Legal inquiry calls for urgent reform to international law to protect children in war zones
- New legal inquiry calls for urgent reforms to international law to protect millions of children trapped in war zones
- Inquiry chaired by former British Prime Minister Gordon Brown and headed by leading barrister Shaheed Fatima QC
- University of Sheffield historian working as historical advisor to inquiry
- Inquiry using historian’s extensive research into the history of child welfare in wars, including what has been done in the past to protect children from wars and why those efforts were successful or not
A new legal inquiry calling for urgent reforms to international law to protect millions of children trapped in war zones is launching today (2 November 2018) with the help of a historian from the University of Sheffield.
The Inquiry on Protecting Children in Conflict, chaired by the former UK Prime Minister Gordon Brown, is calling for immediate action to tackle attacks on schools, denial of humanitarian aid, sexual violence against children and other atrocities.
Headed by a leading British barrister, Shaheed Fatima QC, the legal report is calling for urgent and far-reaching reforms of international law to tackle a culture of impunity for attacks on children in war zones.
The inquiry, which has been launched amidst growing concern over the impact of war on children, is working with Dr Emily Baughan, a historian from the University of Sheffield who has conducted extensive research into the history of child welfare in wars throughout the 20th century.
Working as a historical advisor on the report, Dr Baughan’s research has identified what has been done in the past to try to protect children from war and why those efforts were either successful or not.
Dr Baughan’s research has provided the inquiry with insights into the failed 1939 Convention for the Protection of Children in Conflict – a plan to introduce special zones that would protect children from the Second World War – something which no one else has previously examined.
The first draft of this plan was penned by a now largely forgotten relief worker – Fritzi Small – one of Save the Children’s first female aid workers who worked alone on behalf of the organisation in Ethiopia during the Italian invasion in 1935 and in the Spanish Civil War in 1936-37.
Dr Emily Baughan, who also teaches in the University of Sheffield’s Department of History, said: “The nature of conflict is once again shifting so we need to update international law to reflect these changes in order to improve the way we protect children who are surrounded by war zones.
“My research shows that previous attempts to update child protection conventions also followed from shifts in the nature of conflict, however some of these attempts were nowhere near successful. We need to learn from these mistakes, as well as from the examples of when plans were successful, to ensure we can protect the millions of children who are currently trapped by war.”
The Inquiry on Protecting Children in Conflict has highlighted recent episodes of the impact of war on children. These include:
- The bombing of a school bus in Yemen in August 2018 by the Saudi-led coalition, which killed at least 40 children
- A suicide bombing in a school in Afghanistan in August 2018 which killed around 37 students
- Recourse to starvation as a weapon of war in a host of conflicts including in Yemen where five million children are now on the brink of famine
- 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 between April and July 2018.
The inquiry’s report, which will be launched at an event in London today (2 November 2018) by Mr Brown, Shaheed Fatima QC and former UN High Commissioner for Human Rights Zeid Ra’ad al Hussein, calls for immediate reforms to international humanitarian and human rights law to end the war on children.
The proposals include giving schools the same protection as hospitals, making clear that a denial of humanitarian access will always be unlawful where it may lead to the starvation of civilians, and obliging states to take positive measures to prevent sexual violence against children.
In the longer term, the report recommends that the international community consider adopting a comprehensive legal instrument and civil accountability mechanism governing the protection of children in armed conflict.
Dr Baughan’s research has provided the report with four points on the historical context of protecting children from war. These are:
- Recognition of the need for the protection of children in war has followed shifts in the nature of conflict. During the First World War, conflict spilled beyond battle fields, directly targeting children and civilians. From the 1930s, aerial warfare destroyed communities on a truly mass scale. The 1924 League of Nations’ Declaration of the Rights of the Child, the 1939 Child Protection Committee, and the creation of UNICEF in 1946 were direct responses to the increased threat that changes in warfare presented to children.
- Advances in child protection followed from the growing recognition of the nature of childhood as a time of both physical and psychological vulnerability. From the end of the 19th century, experts saw that physical deprivation and emotional trauma not only effected the young more profoundly, but could also have lasting impacts on adult life. This recognition of the vulnerability of children not only led to efforts to protect children from conflict, but from child labour, and through the innovations of welfare states, improvements in healthcare and education across the 20th century.
- The last century has seen increased importance afforded to children as members of their communities. Consequently, the protection of children in warfare has been recognised as a crucial precursor to reconstruction. Reconstruction after the First World War emphasised the role of physically healthy children as the economic citizens of the future. Reconstruction after 1945 underlined the importance of emotional health to active citizenship and, by extension, national stability.
- Historically, the protection of children has been viewed not only as area likely to secure international co-operation, but a site for transforming international relations. Across the 20th century, leading humanitarians argued that when states unite around universally appealing causes such as childhood, they build goodwill that makes co-operation on other more controversial issues more likely.
Today, an estimated 350 million children – one child in every six – live amidst conflict, an increase of 75 per cent from the 200 million of the early 1990s. UN data shows an increase in reports of grave violations against children in war zones, including the killing and maiming of children, attacks on schools and hospitals, abduction, and denial of humanitarian assistance.
The inquiry’s 500-page report analyses legal provisions and institutions, including the Geneva Conventions, the Convention on the Rights of the Child and the Rome Statute, which set up the International Criminal Court. It concludes that the international system of rules designed to uphold the rights of civilians in war is failing to protect children living in conflict-affected countries.
The final report of the inquiry, Protecting Children in Armed Conflict, was written by a legal panel led by Shaheed Fatima QC (Barrister, Blackstone Chambers, London), and benefited from the input of an expert advisory group of individuals and organisations.
The report has been published by Hart / Bloomsbury and is available to purchase here:
The legal report of the Inquiry sets out far-reaching reform proposals. In addition to calling for a drive to increase the number of states ratifying key instruments like the Rome Statute and the Additional Protocols to the Geneva Conventions, it makes detailed recommendations aimed at clarifying or strengthening the architecture for protecting children.
These include the following proposals:
- International humanitarian law relating to the denial of humanitarian access and assistance should be clarified and if necessary developed to provide that denying access will always be unlawful in certain circumstances, including where it may lead to the starvation of civilians, where it violates the prohibition on collective punishment and where it breaches the obligation to provide “care and aid” for children. Parties to conflict should also have an obligation to agree specific measures such as temporary ceasefires and humanitarian pauses to enable humanitarian access to children in conflict areas.
- International humanitarian law should be developed so as to establish a specific prohibition on targeting schools. This would give schools the same special and express protection as hospitals. International human rights law should be developed to address the context of armed conflict in relation to attacks on schools and hospitals (e.g. to clarify when and in what way there is an obligation to repair and maintain civilian facilities).
- International humanitarian law should be revised to make clear that the prohibition against the recruitment of children under 15 in armed forces or groups applies to voluntary enlistment – as well as conscription – in line with the higher standards of conduct embodied in international criminal law.
- International humanitarian law on the conduct of hostilities (including on killing and ill-treatment) could be developed so as to require the express consideration of children. The interests of children could be specified as an express factor that needs to be given weight and considered in evaluating whether an attack is proportionate, for instance in military manuals. Similarly, the requirement to take all feasible measures to spare the civilian population, civilians and civilian objects could involve express and heightened standards for children. In addition, the scope of application of the Convention on the Rights of the Child should be clarified so that there is no doubt regarding the nature and scope of rights that are protected in war and the nature and scope of state responsibility (for example, in relation to protecting a child’s right to life).
- International humanitarian law, international criminal law and international human rights law should be clarified by defining child “abduction” in the context of armed conflict. For example, abduction could be defined as, “unlawful removal, seizure, capture, apprehension, taking or enforced disappearance of a child either temporarily or permanently for the purpose of any form of exploitation of the child or a prohibited act” (this is an amended version of the existing definition in the UN’s Monitoring and Reporting Mechanism field manual).
- The “care and aid” provisions regarding children in international humanitarian law should be used to encourage states to take positive measures to prevent sexual violence against children in armed conflict, and to provide child victims of such violence with the care and aid they require in order to recover and be rehabilitated. Consideration should also be given to whether international criminal law needs to be developed so as to expressly prohibit forced marriage.
The inquiry warns that, even where there are existing substantive protections for children in conflict, lack of compliance and lack of enforcement is undermining accountability.
The report therefore calls for greater efforts to secure more widespread ratification of existing accountability mechanisms, including the Optional Protocol to the Convention on the Rights of the Child and the Rome Statute of the International Criminal Court, and it calls for greater domestic implementation of international law.
A single instrument and adjudicative body
The report also suggests a single, new international instrument aimed at consolidating and clarifying existing provisions in humanitarian law and human rights law relating to children in armed conflict with the express purpose of strengthening protection.
“Having one instrument, instead of the multiple, existing instruments, would make existing international humanitarian law and human rights law clearer and simpler,” Ms. Fatima commented. “This, in turn, will make it easier to disseminate and explain the law, especially to non-state armed groups, and to enforce it.”
Ms. Fatima argues that a single instrument protecting children in armed conflict would also improve accountability, by giving one international, civil body the jurisdiction to receive complaints regarding violations of the norms covered. There is no such body at present. One possibility would be for a strengthened Committee on the Rights of the Child, the body that oversees the Convention on the Rights of the Child, to take on that role.
The report has been endorsed by eminent international lawyers, academics, activists and military advisors. Kevin Watkins, CEO of Save the Children UK, said: “Beyond the razor sharp legal analysis, this book is a call to action for governments, international agencies, the UN and non-government organisations. It should be mandatory reading for anyone concerned to see the rule of international law applied to the benefit of the millions of children living in war zones.”
Helle Thorning-Schmidt, CEO of Save the Children International, said: “In war zones around the world, grave violations of children's rights continue to be carried out with impunity. This is an important and timely contribution to the debate on how to hold perpetrators to account, and uphold the rules that are designed to keep children safe.”
The Director to the inquiry is Andrew Hilland.
The members of the Legal Panel and Contributors to the final report are:
- Sean Aughey, Barrister, 11KBW;
- Dr Rachel Barnes, Barrister, Three Raymond Buildings;
- Jessica Boyd, Barrister, Blackstone Chambers;
- Isabel Buchanan, Barrister, Blackstone Chambers;
- Ravi Mehta, Barrister, Blackstone Chambers;
- Hanif Mussa, Barrister, Blackstone Chambers;
- Dr Federica Paddeu, John Tiley Fellow in Law at Queens’ College, Cambridge University;
- Jana Sadler-Forster, Barrister, Blackstone Chambers; and
- Kevin Smith, Barrister, Farris, Vaughan, Wills & Murphy LLP.
The Consultants to the Legal Panel are:
- Professor Dame Carolyn Hamilton
- Professor Harold Hongju Koh
The expert advisory group included:
- Professor Philip Alston (New York University School of Law);
- Professor Diane Marie Amann (University of Georgia School of Law);
- Dr Emily Baughan (University of Sheffield);
- Professor Christine Chinkin (London School of Economics and Political Science);
- Conflict Dynamics International;
- General Roméo Dallaire and the Roméo Dallaire Child Soldiers Initiative;
- Elisabeth Decrey Warner (co-founder and Honorary President, Geneva Call);
- The Global Coalition to Protect Education from Attack (GCPEA);
- The Rt. Hon. the Lord Hague of Richmond;
- Kevin Hyland OBE (the UK’s Independent Anti-Slavery Commissioner);
- Kate O’Regan (Director, Bonavero Institute of Human Rights, University of Oxford);
- Navi Pillay (UN High Commissioner for Human Rights 2008–2014);
- Save the Children International and Helle Thorning-Schmidt (CEO, Save the Children International and former Prime Minister of Denmark); and
- Bede Sheppard (Deputy Director, Children’s Rights, Human Rights Watch).
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