International protection of children in armed conflict

"We must protect children not only because they are the most vulnerable, but because they are the world's future." According to this idea from Kofi Annan, former UN Secretary General, the United Nations Convention on the Rights of the Child provides a protection of children at international level. Signed in New York in 1989, it is the most ratified human rights instrument in history. It was completed by optional protocols in 2000: the first one restricts the involvement of children in military conflicts, and the second prohibits the sale of children, child prostitution and child pornography. A third optional protocol relating to communication of complaints was adopted in 2011 and came into effect in 2014. 

The effective protection of children's rights, by the application of this Convention and its protocols, is monitored by the Committee on the Rights of the Child. In specific, it examines State reports and reviews complaints of violations of children's rights, as permitted by the third optional protocol. Often in collaboration with other organizations, it promotes children's rights and raises awareness of current issues. 

Nowadays, many children do not have access to their fundamental rights: 160 millions of children are forced to work in the world, 1/3 of children do not have access to education in countries in crisis, 650,000,000 women were married before the age of 18, and so on. With the emergence of technologies, there is also a need for online protection for children against cyberbullying, sexual exploitation, and all the risks associated with the Internet. Moreover, in the current context of humanitarian crisis, children are exposed to the problem of armed conflict. 

Children are often the first victims of armed conflict. It is estimated that 468 million children are currently living with the effects of violence and armed conflict, and this number is steadily growing. Whether recruited into armed forces, displaced from their homes, or denied access to basic services like education and healthcare, children experience the consequences of armed conflict in devastating ways. 

Over the past several decades, the international community has developed a solid legal framework designed to protect children from the impact of war. Yet, the lived realities of children in conflict zones reveal the persistent gap between legal norms and actual protection. 

This article explores the evolution of international legal protections for children in armed conflict, focusing on the use of child soldiers as one of the most serious and emblematic violations, before using case studies to demonstrate persistent violations of children's rights in wartime.

I/ THE EVOLUTION OF INTERNATIONAL LEGAL PROTECTIONS FOR CHILDREN IN ARMED CONFLICT

The legal protection of children during war was introduced into international humanitarian law after the Second World War. The 4th Geneva Convention of 1949 relative to the protection of civilian persons in time of war provides general protection for children as persons taking no part in hostilities. It ensures the humane treatment of protected persons, including respect of life, physical and moral integrity. This protection is effective in case of international or non-international armed conflict, through the Article 3 common to the four Geneva Conventions. So, as members of the civilian population, children benefit from the rules of international humanitarian law relative to the conduct of hostilities. In addition to establishing a general regime, the 4th Convention sets out several protection regimes according to categories, including one for children. Thus, children have been especially protected against warfare as persons who are particularly vulnerable. The parties to this Convention are obliged to take all necessary measures to ensure that such children are not left to fend for themselves, deportation of children is prohibited, and so on. A distinct protection for children forced to taking part in hostilities is provided by the 1977 Additional Protocols to the Geneva Conventions. Protocol I relating to the protection of victims of international armed conflicts (article 77) and Protocol II relating to the protection of victims of non-international armed conflicts (article 4 §3) prohibit the recruitment of children under the age of 15, and if they fall into the enemy side, children must benefit from reinforced protection. 

The United Nations is the guarantor of peace and security but also the protector of human rights. In this sense, it has invested considerably to supplement international humanitarian law. The United Nations has played major action in the protection of children during conflict, to a degree that the situation of child soldiers has become a main concern for the UN. For several years now, it has been seeking to prevent the recruitment of children as child soldiers. Article 38 of the Convention on the Rights of the Child, reaffirms the prohibition on the enlistment of children in the armed forces under the age of 15. The Optional Protocol on the Involvement of Children in Armed Conflict of 2000 completed the legal protection by raising the minimum age of compulsory recruitment and direct participation in hostilities to 18 years. It also requires state parties to criminalize recruitment by non-state armed groups and to implement disarmament, demobilization, and reintegration programs. Besides, in 1996, the UN General Assembly created the mandate of the special representative for children and armed conflict, Virginia Gamba: she collects information about child victims of armed conflict. The UN Security Council (UNSC) has tackled this issue with more than a dozen resolutions between 1999 and 2015. These include UNSC Resolution 1612, which mandates the UN Secretary Geneal to set up a monitoring and reporting mechanism on serious violations of children's rights, to step up international pressure. For some years now, the UN Secretary General has been trying to conclude a Code of Conduct for Children with the leaders of non-state armed groups.

International laws, developed over many decades, demonstrate that the international community fully appreciates the importance of protecting children in conflict. These protections have been reinforced by the jurisprudence of criminal courts, based on the Geneva Conventions, particularly the qualifying of conscription of children as a war crime. 

II/ THE SPECIFIC CASE OF CHILD SOLDIERS IN INTERNATIONAL ARMED CONFLICTS

There are an estimated 250 000 child soldiers enrolled in armed forces. The recruitment and use of child soldiers is a practice more commonly associated with non-international armed conflicts, such as civil wars, but it also occurs in international armed conflicts, where state and non-state actors often exploit legal grey areas or act in flagrant defiance of international law. In order to fight against the conscription of children, international criminal jurisprudence has been developed in this area, because, as the International Criminal Court (ICC) said, “the vulnerability of children mean that they need to be afforded particular protection that does not apply to the general population, as recognised in various international treaties.”

First, the Rome Statute of the ICC condemn the “conscripting or enlisting children under the age of fifteen year into the national armed forces or using them to participate actively in hostilities” as a war crime at the article 8 2) b) xxvi). According to the Elements of Crimes, five conditions must be met to recognize this conscription as a war crime: the perpetrator conscripted or enlisted one or more persons into the national armed forces or used to participate actively in hostilities ; persons were under the age of 15 years ; the perpetrator knew or should have known that persons were under the age of 15 years ; the conduct took place in the context of and was associated with an international armed conflict ; and, the perpetrator was aware of factual circumstances that established the existence of an armed conflict.

In 2012, the International Criminal Court delivered its first ruling in this area, finding former President of a Congolese rebel movement, Thomas Lubanga Dyilo, guity of the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. He was sentenced to 14 years of imprisonment. This conviction comes just a few years after the first convictions on the same issue before the Special Court for Sierra Leone (SCSL). In particular, the ICC maintains that “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” (§37)

Also, in the Ntaganda case (ICC, 2019), the Court states that “even in circumstances of on-going conflict and/or general hardship, the removal of children from their families – sometimes forcibly – for the purpose of undergoing military training and for actively participating in hostilities undoubtedly caused such children harm and put them in a worse position than they would have been to begin with”(§185)

More recently, the International Criminal Court had the opportunity to express about the case of a child soldier who became an executioner: the Ongwen case. Ongwen was taken from his family at nine years old and later became commander of the Ugandan rebels known as the “Lord's Resistance Army”. During his trial, he tried to defend that he was a child soldier. But in 2021, the ICC declared Ongwen guilty of 61 crimes characterized as war crimes and crimes against humanity, committed in Uganda between 2002 and 2005, including the crime of conscripting children under the age of 15 into the Sinia brigade and using them to participate actively in hostility.

But, despite the legal development and these condemnations, the recruitment of children persists. For example, in Kivu, a province of Democratic Republic of the Congo (DRC), many children remain in the armed groups of different rebel groups. A former child soldier, Jean-Pierre, speak about his experiences during this period. He was enlisted at the age of ten and spent four years into the army. After a formation of three months in order to learn how to manipulate weapons, he took on lots of roles: making machetes, becoming a spy fighter, being sent to the front to kill the population with gun. He was forced to commit exaction but has also seen atrocities, such as sexual assaults on women and child. He left the group thanks to a Congolese organisation and was hosted by a UNICEF reintegration center for former child soldiers. Now, he is trying to break the cycle of violence by raising awareness of the polytrauma affecting child soldiers. In fact, in DRC, when children are recruited by armed groups, they are subjected to sexual violence. They are drugged and forced to commit abuses under the influence of these drugs. To make them lose the notion of violence, they are sometimes forced to harm their own families, such as cutting off their mother's breast or raping her. Indeed, the ICC establishing in Lubanga case that protection against child conscription “includes not only protection from violence and fatal or non-fatal injuries during fighting, but also the potentially serious trauma that can accompany recruitment, including separating children from their families, interrupting or disrupting their schooling and exposing them to an environment of violence and fear.” (§38)

III/ PERSISTENT VIOLATIONS OF CHILDREN’S RIGHTS IN CONTEMPORARY ARMED CONFLICTS

In her study on the “Impact of armed conflict on children”, UN Secretary General appointed expert Grace Machel concluded that “war violates all children's rights”. Indeed, human rights violations always lead to a climate that is itself conducive to more human rights violations. So, the number of abuses committed against children every year in situations of armed conflict is estimated at 20,000. It concerns the violation of many of their rights, for example, yet more than 32 million children across the world have never seen a teacher as a result of armed conflicts. Let’s take a look at a few examples of violations of children’s rights in contemporary armed conflicts.

First of all, children are instrumentalized in armed conflicts. In the DRC armed conflicts initially aimed at controlling mines, and children are the only ones small enough to have access to the much-coveted mines, so when they're not being exploited for fights, they're being exploited for work. Similarly, the kidnapping of children in the context of armed conflict is used as a means of pressure, as was the case in 2014 when Boko Haram, a group based in north-east Nigeria and operating on the territory of Nigeria, Cameroon, Chad and Niger, kidnapped 276 young women as they left school, to impose its ideology.

According to the UN Secretary-General's annual reports on children and armed conflict, Syria has consistently ranked among the worst contexts for severe violations against children. Since the outbreak of civil war in 2011, Syria has been the site of widespread and systematic violations of children’s rights by both state and non-state actors. In addition of the recruitment of children by a lot of groups, where children were sometimes used in suicide missions. Children have been also disproportionately affected by indiscriminate bombings of schools and hospitals, particularly by Syrian and Russian forces. Furthermore, warfare has led to mass starvation, with children often the first victims. 

In the same way, according to UNICEF, nearly 12 million children in Yemen need humanitarian assistance, and at least 2 million are highly malnourished. As a result of the ongoing conflict in Yemen, which escalated in 2015, the UN described it as the world’s worst humanitarian crisis, with children bearing the brunt of the suffering. Airstrikes by the Saudi-led coalition have repeatedly hit civilian targets, including schools, buses, and hospitals. Also, armed groups as well as government-aligned militias, have been implicated in the recruitment and use of children in combat roles.

In the context of the Russian invasion of Ukraine, which is currently taking place, repeated attacks on civilian infrastructure, including schools, have disrupted the education of millions of children and exposed them to extreme psychological trauma. Moreover, international observers have documented the forced deportation of Ukrainian children from occupied territories into Russia and Belorussia. UN and the ICC have raised concerns over this unlawful removal of children, their adoption into Russian families, and their exposure to political indoctrination. In 2023, the ICC issued arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova, the Commissioner for Children's Rights, citing their alleged roles in the unlawful deportation of children, which may constitute a war crime.

The multifaceted nature of these conflicts has made it difficult for the international community to effectively intervene or enforce accountability. Political divisions within the UN Security Council have paralyzed efforts to refer the situation in Syria to the ICC, despite abundant evidence of war crimes. The temporarily removal of Saudi Arabia from the UN “list of shame” of violators of children's rights in conflict for the case of Yemen, raising concerns about politicization and the erosion of credibility in international efforts. The same goes for the non-application of the mandate to Putin by the states, which reflects their lack of cooperation and consideration for children's rights.

CONCLUSION

While international legal architecture is becoming increasingly sophisticated over the last 70 years to provide clear prohibitions and frameworks, the implementation of these norms is uneven and often subordinated to political interests. Therefore, many violations of children's rights are still taking place in contemporary armed conflicts. The protection of children in armed conflict remains one of the most urgent moral and legal challenges of our time. The continued recruitment of child soldiers, attacks on schools, and exploitation of children in war zones across the globe demonstrate the need for stronger accountability mechanisms, better-prepared humanitarian interventions, and above all, demonstrate a collective political will to make the rights of children a priority.

In this sense, non-governmental organizations (NGO) play a special role in protecting children's rights during armed conflicts. For example, when the Rwandan genocide was discovered, many children were taken in by NGOs. Today, NGOs campaigns call for the protection of the 420 million children who are exposed to the dangers of armed conflict on a daily basis. As the NGO War Child Lebanon supports: “These children have been affected by war. They are looking for people that make them feel safe. There is fear in their eyes – but also hope. In that hope we can see their resilience. And that resilience is the way forward.”