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Published : November 27, 2011 | Author : suyash.upes
Category : Human Rights laws | Total Views : 7911 | Rating :



“Concern for children has brought us to a common standard around which to rally. In the Convention on the Rights of the Child, the world has a unique instrument that almost every country has ratified. The single most important resolve that the world could make would be to transform universal ratification of this Convention into universal reality.”

War does no good, brings no good, but for death destruction and catastrophe” is perhaps a well-accepted fact around the world. But it’s not only the corpses and the stench of death that wars leave behind them. “What the horrors of war are, no one can imagine — they are not wounds and blood and fever, spotted and low, or dysentery, chronic and acute, cold and heat and famine — they are intoxication, drunken brutality, demoralization and disorder on the part of the inferior, jealousies, meanness, indifference, selfish brutality on the part of the superior.

Soldiers die, families are annihilated and both sides to any armed conflict suffer innumerable and irreparable losses and damage. Of all this, it is perhaps the children stuck in the midst of all this hated who are worst affected.

In the past decade, two million children have been killed in armed conflict. Three times as many have been seriously injured or permanently disabled. Armed conflict kills and maims more children than soldiers. Civilian fatalities in wartime have climbed from 5 per cent at the turn of the century to more than 90 per cent in the wars of the 1990’s. Refugees from armed conflicts worldwide increased from 2.4 million in 1974 to more than 27.4 million in 1996, with another 30 million people displaced within their own countries. Children and women make up an estimated 80 per cent of displaced populations.

Children are affected by armed conflict in more than one ways, but one of the most alarming trends of them all is their participation as soldiers. This has been made easier by the proliferation of small arms and light weapons. At the age when these children, who are undoubtedly the tomorrow of our nations, should be playing with toys and be sent to schools, they are given AK-47’s and taught war techniques. Assault rifles are cheap and widely available due to both the legal and illegal international arms trade. Boys serve as porters, messengers and combatants. Girls may also serve as combatants or prepare food and attend to the wounded. In addition, they may be forced to provide sexual services or be “married off” to other soldiers. Among the most severe violations of human rights that many children -especially adolescent girls- experience during armed conflicts are rape, prostitution and other forms of sexual violence and exploitation. Children are also frequently killed during grenade attacks in Kashmir, particularly in the targeting of public transport. In Naxalite attacks also, not only children are recruited for violence but are also the greatest victims of this evil of our times.

These dangers of armed conflicts do not only persist while such conflicts and battles exist but even long after the fires of these conflicts are cold and extinguished. Children remain susceptible to the physical dangers, as well as to the lasting psychological and social effects of war. Children are vulnerable to physical danger from millions of existing landmines and unexploded ordnance.

Children must also cope with the trauma of loss -of their family members, schools, neighbourhoods and communities. In addition, millions of children have been forced to witness or even take part in horrifying acts of violence. This can be extremely detrimental to the psyche of a growing mind. Children have become targets, not incidental casualties, of armed conflict. War violates every right of a child -the right to life, the right to be with family and community, the right to health and education, the right to the development of the personality, and the right to be nurtured and protected. It is a basic need of children to be protected and cared for when conflicts threaten, and the implementation of international human rights and humanitarian law addresses these needs. A number of international treaties exist to provide for the legal protection and care of children. Too often these treaties are ignored, and the world community must do everything possible to see that these treaties are complied with in all areas of the world.

Legal Protection for children and Existing Legal instruments:
The Hague Conventions (1899-1907) consisted of laws governing war on land were better defined with respect to both civilians and soldiers.

But after the atrocities of the Second World War, the international community felt a pertinent need to protect civilians from the horrors of future wars. Thus were developed treaties that specifically protected civilians. Two treaties now exist, which explicitly provide for the protection of children in times of war.

1) The Geneva Conventions &;
2) The Convention on the Rights of the Child.

In case of armed conflict, either international or non-international, children benefit from the general protection provided for civilians not taking part in the hostilities. Non-combatant civilians are guaranteed humane treatment and covered by the legal provisions on the conduct of hostilities. Given the particular vulnerability of children, the Geneva Conventions of 1949 (hereafter GCIII and GCIV) and their Additional Protocols of 1977 (API and APII) lay down a series of rules according them special protection. Children who take direct part in hostilities do not lose that special protection. The Additional Protocols, the 1989 Convention on the rights of the child and its recent Optional Protocol, in particular, also set limits on children's participation in hostilities.

§ The Geneva Conventions provide various protections to civilians, but Geneva Convention IV (1949) is specifically designed to protect children and civilians in times of war. Additional Protocols I and II (1977) provide children with special protection and, for the first time, deal with their participation in hostilities. Most of Geneva Convention IV and Additional Protocol I apply during international armed conflicts. Common Article 3 to the Geneva Conventions and Additional Protocol II apply during non-international armed conflicts.

General protection-
In the event of an international armed conflict, children not taking part in the hostilities are protected by GCIV relative to the protection of civilians and by API. They are covered by the fundamental guarantees that these treaties provide, in particular the right to life, the prohibitions on coercion, corporal punishment, torture, collective punishment and reprisals (Art. 27-34 GCIV and Art. 75 API) and by the rules of API on the conduct of hostilities, including both the principle that a distinction must be made between civilians and combatants and the prohibition on attacks against civilians (Art. 48 and 51). In the event of non- international armed conflict, children are also covered by the fundamental guarantees for persons not taking direct part in the hostilities (Art. 3common to the GC and Art. 4 APII). They are further protected by the principle that «the civilian population as such, as well as individual civilians, shall not be the object of attack (Art.13 APII).

Special protection-
GCIV guarantees special care for children, but it is API that lays down the principle of special protection: Children shall be the object of special respect and shall be protected against any form of indecent assault. The parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason (Art. 77). This principle also applies to non-international armed conflict (Art. 4, para. 3 APII).

§ The Convention on the Rights of the Child was adopted by the UN General Assembly in November 1989, and entered into force in 1990. This Convention brings together existing international law and new standards for issues not previously addressed. The CRC is applicable at all times, and some of its articles specifically protect child victims of war. Most countries have ratified this treaty, which is the most widely and swiftly ratified treaty in history.

A recent addition to these two international instruments is the treaty to eliminate landmines, which was adopted in September 1997, in Ottawa, Canada. The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction was entered into force in 1999. While the body of this document does not address children specifically, this international treaty is meant to especially protect children from the suffering inflicted by these indiscriminate weapons of destruction.

Article 38 extends the field of application of Art. 77 API to non-international armed conflict. Article 38 urges States Parties to take all feasible measures to ensure that those aged of less than 15 years do not take a direct part in hostilities (para. 2) and that priority be given in recruitment to the oldest of those aged between 15 and 18 (para. 3). It thus falls short of the ban on direct or indirect participation laid down by APII.

§ Participation in hostilities: The 1977 Additional Protocols
Participation by children in armed hostilities occurs too frequently. This participation may range from aiding combatants (bringing weapons and munitions, carrying out reconnaissance missions, etc.) to the actual recruitment of children as combatants in national armed forces and other armed groups. The 1977 Additional Protocols were the first international treaties to cover such situations. Thus, API obliges States to take all feasible measures to prevent children under 15 from taking direct part in hostilities. It expressly prohibits their recruitment into the armed forces and encourages Parties to give priority in recruiting among those aged from 15 to 18 to the oldest (Art. 77). APII goes further, prohibiting both the recruitment and the participation – direct or indirect – in hostilities by children under 15years of age (Art. 4, para. 3c).

Despite the above-mentioned rules, children who take direct part in international armed conflict are recognized as combatants and in the event of their capture are entitled to prisoner-of-war status under GCIII. The Additional Protocols provide that child combatants under 15 are entitled to privileged treatment in that they continue to benefit from the special protection accorded to children by international humanitarian law (Art. 77, para. 3 API and Art. 4, para. 3d APII).

§ ILO Convention 182:
Worst forms of Child Labour Convention (No.182), is closely related to children involved in armed conflict. India has yet to ratify this convention.

Reasons for non-ratification:
India is examining the feasibility of ratifying this convention in consultation with the concerned Central Ministries and State Governments. This is also to be discussed in a tripartite forum with the participation of the Employers and Workers Representatives.

Action taken so far:
ü Consultation meeting taken by Secretary (Labour) on 3rd July, 2001 with the representatives of Central Ministries/Departments and selected State Governments: In this meeting it was felt that there would not be any objection to agreeing to the elimination of worst forms of child labour is defined in Article 3(a), (b) and (c). In this connection, the concerned Ministries have been approached and they have also agreed to amend the existing Acts in such a manner as to bring them in line with the definitions in Convention No.182. It was felt that Article 3(d) of the Convention was more omnibus and less definitive in its nature. The work defined under this clause would need to be decided through the tripartite mechanisms as defined in Article 4 of the Convention.

ü Tripartite meeting of the Tripartite Committee on Conventions on 19th October, 2001: The meeting decided that the provisions of Article 3(a),(b)&(c) of Convention No.182 were acceptable as given in the text. As far as the provision of Article 3(d) was concerned, wherein the Tripartite consultation mechanism was required to identify hazardous occupations and processes, the Technical Advisory Committee constituted under the Child Labour (Prohibition and Abolition) Act would be requested to examine the list of hazardous activities and identify the occupations and processes that were likely to harm the health, safety and morals of children as defined in Article 3(d) of Convention No.182. The matter would then be placed before the next tripartite meeting, by which time the report of the Second National Labour Commission was also expected to be available. The views of the social partners on the list of hazardous occupations identified by the Technical Advisory Committee would also be elicited before the next meeting is convened.

Child Soldiers in India & Children victims of Violence:
19 out of 28 states of India face internal armed conflicts which are characterised by gross violations of international human rights and humanitarian laws both by the security forces and the armed opposition groups.

Among all the conflict regions of India the state of Chhattisgarh has been increasingly in the news for using children as combatants and in other war activities. The Naxalite militants, the Salwa Judum and the government security forces are all recruiting children to training camps where they are taught to use weapons and explosives.

According to a recent report by Human Rights Watch, there are no clear estimates of the number of children used by these different parties, not even the number of children who have been killed while participating in the conflict in Chhattisgarh.

The Naxalites have a front organisation named Bal Mandal (Children Division) to carry out its activities. All former Naxalites interviewed by Human Rights Watch in 2008 stated that they joined different Naxalite wings when they were children. Naxalites repeatedly pressure parents into sending their children into Naxalite ranks.

Whenever State-sponsored child soldiers are killed in encounters, the government’s claims the child was a member of an anti-State armed group, and the anti-State militia do the same and disown the child. In several cases, child soldiers’ bodies have been mutilated in order to hide the possibility of their age and identities being found. Deaths of such children are frequently blamed on having resulted from being caught in the crossfire of an armed encounter.

Child soldiers’ living conditions are invariably very poor, regardless of which faction they belong to. They are often denied adequate food. Food is often used as a reward for work. Children are used as scouts and to test the land for anti-personnel mines and other forms of explosives. Using children for these purposes makes troop movement easier for both sides. Even if a child dies or is injured, the loss is considered to be minimal, as a child is considered to be far more expendable than a trained cadre.

In July 2008, Manipur police chief Y. Joykumar Singh said that “about 30 or more children are believed to be missing from different parts of the Imphal valley although many cases have not been reported to the police. So far, 13 cases of abductions have been registered.” Radheshyam Singh, police chief of Imphal East district said “it is certain that these children were lured or kidnapped by various outlawed militant groups.” Child soldiers are also used in the mainly Hindu versus Muslim religious conflicts throughout India.

Health care and Nutrition:
During emergencies many people are forced out of their homes and often lose most of their possessions facing years of misery. Many depend on international assistance for their protection and survival until the conflict has been resolved and the situation is conducive to return to stable life where rehabilitation and development are possible. It should be recognized that in conflict situations those people who remain in their home areas may be as vulnerable to nutrition problems as those who have left; however, they may not receive as much international attention because many relief agencies are not mandated to assist them. Furthermore, the security situation may prevent relief agencies from reaching people to assist them.

Thousands of children are killed every year as a direct result of fighting - from knife wounds, bullets, bombs and landmines, but many more die from malnutrition and disease caused or increased by armed conflicts. In Mozambique alone, between 1981 and 1988, armed conflict was the cause underlying 454,000 child deaths. Many of today's armed conflicts take place in some of the world's poorest countries, where children are already vulnerable.

During the armed conflicts, health services and food supplies are disrupted and they come in a direct violation of International Humanitarian Law. Restrictions on travel also hamper the distribution of drugs and other medical supplies, causing health systems' referral services and logistic support to break down. Many of the health services of a country are diverted to the needs of military casualties. Hospitals are forced to neglect the regular care of patients or to shift them to health centres. A concentration on military needs also means that children injured in a conflict may not get effective treatment or rehabilitation. Children living with disabilities get little, if any, support. For children, a dangerous implication of the breakdown of a country's health facilities during conflicts is the disruption of vaccination programmes.

Claiming children as "zones of peace" has become an important concept of humanitarian relief programmes. Commitment to this principle by all warring parties has taken various forms. In El Salvador, beginning in 1985, Government and rebel forces agreed to three "days of tranquillity" during which 250,000 children were immunized against polio, measles, diptheria and other diseases, a process that was repeated annually for six years until the end of the civil war. In Afghanistan in 1988-1989, health teams were permitted to operate in both Government and rebel-held areas, raising vaccination levels in some areas above 80 per cent.

Women often make up a large proportion of the population after a war. After a peace agreement was signed in Cambodia in 1992, it was estimated that two-thirds of the surviving adult population was female and up to 40 per cent of the households were headed by women; in some areas this proportion was as high as 69 per cent (FAO, 1994). The lack of adult labour, particularly that of males, affects the capacity of the family to engage in agricultural activities and to participate in public works programmes.

The effects of armed conflicts - the fragmenting of family and community, rapid social change, the breakdown of support systems, increased sexual exploitation and rape, malnutrition, and inadequate health services, including poor ante-natal care make it imperative that reproductive health care be given high priority. Health education, care and counselling are especially important for women and girls who have been raped or who have been forced into prostitution. The potential for the spread of sexually transmitted diseases, including HIV/AIDS, increases dramatically during conflicts. The breakdown of health services, and blood transfusion services lacking the ability to screen for HIV/AIDS, contribute to the increase in transmission.

In war-affected populations, gynaecological and paediatric health services are often unavailable. As a result, many women and girls, for cultural or religious reasons, underutilize the services despite risks to their health. One way to overcome this obstacle is to increase the numbers of available female health and protection professionals.

Psychological recovery and reintegration with society:
"Even if they have never seen a gun, millions of children suffer from wars, as resources that could have been invested in development are diverted into armaments. Indeed, one of the most distressing realities of our time is that most wars have been fought in precisely those countries that could least afford them." State of the World's Children, United Nations Children's Fund (UNICEF), 1996.

The wounds inflicted by armed conflict on children - physical injury, gender-based violence, psychosocial distress, are affronts to every impulse that inspired the United Nations Convention on the Rights of the Child. Armed conflict affects all aspects of child development - physical, mental and emotional. Such effects accumulate and interact with each other. For effective recovery all these wounds inflicted by armed conflict need to be taken care of individually.

For increasing numbers of children living in war-torn nations, childhood has become a nightmare. The psychosocial concerns intrinsic to child development must be taken into account. Seeing their parents or other important adults in their lives as vulnerable can severely undermine children's confidence and add to their sense of fear. As bad as these experiences are, many children have witnessed their parents' torture, murder or rape, and have been threatened with death themselves.

When children have experienced traumatic or other events in times of war, they may suffer from increased anxiety about being separated from their families, or they may have nightmares or trouble sleeping. They may cease playing and laughing, lose their appetites and withdraw from contact. Younger children may have difficulty concentrating in school. Older children and adolescents may become anxious or depressed, feel hopeless about the future or develop aggressive behaviour.

Suggested measures for recovery:
ü All phases of emergency and reconstruction assistance programmes should take psychosocial considerations into account, while avoiding the development of separate mental health programmes. They should also give priority to preventing further traumatic experiences.

ü Rather than focusing on a child's emotional wounds, programmes should aim to support healing processes and re-establish a sense of normalcy.

ü Programmes to support psychosocial well-being should include local culture, perceptions of child development, and an understanding of political and social realities and children's rights. They should mobilize the community care network around children.

ü Governments, donors and relief organizations should prevent the institutionalization of children. When groups of children considered vulnerable, such as child soldiers, are singled out for special attention, it should be done with the full cooperation of the community so as to ensure their long-term reintegration.
# Graςa Machel in her UN Report “The Impact of Armed Conflict on Children” in 1996.
# Florence Nightingale in a letter (5 May 1855), published in Florence Nightingale : An Introduction to Her Life and Family (2001), edited by Lynn McDonald, p. 141
# The Graça Machel Study, presented in a special session to the General Assembly of the UN (A/51/306) 8/26/96.
# One UNICEF survey in Rwanda found that nearly 80 per cent of the children had lost immediate family members and more than one-third of these had actually witnessed their murder.
# International Committee of the Red Cross (ICRC), Legal Protection of Children in Armed Conflict, 28 February 2003, available at: http://www.unhcr.org/refworld/docid/46e943730.html [accessed 13 June 2011]
# Supra
# Supra note 4
# Available online at http://labour.nic.in/ilas/indiaandilo.htm [accessed 13 June 2011]
# Supra note 3
# Still Out Of Focus, p. 151
# Human Rights Watch, Dangerous Duty – Children and the Chhattisgarh Conflict, July 2008
# Asian Centre for Human Rights, The Adivasis of Chhattisgarh: Victims of the Naxalite Movement and Salwa Judum Campaign, 17 March 2006.
# Land Mine Monitor Report 2006.
# CSUS, Asia Report:2006.
# Manipur Conflict in India on UN’s Margins Despite Child Soldiers, Impunity and Press Restrictions
# Sanjay, Jah K., ‘Andra Pradesh : A False please and more violence”, South Asia Intelligence Review No. 1.3, 2002
# EDUCATION: INVESTING IN THE FUTURE OF CHILDREN, available online at http://www.un.org/rights/impact.htm [ accessed on 13th, June, 2011]
# Supra
# Agriculture, food and nutrition in post-emergency and rehabilitation – issues, needs and interventions, by C. Williams. Discussion paper, Food Policy and Nutrition Division. Rome. (Draft)
# Ibid 16.
# In a UNICEF survey of 3,030 children in Rwanda in 1995, nearly 80 per cent had lost immediate family members, and more than one third of these had actually witnessed the murders.

Authors contact info - articles The  author can be reached at: suyash.upes@legalserviceindia.com

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