WORKING PAPER N° 1

The Six Grave Violations Against

Children During Armed Conflict:
The Legal Foundation

October 2009 (Updated November 2013)

Cover photo
Mine Awareness Programme for Iraqi Children: At Ashawa Primary
School, a girl stands next to mine awareness materials used in the Mine
Risk Education programme, funded by UNICEF and implemented by
the General Directorate of Mine Action and the Iraqi Kurdistan Mine
Action Agency, 21 July 2011, Ashawa, Iraq.
UN PHOTO/Bikem Ekberzade

Office of the Special Representative of the Secretary-General

for Children and Armed Conflict

One United Nations Plaza

DC1-627
New York, NY 10017, USA
Tel.: (+1-212) 963-3178
Website: http://childrenandarmedconflict.un.org

© United Nations
November 2013
All rights reserved
 3

Table of Contents

Preface ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 5
Introduction .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. 9
Identifying the Most Serious Violations of Children’s Rights in times
of Armed Conflict . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . 9
The Six Grave Violations Against Children During Armed Conflict ... 9
A Legal Foundation to Act Upon . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . 10
The Six Grave Violations: Key Legal Sources ... ... ... ... ... ... ... ... ... ... 10
International humanitarian law ... ... ... ... ... ... ... ... ... ... ... ... ... ... 10
International human rights law ... ... ... ... ... ... ... ... ... ... ... ... ... ... 10
International jurisprudence . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . 10
Security Council Resolutions on children and armed conflict ... . .. . 10
Grave Violation 1. Recruitment and use of children . .. . .. . .. . .. . .. . .. . .. . .. . .. . 11
Recruiting and Using Children Under 15 Years ... ... ... ... ... ... ... ... ... 11
Recruiting and Using Children under 18 years ... . .. . .. . .. . .. . .. . .. . .. . .. . 11
Release and reintegration of children .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. 12
The Lubanga case before the ICC ... ... ... ... ... ... ... ... ... ... ... ... ... ... 12
The Charles Taylor case before the Special Court for Sierra Leone ... 13
Detention of children allegedly associated with armed groups . .. . .. . 13
Grave Violation 2. Killing and maiming of children .. . .. . .. . .. . .. . .. . .. . .. . .. . .. 14
Principles of “Distinction” and “Proportionality” ... ... ... ... ... ... ... ... 14
Protecting Children from Serious Injury .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. 15
An Inherent Right to Life .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. 15
Grave Violation 3. Sexual violence against children . .. . .. . .. . .. . .. . .. . .. . .. . .. . 16
Rape and other Forms of Sexual Violence as International Crimes ... . 17
Other relevant Security Council Resolutions ... ... ... ... ... ... ... ... ... ... 17
Grave Violation 4. Attacks against schools and hospitals ... . .. . .. . .. . .. . .. . .. . 18
Protecting Civilian Objects .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. 18
SCR 1998 on attacks on schools and hospitals ... . .. . .. . .. . .. . .. . .. . .. . .. . 19
Military use of Schools . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . 20
Grave Violation 5. Abduction of children .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. 21
The Consequences of Abduction ... . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . 21
Grave Violation 6. Denial of humanitarian access . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . 23
Ensuring Access to Internally Displaced and Refugee Children . .. . .. . 23
Protection of Humanitarian Personnel ... . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . 24
Conclusion . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . 25
Further Information .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. 26
Endnotes ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 27
4

Two children stand together as heavy rain falls in a camp of over 18,000 people displaced by post election violence
in Kenya’s Rift Valley, January 2008, Rift Valley, Kenya. UNICEF Photo/Georgina Cranston.

About the Office

The Office of the Special Representative of the Secretary-General for Children and Armed
Conflict (OSRSG/CAAC) was established following the groundbreaking report on the Impact
of armed conflict on children (A/51/306 and Add.1) presented to the General Assembly in
1996 by Ms. Graça Machel, former Minister of Education of the Republic of Mozambique. This
report provided the first comprehensive assessment of the multiple ways in which children
were abused and brutalized during armed conflicts. It called the attention of the international
community to better protect children affected by armed conflict.

In 1996, the General Assembly adopted resolution A/RES/51/77 which called for the Secre-
tary-General to appoint a Special Representative as a high-level independent voice on this
issue. In April 2006, the Secretary-General appointed Ms. Radhika Coomaraswamy as Under-
Secretary-General, Special Representative for Children and Armed Conflict. In this capacity,
she serves as a moral voice and independent advocate to build awareness and give promi-
nence to the rights and protection of girls and boys affected by armed conflict.
 5

Preface

“Mankind owes to the child the best it has to give.”

Preamble, UN Declaration of the Rights of the Child (1959)

T
he six grave violations against children during times of armed conflict, enumerated by
the Security Council in its resolutions, form the basis of the Council’s architecture in
protecting children during war. The United Nations Moitoring and Reporting mecha-
nism set up around the world feeds into this framework to gather evidence of grave violations
against children in reporting to the Security Council. In this Working Paper, the six grave vio-
lations are analyzed against their basis in applicable international law. In doing so, we hope
to bring clarity to the issues concerned and to strengthen the arguments of child protection
partners as they confront these violations in their field of work.

This is the first in a series of Working Papers developed by the Office of the Special Repre-
sentative for Children and Armed Conflict to the child protection community to advocate for
the better protection of children affected by armed conflict. We hope this effort will assist in
bringing conceptual clarity to our work and strengthen our advocacy with Member states,
parties to conflict, regional organizations and civil society groups.

The current version of Working Paper No.1 is an update and follow-up on the previous version
prepared under the guidance of Ms. Radhika Coomaraswamy, former Special Representative
on Children and Armed Conflict, and includes the latest Security Council resolutions on chil-
dren and armed conflict, as well as other recent developments in international law relevant to
child protection in times of armed conflict.

Leila Zerrougui
Special Representative of the Secretary-General
for Children and Armed Conflict
7 November 2013
Children pose in a camp for internally displaced people (IDPs), 22 August 2012, Port-au-Prince, Haiti. UN Photo/Logan Abassi

Acknowledgements

The Office of the Special Representative of the Secretary-General for Children and Armed
Conflict would like to express its appreciation to the lead authors of this Working Paper:
Carolyn Hamilton (Professor of Law at the University of Essex, Director of the Children’s
Legal Centre and Barrister at 1, Kings Bench Walk, London) and Laurent Dutordoir (Associate
Political Affairs Officer at the Office of the SRSG for Children and Armed Conflict).
 7

Acronyms and Abbreviations

OSRSG/CAAC Office of the Special Representative of the Secretary-General for Children

and Armed Conflict

CAT UN Convention against Torture

CRC Convention on the Rights of the Child

DDR Disarmament, Demobilisation, and Reintegration

DRC Democratic Republic of the Congo

ECCC Extraordinary Chambers in the Courts of Cambodia

ECOSOC United Nations Economic and Social Council

ICC International Criminal Court

ICCPR International Covenant on Civil and Political Rights

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the former Yugoslavia

IHL International Humanitarian Law

IMF International Military Forces

MNF-I Multi-National Force in Iraq

NDS National Directorate of Security

NGO Non-governmental organization

OPAC Optional Protocol on the Involvement of Children in Armed Conflict

POW Prisoner of War

RUF Revolutionary United Front

SCSL Special Court for Sierra Leone

TRC Truth and Reconciliation Commission

UNDP United Nations Development Programme

Displaced Children at Zam Zam Camp, North Darfur, Sudan, 25 June 2012. UN Photo/Sojoud Elgarrai
 9

Introduction

“It is unforgivable that children are assaulted, violated,

murdered and yet our conscience is not revolted nor our *  Graca Machel, The
Impact of Armed Conflict
sense of dignity challenged. on Children attached to:
UN Note of the Secretary-
General, A/51/306 (1996),
This represents a fundamental crisis of our civilization.* para. 317.

Graça Machel

P
rotecting children from the effects of
armed conflict is a moral imperative, a The Six Grave Violations
legal responsibility and a question of Against Children During
international peace and security.1 Armed Conflict
The Security Council has resolved that the 1. Recruitment and use of children
protection of children from armed conflict is
an important aspect of any comprehensive 2. Killing or maiming of children
strategy to resolve conflict, and should be 3. Sexual violence against children
a priority for the international community.2
4. Attacks against schools or hospitals
The General Assembly and other UN bodies
have repeatedly called for special protection 5. Abduction of children
afforded to children by all parties to conflict.3
6. Denial of humanitarian access

Identifying the Most Serious

Violations of Children’s Rights in
The Security Council’s resolutions pro-
times of Armed Conflict
vided the UN with tools to effectively ad-
The Secretary-General identified six grave dress grave violations against children dur-
violations against during armed conflict, ing armed conflict, including: the Secretary
based on their suitability for monitoring and General’s global annual report on Children
verification, their egregious nature and the and Armed Conflict; the listing of parties
severity of their consequences on the lives to conflict responsible for recruitment and
of children.4 The legal basis for these viola- use of children, killing and maiming of chil-
tions lies in relevant international law, which dren, sexual violence against children, and
in turn encompasses international humani- attacks on schools, hospitals and protected
tarian law, international human rights law persons; the establishment of country-spe-
and international criminal law. During armed cific Monitoring and Reporting Mechanisms
conflict, international humanitarian law and (MRM)6 on grave violations against children A child means “every
international human rights law must be re- during armed conflict; the creation of the human being below the
spected, with special regard to children who Security Council Working Group on Chil- age of 18 years unless
often have no means to defend themselves dren and Armed Conflict ( SCWG-CAAC); under the law applicable
against abuses.5 The full range of children’s and the requirement of dialogue with listed to the child, majority is
rights, economic, social and cultural as well parties on the development of concrete and attained earlier.”
as political and civil, must be respected, pro- time-bound Action Plans to halt and prevent Convention on the
tected and fulfilled. violations. Rights of the Child
10

Customary Rule A Legal Foundation to Act Upon

#135 of International ff International Covenant on Civil and
The purpose of this Working Paper is to de- Political Rights (1966)
Humanitarian Law:
tail the legal basis for asserting that the six ff International Covenant on Econom-
“Children affected by
grave violations against children in armed ic, Social and Cultural Rights (1966)
armed conflict are
conflict are grave breaches and violations ff Regional human rights instruments
entitled to special
of applicable international law. This paper ff ILO Conventions 29 (1930) and 182
respect and protection.”
is designed to assist child protection advo- (1999)
International cates around the world in their mission to
Committee of the
ff Convention against Torture (1984)
protect children and end impunity for viola- ff Customary international human
Red Cross
tions against children. The protection of chil- rights law
dren affected by armed conflict is human-
ity’s legal and moral commitment.
International jurisprudence
ff Case law of the International
The Six Grave Violations: Criminal Tribunal for the former
Key Legal Sources Yugoslavia, International Criminal
Tribunal for Rwanda and the
International humanitarian law
Special Court for Sierra Leone
ff The Four Geneva Conventions ff The Rome Statute and case law of
(1949) the International Criminal Court
ff Additional Protocols to the Geneva ff Case law of the International Court
At a demobilization ceremony
in Sudan, adolescent
Conventions (1977) of Justice
boys walk away from the ff Rome Statute of the International
weapons they once carried
as child soldiers. Criminal Court (1998)
UNICEF Photo/Stevie Mann Security Council Resolutions
ff Customary international
on children and armed conflict
humanitarian law
ff 1261 (1999), 1314 (2000), 1379
(2001), 1460 (2003), 1539 (2004),
International human rights law
1612 (2005), 1882 (2009), 1998
ff Convention on the Rights of the (2011) and 2068 (2012).
Child (1989) and its Optional
Protocols (2000/2012) Note: International treaties bind only
  
ff UN Declaration of Human Rights those States that have signed and ratified
them, while customary law is universally
(1948) binding.
 11

Grave Violation 1
Recruitment and use of children

Parties to conflict must not recruit or use

children as combatants or other support roles.
Parties to conflict must prevent children
from participating in hostilities.

R
ecruiting or using children under the cruitment and use of children in armed con- “The Parties to the
age of 15 as soldiers is incontrovertibly flict.13 Individual commanders and political conflict shall take all
prohibited under international human- leaders are being increasingly held account- feasible measures in
itarian law.7Furthermore, international human able for the recruitment and participation of order that children who
rights law clearly states 18 years as the mini- children under the age of 15 in hostilities. have not attained the
mum legal age for participation in hostilities.8 age of fifteen years do
Recruiting and Using Children not take a direct part
Recruiting and Using Children under 18 years in hostilities and, in
particular, they shall
Under 15 Years International human rights law has further refrain from recruiting
Recruitment and use of children under the strengthened the acceptable minimum age them into their armed
age of 15 is prohibited by the Convention for direct participation in hostilities and forces.”
on the Rights of the Child and the Additional raised it to 18 years. The Convention on the
Article 77(2),
Protocols to the Geneva Conventions.9 The Rights of the Child’s Optional Protocol on
Additional Protocol I to
rule that children must not be recruited into the Involvement of Children in Armed Con- the Geneva Conventions
armed forces or armed groups and that chil- flict (2000) requires State parties to increase
dren must not be allowed to take part in hos- to 18 years the minimum age for compulsory
tilities is considered customary international recruitment and for direct participation in
law, applying equally in situations of interna- hostilities. Those countries that continue to
tional and non-international armed conflict, permit voluntary recruitment of children un-
and to both Government armed forces and der the age of 18 must introduce strict safe-
non-State armed groups.10 Judicial affirma- guards.14 In addition, the Optional Protocol
tion came in 2004, when the Special Court prohibits non-State armed groups under any
for Sierra Leone (SCSL) ruled in the Hinga circumstances from recruiting or using chil-
Norman case that the recruitment and use dren under 18 years.15
of children in armed conflict is a war crime
Similarly, while not outright banning the re-
under customary international law.11 In ad-
cruitment of children under 18 in Govern-
dition, the statutes of the international tribu-
ment armed forces, Additional Protocol I of
nals for the former Yugoslavia, Rwanda and
the Geneva Conventions and the Conven-
Sierra Leone also declared that the recruit-
tion on the Rights of the Child both require
ment and use of children under the age of
that when recruiting children between 15
15 years in armed conflict is a war crime. The
and 18 years old, priority should be given to
Rome Statute of the International Criminal
the oldest.16The International Labor Organi-
Court (ICC) echoes this stance.12
zation’s Convention No. 182 on the Worst
The criminal cases before the SCSL and the Forms of Child Labor declares that recruit-
ICC are evidence of the position the inter- ing children below the age of 18 is “one of
national community has taken regarding re- the worst forms of child labor.”17 ILO Recom-
12

States Parties to the mendation 190 accompanying this conven- disarmament, demobilization and reintegra-
present Charter shall tion, as well as the Security Council all call for tion process, including special programs to
take all necessary countries to criminalize child recruitment.18 provide for the “psychological recovery and
measures to ensure National legislation and military manuals in a social reintegration” of these children into
that no child shall number of countries increasingly reflect this society.23 (See also the Paris Principles on
take a direct part in practice.19 The Paris Principles on Children Children Associated with Armed Forces or
hostilities and refrain Associated with Armed Forces or Armed Armed Groups)
in particular, from Groups (2007) to protect children from un-
recruiting any child. lawful recruitment suggests States to ensure
The Lubanga case before the ICC
that armed groups within their territory do
Art. 22, African Charter
on the Rights and not recruit children under the age of 18 and On March 2012 , the International Criminal
Welfare of the Child that the States themselves respect the in- Court convicted Lubanga Dyilo of commit-
ternational standards for recruitment.20 The ting war crimes consisting of the enlisting
African Charter on the Rights and Welfare of and conscripting of children under the age
the Child (1999) prohibits “recruitment and of 15 into the Forces partriotiques pour la
direct participation in hostilities of any per- libération du Congo and their use for active
son under the age of 18 years.”21 participation in hostilities. He was sentenced
by the ICC to a total period of 14 years of im-
prisonment. The Lubanga case was the first
Release and reintegration of its kind before the ICC. Of great signifi-
of children cance was the Court’s acceptance that the
line between voluntary and involuntary re-
When children associated with armed forces
cruitment is legally irrelevant in the context
or armed groups are captured by opposing
of children’s association with armed forces
armed forces, the special protections afford-
or armed groups in times of conflict. The
ed to them by international humanitarian law
court also decided to apply a broad inter-
by virtue of their age remain applicable.22
pretation of the term “active participation in
(See also Working Paper No. 3 on Children
hostilities” to ensure justice and protection
and Justice published in September 2011).
for all children associated with armed con-
Moreover, the Optional Protocol insists that flicts from those on the front line to the boys
parties to conflict pay particular attention to and girls who were involved in multiple roles
all children involved in hostilities during the supporting the combatants.

A boy reaches through bars at a prison for juveniles, Haiti. UNICEF Photo/Roger LeMoyne
 13

The Charles Taylor case before conformity with national law, in line with in-
the Special Court for Sierra Leone ternational standards, and only be used as
a measure of last resort and for the short-
On 26 April 2012, the SCSL found former est appropriate period of time. Children as
President of Liberia, Charles Taylor, guilty of well as all other detainees must be treated
aiding and abetting war crimes committed humanely, including an absolute ban on
by the Revolutionary United Front (RUF) dur- torture and cruel, inhuman and degrading
ing the 1991-2002 civil war in Sierra Leone. treatment. In addition, special protections
The Special Court sentenced Taylor to 50 must be afforded to all children by virtue of
years in prison and this sentence was upheld their age. In some cases, children are being
by the Appeal Chamber in September 2013. placed in administrative detention, which
The Court’s judgement against Charles Tay- can be defined as the deprivation of liberty
lor marks the first time that a former Head of a person initiated or ordered by the exec-
of State has been convicted of war crimes utive branch of Government, not the judici-
against children that were committed by an ary, outside the criminal law context without
armed group found not to be under his di- criminal charges. Administrative detention is
rect command and control but to which he ”lawful” in exceptional circumstances, only
gave his practical assistance, encourage- when provided for and carried out in accord-
ment and moral support. The Special Court ance with national law and accompanied by
was also the first international court to de- certain procedural safeguards for children,
termine that the recruitment and use of chil- including regular judicial review. In other
dren aged less than 15 years constituted a cases, children are being prosecuted for
war crime under customary international law. unlawful acts committed while associated
with armed groups. In such a situation, le-
gal safeguards and fair trial principles, such
Detention of children allegedly
as legal presentation, must be upheld. The
associated with armed groups
CRC specifies, however, that States should
Unlawful or arbitrary detention of children seek alternative diversionary measures away
is prohibited under international humanitar- from the judicial system, which are in the
ian and human rights law. The arrest, deten- best interest of the children and promote
tion or imprisonment of a child shall be in their rehabilitation into society.

Mohammad Amin, 18, a former child soldier, looks at the countryside from atop the crumbling roof of a barracks in the village of Bagram on the Shomali
Plain in the Central Region province of Parwan, Afghanistan. UNICEF Photo/K ate Brooks.
14

Grave Violation 2
Killing and maiming of children

Parties to conflict must protect children

from being killed, maimed or injured.

T Principles of “Distinction” and

Persons taking no he right of civilians not to be arbitrari-
active part in the ly deprived of life and the prohibitions “Proportionality”
hostilities shall in against killing or maiming civilians are
all circumstances be principles firmly enshrined in international The two key principles of the law of armed
treated humanely, humanitarian law, international human rights conflict, distinction and proportionality, are
without any adverse law and international jurisprudence. enshrined in the Geneva Conventions and
distinction founded on their Additional Protocols are considered
The prohibition of violence to civilians, in- customary international humanitarian law.26
race, colour, religion
cluding children, in particular murder, mu- They apply to both Government and non-
or faith, sex, birth or
tilation, cruel treatment and torture is a State armed groups in all situations of armed
wealth, or any other
principle of customary international law, conflict.27 The principles aim to protect ci-
similar criteria.
with universal applicability in all situations of vilians against the effect of hostilities and
Common Article 3, armed conflict.24 Common Article 3 of the prevent unnecessary “collateral damage”
Geneva Conventions Geneva Conventions is the most recognized
(1949)
resulting from combat operations. They
source for this fundamental protection. It is prohibit indiscriminate and disproportion-
universally applicable, allows no derogation ate military attacks, as well as direct attacks
and is binding on both Government armed against civilians.28 Such attacks may in some
forces and non-State armed groups.25 circumstances amount to grave breaches of
international humanitarian law.

The principle of proportionality prohibits

military attacks if they result in civilian death
or injury, or damage to civilian objects that
is excessive when compared to the concrete
and direct military advantage anticipated
from the attack.29

The principle of distinction demands that

parties to conflict distinguish between ci-
vilians and combatants at all times and that
attacks must not be directed against civil-
ians.30 The use of indiscriminate weapons,
such as landmines, cluster munitions and
An injured young girl pictured chemical weapons, are contrary to the law
outside Mansehra District of armed conflict and contravene multiple
Hospital, which was later
evacuated following the international treaties.31
earthquake that hit Pakistan
on 8 October; 22 October The Security Council and General Assembly
2005, Mansehra, Pakistan.
UN PHOTO/Evan Schinder. have repeatedly passed resolutions affirm-
 15

ing their “strong condemnation of the delib- vention against Torture (CAT) includes an
The principle of
erate targeting of civilians or other protect- absolute prohibition on torture and inhuman
distinction between
ed persons in situations of armed conflict”.32 or degrading treatment, even during war-
civilian and military
In 2009, through its resolution 1882, the time.40 The ICCPR and the CRC also prohibit
targets is one of the
Security Council added patterns of killing the capital punishment of children.41
“cardinal principles
or maiming of children in contravention of
The growing body of international criminal of international
applicable international law as an additional
jurisprudence recognized that willful kill- humanitarian law”
trigger for the listing of parties to conflict in
ing in conflict situations may amount to war and one of the
the Secretary-General’s Annual Report on
crimes or crimes against humanity.42 The in- “intransgressible
Children and Armed Conflict. The Office of
ternational tribunals for Rwanda, the former principles of
the Special Representative for Children and
Yugoslavia and Sierra Leone have success- international
Armed Conflict, together with partners, pre-
fully prosecuted commanders for murder, customary law.”
pared field guidance for its implementation.
arbitrary killing, torture and other forms of
Nicaragua Case,
ill-treatment against civilians, and have held International
Protecting Children from commanders legally accountable for crimes Court of Justice
Serious Injury committed by their soldiers.43 The Rome
Statute of the International Criminal Court
Torture and cruel, inhuman or degrading
(1998) also stated that killing or causing seri-
treatment and mutilation are explicitly pro-
ous bodily harm to civilians may in certain
hibited in international and non-internation-
circumstances amount to war crimes, crimes
al armed conflicts and by all parties by the
against humanity or even genocide.44 Fur-
Geneva Conventions and their Additional
thermore, the International Criminal Tribunal
Protocols.33 On the contrary, parties to con-
for the Former Yugoslavia (ICTY) recognized
flict are obliged to provide the wounded and
in the Kunarac, Kovač and Vukovic‘ (2001)
sick with the medical care they require when
case that when children are the victims of
circumstances allow.34 By virtue of their age,
murder, torture or injury it amounts to “ag-
children also enjoy special protection under
gravating circumstances” of such crimes,
the Geneva Conventions, including an obli-
warranting lengthier than ordinary prison
gation that all parties to a conflict prioritize
terms for perpetrators.45
the welfare during hostilities of vulnerable
groups, including children.35
UNRWA Summer Fun Weeks 2013 for Gaza Children; 03 July 2013, Gaza. UN Photo/Shareef Sarhan.

An Inherent Right to Life

International human rights law stresses the
paramount importance of the “right to life,
liberty and security of person.” States have
a responsibility to ensure these rights are re-
spected, protected and fulfilled.36 The CRC
recognizes “that every child has an inherent
right to life” and State parties must ensure to
the “maximum extent possible the survival
and development of the child.”37 The Com-
mittee on the Rights of the Child tasked to
monitor the practices of States relating to
the Convention, has designated this inher-
ent right to life as one of four guiding princi-
ples of the entire Convention.38 The African
Charter on the Rights and Welfare of the
Child (1990) and other regional human rights
instruments also reflect the basic children’s
right to life and the right to be free from
torture and abuse.39 Furthermore, the Con-
16

Grave Violation 3
Sexual violence against children

Parties to conflict are prohibited from subjecting

children to rape and other forms of sexual violence.

R
“Children shall be the ape and other forms of sexual violence Rape and other forms of sexual violence dur-
object of special respect against children, both boys and girls, ing armed conflict are prohibited under the
and shall be protected are serious violations of international Geneva Conventions and their Additional
against any form of human rights law and may amount to grave Protocols. Child-specific provisions of these
indecent assault.” breaches of international humanitarian law.46 treaties specifically forbid sexual violence
Acts of sexual violence may constitute a war against children.47 The obligation of humane
Article 77(1),
Additional Protocol I to crime, a crime against humanity or a consti- treatment under Common Article 3 implic-
the Geneva Conventions tutive act with respect to genodice. In 2009, itly prohibits rape or any other sexual vio-
the Security Council, in resolution 1882, add- lence, be it against adults or children. Article
ed sexual violence against children as an ad- 27 of the 4th Geneva Convention explicitly
ditional trigger for listing parties to conflict prohibits such acts stating that: “Women
in the Secretary-General’s Annual Report on [including girls] shall be especially protected
Children and Armed Conflict. The Office of against any attack on their honour, in par-
Children and Armed Conflict, together with ticular against rape, enforced prostitution, or
partners prepared field guidance for its sub- any form of indecent assault.”48
sequent implementation.
The international tribunals for the former
Yugoslavia and Rwanda, as well as the Eu-
Fatima, a 16-year-old girl, an unwanted pregnancy after being assaulted. Mogadishu,
Somalia. UNICEF Photo/Giacomo Pirozzi ropean Court of Human Rights and the
Inter-American Commission on Human
Rights, have recognized that rape amounts
to torture and is absolutely prohibited.49
Moreover, a number of international trea-
ties prohibit the sexual abuse and exploita-
tion of adults and children. These include
the Convention against Torture (1984), the
Convention for the Suppression of the Traf-
fic in Persons and of the Exploitation of the
Prostitution of Others (1949) and the Vienna
Declaration of the World Conference on Hu-
man Rights (1993).50

The ICCPR and the Convention for the Elimi-

nation of all Forms of Discrimination Against
Women (1979) (CEDAW) affirm a women’s
right to liberty and security of person and to
be free from discrimination.51 The CRC and
its Optional Protocol on Trafficking and Ex-
 17

ploitation unequivocally affirm that children dition, the SCSL established that “forced State parties must
must enjoy protection from torture, cruel, in- marriage” is also an offence under interna- “protect the child from
human or degrading treatment, a protection tional criminal law when it found three militia all forms of sexual
broadly accepted as encompassing acts of leaders guilty of crimes against humanity for exploitation and sexual
rape and sexual violence.52 Regional human forcing girls into marriage.58 abuse.”
rights instruments such as the African Char-
The Rome Statute of the ICC states that rape, Article 37,
ter on the Rights and Welfare of the Child Convention on the
sexual slavery, enforced prostitution, forced
(1990) also explicitly forbid sexual violence Rights of the Child
pregnancy, enforced sterilization or “other
against children.53
forms of sexual violence of comparable grav-
ity” may constitute war crimes and crimes
Rape and other Forms of Sexual against humanity.59 Jean Pierre Bemba Gom-
Violence as International Crimes bo, a former leader of a Congolese armed “Acts of sexual violence
group, is currently standing trial at the ICC can be prosecuted as
International criminal law explicitly criminal-
on war crimes and crimes against humanity constituent elements of
izes rape and sexual violence during wartime
charges resulting from allegations of rape and a genocidal campaign.”
and judicial recognition of its customary sta-
other abuses by troops under his command.60
tus in international law came in 1998 with a Akayesu case,
number of ground-breaking judgments by International Criminal
Tribunal for Rwanda
the ICTY.54 The statutes of the SCSL, ICTR Other relevant Security Council
and ICTY all cite rape and sexual violence as Resolutions
war crimes and crimes against humanity.55
In 2008, the Security Council, in its resolu-
Sexual violence against civilians has been tion 1820 on “Women, Peace and Security”
prosecuted by several international tribu- recognized for the first time that “sexual
nals established to punish the perpetrators violence, when used or commissioned as a
of international crimes. At the ICTR­ —the tactic of war in order to deliberately target
Akayesu (1998) and Musema (2000) cases.56 civilians or as a part of a widespread or sys-
—and at the ICTY—the Furundžija (1998) tematic attack against civilian populations,
and Kunarac (2000) cases, a number of ac- can significantly exacerbate situations of
cused have been convicted for rape, torture armed conflict and may impede the restora-
and enslavement. This was the first time in tion of international peace and security”.61
history that an international tribunal convict- This has been further taken up by the Secu-
ed individuals solely on charges of sexual rity Council through resolutions 1888 (2009),
violence against women and girls.57 In ad- 1960 (2010) and 2106 (2013).

First Day of School; 2 September 2012, Gaza. UN Photo/Shareef Sarhan

18

Grave Violation 4
Attacks against schools and hospitals

Parties to conflict must not attack schools or hospitals,

education or medical personnel.

S
“…the Parties to the chools and hospitals are civilian insti- the importance of schools and hospitals to
conflict shall at all times tutions that often provide shelter and the civilian population especially children.63
distinguish between protection, and tend to the needs of Deliberately targeting schools or hospitals in
the civilian population children during conflict. Attacks against the absence of military necessity is prohib-
and combatants and schools or hospitals are, in principle, con- ited under the general legal principle of dis-
between civilian objects traventions of well-established internation- tinction, meaning that civilian objects must
and military objectives al humanitarian law, including customary be distinguished from military objectives
and accordingly shall norms, and may constitute war crimes and and protected against the consequences of
direct their operations crimes against humanity.62 military operations. This is a customary norm
only against military of international law applicable to all parties
objectives.” to conflict in all conflict situations.64
Protecting Civilian Objects
Article 48,
Additional Protocol I, The 4th Geneva Convention prohibits the The protection afforded to schools and hos-
Geneva Conventions targeting of civilian objects, emphasizing pitals is comprehensive: according to inter-

Children at an orphanage; 22 August 2013, Les Cayes, Haiti. UN Photo/Logan Abassi

 19

national customary and treaty law a party of Human Rights (1948) and the International “The cardinal
to conflict must guard against targeting or Covenant on Economic, Social and Cultural principles…
attacking schools and hospitals amidst the Rights (1966), which address the right of all constituting the fabric
civilian population, as well as safeguard from persons to enjoy “the highest attainable of humanitarian law
attack the schools and hospitals found within standard of physical and mental health” and are the following.
its own civilian population or those that fall the right of every child to education.74 The The first is aimed at
under its control.65 The deliberate target- targeting and destruction of schools or hos- the protection of the
ing or destruction of schools or hospitals (or pitals obviously constitutes an obstacle to civilian population and
other civilian objects) may amount to grave fulfilling these rights. civilian objects…”
breaches of the law of armed conflict.66 The
Scores of countries have enshrined the pre- International Court of
sole exception to the blanket protection af- Justice (1996)
cept of forbidding the targeting of schools
forded to schools and hospitals is “unless
and/or hospitals into national legislation and
and for such time as they are military tar-
the military manuals governing the conduct
gets”, which means being used for military
of their armed forces.75
purposes.67
The ICTY has developed solid jurisprudence
Furthermore, international humanitarian law
on the necessity to protect schools and hos-
makes clear that if in the “fog of war” there
pitals from attack, for example in the Ku-
is a doubt whether a school or hospital is a
preskic (2000) and Kordic & Cerkez (2001)
military or civilian object, the basic working
cases.76 The Rome Statute extends the crim-
presumption must be that a building nor-
inal accountability for these acts (or “fail-
mally dedicated to civilian purposes is pre-
ures to protect”), providing the ICC explicit
sumed to remain a civilian object.68
jurisdiction to prosecute and punish those
Other international legal instruments citing that intentionally target schools or hospitals
this prohibition include the Convention on during armed conflict. Such acts amount to
Certain Conventional Weapons, Amended war crimes regardless of whether they occur
Protocol II and Protocol III, which ban, re- during an international or non-international
spectively, the use of mines and incendiary armed conflict.77
weapons against schools, hospitals or other
civilian objects.69 The International Court of
SCR 1998 on attacks on schools
Justice has also declared the protection of
and hospitals
civilians and civilian objects of paramount
importance under international humanitar- In July 2011, Security Council Resolution
ian law.70 1998 added attacks and threats of attacks on
schools, hospitals and protected persons in
Hospitals and medical personnel, the pro-
relation to schools and hospitals to the exist-
viders of primary medical care and assis-
ing triggers for listing in the annexes of the
tance to the civilian population, are explicitly
Secretary-General’s Annual Report on Chil-
afforded special protections under interna-
dren and Armed Conflict. While access to
tional law dating back to the very origins of
education and health care in times of armed
international humanitarian law with the 1864
conflict is a serious concern, the military use
Geneva Convention and the Hague Con-
of schools and hospitals, however, is not a
ventions of 1899 and 1907.71 It is a maxim
criterion for listing. The Office of the Spe-
of customary international law that medical
cial Representative for Children and Armed
personnel and facilities, exclusively assigned
Conflict, together with partners, prepared
as such must be respected and protected in
field guidance for the resolution’s implemen-
times of armed conflict.72
tation, providing practical tools for the bet-
The Convention on the Rights of the Child ter protection of schools and hospitals and
recognizes the paramount importance of protected persons, with a particular focus on
children’s right to education and right to enhancing the understanding of the interna-
health.73 These rights are also reflected tional legal framework; strengthening moni-
in international and regional legal instru- toring and reporting; and promoting advo-
ments, including the Universal Declaration cacy and dialogue with parties to conflict.
20

Military use of Schools In November 2012, an expert group of Mem-

ber States, regional organizations, military
In SCR 1998, the Security Council urged experts, child protection actors, education
parties to conflict to refrain from actions specialists, and international humanitarian
that impeded children’s access to educa- and human rights lawyers developed the
tion, and specifically requested the Sec- Lucens Guidelines on the military use of
retary-General the continuation of moni- schools, outlining a series of principles for
toring and reporting on the military use Government endorsement. The Guidelines
of schools. The use of schools for military aim at increasing knowledge and under-
purposes puts children at risk of attack and standing, improving monitoring and report-
hampers children’s right to education, re- ing, advocating for clear and explicit domes-
sulting in reduced enrolment and high drop tic legislation on the interaction of military
out rates, especially among girls and may forces with schools and school children, as
also may lead to schools being considered well as for the Lucens Guidelines” inclusion
targets for attack. in military training and doctrine.

Former child soldiers play football, outside a UNICEF-assisted transit centre for recently released former child soldiers,
Ndele, Bamingui-Bangoran Prefecture, Central African Republic. UNICEF Photo/Brian Sokol
 21

Grave Violation 5
Abduction of children

Parties to conflict must not abduct children.

A
bducting or seizing children against international humanitarian law and of chil- “State parties shall
their will or the will of their adult dren’s rights.85 However, the magnitude of take all appropriate
guardians either temporarily or per- the violation is compounded by the conse- national, bilateral
manently and without due cause, is illegal quences that often follow a child’s abduc- and multilateral
under international law. It may constitute a tion in a conflict zone, including trafficking measures to prevent the
grave breach of the Geneva Conventions and and enslavement. Child abduction, in the abduction of, the sale of
in some circumstances amount to war crimes emblematic case of the Lord’s Resistance or traffic in children for
and crimes against humanity. Army in the central African region for exam- any purpose or in any
ple, often leads to other acts constituting form.”
The Geneva Conventions Common Article 3
grave violations against children, including:
requirement of humane treatment for civilians Article 35,
recruitment and use of children (see Grave Convention on the
implicitly but undeniably prohibits the ab-
Violation 1), killing and maiming (see Grave Rights of the Child
duction of children.78 Forced displacement
or deportation of a civilian population, both
of which are express prohibitions in the Ge- UNICEF Photo/Michael K amber
neva Conventions may also include instances
of child abduction.79 Abduction may also
amount to “enforced disappearance” and is
thereby prohibited by several international
legal instruments.80 Moreover, hostage-tak-
ing is forbidden by the International Conven-
tion Against Taking of Hostages, Common
Article 3 and other provisions of the Geneva
Conventions.81 The arbitrary deprivation of
liberty is prohibited under customary inter-
national law, with universal application to all
parties to conflict, Government armed forces
or non-State armed groups alike.82

The abduction of a child violates the rights of

the child and family, as recognized by the Con-
vention on the Rights of the Child, the ICCPR
and the UDHR.83 European, American and
African regional human rights instruments
also proscribe the abduction of children.84

The Consequences of Abduction

In and of itself, abduction during armed
conflict may amount to a serious violation of
22

“Everyone has the Violation 2) and rape and other forms of sex- other international instruments outlawing
right to liberty and ual violence (see Grave Violation 3). human trafficking and slavery.88
security of person. No
The illicit transportation of children by The ICC’s Rome Statute states that “unlaw-
one shall be subjected
Government armed forces and non-State ful confinement” is a grave breach of the Ge-
to arbitrary arrest
armed groups across borders during armed neva Conventions and may amount to a war
or detention. No one
conflict for exploitation constitutes one of crime.89 Perpetrators of hostage taking or en-
shall be deprived of
the worst forms of child trafficking.86 The forced disappearances are subject to criminal
his liberty except on
Convention Against Transnational Organ- accountability before the ICC.90 Addition-
such grounds and
ised Crime’s Protocol to Prevent, Suppress ally, the ICC has jurisdiction to hold to ac-
in accordance with
and Punish Trafficking in Persons, especially count those that enslave or deport children,
such procedure as are
Women and Children (2003) expressly for- or forcibly transfer them from one group to
established by law.”
bids all forms of human trafficking includ- another.91 The ICTY has established jurispru-
Article 9, dence on some of the more egregious types
ing for forced recruitment, prostitution and
International Covenant
sexual slavery.87 of abductions: enforced disappearances and
on Civil and
abduction leading to enslavement. In the
Political Rights
The abduction of children as part of a pat- Kupreskic (2000) and Kunarac (2001) cases,
tern of disappearances, for participation in the ICTY stated that “enslavement as a crime
A group of children on the hostilities, for enslavement and for other against humanity is customary international
streets behind Lido Beach
in the Kaaraan District; forms of exploitation is prohibited under law” and that enforced disappearance of
6 August 2012, international law, including the Optional persons was an inhumane act, which also
Mogadishu, Somalia.
UN Photo/Stuart Price Protocol on Trafficking and Exploitation and amounted to a crime against humanity.92
 23

Grave Violation 6
Denial of humanitarian access

Parties to conflict must not deny humanitarian

access for children.

D
enial of humanitarian access to chil- gee status “receive appropriate protection “The child shall in
dren and attacks against humanitar- and humanitarian assistance.”101 all circumstances be
ian workers assisting children are among the first to
prohibited under the 4th Geneva Conven- receive protection and
tion and its Additional Protocols.93 Such a
Ensuring Access to Internally
relief.”
denial of access or attack may constitute a
Displaced and Refugee Children
Principle 8,
war crime and a crime against humanity.94 The Guiding Principles on Internal Displace- UN Declaration on the
ment are a non-binding set of international Rights of the Child
Moreover, it is a principle of customary in-
standards unanimously adopted by the
ternational law that parties to conflict must
General Assembly in 2005. They include the
allow and facilitate aid to any civilian popula-
tenet that “the primary duty and responsi-
tion in need, subject to their control.95 Provi-
bility for providing humanitarian assistance
sion of such relief must be impartial in char-
acter and conducted without any adverse
distinction, for example based on race, age UNICEF Photo/XXXXXXXXXXXXXXXXXX
or ethnicity.96

Consent to provide relief to a civilian pop-

ulation including to children must not be
refused by a party to conflict on arbitrary
grounds, and each party must refrain from
deliberately impeding the delivery of relief
supplies to civilians in need in areas un-
der its control.97 The Security Council, the
General Assembly and the Human Rights
Council have repeatedly condemned such
impediment.98 Denying humanitarian access
to children may violate several basic human
rights, including the right to survival and the
right to be free from hunger, fundamental
rights enjoyed by all people.99

In relief operations, children are entitled to

special attention and must be provided with
the care and aid they require.100 The Con-
vention on the Rights of the Child has sever-
al provisions that necessitate the facilitation
of humanitarian relief to children in need, in-
cluding ensuring that children seeking refu-
24

“Parties must also to internally displaced persons lies with na- Protection of Humanitarian
permit the free passage tional authorities. All authorities concerned Personnel
of all consignments of shall grant and facilitate the free passage of
essential foodstuffs, humanitarian assistance and grant persons The protection of humanitarian relief per-
clothing and tonics engaged in the provision of such assistance sonnel and their equipment is one of the
intended for children rapid and unimpeded access to the inter- oldest maxims of the law of armed con-
under 15, expectant nally displaced (for further information see flict.105 Humanitarian personnel, their equip-
mothers and Working Paper 2 on The Rights of Internally ment and the buildings or other objects they
maternity cases. And Displaced Children).”102 utilize are afforded specific protection under
when distributing the Geneva Conventions and their Addi-
International humanitarian law demands that tional Protocols.106 Parties to conflict must
humanitarian relief
humanitarian personnel have adequate ac- ensure freedom of movement for authorized
priority must be given
cess to refugee and displaced populations, humanitarian personnel, subject only to im-
to such persons as
including children.103 Additionally, regional perative military necessity.107 Medical trans-
children, expectant
human rights instruments and numerous ports and facilities are specifically provided
mothers and maternity
Security Council Resolutions demand par- with further protections., which are recog-
cases.”
ties to conflict to provide access for relief nized as customary international law.108
Article 23, 4th Geneva personnel to refugee and displaced popu-
Convention lations (often with special reference to the The United Nations is the largest supplier
plight of children), and ensure their basic hu- and operator of humanitarian relief opera-
man needs are adequately met.104 tions. The 1994 Convention on the Safety
of United Nations and Associated Personnel
was enacted to reinforce the sanctity of their
A boy peeks out a tent provided by the UN Refugee Agency (UNHCR) at the camp
for Syrian refugees; 7 December 2012, Islahiye, Turkey. UN Photo/Mark Garten relief personnel.109 Security Council Resolu-
tions have repeatedly voiced concern at the
targeting of humanitarian aid workers and
UN mission staff. The Security Council has
repeatedly condemned attacks against UN
humanitarian relief workers as “clear viola-
tions of international humanitarian law” and
similarly, adopted resolutions after specific
instances of aid workers being targeted or
hurt in arme conflicts.110

The denial of humanitarian access attracts

criminal accountability, even in times of war.
For example, the SCSL declared it a war
crime and in 2009 handed down the first ever
convictions by an international tribunal to
three militia leaders for targeting humanitar-
ian workers and peacekeepers in deliberate
attacks.111 The ICTY established that depriv-
ing inmates of food and other vital services
in detention centers constitutes the basis for
the charges of war crimes and crimes against
humanity.112 The Rome Statute underscores
that intentional attacks against a peace-
keeping or humanitarian assistance mission
acting in accordance with the UN Charter
constitute a war crime.113 Furthermore, un-
der the Statute’s definitions, using starvation
as a method of warfare or willfully impeding
relief supplies may amount to a war crime or
even genocide.114
 25

Conclusion

“State parties shall take all feasible measures to ensure

protection and care of children who are affected by an
armed conflict.”
Article 38, Convention on the Rights of the Child

I
n summary, each of the Six Grave Viola- ers, have been and will continue to be held
tions against children during armed con- accountable for their crimes:
flict may constitute:
ff Under national laws and military codes of
ff Grave breaches of the Geneva Conven- justice
tions and their Additional Protocols
ff Under international criminal law and the
ff Violations of customary norms of interna- International Criminal Court
tional law
Governments, international organizations
ff Violations of obligations contained in the regional organizations and civil society must
Convention on the Rights of the Child work together to strengthen the mechanisms
and other international and regional hu- of monitoring, reporting and bringing to jus-
man rights treaties tice perpetrators of grave violations against
children in times of armed conflict. Children
ff War crimes or crimes against humanity
are amongst the most vulnerable in any so-
under the Rome Statute.
ciety and any conflict. Impunity for violations Children play next to a police
Perpetrators of the Six Grave Violations, and against children during armed conflict must station with bullet holes; 28
August 2013, Gao, Mali
their military commanders and political lead- end; our children deserve protection. UN Photo / Marco Dormino
26

Further Information

ff Special Representative of the Secretary-General on Children and Armed Conflict:

childrenandarmedconflict.un.org

ff United Nations Chidren’s Fund (UNICEF):

www.unicef.org

ff International Committee of the Red Cross:

www.icrc.org

ff Watchlist on Children and Armed Conflict:

www.watchlist.org

ff Child Rights Information Network:

www.crin.org

ff Human Rights Watch:

www.hrw.org
 27

Endnotes

1  Additionally, the UN Security Council has Age Convention’ (1973): ‘The minimum age for
characterized crimes against children during admission to any type of employment or work
wartime as a ‘potential threat to international which by its nature or the circumstances in which
peace and security’ the Council leaves open the it is carried out is likely to jeopardise the health,
possibility of imposing more stringent sanctions, safety or morals of young persons shall not be
or even intervening under Chapter 7 of the UN less than 18 years.’
Charter in response to such crimes. See UNSC 18  International Labor Organization,
Resolutions cited below. Recommendation Concerning the Prohibition
2  See, for example, United Nations Security and Immediate Action for the Elimination
Council Resolutions 1261 (1999), 1314 (2000), of the Worst Forms of Child Labor (1999);
1379 (2001), 1460 (2003), 1539 (2004), 1612 UNSC Resolution 1882 (2009)
(2005), 1882 (2009), 1998 (2011) and 2068 (2012) 19  According to the ICRC’s study of international
3  See, for example, UN General Assembly practices no contrary state practice was found.
Declaration, A World Fit For Children, appended See: above n. 13 , p.483 for citations of several
to A/Res/S-27/2 (2002) which was unanimously countries’ legal provisions.
adopted. Also: A/Res/62/141 (2008), 20  Para. 4 of Paris Commitments to protect
A/Res/63/241 (2009). children from unlawful recruitment or use by
4  S/2004/72. armed forces or armed groups (2007)
5  Human rights treaty law applies at all times, 21  Art. 22, African Charter on the Rights and
but certain treaty-provisions allow for suspension Welfare of the Child (1990).
in times of emergency. See, for example, art. 22  Art. 77 AP I; art. 4 AP II.
4 International Covenant on Civil and Political 23  Art. 6, 7 Optional Protocol CRC
Rights (1966). (armed conflict).
6  For more information on the MRM refer 24  Common article 3 Geneva Conventions
to the MRM Field Manual: Monitoring and (1949). See also: art. 12, 50 Geneva I; art. 12,
Reporting Mechanism on Grave Violations 51 Geneva II; art. 13, 17, 87, 89, 130 Geneva
Against Children in Situations of Armed Conflict. III; art. 5, 27, 32, 147 Geneva IV; art. 75, 77 AP
OSRSG-CAAC, UNICEF & DPKO, April 2010 I; art. 4, 13 AP II; Customary Rules 87, 89-92,
(www.mrmtools.org). 135 of the International Committee of the
7  See, for example: ICRC, as above n. 13, p. 482-488. Red Cross (Henckaerts, Doswald-Beck eds.),
8  Ibid. Customary International Humanitarian Law
Vol. 1: Rules, Cambridge University Press (2005).
9  Art. 77(2) AP I; art. 4(3) AP II; art. 38 CRC
Art. 147 Geneva IV lists “grave breaches” of the
10  Customary Rule 136 and 137 in: ICRC, Conventions.
as above n. 13 , p. 482
25  In the Nicaragua Case, International Court
11  Art. 4(c) Statute of the Special Court for of Justice (1986), the ICJ stated that common
Sierra Leone (2002). Prosecutor v. Hinga Norma Article 3 of the Geneva Conventions (1949)
(Decision on Preliminary Motion), SCSL (May reflected ‘elementary considerations of humanity’
2004). In 2007 the SCSL which has paid special constituting a ‘minimum yardstick applicable to
attention to the prosecution child-recruiters all armed conflicts.’ In The Prosecutor vs. Tadic,
found three commanders guilty of crimes against International Criminal Tribunal for the Former
humanity and war-crimes for, inter alia, recruiting Yugoslavia (1999), the Tribunal found that civilians
children under the age of 15 and allowing them in non-international armed conflicts are protected
to participate in hostilities: Prosecutor v. Hinga by the same common article 3 protections of the
Norman, Fofana and Kondewa, SCSL (2007). Geneva Conventions.
12  Art. 8(2)(b) and 8(2)(e) Rome Statute. 26  Customary Rules 1-24 in: ICRC, Customary
13  See, for example, a most recent conviction International Humanitarian Law Vol. 1: Rules,
by the SCSL: Prosecutor vs. Alec Tamba, Brima, Cambridge University Press (2005), p. 3.
Brazzy Camara and Borbor Kanu (20 June 2007) 27  See, for example, on the universality of the
14  Art. 1-3, Optional Protocol to the Convention principles: Nuclear Weapons Case, International
on the Rights of the Child on the Involvement of Court of Justice (1996); Prosecutor v. Kupreskic,
children in armed conflict (2000) See also: Principle ICTY (2000).
9, Declaration of the Rights of the Child (1959): 28  Art. 48, 51, 52, 57 AP I; art.13 AP II; art. 3
‘The child shall not be admitted to employment Protocol II, and art. 3 Amended Protocol II to the
before an appropriate minimum age; he shall in Convention on Certain Conventional Weapons
no case be caused or permitted to engage in any (1980);
occupation or employment which would prejudice 29  Art. 51, 57 AP II; art. 3 Protocol II, and art. 3
his health or education, or interfere with his Amended Protocol II to the Convention on Certain
physical, mental or moral development.’ Conventional Weapons (1980); art. 8(2)(b) Rome
15  Art. 4, Optional Protocol to the CRC on Statute of the International Criminal Court (1998)
children and armed conflict (2000) 30  Art. 48, 51, 52 AP I; art. 4, 13 AP II; art. 4-7
16  Art. 77(2) AP I Amended Protocol II and art. 2 Protocol III
17  Art. 1-3 International Labor Organization to the Convention on Certain Conventional
Convention No. 182 on the Prohibition and Weapons (1980); art. 8(2)(e) Rome Statute
Immediate Action for the Elimination of the of the International Criminal Court (1998).
Worst Forms of Child Labour (1999). See also: 31  Art. 35 AP I; art. 6 Protocol II and art. 3
art. 3(1) of ILO Convention No. 138, ‘Minimum Amended Protocol II to the Convention on
28

Certain Conventional Weapons (1980); Ottawa 48  Specific provisions in the Geneva
Landmine Ban Treaty (1997). Cluster munitions Conventions relating to protection against rape
are another category of weapons which many and sexual abuse include: Common art. 3; art.
are seeking to be outlawed. The Convention 12, 50 Geneva I; art. 12, 51 Geneva II; art.13, 17,
on Cluster Munitions (2008) has been ratified 87, 89 Geneva III; art.5, 27, 32, 147 Geneva IV;
by 17 States, 13 short of the requisite 30 art. 75 AP I; art. 4(1) AP II; and Rules 87, 89-92 of:
for the convention to come into force. ICRC, Customary International Humanitarian Law,
32  See for example: UNSC 1882 (2009), UNSC as above n. 13 , p. 306.
1296 (2000), UNGA 2444 (1988)—unanimously 49  See for example: Prosecutor v. Jean Paul
adopted. (Other resolutions include: UNSC 564, Akayesu, ICTR (1998) and Delalic, Celebic and
UNSC 1001, UNSC 1181). Furudzija cases, ICTY (1998), European Court of
33  Art. 147 Geneva IV; art. 75(2) AP I; art. 4(2) AP II. Human Rights, Aydin vs. Turkey (1997), Inter-
34  Common article 3 Geneva Conventions; Art. 50 American Commission on Human Rights, Case
Geneva IV; art. 10 and 11 AP I; art. 5 and 7 AP II. 10.970 (Peru) (1996).
35  Art. 23, 24, 38, 50, 76 and 89 Geneva IV; 50  See for example: Art. 1 Convention against
art. 70 and 77 AP I; art. 4 AP II. Torture (1984); art. 1, Convention on Suppression
of Trafficking and Exploitation (1949); Part 5,
36  Art. 3, Universal Declaration of Human Rights
Vienna Declaration of the World Conference on
(1948).
Human Rights (1993).
37  Art. 6, 37 CRC.
51  Art. 2, 3, 6 ICCPR; art. 1-3 CEDAW.
38  World Conference on Human Rights, Vienna
Declaration and Programme of Action (1993), 52  Art. 34, 35, 37 CRC, Art. 3, CRC’s Optional
A/Conf. 157/24). Protocol to the Convention on the Rights of the
Child on the sale of children, child prostitution
39  Art. 5, 16 African Charter on the Rights and
and child pornography (2000).
Welfare of the Child, Organization of African
States (1990). 53  Art. 27, African Charter on the Rights and
40  ‘No exceptional circumstances whatsoever,
Welfare of the Child (1990). See also: Protocol
whether a state of war or a threat of war, internal to the African Charter on Human and Peoples’
political in stability or any other public emergency, Rights on the Rights of Women in Africa
may be invoked as a justification of torture.’ Article whose preamble calls for the condemnation
2(2), Convention against Torture (1984). and elimination of ‘any practice that hinders
or endangers the normal growth and affects
41  Art. 37 Convention on the Rights of the Child the physical, emotional and psychological
(1989) (“the CRC”); art. 6 ICCPR; art. 23, 24, 50, development of women and girls.’ See also:
76, 89 Geneva IV; art. 70, 77 AP I; art. 4(3) AP II. Art. 3, 5 European Convention on Human Rights
42  For murder to be a crime against humanity (1950); art. 5, 7, 11 American Convention on
it must committed as part of a widespread or Human Rights (1969).
systematic attack directed against any civilian
54  Prosecutor v. Furundžija , ICTY (1998).
population, with knowledge of the attack, see
Art. 7(1), Rome Statute. Willful killing categorized 55  War crimes: art. 3(e) SCSL; art.4(e) ICTR; art.
as a war-crime, see Art. 8(2), Rome Statute. 2 ICTY. Crimes Against Humanity: art.2(g) SCSL;
art.3(g) ICTR; art.5(g) ICTY.
43  Prosecutor v. Kordic and Cerkez , ICTY (2001):
Accused guilty of “murder” as a crime against 56  Prosecutor v. Akayesu, ICTR (1998), Prosecutor
humanity, and “wilful killing” as grave breach v. Musema, ICTR (2000).
of the Geneva Conventions and war-crime. 57  Prosecutor v. Furundžija , ICTY (1998): The
Prosecutor v. Kupreskic, ICTY (2000): Accused ICTY Trial Chamber noted that prohibition of
found “guilty of a crime against humanity rape and serious sexual assault in armed conflict
(murder).” under customary international law has gradually
44  Murder is categorized as a crime against crystallized. The Tribunal found the accused
humanity if it is committed as part of widespread guilty of a violation of the laws and customs
or systematic attack directed against a civilian of war (outrages upon dignity, including rape).
population, with knowledge of the attack. Art. Prosecutor v. Kunarac, Kovac and Vukovic,
6, 7, 8 Rome Statute. Also physical mutiliation, ICTY (2000): The ICTY Trial Chamber found
unjustifiable scientific or medical experimentation the accused guilty of “crimes against humanity
or treacherously wounding individuals belonging (rape)” and “violations of the law of customs of
to the hostile nation are also categorized as war- war (rape).”
crimes. See Art. 8, Rome Statute. 58  Prosecutor vs. Alec Tamba Brima, Brazzy
45  Prosecutor v. Kunarac, Kovač and Vuković, Camara and Borbor Kanu (SCSL, 20 June 2007)
ICTY (2001) 59  Art. 7(1)(c), 7(1)(g), 8(2)(b), 8(2)(c), 8(2)(e) Rome
46  ‘Rape and other forms of sexual violence’ Statute.
is not specifically listed in article 147 of 4th 60  Confirmation of charges in Prosecutor v. Jean-
Geneva Conventions casting some doubt Pierre Bemba Gombo, International Criminal
in some scholars’ minds as to its status as a Court, 12-15 January 2009.
“grave breach” of the Geneva Conventions.
61  Resolution 1820 (2008), Adopted by
Nevertheless most scholars, international and
national courts that have decided on the matter the Security Council at its 5916th meeting,
conclude that it falls within the reasonable on 19 June 2008.
understanding of ‘torture or inhuman treatment’ 62  See, for example: ICRC, as above n. 13 , p. 34.
or ‘serious injury to body or health.’ 63  Art. 11, 18 Geneva IV, art. 48 AP I. For
47  Article 27(2) Geneva IV; art. 75(2), 76(1), 77(1) example, art. 48 AP I states: ‘…the Parties to the
AP I; art. 4(2)(e) AP II—which specifically adds conflict shall at all times distinguish between
“rape” to the list of forms of indecent assault. the civilian population and combatants and
See also: Customary Rule 93 in: ICRC, as above between civilian objects and military objectives
n. 13 , p. 323. Child-specific provisions: Art. 77 and accordingly shall direct their operations only
AP I; art. 4(3) AP II. against military objectives.’
 29

64  Art. 48, 52 AP I; Customary Rule 7 in: ICRC, 88  For example, abduction for the purpose
as above n. 13 , p. 25; art. 48, 52 AP I; art. 13(1) of exploitation is child trafficking—prohibited
AP II; Nuclear Weapons Case, International under art. 3 of the CRC’s Optional Protocol to
Court of Justice. the Convention on the Rights of the Child on
65  Customary Rules 10-22 in: ICRC, as above the sale of children, child prostitution and child
n. 13, p. 34; art. 50 Geneva IV (for occupying pornography (2000); art. 3, European Convention
powers). on Human Rights (1950); art. 6 American
Convention on Human Rights (1969); art. 5 African
66  Art. 147 Geneva IV; Art. 85 AP I; Customary
Charter on Human and Peoples’ Rights (1981).
Rule 10-13 in: ICRC, as above n. 13 , p. 34.
89  Art. 8(2)(a) Rome Statute
67  Ibid.; art. 52 AP I.
90  Art. 7(1)(c)-(e), 7(1)(i), 8(2)(a), 8(2)(c) Rome Statute.
68  Art. 15, 52 AP I; art. 9 -11, 18 AP II.
91  Art. 6(e), 7(1)(c)-(e), 8(2)(a) Rome Statute
69  Art. 3 Amended Protocol II and art. 2 Protocol
III of the Convention on Certain Conventional 92  Prosecutor v. Kupreskic et. al, ICTY (2000);
Weapons. Prosecutor v. Kunarac, Kovac and Vukovic, ICTY
(2001)
70  Nuclear Weapons Case, International Court
of Justice (1996). 93  Art. 23, 142 Geneva IV; art. 54, 70, 77 AP I,
art. 14, 18 AP II.
71  Art. 1-3 Geneva Convention for the
amelioration of the condition of the wounded in 94  Art. 8(2)(b), 8(2)(e) Rome Statute.
armies in the field (1964); art. 15 and 27, Hague 95  Customary Rule 55 in: ICRC, as above n. 13,
Convention (1907) p. 193. See also: art. 55 Geneva IV.
72  Customary Rule 25, 28 in: ICRC, as above n. 96  Ibid.; art. 23 Geneva IV; art. 70(2) AP I.
13 , p. 79; art. 19 Geneva I; art. 18 Geneva IV; 97  Art. 23, 55 Geneva IV; art. 70(3) AP I.
art. 12 AP I; art. 11 AP II. 98  See, for example, UNSC Res 824, UNGA
73  Art. 24, 28 CRC Res 55/2, UN Commission on Human Rights Res
74  Art. 26, UDHR; art. 12 (- health) and art. 13 1995/77.
(- education) ICESCR (1966); art. 13 Additional 99  See, for example, art. 11 and 12 ICESCR;
Protocol to the American Convention on Human art. 6 CRC.
Rights (1999); art. 11, 14 African Charter on the 100  Principle 8, UN Declaration on the Rights of
Rights and Welfare of the Child (1990). the Child (1959).
75  For illustrative list of national laws see: ICRC, 101  Art. 22(1) CRC; also see: art. 6, 24 and 27 CRC.
as above n. 13 , p. 35. 102  Principle 25, 30 Guiding Principles on
76  Kupreskic (2000) and Blaskic (2000). In Internal Displacement, OCHA 2004.
Kupreskic, the court stated:: ‘The deliberate 103  See, for example: Art. 49 Geneva IV; art. 78
attacks on civilians or civilian objects are AP I; art. 17 AP II.
absolutely prohibited by international
104  See, for example: Art. 22 CRC; art. 23
humanitarian law.’ In Blaskic case: The ICTY Trial
African Charter on the Rights and Welfare of the
Chamber found the accused guilty of ‘unlawful
Child (1999); art. 9 Inter-American Convention
attacks on civilian objects.’
on Violence Against Women (1994); art. 4, 19
77  Art. 8(2)(b), 8(2)(e) Rome Statute. Guiding Principles on Internal Displacement
78  Common article 3, Geneva Conventions (1949); (2004); UN SC Resolutions 688, 819, 999, 1010,
Customary Rule 99 of ICRC, as above n. 13, p. 332 1019, 1124. See also International Committee
79  Art. 49, 147 Geneva IV; art. 85(4) AP I, art. 17 of the Red Cross, Customary International
AP II. Humanitarian Law Vol. 1: Rules, p466.
80  Art. 147, GCIV; Art. 2, 25 International 105  See, for example, Art. 15, Hague
Convention for the Protection of All Persons Conventions (1907).
from Enforced Disappearance (2006); art. 1 UN 106  Art. 70(4), 71(2) API, art.18(2) APII.
Declaration on Enforced Disappearance (1992); 107  Art. 60, 61 Geneva IV; art. 71 AP I; art. 18
art. 1 Inter-American Convention on the Forced AP II; Customary Rule 56, ICRC, as above n. 13,
Disappearance of Persons (1994). p. 200.
81  Art. 34, 147 Geneva IV; art. 75(2) AP I; art. 4(2) 108  Customary Rule 31, 32 in: ICRC, as above
AP II; Customary Rule 96 of ICRC, as above n. 13 n. 13, p. 105.
, p. 334; art. 1 International Convention Against 109  Art. 5, 7 UN Convention on the Safety of
Taking of Hostages (1979). United Nations and Associated Personnel (1994)
82  Customary Rule 99 in: ICRC, as above n. 13,
110  UNSC Res. 897 (1994). The UNSC
p. 344. condemned “violence and armed attacks against
83  Child: Art. 8, 35, 37 CRC; art. 9, 23 ICCPR; art. persons engaged in humanitarian… efforts”
9 UDHR. Family: Art. 3, 5; Art. 16, UDHR, in Somalia. Resolution 913 (1994). The UNSC
84  Art. 3, 5 European Convention on Human condemned all attacks against humanitarian relief
Rights (1950); art. 6-7 American Convention workers in Gorade, former Yugoslavia. The UNSC
on Human Rights (1969); art. 6 African Charter adopted similar resolutions condemning attacks
on Human and Peoples’ Rights (1981); art. 23 or demanding that no attacks be directed against
African Charter on the Rights and Welfare of the humanitarian relief work in Haiti, Angola, Somalia,
Child (1990). Liberia, Burundi, and Afghanistan.
85  See footnotes 75-81. 111  Art. 4(b) Statute of the SCSL; Prosecutor
86  Report of the UN Secretary-General on vs. Sesay, Kallon and Gbao (RUF Case)
children and armed conflict (2007), S/2007/757. (February 2009)
87  Art. 2-9 Convention Against Transnational 112  Prosecutor v. Nikolic. ICTY (2003), Prosecutor
Organised Crime (2000) and the Convention’s v. Krnojelac. ICTY (2002), and Prosecutor v.
Protocol to Prevent, Suppress and Punish Delalic et al., ICTY (1998).
Trafficking in Persons, especially Women and 113  Art. 8(2)(b) and (e) Rome Statute.
Children (2003). 114  Art. 6(c), 8(2)(b) and (e) Rome Statute.
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