The Participation of Children in Hostilities

Recruitment and Use of Children

From: http://www.hrw.org/reports/2002/isrl-pa/ISRAELPA1002-04.htm#P709_157775

International human rights and international humanitarian law have long prohibited the recruitment and use of children under fifteen years of age in hostilities.150 There is growing international consensus that this threshold is too low, and that all children-internationally defined as those under the age of eighteen years-require increased protection from involvement in armed conflict.

As a result, in May 2000, the U.N. General Assembly adopted the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.151 The Optional Protocol requires governments to take all feasible steps to ensure that children under the age of eighteen do not take direct part in hostilities; bans all compulsory recruitment of people under eighteen; and raises the minimum age for voluntary recruitment by governments. It also provides important additional protections against any recruitment or use of children under eighteen by armed groups that are not part of a state's armed forces. One hundred and ten states have signed the Optional Protocol since its adoption, and thirty-seven states have taken the necessary steps to ratify it.

The Optional Protocol states that "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." States Party are required to "take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices." These measures should also include "mak[ing] the principles and provisions of the present Protocol widely known and promoted by appropriate means, to adults and children alike," and taking "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," including "when necessary, accord[ing] to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration."152

Although the PA is not a party to the Convention on the Rights of the Child (CRC) or its Optional Protocol, it has signaled its willingness to accept its standards by endorsing the April 2001 Amman Declaration on the Use of Children as Soldiers, which stated that "the use in hostilities of any child under eighteen years of age by any armed force or armed group is unacceptable."153 The PA also advocated the application of the Optional Protocol in a speech before the United Nations Special Session on Children in May 2002, emphasizing the urgency of the need to protect Palestinian children from the impact of armed conflict.154 Human Rights Watch considers that, having made a moral commitment to the implementation of the CRC and its Optional Protocol, the PA should implement their provisions against the recruitment and use of children in hostilities.

War Crimes: The Prohibition Against Targeting Civilians

A fundamental rule of international humanitarian law is that civilians must enjoy general protection against danger arising from military operations. The rule of civilian immunity is one of "the oldest fundamental maxims" of international customary law, meaning that it is binding on all parties to a conflict, regardless of whether a conflict is international or non-international in character.115 Non-state parties to a conflict are also obliged to respect the norms of customary international law. At all times, it is forbidden to direct attacks against civilians; indeed, to attack civilians intentionally while aware of their civilian status is a war crime. It is thus an imperative duty for an attacker to identify and distinguish non-combatants from combatants in every situation.

In addition to its status as established customary law, the principle of civilian immunity has been codified in numerous treaties. One of the clearest expressions of the principle is set out in article 51(2) of Additional Protocol I to the Geneva Conventions, which states:
The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited.116
By deliberately targeting civilians, suicide bombing attacks clearly violate this most fundamental rule of the laws of war. The prohibition against targeting civilians holds in all circumstances, including when a party undertakes such attacks in retaliation for attacks on its own civilians (discussed below).117

The principle of distinction between civilian and military targets is enshrined in article 48 of Protocol I:
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants, and between civilian objects and military objectives, and accordingly shall direct their operations only against military objectives.118

Military objectives are defined as "those objects, which by their nature, location, purpose or use make an effective contribution to military action."119 Under international humanitarian law, attacks that are not, or as a result of the method of attack cannot, be aimed at military targets, are considered "indiscriminate." They are prohibited under Protocol I and, under the same treaty, constitute war crimes.120 The protocol's provisions prohibiting indiscriminate warfare are considered to be norms of customary international law, binding on all parties in a conflict, regardless of whether it is an international or internal armed conflict.121 That is, they are binding on all parties to the Israeli-Palestinian conflict, even though Israel has not ratified Protocol I.

Obligations of the Palestinian Authority and Armed Palestinian Groups

The rules and obligations of IHL are clearest when applied to conflict between sovereign states. The responsibilities of non-state actors may differ from those of sovereign states, but non-state actors, too, have clear responsibilities under IHL. Many customary rules of IHL apply to all parties to a conflict, including non-state actors, provided that the confrontation is of an intensity that places it beyond the threshold of a mere disturbance.106

Although it is not a sovereign state, the Palestinian Authority has explicit security and legal obligations set out in the Oslo Accords, an umbrella term for the series of agreements negotiated between the government of Israel and the PLO from 1993 to 1996. The PA obligations to maintain security and public order were set out in articles XII to XV of the 1995 Interim Agreement on the West Bank and Gaza Strip.107 These responsibilities were elaborated further in Annex I of the interim agreement, which specifies that the PA will bring to justice those accused of perpetrating attacks against Israeli civilians. According to article II (3) (c) of the annex, the PA will "apprehend, investigate and prosecute perpetrators and all other persons directly or indirectly involved in acts of terrorism, violence and incitement."108

Similarly, PA leaders, including President Arafat, have repeatedly pledged in meetings with international human rights organizations and in radio broadcasts, as well as in the Oslo Accords, that the PA intends to abide by internationally recognized human rights norms.109 In a situation of clashes that rise to the level of armed conflict, PA security forces and other organized factions that engage in armed actions should abide by fundamental principles of international humanitarian law. They are also obliged to ensure respect for such principles by armed groups operating from territory under their effective control.

The Palestinian Authority exists independently from the Palestine Liberation Organization. From 1974 to 1977, the PLO was one of several national liberation movements "recognized by the regional intergovernmental organizations" to participate in the diplomatic negotiations on the text of the two Additional Protocols to the Geneva Conventions.110 Under article 96 of Protocol I, non-state actors may commit, under certain specific circumstances, to apply the conventions and the protocol if they declare their willingness to do so to the Swiss government. The PLO has never made a declaration under article 96, and Israel is not a party to Protocol I. As a result, Protocol I does not apply to the current clashes, except for the provisions of Protocol I that are considered customary international law.

The PLO Executive Committee wrote to the Swiss Federal Department of Foreign Affairs in June 1989 to inform it that, being "entrusted with the functions of the Government of the State of Palestine by decision of the Palestinian National Council," it had decided on May 4, 1989 to adhere to the Geneva Conventions and their additional protocols.111 Due to the "uncertainty within the international community as to the existence or non-existence of a State of Palestine," the Swiss government informed states that it could not decide whether the PLO letter constituted a valid instrument of accession. As a result of their unilateral declaration, the PLO and its constituent factions have nevertheless undertaken what is, at minimum, a strong moral commitment to uphold the most fundamental standards contained in the Geneva Conventions and Protocol I.