BA LLB VI

INVOLVEMENT OF
CHILDREN IN ARMED
CONFLICT: THE NEED AND
EFFICACY IN PROTECTION
OF CHILD RIGHTS
SYNOPSIS
HUMAN RIGHTS LAW: ASSIGNMENT

AKANKSHA PATHAK
IUU16BAL021
BA LLB VI
 HUMAN RIGHTS

TITLE:

Involvement of Children in Armed Conflict: The need and efficacy in protection of Child Rights

RESEARCH QUESTION:

Are the Rights of children in reference to children in Armed Conflict, efficiently protected?

INTRODUCTION:

“There can be no keener revelation of a society’s soul than the way in which it treats its children” –
Nelson Mandela

Children’s rights are as important as the rights of any other human being and the protection of their rights
should be one of the top priorities of a nation. They must be given a safe, violence-free environment to
dwell in. This will not only protect them from being exploited but also not corrupt their mind forcing him
to succumb to all the evils around him. If he is subjected to a bad childhood, depending on how his mind
responds to it, most likely he will internalize the situation customizing his mind to believe that this is the
course of life and thus will behave with others in the same cruel manner. A person is not a criminal by
birth but is born by being amongst an immoral societal setup and negligent parenting. A child’s mind is
influenced very easily and they don’t know the difference between what is good or bad and so, it is the
work of his family and the society to stop any dysfunctional or cruel thought that comes to their mind.
Family is the primary institution in effecting the character of a child but what if the family is itself
dysfunctional or incompetent in raising an individual on moral grounds, that is why the protection of the
rights of children is important. Since children do not have the mental or physical capacity to protect
themselves, they are very easy to be exploited. Child abuse, Child labor, child marriage, prostitution,
child trafficking, kidnapping , child sex abuse, rape, forced to beg are some of the heinous offences
against children which can have a severe negative impact on both the physical and mental faculty of the
child.

The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in
armed conflict aims to protect children from recruitment and use in hostilities. The Protocol was adopted
by the General Assembly on 25 May 2000 and entered into force on 12 February 2002.

The Optional protocol is a commitment that:

 States will not recruit children under the age of 18 to send them to the battlefield.
 States will not conscript soldiers below the age of 18.
 States should take all possible measures to prevent such recruitment –including legislation to
prohibit and criminalize the recruitment of children under 18 and involve them in hostilities.
 States will demobilize anyone under 18 conscripted or used in hostilities and will provide
physical, psychological recovery services and help their social reintegration.

1
 HUMAN RIGHTS

 Armed groups distinct from the armed forces of a country should not, under any circumstances,
recruit or use in hostilities anyone under 18.

AIMS AND OBJECTIVES:

The primary aim of this research is to find out to what extent has the Children’s rights been implemented
internationally and in countries when it comes to the involvement of children in armed conflict. It also
discusses the vulnerability of children and their impressionable minds to showcase the need for complete
protection of their rights without any lacunas. This research is in reference to particularly those children
who are involved in armed conflict and the Optional Protocol which sworn to protect them from it.

To answer the question laid down, a brief history of what led to the enlightenment of the countries to
include children’s rights, what international instruments have been signed for the same and what is the
status of implementation of those instruments, have been discussed. This is a Statistical study of the
Child’s Rights also emphasizing on the shortcomings in the Protection of Child’s Rights and its
outcomes.

RESEARCH METHODOLOGY:

The methodology used for research in this paper shall be doctrinal and the main source of data to be used
in this research project shall be secondary data. The information shall be extracted through the various
articles, judgments passed, journals, internet, other research papers, judicial and extra-judicial regime etc.

LITERATURE REVIEW/SURVEY:

Since the Protection of the Rights of Children involved in Armed Conflict is a global concern, there have
been many researchers and authors who have acknowledged this issue and related issues in their works.

 A Research project by Save The Children “Invisible Wounds: The impact of six years of war on
the mental health of Syria’s children” finds widespread evidence of 'toxic stress' and mental
health issues among children inside Syria, as experts warn the psychological damage could be
irreversible.
 An Editorial by Emma Pritchard and Imti Choonara from UK “Armed Conflict and Child Mental
Health” emphasizes on the factors apart from psychological factors which impose a negative
Impact on such children. This is a Statistical study on how long term effects of war in the minds
of affected children can be minimized.
 Joanna Santa Barbara in her article “ Impact of War on Children and Imperative End to War” has
emphasized on the fact that war itself should be ended to reduce the suffering of the children.

SCOPE AND CONSTRAINTS:

2
 HUMAN RIGHTS

The scope of this research paper shall extend to only the extent of justification of the U.S. imposed
sanctions on Iran, a brief history of the same to ascertain what led to the same and its outcomes which
affected not only the economy of Iran but the economy and International relations of the entire world.
While there are a lot of materials to cover to conduct this extensive research, due to time and cost
constraints it will probably be very difficult to cover all of them. However, it will be my sincere attempt
to cover as many materials as I can, depending on their availability in the limited time period.

BIBLIOGRAPHY:

 “Psychological Effects of War and Violence on Children” by Fuuad Mohammed Freh, Journal of
Psychological Abnormalities.
 https://www.savethechildren.org.uk/what-we-do/child-protection/children-in-conflict
 http://www.childrenandwar.org/
 https://www.unicef.org/sowc96/ciwcont.htm

3
 HUMAN RIGHTS

INTRODUCTION
There is a popular saying that “Bache bhagwan ka roop hote hai” which translates to “Children
are always considered next to the pious versions of the Almighty who always strive to inculcate
happiness, joy, innocence and hope". The future of a nation is determined by the way it treats its
children and its women, after all, children imply a hope, a hope to strengthen not only the
economy of the country, but also to provide the country with skilled human resources who have
access to the basic amenities essential for the existence coupled with the tenets of the education
in India. It is the moral duty of every citizen for the country to ensure that the childhood of our
children is protected and not marred with instances like that of child labour which arise out of
poverty and helplessness.

Unbeknownst of the worldliness, whatever they speak is the unfiltered truth and the proof of
their naive and innocent minds. When they start growing up, they start getting familiar with the
wrongs of the world and it’s the parent’s responsibility to shield them from it till they are ready
to face it. A child’s mind is very impressionable and thus their thoughts can be molded into any
shape by their environment. Thus, the family plays an imperative role in giving direction to the
thought process of a child and in turn develops their personality. Family is the primary institution
in effecting the character of a child but what if the family is itself dysfunctional or incompetent
in raising an individual on moral grounds, that is why the protection of the rights of children is
important and must be ensured both by the State and also at a global level. Since children do not
have the mental or physical capacity to protect themselves, they are very easy to be exploited.
The innocence, curiosity and honesty in their raw form can only be found in children and the
family and the society has to protect them from getting exploited because of those. They need to
help them grow without destroying their innocence, feed their curiosity by telling them ‘how to
think’ and not ‘what to think’ and reward their honesty to show them that it is the best policy and
that skullduggery will get them into trouble in the long run. Child abuse, Child labor, child
marriage, prostitution, child trafficking, kidnapping , child sex abuse, rape, forced to beg,
exploitation and negative impact in the time of war are some of the heinous offences against
children which can have a severe negative impact on both the physical and mental faculty of the
child.

Essentially, the focal point of this research project is the problem being faced by children in the
times of war and their involvement in armed conflict. Although certain other factors hindering
the protection of rights of child will also be touched so as to emphasize on the exact deteriorated
condition of children all around the world.

4
 HUMAN RIGHTS

Now, moving forward to the Universal laws that are present to safeguard the interests of
children:

Universally child rights are defined by the United Nations and United Nations Convention on the
Rights of the Child (UNCRC). I.e. Child Rights are minimum entitlements and freedoms that
should be afforded to all persons below the age of 18 regardless of race, colour, gender,
language, religion, opinions, origins, wealth, birth status or ability and therefore apply to all
people everywhere. The UN finds these rights interdependent and indivisible, meaning that a
right cannot be fulfilled at the expense of another right.

The purpose of the UNCRC is to outline the basic human rights that should be afforded to
children. There a four broad classification which cover all civil, political, social, economic and
cultural rights of every child. Right to Survival, Right to Protection, Right to Participation and
Right to Development:

The U.N. Convention on the Rights of the Child 1989 is the most comprehensive document on
the rights of children. It for the first time focused on the implementation process of the laws
rather than on outlining laws and also outlined certain unusual rights to children like right to
protect his/her identity and right of vulnerable children to special protection etc which previously
did not exist.
The United Nations adopted two protocols to the CRC on May 25, 2000, the Optional Protocol to
the CRC on the Sale of Children, Child Prostitution, and Child Pornography 2000 (Sex
Trafficking Protocol) and the Optional Protocol to the Convention on the Rights of the Child on
the Involvement of Children in Armed Conflict (Child Soldiers Protocol) .
The Optional Protocol to the Convention on the Rights of the Child on the involvement of
children in armed conflict aims to protect children from recruitment and use in hostilities.

The Protocol was adopted by the General Assembly on 25 May 2000 and entered into force on
12 February 2002.

The Optional protocol is a commitment that:

 States will not recruit children under the age of 18 to send them to the battlefield.
 States will not conscript soldiers below the age of 18.
 States should take all possible measures to prevent such recruitment –including
legislation to prohibit and criminalize the recruitment of children under 18 and involve
them in hostilities.
 States will demobilize anyone under 18 conscripted or used in hostilities and will provide
physical, psychological recovery services and help their social reintegration.
 Armed groups distinct from the armed forces of a country should not, under any
circumstances, recruit or use in hostilities anyone under 18.

5
 HUMAN RIGHTS

At present, 168 countries have ratified the Optional Protocol on the involvement of children in
armed conflict. There are 17 countries that have neither signed nor ratified the protocol and 12
countries that have signed but are yet to ratify.

On 25 May 2010, the UN Secretary-General launched the “Global Campaign for the universal
ratification and implementation of the Optional Protocols to the CRC”. In addition to
OPAC, the campaign aimed to achieve universal ratification of the Optional Protocol on the sale
of children, child prostitution and child pornography (OPSC).

Apart from this there is the United Nations International Children's emergency fund which
provides emergency food and healthcare to needy children.
The presence of these conventions have provided an International recognition and acceptance of
the crimes against children and the necessity to combat them. They have provided a pedestal to
the Children and their representatives to demand justice and the Right to live with dignity. The
presence of these Conventions have definitely helped in protecting the Children's rights and
impart them with the basic necessities of life but the crime rate is still a major obstacle to
overcome. The rate at which crimes are increasing against children are not congruent to the rate
at which precautions are taken and remedies are provided.
Terrorism and Poverty are the major man-made causes of the growth of crimes against children.
Children suffer the most due to these evils of the society. The Peshawar attack was an attack
which Targetted children through an Army public school in Pakistan; In the Syrian crisis the
majorly attacked mass was the children on the orders of their President to break the rebels: "I'm
gonna tell god everything" were the heart-wrenching last words of a 3yr old boy during the
Aleppo city war which can shake even the firmest of man.
Due to Terrorism, Children are given guns and taught the art of killing at an age of imparting
education and playing with toys. Instead of teaching the compassion they are taught to kill their
own friends and family as a training exercise. One cannot imagine the horror and trauma that
these delicate buds go through and the darkness that these children grow up with.
The best example of children suffering due to Poverty is Africa. Children die due to lack of
proper and hygienic food and water. There was a picture doing the rounds which depicted a child
who was about to die due to starvation and there was a vulture nearby waiting for it to die so that
it may feed on it.
But there are many NGOs like Smile Foundations and Save the Children which work in this
arena to provide safety and shelter to children and raise their voices on behalf of these suffering
children. There are also many activists like Mr. Kailash Satyarthy who is an Indian Children's
rights activists and has also won the Nobel Peace prize for saving and rescuing many children
from such attrocities. Young women like Malala yousuzai, who is a Pakistani activist for female
education and youngest Nobel prize laureate, set an example in front of the world and encourage
several others to chose peace over violence, tolerance over extremism and courage over fear.

6
 HUMAN RIGHTS

The main purpose for the introduction of the Optional Protocol on the Involvement of Children
in Armed Conflict was,
“Encouraged by the overwhelming support for the Convention on the Rights of the Child,
demonstrating the widespread commitment that exists to strive for the promotion and protection
of the rights of the child,
Reaffirming that the rights of children require special protection, and calling for continuous
improvement of the situation of children without distinction, as well as for their development and
education in conditions of peace and security,
Disturbed by the harmful and widespread impact of armed conflict on children and the long-term
consequences it has for durable peace, security and development,
Condemning the targeting of children in situations of armed conflict and direct attacks on
objects protected under international law, including places that generally have a significant
presence of children, such as schools and hospitals,
Considering therefore that to strengthen further the implementation of rights recognized in the
Convention on the Rights of the Child there is a need to increase the protection of children from
involvement in armed conflict.”1

Aside from the general protection provided to children through general human rights and
humanitarian law instruments, children are also entitled to the protection provided by the 1989
Convention on the Rights of the Child (CRC). This instrument has been ratified by nearly all
States in the world2. Of particular relevance to the protection of children affected by armed
conflict is Article 38 of the Convention, which stipulates that:

 States Parties undertake to respect and to ensure respect for rules of international
humanitarian law applicable to them in armed conflicts which are relevant to the child.
 States Parties shall take all feasible measures to ensure that persons who have not attained
the age of 15 years do not take a direct part in hostilities.
 States Parties shall refrain from recruiting any person who has not attained the age of 15
years into their armed forces. In recruiting among those persons who have attained the
age of 15 years but who have not attained the age of 18 years, States Parties shall
endeavour to give priority to those who are oldest.
 In accordance with their obligations under international humanitarian law to protect the
civilian population in armed conflicts, States Parties shall take all feasible measures to
ensure protection and care of children who are affected by an armed conflict.

From the very start, Article 38 was subject to considerable criticism, for two reasons. First, it is
the only provision of the Convention departing from the general age limit of 18 years, in spite of

1
https://www.ohchr.org
2
Exception: Somalia and the United States of America

7
 HUMAN RIGHTS

the fact that it deals with one of the most dangerous situations that children can be exposed to
armed conflict. Second, with respect to the prohibition against recruitment and participation, it
largely confined itself to repeating Article 77 of Protocol I additional to the Geneva Conventions,
applicable in international armed conflict. In so doing, it not only brought nothing new, but could
also detract attention from the stronger standard contained in Protocol II additional to the Geneva
Conventions, which provides a more absolute and comprehensive prohibition for non-
international armed conflict3. Against this background, and in line with a growing awareness and
concern within the international community of the severe plight of children affected by armed
conflict, an initiative was taken within the United Nations system only a few years after the entry
into force of the CRC to raise the minimum age for recruitment and participation in hostilities to
18 years.

This initiative was largely in common with the position adopted by the International Red Cross
and Red Crescent Movement, which in 1993 initiated the development of a plan of action aimed
at developing further the Movement’s existing activities in favour of children4. The 1995 Plan of
Action enounces two commitments, the first of which is “to promote the principle of non-
recruitment and non-participation in armed conflict of children under the age of 18 years”. That
same year, the 26th International Conference of the Red Cross and Red Crescent in a resolution
recommended “that parties to conflict take every feasible step to ensure that children under the
age of 18 years do not take part in hostilities”.

Along with many other organizations and States, the ICRC expressed support for the
development of an optional protocol to the CRC. It has made its view known in international fora
(through statements at the UN Commission on Human Rights and the General Assembly) and
has participated actively in the drafting process, notably by preparing a comprehensive document
presenting the position of the ICRC on some of the key issues under consideration.5

Content and evaluation of some core provisions of the Optional Protocol

3
Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
Non-International Armed Conflicts, Art. 4 (excerpts):

Article 4 - Fundamental Guarantees

3. Children shall be provided with the care and aid they require, and in particular: (…)

(c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups
nor allowed to take part in hostilities (…).

4
The Plan of Action was prepared on the basis of a consultative process within and outside the Movement, and
endorsed by the Council of Delegates in 1995.
5
see UN Doc. E/CN.4/1998/WG.13/2 (paras 53–105)

8
 HUMAN RIGHTS

The content of some provisions of the Optional Protocol is presented below, together with a brief
analysis and evaluation of the issues addressed.

Article 1

States Parties shall take all feasible measures to ensure that members of their armed forces who
have not attained the age of 18 years do not take a direct part in hostilities.

This must be considered as the most important provision of the new draft Protocol. The raising
of the age limit for participation in hostilities from 15 to 18 years represents a clear improvement
of the present protection provided by international law, and reinforces the current trend to shield
all children from the horrors of armed conflict, and in particular from participation in hostilities.
Other instruments reflecting this trend are the 1990 African Charter on the Rights and Welfare of
the Child and the 1999 International Labour Organisation Convention (182) on the Prohibition of
and Immediate Action for the Elimination of the Worst Forms of Child Labour.

In practical terms, the new standard should also help prevent the participation by children under
the age of 15 years in hostilities, for whereas military commanders might have claimed in the
past that such children in their ranks were in fact 15 years old, and only looked younger than
their real age (for instance owing to long-term malnutrition), it will at least be evident hereafter
that they are not 18 years old.

As regards the scope of the obligation contained in Article 1, two weaknesses must, however, be
noted. The first relates to the nature of the obligation imposed on States, which is one of conduct
rather than of result. According to the provision, States have a duty to “take all feasible measures
to ensure” that participation of children does not occur, a wording which is largely in common
with the corresponding text of Protocol I additional to the Geneva Conventions. It would have
provided children with better protection if States had undertaken to “take all necessary
measures” to this end or, even better, if they had a duty to “ensure” that such participation does
not take place. It is to be hoped that the Committee on the Rights of the Child will apply a strict
interpretation when reviewing whether States have indeed taken all “feasible measures” towards
the stated objective.

The second weakness lies in the extent of the protection provided to children against being
involved in hostilities. According to the provision, they are protected against taking “direct part
in hostilities”. As noted above, this text is weaker than the corresponding clause in Additional
Protocol II, which precludes any participation by simply stipulating that children shall not be
allowed to “take part in hostilities”.

The scope of this article does not allow for a detailed review of various legal terms utilized to
designate and distinguish between various forms of participation in hostilities. Nonetheless, the
following examples of indirect participation in hostilities, which the new Protocol does not seem
to prohibit, namely “to participate in military operations such as gathering information,

9
 HUMAN RIGHTS

transmitting orders, transporting ammunition and foodstuffs, or acts of sabotage”, should serve to
demonstrate that children may still be exposed to considerable dangers on the battlefield even
after the Protocol has entered into force. Needless to say, the involvement of children in such
activities on the front line puts them at serious risk of physical injury and emotional trauma,
which may often not be much less than if they were to take “direct part” in hostilities.

It may be noted that an alternative wording, inspired by the Rome Statute of the International
Criminal Court, would have provided considerably better protection. However, it failed to
achieve consensus in the Working Group and thus was not retained.

Article 2

States Parties shall ensure that persons who have not attained the age of 18 years are not
compulsorily recruited into their armed forces.

The raising of the age limit from 15 to 18 years for compulsory recruitment also represents a
clear improvement of the present situation. The current protection provided by Article 38,
paragraph 3, of the Convention on the Rights of the Child and Article 77, paragraph 2, of
Additional Protocol I against forced recruitment of children between 15 and 18 years of age is
weak, since States Parties “shall endeavour” only to give priority to those who are oldest.

Article 2 constitutes an important corollary to the prohibition against participation in hostilities.

Indeed, wherever children have been recruited and have received military training, it will be
tempting to make use of their skills in the event of conflict, particularly if they are incorporated
in regular military units and the crisis is of such a scale that every available capacity is required.
To preclude the presence of children in military units is therefore an important safeguard to
avoid their involvement in hostilities.

It has on occasion been contended that according to international humanitarian law, a child is
deemed to be a person under the age of 15 years, and even that it would be contrary to this body
of law to consider a person under the age of 18 years as a child. It is rightly observed that
international humanitarian law, unlike human rights law, does not contain any definition of
children, a fact that is attributable to the lack of a common understanding among delegates
during earlier negotiations on the relevant age limit. In order to reach a consensus among them,
any specification as regards the age limit was therefore omitted in the various legal instruments.

It would be wrong, however, to deduce from existing humanitarian law that it precludes
considering persons above the age of 15 years as children. It may be noted, for instance, that the
Fourth Geneva Convention utilizes a variety of age limits when providing special protection for
children, depending on the specific needs that the law seeks to address in different contexts.
Thus, the provisions range from new-born babies (maternity cases), children under the age of
seven years (prescribing access for them and their mothers to hospital and safety zones), 12 years
(wearing of identity discs to preserve their identi ty in case they are separated from their parents,

10
 HUMAN RIGHTS

for instance as a result of bombardment and flight), 15 years (for instance for the provision of
relief supplies and child welfare facilities), to 18 years (protection against compulsory labour and
against the death penalty).

On a textual basis, it can be observed that when the law uses terms like “children under 15”, this
implies that there are also children over 15. As regards preferential treatment for children above
that age, the law uses terms such as “persons under 18 years of age”. This wording avoids the
implication that there are children over the age of 18, but does not rule out considering persons
below that age as children. Furthermore, Article 77 of Protocol I, entitled “Protection of
children”, includes the protection of persons under 18 years of age. Similarly, the Commentary
on the Fourth Geneva Convention published by the ICRC lists the provisions specific to persons
under the age of 18 years among the provisions prescribing preferential treatment for children.6

When the term “children” is being utilized in a provision without any age specification, the
relevant age must accordingly in each specific case be determined in the light of the interest
protected, and the conclusion reached will be relevant for the specific provision being examined
only. To adopt a general notion of “child” in the absence of a definition, as being relevant only
those under 15 years of age, would be detrimental to the interest of the child and thus not in
conformity with the spirit underlying international humanitarian law.

Article 3

 States Parties shall raise the minimum age in years for the voluntary recruitment of
persons into their national armed forces,
 States Parties which permit voluntary recruitment into their national armed forces under
the age of 18 shall maintain safeguards to ensure that:
 such recruitment is genuinely voluntary is done with the informed consent;
 such persons provide reliable proof of age,

The requirement to raise the age in paragraph 1 does not apply to schools operated by or under
the control of the armed forces of the States Parties.

This provision raises the minimum age for voluntary recruitment by at least one year, in
accordance with the declaration to be submitted by States when becoming party to the new
Protocol. In other words, the minimum age for voluntary recruitment would hereafter be 16
years.

While raising the present age limit of 15 years is in itself a welcome development, Article 3 also
weakens considerably the protection provided by Article 2, and in fact the entire Protocol. This is

6
Jean S. Pictet (ed.), Commentary, Geneva Convention relative to the Protection of Civilian Persons in Time of
War , ICRC, Geneva, 1958, pp. 284 ff. (ad Art. 50).

11
 HUMAN RIGHTS

so, in particular, because it may be difficult to determine in practice whether child soldiers have
been voluntarily recruited or not.

The safeguards that have been included to ensure that recruitment is indeed voluntary, and that
no child under the minimum age is recruited, are positive features of the provision, but may be
difficult to implement in practice. For instance, in a number of developing countries affected by
armed conflict it may be questionable whether the requirement to provide “reliable proof of age”
can be satisfied, given that birth registration systems often hardly exist there.

In addition, the protection provided by the first paragraphs of Article 3 suffers from an important
exception, since the requi rement to raise the age for voluntary recruitment does not apply to
schools operated by or under the control of the armed forces. The lower age set for voluntary
recruitment and the exemption made for military schools were motivated by many delegations as
being necessary to secure a sufficient number of applicants, possessing the required profile, for
the needs of their national armies. In this regard, it was emphasized that a system based on
voluntary service by persons under 18 years was preferable to a system of compulsory service
for those above that age, and that military schools often represent one of the few available
opportunities for youths living in poor countries to acquire a higher education.

While such concerns are understandable, it would have been desirable for voluntary recruitment
and military education to have been secured through alternative means, for instance by providing
career prospects and military instruction through institutions which were not considered as an
integral part of the State’s armed forces. The wording of the provision allows for the possibility
of circumventing the age limits set for recruitment, as well as for considering such pupils as
members of the armed forces, and thus as military targets. Evidently, this departure from the
“straight 18” objective, which was pursued by many other delegations, seriously weakens the
prospects of preserving children from being involved in armed conflict in the future.

Article 4

 Armed groups, distinct from the armed forces of a State, should not, under any
circumstances, recruit or use in hostilities persons under the age of 18 years.
 States Parties shall take all feasible measures to prevent such recruitment and use,
including the adoption of legal measures necessary to prohibit and criminalize such
practices.

The application of the present article under this Protocol shall not affect the legal status of any
party to an armed conflict.

According to this provision, non-State entities are not allowed to recruit children, whether
forcibly or voluntarily, nor to let them participate in hostilities, be it in a direct or indirect
manner.

12
 HUMAN RIGHTS

The provision is positive in that it indicates the willingness of States to regulate the behaviour of
non-State entities, and thus also to address situations of non-international armed conflict. The
ICRC strongly supported including the issue of non-State entities in the new Protocol, given that
the involvement of children in non-international armed conflicts is just as deadly and
traumatizing for the children concerned as in international ones. The fact that the presence of
child soldiers seems to be particularly widespread in internal armed conflicts also underscores
the need to address these situations.

However, Article 4 has been drafted in a way which leaves doubts as to how effective it will be
to prevent the recruitment and participation of children in situations of internal armed conflict,
mainly because the wording “should not”, as opposed to “shall not”, seems to impose a moral, as
opposed to a legal, obligation under international law. In this regard, the wording chosen seems
to be motivated by the concern of many States not to depart from the classical approach of
international human rights law, according to which the broad rule is that only States have an
obligation under human rights law, whereas the behaviour of non-State entities is to be regulated
by domestic law.7 However, the criminal repression under domestic law which Article 4 pro
vides for is likely to have little deterrent effect. First, because those who take up arms against the
lawful government of a country already expose themselves to the most severe penalties of the
law, so that a threat of (additional) penal sanctions for recruiting minors may be of only marginal
concern, and second, because the capacity of governments to enforce their domestic law is very
limited in many contemporary situations of non-international armed conflict.

Notwithstanding the concern of governments not to add to any confusion as to the subjects
responsible under international human rights law, it seems that it would have been feasible to
provide for a direct legal obligation of non-State entities under the new Protocol. One possibility
would have been to define recruitment and use in hostilities of persons under the age of 18 years
as a crime under international law. Another would have been to incorporate part of international
humanitarian law in the Protocol, so that the legal responsibility of non-State entities was limited
to situations of armed conflict (this could have been done, for instance, by drafting a text such as
“In situations covered by common Articles 2 and 3 to the Geneva Conventions, persons under
the age of 18 years shall neither be recruited into the armed forces or other armed groups, nor
allowed to take part in hostilities”). It may be argued in this regard that Article 38 already
represents a partial incorporation of international humanitarian law, and that the Protocol’s
subject-matter — armed conflict — would have justified this approach. Nonetheless, States were
not prepared to take this step during the negotiations. The text therefore remains in line with
traditional human rights law, a legal regime that is less suitable than humanitarian law (which is
also legally binding on non-State entities) would have been to address the problems concerned.

7
Examples of international instruments providing for the explicit responsibility of private individuals include the
1949 Convention on the Prevention and Punishment of the Crime of Genocide .

13
 HUMAN RIGHTS

Lastly, another cause for doubts as to the effectiveness of Article 4 is the fact that the obligation
imposed on non-State entities differs from, and is wider than, that imposed on States. The
provision may perhaps be useful as a basis for advocacy vis-à-vis armed groups, but they may
also consider the Optional Protocol as containing a “double standard” and consequently that the
moral force of the norm imposed upon them is weak. Accordingly, it is uncertain whether non-
State entities will feel bound by and thus respect the provision. It may be observed in this regard
that humanitarian law has always been based on the premise of equal obligations on all sides,
and that this argument is often put forward when seeking to induce parties to conflict to
implement the law.

14
 HUMAN RIGHTS

CONCLUSION
In view of the tragic situation of children affected by armed conflicts, and in particular the all too
frequent cases where they have been coerced or allowed to take part in hostilities, the
development of an optional protocol to the Convention on the Rights of the Child is a welcome
initiative.

Evidently, the draft is not as strong as many would have hoped, or indeed is considerably
weaker, and it is to be hoped that the Committee on the Rights of the Child will compensate for
some of the shortcomings of the text by making a strict interpretation of it. It is promising in this
respect that the Committee seems to be of the opinion that the CRC applies as a whole to all
children, so that for instance the best interest of the child, the right to life and the right to respect
for family life will also apply to children who are at risk of being recruited or of participating in
hostilities, or have been in that plight.

Despite the weaknesses noted above, the new Protocol does represent an undeniable progress and
serves to consolidate existing international law on the protection of children against recruitment
and participation in hostilities. It is worth noting that the Protocol imposes a duty on States to
take measures to ensure not only the effective implementation of the provisions discussed above,
but also the demobilization of child soldiers and their rehabilitation and reintegration into
society. It furthermore provides for international assistance to this end, which may often be
required for effective implementation of the Protocol. Indeed, armed conflicts often result in
devastated societies in which children at risk may be tempted to join armed forces or armed
groups as a source of income and respect, and which can do little to restore them to a normal life
unless specific assistance is given for that purpose.

In conclusion, it is to be hoped that the new Optional Protocol will rapidly be universally ratified,
as the 1989 Convention on the Rights of the Child almost has been already, and will help in
future to effectively address the plight of children caught up in war.

The presence of these conventions have provided an International recognition and acceptance of
the crimes against children and the necessity to combat them. They have provided a pedestal to
the Children and their representatives to demand justice and the Right to live with dignity. The
presence of these Conventions have definitely helped in protecting the Children's rights and
impart them with the basic necessities of life but the crime rate is still a major obstacle to
overcome. The rate at which crimes are increasing against children are not congruent to the rate
at which precautions are taken and remedies are provided.
“There can be no keener revelation of a society’s soul than the way in which it treats its children”
– Nelson Mandela

15
 HUMAN RIGHTS

Children’s rights are as important as the rights of any other human being and the protection of
their rights should be one of the top priorities of a nation. They must be given a safe, violence-
free environment to dwell in. This will not only protect them from being exploited but also not
corrupt their mind forcing him to succumb to all the evils around him. If he is subjected to a bad
childhood, depending on how his mind responds to it, most likely he will internalize the situation
customizing his mind to believe that this is the course of life and thus will behave with others in
the same cruel manner. A person is not a criminal by birth but is born by being amongst an
immoral societal setup and negligent parenting. Their sound of silence and cry of innocence must
not go unheard. Their innocent faces must be stopped from becoming faces of invisibility. As
said by Kailash Satyarthy, "There is no greater violence than to deny the dreams of our children."
Every child is: free to be a child,

free to grow and develop,

free to eat, sleep, see daylight,

free to laugh and cry,

free to play,

free to learn, free to go to school, and above all,

free to dream.

Solutions are not found only in the deliberations in conferences and prescriptions from a
distance. They lie in small groups and local organisations and individuals, who confront the
problem every day, even if they remain unrecognised and unknown to the world. Instead of
thinking "what can ONE person do? we must focus on What should I do to make even 1 child
happy and content" In this era of rapid globalization and connection through high-speed internet
what can't a person do?. The only serious disconect is compassion. So let us globalize
compassion and not passive compassion but transformative compassion.

Gandhi said, "If we are to teach real peace in this world... we shall have to begin with the
children." I humbly add, let us unite the world through the compassion for our children.

Just like Mr. Kailash Satyarthy, Even I refuse to accept that the shackles of slavery can ever be
stronger than the quest for freedom.

I REFUSE TO ACCEPT.

Even with all the conventions, local and globals laws to protect and safeguard the children from
these atrocious and monstrous crimes there are still many lacunas that have to be filled to avoid
the day when the cumulative result of all this failure will culminate in unprecedented violence
that will be suicidal for humankind. So buckle up my friends and let us march towards a world

16
 HUMAN RIGHTS

that has peace, prosperity and love and respect for all those who are living instead of just piting
them. In the words of Robert Frost,

The woods are lovely, dark and deep,

But I have promises to keep, And miles to go before I sleep, And miles to go before I sleep

17
 HUMAN RIGHTS

BIBLIOGRAPHY
 “Psychological Effects of War and Violence on Children” by Fuuad Mohammed Freh, Journal of
Psychological Abnormalities.
 https://www.savethechildren.org.uk/what-we-do/child-protection/children-in-conflict
 http://www.childrenandwar.org/
 https://www.unicef.org/sowc96/ciwcont.htm
 https://www.icrc.org/en/doc/resources/documents/article/other/57jqqe.htm
 https://violenceagainstchildren.un.org/content/optional-protocols-crc

18