Защита детей в период вооруженных конфликтов

Abstract

Despite the wide recognition in the international law of the necessity of protecting civilian population, including children, this problem has acquired special urgency now. The analysis of new wars shows that new types of conflicts have appeared. They are characterised by gradual blurring over the line separating combatants and civilians as the subjects and objects of the war, increasing of the economic factor role (that side wins, which succeeds in being the first to destroy the economic potential of the adversary which means striking not military installations and facilities only). This also presupposes improving military technology (the destructive scope of modern weapons makes its selective use difficult — Yugoslavia, Rwanda, Angola etc.). As a result, most of the casualties in modern armed conflicts is made up by civilian population, including children as its most vulnerable part. The issue of legal protection of children in international humanitarian law was raised after World War II. The 1949 Diplomatic Conference in Geneva saw the adoption of 4 Geneva Conventions on the protection of the war victims. The fourth Geneva Convention on the protection of civilian population in war provided legal protection to children in the period of international armed conflict. The fourth Geneva Convention envisages general protection of children as persons not participating in hostilities. According to the Convention, children as part of civilian population are covered by all provisions pertaining to the treatment of protected persons, which determine the main principle of humane treatment, including respect for the life, physical and phychic integrity and human dignity. The Geneva convention also contains special provisions on the protection of children from the consequences of warfare: establishing special safety zones for children under 15, the right to priority evacuation from siege zones, the priority right to food, medical treatment during occupation or internment, reunification of families and banning death penalty for persons under 18 (Articles 14, 17, 23—26, 38, 50, 68, 76, 89). Two Additional Protocols to the Geneva Conventions were adopted at the Diplomatic Conference of 1977: Protocol I pertaining to the protection of victims of international armed conflicts and Protocol 2 pertaining to the protection of the victims of armed conflicts which do not bear international character. Additional Protocol I clearly formulated for the first time the principle of particular protection of children in international armed conflicts: "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). Additional Protocol carries also a similar provision pertaining to armed conflicts of non-international character. Article 4 (3) states that "children shall be provided with necessary care and help". The Additional Protocols also regulate the issue of children participating in hostilities. The Protocols envisage that all feasible measures shall be taken to ensure that persons who have not attained the age of 15 do not take a direct part in hostilities (Art. 77 (2) Protocol I, Art. 4 (3) Protocol II).Thus, both the Geneva Convention and the Protocols provide the children with general and special protection in armed conflicts, regardless of their character (international or non-international) and of whether the children participate in hostilities or not. 1989 saw the adoption of the Convention on the Rights of the Child. International humanitarian law is referred to in one Article (38). Article 38 of the Convention states that States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities. States Parties shall also refrain from recruiting any person who has not attained the age of 15 years into their armed forces. Article 38 of the Convention on the Rights of the Child has almost completely reproduced Article 77 of the Additional Protocol I. As a result, even before the Convention came into force, work on the Optional Protocol in the Convention has started, according to which, the age, referred to in the Article, was to be raised to 18. The Committee of the Rights of the Child at its third session worked out a Draft Optional Protocol consisting of the preamble and 10 articles. According to Article 1, States Parties shall take all feasible measures to ensure that persons who have not attained the age of 18 do not take direct part in hostilities. States Parties shall refrain from recruiting any person who has not attained the age of 18 into their armed forces (Art. 2). However, this Draft has not been adopted yet and is under discussion. The Republic of Belarus has joined all main international agreements in the area of international humanitarian law, including the Geneva Conventions of 1949 and the Additional Protocols of 1977. Belarus has also ratified the Convention on the Rights of the Child of 1989. By this it has committed itself to implement the norms of international humanitarian law into national legislation. In 1997 the Commission on Implementing International Law at the Council of Ministers of the Republic of Belarus was established. Belarus has no laws specially regulating protection of children in armed conflicts. There is a number of provisions on this issue in the legislation, regulating the legal status of certain categories of population: the Law "On the Rights of the Child", the Law "On General Military Service Liability and the Military Service", the Law "On Refugees", the Criminal Code and the Code for Criminal Procedure.