Protection of internally displaced children in Europe
Consultation on Europe's contribution to safeguarding children's rights in situation of armed conflict, Florence, Italy, 10-12 June 1996 – Statement by Françoise Krill, Legal Adviser, International Committee of the Red Cross
It can never be said often enough: children are vulnerable people who need our protection, but they are particularly vulnerable when they have experienced, or are experiencing, the trauma of armed conflict.
1. Children affected by war
War causes such suffering that children often have no choice but to flee. However, before fleeing their homes, with or without their parents, to seek refuge elsewhere in their country, they have often been the silent witnesses of the most terrible atrocities, sometimes seeing members of their own families tortured or killed. Such experiences unquestionably leave scars that will never go away. Most of the time, government services have quickly broken down or been wiped out, leaving these children with no one to feed them and not even the most rudimentary medical care, placing in great jeopardy their health and development, to say nothing of the schooling so vital for their future. Quite often they may also have been exposed to bombing and shelling, in constant fear for their lives, or have been denied food in order to put pressure on them.
Escape, when possible, becomes their only hope. But fleeing the fighting does not necessarily mean being out of danger's reach. They may step on a mine, one of those indiscriminate weapons which, even when it does not kill, inflicts atrocious wounds that leave its innocent victim maimed for life. And in the panicked chaos of flight, children are often separated from their parents. Deprived of their natural protectors, they become easy prey for recruiters of all kinds. Forced recruitment of children is an alarming and growing trend. Wea pons wielded by children pose a deadly threat not only to those children but also to those who become their targets, for children naturally lack discernment and if they have already seen atrocities committed, this will have further impaired the development of their conscience. And as if all these tribulations were not enough, they are liable to be arrested, despite their young age, on suspicion of aiding the enemy.
To complete the picture, mention also has to be made of forced displacement organized by one party to a conflict in order to empty a rebel area of its civilian population, or to allow large-scale military operations, or even to engage in " ethnic cleansing " .
2. Protection under international humanitarian law
It should be remembered that international humanitarian law has emerged from the experience acquired in the many armed conflicts that have taken place since the last century. Thus, the 1949 Geneva Conventions (to which 186 States are party today) and their Additional Protocols (to which, respectively 144 and 136 States are party) set out detailed measures to meet the specific needs created by war. The main needs of children have been described above. It is impossible to overstress the importance of international humanitarian law as offering the best possible protection for all the victims of war: it protects the civilian population as a whole - without favouring one category over another - and contains many provisions protecting internally displaced persons, including, obviously, children as well. This does not mean, however, that humanitarian law pays no heed to the specific needs of different categories. Indeed, children affected by armed conflict, whether they are displaced or not, enjoy special protection which is in addition to the general protection offered to the civilian population as a whole.
As it is our intention to deal here with protection for internally displaced children, the supposition is that these are children who have fled within a country affected by internal conflict and that the relevant provisions of international humanitarian law apply. Thus, the protection provided in the event of international armed conflict, a protection which is evidently much more elaborate since it is provided by all four Geneva Conventions plus Additional Protocol I, will not be taken into consideration here.
What then is the protection available to internally displaced children?
2.1. General protection
First of all, internally displaced children are protected in a general way by international humanitarian law as persons not taking part in hostilities. Article 3 common to the four Geneva Conventions is the cornerstone of this protection. Although very short, it contains essential principles.
After pointing out that persons taking no active part in the hostilities must be treated humanely in all circumstances, it prohibits the following acts: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; the taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the fundamental judicial guarantees. This article also states that the wounded and sick are to be collected and cared for.
These fundamental guarantees are repeated in Protocol II which, in addition to the guarantees given in common Article 3, prohibits collective punishments, acts of terrorism, and pillage (Article 4, paras 1 and 2). In addition, the prohibition of outrages upon personal dignity explicitly includes rape, enforced prostitution and any form of indecent assault. Persons deprived of liberty also enjoy additional guarantees (Article 5). Article 6 specifies judicial guarantees, while Articles 7 to 12 stipulate that the wounded and sick, as well as those caring for them, must be respected and protected.
Afterwards, Protocol II stipulates that the civilian population is to be protected from the effects of hostilities (Part IV): " The civilian population... shall enjoy general protection against the dangers arising from military operations " (Article 13). In particular, it must not be the object of attack. Also prohibited are acts or threats of violence intended to spread terror among the civilian population.
In addition, the use of starvation of civilians as a method of combat is prohibited (Article 14). It is also prohibited to attack, destroy or remove objects indispensable to the survival of the civilian population or render them unusable (such as foodstuffs, agricultural areas, crops, livestock, drinking water installations and supplies and irrigation works). Works and installations containing dangerous forces - dams, dykes and nuclear power stations - must not be attacked if such attacks may cause severe losses among the civilian population (Article 15). Cultural objects and places of worship are likewise protected (Article 16).
Protocol II also prohibits forced movement of civilians. Such displacements may be carried out only if required for the security of the civilians involved or for imperative military reasons. When such is the case, all possible measures must be taken in order that the civilian population may be received under satis factory conditions of shelter, hygiene, health, safety and nutrition (Article 17). Although not expressly stipulated, it is understood that such movements may be only temporary.
Finally, whenever the civilian population is deprived of supplies essential for its survival (such as foodstuffs and medical supplies), relief actions " of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction " are to be undertaken with the consent of the State concerned.
2.2. Special protection
As particularly vulnerable persons, children who do not take part in hostilities also enjoy additional special protection.
There are no less than 25 provisions specifically protecting children in armed conflict. We will limit ourselves here to those provisions applying to internally displaced children in a country affected by internal conflict.
The principle underlying this protection is to be found in Additional Protocol II, Article 4 (3) ( Fundamental guarantees ), which comprises a paragraph devoted exclusively to children. It stipulates that " children shall be provided with the care and aid they require " .
Protocol II contains other provisions elaborating on that principle. It stipulates that:
*children shall receive an education and family unity shall be preserved, (Art. 4, paras 3(a) and (b));
*they shall be temporarily evacuated, according to clearly defined procedures, from the area in which hostilities are taking place to a safer area within the country (Art. 4, para. 3(e));
*the death penalty shall not be pronounced on persons who were under th e age of 18 years at the time of the offence (Art. 6, para. 4);
*the recruitment of children who have not attained the age of fifteen years is totally prohibited (Art. 4, para. 3(c)).
This latter prohibition is truly absolute and covers direct or indirect participation in hostilities, i.e. by gathering information, transmitting orders, transporting munitions or foodstuffs, or committing acts of sabotage. The obligation imposed here on States party is stricter than that applicable in situations of international armed conflict.
Finally, Article 4, para. 3(d) of Protocol II stipulates that children who, despite the above-mentioned prohibition, nevertheless take part in hostilities and are captured shall remain entitled to the special protection provided for in that same article.
Despite the efforts of a number of States to have the age below which children should not participate in hostilities raised from fifteen to eighteen years, Article 38 of the Convention on the Rights of the Child does not constitute an advance, since it merely repeats the wording of Article 77, para. 2, of Protocol I. It thus prohibits the direct participation in hostilities of children under fifteen years of age. It is even weaker than the existing law in that international humanitarian law applicable to non-international armed conflicts prohibits both the direct and the indirect participation of children in hostilities. However, paragraph 1 of Article 38 contains a reference to the rules of international humanitarian law relevant to the protection of the child. As a result of this clause and of the lex specialis character of international humanitarian law, Article 4, para. 3(c) of Protocol II will apply in doubtful cases.
3. ICRC action on behalf of children
The protection of children in times of armed conflict is a matter of constant concern for the ICRC. In its work to protect and assist the victims of armed conflict, it does its utmost to optimize conditions for children caught in the midst of war, and to enable them as far as possible to remain at home. In this way, the ICRC plays a major part in helping to prevent unnecessary population displacements. There is no doubt that humanitarian action by the ICRC and other humanitarian organizations serves to curb violence and avert further deterioration.
In many cases the ICRC's general work to assist the civilian population is also of direct benefit to internally displaced children. This work is concerned in particular with:
*protection of the civilian population; respect for international humanitarian law and humanitarian principles;
*visits to persons deprived of their freedom;
*emergency medical assistance and rehabilitation (war surgery, orthopaedics, support for medical facilities, etc.);
*assistance in public health programmes, particularly as regards the supply of drinking water;
*emergency food aid and other assistance to cover basic needs (for example, material to make shelters, hygiene products, distributions of seed, agricultural tools and fishing tackle and the vaccination of livestock);
*activities to restore contact among family members separated by war or disturbances, or to facilitate their reunification.
The ICRC is today to bringing protection and assistance to a large number of civilians, many of them displaced persons and children. They include several hundreds of thousands of people in the former Yugoslavia and Chechnya and over a million in Rwanda.
3.1. Former Yugoslavia
ICRC activities specifically to assist children are largely carried out via its Central Tracing Agency. Between 1992 and the end of 1995, the ICRC registered 1,169 unaccompanied minors in the former Yugoslavia. Those children are visited regularly and most are in touch with their families through the ICRC's family-message programme. Some 18 million such messages have been forwarded since the conflict began. Over the same period, the ICRC has been able to reunite 42 unaccompanied minors with their parents.
In the area of relief, certain ICRC operations have above all benefited children. This was the case in Banja Luka and Tuzla in 1993 and Sarajevo in 1994, when the ICRC worked together with local Red Cross organizations to distribute sandwiches and a glass of milk once a day to school children aged 7 to 14. In 1994, the ICRC substantially reduced its own distributions and delegated that type of activity to National Red Cross and Red Crescent Societies. Since then, the German Red Cross has been distributing one light meal a day to 45,000 school children in Sarajevo and 13,000 school children in Mostar. And last winter, the Netherlands Red Cross distributed 24,000 hygiene parcels for babies in the Banja Luka region.
3.2. Russian Federation (northern Caucasus and Republic of Chechnya)
ICRC programmes to assist large families and families in the care of the mother alone are by definition programmes that benefit children above all. There are also other programmes especially for children:
- In the Republic of Daghestan , the ICRC distributed winter clothes to 20,000 displac ed children during the winter of 1995-96, and in May 1996 distributed sets of basic school material and basic sports equipment for 40,000 school children in the Khasavyurt region.
- In the Republic of Chechnya itself, the ICRC is planning to work in conjunction with a National Society to distribute sandwiches and tea to 18,000 children aged between 7 and 11, when classes resume in September 1996. There are also plans to distribute basic school material and basic sports equipment for the same number of children.
The ICRC is providing support for medical facilities both inside and outside Chechnya.
- In Daghestan , the medical support provided by the ICRC in the Khasavyurt region mostly goes to mothers alone in supporting their children. Such single-parent families make up almost all the displaced persons in that area.
- In Chechnya itself, part of the medical support provided benefits children directly. In 1995, for example, the ICRC devised rehabilitation programmes and supplied equipment and medicines to the paediatrics and obstetrics departments in six district hospitals and a hospital in Grozny. Paediatric medicines were also distributed in over 30 other medical facilities throughout the republic. These programmes for children are all being continued this year.
As part of the courses organized by the Russian Federation's Ministry of Education, the ICRC has devised a large-scale programme to promote awareness and knowledge of humanitarian law and principles among children through out the country. To put part of the programme into effect in 1996, the ICRC is currently producing 2,300,000 books destined for pupils in the fifth year (ages 11 and 12) of secondary schooling. This book will be used as teaching material in literature courses and highlights moral values such as respect for others. The rest of the programme will be spaced out over the next five years to cover adolescents and young adults from 12 to 18 years of age. One textbook, representing 20 hours of teaching for each class, will thus be produced for each level of secondary schooling.
Following the fall of Grozny, some 30,000 family messages were forwarded from February to June 1995 between relatives separated by the hostilities.
The problem of unaccompanied minors in Chechnya is in no way comparable with that in Rwanda, particularly since a child in the Caucasus, if separated from its parents, will be taken care of by its extended family, the clan.
It should be noted in this connection that the ICRC, working together with other organizations in Rwanda itself and in refugee camps in Zaire and Tanzania, has registered 91,500 unaccompanied minors; 56,000 of those cases have not yet been resolved. It has also enabled 19,500 of those children to be reunited with their families (in 4,000 cases, in Rwanda itself). Fortunately, the ICRC is not the only organization concerned about the fate of those children and seeking to care for them, as that would require more means than it has at its disposal. Other organizations such as UNICEF, UNHCR, IOM and various NGOs are also working to help them, both in the field and by active diplomacy. Yet, despite the good cooperation and all the efforts deployed, there still remain those 50,000 children who have not been able to establish contact with a member of t heir family.
4. Proposed action
As pointed out at the beginning of this analysis, children today are being wounded and killed, horrifically mutilated by mine explosions, forcibly recruited, imprisoned, deprived of all material and medical aid and separated from their loved ones. But does this sad reality mean that these children are not adequately protected by the law, and that international humanitarian law should be further developed? We sincerely believe that such is not the case; it suffices to list the very numerous provisions of existing law that protect children in wartime.
It could not be claimed, however, that all the needs of displaced children have been taken into account in existing law. For example, international humanitarian law does not expressly guarantee children the right to return in dignity and safety to their places of original residence and to have their property restored or at least receive compensation for it. And in the crucial area of personal documents for displaced children, there is no guaranteed registration of their birth or the right to be issued identity cards. It has been suggested that a sort of Code of Conduct be laid down or a declaration made in order to deal specifically with these matters and reaffirm existing rules. As the ICRC has stated on several occasions, it would be entirely prepared to support such a step.
It is impossible to exaggerate the dangers inherent in amending the existing texts. One need look no further than the adoption of Article 38 of the Convention on the Rights of the Child, an article that unfortunately represents a setback, for it falls short of the provisions of international humanitarian law in force. We therefore cannot but support the initiative to adopt an optional protocol to that Convention. This protocol would prohibit the recruitment into armed force s or other groups and the participation in hostilities of children under the age of 18 years.
The above-mentioned improvements are certainly important but, we fear, would do little to break the vicious spiral of violence in today's armed conflicts, in which flagrant contempt is shown for even the most elementary humanitarian rules and in which children are without doubt the most seriously affected.
This being the case, the international community cannot and must not remain inactive. It must give itself the means of meeting the challenge. The following are a number of suggestions that the ICRC feels would facilitate that process:
*Though a large number of States have in recent years become party to the Additional Protocols of 1977, many have not.
*The States bound by treaties of international humanitarian law or other instruments of international law do not always comply with the provisions of those agreements, or they deny their applicability. Efforts must be stepped up to induce them to meet their obligations. It is indisputable that compliance with existing law would serve to avert population displacements, and thus the displacement of a great many children.
*The States have the obligation to make known international humanitarian law to the armed forces in particular, but also to the general populace. Promoting knowledge of that law helps to prevent violations should conflict break out, and thus helps to prevent population displacements.
*Under the system in force, the States are also obliged to integrate the provisions of international humanitarian law into their domestic legislation. They are also required to pass laws and adopt regulations guaranteeing that those provisions are actually applied and implemented. To this end, the States have asked the ICRC to set up an advisory service. The ICRC should be given the means to ensure that this service, which has meanwhile been set up, can work well.
*The unfortunate fact is that humanitarian organizations such as the ICRC have not always been allowed to carry out their tasks as they would have wished. Their work should consequently be supported and encouraged by the governments.
*If humanitarian action is to be truly neutral and independent, it must be able to take place independently of all political and military considerations.
*Finally, the various organizations that endeavour to care for the victims of armed conflict, especially internally displaced children, must at all costs combine their efforts, keep each other informed and cooperate in a complementary manner, respecting each other's mandates.