflict, whether IAC or NIAC.120 However, this may be difficult to implement and enforce in practice because, for example, the territory held by different groups may shift and because such zones (even if designated at the outset) may, later, be disregarded. However, a legal obligation of this nature would, at least, be a step in the right direction and begin to encourage the incorporation of this practice into operational planning by parties to a conflict. 7.49.2  To increase the likelihood that a protected zone is more effective than the general prohibition on targeting, the establishment of such a zone could be coupled with concrete measures designed to implement and enforce the parties’ agreement, in circumstances where such agreement is possible. The designation of such a zone could be flexible, to recognise the realities of modern warfare. The examples cited above (paragraph 7.34.4) demonstrate the fact that they can vary from a single building to a wider area. Examples of such measures are as follows. (i) Humanitarian access to the zone could be assured by the parties and guaranteed in the agreement (see Chapter 8).121 Any breach of such an agreement could be reported to the UNSC to consider within the scope of its MRM.

119 The idea of creating protected areas during armed conflicts appears to be attractive to states given the increased use of ‘safety zones’ and other such zones in recent times. See, eg recent discussions between Turkey, the Syrian Government, Russia and Iran regarding the introduction of such zones in Syria. See Aria Bendix, ‘Safe Zones in Syria’, The Atlantic (4 May 2017) available at . 120 Sivakumaran gives an example of this, recording the Ginapaladtaka Declaration in The Philippines relating to a ‘space for peace and children’, according to which certain villages in the area were to be respected as ‘zones of peace’ and could not be used for fighting, even though fighters might continue to live in the zone. See Sivakumaran (n 48), 386. 121 The provision of such access and the delivery of emergency services could be based around the wellestablished principles relating to ‘Child Friendly Spaces’ (CFSs). CFSs consist of a child right’s programming approach used widely since 1999 by NGOs or governments with the involvement of UNICEF, to ‘protect children by providing a safe space with supervised activities, by raising awareness of the risks to children, and mobilizing communities to begin the process of creating a Protective Environment’ – see ‘A Practical Guide for Developing Child Friendly Spaces’, UNICEF, 2009, available at , 9. Integrated programming can include ‘play, recreation, education, health, and psychosocial support’.

336

Attacks Against Hospitals  7.50 (ii) Parties to the conflict could commit resources to monitor the protection of the zone. 7.50  This suggestion – to develop the law by reinforcing the use of protected zones – is not the first of its kind. The draft Convention on the Protection of Children in Armed Conflict proposed by the International Save the Children Union (ISCU) in 1939 (which we have already described in Chapter 1 and attached as Annex I to this book) identified as one of its three substantive protections for children the creation of safe zones (­Articles  3–8 and 12–14). The draft Convention envisaged that each contracting state would designate a list of safe zones which could be used exclusively in times of conflict for the safety of children (Article 3(1)). These zones would benefit from special protection so long as they were exclusively used for the protected purpose (Articles 4 and 8). The proposed rules governing the zones were as follows:122 7.50.1  At the outbreak of conflict, parties were to notify the ISCU of the zones they had identified, which would be treated as accepted zones by other belligerents if no opposition was made after three days.123 7.50.2  These zones were to be created outside of ‘military areas’, urban and industrial centres and far from ‘any military objective’.124 7.50.3  The boundaries of zones would be clearly marked on the ground and in maps.125 7.50.4  The necessary personnel (and their transports) who provided healthcare, education and also the care of the children would be protected while fulfilling their functions.126 7.50.5  The number of adult personnel present in the zone could only be up to 10 per cent of the number of children under care.127 7.50.6  Safe zones were to be placed under the control of three-person Commissions consisting of nationals of neutral parties, designated by the ISCU and approved by the state on whose territory they proposed to exercise their functions128 – which would also pay for their expenses.129 The role of Commissions was to inspect a safe zone, ensure that it was only being used for the protected purpose130 and to investigate any reported violations.131 7.50.7  Occupying Powers were bound to respect safe zones unless they had secured the fate of the affected children in them.132

122 A number of these proposals are reflected in the Draft Agreement set out in Annex I to GCIV. 123 Art 3(2), Save the Children Union, ‘Convention on the Protection of Children in Armed Conflict’ (Draft) (1939). See Annex I of this book. 124 ibid, Art 7. 125 ibid, Art 3(3). 126 ibid, Art 5. 127 ibid, Art 6. 128 ibid, Art 12(1)–(2). 129 ibid, Art 12(6). 130 ibid, Art 12(4)–(5). 131 ibid, Art 13. 132 ibid, Art 14.

337

7.51–7.53  Attacks Against Hospitals and Schools 7.50.8  The draft Convention also proposed the creation of a distinctive emblem for protected objects/zones for children.133 7.51  We recommend a review of the content of the 1939 draft Convention to determine whether parts of it may now be adapted for inclusion in the new instrument which we have suggested: see Chapters 2 and 9. We recognise that some of the proposals in the 1939 draft Convention may raise logistical, political and operational difficulties. We also recognise that the proposals may require modification and further consideration: for example, how to treat children who grow up during the conflict and become adults. However, we consider that the content of the 1939 draft Convention provides a useful starting point for consideration of this issue. 2. ICL The Legal Framework 7.52  ICL recognises grave breaches and other serious violations of IHL and the laws and customs of war as ‘war crimes’ which may lead to individual criminal responsibility. Accordingly, breaches of certain of the general IHL rules, where they relate to hospitals may amount to a war crime under ICL: see paragraphs 7.16 to 7.20 above. For example, Article 8(2)(a)(iv) of the Rome Statute prohibits, as a war crime, the ‘[e]xtensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’. In addition, the Rome Statute confers special protection on hospitals by virtue of its recognition that intentional attacks on those particular buildings are ‘war crimes’. Thus: 7.52.1  Both in relation to IAC134 and NIAC,135 the list of war crimes includes attacking protected objects, in the following terms: [i]ntentionally directing attacks against … hospitals and places where the sick and wounded are collected, provided they are not military objectives.

7.52.2  The list of war crimes in relation to both IAC136 and NIAC137 also includes: [i]ntentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.

7.53  There have, however, been no instances of prosecutions for breaches of these specific provisions in the International Criminal Court (ICC) in relation to hospitals.138 Therefore, there are no practical examples which illustrate the scope of the protections

133 ibid, Arts 9–11. 134 Art 8(2)(b)(ix), Rome Statute. 135 ibid, Art 8(2)(b)(iv). 136 ibid, Art 8(2)(b)(xxiv). 137 ibid, Art 8(2)(e)(ii). 138 As noted in relation to accountability mechanisms below, the Trial Chamber returned a conviction in the Al-Mahdi case under Art 8(2)(e)(iv) of the ICC Statute, but in relation to cultural property. See The Prosecutor v. Ahmad Al Faqi Al Mahdi (Trial Chamber Judgment) ICC-01/12-01/15 (27 September 2016).

338

Attacks Against Hospitals  7.54–7.56 contained in those provisions. The ICC’s ‘Elements of Crimes’,139 an interpretative aid to the Rome Statute pursuant to Article 9, identifies five key components of the war crime of ‘attacking protected objects’.140 The war crime of ‘attacking objects or persons using the distinctive emblems of the Geneva Conventions’ has four elements.141 Problems and Deficiencies in the Legal Framework 7.54  There are no apparent substantive difficulties with the ICL framework: it is clear, and mirrors the IHL regime by criminalising the conduct which breaches the relevant rules of IHL. The key additional criterion in the ICL rules is that of ‘intention’ or knowledge. This is a high threshold and may be difficult to prove in practice.142 However, given the absence of prosecution of these particular offences there is no evidence that the legal rules are themselves deficient in some way. Rather, the real difficulty appears to be in the implementation and enforcement of the existing law: see below, paragraphs 7.93–7.95 and Chapter 9. Suggestions to Improve the Legal Framework 7.55  Given our conclusion above, we make no specific suggestions for the improvement of the ICL framework. 3. IHRL The Legal Framework 7.56  One significance of the IHRL framework is, as noted in Chapter 2, that it may provide the individual victims of attacks on hospitals with directly enforceable rights which are exercisable within domestic or international redress mechanisms. 139 ICC ‘Elements of Crime’ (2011), 23, 36, available at . 140 These are: ‘(i) the perpetrator directed an attack; (ii) the object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives; (iii) the perpetrator intended such building or buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack; (iv) the conduct took place in the context of and was associated with an international armed conflict [or in the context of Article 8(2)(e)(iv) ‘an armed conflict not of an international character’]; and, (v) the perpetrator was aware of factual circumstances that established the existence of an armed conflict’. (emphasis added). 141 These are: ‘(i) the perpetrator attacked one or more persons, buildings, medical units or transports or other objects using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Geneva Conventions; (ii) the perpetrator intended such persons, buildings, units or transports or other objects so using such identification to be the object of the attack; (iii) the conduct took place in the context of and was associated with an international armed conflict [or in the context of Art 8(2)(e)(ii) ‘an armed conflict not of an international character’]; and, (iv) the perpetrator was aware of factual circumstances that established the existence of an armed conflict’. 142 See, for instance, 1958 ICRC Commentary on GCIV (n 51), 147 observing that, ‘[u]nder war conditions, however, such an intention is infrequent and in any case difficult to prove’. See also the Office of the Special Representative for Children and Armed Conflict, ‘Protect Schools + Hospitals Guidance Note on Security Council Resolution 1998’ (2014) (n 15), at 6, which states that, ‘[g]athering details on the intention of parties to deliberately target schools or hospitals may be difficult’.

339

7.57–7.60  Attacks Against Hospitals and Schools 7.57  IHRL treaties: The right to health is protected in a number of IHRL treaties.143 We begin with the ICESCR before turning to the CRC. Our focus is not on the right to health per se but on the extent to which IHRL may provide protection for hospitals, as a source of healthcare, during armed conflict. We take a similar approach to the right to education in relation to attacks on schools at paragraphs 7.116ff below. 7.58  Perhaps the most significant of the IHRL provisions is Article 12, ICESCR, which provides: 1.  The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2.  The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a)  the provision … for the healthy development of the child; … (c) the prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d)  the creation of conditions which would assure to all medical service and medical attention in the event of sickness.

7.59  It is clear from the commentary of the Committee of the ICESCR (CESCR) that it considers that Article 12 is applicable during armed conflict. Thus, in its General Comment No 14, the CESCR explained that the definition of health should take into account such ‘socially-related concerns as violence and armed conflict’ and that States Parties should refrain from limiting access to health services as a punitive measure during armed conflicts.144 Further, the CESCR has stated, ‘even in a situation of armed conflict … basic economic, social and cultural rights … are guaranteed under customary international law and are also prescribed by international humanitarian law’.145 7.60  The right to health under the ICESCR, ‘like all human rights, imposes three types or levels of obligations on States Parties: the obligations to respect, protect and fulfil’.146 The CESCR has further explained that the right to health includes ‘a right to the enjoyment of a variety of facilities … necessary for realization of the highest attainable standard of health’147 and that the ‘essential elements’ of the right include the following: (a)  Availability: Functioning public health and health-care facilities, goods and services, as well as programmes … have to be available in sufficient quantity within the State party … includ[ing …] hospitals … 143 See, eg Art 25, UDHR; Arts 11, para 1(f) and 12, Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (which relate to non-discrimination in the context of health). 144 See CESCR, ‘General Comment No. 14: On the Right to the Highest Attainable Standard of Health (Article 12 of the Covenant)’ (11 August 2000) UN Doc E/C.12/2000/4, para 10, which notes that ‘[a] wider definition of health also takes into account such socially-related concerns as violence and armed conflict’, citing Common Article 3, Art  75(2)(a), API and Art 4(2)(a), APII. Similarly, at para 34, the CESCR emphasised that ‘States should … refrain from unlawfully polluting air, water and soil, e.g … from using or testing nuclear, ­biological or chemical weapons if such testing results in the release of substances harmful to human health, and from limiting access to health services as a punitive measure, e.g. during armed conflicts in violation of international humanitarian law’. 145 CESCR, ‘Concluding Observations, Israel’ (26 June 2003) UN Doc E/C.12/1/Add.90, para 31. 146 CESCR, ‘General Comment No. 14, (n 144) para 33 (emphasis in original). 147 ibid, para 9.

340

Attacks Against Hospitals  7.61–7.63 (b)  Accessibility: Health facilities … have to be accessible to everyone without discrimination.148 (c)  Acceptability. All health facilities … must be respectful of medical ethics and culturally appropriate, … as well as being designed to respect confidentiality and improve the health status of those concerned … (d)  Quality. [H]ealth facilities … must also be scientifically and medically appropriate and of good quality. This requires, inter alia, skilled medical personnel, scientifically approved and unexpired drugs and hospital equipment, safe and potable water, and adequate sanitation.149

7.61  Thus, the right to health requires States Parties to provide, ‘functioning public health and health care facilities, goods and services, as well as programmes … in sufficient quantity’.150 The CESCR has also identified a specific ‘non-derogable’ obligation for states to ‘ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups’.151 These requirements are all potentially jeopardised by attacks against hospitals, ‘[a]s availability or access represent one of the main elements composing these rights, logically their physical protection may be implied or presumed’.152 7.62  Specific examples of the steps necessary to comply with Article 12(1), ICESCR are given by Article 12(2). They include, ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases’.153 This would include, ‘the provision of disaster relief and humanitarian assistance in emergency situations’.154 They also include, ‘provision for the healthy development of the child’,155 which requires States Parties to have as a ‘primary consideration’ in all, ‘policies and programmes aimed at guaranteeing the right to health of children and adolescents their best interests’.156 7.63  The general obligation under the ICESCR, set out in Article 2, involves States Parties: tak[ing] steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of [their] available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

148 The General Comment clarifies that this implicates four principles, which must be respected: (i) nondiscrimination in relation to access to health facilities, especially for ‘the most vulnerable or marginalized sections of the population, in law and in fact’; (ii) physical accessibility, ie health facilities, ‘must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as … children, adolescents’. Physical accessibility is also said to imply that medical services and ‘underlying determinants of health, such as safe and potable water and adequate sanitation facilities, are within safe physical reach, including in rural areas’; (iii) economic accessibility, ie principally affordability; and, (iv) information ­accessibility, ie ‘the right to seek, receive and impart information and ideas concerning health issues’. 149 CESCR, General Comment No. 14 (n 144), para 12. 150 ibid, para 12(a). 151 ibid, paras 43 (a), 47. 152 Giacca (n 27), 56. 153 Art 12(2)(c), ICESCR. 154 CESCR, General Comment No. 14 (n 144), para 16. 155 Art 12(2)(a), ICESCR. 156 CESCR, General Comment No. 14 (n 144), para 24.

341

7.64–7.66  Attacks Against Hospitals and Schools 7.64  The CESCR has explained in its General Comment No 3 that, ‘while the full realization of the relevant rights may be achieved progressively’, ‘deliberate, concrete and targeted’ steps towards meeting that goal must be taken, ‘within a reasonably short time after the Covenant’s entry into force’.157 This obligation is ‘of immediate effect’ in relation to the right to health.158 Moreover, a state that does nothing or takes retrogressive steps in terms of the right involved (such as the right to health) is presumed to have breached the ICESCR.159 7.65  Unlike the ICCPR, there is no general derogation clause in the ICESCR concerning economic and social rights.160 As such, ‘States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant, including essential primary health care …’.161 However, it has been observed that this does not mean that States Parties are required in armed conflict situations, ‘to do the impossible and to guarantee these rights in all their sometimes very detailed aspects to the same extent as in peacetime’, although they must guarantee the minimum core obligations protected by IHRL.162 Thus: If resource constraints render it impossible for a State to comply fully with its Covenant obligations, it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, the obligations outlined above.163

7.66  As is the case with IHRL treaties in general, the ICESCR does not expressly apply to non-state actors.164 However, the CESCR has indicated that: 7.66.1  As part of their international obligations States Parties have to ‘respect the enjoyment of the right to health in other countries, and to prevent third parties from violating the right in other countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United Nations and applicable international law’; and 7.66.2  ‘[A]ll members of society – individuals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil society organizations, as well as the private business sector – have responsibilities regarding the realization of the right to health. States parties should therefore provide an environment which facilitates the discharge of these responsibilities.’165

157 CESCR, ‘General Comment No. 3: The Nature of States Parties’ Obligations’ (1 January 1991) UN Doc E/1991/23, para 2. 158 CESCR, General Comment No. 14 (n 144), para 30. 159 ibid, para 32; CESCR, General Comment No. 3 (n 157), para 9. 160 See, eg Ben Saul, David Kinley, and Jaqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials (Oxford, OUP, 2014), 260–61. 161 CESCR, General Comment No. 14 (n 144), para 43. 162 Amrei Müller, ‘States’ Obligations to Mitigate the Direct and Indirect Health Consequences of Non-International Armed Conflicts’ (2013) 95 (889) IRRC 129, 133. See also ESC, ‘Report on the situation of human rights in Kuwait under Iraqi occupation’ (15 January 1992) UN Doc E/ON.4/1992/26, para 52. 163 CESCR, General Comment No. 14 (n 144), para 47. 164 See Ch 2, para 2.89, cf Ch 4 in relation to Art 4, OPAC and see para 7.70 below regarding the Kampala Convention. 165 CESCR, General Comment No. 14 (n 144), paras 39–40.

342

Attacks Against Hospitals  7.67–7.70 7.67  The protections in other IHRL treaties reflect these general provisions. The CRC protects children’s right to health in Article 24 (which recognises the right of the child to the ‘highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health’). Also, as mentioned above, it contains in Article 3 a specific obligation regarding the maintenance of certain buildings including hospitals.166 The importance of the right to health has been recognised by the UN Committee on the Rights of the Child (CRC Committee), which has emphasised that, ‘[n]ot only is children’s right to health important in and of itself, but also the realization of the right to health is indispensable for the enjoyment of all the other rights in the Convention.’167 It has also observed that the notion of ‘the highest attainable standard of health’ takes into account: both the child’s biological, social, cultural and economic preconditions and the State’s available resources, supplemented by resources made available by other sources, including nongovernmental organizations, the international community and the private sector.168

7.68  This includes, ‘a need to recognize the particular challenges to children’s health for children affected by humanitarian emergencies’ and that all, ‘possible measures should be taken to ensure that children have uninterrupted access to health services’.169 Similarly, Article 39, CRC provides that ‘States Parties shall take all appropriate measures to promote physical and psychological recovery … of a child victim of … armed conflicts.’ 7.69  Regional treaties: A number of regional instruments also protect the right to health, to similar effect as the international treaties identified above.170 None of these instruments specifically address the protection of hospitals from attacks. 7.70  However, two instruments are notable. First, the Protocol to the ACHPR on the Rights of Women in Africa (the ‘Maputo Protocol’), which introduces a specific obligation on States Parties to ‘reduce military expenditure significantly in favour of spending on social development in general’.171 As noted below, in the absence of any enforcement of this provision to date by the African Commission or the African Human Rights Court, it is unclear how this will be applied in practice. Second, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (2009) (the Kampala Convention), which entered into force on 6 December 2012. Article 1(e) of this Convention extends the treaty to armed groups and non-state actors. Members of armed groups are prohibited from a number of acts, including, ‘[d]enying internally displaced persons the right to live in satisfactory conditions of …. health and shelter’.172

166 The continued application of the CRC during armed conflict is considered in Ch 2, para 2.36. 167 CRC, ‘General Comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health’ (17 April 2013), UN Doc CRC/C/GC/15, para IIA. 168 CRC, General Comment No. 15 (n 167), paras 23–24. 169 ibid, para 40. 170 Art 16, ACHPR; Art 10, Additional Protocol to the ACHR in the Area of Economic, Social and Cultural Rights, (adopted on 17 November 1988, entered into force 16 November 1999) OAS TS No 69, (1989) 28 ILM 156; Art 35, EU Charter; Art 11, European Social Charter (revised) (adopted on 3 May 1996 and entered into force 1 July 1999) ETS 163. 171 Art 10(3), Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (adopted on 11 July 2003, entered into force on 25 November 2005), CAB/LEG/66.6, (2001) 1 Afr Hum Rts LJ 40. 172 Art 7(5)(c), Kampala Convention.

343

7.71–7.73  Attacks Against Hospitals and Schools However, the Convention is primarily addressed to states and it considers non-state actors primarily by way of states’ obligations to ensure the accountability of non-state actors.173 Problems and Deficiencies in the Legal Framework 7.71  Unsurprisingly, the IHRL legal framework is general, since it applies to a range of situations unrelated to armed conflict. It relies upon broad and undefined concepts such as the ‘the highest attainable standard of physical and mental health’ and the availability of health facilities ‘in sufficient quantity’.174 This is understandable; it allows for flexibility, but the ‘exact contours of the concrete obligations remain tentative at best’.175 We therefore consider that one deficiency in the current IHRL framework, insofar as the protection of children in hospitals is concerned, is that the legal framework does not expressly address the context of armed conflict. 7.72  In particular, there is little guidance on what is required of states in the context of armed conflict. For example, the concept of ‘sufficient facilities’ appears primarily focused on the construction of, and investment in, additional facilities. It is unclear what, if any, scope there is for an obligation to repair and maintain hospitals attacked during armed conflict.176 As the Special Representative noted in her most recent annual report, ‘[p]articularly in protracted conflict situations, where there are scarce resources to invest in education, physical damage to schools may take years to rectify. … attacks on education may therefore not only lead to a temporary interruption of children’s access to schools, but also may close the doors to education for a lifetime.’177 Although IHL may fill the gap in terms of the obligation to protect, it does not address repair and maintenance. These may not be key concerns in the context of attacks on hospitals in armed conflict but the practical consequence is that where hospitals are attacked, there is no developed IHRL on which civilians, and children in particular, may rely to assert that there is a state obligation to repair and maintain. Suggestion to Improve the Legal Framework 7.73  In light of the above, one way of improving the existing IHRL framework ­regarding attacks against hospitals would be for guidance in a General Comment by the CESCR or the CRC Committee or indeed in a joint General Comment.178 This could specifically

173 ibid, Art 7(4). 174 We note that similar language is used in Art 24(1), CRC. See CRC, General Comment No. 15 (n 167), at para VI(E)(2)(a), which offers some guidance on the concept of ‘sufficiency’ but this does not take matters much further: ‘[s]ufficiency should be measured according to need with particular attention given to under-served and hard to reach populations.’ 175 Giacca (n 27), 36 and 38. 176 Although certain treaty bodies have on occasion called on States to ‘expedite the reconstruction of [educational] facilities as appropriate’ (see CRC, ‘Concluding observations: Yemen’ (26 February 2014), UN Doc CRC/C/OPAC/YEM/CO/1, para 30), this is not systematic. 177 See UNGA, ‘Report of the Special Representative of the Secretary-General for Children and Armed Conflict’ (2 August 2017) UN Doc A/72/276, 5, para 14. 178 We note that there are precedents for such joint General Comments, see, eg the ongoing consultation on the ‘Joint General Comment on the Human Rights of Children in the Context of International Migration’

344

Attacks Against Hospitals  7.74–7.77 address attacks against hospitals and healthcare facilities in the context of armed conflict including the obligations to repair and maintain facilities that have been attacked. B.  Accountability Mechanisms 7.74  For a general overview of accountability mechanisms see Chapter 2. In the sections below we set out illustrations of the ways in which existing accountability mechanisms have been used in relation to attacks on hospitals in armed conflict, organised along the spectrum explained in Chapter 2, at paragraph 2.92 and grouped by reference to IHL, ICL and IHRL. We then go on to consider specific problems with those existing mechanisms, as they arise in the context of this Chapter, and finally, suggestions for improvement. More general analysis of accountability is in Chapter 9. 1.  Application of Accountability Mechanisms IHL: Adjudicative Accountability Mechanisms 7.75  Domestic courts. As noted in Chapter 2, it is beyond the scope of this book to analyse domestic implementation and enforcement of international law obligations, although this is a significant part of the existing accountability framework. Some of the conventional IHL obligations identified above in relation to hospitals require domestic implementation by States Parties to the relevant conventions and, ­unsurprisingly, ‘attacks on hospitals, medical units and transports are criminalised by the legislation of many States’.179 The ICRC maintains a database which shares information on domestic implementation measures relating to the Geneva Convention provisions, notified to the ICRC by States Parties.180 18 States have made such notifications in relation to explicit implementing measures, concerning the protection of health care.181 7.76  International and regional courts. Aside from international criminal tribunals, which have considered IHL in relation to hospitals in assessing the content of the equivalent war crimes, we have not found any notable examples of cases before international or regional courts concerning attacks against hospitals and applying IHL. 7.77  Treaty bodies: as we have noted in Chapter 3, paragraph 3.122, there are no treaty bodies specific to IHL but there is the possibility that the CRC Committee and the ACRWC Committee could consider IHL, for example in interpreting and applying

of the CRC and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) available at . 179 Commentary to ICRC, CIL Rule 156, ICRC Study on Customary IHL (n 29), 595. 180 Available at . 181 Available at .

345

7.78–7.79  Attacks Against Hospitals and Schools Article 38, CRC and Article 22, ACRWC, respectively. UN treaty bodies have expressed concern over attacks against hospitals and civilian populations.182 IHL: Other Accountability Mechanisms 7.78  International Humanitarian Fact-Finding Commission (IHFFC). See Chapter 2, paragraph 2.112 for an introduction to the IHFFC. This mechanism was recently used for the first time, relating to an incident in Eastern Ukraine.183 A recent, high profile example of the proposed reliance upon this mechanism was the call by Médecins Sans Frontières on the US and Afghanistan to consent to the use of the Commission following the attack on the hospital in Kunduz in 2015.184 Nothing came of this initiative: indeed neither the US nor Afghanistan are States Parties to the relevant declaration of r­ ecognition. So this mechanism is still untested in the context of attacks against hospitals. 7.79  UNSC. There are two principal ways in which the UNSC has contributed to accountability for IHL violations regarding attacks on hospitals. The first is by expressions of concern and condemnation of such violations in its Resolutions. The second is by the imposition of sanctions against individuals or entities responsible for such attacks. 7.79.1  Expressions of concern and condemnation of violations of IHL by attacks on hospitals. Since UNSC Resolution 1998 in 2011 (by which attacks on hospitals and schools were included as a trigger violation for the MRM), the UNSC has condemned attacks against hospitals in a number of Resolutions. It has focussed on ‘recurrent’ attacks, making clear that ‘this excludes single, isolated incidents or the random conduct of an individual acting alone’.185 By paragraph 4 of Resolution 1998, the UNSC explicitly urged, ‘parties to armed conflict to refrain from actions that impede children’s access to education and to health services’. In a more recent Resolution,186 the UNSC stressed that, ‘identification of … hospitals and other medical facilities may enhance their protection’. The UNSC: (i) condemned attacks against hospitals (­paragraph 1); (ii) demanded that parties respect the IHL rules prohibiting attacks against them (paragraph 2) and (iii) strongly urged ‘States and all parties to armed conflict to develop effective measures to prevent and address acts of violence, attacks and threats’ against them, as well as to investigate and hold to account persons guilty of any violations (paragraphs 7 and 9).

182 For instance, in its ‘Concluding Observations on Sudan’ in 2000, the CESCR stated, ‘The Committee is concerned at the bombardment of villages and camps of the civilian population, in the war zones in southern Sudan, including the bombing of schools and hospitals’, CESCR, ‘Concluding Observations: Sudan’ (1 September 2000) UN Doc E/C.12/1/Add.48, para 25. 183 A redacted summary of the investigation’s findings was published on 6 September 2017, ‘Executive Summary of the Report of the Independent Forensic Investigation in relation to the Incident affecting an OSCE Special Monitoring Mission to Ukraine (SMM) Patrol on 23 April 2017’, available at . 184 See, eg ‘After Obama apology, MSF still wants independent investigation of Kunduz: statement’, Reuters, 7 October 2015, available at . 185 See Office of the Special Representative for Children and Armed Conflict, ‘Protect Schools + Hospitals Guidance Note on Security Council Resolution 1998’ (n 15), 13. 186 UNSC Res 2286 (7 March 2016) UN Doc S/RES/2286, para 7.

346

Attacks Against Hospitals  7.80 7.79.2  Sanctions. Four examples of UNSC sanctions regimes that have included ‘attacks on … hospitals’ within their designation criteria for individuals or entities are as follows: (i) South Sudan187 (ii) Democratic Republic of Congo (DRC)188 (iii) Somalia/Eritrea189 and (iv) the Central African Republic (CAR).190 The Somalia/ Eritrea regime is wider than the other regimes, since the other regimes each require such attacks to be ‘acts that undermine the peace, stability or security of [the DRC, South Sudan or CAR]’, whereas the Somalia/Eritrea regime includes attacks on hospitals as a separate ­criterion. In relation to implementation, and by way of illustration we note the following. (i) South Sudan Sanctions Committee: at least one individual has been designated under this regime for attacks on hospitals and schools.191 (ii) CAR Sanctions Committee: the Lord’s Resistance Army (LRA) has been designated under the relevant criterion for attacks against ‘civilian buildings’, although it is unclear whether these correspond to attacks on hospitals.192 7.80  MRM. UNSC Resolution 1998 draws a distinction between ‘recurrent attacks’ against hospitals and their military use. The former can lead to responsible parties being listed by the Secretary-General (paragraph 3), whereas the latter is conduct which States are required to monitor and report on (paragraph 4). The Secretary-General’s annual reports regularly record attacks against hospitals and have listed parties to armed conflict on that basis.193 They paint a picture of recurring attacks against hospitals, often in the

187 UNSC Res 2206 (3 March 2015) UN Doc S/RES/2206 includes within its list of ‘actions or policies that threaten the peace, security or stability of South Sudan’, ‘attacks on schools, hospitals’ (paras 6–7(d)). This has been extended until 31 May 2018 by para 1 of UNSC Res 2353 (24 May 2017), UN Doc S/RES/2353. 188 UNSC Res 2293 (23 June 2016) UN Doc S/RES/2293, para 7(e) was the first under the DRC regime to include ‘planning, directing, or committing acts in the DRC that constitute human rights violations or abuses or violations of international humanitarian law, as applicable, including those acts involving … attacks on schools and hospitals’. This has been extended until 1 July 2018 by paras 1–2 of UNSC Res 2360 (21 June 2017) UN Doc S/RES/2360. 189 UNSC Res 2002 (29 July 2011) UN Doc S/RES/2002, para 1(e) including as a criterion for designation ‘­violations of applicable international law in Somalia involving … attacks on schools and hospitals’; as did UNSC Res 2093 (2013), para 43(e). The mandate of the Monitoring Group has been extended until 15 December 2018 by virtue of para 46 of UNSC Res 2385 (14 November 2017), UN Doc S/RES/2385. 190 UNSC Res 2262 (26 January 2016) UN Doc S/RES/2262, at para 13(b): ‘acts that violate international human rights law or international humanitarian law, as applicable, or that constitute human rights abuses or violations’ include ‘attacks on schools and hospitals’. See also UNSC Res 2339 (27 January 2017) UN Doc S/RES/2339, para 17(b); UNSC Res 2399 (30 January 2018) UN Doc S/RES/2399, para 21(b). This has been extended until 31 January 2019 by para 16 of Resolution 2399. 191 See ‘Narrative Summaries of Reasons for Listing’, SSi.003 JAMES KOANG CHUOL, listed on 1 July 2015, for, inter alia, attacks on hospitals and schools in Unity State, South Sudan; available at . 192 ‘Narrative Summaries of Reasons for Listing’, CFe.002 LORD’S RESISTANCE ARMY, listed on 7 March 2016, available at . The founder and leader of the LRA was also designated for attacks against civilian property on 7 March 2016, CFi.009 Joseph KONY available at . 193 See, eg the Houthis/Ansar Allah listed in Annex I to the UNSG’s 2016 Annual Report, UNGA, ‘Report of the Secretary-General: Children and Armed Conflict’ (n 19), on the basis of three attacks against Aden Hospital – see para 170 and Annex I.

347

7.81–7.82  Attacks Against Hospitals and Schools same states or within the context of the same armed conflict. For example, many of the recent attacks recorded against hospitals have been carried out in the context of continuing conflicts in Afghanistan, Syria and the DRC. One example of a recent high-profile incident reported by the MRM was the attack by international forces on the Médecins Sans Frontières hospital in Kunduz in Afghanistan in October 2015, which caused the deaths of, and injuries to, 49 medical staff. The hospital was ‘the only fully functioning trauma care facility for the north-eastern region of Afghanistan and had provided lifesaving procedures to 5,000 people in the period running up to the attack’.194 7.81  Special Representative for Children and Armed Conflict: The annual reports of the Special Representative have repeatedly highlighted concerns arising from attacks against hospitals.195 7.82  Other monitoring and data gathering: Both the WHO and the Red Cross and Red Crescent Movement, including the ICRC, have ongoing programmes to monitor attacks against healthcare practitioners and report on their treatment in armed conflicts. 7.82.1  The WHO’s ‘Attacks against Health Care’ programme is designed to record the number of attacks on healthcare facilities and practitioners and thus to serve as a ‘publicly available source of consolidated information on attacks on health care in emergencies’.196 7.82.2  The Red Cross and Red Crescent’s ‘Health Care in Danger’ initiative also records recent experiences of healthcare practitioners in armed conflicts. In its April  2016 Report, the ICRC recommended that states ‘collect data on interferences with and/or violence against the delivery of health care in their countries’ (­paragraph  1.1).197 This invitation has been taken up by certain states, for instance the Report records that the Armed Forces of Liberia (AFL) incorporated Health Care in Danger recommendations into their military training manual with the help of the ICRC (paragraph 6). The Report also records best practices for use by States Parties to the Geneva Conventions, including in respect of targeting and precautionary steps, such as, ‘map[ping] the locations of health-care facilities and the essential services on

194 Report of the Special Representative for Children and Armed Conflict (25 July 2016) UN Doc A/71/205, para 6. See also ICRC, ‘Afghanistan: Hospitals are under attack, and children are paying the price’ (30 May 2017), available at . A US Defense Department investigation concluded that the attack violated the laws of war, but was not a war crime because the hospital was not targeted intentionally. The Defense Department disciplined twelve military personnel, including by demoting an officer, publicly apologised for the attack, and made changes to policies to prevent similar incidents in the future. US Central Command, ‘CENTCOM releases investigation into airstrike on Doctors Without Borders trauma center’ (29 April 2016), available at . 195 See, for example, the Special Representative’s latest annual report which contains a section assessing attacks on hospitals as part of a set of ‘[e]merging issues and challenges’ (in relation to children and armed conflict). See UNGA, ‘Report of the Special Representative of the Secretary-General for Children and Armed Conflict’ (2 August 2017) UN Doc A/72/276, 4–6. 196 Information on the programme is available at and in WHO, ‘Attacks on Health Care: Report on Attacks on Health Care in Emergencies’ (n 21). 197 ‘Protecting Health Care: Key Recommendations?, available at https://shop.icrc.org/protecting-health-carekey-recommendations.html?___store=default.

348

Attacks Against Hospitals  7.83–7.86 which they depend in their areas of responsibility and the immediate vicinity of those areas’ (paragraph 6.3). This initiative is optional and no consequences arise from the failure to record such data. 7.83  NGOs. The work of Geneva Call has led to a number of armed non-state actors, including in Myanmar, India, Sudan and Syria, entering into Deeds of Commitment.198 The Deeds of Commitment include a commitment to, ‘endeavour to provide children in areas where we exercise authority with the aid and care they require [including] i) tak[ing] concrete measures towards ensuring that children have access to adequate food, health care (including psycho-social support), education, [and to] v) avoid using for military purposes schools or premises primarily used by children’ (paragraph 7). ICL: Adjudicative Accountability Mechanisms 7.84  Domestic courts. As noted elsewhere, it is beyond the scope of this book to consider domestic criminal laws enforced before domestic courts but these are an important accountability mechanism. 7.85  ICC and special tribunals. The ICC and the East Timor Tribunals199 have specific jurisdiction to consider attacks against hospitals under their relevant statute/regulations. However, there have been no relevant prosecutions before either of these bodies.200 The only case before the ICC which appears to have referred to the protection of hospitals – in passing – is the judgment of the Trial Chamber in the Al-Mahdi case.201 This is likely to be partly attributable to the limited ratifications of the Rome Statute. 7.86  The ICTR has referred to the protection of hospitals in the context of Common Article 3 and APII but, as one commentator has noted, ‘this was not reflected in its judgments due to fact that the Tribunal did not establish that the accused had violated their protected status’.202 ICTR judgments have not therefore dealt with the special protection of hospitals in any detail. For example: 7.86.1 In Prosecutor v Casimir Bizimungu et al, the ICTR considered allegations relating to murders and other crimes committed at the Centre Hospitalier de Kigali (CHK) and the Kibungo hospital, rather than attacks on the facilities themselves (although this included incidents of bombing of the hospital). It did not consider that it had enough clarity and precision about the relevant facts.203 198 As of 2 February 2018, the total figure reported by the NGO was 26 armed non-State actors (ANSAs) as signatories to the Deed of Commitment and having taken measures to enforce their obligations including, most recently, four brigades of the ‘Free Syrian Army’ active in Northern Syria. See Geneva Call, ‘Syria: 4 brigades of the Free Syrian Army commit to prohibit sexual violence and the use of child soldiers’ (3 July 2017) available at . 199 See Ch 2, para 2.132ff. 200 The ICC is currently conducting a preliminary investigation into allegations of, inter alia, attacks on medical facilities and schools in Gaza during Operation ‘Protective Edge’ in 2014, but this remains at an initial stage, ‘Report on Preliminary Examination Activities’, The Office of the Prosecutor, 14 November 2016, paras 127–28. 201 See Al Mahdi (n 138). In its judgment, the Trial Chamber simply mentioned in passing that ‘[t]he Geneva Conventions also recognised the need for special protection of objects – like hospitals – which are already protected as civilian objects’ (at para 14). 202 Mikos-Skuza (n 23), 224. 203 Prosecutor v Casimir Bizimungu (Trial Chamber Judgment) ICTR-99-50-T (30 September 2011), paras 659–64 and 878–95.

349

7.87–7.90  Attacks Against Hospitals and Schools 7.86.2 In Prosecutor v Pauline Nyiramasuhuko et al, the ICTR considered alleged war crimes committed through an attack on Tutsis taking shelter at Matyazo Clinic204 and Butare University Hospital.205 The Trial Chamber concluded that one of the defendants, Joseph Kanyabashi, was responsible on the basis of superior responsibility for the massacre at Matyazo Clinic.206 7.87  By contrast, the special protection of hospitals has been analysed by the ICTY. For example, in Prosecutor v Stanislav Galić, the ICTY Appeals Chamber considered charges relating to an attack which occurred in hospital grounds.207 Galić contended that the Sarajevo Romanija Corps (part of the Army of the Republika Srpska) was lawfully permitted to fire at a hospital because the Bosnia-Herzegovina Army was using it as a military base and weapons were fired from hospital grounds. The Tribunal analysed the conditions in which medical units retain or forfeit their protection. It stressed the temporary nature of the loss of protection and identified the relevant circumstances, ‘where a hospital is used for one of the hostile purposes articulated [in the ICRC Commentary], or for an analogous purpose, or for a purpose even more obviously hostile, the hospital loses protection and becomes a legitimate military objective while used for that purpose’.208 It concluded that since shells had been fired from the hospital by the forces of Galić, the hospital had lost the relevant protection, although ‘military activity does not permanently turn a protected facility into a legitimate military target. It remains a legitimate military target only as long as it is reasonably necessary for the opposing side to respond to the military activity’.209 It then disaggregated those attacks which, ‘because of their timing or because of the weaponry deployed, cannot be construed as attacks against a legitimate military target’ and others which were aimed at legitimate military targets,210 concluding that some were ‘examples of the campaign of attacks against civilians’.211 IHRL: Adjudicative Accountability Mechanisms 7.88  Domestic courts: The enforcement of domestic human rights norms concerning the right to health (whether reflective of IHRL or analogous to its protections) is an important accountability mechanism. However, as above, this is beyond the scope of this book. 7.89  International and regional courts: We are not aware of any notable cases before international or regional courts which have considered IHRL in the context of attacks against hospitals in armed conflict. 7.90  Treaty bodies: In general, UN treaty bodies have provided limited guidance on the question of attacks against hospitals. As one commentator has noted, ‘[t]he general practice of the UN human rights treaty bodies over the last decades has been to continue



204 Nyiramasuhuko

(n 7), para 2012ff. para 512ff. 206 ibid, paras 5715, 5820, 5823–26. 207 Galić (n 6), paras 336–46. 208 ibid, paras 340 and 344. 209 ibid, para 346. 210 ibid, paras 347–50. 211 ibid. 205 ibid,

350

Attacks Against Hospitals  7.91 the traditional peace-time focus, leaving war-time situations to other methods of conflict resolution’. In particular, ‘[e]conomic, social and cultural rights (esc-rights) … have received little or no attention’.212 However, at a general level, we note the following: 7.90.1  CESCR. The CESCR has often referred to the fact that armed conflict may affect the ability of states to provide for the realisation of economic and social rights.213 It has also recognised the obstacles faced by States Parties in complying with their IHRL obligations in the context of armed conflicts.214 However, it has emphasised that, ‘it is precisely in situations of crisis, that the Covenant requires the protection and promotion of all economic, social and cultural rights, in particular of the most marginalized and disadvantaged groups of the society, to the best of its ability under the prevailing adverse conditions’.215 7.90.2  CRC. The CRC has occasionally criticised the prioritisation of resources by states, noting with concern, ‘the marginalisation of social sector spending, as indicated by the considerable military expenditure in contrast to allocations for health and education’ and urged the relevant State to prioritise specific budgetary allocations to implement the rights of children.216 In the context of airstrikes and fighting in eastern Aleppo in October 2016, the Chair of the CRC Committee condemned the ‘targeting [of] children in situations of armed conflict … including attacking places such as schools and hospitals, which might amount to war crimes under international humanitarian law.’217 Although the CRC has jurisdiction to receive complaints this has never been exercised in the context of attacks on hospitals in armed conflict. This is likely to be at least partly attributable to the lack of ratifications of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure (OP3). IHRL: Other Accountability Mechanisms 7.91  We do not repeat in this section those IHL accountability mechanisms that are equally applicable to IHRL, eg the MRM.

212 See Eibe Reidel, ‘Economic, Social and Cultural Rights in Armed Conflict’ in Clapham, Gaeta and Sassòli (n 23), 441–42. 213 See CESCR, ‘Concluding Observations: Afghanistan’ (21 May 2010) UN Doc E/C.12/AFG/CO/2-4, para 12; and CESCR, ‘Concluding Observations: Sri Lanka’ (16 June 1998) UN Doc E/C.12/1/Add.24, paras 5–7 and 21. Nepal has explicitly recognised the prioritisation of resources when formally responding to the CESCR’s conclusions that the right to health has been violated: CESCR, ‘Report of Nepal (Second Periodic Report)’ (7 August 2006) UN Doc E/C.12/NPL/2, para 123. 214 See, for instance, CESCR, ‘Concluding Observations: DRC’ (20 November 2009) UN Doc E/C.12/COD/ CO/4, para 6; CESCR, ‘Concluding Observations: Kyrgyzstan’ (31 December 2003) UN Doc E/2001/22, para 7; CESCR, ‘Concluding Observations: Nepal’ (16 January 2008) UN Doc E/C.12/NPL/CO/2, para 10. 215 CESCR, ‘Concluding Observations: Colombia’ (21 May 2010) UN Doc E/C.12/COL/CO/5, para 7. 216 CRC, ‘Concluding Observations: Sudan’ (1 October 2010) UN Doc CRC/C/SDN/CO/3-4, para 17. CRC, ‘Concluding observations: Central African Republic’ (08 March 2017) UN Doc CRC/C/CAF/CO/2, paras 12–13; ‘Concluding observations: Democratic Republic of the Congo’, (07 Mar 2012) UN Doc CRC/C/OPAC/COD/ CO/1, para 18. 217 See UN OHCHR, ‘Suffering inflicted on Aleppo’s children ‘brutal abdication of human rights obligations’ – UN experts’ (3 October 2016), available at .

351

7.92–7.95  Attacks Against Hospitals and Schools 7.92  UN Special Rapporteur: in April 2002, the UN Commission on Human Rights established a new mandate for a Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health. Commentators have noted, ‘the medical and nursing community [had] urged the Human Rights Commission to create a Special Rapporteur on attacks on health workers’, but the ultimate mandate extended more widely.218 The Special Rapporteur’s report in 2013 specifically considered, ‘the right to health obligations of States and non-State actors towards persons affected by and/or involved in conflict situations’.219 It concluded, ‘[c]onflict affects health not only through direct violence, but also through the breakdown of social structures and health systems, and lack of availability of underlying determinants of health. This leads to a high incidence of preventable and treatable conditions including malaria, diarrhoea, pneumonia and malnutrition’.220 2.  Problems and Deficiencies in Accountability Mechanisms 7.93  General problems and deficiencies in existing accountability mechanisms are considered in Chapter 9. Those include the lack of accountability provided by the existing adjudicative mechanisms on the international plane, including the ICC and the CRC Committee, because of the limited ratifications of the Rome Statute and OP3. The observations above, at paragraphs 7.85 and 7.90.2, noting the lack of complaints before the CRC Committee and the ICC in the context of attacks on hospitals illustrate this ­deficiency. We also note two specific problems in the context of the issues considered in this Chapter. 7.94  First, the inconsistent use of sanctions. The practice in relation to the designation of individuals or entities engaged in attacks on hospitals appears to be inconsistent – for instance neither of the parties (originally) listed for such attacks in Yemen in the Secretary-General’s 2016 report (‘Houthis/Ansar Allah’ and ‘Saudi Arabia-led coalition’) have been designated by the Yemen Sanctions Committee. 7.95  Second, gaps in data. Certain observations suggest that there may be only a partial picture about the impact of attacks against hospitals, and, therefore, limited analysis of the consequences which may be relevant for the purposes of the protections existing under the legal framework. For instance, in the 2016 WHO Report, the authors recorded: [t]he most significant gap in the available data is the lack of information on the consequences of attacks on health care delivery, on the health of affected populations, on health systems, on the health workforce, and on longer-term public health. While the consequences are difficult to estimate and quantify due to constantly changing catchment populations and limited baseline information, a priority for data collection on attacks on health care should be to document and describe these consequences.221

218 Footer and Rubenstein (n 113), 186. 219 UNGA, ‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health’ (9 August 2013) UN Doc A/68/297 available at . 220 ibid, 1. 221 See WHO, ‘Attacks on Health Care: Report on Attacks on Health Care in Emergencies’ (n 21), 9.

352

Attacks Against Hospitals  7.96–7.99 3.  Suggestions to Improve Accountability Mechanisms 7.96  In light of the above, we begin by noting, in the context of attacks of hospitals, the need for further ratification of OP3 and the Rome Statute to enable the possibility of greater accountability where the protections of the CRC and the Rome Statute are violated. We also make two specific suggestions for improving the accountability mechanisms regarding attacks against hospitals. 7.97  First, more consistent use of UNSC sanctions. As in Chapters 3 and 4, we suggest that consideration is given to whether the use of targeted sanctions, as a means for securing accountability for attacks on hospitals, could be made more consistent and systematic. 7.98  Second, improving data gathering systems. A necessary step to ensuring effective protection for hospitals is to gather relevant information on attacks against hospitals, especially regarding the consequences of such attacks. Viewed in the context of accountability, the purpose of such information-gathering is potentially threefold: (i) for rapid response and recovery after an attack; (ii) deterrence and prevention of future attacks and (iii) condemnation and enforcement of existing rules against those who have violated the existing framework.222 As the WHO has recognised, its current data collection is limited and does not fully examine the consequences of attacks against healthcare facilities. Priority may need to be given to the development of data gathering tools, such as mobile applications (similar to the training tool developed by Watchlist, considered below). 7.99  One growing area of focus could be the use of satellite imagery to identify and map breaches of the legal framework identified above. For example, the Office of the United Nations High Commissioner for Human Rights has relied on satellite imagery to establish its factual findings, including an attack against a hospital in Libya,223 as has the Independent International Commission of Inquiry on the Syrian Arab Republic in relation to attacks against schools in Syria.224 A number of initiatives exist to support such work: 7.99.1  The UN has its own satellite imagery resource, UNOSAT, which is a programme of the United Nations Institute for Training and Research (UNITAR). It provides satellite imagery and related geographic information, research and analysis to UN humanitarian and development agencies, their implementing partners and UN Member States in order to support a number of their functions, including the ‘Application of International Humanitarian Law’ and ‘Human Rights’ ­enforcement.225 For example, in a report examining the 2014 conflict in Gaza, UNOSAT recorded the impact of aerial bombardments of healthcare facilities as well as educational ­institutions.226 More recently, UNOSAT has also developed an application for mobile

222 See Brendan O’Malley et al, ‘Protecting Education from Attack: A State-of-the-Art Review’ (2010) available at . 223 UNHRC, ‘Investigation by the Office of the United Nations High Commissioner for Human Rights on Libya: detailed findings’ (23 February 2016), UN Doc A/HRC/31/CRP.3, para 115. 224 UNHRC, ‘Human rights abuses and international humanitarian law violations in the Syrian Arab Republic, 21 July 2016–28 February 2017’ (10 March 2017) UN Doc A/HRC/34/CRP.3, para 29. 225 General information on this resource is set out on its website: . 226 See Narjess Saidane, ‘Impact of the 2014 Conflict in the Gaza Strip: UNOSAT Satellite Derived Geospatial Analysis’, (30 September 2014), 12–17, available at . Similar analysis has been carried out in relation to attacks against hospitals in Syria, see, Valerie Amos, ‘Four Years of Human Suffering: The Syria conflict as observed through satellite imagery’ (2014) 19–20, 27 and 43, available at . 227 See ‘UN-Asign crowd-source photos mobile app’ (webpage) available at . 228 ‘The Signal Program on Human Security and Technology’ (webpage) available at . 229 Available at . 230 The project has produced country reports on Sudan, South Sudan, CAR and DRC, available at , although none appear specifically to refer to attacks on hospitals. 231 Human Rights Watch (n 23), 18, 33. 232 BIICL (n 23), 213; BIICL, ‘Protecting Education in Insecurity and Armed Conflict: New Developments 2015’ (2015) available at ; BIICL, ‘Protecting Education in Insecurity and Armed Conflict: New Developments 2014’ (2014) available at ; BIICL, ‘Protecting Education in Insecurity and Armed Conflict: New Developments 2013’ (2013) available at .

354

Attacks Against Schools  7.103–7.105 described at paragraph 7.16 above. Although, as we have noted above, the general IHL principles provide adequate protection in theory, the practical effectiveness of these protections is questionable in light of the continuing prevalence of attacks against schools. This suggests that the existing IHL protective framework requires attention and improvement.233 Consideration should, therefore, be given to developing a specific IHL regime for attacks against schools, similar to that governing hospitals. This would enhance existing protections and emphasise the importance of protecting schools. Of course a strengthened substantive framework does not necessarily lead to greater compliance and accountability; this is illustrated by the fact that even though hospitals benefit from special IHL protections they are still frequently targeted. However a strengthened substantive framework, coupled with the improvements in accountability that we suggest at paragraph 7.142 below, may eventually lead to greater compliance. 7.103  As noted above, in this Chapter we adopt the definition of a ‘school’ as used in the report of the Special Representative for Children and Armed Conflict. That definition is broad and includes ‘all school-related spaces’ recognised and known by the community as a learning space, although they ‘may or may not be marked by visible boundaries or signage’ (see paragraph 7.8.5 above). A.  Legal Framework 7.104  In summary, as noted in Part II above, schools are protected by the general IHL rules that protect civilian objects. Unlike hospitals, there is no specific IHL rule prohibiting attacks on schools, as such. However, such attacks are prohibited by specific rules of ICL, while schools are also recognised as critical for the realisation of the rights of ­children under IHRL, in particular the right to education. 1. IHL The Legal Framework 7.105  Under IHL, schools are presumed to be civilian objects and are therefore protected against attack until they can be shown to be otherwise.234 As is the case for all other civilian objects, protection may cease when schools are turned into military objectives.235 The military use of schools exposes them to potential targeting as military objectives.236 233 See, for instance, the Conference room paper of the Independent International Commission of Inquiry on the Syrian Arab Republic, ‘Human rights abuses and international humanitarian law violations in the Syrian Arab Republic, 21 July 2016–28 February 2017’, UN Doc A/HRC/34/CRP.3 (10 March 2017), recording that ‘[o]ne of the most vicious patterns of the Syrian conflict is the targeting of schools, with attacks in the Syrian Arab Republic estimated to account for half of all worldwide attacks on schools from 2011 to 2015. These attacks have resulted in staggering numbers of children being killed and maimed in brutal circumstances’. 234 Art 52(3), API; ICRC, CIL Rule 7. 235 Art 52(2)–(3), API; ICRC, CIL Rule 10. 236 See, eg, a report by Human Rights Watch, ‘“Education on the Front Lines” Military Use of Schools in Afghanistan’s Baghlan Province’, 2016, recording regular use of schools by Afghan ­government and Taliban forces and outlining concerns for the protection provided by IHL to children as a result of this practice, available at . See also its report containing a collection of recent and historic examples of laws, court decisions,

355

7.106–7.107  Attacks Against Hospitals and Schools This is a practice carried out by a range of state actors237 and may be a result of the lack of a specific protected status for schools under IHL.238 The 2014 Guidance Note of the Office of the Special Representative for Children and Armed Conflict summarised the position as follows: parties to conflict should … avoid partially using schools for military purposes at the same time as children and education personnel are present … while there is no explicit general prohibition on the military use of schools in international law, all parties to a conflict have the obligation to, at a minimum, not interfere with or obstruct the right to education, and should therefore remove children and use schools for military purposes as a measure of last resort.239

7.106  Even if schools lose their protection as civilian objects, the principles of precaution and proportionality apply so that all feasible precautions must be taken when carrying out attacks to avoid or at least minimise incidental harm to civilian students and educational personnel or facilities. Attacks which are expected to cause excessive incidental harm are prohibited.240 7.107  Alongside these general protections which protect schools as civilian objects, the existing IHL regime contains some provisions that refer expressly to education but their scope is not clear and there is no explicit prohibition against targeting schools as such, in contrast to the explicit prohibition against targeting hospitals (see above, p ­ aragraph 7.30). For example: 7.107.1  The Geneva Conventions and API specifically refer to the education of children in the following situations in IAC: all children under 15 orphaned or separated as a result of war (Articles 13 and 24, GCIV); civilian internees, notably children and young people (Articles 94, 108 and 142, GCIV); occupation (Article 50, GCIV); circumstances involving evacuation of children (Article 78, API); and prisoners of war (Articles 38, 72 and 125, GCIII). So, for example, Article 24, GCIV includes in the ‘measures relating to child welfare’ which States must take, that they must ensure that the education of, ‘children under fifteen, who are orphaned or are separated from their families as a result of the war, [is] facilitated in all circumstances’. It may be

military orders, policies, and practice by governments, and armed forces of military use of schools: ‘Protecting Schools from Military Use: Law, Policy, and Military Doctrine’, March 2017, available at . 237 Bart notes that the US condemned Iraqi forces during the Second Persian Gulf War in 2003 for ‘employing school buildings and grounds as sites for artillery, material storage and headquarters’ but in northern Iraq US military commanders employed school buildings for military headquarters and command posts. See Bart (n 23), 405–406. See also Bede Sheppard and Kennji Kizuka, ‘Taking Armed Conflict out of the Classroom: International and Domestic Legal Protections for Students when Combatants use Schools’ (2011) 2 International Humanitarian Legal Studies 281, 297; and Grover (n 248), 140. For a useful summary of recent reported practices, see the GCPEA report ‘Lessons in War 2015 Military Use of Schools and Universities during Armed Conflict’, available at , 22–27 and 32–38. 238 See, eg Alina Balta, ‘Protection of Schools during Armed Conflict’, ICD Brief 12 (October 2015), 4 who notes that the military use of schools ‘creates challenges for combatants when trying to identify legal targets’. See also Grover (n 248), 140. 239 Office of the Special Representative for Children and Armed Conflict, ‘Guidance Note on Security Council Resolution 1998’ (May 2014) 16–17 (emphasis added), available at , emphasis added. 240 Arts 51 and 57, API; ICRC, CIL Rules 11–21. See also Arts 8(2)(b)(ix) and 8(2)(e)(iv), Rome Statute.

356

Attacks Against Schools  7.108–7.109 implicit – in the ‘facilitation’ of the education of this subcategory of children – that attacks against schools should be prohibited or addressed. However, we are not aware of any practical examples of such an approach having been taken to date. And, in relation to occupation, Article 50, GCIV requires the Occupying Power to facilitate the proper working ‘of all institutions devoted to the care and education of children’ and, if they are inadequate to ‘make arrangements for the maintenance and education’ of children who are orphaned/separated from their parents. 7.107.2  Buildings dedicated to education are mentioned as ‘private property’ protected from destruction, wilful damage and seizure during both conflict and occupation by the Hague Regulations.241 7.107.3  In some exceptional cases, educational institutions considered of great cultural importance may benefit from heightened protection.242 7.107.4  As noted above in paragraph 7.18, children are to be given ‘care and aid’ in IAC (Article 77(1), API) and NIAC (Article 4(3), APII). These provisions are examined in Chapter 3. As noted there, it is unclear what the ‘care’ and ‘aid’ includes in practical terms. However it is clear that, in the context of NIAC (APII), ‘care and aid’ includes education since this is particularised in Article 4(3)(a). 7.108  Beyond this, there are no specific rules that could be described as relating to attacks against schools under IHL. Rather, the cornerstone of the protection of schools is in the general IHL framework, viz, their presumed treatment as civilian objects, so long as they are not turned into military objectives: see paragraph 7.16.5 above. Problems and Deficiencies in the Legal Framework 7.109  There is one principal deficiency in the current IHL regime: the lack of a specific IHL prohibition on targeting schools. We note three points in this context: 7.109.1  The general IHL framework is arguably less protective and detailed than the specific framework that applies to hospitals. Schools are presently protected by the general IHL framework protecting civilian property: see paragraph 7.105 above. They benefit from, for example, the principle of distinction which prohibits attacks against civilian objects. Like other civilian objects, they benefit from the presumption of civilian status but, also like other civilian objects, they lose that protection if they become a military objective (although, even then, they remain protected by the principles of precaution and proportionality: see paragraph 7.16.8 above). As we have already observed, the assessment of whether a civilian object has become a military objective is fact-sensitive and based on a number of factors.243 This means that it is difficult to predict, in a given situation, whether a civilian object will be regarded as 241 See Arts 46–47 and 56, Hague Convention II (n 74); Arts 46–47 and 56, Hague Convention IV (n 74); Art 5, Hague Convention IX (n 74). 242 See the 1954 Hague Convention (n 24) and its Second Protocol 1999; as well as Art 16, APII. 243 As noted at at para 7.16.4 above, this is codified in relation to IAC by Art 52(2) API, which provides that in order to determine if a civilian object (including a school) has become a military objective it must (i) by its ‘nature, location, purpose or use make an effective contribution to military action’ and (ii) be such that its ‘total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’. The ICRC Commentary on the AP (n 30), para 2022 notes that ‘[m]ost civilian objects can

357

7.109  Attacks Against Hospitals and Schools having become a military objective. For example, there is no guidance on whether the use of school grounds for the storage of military material or the continued attendance of a school by children recruited as ‘child soldiers’ leads to the loss of civilian status for the school. In contrast, hospitals benefit from the specific prohibition on targeting and only lose the protection of that prohibition if they are used to commit ‘outside their humanitarian duties, acts harmful to the enemy’: see paragraph 7.38 above. That test is also fact-sensitive but it is clear that the circumstances in which hospitals can be considered to have acted ‘outside their humanitarian duties’ must be narrowly construed. This means that a higher threshold needs to be overcome if it is to be shown that a hospital has lost the protection of the prohibition against ­targeting. The question is: should schools benefit from a similar protection regime as that which applies to hospitals? In our opinion the answer to this question is ‘yes’ and we explain the reasons for that in the next point. Before doing so, we note that there is a broader question of whether the factual possibility envisaged by the general IHL regime – that schools may become military objectives – is, in itself, problematic from a legal perspective because, for example, such use violates IHL or IHRL: we consider this at paragraph 7.111 below. 7.109.2  Schools deserve the same protection as hospitals. At the very least, we suggest that consideration is given to extending such protection to schools. The reason for this is that, like hospitals, schools contain a vulnerable category of people – ­children – who warrant special, express protection. As the regular reports of the Special Representative for Children and Armed Conflict show: attacks on schools are frequent and have grave consequences for children in areas affected by armed conflict.244 Despite the importance of schools as civilian buildings, critical for the development of children and their enjoyment of the right to education, IHL protects them pursuant to the general framework which prohibits attacks on civilian objects and does not recognise a specific prohibition on targeting schools. This is similar to the historic position of civilian hospitals and other civilian healthcare facilities.245 As was recognised to be the case for civilian hospitals, and which led to the recognition of a specific prohibition on targeting them: it is clear that the present, general IHL regime regarding civilian objects has not been effective at ensuring sufficient protection for schools, with the consequent impact on the vulnerable and innocent persons inside.246 This is no doubt partly attributable to lack of compliance with the general IHL regime and a lack of enforcement and accountability. However, the lack of a specific prohibition become useful objects to the armed forces. Thus, for example, a school … is a civilian object, but if … used to accommodate troops or headquarters staff, [it will] become [a] military objective[].’ The term ‘definite’ requires that the advantage be concrete and perceptible, in other words ‘it is not legitimate to launch an attack which only offers potential or indeterminate advantages. Those ordering or executing the attack must have sufficient information available to take this requirement into account; in case of doubt, the safety of the civilian ­population, which is the aim of the Protocol, must be taken into consideration’ (ibid, para 2024). See also ICRC, CIL Rule 8. 244 See, for instance, UNGA, ‘Annual report of the Special Representative of the Secretary-General for Children and Armed Conflict’ (22 December 2016) UN Doc A/HRC/34/44. The Report recorded that attacks on schools in Afghanistan had increased in frequency (para 37) and that schools for girls were often specifically targeted (para 14). 245 See 2016 ICRC Commentary on GCI (n 64), para 1773; 1958 ICRC Commentary on GCIV (n 51), 153. 246 Bart (n 23), 407 and 426.

358

Attacks Against Schools  7.110 on targeting schools means that the existing IHL regime is less protective of facilities that have a ‘unique nexus to civilians’247 and are for children, as compared to hospitals, which may be used by civilian and military adults.248 As noted elsewhere in this book, IHL has so far been more protective of the wounded and sick, which explains the basis of the special regime for hospitals, than of children: see Chapter 3. However, children are also a vulnerable group and should, arguably, attract stronger and more express protection by IHL. 7.109.3  IHL should be strengthened even though ICL gives schools specific ­protection. ICL expressly criminalises attacks against schools: see paragraphs 7.112 to 7.113 below. However, ICL alone is not enough if the legal framework is to respond to the attacks on schools. This is for two principal reasons. First, a robust IHL regime is important because it should have a systemic impact on the conduct of armed conflicts, by requiring armed forces (and non-state armed groups) to incorporate any specific IHL rules into their training and procedures for the conduct of hostilities. Second, as we have noted above (in relation to the ICL regime for hospitals) and below (in relation to the ICL regime for schools), the reach of ICL (eg the additional requirement of intention) and its accountability mechanisms is limited in scope and capacity. There have only been a few relevant prosecutions to date, which makes it difficult to draw any concrete conclusions as to the effectiveness of such mechanisms or their likely operation in the future. The establishment of an IHL regime would supplement, strengthen and mainstream the ICL prohibition. Suggestions to Improve the Legal Framework 7.110  In light of the deficiency identified at paragraph 7.109 above, we suggest that consideration is given to developing the law so as to establish a specific IHL prohibition on targeting schools. We agree with the suggestion of the application of a regime akin to that of hospitals to schools.249 This would increase the protection of schools in armed conflict, and would make the treatment of one vulnerable group – children – mirror that of another – the wounded and sick. We note that the ICL regime has already taken this approach through the criminalisation of the same conduct in relation to attacks against hospitals and schools in the Rome Statute. We suggest that a strengthened regime for schools should: 7.110.1  Be modelled on the existing specific protections for hospitals; 7.110.2  Adopt a similarly broad definition to the regime governing attacks against hospitals, such that ‘schools’ (like hospitals: see Article 8(e), API at paragraph 7.25.3 above) should include temporary and permanent structures used for educational purposes, so long as these are clearly recognised by local communities as such, and 247 ibid, 430. 248 See, similarly, the concerns expressed by Grover about the lack of special protection for children under IHL. See Sonja C Grover, Schoolchildren as Propaganda Tools in the War on Terror (Berlin, SpringerVerlag, 2011), 175. 249 Bart (n 23), 432–33. See also the apparent approval of this proposal expressed by the participants of the UNESCO Seminar on Education under Attack, recorded in O’Malley et al, (n 222), 21 and the ICD Brief (n 238), 14.

359

7.111  Attacks Against Hospitals and Schools even if physical structures play multiple civilian functions, some of which are not educational.250 and 7.110.3  Be included in the single instrument that we have suggested: see Chapters 2 and 9. 7.111  In addition, we note the following points: 7.111.1  Whether there should be a legal prohibition on schools becoming military objectives through their use. Military use of schools exposes children to the risk of violence. This risk comes not only from combatants within the school, but also from other parties, given the potential re-categorisation of the school as a military objective. Military use of schools can fundamentally restrict the exercise of the right of education: see, for example, the observation of the Special Representative that ‘[t]he presence of combatants in schools, irrespective of their function, can also hamper the provision of classes; deter the attendance of educational personnel and students; lead to the looting of schools and further complicate access to schools owing to augmented security procedures. Prohibiting the military use of schools through the adoption of military orders and training, as well as ensuring accountability for perpetrators, is a vital element of preventing this practice’.251 72 states have endorsed voluntary guidelines which propose a prohibition on the military use of schools (see paragraph 7.135.1 below). This – a prohibition on the military use of schools – is undoubtedly an important issue. However, we have not considered it in detail in this book. This is partly because we consider that a desirable prior step to strengthening the protection of schools is to put them on the same legal footing as hospitals by creating a specific IHL prohibition on targeting schools. If this is done it will also mean that the relevant test for the loss of protection should be (as it is for hospitals) whether schools are being used to commit ‘outside their humanitarian duties, acts harmful to the enemy’. As noted above, this should mean that it is harder for schools to lose protection, since this test imposes a higher threshold than the test of whether a civilian object has become a military objective. It would also mean that the question of whether there should be a legal prohibition on schools being used for military use, ie to commit ‘acts harmful to the enemy’, could be considered alongside the position of hospitals and whether there should be a similar prohibition on the military use of hospitals. This would be desirable since it would assist in ensuring the consistent development of the law for these comparable buildings. 7.111.2  Whether to introduce a practical form of recognition for schools during armed conflict. One commentator has recommended the creation of a ‘universally recognized distinctive emblem that would identify a temporary or permanent structure

250 See, to similar effect, Bart (n 23), 433–36, who recommends that any such special regime should not extend to military school buildings given their lack of ‘obvious nexus to civilians and noncombatants’. It is interesting to note that one proposal recorded by the Machel Report for guaranteeing children’s right to education was to establish ‘alternative sites for classrooms, changing the venues regularly’ during an armed conflict, as had been done in Eritrea in the 1980s or in the former Yugoslavia in the 1990s: Machel (n 2), para 191. The flexible definition we propose would allow such practical measures to be taken, without the loss of the special regime. 251 UNGA, ‘Report of the Special Representative of the Secretary-General for Children and Armed Conflict’ (2 August 2017) UN Doc A/72/276, 5, para 13. See also the analysis in the GCPEA ‘Lessons in War 2015’ report (n 237), 40–43.

360

Attacks Against Schools  7.112 as a protected educational site’.252 Whether this is the chosen solution, or whether existing distinctive emblems are extended to schools, we note the UNSC’s conclusion (at paragraph 7.79.1 above) that such a practical method of recognition during armed conflict would reinforce the protection offered by the special regime and assist commanders in identifying protected sites. However, as noted at paragraph  7.44.4 above in relation to hospitals, there is debate about the potential for emblems to increase the risks for the facilities displaying them so this issue needs to be considered with care. 7.111.3  The use of protected zones for schools. As with hospitals, see paragraph 7.49 above, the possibility of the more effective use of protected zones should be explored and encouraged in relation to schools.253 It is relevant to note, in this context, that potential models for the delivery of educational services during, or following a conflict already exist and may be helpful in the consideration of such zones. For example, the Global Education Cluster254 has developed a designation procedure for ‘Emergencies’ (‘L3’ or ‘Humanitarian System Wide Emergencies’) which aims to mobilise the resources, leadership and capacity to respond to exceptional circumstances, including armed conflict. Designation may lead, for example, to the repair and rehabilitation of schools, the provision of temporary learning spaces, the provision of teaching and learning materials; or the training of teachers and education personnel.255 7.111.4  The definition of ‘schools’. As we noted at paragraph 7.8 above, there is no formal definition of ‘schools’. This issue needs to be considered and resolved. We suggest that a helpful starting point is the definition in the report of the Special Representative for Children and Armed Conflict, see above paragraph 7.8.5. 2. ICL The Legal Framework 7.112  Attacks on educational buildings may, as with hospitals, constitute a war crime under the Rome Statute.256 Both in relation to IAC257 and NIAC,258 the list of war crimes includes: [i]ntentionally directing attacks against buildings dedicated to … education, … provided they are not military objectives.

252 Bart (n 23), 437. 253 See, eg BIICL, Protecting Education in Insecurity and Armed Conflict: An International Law Handbook (n 23), 212–13. 254 This is an open formal forum for coordination and collaboration on education in emergencies, bringing together NGOs, UN agencies, academics, and other partners, co-led by a UN agency and an international nongovernmental organization (INGO): UNICEF and Save the Children. 255 See ‘Iraq, Humanitarian Situation Overview’ at . 256 As with attacks against hospitals, while most of the statutes of the special criminal tribunals did not include express provisions concerning attacks on schools, Art 3(d) of the ICTY Statute provides for a specific offence consisting of, ‘seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science’. 257 Art 8(2)(b)(ix), Rome Statute. 258 Art 8(2)(e)(iv), Rome Statute.

361

7.113–7.117  Attacks Against Hospitals and Schools 7.113  Attacks on schools are covered by the same guidance in the ICC’s ‘Elements of Crimes’.259 As in the case of hospitals, we are not aware of any instances of prosecutions for breaches of these provisions in the ICC which might clarify their scope. We note, however, that in submissions to Trial Chamber I of the ICC, following the conviction of Thomas Lubanga Dyilo, UNICEF argued that harm to a child’s right to education should be a factor to be taken into account in the determination of victim reparation: victims, in addition to suffering from violations of their fundamental rights, were also denied basic needs. The denial of their rights and needs can have enduring and sometimes lifelong repercussions, for example when children have lost access to education.260

Problems and Deficiencies in the Legal Framework 7.114  As with our analysis of hospitals, see paragraph 7.54 above, there are no apparent substantive deficiencies with the ICL framework regarding attacks against schools: it is clear and mirrors the approach taken to attacks against hospitals. Indeed, given the absence of a specific regime under IHL concerning schools, the ICL regime is important in advancing the protection of children and is a positive recognition by the States Parties to the Rome Statute of the need to prevent attacks against schools. Suggestions to Improve the Legal Framework 7.115  In light of the above and as with the protection of hospitals from attack, we make no specific suggestions for improvement of the ICL framework. 3. IHRL The Legal Framework 7.116  The right to education is guaranteed by a number of IHRL treaties.261 We agree with the observation that ‘[t]here is in place a large body of international law pertinent to the right to, and protection of education; although the international law framework contains some protective gaps and weaknesses, it is nonetheless strong’.262 7.117  Perhaps the most significant of the IHRL provisions, concerning the right to education, is Article 13, ICESCR. In its General Comment No 13, the CESCR observed,

259 See (n 139). 260 United Nations Children’s Fund, ‘Submission on the Principles to be Applied and the Procedure to be Followed by the Chamber with regard to Reparations’ (10 May 2012), Guiding Principles, para 2 in Prosecutor v Thomas Lubanga Dyilo ICC-01/04-01/06-2878 available at .. In its decision establishing the principles and procedures to be applied to reparations, the Trial Chamber recognised that compensation aims to address harm that has been inflicted through, amongst other things, lost opportunities, including those relating to education: Prosecutor v Thomas Lubanga Dyilo, Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06 (7 August 2012), para 230(d). 261 Art 26, UDHR; Art 28, CRC; Art 13, ICESCR. 262 BIICL (n 23), 4.

362

Attacks Against Schools  7.118–7.120 ‘[e]ducation is both a human right in itself and an indispensable means of realizing other human rights’.263 Article 13(1) provides: The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental ­freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

7.118  The key principles set out above, at paragraphs 7.60 to 7.66, concerning socioeconomic rights and the duties imposed by the ICESCR also apply to the right to education under Article 13 in general terms in the context of armed conflicts. They include the four principal requirements identified in the CESCR’s General Comment No 13, paragraph 6, namely, availability, accessibility, acceptability and quality. In addition, at paragraph 7 of General Comment No 13, the CESCR stressed that the ‘best interests of the student shall be a primary consideration’. Article 13 also goes a step further than Article 12, ICESCR, listing at paragraph 2 a series of concrete and potentially hard-edged core entitlements for individuals benefitting from the right, including the right to compulsory primary education free for all. 7.119  Schools are clearly vital in enabling the core of the right to education to be enjoyed. States Parties must, therefore, make available ‘functioning educational institutions and programmes … in sufficient quantity within the jurisdiction of the State party’.264 This aspect of the right to education continues to apply in armed conflict, in particular the essential obligation of provision of free primary education which is, ‘capable of immediate application by judicial and other organs in many national legal systems’.265 The UN Special Rapporteur on the right to education has also noted, ‘states have an obligation to respect, protect and fulfil the right to education, whether or not an emergency situation prevails’.266 Of particular note is the clarification, in CESCR General Comment No 13, that ‘[t]he obligation to protect requires States parties to take measures that prevent third parties from interfering with the enjoyment of the right to education.’267 7.120  In its General Comment No 1, the CRC Committee emphasised ‘[t]he child’s right to education is not only a matter of access (art. 28) but also of content’.268 In addition to Articles 28 and 29, CRC, which protect the right to education, Article 3, CRC is also relevant: it requires, ‘the institutions, services and facilities responsible for 263 CESCR, ‘General Comment No. 13: On the Right to Education (Art 13 of the Covenant)’ (8 December 1999) UN Doc E/C.12/1999/10, para 1. 264 ibid, para 6(a). See also, ESCR, ‘Preliminary Report of UN Special Rapporteur on the Right to Education’ (13 January 1999) UN Doc E/CN.4/1999/49, para 51, ‘[w]hile the State is not the only investor, international human rights law obliges it to be the investor of last resort so as to ensure that primary schools are available for all school-age children’. 265 CESCR, General Comment No. 3 (n 157), para 5. 266 UNHRC, ‘Report of the Special Rapporteur on the right to education in emergency situations’, (20 May 2008) UN Doc A/HRC/8/10, para 37. See also Saul, Kinley and Mowbray (n 160), 1100. 267 CESCR, General Comment No 13 (n 263), para 47. 268 CRC, ‘General Comment No. 1 Article 29 (1): The Aims of Education’ (17 April 2001) UN Doc CRC/GC/2001/1, para 3.

363

7.121–7.127  Attacks Against Hospitals and Schools the care or protection of children’ to, ‘conform with the standards established by competent authorities’. The CRC Committee has also emphasised that the right to education is often ‘reflected in the provisions of humanitarian law’, including the importance of ‘ensuring access to health, food and education’.269 7.121  A number of regional human rights instruments also recognise the right to ­education.270 Problems and Deficiencies in the Legal Framework 7.122  In general terms, the shortcomings identified above, at paragraphs 7.71 to 7.72, in relation to the IHRL regime governing attacks against hospitals also apply to the IHRL regime regarding attacks against schools. Suggestions to Improve the Legal Framework 7.123  As with the framework relating to attacks against hospitals, we suggest that one way of clarifying or developing the existing IHRL framework would be for guidance in a General Comment by the CESCR or the CRC Committee, or indeed in a joint General Comment. This could specifically address attacks against schools and educational facilities in the context of armed conflict, including the obligations to repair and maintain facilities that have been attacked. B.  Accountability Mechanisms 1.  Application of Accountability Mechanisms IHL: Adjudicative Accountability Mechanisms 7.124  Domestic courts. As noted above, it is beyond the scope of this book to analyse domestic implementation, although this is a significant part of the existing accountability framework. 7.125  International and regional courts: We are not aware of any notable cases concerning attacks on schools before international and regional courts which have considered the IHL regime, apart from in the context of ICL (which is considered below). 7.126  Treaty bodies: as we have noted above, in relation to hospitals, there are no treaty bodies specific to IHL but there is the possibility that the CRC Committee and the ACRWC Committee could be required to consider IHL breaches. IHL: Other Accountability Mechanisms 7.127  UNSC. As is the case in relation to hospitals, there are two principal ways in which the UNSC has contributed to accountability for IHL violations regarding attacks 269 CRC Committee, ‘Report on the Second Session’, (19 October 1992) UN Doc. CRC/C/10, para 73. 270 See, eg, Art 2 of Protocol 1, ECHR (n 62); Art 17(1), ACHPR; Art 26, ACHR referring to Art 30 of the Charter of the OAS (and Art 13, Additional Protocol to the American Convention); Art 14, EU Charter.

364

Attacks Against Schools  7.128 on schools. The first is by expressions of concern and condemnation of such violations in its Resolutions. The second is by the imposition of sanctions against individuals or entities responsible for such attacks. 7.127.1  Expression of concern and condemnation of violations of IHL by attacks against schools. The UNSC has regularly condemned attacks against schools and has urged parties to armed conflict to refrain from them in its Resolutions.271 For ­example, in 2014, by UNSC Resolution 2143272 the UNSC reaffirmed its concerns about the need for all parties to armed conflict to refrain from actions that impede children’s access to education and encouraged UN Member States to consider concrete measures to deter the use of schools by armed forces and non-state armed groups in contravention of applicable international law. It also expressed, ‘deep concern about the military use of schools by armed forces and non-State armed groups in contravention of applicable international law, including those involving their use as military barracks, weapons storage facilities, command centres, detention and interrogation sites and firing and observation positions’.273 This was followed by UNSC Resolution 2225 (2015), which referred to the ‘civilian character of schools as such’274 and, like other previous Resolutions, urged caution in the military use of schools.275 Within the context of Resolutions that have been more specific, a number have condemned ‘attacks against schools’.276 In relation to Syria, the UNSC has specifically demanded that ‘all parties demilitarize … schools … and avoid establishing military positions in populated areas’.277 7.127.2  Sanctions. As noted above at paragraph 7.79.2, we are aware of at least four operating UNSC sanctions regimes that have included ‘attacks on … schools’. Similarly, the two examples noted above included attacks on schools and/or civilian property (which may have included schools). 7.128  UNGA. Particularly notable is a Resolution of 2010278 in which the UN General Assembly urged UN Member States to ensure the right to education in emergencies, 271 It has also done so in other ways. For example, in a Statement by the President of the UNSC on 29 April 2009 the Security Council ‘urge[d] parties to armed conflict to refrain from actions that impede children’s access to education, in particular attacks or threats of attack on school children or teachers as such, the use of schools for military operations, and attacks against schools that are prohibited by applicable international law’: UNSC, ‘Statement by the President of the Security Council’ (29 April 2009) UN Doc S/PRST/2009/9, 4. In its most recent statement, the Security Council ‘recall[ed] the importance of ensuring that children continue to have access to basic services during the conflict and post-conflict periods, including, inter alia, education and health care’. It also ‘expresse[d] deep concern at the military use of schools in contravention of applicable international law, recognizing that such use may render schools legitimate targets of attack, thus endangering children’s and teachers’ safety as well as children’s education and in this regard’. The Council (a) urged ‘all parties to armed conflict to respect the civilian character of schools’ and (b) ‘[e]ncourage[d] Member States to consider concrete measures to deter the use of schools by armed forces and armed non-State groups’: UNSC, ‘Statement by the President of the Security Council’ (31 October 2017), UN Doc S/PRST/2017/21, 2–3. 272 UNSC Res 2143 (n 101), paras 1, 17. 273 Emphasis in original. 274 UNSC Res 2225 (8 June 2015) UN Doc S/RES/2225, paras 1, 7 (emphasis added). 275 UNSC Res 1998, para 4 (n 5); UNSC Res 2143, para 18 (n 101); UNSC Res 2225, para 7 (n 274). 276 UNSC Res 2139 (22 February 2014) UN Doc S/RES/2139, para 1 (on Syria); UNSC Res 2145 (17 March 2014) UN Doc S/RES/2145 para 32 (on Afghanistan); UNSC Res 2164 (25 June 2014) UN Doc S/RES/2164, 3 (on Mali). 277 UNSC Res 2139 (n 276), para 10; UNSC Res 2165 (14 July 2014) UN Doc S/RES/2165, 2. 278 UNGA Resolution 64/290 ‘The right to education in emergency situations’, UN Doc A/RES/64/290.

365

7.129–7.132  Attacks Against Hospitals and Schools and urged ‘all parties to armed conflict to fulfil their obligations under international law … including to respect … civilian objects such as educational institutions’. It (i) requested the Special Rapporteur on Education to follow-up on his earlier report on the topic (­paragraph 21) and (ii) urged Member States ‘to criminalize under their domestic law attacks on educational buildings’ (paragraph 10). While the first of these concrete measures led to the Special Rapporteur’s 2011 report, it is unclear what impact the latter has had on the criminalisation of such attacks in domestic law. 7.129  MRM. As noted above, paragraph 7.80, the MRM mechanism is used to monitor and report on violations of IHL relating to attacks against schools, as well as to list parties responsible for recurrent attacks of this nature. The Secretary-General’s annual reports between 2006–16 record substantial numbers of attacks against schools, although the mechanism has previously been criticised for ‘underreport[ing]’ such attacks.279 As noted above, in his 2016 report, the Secretary-General linked the number of attacks to ‘the increasing use of air strikes and explosive weapons in populated areas’ including in 19 different UN Member States.280 7.130  Special Representative for Children and Armed Conflict. The annual reports of the Special Representative have examined the issue of attacks against schools and repeatedly highlight concerns arising from them as well as from the military use of educational facilities. In her most recent report, the Special Representative emphasised that ‘[w]ith more than 245 million children estimated to be living in conflict zones, the issue of children missing out on education owing to the effects of conflict deserves urgent ­attention’.281 7.131  UN Human Rights Council: The HRC has adopted a number of thematic or country-specific resolutions condemning attacks on schools.282 It has also established fact-finding bodies such as the Commission of Inquiry following hostilities between Israel and Hezbollah in 2006, which concluded that Israel had committed serious violations of CIL and IHL through the excessive and indiscriminate use of force, including the ‘grave violation’ of the ‘direct targeting of schools’.283 7.132  UN Special Rapporteur: The HRC has also appointed a Special Rapporteur on the right to education who has also addressed the impact of armed conflict on that right (including the impact on children). The Special Rapporteur’s mandate was originally established by the UN Commission on Human Rights and has since been endorsed and extended.284 This is a helpful accountability mechanism because the Rapporteur conducts country visits, which have included direct meetings with children affected by armed

279 Ann-Charlotte Nilsson (n 37), 226. 280 See UNGA (n 19), paras 7, 26, 38, 49, 63, 76, 84, 89, 97, 105, 117, 126, 136, 143, 157, 169, 171, 181, 193, 199, 207 and 214. See also the 2017 Report, UNGA (n 20), para 13. 281 See UNGA, ‘Report of the Special Representative of the Secretary-General for Children and Armed Conflict’ (2 August 2017) UN Doc A/72/276, 3, para 10. 282 See, for example, Resolution S-25/1 adopted at its twenty-fifth special session (21 October 2016), which ‘[s]trongly condemn[ed] all attacks against civilians and civilian infrastructure, including those involving attacks on schools, medical facilities’, UN Doc A/71/53/Add.2, available at . 283 UNGA, ‘Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council’ (23 November 2006) UN Doc A/HRC/3/2, paras 317, 320, and 326. 284 See UNHRC Resolution 8/4 (18 June 2008) UN Doc A/HRC/8/52, 20–27, para 9.

366

Attacks Against Schools  7.133–7.135 conflict, as well as reporting to the HRC his findings on an annual and thematic basis. We note the following examples of particular relevance in the context of this Chapter: in the 2008 report, the Special Rapporteur concluded that ‘the bombing and destruction of schools have escalated sharply over the past four years in terms of victims and brutality’, although he decried the ‘lack of precise data on the affected populations’.285 He recommended that more action be taken against those who attack schools. In a 2011 report, the Special Rapporteur stressed that ‘[a]ttacks against schools and institutions of higher education violate human rights and humanitarian law’.286 He reported a ‘continued increase in the reported number of attacks on education in situations of conflict and widespread violence over the past three years’ (paragraph 70) and also emphasised the ‘essential’ importance of monitoring attacks on education to address ‘invisibility and impunity’ (paragraph 72). 7.133  Information-gathering techniques: There is no equivalent initiative to the Health  Care in Danger project (see above, paragraph 7.82.2) in the context of attacks against schools. Since 2007, UNESCO (and more recently the GCPEA)287 has commissioned reports into attacks on educational facilities which have repeatedly emphasised the lack of effective data collection and monitoring of attacks against schools.288 This makes the MRM procedure even more important as a means of identifying breaches of international law. The NGO Watchlist has created an interactive training tool on attacks against hospitals and schools, aimed at child protection practitioners in the field, and designed to encourage them to gather information on such attacks.289 7.134  NGOs: As noted above (paragraph 7.83), the work of Geneva Call and its Deeds of Commitment include engaging ANSAs in commitments to ensuring access to education and avoiding use for military purposes of schools. However, these initiatives also include training and information exchange with ANSAs to adopt international best practice and to identify the importance of the protection of educational institutions.290 7.135  Other mechanisms: There are no examples, of which we are aware, of the establishment of protected zones to protect educational facilities under IHL.291 However, similar initiatives have been taken at the domestic level in the context of NIAC, which could ‘operate as a model for future developments’ at the international level.292 For instance, in 2011,

285 ibid, paras 20 and 24. The Rapporteur noted that he had met directly with ‘boys and girls who have lived through conflict situations’ in Colombia and Côte d’Ivoire (paras 102–03). 286 UNGA, ‘Interim report of the Special Rapporteur on the right to education’ (n 22). 287 The Global Coalition to Protect Education from Attack (GCPEA) comprises organisations from the fields of education in emergencies and conflict-affected fragile states, higher education, protection, international human rights, and international humanitarian law concerned about ongoing attacks on educational institutions, their students, and staff in countries affected by conflict and insecurity, including Human Rights Watch, the Institute of International Education’s Scholar Rescue Fund, Protect Education in Insecurity and Conflict, Save the Children, UNESCO, UNHCR, and UNICEF. 288 See, for instance, O’Malley et al (n 222) or ‘Education Under Attack’ (2014), GCPEA, 64 and 76, available at . 289 The training tool is available at . 290 See, for example, Geneva Call’s report entitled ‘Armed non-State actors speak about child protection in armed conflict’, September 2017, available at . 291 See, eg Sivakumaran (n 48); BIICL (n 23). 292 See BIICL (n 23), 213.

367

7.135  Attacks Against Hospitals and Schools an initiative in Nepal called ‘Schools as Zones of Peace’ consisted of a national policy agreed to by parties to a conflict (a NIAC) which committed to de-­politicise educational facilities and ensure that they suffered minimal disruption from ongoing violence.293 We also note the following examples of significant soft law instruments. 7.135.1  The Safe Schools Declaration.294 One of the leading current initiatives, this is an inter-governmental political commitment that provides countries with the opportunity to express their support for: protecting students, teachers, schools, and universities from attack during times of armed conflict; ensuring the continuation of safe education during armed conflict; and implementing concrete measures to deter the military use of schools. The Declaration295 was developed through consultations with states in a process led by Norway and Argentina in Geneva in early 2015, and was opened for endorsement at the Oslo Conference on Safe Schools on 29 May 2015. Currently, 74 States have endorsed the declaration, including ten countries reported on in the Secretary General’s 2017 annual report on children and armed conflict (Afghanistan, CAR, DRC, Lebanon, Nigeria, State of Palestine, Somalia, South Sudan, Sudan and Yemen).296 Signatories to the Declaration agree to undertake initiatives to prevent or respond to attacks on schools and to prevent the military use of schools. These measures include: collecting reliable data on attacks and military use of schools and universities; providing assistance to victims of attacks; investigating allegations of violations of national and international law and prosecuting perpetrators where appropriate; developing and promoting ‘conflict sensitive’ approaches to education; seeking to continue education during armed conflict; supporting the UN’s work on the children and armed conflict agenda; using the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict, and bringing them into domestic policy and operational frameworks as far as possible and appropriate. In May 2017, the UN Secretary General urged all UN member states to endorse the Declaration in his report to the UN Security Council on the protection of civilians in armed conflict.297 The Special Representative echoed this call in her 2017 annual report to the General Assembly, observing that the growing support for the Declaration reflects a developing international consensus that the prohibition on the military use of educational buildings is essential to avoid disruption of education.298 The CRC Committee has also welcomed endorsement of the Guidelines by reporting States.299

293 See Save the Children, ‘Promoting Schools as Zones of Peace (SZOP Campaign) in Nepal’ (2011) available at . 294 Global Coalition to Protect Education from Attack, ‘Safe Schools Declaration’ (29 May 2015) available at . 295 See also: . 296 The list of those states is set out here: . 297 UNGA, ‘Report of the Secretary-General on the protection of civilians in armed conflict’ (10 May 2017) UN Doc S/2017/414, para 14. 298 See UNGA, ‘Report of the Special Representative of the Secretary-General for Children and Armed Conflict’ (2 August 2017) UN Doc A/72/276, 5, para 13, and 14, para 53. 299 See CRC, ‘Concluding observations: Central African Republic’ (08 March 2017) UN Doc CRC/C/CAF/ CO/2, para 62.

368

Attacks Against Schools  7.136–7.137 7.135.2  Other informal initiatives. Certain initiatives have been taken to dissuade belligerents from using schools during armed conflict. For instance, the Peace and Security Council of the African Union in Addis Ababa, in May 2016, dedicated its third open session to children affected by armed conflict, and focused on the protection of schools,300 and called on its Member States to endorse the Safe Schools Declaration. ICL Adjudicative Accountability Mechanisms 7.136  Domestic courts. As noted above, it is beyond the scope of this book to consider domestic criminal laws and their implementation, although they represent an important accountability mechanism. 7.137  International and regional courts. There has been limited analysis of this issue in international courts and tribunals: 7.137.1  ICC: In 2008, the UN Special Rapporteur on the right to education stated that, in relation to attacks on schools, ‘[t]he case law of the International Criminal Court is still in its infancy’.301 We are not aware of any cases considering, in any material way, attacks on schools before the ICC since that time. 7.137.2  ICTY: The ICTY has considered attacks on schools in the context of the crime of persecution and that of destruction and wilful damage. (i) In relation to persecution: a number of judgments have considered attacks on educational institutions.302 In the Blaškić case, the Trial Chamber initially took a broad approach to the circumstances in which such institutions may lose protection under IHL and ICL including that they ‘must not have been in the immediate vicinity of military objectives’.303 However, in later cases the Trial Chamber adopted a stricter approach, concluding that ‘the special protection awarded to [cultural] property itself may not be lost simply because of military activities or military installations in the immediate vicinity of the [cultural] property’.304

300 See the Press Statement following the Joint Open Session, ‘Press Statement from Open Session of the African Union’s Peace and Security Council’, 2 June 2016, African Committee of Experts on the Rights and Welfare of the Child, available at . 301 UNHRC, ‘Report of the Special Rapporteur on the right to education in emergency situations’ (n 266), para 56. 302 In certain cases, such as Prosecutor v Miodrag Jokić (Sentencing Judgment) IT-01-42/1-S (18 March 2004), para 46, the accused entered a guilty plea relating to the war crime of destruction and wilful damage done to institutions dedicated to education. In others, such as Prosecutor v Šešelj (Trial Chamber Judgment) IT-03-67-T (31 March 2016), at para 109, the defendant charged with destruction of educational facilities was found not guilty. In Prosecutor v Milan Martić (Trial Chamber Judgment) IT-95-11-T (12 June 2007): Martić was accused of the crime of destruction or wilful damage done to institutions dedicated to education (at paras 36ff), but was acquitted on this charge, as the Tribunal was not satisfied that the school was not being used for military purposes. 303 Prosecutor v Tihomir Blaškić (Trial Chamber Judgment) IT-95-14-T (3 March 2000), para 185. 304 Prosecutor v Naletilić and Martinović (Trial Chamber Judgment) IT-98-34-T (31 March 2003), para 604; Prosecutor v Pavle Strugar (Trial Chamber Judgment) IT-01-42-T (31 January 2005), paras 310, 478.

369

7.138–7.139  Attacks Against Hospitals and Schools (ii) As to the crime of destruction and wilful damage: it has been described as involving the ‘deprivation of a wide variety of rights’.305 In Kordić,306 the Trial Chamber considered indictments against two prominent Bosnian Croats (Kordić was an important political figure and Čerkez was the Commander of a Brigade), including in relation to the destruction of Bosnian Muslim institutions dedicated to education, between October 1992 and December 1993 (for Kordić) and between April and September 1993 (for Čerkez). The Chamber found both Kordić and Čerkez responsible for this crime, without shedding any further light on the meaning and scope of the offence, although it noted that since the attacks amounted to an attack on ‘the very religious identity of a people’, when coupled with the ‘requisite discriminatory intent’ they could also amount to ‘an act of persecution’ (at paragraph 207). In terms of the offence in Article 3(d), the Chamber stated (at paragraphs 360–61): educational institutions are undoubtedly immovable property of great importance to the cultural heritage of peoples in that they are without exception centres of learning, arts, and sciences, with their valuable collections of books and works of arts and science. … The offence this section is concerned with is the lex specialis [of the offence of unlawful attacks on civilian objects] as far as acts against cultural heritage are concerned.

IHRL: Adjudicative Accountability Mechanisms 7.138  Domestic courts. The enforcement of domestic human rights norms concerning the right to education (whether reflective of IHRL or analogous to its protections) is an important accountability mechanism. However, as above, this is beyond the scope of this book. 7.139  International and regional courts/tribunals. There is little notable caselaw arising directly out of attacks against schools. One example, albeit not in an armed conflict context, is Tagayeva and others v Russia,307 in which the European Court of Human Rights (ECtHR) analysed the attack, siege and storming of a school in Beslan, Russia following its occupation by armed militias. The ECtHR found that Russia had failed to provide adequate protection to the hostages when its security forces stormed the school thus violating Article 2, ECHR (the right to life). Of particular note was the ECtHR’s conclusion that the positive obligations under Article 2 required Russian authorities to ‘undertake any measures within their powers that could reasonably be expected to avoid, or at least mitigate’ the risk about which ‘the authorities had sufficiently specific i­nformation  … at least several days in advance’, namely ‘a planned terrorist attack in the areas in the vicinity of the Malgobek District in Ingushetia and targeting an educational facility on 1 September’ (at paragraph 491). There is also case law which addresses the consequences of break-down in education during armed conflict. For example, the decision of the African Commission on Human and Peoples’ Rights in Free Legal ­Assistance Group, 305 Prosecutor v Kupreškić (Trial Chamber Judgment) IT-95-14-T (14 January 2000), para 614. 306 Prosecutor v Kordić and Čerkez (Trial Chamber Judgment) IT-95-14/2-T (26 February 2001), paras 834, 836. See also Prosecutor v Kordić and Čerkez (Appeals Chamber Judgment) IT-95-14/2-A (17 December 2004), paras 26–29, 126. 307 Tagayeva and others v Russia, ECtHR App No. 26562/07 (13 April 2017).

370

Attacks Against Schools  7.140 Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC.308 The Commission held (at paragraph 64) that the closure of universities and secondary schools located in an area of the DRC during an insurgency, for a period of two years, was a violation of Article 17 of the African Charter, which states that ‘[e]very individual shall have the right to e­ ducation’. 7.140  Treaty bodies: UN treaty bodies have recognised that the destruction or damage caused to schools implicates the positive obligations of States to protect the right to education. For example: 7.140.1  The CRC Committee has condemned the military use of schools and there are examples of it urging a State Party to immediately discontinue the occupation of schools.309 It has also addressed attacks on schools by condemnations or expressions of concern, urging states to prevent or cease such conduct.310 However, the Special Rapporteur (see above, paragraph 7.132) has observed ‘[t]he accountability mechanisms of the Committee on the Rights of the Child remain weak, for they provide for no more than State party reports’.311 7.140.2  The Optional Protocol to the ICESCR312 was adopted on 10 December 2008 and entered into force in May 2013. We are not aware of any cases addressing attacks against schools which have arisen under this mechanism. However, the CESCR has considered the right to education in the context of armed conflict on a number of occasions. It has made clear that states must, ‘adapt education to emergency situations, such as by providing security for children to attend school during armed conflict’.313 In its most recent Concluding Observations on Pakistan, the CESCR expressed concern at ‘the use of schools by the military’ and invited it to endorse the Safe Schools Declaration and commit to protecting schools and universities from military use.314 7.140.3  The CEDAW Committee has examined the issue of school closures, frequent during situations of insecurity and armed conflict, in its General Recommendation 308 Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC, ACHR Application Nos. 25/89, 47/90, 56/91, 100/93 (4 April 1996). 309 CRC, ‘Concluding Observations: Colombia’ (11 June 2010) UN Doc CRC/C/OPAC/COL/CO/1, at paras 39–40; CRC, ‘Concluding observations: Sri Lanka’ (1 October 2010) UN Doc CRC/C/OPAC/LKA/CO/1, para 25(a). 310 See, eg CRC, ‘Concluding Observations: Burundi’ (16 October 2000) UN Doc CRC/C/15/Add.133, paras 64–65 (urging Burundi to ‘continue and strengthen its efforts to … rebuild and reopen schools’); CRC, ‘Concluding Observations: Colombia’ (6 March 2015) UN Doc CRC/C/COL/CO/4-5, para 51 (e) (attacks against schools and military bases and units near schools); CRC, ‘Concluding Observations: Ethiopia’ (1 November 2006) UN Doc CRC/C/ETH/CO/3, paras 27–28 (attacks on schools ‘under the pretext that children were involved in demonstrations’); CRC, ‘Concluding Observations: Israel’ (10 September 2002) UN Doc CRC/C/15/Add.195, para 52 (destruction of school infrastructure in Occupied Palestinian Territories); CRC, ‘Concluding Observations: Israel’ (4 July 2013) UN Doc CRC/C/ISR/CO/2-4, paras 63–64 (damage to 300 educational facilities during operation ‘Pillar Defence’ and 32 attacks on schools in the West Bank and urging Israel to stop attacks on schools); CRC, ‘Concluding Observations: Republic of Moldova’ (20 February 2009) UN Doc CRC/C/MDA/3, para 435ff (attacks on schools in Moldova). 311 UNHRC, ‘Report of the Special Rapporteur on the right to education in emergency situations’ (n 266), para 47. 312 UNGA Res (63/117) (5 March 2009) UN Doc A/RES/63/117, Annex. 313 See eg CESCR, ‘Concluding Observations: Afghanistan’ (7 June 2010) UN Doc E/C.12/AFG/CO/2-4, para 43. 314 CESCR, ‘Concluding Observations: Pakistan’ (20 July 2017) UN Doc E/C.12/PAK/CO/1, paras 79(h) and 80(h).

371

7.141–7.144  Attacks Against Hospitals and Schools on Women in Conflict Prevention, Conflict and Post-Conflict Situations.315 It noted with concern that, ‘[i]n conflict-affected areas, schools are closed owing to insecurity, occupied by State and non-State armed groups or destroyed, all of which impede girls’ access to school’. 7.140.4  The African Committee of Experts on the Rights and Welfare of the Child (ACERWC), has examined the impact of armed conflict in the continent on access to education.316 2.  Problems and Deficiencies in Accountability Mechanisms 7.141  The same issues arise in relation to these specific accountability mechanisms as to those concerning attacks against hospitals and the right to health analysed above, paragraph 7.93ff. 3.  Suggestions to Improve Accountability Mechanisms 7.142  We refer to the points that we have raised above in relation to attacks against hospitals and would make the same suggestions for improvement regarding schools: see paragraphs 7.97 to 7.99 above. In relation to information gathering, we also note that UNESCO, and now GCPEA, reports on ‘Education under Attack’ have repeatedly called for a ‘a system of global surveillance of the full range of attacks on education, which would comprise several key information components, including incidence, prevalence, coverage and evaluation, and use baselines and globally-established indicators in capturing and analyzing data’.317 V.  CONCLUSION AND SUMMARY

7.143  In conclusion, the main recommendations of this Chapter can be summarised as follows. 7.144  Recommendations on legal framework regarding attacks against hospitals (no recommendations are made on international criminal law (ICL) since there are no substantive shortcomings with that regime): • IHL and the specific regime regarding attacks against hospitals: (1) The existing, specific international humanitarian law (IHL) framework regarding attacks against hospitals (i) is complex (for example the relevant rules are set 315 Committee on the Elimination of Discrimination against Women, ‘General recommendation No. 30 on women in conflict prevention, conflict and post-conflict situations’ (18 October 2013) UN Doc CEDAW/C/ GC/30, para 48. See also, CEDAW, ‘Concluding Observations: Nigeria’ (24 July 2017) UN Doc CEDAW/C/ NGA/CO/7-8, paras 33(a) and 34(a) which recommended that specific measures be taken to ‘rebuild and secure all schools affected by the Boko Haram insurgency and encourage girls and teachers, including women, to return to those schools’. 316 ‘The Impact of Conflict and Crises on Children in Africa’, October 2016, available at , para 3.1.4. 317 See Brendan O’Malley, ‘Education under Attack 2010: A Summary’ (2010), 39, available at .

372

Conclusion and Summary  7.144 out in a number of treaties accompanied by differing versions of commentaries); (ii) does not focus on the protection of children, or recognition of their unique vulnerability and (iii) although certain rules apply to non-state armed groups in non-international armed conflicts (NIAC), this is not stated clearly in the pertinent treaties and no indication is given as to the manner in which enforcement of such obligations will be assured. Consideration should therefore be given to collecting and codifying the applicable IHL rules in one instrument. This would assist in the training of military personnel by making the law more easily identifiable, as well as in engaging with non-state armed groups to assist with their identification and compliance with such norms. It would also bring greater awareness of the existing legal framework for other relevant stakeholders, which could encourage increased compliance and the use of existing accountability ­mechanisms. If the suggestion of a single instrument is pursued then it would provide an opportunity to consider whether the law could more expressly take account of, and protect, children in armed conflict. (2) The IHL regime envisages, as far as military considerations permit, the use of distinctive emblems by hospitals (particularly civilian hospitals) to ensure their identification. However, it is questionable whether this tool is effective in protecting hospitals because, for example, parties may not want to use an emblem for logistical and military reasons. Consideration should be given to developing the law by establishing formal obligations of notification of the location of hospitals between parties to an armed conflict. Although such a formal obligation of notification, with its emphasis on the sharing of information between belligerents about ‘no-go’ civilian objects, could strengthen the pre-existing regime regarding the use of distinctive emblems it may also suffer from the same drawbacks as the distinctive emblem regime. However, the overall impact of an obligation to notify may be to increase the visibility of hospitals and to limit the ability of those parties breaching IHL rules to claim ignorance of their location and status. As such, it merits further consideration. Allied to the development of such notification obligations, consideration could also be given to the potential for practical (rather than legal) mechanisms to assist with independent verification in order to address challenges to the protection of hospitals. (3) The use of safety zones has had limited success. This may be partly attributable to the practical limitations on the current regime concerning protected zones, for example the consent and agreement of the parties is needed before such zones can be established. Consideration should be given to developing the law by reinforcing the use of IHL protected zones. For example, parties could be required to designate such zones at the outbreak of an armed conflict. Although this may be difficult to implement and enforce in practice a legal obligation of this nature would, at least, be a step in the right direction and begin to encourage the incorporation of this practice into operational planning by parties to a conflict. To increase the likelihood that a protected zone is more effective than the general prohibition on targeting, the establishment of such a zone could be coupled with concrete measures designed to implement and enforce the parties’ agreement. The draft Convention on the Protection of Children in Armed Conflict proposed by 373

7.145–7.146  Attacks Against Hospitals and Schools the International Save the Children Union (ISCU) in 1939 identified as one of its three substantive protections for children the creation of safe zones. A review of the content of the 1939 draft Convention should be undertaken to determine whether parts of it may now be adapted for inclusion in the new instrument which we have suggested. • IHRL and attacks against hospitals: the international human rights law (IHRL) legal framework does not expressly address the context of armed conflict and so it is unclear in a number of relevant respects. For example, it is unclear what, if any, scope there is for an obligation on states to repair and maintain hospitals attacked during armed conflict and there is no developed IHRL on which civilians, and children in particular, may rely to assert that there is a state obligation to repair and maintain. One way of clarifying or developing the existing IHRL framework in relation to attacks against hospitals would be for guidance in a General Comment by the CESCR (the Committee of the International Covenant on Economic, Social and Cultural Rights) or the CRC Committee (the Committee of the Convention on the Rights of the Child) or indeed in a joint General Comment. This could, specifically address attacks against hospitals and healthcare facilities in the context of armed conflict including the obligations to repair and maintain facilities that have been attacked. 7.145  Recommendation on international accountability mechanisms regarding attacks against hospitals: • There is a lack of accountability provided by the existing adjudicative mechanisms on the international plane, and, therefore there is a need for further ratification of OP3 (the Optional Protocol on a communcations procedure) and the Rome Statute to enable the possibility of greater accountability before the CRC Committee and the International Criminal Court (ICC) where the protections of the Convention on the Rights of the Child (CRC) and the Rome Statute are violated. • UN practice in relation to sanctions and the designation of individuals or entities engaged in attacks appears to be inconsistent. Consideration should be given to whether the use of targeted sanctions, as a means for securing accountability for attacks on hospitals, could be made more consistent and systematic. • Gaps in data may mean there is a partial picture about the impact of attacks against hospitals, and, therefore, limited analysis of the consequences which may be relevant for the purposes of the protections existing under the legal framework. Consideration should be given to improving data gathering systems, for example by using satellite imagery to identify and map breaches of the legal framework identified above. 7.146  Recommendations on legal framework regarding attacks against schools (no recommendations are made on ICL since there are no substantive shortcomings with that regime): • IHL and the specific regime regarding attacks against schools: the lack of a specific IHL prohibition on targeting schools is a deficiency in the current IHL regime and means that schools do not benefit from the same protection as hospitals, even though they, like hospitals, contain a vulnerable category of people – children – who warrant special, express protection (and even though both schools and hospitals are protected 374

Conclusion and Summary  7.147 by general IHL protections regarding civilian objects). We suggest that consideration is given to developing the law so as establish a specific IHL prohibition on targeting schools. • IHRL and attacks against schools: the IHRL legal framework does not expressly address the context of armed conflict and so it is unclear in a number of relevant respects. As with the framework relating to attacks against hospitals, we suggest that one way of clarifying or developing the existing IHRL framework would be for guidance in a General Comment by the CESCR or the CRC Committee, or indeed in a joint General Comment. This could, specifically address attacks against schools and educational facilities in the context of armed conflict, including the obligations to repair and maintain facilities that have been attacked. 7.147  Recommendations on international accountability mechanisms regarding attacks against schools: see above the recommendations in relation to attacks against hospitals which are equally applicable in this context.

375

8 Denial of Humanitarian Access and Assistance ‘… children, … who were little more than skin and bones …’ (Syria, 2016)1

I. Introduction II. Setting the Scene A. Definitions B. Conflict and Humanitarian Crises C. Children in Conflict-Related Humanitarian Crises D. Core Challenges III. Legal Framework A. The IHL Framework 1. Introduction to the General IHL Framework 2. Withholding Consent to Impartial Humanitarian Access 3. Regulating Humanitarian Access 4. Problems and Deficiencies in the IHL Legal Framework Relating to Consent 5. Suggestion to Improve the IHL Legal Framework Relating to Consent 6. Problems and Deficiencies in the IHL Legal Framework Regulating Humanitarian Access 7. Suggestions to Improve the IHL Legal Framework Regulating Humanitarian Access B. The IHRL Framework 1. Introduction to the General IHRL Framework 2. Human Rights and Humanitarian Assistance 3. IHRL Conclusion on Denial of Humanitarian Access 4. Problems and Deficiencies in the IHRL Legal Framework 5. Suggestions to Improve the IHRL Framework

377 380 380 382 384 386 387 387 387 390 399 405 406 407 411 412 412 415 420 420 421

1 Secretary-General Ban Ki-moon describing the scenes that met UN relief workers when they were granted access to the besieged town of Madaya, Syria in January 2016: UN News Centre, ‘Starvation “as a weapon” is a war crime, UN chief warns parties to conflict in Syria’ (UN News Centre, 16 January 2016), available at . All websites referred to in this Chapter were accessed in June–August 2017.

376

Introduction 8.1–8.3 C. Consequences of Denying Humanitarian Access 1. ICL Legal Framework 2. Problems and Deficiencies in the ICL Legal Framework 3. Suggestions to Improve the ICL Legal Framework 4. UNSC Authorised Intervention IV. Accountability Mechanisms A. Application of Accountability Mechanisms 1. IHL Accountability Mechanisms 2. ICL Accountability Mechanisms 3. IHRL Accountability Mechanisms B. Problems and Deficiencies in Accountability Mechanisms C. Suggestions to Improve Accountability Mechanisms V. Conclusion and Summary

421 421 431 435 436 438 439 439 449 450 452 453 453

I. INTRODUCTION

8.1  Siege warfare is as old as war itself. Today, the deliberate targeting of civilians, including children, by systematically denying humanitarian access takes various forms: parties refusing to consent to humanitarian operations in territory under their control; bureaucratic procedures designed to slow down and restrict such operations and attacks on relief workers and aid convoys. The majority of modern conflicts are non-­international armed conflicts (NIAC), sometimes involving multiple non-state armed groups. This presents complex challenges to the provision of humanitarian access – both to adults and to children – and to securing accountability when access is denied. Determining when obstructions to relief operations amount, by their nature and extent, to a denial of humanitarian access is itself a complex matter of both fact and law. 8.2  Even where humanitarian access to children is not deliberately blocked, the collateral effects of conflict can be catastrophic. In 2007, the Machel Study 10-Year Strategic Review described ‘the indirect consequences of war – the severing of basic services, and increased poverty, malnutrition and disease’ as taking a ‘devastating toll on children’.2 Such consequences can be seen in Syria and Yemen where acutely malnourished and sick children have been denied food and medical relief. The Secretary-General has described such scenes as ones that ‘haunt the soul’.3 8.3  There has been some positive innovation with concepts such as ‘children as “zones of peace”’, which encourage the use of ‘corridors’ of peace and ‘humanitarian pauses’ or ‘days of tranquillity’. On occasion, these have been effective in delivering aid to children.4 2 UNICEF and the Office of the Special Representative of the Secretary-General for Children and Armed Conflict, Machel Study 10-Year Strategic Review: Children and Conflict in a Changing World (UNICEF, 2009) (Machel Study 10-Year Strategic Review) 4–5. 3 UN News Centre (n 1). 4 One of the recommendations of the 1996 Machel Report was that governments should facilitate such initiatives during conflicts: UNGA, ‘Impact of Armed Conflict on Children, United Nations: Report of the expert of the Secretary-General, Ms. Graça Machel submitted pursuant to General Assembly resolution 48/157’ (26 August 1996) UN Doc A/51/306/Add.1 (Machel Report), paras 165(c) and 318. Days of Tranquillity in Afghanistan, Southern Sudan and Somalia have enabled UNICEF National Immunisation Days to take place

377

8.4  Denial of Humanitarian Access and Assistance These initiatives have the potential to be negotiated in circumstances where broader ceasefires would be unachievable. However, parties to conflict may refuse to conclude such agreements5 or fail to honour agreements that have been made6 and these initiatives are, at best, temporary, limited measures.7 Furthermore, the use of ‘zones of peace’ has failed in a number of conflicts and their use must be approached with real caution.8 More systematic innovation is needed. 8.4  The existing legal framework for humanitarian access and assistance is governed by general rules designed to protect civilians (in which the position of children is occasionally identified) rather than ones that are specific to children. These general rules overlay the fundamental principle that states bear primary responsibility to meet the basic needs of civilians within their territory and under their control.9 When those needs are not met, international humanitarian law (IHL) provides impartial humanitarian organisations with a ‘right of humanitarian initiative’ ie they may offer their services to carry out humanitarian activities to meet civilians’ basic needs.10 Thereafter, the issues covered by these general rules can be divided up, broadly, into three questions. By way of ­ introduction: 8.4.1  First, when is it unlawful to withhold consent to offers of impartial humanitarian assistance?11 The starting point is that humanitarian relief can only be provided to notwithstanding the conflicts in those areas: see . For analyses of these initiatives, see Judith L Evans, ‘Children as Zones of Peace: Working with Young Children Affected by Armed Violence’ (1996) 19 Coordinators’ Notebook 1–37, 14–15, available at . See also Jama A Gulaid and Laurie A Gulaid, ‘Children as a zone of peace: A framework for promoting child health and welfare in developing countries’ (2009) 4(4) Global Public Health 338. We recognise that as children may be the perpetrators as well as victims of violence there must be a nuanced understanding of how children as ‘zones of peace’ can be used in practice, however we consider that it provides a helpful conceptual starting point. 5 For example, it took until December 2016 for the large scale evacuation of children from east Aleppo, Syria, to be agreed and executed, the parties having previously failed to conclude such an agreement. For reports of the evacuation, see, eg: UNICEF, ‘Statement by Anthony Lake, UNICEF Executive Director, on children trapped in Aleppo’ (UNICEF, 16 December 2016) available at ; UNICEF, ‘Statement attributable to Geert Cappelaere, UNICEF Regional Director, on the evacuation of children from an orphanage in East Aleppo’ (UNICEF, 19 December 2016) available at . 6 For example, on 15 April 2017, a convoy evacuating children and adults from government held territory was attacked in Rashidin, west of Aleppo, despite government and local rebel forces having reached an agreement in respect of the evacuation. BBC News, ‘Syria war: “At least 68 children among 126 killed” in bus bombing’ BBC News (London, 17 April 2017) available at . Similarly, in his briefing on Yemen on 28 July 2015 to the UNSC, the Under Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator stated that the ‘humanitarian pause announced over the weekend has not been respected by any party to the conflict’. UNSC ‘Briefing by Under Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator’ (28 July 2015) UN Doc S/PV.7494 p 2. 7 ‘[A] humanitarian pause … is not a substitute for sustained, safe and rapid humanitarian access’. UN, ‘Emergency Relief Coordinator’s Key Messages on Yemen’ (14 May 2015) Issue No 5, para 5, available at . Notwithstanding these limitations, we recommend that consideration be given to developing a rule of IHL that parties to conflict endeavour to agree upon such mechanisms. See para 8.80 below. 8 See e.g. Human Rights Watch, ‘Q&A: Safe Zones and the Armed Conflict in Syria’, (16 March 2017) available at . 9 We discuss the position of non-state armed groups at para 8.35 below. 10 Common Article 9/9/9/10, Geneva Conventions. 11 This question is intended to cover situations where a party withholds its consent through silence as well as when it expressly refuses consent to relief operations. See para 8.15.3 and (n 37) below.

378

Introduction 8.4 civilians if a state consents to humanitarian actors entering its territory. This is consistent with basic principles of international law, including territorial sovereignty. The need for state consent to such operations is also reflected in IHL. However, as a matter of both IHL and international human rights law (IHRL) there are circumstances in which it is unlawful for a state or a non-state armed group to refuse or otherwise ­withhold consent to offers to conduct impartial relief operations. This is, for example, where the refusal may lead to starvation or violate certain fundamental human rights (primarily the right to life and the prohibition against torture and cruel, inhuman or degrading treatment or punishment).12 We consider that refusal to consent will also be unlawful where it is contrary to the ‘care and aid’ to which children are entitled as a matter of both IHL treaty provisions and customary international law (CIL). We consider this at paragraphs 8.30–8.58 (IHL) and 8.88–8.92 (IHRL) below. 8.4.2  Second, after consent is given, what is the regulatory framework for access and assistance? A number of rules regulate the way in which humanitarian access should be provided. Some of these rules relate to the practical details of providing access, for example the right of parties to the conflict and other states to prescribe technical arrangements for the passage of relief supplies through their territory. Other rules prohibit (and, in some situations, criminalise) certain kinds of conduct, for example attacks on humanitarian personnel. This regulatory framework exists as part of both IHL and international criminal law (ICL) and we consider it below, at paragraphs 8.59–8.65 (IHL) and 8.98–8.112 (ICL). 8.4.3  Third, what are the consequences where consent to relief operations is unlawfully withheld or, where consent has been given, a party nonetheless breaches the regulatory framework resulting in a denial of humanitarian access and assistance? One consequence is criminal liability in ICL. Both treaty law and CIL impose criminal liability for an unlawful denial of humanitarian access/assistance to civilians where there is an intent to starve civilians as a method of warfare by depriving them of objects indispensable to survival. Under the Rome Statute of the International Criminal Court (ICC) this is an offence when committed during international armed conflict (IAC). There is a similar offence in relation to NIAC, but it exists only in CIL. In addition, attacks on humanitarian personnel are also criminalised in both IAC and NIAC. Furthermore, other offences may be committed by means of the denial of humanitarian access, for example war crimes against persons or property (in both IAC and NIAC), the crime against humanity of extermination or even genocide. Another potential consequence may be UN authorised intervention. In theory, military intervention to secure humanitarian access authorised by the UN Security Council (UNSC) would be lawful under Chapter VII of the UN Charter but in practice such interventions are extremely rare. There are conspicuous examples of the permanent members of the UNSC failing to agree such action.13 The UNSC could also authorise non-forcible, coercive measures 12 As explained below in para 8.89, when these fundamental human rights are violated, the rights to food, water, shelter, health etc (as the case may be) will also be engaged. 13 Note the debate as to whether, and if so in what circumstances, humanitarian intervention may be lawful in the absence of a UNSC mandate under Chapter VII of the UN Charter (for a recent survey and discussion, see N Rodley ‘Humanitarian Intervention’ in M Weller (ed) The Oxford Handbook on the Use of Force in International Law (Oxford, OUP, 2015) 775).

379

8.5–8.7  Denial of Humanitarian Access and Assistance under Chapter VII of the UN Charter, such as the UNSC’s authorisation for border crossings by humanitarian missions into Syria in the absence of the state’s consent or the imposition of sanctions on persons or entities who obstruct humanitarian access.14 We consider the consequences of the unlawful refusal of consent and serious breaches of the regulatory framework at paragraphs 8.97–8.123 below. 8.5  These issues have led us to structure this Chapter differently from some of the others, which generally consider the legal framework by reference to IHL, ICL and IHRL in turn. This Chapter is organised as follows. Part II is a general introduction addressing definitions of ‘humanitarian access’ and ‘humanitarian assistance’; the correlation between conflict and humanitarian crises; the particular vulnerabilities and needs of children in conflict that humanitarian operations may seek to meet and four core challenges that are commonly faced by humanitarian actors in so doing. Part III describes the existing legal framework and is divided into three sections, on (i) IHL, (ii) IHRL and (iii) ICL and UNSC powers. That is where we address the three questions we have summarised above in paragraph 8.4 by describing the key provisions of law; identifying problems; and making recommendations for improvement. Part IV addresses accountability mechanisms: it considers the application of existing mechanisms (in each of IHL, ICL and IHRL); identifies problems; and makes recommendations for improvement. Part V is the conclusion and summary. II.  SETTING THE SCENE

A. Definitions 8.6  There are no treaty definitions of the phrases ‘humanitarian access’ or ‘humanitarian assistance’.15 8.7  However, ‘humanitarian access’ is often understood as referring to ‘both [i] access by humanitarian actors to people in need of assistance and protection and [ii] access by those in need to the goods and services essential for their survival and health, in a manner consistent with core humanitarian principles’.16 14 We consider UNSC sanctions imposed on persons or entities who obstruct humanitarian access at paras 8.131.4–8.131.7 below. Actions by third party states, such as economic sanctions or counter-terrorism measures, may also impact upon humanitarian access. We address this at paras 8.75–8.77 below. 15 They are not terms used in the Geneva Conventions and Additional Protocols although Art 81(1), Additional Protocol I (API) refers to the ‘humanitarian activities’ of the International Committee of the Red Cross (ICRC), national Red Cross/Red Crescent organisations and other humanitarian organisations and describes the ‘humanitarian functions assigned to [the ICRC] by the Conventions and this Protocol in order to ensure protection and assistance to the victims of conflicts’. On these provisions see para 8.61.2(iii)–(v) below. The Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) use the term ‘humanitarian assistance’ but do not define it. On the CRC and ACRWC provisions, see para 8.86 below. 16 Numbers in bold brackets added. Swiss Federal Department of Foreign Affairs (FDFA), ICRC, UN Office for the Coordination of Humanitarian Affairs (OCHA), and Conflict Dynamics International (CDI), ‘Humanitarian Access in Situations of Armed Conflict: Handbook on the International Normative Framework, Version 2, December 2014 (Swiss Federal Department of Foreign Affairs, 2014) (FDFA Handbook), available at , 13; see also, 13, fn 11 which states, ‘OCHA, the Global Protection Working Group, and many humanitarian actors use and promote a

380

Setting the Scene  8.8–8.10 8.8  These two strands – access by humanitarian actors to people in need and access by people in need to aid – are reflected in the definition of ‘humanitarian assistance’ provided by the Institute of International Law: ‘Humanitarian assistance’ means all acts, activities and the human and material resources for the provision of goods and services of an exclusively humanitarian character, indispensable for the survival and the fulfilment of the essential needs of the victims of disasters.17

8.9  The two strands are also included in the Monitoring and Reporting Mechanism (MRM) Guidelines, which describe ‘denial of humanitarian access for children’ as follows: The intentional deprivation of or impediment to the passage of humanitarian assistance 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 or other relevant actors to access and assist affected children, in situations of armed conflict. The denial should be considered in terms of children’s access to assistance as well as humanitarian agencies’ ability to access vulnerable populations, including children.18

8.10  Humanitarian access must be provided ‘in a manner consistent with core humanitarian principles’ (ie the principles of humanity, neutrality, impartiality and ­independence19), as stressed by the International Court of Justice (ICJ) in Nicaragua v US (Merits):20 An essential feature of truly humanitarian aid is that it is given ‘without discrimination’ of any kind. In the view of the Court, if the provision of ‘humanitarian assistance’ is to escape condemnation as an intervention in the internal affairs of Nicaragua, not only must it be limited to the purposes hallowed in the practice of the Red Cross, namely ‘to prevent and alleviate human suffering’, and ‘to protect life and health and to ensure respect for the human being’; it must also, and above all be given without discrimination to all in need in Nicaragua, not merely to the contras and their dependents. general definition of humanitarian access which encompasses the dual dimension of both humanitarian actors’ ability to reach affected people and of affected people’s ability to access humanitarian assistance and services’. As to the scope of ‘goods and services essential for [children’s] survival and health’ and the limitations on this interpretation of humanitarian assistance, see nn (21) and (54) below. 17 Institute of International Law, ‘Resolution of the Sixteenth Commission: Humanitarian Assistance’ (Institute of International Law, 2003), Article I(1) (emphasis added). Art I(2) defines ‘disaster’ as ‘calamitous events which endanger life, health, physical integrity, or the right not to be subjected to cruel, inhuman or degrading treatment, or other fundamental human rights, or the essential needs of the population, whether … caused by armed conflicts or violence (such as international or internal armed conflicts, internal disturbances or violence, terrorist activities)’. Art I(3) defines ‘victims’ as ‘groups of human beings whose fundamental human rights or whose essential needs are endangered’ . See also . 18 Office of the Special Representative of the Secretary General for Children and Armed Conflict (OSRSGCAAC), UNICEF, and United Nations Department of Peacekeeping Operations (DPKO), ‘MRM Field Manual’ (Office of the Special Representative of the Secretary General for Children and Armed Conflict (OSRSGCAAC), UNICEF, and United Nations Department of Peacekeeping Operations (DPKO), 2014), 6 (emphasis added). Available at . 19 The first three of these guiding principles were set out in UN General Assesmbly Resolution 46/182 (A/RES/46/182 (19 December 1991)). The principle of independence was added by UN General Assesmbly Resolution 58/114 (A/RES/58/114) (1 July 2003)). See paras 8.134.2, 8.134.3 below. 20 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14, para 243.

381

8.11–8.14  Denial of Humanitarian Access and Assistance 8.11  In this Chapter we use the terms ‘humanitarian access’ and ‘humanitarian assistance’ to refer to both of the strands that are common to the definitions described above, ie access by humanitarian actors to people in need and access by people (children) in need to aid. 8.12  We also consider what it is – the nature and scope of the relevant goods and services – that humanitarian actors should be allowed to provide and to which children should have access under the current legal framework: see paragraphs 8.38, 8.47–8.55, 8.62–8.65.21 B.  Conflict and Humanitarian Crises 8.13  There is a correlation between conflict and humanitarian crises.22 The UN Office for the Coordination of Humanitarian Affairs (OCHA) considers that ‘conflict – in particular protracted crises – will continue to be the main driver of need in 2018’ noting that ‘[a]ll but two of the 2018 humanitarian response plans are for situations that have a major element of conflict’.23 In 2017, armed conflict occurred in all of the five countries identified by the World Health Organization (WHO) as currently experiencing the most serious (Grade 3) humanitarian emergencies.24 The need for humanitarian access and assistance in conflict zones is such that, in 2016, 80 per cent of UN humanitarian funding was directed at conflict response.25 In 2017 the UNSC noted that 97 per cent of humanitarian assistance goes to complex emergenices, the majority of which involve armed conflicts.26 8.14  By way of example, in Syria, the conflict has created a catastrophic humanitarian crisis,27 exacerbated by interference with humanitarian organisations and

21 Whether the definition of ‘humanitarian assistance’ should be expanded beyond that which is indispensable for children’s survival is beyond the scope of this Chapter, but see (n 54) and para 8.29 below. 22 See generally, Debarati Guha-Sapir and Olivia D’Aoust, ‘World Development Report 2011 Background Paper: Demographic and Health Consequences of Civil Conflict’ (World Bank, 2011), available at . Humanitarian emergencies may be a cause, contributory factor and/or a consequence of conflict. Although beyond the scope of this Chapter, we note that a holistic approach to humanitarian access and assistance recognises circumstances in which the provision of aid might decrease the likelihood of a conflict developing, continuing or expanding. In long-running contemporary conflicts, the importance of humanitarian access and assistance should not be underestimated. 23 OCHA, ‘Global Humanitarian Overview 2018’, Foreword by Mark Lowcock, UN Under-Secretary for Humanitarian Affairs and Emergency Relief Coordinator, at 4. Available at . 24 WHO, ‘Humanitarian Health Action’ (WHO, 23 August 2017) . The five countries are Iraq, Nigeria, South Sudan, the Syrian Arab Republic and Yemen. 25 UNSC, ‘Report of the Secretary-General on the protection of civilians in armed conflict’ (13 May 2016) UN Doc S/2016/447, para 2. The same data was not available in the report for 2017: UNSC, ‘Report of the Secretary-General on the protection of civilians in armed conflict’ (10 May 2017) UN Doc S/2017/414. 26 ibid, ‘Report of the Secretary-General on the protection of civilians in armed conflict’ (10 May 2017), 2. 27 European Commission: European Civil Protection and Humanitarian Aid Operations, ‘Syrian Crisis: ECHO Factsheet’ (European Commission, May 2017) (ECHO Factsheet), available at . The ECHO Factsheet describes Syria as the ‘largest humanitarian crisis since World War II’ (at 1) and notes that ‘Access remain[s] the major challenge as the cessation of

382

Setting the Scene  8.15 relief o ­ perations, including direct attacks on medical facilities and aid convoys.28 In ­September 2017, an estimated 13 million people were in need of humanitarian assistance in Syria.29 It is difficult to estimate the extent of the impact of the conflict in Syria upon children specifically, but in 2014 Save the Children estimated that ‘Hundreds – if not thousands – [of children] have likely died due to shortages of food and medical care’.30 8.15  A number of, often co-existing, factors frequently impede humanitarian access in conflicts. These include: 8.15.1  The adverse security situation.31 8.15.2  A breakdown of infrastructure or physical/environmental access difficulties.32 8.15.3  Intentional conduct by one or more of the parties to the conflict. This may manifest itself in action, such as: (i) refusing consent to humanitarian assistance within the controlled territory33 (including denying that there is a need for humanitarian aid, establishing cumbersome bureaucratic procedures to impede the movement of humanitarian supplies or personnel34 or physically blocking supplies to besieged areas in order to achieve the capitulation of, or forcible transfer of, civilians from those areas); (ii) violence that intentionally targets aid workers and supplies;35 or (iii) appropriating aid.36 Or it may be by omission, such as simply refusing to answer requests for such consent.37 8.15.4  Unintended consequences of international responses to the conflict, such as the imposition of economic sanctions and counter-terrorism measures.

hostilities agreements and the renewal of the UNSC resolutions … have not yet resulted in a substantive expansion of access for humanitarian assistance and personnel’ (at 2). On 24 February 2018, the UNSC adopted Resolution 2401 (2018) directed towards the humanitarian crisis and lack of access by UN aid agencies and other humanitarian organisations to civilians in Syria. Amongst other things, the UNSC demanded that all parties implement a 30-day ceasefire in Syria to enable humanitarian access to civilians and the evacuation of the critically ill (operative para 1), reaffirmed that sieges of civilians are a violation of IHL (preambular para 6) and recalled that starvation of civilians as a method of combat is prohibited by international law, called upon all parties immediately to lift the sieges of civilian areas, and demanded that all parties allow the delivery of humanitarian assistance, cease depriving civilians of food and medicine indispensable to their survival and enable the evacuation of all civilians who wished to leave besieged areas (operative para 10). UNSC Res 2401 (24 February 2018) UN Doc. S/RES/2401 (2018). 28 ECHO Factsheet, ibid, 2. 29 ECHO Factsheet, ibid, 2. 30 Save the Children, ‘State of the World’s Mothers 2014: Saving Mothers and Children in Humanitarian Crises’ (Save the Children, 2014) 6. 31 See, eg, UNSC, ‘Report of the Secretary-General on children and armed conflict in the Sudan’ (6 March 2017) UN Doc S/2017/191, para 51; UNSC, ‘Report of the Secretary-General on the protection of civilians in armed conflict’ (10 May 2017) (n 25), para 47. 32 See, eg, ibid, para 51. 33 See, eg, UNSC, ‘Report of the Secretary-General on the protection of civilians in armed conflict’ (13 May 2016) (n 25), para 32; ‘Report of the Secretary-General on the protection of c­ ivilians in armed conflict’ (10 May 2017) (n 25), para 50. 34 See, eg, ibid, paras 29–34. 35 See, eg, ibid, paras 35–40. 36 For example, in 2017 the Secretary-General reported that in Syria, ‘government security forces removed medical supplies, including trauma kits, surgical supplies, anaesthetics and antibiotics, from more than three quarters of inter-agency convoys’: UNSC, ‘Report of the Secretary-General on the protection of civilians in armed conflict’ (10 May 2017) (n 25), para 40. 37 See, eg, UNSC, ‘Report of the Secretary-General on the protection of civilians in armed conflict’ (13 May 2016) (n 25), para 33.

383

8.16–8.20  Denial of Humanitarian Access and Assistance 8.16  This Chapter focuses on the legal frameworks applicable to the last two of these factors: (i) intentional conduct by one or more of the parties to a conflict, (considered in Part III, below) and, to a lesser extent (ii) unintended consequences of economic sanctions and counter-terrorism measures (considered at paragraph 8.7538 below). C.  Children in Conflict-Related Humanitarian Crises 8.17  Children in conflict-affected areas ‘are more likely to be poor, malnourished, out of school or in generally poor health than many others around the globe, whether as a cause or a consequence of armed conflict’.39 8.18  Children, particularly young children, have specific vulnerabilities and needs during humanitarian and conflict situations which differ from those of adults.40 We note five examples below; these are interconnected and, as recognised in the Machel Report, a holistic approach is needed to protect children in conflict situations.41 8.19  First, children are particularly susceptible to preventable and treatable health conditions. Mortality and morbidity rates from preventable communicable diseases, acute malnutrition, and other treatable health conditions are disproportionately high for c­ hildren in conflict zones when assessed (i) against rates for children in nonconflict-affected areas,42 and (ii) against adults in conflict situations.43 Young children are particularly vulnerable to communicable disease and to malnutrition.44 The negative impact of conflict upon breast-feeding rates leads to increased infant mortality rates and poor feeding practices for infants and young children, increasing the risk of undernutrition, disease and death.45 Speedy responses are necessary to mitigate these risks.46 8.20  The cholera epidemic in conflict-affected Yemen illustrates how this pattern of undernutrition and disease can unfold. At the time of writing this book, Yemen is in a 38 See also paras 8.28, 8.76–8.77 8.138. 39 Machel Study 10-Year Strategic Review (n 2), 18. 40 In this Chapter, we refer at various points to children’s ‘vulnerability’. We consider it to be helpful shorthand for referring to the various ways in which a child might be less able – physically or mentally – to adapt to and cope with a conflict situation. In using it we do not suggest that children should be viewed as a homogenous group sharing the same characteristics, nor that they are not often able to demonstrate extremely effective strategies for survival, nor that they should be seen as passive victims. For further discussion, see Jason Hart and Bex Tyrer, ‘Research with Children Living in Situations of Armed Conflict: Concepts, Ethics & Methods’ (University of Oxford, Refugee Studies Centre 2006) RSC Working Paper No 30, para 1.5. 41 Machel Report (n 4), paras 312–13. 42 See Gulaid and Gulaid (n 4), 338. 43 See, for example, The Machel Study 10-Year Strategic Review (n 2), 20 (citing Benjamin Coghlan et al, ‘Mortality in the Democratic Republic of Congo: An Ongoing Crisis’ (International Rescue Committee and Burnet Institute, 2008), ii–iii): in the DRC between January 2006 and April 2007 children accounted for 47 per cent of deaths, despite only constituting 19 per cent of the total population. 44 The WHO estimates that more than half of all deaths of children under five are from preventable diseases that are treatable through simple, affordable interventions and that 45 per cent of deaths of children under five are nutrition related. ‘Malnourished children, particularly those with severe acute malnutrition, have a higher risk of death from common childhood illness such as diarrhoea, pneumonia, and malaria’: WHO, ‘Children: reducing mortality – Fact sheet’ (WHO, 2016), available at . 45 The Sphere Project, The Sphere Handbook: Humanitarian Charter and Minimum Standards in Humanitarian Response 3rd edn (Rugby, Practical Action Publishing, 2011) (The Sphere Handbook), 158. 46 The Sphere Handbook (n 45), 158.

384

Setting the Scene  8.21–8.22 near-famine situation: 2.2 million children under the age of five are acutely malnourished and 10.3 million children are in need of humanitarian assistance. By mid-June 2017, it was estimated that almost half of the new daily cases of suspected cholera/acute watery diarrhoea (AWD) were children under the age of 15 years, meaning that, on average, 105 children were contracting cholera/AWD every hour.47 The President of the ICRC described the situation as ‘manmade. It is a direct consequence of more than two years of warfare’.48 The conflict has exacerbated the country’s food insecurity, led to a breakdown in basic social and health services, and prevented timely and effective humanitarian access, including cholera/AWD treatment. The consequence is that children are ‘dying from easily-treatable chronic diseases’.49 This is the background against which the denial of humanitarian access to children in Yemen, and in other similar crises brought about by conflict, must be assessed. 8.21  Second, children have specific nutritional needs and suffer long-term developmental consequences if these are not adequately addressed.50 8.22  Third, whilst humanitarian assistance in conflict areas has traditionally focused on immediate physical needs (food, shelter, medication), it is increasingly recognised that children’s basic needs include addressing the psychological trauma of conflict. Examples include demobilisation and reintegration programmes for ‘child soldiers’, as well as counselling for victims of sexual violence, abduction or conflict-related injury and for those who have lost family members and caregivers and witnessed atrocities.51 In addition to these directly conflict-related situations, children suffering from malnutrition require social and psychological support in order to prevent future disability and cognitive impairment.52 Children’s educational needs must also be considered: there is growing recognition of the importance of prompt provision of education services to children whose schooling has been interrupted by conflict or displacement.53 Failure to address these needs54 not only risks affecting the individual children on a long-term basis but can also contribute to future violence and conflict as generations of traumatised and disadvantaged children grow into adults.55

47 Save The Children, ‘Yemen Cholera Epidemic Infecting One Child Every Minute’ 14 June 2017, available at . 48 Peter Maurer, ‘ICRC president leaves Yemen, issues urgent plea: Statement by Peter Maurer, president of the International Committee of the Red Cross’ (ICRC, 27 July 2017), available at . 49 Maurer (n 48). 50 The Sphere Handbook (n 45), 147. 51 The psychosocial needs of conflict-affected children were recognised as requiring urgent action in the Machel Report (n 4), see, in particular, paras 166–83. See also, Machel Study 10-Year Strategic Review (n 2) 138–41. 52 The Sphere Handbook (n 45), 172. 53 See for example, World Humanitarian Agency Summit, Istanbul 23–24 May 2016, ‘Education in Emergencies and Protracted Crises: Special Session Summary’. Available here . 54 These basic needs of children highlight the limitation of the currently accepted definitions of ‘humanitarian assistance’ and ‘humanitarian access’ that focus upon aid ‘indispensable to children’s survival’ (MRM Guidelines, see para 8.9 above, emphasis added). Arguably, the psycho-social support needed to address these basic needs would not fall within the scope of humanitarian aid indispensible to children’s survival. 55 See, eg, Save The Children, ‘Invisible Wounds: The impact of six years of war on the mental health of Syria’s children’ (Save the Children, 2017), 22, available at . See also, Machel Report (n 4) para 168: noting that the stress of conflict can cause aggressive behaviour in older children and adolescents. 56 Lori G Irwin, Arjumand Siddiqi and Clyde Hertzman, ‘Early Child Development: A Powerful Equalizer: Final Report for the World Health Organization’s Commission on the Social Determinant’s of Health’ (Global Knowledge for Early Child Development and the Human Early Learning Partnership (HELP), 2007), 21–25. 57 The Sphere Handbook (n 45), 158; see also 172 and 184. 58 ibid, 11. 59 ibid, 14. 60 Resources on negotiating humanitarian access with non-state armed groups include William Carter and Katherine Haver, ‘Humanitarian access negotiations with non-state armed groups: internal guidance gaps and emerging good practice’ (Secure Access in Volatile Environments (SAVE), October 2016), available at ; Gerard McHugh and Manuel Bessler, ‘Humanitarian Negotiations with Armed Groups: A Manual for Practitioners’ (United Nations, 2006), available at . 61 Geneva Call, ‘In their words: Perceptions of armed non-state actors on humanitarian action’ (May 2016), available here: .

386

Legal Framework  8.28–8.31 8.28  Third, timing: conflicts may require (i) immediate humanitarian assistance62 and, later, (ii) ‘scaling up’ of humanitarian assistance. However, economic sanctions, often imposed by states and international organisations in response to conflicts, and counter-terrorism measures may have the unintended consequence that humanitarian organisations are prevented from accessing those in need quickly (see further­ paragraph 8.7563). 8.29  Fourth, protracted conflicts: humanitarian needs over the course of a long-term period may extend beyond the core provisions that are indispensable for survival. This is particularly in situations where forced displacement has occurred.64 The scope of humanitarian assistance may, therefore, end up being deficient even where access is secured and practicable. III.  LEGAL FRAMEWORK

A.  The IHL Framework 1.  Introduction to the General IHL Framework 8.30  The IHL framework governing humanitarian access and activities in armed conflict has been described as comprising four interdependent layers.65 These are as follows: (i) parties to an armed conflict (states and non-state armed groups) bear the primary responsibility for meeting the basic needs of civilian populations under their control; (ii) impartial humanitarian organisations have the right to offer their services to carry out humanitarian activities, particularly when the needs of the affected civilian population are not being met (known as the ‘right of humanitarian initiative’66); (iii) parties to the conflict may consent to such offers of humanitarian assistance; and (iv) once consent to humanitarian access has been given then the parties to the conflict and other concerned states must allow and facilitate the rapid and unimpeded passage of relief schemes subject to their right of control. 8.31  This Chapter focuses on the third and fourth of these layers. It also considers the consequences when withholding consent to impartial humanitarian activities or failing to allow and facilitate timely relief operations amounts to a denial of humanitarian access 62 Ruth Abril Stoffels, ‘Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps’ (2004) 86 IRRC 515–46, 525. See also, The Sphere Handbook (n 45), 147. 63 See also paras 8.76–8.77. 64 See, eg, UNSC, ‘Report of the Secretary-General on the protection of civilians in armed conflict’ (13 May 2016) (n 25), paras 46–48. 65 Tristan Ferraro (ICRC), ‘Relief schemes and the delivery of humanitarian activities in situations of AC [armed conflict], the ICRC’s perspective’, paper presented at the 40th San Remo Round Table on current issues of international humanitarian law, 7–9 September, 2017, 2. 66 The right of humanitarian initiative given to the ICRC, the Red Cross organisations and other impartial humanitarian organisations, is contained in Common Art 3 and in Arts 9/9/9/10 of the Geneva Conventions. For a description, see ICRC, ‘Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd edition, 2016: Article 9: Activities of the ICRC and other impartial humanitarian organisations’ para 1126, available at (hereafter 2016 ICRC Commentary on GCI).

387

8.32–8.35  Denial of Humanitarian Access and Assistance and assistance to children in conflict. In relation to the first layer, we note the following by way of introduction: 8.32  State responsibility. States bear the primary responsibility for ensuring humanitarian assistance is provided to civilians in need within their territory and control. This responsibility has been repeatedly affirmed in international law and practice.67 The UN General Assembly (UNGA) Resolution on ‘Guiding Principles of Humanitarian Assistance’ states: Each State has the responsibility first and foremost to take care of the victims of natural ­disasters and other emergencies occurring on its territory. Hence, the affected State has the primary role in the initiation, organization, coordination, and implementation of humanitarian assistance within its territory.68

8.33  IHL provides a legal framework that applies during armed conflicts and which sets out provisions on humanitarian access in situations in which a state fails to fulfil its obligation to ensure assistance. At the far end of the spectrum, a state’s failure to fulfil its obligations could lead to UNSC authorised military intervention to enable humanitarian access to civilians. 8.34  Occupation. When a territory is ‘actually placed under the authority of the hostile army’69 the situation is governed primarily by the Hague Regulations concerning the Laws and Customs of War on Land (the Hague Regulations), the Fourth Geneva Convention (GCIV), and Additional Protocol I to the Geneva Conventions (API). The obligation to provide for the civilian population in occupied territory shifts to the Occupying Power.70 8.35  Non-state armed groups. As we have noted elsewhere (see Chapter 2, ­paragraph 2.89), although IHL applies to non-state armed groups, holding such groups accountable for IHL violations remains a challenge. In the context of this Chapter, the position of non-state armed groups is considered in relation to the following issues: (i) whether there is any obligation on such groups, where they have de facto control over territory, to provide humanitarian assistance to civilians in that territory; (ii) the need for consent by such groups when humanitarian actors seek access to civilians for the provision of humanitarian assistance; and (iii) whether there is any obligation upon such groups to ensure safe passage of relief supplies and personnel. We consider (ii) at ­paragraph 8.55 and (iii) at paragraph 8.65.1 below. As to (i): under Common Article 3 and CIL, non-state armed groups are responsible for meeting the basic needs of populations under their effective control if the state party to the conflict is unable to or otherwise does

67 For a recent restatement, see UNSC, ‘Report of the Secretary-General on the protection of civilians in armed conflict’ (13 May 2016) (n 25), para 34. 68 UNGA Res 46/182 (19 December 1991) UN Doc A/RES/46/182 (Guiding Principles of Humanitarian Assistance), para 4. 69 Art 42, Hague Regulations Respecting the Laws and Customs of War on Land (the Hague Regulations). These are annexed to the Hague Convention (IV) Respecting the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910)(1907) 205 CTS 277. 70 Art 43 of the Hague Regulations provides, ‘The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country’.

388

Legal Framework  8.36 not discharge its primary responsibility for providing humanitarian assistance to civilians within its territory.71 8.36  On the IHL framework more generally we make the following introductory ­observations:72 8.36.1  The IHL framework consists of treaty law and CIL.73 As noted in Chapter 2: GCIV and API are applicable in IAC, whilst Common Article 3 of the Geneva Conventions and Additional Protocol II (APII)74 apply in NIAC. In addition to the treaty law and CIL noted above, there are a number of soft law instruments that are relevant to the denial of humanitarian access.75 8.36.2  IHL protects civilians and those no longer directly participating in hostilities. The majority of provisions are of general application to such persons. 71 Dapo Akande and Emanuela-Chiara Gillard, ‘Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict’ (United Nations Office for the Coordination of Humanitarian Affairs (OCHA), 2016), para 15. Consistent with this, in his 2017 report on the protection of civilians in armed conflict, the Secretary-General reminded ‘all parties to conflict that they have the primary responsibility for meeting the basic needs of civilians under their effective control’: UNSC, ‘Report of the Secretary-General on the protection of civilians in armed conflict’ (10 May 2017) (n 325), para 52 (emphasis added). 72 As we have noted in Ch 1, draft conventions were prepared in 1939 and 1946. These included specific provisions relating to humanitarian access to children under 14 years old: see Annexes I and II. Both instruments provided that basic relief supplies including food, clothing and medicine would be conveyed to children in conflict afflicted territories and that relief efforts would be coordinated by a central body (the International Save the Children Union in the 1939 draft convention and the Red Cross International Committee in the 1945 draft convention). In neither instrument was the separate consent of High Contracting Parties to relief operations required. In the 1939 instrument, ‘food provisions, outfits, drugs and other products or staple products shall be sent … to belligerent countries to be used for the children … Neither hindrance nor any delay will be caused by the belligerents during the conveyance and distribution of the parcels’ (Art 2, emphasis added). In the 1946 instrument, the primary responsibility for ensuring that children had minimum levels of humanitarian assistance rested with States Parties, viz. ‘High Contracting Parties shall provide assistance, directly or through the International Red Cross, to children’ (Art 4, emphasis added); see also Arts 9–10 in Annex 1 and Art 37 in Annex 5 to the convention. It established minimum levels of assistance to which protected children had a right in relation to the ‘three essential needs’ of housing, food and clothing, of which they could not be deprived (see Arts 15–24, Annex 2 and Art 37, Annex 5), in addition to medical assistance (Annex 3). The 1939 convention provided that any breach was a criminal offence; the 1946 convention is silent on criminal liability. The 1946 instrument also provided that authorised relief organisations had to be exclusively humanitarian, impartial and operate without preference for any party (Art 38, Annex 5). 73 The relevant rules of CIL are identified in the ICRC’s Study on Customary IHL and database of customary IHL rules, and are referred to later in this Chapter (see (n 87) below). See Ch 2, paras 2.58–2.60 for an explanation of our reliance on this study. 74 This contains greater protections than Common Art 3, but it applies to a restricted category of NIAC: see Ch 2, para 2.24. However, the rules of CIL that relate to humanitarian access apply to NIAC in general. 75 These draw upon IHL and IHRL. We provide three examples at paras 8.134.1ff below. There are also authoritative guidelines and standards widely adopted by humanitarian actors, which also set out the applicable legal frameworks within which humanitarian actors operate. Again, we provide three examples. (i) The Sphere Project (n 45). This is an internationally recognised set of humanitarian principles and universal minimum standards for humanitarian assistance. (ii) Child Protection Working Group (CPWG), The Minimum Standards for Child Protection in Humanitarian Action (Child Protection Working Group (CPWG), 2012), available at . These are recognised as companion standards to The Sphere Handbook. The Child Protection Working Cluster is formed of a number of NGOs, UN agencies and others. (iii) FDFA, ICRC, OCHA and CDI, ‘Humanitarian Access in Situations of Armed Conflict: Practitioners’ Manual, Version 2, December 2014’ (FDFA, 2014) and FDFA Handbook (n 16): both available at . They provide an overview of the legal regime and practical issues likely to be faced by humanitarian organisations in the delivery of humanitarian assistance to civilians during armed conflicts.

389

8.37–8.39  Denial of Humanitarian Access and Assistance 8.36.3  IHL protects children but these protections usually apply to children under the age of 15 years. The position is more complex in respect of: (i) children who are recruited and used in armed conflict (regardless of whether they are under 15 or 18 years of age); and (ii) children between the ages of 15 and 18. There are a limited number of provisions recognising the special status of children: of particular importance are Article 77(1), API and Article 4(3), APII. See further Chapters 3 and 4. 8.36.4  IHL requires relief operations to be exclusively humanitarian, impartial and conducted without any adverse distinction.76 8.36.5  IHL makes clear that offers of humanitarian access/assistance fulfilling these criteria are not to be considered as interference in the conflict or as unfriendly acts.77 2.  Withholding Consent to Impartial Humanitarian Access 8.37  The need for states to consent before humanitarian actors have access to state territory is a requirement of IHL in both IAC and NIAC (see paragraphs 8.38–8.48 and 8.53–8.55, respectively). The situation during occupation is different, and is explained below at paragraph 8.52. IHL treaty law does not explicitly require the consent of nonstate armed groups before humanitarian actors have access to territory under their control in NIAC although such consent may be sought for practical reasons (see paragraph 8.53 below). However, although there is no express treaty requirement of consent for a nonstate armed group: if groups withhold consent for impartial relief operations to assist civilians in need then such refusals may be unlawful, pursuant to Common Article 3 and ICRC, CIL Rule 55, if done for arbitrary or capricious reasons. IAC/Consent 8.38  The principal IHL provision regulating consent to humanitarian relief operations in IAC is Article 70(1), API.78 This provides that if the civilian population is not adequately provided with certain supplies,79 then relief actions which are humanitarian, impartial and conducted without any adverse distinction shall be undertaken,80 ‘subject to the agreement of the Parties concerned in such relief actions’.81 8.39  The reference to the ‘Parties concerned’ refers primarily to ‘the Parties from which relief is to come … and the Parties for which the relief is intended.’ This is because the

76 Arts 70(1), 81(4), API; Art 18(2), APII. See also UNGA Res 46/182 (19 December 1991) (n 68); UNGA Res 58/114 (17 December 2003) UN Doc A/RES/58/114. 77 Art 70(1), API; Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14, paras 242–43. 78 Art 23, GCIV addresses the different issue of free passage of consignments. See para 8.62.2 below. 79 The supplies in question are set out in Art 69, including food, medical supplies, clothing, bedding, means of shelter and other supplies essential to the survival of the civilian population. 80 This does not preclude specific actions, eg those which benefit children, see Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (ed), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva and Leiden, ICRC and Martinus Nijhoff, 1987), para 2803. This is referred to hereafter as the ICRC Commentary on the AP. 81 Emphasis added. See also Art 70(5), API which provides that Parties to the conflict and the High Contracting Parties must encourage and facilitate effective international co-ordination of relief actions.

390

Legal Framework  8.40–8.43 situation of a Party through whose territory relief consignments must pass is addressed in Article 70(2).82 8.40  On the question of agreement, ie consent:83 the negotiating texts of API reveal that this was a contentious issue. Whilst the clause ‘subject to the agreement of the Parties concerned’ was added out of concern to protect the sovereignty of the state receiving the aid, it was stated during the negotiating Conference that it did not imply that the Parties concerned had ‘absolute and unlimited freedom’ to withhold their agreement to relief actions and that this must be ‘for valid reasons, not for arbitrary or capricious ones’.84 There is no definition of what constitutes an arbitrary or capricious withholding of consent. The law is therefore unclear in this regard. 8.41  One approach to deciding whether a withholding of consent is for ‘arbitrary or capricious’ reasons is to ask: (i) whether there are any IHL prohibitions that may be violated by the refusal to consent85 and its consequences; and (ii) whether there are any IHL obligations that may be breached by the refusal and its consequences. 8.42  Before developing both (i) and (ii) in more detail, we make three points by way of overview. First, where a refusal to consent to humanitarian access violates the IHL prohibition on the intentional starvation of civilians it will be arbitrary or capricious. Second, ‘starvation’ may be interpreted expansively to include not just denial of food but also situations in which a denial of essential supplies or services will, in turn, lead to a denial of food, for example where irrigation works are disrupted. This interpretation of ‘starvation’ should be applied to the question of whether a withholding of consent is for arbitrary or capricious reasons. Third, even where withholding consent to humanitarian access will not result in the ‘starvation’ of civilians as expansively defined, it may still amount to a breach of other prohibitions or obligations in IHL. For that reason it may qualify as arbitrary or capricious. We turn now to develop (i) and (ii) in more detail. 8.43  As to (i), whether there are any prohibitions that may be violated by the refusal to consent: there are a number of examples of such prohibitions. First, the prohibition on starvation of civilians as a method of warfare may be violated by the refusal. This prohibition exists in Article 54(1), API and its CIL counterpart.86 ICRC, CIL Rule 55

82 See ICRC Commentary on the AP (n 80), para 2807. 83 Some commentators have sought to differentiate between the meaning of the words ‘agreement’ and ‘consent’: see, eg, Flavia Lattanzi, ‘Humanitarian Assistance’ in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (Oxford, OUP, 2015) 242–45. However, commentators all arrive at the same conclusion in terms of the effect of Art 70(1): see, eg, Lattanzi at 244, ‘in the author’s view, state parties to API assumed the obligation to accept outside humanitarian assistance for a civilian population whose survival was at risk’. 84 ICRC Commentary on the AP (n 80), para 2805. See also: OCHA, ‘Guiding Principles on Internal Displacement’ (United Nations, 2004), Principle 25(2); Institute of International Law (n 17), Art VIII; and, in the context of natural and man-made disasters more generally, see the International Law Commission’s (ILC) Draft articles on the protection of persons in the event of disasters, Art 13(2) in ILC, ‘Report of the International Law Commission: Sixty-eighth session’ (2 May–19 June and 4 July–12 August 2016) UN Doc A/71/10, 59. 85 We use the term ‘refusal to consent’ interchangeably with ‘withholding of consent’. It is intended to capture both those situations in which a state expressly refuses to consent to an offer of impartial humanitarian assistance and when it simply fails to provide such consent. 86 ICRC, CIL Rule 53: ‘The use of starvation of the civilian population as a method of warfare is prohibited’ (applicable in both IAC and NIAC). CIL reflects the content of IHL treaty provisions, as is clear from ICRC, CIL Rules 53, 54 and 55.

391

8.44–8.45  Denial of Humanitarian Access and Assistance (applicable in IAC and NIAC) provides, ‘The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control’.87 The commentary to this rule makes clear the need for consent, save that ‘consent must not be refused on arbitrary grounds. If it is established that a civilian population is threatened with starvation and a humanitarian organisation which provides relief on an impartial and non-discriminatory basis is able to remedy the situation, a party is obliged to give consent’.88 Therefore, where withholding consent might lead to starvation, no (otherwise valid) reasons will justify refusing humanitarian assistance and the refusal will be arbitrary and therefore unlawful.89 8.44  As to what will amount to ‘starvation’: the final part of Article 54(2), API (which deals with motive) suggests that destruction of ‘objects indispensable to the survival of the civilian population’, such as ‘foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works’ for the purpose of ‘denying them their sustenance value’ may result in starvation because it may be done ‘in order to starve out civilians’.90 Article 54(2) thus appears to use the term ‘to starve’ expansively, and does not limit it to a denial of food per se. If that construction is accepted, then we consider that it should inform the interpretation of the prohibition on the starvation of civilians as a method of warfare in Article 54(1). 8.45  Second, there are other prohibitions which may be violated by the refusal to consent even where civilians are not threatened with starvation. Some of these are identified in The Oxford Guidance on the Law relating to Humanitarian Relief Operations in Armed Conflict. For example, the prohibition on collective punishment may be violated where consent is withheld in order to punish a civilian population for acts committed by the party to the conflict with control over it.91 Another example is that the prohibition

87 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law: Volume 1: Rules (Cambridge, CUP, 2005, reprinted with corrections 2009) (referred to hereafter as the ICRC Study on Customary IHL) 193. 88 ibid, 197. 89 ICRC Commentary on the AP (n 80), paras 2805, 2808; Felix Schwendimann, ‘The legal framework of humanitarian access in armed conflict’ (2011) 93 IRRC 993, 999. One commentator has suggested that as a matter of customary IHL consent of the parties to a conflict is in effect no longer required because parties are always obliged to give it, even where the situation is not posing a risk of starvation or otherwise threatens the survival of a civilian population: Rebecca Barber, ‘Facilitating humanitarian assistance in international humanitarian and human rights law’ (2009) 91 IRRC 371, 391. However, there does not appear to be the necessary state practice and opinio juris to say that this has crystallised into a norm of customary IHL. 90 The ICRC Study on Customary IHL (n 87) notes ‘During the negotiation of the Elements of Crimes for the International Criminal Court, it was recognized that the ordinary meaning of the word “starvation” covered not only the more restrictive meaning of starving as killing by deprivation of water and food, but also the more general meaning of deprivation or insufficient supply of some essential commodity, of something necessary to survival’, 193. 91 Akande and Gillard (n 71), para 51: third bullet point and fn 48 referring to the prohibition on collective punishment contained with Art 33, GCIV and Art 4(2)(b), APII. Art 33, GCIV reads: No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage is prohibited. Reprisals against protected persons and their property are prohibited. In relation to the prohibition on collective punishments in NIAC under Art 4, APII, see para 8.54.1 below.

392

Legal Framework  8.46–8.48 on discrimination may be violated where consent to humanitarian relief operations is ­withheld with the intent or effect of discriminating against a particular group or section of the civilian population, such as ethnic groups perceived as favouring the enemy.92 8.46  This approach could be extended to provide a further example – the prohibitions contained in the ‘fundamental guarantees’ contained within Article 75, API.93 So withholding consent to relief operations may qualify as arbitrary or capricious where it leads to any of the prohibited acts set out in Article 75(2), API. These include ‘(a) violence to the life, health, or physical or mental well-being of persons, in particular (i) murder; (ii) torture of all kinds, whether physical or mental … (b) outrages upon personal dignity, in particular humiliating and degrading treatment … (d) collective punishments’. 8.47  As to (ii), whether there are any obligations that may be breached by the refusal to consent: we recall that, as noted at paragraph 8.4 above, states are obliged to provide for the basic needs of the civilian population in territory under their control. It is in the situation where those basic needs are not being met that the question of consent to humanitarian access arises, under Article 70(1), API.94 Issue (ii) asks whether there are other obligations which may be breached by the refusal to consent. 8.48  Before identifying such obligations we begin with a point of principle, viz., international law obligations may be breached by a refusal to consent even where there is no threatened starvation. In support of this proposition we note the following: 8.48.1  As noted above, Article 70(1), API refers to relief action where a civilian population is not adequately supplied with ‘food and medical supplies … clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population … and objects necessary for religious worship’.95 The fact that this list refers to aid other than food suggests that threatened starvation is not the only issue to consider when assessing the lawfulness of refusal. 8.48.2  The UNSC in its action relating to Syria appears to have adopted the position that the IHL prohibition on states arbitrarily withholding consent for humanitarian access applies in a wider set of circumstances than only those in which the starvation of civilians through denial of food may occur. This is because the relevant UNSC Resolutions refer to ‘objects indispensable to their survival’ and not just to food.96 92 Akande and Gillard (n 71), para 51: fourth bullet point and fn 49. 93 Art 75(2), API expands upon the fundamental requirement in Art 27, GCIV that protected persons shall be humanely treated. The wording of Art 75(2) closely tracks that of the prohibitions in Art 4, APII (see para 8.54.1 below) and Common Article 3 (see para 8.55.5 below). 94 Art 70(1), API provides that ‘[i]f the civilian population … is not adequately provided with the supplies mentioned in Article 69 [which include food, medical supplies, clothing, bedding, shelter, other supplies essential to survival and necessary religious objects] relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions.’ 95 This list appears in Art 69, API and is incorporated by reference into Art 70(1), API. The phrase ‘objects indispensable to the survival of the civilian population’ also appears in the title of Art 54, API and in Art 54(2), API (emphasis added): ‘It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population … for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive’. 96 In UNSC Res 2139 (22 February 2014) UN Doc S/RES/2139 (2014), preamble (10th recital) (emphasis added), the UNSC stated that ‘arbitrary denial of humanitarian access and depriving civilians of objects indispensable

393

8.49  Denial of Humanitarian Access and Assistance 8.48.3  The Secretary-General has stated, in this regard, ‘If these basic needs [of c­ ivilians] are not being met, States must not arbitrarily withhold consent to impartial relief operations in a manner contrary to international law’.97 8.48.4  Likewise, the Swiss FDFA’s Handbook states: Whether a decision not to accept assistance is arbitrary depends on the circumstances and on the international obligations incumbent upon the party whose consent is required. It should therefore be determined on a case-by-case basis. In any case, it should be emphasised that under IHL, the rule is that when the civilian population suffers undue hardship owing to the lack of essential supplies, humanitarian relief operations shall be undertaken  … Access can only be refused based on valid and lawful reasons. Furthermore, the denial of access should not amount to a violation of other rules of IHL. For instance, the use of starvation of the civilian population as a method of warfare is specifically prohibited in IHL …98

8.48.5  The view expressed in the Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict is similar in its point (i) but goes further in its points (ii) and (iii): Essentially, consent is withheld arbitrarily if (i) it is withheld in circumstances that result in the violation by a state of its obligations under international law with respect to the civilian population in question or (ii) the withholding of consent violates the principles of necessity and proportionality; and (iii) consent is withheld in a manner that is unreasonable, unjust, lacking in predictability or that is otherwise inappropriate.99

8.48.6  Points (ii) and (iii) of the Oxford Guidance offer an interesting perspective. We do not express a concluded view on those points beyond our conclusion that a refusal to consent may violate international law obligations even in situations where there is no threatened starvation through denial of food. 8.49  In light of that point of principle: there are a number of examples of international law obligations which may be breached by a refusal to consent to humanitarian access. For example, the refusal to consent may result in a breach of the fundamental human rights that are applicable in armed conflicts and it is arguable that in certain circumstances these IHRL obligations may provide broader protections than IHL.100

to their survival, including wilfully impeding relief supply and access, can constitute a violation of international humanitarian law’, and demanded, in paras 5–8 that the parties in the conflict in Syria allow, ie consent to, humanitarian access. See also UNSC Res 2165 (14 July 2014) UN Doc S/RES/2165, para 6 and UNSC Res 2258 (22 December 2015) UN Doc S/RES/2258, preamble (16th recital) in relation to Syria, which refer to ‘humanitarian assistance including medical and surgical supplies’. See also UNSC Res 2410 (2018) (n 27). These demands and the UNSC’s subsequent action authorising humanitarian access over border crossings into Syria, effectively overriding a need for consent by the Syrian Government (see para 8.123.2 below), were not limited to food assistance only and referred to objects indispensable for civilians’ survival more generally. 97 UNSC, ‘Report of the Secretary-General on the protection of civilians in armed conflict’ (10 May 2017) (n 25), para 52. 98 FDFA Handbook (n 16), 25–26 (citations omitted). 99 Akande and Gillard (n 71), para 49. For a more detailed analysis, see Dapo Akande and Emanuela-Chiara Gillard, ‘Arbitrary Withholding of Consent to Humanitarian Relief Operations in Armed Conflict’ (2016) 92 Int’l L Stud 483. 100 Akande and Gillard (n 71), para 51: fifth bullet point. For the applicable IHRL, see paras 8.88–8.89 below.

394

Legal Framework  8.50–8.52 8.50  Another example is the international law obligation to protect children as embodied in Article 77(1), API.101 This requires parties to the conflict to provide children (at least those aged under 15) with the ‘care and aid they require’.102 If this obligation is applied to the issue of consent/humanitarian access then it could render a state’s refusal unlawful in a broader range of circumstances than those captured by paragraphs 8.44 above because the concept of ‘care and aid’ is arguably broader than the concept of ‘basic needs’. For example, it might, more easily, encompass educational supplies/resources than ‘basic needs’. 8.51  In conclusion, and drawing together the analysis above on prohibitions and obligations: we consider that where a party to IAC would violate an international law prohibition or an international law obligation, whether in relation to civilians in general or children in particular, by withholding consent to humanitarian relief operations, then the withholding of consent is likely to be ‘arbitrary or capricious’. This means that the circumstances in which a refusal to consent will be arbitrary or capricious include, but are not limited to, where it may (i) lead to the starvation of civilians (see paragraphs 8.43–8.44); (ii) lead to the death of civilians other than by a denial of food, for example, from a lack of access to potable water (see paragraph 8.44); (iii) lead to any of the prohibited acts set out in Article 75, API, including violence to life, health, physical and mental wellbeing, humiliating and degrading treatment, or collective punishments (see paragraph 8.46); (iv) result in the violation of fundamental human rights (see ­paragraph 8.49), and (v) violate the obligation to give children ‘the care and aid they require’(see paragraph 8.50). IAC Occupation/Consent 8.52  In relation to consent and humanitarian access in occupation: Article 59, GCIV provides that ‘if the whole or part of the population of an occupied territory is inadequately supplied’, then the Occupying Power ‘shall agree’ to relief schemes and facilitate them by all the means at its disposal. Therefore, if the whole or part of the population is inadequately supplied and the Occupying Power has not already accepted offers to conduct relief operations from impartial humanitarian organisations that are sufficient to meet the population’s basic needs or made other sufficient arrangements to do so, then the Occupying Power may not, lawfully, refuse to consent to offers to conduct impartial, humanitarian relief operations.103 101 ‘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’ (emphasis added). This ‘special respect’ is reflected in Art 38(1), CRC. 102 As we noted in Ch 2, para 2.71 there is no single definition of ‘children’ in GCIV or the Additional Protocols; different age limits are used in different provisions. This was a deliberate omission from API, see Committee III Report of the Fourth Session (17 March–10 June 1977) (CDDH/407/Rev.1) in Federal Political Department, ‘Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts’ (Federal Political Department, 1978), Vol XV, para 63. The ICRC’s Commentary to AP (Art 77(1), API) suggests that ‘the limit of fifteen years of age, which is given many times in the Fourth Convention and is also given in paragraphs 2 and 3 of this article, seems to provide a reasonable basis for a definition’: ICRC Commentary on the AP (n 80), para 3179. See also Ch 3, para 3.43. 103 See Jean S Pictet (ed), Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Times of War 1949 (Ronald Griffin and CW Dumbleton tr, Geneva, ICRC, 1958) 320 (hereafter 1958 ICRC Commentary on GCIV). The commentary also states, at 319–20, that the terms of Art 59 were largely driven

395

8.53–8.54  Denial of Humanitarian Access and Assistance NIAC (APII) and NIAC (Common Article 3)/Consent 8.53  NIAC (APII): The principal provision relating to humanitarian access in NIAC (APII), ie where the armed conflict is between the armed forces of a state and a non-state armed group under a responsible command and with sufficient territorial control within that state,104 is Article 18(2), APII.105 As is the case under Article 70, API, the requirement to allow humanitarian access to civilians in NIAC under Article 18(2), APII, is subject to the consent of the High Contracting Party concerned (ie the government in power).106 Although the consent of a non-state armed group is not expressly required as a matter of treaty law before humanitarian assistance is provided to civilians in territory under its control, for obvious, practical reasons this may be sought by the humanitarian organisation offering those services. Furthermore, as a result of their obligations under Common Article 3 and ICRC, CIL Rule 55, refusing consent to such relief operations may be unlawful if it is arbitrary or capricious.107 8.54  As with IAC, there is no codified guidance regarding the exercise of consent in NIAC/APII (whether of a state or non-state armed group) and the law is unclear. Following the same approach as that which we outlined in relation to IAC: 8.54.1  Like Article 70, API, Article 18(2), APII has been interpreted as meaning that consent cannot be withheld where the population is at risk of starvation.108 This flows from the prohibition on the use of starvation of civilians as a method of combat, which is contained within Article 14, APII and CIL.109 As with IAC, ‘starvation’ could be interpreted expansively to include the denial of objects essential to the survival of civilians such as objects required for the production of foodstuffs, livestock, drinking by the experiences of the ICRC in the large-scale relief operation in occupied Greece during WWII and the lack of any legal obligation upon the Occupying Power to accept relief supplies for civilians (in contrast to the position of prisoners of war or civilian internees). At the time of the negotiation of GCIV these were still recent events and addressing this lacuna was considered imperative. An earlier draft of Art 59 which reserved the Occupying Power’s right to refuse relief consignments for security reasons was not reflected in the final version (at 329). See also Dapo Akande and Emanuela-Chiara Gillard, ‘Promoting Compliance with the Rules Regulating Humanitarian Relief Operations in Armed Conflict: Some Challenges’ (2017) 50 (2) Israel Law Review 119, 121 in which the authors state that there are only two situations in which states ‘have no latitude to withhold consent … first, in situations of occupation … Second, the [UNSC] may adopt binding measures requiring parties to consent to humanitarian relief operations or, more radically, impose relief operations [referring to UNSC actions in relation to Syria].’ We consider the UNSC’s action in relation to Syria at paras 8.123.2, 8.131.8 below. 104 For a discussion of the type of NIAC to which APII applies, see Ch 2, para 2.77. 105 It provides, ‘If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned’. 106 ICRC Commentary on the AP (n 80), para 4884. The obligations and prohibitions in APII are applicable to the State and non-state armed groups that are parties to the conflict, under Art 18(2), APII, however, humanitarian assistance is subject to the consent of the High Contracting Party, ie the Government of the State only. Whilst it has been suggested that this requirement does not apply where the humanitarian activities offered are to occur only in territory controlled by a non-state armed group which can be accessed without passage through territory controlled by the State Government, we consider this is a difficult position to sustain as a matter of international law. For a similar conclusion, see Akande and Gillard (n 71) paras 27–30. 107 See (n 112) and para 8.55 below. See also, ICRC, CIL Rule 55 and commentary; Cedric Ryngaert, ‘Humanitarian Assistance and the Conundrum of Consent: A Legal Perspective’, (2013) 6 Amsterdam Law Forum, at 18, available here . 108 ibid, para 4885. 109 ICRC, CIL Rule 53.

396

Legal Framework  8.55 water installations and supplies and irrigation works, as well as the denial of food supplies.110 Examples of other relevant prohibitions that may be violated when consent to offers of humanitarian assistance is withheld include the prohibition on collective punishment in Article 4(2)(b), APII111 and the prohibition on doing ‘violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture’.112 8.54.2  In relation to children, and as with IAC, see above, paragraph 8.50, we consider that a refusal would also be unlawful where the consequences of it would violate the obligation of the parties to the conflict to provide children with the care and aid they require, pursuant to Article 4(3), APII. (As is the case in relation to Article  77(1), ‘­children’ is not defined in APII but the term includes those aged under 15: see Chapter 3, paragraph 3.43) 8.55  NIAC (Common Article 3): Common Article 3 of the Geneva Conventions provides, ‘An impartial humanitarian body, such as the [ICRC], may offer its services to the Parties to the conflict’ (which may include states and non-state armed groups).113 Therefore, there is no express requirement for the consent of the relevant High Contracting Party to conflict (as there is in NIAC (APII)) or, indeed, the consent of non-state armed groups. Common Article 3 applies to non-state armed groups, as we note in the following points in relation to consent in NIAC (Common Article 3): 8.55.1  Common Article 3 does not include an express obligation that a party to a conflict must accept an offer of such services. The ICRC Commentary to GCI simply notes that where national authorities are unable to meet the population’s humanitarian needs, ‘The Party to the conflict which in such cases refuses offers of charitable service from outside its frontiers will incur a heavy moral responsibility’.114 The 2016 ICRC Commentary to GCI on Common Article 3, however, concludes that IHL as informed by subsequent state practice has now evolved so that a refusal by a party to a conflict ‘whether a High Contracting Party or a non-State armed group to which an offer of services is made by an impartial humanitarian body … would be arbitrary, and therefore in violation of international law’.115 110 These objects are identified in Art 14, APII, which provides that, flowing from the prohibition on the starvation of civilians as a method of combat, ‘[i]t is therefore prohibited to attack, destroy, remove or render useless [such] objects indispensable to the survival of the civilian population’. 111 Art 4, APII enumerates fundamental guarantees applicable in NIAC. Art 4(1) provides that protected persons ‘shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.’ Art 4(2)(b) prohibits collective punishments of protected persons. 112 Art 4(2)(a), APII. As noted above in relation to IAC and Art 75, API, the fundamental guarantees and prohibited acts in Art 4, APII are similar to those in Common Article 3. Art 1, APII confirms the continuing application of Common Article 3 in situations of NIAC/APII; it states that this Protocol ‘develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application’. Accordingly, to the extent that Common Article 3 requires parties to conflicts, whether states or non-state armed groups, to consent to offers of assistance from impartial humanitarian organisations (on which, see paragraph 8.55), this is applicable in NIAC to which APII is also applicable. 113 Pictet (n 103), 37. See also 2016 ICRC Commentary on GCI, paras 505–08, and 779 (n 66), available at . 114 Jean S Pictet (ed), Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Ronald Griffin and CW Dumbleton tr, Geneva, ICRC, 1958) 320, 58. The same point is made in the 1958 Commentary on GCIV, see Pictet (n 103), 42. 115 2016 ICRC Commentary on GCI (n 66), paras 833–34.

397

8.56  Denial of Humanitarian Access and Assistance 8.55.2  It has been suggested that Common Article 3 encompasses an obligation upon the parties to conflict to consent to and facilitate humanitarian assistance where failure to do so would threaten the survival of a civilian population.116 8.55.3  Again, therefore, as with IAC and NIAC (APII), the law is not clear. 8.55.4  We consider that it must be the position that when impartial humanitarian organisations offer their services to parties to conflicts for the benefit of civilians in need in the territories controlled by those parties, Common Article 3 requires those parties to consent to the provision of such services where refusal to do so may lead to starvation or any other situation threatening the survival of civilians, for example lack of shelter leading to risk of death by exposure/hypothermia. That is because, in such circumstances, refusal to consent would violate the Common Article 3 requirement of humane treatment and it would make no sense for a party to the conflict to be empowered to refuse to consent to humanitarian access in such circumstances. 8.55.5  Indeed, we consider that, as a matter of interpretation, Common Article 3 must require consent to be given (or render a refusal unlawful) where withholding consent would lead to any of the prohibited acts set out therein at sub-paragraph (1), including ‘violence to life and person’, ‘cruel treatment and torture’ and ‘outrages upon personal dignity, in particular humiliating and degrading treatment’.117 8.55.6  It is also arguable that a refusal in a NIAC (Common Article 3) would be unlawful if it would violate the CIL entitlement of children affected by armed conflict to ‘special respect and protection’ (ICRC, CIL Rule 135).118 However, this protection of children against an arbitrary refusal in a NIAC (Common Article 3) is arguably weaker than the protection that exists in relation to IAC or NIAC (APII), because there is no codified ‘special protection’ obligation towards children that applies in the NIAC (Common Article 3) context that can be prayed in aid when considering refusal. IHL Conclusion on Consent 8.56  Therefore, in IAC, NIAC (APII) and NIAC (Common Article 3) it would be unlawful for a state to refuse to consent to giving access to its territory for humanitarian 116 Barber (n 89), 385; Stoffels (n 62), 519–20. See also 2016 ICRC Commentary on GCI (n 66) paras 836–37 in which it is suggested that in NIAC subject to Common Article 3, a refusal of impartial humanitarian assistance would be arbitrary if it was for the express or implied purpose of exacerbating civilian suffering or depriving persons of a certain nationality, race, religious belief, class or political opinion of needed humanitarian assistance or if offers of humanitarian assistance were refused in their entirety on the basis of military necessity. 117 The 2016 ICRC Commentary on GCI (n 66) arguably goes further. It states (at para 835):

Refusal may be considered arbitrary if it entails a violation of the Party’s obligations under humanitarian law or other fields of international law, such as applicable human rights law. This will be the case, for example, when the Party concerned is unable or unwilling to provide humanitarian assistance to the persons affected by the armed conflict, and even more so if there basic needs enabling them to live in dignity are not met.

118 ICRC Study on Customary IHL, 479–82. When considering the content of this rule, the authors of the ICRC Study on Customary IHL note that ‘The UN Committee on the Rights of the Child recalled that provisions essential for the realization of the rights of children affected by armed conflict include: … ensuring humanitarian assistance and relief and humanitarian access to children in armed conflict’, citing the UN Committee on the Rights of the Child (CRC Committee), ‘Report adopted by the Committee at its 46th Meeting, on 9 October 1992: Report on the second session’ (19 October 1992) UN Doc CRC/C/10, para 73.

398

Legal Framework  8.57–8.61 actors where the refusal is arbitrary or capricious. Similarly, it would be unlawful for a ­non-state armed group to withhold consent in NIAC (APII) and NIAC (Common ­Article 3) for arbitrary or capricious reasons. The circumstances in which a refusal will be ‘arbitrary or capricious’ include where it may lead to the starvation of civilians, interpreted expansively, and may include circumstances in which IHL prohibitions are violated and IHL obligations are breached. Beyond that, the law is less clear.119 8.57  Furthermore, in our opinion, (i) in IAC and NIAC (APII), a refusal by a state would also be unlawful where the consequences of it will violate the obligation to provide ‘care and aid’ for children, as required by Article 77(1), API and Article 4(3), APII respectively and (ii) in NIAC (APII and Common Article 3) – by virtue of the operation of A ­ rticle 4(3), APII in NIAC (APII) and ICRC, CIL Rule 135 in NIAC (Common­ Article 3) – a refusal by a state or a non-state armed group would be unlawful where the refusal may lead to a violation of children’s entitlement to ‘care and aid’ and ‘special respect and protection’, respectively. 8.58  As explained below, paragraphs 8.84 and 8.91, this means that the position in IHL may be more protective of children than the position under IHRL. 3.  Regulating Humanitarian Access Overview 8.59  Where consent to humanitarian access has been given, IHL rules regulate the modalities for such access and assistance. This is supported by ICL, which creates individual criminal responsibility for the violation of certain parts of the IHL framework (see paragraphs 8.98ff below). 8.60  The obligations imposed by IHL differ according to the type of armed conflict (IAC, IAC/Occupation, NIAC). The relevant rules generally apply to how relief actions should be carried out. CIL applies to both IAC and NIAC and to all parties in a conflict.120 Since the treaty framework applicable to NIAC is much more limited than for IAC, CIL plays a more significant role in augmenting the legal framework applicable to humanitarian access in NIAC. We consider IAC, IAC/Occupation and NIAC in turn below. IAC 8.61  General humanitarian access and assistance provisions: the majority of the IHL framework regulating access and assistance is of general application (see below, at paragraph 8.62, for express consideration of children in certain, limited, contexts). Relevant rules include the following: 8.61.1  Relief actions and passage: the principal provisions are Articles 70 and 71, API. (i) Passage for relief consignments: Article 70(2), API provides that all parties to the conflict and each High Contracting Party shall ‘allow and facilitate rapid and 119 As we noted above in para 8.48.5, some commentators consider a refusal to consent would be arbitrary or capricious, and therefore unlawful, where it offends certain principles underlying international law. 120 See Ch 2, paras 2.58–2.60, for the extent to which CIL rules apply to non-state armed groups.

399

8.61  Denial of Humanitarian Access and Assistance unimpeded passage’ of all relief consignments, equipment and ­personnel.121 This is the case ‘even where they are destined for the civilian population of the adverse Party’.122 ICRC, CIL Rule 55 is similar but its application is limited to the parties to the conflict (which would include non-state armed groups).123 Article 70(3), API sets out further provisions on the transportation of relief consignments. Article 70(3)(c) prohibits the diversion or delay of a consignment ‘except in cases of urgent necessity in the interest of the civilian population concerned’. Article 70(4), API requires parties to the conflict to ‘protect relief consignments and facilitate their rapid distribution’. The treaty and CIL rules against attacking objects indispensable to the survival of the civilian population (Article 54(2), API and ICRC, CIL Rule 54: see paragraph 8.61.4 below) are also relevant to the protection of relief consignments. (ii) Relief personnel: Article 71, API provides that (i) relief personnel may form part of the assistance provided in any relief action,124 subject to the approval of the party in whose territory they operate, (ii) such personnel shall be ‘respected and protected’, and (iii) each party in receipt of relief consignments shall, to the fullest extent practicable, assist the relief personnel in carrying out their mission and the activities of the relief personnel may only be limited by reason of ‘imperative military necessity’. This is reflected in ICRC, CIL Rules 31 and 32 which provide: ‘Humanitarian relief personnel must be respected and protected’125 and ‘Objects used for humanitarian relief operations must be respected and protected’,126 respectively.

121 Art 70(2) does not provide a definition of ‘relief consignments, equipment and personnel’. ICRC Commentary on the AP (n 80), para 2825 explains this: ‘i.e. essential for the survival of the civilian population, sent for purely humanitarian reasons and to be distributed without any adverse distinction’. Nb Art 70(1), API provides that ‘relief actions’ shall supply populations with, as needed, the items listed in Art 69(1), API, namely, food, medical supplies, clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population and objects necessary for religious worship (see ICRC Commentary on the AP (n 80), para 2826). 122 Under Art 23, GCIV, this obligation was limited to food, medical supplies and clothing for children under 15, pregnant women and maternity cases, in addition to ensuring the free passage of civilian medical and hospital stores and objects necessary for religious worship for all civilians. As is noted in the 1958 ICRC Commentary on GCIV, the scope of the provision in Art 23, GCIV extends to ‘all such consignments, when they are intended for the civilian population of another contracting party, whether that party is an enemy, allied, associated or neutral State’ and ‘to any consignment sent on any grounds whatever within the meaning of this Article’. States carrying out a blockade … and the States against whom the blockade is directed’. See Pictet (n 103), 181. 123 It provides, ‘The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control’: see ICRC Study on Customary IHL, 193. For the position on non-state armed groups see Ch 2, inter alia at paras 2.58–2.59. 124 Under Art 71, API, ‘personnel’ must be necessary for the relief mission, in particular with expertise in transport and distribution of aid (see ICRC Commentary on the AP (n 80), paras 2878–82). The wording of Article 71, API (‘Where necessary, relief personnel may form part of the assistance provided in any relief action, in particular for the transportation and distribution of relief consignments’ (emphasis added)) makes it clear that the circumstances in which relief personnel are permitted to form part of the assistance provided in a relief action are not limited to the transportation and distribution of relief consignments. 125 See ICRC Study on Customary IHL, 105. The authors, also at 105, describe this as a corollary to the CIL rule prohibiting starvation of civilians (ICRC, CIL Rule 53) and observe that the ‘safety and security of humanitarian relief personnel is an indispensable condition for the delivery of humanitarian relief to civilian populations in need threatened with starvation.’ 126 See ICRC Study on Customary IHL, 109.

400

Legal Framework  8.61 8.61.2  Humanitarian organisations and access: (i) The right of humanitarian initiative is embodied in Article 10, GCIV. It provides that the ICRC and other impartial humanitarian organisations may offer their services in an IAC.127 (ii) Article 30, GCIV provides that protected persons should have ‘every facility for making application to the Protecting Powers, the International Committee of the Red Cross, the National Red Cross (Red Crescent, Red Lion and Sun) ­Society of the country where they may be, as well as to any organization that might assist them’. (iii) The position was strengthened in API. Article 81(1), API provides that parties to the conflict shall grant to the ICRC the facilities within their power to enable the carrying out of the humanitarian functions assigned to it under the Geneva Conventions and API to protect and assist victims of the conflict and, subject to the consent of the parties, the ICRC may carry out other humanitarian activities in favour of these victims. See, similarly, Article 81(2) regarding the Red Cross organisations. (iv) Article 81(3), API provides that High Contracting Parties and parties to the conflict shall facilitate in every way possible the assistance which the Red Cross organisations extend to victims of the conflict, in accordance with the provisions of the Geneva Conventions, API and the fundamental principles of the Red Cross.128 (v) Finally, Article 81(4), API requires High Contracting Parties129 and parties to the conflict to, as far as possible, make the Article 81(2) and (3) facilities available to other humanitarian organisations referred to in the Geneva Conventions and API which are authorised by the parties to the conflict and which perform their humanitarian activities in accordance with the provisions of the Geneva Conventions and API. 8.61.3  Medical facilities and personnel. For a description of the protections of civilian hospitals, medical facilities, and medical personnel under the Geneva Conventions, see Chapter 7. These protections may be engaged where the humanitarian assistance is in the form of healthcare. 8.61.4  Relevant prohibitions.130 Three prohibitions of note are as follows. (i) Article 33, GCIV prohibits pillage and reprisals against protected persons and their property. See, to similar effect, ICRC, CIL Rule 52. (ii) As noted above, paragraph 8.43,

127 As noted above (n 66), IHL grants the ICRC and other impartial humanitarian organisations a right to offer their services to parties to conflict (the right of humanitarian initiative): Common Art 9/9/9/10 GCs; Art 81(1), API. 128 The ICRC Commentary on the AP to this paragraph makes clear that it was intended to address all contracting Parties, including but not limited to those High Contracting Parties who are also Parties to the conflict (n 80) para 3324. 129 As with Art 81(3), the intention was that this sub-para was to address all contracting Parties, not only those who are Parties to the conflict. ICRC Commentary on the AP (n 80) para 3330. 130 Breaches of these prohibitions may amount to war crimes, see para 8.105 below.

401

8.62  Denial of Humanitarian Access and Assistance Article 54(1), API prohibits starvation of civilians as a method of warfare. See, similarly, ICRC, CIL Rule 53. (iii) Article 54(2), API prohibits (subject to two exceptions131) attacks on ‘objects indispensable to the survival of the civilian population’, such as crops, livestock and drinking water installations.132 See, similarly, ICRC, CIL Rule 54 which provides, ‘Attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population are prohibited’.133 8.62  Child-specific humanitarian access and assistance provisions. Specific provisions for children include the following:134 8.62.1  Removal of children (aged 15 and under) in besieged or encircled areas: Article 17, GCIV provides that the parties to the conflict ‘shall endeavour to conclude local agreements for the removal from besieged or encircled areas’ of various individuals including wounded and sick persons and children.135 The ICRC Commentary states that local commanders would be free to set their own terms but that the upper age limit of 15 ‘seems reasonable’.136 (See Chapter 3, paragraph 3.45.1). 8.62.2  Prioritising children (and others) in access and assistance: Article 23, GCIV provides that High Contracting Parties shall permit ‘the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers or maternity cases’ subject to being satisfied that, for example, there is no serious reason for fearing that the consignments may be diverted from their destination. Article 70(1), API provides, ‘In the distribution of relief consignments, priority shall be given to those persons, such as children, expectant mothers, maternity cases and nursing mothers, who, under the Fourth Convention or under this Protocol, are to be accorded privileged treatment or special protection’.137 The ICRC has interpreted the protection of Article 70(1) as extending to children aged 18 and under because the age limit of 15 is not specified here: ‘The absence of a fixed age-limit here therefore means that children up to eighteen years of age should have priority in receiving aid, but those responsible for distribution must first of all favour

131 The first exception is in respect of objects being used by an adverse party as sustenance solely for its forces or in direct support of military action ‘provided, however, that in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement’: see Art 54(3), API. The second exception is that a ‘Party to the conflict within such territory under its own control where required by imperative military necessity’ may derogate from the prohibition ‘in the defence of its national territory against invasion’: see Art 54(5), API. 132 The term ‘objects indispensable to the survival of the civilian population’ is not defined but illustrations are given in Art 54(2). See para 8.61.4 above. 133 See ICRC Study on Customary IHL, 189. The authors, also at 189, describe this as a corollary to the CIL norm prohibiting starvation of civilians (ICRC, CIL Rule 53). 134 Others include: (i) care for unaccompanied children (see Art 24, GCIV); and (ii) facilitating reunion of dispersed families (see Art 26, GCIV and Art 74, API). 135 Art 8, API extended the definition of ‘wounded’ and ‘sick’ in the Geneva Conventions to cover expectant mothers, maternity cases and new-born babies. 136 1958 ICRC Commentary on GCIV (n 103), 138–39. 137 Emphasis added. The rationale for including ‘nursing mothers’ amongst the groups prioritised in the distribution of aid in API appears to have been to protect the interests of very young children who would still be dependent on their mothers for feeding: see Diplomatic Conference on the Reaffirmation of the Development of International Humanitarian Law Applicable in Armed Conflicts, 1974–1977 in Federal Political Department (n 102), (CDDH/II/SH.87), Vol XII, 336–37.

402

Legal Framework  8.63 the most dependent children, ie, in general, the youngest children – as common sense dictates’.138 Note also Article 77, API at paragraph 8.50 above.139 8.62.3  Protection for new-born babies: Article 8(a), API defines the ‘wounded’ and ‘sick’ as including ‘maternity cases, new-born babies and … infirm or expectant ­mothers, and who refrain from any act of hostility’. For the respect and protections due to the ‘wounded and sick’ and civilian hospitals and staff treating them see, for example, Articles 16–18, 20–22, GCIV and Article 10, API. IAC Occupation 8.63  All but one of the provisions relevant to humanitarian access and assistance in occupied territories are generally applicable to all civilians. The one child-specific provision is Article 50, GCIV.140 The general provisions will apply to children because they are members of the civilian population. They fall into two categories and are as follows. 8.63.1  Food, medical supplies and other supplies indispensable to the survival of the civilian population, and healthcare. Article 55, GCIV obliges the Occupying Power to ensure the food and medical supplies of the population (for example, to bring these in if the resources of the occupied territory are inadequate). Article 56, GCIV provides that the Occupying Power has the duty of ensuring and maintaining medical and hospital establishments. Article 69, API requires Occupying Powers to ensure the provision of clothing, bedding, means of shelter and other supplies essential to the survival of the civilian population of the occupied territory. 8.63.2  Relief actions and access. Article 60, GCIV provides that the Occupying Power must not divert relief consignments from the purpose for which they were intended, except in certain limited cases. Article 61, GCIV requires the distribution of relief consignments by the Occupying Power to be carried out with the cooperation and under the supervision of the Protecting Power, or, if delegated, by a neutral Power, the ICRC, or any other impartial humanitarian body. Article 63, GCIV obliges an Occupying Power to allow national Red Cross Societies to pursue their activities in accordance with the Red Cross principles. It must also allow other relief organisations of a non-military character to continue their humanitarian activities under similar conditions. Finally, Article 71, API provides for the protection of relief personnel.

138 ICRC Commentary on the AP, para 2819. See (n 80). 139 Art 38(4), CRC is a similar, general provision, that provides, ‘In accordance with their obligations under humanitarian law to protect the civilian population in armed conflicts, States Parties must take all feasible measures to ensure protection and care of children who are affected by an armed conflict’. See para 8.88.4(iv). 140 It provides, in relevant part (emphasis added), ‘The Occupying Power shall, with the co-operation of the national and local authorities, facilitate the proper working of all institutions devoted to the care and education of children. … Should the local institutions be inadequate for the purpose, the Occupying Power shall make arrangements for the maintenance and education, if possible by persons of their own nationality, language and religion, of children who are orphaned or separated from their parents as a result of the war and who cannot be adequately cared for by a near relative or friend. … The Occupying Power shall not hinder the application of any preferential measures in regard to food, medical care and protection against the effects of war, which may have been adopted prior to the occupation in favour of children under fifteen years, expectant mothers, and mothers of children under seven years’.

403

8.64–8.65  Denial of Humanitarian Access and Assistance NIAC (APII) and NIAC (Common Article 3) 8.64  APII: As with IAC, APII contains rules relevant to humanitarian access in NIAC, some of which are specific to children and others which are applicable to civilians more generally. The specific provision relating to children is more limited: Article 4(3), APII141 requires that children be provided with the care and aid they require. However, it does not specifically address the provision of humanitarian assistance to children although Article 4(3)(e) addresses the temporary evacuation of children and their caregivers from areas of hostilities, and this may be relevant to denial of humanitarian access where such denial exists in the area of hostilities. 8.65  NIAC and humanitarian access and assistance provisions. In the discussion below we start with the relevant provisions of APII and then describe the relevant content of CIL, which applies in NIAC (APII) where there is no specific treaty provision and which also applies in NIAC (Common Article 3). 8.65.1  Relief actions and passage. The principal provision is Article 18(2), APII (see  n  105 above). However, it does not explain how humanitarian access is to be ­regulated or provided. Some guidance can be drawn from other international law norms: (i) Passage for relief consignments: The fact that this is not addressed in A ­ rticle 18(2), APII, contrasts with the position in respect of IAC: see Article 70(2), above at paragraph 8.61.1(i). Although such provisions were in the draft APII, they were sacrificed in order that agreement could be reached on a simplified text.142 Notwithstanding this lacuna in APII, the comparable rule of CIL (ICRC, CIL Rule 55) includes the obligation that parties to the conflict (ie states and non-state armed groups) ‘allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control’. It is also arguable that priority should be afforded to relief for children in order to fulfil the requirement that they are given ‘the care and aid they require’ under Article 4(3) APII and CIL (see paragraph 8.54.2 and 8.55.6). (ii) Relief personnel: Again, Article 18(2) APII does not contain any specific provision for the protection of humanitarian personnel, in contrast to the position in respect of IAC (cf. Article 71, API). In NIAC, this is governed by ICRC, CIL Rule 31 which requires that humanitarian relief personnel (not limited to those working under the ICRC emblems) are afforded respect and protection. It is also a norm of CIL that humanitarian relief personnel be given the freedom of movement necessary to discharge their functions, subject to any imperative military reasons to impose temporary restrictions.143 141 This special status, in similarly general terms, is also a rule of CIL: see ICRC, CIL Rule 135. 142 See ICRC Study on Customary IHL, 194–95. 143 ICRC, CIL Rule 56. This provides, ‘The parties to the conflict must ensure the freedom of movement of authorised humanitarian relief personnel essential to the exercise of their functions. Only in case of imperative military necessity may their movements be temporarily restricted’: see ICRC Study on Customary IHL¸ 200. See discussion on the effect of counter-terrorism measures on relief personnel at para 8.75.5 below.

404

Legal Framework  8.66–8.68 (iii) In NIAC, the obligation to protect objects used for humanitarian relief operations arises from ICRC, CIL Rule 32, not the express terms of APII. Once again, this contrasts with the position in respect of IAC: cf. Article 70(4), API and the general protection of civilian objects in Article 52, API. 8.65.2  Humanitarian organisations and access. Article 18(1), APII and Common Article 3 permits impartial relief organisations such as the Red Cross to offer their services in an armed conflict situation. As noted above, Article 18(2) – but not Common Article 3 – requires that where civilians are suffering undue hardship, such humanitarian operations shall be conducted, subject to the consent of the High Contracting Party.144 In contrast to API (see Article 81, API), APII does not contain any express requirement that parties to a conflict facilitate these humanitarian activities. 8.65.3  Medical facilities and personnel. The fundamental rules protecting medical facilities and personnel engaged solely in humanitarian tasks are applicable in NIAC, both through express provision in APII and as norms of CIL.145 See Chapter 7. 8.65.4  Relevant prohibitions. See paragraph 8.61.4 above and ICRC, CIL Rules 52, 53 and 54 all of which apply in NIAC. 4.  Problems and Deficiencies in the IHL Legal Framework Relating to Consent 8.66  There are two principal legal deficiencies with the present IHL rules regarding consent to offers of humanitarian access and assistance from impartial humanitarian organisations. 8.67  First, the IHL regarding consent is arguably unnecessarily complex. The description at paragraphs 8.38–8.55 above shows that it is differently regulated in IAC, NIAC (APII) and NIAC (Common Article 3) but it is questionable whether these differences are necessary. For example, one of the principal differences is that there are codified – and therefore stronger – obligations to provide children with the ‘care and aid’ they require in IAC and NIAC (APII), but not in NIAC (Common Article 3). We suggest that consideration is given to articulating one clear test for all armed conflicts: see below, paragraph 8.69. 8.68  Second, the law is unclear regarding the circumstances in which refusal to consent is unlawful. If applied in good faith, existing IHL rules could allow for efficient humanitarian action. However, the unclear IHL framework may be interpreted as giving states and non-state armed actors too much latitude to refuse or otherwise withhold consent to offers of humanitarian aid from impartial humanitarian organisations. If possible, therefore, there should be clearer rules regulating their exercise of discretion. It is challenging to determine a point in time at which refusal should become unlawful. This is especially so since the practical application of the IHL framework is problematic. For example, there may be unreliable or incomplete information regarding the situation in



144 See 145 See

para 8.55 above. Arts 9–11, APII and ICRC, CIL Rules 25–26.

405

8.69–8.70  Denial of Humanitarian Access and Assistance the territory in question and it is unclear who should decide whether the situation has developed to the extent that, for instance, there is a risk of starvation. Nevertheless, we consider that more needs to be done to clarify the relevant rules in this area and we make some suggestions below. 5.  Suggestion to Improve the IHL Legal Framework Relating to Consent 8.69  In light of the two deficiencies noted above, at paragraphs 8.67–8.68, we suggest that consideration is given to clarifying and, if necessary, developing the law along the following lines: 8.69.1  Arbitrary or capricious withholding of consent by a party to a conflict to offers of humanitarian assistance and access by impartial humanitarian organisations is unlawful. 8.69.2  Examples of refusals that will be arbitrary or capricious in all situations of armed conflict (IAC, NIAC (APII) and NIAC (Common Article 3)) are as follows: (i) Refusing consent where the civilian population in question is at risk of, or threatened with, starvation and the party to the conflict is unable to, or has failed to, prevent such risk or threat of starvation from arising. (ii) Refusing consent where the survival of the civilian population in question is at risk, or threatened, for reasons other than starvation (for example, exposure/ hypothermia from a lack of shelter or lack of access to clean, safe drinking water or sanitation) and the party to the conflict is unable to, or has failed to, prevent such risk or threats from arising. (iii) Refusing consent where it violates an IHL prohibition. For example the prohibition on collective punishment or refusing consent where there is a real risk that the fundamental guarantees (reflected in Article 75, API; Article 4, APII and Common Article 3 of the Geneva Conventions) regarding the treatment of the civilian population may be violated and the party to the conflict is itself unable to, or has failed to, provide the assistance necessary to avert that risk. (iv) Refusing consent where it breaches IHL obligations. For example refusing consent where the relevant aid sought to be provided is necessary to provide children with the care and aid they require. We make two further points in this context. First, children for these purposes includes, at the very least, those aged 15 and under; consideration should be given to whether it is possible to extend protection to those aged 15–18. Second, the scope of ‘care and aid’ is undefined. Whilst this may be unhelpful in the practical application of this standard (and should be developed so as to include, at the very least, some examples: see Chapter 3) it may also provide room for development so that the standard reflects contemporary understandings regarding ‘care and aid’. 8.70  Finally, we observe that the effectiveness of such provisions will depend to a considerable extent on whether there is a system of objective and impartial informationgathering and monitoring regarding the consequences of the conflict on the civilian population. 406

Legal Framework  8.71–8.74 6. Problems and Deficiencies in the IHL Legal Framework Regulating Humanitarian Access 8.71  We consider that there are four key problems or deficiencies in the IHL legal framework regulating humanitarian access and assistance once consent has been given for such relief operations. 8.72  First, the IHL regulatory framework regarding access and assistance contains very limited protection during NIAC (Common Article 3), ie the majority of NIAC. Since there is a less developed treaty regime for NIAC (Common Article 3), the protection of children is reliant upon the relevant rules of CIL. This means that, aside from the general rule that children affected by armed conflict are entitled to special respect and protection (ICRC, CIL Rule 135), there are no treaty protections governing the provision of humanitarian assistance to children in the majority of NIAC. The authors of the ICRC Study on Customary IHL state that several principles necessarily flow from the special respect and protection due to children in NIAC and that these are part of CIL.146 But these are not clearly codified in treaty law. Therefore, although CIL fills in certain gaps (in particular, that parties must allow the rapid and unimpeded passage of aid, and must respect and protect, and refrain from attacking, humanitarian personnel and objects), there are some significant protection lacunae in NIAC (Common Article 3). For example, the following codified protections exist in IAC but not in NIAC (Common Article 3): 8.72.1  The obligation upon parties to endeavour to agree upon the evacuation of children from besieged or encircled areas and147 8.72.2  The priority of children in the distribution of humanitarian assistance.148 8.73  Second, the protections for children aged 15–18 are unclear. As noted above, ­Articles  23 and 50, GCIV expressly protect children under 15; Article 77, API and ­Article  4(3), APII have been construed as applying, at the very least, to those aged under 15 and ­Article 70, API appears to include those up to age 18.149 This means that there is a lack of clear provision in IHL – and especially in NIAC – for the needs of those aged 15–18, whether as children themselves or as caregivers for younger children. This may be attributable to the difference in the age of majority across states but it means that the needs of children aged 15–18 (as compared to adults) are not expressly protected. 8.74  Third, parties to conflict are not specifically obliged to reach local agreements to facilitate humanitarian access to children. As described above, there are several general obligations upon parties to a conflict to allow and facilitate humanitarian access to ­civilians.150 However, except for the obligation upon parties in IAC to endeavour to reach local agreements to evacuate children under the age of 15 from besieged and encircled areas,151 there are no specific obligations to reach local agreements on temporary ceasefires (for example humanitarian pauses or days of tranquillity) or permit humanitarian

146 See

the commentary accompanying Rule 135 in ICRC Study on Customary IHL, 479–82. para 8.62.1 above for the position in IAC and para 8.64 above for the position in NIAC (APII). 148 See para 8.62.2 above for the position in IAC and para 8.64 above for the position in NIAC (APII). 149 See the commentary to Art 17, GCIV in the 1958 ICRC Commentary on GCIV (n 103), 138–39. 150 See above paras 8.61, 8.63 in IAC and para 8.65 in NIAC. 151 See above para 8.62.1 in IAC and para 8.64 in NIAC. 147 See

407

8.75  Denial of Humanitarian Access and Assistance corridors or zones of peace to enable humanitarian access to children in conflict areas.152 We have already noted, see paragraph 8.3 and n 4 above, that there are some practical examples of these limited measures being successfully agreed between parties to conflicts. 8.75  Fourth, it is unclear whether non-parties to a conflict have an IHL obligation to ensure that any collective or unilateral measures (for example, economic sanctions and counter-terrorism measures) do not result in the denial or delay of humanitarian assistance to children: 8.75.1  UNSC Resolutions that direct states to impose sanctions on targets now often include in their preambular text an affirmation that the measures must be taken ‘in accordance with the Charter of the United Nations and international law, including applicable human rights law, international refugee law, and international humanitarian law’.153 The UNSC Resolutions do not, however, identify the relevant content of IHL in accordance with which states must act when implementing the UNSC’s decisions, and greater specificity is generally absent in the body of the Resolutions. 8.75.2  Furthermore, the CIL rule that parties to a conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need (see ­paragraph  8.65.1(i) above) has been reflected in some UNSC Resolutions.154 The UNSC has on occasion expanded the application of this rule to include states through which humanitarian supplies and personnel would be transported.155 8.75.3  But (i) the wider application of this CIL norm to all states, irrespective of their participation in or proximity to a conflict zone, is applicable in IAC only (Article 70, API) and (ii) it is commonly understood to relate to the physical transport of humanitarian goods and personnel in IAC. 8.75.4  Therefore, it is questionable whether this norm could apply to NIAC. It is also questionable whether this norm could apply, in both IAC and NIAC, to economic sanctions and counter-terrorism measures which prohibit the transfer of funds or economic resources to and from or on behalf of targeted persons and which may, therefore, significantly impede humanitarian assistance and access to civilians. 8.75.5  Economic sanctions and counter-terrorism measures may impede humanitarian access because they may: (i) have a chilling effect on the ability to raise funds for humanitarian action in a region; (ii) restrict humanitarian actors’ abilities to negotiate humanitarian access because they are seen as part of the sanctioning process (for example, a possible source of information leading to the listing of individuals or entities); 152 Although the Geneva Convention regime envisages that parties in both IAC and NIAC may conclude special agreements for, amongst other things, the protection of civilians (see Common Article 3 and Art 7, GCIV), they are not obliged to do so. 153 For an example, see UNSC Res 2253 (17 December 2015) UN Doc S/RES/2253 (2015), preamble (8th recital), concerning sanctions against ISIL (Da’esh) and al-Qaida and associates. 154 See, eg, UNSC Res 758 (8 June 1992) UN Doc S/RES/758 (1992), para 8; UNSC Res 1193 (28 August 1998) UN Doc S/RES/1193, para 9. 155 See, eg, UNSC Res 1296 (19 April 2000) UN Doc S/RES/1296 (2000), para 8; UNSC Res 874 (14 October 1993) UN Doc S/RES/874, para 9.

408

Legal Framework  8.75 (iii) result in the restriction of operations where humanitarian actors are concerned about criminal liability for interacting with targeted groups; and (iv) create practical difficulties for humanitarian organisations seeking to transfer funds to sanctioned countries.156 8.75.6  Thus, although IHL addresses physical access to and transport of relief supplies, it does not clearly establish the extent to which states that are not parties to conflicts have an obligation to ensure that action taken by them in response to that conflict, including the imposition of economic sanctions, does not result in the denial or delay of humanitarian access to children in that conflict. The substantive framework is therefore unclear and incomplete in this regard. 8.75.7  Where sanctions are applied against individuals or entities to protect civilians it logically follows that the application and enforcement of those sanctions should not operate to the detriment of those civilians. There are a number of complex questions bound up in this statement, such as: who decides whether the negative effects of ­sanctions, ie the adverse impacts on civilians, outweigh the benefits? What is the ­hierarchy of international law norms where the UNSC imposes sanctions under Chapter VII of the UN Charter in response to a threat to international peace and security? 8.75.8  We consider that greater clarity is needed with respect to who is targeted, which of their activities is targeted and the obligations of the states who enforce the sanctions. Therefore, the questions upon which clarity is needed include the following: (i) Where individuals or entities targeted by a sanctions regime (for example, nonstate armed groups) are also involved in the provision of humanitarian assistance or are necessary counterparties with whom humanitarian organisations need to interact, should that aspect of the activities either of the targeted persons or the humanitarian organisations who deal with them be ‘carved out’ of the applicable sanctions? (ii) Are there practical ways for this to be done? If not, is the restriction on humanitarian assistance to civilians caused by the application of sanctions lawful? 156 See Watson Institute for International & Public Affairs and Compliance and Capacity Skills International, LLC, ‘High Level Review of United Nations Sanctions: Compendium’ (Watson Institute for International & Public Affairs and Compliance and Capacity Skills International, LLC, 2015) 54–55. Somalia provides a practical example of the challenges that may be faced. The Under-Secretary-General for Humanitarian Affairs and the Emergency Relief Coordinator has reported that counter-terrorism measures continue to inhibit humanitarian action as, amongst other things, some donor governments insist on contractual terms referring to counter-terrorism legislation and requiring humanitarian partners to conduct detailed background checks on implementing partners which ‘have continued to undermine the ability of humanitarian organizations to address all needs wherever they are’. UNSC, ‘Report of the Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator’ (September 2016) UN Doc S/2016/827, para  19. The Under-Secretary-General also reported that if the UNSC did not renew its humanitarian exemption from the asset freezing measures contained within the UNSC Somalia economic sanctions regime, it ‘would result in additional obstructions to and delays in the delivery of humanitarian assistance, especially in areas controlled by non-state armed groups’, ibid, para 28. This exemption allows the ‘payment of funds, other financial assets or economic resources necessary to ensure the timely delivery of urgently needed humanitarian assistance in Somalia by [UN agencies and certain other humanitarian organisations and their implementing partners]’. See, UNSC Resolution 2244 (2015), UN Doc S/RES/2244, para 23; UNSC Resolution 2317 (2016) UN Doc S/RES/2317, para 28.

409

8.76–8.77  Denial of Humanitarian Access and Assistance (iii) Can targeted or ‘smart’ sanctions be made ‘smarter’? For example, sanctions programmes often use an ‘associated with’ designation criteria, by which persons who are associated with the primary target of the sanctions (for example, al-Qaida or ISIL or al-Shabaab) are also liable for designation. This can include humanitarian actors who need to liaise with the primary target to secure humanitarian access to civilians in an area under the target’s control. It can also include money transfer businesses used for legitimate commercial or humanitarian activities as well as transferring money to designated persons. (iv) Can the use of humanitarian exemptions to sanctions be expanded and refined both in terms of those with standing to apply for these exemptions, the subjectmatter of the exemptions, and the speed of the process by which applications are determined? For example, as noted above (at n 156) an exemption to the UNSC Somalia sanctions allows payments necessary to ensure the timely delivery of urgently needed humanitarian assistance by, amongst others, UN agencies. Could this type of humanitarian exemption be applied to other sanctions programmes? (v) What, in practical terms, are the obligations upon states that enforce embargoes and exercise their right of control over supplies passing through their territory? 8.76  The denial or delay of humanitarian assistance to civilians as an unintended consequence of sanctions and counter-terrorism measures is a problem that has been identified by a number of actors, including the ICRC157 and the High Level Review of UN Sanctions sponsored by the governments of Australia, Finland, Germany, Greece and Sweden. There has been little analysis of this issue as it relates specifically to children. The appointment by the HRC of the Special Rapporteur on the negative impact of the unilateral coercive measures on the enjoyment of human rights (see paragraph 8.147.2) is a step in the right direction. His mandate is limited, however, to unilateral sanctions; measures taken by states to implement UNSC sanctions resolutions are not within his remit. 8.77  In this context we also note the following: 8.77.1  Recommendations 64–67 of the High Level Review on UN Sanctions 64.  The [Security] Council should include in the mandates of expert groups assessment requirements and reporting of impacts of sanctions on humanitarian activities. 65.  Expert groups and humanitarian experts should increase dialogue between them, including on potential impacts of sanctions on humanitarian activities such as the effects of national implementation of financial sanctions. To the extent possible, expert groups should consult humanitarian organizations regarding pre-assessments of the impacts of sanctions on the ground. 66.  Regular, standardised, evidence-based assessments should be conducted to consider the extent to which proposed measures may impact humanitarian initiatives. If concerns exist that sanctions could impact humanitarian action, the Council should consider standing exemptions for UN humanitarian actors and implementing partners in that situation. 157 See ICRC (n 367), 21: The Geneva Conventions envisage that the ICRC and Red Cross and Red Crescent societies may offer their services to parties in NIAC and ‘broad language prohibiting “services” or “support” to terrorism or listed entities could make it impossible for the ICRC to fulfill its treaty-based (and statutory) mandate in contexts where non-state armed groupnon-state armed groups party to a NIAC are designated “terrorist organizations”’.

410

Legal Framework  8.78–8.79 67.  The Security Council and sanctions committees should utilise standardised terms and guidelines to reduce uncertainty and the potential for over-compliance of UN sanctions.158

8.77.2  The UN’s Inter-Agency Working Group on Sanctions (IAWGS) brings together 26 UN entities working on peace and security, humanitarian, human rights, legal, protection and development issues.159 The UNSC could consider re-establishing its Informal Working Group on General Issues of Sanctions to work with the IAWGS on ensuing that the enforcement of sanctions does not negatively affect non-targeted civilians by denying or delaying humanitarian access to them.160 8.77.3  In relation to states’ counter-terrorism measures (whether adopted pursuant to UNSC Resolution 1373 (2001)161 or unilaterally), consideration could be given to the ICRC’s recommendation, namely that criminal law measures adopted by states, whether internationally or nationally, ‘should be crafted so as not to impede humanitarian action. In particular, legislation creating criminal offences of “material support”, “services” and “assistance” to or “association” with persons or entities involved in terrorism [or other listed activities] should exclude from the ambit of such offences activities that are exclusively humanitarian and impartial in character and are conducted without adverse distinction’.162 7.  Suggestions to Improve the IHL Legal Framework Regulating Humanitarian Access 8.78  In light of the deficiencies identified above, we make three suggestions for the potential improvement of existing provisions in IHL regulating humanitarian assistance and access. 8.79  First, consideration should be given to whether the law may be clarified or developed so as to expressly recognise two protections for children across all armed conflicts. These two protections currently exist in IAC. They are: (i) in the distribution of humanitarian aid, priority should be afforded to children (aged 18 and under, pursuant to Article 70(1), API) and (ii) parties to conflicts should endeavour to reach local agreements to evacuate children (aged 15 and under, pursuant to Article 17, GCIV) from besieged and encircled areas. Consideration should be given to whether these two protections can

158 ‘High Level Review of United Nations Sanctions: Compendium’ (November 2015) (n 156), 56. This is an updated version of the document submitted to the UNSG in June 2015: UNGA, ‘Letter dated 12 June 2015 from the Permanent Representatives of Australia, Finland, Germany, Greece and Sweden to the United Nations addressed to the Secretary-General – Annex: Compendium of the High-level Review of United Nations Sanctions’ (12 June 2015) UN Doc A/69/941-S/2015/432. 159 See UN Dept Political Affairs (UNDPA) ‘24 November 2014, Security Council briefing on the evolution of UN sanctions, Under-Secretary-General Jeffrey Feltman’, available at ; UNDPA, ‘3 August 2017, Security Council briefing on enhancing the effectiveness of sanctions, Under-SecretaryGeneral Tayé-Brook Zerihoun’, available at . 160 The UNSC’s Informal Working Group on General Issues of Sanctions was terminated in 2006. See UNSC, ‘Repertoire of the practice of the Security Council: 15th Supplement (2004–2007) Chapter V: Subsidiary organs of the Security Council’ (11-38196), available at , 144–45. 161 UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373 (2001). 162 ICRC (n 367), 21.

411

8.80–8.83  Denial of Humanitarian Access and Assistance be expressly recognised as existing in NIAC (APII), pursuant to Article 4(3), and NIAC (Common Article 3), pursuant to ICRC, CIL Rule 135. If so, consideration should also be given to whether they could be codified, for example in the single instrument we have suggested. We make this suggestion regarding express identification on the basis that we cannot see any reason in principle why children in IAC should be protected in this way and not children in NIAC (APII) or NIAC (Common Article 3). Consideration should also be given to whether to extend the protection of (ii) to children aged 15–18. This suggestion therefore addresses both of the deficiencies identified in paragraphs 8.72–8.73 above. 8.80  Second, the law should be developed so that parties to conflicts are obliged to try to agree specific measures to enable humanitarian access to children, such as temporary ceasefires, humanitarian pauses or days of tranquillity, humanitarian corridors and zones of peace. Such measures should include post-distribution monitoring to ensure that relief delivered using these channels reaches the intended beneficiaries. 8.81  Third, the obligations of non-parties to the conflict should be clarified or developed. For example, consideration should be given to whether international or unilateral economic sanctions or counter-terrorism measures adopted by non-parties to conflicts should be designed by reference to, amongst other factors, express consideration of the impact on humanitarian access and assistance, especially on children and their caregivers. 8.82  These suggestions could be included as matters for discussion if our idea of a single instrument is taken further: see Chapter 9. B.  The IHRL Framework 1.  Introduction to the General IHRL Framework 8.83  State responsibility. States are responsible for protecting the human rights of persons within their jurisdiction.163 IHRL (like IHL) provides a legal framework that applies during armed conflicts, whether that is IAC, including occupation, or NIAC.164 In the context of humanitarian access, IHRL may therefore provide an additional layer

163 The concept of ‘jurisdiction’ has sometimes been interpreted as including extra-territorial acts and omissions. See, eg, Art 1 of the European Convention of Human Rights (ECHR), ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’, which has been interpreted as including extra-territorial acts: see Al-Skeini v UK (2011) 53 EHRR 18, paras 131, 137–38, 149–50. Art 2(1) of the International Covenant on Civil and Political Rights (ICCPR) states that, ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’. This has been interpreted by the International Court of Justice (ICJ) and the Human Rights Committee (HRC) to engage state responsibility for extra-territorial acts and omissions, see: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 (Israeli Wall Advisory Opinion), para 109; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Merits: Judgment) [2005] ICJ Rep 168, paras 216 and 219–20; HRC ‘General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (26 May 2004) UN Doc CCPR/C/21/Rev.1/Add.13, para 10. 164 See Israeli Wall Advisory Opinion (n 163), paras 130, 134–37 confirming the applicability of IHRL in situations of armed conflict.

412

Legal Framework  8.84–8.86 of protection in situations in which a state fails to fulfil the obligations imposed by its responsibility under IHRL.165 8.84  Non-state armed groups. Non-state armed groups are not generally bound by IHRL obligations.166 In situations where they withhold consent to offers of impartial humanitarian access or otherwise deny such access to civilians, the primary international law framework is that of IHL – viz., Common Article 3 and APII.167 The protections in the IHL framework mean that the lack of an IHRL framework for non-state armed groups does not, by itself, constitute a deficiency.168 8.85  The IHRL framework: 8.85.1  Consists primarily of treaty law,169 and 8.85.2  Protects all persons within the jurisdiction of the state, regardless of their status and age, so there is no ambiguity regarding, for example, 15–18 year olds. 8.86  Some IHRL treaties expressly refer to humanitarian access and assistance. However, those references are limited to the rights of refugee children, for ­example,

165 Whether it in fact does provide such protection, as a practical matter, is addressed below at paras 8.90ff. 166 See generally Ch 2, para 2.89. There are some exceptions. Non-state armed groups may be bound by IHRL obligations if they enter into agreements to that effect: see Ch 2, para 2.95 for one example. See also, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (adopted 23 October 2009, entered into force 6 December 2012) (Kampala Convention) which arguably imposes IHRL obligations on ‘members’ of non-state armed groups. Art 1(e) defines ‘Armed Groups’ as ‘dissident armed forces or other organized armed groups that are distinct from the armed forces of the state’. Article 2(e) provides that one of the objectives of the Convention is to ‘Provide for the respective obligations, responsibilities and roles of armed groups, non-state actors and other relevant actors, including civil society organizations  …’. Art 7(5) provides examples of conduct by members of such groups that is prohibited (see Daragh Murray, Human Rights Obligations of Non-State Armed Groups, (Hart Publishing, 2016, at 160–61)). However, some commentators maintain that Article 7 ‘affirms the applicability of the pre-existing framework of international law, including IHL’, rather than imposing positive obligations on armed groups to protect human rights (Katinka Ridderbos, ‘The Kampala Convention and Obligations of Armed Groups’ (2011) 37 Forced Migration Review 36, 36 available at ). Furthermore, Article 7 expressly applies to ‘Members of armed groups’ (emphasis added) rather than to the armed group itself. 167 As discussed in para 8.53 above, under APII the requirement that impartial humanitarian organisations must have consent to provide their services is limited to the consent of High Contracting Parties. However, where impartial humanitarian organisations also offer their services for the benefit of civilians in territory controlled by non-state armed groups in NIAC and those non-state armed groups withhold their consent, this will be unlawful if it adversely affects civilians to the extent that there is a breach of the fundamental guarantees set out in Art 4, APII and/or Common Article 3, and may be unlawful where it results in children not receiving the ‘special respect and protection’ due to them (see paras 8.54–8.55 above). 168 The NIAC (Common Article 3) framework includes ICRC, CIL Rule 135 whereas there is no express, unqualified, equivalent protection for children in armed conflict in IHRL: see paragraph 8.88.4 below regarding Article 38, CRC. 169 It is debatable whether a (human) right to humanitarian assistance in armed conflict also exists as a matter of CIL (and even if such a right existed as a matter of CIL it is unclear what greater protection it would provide than the IHRL treaty protections for key rights). A recent survey concludes, ‘There is a limited individual right to request and receive humanitarian assistance from impartial humanitarian organisations in armed conflicts’: see Dug Cubie, The International Legal Protection of Persons in Humanitarian Crises (Oxford, Hart, 2017) 325. Although various non-state bodies such as the Institute of International Law (n 17), Art II(2)) have asserted the existence of a general right to humanitarian assistance, there is an absence of sufficient state practice and opinio juris to support the conclusion that a general human right to humanitarian assistance has emerged as a matter of CIL.

413

8.87  Denial of Humanitarian Access and Assistance in Article 22(1), CRC170 and Article 23(1), ACRWC,171 and to internally displaced persons (IDPs) in Africa, for example, the ACRWC172 and the African Union’s Kampala­ Convention.173 We do not, therefore, consider these treaty provisions further since our book is not concerned with the specific issue of children as refugees or IDPs: see ­Chapter 2, paragraph 2.3.1. However, we note that both the CRC and ACRWC require States Parties to co-operate with humanitarian actors. Thus, Article 22(2), CRC requires States Parties to provide such cooperation ‘as they consider appropriate’ to the UN, intergovernmental organisations (IGOs) and non-governmental organisations (NGOs) cooperating with the UN.174 Article 23(2), ACRWC requires States Parties to ‘undertake to cooperate with existing [IGOs] which protect and assist refugees in their effects to protect and assist such a child’. 8.87  Unlike IHL, there is no direct IHRL treaty provision that addresses the issue of the denial of humanitarian access per se. Instead, there are a number of potentially relevant rights that may be violated if a state withholds consent to offers of humanitarian assistance or otherwise fails to allow access to impartial humanitarian actors. The rights that are violated may be determined by considering the effect of the denial. For example, if the effect of the state’s denial is that civilians (including children) may be at risk of starvation or other serious deprivation of food or water then the right to life and the prohibition against torture and other cruel, inhuman or degrading treatment are likely to be violated. We now turn to consider some of these potential rights. 170 Art 22(1), CRC: ‘States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties’. 171 Art 23(1), ACRWC: ‘States Parties to the present Charter shall take all appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law shall, whether unaccompanied or accompanied by parents, legal guardians or close relatives, receive appropriate protection and humanitarian assistance in the enjoyment of the rights set out in this Charter and other international human rights and humanitarian instruments to which the States are Parties’. 172 The ACRWC provisions apply mutatis mutandis to internally displaced children: Art 23(3), ACRWC. 173 The Kampala Convention does not contain a right to humanitarian assistance per se, but it does contain detailed provisions, drawn largely from IHL, with the aim of ensuring that IDPs receive humanitarian assistance. The Kampala Convention reflects many of the provisions of OCHA’s Guiding Principles on Internal Displacement (n 84), which stipulate that they are a restatement of the relevant IHL and IHRL (Introduction: Scope and Purpose, para 3) and contain a section on humanitarian assistance (Principles 24–27). One of the general obligations upon States Parties is to assist IDPs ‘by meeting their basic needs as well as allowing and facilitating rapid and unimpeded access by humanitarian organizations and personnel’: see Art 3(1)(j), Kampala Convention. 174 The CRC Committee has interpreted the obligation in Art 22(1), CRC, that ‘States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee … receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights’, as meaning that ‘States shall, in particular where government capacity is limited, accept and facilitate the assistance offered by UNICEF, UNESCO, UNHCR and other UN agencies within their respective mandates, as well as, where appropriate, other competent inter-governmental organizations or non-governmental organizations (Art 22 (2)) in order to secure an adequate standard of living for unaccompanied and separated children’: CRC Committee, ‘General Comment No. 6 (2005): Treatment of unaccompanied and separated children outside their country of origin’ (1 September 2005) UN Doc CRC/GC/2005/6, para 45 (emphasis added). The Committee has also, at para 44 (emphasis added), interpreted the Art 22(1) obligation as meaning that ‘As provided in art 27(2) of the Convention, States shall in particular provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing’.

414

Legal Framework  8.88 2.  Human Rights and Humanitarian Assistance 8.88  Key rights: these rights have already been described in Chapter 3, paragraphs 3.89ff. We note the following points in the specific context of this Chapter: 8.88.1  Right to life. Where a population is at real risk of starvation or severe malnutrition and a state is unable or unwilling to provide the necessary assistance to those at risk and either (i) does not consent to allow assistance to be provided by impartial humanitarian actors or (ii) does not allow and facilitate rapid and unimpeded humanitarian access, such refusal is likely to be in breach of the right to life of those at risk and therefore unlawful.175 For example, in 2014, the HRC expressed concern over the reported arbitrary denial by Sudanese state authorities of timely life-saving humanitarian access to civilians in conflict-affected areas, identifying as relevant the right to life as expressed in Article 6 of the International Covenant on Civil and Political Rights (ICCPR).176 The HRC applies the test of ‘real risk’ where the right to life is in danger.177 8.88.2  Prohibition on torture and cruel, inhuman or degrading treatment. An arbitrary withholding of consent or, if consent has been given, not then allowing and facilitating rapid and unimpeded impartial humanitarian access may lead to consequences that constitute torture or cruel, inhuman or degrading treatment (pursuant to, for example, Article 7 of the ICCPR and Article 3 of the European Convention on Human Rights (ECHR). (i) Much of the case law on these provisions concerns withholding food and water from people in detention. This has been analysed as a breach of the prohibition on inhuman treatment rather than the higher threshold of torture.178 This case 175 See ILC draft articles on the protection of persons in the event of disasters, Draft Art 13(2) ‘Consent [by the affected State] to external assistance shall not be withheld arbitrarily’ and Draft Art 11 ‘To the extent that a disaster manifestly exceeds its national response capacity, the affected State has the duty to seek assistance from, as appropriate, other States, the United Nations, and other potential assisting actors’. The ILC considers that this duty derives from, inter alia, the right to life under IHRL instruments and CIL and that a refusal to consent to external assistance may, in certain circumstances, constitute a breach of the right to life. Commentary on Draft Art 11, para (3); Commentary to Draft Art 13 para (4) in ILC Report 2016 (n 84), 53–54, 59–60. In the context of armed conflict, it has similarly been suggested that a state with insufficient resources to provide a civilian population with basic sustenance has a positive duty to seek assistance and if it does not, this may be a breach of the right to life: FDFA Handbook (n 16), 43. 176 HRC, ‘Concluding observations on the fourth periodic report of the Sudan’ (19 August 2014) UN Doc CCPR/C/SDN/CO/4, para 8. Similarly, see UNHRC, ‘Concluding observations on the fourth periodic report of Israel’ (21 November 2014) UN Doc CCPR/C/ISR/CO/4, para 12 expressing concern at the ongoing blockade of Gaza and its negative impact on ‘Palestinians’ access to all basic and life-saving services such as food, health, electricity, water and sanitation’, which it identified as relating to the right to life in Art 6, ICCPR. See also HRC, ‘Draft general comment No. 36 – Article 6: Right to life’ (2 September 2015), para 67. Outside the context of armed conflict, see the Inter-American Court of Human Rights, Case of the Sawhoyamaxa Indigenous Community v Paraguay (Merits, Reparations and Costs) (29 March 2006) and the consideration of humanitarian assistance at paras 151, 153, 155, 170, 177–78. 177 The threshold of ‘substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the [ICCPR]’ is applied by the HRC in removal cases (extradition, deportation, expulsion): see HRC, ‘General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (n 163), para 12. The test employed by the Inter-American Court of Human Rights in Sawhoyamaxa Indigenous Community v Paraguay (n 176), para 155, was ‘an immediate and certain risk’ to life of which the state authorities did or should have known. 178 See, eg, Human Rights Committee, Thirty-seventh session, Communications Nos 241 and 242/1987, Birindwa and Tshisekedi v Zaire (2 November 1989) UN Doc CCPR/C/37/D/241/1987 and CCPR/C/37/D/242/1987,

415

8.88  Denial of Humanitarian Access and Assistance law can be applied, by analogy, where civilians are clearly reliant upon, or in the control of, the party concerned for sustenance (whether directly or by their consent to the passage of supplies) such as, for example, in a siege situation.179 (ii) For conduct to violate the prohibition of inhuman or degrading treatment, it must meet a threshold of seriousness taking into account all the circumstances including the victim’s vulnerability.180 Accordingly, given the particular vulnerability of children,181 that threshold of pain and suffering will be lower for children than in the case of adults and may vary according to the age and maturity of the child. For example, neglect resulting in hungry and under-nourished children in Z v UK, which was evidenced by the child applicants failing to gain sufficient weight and stealing food, was found to satisfy the minimum level of severity to constitute inhuman and degrading treatment contrary to Article 3, ECHR.182 (iii) Denial of humanitarian access will have different effects for different categories of persons. A deprivation of food or water that may be tolerable for an adult may not be so for a child. Indeed, deprivation that does not actually threaten a child’s survival may nevertheless have profound long-term consequences for her or his development, including mortality or morbidity in the medium- and long-term (see paragraph 8.19 above). 8.88.3  In light of the above, it follows that: (i) there is likely to be a violation of the right to life or the prohibition against torture and cruel, inhuman or degrading treatment where a state denies access to humanitarian actors in a situation where persons are at risk of starving (or dying from other deprivations such as shelter, clothing, medical supplies). Or, in relation to children specifically, they are at risk of, or are, undernourished or otherwise deprived to an extent that risks developmental impairment; and (ii) there may be a violation of the prohibition against torture and cruel, inhuman or degrading treatment where a denial of food aid causes children to feel prolonged or inappropriate hunger and reaches the minimum level of severity or where other deprivations (for example medical supplies) cause similar suffering. Whether this reaches the minimum level of severity will be fact-dependent. It is more likely where the denial of humanitarian access has also caused other deprivations (for example, lack of food combined with a lack of shelter, heating or clothing).

Human Rights Committee, 37th Session, para 13(b), in which the UN Human Rights Committee determined that deprivation of food and water to an applicant in detention could constitute inhuman treatment. 179 As has been found in the IHL context, in which the ICTY has held that the denial of relief supplies to besieged civilians amounted to cruel and inhuman treatment, see below (n 245). 180 Soering v UK (1989) 11 EHRR 439, para 100; Costello-Roberts v UK (1995) 19 EHRR 112, para 30. Applying a similar approach to alleged breaches of Art 10, ICCPR, the HRC found that when assessing the minimum level of severity of the alleged ill-treatment, all the circumstances of the case are relevant, which may include the age of the complainant: Human Rights Committee, Eighty-sixth session, Communication No 1184/2003, Corey Brough v Australia (17 March 2006) UN Doc CCPR/C/86/D/1184/2003), para 9.2. 181 O’Keefe v Ireland (2014) 59 EHRR 15 (Grand Chamber), para 146; Sawhoyamaxa Indigenous Community v Paraguay (n 176), para 177. 182 Z v United Kingdom (2002) 34 EHRR 3, paras 91 (Commission), 131; paras 73–74 (Judgment).

416

Legal Framework  8.88 8.88.4  Finally, as to the CRC: (i)

(ii)

(iii)

(iv)

(v)

(vi)

The key rights are also enshrined in the CRC (Articles 6 and 37). Article 6 provides that in addition to the right to life ‘States Parties shall ensure to the maximum extent possible the survival and development of the child.’183 There are other provisions that could be violated in circumstances where a state denies access to humanitarian actors. For example, the ‘right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health’ in Article 24. However, as we have noted in Chapter 3, paragraphs 3.107–3.109, it is questionable whether the full panoply of rights in the CRC applies in situations of armed conflict. Article 38(4), CRC provides, ‘In accordance with their obligations under [IHL] 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’. As we have noted in Chapter 3, paragraphs 3.110–3.114, on its face, this standard – qualified as it is by ‘all feasible measures’ – is considerably lower than the unqualified ‘care and aid’ provisions in IHL (Article 77(1), API and Article 4(3), APII). The UN Committee on the Rights of the Child (CRC Committee) has not published a General Comment addressing the scope of Article 38(4) or the denial of humanitarian access. It has, however, issued a General Comment on implementation of the CRC more generally, General Comment No 5 (2003), in which it noted in respect of Article 4, first, the requirement that ‘States Parties shall undertake all appropriate … measures for the implementation of the rights recognized in the Convention’,184 and second, the qualification in respect of economic, social and cultural rights that States ‘shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation’.185 In respect of this qualification, ‘States need to be able to demonstrate that they have implemented “to the maximum extent of their available resources” and, where necessary, have sought international ­cooperation’.186 In light of this, it is arguable that ‘all feasible measures’ requires States Parties to accept and facilitate humanitarian assistance made available from third parties that observe the humanitarian principles of humanity, neutrality, impartiality and independence. It may also require them to have sought such assistance – in circumstances where the State in question is unable (or unwilling) to provide the goods or services that are necessary to respect economic, social and cultural

183 See CRC Committee ‘General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24)’ (17 April 2013) UN Doc CRC/C/GC/15), para 16–18. See also para 8.145.2(iii). 184 CRC Committee, ‘General Comment No. 5 (2003): General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para.6)’ (27 November 2003) UN Doc CRC/GC/2003/5, 1. 185 ibid, para 6. 186 ibid, para 7 (emphasis added).

417

8.89  Denial of Humanitarian Access and Assistance rights of children. This is consistent with the CRC Committee’s interpretation of States Parties’ obligations in respect of refugee children under Article 22(1).187 (vii) However, the scope of protection offered by Article 38(4) is unclear and should be clarified. (viii) The CRC Committee has also issued a General Comment on the child’s right to health, within which there is brief reference to the responsibility of States Parties to ensure a child’s right to health even in ‘political or economic crisis or emergency situations’.188 The General Comment notes that states have individual and joint responsibility to cooperate in providing humanitarian assistance to children in times of emergency and should consider prioritising efforts to realise ­children’s right to health ‘including through appropriate international medical aid; distribution and management of resources, such as safe and potable water, food and medical supplies; and financial aid to the most vulnerable or marginalized ­children’.189 8.89  Subsistence rights. In addition to the key rights noted above, there are economic, social and cultural rights, sometimes referred to as ‘subsistence rights’190 or ‘survival rights’. These include the rights to food,191 water,192 housing and clothing,193 and health.194 These rights may be violated where a state denies access to humanitarian actors but the position is not settled. For example, it is not clear whether these subsistence rights 187 See CRC Committee (n 174). 188 CRC Committee, ‘General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24)’ (17 April 2013) (n 183), para 74. 189 ibid, para 88. 190 See, eg, UN Committee on Economic, Social and Cultural Rights (CESCR), ‘Fact Sheet No. 16 (Rev.1)’ (UN, 1991), 5, which refers to ‘minimum subsistence rights’, available at . 191 The right to sufficient food is an express right provided in the Art 25(1) of the Universal Declaration of Human Rights (UDHR) and Art 11(1)–(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). See also: Art 12(2), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which provides that States Parties have an obligation to provide adequate nutrition to pregnant and lactating women; and Art 12, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) (adopted 17 November 1988, entered into force 16 November 1999) OAS Treaty Series No 69 (1988). Art 24(2)(c), CRC requires States Parties to provide children with ‘adequate nutritious foods’. See, similarly, Art 14(2)(c), ACRWC. Furthermore ‘States have a core obligation to take the necessary action to mitigate and alleviate hunger … even in times of natural or other disasters’: see CESCR, ‘General Comment No. 12: The Right to Adequate Food (Art. 11)’ (12 May 1999) UN Doc E/C.12/1999/5, para 6. 192 The right to water is an implied core right in the ICESCR as it ‘is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights’: see CESCR, ‘General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant)’ (20 January 2003) UN Doc E/C.12/2002/11, para 1. Art 24(2)(c), CRC requires States Parties to provide children with ‘clean drinking-water’ as part of children’s right to health. Art 14(2)(c), ACRWC makes similar provision. 193 For the rights to shelter (also referred to as the right to housing) and clothing: see Art 25(1), UDHR and Art 11(1) ICESCR. These rights are replicated in a number of other IHRL instruments, including Art 27(3), CRC and Art 20(2)(a), ACRWC. 194 For the right to health: see Art 25(1), UDHR and Art 12, ICESCR. It is reflected in other IHRL treaties: eg Art 16, African Charter on Human and People’s Rights (ACHPR); Art 10, Protocol of San Salvador (n 191). Art 24(1), CRC recognises the right of the child to the enjoyment of the ‘highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health’. Art 14, ACRWC makes similar provision. Art 39, CRC also requires States Parties to ‘take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of … armed conflicts’.

418

Legal Framework  8.89 provide significant protection beyond that already provided by the key rights. The framework regarding subsistence rights is as follows: 8.89.1  Article 25(1), UDHR establishes a right to a standard of living adequate to maintain an individual’s health and well-being, which encompasses the right to ‘food, clothing, housing and medical care and necessary social services, and the right to security in the event of … lack of livelihood in circumstances beyond his control’. Article 25(2) further identifies that ‘motherhood and childhood are entitled to special care and assistance’. 8.89.2  The list in Article 25(1), UDHR is replicated in a number of different international instruments (ie with binding effect, where ratified).195 These include the ICESCR.196 8.89.3  States Parties to the ICESCR are obliged to ensure, at the very least, that the minimum essential levels of each of these rights are upheld at all times, including during armed conflict.197 Article 2(1), ICESCR obliges States Parties to move progressively to the full realisation of the rights contained in the treaty. All States Parties are, however, obliged to ensure the minimum subsistence rights are satisfied where the full realisation of the rights is not currently possible.198 8.89.4  Article 2(1), ICESCR also obliges each State Party to take steps to discharge its obligations under the treaty ‘to the maximum of its available resources’. The term ‘available resources’ includes resources ‘available from the international community through international co-operation and assistance’.199 8.89.5  It has been suggested that where States Parties have insufficient resources to ensure the minimum subsistence rights for populations within their territory or jurisdiction they must, therefore, request, accept and facilitate international assistance.200 This position is not without controversy. The extent to which this reflects existing international law in the context of humanitarian responses to large-scale disasters – not specifically but possibly including in situations of armed conflict – has been a matter of debate in the International Law Commission’s (ILC) recent work on Draft Articles on the protection of persons in the event of disasters.201 195 See (nn 191–94) above. 196 The CESCR identified the core economic, social and cultural rights (or the core minimal obligation of States) as the rights to essential foodstuffs, essential primary health care, basic shelter and housing and the most basic forms of education. CESCR, ‘General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant)’ (14 December 1990) UN Doc E/1991/23, para 10. 197 See, eg, OHCHR, ‘Living under Siege: The Syrian Arab Republic’ (OHCHR, February 2014) 3, available at . 198 CESCR (n 190), para 10; CESCR, ‘General Comment No. 12: The Right to Adequate Food (Art. 11)’ (n 191), para 14. 199 CESCR General Comment No. 3, para 13. See also, para 26 of the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (Limburg Principles) in UNCHR, ‘Note verbale dated 5 December 1986 from the Permanent Mission of the Netherlands to the United Nations Office at Geneva addressed to the Centre for Human Rights’ (8 January 1987) UN Doc E/CN.4/1987/17, Annex. This is also the position under the CRC, see para 8.88.4(v) and (nn 184–86) above. 200 FDFA Handbook (n 16), 45–46; CESCR (n 191), para 17; CRC Committee (n 184), para 7. 201 See ILC, ‘Eighth report on the protection of persons in the event of disasters by Eduardo Valencia-Ospina, Special Rapporteur’ (17 March 2016) UN Doc A/CN.4/697, paras 230–332. See also ILC, ‘Protection of persons in the event of disasters: Comments and observations received from Governments and international organizations’ (14 March 2016) UN Doc A/CN.4/696, 40–52, comments on Draft Arts 13–17.

419

8.90–8.94  Denial of Humanitarian Access and Assistance 8.89.6  The potential interference with these subsistence rights by the imposition of economic sanctions has been identified by the CESCR, which made specific reference to the Machel Report’s findings.202 3.  IHRL Conclusion on Denial of Humanitarian Access 8.90  If a state either withholds consent to access to its territory for humanitarian actors or otherwise fails to allow such assistance to civilians in its territory those failings may violate the right to life and the prohibition against torture and cruel, inhuman and degrading treatment and, therefore, violate the state’s IHRL obligations. 8.91  As noted in paragraph 8.84 above, this is similar to the IHL position regarding NIAC (Common Article 3) but IHL provides more protection for children since it includes ICRC, CIL Rule 135. IHL protection in IAC and NIAC (APII) is yet more protective than IHRL if our analysis is accepted, viz, that IHL would render unlawful any refusal to consent to humanitarian access where that refusal would violate the codified obligations to provide children with ‘care and aid’ (Article 77(1), API and Article 4(3), APII). As we have noted at paragraph 8.88.4. above, Article 38(4), CRC may expand the general scope of IHRL protection available to children regarding denials of humanitarian access but the extent to which it may do so is unclear. 8.92  Some commentators have relied on the synergy between IHL and IHRL to conclude that where a state has withheld consent to offers of assistance from impartial humanitarian organisations in circumstances in which this constitutes a breach of the state’s IHRL obligations, this will in turn render that refusal ‘arbitrary’ and therefore, a breach of IHL.203 We agree with the outcome of this analysis, namely that the state’s conduct may be described as arbitrary for the purpose of IHL and therefore unlawful. 4.  Problems and Deficiencies in the IHRL Legal Framework 8.93  There is one principal deficiency with the present IHRL framework applicable to the denial of humanitarian access to children. It is as follows. 8.94  The extent to which states are obliged, under IHRL, to accept and facilitate the provision of humanitarian services to children by impartial humanitarian organisations is limited and unclear. Existing IHRL obligations (under the CRC and ACRWC) to cooperate with humanitarian actors are limited to those providing assistance to specific categories of children, for example refugee children (see paragraph 8.86). The scope of protection under Article 38(4), CRC which obliges states parties to ‘take all feasible measures to ensure protection and care of children who are affected by an armed conflict’, is unclear. For example, it is not clear whether it requires states to accept and facilitate humanitarian assistance made available by impartial humanitarian organisations. Nor is 202 See CESCR, ‘General Comment No. 8: The relationship between economic sanctions and respect for economic, social and cultural rights’ (12 December 1997) UN Doc E/C.12/1997/8. The Machel Report’s (n 4) findings and recommendations relating to sanctions are discussed in its paras 127–35. See also CESCR (n 192), para 32. 203 2016 ICRC Commentary on GCI (n 66) para 835; Akande and Gillard (n 71) para 51, fifth bullet point.

420

Legal Framework  8.95–8.99 it clear whether it requires states to have sought such assistance where the state in question does not provide the goods or services that are necessary to respect economic, social and cultural rights of children (see paragraph 8.88.4). 5.  Suggestions to Improve the IHRL Framework 8.95  In light of the above, we suggest that the CRC Committee clarifies the scope of Article 38(4), CRC, for example by a General Comment on Article 38 (which we have also suggested in Chapters 3 and 4) or otherwise addresses the issue of denial of humanitarian access in light of the CRC.204 8.96  We turn now to consider what happens where a state or a non-state armed group unlawfully refuses to consent to offers of assistance and access from impartial humanitarian organisations or breaches its obligations in respect of allowing and facilitating the access to which it has consented. C.  Consequences of Denying Humanitarian Access 8.97  Where a state or, in NIAC, a non-state armed group, refuses to give consent to humanitarian access or denies access where prior consent has been given, there are at least two possible consequences. The first consequence is individual criminal liability pursuant to the international criminal law (ICL) framework. The second is the possibility of intervention authorised by the UNSC. We consider these in turn below. 1.  ICL Legal Framework Intentional Starvation of Civilians as a Method of Warfare 8.98  The Rome Statute does not include, as a direct and express crime, the denial of humanitarian access per se. The closest it comes to criminalising such conduct is to treat the intentional starvation of civilians as a method of warfare as a war crime. However, it only does so in IAC. 8.99  In the context of IAC: 8.99.1  Article 8(2)(b)(xxv), Rome Statute defines as a war crime during IAC ‘Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions’. The specific war crime of the intentional starvation of civilians in IAC was first expressed in the Rome Statute. 8.99.2  The elements of the offence are set out in the ICC Elements of Crimes.205 We make two specific observations regarding the elements of the offence, noting that

204 We address the role of the CRC Committee and its ability to publish a General Comment on the denial of humanitarian assistance in the Accountability Mechanisms section at para 8.145.2. 205 They are: ‘1. The perpetrator deprived civilians of objects indispensable to their survival. 2. The perpetrator intended to starve civilians as a method of warfare. 3. The conduct took place in the context of and was

421

8.100  Denial of Humanitarian Access and Assistance commentators have observed that the scope of this offence is ‘unclear’ and ‘difficult to prosecute’.206 8.99.3  First, as to depriving civilians of objects indispensable to their survival: the definition of the offence makes clear that this element can be satisfied by wilfully (ie intentionally) impeding relief supplies as provided for by the Geneva Conventions. Read together, Article 23, GCIV and Articles 70 and 81, API require parties to: (i) consent to humanitarian assistance to alleviate a risk of starvation; (ii) allow and facilitate the rapid and unimpeded passage of foodstuffs and other relief consignments indispensable to the survival of civilians; and (iii) facilitate humanitarian access to civilians by the Red Cross societies and other humanitarian organisations operating under the same principles.207 8.99.4  Second, as to intention to starve civilians as a method of warfare: the crime is one of specific intent, so being reckless as to whether or not denying humanitarian access would result in the starvation of civilians would not be sufficient to satisfy the mental element of the offence. By virtue of Article 30(2)(b) of the Rome Statute (the generally applicable mental element of offences), an accused will intend a consequence (in this case, to starve civilians) where he either ‘means to cause that consequence or is aware that it will occur in the ordinary course of events’.208 8.100  In the context of NIAC: 8.100.1  Although the intentional starvation of civilians as a method of combat in NIAC is prohibited under Article 14, APII and although it was proposed by the Preparatory Committee to the Rome Conference, the Rome Statute does not contain a comparable war crime of the wilful starvation of civilians as a method of warfare during NIAC.209 8.100.2  The authors of the ICRC Study of Customary IHL conclude that ‘a court would have sufficient basis to conclude that such acts in a non-international armed conflict are war crimes’.210 They note: This practice is a violation of Additional Protocol II, and customary international law (see Rule 53). In addition, there is very extensive State practice expressing outrage at such acts in non-international armed conflicts, including the impediment of relief supplies which caused the starvation of civilians. This practice proves that such behaviour is not only a

associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict’. ICC, Elements of Crimes (ICC, 2011) 31, available at . 206 Akande and Gillard (n 103), 129. 207 See above para 8.61. 208 As to which, see Prosecutor v Thomas Lubanga Dyilo, Pre-Trial Chamber I, Decision on the Confirmation of Charges, ICC-01/04-01/06-803-tEN (29 January 2007), para 353. 209 William A Schabas The International Criminal Court: A Commentary of the Rome Statute 2nd edn (Oxford, OUP, 2016) 285. Similarly, the Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) do not contain the crime of starvation of civilians. 210 See the commentary to ICRC, CIL Rule 156 in ICRC Study on Customary IHL, 603. For the same conclusion, see Christa Rottensteiner ‘The denial of humanitarian assistance as a crime under international law’ (1999) 81 IRRC 555, 568–69.

422

Legal Framework  8.101 violation of customary international law, but also, in the eyes of the international community, a very serious violation.211

8.100.3  However, there is a problem of enforcement regarding this CIL (and therefore un-codified) prohibition. Since it has not been included in the Rome Statute it cannot be prosecuted before the ICC. And prosecution before a domestic court will only be possible if the domestic legal system includes, as domestic criminal offences, crimes under CIL. 8.100.4  The fact that the starvation of civilians has not been included as a war crime in NIAC in the Rome Statute does not mean that such conduct is not criminalised: it could be prosecuted under other war crime provisions such as murder or the crime against humanity of extermination: (see, for example, paragraphs 8.105.1 and 8.108, respectively, below) but there may be difficulties prosecuting such an offence in the factual context of denial of humanitarian assistance. Overview of Other Relevant Crimes 8.101  In addition to the intentional starvation of civilians (a war crime in IAC under the Rome Statute and prohibited under APII and as a matter of CIL in NIAC), there are other offences that may be committed when humanitarian access or assistance is denied to civilians in conflicts, especially the crime against humanity of extermination. These other offences are general in their application, ie they do not specifically protect denial of humanitarian access to children. An outline of the relevant criminal offences is as follows: 8.101.1  First, the war crime of intentionally attacking personnel, installations, ­material, units or vehicles212 involved in a humanitarian assistance mission who are entitled to the protection given to civilians or civilian objects under the international law of armed conflict. We consider this at paragraphs 8.102–8.104 below. 8.101.2  Second, other war crimes. These can be considered in two groups: (i) crimes against persons, including the war crimes of murder, wilful killing, torture or inhuman treatment; and (ii) crimes against property, including the war crimes of pillage and unnecessarily destroying or seizing enemy property. We consider these at ­paragraph 8.105 below. 8.101.3  Third, the crime against humanity of extermination. There are a number of other crimes against humanity that may be relevant, see paragraphs 8.106–8.109 below. 8.101.4  Fourth, Article 6(c), Rome Statute specifies that genocide can be committed by ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’. We consider this at paragraphs 8.110–8.112 below.

211 ICRC Study on Customary IHL, 603. 212 In this Chapter, we use the term ‘humanitarian objects’ as convenient shorthand for humanitarian installations, material, units or vehicles.

423

8.102–8.103  Denial of Humanitarian Access and Assistance War Crime: Intentionally Attacking Humanitarian Assistance Missions 8.102  This war crime exists in both IAC and NIAC. 8.103  In the context of IAC: 8.103.1  Article 8(2)(b)(iii), Rome Statute includes within the definition of war crimes during IAC, ‘Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission  … as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict’.213 8.103.2  The elements of the offence are set out in the ICC Elements of Crimes.214 There is minimal jurisprudence concerning the Article 8(2)(b)(iii) offence insofar as it relates to attacks on humanitarian personnel or objects (as opposed to attacks on personnel and objects engaged in peacekeeping missions). The ICC215 and SCSL, whose Statute contained an identical provision,216 have held as follows regarding the elements of the offence (as it concerns attacks on peacekeepers in NIAC). 8.103.3  In relation to the objective elements of the offence (actus reus): (i) Attack: an ‘attack’ means an act of violence. No material result or harmful impact from such violence is necessary for this element of the offence to be satisfied since the attack itself is the gravamen of the offence.217

213 This offence (although not in the context of IAC) is also contained in the Statute of the Special Court for Sierra Leone (SCSL) in Art 4(b). Comparable provisions were not contained within the Statutes of the ICTY or the ICTR. 214 These are: ‘1. The perpetrator directed an attack. 2 The object of the attack was personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations. 3. The perpetrator intended such personnel, installations, material, units or vehicles so involved to be the object of the attack. 4. Such personnel, installations, material, units or vehicles were entitled to that protection given to civilians or civilian objects under the international law of armed conflict. 5. The perpetrator was aware of the factual circumstances that established that protection. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict’. See ICC, Elements of Crimes, 18–19. 215 The elements of the offence as it applied to an attack on peacekeepers in NIAC was analysed by the ICC Pre-Trial Chamber in the Darfur cases for the purpose of confirming the charges against the accused in Prosecutor v Bahar Idriss Abu Garda and Prosecutor v Abdallah Banda Abakaer Nourain. See Prosecutor v Bahar Idriss Abu Garda, Pre-Trial Chamber, Decision on the Confirmation of Charges, ICC-02/05-02/09243-Red (8 February 2010), in which the charges were not confirmed; Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Pre-Trial Chamber I, Corrigendum of the ‘Decision on the Confirmation of Charges’ ICC-02/05-03/09-121-Corr-Red (7 March 2011), in which the charges were confirmed. The Banda case has not progressed as the accused failed to appear before the court after the confirmation of the charges against him. In its Decision confirming the charges, the Pre-Trial Chamber, at para 61, adopted the findings of the Chamber in Abu Garda (Decision on the Confirmation of Charges) as to the elements of the offence. 216 Art 4(b), SCSL Statute. The first judicial consideration of the offence was by the SCSL (again in the context of NIAC), at first instance and to a more limited extent on appeal, in Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao following the defendants’ convictions for the offence. Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (the RUF Accused), Trial Chamber I, Judgment, SCSL-04-15-T (2 March 2009), affirmed in Appeals Chamber, Appeal Judgment, SCSL-04-15-A (26 October 2009). 217 Abu Garda, Decision on the Confirmation of Charges (n 215), para 65; RUF, Judgment (n 216), para 220. In RUF, the SCSL Trial Chamber also held that threats to attack do not satisfy this element of the offence; there must be actual violence directed against the protected targets (at para 1889).

424

Legal Framework  8.103 (ii) Directing an attack: for the accused to have ‘directed’ the attack he must have caused it to happen.218 (iii) Protection given to civilians: peacekeepers (and by extension, humanitarian personnel) enjoy the protection given to civilians as long as they do not directly participate in hostilities or combat-related activities.219 (iv) Participating in hostilities: carrying weapons for self-defence and acting in selfdefence would not remove this protection.220 (v) Nexus between the attack and the IAC: an IAC must exist at the time of the offence and there must be a nexus between the attack and the armed conflict, although it is not necessary for the armed conflict to have been the ultimate reason for the criminal conduct.221 8.103.4  In relation to the subjective elements of the offence (mens rea): (i) Specific intent: the accused must intend the peacekeeping (and so, by extension, humanitarian) personnel or objects to be the targets of the attack.222 (ii) Awareness of protected status of the target: the accused must be aware of the facts giving personnel or objects protection, ie that they were involved in or related to a peacekeeping (and so by extension, humanitarian assistance) mission and not participating in or related to hostilities or combat related activities.223 (iii) Awareness of an armed conflict: the accused must be aware of the factual circumstances that establish an armed conflict, which does not require knowledge of the position as a matter of law.224 8.103.5  As noted above, the limited jurisprudence has not considered this offence as it applies to personnel and objects involved in humanitarian assistance rather than peacekeeping missions. There is, therefore, no judicial consideration of the scope of the term ‘humanitarian assistance mission’ for the purposes of this offence. This term was considered by the Prosecutor of the ICC in her decision not to open an investigation into the action of Israeli forces who boarded ships attempting to break Israel’s blockade of Gaza in 2010 (the Gaza Flotilla case).225

218 Abu Garda, Decision on the Confirmation of Charges (n 215), para 66. 219 Abu Garda, Decision on the Confirmation of Charges (n 215), para 83; RUF, Judgment (n 216), para 233–34 and Appeal Judgment (n 216), paras 529–31. 220 Abu Garda, Decision on the Confirmation of Charges (n 215), para 83; see also Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Corrigendum of the ‘Decision on the Confirmation of Charges’ (n 215) paras 62(iii) and 63(ii)(c). 221 Abu Garda, Decision on the Confirmation of Charges (n 215), paras 90–92 and fn 137; RUF, Judgment (n 216), paras 100–01 and 107, drawing on the jurisprudence of the Ad Hoc tribunals (the ICTY and ICTR). 222 Abu Garda, Decision on the Confirmation of Charges (n 215), para 93; RUF, Judgment (n 216), para 232 and Appeal Judgment (n 216), para 511. 223 Abu Garda, Decision on the Confirmation of Charges (n 215), para 94. See also RUF, Judgment (n 216), para 235. 224 Abu Garda, Decision on the Confirmation of Charges (n 215), paras 95–96. 225 Office of the Prosecutor of the ICC (ICC OTP), ‘Situation on Registered Vessels of Comoros, Greece and Cambodia: Article 53(1) Report’, ICC-01/13-34 (6 November 2014), paras 111–125, available at . The Prosecutor concluded that it did not reasonably appear that the elements of the Art 8(2)(b)(iii) offence were satisfied because although the flotilla

425

8.104  Denial of Humanitarian Access and Assistance 8.103.6  Conduct falling within Article 8(2)(b)(iii) is also likely to constitute a war crime as a matter of CIL. In the RUF case the SCSL Trial Chamber held that the conduct prohibited by Article 4(b) of the SCSL Statute was already a crime as a matter of CIL as of early 2000, ie at the time of the attacks in question.226 The Trial Chamber observed that the offences listed in Article 4 of the SCSL Statute, being ‘“other serious violations of international humanitarian law”, are serious violations of customary international humanitarian law by definition’.227 This conclusion was not subject to appeal and the convictions were confirmed. The Trial Chamber characterised the offence as a particularisation of the general prohibition on attacking civilians and civilian objects.228 The authors of the ICRC Study of Customary IHL make the same observation, concluding that this specific offence has existed in CIL since the negotiation of API. They also list it as a war crime under customary IHL when committed during NIAC.229 Based on this, we consider that the offence of intentionally attacking personnel and objects involved in humanitarian missions is a war crime under CIL in both IAC and NIAC. 8.104  In the context of NIAC: 8.104.1  Article 8(2)(e)(iii), Rome Statute defines as a war crime during NIAC ‘intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission … as long as they are

was carrying humanitarian aid, it could not be said to be exclusively an humanitarian mission and ‘to fall within the humanitarian assistance paradigm envisioned under article 8(2)(b)(iii) due to its apparent lack of neutrality and impartiality as evidenced in the flotilla’s explicit and primary political objectives (as opposed to a purpose limited to delivery of humanitarian aid), failure to obtain Israeli consent, and refusal to cooperate with the Israeli authorities in their proposals for alternative methods of distributing the relief supplies’: ICC OTP, para 125. The Prosecutor’s decision was challenged, and the ICC’s Pre-Trial Chamber I has requested that she reconsider that decision for reasons unrelated to her conclusion that the elements of the Art 8(2)(b)(iii) offence were not made out: see Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic and the Kingdom of Cambodia, Pre-Trial Chamber I, Decision on the request of the Union of Comoros to review the Prosecutor’s decision not to initiate an investigation, ICC-01/13-34 (16 July 2015). We note that in reaching her conclusion, the Prosecutor relied upon the jurisprudence of the ICJ that to be consistent with the UN Charter and not interfere with the internal affairs of a state, humanitarian assistance must be limited to the practice of the Red Cross, ‘namely to “prevent and alleviate human suffering”, “to protect life and health and to ensure respect for the human being”, and “above all, be given without discrimination to all in need”’: ICC OTP, para 111, citing Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) (Merits) (n 77), para 243. The Prosecutor also referred to the ICRC’s description of its guiding principles of humanity, impartiality and neutrality and relied upon commentary to the Rome Statute. While the Prosecutor did not expressly adopt the view that it was an element of the offence that the humanitarian supplies in question must be limited to those necessary for the survival of the civilian population, she defined ‘humanitarian assistance’ in those conventional terms, referring to Art 55, GCIV and Art 69, API: ICC OTP, 47, fn 190. In finding that the flotilla was not a ‘humanitarian assistance mission’ for the purposes of the Art 8(2)(b)(iii) offence, the ICC Prosecutor also relied upon the fact that it did not have consent of the State of Israel for its activities (as to which, see below at para 8.115.2). 226 RUF, Judgment (n 216), paras 68 and 218. 227 ibid, para 71. 228 ibid, para 215, citing examples of state practice and opinio juris and referring in particular, to the same conclusion that had been reached by the Secretary General; see UNSC, ‘Report of the Secretary-General on the establishment of a Special Court for Sierra Leone’ (4 October 2000) UN Doc S/2000/915, para 16. 229 ICRC Study on Customary IHL, 568–603 on ICRC, CIL Rule 156 and the relevant commentary. See para 8.61.1 above for a discussion of the provisions in Arts 70(4) and 71 API requiring parties to protect relief consignments and respect and protect relief personnel and para 8.65.1 for the existence of such norms in customary IHL despite the lack of express provision within APII.

426

Legal Framework  8.104 entitled to the protection given to civilians or civilian objects under the international law of armed conflict’.230 8.104.2  The elements of the offence are specified in the ICC Elements of Crimes.231 8.104.3  The crime under Article 8(2)(e)(iii) is in identical form to that under Article 8(2)(b)(iii), save that for the purposes of Article 8(2)(e)(iii) the offence must have taken place in the context of and be associated with an armed conflict not of an international character. We refer to the analysis of the concepts used in Article 8(2)(b)(iii) set out above at paragraph 8.103 which is equally applicable here. 8.104.4  As noted above, the limited jurisprudence related to this offence is in the context of NIAC in Dafur (Sudan) and Sierra Leone. In Abu Garda, the ICC considered whether the offence in NIAC was different from that in IAC. This was on the basis that within APII there is no express provision stating that civilian objects generally shall not be the object of attack. Drawing on, amongst other things, its finding that under customary IHL the distinction between military objectives and civilian objects is applicable during NIAC, the ICC held that the offence can be committed by an attack on peacekeeping objects (and so, we suggest, by extension, humanitarian objects) in NIAC notwithstanding the lack of an express provision within APII stating that civilian objects generally shall not be the object of attack.232 8.104.5  Conduct falling within Article 8(2)(e)(iii) is also likely to constitute a war crime as a matter of CIL: see above, at paragraph 8.103.6. 8.104.6  We also note, in this context, UNSC Resolution 2165 adopted on 14 July 2014, in which it was stated that attacks on humanitarian personnel in Syria may amount to war crimes.233 In March 2017 the UN Human Rights Council’s Independent International Commission of Inquiry on the Syrian Arab Republic concluded that the deliberate air strike on a humanitarian convoy in September 2016 during the battle for Aleppo, which killed 15 aid workers and destroyed supplies, constituted the war crimes of ‘deliberately attacking humanitarian relief personnel, denial of humanitarian aid, and attacking civilians’.234

230 The substantive offence as specified in Art 4(b) of the SCSL Statute, also in the context of NIAC, consists of the same terms. 231 These are: ‘1. The perpetrator directed an attack. 2. The object of the attack was personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations. 3. The perpetrator intended such personnel, installations, material, units or vehicles so involved to be the object of the attack. 4. Such personnel, installations, material, units or vehicles were entitled to that protection given to civilians or civilian objects under the international law of armed conflict. 5. The perpetrator was aware of the factual circumstances that established that protection. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict’. See ICC, Elements of Crimes, 35. 232 Situation in Darfur, Sudan in the Case of the Prosecutor v Bahar Idriss Abu Garda, Decision on the Confirmation of Charges (n 215), paras 88–89. See paras 8.61–8.65 above for a discussion of the protection of humanitarian objects in IAC and NIAC. 233 UNSC Res 2165 (n 96), para 8. 234 UNGA, ‘Report of the Independent International Commission of Inquiry on the Syrian Arab Republic’ (2 February 2017) UN Doc A/HRC/34/64, para 97. A description of the facts of the attack is given in paras 79–88 of the Report.

427

8.105  Denial of Humanitarian Access and Assistance Other War Crimes 8.105  Other war crimes: there are other war crimes which may cover the consequences of a denial of humanitarian access and assistance during IAC and NIAC. These are briefly considered below. Whether the denial of humanitarian assistance might satisfy one of the objective elements of these offences in any given case is necessarily highly fact specific. 8.105.1  War crimes against persons: relevant crimes include wilful killing and murder,235 torture or inhuman treatment,236 and wilfully causing great suffering, or serious injury to body or health.237 8.105.2  War crimes against property. Where property is pillaged, seized or destroyed other than for military necessity, resulting in the denial of humanitarian assistance to civilians or the creation or exacerbation of a humanitarian emergency, it may amount to one of the following war crimes: pillage238 (which may cover acts of appropriating

235 See generally, Ch 3, paras 3.63ff. Both the ICTY and ICTR have confirmed that wilful killing can be committed by both acts and omissions, although the element of intention to kill or cause serious bodily harm or injury needs to be established: Prosecutor v Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landzo (Čelebići case) (Trial Judgment) IT-96-21-T (16 November 1998), para 424; Prosecutor v Jean-Paul Akayesu (Trial Judgment) ICTR-96-4-T (2 September 1998), para 589; see further discussion in Rottensteiner (n 210), 563. We envisage that establishing the necessary causal link between the denial of humanitarian assistance and the deaths of civilians will be an evidential challenge in any prosecution and may be more likely to be established in cases in which the protected persons are detained rather than simply being members of a civilian population in territory controlled by a party to an armed conflict. It should also be noted that the 1958 ICRC Commentary on GCIV states, in relation to Art 147, ‘“Wilful killing” would appear to cover cases where death occurs through a fault of omission. Of course, the omission must have been wilful and there must have been an intention to cause death by it. It seems, therefore, that persons who gave instructions for the food rations of civilian internees to be reduced to such a point that deficiency diseases causing death occurred among the detainees would be held responsible’: (n 103), 597. 236 See generally Ch 3, paras 3.63ff. The threshold for inhuman treatment is lower than for torture, and it is likely that charges would be brought under that limb of the crime. In a number of ICTY cases, defendants in charge of detention camps were charged with creating inhuman conditions through, amongst other things, the deprivation of food (providing detainees with only starvation rations) and denying them access to other supplies: see, eg, Prosecutor v Milorad Krnojelac (Trial Judgment) IT-97-25-T (15 March 2002), affirmed in (Appeal Judgment) IT-97-25-A (17 September 2003) (camp commander where non-Serb detainees were given starvation rations and held in conditions amounting to inhuman treatment, which was evidence of persecution). See also Čelebići case (Trial Judgment) (n 235), para 494, holding that torture can be committed by omission. 237 See generally Ch 3, paras 3.63ff. This is an offence that can be committed by an intentional act or omission: Čelebići case (Trial Judgment) (n 235), para 511. For a consideration of the scope of the offence, see the ICTY in Prosecutor v Mladen Naletilić and Vinko Martinović (Trial Judgment) IT-98-34-T (31 March 2003), paras 340–43. 238 Art 8(2)(b)(xvi), Rome Statute defines as a war crime ‘Pillaging a town or place, even when taken by assault’ during IAC and Art 8(2)(e)(v) establishes the identical offence during NIAC. The ICTR and SCSL had jurisdiction over crime of ‘pillage’ (Art 3(f), Statute of the SCSL and Art 4(f), Statute of the ICTR). The ICTY had jurisdiction over ‘plunder’, which is considered to be synonymous with pillage: Prosecutor v Jean-Pierre Bemba Gombo, Trial Chamber III, Judgment pursuant to Article 74 of the Statute, ICC-01/05-01/08-3343 (21 March 2016), paras 113–14 (finding not overturned on appeal). The war crime of pillage covers both isolated acts of ill-discipline as well as organised appropriation of economic resources. In Čelebići case (Trial Judgment) (n 235), para 590, the ICTY observed, ‘the prohibition against the unjustified appropriation of public and private enemy property is general in scope, and extends both to acts of looting committed by individual soldiers for their private gain, and to the organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory’. See also Bemba, Judgment pursuant to Article 74 of the Statute, para 117.

428

Legal Framework  8.106–8.108 relief supplies239 but must, in order to come within the Rome Statute, be on a large scale)240 and unjustified destruction of property.241 Crimes Against Humanity 8.106  Article 7(1), Rome Statute defines ‘crimes against humanity’ as certain acts ‘when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’. This requirement – that the conduct be widespread or systematic – means that one-off or spontaneous (ie not pre-planned) attacks are unlikely on their own to amount to a crime against humanity. 8.107  There is no crime against humanity of denying humanitarian access or the intentional starvation of civilians. While proposals were made to include the latter as a crime against humanity during the negotiation of the Rome Statute, they were not sufficiently supported.242 Conduct amounting to a denial of humanitarian access may constitute the objective element of various crimes against humanity, in particular those listed immediately below. As with the other war crimes identified in paragraph 8.105, whether denying humanitarian assistance will in any given instance amount to the actus reus of a crime against humanity is highly fact specific. 8.108  The key example of a crime against humanity relevant to the denial of humanitarian access is extermination (Article 7(1)(b), Rome Statute). Article 7(2)(b), Rome Statute provides that this crime ‘includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population’.243 This is repeated in the elements of the crime, which also notes that the threshold for this offence is high as it requires there to have been a ‘mass killing of members of a civilian population’.244

239 In UNSC Res 794 (n 276), the UNSC condemned the looting of relief supplies in Somalia. More recently, in UNSC Res 2175 (29 August 2014) UN Doc S/RES/2175, para 2, the UNSC similarly condemned the rise of attacks on aid convoys and the looting of their assets in armed conflicts. 240 Bemba, Trial Chamber III, Judgment pursuant to Article 74 of the Statute (n 238), para 117 (finding not overturned on appeal). 241 Art 8(2)(a)(iv), Rome Statute describes as a crime occurring during IAC the ‘Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’. The Rome Statute also defines as a war crime in IAC, under Art 8(2)(b)(xiii), ‘Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war’. The same war crime is an offence in NIAC under Art 8(2)(e)(xii), but is worded slightly differently (emphasis added): ‘Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict’. 242 Bartels (n 254), 302. 243 Emphasis as in original. 244 ICC, Elements of Crimes, 6. In Prosecutor v Kayishema and Ruzindana the ICTR trial chamber, noting that the crime of extermination was not defined in either its Statute or the Nuremberg Charter, held that it could be committed through the ‘creation of conditions of life that lead to mass killing’, which ‘is the institution of circumstances that ultimately causes the mass death of others. For example: Imprisoning a large number of people and withholding the necessities of life which results in mass death; introducing a deadly virus into a population and preventing medical care which results in mass death. Extermination includes not only the implementation of mass killing or the creation of conditions of life that leads to mass killing, but also the planning thereof’: Prosecutor v Clément Kayishema and Obed Ruzindana (Judgment) ICTR-95-1-T (21 May 1999) paras 144, 146.

429

8.109–8.111  Denial of Humanitarian Access and Assistance 8.109  Other crimes against humanity of relevance are forcible transfer,245 persecution246 and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.247 Genocide 8.110  Article 6, Rome Statute defines ‘genocide’ as including ‘any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: … (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’. 8.111  In extreme cases, the denial of humanitarian access may provide evidence of genocide. A footnote to the ICC Elements of Crimes for genocide states ‘The term “conditions of life” may include, but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic

245 Art 7(1)(d), Rome Statute defines as a crime against humanity the ‘Deportation or forcible transfer of population’. Art 7(2)(d) explains that ‘“Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law’ (emphasis added). In Prosecutor v Radislav Krstić (Trial Judgment) IT-98-33-T (2 August 2001), paras 28 and 615–18, the ICTY found that blocking aid convoys into Srebrenica and failing to provide food and water to besieged civilians was part of a deliberate plan to ethnically cleanse the area of Bosnian Muslims by creating a humanitarian crisis in the enclave and then transporting the civilians from it. This conduct also constituted cruel and inhuman treatment and the offence of persecution: see Prosecutor v Radislav Krstić (Appeal Judgment) IT-98-33-A (19 April 2004), para 239. 246 Art 7(1)(h), Rome Statute defines as a crime against humanity ‘Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender  … or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court’. Art 7(2)(g) states that ‘“Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’. The ICTY has held that the denial of sufficient food supplies to Bosnian Muslims created circumstances amounting to inhuman treatment, which was a predicate for the crime against humanity of persecution: see, eg, Krnojelac (Trial Judgment) (n 236). The defendant was a commandant of a detention camp in which Bosnian Muslims were provided only with starvation rations thereby creating living conditions amounting to inhuman treatment. That inhuman treatment was the predicate for his conviction for the crime against humanity of persecution. See also Krstić (Appeal Judgment) (n 245) para 239. Drawing on the findings of the Nuremberg Tribunal and other WWII prosecutions, the ICTY Trial Chamber in Prosecutor v Duško Tadić (Trial Judgment) IT-94-1-T (7 May 1997), para 707 held that economic deprivations including the denial of adequate food supplies could amount to persecution (the Trial Chamber’s decision on persecution was not an issue on appeal). 247 Art 7(1)(k), Rome Statute defines as a crime against humanity ‘Other inhumane acts  … intentionally causing great suffering, or serious injury to body or to mental or physical health’. In Krstić (Trial Judgment) (n 245), para 671 the Trial Chamber found that the ethnic cleansing campaign (the forcible transfer of civilians), which included the creation of a humanitarian crisis, could be characterised as the crimes against humanity of (i) persecution based on the inhumane act of forcible transfer (Count 6) and (ii) other inhumane acts (Count 8). The Trial Chamber ultimately found that the conviction for Count 8 (other inhumane acts) was subsumed within the conviction for persecution based on the inhumane acts of forcible transfer: (Trial Judgment), para 676, affirmed in (Appeal Judgment) paras 230–33. In Krnojelac (Appeal Judgment) (n 236), para 188, the Appeal Chamber similarly held that convictions for inhumane acts and persecution based on the same inhumane acts were impermissibly cumulative. Assuming the other elements of this offence of ‘other inhumane acts’ were met (eg scale of the offending), it could be an alternative charge where, for example, there is insufficient evidence to show that food supplies to civilians were interrupted as a method of warfare (the war crime of starvation) or in order to discriminate against an identified group (the crime against humanity of persecution).

430

Legal Framework  8.112–8.114 expulsion from homes’.248 In the ICC, genocide has in the past been pleaded based in part upon the denial of humanitarian assistance or food supplies, and in both the ICTY and ICTR it has been recognised that genocide may be committed by creating conditions of life designed to lead to a slow death. 8.111.1 In Al Bashir, Count 3 of the Indictment alleges genocide contrary to Article 6(c), Rome Statute. The particulars state that one of four ways in which the defendant inflicted on the target groups ‘conditions of life calculated to bring about [their] physical destruction in whole or in part’ was by forcing civilians into harsh desert conditions and/or IDP camps and then obstructing the delivery of life sustaining humanitarian assistance to them, subjecting them to malnutrition and a lack of medical care.249 Following an interlocutory appeal by the prosecution, the arrest warrant for President Bashir was ultimately issued in relation to this offence.250 8.111.2 In Akayesu, the ICTR Trial Chamber found that, ‘the expression deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, should be construed as the methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction. [T]he means of deliberate inflicting on the group of conditions of life calculated to bring about its physical destruction, in whole or part, include, inter alia, subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirement’.251 8.112  The ICTR Trial Chambers in Kayishema and Ruzindana and Rutaganda came to the same view.252 The ICTY Trial Chamber in Brđanin held that this could also include the creation of circumstances ‘that would lead to a slow death, such as lack of proper housing, clothing and hygiene’.253 2.  Problems and Deficiencies in the ICL Legal Framework 8.113  We consider that there are three gaps in the ICL framework regarding denial of humanitarian access. 8.114  First, there is no Rome Statute offence of the intentional starvation of civilians in NIAC. This is problematic because the existing crimes applicable in NIAC may not provide adequate protection against denial of humanitarian access. 8.114.1  First, as noted above, there are other war crimes applicable in NIAC that could be used as the basis for prosecution where a denial of humanitarian access leads

248 ICC, Elements of Crimes 3, fn 4. 249 Prosecutor v Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber I, Public Redacted Version of the Prosecutor’s Application under Article 58, ICC-02/05-157-AnxA (14 July 2008), para 172ff. 250 Following the Prosecutor’s appeal, the arrest warrant now covers this count on the Indictment. See Prosecutor  v Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber I, Second Decision on the Prosecutor’s Application for a Warrant of Arrest, ICC-02/05-01/09-94 (12 July 2010). 251 Akayesu (Trial Judgment) (n 235), paras 505–06 (emphasis as in original). 252 Kayishema and Ruzindana (Trial Judgment) (n 244), paras 115–16; The Prosecutor v Georges Anderson Nderubumwe Rutaganda (Trial Judgment and Sentence) ICTR-96-3-T (6 December 1999), para 52. 253 The Prosecutor v Radoslav Brđanin (Trial Judgment) IT-99-36-T (1 September 2004), para 691.

431

8.115  Denial of Humanitarian Access and Assistance to loss of life or pain and suffering. These include murder, torture and cruel treatment. However, there may be some instances – for example, starvation during a siege – in which these crimes cannot be invoked for prosecution. As Bartels has argued, ‘starvation of the civilian population by impeding humanitarian relief cannot be prosecuted as any of those war crimes’ because those crimes cannot be committed against persons, such as those besieged, that are not ‘in the … power of the alleged perpetrator’.254 8.114.2  Second, although there are war crimes applicable in NIAC that do not require the victims to be in the power of the alleged perpetrator, for example directing an attack against a civilian population in Article 8(2)(e)(i), those crimes involve violence. Again, as Bartels observes, ‘this conduct requires attacks – that is, acts of violence – and thus does not cover starvation achieved through the denial of humanitarian assistance, for which the alleged perpetrator need not resort to violence’.255 8.114.3  Third, although the acts could theoretically be prosecuted as crimes against humanity or possibly genocide, ‘securing a conviction for crimes against humanity is not an easy task’256 and genocide ‘has a very high threshold and is hard to prove’.257 See paragraphs 8.106–8.112 above. 8.115  Second, the definition of ‘humanitarian assistance mission’ for the purposes of the Article 8(2)(b)(iii) and Article 8(2)(e)(iii) offences is not defined in the Rome Statute or the Elements of Crimes: 8.115.1  It is unclear whether a necessary characteristic of a ‘humanitarian assistance mission’ for the Article 8(2)(b)(iii) and Article 8(2)(e)(iii) offences is that the mission was operating in a conflict territory with the consent of a relevant party to the conflict. 8.115.2  Whilst (as the ICC Prosecutor found the situation to be in the Gaza Flotilla case)258 a lack of consent may be evidence that a mission has a political rather than exclusively humanitarian objective, we consider that it would be a problem with the legal framework should a lack of consent to the mission necessarily take a relief operation outside the definition of a ‘humanitarian assistance mission’ as a matter of law.259 8.115.3  Although this is a gap in the law which could usefully be clarified, we do not regard this as urgent. This is because even if an attack on a humanitarian mission

254 Rogier Bartels, ‘Denying Humanitarian Access as an International Crime in Times of Non-International Armed Conflict: The Challenges to Prosecute and Some Proposals for the Future’ (2015) 48(3) Israel LR 281, 299–300. 255 ibid, 300–01. 256 ibid, 303. 257 ibid, 305. 258 See (n 225), above. 259 There are at least two reasons for this. First, the circumstances in which it is unlawful for a party to a conflict to refuse consent to humanitarian access by a third party are not clear: see para 8.68. Second, relief activities operating without the consent of the relevant state, where such consent has been unlawfully withheld, may still retain their humanitarian characteristics (assuming all the other necessary characteristics are present: an exclusively humanitarian mission, operating impartially, ie without discrimination and according to need, independently and neutrally). Consider, eg, the humanitarian relief missions operating in Syria after the UNSC authorised the opening of border crossings for the transport of relief supplies and delivery of humanitarian assistance to besieged and hard to reach communities in the face of Syria’s refusal to consent (see para 8.123.2). We do not consider that it could credibly be asserted that these relief activities lacked humanitarian character as a result of the lack of Syrian consent: see, especially, UNSC Res 2165 (n 96), 15th recital and para 2.

432

Legal Framework  8.116 operating without consent from the relevant state did not fall within this offence, it would most likely still amount to an unlawful attack on protected persons (ie civilians) or civilian objects and could be prosecuted on that basis.260 8.116  Third, there is no specific, international law crime of denying humanitarian access in conflicts. The inclusion of a crime of wilfully denying humanitarian assistance was unsuccessfully proposed by the Inter-Agency Standing Committee, which comprises various UN agencies, the Red Cross Movement and other humanitarian organisations, during the negotiations of the Rome Statute.261 Further empirical research, which is beyond the scope of this book, is needed to ascertain whether this does in fact give rise to a significant protection gap. We consider that there may be a protection gap in ICL for the following key reasons and, therefore, that this is an issue that requires further consideration. 8.116.1  No individual criminal liability for unlawfully withholding consent to offers of humanitarian assistance from impartial humanitarian organisations. If states and non-state armed groups unlawfully refuse consent for humanitarian access to civilians in armed conflict (see paragraphs 8.37–8.58 above), this does not, by itself, give rise to individual criminal liability. Accordingly, there is little meaningful accountability for individuals responsible for such a refusal unless certain consequences can be shown to result from it and the necessary intent can be proved (see paragraph 8.105). 8.116.2  Limited scope of the IAC offence of intentionally starving civilians as a method of warfare. This offence is limited in a number of ways: (i) It is only if the denial of humanitarian access relates to a denial of food aid or connected supplies that the offence of using the starvation of civilians as a method of warfare in an IAC (Article 8(2)(b)(xxv), Rome Statute) may be engaged. In other words, this offence is not applicable where humanitarian assistance relating to other supplies indispensable for civilians’ survival (such as shelter and clothing, fuel or electricity supplies), that would not result in starvation, are blocked or otherwise denied. (ii) The offence is a crime of specific intent requiring an accused to have (i) intended to starve civilians, and (ii) done so for the purpose of using it to gain a military advantage.262 An intent to starve civilians is a relatively high threshold, which will not necessarily be made out when food and related deliveries are blocked.

260 As the ICC Prosecutor concluded in relation to the Gaza Flotilla Case: see ICC OTP ‘Situation on Registered Vessels of Comoros, Greece and Cambodia: Article 53(1) Report’ (n 225), para 132. 261 See IASC ‘Communication received from Inter-Agency Standing Committee to the United Nations Diplomatic Conference on Plenipotentiaries on the Establishment of an International Criminal Court, Note by the Secretary-General’ (11 June 1998) UN Doc A/CONF.183/INF.4 Annex para 2. Established in 1992, the IASC is the primary mechanism for inter-agency coordination of humanitarian assistance. See . 262 ICC, Elements of Crimes 31; Bartels (n 254), 292 and fn 48. The ICRC Commentaries to the underlying prohibitions in Art 54, API and Art 14, APII differ slightly. The commentary on Art 54, API states that starvation is prohibited when it is used as ‘a weapon to annihilate or weaken’ (ICRC Commentary on the AP (n 80), para 2090). The commentary on Art 14, APII states that starvation is prohibited ‘when it is used as a weapon to destroy the civilian population’ (ICRC Commentary on the AP (n 80), para 4799). An intent to destroy the civilian population is a higher threshold than an intention simply to weaken it.

433

8.116  Denial of Humanitarian Access and Assistance We  make two observations in this regard. First, the question has been asked whether deliberately blocking some food deliveries but allowing a reduced number based on a calculation of a minimum necessary calorie intake for civilians, as Israel did in respect of food supplies to the Gaza Strip, would amount to this (or indeed any other) offence.263 Second, what is meant by ‘to starve’ is unclear. It is not defined in either the Rome Statute, the Elements of Crimes or the provisions establishing the underlying prohibition in API or APII. The ICRC Commentary in respect of Article 54(1), API and Article 14, APII adopt different definitions. In respect of Article 54, API ‘starvation’ is defined as ‘causing the population to suffer hunger’,264 whereas the commentary to Article 14, APII defines the term as ‘subjecting people to famine, i.e., extreme and general scarcity of food’.265 (iii) It has been suggested that there would be difficulties in prosecuting this offence unless the conduct involved actual attacks on objects indispensable to the survival of the civilian population.266 If that is right, it could rarely be successfully used where food supplies were blocked by, for example, threats of violence, a refusal to consent to such relief operations or a blockade. 8.116.3  The offence of attacking humanitarian personnel and objects is limited to actual attacks of violence and will not cover threats of violence. The Article 8(2)(b)(iii) or 8(2)(e)(iii) war crime of intentionally attacking personnel, installations, material, units or vehicles involved in a humanitarian assistance mission requires a violent attack to have been carried out upon humanitarian personnel or objects (see ­paragraph 8.103.3, above). It will not cover situations in which humanitarian actors are threatened with violence, which causes them to cease or scale back humanitarian operations. 8.116.4  Crimes against humanity have high threshold requirements of widespread and systematic conduct. These are unlikely to be applicable in localised instances of the denial of humanitarian access to civilians unless there is evidence that this was part of a policy to do so for the purpose of forcible transfer, persecution, extermination or genocide (as the case may be) of a civilian group.267 8.116.5  In addition, we consider that there could be an important condemnatory factor in the criminalisation of the wilful denial of humanitarian access that may have practical consequences. While the UNSC may ‘deplore’268 or ‘strongly condemn’269 the denial of humanitarian assistance to children and adults and ‘demand’270 all parties to a conflict to allow unhindered humanitarian access, if such conduct was more clearly 263 Bartels (n 254), 293. 264 ICRC Commentary on the AP (n 80), para 2089. 265 ibid, para 4791. 266 Bartels (n 254), 292. 267 See, eg, Prosecutor v Vujadin Popović, Ljubiša Beara, Drago Nikolić, Radivoje Miletić and Vinko Pandurević (Appeals Chamber Judgment) ICTY-05-88-A (30 January 2015), para 666ff (Miletić’s appeal) regarding the Bosnian Serb policy, ‘Directive 7’, which included reducing the number of permits issued to aid convoys destined for Bosnian Muslim enclaves in order to reduce humanitarian access and, ultimately, force the Bosnian Muslim populations to leave. 268 eg UNSC, ‘Statement by the President of the Security Council’ (9 August 2017) UN Doc S/PRST/2017/14, 1. 269 eg UNSC Res 2225 (18 June 2015) UN Doc S/RES/2225 (2015), para 1. 270 eg UNSC Res 2068 (19 September 2012) UN Doc S/RES/2068 (2012), para 2.

434

Legal Framework  8.117–8.120 prohibited as a war crime and crime against humanity, there would be more pressure upon the international community (i) to acknowledge it as such, (ii) to take positive action to prevent it, and (iii) to adopt measures to hold those responsible accountable. 3.  Suggestions to Improve the ICL Legal Framework 8.117  In the light of the above, we suggest that further consideration is given to the following three points. 8.118  First, consideration should be given to developing the law by recognising, as a war crime during NIAC, the intentional use of starvation of civilians as a method of combat. This could be done by amending the Rome Statute.271 8.119  However, the offence of the intentional starvation of civilians as a method of warfare, whether in IAC or, if enacted, in NIAC, does not and will not provide completely comprehensive coverage of all examples of refusing to consent leading to the denial of humanitarian assistance. This is because the offence does not and would not cover interruptions of necessary relief supplies other than food, for example clothing or shelter designed to prevent deaths or suffering from exposure or hypothermia. However, since the supply of food to civilians is, with water, the most critical form of relief and since the crime of intentional starvation as a method of warfare is already established in IAC: this crime should be recognised in NIAC. Further consideration could then be given to a broader crime of the wilful denial of humanitarian assistance that could be applicable in IAC and NIAC.272 8.120  Second, consideration should be given to clarifying the definition of ‘humanitarian assistance mission’ for the Article 8(2)(b)(iii) and Article 8(2)(e)(iii) offences. This could be considered at an Assembly of States Parties or a Review Conference with a view to a notation in the relevant Elements of Crimes.273 One possible approach is to provide illustrations of ‘humanitarian assistance missions’ that include (i) missions authorised by the UNSC and (ii) relief operations by established humanitarian assistance providers such as UN specialised agencies and programmes, the Red Cross/Red Crescent movement and other humanitarian organisations having observer status with the United Nations General Assembly and their implementing partners, and NGOs participating in a United Nations Humanitarian Response Plan274 or a UN OCHA coordinated ‘Cluster’.275

271 See, eg, the proposal made by Bartels (n 254), 306. The forum for considering this proposed amendment is the annual Assembly of States Parties or at a Review Conference: Bartels, 306, Arts 121(1) and (2), Rome Statute. 272 See para 8.116 and (n 261) above. 273 The notation would be to the second paragraphs of the Elements of Art 2(8)(b)(iii) and Art 2(8)(e)(iii). 274 This list borrows from the text of UNSC Resolution 2317 (2016) para 28, which provides that the asset freezing measures within the UNSC Somalia sanctions programme are not applicable to funds, other financial assets and economic resources used to ensure the delivery of humanitarian assistance in Somalia by the listed humanitarian actors. 275 The UN Office for the Coordination of Humanitarian Affairs adopts a ‘Cluster Approach’ of UN and non-UN humanitarian organisations, to facilitate humanitarian operations in a given country. See .

435

8.121–8.122  Denial of Humanitarian Access and Assistance 8.121  Third, consideration should be given to whether the law should be developed by creating a separate offence of the wilful denial of humanitarian access as a war crime and a crime against humanity. 4.  UNSC Authorised Intervention 8.122  Military intervention. There are very few examples of military intervention authorised by the UNSC for the primary purpose of securing humanitarian access or preventing the denial of humanitarian access to civilians.276 This reflects the fact that humanitarian intervention is a controversial and legally complex issue with a number of distinct applications, only one of which is intervention where a state or a non-state armed group denies humanitarian access.277 In this book we do not attempt to address the issue in detail. Instead, we observe that humanitarian intervention authorised by the UNSC may be one consequence where a party to armed conflict refuses to consent to humanitarian access or blocks such access where consent has been given: 8.122.1  Significant work is done, both within the UN and by others, analysing and promoting the implementation of the concepts of Responsibility to Protect (R2P) and the Protection of Civilians (POC) in Armed Conflict, which underpin this area.278 8.122.2  R2P protects populations from genocide, war crimes, ethnic cleansing and crimes against humanity (collectively ‘atrocity crimes’). It comprises three pillars: (i) states have primary responsibility for protecting their populations from atrocity crimes; (ii) the international community has responsibility to encourage and help states in the exercise of their primary responsibility and support the UN in an ‘early warning’ role; and (iii) the international community, through the UN, also has responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VII of the UN Charter, to help protect populations from atrocity crimes. Should peaceful means be inadequate, as a last resort, the UNSC, in accordance with the UN Charter, may authorise coercive action, including military intervention by the international community, without the consent of the state 276 For an historic example, see UNSC Res 794 (3 December 1992) UN Doc S/RES/794 (1992), para 10: ‘Acting under Chapter VII of the Charter of the United Nations, [the UNSC] authorizes the Secretary-General and Member States  … to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia’. In contrast, in relation to Darfur, whilst the UNSC condemned the Sudanese government’s denial of access to humanitarian organisations (UNSC Res 1556 (24 July 2004) UN Doc S/RES/1556 (2004)), imposed non-forcible measures (UNSC Res 1591 (29 March 2005) UN Doc S/RES/1591 (2005)), and referred the situation to the ICC (UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593 (2005)), it did not formally provide the African Union’s limited mission with a formal mandate under Chapter VII of the UN Charter and it took three years until the members of the UNSC were prepared to adopt a resolution providing for a hybrid AU/UN peacekeeping force (UNSC Res 1769 (31 July 2007 UN Doc S/RES/1769 (2007)). 277 International action in response to conflicts may itself also negatively impact access, see, eg, paras 8.28, 8.75, 8.147.2 and (n 156). 278 The UN Secretary-General is at the forefront of this work. On R2P see, eg, UNSC, ‘Implementing the Responsibility to Protect: Accountability for Prevention – Report of the Secretary-General’ (10 August 2017) UN Doc A/71/1016 – S/2017/556. On POC, see eg, UNSG, ‘Report of the Secretary-General on the protection of civilians in armed conflict (10 May 2017) (n 31). See also, eg, the work of: the UN Office on Genocide Prevention and the Responsibility to Protect at ; and the UN Department of Peacekeeping Operations (DPKO) (see United Nations Peacekeeping, ‘Protection of civilians’ (United Nations Peacekeeping), available at ).

436

Legal Framework  8.123 concerned, to protect a population from the risk of atrocity crimes.279 The application of R2P is not limited to situations of armed conflict. 8.122.3  POC applies to many different actors including the UNSC, the SecretaryGeneral and the UN Secretariat, peacekeeping forces and humanitarian organisations.280 Its overriding objective is the protection of civilians in armed conflict, although arguably that may include a broad construction of ‘armed conflict’ which includes ‘situations of mass violence’.281 It is not limited to protecting civilians only from atrocity crimes. Peacekeeping forces operate with the consent of the state concerned. UNSC mandates for peacekeeping operations may include the protection of humanitarian personnel and objects in order to facilitate humanitarian access.282 8.122.4  For the UNSC to authorise forcible or non-forcible coercive measures under Chapter VII of the UN Charter, it must find that the situation constitutes a threat to international peace and security.283 This – and the need for political unity on an appropriate response – may explain, at least in part, why there are so few instances of the UNSC having authorised intervention in situations where there has been denial of humanitarian access to civilians. 8.123  Non-forcible action under Chapter VII. The UNSC can adopt non-forcible measures under Chapter VII of the UN Charter (Article 41). The UNSC has shown a greater willingness to adopt such measures, in a situation amounting to a threat to international peace and security, where there has been evidence of the deliberate obstruction of humanitarian assistance. The UNSC’s non-forcible action can be considered as falling into two categories: first, punitive measures such as sanctions, aimed at pressuring entities with a view to ensuring compliance, and second, positive measures to facilitate humanitarian access. 8.123.1  Sanctions: As discussed below (see paragraphs 8.131.4–8.131.7), in at least six UNSC sanctions regimes, obstructing humanitarian access and/or attacking humanitarian workers is one of the bases for applying sanctions against individuals or entities. The application of sanctions against individuals, entities or a state itself is, therefore, a possible consequence of a denial of humanitarian access. 8.123.2  Measures to facilitate humanitarian access: one recent example occurred in 2014. On finding that the conflict and humanitarian situation in Syria constitutes a threat to international peace and security, the UNSC used its powers under 279 See UNGA, ‘Resolution adopted by the General Assembly: 2005 World Summit Outcome’ (24 October 2005), UN Doc A/RES/60/1 and UNGA, ‘Implementing the responsibility to protect – Report of the SecretaryGeneral’ (12 January 2009) UN Doc A/63/677. 280 Hugh Breakey et al, Enhancing Protection Capacity: Policy Guide to the Responsibility to Protect and the Protection of Civilians in Armed Conflicts (Nathan, Institute for Ethics, Governance & Law, 2012) 8. 281 ibid, 14. 282 For example, (i) Democratic Republic of the Congo: UNSC Res 2348 (31 March 2017) UN Doc S/RES/2348 (2017), para 34(i)(a); (ii) Mali: UNSC Res 2364 (29 June 2017) UN Doc S/RES/2364 (2017), para 20(g); (iii) Somalia: UNSC Res 2372 (30 August 2017) UN Doc S/RES/2372, para 8(d). In each of these resolutions, the UNSC also demands that all parties allow and facilitate humanitarian access and the timely delivery of humanitarian assistance: UN SC Res 2348 (2017), para 41; UN SC Res 2364 (2017), para 39; UN SC Res 2372 (2017), para 50. 283 Art 39, UN Charter: ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.’

437

8.124  Denial of Humanitarian Access and Assistance Chapter VII, UN Charter, to ensure the delivery of humanitarian aid across designated border crossings into Syria in the absence of consent by the Syrian government.284 In the preamble to Resolution 2165, the UNSC declared that it was ‘[d]eeply disturbed by the continued, arbitrary and unjustified withholding of consent to relief operations’ and was ‘noting’ – but not specifically adopting or endorsing – ‘the United Nations Secretary-General’s view that arbitrarily withholding consent for the opening of all relevant border crossings is a violation of international humanitarian law and an act of non-compliance with resolution 2139 (2014)’.285 This action is the only recent example in which the UNSC has authorised humanitarian access in the absence of state consent. It is the only example in which the UNSC has done so without also authorising military intervention.286 8.123.3  Finally, in this context, we note that in 2015, in respect of Yemen, the UNSC authorised the Secretary-General to take measures to facilitate humanitarian access and assistance to civilians.287 Pursuant to this mandate the Secretary-General established the UN Verification and Inspection Mechanism to supervise the delivery of commercial imports and bilateral assistance through non-Government held ports. This action was not in response to the state’s refusal to consent to humanitarian access but rather, to expedite legitimate imports of critical commodities such as food, fuel and medicine,288 that were (and remain) subject to severe import restrictions. These restrictions were due mainly to the government’s external coalition partners’ naval blockade and the failure to issue timely permits authorising the delivery of civilian supplies to areas under the control of opposing parties in the conflict.289 IV.  ACCOUNTABILITY MECHANISMS

8.124  For a general overview of accountability mechanisms see Chapter 2. In the sections below we set out illustrations of the ways in which existing accountability 284 UNSC Res 2165 (14 July 2014), UN Doc S/RES/2165 (2014), para 2. This authority was renewed in UNSC Res 2191 (17 December 2014) UN Doc S/RES/2191 (2014), para 2; UNSC Res 2258 (n 96), para 2; and UNSC Res 2332 (21 December 2016) UN Doc S/RES/2332 (2016), para 2. 285 ibid, UNSCR 2165 preamble (15th recital). 286 This is in contrast to UNSC Res 794 (1992) (n 276), by which the UNSC authorised military intervention in Somalia in order to ‘establish … a secure environment for humanitarian relief operations …’. 287 UNSC Res 2216 (14 April 2015), UN Doc S/RES/2216 (2015), para 12. 288 UNSC, ‘Briefing by the Under Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator’ (3 March 2016), UN Doc S/PV.7641, 3. According to the Panel of Experts established under the UNSC Yemen sanctions committee, the UNVIM has a dual purpose: to police the UN arms embargo and facilitate the delivery of civilian goods to relieve the suffering of the Yemeni population. UNSC, ‘Final Report of the Panel of Experts on Yemen Established pursuant to Resolution 2140 (2014)’ (January 2016) UN Doc S/2016/73, para 173. 289 UN OHCHR, ‘Lift blockade of Yemen to stop “catastrophe” of millions facing starvation, says UN expert’ (12 April 2017), available at . For statements by NGOs, see, eg, Save The Children ‘Saudi Delays to Yemen Aid Killing Children’ (1 March 2017), available at ; Human Rights Watch (HRW), ‘Bombing Businesses. Saudi Coalition Airstrikes on Yemen’s Civilian Economic Structures’ (2016) 11, available at .

438

Accountability Mechanisms  8.125–8.127 ­ echanisms have been used in relation to denial of humanitarian access, organised along m the spectrum explained in Chapter 2, at paragraph 2.92, and grouped by reference to IHL, ICL and IHRL. We then go on to consider specific problems with those existing mechanisms as they arise in the context of this Chapter and, finally, make suggestions for improvement. A.  Application of Accountability Mechanisms 1.  IHL Accountability Mechanisms Adjudicative Accountability Mechanisms 8.125  Domestic courts. As we have noted elsewhere in this book, domestic courts have the strongest enforcement powers but a review of domestic case law and the extent to which domestic legal systems have implemented related IHL, ICL or IHRL norms is beyond the scope of this book: see further Chapters 2 and 9. 8.126  We have identified a limited number of relevant cases in which domestic courts have considered IHL and the denial of humanitarian access other than in the context of criminal law. Two examples follow. 8.127 In Physicians for Human Rights v Prime Minister of Israel, judicial review ­petitions were brought regarding the humanitarian situation in Gaza following ‘Operation Cast Lead’ in 2008. 8.127.1  The Israeli High Court confirmed that the Israeli state was obliged to allow free passage of humanitarian relief to the civilian population of Gaza, identifying specifically: (i) humanitarian medical supplies, essential foodstuffs and clothing for children, pregnant women and mothers at the earliest opportunity, subject to certain restrictions (referring to Article 23, GCIV); (ii) items essential for the civilian population, at the earliest opportunity and without delay (referring to Article 70, API); and (iii) allowing civilians to contact the Red Cross and similar international organisations to request assistance (referring to Article 30, GCIV). 8.127.2  The Court summarised the legal position as follows: … in that state [of conflict], as long as Israel controls the transfer of essentials and the supply of humanitarian needs to the Gaza Strip, it is bound by the obligations enshrined in international humanitarian law, which require it to allow the civilian population access, to – inter alia – medical facilities, food and water, as well as additional humanitarian items that are necessary for the maintenance of civilian life.290

8.127.3  Israel did not dispute the existence of these obligations upon it as a matter of IHL.291

290 Physicians for Human Rights v Prime Minister of Israel, HCJ 201/09, 248/09; ILDC 1213 (IL 2009), para 27 (emphasis as in original). 291 ibid, paras 17 and 22.

439

8.128–8.129  Denial of Humanitarian Access and Assistance 8.127.4  The Court ultimately found that, in the circumstances, the Israeli Defence Forces had taken the necessary steps under IHL and had been prepared to carry out its obligations.292 It therefore refused the petitions.293 8.128 In Minister of Public Safety and Emergency Preparedness v XXXX,294 the Minister successfully submitted that Mr XXXX should not be admitted to Canada because there were reasonable grounds to believe that (i) he engaged in terrorism as a member of the Eritrean People’s Liberation Front, an organisation that engaged in terrorism,295 and (ii) he had been complicit in crimes against humanity. On the second ground, the Immigration and Refugee Board held that an attack on a famine relief convoy, which had destroyed 450 tonnes of wheat capable of feeding 45,000 people for a month, constituted a crime against humanity of ‘an inhumane act by withholding food, the most basic necessity of life’ as did the forcible removal of Ethiopian civilians resulting in large numbers dying from starvation or illness in transit camps.296 The Board ordered Mr XXXX’s removal from Canada.297 8.129  International courts: the ICJ. The ICJ considered humanitarian assistance in armed conflict in Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States)298 and the Genocide Convention Case (Bosnia and Herzegovina v Serbia and Montenegro).299 8.129.1 In Nicaragua the ICJ considered the international law principle of non-­intervention in the internal affairs of states in the context of US funding for ‘humanitarian assistance’ to the non-state armed group ‘the Contras’, which was engaged in a NIAC with the Government of Nicaragua. The ICJ held, ‘There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law’.300 The ICJ went on to consider the necessary characteristics of such humanitarian aid. Referring to the principles of the Red Cross, the ICJ held: An essential feature of truly humanitarian aid is that it is given ‘without discrimination’ of any kind. In the view of the Court, if the provision of ‘humanitarian assistance’ is to escape condemnation as an intervention in the internal affairs of Nicaragua, not only must it be limited to the purposes hallowed in the practice of the Red Cross, namely ‘to prevent and alleviate human suffering’, and ‘to protect life and health and to ensure respect for the

292 ibid, para 28. 293 ibid, para 29. 294 Minister of Public Safety and Emergency Preparedness v XXXX, 2011 CanLII 93156 (CA IRB). 295 ibid, para 150. 296 ibid, para 196–98. 297 ibid, para 199. 298 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) (n 77). 299 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits: Judgment) [2007] ICJ Rep 43. 300 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) (n 77), para 242.

440

Accountability Mechanisms  8.130–8.131 human being’; it must also, and above all, be given without discrimination to all in need in Nicaragua, not merely to the contras and their dependents.301

8.129.2  In the Genocide Convention Case the ICJ considered the mental element (mens rea) of the crime of genocide in the context of the denial of humanitarian assistance and state responsibility.302 8.130  Treaty bodies. The CRC Committee and the ACRWC Committee could be called upon to consider rules of IHL, including denial of humanitarian access, if claims were brought alleging violations of Article 38, CRC and Article 22, ACRWC. However, to date, no such claims have been determined. Other Accountability Mechanisms 8.131  UNSC. There are two principal ways in which the UNSC has contributed to accountability for IHL violations regarding children in armed conflict. The first is by expressions of concern and condemnation of such violations. The second is by taking action under Chapter VII, UN Charter, including the imposition of sanctions. We consider these in turn below. The UNSC Working Group on Children and Armed Conflict has also considered the problem of humanitarian access for children in conflict zones.303 8.131.1  Expression of concern and condemnation of violations of IHL regarding children. The UNSC has condemned the denial of humanitarian access to civilians in armed conflict in numerous resolutions. In some instances, the UNSC has identified this conduct as a breach of IHL; in more limited instances it has gone further and alluded to the fact that it may amount to a war crime by stating that ‘those who commit or order the commission of such acts will be held individually responsible’.304 8.131.2  In its 2015 Resolution on Children in Conflict, the UNSC, ‘strongly condemn[ed] all … denial of humanitarian access by parties to armed conflict … and demand[ed] that all relevant parties immediately put an end to such practices and take special measures to protect children.’305 8.131.3  In August 2017, the President of the UNSC issued a statement concerning the ‘unprecedented level of global humanitarian needs and the threat of famine presently facing more than 20 million people in Yemen, Somalia, South Sudan and northeast Nigeria’, stating that armed conflict and violence ‘have devastating humanitarian 301 ibid, para 243. The finding of the ICJ was relied upon by the ICC Prosecutor in her decision not to bring a prosecution in respect of the Gaza Flotilla case: see para 8.103.5. 302 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits: Judgment) (n 299), para 328; see also para 354. 303 See, eg, UNSC, ‘Public Statement of Security Council Working Group on Children and Armed Conflict’ (26 August 2016) Press Release SC/12492, which, addressing all armed groups operating in Iraq, condemned ‘attacks against humanitarian personnel and facilities, and stress[ed] that the denial of humanitarian assistance, including by deliberately impeding humanitarian access, in particular to those trapped in besieged areas, can constitute a breach of international law and have a serious impact on children’. 304 See, eg, UNSC Res 787 (16 November 1992) UN Doc S/RES/787 (1992), para 7; UNSC Res 794 (n 276), para 5; and, for similar wording, see UNSCR 2139 (n 96) (2014), para 13. 305 UNSC Res 2225 (n 269), para 1. For an early example condemning the denial of humanitarian assistance to children in armed conflict and commending particular measures to enhance humanitarian access, see UNSC Res 1261 (30 August 1999) UN Doc S/RES/1261, paras 8 and 11.

441

8.131  Denial of Humanitarian Access and Assistance consequences and hinder an effective humanitarian response in the short, medium and long term and are therefore a major cause of famine’ in these four countries, and noting that this food scarcity caused ‘increased vulnerability’ of children (amongst other groups).306 The Statement continued: ‘the Security Council deplores that  … certain parties have failed to ensure unfettered and sustained access for deliveries of vital food assistance as well as other forms of humanitarian aid’.307 8.131.4  Sanctions. Since the establishment of the MRM in 2005, the UNSC has expressed a general intention to consider using targeted sanctions against parties identified by the Secretary-General as being ‘in violation of applicable international law relating to the rights and protection of children in armed conflict’308 and has specifically referred to the possibility of adopting sanctions against ‘persistent perpetrators’ of violations and abuses against children in armed conflict.309 In 2011 and 2012, the UNSC adopted Resolutions in which it expressed an intention – when establishing, modifying, or renewing the relevant sanctions regimes – to consider including measures against parties that violate international law relating to the rights and protection of children in armed conflict.310 8.131.5  Sanctions: designation/listing criteria. We are aware of at least six operating UN sanctions regimes in which individuals and entities can be listed (ie have sanctions applied against them) specifically because they have obstructed humanitarian access to civilians and/or participated in attacks on humanitarian personnel: (i) Democratic Republic of Congo (DRC) (since 2008);311 (ii) Somalia/Eritrea (since 2008);312 (iii) South Sudan (since 2015);313 (iv) Central African Republic (CAR) (since 2014);314 (v) Yemen (since 2015);315 and (vi) Mali (since 2017).316 The Yemen regime is narrower than the other regimes noted above; it requires that ‘obstructing the delivery of humanitarian assistance in Yemen or access to or distribution of humanitarian assistance in Yemen’ ‘threaten the peace, security or stability of Yemen’, and recognises only that such acts ‘may’ do so.317 306 UNSC, ‘Statement by the President of the Security Council’ (n 268), 1. 307 ibid. 308 UNSC Res 1612 (26 July 2005) UN Doc S/RES/1612 (2005), para 9. See Ch 3 for references to subsequent UNSC Presidential Statements and Resolutions. 309 See eg UNSC Res 2068 (n 270), para 3; UNSC Res 2143 (7 March 2014) UN Doc S/RES/2143 (2014), para 10. 310 UNSC Res 1998 (12 July 2011) UN Doc S/RES/1998 (2011), para 9; UNSC Res 2068 (n 270). See earlier, UNSC, ‘Statement by the President of the Security Council’ (16 June 2010) UN Doc S/PRST/2010/10. 311 UNSC Res 1857 (22 December 2008) UN Doc S/RES/1857 (2008), para 4(f) ; UNSC Res 2293 (23 June 2016) UN Doc S/RES/2293 (2016), para 7(f). 312 UNSC Res 1844 (20 November 2008) UN Doc S/RES/1844 (2008), para 8(c); UNSC Res 2093 (6 March 2013) UN Doc S/RES/2093 (2013), para 43(c). 313 UNSC Res 2206 (3 March 2015) UN Doc S/RES/2206 (2015), para 7(f)–(g): designation criteria include (i) obstructing humanitarian missions or the delivery or distribution of or access to humanitarian assistance and (ii) attacking humanitarian personnel, respectively. 314 UNSC Res 2134 (28 January 2014) UN Doc S/RES/2134 (2014), para 37(e); UNSC Resolution 2339 (27 January 2017) UN Doc S/RES/2339 (2017), para 17(f). Attacks on humanitarian personnel is not a specified designation criterion but would be included as an attack on civilians, which is a designation criterion. 315 UNSC Res 2216 (n 287), para 19. 316 UNSC Res 2374 (5 September 2017) UN Doc S/RES/2374 (2017), para 8(e). 317 UNSC Res 2216 (n 287), para 19: obstructing the delivery of humanitarian assistance to Yemen or access to or distribution of humanitarian assistance in Yemen may threaten the peace, security or stability of Yemen, which is a designation criterion under UNSC Res 2140 (26 February 2014) UN Doc S/RES/2140 (2014), para 18.

442

Accountability Mechanisms  8.131 8.131.6  Other sanctions regimes permit (or permitted) designation (ie listing) on the basis of violations of IHL or IHRL, thereby, in principle, encompassing violations arising from the denial of humanitarian access. For example, Sudan (since 2005);318 Côte d’Ivoire (from 2011 to 2016).319 The precise designation criteria vary: for example, whereas the Côte d’Ivoire regime is limited to ‘serious’ violations of IHL, the Sudan regime applies to violations of IHL generally. 8.131.7  Sanctions: implementation. A comprehensive assessment of the listing by the various sanctions committees is beyond the scope of this book. We note the following points below by way of illustration of the way in which six of the sanctions regimes have operated in practice.320 (i) DRC. In 2010, the DRC Sanctions Committee listed one individual,321 who remains listed, for, amongst other things, obstructing humanitarian access. (ii) Somalia/Eritrea. The Sanctions Committee has not listed any individuals for obstructing the delivery of humanitarian assistance to Somalia or access to or distribution of humanitarian assistance in Somalia but the entity Al-Shabaab is listed for this reason.322 Since 2010, the Committee has received periodic reports from the UN Secretariat on the humanitarian situation in Somalia and any impediments to the delivery of humanitarian assistance to civilians.323 (iii) South Sudan. The Sanctions Committee has not listed any individual or entity for the obstruction of humanitarian assistance. (iv) CAR. One individual is currently listed for, amongst other things, obstructing the delivery of humanitarian assistance to the CAR or access to or distribution of humanitarian assistance in the CAR.324 318 UNSC Res 1591 (n 276), para 3(c) referring to individuals who ‘commit violations of international humanitarian or human rights law or other atrocities’. 319 UNSC Res 1975 (30 March 2011) UN Doc S/RES/1975 (2011), para 12, referring to individuals who ‘commit serious violations of human rights and international humanitarian law’. Note that the earlier designation criteria referred to individuals ‘responsible’ for such violations: see UNSC Res 1572 (15 November 2004) UN Doc S/RES/1572 (2004), para 9. 320 The position in respect of each sanctions regime is as at 5 September 2017 unless otherwise stated. 321 See Security Council Committee Established Pursuant to Resolution 1533 (2004) Concerning the Democratic Republic of the Congo; ‘Narrative Summaries of Reasons for Listing: CDi.031 – Innocent Zimurinda’ (Security Council Committee Established Pursuant to Resolution 1533 (2004) Concerning the Democratic Republic of the Congo, 29 October 2014), available at . Innocent Zimurinda was listed on 1 December 2010 for, inter alia, denying humanitarian access to the UN Mission in the Congo to screen his troops to remove child soldiers. 322 Security Council Committee Pursuant to Resolutions 751 (1992) and 1907 (2009) Concerning Somalia and Eritrea, ‘Narrative Summaries or Reasons for Listing: SOe.001 – Al-Shabaab’ (Security Council Committee Pursuant to Resolutions 751 (1992) and 1907 (2009) Concerning Somalia and Eritrea, 29 October 2014), available at . 323 UNSC Res 1916 (19 March 2010) UN Doc S/RES/1916 (2010), para 11. The first report is UNSC, ‘Report of the United Nations Resident and Humanitarian Coordinator for Somalia’ (13 July 2010) UN Doc S/2010/372. The most recent report submitted in September 2016 was pursuant to UNSC Resolution 2244, para 24 (see n 156). 324 Security Council Committee Established Pursuant to Resolution 2127 (2013) Concerning the Central African Republic, ‘Narrative Summaries of Reasons for Listing: CFi.005 – Habib Soussou’ (Security Council Committee Established Pursuant to Resolution 2127 (2013) Concerning the Central African Republic¸ 20 August 2015), available at .

443

8.132–8.133  Denial of Humanitarian Access and Assistance (v) Yemen. No individuals or entities have been listed for obstructing humanitarian access and thereby threatening the peace, security or stability of Yemen. (vi) Mali. No individuals or entities have been listed. 8.131.8  Non-forcible action under Chapter VII, UN Charter (other than sanctions): the UNSC has taken some positive action in response to particular situations. As noted above (see paragraph 8.123.2), on finding that the conflict and humanitarian situation in Syria constitutes a threat to international peace and security, the UNSC used its powers under Chapter VII, UN Charter, to authorise the delivery of humanitarian aid across designated border crossings into Syria in the absence of consent by the Syrian government.325 In respect of Yemen, see paragraph 8.123.3 above. 8.131.9  As discussed at paragraph 8.75.1 above, the preambles to UNSC Resolutions establishing or extending UN sanctions regimes often note that the application of sanctions must be in accordance with international law, including IHL and IHRL. In resolutions on children and armed conflict, the UNSC has stated that it will consider the impact on children when adopting non-forcible measures under Article 41, UN Charter (for example, economic sanctions) in order to minimise such impact.326 8.132  MRM. Although the denial of humanitarian access is one of the six grave violations identified by the Secretary-General,327 it is not currently a trigger for listing parties in the annexes to the Secretary-General’s annual report (for the consequences of this, see paragraph 8.133).328 The MRM has collected information on instances of the denial of humanitarian access in those countries in which the MRM is established. Since 2012, there is incomplete information on the number of instances in which humanitarian access to children was denied. The information is provided only for some countries and for some years. Only in two instances (Sudan, 2016 and CAR, 2013) was any information given as to the numbers of children affected by the denial of humanitarian assistance. 8.133  The denial of humanitarian access is the only one of the six grave violations that is not a trigger violation for listing of a party in the annexes of the Secretary General’s Annual Report on children and armed conflict. This means that although the SecretaryGeneral may identify parties responsible for denying humanitarian access to children,

325 For an early example, see UNSC Res 794 (n 276), para 10: ‘Acting under Chapter VII [the UNSC] authorizes the Secretary-General and Member States … to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia’. 326 See, eg, UNSC Res 1261 (n 305), para 17(c); UNSC Res 1379 (20 November 2001) UN Doc S/RES/1379 (2001), para 7. 327 See Office of the Special Representative on Children and Armed Conflict, ‘Working Paper No 1 – The Six Grave Violations Against Children During Armed Conflict: The Legal Foundation’ (Updated edn, Office of the Special Representative of the Secretary-General, New York November 2013) 9. 328 See Akande and Gillard (n 103), 131, where the authors consider that the fact that denial of humanitarian access is not a trigger for listing ‘is a reflection of the difficulty of determining whether denial of access in a particular situation constitutes a violation of IHL. Looking beyond purely legal considerations  … the noninclusion of the access-related violation also reflects the concerns of operational humanitarian organisations about politicisation of access. While naming and shaming parties for the other five grave violations may lead them to improve compliance, those who negotiate access fear that adopting such an approach to parties to an armed conflict that impede relief operations may be counterproductive to their negotiations.’ The authors expand upon this at 133–34.

444

Accountability Mechanisms  8.134 they are not subject to the heightened ‘naming and shaming’ of being listed (unless responsible for another trigger violation).329 Consequently, neither unlisted parties nor parties listed for other violations are required to produce action plans designed to address the denial of humanitarian access to children.330 Action plans are a useful tool by which the UNSC Working Group on Children and Armed Conflict can facilitate child protection initiatives but this tool is not currently available to address this grave violation.331 8.134  UNGA. The UNGA has a long history of protecting subsistence rights in armed conflict. For example: 8.134.1  In 1974, it adopted the Declaration on the Protection of Women and Children in Emergency and Armed Conflict, which states that women and children shall not be deprived of their subsistence rights in armed conflict.332 8.134.2  The 1991 UNGA ‘Guiding Principles of Humanitarian Assistance’ are applicable to conflict and non-conflict emergencies.333 They focus on the delivery of aid by UN agencies; affirm the humanitarian principles of humanity, neutrality and impartiality; and emphasise the importance of state sovereignty and the principle of non-intervention under the UN Charter (when stating that humanitarian assistance should be provided with the consent of the affected country). 8.134.3  The 1991 Guiding Principles were considered again in 2003, in which, amongst other things, the principle of independence was added to the humanitarian principles.334 8.134.4  Building upon its work in 1991 and 2003, in 2013, the UNGA adopted Resolution 67/87 ‘Strengthening the Coordination of Emergency Humanitarian Assistance of the United Nations’.335 Amongst other things, this Resolution reaffirmed the obligation of all parties to an armed conflict to protect civilians under IHL, ‘invite[d] States to promote a culture of protection’336 towards children, and called upon all states and parties in complex humanitarian emergencies to cooperate fully with the UN and other humanitarian agencies and organisations to ensure safe and unhindered access of humanitarian personnel and delivery of supplies and equipment.337

329 See (n 328) above and the suggestion that ‘naming and shaming’ in this context may be counterproductive. It is difficult to evaluate this suggestion without further analysis which addresses, eg, what it is that distinguishes denial of humanitarian access from the other grave violations in terms of the consequences of ‘naming and shaming’ and the imposition of sanctions. 330 UNSC Res 1539 (22 April 2004) UN Doc S/RES/1539, para 5 called upon parties to create concrete, timebound action plans to halt recruitment and use of children by parties to conflicts. As the list of trigger violations expanded the actions plans were also expanded to cover those violations. 331 We note the reservations concerning the politicisation of humanitarian access. See (n 328) above. 332 UNGA Res 3318 (XXIX) (14 December 1974) UN Doc A/RES/3318(XXIX) (Declaration on the Protection of Women and Children in Emergency and Armed Conflict), para 6. 333 Guiding Principles of Humanitarian Assistance (n 68). 334 UNGA Res 58/114 (n 76). 335 UNGA Res 67/87 (26 March 2013) UN Doc A/RES/67/87 (Strengthening of the coordination of emergency humanitarian assistance of the United Nations). 336 ibid, para 33. 337 ibid, paras 36–37. See further, OCHA, ‘Guiding Principles on Internal Displacement’ (n 84).

445

8.135  Denial of Humanitarian Access and Assistance 8.134.5  In 2015, the UNGA adopted four general humanitarian-focussed resolutions, including Resolution 70/104 on the ‘Safety and Security of Humanitarian Personnel and Protection of United Nations Personnel’.338 8.135  Secretary-General’s Annual Reports. A number of the Secretary-General’s annual reports have condemned the denial of humanitarian assistance to children in armed conflict. We note the following from the Secretary-General’s 2016 and 2017 annual reports. 8.135.1  The 2016 annual report expressed concern at the ever-growing number of children displaced by armed conflict;339 and 8.135.2  It also reported as follows on countries which are on the UNSC’s agenda: (i) the numbers of incidents of the denial of humanitarian access in Afghanistan;340 (ii) systemic impediments to humanitarian access, often for financial gain, in CAR;341 (iii) denial of humanitarian access and intimidation and direct attacks upon humanitarian personnel in DRC;342 (iv) the abduction of Libyan humanitarian workers;343 (v) targeted attacks on humanitarian personnel and facilities leading to a disruption in the delivery of aid in Mali;344 (vi) a reduction in government consent for humanitarian access to particular areas in Myanmar;345 (vii) the situation in Somalia in which ‘Humanitarian access to children remained extremely challenging’, with denials of access, the targeting of UN staff and the killing of 17 humanitarian workers during the year;346 (viii) attacks on personnel and the destruction of compounds and interference with aid deliveries in South Sudan;347 (ix) using siege, starvation and deliberately cutting water supplies as tactics of war, preventing immunisation programmes, attacking humanitarian facilities and attacking and threatening humanitarian personnel in Syria;348 and 338 UNGA Res 70/104 (28 December 2015) UN Doc A/RES/70/104 (2015) (Safety and security of humanitarian personnel and protection of United Nations personnel), in which, amongst other things the UNGA condemned the alarming rise in the number of attacks on humanitarian personnel. The other humanitarian focused resolutions were UNGA Res 70/106 (28 December 2015) UN Doc A/RES/70/106 (Strengthening of the coordination of emergency humanitarian assistance of the United Nations) and UNGA Res 70/105 (28 December 2015) UN Doc A/RES/70/105 (Participation of volunteers, ‘White Helmets’, in the activities of the United Nations in the field of humanitarian relief, rehabilitation and technical cooperation for development). 339 UNGA, ‘Children and armed conflict: Report of the Secretary General’ (20 April 2016) UN Doc A/70/836-S/2016/360, para 17. 340 ibid, para 30. 341 ibid, para 40. 342 ibid, para 52. 343 ibid, para 91. 344 ibid, para 98. 345 ibid, para 107. 346 ibid, para 119. 347 ibid, para 129. 348 ibid, para 162.

446

Accountability Mechanisms  8.135 (x)

the severe restrictions on humanitarian access imposed by parties to the conflict in Yemen, though obstacles to the delivery of aid, restrictions on the entry of humanitarian personnel and threats and violence against personnel.349

8.135.3  The 2017 Report commented on the ‘troubling trend’ of the denial of humanitarian access to children in certain contexts, describing such denial as ‘a deeply troubling issue that compounds the direct impact of hostilities and has devastating consequences for children, particularly in their formative stages’.350 8.135.4  It reported as follows on countries which are on the UNSC’s agenda: (i) the number of reported incidents of denial of humanitarian access in ­Afghanistan;351 (ii) the number of incidents of denial of humanitarian access, including through killing, looting and threats to humanitarian workers in CAR;352 (iii) intimidation, kidnapping and killing of humanitarian workers in DRC;353 (iv) the denial of humanitarian access to children in Iraq, including denial of access to medical assistance;354 (v) an incident of denial of humanitarian access in Libya;355 (vi) incidents of humanitarian access being denied through armed robbery, carjacking and kidnapping of humanitarian workers in Mali, where at least two entities were forced to temporarily suspend their humanitarian programmes;356 (vii) a significant decrease in humanitarian access to conflict-affected areas in ­Myanmar, including the suspension in October 2017 of all access to Rakhine State;357 (viii) a number of incidents of denial of humanitarian access in Somalia, including theft of child nutrition products from an aid truck;358 (ix) a large number of incidents of denial of humanitarian access in South Sudan – almost twice as many as the previous year – including an incident in which humanitarian workers were fired at when attempting to reach populations in need;359 (x) denial of humanitarian access through attacks on humanitarian workers and bureaucratic constraints and restriction of movement in Sudan;360

349 ibid, para 174. 350 UNGA, ‘Children and armed conflict: Report of the Secretary General (24 August 2017) UN Doc A/72/361-S/2017/821, para 10. 351 ibid, para 32. 352 ibid, para 45. 353 ibid, para 70. 354 ibid, para 83. 355 ibid, para 109. 356 ibid, para 119. 357 ibid, para 130. 358 ibid, para 141. 359 ibid, para 152. 360 ibid, para 161.

447

8.136–8.139  Denial of Humanitarian Access and Assistance (xi) deliberate denial of humanitarian services, attacks on humanitarian facilities and related personnel and acts of besiegement in Syria361 and (xii) bureaucratic restraints and restriction of movement, violence against humanitarian workers, assets and facilitites and interference with implementation of humanitarian activities in Yemen.362 8.136  Special Representative for Children and Armed Conflict. No global campaign has yet been initiated by the Special Representative on Children and Armed Conflict in ­relation to the issue of the denial of humanitarian assistance to children. 8.137  UNICEF. Established in 1946 to provide essential humanitarian assistance to ­children, UNICEF’s remit now is far broader than its original operational role. UNICEF has been pivotal in promoting children’s rights to healthcare, shelter and good nutrition as well as protection and education. It seeks to raise awareness of the denial of humanitarian access to children and its consequences, as well as to mitigate them.363 8.138  Miscellaneous state action. A review of accountability initiatives by states acting other than in the UN setting is beyond the scope of this book. We note, however, that in addition to implementing non-forcible measures required by the UNSC exercising its Chapter VII powers (see above, at paragraph 8.123), states also impose sanctions against those in breach of IHL, whether at a national, or regional, level. Thus, there are examples of states unilaterally, and in partnership with other states, imposing sanctions on those responsible for blocking humanitarian access to civilians in conflict. For example, the EU sanctions in respect of Syria are part of the EU Strategy on Syria adopted by the Council of the EU.364 That Strategy called for ‘full unhindered sustainable countrywide humanitarian access’, condemned the ‘use of starvation of civilians as a method of warfare through the besieging of populated areas’, and stated that the EU will continue ‘to consider further restrictive measures against Syria as long as the repression­ continues’.365 8.139  ICRC and NGOs. In addition to its operational work to provide humanitarian assistance to children (and civilians more widely) in conflict-afflicted areas, the ICRC’s views on the legal framework of humanitarian access are authoritative. In light of growing concerns about the denial of humanitarian access in armed conflict, in 2014 the ICRC published its current views in ‘Q&A and lexicon on humanitarian access’366 and it also dealt with the issue in its 2015 Report on IHL and contemporary armed conflicts.367 The  ICRC participates in international law initiatives such as the ILC’s work on draft 361 ibid, para 185. 362 Ibid, para 198. 363 See, eg, UNICEF, ‘Humanitarian Action Study 2016’ (UNICEF, 2016), available at . 364 Council Implementing Regulation (EU) 2017/907 of 29 May 2017 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria [2017] OJ L139/15. 365 Council of the EU, ‘Council adopts EU strategy on Syria’ (Council of the EU, 3rd April 2017) Press Release 180/17, available at , para 2. 366 See ICRC, ‘ICRC Q&A and lexicon on humanitarian access’ (ICRC, June 2014) . 367 ICRC, ‘International humanitarian law and the challenges of contemporary armed conflicts’ (ICRC, 31 October 2015) (32IC/15/11) , 26–30.

448

Accountability Mechanisms  8.140–8.142 articles for the protection of persons in the event of disasters368 and has also developed practical resources for national Red Cross and Red Crescent societies to promote safer humanitarian access.369 8.140  A large number of NGOs operate in conflict areas to deliver humanitarian assistance to civilians including children. Some of these have sought to raise awareness of instances of the denial of humanitarian access and attacks on humanitarian personnel and facilities and participate in related policy and guidance initiatives. The Aid Worker Security Database tracks and publishes figures on attacks on humanitarian personnel worldwide.370 Watchlist on Children in Armed Conflict is conducting research on attacks on medical facilities and the denial of humanitarian access and campaigning to hold perpetrators accountable.371 2.  ICL Accountability Mechanisms Adjudicative Accountability Mechanisms 8.141  Domestic courts. See above, at paragraphs 8.125–8.128 regarding domestic implementation. Although a review of domestic case law is beyond the scope of this book, we note the 1997 Croatian prosecution of Perišic & Others. The defendants were convicted in respect of the shelling of the town of Zadar and its environs, based in part on A ­ rticle 14, APII (prohibition of the starvation of civilians as a method of combat in NIAC), as incorporated in Article 120(1) of Croatia’s Criminal Code of 1993.372 8.142  International courts and tribunals. 8.142.1  ICC. We have already noted a number of relevant judgments: see Al Bashir (paragraph 8.111.1); Abu Garda and Banda (paragraphs 8.103.2–8.103.4; 8.104.4); and the ICC-OTP’s report, Situation on Registered Vessels of Comoros, Greece and Cambodia (Gaza Flotilla Case) (paragraph 8.103.5). The UNSC referred the situation in Darfur to the ICC Prosecutor in March 2005.373 The Gaza Flotilla case was referred to the ICC Prosecutor’s Office by the authorities of the Union of the Comoros in May 2013.374 8.142.2  SCSL. See the earlier discussion of Prosecutor v Sesay, Kallon and Gbao (paragraphs 8.103.2–8.103.4; 8.103.6). Three other indictments before the SCSL which referred to attacks on humanitarian workers did not proceed to trial.375

368 See, ILC, ‘Protection of persons in the event of disasters: Comments and observations received from Governments and international organizations’ (14 March 2016) (n 201). 369 See Safer Access, Saving Lives, ‘Safer Access for all National Societies’ (Safer Access, Saving Lives), available at . 370 Available at USAID, ‘The Aid Worker Security Database’ (USAID) . 371 Watchlist on Children and Armed Conflict, ‘Access Denied’ (Watchlist on Children and Armed Conflict), available at . 372 Perišic & Others (Judgment) District Court of Zadar, Croatia (24 April 1997) as described in the ICRC Database of Customary IHL: Practice relating to Rules 53 and 54, section V. 373 UNSC Resolution 1593 (2005), UN Doc S/RES/1593, para 1. 374 ICC OTP ‘Situation on Registered Vessels of Comoros, Greece and Cambodia: Article 53(1) Report’ (2014) (n 225), para 2. 375 Prosecutor v Koroma, SCSL-2003-03-I (Koroma has not yet been tried as his whereabouts are unknown); Prosecutor v Bockarie, SCSL-2003-04-I (the indictment was withdrawn following Bockarie’s death); Prosecutor v Sankoh, SCSL-2003-02-I (the indictment was withdrawn following Sankoh’s death).

449

8.143–8.144  Denial of Humanitarian Access and Assistance 8.142.3  ICTY. See the earlier discussions of Krnojelac (nn 236, 246–247 above); Čelebići case (nn 235–238 above); Krstić (nn 245–247 above); Tadić (n 246) and Brđanin (paragraph 8.112 above). In Karadžić376 and Mladić,377 the ICTY considered, in the context of, and as a precursor to, forcible transfer, the restriction of humanitarian aid to certain Bosnian Muslim and/or Croat communities, including young children. It found that the restriction was intended to make life impossible for those communities. Both Karadžić and Mladić were found guilty of crimes against humanity, namely forcible transfer and deportation. The decisions did not refer to the particular impact of the actions on the children involved. 8.142.4  ICTR. We have noted, above, Akayesu (at paragraph 8.111.2 and n 235); Kayishema and Ruzindana and Rutaganda (at paragraph 8.112 and n 252). 3.  IHRL Accountability Mechanisms Adjudicative Accountability Mechanisms 8.143  Domestic courts. As is the case in relation to IHL (see paragraphs 8.125–8.128, above), states can promote accountability for violations of IHRL by incorporating their obligations within their domestic legal systems, and establishing judicial remedies. 8.144  Regional courts and tribunals. We identify below examples of cases concerning humanitarian access to civilians (other than those in detention) or the destruction of vital civilian facilities or supplies in armed conflict. We do not consider the wider body of human rights case law concerning the subsistence rights described above, at ­paragraph 8.89. 8.144.1  African Commission on Human and People’s Rights (ACHPR). In Centre on Housing Rights and Evictions (COHRE) v Sudan (2009) the ACHPR held that during the armed conflict in Darfur ‘the destruction of homes, livestock and farms as well as the poisoning of water sources, such as wells exposed the victims to serious health risks and amounts to a violation of Article 16 of the Charter’.378 8.144.2  ECtHR. In Benzer and Others v Turkey379 the applicants alleged that the Turkish military had bombed two villages by aircraft in March 1994, killing more than 30 of their close relatives, injuring some of the applicants themselves, and destroying property and livestock. The Court held that the applicants’ Article 3 rights were breached by having to witness the killing of their close relatives coupled with the authorities’ wholly inadequate response in the aftermath. It found that the Turkish Government ‘fail[ed] to offer even the minimum humanitarian assistance to the applicants in the aftermath of the bombing’.380

376 Prosecutor v Radovan Karadžić (Trial Chamber Judgment) T-95-5/18-PT (24 March 2016). 377 Prosecutor v Ratko Mladić (Trial Chamber Judgment) IT-09-92-PT (16 December 2011) paras 56, 73. 378 279/03-296/05 Centre on Housing Rights and Evictions (COHRE) v Sudan (Merits) ACmHPR (27 May 2009) para 212. Outside the context of armed conflict, the ACmHPR has held that the denying a civilian population access to basic public healthcare services constitutes a breach of Article 16 of the ACHPR: 317/06 The Nubian Community in Kenya v The Republic of Kenya (Merits) ACmHPR (28 February 2015) paras 168, 171. 379 Benzer and Others v Turkey (App No, 23502/06) ECtHR (Judgment 12 November 2013). 380 ibid, para 210.

450

Accountability Mechanisms  8.145 8.145  Treaty bodies. In alphabetical order: 8.145.1  African Committee of Experts on the Rights and Welfare of the Child (ACERWC). To date the Committee has not heard any individual communications alleging a violation of Article 23, ACRWC (regarding the provision of assistance to displaced children). The Committee’s General Comments have also not addressed the denial of humanitarian access to children in armed conflict. However, the Committee’s Continental Study on the Impact of Conflict and Crises on Children in Africa (2016) presented thematic studies in six areas including the impact of conflict on children’s psychological distress, access to health, and food security/nutrition. The Study examined the denial of humanitarian access to children in particular conflicts and the physical, mental and social impact on children of the denial of access to medical services and adequate nutrition.381 The Committee also identified the denial of humanitarian access to children in its 2014 country report on South Sudan.382 8.145.2  CRC Committee. We note in particular: (i) The CRC Committee has not addressed any communications specific to the denial of humanitarian assistance to children in armed conflict. (ii) States Parties to the CRC are obliged to submit periodic reports every five years. The Committee’s Guidelines on reporting require States Parties to provide data in relation to children in armed conflict and in particular on the number of ­children who receive (a) humanitarian assistance, and (b) assistance for their physical and psychological recovery following their involvement in armed conflict.383 States Parties to OPAC are required to report the number of children who benefit from physical and psychological recovery and social reintegration measures.384 By way of example, in its concluding observations on the second periodic report of the CAR, the Committee noted and made recommendations in respect of the extremely high mortality rate of children in the CAR due to preventable diseases exacerbated by attacks on healthcare facilities;385 refugees and internally displaced children;386 and the impact of armed conflict on the denial of children’s access to health and education services and humanitarian assistance.387 (iii) As noted above, the CRC Committee has not specifically addressed the issue of the denial of humanitarian access to children in armed conflict in a General Comment. 381 ACERWC, ‘Continental Study on the Impact of Conflict and Crises on Children in Africa’ (ACERWC, October 2016), available at . 382 ACERWC, ‘Report on the Advocacy Mission to Assess the Situation of Children in South Sudan’ (ACERWC, August 2014), paras 13, 27 and 33, available at . 383 CRC Committee, ‘Treaty-specific guidelines regarding the form and content of periodic reports to be submitted by States Parties under article 44, paragraph 1(b), of the Convention on the Rights of the Child’ (3 March 2015) UN Doc CRC/C/58/Rev.3 (CRC Periodic Reporting Guidelines), para 28(d)–(e). 384 ibid, para 30(c). 385 CRC Committee, ‘Concluding observations on the second periodic report of the Central African Republic’ (8 March 2017) UN Doc CRC/C/CAF/CO/2, paras 54–55. 386 ibid, paras 64–65. 387 ibid, para 66(a).

451

8.146–8.149  Denial of Humanitarian Access and Assistance Other Accountability Mechanisms 8.146  We do not repeat below those IHL accountability mechanisms that are equally applicable in the context of IHRL (for example, the role of the UNSC, the MRM and other UN involvement: see paragraphs 8.131–8.140 above). 8.147  UN Human Rights Council. The HRC has established thematic and countryspecific special procedures and bodies which have touched upon issues of the denial of humanitarian assistance to children in armed conflict, but none deals directly with it. We note three examples.388 8.147.1  First, the Independent International Commission of Inquiry on the Syrian Arab Republic has raised the issue of the denial of humanitarian access to civilians on numerous occasions.389 8.147.2  Second, the Special Rapporteur on the negative impact of the unilateral coercive measures on the enjoyment of human rights was established by the HRC in response to increasing concerns about the impact of targeted sanctions on civilian populations. The Special Rapporteur has identified that sanctions may result in the denial of humanitarian access. An example is his condemnation of the blockade of Yemen (see above at paragraph 8.123.3). 8.147.3  Third, in December 2016 the Coordination Committee of Special Procedures issued a statement on the human rights situation in South Sudan that, amongst other things, expressed concern at the severe restrictions on access by humanitarian organisations.390 8.148  The HRC can also issue resolutions. For example, in relation to Darfur in 2007, the HRC condemned violence against humanitarian workers and called upon all parties to the conflict to stop such attacks.391 B.  Problems and Deficiencies in Accountability Mechanisms 8.149  General problems and deficiencies in existing adjudicative accountability ­mechanisms are considered in Chapter 9. Those include the lack of accountability provided by the existing adjudicative mechanisms on the international plane, ­including 388 The Independent International Fact Finding Mission on Myanmar, established by Resolution 34/22 on the Situation of Human Rights in Myanmar, is yet to produce its final report. It was set up ‘to establish the facts and circumstances of the alleged recent human rights violations by military and security forces, and abuses, in Myanmar, in particular in Rakhine State, including but not limited to arbitrary detention, torture and inhuman treatment, rape and other forms of sexual violence, extrajudicial, summary or arbitrary killings, enforced disappearances, forced displacement and unlawful destruction of property, with a view to ensuring full accountability for perpetrators and justice for victims …’. (3 April 2017) available at . 389 See, eg, OHCHR, ‘Human Rights Council holds interactive dialogue with the Commission of Inquiry on Syria’ (OHCHR, 14 June 2017), available at . 390 OHCHR, ‘Statement by the Coordination Committee of Special Procedures at the 26th Special Session of the Human Rights Council on the human rights situation in South Sudan’ (14 December 2016), available at . 391 Adopted on 30 March 2007. UN Doc A/HRC/4/8, paras 3–4.

452

Conclusion and Summary  8.150–8.153 the ICC and the CRC Committee, because of the limited ratifications of the Rome ­Statute and OP3. The observations above, noting the lack of complaints before the CRC Committee and the limited number of relevant cases before the ICC, illustrate this deficiency. Here we note one specific problem in relation to the denial of humanitarian access. 8.150  The UNSC’s use of sanctions/application of non-forcible measures under ­Chapter  VII, UN Charter may be an under-utilised tool in the context of denial of humanitarian access and children. See paragraphs 8.131.4–8.131.7, above, which show that even though denial of humanitarian access is a designating criterion, it does not appear to be consistently used even in situations where humanitarian access appears to be denied.392 C.  Suggestions to Improve Accountability Mechanisms 8.151  In light of the above, we note, in the context of this Chapter, the need for further ratification of OP3 and the Rome Statute to enable the possibility of greater accountability where the protections of the CRC and the Rome Statute are violated. We also suggest that the UNSC could make more consistent use of targeted sanctions against those responsible for the denial of humanitarian access. V.  CONCLUSION AND SUMMARY

8.152  In conclusion, the main recommendations of this Chapter can be summarised as follows. 8.153  Recommendations on legal framework: • IHL and consent: (1) International humanitarian law (IHL) contains no definition of, or agreed scope as to what constitutes, an arbitrary or capricious, and therefore unlawful, reason for a party to an armed conflict to withhold consent for impartial humanitarian organisations to access territory under its effective control. However, it is clear that it will be unlawful to withhold consent where the denial may lead to the ­starvation of civilians.

392 More generally, the High Level Review of United Nations Sanctions has called for an improvement in the protection of children and women ‘through enhanced coordination with all assistance providers in conflict regions and backed up with a credible threat of sanctions for those who impede these protection mandates’: see Watson Institute for International & Public Affairs and Compliance and Capacity Skills International, LLC, ‘High Level Review of United Nations Sanctions: Compendium’ (n 156), 85. We note that some commentators have questioned the role of the UNSC in this context, eg: ‘the clear risk exists that its involvement in issues related to humanitarian access will politicise access negotiations and make them less likely to succeed’: Akande and Gillard (n 103), 134.

453

8.153  Denial of Humanitarian Access and Assistance (2) We suggest that the law is clarified and if necessary developed to provide that (i) arbitrary or capricious denials of humanitarian access are unlawful and that (ii) denying access will always be arbitrary or capricious in certain circumstances, including: –– where it may lead to the starvation of civilians (with that concept being expansively interpreted so as include, for example, the denial of objects essential to the survival of civilians such as objects required for the production of food); –– where it violates IHL prohibitions, for example the prohibition on collective punishment, and –– where it breaches IHL obligations including, for example, the obligation to provide ‘care and aid’ for children, as required by Article 77(1), Additional Protocol I (API) and Article 4(3), Additional Protocol II (APII) and the ICRC, customary international law (CIL) Rule 135 duty to give children ‘special respect and protection’. • IHL regulatory framework: (1) The IHL regulatory framework regarding access and assistance contains limited codified protection for children during non-international armed conflict (NIAC) (Common Article 3). For example, the following codified protections exist in international armed conflict (IAC) but not in NIAC (Common Article 3): the obligation upon parties to endeavour to agree upon the evacuation of children from besieged or encircled areas and the priority of children in the distribution of humanitarian assistance. The protections for children aged 15–18 are unclear. Consideration should be given to whether the law may be clarified or developed so as to expressly standardise two protections for children across all armed conflicts. As noted above, these two protections currently exist in IAC. They are: (i) in the distribution of humanitarian aid, priority should be afforded to children (aged 18 and under) and (ii) parties to conflicts should endeavour to reach local agreements to evacuate children (aged 15 and under) from besieged and encircled areas. Consideration should be given to whether these two protections can be identified as existing in NIAC (APII), pursuant to Article 4(3), and NIAC (Common A ­ rticle 3), pursuant to ICRC, CIL Rule 135. Consideration should also be given to whether to extend the protection of (ii) to children aged 15–18. (2) Parties to conflicts have no specific obligation to agree specific measures such as temporary ceasefires and humanitarian pauses to ensure humanitarian access to children in conflict areas. The law should be developed so that parties to conflicts are obliged to try to agree specific measures to enable humanitarian access to children. (3) The extent to which non-parties to a conflict have an IHL obligation to ensure that measures – such as collective or unilateral sanctions or counter-terrorism measures – do not result in denial or delay of humanitarian access to children is unclear. The law regarding the obligations of non-parties to a conflict should therefore be clarified or developed, in particular in relation to collective or 454

Conclusion and Summary  8.153 ­ nilateral measures. For example, consideration should be given to whether such u measures adopted by non-parties to conflicts should be designed by reference to express consideration of the impact on humanitarian access and assistance, especially on children and their caregivers. • IHRL: the extent to which states are obliged, under international human rights law (IHRL), to accept and facilitate the provision of humanitarian services to children by impartial humanitarian organisations is limited and unclear. Existing IHRL obligations, under the Convention on the Rights of the Child (CRC) and African Charter on the Rights and Welfare of the Child (ACRWC) to cooperate with humanitarian actors are limited to those providing assistance to specific categories of children, for example refugee children. The scope of protection under Article 38(4), CRC which obliges states parties to ‘take all feasible measures to ensure protection and care of children who are affected by an armed conflict’, is unclear. For example, it is not clear whether it requires states to accept and facilitate humanitarian assistance made available by impartial humanitarian organisations. Nor is it clear whether it requires states to have sought such assistance where the state in question does not provide the goods or services that are necessary to respect economic, social and cultural rights of children. The scope of Article 38(4), CRC, could be clarified, for example by the CRC Committee issuing a General Comment on Article 38 or otherwise addressing the issue of denial of humanitarian access in light of the CRC. • ICL (international criminal law): (1) There is no Rome Statute offence of the intentional starvation of civilians in NIAC. This is problematic because the existing crimes applicable in NIAC may not provide adequate protection against denial of humanitarian access. Consideration should be given to developing the law by recognising, as a war crime during NIAC, the intentional use of starvation of civilians as a method of combat. This offence, whether in IAC or, if enacted, in NIAC, does not and will not provide completely comprehensive coverage of all examples of refusing to consent leading to the denial of humanitarian assistance because it does not and would not cover interruptions of necessary relief supplies other than food. However, since the supply of food to civilians is, with water, the most critical form of relief and since the crime of intentional starvation as a method of warfare already exists in IAC our view is that it should be established in NIAC. (2) The term ‘humanitarian assistance mission’ for the purposes of the Article 8(2)(b)(iii) and Article 8(2)(e)(iii) offences in the Rome Statute is not defined in the Rome Statute or the Elements of Crimes. Consideration should be given to clarifying this term, for example by providing illustrations of ‘humanitarian assistance missions’ that include (i) missions authorised by the UN Security Council (UNSC) and (ii) relief operations by established humanitarian assistance providers. (3) There is no specific, international law crime of denying humanitarian access in conflicts and this arguably means there is a protection gap in ICL. Consideration should be given to whether the law needs to be developed by establishing 455

8.154  Denial of Humanitarian Access and Assistance a separate offence of the wilful denial of humanitarian access as a war crime and a crime against humanity. 8.154  Recommendation on international accountability mechanisms: whilst the UN  Security Council (UNSC) has condemned the denial of humanitarian access to civilians in armed conflict in a number of resolutions, there is limited use of UNSC sanctions against those responsible for denying humanitarian access, whether to children or civilians more widely. The UNSC could make more consistent use of targeted sanctions against those responsible for denying humanitarian access to children.

456

9 Conclusion ‘There can be no keener revelation of a society’s soul than the way in which it treats its children.’1

I. Introduction 457 II. Specific Suggestions 460 III. General Suggestion: A New Legal Instrument 470 IV. Accountability 472 A. General Problems and Deficiencies in Existing Adjudicative Accountability Mechanisms 473 B. Suggestions to Improve Existing Adjudicative Accountability Mechanisms479 V. Conclusion and Summary 483 I. INTRODUCTION

9.1  In 1939 and again in 1946 specific attempts were made to draft international ­instruments to protect children in armed conflict. As we noted in Chapter 1, neither of those drafts moved beyond their preliminary stages. The question of a separate convention to protect children in armed conflict was also considered during the debates that led to the Fourth Geneva Convention (GCIV). But participants ultimately decided to incorporate into one convention – GCIV – protection for all civilians. GCIV contains a number of provisions that expressly refer to children.2 However, GCIV does not expressly state that children are entitled to special treatment. This left a gap in the law. 9.2  In the period 1949–2017 there were significant additions to the law protecting children in armed conflict; these are described in Chapter 1. Important milestones were the Additional Protocols (API and APII) in 1977, both of which were instruments containing provisions of international humanitarian law (IHL) including specific provisions protecting children in armed conflict; the UN Convention on the Rights of the Child (CRC) in

1 Nelson Mandela, ‘Speech at the launch of the Nelson Mandela Children’s Fund’, 8 May 1995, available at . All websites referred to herein were accessed in September–October 2017. 2 See Ch 3, para 3.16.

457

9.3–9.7  Conclusion 1989; the Optional Protocol to the CRC on the involvement of children in armed conflict (OPAC) in 2000 and the Rome Statute, which came into force in 2002.3 9.3  The incremental legal development between 1949–2017 reflects the increasing recognition that the vulnerability of children means that they require special provision and protection. 9.4  Driven by this recognition, the incremental legal development between 1949–2017 appears, essentially, to have been a response to, and an attempt to fill, the lacuna left by GCIV, viz., the lack of a bespoke regime protecting children caught up in armed conflict. 9.5  However, none of these instruments sought to directly and comprehensively protect children in armed conflict. Now, the existing IHL and international human rights law (IHRL) protections are scattered across multiple instruments and also exist in customary international law (CIL). This means that identifying the applicable IHL and IHRL legal framework is a complex and challenging task. International criminal law (ICL) is easier to identify since it has been collected in the Rome Statute and it is enforced by the ­International Criminal Court (ICC): a criminal, international adjudicative body. However, there is no single instrument that sets out the IHL and IHRL framework that is applicable to children in armed conflict and – perhaps as a consequence – there is no single, civil, international body with the jurisdiction to adjudicate, develop and monitor accountability in this area. 9.6  Despite the developments in legal protection from 1949–2017, and as illustrated by the examples in Chapter 1 at paragraphs 1.80–1.103, there are no signs of a diminution in the scale and intensity of suffering inflicted on children caught up in armed conflict. Meanwhile, ongoing factual developments mean that the nature of the remedial task – to fill the original gap in the legal architecture – has broadened too. Consider, for example, the changing nature of conflict, the increasingly civilian setting of many armed conflicts, the role of terrorism and advancements in technology (Chapter 1, paragraphs 1.105–1.108). 9.7  The position, today, is as follows. The relevant law – in its volume and intricacy – bears witness to the enthusiasm of the international community’s collective efforts to protect children but also to our collective failure to realise that aim as well as we might. The most fundamental shortcoming is not the content of existing substantive protections, although they could certainly be improved (clarified, developed) in some respects, as noted below. Instead, the principal shortcomings are (i) the difficulty in identifying these existing protections – because of the complex and scattered IHL and IHRL – and, to an even greater extent, (ii) the lack of compliance with, and implementation of, the existing substantive legal protections. This includes the lack of adequate and effective 3 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (API); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (APII); UN Convention on the Rights of the Child (adopted 20  November  1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC); Optional Protocol on the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (adopted 25 May 2000, entered into force 12 February 2002) 2173 UNTS 222 (OPAC) and Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (Rome Statute).

458

Introduction 9.8–9.10 international adjudicative accountability mechanisms. The combined effect of these two shortcomings is largely responsible for the situation we find ourselves in today, in which there is an urgent need for legal protection to reduce the suffering of children caught up in armed conflict. 9.8  In response, we make some specific suggestions for improving the substantive ­protections of the law. Grouped together these may be described as follows: (i) ­existing legal protections are sometimes vague or ambiguous and could be clarified; (ii) legal protections are sometimes under-developed or absent and could be strengthened and developed; (iii) certain international law instruments would benefit from more widespread ratification (and, possibly, greater domestic implementation) in order to enhance the substance of the available protections and (iv) other instruments would benefit from greater ratification in order to enhance international accountability. These specific suggestions are developed in paragraphs 9.11–9.15 below. 9.9  We also make a supplementary, general, suggestion in order to tackle the systemic difficulties of a complex and scattered IHL and IHRL framework and the lack of a single, civil, international adjudicative body. The general suggestion is that consideration should be given to drafting one instrument to protect children in armed conflict. The content of the law (IHL and IHRL) needs to be easily identifiable and understandable and this objective would be promoted by collecting, codifying and, if possible, consolidating it in one authoritative instrument. In addition, the law must be rigorously implemented and enforced at the domestic level and its international enforcement must be systematised and unified under the supervision and guardianship of one organisation. Again, this objective would be promoted by a single instrument with a related, single, international, supervisory entity. This general suggestion is developed in paragraphs 9.16ff below. 9.10  Finally, it is important to bear in mind the following points when considering our suggestions. 9.10.1  First, improving the protection for children in armed conflict requires a holistic and multi-disciplinary approach. In addition to the law, other relevant strands include: political support and accountability;4 support for the physical, psychological and emotional well-being of children and consideration of educational, economic, demographic and socio-cultural issues.5 On one view, the existing lack of protection and accountability regarding children caught up in armed conflict is attributable to a lack of political will rather than to deficiencies in the law. There is no doubt that political will is critically important. We have sought to scrutinise whether – for its part – the law can do more to protect children but law reform can only be accomplished with political support so there is a clear nexus between the adequacy and effectiveness of the law and political will. A clear and easily identifiable legal framework and effective accountability mechanisms are important and necessary strands of a multi-disciplinary approach but by themselves they are not enough. 4 For example, consideration could be given to creating, at the national level, an equivalent position to that of the Special Representative for Children and Armed Conflict and to including clear responsibilities regarding the issues raised by children and armed conflict in ministerial appointments. 5 For an example of a comprehensive approach to accountability regarding children and armed conflict see the Children in Armed Conflict (CAC) Accountability Initiative developed by Conflict Dynamics International: < http://cacaccountability.org/about/>.

459

9.11–9.12  Conclusion 9.10.2  Second, we have conducted an objective and independent review and analysis of the law. This book was not researched or written with any pre-conception as to the adequacy of the content, status or sources of law or regarding enforceability and accountability. 9.10.3  Third, as lawyers, we have conducted a legal analysis of the substantive laws and related accountability mechanisms. We have not applied a political filter to our legal analysis and recommendations. That means that when, after our analysis, we have identified a recommendation we have not then undertaken an analysis of its prospects of political success. 9.10.4  Fourth, our recommendations are not time-sensitive; they do not have a ‘use-by’ date on them. This means that even if they are not realised in the near future because of actual or perceived political realities that does not mean they might not, incrementally, influence legal debate and development so as to trigger reform at another time when the political climate may have changed. II.  SPECIFIC SUGGESTIONS

9.11  In this section, we bring together our analysis from earlier Chapters. 9.12  As noted above, existing substantive legal protections are sometimes vague or ambiguous and could be clarified. We make the following specific suggestions in this regard: Chapter 3: Killing and Ill-treatment 9.12.1  In relation to IHL and the treatment of persons: the general provisions regarding the position of children, and their entitlement to care and aid or special treatment, are different under API, APII and CIL and inadequately particularised. The law should be clarified or developed by standardising and particularising these special treatment provisions, ie Article 77, API; Article 4(3), APII and ICRC, CIL Rule 135.6 Consideration should also be given to whether ‘children’ should be defined so as to include all persons aged 18 and under. 9.12.2  In relation to IHRL: it is unclear whether all of the CRC applies in armed conflict and, if it does not, to what extent it so applies. This lack of clarity is unhelpful since it makes it harder to identify the applicable law. In the context of killing and ill-treatment it means there is ambiguity as to whether Articles 6 and 37, CRC apply or whether Article 38 alone applies, displacing Articles 6 and 37. This is especially significant given the different thresholds of protection in Article 6 (‘maximum extent possible’) and Article 38(4) (‘all feasible measures’). The law should be clarified or developed by a reconsideration of the scope of application of the CRC in armed conflict. This could be done by the CRC Committee issuing a General Comment on, 6 This refers to the CIL Rules identified by the International Committee of the Red Cross (ICRC). See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law: Volume 1: Rules (Cambridge, CUP, 2005, reprinted with corrections 2009) (hereafter ICRC Study on Customary IHL). Rule 135, provides, ‘Children affected by armed conflict are entitled to special respect and protection’ (479ff). These Rules are also available online, where they are updated: see .

460

Specific Suggestions  9.12 for example, Article 38 alone or on the applicability of other CRC provisions during armed conflict. Chapter 4: Recruitment and Use 9.12.3  In relation to IHL and ICL: there is some conceptual inconsistency between ICL and IHL which makes the law complex because war crimes, including those established in Article 8(2)(b) and (e) of the Rome Statute, are defined as ‘serious violations of the laws and customs applicable in’ international armed conflict (IAC) and noninternational armed conflict (NIAC); that is, war crimes must involve a violation of IHL. For example (i) in ICL ‘recruitment’ is generally understood to encompass both conscription and voluntary enlistment but as a matter of IHL, and in particular in relation to IAC (Article 77(2), API and CIL), the concept of recruitment has often been understood more narrowly and as excluding purely voluntary enlistment. And (ii) ICL refers to the concept of the ‘active’ participation of children in hostilities whilst IHL refers either to their ‘direct’ participation in respect of IAC (Article 77(2), API) or to their participation in general in respect of NIAC (Article  4(3)(c), APII). The law should be clarified or developed by addressing the conceptual inconsistency between ICL and IHL. This may be addressed in two ways. (i) Where there is inadequate justification for the relevant inconsistency, IHL should be revised to reflect the higher standards of conduct expected as a matter of ICL. For example, Article 77(2), API could be amended to make clear that voluntary enlistment is prohibited. (ii) Where there is adequate justification for a difference in approach, ICL and IHL ought to be understood and developed distinctly. For example, the concept of ‘direct participation’ in hostilities, in so far as it is used to define the principle of distinction in IHL, ought to be understood separately from the concept of ‘active participation’ in the context of ICL. If additional protections are to be provided to ‘child soldiers’ as a matter of IHL applicable to IAC, it would make more sense to develop an absolute prohibition on the participation of ‘child soldiers’ in hostilities (to reflect the formulation used in respect of NIAC in Article 4(3), APII), than to borrow from the concept of active participation in ICL. 9.12.4  In relation to ICL: the meaning of ‘active participation’ (for the purposes of Articles 8(2)(b)(xxvi) and 8(2)(e)(vii), Rome Statute) is unclear. For example, it is not clear which acts of indirect participation by a child in hostilities will constitute the war crime of ‘active’ participation in hostilities. The meaning of ‘active participation’ ought to be clarified in the jurisprudence of the ICC. 9.12.5  In relation to IHRL: the differences between IHL and IHRL on the recruitment and use of children makes the law complex. There are gaps and inconsistencies in the two regimes and so a state may have differing obligations under different instruments, even though they are applicable to the same situation. The law could be clarified by the CRC Committee issuing a General Comment regarding Article 38(2), CRC Article 4(3)(c), APII and also regarding OPAC. This may assist in clarifying some of the existing interpretative difficulties. It may also assist in managing the relationship between IHL and IHRL norms in this area. Alternatively, consideration should be given to the possibility of consolidating (in the single instrument we have suggested) the protections that presently exist in IHL and IHRL. 461

9.12  Conclusion Chapter 5: Sexual Violence 9.12.6  In relation to IHL and ICL: the position of ‘child soldiers’ abused by their own group is currently unclear. In particular, it is unclear whether the status requirements of the Geneva Conventions (for IAC) and of Common Article 3 (for NIAC) apply to the war crimes in Articles 8(2)(b)(xxii) and 8(2)(e)(vi), Rome Statute – with the effect that those war crimes exclude, from the pool of potential victims, ‘child soldiers’ abused by their own group. The ICC rejected the submission that these status requirements applied to those war crimes in Prosecutor v Bosco Ntaganda,7 affirming that IHL prohibitions on rape and sexual slavery could apply within a party’s own forces. However, the decision in that case may be controversial insofar as it may be read as dissociating war crimes from the status requirements in their IHL foundation and so the law regarding the position of ‘child soldiers’ abused by their own group would benefit from further clarification. Chapter 6: Child Abduction 9.12.7  In relation to IHL, ICL and IHRL: there is no definition of ‘abduction’ in the context of armed conflict. The law should be clarified by the identification of such a definition. The definition in the Monitoring and Reporting Mechanism (MRM) field manual8 (viz, ‘unlawful removal, seizure, capture, apprehension, taking or enforced disappearance of a child either temporarily or permanently for the purpose of any form of exploitation of the child’) should be adopted, subject to it being amended, at the end, to read ‘for the purpose of any form of exploitation of the child or a prohibited act’. The definition should state that the taking may be done by anyone (private citizen, armed forces or non-state armed groups), and that the taking of the child does not need to be across an international frontier and encompasses both domestic and international abductions. If there is to be a new international instrument on children in armed conflict (as we have suggested, below), it should include a provision defining abduction and, if there is not, then the ICRC should consider whether to undertake work on such a definition and/or the definition could be considered by the CRC Committee in a General Comment, perhaps jointly with the African Committee of Experts in relation to the African Charter on the Rights and Welfare of the Child (ACRWC). Chapter 7: Attacks against Hospitals and Schools 9.12.8  In relation to IHRL and attacks against hospitals: the IHRL legal framework does not expressly address the context of armed conflict and so it is unclear in a number of relevant respects. For example, it is unclear what, if any, scope there is for an obligation on states to repair and maintain hospitals attacked during armed conflict and there is no developed IHRL on which civilians, and children in particular, may rely to assert that there is a state obligation to repair and maintain. One way of clarifying or developing the existing IHRL framework in relation to attacks against hospitals would be for

7 The Prosecutor v Bosco Ntaganda ICC-01/04-02/07, 15 June 2017 (n 48). 8 The MRM field manual is available at: .

462

Specific Suggestions  9.12 guidance in a General Comment by the CESCR (the Committee of the International Covenant on Economic, Social and Cultural Rights) or the CRC Committee or indeed in a joint General Comment. This could, for example, specifically address attacks against hospitals and healthcare facilities in the context of armed conflict including the obligations to repair and maintain facilities that have been attacked. 9.12.9  In relation to IHRL and attacks against schools: the IHRL legal framework does not expressly address the context of armed conflict and so it is unclear in a number of relevant respects. As with the framework relating to attacks against hospitals, we suggest that one way of clarifying or developing the existing IHRL framework would be for guidance in a General Comment by the CESCR or the CRC Committee, or in a joint General Comment. This could specifically address attacks against schools and educational facilities in the context of armed conflict, including the obligations to repair and maintain facilities that have been attacked. Chapter 8: Denial of Humanitarian Access and Assistance 9.12.10  In relation to IHL and consent: there is no definition of, or agreed scope as to what constitutes, an arbitrary or capricious, and therefore unlawful, reason for a party to an armed conflict to withhold consent for impartial humanitarian organisations to access territory under its effective control. However, it is clear that it will be unlawful to withhold consent where the denial may lead to the starvation of civilians. The law should be clarified and if necessary developed to provide that (i) arbitrary or capricious denials of humanitarian access are unlawful and that (ii) denying access will always be arbitrary or capricious in certain circumstances, including: (1) where it may lead to the starvation of civilians (with that concept being ­expansively interpreted so as include, for example, the denial of objects essential to the survival of civilians such as objects required for the production of food); (2) where it violates IHL prohibitions (for example the prohibition on collective punishment), and (3) where it breaches IHL obligations (including, for example, the obligation to provide ‘care and aid’ for children, as required by Article 77(1), API and ­Article  4(3), APII and the ICRC, CIL Rule 135 duty to give children ‘special respect and protection’). 9.12.11  In relation to the IHL regulatory framework: the IHL regulatory framework regarding access and assistance contains limited codified protection for children during NIAC (Common Article 3). For example, the following codified protections exist in IAC but not in NIAC (Common Article 3): the obligation upon parties to endeavour to agree upon the evacuation of children from besieged or encircled areas and the priority of children in the distribution of humanitarian assistance. The protections for children aged 15–18 are unclear. Consideration should be given to whether the law may be clarified or developed so as to expressly standardise two protections for children across all armed conflicts. As noted above, these two protections currently exist in IAC. They are: (i) in the distribution of humanitarian aid, priority should be afforded to children (aged 18 and under) and (ii) parties to conflicts should endeavour 463

9.13  Conclusion to reach local agreements to evacuate children (aged 15 and under) from besieged and encircled areas. Consideration should be given to whether these two protections can be identified as existing in NIAC (APII), pursuant to Article 4(3), and NIAC (Common Article 3), pursuant to ICRC, CIL Rule 135. Consideration should also be given to whether to extend the protection of (ii) to children aged 15–18. 9.12.12  Also in relation to the IHL regulatory framework: the extent to which nonparties to a conflict have an IHL obligation to ensure that measures – such as collective or unilateral sanctions or counter-terrorism measures – do not result in denial or delay of humanitarian access to children is unclear. The law regarding the obligations of non-parties to a conflict should therefore be clarified or developed, in particular in relation to collective or unilateral measures. For example, consideration should be given to whether such measures adopted by non-parties to conflicts should be designed by reference to express consideration of the impact on humanitarian access and assistance, especially on children and their caregivers. 9.12.13  In relation to IHRL: the extent to which states are obliged, under IHRL, to accept and facilitate the provision of humanitarian services to children by impartial humanitarian organisations is limited and unclear. Existing IHRL obligations, under the CRC and ACRWC, to cooperate with humanitarian actors are limited to those providing assistance to specific categories of children, for example refugee children. The scope of protection under Article 38(4), CRC which obliges states parties to ‘take all feasible measures to ensure protection and care of children who are affected by an armed conflict’, is unclear. For example, it is not clear whether it requires states to accept and facilitate humanitarian assistance made available by impartial humanitarian organisations. Nor is it clear whether it requires states to have sought such assistance where the state in question does not provide the goods or services that are necessary to respect economic, social and cultural rights of children. The scope of Article 38(4), CRC, could be clarified by the CRC Committee issuing a General Comment on Article 38 or otherwise addressing the issue of denial of humanitarian access in light of the CRC. 9.12.14  In relation to ICL: the term ‘humanitarian assistance mission’ for the purposes of the Article 8(2)(b)(iii) and Article 8(2)(e)(iii) offences is not defined in the Rome Statute or the Elements of Crimes. Consideration should be given to clarifying this term, for example by providing illustrations of ‘humanitarian assistance missions’ that include (i) missions authorised by the UN Security Council (UNSC) and (ii) relief operations by established humanitarian assistance providers. 9.13  As noted above, legal protections are sometimes under-developed or absent and could be strengthened and developed. We make the following specific suggestions in this regard: Chapter 3: Killing and Ill-treatment 9.13.1  In relation to IHL and the conduct of hostilities: the relevant principles contain no special consideration of children. The law could be developed so as to require the express consideration of children in the application of the principles of proportionality and precautionary measures. The position of children could be specified as an express factor that needs to be given weight and considered in evaluating 464

Specific Suggestions  9.13 proportionality, for example in military manuals. Similarly, the requirement to take all ‘feasible’ precautions could involve express and heightened standards for children. Any such development must be carefully considered to avoid potentially adverse ramifications. 9.13.2  In relation to IHL and the treatment of persons: some of the specific IHL provisions protecting children are arguably inadequate. For example, in relation to removal and evacuation there is no express prior obligation to search for, and collect, children and there is no provision for arrested, detained or interned children to be given priority in having their cases determined. These provisions could be developed by reference to the special treatment provisions, for example by recognising an obligation to search for children and collect them by removing them from the immediate theatre of hostilities and by requiring that arrested, detained or interned children should have their cases considered as a matter of priority. 9.13.3  In relation to ICL: consideration could be given to whether the law should be developed so that the definition of ‘war crimes’ in the Rome Statute includes specific violations of the care and aid provisions (Article 77(1), API, Article 4(3), APII). 9.13.4  In relation to IHRL: if Article 38, CRC does displace the other provisions of the CRC during armed conflict, the ‘feasible’ standard set by Article 38(4) CRC entails a lower degree of protection for children than IHL. The law could be developed by strengthening the ‘feasible’ standard in Article 38(4) CRC (and Article 22(3), ACRWC) in order to make them consistent with the IHL standards to which they expressly refer. Chapter 4: Recruitment and Use 9.13.5  In relation to IHL, ICL and children aged 15–18: The principal provisions of international humanitarian law (IHL) – Article 77(2), Additional Protocol I (API); Article 4(3)(c), Additional Protocol II (APII) and ICRC, Customary International Law (CIL) Rules 136 and 137 – apply primarily in respect of children under the age of 15 years. There is obviously merit in seeking to extend IHL protections for children during armed conflict if that is possible, particularly with a view in the future to ­enhancing ICL protections. If it is possible to achieve that aim, by way of amendment to API and APII, then that should be pursued. However, it is not clear that developments in state practice would support an extension of existing protection by increasing the age limits applicable to the rules of customary IHL, ie in relation to ICRC, CIL Rules 136 and 137. In light of the developing factual context regarding CIL and until there is a move to amend the age limits in API and APII: we suggest that the IHL protections available for children aged under 15 years are consolidated and clarified. However, the question of whether IHL protections should be extended to include ­children aged 15 years or over should be monitored, and consideration should be given to increasing age limits as soon as possible. 9.13.6  In relation to IHL, children aged under 15 and IAC: There are three shortcomings in the law. First, the use of ‘feasible measures’ in Article 77(2), API is problematic because: (i) it is unclear why parties to an IAC are only obliged to take ‘feasible measures’ to ensure that children under the age of 15 do not take a direct part in hostilities, whilst parties to NIAC are subject to an absolute prohibition; (ii) the standard reflected in Article 77(2), API is inconsistent with the CIL that is applicable during IAC, 465

9.13  Conclusion which provides for an absolute prohibition in relation to the participation of children in hostilities and (iii) the use of ‘feasible measures’ seems to afford states considerable discretion in the steps they are obliged to take to prevent the participation of children in hostilities. Second, the narrow protection offered by ‘direct participation’ in Article 77(2), API is difficult to regard as justifiable because (i) it does not properly reflect the CIL applicable to IAC which imposes a wider prohibition on participation in general; (ii) ICL applicable to IAC has been construed to impose individual criminal responsibility in respect of the use of children to participate in hostilities even where they have not participated directly and (iii) the limitation is inconsistent with the IHL prohibitions that apply during NIAC since Article 4(3), APII prohibits wider participation. Third, the absence of a clear prohibition on voluntary enlistment of children under 15 years in IHL is unsatisfactory because (i) parties to a conflict may argue that they have complied with IHL because children under the age of 15 years have voluntarily enlisted rather than been recruited and (ii) IHL is less protective than ICL which, in relation to both IAC and NIAC, imposes individual criminal responsibility in cases where a child under 15 years of age is voluntarily enlisted. In light of these three points, consideration should be given to developing the law by amending Article 77(2), API, so that (i) it imposes an absolute prohibition on the participation of children under the age of 15 years in hostilities rather than merely requiring parties to international armed conflict to take feasible measures to ensure that children do not participate; (ii) the prohibition applies to the use of children to participate in hostilities in general and is not limited to their direct participation, so as to reflect the approach taken in Article 4(3)(c), APII, and (iii) the voluntary enlistment of children under the age of 15 years is prohibited as well as their recruitment. Alternatively, individual states that have ratified API could be encouraged to reflect this more protective content in their domestic laws and military manuals. 9.13.7  In relation to IHL, children under 15 and NIAC (APII): in light of the point noted in the preceding paragraph, consideration should also be given to clarifying or developing the law by amending Article 4(3)(c), APII, to state, for the avoidance of doubt, that the voluntary enlistment of children under the age of 15 years during armed conflict is prohibited. Again, alternatively, individual states that have ratified APII could be encouraged to reflect this more protective content in their domestic laws and military manuals. 9.13.8  In relation to IHRL: there is imbalance in the OPAC obligations relevant to the armed forces of the state and other armed groups. The standard expected from non-state armed groups under Article 4(1) is much higher than that expected of state armed forces under Articles 1 to 3. This risks undermining OPAC since it may be viewed as imposing a double standard. Addressing the inconsistency between Articles 1 to 3 and Article 4(1) of OPAC is likely require a long-term and multi-faceted strategy. Until a sufficiently strong consensus can be established in favour of raising the standards in relation to the armed forces of the state, the inconsistency between Articles 1–3 and Article 4(1), OPAC may be reduced by taking the following two steps. First, the law could be developed by heightening the standards in domestic law. Consideration should be given to imposing an express requirement upon states to incorporate into domestic law, including into domestic criminal law and military manuals where 466

Specific Suggestions  9.13 appropriate, the standards set out in Articles 1 to 3 of OPAC so far as concerns state armed forces. This should assist in reducing the perceived unfairness of the law by at least enabling public authorities to be held accountable in domestic law for failures to meet the international law standards applied to non-state armed groups. Second, the law could be developed by heightening the standards in international law. Concerted action should be taken by the international community to encourage states to raise the minimum age for voluntary recruitment so far as possible, in order to reduce the perceived inconsistency in the law. States who have already made declarations pursuant to Article 3(2), OPAC specifying a minimum age for voluntary recruitment below 18 years of age should be encouraged to strengthen those declarations under Article 3(4), OPAC, ie by increasing the minimum age where possible. Those states that have not already done so should be encouraged to make declarations under Article 3(2), OPAC, specifying 18 years of age as a minimum age for voluntary recruitment. Chapter 5: Sexual Violence 9.13.9  In relation to IHL and ICL: although IHL and ICL proscribe and ­criminalise various forms of sexual violence against children, Article 77(1), API and Article 4(3), APII go further and require that children should be provided with ‘care and aid’. These provisions (and Common Article 1 of the Geneva Conventions) could be used as a legal prompt to encourage states to take positive measures to prevent sexual violence against children in armed conflict, and to provide child victims of such violence with the care and aid they require in order to recover and be rehabilitated. Consideration should be given to developing the law by establishing a greater focus on states’ wider obligations regarding children, for example to prevent sexual violence against children and the rehabilitation of child victims. 9.13.10  In relation to ICL: there is no express protection in ICL against forced marriage. Whether such protection is needed is debatable but it is arguable that the existing prohibitions do not adequately encompass the non-physical aspects of forced marriage and it is notable that the relevant IHRL obligations do not provide a means of holding individual perpetrators (as opposed to states) to account unless the obligations have been implemented domestically by a state and are effectively enforced. Consideration should be given to whether the law needs to be developed so as to expressly prohibit forced marriage. Chapter 6: Child Abduction 9.13.11  In relation to IHRL: the specific IHRL treaty provisions regarding child abduction in armed conflict, in the CRC and the ACRWC, do not define the meaning or scope of the ‘appropriate measures’ that are required to be taken thereunder and pursuant to Articles 35 and 29, respectively. Applied to abduction, ‘appropriate’ measures may require (i) further consideration of how to prevent abduction and (ii) further consideration of domestic measures by which abducted children should be identified, treated and assisted. The scope of ‘appropriate measures’ could be developed, for example in General Comments by the CRC Committee or the African Committee of Experts. The Special Representative for Children and Armed Conflict could (potentially in conjunction with the Committees) identify measures suited to addressing the 467

9.13  Conclusion consequences of abduction in armed conflict on children and the way in which such measures should be domestically implemented. Chapter 7: Attacks against Hospitals and Schools 9.13.12  In relation to IHL, attacks against hospitals and emblems/notification: the IHL regime envisages, as far as military considerations permit, the use of distinctive emblems by hospitals (particularly civilian hospitals) to ensure their identification. However, it is questionable whether this tool is effective in protecting hospitals because, for example, parties may not want to use an emblem for logistical and military reasons. Consideration should be given to developing the law by establishing formal obligations of notification of the location of hospitals between parties to an armed conflict. Although such a formal obligation of notification, with its emphasis on the sharing of information between belligerents about ‘no-go’ civilian objects, could strengthen the pre-existing regime regarding the use of distinctive emblems it may also suffer from the same drawbacks as the distinctive emblem regime. However, the overall impact of an obligation to notify may be to increase the visibility of hospitals and to limit the ability of those parties breaching IHL rules to claim ignorance of their location and status. As such, it merits further consideration. Allied to the development of such notification obligations, consideration could also be given to the potential for practical (rather than legal) mechanisms to assist with independent verification in order to address challenges to the protection of hospitals. 9.13.13  In relation to IHL, attacks against hospitals and safety zones: the use of safety zones has had limited success. This may be partly attributable to the practical limitations on the current regime concerning protected zones, for example the consent and agreement of the parties is needed before such zones can be established. Consideration should be given to developing the law by reinforcing the use of IHL protected zones. For example, parties could be required to designate such zones at the outbreak of an armed conflict. Although this may be difficult to implement and enforce in practice a legal obligation of this nature would, at least, be a step in the right direction and begin to encourage the incorporation of this practice into operational planning by parties to a conflict. To increase the likelihood that a protected zone is more effective than the general prohibition on targeting, the establishment of such a zone could be coupled with concrete measures designed to implement and enforce the parties’ agreement. The draft Convention on the Protection of Children in Armed Conflict proposed by the International Save the Children Union (ISCU) in 1939 identified as one of its three substantive protections for children the creation of safe zones. A review of the content of the 1939 draft Convention should be undertaken to determine whether parts of it may now be adapted for inclusion in the new instrument which we have suggested. 9.13.14  In relation to IHL and the specific regime regarding attacks against schools: the lack of a specific IHL prohibition on targeting schools is a deficiency in the current IHL regime and means that schools do not benefit from the same protection as hospitals, even though they, like hospitals, contain a vulnerable category of people – children – who warrant special, express protection (and even though both schools and hospitals are protected by general IHL protections regarding civilian objects). 468

Specific Suggestions  9.14 We suggest that consideration is given to developing the law so as establish a specific IHL prohibition on targeting schools. Chapter 8: Denial of Humanitarian Access and Assistance 9.13.15  In relation to IHL and the regulatory framework: parties to conflicts have no specific obligation to agree specific measures such as temporary ceasefires and humanitarian pauses to ensure humanitarian access to children in conflict areas. The law should be developed so that parties to conflicts are obliged to try to agree specific measures to enable humanitarian access to children. 9.13.16  In relation to ICL and intentional starvation in NIAC: there is no ICL offence of the intentional starvation of civilians in NIAC. This is problematic because the existing crimes applicable in NIAC may not provide adequate protection against denial of humanitarian access. Consideration should be given to developing the law by recognising, as a war crime during NIAC, the intentional use of starvation of civilians as a method of combat. This offence, whether in IAC or, if enacted, in NIAC, does not and will not provide completely comprehensive coverage of all examples of refusing to consent leading to the denial of humanitarian assistance because it does not and would not cover interruptions of necessary relief supplies other than food. However, since the supply of food to civilians is, with water, the most critical form of relief and since the crime of intentional starvation as a method of warfare already exists in IAC, it should be established in NIAC. 9.13.17  In relation to ICL: there is no specific, international law crime of denying humanitarian access in conflicts and this arguably means there is a protection gap in ICL. Consideration should be given to whether the law needs to be developed by establishing a separate offence of the wilful denial of humanitarian access as a war crime and a crime against humanity. 9.14  As noted above, certain international law instruments would benefit from more widespread ratification (and, possibly, greater domestic implementation) in order to enhance (i) the substance of the available protections and (ii) accountability (see points (iii) and (iv) in paragraph 9.8 above). We make the following specific suggestions in this regard, 9.14.1  Greater ratification of API and APII would assist in strengthening the protection of children in IAC and NIAC (APII) since those instruments contain more detailed provisions regarding children than GCIV and CIL. See Chapter 3. 9.14.2  Greater ratification of OPAC should be encouraged to strengthen the protection of children regarding recruitment and use in armed conflict. See Chapter 4. 9.14.3  Greater ratification of OPSC should be encouraged to strengthen the protection of children regarding sexual exploitation and abuse. See Chapter 5. 9.14.4  Greater ratification of OP3 should be encouraged in order to enable the greater use of the CRC Committee, and thereby enhance the possibility of greater accountability. See, eg, Chapters 3, 4, 6, 7 and below, paragraphs 9.43–9.44. 9.14.5  Greater ratification of the Rome Statute should be encouraged in order to make greater use of the ICC, and thereby enhance the possibility of greater accountability. See, eg, Chapters 3, 4, 7 and below, paragraph 9.42. 469

9.15–9.19  Conclusion 9.15  We have also made other, incidental, suggestions which are not captured in the paragraphs above. For example, we have suggested that, where applicable, consistent use should be made of designation criteria for targeted sanctions (see Chapters 3, 4, 6, 7, 8). III.  GENERAL SUGGESTION: A NEW LEGAL INSTRUMENT

9.16  In Chapter 2 we addressed the complex and scattered nature of the existing IHL and IHRL framework (paragraphs 2.73 to 2.91) and the lack of compliance and enforcement (paragraphs 2.73 and 2.158). 9.17  Our response to these two systemic features is to suggest that consideration is given to creating a new legal instrument which combines the protections of IHL and IHRL regarding children in armed conflict. We suggest a new instrument for the following reasons. 9.18  First, easy identification: where the existing substantive legal provisions are adequate, albeit scattered across IHL and IHRL treaties and in CIL, the new instrument would collect them together in one place (and, in relation to CIL, codify existing rules). It may also be possible, in some instances, to consolidate, into one rule, rules which presently exist, with the same or similar content, in both IHL and IHRL. This process of collection, codification and consolidation would make it easier to identify the law. It would also assist in improving compliance and accountability: if there is one instrument that contains the relevant principal protections then it is easier to promulgate and explain those standards (including in the context of military training), monitor domestic implementation and design a streamlined international enforcement structure. That is to be contrasted with the present situation where the multiplicity of instruments and associated bodies means that there is greater risk of confusion, omission or inaction. See, for example, the illustrations of this complexity that we have noted earlier: Chapter 3, paragraphs 3.52.1 and 3.59.1; Chapter 4, paragraphs 4.46 and 4.52; Chapter 7, paragraphs 7.44.2 and 7.46. 9.19  Second, simplification: one instrument would simplify the process of complex legal analysis that is presently necessary when seeking to ascertain the applicable law. Two illustrations of how one instrument will simplify the law are as follows: 9.19.1  First, if all relevant protections for children in armed conflict are in one instrument it will, at the very least, reduce the present need (i) to work out what the various sources of law (treaties, CIL) provide; (ii) to ascertain whether one source is more protective (and, therefore, to be preferred) than another; (iii) to consider the ­hierarchy or inter-relationship between two (or more) potentially applicable IHL and IHRL treaty provisions and (iv) to consider the relationship between treaty provisions and CIL. For the most part, this exercise is, on the present state of the law, an analytically necessary one. This is even though, in some situations, some of the relevant and applicable substantive standards may be similar or, even, the same. For example the prohibition on torture and ill-treatment exists as a treaty provision in IHL and IHRL and is a rule of CIL. But, even in such situations, it is necessary to undertake the analysis – to examine the content and scope of application of the standard in question – before one can confidently conclude that they are substantially the same. 470

General Suggestion: A New Legal Instrument  9.20–9.24 9.19.2  Second, if all relevant protections regarding armed conflict are in one instrument it could reduce – if not eliminate – the need to (i) classify a conflict as either IAC, NIAC (APII) or NIAC (Common Article 3) and then (ii) to ascertain the applicable laws for that conflict. Again, for the most part, this exercise is, on the present state of the law, an analytically necessary one even though in some situations, such as the prohibition of torture noted above, the same norm may be applicable regardless of the nature of the conflict. The distinction between IAC and NIAC may remain relevant or necessary in relation to certain provisions but we anticipate that the single instrument could be drafted so as to at least reduce the need for different provisions for different types of armed conflict. 9.20  Furthermore, where existing provisions require modification or new provisions require consideration: having them in one instrument simplifies the process for achieving change and facilitates a holistic review of the law. 9.21  Third, clarification: in addition to collecting, codifying and consolidating existing law, the new instrument could clarify the law by (i) defining important concepts or terms that are vague or unclear and (ii) identifying more precisely the scope of substantive protections which are vague or unclear. 9.22  Fourth, develop standards: the new instrument would also provide an opportunity to develop the law. In particular, it could bind non-state armed groups – which would be a defined term – so as to extend to them a more substantively defined and codified legal framework regarding children than that which exists in Common Article 3, APII and CIL. These are, as noted in Chapter 2, the sources of international law that apply to non-state armed groups. Common Article 3 contains little detail and APII will only bind those non-state armed groups that operate in the territory of States Parties thereto (which presently number 168: see Chapter 2, paragraph 2.26) and only where there is a NIAC (APII). Although the authors of the ICRC Study on Customary IHL consider that a large number of CIL rules bind non-state armed groups, there is some debate over the extent to which this is so: see Chapter 2, paragraphs 2.58–2.60. The CIL Rules that we would anticipate incorporating in the proposed draft i­nstrument – as being applicable to non-state armed groups – are those which the ICRC Study regards as already binding on such groups. The instrument would not, therefore, seek to apply ICRC, CIL Rules 141, 143, 149–150, 157–158 and 161 to those groups (see C ­ hapter 2, n 66). 9.23  Fifth, accountability: collecting, codifying (and, insofar as possible, consolidating) the law in one instrument (whether or not clarification and development is also possible) would provide for enhanced accountability, both domestically and internationally: see further, paragraph 9.25ff below. 9.24  We recognise that there may be reservations regarding our suggestion of one new instrument. 9.24.1  For example, it may be said that a new instrument on children in armed conflict – when there are already so many instruments that regulate armed conflict and the treatment of civilians – will further fragment9 international law and that 9 See generally UNGA ‘Report of the Study Group of the International Law Commission’ (13 April 2006) 58th Session UN Doc A/CN.4/L.682. Available at .

471

9.25  Conclusion such fragmentation is undesirable because it undermines the coherence of the law. We would respond that the new instrument would only be fragmentary if it was to be yet another source alongside multiple, existing sources – but the instrument that we have suggested would constitute a single coherent source of IHL and IHRL regarding children and armed conflict. In any event, we do not accept that lack of coherence is an inevitable consequence where there are multiple sources of legal protection and multiple avenues of accountability. 9.24.2  It might also be said that it will be necessary to revisit existing legal protections, in both treaties and CIL, if a single instrument is to be considered and that this is undesirable because that may lead to those protections being diluted or diminished. There is always a risk, when attention is focussed on legal protections, that they could become less protective. However, in the present context (i) the relevant, existing, substantive treaty protections are, for the most part, widely or almost universally ratified and (ii) the relevant, existing, substantive rules of CIL (which often underpin the existing treaty protections) have been identified by the ICRC by reference to detailed evidence of ongoing state practice. Whilst political reality may mean that states, or others, seek, nevertheless, to dilute or diminish these protections they will need to confront the potentially unpalatable political and legal consequences of taking such a stance in light of (i) and (ii). That debate regarding our proposal for a single instrument may result in renewed political focus and impetus to improve the protections for children caught up in armed conflict, even if it does not result in a single instrument. In any event, it is not inevitable that the conclusion of this debate would lead to such dilution or diminution. Furthermore, whether to risk dilution or diminution of substantive legal protections as part of the effort to improve the law must be weighed up against preserving the status quo, ie when, even though such protections exist in treaties and CIL, there is an egregious lack of compliance and accountability. It may, therefore, be thought that the virtues of greater clarity, coherence, compliance and enforcement considerably outweigh those of potential dilution and that a new instrument provides the best opportunity, especially in the long term, of providing clear, coherent and enforceable protection for children in armed conflict. IV. ACCOUNTABILITY

9.25  As we have noted throughout the book, and above, there is room for substantive improvement to the legal framework protecting children in armed conflict and there is certainly a need to enable the easier identification of the law. However, we consider that improving compliance and securing accountability is the most challenging and urgent issue. Lack of accountability is a general shortcoming in international law. For example, in relation to IHL, the Introduction to the ICRC’s Study on Customary IHL observes, ‘The general opinion is that violations of international humanitarian law are not due to the inadequacy of its rules, but rather to a lack of willingness to respect them, to a lack of means to enforce them and to uncertainty as to their application in some circumstances, but also to ignorance of the rules on the part of political leaders, commanders, 472

Accountability 9.26–9.29 c­ ombatants and the general public.’10 Other, similar, observations may be found in the legal literature on children and armed conflict. 9.26  In Chapter 2, we summarised the key international accountability mechanisms that exist in IHL, IHRL and ICL, in the context of children and armed conflict. As we explained in Chapter 2: in considering international accountability mechanisms we have been concerned primarily to ascertain whether suitable and adequate adjudicative accountability mechanisms exist and we have not sought, therefore, to appraise in any detail the effectiveness of each existing accountability mechanism. We have not, for example, assessed whether the ICC’s prosecutorial practices and policies could be improved to secure better accountability for crimes against children. Furthermore, although our focus is on adjudicative mechanisms we have noted other accountability mechanisms, to illustrate the laudably wide range of existing efforts to secure accountability. 9.27  In Chapters 3–8 we considered examples of the ways in which the existing accountability mechanisms have operated in practice in the context of specific issues. We also considered some subject-specific accountability problems and suggested recommendations. 9.28  In this Chapter we focus on the general problems and deficiencies in the international adjudicative accountability mechanisms that exist regarding children and armed conflict and then make suggestions for improvement. As a preliminary point we consider domestic implementation and accountability: it is the questionable adequacy and effectiveness of existing domestic implementation and adjudication that makes it all the more important to take action on the international plane. As we have noted in earlier Chapters, a detailed review of domestic implementation and accountability is outside the scope of this book. However, it is as important as international accountability: the two are different but mutually reinforcing. The adjudication and enforcement of law is generally easier to achieve in a domestic legal context than an international legal context: the machinery of domestic law adjudication – both civil and criminal – is generally more developed, accessible and effective. But the possibility of international adjudication is needed. This is in order (i) to provide a remedy where there are no, or no adequate domestic remedies (including where there has been a failure to implement properly the international obligations); (ii) to provide international accountability and (iii) to ensure there is common and consistent interpretation and application of the relevant laws. A.  General Problems and Deficiencies in Existing Adjudicative Accountability Mechanisms 9.29  First, questionable adequacy and effectiveness of existing domestic implementation and domestic adjudication. As we have noted in earlier Chapters, domestic implementation and accountability is either required or encouraged by a number of relevant IHL, ICL and IHRL treaty provisions and there are a number of different ways in



10 ICRC

Study on Customary IHL (n 6), xxvii.

473

9.30–9.32  Conclusion which domestic implementation is monitored and recorded (for example by the ICRC and the CRC Committee): see Chapter 2, paras 2.92ff. But has there in fact been adequate and effective domestic implementation and enforcement of the IHL, ICL and IHRL norms that are most relevant to protecting children in armed conflict? 9.30  Our impression, from the sources we have considered, is that the answer appears to be ‘no’. There is undoubtedly some degree of domestic implementation regarding the relevant IHL, ICL and IHRL treaty law: one needs only to consider the ICRC’s database regarding domestic implementation of IHL or to read some of the CRC Committee’s Country Reports to see that there is clearly some implementation. However, such implementation does not appear to be effective. Thus, it does not appear to have generated any significant mass of notable or visible practical adjudication or enforcement. This may be because the obligation that international law requires to be domestically implemented does not go far enough and so there are lacunae: ie circumstances that are not adequately protected by the domestically-implemented international law. For example, the Geneva Conventions oblige States Parties to criminalise grave breaches but do not require them to criminalise similar conduct when it takes place in NIAC. Or the lack of visible enforcement of domestically-implemented international law may be because of a lack of invocation because, for example, the existence of the relevant protections is not adequately known or it is too expensive or too difficult (practically or evidentially) to bring claims or prosecutions. 9.31  In relation to this last point – lack of domestic enforcement because it is too difficult to bring claims or prosecutions – we note that there is a difference between (i) enforcement in the state that has been, or is, experiencing the armed conflict in question and (ii) enforcement in other states. 9.32  As to (i), ie enforcement in the state that has been, or is, experiencing the armed conflict: domestic law generally gives domestic courts jurisdiction over crimes committed in the territory of the state or by nationals of that state. Domestic prosecutions may therefore be brought in states that have experienced armed conflict on their territory in relation to crimes committed during that conflict. Other claims may also be possible, for example against public authorities, to uphold domestically implemented IHRL. However, the fact of the armed conflict itself may result in a lack of domestic legal enforcement: the relevant state institutions may lack the political will, resources or infrastructure or there may be a lack of adequately functioning and rule-of-law compliant institutions or a lack of relevant personnel (for example, judges and prosecutors). These likely practical and political impediments to domestic prosecution and other claims in the state in question make it all the more important that there exist alternative avenues for enforcement, including courts of other states.11 11 The 2016 ICRC Commentary to GCI states, ‘As at 2015, there seem to have been only 17 reported cases over the previous 60 years where domestic courts or tribunals have exercised universal jurisdiction over perpetrators of war crimes. Interestingly, the vast majority of these cases arose in the last 20 years and concerned events which took place in non-international armed conflicts. This limited number of national prosecutions based on universal jurisdiction can be explained by a variety of factors. The likelihood of prosecutions on the basis of universal jurisdiction is usually dependent on the presence of the alleged offender in a country which is willing and able to extend its jurisdiction over the offender. Some prosecutions on the basis of universal jurisdiction have faced insurmountable problems of proof. Access to evidence and witnesses, and obtaining the cooperation of the authorities of the States where the crimes have been committed, can be difficult. The distance between the

474

Accountability 9.33 9.33  As to (ii), ie enforcement in other states: domestic adjudication in states other than those where the conflict takes place or took place raises a combination of practical and legal difficulties. For example: 9.33.1  For a claim to be brought in such a foreign state an individual defendant must usually be brought within the territorial jurisdiction of that foreign state.12 Extradition agreements between states may be used to secure such jurisdiction to enforce,13 ie the individual accused may be extradited from the state where he is situated to the state that seeks to prosecute him. However, decisions to extradite (or not) may be heavily politicised. For example, although the UK House of Lords decided in 1999 that extradition of General Pinochet from the UK to Spain was lawful, that decision was overruled by then Home Secretary, Jack Straw, with the result that General Pinochet was not extradited.14 9.33.2  The law applied by the foreign court must prescribe the defendant’s conduct as criminal. The most common basis for jurisdiction to prescribe is territorial, ie the person is accused of a crime committed within the forum state’s territory. Universal jurisdiction, ie an exercise of jurisdiction over persons regardless of the location of the alleged crime or the nationality of the accused or the victim, is a less common basis for prescriptive jurisdiction. We note, for example: (i) CIL recognises that states may assert universal prescriptive jurisdiction over certain ICL crimes, such as war crimes (including war crimes committed in NIAC).15 However, although CIL enables states to prescribe conduct on the basis of universality for certain international crimes, it does not oblige them to do so.16 domestic courts of a third State and the place and time of the suspected criminal conduct makes the prosecution’s work hazardous, and can lead to acquittal for lack of evidence. Lastly, such prosecutions can be costly for the State carrying them out. Nevertheless, prosecutions by the domestic courts of other States can be a valuable alternative in the absence of prosecution in the States where the crimes were committed, as well as a necessary complement to prosecutions by international courts or tribunals’, at para 880 (internal citations omitted; emphasis added), available at . 12 We note that trials in absentia may be possible in certain states but they give rise to a series of problems, including the question of fair trial rights. 13 With regard to criminal law there are two distinct aspects of jurisdiction: jurisdiction to enforce, which is a state’s authority to apply its law to given conduct, by means of the exercise of, among others, law enforcement powers (such as investigation, arrest, prosecution and punishment) and jurisdiction to prescribe, which is a state’s authority to criminalise an act: see Roger O’Keefe, International Criminal Law (Oxford, OUP, 2015), Ch 1, for detailed consideration of the different aspects of jurisdiction. 14 See R v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No. 3) [2000] 1 AC 147. For reporting of the then Home Secretary’s decision not to extradite General Pinochet see, eg, Clare Dyer, ‘Extradition Refused as “Unjust and Oppressive”’ The Guardian (13 January 2000) available at . 15 ICRC, CIL Rule 157. See also the Arrest Warrant case in which the ICJ considered universal jurisdiction: Arrest Warrant of 11 April 2000 (DRC v Belgium) (Judgment) [2002] ICJ Rep 3. 16 In our research we have not come across any domestic cases in which crimes against children were prosecuted on the basis of the principle of universality. However, in the following case, Canada exercised universal jurisdiction over international crimes – the victims of which included children – but children were not considered a special category of victim, nor did their status as children play any other significant role in the legal reasoning: The Queen v Munyaneza (Désiré), Trial decision, 2009 QCCS 2201, [2009] QJ No 4913, ILDC 1339 (CA 2009), 22nd May 2009, Superior Court [QCCS]. Cases where war crimes in general have been prosecuted on the basis of the principle of universality are listed at ICRC Study on Customary IHL, Rule 157, fn 18, available at .

475

9.33  Conclusion (ii) Certain treaties – the Geneva Conventions and API – go beyond CIL and do oblige States Parties to provide for universal jurisdiction in their national legislation ­regarding ‘grave breaches’ but this only relates to IHL applicable in IAC. Therefore there is no codified IHL-required domestic accountability for NIAC.17 The r­ ationale for this may be that the domestic law of the state in which the NIAC is taking place is adequate to secure accountability. But this does not seem satisfactory when consideration is given (in light of recent NIAC) to factors such as the extent to which there has been break down in infrastructure in the state in question and the lack of functioning, or adequate, rule-of-law institutions in that state. (iii) Even where domestic criminalisation with universal jurisdiction is required by international law, states may still fail to pass that legislation. In relation to grave breaches of the Geneva Conventions and war crimes, for example, as of July 2017 only around 70 states have passed domestic legislation criminalising those acts under universal jurisdiction.18 (iv) Finally, and as we go on to consider below: even where states have legislated for these crimes on the basis of universality (such as the UK in relation to the Geneva ­Conventions19), that does not mean those laws will result in prosecutions. In the UK, for example, although the grave breaches legislation was passed 60 years ago, in 1957, it was only in 2005 that the first arrest warrant was issued under that Act (that warrant was ultimately never executed) and there have been no successful ­prosecutions.20 9.33.3  The individual defendant may rely on procedural or substantive bars to the foreign court’s jurisdiction, for example he may invoke an international law immunity or argue that the claim is non-justiciable. There are two types of immunity under international law that may be invoked. First, personal immunity (ratione personae), which attaches to specific, high-ranking state officials and covers all acts committed during office. Second, functional immunity (ratione materiae), which attaches to the specific acts of state officials, acting in their official capacity. Both categories of

17 See eg Prosecutor v Duško Tadić (Decision on the Defence Motion for an Interlocutory Appeal on Jurisdiction) ICTY, IT-94-1-A (2 October 1995), paras 83–84. Cf. ICRC, CIL Rule 158. 18 The ICRC Study on Customary IHL, at practice relating to Rule 157, details the states that have passed legislation granting jurisdiction over war crimes and state practice relating to universal jurisdiction for war crimes, available at ; and at Rule 157, fn 17, the study details those states that have passed legislation based on or referring to grave breaches of the Geneva Conventions, available at . Information on which states include universal jurisdiction over international crimes in their domestic legislation is available in the Country Reports to the Committee on the Rights of the Child under OPAC, which are available here: . 19 See the UK Geneva Conventions Act 1957 and the International Criminal Court Act 2001. 20 In 2005, a District Judge issued the first arrest warrant under the Geneva Conventions Act 1957 against retired Israeli General Doron Almog. His arrest was never secured, however, as he was not present on UK territory (see Human Rights Watch, Universal Jurisdiction in Europe, (2006) available at: ). Also: UK Parliament Human Rights Joint Committee, ‘Closing the Impunity Gap: UK Law on Genocide and Related Crimes’ (August 2009), available at .

476

Accountability 9.34–9.35 immunities may be invoked as being a procedural bar21 to both criminal22 and civil23 ­proceedings. International law immunities exist as a matter of both CIL and treaty law (for ­example, the Vienna Convention on Diplomatic Relations 1961,24 Vienna Convention on Consular Relations 1963,25 and the immunity extended to members of special missions), as developed in the case law of domestic and international courts. These international law immunities are owed by one state to another; they are not owed by states to the individual in question. As a result, individuals are not clothed with these international law immunities from prosecution in their own countries (although they may benefit from immunity under domestic law or from impunity under domestic policies or circumstances) and only their state (not the individual) can waive any relevant international law immunity where proceedings have been commenced in a foreign or international court.26 9.33.4  It may be difficult to bring the claim because of problems regarding access to witnesses; the preservation of, and access to, evidence and cultural or language barriers. 9.33.5  The cost of legal proceedings may discourage claims and prosecutions from being brought. 9.34  We do not seek to undermine or challenge the principle of complementarity in the Rome Statute, but note these practical and legal obstacles to domestic enforcement for two principal reasons. First, they show that it is not enough to create international law norms and to require states to implement them domestically. Consideration also needs to be given, on the international plane, as to how domestic enforcement of those norms may be assisted and improved and whether there can be international (codified) consensus on points such as the assertion of universal jurisdiction and (the non-application of) international law immunities in relation to particular acts. Second, it is, in part, because of these difficulties on the domestic adjudicative plane that there needs to be an additional mechanism of civil and criminal adjudicative accountability on the international plane. Criminal adjudicative accountability already exists in the form of the ICC and should be strengthened. Civil adjudicative accountability exists in the form of the CRC Committee and it, too, should be strengthened or developed (see below, in relation to our suggestion of one single instrument). 9.35  Second, questionable adequacy and effectiveness of existing international adjudicative mechanisms. In the earlier Chapters of this book we considered examples of international adjudicative accountability mechanisms that exist in relation to the 21 O’Keefe (n 13), Ch 10, para 10.7; Arrest Warrant case (n 15), para 60; Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda) (Judgment on Jurisdiction and Admissibility) [2006] ICJ Rep, para 24. 22 The ICJ considered personal immunities from criminal proceedings in the Arrest Warrant case (n 15) and Certain Matters of Mutual Assistance in Criminal Matters (Djibouti v France) [2008] ICJ Rep 177. 23 The ICJ considered state immunity from civil proceedings in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) [2012] ICJ Rep 99. Immunities from civil proceedings have also been considered in the ECtHR, for example in Al-Adsani v UK (2002) 34 EHRR 273 the ECtHR held that the procedural bar of state immunity did not violate the right of access to court/Article 6. 24 (Adopted 18 April 1961, entered into force 24 June 1964) 500 UNTS 95. 25 (Adopted 24 April 1963, entered into force 8 June 1967) 596 UNTS 261. 26 O’Keefe (n 13), Ch 10, paras 10.5 and 10.21.

477

9.36  Conclusion a­ pplicable IHL, ICL and IHRL. We have not sought to be exhaustive but it is apparent from our research that there is limited case-law that directly addresses the issues that we have considered in Chapters 3–8. There are a number of possible reasons for this limited case-law including limited access to legal advice and representation for potential claimants; difficulties in securing evidence and the complex legal framework (including the lack of one visible instrument) which may mean that there is a lack of awareness about the extent of protections for children in armed conflict and about avenues for relief. Since, as we have explained above, our focus is on whether there are adequate accountability ­mechanisms before which such claims could theoretically be pursued on the international plane: we make two observations based on the limited case-law that we have found. 9.36  First, although there are, in general, adequate accountability mechanisms the jurisdiction and competence of the two most important mechanisms – the ICC (re ICL) and the CRC Committee (re IHL and IHRL, as embodied in the CRC and Optional Protocols) – has not been accepted by enough states. 9.36.1  The ICC has jurisdiction where a crime is committed on the territory of a State Party or by a national of a State Party to the Rome Statute or where the UNSC refers a situation to the ICC.27 This limited jurisdiction means that the ICC lacks jurisdiction where, for example, a state is not a party to the Rome Statute and the situation has not been referred by the UNSC. There are currently only 123 States Parties to the Rome Statute.28 Moreover, the countries that have not ratified the Rome Statute include Syria, Iraq, Turkey, Somalia, Sudan, Yemen, Libya and South Sudan each of which are currently in a state of, or are party to, ongoing armed conflict. Further, some States have threatened to withdraw their ratifications of the Rome Statute and refused to cooperate with the Court. The AU, for example, has been critical of the ICC for its prosecution focus on Africa.29 9.36.2  The CRC Committee is only competent to receive communications where a state has ratified OP3. Only 37 States Parties30 have ratified OP3, compared with the 196 that have ratified the CRC. This may explain why the CRC Committee appears to have only received four communications to date; none of them relate to children in armed conflict. Three of them resulted in inadmissibility decisions and one was discontinued.31 27 Art 12, Rome Statute. 28 A list of States Parties including details of ratification is available at . 29 As a result, in 2009, the AU called on Member States not to cooperate with the arrest of Al-Bashir; a number of African countries consequently refused or failed to cooperate with the ICC in making that arrest. In February 2017, the AU called on states to withdraw from the Rome Statute unless the ICC was reformed. In the face of such non-cooperation, there is little the ICC can do, as it has no powers to directly enforce the compliance of State Parties (see Art 87(7), Rome Statute, providing that the ICC must refer findings of noncooperation to the assembly of States Parties, or, where the UNSC referred the case, to the UNSC)). For further detail see, eg, Dapo Akande, ‘Is the Rift between Africa and the ICC Deepening? Heads of States Decide not to Cooperate with the ICC on the Bashir Case’ (Blog of the European Journal of International Law, 4 July 2009) available at . 30 See the list of signatories and parties at . 31 The outcome of the four communications can be viewed online by searching for the CRC Committee’s jurisprudence here: . The communications were as follows: (i) AHA v Spain,

478

Accountability 9.37–9.41 9.37  This limited acceptance by states of the jurisdiction of the ICC and the even more limited acceptance of the competence of the CRC Committee inevitably means that the extent to which these institutions are able to contribute to providing accountability, by deciding cases and communications, is significantly curtailed. 9.38  Second, although individuals may be prosecuted before the ICC and states may be pursued through other international adjudicative measures: there is no general adjudicative accountabilty mechanism that applies to non-state armed groups (cf. other forms of accountability such as Deeds of Commitment and action plans under the MRM).32 This lack of accountability may be attributable to the fact that such groups may lack legal personality and it may, therefore, be difficult to make them party to legal proceedings.33 B.  Suggestions to Improve Existing Adjudicative Accountability Mechanisms 9.39  In light of the points above, we suggest as follows. 9.40  First, improving domestic implementation and enforcement. One primary instrument protecting children in armed conflict is likely to make it easier (i) for states to implement the necessary domestic laws (and to facilitate the enforcement of those laws before domestic courts) and (ii) for an international institution to monitor and assess the adequacy and effectiveness of that domestic implementation, ie the extent to which the instrument is being transposed into domestic laws and the extent to which it is being applied in practice. 9.41  In relation to the obstacles that may hinder the enforcement and application of international law, even where it has been domestically implemented (see above, paragraph 9.32ff): these obstacles reflect the complex practical, political and legal nature of the application of international law. It is inevitable that there may be gaps in protection as a result, for example, of peace settlements that might grant amnesty to ­perpetrators34 (amnesties may present more of a bar to domestic than ­international

Communication No. 1/2014 dated 23 September 2014, Decision adopted by the CRC Committee on 8  July 2015, CRC/C/69/D/1/2014; (ii) MAA v Spain, Communication No 2/2015 dated 5 October 2015, Decision adopted by the CRC Committee on 30 September 2016, CRC/C/73/D/2/2015; (iii) JABS v Costa Rica, Communication No 5/2016 dated 19 September 2015, Decision adopted by the CRC Committee on 17 January 2017, CRC/C/74/D/5/2016 and (iv) MEB v Spain, Communication No. 9/2017 dated 1 February 2017, Discontinuance decision adopted by the CRC Committee on 20 June 2017, CRC/C/75/D/9/2017. 32 For a consideration of enforcement against armed non-state groups, see Marco Sassòli, ‘Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law’ (2010) 1 International Humanitarian Legal Studies 5–51, 8ff; Eibe Riedel, ‘Economic, Social, and Cultural Rights in Armed Conflict,’ in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (re-print edn, Oxford, OUP, 2015), 454ff; Ben Saul, ‘Enhancing Civilian Protection by Engaging Non-State Armed Groups under International Humanitarian Law’ (2017) 22 1 Journal of Conflict and Security Law 39 and Tilman Rodenhäuser, Organizing Rebellion (Non-State Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law) (Oxford, OUP, 2018). 33 Rodenhäuser, ibid, 10–13 and 176. 34 For example, the Lomé Peace Agreement (signed in July 1999) between parties to Sierra Leone’s civil war granted amnesty to Foday Sankoh (leader of the Revolutionary United Front) and all combatants. The UN signed this peace agreement, with the caveat that the UN would not recognise amnesty for acts of genocide, crimes against humanity, war crimes and other serious violations of IHL. (The Lomé Agreement – and the UN’s response to it – is considered in some detail in William A Schabas, ‘Amnesty, the Sierra Leone Truth

479

9.42–9.44  Conclusion ­prosecution)35 or because a state may refuse to extradite an alleged war criminal to face prosecution e­ lsewhere.36 We make the following suggestions for diminishing the impact of some of these obstacles: 9.41.1  States could be encouraged to conclude extradition agreements tailored to respond to the need to secure accountability for violations against children in armed conflict. A template extradition agreement could be provided, for example as an annex to the instrument that we have proposed. 9.41.2  States could be required to criminalise conduct relevant to protecting children in armed conflict, regardless of where the conduct takes place and regardless of the nationality of the perpetrator or the victim (and this could be done in the instrument we have proposed). 9.41.3  Consideration could be given to the role of international law immunities (if any) in the context of crimes against children and whether there is scope for a codified provision in this regard (for example, recognising the non-application or waiver of international law immunities in certain situations). 9.41.4  Consideration could be given to creating a protected role (for example, for certain NGOs) in relation to the preservation and collection of evidence. 9.41.5  Consideration could be given to the creation of an internationally maintained legal aid fund to which applications could be made for financial assistance for legal advice and representation in order to bring claims to protect the rights of children in armed conflict. 9.42  Second, and as already noted above at paragraph 9.14.5, greater ratification of the Rome Statute should be encouraged in order to support the role and work of the ICC. 9.43  Third, and as already noted above at paragraph 9.14.4, the role of the CRC Committee should be strengthened. We have two suggestions regarding the CRC Committee. 9.44  Greater ratification of OP3 should be encouraged in order to support the role and work of the CRC Committee. We would also make the following suggestions: 9.44.1  The complaint mechanism (communications procedure, in Part II of OP3) of the CRC Committee should be more widely disseminated and explained so as to and Reconciliation Commission and the Special Court for Sierra Leone’ (2004) 11 University of California, Davis, Journal of International Law and Policy, 145.) Note that the Special Court for Sierra Leone (SCSL) subsequently held that amnesties granted under the Lomé Agreement were no bar to prosecution before it: see Prosecutor v Morris Kallon and Brima Bazzy Kamara: Decision on Challenge to Jurisdiction, Lomé Accord Amnesty SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E) (13 March 2004). 35 There is some question over whether amnesties are valid against international crimes charged by international courts. Art 10, Statute of the SCSL, provides that ‘an amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution.’ The Rome Statute, however, does not have an explicit provision on amnesties. As a result, there is some ambiguity as to whether, and if so how, amnesties affect ICC jurisdiction. See, eg, Anja Seibert-Fohr, ‘The Relevance of the Rome Statute of the International Court for Amnesties and Truth Commissions’ (2003) 7 Max Planck Yearbook of United Nations Law 553–90. 36 In 2012, eg, the US refused to extradite Gonzalo Sánchez de Lozada to stand trial for ­genocide in Bolivia. See Carlos Quiroga, ‘Bolivia says Washington won’t extradite former leader’, Chicago  Tribune (7 September 2012), available at: .

480

Accountability 9.45 encourage its use in relation to children and armed conflict. The Special Representative for Children and Armed Conflict could assist, for example with advocacy, in this regard. 9.44.2  The inquisitorial function (in Part III of OP3) of the CRC Committee should be more widely disseminated and explained so as to encourage its use in relation to children and armed conflict. Again, the Special Representative for Children and Armed Conflict could assist in this regard. 9.44.3  The CRC Committee should consider whether to produce one or more General Comments on the issues noted above at paragraphs 9.12–9.13, ie (i) the applicability of CRC provisions during armed conflict (including Article 38); (ii) recruitment and use in Article 38(2), CRC; Article 4(3)(c), APII and also OPAC; (iii) the definition of ‘child abduction’ (perhaps jointly with the African Committee of Experts in relation to the ACRWC); (iv) the existing IHRL framework in relation to attacks against hospitals and attacks against schools (potentially in a joint General Comment with the CESCR); (v) denial of humanitarian assistance and access in the context of the CRC (including Article 38(4)) and (vi) the scope of ‘appropriate measures’ (in Article 35, CRC and Article 29, ACRWC) (again this could be done jointly with the African Committee of Experts). 9.44.4  Consideration should be given to strengthening the capacity and resources of the CRC Committee. For example, it may be necessary to create full-time appointments and to increase the number of regular sessions (at present there are three regular sessions but special sessions may also be convened). 9.44.5  The Special Representative for Children and Armed Conflict could have a role in assisting and advocating for greater ratification of OP3. 9.45  Further, or alternatively, if our suggestion of a new instrument is adopted then consideration will need to be given to appointing a single, international entity regarding the implementation and accountability mechanisms for the instrument. One option would be to use the CRC Committee for this purpose and for it to be given the competence to monitor implementation, receive communications and conduct inquiries in relation to the instrument (ie the functions which it already has under the CRC). The CRC Committee is the only existing body to date on which states have conferred monitoring and adjudicative competence with respect to both child specific IHRL and some aspects of IHL (viz, Article 38, CRC and OPAC). This suggestion would necessarily involve modifications to the CRC Committee. For example, it is likely to need both greater funding and additional members, with specific areas of expertise. However, it may be preferable to expand and strengthen an already existing international entity than to create one de novo. The Special Representative for Children and Armed Conflict could assist the CRC Committee in this newly-expanded role, for example in relation to monitoring implementation and assisting with the conduct of inquiries. One way for the new instrument to benefit from the existing role of the CRC Committee would be for the instrument to be produced as an Optional Protocol to the CRC. States would then be 481

9.46–9.48  Conclusion able to ratify this additional Optional Protocol and could choose (where they have not already ratified OP3) to accept the competence of the CRC Committee only in relation to the provisions in that Optional Protocol (rather than in relation to the CRC as a whole). 9.46  Fourth, accountability for non-state armed groups. In general, we suggest greater support for initiatives such as Geneva Call’s Deed of Commitment. Further consideration should also be given to developing the MRM to provide non-state armed groups with opportunities to engage in dialogue with relevant authorities in relation to allegations associated with their listing or potential listing. 9.47  In addition, and if our suggestion of a single instrument is accepted, then we suggest that (i) the (collected/codified/consolidated) substantive standards in the instrument should be stated to bind non-state armed groups (subject to any necessary exceptions) and (ii) there should be an identified process to enable non-state armed groups to pledge to be bound by and uphold those standards and to accept the competence of the CRC Committee to receive communications and conduct inquiries regarding the conduct of the group. 9.47.1  As to (i): as we have already noted, the instrument would include substantive standards from existing treaties and the ICRC, CIL Rules. In relation to our reliance on treaty provisions: as noted in Chapter 2, Common Article 3 is (because of the universal ratification of GCIV) binding on all non-state armed groups and the provisions of APII are binding on non-state armed groups that operate in the territories of States Parties to APII in NIAC (APII). In relation to our reliance on the ICRC, CIL Rules: as we noted in Chapter 2, we have referred to and relied upon these Rules as evidencing and describing the present state of CIL. The Rules that we have relied upon are equally applicable in IAC and NIAC. In relation to those Rules that the ICRC has stated are applicable to states but not to non-state parties to armed conflict37: we have not sought to impose those obligations on non-state armed groups since those provisions are stated as being applicable to state parties only. 9.47.2  As to (ii): we suggest that a procedure should be identified, such as that which exists in relation to Geneva Call’s Deeds of Commitment, to enable non-state armed groups to pledge their commitment to the standards in the instrument.38 9.48  This proposal gives rise to a number of questions including: (i) how should responsibility be attributed to non-state armed groups and (ii) what are the consequences of recognising such responsibility of armed non-state groups? 9.48.1  In relation to (i) we note that, in practice, UN monitoring mechanisms such as the MRM are often required to make an assessment whether certain conduct may be attributed (in a factual sense) to particular non-state armed groups. We see no

37 These are: Rules 141 (legal advisers for armed forces); 143 (dissemination among the civilian population); 144 (ensuring respect erga omnes); 149–50 (responsibility and reparation); 157–58 (jurisdiction over and prosecution of war crimes); and 161 (international co-operation in criminal proceedings). See Jean-Marie Henckaerts and Els Debuf, ‘The ICRC and the Clarification of Customary International Humanitarian Law’ in Brian D Lepard (ed), Reexamining Customary International Law (Cambridge, CUP, 2017) 161, 168. 38 Geneva Call’s website explains that Deeds of Commitment ‘are signed by the [armed non-state actor] leadership and countersigned by Geneva Call and the Government of the Republic and Canton of Geneva.’ See .

482

Conclusion and Summary  9.49 reason why such factual assessments could not be undertaken by the CRC Committee if it was to be called on to decide the question of attribution. Whilst non-state armed groups are under an obligation to respect IHL and to ensure respect for IHL by persons under its control39 the issue of the responsibility of non-state armed groups under international law for the conduct of their members is underdeveloped.40 However, this lack of conceptual clarity is not an obstacle to, for example, the CRC Committee considering communications against a non-state armed group (that has accepted its jurisdiction) and deciding such communications. If the CRC Committee finds that such a group has violated the provisions of the instrument then the resulting decision is likely to contribute to shaping the law and ‘naming and shaming’ perpetrators of violations. Such decisions would represent a considerable achievement in the development of accountability mechanisms. 9.48.2  As to (ii): there may be political consequences of recognising such responsibility since it may be said to imply that the relevant non-state armed group enjoys international legal personality and status and this may raise politically sensitive issues. However, this issue has already been addressed in existing instruments, such as GCIV (in Common Article 3), which provides that the application of the provisions therein shall not affect the legal status of the parties to the conflict. A similar provision could be included in the instrument that we have proposed. V.  CONCLUSION AND SUMMARY

9.49  In conclusion, the findings and recommendations of this Chapter can be summarised as follows: • Our specific suggestions are as follows. (1) Certain existing substantive protections are vague or ambiguous and could be clarified. We have identified these in Chapters 3–8 and summarised them at paragraph 9.12 above. (2) Some substantive protections are under-developed or lacking altogether. The law could be developed to strengthen or create these. Again, we have identified these issues in Chapters 3–8 and summarised them at paragraph 9.13 above. (3) Certain international law instruments which contain important substantive ­provisions would benefit from further ratification. These include: Additional Protocol I (API), Additional Protocol II (APII), the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed

39 See ICRC, CIL Rule 139 which provides, ‘Each party to the conflict must respect and ensure respect for international humanitarian law by its armed forces and other persons or groups acting in fact on its instructions, or under its direction or control’. 40 See, eg, the ICRC commentary to ICRC, CIL Rule 149 (which deals with state responsibility and is not binding on armed non-state groups) which notes, in relation to the responsibility of ‘armed opposition groups’: ‘It can therefore be argued that they incur responsibility for acts committed by persons forming part of such groups, but the consequences of such responsibility are not clear’ (ICRC Study on Customary IHL (n 6), 536).

483

9.49  Conclusion Conflict (OPAC) and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (OPSC). (4) Accountability would be strengthened by encouraging greater ratification of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure (OP3) and the Rome Statute. (5) Accountability regarding non-state armed groups could be strengthened by giving greater support for initiatives such as Geneva Call’s Deeds of Commitment and to developing the MRM to provide non-state armed groups with opportunities to engage in dialogue with relevant authorities in relation to allegations associated with their listing or potential listing. • Our general suggestion is as follows. (1) One legal instrument regarding the IHL and IHRL protection of children in armed conflict would simplify the law and make it easier to identify. The process of preparing such an instrument would enable the consideration of clarifications to the existing law and, possibly, the development of additional protections. Having the law in one instrument would also make it easier to disseminate the law, monitor its implementation, develop and enforce it. An international institution would need to be appointed to carry out these roles. (2) The instrument would collect together existing (and presently scattered) IHL and IHRL treaty provisions. It would codify existing customary international law (CIL). Where possible, it could consolidate the law where it exists in similar versions in both IHL and IHRL. (3) One possible form for the instrument could be as an Optional Protocol to the Convention on the Rights of the Child (CRC). This would enable the deployment of the CRC Committee as the monitoring and adjudicative international institution. It could, therefore, be given the competence to monitor implementation of the instrument, receive complaints and to conduct inquiries regarding violations of the rights in the instrument. (4) The Special Representative for Children and Armed Conflict could have a broadened mandate, in order to be able to assist the CRC Committee in its newlyexpanded role. (5) The instrument should bind states and non-state armed groups. The former should be encouraged to ratify it and accept the jurisdiction of the CRC  ­Committee. The latter should be encouraged, through the use of an identified process, to pledge to uphold the standards in it and to accept the related competence of the CRC Committee. States could be required to implement the relevant parts of the Optional Protocol into their domestic laws and to facilitate the enforcement of those norms by domestic courts.

484

Annex I Unofficial Translation of the 1939 Draft Convention INTERNATIONAL SAVE THE CHILDREN UNION CONVENTION PROJECT FOR THE PROTECTION OF CHILDREN IN CASE OF ARMED CONFLICT …………. (names of the States or Head of the States) with the desire to ensure the respect and the protection of children living in States engaged in armed conflicts (name here belligerent States) (or belligerents) ………………………… have concluded the following Convention, which will be named “Convention for the protection of children in case of armed conflict”. CHAPTER I

Field of application Art.1 – The present Convention shall apply to all the children until the age of 14, without any distinction of nationality, race or faith, residing at the beginning or during the hostilities, in the territories of the States engaged in an armed conflict. CHAPTER II

Provisions and other deliveries for children. Art.2 – In case of need, by the intermediary of the International Save the Children Union, food provisions, outfits, drugs and other products or staple products shall be sent from foreign countries to belligerent countries to be used for the children. The deliveries shall be communicated beforehand to the Commission cited at article 12 which could, if necessary, control it. The reception and the delivery of the parcels will be executed by, or under the control of the International Save the Children Union. Neither any hindrance nor any delay will be caused by the belligerents during the conveyance and the distribution of the parcels.

485

Annex I CHAPTER III

Places of safety Art.3 – In times of peace, each High Contracting Party shall propose the authorization of the other Party regarding the possible future locations used exclusively as a secured location for the children. At the beginning or during the hostilities, each of the High Contracting Parties shall notify, by the intermediary of the International Save the Children Union, the potential secured locations. If there is no opposition within three days, at the reception of the communication, the secured locations will be considered as accepted by the belligerents and shall be respected and protected in any circumstances. The delimitation of the secured locations shall be marked by all means on the site and on the map. Art.4 – The present Convention shall protect all the secured locations, the means of transportation used to transport the children from the secured locations to their home when they are used for this duty. Secured Locations Art.5 – The protection of children shall be extended to healthcare employees, instructors, child care employees and also transportation employees for the exercise of their representative duties. Art.6 – The protected employees shall not exceed in number the 10% of children that are placed under their surveillance. Art.7 – The secured locations shall be installed outside the military zone, the urban and industrial centres, and they shall be moved away from any military target. Art.8 – The secured locations shall only be used for the protection of the children and the employees concerned in the articles 5 and 6. CHAPTER IV

On the trademark Art.9 – The trademark consisting in …………………………………. is the trademark of the protection provided by the present Convention. The secured locations placed under the protection of the present Convention shall be designated by this trademark, it should also figure on the means of transportation, whatever they are, exclusively affected to the transport of the children to the secured locations and back. Art.10 – The employees from articles 5 and 6 shall wear an armband of the trademark with the stamp of the State where the protected children live. The employees shall be equipped by a certificate from the State attesting their duties.

486

Annex I Art.11 – The belligerents shall take, as military requirements would allow it, all the necessary measures to make visible to the enemy, terrestrial, aerial and maritime, the distinguished trademark of the protection of the children preventing any aggressive action on the facilities.

CHAPTER V

Control Art.12 – The secured places shall be subject to the control of the Commissions composed of at least three neutral citizens designated urgently by the International Save the Children Union. The composition of the Commissions shall be subject to the approval of the belligerent from where they will fulfil their mission. The Commissions shall be in charge of ensuring that the locations provided for the Convention would only be affected to the protection of the children thanks to repeating visits. The Commission members shall be able to visit all the facilities and the means of transports that are provided for the Convention. The belligerent shall facilitate the working conditions of the Convention when such opportunity is available. The State where the secured places are located shall support the charges of each Commission and the accounts shall be fixed by the International Save the Children Union. Art.13 – According to the belligerent, the controlling Commissions shall immediately open an investigation on any alleged violation to the present Convention that has been committed on their controlling territory. The protection is maintained during the investigation. The belligerent shall be informed of the results of the investigation. Art.14 – In cases of an enemy occupation, the secured places shall preserve their ­original use. The belligerent shall not be authorized to change children’s affectations until the welcoming conditions are known.

CHAPTER VI

On the application and execution of the Convention Art.15 – The present provisions of the Convention shall be respected by the Parties at all times. In case one of the belligerents is not part of the Convention, these provisions shall however remain mandatory between the participating belligerents. 487

Annex I Art.16 – In case of a disagreement between the belligerents on the application of the provisions of the present Convention, the International Save the Children Union shall, to the extent possible, mediate and settle the argument. In this regard, the International Save the Children Union shall propose to the interested belligerents a meeting of their delegates, possibly on neutral territory. The belligerents shall commit to the proposals discussed and approved during the meeting. The International Save the Children Union, when appropriate, shall propose that a member of the neutral party or a delegate from the Union attend the meeting. Art.17 – The precedent provisions shall not be an obstacle to any humanitarian activities that the International Save the Children Union may develop in favour of children, with the approval of the interested belligerents. Art.18 – The High Contracting Parties shall take any necessary measures to instruct their teams of the provisions of the present Convention aiming at the knowledge of the concerned population. CHAPTER VII

On the suppression of abuses and infractions Art.19 – The Governments of the High Contracting Parties shall take or propose to their own legislature the necessary measures to prevent the use of the symbol of the International Save the Children Union from Chapter IV of the Convention when it has been used for another purpose than the final aim of the present Convention. Art.20 – The prohibition from article 19 shall be effective from the date that legislatures have enforced the present Convention, and up to one year after the enforcement of the present Convention. After the enforcement of the present Convention, it shall not be lawful to use the trademark or trade name contrary to the prohibition provided in article 19. Within the five-year period after the enforcement of the present Convention, trademarks, company names, association names or institution names disrespectful to this prohibition shall be changed regardless of their previous adoption. Art.21 – The Governments of the High Contracting Parties shall take or propose to their legislatures, in case of insufficient criminal laws, the necessary measures to suppress, in case of war, any act contrary to the provisions of the present Convention. The Governments of the High Contracting Parties shall communicate by the intermediary of …………………………………………. the provisions on this suppression up to five years after the ratification of the present Convention. Final Provisions (Article 31–38 of the Geneva Convention of 1929) 12 January, 1939 488

Annex II Unofficial Translation of the 1946 Draft Convention Preliminary conference of the Red Cross Societies for the study of conventions and issues related to the Red Cross GENEVA 26 July to 3 August 1946 ____________________ DOCUMENTATION provided by the BOLIVIAN RED CROSS ___________________

Document H.

489

Annex II

Translation BOLIVIAN RED-CROSS

La Paz Convention for the Protection of Children in times of World Wars or of Civil Unrest – Project

La Paz 1945 Bolivia 490

Annex II INTRODUCTION

The project presented by the Bolivian Red-Cross aims to set the boundaries of war, by protecting from its consequences the most cherished part of society: children. The ­Bolivian Red-Cross follows the tradition of significant efforts made in the past in the same spirit. Previously, the use of mercenary armies, and, other historical methods of war confined conflicts to delineated zones, away from civilian populations; but during the last world war, new weapons and new more modern techniques have affected civilians and lead to the search for other ways to protect these populations. The Red-Cross conventions are an efficient means of protection. There are conventions that protect sick people, wounded, prisoners of war and health personnel. The goal of the present convention is to protect children. The Geneva Declaration provides that “The child must be the first to receive relief in times of distress”. The 18th Pan-American Child Congress declares that “any protection plan should, in my case, take the child into consideration”. The American Charter on the Rights of Children in Times of War states that “We are all responsible for every child”. Yet, two basic child protection issues are still debated and must be highlighted. The first relates to the non-participation of children in war. Who can protect children if they are using guns? During World War II, young fighters served on both sides, especially in critical situations. However, publications from the relevant countries have shown that such service was seen as abnormal and one must hope that with the help of suitable child protection legislation, we will be able to renounce the use of fighters under 14 years old. The second point of controversy concerns the religious designation of groups. Many idealists insist on drawing this distinction between groups, with the laudable intention of protecting them. They demand that children be protected “against all proselytising from other religions”. Under this view, a child’s religion should be specified on their identification card, they will be grouped according to it in security zones, and, if they are selected by an adoption system, they will be adopted by families of the same religion. However, these measures, if they are designed in a spirit of protection and defense, can unfortunately lend themselves to aggression and persecution. This deplorable but widespread trend, has led some global organisations with wider experience to rule out any differences between those under their care and protection. The Catholic Church has affirmed “the infinite value of every human soul”. The Geneva Convention affirms the rights of “the Child”. The White House Conference declares that “we are all responsible of every child”, such phrase being adopted later during the war by the Children’s Charter. The Friends World Committee for Consultation (Quakers) compels its members to the strictest impartiality. The draft of the Convention of the International Union for Children’s Relief specifies that this convention will apply to “every child, without distinction of class, nationality, race or religion”. A religious group (Bahai) requires that children be rescued irrespective of “their race, their nationality, their sex, class or religion”. The Red Cross claims that “the differing treatment of prisoners is unlawful”. Our project endorses these same principles of ignoring the differences between protected children. Some collaborators have brought valuable ideas and well received solutions that we had to sacrifice for the overall unity of this Convention but in general we have sought to find 491

Annex II a place for every suggestion made. Some of the more detailed and technical suggestions have been kept so as to benefit the technical section relating the protection of the children. It is thanks to the collaboration of personalities and distinguished institutions that the creation of this work by the Bolivian Red Cross has been possible and, that the Central Committee of the Bolivian Red Cross has the honor of submitting this document for the approval of the International Committee of Geneva. Dr. Ruth Wreszinski Tichauer La Paz, May 1945.

492

Annex II ASSOCIATES

BILBAO, Ana Rosa T. de: Director of the Bolivian Red Cross, director of the professional school “Uruguay”, La Paz. BOWMAN, Paul Hoover: Relief administrator of the Friends World Committee for Consultation (Quakers), Spain, 1938–39. France and Finland, 1939–40. CARIAGA, Antonia Zalles de: President of the Bolivian Red Cross, president of the Bolivian section of the International Save The Children Union. COHEN, Dr. Benjamin: Professor, School of Social Service of the University of Chili, ambassador of the Republic of Chili to La Paz. CORTES, Oscar: Engineer, architect. DELGADO, Maria Luisa: Secretary General to the technical section of the interamerican cooperative service of Public Health, La Paz. HOLLETT, Major Arthur Russell: Sanitary engineer, major of the Health Corps of the U.S. Army. JAIMES FREYRE, Mireya: Accredited nurse, qualified professor. NARANJO, Rev. Father Nicolas Fernande: Press officer to the French legation, La Paz; professor at the University of San Andrés, La Paz. SINGER, Dudley G., Ph.C.: Attaché with the U.S. Embassy, La Paz. TICHAUER, Dr. Ruth Wreszinski de: Surgeon, chief of the External Section of the ­Bolivian Red Cross, Secretary of the Bolivian Section, UISE. TORRES BRACAMONTE, Dr. Francisco: Surgeon, chief of the pediatric department, inter-american cooperative service of Public Health, La Paz. WALKER, Rev. Father Frédérick P., B.A. Th. B. Ph. B.: Missionary of Maryknoll WILLIAMS, Margaret Ruth J. de, B.E.M.A.: Specialist in the organization of preschools, principal of the primary school of the American Institute, La Paz, 1942–44. ZUNIGA, Jovina N. de: Principal of the high school of Arica, Chili. Overall drafting: Dr. Ruth Wreszinski Tichauer, chief of the External Section of the Bolivian Red Cross, Secretary of the Bolivian Section, UISE.

493

Annex II TABLE OF CONTENTS

Introduction List of Associates A- THE CONVENTION ITSELF: First Chapter Paramount importance of protection of minors in time of conflicts and children’s rights Second Chapter The International Red Cross Protection Body Third Chapter Persons granted protection Fourth Chapter Means of Protection Fifth Chapter Protection Funding Sixth Chapter General provisions B- ANNEXES a) Legal aspects Annex 1

Insignia Inviolability of the facilities and of the persons Security zones Registration of protected persons Minimum conditions for relief Mandatory relief admission Claims regarding protection Claims regarding protected persons Cessation of the protected person status

b) Assistance from Governments Annex 2 General assistance Housing Food Clothes and bed linen Adult assistance Family unity preservation

494

Annex II Annex 3 Medical assistance Preventive Curative Annex 4

Education Primary, secondary and professional Recreational facilities

c) Assistance from Relief Agencies Annex 5 Relief Relief agency and requirements Authorization for relief activity Forms of relief Shipments General services  Special services: evacuation, camps settlement, installation and plan C- BIBLIOGRAPHY D- SUPPLEMENT: 27 sketches of health facilities

495

Annex II Governments of …………………………………………………………………………… …………………………………………… In light of the deplorable state of sanitation and excessive child mortality rate, being similar or worse than the situation suffered by soldiers themselves as a result of war and acts that violate human dignity and considering that conventions currently in effect, whose implementation the International Red Cross has the responsibility of ensuring, are inadequate. Convinced that, the aforementioned humanitarian and charitable entity effectively protects the people and institutions placed under its protection pursuant to international agreements in effect, it could also provide its protection to children, innocent victims of the collateral damage resulting from external and internal conflicts, Have decided to subscribe to a Convention for the protection of children in times of world war or of civil unrest, and to that effect, have designated the following plenipotentiaries: ………………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………… Such plenipotentiaries, after having exchanged their full powers found in due form, agree on the following:

496

Annex II Chapter 1 Children’s rights in international and civil conflicts Article 1 The High Contracting Parties recognize that the protection of minors below 14-yearsold, the physical and moral health of which the very fate of mankind depends upon, is a superior duty to which civilized peoples cannot escape, in particular in situations that may result from warfare and methods of repression applied in the context of war, and by certain Governments in the event of civil unrest, social, economic and political crises, in the area of legislation concerning minorities, disasters and public calamities, and solemnly undertake to repudiate, prevent such acts and refrain from them in their mutual relations and in the respective national jurisdictions. Chapter 2 The International Red Cross as protection body Article 2 For the implementation of the provisions contained in Article 1, they recommend to the International Red Cross the implementation of the measures indicated below and offer their full and loyal assistance. Article 3 The High Contracting Parties, the respective national Red Crosses or the competent persons in the sectors concerned shall notify the International Red Cross in Geneva, by the most expeditious and most efficient means, the existence of any situation falling within the remit of the contingencies provided for in the present Convention. The International Red Cross shall immediately inform the Governments concerned, suggesting to them the measures to be adopted with regard to persons protected by the present Convention. In order to procure such protection in an effective manner, it may seek the assistance of any High Contracting Party and have them provide support to minors at risk and such act shall not be regarded as an unfriendly act. Chapter 3 Persons granted protection Article 4 The High Contracting Parties shall provide assistance, directly or through the International Red Cross, to children, from their conception up to the age of 14-yearsold, belonging to belligerent countries in a state of war or civil war, or political groups

497

Annex II or groups that are subject to political or social persecution or repression, or placed in a situation of obvious inferiority in respect of their normal bio-psychological development as a result of social, economic or political crises, legislation treating minorities differently, etc., that such situations or states affect them directly or affect the persons or institutions on which they depend. Article 5 Children under the age of 14 shall be exempted from all penalties and consequences arising out of the or situations to which the present Convention refers, without in any case being traded, being considered as enemies or prisoners, or subjected to retaliation or persecution of any kind. Similarly, no child of this age may be employed or used, even temporarily, in any industry or activity of war, whether it is a principal or auxiliary industry or activity. Chapter 4 Means of protection Article 6 Annexes Nos. 1 to 5 inclusive, which constitute an integral part of the present Convention, contain measures to prevent and improve the aforementioned bio-­ psychological inferiority of these minors; to organize the gathering of children in need of relief, particularly concerning food, clothing, shelter, health and family links, evacuation, school education and vocational training; they also relate to the organisation of archives enabling the identification of a minor, to know where he or she comes from, the reasons for the assistance provided, etc. at any time, with a view to facilitating, in due course, his or her return and be able to specify his or her civil status. Chapter 5 Funding of the protection of the International Red Cross Article 7 In addition to the funds that each of the High Contracting Parties provides for payment of the costs resulting from the implementation of the present Convention on its own territory and dependencies, the High Contracting Parties undertake to contribute to the establishment of a special fund, in the form of annual contribution pro rata to their respective populations, with such percentage being set every five years by the Red Cross Board of Directors. This provision does not relate to the funds which may be provided by relief agencies duly accredited pursuant to Annex 2 of the present Convention.

498

Annex II Chapter 6 General provisions Article 8 Once the International Red Cross has accepted the role of securing this Convention’s implementation, it will form a technical department, charged with implementing the present convention and to introduce in the Annexes’ provisions, after consultation with national Governments, such changes as necessary and dictated by experience and scientific progress. Article 9 This Convention will be submitted to the High Contracting Parties for ratification pursuant to their respective constitutional procedures. Ratifications will be deposited with the Bolivian Minister of Foreign Affairs, who is charged with bringing it to the attention of the other Signatories. Article 10 This Convention will enter into force for an indefinite period, once ratified by the High Contracting Parties, representing 50% of the world population according to the last reliable census. Article 11 The High Contracting Parties shall have the right to repudiate this Convention having given one year’s notice. In witness hereof, the aforementioned plenipotentiaries sign the present Convention and affix their seal hereto, in the city of La Paz, Republic of Bolivia, on …………………………………………………….

499

Annex II LEGAL ASPECTS

Annex 1 Legal aspects 1.

2.

3.

4.

5.

6.

A distinctive insignia will be adopted for the people protected by the present Convention, as well as for the zones, buildings, means of transportation, equipment and personnel employed for this sole purpose. The International Committee of the Red Cross will be asked to authorise that such sign be the “Red Cross”. This symbol will be exclusively used in times of peace or war by the persons who require protection under the present Convention, as well as for the security zones, by way of guarantee against all military attacks. The people, buildings, lands and means used to ensure protection will have to meet the following requirements: a. Zones will be distinctly marked out, as well as land, sea and air routes, on maps, sketches, etc. b. These zones will be distant from urban and industrial centers, highways and military zones. c. These zones and all their facilities will be used exclusively for the welfare of children and their mothers, to the exclusion of any military or political use. d. All the belligerents will be informed in detail of the location and limits of these zones by the Protecting Power. e. The Protecting Power will have the right to inspect these premises when it deems appropriate. The security zones can be set up, and notice of these zones can be given to all countries, in time of peace, before one of the situations provided for by Article 4 of the present Convention arises. The facilities, the land and the equipment used to protect minors will be respected in the same way as private property. The personnel employed for this service will be inviolable and may not be imprisoned. Such persons will keep performing their functions and will receive their salary as long as the protecting authorities deem appropriate. The persons protected by the present Convention will be registered in time of peace, or at the latest as soon as a one of the situations provided for by Article 4 of the present Convention arise. The people and territories as well as the neutral regions, which will have taken on refugees, will be provided with a distinctive insignia. Insignia distributed by the Information Office should be resistant to mechanical forces, fire or water.

500

Annex II They will feature, in addition to the insignia, the identification number of the protected person and his or her identifying information. The protected person shall carry this insignia on his or her person and shall not be deprived of it. In case of loss, he or she shall have the right to a duplicate. If he or she should happen to die, half of the insignia should be retrieved so as to avoid fraudulent uses. 7. The register kept by the Information Office will consist of individual files comprising the following information on the relevant minor: a. Number, general information allowing identification, address, whereabouts, hospital admissions, school year, parents’ address and address of the two closest family members, and details of any siblings. In case of death, the cause of death, using the nomenclature of the International List of Causes of Death. If the age limit for protected minors has been exceeded, his or her status: unconditional freedom; prisoner of war; or conditional freedom that he or she shall have amongst the personnel engaged and serving in connection with the present Convention. b. For every protected mother, it shall be recorded: her number, her personal details, her address, her whereabouts, her hospital admissions, the date and results of her childbirths, the address of two of her closest family members; as well as, the address of the father of all of her children and of each of her children. In case of death, the cause of death, using, as indicated above, the International Lists of Causes of Death. If she ceases to fall within the protection criteria, her new status shall be ­specified. 8. This Office will be in charged with the distribution of parcel convoys and of correspondence destined for protected people, as well as any request for information related to them. The Central Office will be established at the Red Cross’s International Committee’s headquarters. These Offices will be granted franking privileges, and any delivery of correspondence or humanitarian aid parcels will be given priority, so as to avoid delays. 9. The Government under whose power such protected people fall will provide for them under conditions which shall be no less favorable than those specified in Annexes 1 to 4. It will also provide for the information offices established on its territory. 10. Relief destined for protected children and mothers shall be permitted to enter the territory at any time and in any place, whether the recipients of such aid find themselves on their own territory or on that of their adversaries, provided that such relief be duly accredited pursuant to Annex 5 of the present Convention. 11. The children as well as the health personnel taking care of them will have the right to notify the authorities of the country or territory on which they find themselves as

501

Annex II well as the Protecting Powers, of their demands and grievances relating to the treatment they receive. These demands or grievances shall be forwarded urgently, even if they are without any merit, and shall not give rise to any sanction. 12. The children protected by these agreements shall not be punished more severely than would otherwise be the case pursuant to ordinary justice and the correctional courts relating to minors of the country or territory on which they find themselves. They will not be required to do physical labour of such intensity that it could harm their physical health nor will they be exposed to situations which could otherwise harm their mental health. They will not be separated, even for punishment purposes, from their siblings under 14, unless in case of a sentence of solitary confinement and if unavoidable, and this separation will only be maintained for the period of confinement. 13. Children over 14 years old and mothers with children above 4 years old cease to be protected by the present Convention. These individuals, in case of necessity, can be deemed personnel working in the service of this Convention. If such individuals are detained by the enemy, they will become prisoners of war protected under the Geneva Convention. 14. The Red Cross Committee, through its intermediaries and delegates, will be charged with ensuring performance of all the undertakings entered into under the present Convention, by taking the measures required to solve any disagreement which may occur. To complete this task, the Committee will be authorised to inspect any locality, without exception. The belligerents shall facilitate, to the greatest extent possible, the work of such delegates of the international Red Cross committee. ASSITANCE FROM GOVERNMENTS

Annex 2 General assistance to children 15. For the duration of any conflicts addressed in Article 4 of the present Convention, children will have preferential right to assistance from the Government or the authorities of the territory on which they find themselves. 16. Children cannot be deprived of the right to housing, nor from clothes, food, transportation or anti-air defense protection, they cannot be separated from their siblings or their mother, on the pretext that they would belong to a certain group or be in a different sector and provided that such siblings or parent are not combatants. 17. Children will have priority over adults for housing, food and clothes. They will be given priority for protection in case of air strikes and in case of evacuation. 502

Annex II 18. As far as housing in concerned, children will have rights equal to those of prisoners of war under the 1929 Convention. However, it is recommended that these rules be improved such that the conditions specified in Annex 5 are met. If this is not possible, aid from the Relief Agencies that have been duly accredited should to be permitted in accordance with Annex 5, until such time as the level envisioned by the rules is reached. 19. As far as food is concerned, children shall receive a ration that, to the greatest extent possible, complies with the rules imposed by the Nutrition Conference, held at ­Washington in May 1941, as officially modified subsequently from time to time. The children’s ration shall be composed of the same elements as would be given to soldiers. In the countries where the soldiers’ ration is deficient and does not amount to a normal ration, in line with the eleven essential food groups, children will have the right to receive a full ration and in addition, food from accredited Relief Agencies, in accordance with Annex 5, until the ration is compliant with the level recommended by the aforementioned conference. 20. Food rationing shall not be determined according to the child’s age, but rather according to the physiological state of each child, his or her weight, height and development. 21. Persons charged with the care of children shall receive food cards and brochures on child hygiene, written specifically for this purpose. This instruction shall be complemented by professional talks and practical demonstrations for the benefit of mothers and people in charge of the children. 22. A far as clothes and underwear are concerned, children shall have the right to the same amount of spare clothes as troops of the territory on which the children find themselves, so as to have sufficient spare clothes so as to correspond to their growth and to normal wear and tear for their age. It would be preferable, in any case, if children have as many clothes as they require. If this is not possible, they shall have right to relief under Annex 5 of the present Convention. 23. As far as other useful articles and accessories relating to the three essential needs mentioned above (housing, food and clothes), children shall have the same rights as those granted to prisoners of war in the territory where they find themselves. The followings will be considered as useful articles: soap, water vessels, etc …; services: heating, light, etc … 24. Children shall have the right to assistance from adults, that is to say from their own family, from the technical and administrative personnel, from public services, including the personnel in charge of the implementation of this International Convention. In cases of emergency, and when children will be gathered into groups, they will receive assistance from the following categories of adult personnel: a. Mothers of children under 4 years old, who accompany such children and shall not be separated from them. 503

Annex II b. Pregnant women, who, pursuant to Article 4 of Chapter III of the present Convention (protection of children from their conception), benefit from the protection of this Convention. c. Children over the age of 14, who, pursuant to the programme of activities in a camp, will help younger children. Siblings shall not be separated. d. Executive, administrative and specialised personnel, appointed by the Government of the territory and by the Relief Agencies accredited pursuant to Annex 5 of the International Convention. In general, it will not be necessary that the number of people in charge of children exceed 1 person for 3 children, except in the case of groups of mothers with children under 4 years old or pregnant women. Annex 3 Medical assistance 25. For the duration of any conflict, children shall not be deprived from an ordinary service of preventive and curative medicine as a consequence to their belonging to a particular group. To the contrary, they shall have the right to medical assistance to the same extent as the soldiers of the country or territory where they find themselves. In addition, they will have priority over adults, and especially when they are in need of urgent medical or surgical treatment, of a preventive or curative treatment requiring hospitalisation or of rehabilitation. 26. Children will have priority over adults for the treatment of a number of diseases which may harm normal development, i.e.: general and specific undernourishment, rickets, scurvy, beriberi, pellagra, celiac disease, ariboflavinosis, night blindness, […], vitamin deficiency, metazoan infections, protozoa, microbes, and other afflictions, such as rheumatism, etc … 27. In such cases, the medical personnel shall go to the child; the medical personnel will not wait for the child to come to them. Inspections will be conducted in schools and locations when children may be gathered, and even in houses, so as to practise efficient preventive medicine. 28. In order to protect the children’s mental health, they will not be deliberately separated from their parents and their siblings; they shall not have to face neglect, nor exploitation, nor fear or other situations which may potentially harm their fillings. Doctors shall have the right to control implementation of the conditions specified in this Medical Annex as well as in other parts of this Convention, so as to safeguard the mental health of protected children. 29. Children shall not undergo medical or surgical operations, other than those medically prescribed for each individual case; they shall not be required to give blood or tissue samples extracted from their body.

504

Annex II 30. Mothers protected by the present Convention will have the right to a technical assistance identical to the one provided to soldiers from the country or territory on which they find themselves. In addition, they will benefit during their pregnancy, delivery and after birth from specific assistance designed to protect their life and health as well as the life and health of their children. 31. In case of the death of the child or of the protected mother, the cause of death will be recorded using the International Lists of Causes of Death. 32. For the duration of conflicts, none of the parties will prevent or delay medical relief to children. Such relief may include materials, equipment, and technical personnel for the provision of all the services of preventive and curative medicine and for the purposes of recovery, i.e.: vaccines, serums, insecticide, blood and its substitute, drugs, equipment for operating rooms, equipment for disinfection of zones, Braille literature, prosthesis, equipment for schools and professional workshops, etc. Annex 4 Education 33. In situations provided for in Article 4 of this Convention, children will be provided with educational and recreational facilities similar to those already in existence in the locality for all children. 34. For teaching, they will have to be granted appropriate premises, satisfactory equipment of good quality as well as a sufficient number of teachers, always linked to the official standards of the country or territory where they find themselves. 35. Children will be given an opportunity to participate in religious services and other activities of the groups of their choosing. 36. Acknowledging the educative value of family life, such family life will be stimulated and facilitated amongst family groups, in accordance with Article 24 of the Legal Annex. To spread the understanding of issues and techniques related to a healthy and beneficial family life, conferences will be given by personnel trained specifically for that purpose. ASSISTANCE FROM RELIEF AGENCIES

Annex 5 Relief a) Relief agency 37. Pursuant to Article 10 of the Annexes of the present Convention, protected persons will have the right to receive relief, in addition to that which would have been provided to them, so as to correspond to minimum requirements, by the Government of the country or the territory where they find themselves. 505

Annex II 38. All the organisations which wish to participate in the distribution of relief supplies shall ask for the permission of the Protecting Power of the Red Cross’ International Committee. This authorization will be granted in cases, where, in the opinion of the Red Cross’ International Committee, one of the situations provided for by the present convention exists and if the requesting organisation fulfills the following requirements: a. the organisation must be lawfully incorporated; b. its interest toward relief work must be purely humanitarian, without any preference for any party. All the members of its personnel must commit to the strictest impartiality; c. the personnel deployed by the Relief agency for such work should be prepared, both scientifically and in terms of their relevant experience, for the task which will be entrusted to them; d. the personnel shall have a perfect knowledge of the language spoken by the populations amongst which they are intended to work; e. they will have to undergo a complete physical and mental examination; f. the organisation will pay for the maintenance costs, journeys and medical assistance of its personnel; g. to this end, the organisation must have the necessary funds to ensure implementation of the whole relief programme; h. the organisation shall be obliged to make an initial deposit with the Red Cross’ International Committee for the purposes of its work and an additional deposit for each member of its personnel. The Red Cross’ International Committee will set at the outset the necessary funds for each eventuality. Deposits will be handed back when the organisation withdraw without any further obligations being due. In the event where an organisation would leave an outstanding debt when withdrawing, such debt shall be set off against the deposits, with the balance remaining for the benefit of the Red Cross’ International Committee. 39. The Red Cross’ International Committee, will have the right and the responsibility of awarding to each organisation its portion of work in the relief programme. 40. So as to ensure optimal cooperation, the government in charge of food and to provide for the basic needs of the children, pursuant to Annexes 1, 2, 3 and 4 of this Convention, will appoint representatives, who will act as contact persons between the relief offices and the Red Cross’ International committee. b) Various forms of relief Technical indications as to the various forms of relief (delivery and general and special services).

506

Annex III List of International and Non-Governmental Organisations This Annex identifies some of the main organisations working internationally on the issue of children in armed conflict. The organisations are listed alphabetically. For each we give details of the date of establishment, location of headquarters, a short summary of its purpose and its main subject matter areas of work, taken from publicly available sources. This list is illustrative, not exhaustive. Amnesty International. Amnesty was established in 1961. It is based in London. Amnesty lobbies governments and companies to respect international law and focusses this work, amongst other matters, on issues of armed conflict. The Child Rights Information Network. CRIN was established on 1991. It is based in London. It is a global research, policy and advocacy organisation. Their work is grounded in the Convention on the Rights of the Child 1989 (CRC). Their current priorities are monitoring patterns of children’s rights violations, advocating for change and documenting processes, experience and expertise for others to rely on. Child Soldiers International. Child Soldiers International was established in 1998. It is based in London. It is an international human rights organisation dedicated to ending the military use, abuse and exploitation of children. They work to prevent the recruitment of children by all types of military forces and to enable the safe and effective reintegration of children who have been recruited. The Children and War Foundation. The Foundation was established in 2000. It is based in Bergen. It is dedicated to improving children’s lives after wars and disasters. Its main activities are developing coping strategies for children, promoting research on the effects and consequences of war, publishing manuals and training people on them, making research publicly available. Childwatch International Research Network. The CWI Research Network was e­ stablished in 1993. It is based in Bogota. It is a network of institutions that collaborate in child research for the purpose of promoting child rights and improving children’s well-being around the world. Its agenda is based on the CRC. Conflict Dynamics International. Conflict Dynamics International was established in 2004. It is based in Cambridge, MA. Through the Children and Armed Conflict Accountability Initiative, it works to promote timely and effective accountability for serious violations of international law committed against children in armed conflict. This accountability includes judicial and non-judicial responses to redress past violations and prevent future violations. It provides training, technical expertise and support and outreach activities to 507

Annex III practitioners and policy-makers working on child protection, justice, peacebuilding and related fields. Coram Children’s Legal Centre. The CLC was established in 1981. It is based in London. It promotes and protects the rights of children in the UK and internationally in line with the CRC. It provides legal advice and representation, research, build the capacity of professionals and practitioners, challenge laws and policies that negatively impact on children and their rights. Coram International is the international wing of Coram CLC. It was established in 1997. It is based in London. A component of the Coram Children’s Legal Centre, it is a research institution and consultancy specialising in children’s rights. It works to defend and promote children’s rights, providing professional support to local, national and international governments, documenting and publishing research on rights abuses. One of their specialist areas is children and armed conflict. Defence for Children International. DCI was established in 1979. It is based in Geneva. It  works, amongst other matters, on children in conflict. On this issue, it lobbies and advocates to promote violence prevention strategies, help rebuild the lives of those already affected and protect vulnerable children. It was one of the founders of the Working Group on Children and Armed Conflict’s Focus Group on Children and Armed Conflict. Geneva Call. Geneva Call was established in 2000. It is based in Geneva. Geneva Call works to promote respect by armed non-state groups for IHL. Its primary means of doing so is the ‘Deed of Commitment’, an instrument signed by armed non-state groups who thereby undertake to respect IHL. One of these Deeds is focussed on protecting children from the effects of armed conflict. Global Coalition to Protect Education from Attack. The GCPEA was established in 2010. It is based in New York. The GCPEA is governed by a steering committee composed of the Council for At-Risk Academics, Human Rights Watch, Institute of International Education, Protect Education in Insecurity and Conflict, Save the C ­ hildren, UNICEF, UNESCO and UNHCR. It advocates for the protection of students, teachers, schools and universities from attack. It works to highlight attacks on education in conflict, promote better systems to monitor and protect against such attacks, encourage adherence to international law, strengthen international law norms and fight impunity for attacks on education. Human Rights Watch. HRW was established in 1978. It is headquartered in New York City. It works to defend human rights worldwide through investigating abuses, publishing facts of those abuses and pressuring those in power to respect rights and secure justice. Annually, it publishes over 100 reports and briefings on human rights conditions in around 90 countries. As part of this mission, it works on children’s rights, in armed conflict and otherwise. International Committee of the Red Cross. The ICRC was established in 1863. It is based in Geneva. The ICRC is an impartial, neutral and independent organisation whose exclusively humanitarian mission is to protect the lives and dignity of victims of armed conflict and other situations of violence and to provide them with ­assistance. As part of this mission, it works on children in armed conflict. The Roméo Dalliare Child Soldier Initiative. The Child Soldiers Initiative was ­established in 2007. It is based at Dalhousie University, Halifax. It is a global partnership that aims 508

Annex III to progressively eradicate the recruitment and use of child soldiers through a security sector approach. It delivers training to security sector actors, conducts interdisciplinary research to develop new solutions to the problem of child soldiers and engages in highlevel ­advocacy to promote the political will to end the use of child soldiers. Save the Children. Save the Children was established in 1919. It works to bring about a world in which every child attains the right to survival, protection, development and participation. It works in disaster relief, to provide education, to tackle child poverty, to provide better access to healthcare, to prevent hunger, to protect and promote children’s rights and to protect children who are being exploited or are in danger. Save the Children works in over 120 countries. As part of this broad global mission, it works on children and armed conflict. The Watchlist on Children and Armed Conflict. Watchlist was established in 2001. It is based in New York City. It aims to end violations against children in armed conflicts and to guarantee their rights. They collect and disseminate information on violations against children in armed conflicts in order to bring about worldwide programs and policies to better protect children. War Child International Network. War Child was established in 1993. It is committed to protecting and supporting children affected by armed conflict. It does so through providing safety from armed conflict, improving access to education, offering psychological support, training children in business skills, helping children understand their rights and access to justice. UNICEF. UNICEF (the UN Children’s Fund) was established in 1946; it became a permanent part of the UN in 1953. It is headquartered in New York City. It was created with the purpose of working to overcome the obstacles that poverty, violence, disease and discrimination place in a child’s path. It works in around 190 countries to promote the rights and wellbeing of every child. It upholds the CRC. As part of this broad, global mission it works on children and armed conflict.

509

510

Index abduction see child abduction accountability mechanisms see also individual courts and bodies; specific subjects adjudication issue, 1.8.2 adjudicative mechanisms, 2.92.1–3 child abduction deficiencies, 6.51–53 ICL, 6.44–45 IHL, 6.35–43 IHRL, 6.46–50 improving, 6.54 survey, 6.34–54 child soldiers deficiencies, 4.162–170 survey, 4.127–172 conclusions, 9.25–48 data gaps, 7.95, 7.98 defendants, 2.95 domestic courts see domestic accountability funding, 9.41.5 general problems, 2.158, 9.29–38 hospitals, 7.74–99 humanitarian access ICL, 8.141–142 IHL, 8.125–140 survey, 8.124–151 ICL complementarity, 2.130.2, 5.93.1 domestic courts, 2.129–131 international mechanisms, 2.132–138 killing/ill treatment, 3.144–145 sexual violence, 5.93–95 survey, 2.129–138 UNSC, 2.138 IHL domestic mechanisms, 2.98–105, 3.120, 5.86, 7.75 failure, 3.58 ICRC, 2.127 IHFCC, 2.109, 2.112 international mechanisms, 2.106–128 meetings of contracting parties, 2.113 NGOs, 2.128 overview, 2.98–128 protecting powers, 2.110 reforming, 2.115–116

respect duties, 2.99–101 treaty bodies, 2.108 United Nations, 2.117–126 IHRL child soldiers, 4.152–160 domestic mechanisms, 2.139–142 ILO, 2.156 international mechanisms, 2.143–160 killing/ill treatment, 3.146–148 NGOs, 2.157 survey, 2.139–197 treaty bodies, 2.150–153, 3.148, 4.158–60 United Nations, 2.154–155 improving, 9.39–48 protected roles, 9.41.4 international mechanisms adequacy, 9.35–38 child abduction, 6.36 child soldiers, 4.155–160 competence issues, 9.36 courts, 2.92.2, 2.106–107, 4.155–157 hospitals, 7.76–83, 7.85–87 humanitarian access, 8.129, 8.142, 8.144 ICL, 2.132–138, 4.146–150 IHL, 2.106–128 IHRL, 2.143–160 jurisdiction issues, 9.36–38 killing/ill treatment of children, 3.121–122 non-state armed groups and, 9.38 schools, 7.125 sexual violence, 5.87, 5.94–95 jurisdiction problems, 2.158.1 killing/ill treatment of children deficiencies, 3.150–153 improving, 3.154–156 survey, 3.119–156 Machel Report (1996), 1.50–51 new single instrument, 9.23, 9.45 NGOs see NGOs non-adjudicative mechanisms, 2.92.4–6 non-state armed groups, 9.38, 9.46–48 overview, 2.92–158 satellite information, 7.99 schools, 7.124–142 scope, 2.4.3 sexual violence, 5.85–104 spectrum, 2.92–97, 4.127

511

Index success stories, 1.111 treaty bodies, 2.92.3 child abduction, 6.48 child soldiers, 4.131, 4.158–160 hospital protection, 7.77 hospitals, 7.90 humanitarian access, 8.130, 8.145 IHL, 2.108, 3.122 IHRL, 2.150–153, 3.148 killing/ill treatment of children, 3.122, 3.148 schools, 7.126, 7.140 United Nations see UN ACERWC (African Committee of Experts on the Rights and Welfare of the Child): access to education, 7.140.4 adjudicative function, 2.92.3 child abduction and, 6.29, 6.48.1, 9.12.7, 9.13.11 child soldiers, 4.159 competence, 6.27.2 dispute resolution, 2.151.1 functions, 2.41, 2.151 hospital protection and, 7.77 humanitarian access and, 8.130, 8.145.1 investigations, 2.151.2 killing/ill treatment of children, 3.122, 148.2 monitoring function, 2.151.3 non-adjudicative mechanism, 2.92.5 sexual violence and, 5.98.2 adjudication issue, 1.8.2 advance warnings, 3.38.2, 3.98.7 Afghanistan: child abduction, 6.37.3, 6.38 child soldiers, 4.142.2, 4.143 hospital attacks, 1.96, 1.97, 7.80 hospitals, 7.78 humanitarian access and, 1.102, 8.135.2, 8.135.4 ICC and, 3.150 killing/ill treatment, 1.83, 3.5, 3.133 action plan, 3.135, 3.136, 3.141 Safe Schools Declaration and, 7.135.1 school attacks, 1.94 sexual violence, action plans, 5.89.3 UNAMA, 4.143.1 African Charter on Human and Peoples’ Rights (ACHPR): forced labour, 6.22.5 Maputo Protocol, 7.70 right to life, 3.90, 3.96.4 scope, 2.55 slavery, 6.22.4 torture/inhuman treatment, 3.101 African Charter on the Rights and Welfare of the Child (ACRWC): ACERWC see ACERWC

armed conflicts, killing/ill treatment, 3.110, 3.113, 3.117, 3.118 child abduction, 6.21.2, 6.25, 6.26.2, 6.27.2, 9.13.11 child soldiers, 4.95 contents, 1.39 entry into force, 2.42 humanitarian access, 8.86, 9.12.13 origins, 1.39 overview, 2.40–42 right to life, 3.91 sexual violence, 5.71 state parties, 2.42 African Commission on Human and Peoples’ Rights: humanitarian access and, 8.144.1 role, 2.152 schools and, 7.139 sexual violence, 5.98.1 women and children in armed conflicts, 2.68 African Court of Human Rights, 2.144 African Union, 2.137, 5.89.2, 7.70, 7.135.2, 9.36.1 age limits see definition of child al-Qaida, 1.105, 7.8.2, 8.75.8 al-Shabbab, 5.89.2, 6.1, 8.75.8, 8.131.7 American Convention on Human Rights (ACHR): child abduction, 6.47.2 children’s rights, 6.47.2 family rights, 6.47.2 forced labour, 6.22.5 inhuman treatment, 6.47.2 right to liberty, 6.47.2 right to life, 3.90, 3.96.3, 6.47.2 scope, 2.54 slavery, 6.22.4 American Declaration on the Rights and Duties of Man (1948), 1.32 Amnesty International, Annex III(2) API (1977) see also humanitarian law (IHL); specific subjects accountability mechanisms domestic courts, 2.103, 2.130.1 meetings of contracting parties, 2.113 child soldiers, 4.15–31, 4.53 CIL and, 3.59.3 definition issues, 3.54.2 cruel treatment, 3.50.6 definition of child, 2.71.2, 3.43.5 entry into force, 2.23 grave breaches, 3.67.1, 3.72 humanitarian access conditions, 8.61–62 consent, 8.38–52 milestone, 9.2 origins, 1.33.5

512

Index ratification problem, 3.52.2, 3.59.2 relevance, 2.16, 2.21–22 respect obligations, 2.99 sexual violence, 5.18.1, 5.19.1 state parties, 2.23 APII (1977) see also humanitarian law (IHL); specific subjects child soldiers, 4.32–36, 4.55, 4.118 CIL and, 3.59.3 classification of conflicts, 2.77.2 definition issues, 3.54.2 cruel treatment, 3.50.6 definition of child, 2.71.2 domestic accountability mechanisms, 2.104.2 entry into force, 2.26 humanitarian access consent, 8.53–54 regulation, 8.64–65 milestone, 9.2 obligations, 2.14.1 origins, 1.33.5 ratification problem, 3.52.2, 3.59.2 relevance, 2.16, 2.24–25 scope, 2.89.1 sexual violence, 5.18.2, 5.19.2 state parties, 2.26 Arab Charter, 2.57, 3.90 Argentina: Falkland/Malvinas conflict (1982), 7.34.2 Safe Schools Declaration and, 1.67.9, 6.33, 7.135.1 armed conflicts: classification, 2.74.1, 2.76–80 child soldiers and, 4.46 definition, 2.80, 3.59.1 humanitarian crises and, 8.13–24 IACs see international armed conflicts NIACs see non-international armed conflicts armed forces: meaning, 4.30 asset wars, 1.78.2, 1.106 atrocity crimes, 8.122.2 Austria: enlisting age, 4.125 Ban Ki-Moon, 1.110.2 Bangladesh: enlisting age, 4.125 Bartels, Rogier, 8.114.1, 8.114.2 BIICL Handbook, 7.44.5, 7.101 biological weapons, 3.29.1, 3.67.3 Boer War, 1.2 Boko Haram, 1.91, 1.105, 1.107, 3.133, 5.2, 6.1 Bolivia: draft convention (1946), 1.28–30 booby-traps, 3.29.4 Bosnia Herzegovina, 7.34.5 Bourne, Josephine, 1.93

Boutros-Ghali, Boutros, 1.44 Brown, Gordon, 1.10 Bulgaria, 5.77.2 Burundi: child soldiers, 4.142.3 Buxton, Dorothy, 1.22 Cairo Declaration (1990), right to life, 3.91 Cambodia: Civil War (1975), 7.34.2 Extraordinary Chambers, 1.74, 2.137.3 Canada, 1.69, 8.128 Cape Town Principles, 1.67.7, 1.67.8, 2.63, 2.65 CEDAW: minimum age of marriage, 5.75 origins, 1.33.6 sexual violence and, 5.3 CEDAW Committee: on gender-based violence, 5.14.3 schools and, 7.140.3 sexual violence, 5.80–81 Central African Republic: child abduction, 6.1, 6.37.3, 6.48.1, 6.53 child soldiers, 1.87, 4.138, 4.159.1 hospital/school attacks, 7.79.2 humanitarian access and, 8.131.5, 8.132, 8.135.2, 8.135.4, 8.145.2 ICC and, 3.150 killing/ill treatment, 1.84, 3.133, 3.148.2 Safe Schools Declaration and, 7.135.1 sanctions, 3.127, 3.128 school attacks, 1.94 sexual violence, 1.90, 5.89.2, 5.95.2 UNSC sanctions, 3.129.5, 6.37.2, 7.79.2, 8.131.5, 8.131.7 Central Tracing Agency, 3.45.1, 6.43 CESCR: economic sanctions and, 8.89.6 hospitals and, 7.73, 7.90.1, 9.12.8 right to education, 7.117–119, 7.140.2 schools and, 9.12.9 Chad, 1.94, 4.142.3 chemical weapons, 3.29.1 child abduction: accountability mechanisms deficiencies, 6.51–53 domestic courts, 6.35, 6.46 ICL, 6.44–45 IHL, 6.35–43 IHRL, 9.44.3 improving, 6.54 regional courts, 6.47 survey, 6.34–54 treaty bodies, 6.48

513

Index CIL, 6.12, 6.23–24 definition, 6.6–7, 9.12.7 ICL issue, 6.15, 6.20 IHL issue, 6.13, 6.14, 6.28–31 IHRL, 6.25–27, 9.44.3 domestic law and, 6.20 ICL accountability mechanisms, 6.44–45 crimes against humanity, 6.17.1 deficiencies, 6.18 definition, 6.15, 6.20 genocide and, 6.16, 6.18.1, 6.19 improving, 6.19–20, 9.12.7 legal framework, 6.15–17 war crimes, 6.17.2 IHL accountability mechanisms, 6.35–43 deficiencies, 6.13 definition, 6.13 domestic courts, 6.35 ICRC, 6.43 improving, 6.14, 9.12.7 international courts, 6.36 legal framework, 6.10–12 regional initiatives, 6.42 UNGA measures, 6.40 UNSC measures, 6.37–39, 6.53 IHRL accountability mechanisms, 6.46–50 arbitrary detention, 6.22.7 conventions, 6.21–24 deficiencies, 6.25–27 definition, 6.25–27, 6.28–31 domestic courts, 6.46 forced disappearances, 6.22.6 forced labour and, 6.22.5 improving, 6.28–31, 9.12.7, 9.13.11 inhuman treatment, 6.23 protocols, 6.22.3 regional courts, 6.47 slavery and, 6.22.4 trafficking, 6.22.3, 6.48.3 treaty bodies and, 6.48 legal framework ICL, 6.15–17 IHL, 6.10–14 improving, 9.12.7, 9.13.11 legal treatment issue, 6.8 objectives, 6.2 overview, 1.91–92 soft law, 6.32–33 trend, 6.1 child pornography, 1.36, 2.47, 5.67.2, 5.70 Child Protection Working Group (CPWG), sexual violence, 5.21.2

Child Rights Information Network (CRIN), Annex III(3) child soldiers: accountability mechanisms deficiencies, 4.162–170 domestic protection, 4.54, 4.56, 4.126.1, 4.129, 4.145, 4.152–153 ICL, 4.145–151 IHL, 4.129–131 IHRL, 4.152–160 improving, 4.171–172 international courts, 4.146–150 NGOs, 4.144 survey, 4.127–172 UNSC, 4.132–139, 4.166–170, 4.172 age limits, 4.10, 4.17.1, 4.41–44, 4.43, 4.51, 4.85, 4.99, 4.109.1, 4.110.4–7, 4.125 armed groups, 4.111–115, 4.119, 4.138, 4.170 consolidating international law, 4.124 direct participation, 4.22–26, 4.48, 4.109.3 enlisting ICL, 4.68.2, 4.71–73, 4.88 meaning, 4.11–13 voluntary enlistment, 4, 4.12–13, 4.17.3, 4.36, 4.49, 4.88 history, 1.18 ICL accountability mechanisms, 4.145–151 active participation, 4.75–76, 4.87.2, 4.89, 4.91.2, 4.93 age limits, 4.43, 4.85 conscripting, 4.68, 4.71–73, 4.88, 4.92 consolidating, 4.52 deficiencies, 4.84–89 domestic courts, 4.145 enlisting, 4.68, 4.71–73, 4.88, 4.92 humanitarian law, 4.6.1, 4.37–40 IACs, 4.6.1, 4.59.1, 4.66–76 IHL inconsistencies, 4.86–87, 4.91 improving, 4.90–93, 9.12.3–5, 9.13.5 mental element, 4.69 national armed forces, 4.74 NIACs, 4.6.2, 4.59.2, 4.77–80 recruitment, 4.72–73, 4.87.1 Rome Statute, 4.58–79 SCSL Statute, 4.63–64 sexual violence, 4.76, 4.84 survey, 4.57–79, 4.81–83 use, 4.68.3, 4.76 IHL accountability mechanisms, 4.129–131 age limits, 4.41–44, 4.51 API (Art 77.2), 4.15–31, 4.53 APII (Art 4.3), 4.32–36, 4.55, 4.118 armed groups, 4.138

514

Index complexity, 4.46 consolidating, 4.52 customary law, 4.6.1, 4.37–40 deficiencies, 4.41–49 definition of child, 4.10, 4.33, 4.41–44, 4.51 domestic courts, 4.129 fragmentation, 4.46 GCIV (Art 50), 4.8–14, 4.42 IACs, 4.6.1, 4.8–31 ICL inconsistencies, 4.86–87, 4.91 IHRL differences, 4.117–118, 4.124 improving, 4.50–56, 9.12.3, 9.13.5–7 international courts, 4.130 legal framework, 4.5–40 NGOs, 4.144 NIACs, 4.6.2, 4.32–36, 4.48.2 treaty bodies, 4.131 IHRL accountability mechanisms, 4.152–160 age limits, 4.99, 4.109.1, 4.110.4–7 armed groups, 4.111–115, 4.119 CRC, 4.94–105 deficiencies, 4.116–120 direct participation, 4.109.3 domestic protection, 4.152–153 feasible measures, 4.109.2, 4.115 framework, 4.94–115 hostilities, 4.109.4 IHL differences, 4.117–118, 4.124 improving, 4.121–126, 9.12.3–5, 9.13.8 international courts, 4.155–157 OPAC, 4.94.2, 4.106–120, 4.125–126 participation, 4.100–102 priority, 4.31, 4.105 recruitment, 4.103–104, 4.110 state armed forces, 4.109, 4.112, 4.119 survey, 4.94–126 treaty bodies, 4.158–160 improving legal framework, 9.12.3–5, 9.13.5–8 international guidelines, 1.67.7–69 Machel Report, 1.47.1 motivations, 4.110.7 overview, 1.85–87 participation in hostilities API, 4.16–17 APII, 4.34–35 CRC, 4.100–102 feasible measures, 4.19–21, 4.47 ICL, 4.75, 4.87.2, 4.89, 4.91.2 prioritising, 4.31 recruitment API, 4.27–30 APII, 4.36 CRC, 4.103–104, 4.110.5

customary law, 4.40 ICL, 4.72–73, 4.87.1 MRM, 4.141 OPAC, 4.110 sexual violence by own groups, 5.60, 5.63 status, 4.149 UNICEF and, 1.67.7 Child Soldiers International, 4.43, 4.144, Annex III(4) ‘Children, Not Soldiers’ campaign, 1.59 Children and War Foundation, Annex III(5) children in armed conflicts see also specific issues 1925–96 history, 1.18–44 1949–2017 developments, 9.2–5 adjudication issue, 1.8.2 codification of law, 1.8.1, 1.12.4 continuing issue, 9.6 general IHL protection, 7.18 images, 1.2 legal shortcomings, 9.7 multi-disciplinary approach, 1.12, 5.15, 5.51.3, 9.10.1 post-Machel Report, 1.58–79 post-WWII, 1.26–33 pre-WWII, 1.18–25 present position, 9.7 suggestions for improvements, 9.8–15 new instrument see new single instrument Children’s Crusade (1212), 1.19 children’s rights: ACHR, 6.47.2 CRC see Convention on the Rights of the Child ECHR, 2.145 recognition, 1.23–25 Childwatch International Research Network, Annex III(6) Chuol, James Koang, 5.88.2 CIL see customary law civilians: crimes against humanity, 3.77 definition, 3.26 detention and internment, 3.45.2, 3.55.2 domestic accountability, 2.103.4 improving, 3.62.2 forced displacements, 6.11.7 hostages, 3.98.6, 6.2, 6.11.6, 6.13.2, 7.139 IHL protection, 8.36.2 objects, 3.31, 3.33, 3.35–36, 7.3, 7.11, 7.16.2–8, 7.17.1, 7.19, 7.48, 7.102, 7.104–111, 7.128, 7.146, 8.101.1, 8.103.1, 8.103.6, 8.104.4, 9.13.12 removal and evacuation, 3.45.1, 3.55.1, 3.62.1, 3.98.6–7

515

Index starvation see starvation taking part in hostilities, 3.32 torture/ill treatment, 3.50 cluster munitions, 3.29.3 Cluster Munitions Convention (2008), 3.29.3 codification of child protection law: need, 1.12.4 new instrument see new single instrument political will, 1.8.1 collateral damage, 3.30 collective punishment, 8.45, 8.46, 8.51, 8.54.1, 8.69.2 Colombia, 1.110.1, 3.147.1 commanders’ accountability, 2.103.5, 2.104.3 communicable diseases, 1.97, 8.19 conduct of hostilities: children and, 3.40 distinction principle, 3.23–29 ECHR and, 3.98 IHL, 3.21–41 deficiencies, 3.53 military necessity, 2.12, 3.21–22, 7.17.1–2 precautionary measures, 3.34–39, 3.60 proportionality, 3.22, 3.30–33, 3.60 Conflict Dynamics International, Annex III(7) conflict prevention: Machel Report (1996), 1.55–57 Congo (DRC): child abduction, 6.53 child soldiers, 1.86, 4.58, 4.130, 4.137, 4.142.2, 4.148–149, 4.155 hospital/school attacks, 7.79.2, 7.80 humanitarian access and, 8.131.5, 8.135.2, 8.135.4 ICC and, 3.150 killing/ill treatment, 3.5, 3.133, 3.145.4 Safe Schools Declaration and, 7.135.1 schools, 7.139 sexual violence action plans, 5.89.3 domestic courts, 5.93.1 forced marriages, 5.52 ICC prosecutions, 5.95.1 military justice, 5.93.3 naming and shaming, 5.89.2 statistics, 1.89, 5.2 treaty bodies, 5.98.1 UNSC sanctions, 5.88.2 UNSC sanctions, 3.127, 3.129.1, 3.152, 5.88.2, 6.37.2, 7.79.2, 8.131.5, 8.131.7 contagious diseases, 1.97, 8.19 Convention of Certain Conventional Weapons (1980), 3.29.4, 3.37, 7.16.7 Convention on the Rights of the Child (CRC): accountability mechanisms domestic courts, 2.140, 3.146, 4.153.1, 5.96, 6.46 improving, 3.155 armed conflicts, 8.94

Article 38, 2.38 best interests of children, 2.37 child abduction, 6.8, 6.21, 6.25, 6.26.2, 6.27.2, 6.31, 9.13.11 child soldiers and, 4.94–105 contents, 1.35 definition of child, 2.34, 2.71.2 ECtHR and, 2.145 entry into force, 2.39 health rights, 7.67–68 hospitals/schools attacks and, 7.20 humanitarian access and, 8.86, 8.88.4, 8.91, 9.12.13 IHL and IHRL, 2.88 importance, 1.9 investigation competence, 3.150 killing/ill treatment of children and, 3.107–118, 9.12.2 milestone, 9.2 non-derogability, 2.36, 3.108 OP3 see OP3 OPAC see OPAC OPSC see OPSC Optional Protocols, 1.12.5, 2.4.4 overview, 1.34–37, 2.34–39 ratifications, 1.61–63 right to education, 7.120 right to life, 3.91 scope, armed conflicts, 3.107–118 sexual violence, 5.67–69 adequacy of protections, 5.69 definitions, 5.68.3–5 shortcomings, 1.37, 1.112 state parties, 2.39, 9.36.2 torture/inhuman treatment, 3.101–102 conventional weapons: conventions, 3.29.4, 3.37, 7.16.7 precautionary measures, 3.37 restrictions on use, 3.29.4 Coomaraswamy, Radhika, 1.59 Coram Children’s Legal Centre, Annex III(8) corridors of peace, 1.47.6, 1.82, 8.3, 8.74 Côte d’Ivoire: sexual violence, 1.89, 5.2 UNSC sanctions, 3.128, 8.131.6 Council of Europe: ECHR see European Convention on Human Rights; European Court of Human Rights Istanbul Convention see Istanbul Convention role, 2.145 Trafficking Convention, 6.22.3 counter-terrorism: discourse, 1.78.4 humanitarian access and, 8.75–77

516

Index immigration control and, 8.128 UNSC Resolution 1373 (2001), 8.77.3 CRC Committee: 1992 meeting, 1.41–43 accountability mechanisms, 2.153 adjudicative function, 2.92.3 best interests of children, 2.37 child abduction and, 6.29, 6.48.2, 6.52, 9.13.11 child soldiers and, 4.123, 4.131, 4.160, 9.12.5 competence, 2.108, 2.158.1, 2.158.4, 6.27.2, 9.36.2 on derogations, 3.108 dispute resolution, 2.153.1 health rights, 8.88.4 hospitals and, 7.73, 7.77, 7.90.2, 7.93 humanitarian access and, 8.88.4, 8.95, 8.145.2, 9.14.4 deficiencies, 8.149 interpretive function, 2.153.4 investigations, 2.153.2 jurisdiction, 2.158.1, 2.158.3 killing/ill treatment of children, 3.122, 3.148.1 membership, 1.38 monitoring function, 2.153.3 new single instrument and, 9.34, 9.45 non-adjudicative mechanism, 2.92.5 non-state armed groups and, 9.48.1 resources, 9.44.4 right to education, 7.120 role, 1.38, 1.50, 2.35 enhancing, 3.154–155 schools and, 7.135.1, 7.140.1, 9.12.9 scope of CRC, armed conflicts, 3.107 sexual violence and, 5.98.3 special treatment of children, 3.61.3 strengthening, 9.34, 9.43, 9.44 suggestions, 2.4.4 under use, 6.52, 6.54.1 crimes against humanity: against civilians, 3.77 atrocity crimes, 8.122.2 child abduction, 6.17.1 definition, 3.73–79 extermination, 8.108 forcible transfer, 8.109 humanitarian access and, 8.101.3, 8.106–109, 8.128 ICC jurisdiction, 5.23 material elements, 3.74–77 mental elements, 3.78 persecution, 8.109 prosecution threshold, 8.108, 8.114.3, 8.116.4 sexual violence, 5.12 legal framework, 5.30–33 prosecutions, 5.31 systematic attacks, 3.76

criminal law (ICL) see also domestic accountability; individual courts; specific instruments accountability mechanisms domestic courts, 2.129–131 international adjudication, 2.132–137 survey, 2.129–138 UNSC, 2.138 child abduction deficiencies, 6.18 improving, 6.19–20, 9.12.7 legal framework, 6.15–17 child soldiers accountability mechanisms, 4.145–151 deficiencies, 4.84–89 IHL inconsistencies, 4.86–87 improving, 4.90–93, 9.12.3–4, 9.13.5 Rome Statute, 4.49.2, 4.58–79 survey, 4.57–79 crimes against humanity see crimes against humanity domestic and international law, 2.4.2 evidence, 9.33.4 genocide see genocide hospital/school attacks, 7.3, 7.19 hospitals, 7.52–55 schools, 7.112–115, 7.136–137 humanitarian access, 8.4.3, 8.97–123 improving, 8.117–121, 9.12.14, 9.13.16–17 immunities, 9.33.3, 9.41.3 international jurisdiction, 2.130.2 killing/ill treatment of children and accountability mechanisms, 3.144–145 deficiencies, 3.85–86 improving, 3.87, 9.13.3 survey, 3.63–87 post-Machel Report, 1.70–74 relevant treaties, 2.27–33 Rome Statute and, 9.5 school attacks, 7.109.3 sexual violence accountability mechanisms, 5.93–95 deficiencies, 5.57–62 improving, 5.63–64, 9.12.6, 9.13.9–10 legal framework, 5.22–56 war crimes see war crimes Croatia, 8.141 customary law (CIL): API/APII and, 3.59.3 child abduction and, 6.12, 6.23–24 child protection, 8.55.6 child soldiers age limits, 4.43 consolidating, 4.52 criminal law, 4.81–83

517

Index humanitarian law, 4.6.1, 4.37–40 IACs, 4.6.1, 4.59.1 NIACs, 4.6.2, 4.59.2 civilian objects, 7.16.2, 7.16.6 codifying, 1.8.1, 1.12.4, 2.59 definition of child, 2.71.2 direct participation, 4.23.1 domestic justice, 2.3.3, 2.103, 2.104.2 enforcement issues, 9.25 fragmentation, 1.8.1, 1.112 hospitals and, 7.33, 7.46 humanitarian access, 8.61.4, 8.65.1, 8.79 attacks on missions, 8.103.6 NIACs, 8.72 passage, 8.61.1, 8.75.2 relief personnel, 8.61.1 immunities, 9.33.3 inhuman treatment, 6.23 killing/ill treatment, 3.50.5, 3.52.2 starvation of civilians, 8.100.2–3 NIACs and, 2.58, 2.89.2 precautionary measures, 3.34 relation with treaty law, 2.74.2, 2.81–82 relevance, 2.58–60 respect obligations, 2.99, 2.100 role, 2.5 sexual violence, 5.18.3, 5.19.3, 5.61 treatment of children, 3.43.6 universal jurisdiction, 9.33.2 vagueness and uncertainty, 2.60 war crimes, 3.67.1 Defence for Children International, Annex III(9) definition of child: child soldiers see child soldiers CRC, 2.34, 2.71.2 ICL, 4.85 IHL, 3.11, 3.43.2, 3.61.4, 8.36.3 age limits, 4.41–44, 4.51, 4.174 API, 3.43.5 child soldiers and, 4.10, 4.33, 4.41–44, 4.51 customary law, 3.43.6, 4.38 improving, 3.61.4 IHRL, 4.99, 4.109.1, 4.125 improving, 3.61.4, 9.13.5 OPAC, 4.110.1, 4.110.4–7, 4.125 denial of humanitarian access see humanitarian access Denmark, 6.26.2 direct participation, 4.22–26, 4.46 disappearances: child abduction and, 6.11.8, 6.22.6 conventions, 6.22.6 displaced persons: CAR, 1.90, 8.145.2 child abduction, 6.11.7

child protection, 1.47.2 conventions, 7.70, 8.86 education, 1.47.8 Iraq, 1.16 Kampala Convention see Kampala Convention (2009) Machel Report, 1.46.2, 1.47.2, 1.76 sexual violence, 1.47.3 Syria, 1.2 treaty bodies, 8.145.1–2 UN Report, 8.135.1 WWII, 1.27 distinction: children and, 3.40.1 definition of civilians, 3.26 direct attacks, 3.27 indiscriminate attacks, 3.28–29 principle, 3.23–29 domestic accountability: adjudicative mechanisms, 2.92.1 child abduction, 6.35, 6.46 child soldiers, 4.54, 4.56, 4.126.1, 4.129, 4.145, 4.152–153 costs, 9.33.5 effectiveness, 9.29–24 extradition, 9.33.1, 9.41 hospital protection, 7.75, 7.84, 7.88 humanitarian access, 8.125–128, 8.141 ICL, 2.129–131 IHL, 2.98–105, 3.120, 5.86, 7.75 IHRL, 2.139–142 immunities, 9.33.3 improving, 9.40–41 issues, 2.94 killing/ill treatment of children, 3.120 role, 2.3.3 schools, 7.124 sexual violence, 5.86, 5.93, 5.96, 5.102.1 domestic violence: Istanbul Convention see Istanbul Convention draft convention (1939): failure, 9.1 objectives, 1.25 safe zones, 7.50–51, 9.13.13, Annex I(5–8) text, Annex I draft convention (1946): failure, 9.1 GCIV and, 1.30–31 objectives, 1.28 origins, 1.9, 1.28 text, Annex II East Timor: Special Panels, 1.74, 7.85 economic sanctions see UNSC Ecuador, 6.26.2

518

Index education see also hospitals/schools attacks; schools HIL and, 7.107 humanitarian crises and, 8.22, 8.50 Machel Report (1996), 1.47.8 minimum standards, 2.64 right to, 7.116–121, 7.128 UN Special Rapporteur, 7.119, 7.132 El Salvador, 6.47.2 emblems: hospitals, 7.34.1, 7.44.4, 9.13.12 enforced prostitution, 5.43–44 enforced sterilizations, 5.47–48 enlisting: criminal law, 4.68.2, 4.71–73, 4.92 meaning, 4.11–13 recruitment and, 4.29, 4.36, 4.72–73, 4.88 voluntary enlistment, 4.12–13, 4.17.3 ICL, 4.68, 4.71–73, 4.88 IHL issue, 4.49 IHRL, 4.43 OPAC, 4.110.4 recruitment and, 4.29, 4.36 youth organisations, 4.14 Enough Project, 7.99.2 Eritrea: hospital/school attacks, 7.79.2 humanitarian access and, 8.131.5 UNSC sanctions, 3.127, 3.129.2, 3.152, 7.79.2, 8.131.7 ethnic cleansing, 8.122.2 European Convention on Human Rights (ECHR) see also European Court of Human Rights children’s rights, 2.145 domestic accountability mechanisms, 2.141 emergency derogations, 2.31 family and privacy rights, 5.79, 6.47.1 forced labour, 6.22.5 freedom of movement, 6.47.1 right to life, 3.90, 3.94, 3.96.2, 3.97–99, 3.147.2, 6.47.1 scope, armed conflicts, 3.116 slavery, 5.79, 6.22.4 territorial jurisdiction, 2.32, 2.147 torture/ill treatment prohibition, 3.104, 5.77, 8.88.2 European Court of Human Rights (ECtHR): child abduction, 6.47.1 children’s rights and, 2.145 on domestic accountability mechanisms, 2.141 enforcement of judgments, 2.145 humanitarian access and, 8.144.2 IHL and, 2.146 jurisdiction, 2.145 killing/ill treatment of children, 3.147.2 overview, 2.145–147

right to life jurisprudence, 3.97–99 school attacks and, 7.139 sexual violence, 5.77, 5.79, 5.97 territorial jurisdiction, 2.32 European Trafficking Convention, 6.22.3 European Union: Congo and, 4.137 Guidelines on Children and Armed Conflict, 1.67.2, 2.67, 6.42.1 sexual violence, 5.100 Syria and, 8.138 UNSC Resolutions and, 4.138 European Union Charter of Fundamental Rights, scope, 2.56 extradition, 9.33.1, 9.41 Extraordinary African Chambers (EAC), 2.137.1 Extraordinary Chambers in the Court of Cambodia (ECCC), 1.74, 2.137.3, 3.145.2, 5.55 family and privacy rights: ACHR, 6.47.2 ECHR, 5.79, 6.47.1 forced displacement: child abduction and, 6.11.7 crimes against humanity, 8.109 forced labour: child abduction and, 6.11.5, 6.22.3, 6.22.5 conventions, 6.22.5 IHL, 6.11.5 forced marriages, 5.52–56, 5.62, 5.72.4, 5.83 forced pregnancies, 5.45–46 freedom of movement, ECHR, 6.47.1 Gaggioli, Gloria, 5.11 Gamba, Virginia, 1.59 Gaza, 7.99.1, 8.103.5, 8.116.2, 8.127 GCPEA, 7.133, 7.142 Geneva Call, 1.67.4–5, 2.104.1, 2.158.1, 2.158.3, 5.92.2, 7.83, 7.134, 9.46, 9.47.2, Annex III(10) Geneva Conventions (1949) see also humanitarian law (IHL); specific subjects accountability mechanisms, 2.130.1 API (1977) see API (1977) APII (1977) see APII (1977) child soldiers, 4.8–14, 4.42 Common Article 3 classification of conflicts, 2.77.2 killing/ill treatment of children, 3.13, 3.52.1 NIACs, 2.89.1, 2.104.1 obligations, 2.14.1 relevance, 2.16, 2.17 scope, 1.107 definitions, 3.50.6 detention and internment, 3.45.2 domestic accountability and, 2.103

519

Index draft convention (1946) and, 1.30–31 entry into force, 2.20 gaps, 1.9, 1.32, 1.68, 1.112, 9.1, 9.4 grave breaches, 3.67.1, 3.72, 5.27.3 child abduction, 6.3 domestic accountability, 9.30, 9.33.2 hospital attacks, 7.40–42 sexual violence, 5.51.1, 5.58 inquiry procedures, 2.111 negotiations, 9.1 relevance, 2.16 relevance to children, 2.17–20 respect obligations, 2.99, 2.100 scope, 2.18, 2.18–19 sexual violence, 5.18.1, 5.19.1 state parties, 2.20 universal ratification, 9.47.1 genocide: child abduction and, 6.16, 6.18.1 Convention, 6.18, 6.19 definition, 3.80–84, 6.18.1 humanitarian access denial and, 8.101.4, 8.110–112 ICC jurisdiction, 5.23 ICC jurisprudence, 8.111.1 mass murder and, 3.83 mental elements, 3.83 prosecution threshold, 8.114.3 sexual violence and, 5.34 Global Coalition to Protect Education from Attack (GCPEA), Annex III(11) Global Education Cluster, 7.111.3 Goliath, 1.18 Goma Declaration on Eradicating Sexual Violence (2008), 5.91.2 Great Lakes region, 5.91.2 GRETA (Group of Experts on Action Against Trafficking in Human Beings), 6.48.3 Guatemala, 3.147.1, 6.47.2 Hague Regulations: private property, 7.107.2 Harvard Humanitarian Project, 7.99.2 health rights see also hospitals CRC, 7.67–68, 8.88.4 humanitarian access and, 8.89 ICESCR, 7.58–66 Machel Report (1996), 1.47.6 regional treaties, 7.70 subsistence rights, 8.89 HIV/AIDS, 1.76, 5.98.3 hospital/school attacks: definition issue, 7.8 enforcement limits, 7.9

general rules assessment, 7.21 non-compliance, 7.22 survey, 7.14–22 ICL, 7.3 general rules, 7.19 persons v buildings, 7.12.2 IHL, 7.3 balance of focus, 7.11 civilian objects, 7.16 civilian property, 7.17 civilian property essential to survival, 7.17.1, 8.99.3 distinction principle, 7.16.1 general child protection, 7.18 general rules, 7.16–18 occupied territories, 7.17.3 persons v buildings, 7.12.1 wanton destruction of civilian property, 7.17.2 IHRL, 7.12.3, 7.20 general rules, 7.20 hospitals, 7.56–71 persons v buildings, 7.12.3 limited analysis, 7.10 non-state actors, 7.13.2 overview, 1.93–99 persons v buildings, 7.12 specific rules hospitals see hospitals schools see schools state actors, 7.13.1 UN actors, 7.13.3 hospitals see also hospitals/schools attacks accountability mechanisms deficiencies, 7.93–95 ICL, 7.84–87 IHL, 7.75–83 IHRL, 7.88–90 improving, 7.96–99 NGOs, 7.83 survey, 7.74–99 data gaps, 7.95, 7.98 definition, 7.8.4, 7.24–27 general rules, 7.14–22 ICL accountability mechanisms, 7.84–87 deficiencies, 7.54 domestic courts, 7.84 general rules, 7.3, 7.12.2, 7.19 improving, 7.55 international courts, 7.85–87 specific rules, 7.52–55

520

Index IHL accountability mechanisms, 7.75–83 codifying, 7.46 deficiencies, 7.43–44 definition, 7.24–27 draft convention (1939), 7.50–51 emblems, 7.34.1, 7.44.4, 9.13.12 grave breaches, 7.40–42 IACs, 7.30–32, 7.34.1–2 identification, 7.24–27 identification for protection, 7.34 IHFFC protection, 7.78 improving, 7.45–51, 9.13.12 international courts, 7.76 military use, 7.28.3, 7.35–39 neutralised zones, 7.34.2 NGOs, 7.83 NIACs, 7.33, 7.34.3, 7.39, 7.44.3 non-defended localities, 7.34.2 notification obligations, 7.47 protected zones, 7.28.2, 7.34.2, 7.44.5, 7.49–50 safe zones, 7.34.2, 7.34.5, 7.44.5, 9.13.13 specific rules, 7.24–51 targeting prohibition, 7.28, 7.30–33 treaty bodies, 7.77 UNSC and, 7.79–81 verification, 7.48 IHRL accountability mechanisms, 7.88–90 deficiencies, 7.71–72 domestic courts, 7.88 improving, 7.73, 9.12.8 specific provisions, 7.56–71 treaties, 7.57–70 treaty bodies and, 7.90 UN Special Rapporteur, 7.92 satellite information, 7.99 specific legal framework, 7.23–73 improving, 9.12.8 hostages, 3.98.6, 6.2, 6.11.6, 6.13.2, 7.139 Human Rights Committee (HRC), sexual violence and, 5.78, 5.82.1 human rights law (IHRL) see also specific rights and instruments; specific treaties accountability mechanisms, 2.139–197 child soldiers, 4.152–160 humanitarian access, 8.143–148 killing/ill treatment, 3.146–148 sexual violence, 5.96–100 child abduction conventions, 6.21–24 deficiencies, 6.25–27 improving, 6.28–31, 9.12.7, 9.44.3

child soldiers accountability mechanisms, 4.152–160 deficiencies, 4.116–120 improving, 4.121–126, 9.12.3–5, 9.13.8 instruments, 4.94–115 survey, 4.94–126 consolidating, 1.112, 2.88 killing/ill treatment of children, 3.106 fragmentation, 1.8.1, 1.112, 9.5 hospitals see hospitals hospitals/schools see hospitals/schools attacks humanitarian access, 8.83–96 accountability mechanisms, 8.143–148 improving, 8.95, 9.12.13 IHL and, 2.74.3, 2.83–91 killing/ill treatment of children and accountability mechanisms, 3.146–148 deficiencies, 3.106–114 improving, 3.115–118, 9.12.2, 9.13.4 survey, 3.88–118 Machel Report on, 1.49, 1.51 objectives, 2.30 one legal instrument for children, 9.9 relevant treaties, 2.30–57 schools and, 7.116–123, 9.12.9 scope, 2.31 sexual violence accountability mechanisms, 5.96–100 deficiencies, 5.83 improving, 5.84, 9.13.11 legal framework, 5.65–82 Human Rights Watch, 5.93.3, 7.101, Annex III(12) humanitarian access see also humanitarian crises accountability mechanisms deficiencies, 8.149–150 domestic courts, 8.125–128, 8.141 ICJ, 8.129 ICL, 8.141–142 ICRC, 8.139 IHL, 8.125–140 IHRL, 8.143–148 improving, 8.151 NGOs, 8.140 survey, 8.124–151 treaty bodies, 8.130, 8.145 UN agencies, 8.147–148 UNGA, 8.134 UNSC, 8.131–133, 8.150 core challenges, 8.25–29 definitions, 8.6–12 humanitarian assistance, 8.8 denial, 1.100–103 general rules, 8.4 hospitals, 7.49.2

521

Index humanitarian principles, 8.10 ICL, 8.4.3 accountability mechanisms, 8.141–142 attacks on assistance missions, 8.101.1, 8.102–104, 8.116.3 crimes against humanity, 8.101.3, 8.106–109 deficiencies, 8.113–116 denial, 8.97–123 deprivation of survival necessities, 8.99.3 genocide, 8.101.4, 8.110–112 humanitarian assistance missions, 8.103.2, 8.115, 8.120, 9.12.14 improving, 8.117–121, 9.12.14, 9.13.16–17 intentional starvation, 8.98–100, 8.116.2, 8.118–119 international courts, 8.142 no specific offence of denial, 8.116, 8.121 prosecution thresholds, 8.108, 8.114.3, 8.116.4 UNSC interventions, 8.33, 8.122–123 war crimes, 8.98–99, 8.102–105 IHL accountability mechanisms, 8.125–140 age limits, 8.73 children, 8.50, 8.62, 8.64, 8.79–80 conditions, 8.36.4, 8.59–65 consent, 8.37–58, 8.67–70, 8.92 counter-terrorism and, 8.75–77 deficiencies, 8.66–68, 8.71–77 discrimination, 8.46, 8.129.1 domestic accountability, 8.125–128 economic sanctions and, 8.75–77 essential supplies, 8.63.1 general rules, 8.30–36 humanitarian organisations, 8.61.2, 8.65.2 IAC conditions, 8.61–63 IAC consent, 8.38–52 ICRC and, 8.139 improving, 8.69–70, 8.78–82, 9.12.10–12, 9.13.15–9.15 international accountability, 8.129–130 legal framework, 8.30–55 local agreements, 8.62.1, 8.74, 8.79 medical facilities, 8.61.3, 8.65.3 medical personnel, 8.61.3, 8.65.3 new-born babies, 8.62.3 NGOs and, 8.140 NIAC consent, 8.53–55 NIAC regulation, 8.64–65, 8.72, 8.75.3, 8.91 non-party obligations, 8.75, 8.81 non-state armed groups, 8.35, 8.75.6 occupied territories, 8.34, 8.52, 8.63 passage, 8.61.1, 8.65.1, 8.75.2, 8.127.1 prohibitions, 8.61.4, 8.62.1 regulation, 8.59–65 relief personnel, 8.61.1, 8.65.1

right of humanitarian initiative, 8.30 state responsibility, 8.32–33 survey, 8.30–82 UNGA and, 8.134 UNSC and, 8.131–133 IHRL children, 8.94 deficiencies, 8.93–94 framework, 8.83–92 improving, 8.95, 9.12.13 NIACs, 8.90 non-state armed groups, 8.84 right to life, 8.88.1 state responsibility, 8.83 subsistence rights, 8.89 torture/ill treatment prohibition, 8.88.2 legal framework, 8.30–123 improving, 9.12.10–14 practicability, 8.27 protracted conflicts, 8.29 sovereignty issue, 8.26 timing problem, 8.28 trend, 8.1–3 UNSC and, 8.4.3, 8.33, 8.48.2, 8.75.1, 8.75–77, 8.122–123, 8.131–133 zones of peace, 1.57, 7.1, 7.8, 7.135, 8.3, 8.74, 8.80 humanitarian assistance: definition, 8.8 humanitarian corridors, 8.80 humanitarian crises: armed conflict and, 8.13–16 children in armed conflicts, 8.17–24 caregivers, 8.23 overlooking, 8.24 traumas, 8.22 humanitarian law (IHL) see also specific instruments; specific subjects accountability mechanisms, 2.98–128 age limits and, 3.11, 4.42–44, 4.51, 4.174, 9.13.5 child abduction deficiencies, 6.13 improving, 6.14, 9.12.7 legal framework, 6.10–12 child soldiers accountability mechanisms, 4.129–131 deficiencies, 4.41–49 ICL inconsistencies, 4.86–87 improving, 4.50–56, 9.12.3, 9.13.5–7 legal framework, 4.5–40 civilian objects, 7.16.2 hospitals and schools, 7.16.4 civilian property hospitals/schools attacks and, 7.17 occupied territories, 7.17.3 survival necessities, 7.17.1, 8.99.3 wanton destruction, 7.17.2

522

Index classification of armed conflicts, 2.74.1, 2.76–80 conduct of hostilities, 3.21–41 consolidating, 1.112, 2.88 child soldiers, 4.52 ill treatment of children, 3.59.1 demilitarised zones, 7.34.2 development, 3.57 distinction principle, 3.23–29 hospitals and schools, 7.16.1 ECtHR and, 2.146 fragmentation, 1.8.1, 1.112, 9.5 group status and, 2.15, 3.10 hospitals/schools attacks see hospitals; hospitals/schools attacks humanitarian access, 8.30–82 improving, 8.69–70, 8.78–82, 9.12.10–12, 9.13.15–9.15 IACs v NIACs, 2.13 IHRL and, 2.74.3, 2.83–91 killing/ill treatment of children, 3.8–62 accountability mechanisms, 3.120–143 improving, 9.12.1, 9.13.1–4 Machel Report on, 1.49, 1.51 military necessity, 2.12, 3.21–22, 7.17.1–2 neutralised zones, 7.34.2 non-compliance issue, 3.58 non-defended localities, 7.34.2 obligations, 2.14 one legal instrument for children, 9.9 precaution principle, 3.98 hospitals/schools attacks and, 7.16.8 schools and, 7.106 precautionary measures, 3.34–39 proportionality principle, 3.22, 3.30–33 hospitals/schools attacks and, 7.16.8 schools and, 7.106 protected zones, 7.34.2–4 purpose, 2.12, 3.8 relevant treaties, 2.11–25 safety zones, 7.34.2 schools, 7.105–111 sexual violence deficiencies, 5.57–62 improving, 5.63–64, 9.12.6, 9.13.9 legal framework, 5.16–21 sources of law, 8.36.1 treatment of persons, 3.42–50 universal jurisdiction, 9.33.2 humanitarian organisations: humanitarian access, 8.61.2, 8.65.2

Central Tracing Agency, 3.45.1, 6.43 child abduction, 6.43, 9.12.7 children’s rights and, 1.25 classification of conflicts, 2.79 Commentary on API definition of children, 3.43.2, 3.43.5 direct participation, 4.23.2, 4.25 feasible measures, 4.21.1 hospital attacks, 7.38, 7.41 humanitarian access, 8.116.2 killing/ill treatment of children, 3.18 precautionary measures, 3.37 proportionality, 3.33 recruitment of children, 4.28 Commentary on APII, 2.24 care and aid, 3.54.2 definition of torture, 3.50.6 hospital attacks, 7.44.3 participation, 4.35.3 sexual violence, 5.18.2 special safeguards, 3.61.3 Commentary on GCI hospitals, 7.31.2 humanitarian access, 8.55.1 Commentary on GCIV definition of torture, 3.50.6 hospitals, 7.31.2 on customary IHL, 2.58–59, 9.24.2 child removal, 8.62.1 child soldiers, 4.37, 4.43, 4.48.1, 4.83 civilian objects, 7.16.2 definition of child, 3.43.6, 4.38 direct participation, 4.23.1 enforcement issues, 9.25 hospitals, 7.33 humanitarian access, 8.61.4, 8.65.1, 8.79 improving, 3.62.1 indiscriminate attacks, 3.29 NIACs, 2.89.2, 8.72 passage, 8.61.1 relief personnel, 8.61.1 sexual violence, 5.58.1 starvation of civilians, 8.100.2 databases, 7.75 draft convention and, 1.28 functions, 2.127 fund for children, 1.22 Guidelines: deaths in custody, 2.105 hospital attacks and, 7.81, 7.82.2 on hospitals/schools attacks, 1.93, 1.96 humanitarian access and, 8.139 humanitarian assistance, 8.61.2 on IHL framework, 3.56 killing/ill treatment, 3.143 on military necessity, 2.12, 3.22

ICL see criminal law ICRC: accountability mechanism, 2.127 API negotiations, 4.17, 4.18

523

Index neutralised zones, 7.34.2 new single instrument and, 2.59 on OPAC, 1.65 origins, 2.127 overview, Annex III(13) reforming accountability mechanisms, 2.115–116 on respect, 2.100 role, 1.50 sexual violence and, 5.4, 5.92.1 on Yemen, 8.20 ICTR: closing, 2.134 domestic courts and, 2.129 genocide, 8.111.2, 8.112 hospitals and, 7.86 hospitals/schools attacks, 7.3 humanitarian access and, 8.142.4 importance, 1.71 jurisdiction, 2.134 killing/ill treatment of children, 3.145.1 model, 1.53 origins, 1.40 sexual violence, 5.31.3, 5.36, 5.50.2 ICTY: child soldiers, 4.149 closing, 2.135 distinction principle, 3.23 domestic courts and, 2.129 effect, 4.147 genocide, 8.111 hospitals and, 7.87 hospitals/schools attacks, 7.3, 7.38 humanitarian access and, 8.142.3 importance, 1.71 jurisdiction, 2.135 killing/ill treatment of children, 3.145.3 model, 1.53 origins, 1.40 proportionality, 3.33 school attacks and, 7.137.2 sexual violence, 5.31.1, 5.32 genocide and, 5.34 gravity, 5.51.1 rape, 5.36 sexual assault, 5.50.3 IHL see humanitarian law (IHL) immunities, 9.33.3, 9.41.3 India: enlisting age, 4.125, 4.160.2 hospital/schools and, 7.83 Indo-Pakistan War (1971), 7.34.2 indiscriminate attacks, 3.28–29 Inquiry: need for, 1.15–17 overview, 1.10–12.8

Institute of International Law, 8.8 Inter-American Commission on Human Rights (IACommHR), 3.23, 5.78 Inter-American Convention on Forced Disappearances (1994), 6.22.6 Inter-American Court of Human Rights (IACtHR), 2.148, 3.147.1, 4.157, 6.47.2 intergovernmental organisations, IHRL and, 8.86 international armed conflicts (IACs): accountability mechanisms domestic investigation, 2.103 ICL, 2.130.1 classification, 2.74.1, 2.76–80 NIACs and, 2.13 International Conference for the Protection of War Victims (1993), 5.58.1 International Conference on War-Affected Children (2000), 1.76 International Convention for the Suppression of the White Slave Traffic (1910), 1.21 International Court of Justice: Bosnia Genocide, 6.16, 8.129.2 child soldiers, 4.130, 4.155 Construction of a Wall, 2.86 DRC v Uganda, 2.86 function, accountability mechanism, 2.106 humanitarian access, 8.10, 8.129 Nicaragua v US, 8.129.1 Nuclear Weapons, 2.86 International Covenant on Civil and Political Rights (ICCPR): derogations, 7.65 emergency derogations, 2.31 forced labour, 6.22.5 hospitals/schools attacks and, 7.20 origins, 1.33.2 right to life, 3.90, 3.96.1, 8.88.1 scope, 2.52 slavery, 6.22.4 torture/ill treatment prohibition, 3.104, 8.88.2 International Covenant on Economic, Social and Cultural Rights (ICESCR): health rights, 7.58–66 hospitals/schools attacks and, 7.20 non-derogability, 7.65 Optional Protocol, 7.140.2 origins, 1.33.2 right to education, 7.117–119, 7.140.2 scope, 2.53, 7.66 subsistence rights, 8.89.2–6 International Criminal Court (ICC): accountability mechanism, 2.107, 2.133 child abduction, 6.45.1

524

Index child soldiers, 4.36, 4.48.1, 4.49.2, 4.146.1, 4.148–149 active participation, 4.75.1, 4.75.2 deficiencies, 4.165, 9.12.4 recruitment, 4.73 Rome Statute, 4.58–79 voluntary enlistment, 4.88 crimes against humanity see crimes against humanity distinction principle, 3.23 domestic courts and, 5.93.2 entry into force, 2.29 genocide see genocide hospital/school attacks and, 7.19.1, 7.42 hospitals, 7.52–53, 7.85 schools, 7.112–113, 7.137.1 humanitarian access and, 8.4.3 attacks on assistance missions, 8.103.2 deficiencies, 8.103.5, 8.149 evidence, 8.115.2 improving, 9.14.5 jurisprudence, 8.142.1 NIACs, 8.104.4, 8.114 starvation of civilians, 8.98–99, 8.114 importance, 1.71 improving, 9.34 investigations, 4.150 jurisdiction, 2.28, 2.158.1, 5.23 crimes against humanity, 3.75 issues, 9.36.1, 9.37 war crimes, 3.67.2, 3.68.1–3 killing/ill treatment of children, 3.145.4, 3.147.3 non-state armed groups and, 9.38 objectives, 4.147 origins, 1.71 ratification of Rome Statute, 1.12.3 child soldiers and, 4.84, 4.162, 4.165, 4.171 encouraging, 9.42 hospitals and, 7.93, 7.96 humanitarian access and, 8.151 killing/ill treatment and, 3.150 non-members, 9.36.1 state parties, 2.29, 9.36.1 Rome Statute, 2.28–29 complementarity principle, 9.34 milestone, 9.2 negotiations, 8.116 significance, 9.5 sexual violence, 5.12 choice of charges, 5.33, 5.94 cumulative charges, 5.29 deficiencies, 5.102.2–3 definition, 5.49 enforced prostitution, 5.43 enforced sterilizations, 5.47

improving, 5.104, 9.12.6 legal framework, 5.23–54 prosecutions, 5.31.2, 5.95 rape, 5.37 sexual slavery, 5.40, 5.54.2 Trust Fund for Victims, 4.148 UNSC referrals, 2.119, 4.151, 9.36.1 war crimes see war crimes international criminal law see criminal law international criminal tribunals see also specific tribunals overview, 1.70–74 international customary law see customary law international human rights law see human rights law International Humanitarian Fact-Finding Commission (IHFFC), 2.109, 2.112, 7.78 international humanitarian law see humanitarian law International Labour Organisation (ILO): accountability mechanisms, 2.156 child abduction, 6.22.3 child labour, 1.21, 1.67.6 Convention 182, 2.43–44 forced labour, 6.22.5 working age, 1.33.3 international law see also specific instruments; specific subjects general problems, 2.69–91 complexity, 2.73–91 gaps, 2.71 ratification issues, 2.72 vagueness and ambiguity, 2.70 grave violations, 2.3.1 new instrument see new single instrument relevant sources, 2.5–68 treaty law, 2.8–57 special protection principle, 2.7 International Law Commission (ILC), Draft Articles on the protection of persons in disasters, 8.89.5, 8.139 International Rescue Committee, 5.2 internment, 3.45.2, 3.55.2, 3.62.2 Iraq: child abduction, 1.92, 6.37.3 child soldiers, 4.160.2 displacements, 1.16 humanitarian access and, 8.135.4 ICC and, 9.36.1 killing/ill treatment of children, 1.82, 3.5, 3.133 safe zones, 7.34.5 sexual violence, 5.2, 5.89.2 Ireland, 5.77.3 ISIL, 3.5, 5.89.2, 6.1, 8.75.8 ISIS, 1.92, 1.108

525

Index Israel: Gaza and, 7.99.1, 8.103.5, 8.116.2, 8.127 Operation Cast Lead, 8.127 Istanbul Convention (2011): assessment, 5.73 children and, 5.72.8 forced abortion, 5.72.5 forced marriages, 5.72.4 forced sterilisation, 5.72.5 jurisdiction, 5.72.7 overview, 5.72 sexual harassment, 5.72.6 sexual violence prohibitions, 5.72.1–9 state parties, 5.72 Jebb, Eglantyne, 1.22, 1.23 Joan of Arc, 1.18 Kampala Convention (2009): health rights, 7.70 humanitarian access, 8.86 killing/ill treatment of children: accountability mechanisms criminal law, 3.144–145 deficiencies, 3.150–153 domestic courts, 3.120, 3.146 ICRC, 3.143 IHL, 3.120–143 IHRL, 3.146–148 improving, 3.154–156 international courts, 3.121, 3.145, 3.147 MRM, 3.131–142, 3.153 NGOS, 3.143 ratification issues, 3.150 sanctions, 3.126–129, 3.152 survey, 3.119–156 treaty bodies, 3.122, 3.148 UNHRC, 3.130 UNSC, 3.123–129 definition, 3.3.1, 3.54.2, 3.153 grave violation, 3.3 ICL accountability mechanisms, 3.144–145 deficiencies, 3.85–86 improving, 3.87, 9.13.3 survey, 3.63–87 IHL accountability mechanisms, 3.120–122 API, 3.17–18 APII, 3.19–20 complexity, 3.52.1 conduct of hostilities, 3.21–41, 9.13.1 deficiencies, 3.51–55 definition issues, 3.54.2 definition of murder, 3.49.5

domestic courts, 3.120 formulation issues, 3.54.1 fragmentation, 3.52.1 GCIV, 3.13–16 improving framework, 3.56–62, 9.12.1, 9.13.1–2 international courts, 3.121 prohibitions on killing, 3.49 ratification problems, 3.52.2 specific child protection, 3.53, 3.55 survey, 3.8–62 treatment of persons, 3.42–50, 9.13.2 treaty body enforcement, 3.122 uncertainties, 3.54 UNSC enforcement, 3.123–129 IHRL accountability mechanisms, 3.146–148 deficiencies, 3.106–114 improving, 3.115–118, 9.12.2, 9.13.4 right to life, 3.89–99 survey, 3.88–118 torture/inhuman treatment, 3.100–105 international criminal law, survey, 3.63–87 legal framework, improving, 9.12, 9.13.1–4 MRM and, 3.3 overview, 1.81–84 trend, 3.4–5 Kony, Joseph, 1.87, 4.165, 5.88.2 Kosovo, 3.147.2 Kuper, Jenny, 3.10 Kurdi, Alan, 1.2 landmines: killing of children, 3.147.2 Machel Report (1996), 1.47.4 Ottawa Treaty (1997), 1.67.3, 3.29.2 League of Nations, 1.24 Lebanon: Safe Schools Declaration and, 7.135.1 Special Tribunal, 2.137.2 legal aid, 5.72.9, 9.41.5 Liberia: child soldiers, 4.159.2 hospital attacks, 7.82.2 sexual violence, 5.2, 5.52 Libya: hospital attacks, 7.99 humanitarian access and, 8.135.2 ICC and, 2.119, 9.36.1 Lord’s Resistance Army (LRA), 1.87, 1.105, 4.138, 4.165, 5.95.3, 6.48.1 Machel Report (1996): 2007 10-Year Strategic Review, 8.2 accountability mechanisms, 1.50–51 assessment, 1.104–112

526

Index child soldiers, 1.47.1 conflict prevention, 1.55–57 displaced children, 1.47.2 education, 1.47.8 on existing standards, 1.48–49 health and nutrition, 1.47.6 landmines, 1.47.4 mitigating impact of armed conflict on children, 1.45–47 overview, 1.4–9, 1.45–57 psychological well-being, 1.47.7 re-assessing, 1.10–12.8, 1.16, 1.75–79 2000 Report, 1.76 Strategic Review (2006), 1.77–79, 1.105, 1.106, 1.108 reconciliation, 1.52–54 reconstruction, 1.52–54 refugees, 1.47.2 sanctions, 1.47.5, 8.89.6 sexual violence, 1.47.3 subsequent developments, 1.58–79 international criminal tribunals, 1.70–74 new standards, 1.66–69 United Nations, 1.58–65 UN response, 1.58 zones of peace, 7.1 maiming: definition, 3.153.2 Mali: humanitarian access, 8.131.5, 8.135.2 ICC and, 3.150 sexual violence, 5.89.2, 5.89.3 UNSC sanctions, 8.131.5, 8.131.7 malnutrition, 8.2, 8.19 Maputo Protocol, health rights, 7.70 marriage: forced marriages, 5.52–56, 5.62, 5.72.4, 5.83 minimum age, 5.74–75 measles, 1.97 Médecins Sans Frontières, 1.96, 7.78, 7.80 military necessity, 2.12, 3.21–22, 7.17.1–2 mines, 1.47.4, 1.67.3, 3.29.2, 3.29.4, 3.147.2 Minnesota Protocol, 6.42.2 missing persons: duty to account, 2.103.6 Mohammed, Amina, 1.88 monitoring and reporting mechanism see MRM MRM (monitoring and reporting mechanism): accountability mechanism deficiencies, 4.167–170 IHL, 2.123 IHRL, 2.155 reform, 2.158.1 action plans, 8.133 deficiencies, 4.169 definition mismatch, 3.153, 3.156.2 implementation, 3.140–142, 5.89.4

killing/ill treatment, 3.135–41, 3.153 sexual violence, 5.89.3 template, 3.139, 5.89.3 child abduction, 6.3, 6.38 definition, 6.7.2–7, 6.13.1, 6.14.1, 6.27.1, 9.12.7 child soldiers, 4.140–143 armed groups, 4.170 deficiencies, 4.167–170 recruitment, 4.141 use of children, 4.141 Country Task Forces, 2.123.5 functions, 1.60.6–7 hospital/school attacks, 7.79.1 definitions, 7.8.6 hospitals, 7.80 humanitarian access, 8.132–133 definition, 8.9 hospitals, 7.49.2 killing/ill treatment, 3.3, 3.131–142 naming and shaming, 3.132, 5.89.2 non-adjudicative mechanism, 2.92.5 non-state armed groups and, 9.46, 9.48.1 schools and, 7.129 sexual violence, 5.1, 5.14, 5.89 multi-disciplinary approach, 1.12, 5.15, 5.51.3, 9.10.1 murder: definition, 3.49.5 Murray, Daragh, 1.110.2 mutilation: definition, 3.50.6 Myanmar: child abduction, 6.1 child soldiers, 4.142.2 hospital/schools and, 7.83 humanitarian access, 8.135.2, 8.135.4 success story, 1.110.2 naming and shaming, 1.110.2, 3.132, 5.89.2, 8.132, 9.48.1 Nazis, 4.14 Nepal: child soldiers, 4.142.3, 4.169 CRC Committee and, 4.131 schools, 7.135 new single instrument: accountability, 2.159, 9.23, 9.45 adjudicative accountability, 1.8.2, 1.9 child soldiers and, 4.52, 4.124, 4.174 clarification, 9.21 codification of child protection law, 1.12.6 CRC Committee and, 9.34, 9.45 definition of armed conflict, 2.74.1, 2.80 easy identification, 9.18 hospitals and, 7.46, 7.144 ICRC and, 2.59

527

Index killing/ill treatment, 3.106 need for, 1.68, 1.112, 2.3.1, 9.5, 9.9 non-state armed groups and, 9.47 objections to, 9.24 principles, 3.59.1 proposal, 2.4.2, 2.4.4, 2.69, 9.16–24 sexual violence and, 5.84 simplification, 9.19–20 standard development, 9.22 New Zealand: enlisting age, 4.125 NGOs: accountability mechanisms, 2.128, 2.157 child soldiers and, 4.144 hospital/school attacks and, 7.13.2 hospitals, 7.83 schools, 7.134 humanitarian access, 8.140 IHRL and, 8.86 INGO list, Annex III killing/ill treatment and, 3.143 non-adjudicative function, 2.92.6 protected role, 9.41.4 sexual violence and, 5.92.2 UN Humanitarian Response Plans, 8.120 Nicaragua, 8.10, 8.129.1 Niger: school attacks, 1.94 Nigeria: Boko Haram, 3.133, 5.2, 6.1 child abduction, 1.91, 6.1 Safe Schools Declaration and, 7.135.1 sexual violence, 5.2 UNSC and, 8.131.3 non-governmental organisations see NGOs non-international armed conflicts (NIACs) see also specific subjects APII and, 2.24 classification, 2.74.1, 2.76–80 internationalised NIACs, 2.77.3 Rome Statute, 4.62.2 customary law and, 2.58, 2.89.2 domestic accountability mechanisms, 2.104 Geneva Conventions (Article 3) and, 2.17 humanitarian access and, 8.1 IACs and, 2.13 IHL and IHRL, 2.89 IHL development, 3.57 proliferation, 2.14.3 non-state actors: accountability mechanisms and, 2.95 customary law and, 2.58 IHL and, 2.14 Strategic Review, 1.78.3 Norman, Sam Hinga, 4.156 Norway: Safe Schools Declaration and, 1.67.9, 6.33, 7.135.1

Obama, Barack, 1.63 occupied territories: child soldiers, 4.28 essential supplies, 8.63.1 hospitals and, 7.50.7 humanitarian access, 8.34, 8.52, 8.63 IHL, 2.18 protection of property, 7.17.3 youth organisations, 4.14 Office of the High Commissioner of Human Rights (OHCHR), 1.4 OP3 (2011): CRC Committee and, 6.54.1 entry into force, 2.50 hospitals and, 7.93, 7.96 humanitarian access and, 8.151, 9.14.4 overview, 2.49–50 ratification, 1.12.3 encouraging, 9.44 issues, 3.150, 3.155, 4.162, 4.171 state parties, 2.50, 9.36.2 OPAC (2000): accountability mechanism, 2.108, 2.153.3 child soldiers, 4.94.2, 4.106–120 deficiencies, 9.12.5 IHRL and, 9.13.8 inconsistencies, 4.125–126 negotiations, 4.125 complexity, 4.96 criminal responsibility, 1.70 domestic accountability, 2.140, 4.153.2–3 entry into force, 2.46 milestone, 9.2 objectives, 1.32, 1.36, 1.64 origins, 1.36 overview, 2.45–46 ratifying, 1.12.3, 2.4.4, 4.116, 4.122, 9.14.2 state parties, 2.46 weaknesses, 1.65, 1.112 OPSC (2000): child abduction and, 6.22.3 contents, 1.36 origins, 1.36 overview, 2.47–48 ratification issue, 5.83, 9.14.3 sexual violence, 5.70 organ removal, 3.50.6, 6.7.4, 6.22.3 Organization of African Unity, 2.151.1 Organization of American States, 1.67.2, 2.66, 2.148 Orunnu, Olara, 1.59 Oslo Conference on Safe Schools (2015), 7.135.1 Ottawa Treaty (1997), 1.67.3, 3.29.2 Oxford Guidance on the Law relating to Humanitarian Relief Operations in Armed Conflict, 8.45, 8.48.5, 8.48.6

528

Index Pakistan, 7.34.2, 7.140.2 Palestine: Gaza, 7.99.1, 8.103.5, 8.116.2, 8.127 hospital/school attacks, 1.98 Operation Cast Lead, 8.127 Safe Schools Declaration and, 7.135.1 Paraguay: child soldiers, 4.157 Paris Principles, 1.67.8, 2.65, 4.128.1 participation: active participation of children, ICL, 4.75–76, 4.87.2, 4.89, 4.91.2, 4.93 CRC, 4.100–102 direct participation, 4.22–26, 4.46, 4.109.3 OPAC, 4.109.3 Peru, 3.147.1 Phan Thi Kim Phuc, 1.2 pillage, 8.61.4, 8.101.2, 8.105.2 Pinochet, Augusto, 9.33.1 political will, 1.7, 1.8.1, 1.12.8, 1.88, 7.9, 9.10.1 pornography see OPSC (2000) powder monkeys, 1.19 precaution principle, IHL, 3.98, 7.16.8, 7.106 precautionary measures, 3.34–39, 3.40.3, 3.60 prisoners of war, accountability mechanisms, domestic mechanisms, 2.103.4 proportionality: children and, 3.40.2, 3.60 hospital/school attacks and, 7.16.8, 7.106 improving, 3.60 principle, 3.22, 3.30–33 right to life, 3.98.1 prostitution: enforced prostitution, 5.43–44 OPSC see OPSC (2000) protected roles, 9.41.4 protecting powers, 2.110 psychological well-being, Machel Report (1996), 1.47.7 Reagan, Ronald, 1.62 reconciliation: Machel Report, 1.52–53 reconstruction: Machel Report, 1.52–54 recruitment: API, meaning, 4.27–30 APII, 4.36 CRC, 4.103–104, 4.110.5 criminal law, 4.72–73, 4.87.1 enlisting and, 4.29, 4.36, 4.72–73, 4.88 MRM and, 4.141 OPAC, 4.110 Red Cross/Crescent: emblems, 7.34.1 hospital attacks and, 7.81, 7.82.2 humanitarian access and, 8.99.3, 8.139 humanitarian assistance, 8.61.2

ICRC see ICRC meetings of contracting parties, 2.114 principles, 8.129.1 UN observer status, 8.120 Red Crystal, 7.34.1 Red Lion, 7.34.1, 8.61.2 refugees: CAR, 8.145.2 child protection, 1.47.2, 2.3.1 child soldiers, 4.160.2 children’s rights, 8.86, 8.94, 9.12.13 education, 1.47.8 Machel Report, 1.47.2, 1.76 sexual violence, 1.47.3, 5.14.5 statistics, 1.16 Syria, 1.2 unaccompanied children, 3.62.2 regional law, role, 2.3.2 reprisals, 8.61.4 respect duties, IHL, 2.99–101 Responsibility to Protect (R2P), 8.122.1–2 right to life: ACHR, 6.47.2 ECHR, child abduction and, 6.47.1 exceptions, 3.93–94 conditions, 3.93 last resort, 3.96 legitimacy, 3.94 humanitarian access and, 8.88.1 international conventions, 3.90–91 killing/ill treatment of children and, 3.89–99, 3.147.2 law-enforcement operations, 3.95–96 precaution principle, 3.98 proportionality principle, 3.98.1 scope, 3.92 supreme right, 3.89 Rome Statute see International Criminal Court Roméo Dallaire Child Soldiers Initiative, 4.144, Annex III(14) Russia, school attack, 7.139 Rwanda: Gacaca system, 5.93.2 ICTR see ICTR Machel Report on, 1.54 sexual violence, 5.52, 5.98.1 Safe Schools Declaration (2015), 1.67.9, 6.33, 7.135.1 sanctions see UNSC; specific countries satellite imagery, 7.99 Saudi Arabia, Yemen conflict, 3.134, 7.94 Save the Children, 1.10, 1.22, 1.82, 8.14, Annex III(15)

529

Index Save the Children International Union, 1.22, 1.25 schools see also hospitals/schools attacks accountability mechanisms deficiencies, 7.141 domestic courts, 7.124 ICL, 7.136–137 IHL, 7.124–135 IHRL, 7.138–140 improving, 7.142 information gathering, 7.133 NGOs, 7.134 survey, 7.124–142 definition, 7.8.2, 7.8.5, 7.103, 7.111.4 ICL, 7.109.3 adjudication, 7.136–137 deficiencies, 7.114 improving, 7.115 legal framework, 7.112–113 IHL accountability mechanisms, 7.124–135 civilian objects, 7.105 deficiencies, 7.109 form of recognition, 7.111.2 improving, 7.110–111, 9.13.14 information gathering, 7.133 international courts, 7.125 legal framework, 7.105–108 military use, 7.105, 7.111.1, 7.127.1 MRM, 7.129 NGOs, 7.134 private property, 7.107.2 protected zones, 7.111.3, 7.135 Special Rapporteur, 7.132 treaty bodies, 7.126 UNGA, 7.128 UNHRC and, 7.131 UNSC, 7.127 IHRL accountability mechanisms, 7.138–140 deficiencies, 7.122 improving, 7.123, 9.12.9 right to education, 7.116–121 survey, 7.116–123 treaty bodies and, 7.140 information gathering, 7.133 legal framework, 7.104–123 Safe Schools Declaration (2015), 1.67.9, 6.33, 7.135.1 trend in attacks, 7.100 zones of peace, 7.135 Sentry, 7.99.2 sexual harassment: Istanbul Convention (2011), 5.72.6 sexual slavery: definition, 5.40–42

sexual violence see also marriage accountability mechanisms deficiencies, 5.101–102 domestic courts, 5.86, 5.93, 5.96, 5.102.1 domestic initiatives, 5.91.1 ICL, 5.93–95 ICRC, 5.92.1 IHL, 5.86–92 IHRL, 5.96–100 improving, 5.104 international courts, 5.87, 5.94–95 MARA mechanism, 5.88.1, 5.90.2 military justice, 5.93.3 NGOs, 5.92.2 regional initiatives, 5.91.2 survey, 5.85–104 treaty bodies, 5.98 UN Agencies, 5.99 UNSC, 5.88–89 causes, 5.6–8 child soldiers and, 4.84 own group abuse, 5.60, 5.63 Rome Statute, 4.76 crimes against humanity, 3.75 current situations, 5.2 customary law (CIL), 5.18.3, 5.19.3 definitions, 5.14, 5.20, 5.30 ICL, 5.36–50 deliberate strategy, 5.5 forms, 5.7, 5.14.5, 5.19–21, 5.50 gender and, 5.3, 5.14 Great Lakes, 5.91.2 ICL abuse of power, 5.51.2 accountability mechanisms, 5.93–95 choice of charges, 5.32 consent, 5.51.2 crimes against humanity, 5.30–33 cumulative charges, 5.29 deficiencies, 5.57–62 definitions, 5.36–50 domestic courts, 5.93 enforced prostitution, 5.43–44 enforced sterilizations, 5.47–48 forced marriages, 5.52–56, 5.62 forced pregnancies, 5.45–46 genocide, 5.34 gravity, 5.51.1 IACs, 5.27 improving, 5.63–64, 9.12.6, 9.13.9–10 international courts, 5.94–95 legal framework, 5.22–56 military justice, 5.93.3 NIACs, 5.28

530

Index position of children, 5.51–56 rape, 5.37–39 sexual slavery, 5.40–42, 5.54.1 trafficking, 5.41 war crimes, 5.26–29 IHL accountability mechanisms, 5.86–92 deficiencies, 5.57–62 IACs, 5.18.1, 5.19.1 improving, 5.63–64, 9.12.6, 9.13.9 legal framework, 5.16–21 NIACs, 5.18.2, 5.19.2 soft law, 5.21 IHRL accountability mechanisms, 5.96–100 case law, 5.76–81 conventions, 5.67–75 deficiencies, 5.83 domestic courts, 5.96 explicit provisions, 5.66–75 implicit provisions, 5.76–81 improving, 5.84 legal framework, 5.65–82 soft law, 5.82 treaty bodies and, 5.98 UN agencies, 5.99 legal framework, 5.10–84 deficiencies, 5.57–62 ICL, 5.22–56 IHL, 5.16–21 IHRL, 5.65–82 improving, 5.63–64, 9.12.6, 9.13.9–10 robustness, 5.11 Machel Report (1996), 1.47.3 multi-disciplinary responses, 5.15, 5.51.3 overview, 1.88–90 prevention, 5.51.3, 5.61, 5.64, 5.90 rehabilitation, 5.15, 5.51.3, 5.61, 5.64 underreporting, 5.90 siege warfare, 8.1, 8.114.1, 8.135.2 Sierra Leone: SCSL see Special Court of Sierra Leone (SCSL) sexual violence, 5.52 Signal Project, 7.99.2 single instrument see new single instrument slavery: child abduction and, 6.11.4, 6.22.3, 6.22.4 conventions, 6.22.4 ECHR, 5.79 IHL, 6.11.4 sexual slavery, 5.79 soft law: international initiatives, 2.61–65 regional initiatives, 2.66–68 relevance, 2.61–68

Somalia: AMISOM, 5.89.2 child abduction, 6.1, 6.38, 6.53 hospital/school attacks, 7.79.2 HRC report, 3.59.3 humanitarian access and, 8.131.5, 8.135.2, 8.135.4 ICC and, 9.36.1 killing/ill treatment, 3.133 action plan, 3.135, 3.137, 3.142, 3.153 Safe Schools Declaration and, 7.135.1 sexual violence, 5.2, 5.89.2 UNSC and, 8.131.3 sanctions, 3.127, 3.129.2, 3.152, 6.37.2, 7.79.2, 8.75.8, 8.131.7 South Sudan: child abduction, 6.38, 6.53 CRC ratification, 1.61 hospital/school attacks, 7.79.2 humanitarian access and, 1.101, 8.131.5, 8.135.2, 8.135.4, 8.147.3 ICC and, 9.36.1 killing/ill treatment, 3.133 action plan, 3.135, 3.138 Safe Schools Declaration and, 7.135.1 school attacks, 1.94 sexual violence, 5.2, 5.88.2, 5.89.2 UNSC and, 8.131.3 sanctions, 3.127, 3.129.3, 3.152, 6.37.2, 7.79.2, 8.131.5, 8.131.7 Special Court of Sierra Leone (SCSL): child abduction, 6.45.2 child soldiers, 4.63–64, 4.71–72, 4.156 cases, 4.130, 4.146 customary law, 4.82 participation, 4.75.1 voluntary enlistment, 4.88 humanitarian access and, 8.103.2, 8.103.6, 8.142.2 overview, 1.73–74, 2.136 sexual violence forced marriages, 5.54, 5.56, 5.62.1 gravity, 5.51.1 sexual slavery, 5.40, 5.42 special protection principle, 2.7 Special Representative for Children in Armed Conflict: accountability mechanism, 2.118, 2.126 child abduction and, 6.39 communications to, 4.170 focus, 2.123.2 hospital/school attacks and, 1.93, 7.8.3 hospitals, 7.81 limits of protection, 7.9.1, 7.72 military use, 7.35 schools, 7.103, 7.105, 7.109.2, 7.111, 7.130, 7.135.1

531

Index humanitarian access and, 1.100, 8.136 killing/ill treatment of children and, 1.82–83 on NIAC accountability mechanisms, 2.104.1 non-adjudicative mechanism, 2.92.5 origins, 1.112, 5.88.1 overview, 1.58–60 role, 1.12.3 improving, 3.156.1 OP3 and, 9.44.5 sexual violence and, 5.14 suggestions, 2.4.4 Special Tribunal for Lebanon (STL), 2.137.2 Sphere Project, 1.67.10 starvation: deprivation of survival necessities, 8.99.3 ICL intentional starvation of civilians, 8.98–100, 8.116.2, 8.118–119 NIACs, 8.100, 8.114, 8.119 IHL, 8.42–45 causes, 8.44 definition, 8.116.2 interpretation, 8.42, 8.54.1 method of warfare, 8.99.4, 8.119 state sovereignty: humanitarian access and, 8.26 success stories, 1.110–111 Sudan: attacks on peacekeeping objects, 8.104.4 child soldiers, 4.142.2 Darfur violations, 3.123, 8.104.4, 8.144.1 hospital/schools and, 7.83 humanitarian access and, 8.88.1, 8.132, 8.135.4, 8.144.1 ICC and, 2.119, 9.36.1 Safe Schools Declaration and, 7.135.1 sexual violence, 5.2, 5.89.2, 5.98.1 UNSC sanctions, 3.128, 8.131.6 suicide bombings, 1.108, 3.3.2 Switzerland, 8.48.4 Syria: chemical weapons, 1.2 child abduction, 1.92, 6.1 children in need, 1.16 hospital attacks, 1.95, 7.80, 7.83, 7.99 humanitarian access and, 8.135.2, 8.135.4 attacks on humanitarian personnel, 8.104.6 state actions, 8.138 UNSC, 8.48.2 humanitarian crisis, 1.103, 8.2, 8.14 ICC and, 9.36.1 killing/ill treatment, 3.133 school attacks, 1.95, 7.127.1 sexual violence, 5.2, 5.89.2

Tajikistan, 6.26.2 Taliban, 1.107 technological changes, 1.108 terrorism see also counter-terrorism child soldiers and, 4.128.3 trend, 1.107 Theirworld, 1.10 torture/ill treatment: definitions cruel treatment, 3.50.6 IHRL, 3.103 mutilation, 3.50.6 torture, 3.50.6 IHL prohibitions, 3.50, 8.54.1, 8.55.5 IHRL definitions, 3.103 humanitarian access and, 8.88.2 prohibitions, 3.100–105 sexual violence, 5.77–78 protected persons, 3.50 UNCAT, 3.50.6, 3.100, 3.104 toxins, 3.67.3 trafficking: child abduction and, 6.22.3, 6.48.3 children, 4.128.3 definition, 6.22.3 protocols, 6.22.3 sexual violence, 5.41, 5.70 Trafficking Protocol: child abduction and, 6.22.3 definitions, 6.7.4, 6.7.5 treatment of persons: IHL, 3.42–50 children, 3.42–44, 3.61 detention and internment, 3.45.2, 3.55.2, 3.62.2 improving, 3.61–62 removal and evacuation, 3.45.1, 3.55.1, 3.62.1 IHRL right to life, 3.89–99 torture/inhuman treatment, 3.100–105 war crimes, 3.68.1 Trump, Donald, 1.2 truth and reconciliation commissions, 1.111 Turkey: humanitarian access and, 8.144.2 ICC and, 9.36.1 sexual violence, 5.77.1 Uganda: child soldiers, 4.128.1, 4.130, 4.155, 4.159.2 LRA, 1.105, 4.138 sexual violence, 5.52, 5.98.1 Ukraine, 6.47.1, 7.78

532

Index UN: accountability mechanisms IHRL, 2.154–155 MRM, 2.123 Special Representative, 2.126 survey, 2.122–126 UNGA, 2.125 UNHRC, 2.124 UNSC, 2.117–121 Charter, 1.32 child abduction and, 6.3, 6.40, 6.41 on child protection, 3.54.2 child soldiers and, 1.86 children’s rights, 5.82.3 on girl children, 5.82.2 on grave violations of international law, 2.3.1 hospital/school attacks and, 7.13.3, 7.92 humanitarian access and, 8.134–137 Guiding Principles of Humanitarian Assistance, 8.134.2 humanitarian assistance, 8.32 reports, 8.135 Humanitarian Response Plans, 8.120 IHFCC status, 2.112 Inter-Agency Standing Committee humanitarian access and, 8.116 sexual violence, 5.21.1 Inter-Agency Working Group on Sanctions (IAWGS), 8.77.2 Machel Report see Machel Report (1996) Millennium Declaration, 3.7 MRM see MRM observers, 8.120 protection of civilians in armed conflict, 8.122.1, 8.122.3 Responsibility to Protect (R2P), 8.122.1–2 right to education, 7.128 schools and, 7.119, 7.128, 7.132, 7.135.1 Security Council see UNSC sexual violence and, 5.14.2, 5.58.1 agencies, 5.99 information gathering and monitoring, 5.90 reports, 5.90.1, 5.103 Special Rapporteur on Extrajudicial Executions, 2.141 Special Representative see Special Representative for Children in Armed Conflict UNGA Resolution 31/169, 1.33.6 UNGA Resolution 46/182, 8.32 UNGA Resolution 48/157, 1.4, 1.43 UNGA Resolution 51/45, 1.67.3 UNGA Resolution 51/77, 1.58 UNGA Resolution 58/156, 6.40 UNGA Resolution 61/146, 6.40 UNGA Resolution 62/126, 6.40

UNGA Resolution 62/140, 6.40 UNGA Resolution 64/290, 7.128 UNGA Resolution 66/140, 5.82.2 UNGA Resolution 66/141, 5.82.3 UNGA Resolution 67/87, 8.134.4 UNGA Resolution 1386, 1.33.1 UNGA Resolution 3318, 1.33.4, 2.62, 8.134.1 UNGA Special Session on Children (2002), 1.67.10 UN-ASIGN Crowd, 7.99.1 UN Commission on Human Rights, 5.93.3, 6.50 UN Committee Against Torture, 5.78 UN High Commissioner for Human Rights, 7.99 UN High Commissioner for Refugees, 5.14.5 UN Human Rights Council (UNHRC): accountability mechanism, 2.124 functions, 2.124 humanitarian access and, 8.88.1, 8.147 South Sudan, 8.147.3 Sudan, 8.148 Syrian attacks on humanitarian missions, 8.104.6, 8.147.1 Machel Report and, 1.4 reintegration projects, 1.52 schools and, 7.131 sexual violence and, 5.99.1 Somalia report, 3.59.3 Special Representative and, 1.59 violations of IHL, 3.130 UN Office for the Coordination of Humanitarian Affairs (UNOCHA), 1.16, 8.13, 8.120 UNAMA, 4.143.1 UNESCO, 7.133, 7.142 UNICEF: Cape Town Principles, 1.67.7, 1.67.8, 2.63, 2.65 child soldiers and, 1.67.7 on domestic IHRL accountability mechanisms, 2.140 on hospitals/schools attacks, 1.93 humanitarian access and, 8.137 Machel Report and, 1.4 MRM, 1.60.7 overview, Annex III(18) on school attacks, 7.113 sexual violence and, 5.99.2 Special Representative and, 1.59 Strategic Review (2006), 1.77 on Syria, 1.16 UNITAR, 7.99.1 United Kingdom: enlisting age, 4.125, 4.160.2 Falkland/Malvinas conflict (1982), 7.34.2 Pinochet case, 9.33.1 Preventing Sexual Violence Initiative, 5.91.1 torture/ill treatment, 8.88.2

533

Index United States: Afghanistan and, 7.78 API and, 3.59.3 Congo and, 4.137 CRC and, 1.62–63, 3.111 enlisting age, 4.125 Médecins Sans Frontières and, 7.78 Nicaragua and, 8.129.1 Universal Declaration of Human Rights (1948), 1.32, 3.90, 7.20, 8.89.1 UNOCHA, 1.16, 8.13, 8.120 UNOSAT, 7.99.1 UNRRA, 1.27 UNSC: accountability mechanisms child abduction, 6.37–39 child soldiers, 4.132–143, 4.166–170, 4.172 expressions of concern, 3.124–125, 4.133–134, 5.88.1, 6.37.1, 7.79.1, 7.127.1, 8.131.1–3 humanitarian access, 8.131–133, 8.150 ICL, 2.138 IHL, 2.117–121 IHRL, 2.154 killing/ill treatment of children, 3.123–129 MARA mechanism, 5.88.1, 5.90.2 MRM see MRM non-forcible actions, 8.131.8–9 sanctions, 3.126–129, 4.135–138, 6.37.2, 6.53.2, 6.54.2, 7.79.2, 7.94, 7.127.2, 8.123.1, 8.131.4–9 schools, 7.127 sexual violence, 5.88–90 child abduction, sanctions, 6.37.2, 6.53, 6.54.2 hospital/school attacks and, 1.98, 7.2 definition, 7.8.1 hospitals, 7.79.2, 7.79–81, 7.94 policy choice, 7.10 schools, 7.111.2 humanitarian access and, 8.4.3, 8.116.5 assistance missions, 8.120 facilitating measures, 8.123.2 interventions, 8.33, 8.122–123 non-forcible actions, 8.123 sanctions, 8.123.1 Syria, 8.48.2 on humanitarian emergencies, 8.13 ICC referrals, 2.119, 4.151, 9.36.1 interventions in conflicts, 2.121 killing/ill treatment of children and, 3.4 MARA mechanism, 5.88.1, 5.90.2 MRM see MRM Resolution 787 (1992), 8.131.1 Resolution 1261 (1999), 1.60.1, 2.118, 4.133.1, 6.3 Resolution 1314 (2000), 1.60.2, 4.133.2

Resolution 1315 (2000) (Sierra Leone), 1.73 Resolution 1325 (2000), 5.88.1 Resolution 1373 (2001), 8.77.3 Resolution 1379 (2001), 1.60.3 Resolution 1460 (2003), 1.60.4 Resolution 1493 (2003), 4.135 Resolution 1533 (2004), 4.135 Resolution 1539 (2004), 1.60.5–6, 4.133.3, 6.37.1 Resolution 1564 (2004), 3.123 Resolution 1612 (2005), 1.59, 2.123.1, 2.123.6, 6.37.1 Resolution 1820 (2008), 5.88.1, 5.90.1 Resolution 1857 (2008), 4.136, 4.137, 5.88.2 Resolution 1882 (2009), 1.60.8, 3.132, 3.135, 4.133.4, 5.89.2, 5.89.3 Resolution 1888 (2009), 5.88.1, 5.90.1 Resolution 1960 (2010), 5.88.1, 5.90.1, 5.90.2 Resolution 1998 (2011), 1.60.9, 3.135, 7.2, 7.8.3, 7.24, 7.35, 7.79.1 Resolution 2002 (2011), 3.129.2 Resolution 2093 (2013), 3.129.2 Resolution 2106 (2013), 5.88.1, 5.90.1 Resolution 2139 (2014), 7.127.1, 8.48.2, 8.123.2 Resolution 2143 (2014), 7.36, 7.127.1 Resolution 2165 (2014), 8.104.6, 8.123.2 Resolution 2206 (2015), 5.88.2 Resolution 2225 (2015), 6.38, 7.127.1, 8.131.2 Resolution 2262 (2016), 4.138, 5.88.2 Resolutions binding nature, 4.134 humanitarian access and, 8.75.1, 8.75.2 inconsistencies, 3.156.1, 4.172 legal effect, 2.10 non-adjudicative mechanism, 2.92.4 safe zones, 7.34.5 sanctions, 2.120, 3.126–129 child abduction, 6.37.2, 6.53, 6.54.2 child soldiers, 4.135–138, 4.166 conditions, 8.75.1 hospitals and, 7.79.2 humanitarian access and, 8.75–77, 8.89.6, 8.123.1, 8.131.4–9, 8.150 deficiencies, 8.150 implementation, 3.129, 8.131.7 inconsistencies, 3.152, 7.94, 7.97 Killing/ill treatment and, 3.126–129, 3.152 listing, 3.127–128, 8.131.5–6 Machel Report (1996), 1.47.5, 8.89.6 school attacks and, 7.127.2 sexual violence, 5.88.2 smart sanctions, 8.75.8 Somalia, 8.75.8 sexual violence and, 1.88–90, 5.1 special protection principle, 2.7 working groups, 2.118

534

Index children in conflict see Working Group on Children in Armed Conflict non-adjudicative mechanism, 2.92.4 Ut, Nick, 1.2 Van Zyl, Lizzie, 1.2 Vancouver Principles (2017), 4.128.1 Vienna Convention on Consular Relations (1961), 9.33.3 Vienna Convention on Diplomatic Convention (1961), 9.33.3 Vienna Convention on the Law of Treaties (1969), 2.81 Vietnam War, 1.2 War Child International Network, Annex III(17) war crimes: atrocity crimes, 8.122.2 child abduction, 6.17.2 child soldiers, 4.59.1–83, 4.128.1 definition, 3.65–72, 3.86 2017 amendments, 3.67.3, 3.68.3 deficiencies, 3.86 improving, 3.87 domestic prosecutions, 9.33.2 hospitals/schools attacks, 7.19.1, 7.42 hospitals, 7.52 humanitarian access and attacks against persons, 8.105.1 attacks against property, 8.105.2 attacks on assistance missions, 8.101.1, 8.102–104, 9.12.14 starvation of civilians, 8.99.1, 8.100.2, 8.100.4 UNSC, 8.131.1 ICC jurisdiction, 5.23 killing/ill treatment of children, 3.64–72 improving, 9.13.3 material elements, 3.66–68 mental elements, 3.69 NIACs, 3.68, 7.19.2, 8.104 pillage, 8.101.2, 8.105.2

sexual violence, 5.12 improving law, 9.12.6 legal framework, 5.26–29 Watchlist on Children and Armed Conflict, 3.143, 7.98, 7.133, Annex III(16) Working Group on Children in Armed Conflict: child abduction, 6.37.3 child soldiers, 4.139 compliance options, 3.126 humanitarian access, 8.131, 8.133 membership, 2.123.6 objectives, 2.123.6 origins, 1.59, 2.123.6 sexual violence, 5.88.3 World Child Welfare Charter, 1.24 World Development Report (2011), 1.16 World Health Organization: hospital attacks and, 1.95, 1.97, 7.9.2, 7.82, 7.82.1, 7.95, 7.98 on humanitarian emergencies, 8.13 World Summit for Children, 3.7 Yemen: hospital attacks, 7.94 humanitarian access and, 8.131.5, 8.135.2, 8.135.4 humanitarian crisis, 8.2, 8.20 ICC and, 9.36.1 killing/ill treatment, 3.133 Safe Schools Declaration and, 7.135.1 Saudi conflict, 3.134 school attacks, 1.99 UNSC and, 8.123.3 sanctions, 3.128, 3.129.4, 8.131.5 statements, 8.131.3 Yousafzai, Malala, 1.107 youth organisations, 4.14 Yugoslavia, ICTY see ICTY Zerrougui, Leila, 1.59 Zimurinda, Innocent, 4.137, 5.88.2 zones of peace, 1.57, 7.1, 7.8, 7.135, 8.3, 8.74, 8.80

535

536