[This essay by Prime Minister Gordon Brown and Shaheed Fatima QC is the opening of an online mini forum that Just Security is hosting on their new book, Protecting Children in Armed Conflict. Other participants in the mini forum include Diane Marie Amann, Sarah Knuckey, Alex Moorehead, and Alex Whiting.]
In the year and a half since we wrote for Just Security the position of children in conflict has continued to make headline news. As we write, five million children are on the brink of famine in Yemen because of the recourse to starvation as a weapon of war. In August, 37 students were killed by the suicide bombing in Afghanistan and 40 school children were killed by the bombing of a school bus in Yemen by the Saudi-led coalition. Earlier this year there were reports of the systematic abduction and gang rape of women and girls as young as eight years old by government forces and their allied militias in South Sudan. These incidents are illustrations of a terrible, general trend: the escalating impact of war on children. Today, an estimated 350 million children – one child in every six – live in conflict, an increase of 75% from the 200 million of the early 1990s.
The continuing failure to protect children in conflict challenges us to consider what more we can do. Multi-disciplinary action is necessary: enhancing political accountability; supporting the physical, psychological and emotional well-being of affected children as well as their educational and other needs. The law is one of those strands: consideration needs to be given to whether existing international legal norms and institutions provide sufficient protection and accountability. The Inquiry on Protecting Children in Conflict has sought to respond to that issue. It was in April 2017, with the support of the charities Save the Children and Theirworld, that the Inquiry was commissioned and a legal panel was assembled to consider whether there was room for improvement in the substantive provisions of international law and existing accountability mechanisms.
After thousands of hours of pro bono research, drafting and consultation the work of the legal panel has now concluded: the report for the Inquiry has been published by Hart/Bloomsbury as a book, Protecting Children in Armed Conflict. In this post, we make two key points regarding the book.
First, the book reviews the position of children in armed conflict by reference to the “six grave violations” as identified by the UN Security Council: killing and maiming; recruitment and use; sexual violence; child abduction; attacks on schools and hospitals and denial of humanitarian access. The book describes both the relevant substantive legal framework (as it exists in international humanitarian law, international criminal law, international human rights law) and the related adjudicative accountability mechanisms. As such – a descriptive “one-stop-shop” – we hope that it will be a useful resource for all those working on these issues. This is particularly so since one of the key difficulties with the existing international humanitarian law and human rights law is its fragmented nature. By bringing together the relevant treaty provisions and rules of customary international law we hope that the book will provide a clear structure which will, in turn, assist in explaining and disseminating the law as well as facilitating more informed analysis and debate.
Second, the book analyses the substantive laws and accountability mechanisms to assess what – as a matter of the law and legal protection – is not working, or not working well enough, and whether anything can be done to fix it. The short answer is that although the substantive protections could undoubtedly be improved, there are two systemic problems. Thus:
● In relation to possible improvements to substantive protections: the book describes these as falling into three categories.
First, some of the existing legal protections are vague or ambiguous and could be clarified. For example, there are three sources for the humanitarian law rule that children warrant special protection in armed conflict (Article 77(1), Additional Protocol I; Article 4(3), Additional Protocol II and Rule 135 of the ICRC Study on Customary International Humanitarian Law). It is not clear what, if any, difference there is between the three formulations and it is not clear whether they encompass the same specific protections. There should be a standardised formulation and the protections that it includes should be clearly identified.
Second, some legal protections are under-developed or non-existent and could be strengthened or developed. For example, consideration should be given to developing international humanitarian law so as establish a specific prohibition on targeting schools, like the one that exists regarding hospitals.
Third, some treaties – Additional Protocols I and II; the three protocols to the Convention on the Rights of the Child; the Rome Statute – would benefit from more widespread ratification in order to enhance the substance of the available protections and the effectiveness of existing accountability mechanisms.
● As to the systemic problems:
First, international humanitarian law and international human rights law protections are scattered (across multiple treaties and as a matter of customary international law) and difficult to identify.
Second, there is a lack of compliance and accountability in the international law regime.
In response to these systemic problems, the book suggests that there should be a single international instrument containing the relevant humanitarian and human rights law rules protecting children and there should be an international, civil, adjudicative body responsible for monitoring the implementation of that instrument and resolving complaints made under it. International criminal law is not included in this general suggestion since the Rome Statute adequately captures criminal law and the International Criminal Court already provides an international criminal adjudicative body.
Having one instrument, instead of the multiple, existing instruments as well as customary international law, will make it easier to identify the law. In turn, this will make it easier to disseminate and explain the law, including to non-state armed groups and victims. Furthermore, the existence of an international, civil adjudicative mechanism should make it easier for victims to secure accountability on the international plane.
One potential form for this instrument would be as a fourth Optional Protocol to the Convention on the Rights of the Child. This would mean that the existence, and expertise, of the CRC Committee could be used as a foundation for the adjudicative body. The book envisages that this new instrument would be ratified by states and that non-state armed groups could pledge to uphold it (see, in this context, Geneva Call’s Deeds of Commitment).
Drafting and implementing such an instrument would raise difficult conceptual and practical legal problems but these are not insurmountable legal obstacles; the Convention on the Rights of the Child provides a precedent of a single international instrument that addresses both bodies of law in the context of children’s rights. Instead the principal obstacle regarding our proposal for one instrument is likely to be political in nature, rather than legal. However, we would not accept that political consideration of the single instrument suggestion – and the revisiting of existing legal protections – will necessarily entail a dilution of those protections (and, therefore, that such debate should be avoided). That is because the relevant, existing, substantive treaty protections are, for the most part, widely or almost universally ratified and, second, the relevant, existing, substantive rules of customary international law have been identified by the ICRC by reference to detailed evidence of ongoing state practice. In short, many of the legal norms that are engaged by the six grave violations are so fundamental that they do not rely on political acceptance for their existence.
The recommendations in the book are not time-sensitive in the sense that they must be implemented within a given period. They do not have a “use-by” date on them. However, it is scarcely necessary – given the depressing cycle of ongoing and escalating violations – to observe that the need for improvement in legal protections and accountability is urgent and essential. We hope that our collaboration on the Inquiry, a joining together of political leadership and legal expertise, will spark a debate that will lead to much needed change.
Photo credit: Sinjar, Iraq, November 16, 2015 – John Moore/Getty Images