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Commentary - Protection of children
    [p.897] Article 77 -- Protection of children


    [p.898] 3173 The situation of children in time of armed conflict is covered by several articles in the fourth Convention. Thus Article 14 , concerning safety zones, indicates that such zones may protect in particular children under fifteen. Children are also mentioned in Article 17 , which provides for the evacuation of civilians from besieged areas. Article 23 , which deals with the free passage of relief consignments intended for the weakest categories of the population, explicitly refers to children under fifteen among the potential beneficiaries. Article 24 , which has a similar scope to the article under consideration here, is entirely devoted to children, particularly children under fifteen who are orphaned or who are separated from their families as a result of the war, and to the identification of children under twelve. In Article 38 , which applies to protected persons in the national territory of belligerents, children under fifteen are included amongst those persons who should enjoy preferential treatment to the same extent as nationals of the State concerned. Article 50 deals with children in occupied territories and to the institutions devoted to their care. Still in occupied territory, Article 51 prohibits compelling children under eighteen years of age to work, and Article 68 prohibits pronouncing the death penalty on persons under eighteen years of age. Moreover, this last provision, from which no derogation is possible, has been adopted in the International Covenant of 1966 on Civil and Political Rights (Article 6, paragraph 5).

    3174 When it presented the draft article, (1) the ICRC's specific purpose was to extend [p.899] to all children in territories of States involved in a conflict, some of the provisions of the fourth Convention which apply in occupied territories (Article 50 ) and to prohibit the participation of children in armed conflict. It will be shown below that by and large the Diplomatic Conference agreed with these views.

    3175 The Working Group of Committee III discussed this article for more than a week; it raised some delicate problems and three amendments had to be examined. (2) Finally the Working Group achieved a compromise which was adopted by consensus in Committee III and then by the Conference itself, and which has become the present article.

    3176 In view of its character, this article serves as a development of both the fourth Convention and of other rules of international law which govern the protection of fundamental human rights in time of armed conflict, particularly the International Covenant of 1966 on Civil and Political Rights and the Declaration of the Rights of the Child, adopted unanimously in 1959 by the United Nations General Assembly. At the present time a Draft Convention on the Rights of the Child is under discussion in the United Nations.

    3177 This article is not subject to any restrictions as regards its scope of application; it therefore applies to all children who are in the territory of States at war, whether or not they are affected by the conflict.

    Paragraph 1

    3178 The word "children" is not clarified in any way, and this omission is intentional. The Rapporteur said: "It should also be noted that the Committee decided not to place specific age limits in paragraphs 1 and 4 and that there is no precise definition of the term "children"." (3)

    3179 The term "child" does not have a generally accepted definition. According to the Concise Oxford Dictionary the term "child" means a young human being who has not reached the age of discretion, i.e., the age at which one is fit to manage one's own affairs (7th edition, 1982). According to the Oxford English Dictionary (1970) a child is a human being up to the age of puberty. The French Dictionary Robert indicates that it means a human being from birth up to the age of thirteen; this is followed by adolescence. (4) The age of puberty varies, depending on climate, race and the individual. However, the limit of fifteen years of age, which is given many times in the fourth Convention and is also given in paragraphs 2 and 3 of this article, seems to provide a reasonable basis for a definition. Moreover, the article itself in paragraphs 2 and 5 uses the word "persons" in referring to a limit of eighteen years. This does not prevent the fact that some countries have adopted a lower or higher age than fifteen years, but there is no doubt that all human beings under fifteen should, within the meaning of the Fourth Convention and [p.900] this Protocol, be considered and treated as children. The age of fifteen most often corresponds to such development of the human faculties that special measures are no longer required to the same degree. However, some flexibility is appropriate, for there are individuals who remain children, both physically and mentally, after the age of fifteen. Furthermore, this age of fifteen has been adopted in other international instruments. Thus, for example, in a recommendation of 1965 relating to the minimum age for marriage (Resolution 2018 (XX)) the United Nations General Assembly requested States to determine a minimum age for marriage and specified that that age should in no case be under fifteen years.

    3180 The meaning of the provision under consideration here is sufficiently clear: at most we should add that according to the Rapporteur the last words, "or for any other reason", refer to retarded children, or in modern terminology, those who are physically or mentally handicapped.

    3181 The first sentence is very similar to paragraph 1 of Article 76 ' (Protection of women). ' Like women, children are entitled to special respect and must be protected against any form of indecent assault. This is a welcome supplement to Article 27 of the fourth Convention, as experience has shown that children, even the very youngest children, are not immune from sexual assault.

    3182 The second sentence demands that Parties to the conflict should provide children with the care and aid they require. This may seem self-evident, but it is just as well to state it in black and white.

    Paragraph 2

    3183 Recent conflicts have all too often shown the harrowing spectacle of boys, who have barely left childhood behind them, brandishing rifles and machine-guns and ready to shoot indiscriminately at anything that moves. Participation of children and adolescents in combat is an inhumane practice and the ICRC considered that it should come to an end. It entails mortal danger for the children themselves, but also for the many people who are exposed to their erratic.

    3184 Nevertheless, the ICRC proposals encountered some opposition, as on this point governments did not wish to undertake unconditional obligations. In fact, the ICRC had suggested that the Parties to the conflict should "take all necessary measures", which became in the final text, "take all feasible measures". This formula already exists in other articles, particularly Article 76 ' (Protection of women), ' and we refer to the commentary thereon. (5) Although the obligation to refrain from recruiting children under fifteen remains, the one of refusing their voluntary enrolment is no longer explicitly mentioned. In fact, according to the Rapporteur, Committee III noted that sometimes, especially in occupied territories and in wars of national liberation, it would not be realistic to totally prohibit voluntary participation of children under fifteen. (6)

    [p.901] 3185 It is possible to understand the point of view adopted by the Diplomatic Conference without fully agreeing with it. It is true that there is no law on military organization anywhere that provides for the recruitment of persons under fifteen, but children of that age have certainly participated in hostilities voluntarily in extreme circumstances, and have sometimes performed acts of heroism, possibly without always being aware of the reasons for the conflict. It is difficult to moderate their enthusiasm and their will to fight. Military and civil authorities will find valid reasons in this provision for refusing the voluntary enrolment of minors under the age of fifteen, and for exhorting them to continue their studies and their education. However, if despite this, such "under fifteens" are intent on participating in hostilities -- a case covered by paragraph 3 -- the authorities employing or commanding them should be conscious of the heavy responsibility they are assuming and should remember that they are dealing with persons who are not yet sufficiently mature, or even have the necessary discernment of discrimination. Thus they should give them the appropriate instruction on handling weapons, the conduct of combatants and respect for the laws and customs of war.

    3186 Similarly, even though the authorities may not succeed in preventing young persons from taking part in hostilities, they should at least provide them with uniforms, identity tags indicating their status as minors or, failing these, with distinguishing signs such as, for example, an armlet or a tunic or any other sign showing that the individual wearing it is a combatant.

    3187 The text refers to taking a ' direct ' part in hostilities. (7) The ICRC proposal did not include this word. Can this lead to the conclusion that indirect acts of participation are not covered? Examples would include, in particular, gathering and transmission of military information, transportation of arms and munitions, provision of supplies etc. The intention of the drafters of the article was clearly to keep children under fifteen outside armed conflict, and consequently they should not be required to perform such services; if it does happen that children under fifteen spontaneously or on request perform such acts, precautions should at least be taken; for example, in the case of capture by the enemy, they should not be considered as spies, saboteurs or illegal combatants and treated as such. In addition, appropriate instruction is again essential.

    3188 The second sentence of the paragraph is the result of a compromise; in fact, in an amendment one delegation had proposed that the limit on non-recruitment should be raised from fifteen to eighteen years. (8) The majority was opposed to extending the prohibition of recruitment beyond fifteen years, but in order to take this proposal into account it was provided that in the case of recruitment of persons between fifteen and eighteen, priority should be given to the oldest.

    3189 As we see, this provision directly concerns the composition of the armed forces; it is therefore related to Articles 43 ' (Armed forces), ' 44 ' (Combatants and prisoners of war), ' 45 ' (Protection of persons who have taken part in hostilities) ' of the present [p.902] Protocol, to Articles 51 and 147 of the fourth Convention, and to Article 23 of the Hague Regulations of 1907.

    3190 Up to now there have been no rules in this field, and this article will certainly be very useful, even if it is not mandatory in some circumstances.

    3191 Finally it should be noted that this provision is primarily concerned with the nationals of the recruitment State, though without excluding nationals of other States. In other words, this article undoubtedly applies to that State's own nationals, and to some extent protects them from their own authorities. It is conceivable on the basis of this article that a father might oppose the recruitment of his son under fifteen years of age, or request that in the event of his son's voluntary enrolment, such enrolment should not be accepted.

    Paragraph 3

    3192 One does not often see an international treaty laying down rules governing the situation which would arise if an article of the same treaty were violated. This paragraph is an example of such case. It is intended to cover the case where, despite the prohibitions contained in the first two paragraphs, "under fifteens" were to participate in hostilities. However, the text itself emphasizes the "exceptional" character of such cases.

    3193 As we have already said, it is not very likely that such young persons would be recruited on the basis of a law or decree. It is more likely that they would join up as a result of spontaneous actions by individuals or groups such as military academies, volunteer corps or patriotic societies. Spontaneous uprisings to resist an invader (levée en masse) are also quite likely.

    3194 We also mentioned above the precautionary measures which should be taken by the authorities in such an extreme case, particularly ensuring that such young persons are provided with distinguishing signs displaying their combatant status. A child identified in this way will obviously be treated as a prisoner of war if he is captured. In fact, there is no age-limit for the right to such treatment. Theoretically prisoners of war may be very young or very old. However, according to Article 16 of the Third Convention, age is a factor which justifies privileged treatment. On many occasions the ICRC has intervened in favour of very young prisoners of war, requesting privileged treatment for them during captivity and priority during repatriation. (9) Even when they are prisoners of war, "under fifteens" will continue to have the benefit of the provisions of this article, particularly paragraphs 1, 4 and 5. The death penalty cannot be pronounced on them, and they must be interned in quarters separate from those of adults.

    3195 If a child under fifteen years of age participates in hostilities under such conditions that he does not have the right to prisoner-of-war status, he may fall under the fourth Convention if he is a protected person within the meaning of [p.903] that Convention. Finally, if he does not have the right to prisoner-of-war treatment, and he is not a protected person either, he is entitled, according to Article 45 ' (Protection of persons who have taken part in hostilities), ' paragraph 3, to the protection of Article 75 ' (Fundamental guarantees), ' which is referred to in paragraph 4 of Article 77 . That provision is important, especially with regard to judicial guarantees, as these are only available under the fourth Convention for protected persons in occupied territory.

    3196 Finally, all children who are in the situation just referred to can rely on the provisions of Article 77 , even if they are prisoners of war or protected persons under the fourth Convention.

    Paragraph 4

    3197 As in paragraph 1 -- we refer to the commentary thereon -- no age-limit is laid down, and the word "children" is not defined. However, it is reasonable to assume that children under fifteen years of age must be detained in quarters separate from those of adults, except, obviously where families are accommodated as family units.

    3198 The situation is less clear with regard to young people between sixteen and eighteen years old. In this respect the Rapporteur of Committee III made the following remark: "Whether persons of sixteen, seventeen or eighteen years of age would thus have to be retained separately from adults, is left to national law, traditions, and the decision of the Parties to a conflict." (10) Like him, we feel that for this last category it is appropriate to act in accordance with the customs and practices followed in the places of detention of the countries concerned. If there is any uncertainty, the interests of the young people should prevail.

    3199 To some extent this question is related to the age of criminal responsibility. In some countries no penal sanction may be inflicted on individuals who have not reached a minimum age, which may vary from country to country. In many States, even if the age of criminal responsibility is below the general age of majority, youth constitutes a mitigating factor, and penalties are reduced. Very often offences committed by young people are submitted to juvenile courts, and the penalties are often educational or rehabilitation measures to be served in special establishments. In such cases the separation required by this paragraph is of course automatically achieved.

    3200 Lodging members of the same family who are being detained in the same quarters is already laid down in Article 82 of the fourth Convention.

    Paragraph 5

    3201 This is probably the most important paragraph, as the provision is not subject to any restriction; it contains its own definition in terms which are unequivocal. [p.904] In territories at war no person under the age of eighteen years may be executed for an offence related to the armed conflict.

    3202 In this field the fourth Geneva Convention of 1949 paved the way in Article 68 , paragraph 4, which provides that, in any case, the death penalty may not be pronounced by the courts of the Occupying Power on a protected person who is under eighteen years of age. The 1966 International Covenant on Civil and Political Rights followed this example, and Article 6 provides that the death sentence cannot be imposed for crimes committed by persons below eighteen years of age. On the other hand, the European Convention (1950) does not contain any provision in this respect. Article 4 of the American Convention (1969) prohibits the death penalty for persons under eighteen years of age or over seventy. To sum up, the present provision fills gaps which still existed, and with regard to time of armed conflict and offences related to conflicts, it can be said that the death penalty for persons under eighteen years of age is ruled out completely.

    3203 It should be noted that the provision does not use the word "children", but the more general term "persons". The ICRC draft provided that the death penalty should not be "pronounced", and the Working Group had accepted that text. But one delegate argued that the legislation of his country did not permit a prohibition on the death penalty being pronounced, though a prohibition of its execution could be accepted. Committee III and the Conference itself accepted this objection and the final text takes it into account.

    3204 It is to be hoped that this provision will not be abused, especially by urging young people under eighteen to perform highly perfidious or unscrupulous acts which would not carry the death penalty for their perpetrator because of his youth. Such practices could have damaging consequences if they occurred frequently and the authorities responsible might give up attempting to apprehend the perpetrators of such acts, seeking rather to eliminate them. The heavy responsibility upon those who ordered adolescents to commit such acts or tolerated them, should be underlined, for they jeopardize the safety of all young people. In addition, it should be recalled that they would have to account for their acts before the courts.

    3205 As regards the words "offence related to the armed conflict", we have already seen with regard to Article 75 ' (Fundamental guarantees), ' paragraphs 3 and 4, and Article 76 ' (Protection of women), ' paragraphs 2 and 3, what is meant by this expression, which in general does not cover ordinary criminal offences. In addition, we would refer to the commentary on the above-mentioned provisions (p. 357 and p. 893 supra).

    3206 The death penalty is prohibited or restricted in a number of provisions of the Geneva Conventions and the Additional Protocols, and the following summary can be made in this respect:

    1) A general rule applicable to all civilian or military persons in the territory of the Parties to the conflict prohibits the execution of the death penalty for penal offences related to the armed conflict on persons under eighteen years of age at the time the offence was committed (Protocol I, Article 77 ). The corresponding rule applicable in non-international conflicts (Protocol II, [p.905] Article 6 -- ' Penal prosecutions) ' prohibits the pronouncement of the death penalty in like circumstances.
    2) A general rule applicable to women prohibits the execution of the death penalty on pregnant women and mothers having dependent infants, for offences related to the conflict (Protocol I, Article 76 -- ' Protection of women '). The same rule applies in internal conflicts (Protocol II, Article 6 -- ' Penal prosecutions ').
    3) Prisoners of war are subject to the legislation of the Detaining Power; they must be informed of offences carrying the death penalty under this legislation; no new offence may be added to that list without the concurrence of the Power on which they depend. Various precautions are laid down in favour of prisoners of war accused of offences carrying the death penalty, and this penalty may not be executed until at least six months after the final judgment (Third Convention, Articles 100 and 101 ).
    4) In occupied territories the death penalty can only be pronounced by courts of the Occupying Power against protected persons for a limited number of duly enumerated offences (Fourth Convention, Article 68 , paragraph 2). Furthermore, various precautions must be observed, and in the case of conviction, the execution may not take place until after a period of at least six months (Fourth Convention, Article 75 ). Finally, the fourth Convention (Article 68 , paragraph 4), prohibits the pronouncement (and therefore, like the article under consideration here, the execution) of the death penalty on protected persons under eighteen years of age at the time of the offence.

    3207 As we have seen, some very important restrictions have been adopted on the pronouncement and execution of the death penalty; at any rate, there is a general tendency throughout the world to abolish this penalty, and this tendency is reflected in the 1949 Conventions, as well as in the present Protocol.

    3208 It is worthy of note that one delegate, without objecting to the article as it was adopted, would have wished to add a sixth paragraph prohibiting any penal prosecution and conviction of children too young at the time of the offence to understand the consequences of their actions. According to the Rapporteur, Committee III agreed that, following a general principle of penal law, a person cannot be convicted of a criminal act if he was not able to understand the consequences of that act at the time he committed it. To some extent this problem is related to the age of criminal responsibility, discussed above with regard to paragraph 3. The Committee therefore decided to leave this question to national legislation.

    ' C.P./J.P. '


    NOTES

    (1) [(1) p.898] "' Article 65 -- Protection of children; '
    1. Children shall be the object of privileged treatment. The Parties to the conflict shall provide them with the care and aid their age and situation require. Children shall be protected against any form of indecent assault.
    2. The Parties to the conflict shall take all necessary measures in order that children aged under fifteen years shall not take part in hostilities and, in particular, they shall refrain from recruiting them in their armed forces or accepting their voluntary enrolment.
    3. The death penalty for an offence related to a situation referred to in Article 2 common to the Conventions shall not be pronounced on persons who were under eighteen years at the time the offence was committed.";

    (2) [(2) p.899] See O.R. III, pp. 300-301, CDDH/III/304, CDDH/III/324 and Corr.1 and CDDH/III/325;

    (3) [(3) p.899] O.R. XV, p. 465, CDDH/407/Rev.1, para. 63;

    (4) [(4) p.899] ' Oxford English Dictionary, ' 1970, Vol. II, p. 341: "A young person of either sex below the age of puberty ; P. Robert, ' Dictionnaire alphahetique et analogique de la langue française, ' Paris, 1971, vol. 2, p. 493;

    (5) [(5) p.900] For the general meaning of the expression, cf. commentary Arts. 57-58, supra, pp. 681 and 692;

    (6) [(6) p.900] O.R. XV, p. 465, CDDH/407/Rev.1, para. 63;

    (7) [(7) p.901] Art. 43, para. 2, attributes the right to participate ' directly ' in hostilities to members of the armed forces and to them alone. We refer to the commentary on this paragraph, supra, p. 514;

    (8) [(8) p.901] Cf. O.R. III, p. 301, CDDH/III/325;

    (9) [(9) p.902] See ' Report of the International Committee of the Red Cross on its Activities during the Second World War (September I, 1939 -- June 30, 1947) ', Vol. I, 1948, pp. 297-300;

    (10) [(10) p.903] O.R. XV, p. 465, CDDH/407/Rev.1, para. 63;