Annual Day of Discussion on the Rights of the Child, 37th of the Human Rights Council
"How can we meet children’s needs and rights in humanitarian situations? Practices and lessons from different levels"
Statement by the ICRC. Speaker: Helen Durham, director of international law and policy.
What is the articulation between existing humanitarian and human rights legal frameworks for children’s rights in humanitarian situations and how are they being challenged?
It is my pleasure to be here today to mark the Annual Day on the Rights of the Child, and to speak to you about the challenges facing the legal frameworks protecting children in humanitarian situations. In my remarks today, I hope to convey to you the strong complementarity of the applicable legal frameworks with three examples, and then address the challenge of not only inadequate, but also of selective implementation of the law.
The first illustration of complementarity is of course the special priority given to the rights and protection of children across international human rights law, international humanitarian law, and refugee law. The Convention on the Rights of the Child requires that in all actions concerning children, the best interests of the child shall be a primary consideration, and that States Parties shall ensure the survival and development of the child. In complement, it is a customary rule of IHL that children caught up in situations of armed conflict are entitled to special respect and protection. These are legal obligations, and we have all seen what happens when they are not respected: children continue to be disproportionately affected by the risks inherent in humanitarian situations. Today, children make up more than half of all refugees, and in 2016 alone, more than 8,000 children were killed or maimed in conflict situations.
As a second illustration of complementarity, the Convention on the Rights of the Child crucially requires States parties to strive to ensure that no child is deprived of his or her right of access to health care services – an obligation that applies at all times, whether in peacetime, in times of conflict, or in other emergencies. Specifically in wartime, international humanitarian law aims to minimize the disruption of the health-care system when people need it most – conferring specific protection from attack, threats, and obstruction on vital components of health-care systems such as health care personnel, hospitals and other medical facilities, and medical vehicles. These are legal obligations, and again, we have seen what happens when they are not respected: violence against health-care providers continues not only to cause direct loss of life and injuries, but further, we see the long-term impact of attacks result in the collapse of entire health systems – communities already enduring armed conflict are exposed to health crises, an increase in communicable diseases, and exacerbation of child casualties. Without a functioning health system, the full realization of the right to health, including for children, as well as universal health care coverage and health-related sustainable development goals become an illusion: indeed, children living in countries affected by conflict and fragility are twice as likely to die before the age of 5.
Third, the Convention on the Rights of the Child articulates the right of the child to education. In wartime, IHL requires warring parties to facilitate access to education, protects schools as civilian objects, and requires parties to take all feasible precautions to protect such civilian objects under their control against the effects of attacks. These are some of the key legal obligations. And when they are not respected? We have seen that the High Commissioner’s report to this Council highlights that 25% of the world’s school-aged children live in countries affected by a humanitarian crisis, but these children account for 43% of all out-of-school children at primary and lower-secondary levels.
Indeed, though intricate questions of interplay can arise where legal frameworks interlink, the international legal community has developed tools of interpretation to guide the application of the law in concrete cases. The question of interplay is not the primary challenge we face – these rules are not terribly complicated. Instead, it is the question of meaningful implementation of our existing frameworks for the effective protection of children that is the greatest challenge.
The ICRC is concerned not only with inadequate implementation, but also with the selective implementation of the law, whereby children who fall into certain categories or are associated with certain labels – categories such as “migrant” or “girl,” and labels such as “violent extremist” – are often at greater risk of facing lower standards of implementation of existing legal protections.
The ICRC has observed this lowering of standards manifest in a number of ways. For example, across a number of contemporary contexts the ICRC has seen a surge in the detention of children. Particularly in the context of children associated with armed groups, we are concerned about emerging policies and practices that discriminate amongst children on the basis of their age in a manner inconsistent with international law – creating blanket categories of “good children” and “bad children” based on perceived maturity. For example, the ICRC has observed State practice including the separation of children above a certain age from their families, and decisions against facilitating return to countries of origin based on arbitrary age. Finally, we have observed that extremely young children associated with armed groups are being sentenced for their own alleged criminal wrongdoing: States are thus prosecuting children on the basis of an age of criminal responsibility that falls below international standards.
In closing, I wish to leave you with a final observation. It is not always politically palatable to lay down the letter of the law in answer to questions of national borders or national security, even in matters concerning children. Undoubtedly, the humanitarian crises we face raise emotive, difficult political issues – but the law provides a sober mechanism for navigating these difficulties, and represents the common ground on which the protection of our future generations must be built. All children – without distinction based on their age, gender, migration status, religion, and without distinction based on whether they are associated with an armed group – are entitled to the protections afforded to them by the applicable legal framework.
On this note, I call on you and your governments to implement, apply and enforce these standards in today's humanitarian crises, without distinction.