When the United States ordered retaliation in response to Syria’s use of chemical weapons in Idlib, President Donald Trump spoke of “innocent children, innocent babies, little babies” and of breaches of “international norms” that had “crossed many, many lines, beyond a red line.”
But this is not the only recent example of moral lines being crossed in Syria and elsewhere. Less well-publicized recent atrocities include the deliberate bombing of children in their schools – as happened in the same Syrian province on October 26th last year – the abuse and trafficking of children, the militarization of schools and the use of child militias. Not since 1945 have so many children been subjected to such widespread violations of their human rights in conflict zones. In Yemen, schools have become instruments of war and children used as human shields. In Iraq, girls are being systematically raped. Boko Haram has resorted to using children as suicide bombers whilst the Colombian rebel group, the Farc, has used child soldiers. And across the Middle East, Africa and Asia, thousands of girls are being abducted and sold as slaves.
In 1996, Graça Machel’s ground-breaking report on the “Impact of Armed Conflict on Children” led to the creation of a United Nations Special Representative and an annual report to the Security Council that is intended to “name and shame” states and non-state actors responsible for grave violations against children in war zones. The role of the Special Representative (presently held by Virginia Gamba) is valuable, and other positive steps continue to be taken. For example, in November 2016 the Chief Prosecutor at the International Criminal Court, Fatou Bensouda, launched a “Policy on Children” to assist her office with crimes against children. But 20 years on from the Machel report, and in light of the continuing, if not worsening, general failure to give adequate protect children in conflict, it is questionable whether existing international law norms and institutions provide sufficient protection and accountability. Consideration needs to be given to whether the law can do more – practically and effectively – when moral lines are crossed.
That is the purpose behind the new Inquiry on Protecting Children in Conflict which was announced at the UN on April 19. Sponsored by Save the Children and Theirworld it will consider the adequacy and effectiveness of existing international laws and enforcement mechanisms, and whether steps may be taken to strengthen the current framework for the protection of children and to hold the perpetrators of atrocities to account. The work will be done, first, through the legal panel, led by Shaheed Fatima Q.C., and then through the advisory group, led by Gordon Brown and assembled by Save the Children and Theirworld.
The work of the legal panel will include a report:
- Describing, by reference to conventional and customary international law: (a) the content of the applicable norms in international humanitarian law, international human rights law and international criminal law ordered by reference to the key areas of concern: e.g. child soldiers, child civilians and sexual violence against children. And (b) the procedural mechanisms by which these norms may be enforced or otherwise implemented and monitored, such as: through courts (e.g. the International Criminal Court, regional courts such as the European Court of Human Rights, domestic courts), ad hoc tribunals and UN treaty bodies/reporting structures. A clear description is particularly important in this context not only because of the multiplicity of potentially applicable, and potentially conflicting, legal norms but also because there are difficult threshold issues (e.g. the proper legal characterization of a conflict and the definition of “child”). It is hoped that a clear description will also serve a useful function as a source by reference to which stakeholders may be trained.
- Analyzing the adequacy of these norms and procedural mechanisms, especially in light of the nature of many recent conflicts (i.e. internationalized non-international armed conflicts involving non-state entities and actors), the principle of special respect and protection for children which is common to international humanitarian law and international human rights law and the development of the “best interests of the child” principle, codified in Article 3 of the UN Convention on the Rights of the Child.
- Making recommendations and proposals for reform regarding the norms and procedural mechanisms. Whether such recommendations/proposals are made, and, if so, their content will depend on the legal panel’s analytical conclusions and, thereafter, on the advisory group’s multi-faceted review, including of their political viability. We cannot, whilst that work is still being done by the legal panel, predict what those might be. That is an important point: this Inquiry has not been convened with a specific outcome in mind. It has been convened for the reason set out above: to consider whether the rule of law can do more to help raise the cries of children above the clash of arms.