Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 25 May 2000
Protection of children by International Humanitarian Law Aside from benefiting from the general protection provided to civilians, children are protected by International Humanitarian Law in two ways. First, by being protected from recruitment and participation in hostilities (Art. 77 of Protocol I prohibits recruitment and direct participation in hostilities of children under the age of 15 years, whereas Art 4, 3(c) of Protocol II also prohibits their indirect participation. The Rome Statute has recognized the recruitment and use of children under the age of 15 years in hostilities as an international crime, both in international and non-international armed conflicts), and second, by a number of specific provisions addressing their particular vulnerabilities. These provisions, which are contained in the Geneva Conventions and their Additional Protocols, include protection from the effects of hostilities (sanitary zones, evacuation), provision of special care and aid (medicine, food, clothing), protection of personal status, family and community ties (identity, registration, reunification, news), cultural environment, education, or limits to the death penalty. Other provisions specifically regulate the treatment of detained or interned children. Protection in human rights law Children are protected by general human rights instruments. In addition, they are entitled to the protection provided by the Convention on the Rights of the Child (CRC), which has been ratified by all states in the world, apart from Somalia and the United States of America. The CRC includes in its Article 38 a provision according to which states parties: undertake to respect and to ensure respect for relevant rules of International Humanitarian Law; ensure that children under 15 do not take a direct part in hostilities; refrain from recruiting those under 15 and give priority to the oldest among those under 18; in accordance with International Humanitarian Law, ensure protection and care of children affected by armed conflict. Article 38 has been subject to considerable criticism, for two reasons. First, because all other provisions protect the child until it has reached the age of 18. Second, because it adds nothing new and could even undermine existing standards contained in IHL (the parts relating to recruitment and participation in hostilities repeat Protocol I to the Geneva Conventions, which only prohibits direct participation, whereas Protocol II also prohibits indirect participation). The ICRC contributed to the drafting process of this provision, but became involved only at a late stage, so that its possibility to influence the final text was limited. Development of an Optional Protocol A number of states have for several years sought to develop an Optional Protocol to the CRC that would raise the minimum age for participation in hostilities and for recruitment to 18 years. In line with a 1995 resolution of the Council of Delegates, the ICRC has supported this initiative and participated in the drafting process. It has made its view known in international forums (through statements at the UN Commission on Human Rights and General Assembly) and participated actively in the UN Working Group established to draft the Optional Protocol. Given that the Working Group has worked by consensus in order to adopt the text, and that there was absence of such because a handful of states opposed the adoption of the 18-years minimum age, there was almost no progress in the Working Group in previous years. To overcome the stalemate, several NGOs started a campaign aimed at generating enough political pressure to have the Optional Protocol developed outside the UN working group (this strategy was largely inspired by the Land Mines Campaign). The ICRC was not a formal member of the NGO coalition, but supported its work by participating in regional conferences organised by the Coalition, and more generally by sharing its legal expertise and operational experience. In January 2000, the UN Working Group finally met for substantive negotiations, and successfully concluded the drafting of an agreed text (the compromise position taken by States which previously had opposed consensus may have been motivated by concerns that the NGO campaign might eventually succeed). The agreed text has recently been adopted by the General Assembly in May 2000 and will be open for signature and ratification. Overall, the Optional Protocol represents a clear improvement of existing international law, although the text also contains evident weaknesses. Of particular importance may be highlighted: 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 hostitities." (Article 1). In the opinion of the ICRC the obligation imposed on States to prevent participation in hostilities should have been made more absolute, and should also have covered indirect participation, which may often be equally dangerous for the children involved. 2."States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armedforces" (Article 2). This provision is in itself positive, but is considerably weakened by the following provision, which permits voluntary recruitment below the age of 18 years (it imposes the obligation on States to "raise the minimum age in years" for voluntary recruitment from the present age limit of 15 years, and this obligation does not apply to military schools) thus providing a possibility for circumventing the age limits set to recruitment. It is to be hoped that the Committee on the Rights of the Child will compensate for the weaknesses of the text by a strict interpretation, including by emphasising that all the relevant provisions of the Convention apply simultaneously. 3."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." (Article 4, paragraph 1). The ICRC welcomes the fact that the issue of non-state actors has been included in the Optional Protocol, but regrets that the provision imposes a moral, as opposed to a legal obligation. Although Article 4 also provides for criminal repression under domestic law, this is likely to be of limited effect, because those who take up arms against the lawful Government of a country already expose themselves to the most severe penalties of domestic law, and because the capacity of a Government to enforce its laws is often very limited in situations of non-international armed conflicts. Third, it is uncertain whether non-state actors will feel bound by a norm which is different from that imposed on States, and thus whether it will be respected. In its written observations submitted to the UN Secretariat, the ICRC calls on States to ratify the Optional Protocol as soon as this becomes possible and to effectively implement the obligations contained therein. It also reaffirms the willingness of the Movement to continue its work for the non-recruitment and non-participation of children in hostilities, including by identifying children at risk of becoming soldiers, providing them with alternative sources of income and respect, and by raising awareness in society not to allow children to join armed forces or groups.
Preamble
The States Parties to the present Protocol,
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,
Noting the adoption of the Rome Statute of the International Criminal Court, in particular, the inclusion therein as a war crime, of conscripting or enlisting children under the age of 15 years or using them to participate actively in hostilities in both international and non-international armed conflicts,
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,
Noting that article 1 of the Convention on the Rights of the Child specifies that, for the purposes of that Convention, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier,
Convinced that an optional protocol to the Convention that raises the age of possible recruitment of persons into armed forces and their participation in hostilities will contribute effectively to the implementation of the principle that the best interests of the child are to be a primary consideration in all actions concerning children,
Noting that the twenty-sixth International Conference of the Red Cross and Red Crescent in December 1995 recommended, inter alia, that parties to conflict take every feasible step to ensure that children below the age of 18 years do not take part in hostilities,
Welcoming the unanimous adoption, in June1999, of International Labour Organization Convention No. 182 on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, which prohibits, inter alia, forced or compulsory recruitment of children for use in armed conflict,
Condemning with the gravest concern the recruitment, training and use within and across national borders of children in hostilities by armed groups distinct from the armed forces of a State, and recognizing the responsibility of those who recruit, train and use children in this regard,
Recalling the obligation of each party to an armed conflict to abide by the provisions of international humanitarian law,
Stressing that the present Protocol is without prejudice to the purposes and principles contained in the Charter of the United Nations, including Article 51, and relevant norms of humanitarian law,
Bearing in mind that conditions of peace and security based on full respect of the purposes and principles contained in the Charter and observance of applicable human rights instruments are indispensable for the full protection of children, in particular during armed conflicts and foreign occupation,
Recognizing the special needs of those children who are particularly vulnerable to recruitment or use in hostilities contrary to the present Protocol owing to their economic or social status or gender,
Mindful of the necessity of taking into consideration the economic, social and political root causes of the involvement of children in armed conflicts,
Convinced of the need to strengthen international cooperation in the implementation of the present Protocol, as well as the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict,
Encouraging the participation of the community and, in particular, children and child victims in the dissemination of informational and educational programmes concerning the implementation of the Protocol,
Have agreed as follows:
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.
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.
Article 3
1. States Parties shall raise in years the minimum age for the voluntary recruitment of persons into their national armed forces from that set out in article 38 , paragraph 3, of the Convention on the Rights of the Child, taking account of the principles contained in that article and recognizing that under the Convention persons under the age of 18 years are entitled to special protection.
2. Each State Party shall deposit a binding declaration upon ratification of or accession to the present Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards it has adopted to ensure that such recruitment is not forced or coerced.
3. States Parties that permit voluntary recruitment into their national armed forces under the age of 18 years shall maintain safeguards to ensure, as a minimum, that: (a) Such recruitment is genuinely voluntary; (b) Such recruitment is carried out with the informed consent of the person’s parents or legal guardians; (c) Such persons are fully informed of the duties involved in such military service; (d) Such persons provide reliable proof of age prior to acceptance into national military service.
4. Each State Party may strengthen its declaration at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall inform all States Parties. Such notification shall take effect on the date on which it is received by the Secretary-General.
5. The requirement to raise the age in paragraph 1 of the present article does not apply to schools operated by or under the control of the armed forces of the States Parties, in keeping with articles 28 and 29 of the Convention on the Rights of the Child.
[Note : the present article includes the correction as per Depositary Notification C.N.1031.2000.TREATIES-10 of 14 November 2000 .]
Article 4
1. Armed groups that are 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.
2. 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.
3. The application of the present article shall not affect the legal status of any party to an armed conflict.
Article 5
Nothing in the present Protocol shall be construed as precluding provisions in the law of a State Party or in international instruments and international humanitarian law that are more conducive to the realization of the rights of the child.
Article 6
1. Each State Party shall take all necessary legal, administrative and other measures to ensure the effective implementation and enforcement of the provisions of the present Protocol within its jurisdiction.
2. States Parties undertake to make the principles and provisions of the present Protocol widely known and promoted by appropriate means, to adults and children alike.
3. States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.
Article 7
1. States Parties shall cooperate in the implementation of the present Protocol, including in the prevention of any activity contrary thereto and in the rehabilitation and social reintegration of persons who are victims of acts contrary thereto, including through technical cooperation and financial assistance. Such assistance and cooperation will be undertaken in consultation with the States Parties concerned and the relevant international organizations.
2. States Parties in a position to do so shall provide such assistance through existing multilateral, bilateral or other programmes or, inter alia, through a voluntary fund established in accordance with the rules of the General Assembly.
Article 8
1. Each State Party shall, within two years following the entry into force of the present Protocol for that State Party, submit a report to the Committee on the Rights of the Child providing comprehensive information on the measures it has taken to implement the provisions of the Protocol, including the measures taken to implement the provisions on participation and recruitment.
2. Following the submission of the comprehensive report, each State Party shall include in the reports it submits to the Committee on the Rights of the Child, in accordance with article 44 of the Convention, any further information with respect to the implementation of the Protocol. Other States Parties to the Protocol shall submit a report every five years.
3. The Committee on the Rights of the Child may request from States Parties further information relevant to the implementation of the present Protocol.
Article 9
1. The present Protocol is open for signature by any State that is a party to the Convention or has signed it.
2. The present Protocol is subject to ratification and is open to accession by any State. Instruments of ratification or accession shall be deposited with the Secretary-General of the United Nations.
3. The Secretary-General, in his capacity as depositary of the Convention and the Protocol, shall inform all States Parties to the Convention and all States that have signed the Convention of each instrument of declaration pursuant to article 3 .
Note: the present article includes the correction as per Depositary Notification C.N.865.2001.TREATIES-10 of 13 September 2001 .
Article 10
1. The present Protocol shall enter into force three months after the deposit of the tenth instrument of ratification or accession.
2. For each State ratifying the present Protocol or acceding to it after its entry into force, the Protocol shall enter into force one month after the date of the deposit of its own instrument of ratification or accession.
Article 11
1. Any State Party may denounce the present Protocol at any time by written notification to the Secretary-General of the United Nations, who shall thereafter inform the other States Parties to the Convention and all States that have signed the Convention. The denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General. If, however, on the expiry of that year the denouncing State Party is engaged in armed conflict, the denunciation shall not take effect before the end of the armed conflict.
2. Such a denunciation shall not have the effect of releasing the State Party from its obligations under the present Protocol in regard to any act that occurs prior to the date on which the denunciation becomes effective. Nor shall such a denunciation prejudice in any way the continued consideration of any matter that is already under consideration by the Committee on the Rights of the Child prior to the date on which the denunciation becomes effective.
Article 12
1. Any State Party may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to States Parties with a request that they indicate whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.
2. An amendment adopted in accordance with paragraph 1 of the present article shall enter into force when it has been approved by the General Assembly and accepted by a two-thirds majority of States Parties.
3. When an amendment enters into force, it shall be binding on those States Parties that have accepted it, other States Parties still being bound by the provisions of the present Protocol and any earlier amendments they have accepted.
Article 13
1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States Parties to the Convention and all States that have signed the Convention.