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Commentary - Evacuation of children
    [p.907] Article 78 -- Evacuation of children


    [p.908] 3209 In countries at war special measures are nearly always taken in favour of children for it is desirable to ensure the well-being, upbringing and education of children. Therefore special provisions have been adopted in the field of food supplies, medical care and clothing. Efforts have also been made to accommodate young people in areas or quarters where the dangers of war are reduced. In this context children have often been sent abroad to allied or neutral countries (1) which agreed or offered to accommodate them. In the majority of cases it was a matter of avoiding the dangers resulting from hostilities for children, of ensuring sufficient food, as well as an appropriate upbringing and education. On the whole such evacuations, carried out in an orderly manner, with the agreement of the authorities and the parents, have had good results.

    3210 The Fourth Convention encouraged the reception of orphaned children or children separated from their families into neutral countries. Thus Article 24 provides:

    [p.909]
    "The Parties to the conflict shall take the necessary measures to ensure that children under fifteen, who are orphaned or who are separated from their families as a result of the war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition.
    The Parties to the conflict shall facilitate the reception of such children in a neutral country for the duration of the conflict with the consent of the Protecting Power, if any, and under due safeguards for the observance of the principles stated in the first paragraph."

    3211 The Diplomatic Conference of 1974-1977 had a more cautious approach. In fact, it has also happened that evacuations have been carried out for other reasons, for example, to educate children according to certain political or religious views, or to prepare them to serve in the armed forces of a State. Sometimes they have been carried out in conditions such as to result in the children losing their identity or being raised in a manner foreign to that of their family or their country.

    3212 To a large extent Article 78 takes these aspects into account. While it permits the evacuation of children abroad, it lays down precise conditions which the Parties to the conflict must observe in such situations. In fact, the evacuation of children itself involves serious dangers. In this connection it is useful to recall a study carried out by UNESCO, (2) quoted by the International Union for Child Welfare in its memorandum presented to the second session of the Conference of Government Experts in 1972: (3)

    "When we study the nature of the psychological suffering of the child who is a victim of war, we discover that it is not the fact of war itself -- such as bombings, military operations -- which have affected him emotionally; his sense of adventure, his interest for destruction and movement can accommodate itself to the worst dangers, and he is not conscious of his peril if he keeps near him his protector who, in his child's heart, incarnates security and if, at the same time, he can clasp in his arms some familiar object.
    It is the repercussion of events on the family affective ties and the separation with his customary framework of life which affect the child, and more than anything the abrupt separation from his mother."

    3213 It follows from the above that everything possible should be done to avoid separating children (especially young children) from their natural protectors. However, it is clear that in time of war the mother and father are often assigned to military or civilian tasks and are therefore not able to take care of the well-being and upbringing of their child. Frequently the child will be entrusted to the grandparents or other more distant relatives, or otherwise he may be left to reception centres.

    [p.910] 3214 On the basis of its experience, in 1972 the ICRC submitted an article to the Government Experts which merely imposed an obligation upon States receiving children to register them and to supply information to the Central Tracing Agency; in the ICRC's view it was primarily a matter of ensuring and facilitating the children's return to their country and their family. The ICRC modified the draft on the basis of the discussions which took place in 1972. (4)

    3215 As we will see below, the Diplomatic Conference introduced important clarifications and additions to the ICRC draft. The latter had also introduced provisions relating to the evacuation of children in Article 32 of draft Protocol II, but the Conference only partially adopted these, incorporating them into Article 4 ' (Fundamental guarantees), ' paragraph 3, of that Protocol. In this connection it should be noted that the evacuation of children under difficult conditions has mainly occurred in cases of internal armed conflict.

    3216 Thus, for example, at the end of the Spanish Civil War in the years 1938-1939 orphaned Basque children or those separated from their families were evacuated to the USSR, which led to dramatic situations from the personal and family point of view. When they became adults, many of these children wished to return to Spain, and did so during the 1960s. However, many of them did not feel at home in Spain and demanded to be allowed to return to the USSR, which required lengthy negotiations. In fact these people did not feel at home either in Spain or the USSR.

    [p.911] 3217 Another example is the case of some 30,000 Greek children who were moved to various foreign countries at the end of the Greek Civil War of 1945-1946. In 1948 and 1949 the United Nations General Assembly requested the International Committee of the Red Cross and the League of Red Cross Societies to take care of the repatriation of these children. This was a long and difficult process, but finally, during the 1950s, several thousand children were returned to their country.

    3218 These examples, although relating to internal conflicts, clearly show that when children are evacuated to other countries, all the necessary measures should be taken at the same time to permit their prompt return once the conditions which necessitated the evacuation have disappeared.

    Paragraph 1

    3219 Like several other provisions in this Section, this article contains its own definition of the persons to whom it applies. Thus it covers children -- with no further clarification -- except that children who are nationals of the Party to the conflict carrying out the evacuation are not included.

    3220 Thus a Party to the conflict may arrange for the evacuation of its own children to an allied or neutral country without having to act in accordance with the provisions of this article; the same applies to evacuations of children arranged for by a Party to the conflict within its own territory. In the past such evacuations have been frequently undertaken for various different reasons: to remove children from the dangers of war, to provide adequate food and care for them, to ensure their upbringing and education in satisfactory conditions etc.

    3221 Having said this, there is no doubt that when Parties to the conflict evacuate children in cases other than those provided for in this article it is entirely in their interest to act in accordance with the provisions of paragraphs 2 and 3, even if they are under no legal obligation to do so. In short, these are sound administrative measures. In any case, they are laid down in broad terms in Article 24 of the fourth Convention.

    3222 Let us now look at the conditions set out in the article under consideration here. As nationals of the State arranging for the evacuation are not covered, the provision is mainly concerned with children of enemy nationality, of refugees or of stateless persons, and of nationals of States without diplomatic representation. Thus in most cases these are protected persons within the meaning of the fourth Convention. There may also be child refugees who are not protected persons because they have acquired that status after the outbreak of hostilities, or children who are nationals of States not bound by the fourth Convention, but such cases are relatively rare. The majority of children concerned therefore fall under the provisions of the fourth Convention. Thus it is prohibited to evacuate them to the territory of a Power that is not Party to the Convention, and if they are taken to a Power which is Party to the Convention, it is necessary to ensure that it is able and willing to apply the Convention (Article 45 , fourth Convention). The Power arranging for the evacuation remains responsible for the treatment given the persons who are evacuated. Protected persons, to the same extent as nationals [p.912] of the State concerned, are free to move when they find themselves in a particularly exposed area (Article 39 , sub-paragraph 4).

    3223 In occupied territories, Article 49 prohibits forcible transfers from occupied territory. The same does not apply for voluntary transfers. Evacuations within occupied territory are possible only if the security of the population or military necessity so requires. Only when it is impossible for material reasons to avoid it, is a temporary transfer of a population outside occupied territory legitimate and this population should be returned to its own country as soon as hostilities have ceased in that area. In this case too, children will enjoy the guarantees accorded protected persons. In this way families will be kept together.

    3224 Finally, let us recall the terms of Article 49 , paragraph 6, of the fourth Convention, which provide that an Occupying Power cannot transfer parts of its own population into the territory it occupies.

    3225 The position is rather complicated and we will therefore attempt to summarize it as follows:

    1) Children who are nationals of the Party to the conflict arranging for the evacuation: that Party is free to make such arrangements as it sees fit, though in the interests of the children it is, of course, highly desirable to apply the rules laid down in the Protocol.
    2) Children who are not nationals of the Power arranging for the evacuation and who are protected persons under the fourth Convention: the rules of the Convention and the Protocol apply concurrently.
    3) Children who are neither nationals of the Power arranging for the evacuation, nor protected persons under the fourth Convention: (5) the rules laid down in the Protocol apply.

    3226 The reasons given which may justify an evacuation are exhaustive: health, medical treatment or safety. As we said above, the Protocol tends to restrict the evacuation of children, no doubt in the light of negative experiences, some of which were described above. In general an interruption of family and affective ties can have dire effects on the development of children; a balance must be found between opposing needs.

    3227 For occupied territories safety was not retained as a condition for evacuation. On this the Rapporteur stated:

    "[...] the limitation to evacuation for compelling reasons of health or medical treatment where the evacuation is to be from occupied territory reflects a deep-seated concern among many representatives in the Committee that the dangers of Occupying Powers abusing their discretion are greater than the dangers of prohibiting evacuation for reasons of safety". (6)

    [p.913] 3228 It may happen that evacuation in itself presents serious danger. In such circumstances the rule contained in Article 127 , paragraph 4, of the fourth Convention may give useful guidance. According to that provision, if the combat zone draws close to a place of internment, internees shall not be transferred unless they are exposed to greater risks by remaining on the spot than by being transferred.

    3229 In such circumstances the responsible authorities could also consider establishing demilitarized zones or safety zones or otherwise they could declare inhabited areas to be "non-defended localities". Obviously children should be amongst the first persons to be allowed to enter such protected areas.

    3230 The adjective "temporary" which is used here is very important; it clearly shows that anyone who makes a decision to evacuate children, must at the same time hold out the prospect of their return and of restoring relations with their family in due course.

    3231 As regards the authority which decides upon and undertakes the evacuation, the article is not very clear. In its own national territory the government and its organs with responsibility for these questions may give the children the possibility to leave for an allied or neutral country. For voluntary transfers from occupied territory, the initiative most often comes from local authorities, although they can only act with the consent and support of the Occupying Power, on the basis of an offer made by a neutral or allied country to receive children for a reasonably long period. In all these cases the Occupying Power, according to the terms of the article, is the Power arranging for the evacuation.

    3232 Both in the State's own national territory and in occupied territories the written consent of parents or guardians, or those who are responsible for the care of the children, is required. It might have been thought that the consent of the Power whose nationals are being evacuated would have been sufficient, but it was argued that some governments are "puppet" governments and that it was therefore necessary to obtain the consent of the family. In general the Diplomatic Conference showed great restraint in this field, especially in the case of occupied territories.

    3233 In the absence of parents or guardians, consent is required of the persons who by law or custom are primarily responsible for the care of the children; this wording takes into account that in some parts of the world the family has a broader definition than in others.

    3234 Supervision by the Protecting Power is provided for here: this, of course, refers to the Protecting Power looking after the interests of the belligerent Power of which the children are nationals or, in the case of refugees, the interests of the receiving State; in the absence of a Protecting Power for such refugees, support of the United Nations High Commissioner for Refugees or its representatives is an alternative.

    3235 Lastly, if the children to be evacuated are not protected persons under the fourth Convention, or in the absence of a Protecting Power, a humanitarian organization such as the ICRC may deal with the evacuation. The National Red Cross and Red Crescent Societies whose humanitarian activities are laid down in Article 81 ' (Activities of the Red Cross and other humanitarian organizations) ' can also lend their assistance to such evacuations.

    [p.914] 3236 The paragraph ends with a sentence inviting Parties to the conflict to take all feasible precautions to avoid endangering the evacuation. The French text is less precise, in that it refers to "jeopardizing the evacuation" ("compromettre l'évacuation") it is not clear what acts could jeopardize the evacuation. We understand this provision to mean that Parties to the conflict which have organized or accepted the evacuation should, of course, desist from undertaking military operations which would endanger the children being evacuated. Obviously signals can be used to indicate the routes and time of transport by air, sea or land used by the evacuation convoys. It is not impossible for Parties to the conflict to require specific routes to be used and others not to be used. The Protecting Powers can certainly play a useful role in this field.

    3237 Finally, it should be noted that the article does not contain a definition of "children". On this point we refer to what was said above on Article 77 ' (Protection of children); ' in general it may be considered that any human being under fifteen years of age should be considered as a child for the purposes of the Conventions and the Protocol. This does not mean that in certain cases people over the age of fifteen may not also be considered to be children.

    Paragraph 2

    3238 This paragraph lays down obligations but does not indicate to whom they apply. In the first place, it is the duty of the State receiving the children to continue the education of children in accordance with the wishes of their parents. However, the Party to the conflict arranging for the evacuation is also responsible for the fate of the evacuated children and should ensure that the requirements laid down are fulfilled. Any measures aimed at converting children to a religion other than that of their family, even if such conversion is voluntary, are of course prohibited. Similarly, indoctrination must be prohibited.

    3239 Having said this, it will not always be easy to find a sufficient number of people who are able to ensure the education of children in the same conditions they enjoyed up to that time. Language problems may arise, as well as problems of custom and understanding; nevertheless, all possible measures should be taken.

    3240 In conclusion, it should be noted that this paragraph lays down duties for receiving States which are often neutral countries and not Parties to the conflict; this is an expression of the solidarity uniting the States bound by the Conventions and their additional Protocol, a solidarity which is found moreover in other provisions, particularly in Article 1 ' (General principles and scope of application), ' paragraph 1, of the Protocol.

    Paragraph 3

    3241 The text is quite clear and requires very little comment. The Central Tracing Agency is that which is mentioned in Article 123 of the Third Convention and Article 140 of the fourth Convention as Central Information Agency. The ICRC had established, without a clear legal basis, such an agency in 1914 during the First World War. A new Agency was founded in 1939 on the basis of Article 79 of [p.915] the Convention of 27 July 1929 Relative to the Treatment of Prisoners of War. That Agency was also concerned with the fate of civilians. Since the end of the Second World War it has remained active and was made available to Parties to conflicts which have taken place since then. This Agency still deals with enquiries about members of the armed forces or civilians registered during the Second World War.

    3242 The information to be shown on every child's card is very full and it will not always be possible to give all of it. Moreover, there are cases where providing certain information could be harmful to the person it concerns and this is why an exception is made whenever it involves risk of harm to the child.

    3243 When this paragraph was adopted in plenary, a discussion arose regarding the mother's maiden name: some delegates argued that in their countries such a concept was unknown, as a married woman retained her surname. For this reason the French text uses the word "éventuellement", though this is omitted in the English text.

    3244 Some questions arose with regard to the meaning to be given to the word "family" in sub-paragraph (j). The Rapporteur replied that this word meant either the father or mother, or any surviving member of the family. (7)

    ' C.P./J.P. '


    NOTES

    (1) [(1) p.908] By which we mean here and below, "neutral or other State not Party to the conflict"; on this expression, see commentary Art. 2, sub-para. (c), supra, p. 61;

    (2) [(2) p.909] Th. Brosse, ' War-Handicapped Children, '
    UNESCO, Paris, 1950;

    (3) [(3) p.909] CE 1972, Report, Vol. II, pp. 85-91 (CE/COM III/PC 117);

    (4) [(4) p.910] "' Article 69 - Evacuation of children '
    1. If their condition necessitates their evacuation for reasons of health, in particular to obtain medical treatment or to hasten convalescence, children may be transferred to a foreign country. Where they have not been separated by circumstances from their parents or legal guardians, the latters' consent must be obtained. In the case of evacuation to a foreign country, the operation shall be supervised or directed by the Protecting Power, in agreement with the Parties to the conflict concerned.
    2. In the case of evacuation to a foreign country, the Party to the conflict carrying out the evacuation and the authorities of the receiving country shall arrange, if possible, for the children s education to be continued in the language and culture of the country to which they belong.
    3. So as to facilitate the return, to their families and country, of children cared for or received abroad, the authorities of the receiving country shall establish for each child a card, with photographs, which they shall communicate to the Central Tracing Agency. Each card shall bear, whenever possible, the following minimum information:
    (a) surname of the child;
    (b) the child's first name;
    (c) the place and date of birth (failing this, the approximate age);
    (d) the father's first name;
    (e) the mother's first name and her maiden name;
    (f) the child's nationality;
    (g) the address of the child's family;
    (h) the date on which and the place where the child was found;
    (i) the date on which and the place from where the child left his country;
    (j) the child's blood group;
    (k) any distinguishing features;
    (l) the child's present address.";

    (5) [(5) p.912] Children who are nationals of allied countries which have normal diplomatic relations with the Power arranging for the evacuation and whose diplomatic representatives can accomplish their diplomatic mission in favour of their compatriots without hindrance are not protected persons; the same applies, except in occupied territory, to children who are nationals of neutral or other States not Parties to the conflict;

    (6) [(6) p.912] O.R. XV p. 466, CDDH/407/Rev.1, para. 66;

    (7) [(7) p.915] O.R. VI, p. 466, CDDH/SR.43, paras. 66-67. See also commentary Art. 32, supra, pp. 346-347 and Art. 77, para. 4, supra, p. 903;