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  • Inquiry on protecting children in conflict calls for urgent reforms to international law to protect millions of children trapped in war zones.
  • Legal report of the inquiry, headed by leading British barrister, urges immediate action to tackle attacks on schools, denial of humanitarian aid, sexual violence against children and other atrocities.
  • Chair of the inquiry, Gordon Brown, slams “culture of impunity” surrounding attacks on children in countries including Yemen, Syria, South Sudan and Myanmar.
  • Legal report recommends adoption of single legal instrument and civil accountability mechanism to strengthen protection for children in armed conflict.

Legal Report of the Inquiry on Protecting Children in Conflict

A legal report, headed by the leading British barrister Shaheed Fatima QC of Blackstone Chambers, has called for urgent and far-reaching reforms of international law to tackle the culture of impunity for attacks on children in war zones.

The Inquiry on Protecting Children in Conflict – chaired by the former UK Prime Minister Gordon Brown – reports amidst growing concern over the impact of war on children. Recent episodes include:

  • The bombing of a school bus in Yemen in August 2018 by the Saudi-led coalition, which killed at least 40 children;
  • The suicide bombing in a school in Afghanistan in August which killed around 37 students;
  • Recourse to starvation as a weapon of war in a host of conflicts including Yemen where five million children are now on the brink of famine; and
  • 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 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.

“It is unconscionable that the world stands by when children are being attacked in their schools and denied access to vital humanitarian aid,” Mr Brown commented. “This report sets out an agenda which every government and every organization working on children affected by conflict should act on, to end the culture of impunity,” he added.

Today, an estimated 350 million children – one child in every six – live amidst conflict, an increase of 75% 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.  

“Even where the law provides protection, there is a fundamental lack of compliance and lack of accountability,” Ms. Fatima said, adding: “As a result, and with the increase of intense urban warfare, children are being attacked and killed, in ever greater numbers, and with impunity.”

Strengthening the law  

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.

Enhancing accountability  

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.

Endorsements

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.”

Fiona Duggan of Theirworld, said: "In war zones across the globe today, society’s most vulnerable members are being subjected to unthinkable suffering, and too often the world looks the other way. The Inquiry’s report underscores the urgent need for the international community to build consensus around strengthening the protections for children in conflict, to ensure that every boy and girl has the opportunity to unleash their potential.”

The full list of endorsements is at Annex 1.

For those with an interest in the legal details: a comprehensive summary of the Inquiry’s recommendations is at Annex 2.

Notes to Editors

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 benefiting from the input of an expert advisory group of individuals and organisations.

It was published by Hart / Bloomsbury on 20 September 2018 and is available to purchase here.

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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