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Citation:
Maria Teresa Dutli; Antoine Bouvier, Protection of
Children in Armed Conflict: The Rules of International
Law and the Role of the International Committee of the
Red Cross, 4 Int'l J. Child. Rts. 181 (1996)

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The InternationalJournalof Children'sRights 4: 181-188, 1996. 181
@) 1996 Kluwer Law International. Printedin the Netherlands.

Protection of children in armed conflict: the rules of international

law and the role of the International Committee of the Red Cross

MARIA TERESA DUTLI and ANTOINE BOUVIER'

InternationalCommittee of the Red Cross, Geneva, Switzerland

Introduction

Armed conflicts do not spare children. Indeed, in many present-day conflicts,

children are among the most severely affected because of their great vulner-
ability. They may be the most innocent victims of armed conflicts, but they
are by no means the most insignificant.
Trying to protect children in such situations constitutes a formidable chal-
lenge for humanitarian organizations.
Recognized by the international community as "a neutral institution whose
humanitarian work is carried out particularly in time of international and
other armed conflicts or internal strife", 2 and whose task it is to "ensure the3
protection of and assistance to military and civilian victims of such events",
the International Committee of the Red Cross (ICRC) has always endeavoured
to improve the protection of children caught up in armed conflict.
In the following pages, we shall describe the main activities carried out by
the ICRC on behalf of such children and present an overview of the provisions
of international law that protect them.
Finally, some comments will be made on the "Plan of action for the protec-
tion of children affected by conflicts" recently adopted by the International
4
Red Cross and Red Crescent Movement.

1Members of the Legal Division, International Committee of the Red Cross. The views
expressed here are those of the authors and do not necessarily reflect those of the International
Committee of the Red Cross.
2 See Article 5, para. 2(d), of the Statutes andRules of Procedureof the InternationalRed
Cross andRed CrescentMovement.
3
Ibid.
4 he InternationalFederationof Red Cross and Red CrescentSocieties and the National
Red Cross and Red CrescentSocieties, together with the ICRC, form the InternationalRed
Cross andRed CrescentMovement.
 PRACI1CE AND IMPLEMENTATION

1. ICRC activities on behalf of children affected by armed conflict

For several decades the ICRC has been concerned about the particularly tragic
plight of children during armed conflicts. As early as 1924 it made a major
contribution to the Geneva Declaration of the Rights of the Child.
In 1939, in cooperation with the Save the Children Fund International
Union, the ICRC prepared a draft convention for the protection of children in
the event of armed conflict. Unfortunately the outbreak of hostilities prevented
its adoption by states.
Notwithstanding this setback, the ICRC took a number of initiatives during
the Second World War to improve the plight of children. In fact, in accor-
dance with its tradition as a humanitarian institution, it did not wait for legal
provisions to be adopted before launching operations for their protection.
Immediately following the end of the war, which had sadly demonstrated
the urgent need to draw up an international treaty protecting the civilian
population in wartime, the ICRC resumed its efforts to secure the adoption
of special provisions to protect children.
The results of the ICRC's efforts in this field led to the adoption of the
Fourth Geneva Convention of 1949 relative to the Protection of Civilian
Persons in Time of War. The Convention not only afforded generalprotection
to children as civilians not takingpart in hostilitiesbut also, in no less than 17
of its provisions, provided special protection for them. In addition, children
benefited for the first time from general protection in situations of internal
conflict as persons taking no active part in the hostilities, by virtue of Article
3, common to the four 1949 Geneva Conventions.
In the 1960s, confronted with new forms of conflict, the ICRC felt that
the protection provided by international humanitarian law must again be
extended. In regard to children, three issues had to be addressed. First, as a
particularly vulnerable category of victims, children were entitled to special
protection stated in specific provisions. Secondly, the question of their role in
military operations had to be more precisely defined. Finally, "some provision
had to be made to take into consideration their immaturity if they did commit
5
offences during the period of an armed conflict".
In order to meet the challenges of these new types of conflict, the ICRC
organized several meetings of experts which eventually led to the adoption
of the two Additional Protocols of 1977. These treaties marked a substantial
step forward in the provision of protection for children in wartime. Not only
did they afford children greaterprotection against the effects of hostilities,

See S. Singer "The protection of children during armed conflict situations", International
Review of the Red Cross (IRRC), No. 252, May-June 1986, p. 141.
 PROTECTION OF CHILDREN IN ARMED CONFLICT

but they also regulated for the first time the actualparticipationof children
in hostilities.
In parallel with the action described above on the legal front, the ICRC
continued its efforts to help children in the framework of its traditional opera-
tions.
In its food aid and medical assistance operations, the ICRC takes the
special needs of children into account. It sets up programmes for nutritional
rehabilitation and focuses on the needs of babies and children in its medical
activities. Moreover, it always insists, when visiting detention camps, that
children be kept separate from adults unless they are detained with their
families, and urges the early release and repatriation of children.
Another sphere in which the ICRC has made and continues to make a
vitally important contribution on behalf of children is the tracingof missing
persons, the exchange offamily messages and the reunitingoffamily members
separated by conflict. For over a century, the ICRC's Central Tracing Agency
has been gathering and forwarding information on missing persons, captives
and refugees. In performing these tasks, ICRC delegates give priority to
unaccompanied children, sparing no effort to put them in touch and reunite
them with their families. A prime example of tracing activities on behalf
of children is the case of Rwanda. In this country in 1994 alone the ICRC
registered 37,000 unaccompanied children, and its delegates restored6
contact
between more than 1,300 Rwandan children and their families.
The other components of the International Red Cross and Red Crescent
Movement also play an important role in the protection of children in armed
conflict, both assisting the ICRC and carrying out their own activities. The
InternationalFederationof Red Cross and Red Crescent Societies supports
the work of National Societies to develop health programmes for children
(immunization, diarrhoea prevention, etc.) in the most vulnerable commu-
nities. The National Societies have acquired vast experience in the field of
rehabilitation and development.
The protection of children in time of conflict is a matter of grave concern
for the Movement as a whole and has been the subject of many debates at
International Red Cross Conferences and other meetings of the Movement.
Particular stress has been placed on the very serious issues of the participation
of children in hostilities and the psychological and social consequences7
of
such participation for the child itself, its family and the community.

6 See ICRC AnnualReport, 1994, p. 24. This figure does not include children registered by
the ICRC who were reunited with their families through other channels.
7 See section 3 below.
 PRAC11CE AND IMPLEMENTATION

This concern was reaffirmed during the 26th International Conference of

the Red Cross and Red Crescent Movement, 8 held in Geneva in December
1995, which expressed particular concern for "the plight of women, children
9
and dispersed families".

2. Rules of international law protecting children in conflict: an overview

2.1. The protection of children under the Geneva Conventions and their
Additional Protocols1°

As mentioned above, numerous provisions of international humanitarian law

(IHL) afford special protection for children in times of armed conflict. Such
protection is part and parcel of the generalprotection granted to the civilian
population.
The principle on which these provisions are based is most clearly stated in
Article 77 of Additional Protocol I:
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.
In all, the 1949 Geneva Conventions and the two Additional Protocols of
1977 contain some 25 provisions which specifically protect children. These
provisions have three main objectives.

(a) Generalprotection,of children as members of the civilian population

In non-internationalarmed conflicts, children are protected by the funda-
mental guarantees provided by Article 3 common to the four Geneva

s The International Conference is convened in principle every four years. During the Confer-
ence representatives of the components of the Movement meet with representatives of the 186
States party of the Geneva Conventions. Together they examine and decide upon humanitarian
matters of common interest.
9 See Resolution 2: "Protection of the civilian population in period of armed conflict",
preamble. Part C of the operative part addresses the question of the protection of children.
Inter alia, the resolution strongly condemns the recruitment of children under the age of 15
years and the deliberate killing and sexual exploitation of children, and encouragesStates and
the Movement to develop preventive measures, assess existing programmes and set up new
programmes to ensure that child victims of conflict receive medical, psychological and social
assistance.
10
See M.T. Dutli: "Captured child combatants", in IRRC, No. 278, September-October
1990, pp. 421-434; F. Krill: "The protection of children in armed conflicts", in The ideologies
of children's rights, Kluwer, 1992, pp. 347-356; D. Plattner "Protection of children in
international humanitarian law", in IRRC, No. 240, May-June 1984, pp. 1-16; S. Singer,
op. cit.
 PROTECTION OF CHILDREN IN ARMED CONFLICT

Conventions. As persons taking no active part in the hostilities, children must

be treatedhumanely. There should thus be no violence to their lives, persons
or dignity. Protocol II of 1977 further states that the civilian population in
general must not be the object of attack.
During internationalarmed conflicts, children are covered by all the provi-
sions relating to the treatment of protected persons. These include, inter alia,
the obligation to respect life and physical integrity and the prohibition of
torture, collective punishments or reprisals. They also benefit from the rules
governing the conduct of hostilities and in particular from the prohibition on
launching attacks against the civilian population.

(b) Special protection

As particularly vulnerable individuals, children who do not take part in
hostilities also enjoy special protection.
In internationalarmedconflicts, children are in particular protected against
the effects of hostilities;their right to care and assistanceand their personal
rights are guaranteed.
Other provisions relate to the children's cultural environment, which must
be preserved.
Finally, there are detailed rules laying down the conditions under which
children may be arrested,interned or detained.
In non-internationalarmedconflicts, similar (although less comprehensive)
protection for children is provided by Article 4, para. 3, of Additional Protocol
II.

(c) Protectionof children taking partin hostilities

Children's involvement in actual fighting is an increasingly common feature
of today's conflicts. In spite of strenuous efforts made by some States, the
ICRC and many NGOs, it has not yet been possible to prohibit absolutely
their participation in hostilities.
In situations of internationalarmed conflict, Article 77, para. 2, of Addi-
tional Protocol I sets the minimum age for the participationof children in
hostilitiesat 15, and states that parties to conflict must refrain from recruiting
children below that age. In recruiting persons between the ages of 15 and 18,
they are encouraged to begin with the oldest.
In non-internationalarmed conflicts, Article 4, para 3(c), of Additional
Protocol II prohibits the participation in hostilities of children below 15
years of age. This prohibition is absolute, covering both direct and indirect
participation in hostilities.
If, despite these provisions, children younger than 15 take a direct part
in hostilities and are captured, they continue to benefit from the special
protection afforded by the Conventions and the Protocols.
 PRACTICE AND IMPLEMENTATION

2.2. Protection of children under the United Nations Convention on the

Rights of the Child

During the negotiation of this Convention, several delegations proposed the

inclusion of an article on children in armed conflicts. After very long and
arduous discussions, Article 38 was finally adopted.
Despite the efforts of a number of States and of many NGOs to have the age
below which children must not participate in hostilities raised from 15 to 18
years, Article 38 of the Convention does not represent an advance. Indeed, it
merely repeats the wording of Article 77 of Protocol I, and thus prohibits the
direct participation in hostilities of children under 15 years of age. In relation
to non-international conflicts it is even weaker than the existing provisions
which, as explained above, prohibit both direct and indirect participation.
However, Article 38, para. 1, contains a reference to the rules of IHL
relevant to the protection of children. As a result of this clause and of the lex
specialis character of IHL, Article 4 of Protocol II applies in doubtful cases.
Article 38 was the target of serious criticism on the part of some States and
many NGOs. The idea of drafting an "optional Protocol to the Convention on
the Rights of the Child on involvement of children in armed conflicts" was
tabled and a Working Group was set up by the Commission on Human Rights
to examine the matter. This Group held two sessions, in November 1994
and January 1996. Although some progress was made, the question of the
minimum age of participation of children in armed conflict remains open. l

3. Protecting children: A Plan of Action for the International Red

Cross and Red Crescent Movement

In spite of the legal developments outlined above, there is today a considerable

discrepancy between the detailed provisions worked out by experts and the
daily life of children caught up in the turmoil of war. Abuse of children's rights
by combatants even seems to increase in direct proportion to the number of
international laws adopted to ensure their safety.
The problem has reached such disastrous proportions that the Inteinational
Red Cross and Red Crescent Movement felt that a swift response was neces-
sary.
To this end, Resolution 4 adopted by its Council of Delegates in 1993
requested the drafting and implementation of a Plan ofAction aimed at

1 See "Draft Report of the second session of the Working Group", Doc.
E/CN.4/1996/WG. 13/CRP. 1, 25 January 1996.
 PROTECTION OF CHILDREN IN ARMED CONFLICT

promoting the principle of non-recruitment and non-participation of

children below the age of eighteen in armed conflicts, and [taking] con-
crete action to protect and assist child victims of armed conflicts.

The plan was drawn up, on the basis of extensive research, 12 by a joint
working group of the ICRC and the International Federation, with the assis-
tance of the Henry Dunant Institute.
The Plan was submitted to the 1995 Council of Delegates. 13 It was formally
endorsed by Resolution 5, which, inter alia,"urges all National Societies, the
International Federation and the ICRC to implement or support the imple-
mentation of the Plan of Action".
The Plan restates the two fundamental commitments outlined above and
proposes that a number of measures be taken by the Movement. These include:
- promoting national and international legal provisions prohibiting the
military recruitment and use in hostilities of persons below 18 years of
age;
- preventing children from joining armed groups;
- raising awareness in society of the need to prevent children from joining
armed forces or groups;
- addressing the psychosocial as well as the physical needs of children
living with families and of unaccompanied children; and
- advocating in favour of children who have participated in armed conflicts
in order to encourage society and the local community to accept them.
The Movement is currently setting up structures to implement this very
ambitious and far-reaching Plan of Action.

Conclusion

Children represent the future of society, and providing them with proper
protection should be a constant concern.
As indicated above, a succession of legal measures to protect children
during wartime have been taken since the beginning of this century. How-
ever, efforts must continue, and should even be increased, to adapt the legal
framework of this protection to actual situations and needs.
However, legal measures are almost useless if they are not accompanied by
practical action. As in many other areas, the law cannot be implemented with-
out strong political commitment, followed by the establishment at national

12See G. Goodwin Gill and I. Cohn: Child soldiers, the role of children in armed conflicts,
Oxford University Press, 1994.
13See "Children in armed conflicts", Doc. 95/CD/10/1, ICRC, Geneva, 1995.
188 PRACTICE AND IMPLEMENTATION

level of specific programmes to ensure that children do not fall victim to

armed conflict or, where this has already happened, to ensure that they are
fully rehabilitated and reintegrated into society.
A real and concerted effort by the parties concerned and by humanitarian
agencies is essential to provide children with the necessary protection in
wartime and to give them a chance to survive and develop once the conflict
is over.