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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
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
"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
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
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
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
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
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
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
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
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
[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
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.
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.
3241 The text is quite clear and requires very little comment. The Central Tracing Agency is that which is mentioned in Article 123
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. '
(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,
(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
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
(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;