UN Security Council Resolution 1539 of 2004 strongly condemns, in paragraph 1, a series of grave violations that would subsequently become the cornerstone of the UN’s monitoring and reporting mechanism on children and armed conflict.
“The UN Security Council (…)
1. Strongly condemns the recruitment and use of child soldiers by parties to armed conflict in violation of international obligations applicable to them, killing and maiming of children, rape and other sexual violence mostly committed against girls, abduction and forced displacement, denial of humanitarian access to children, attacks against schools and hospitals as well as trafficking, forced labour and all forms of slavery and all other violations and abuses committed against children affected by armed conflict;”
This resolution also calls for the establishment of a systematic and comprehensive monitoring and reporting mechanism as a response to these violations (para. 2). Following UN Security Council Resolution 1539 and after extensive consultations, the grave violations against children in armed conflict were outlined and defined as follows:
- Killing or maiming of children
- Recruitment or use of child soldiers
- Rape and other forms of sexual violence against children
- Abduction of children
- Attacks against schools or hospitals
- Denial of humanitarian access to children
Killing or maiming of children is any action in the context of armed conflict that results in the death of one or more children or any action that causes a serious or permanent disabling, scarring or mutilation injury to a child. This violation includes the killing and injuring of children as a result of direct targeting as well as of indirect actions including: cross-fire, landmines, cluster munitions, improvised explosive devices or other indiscriminate explosive devices. Killing or injuring can take place in the context of military operations, house demolitions, search and arrest campaigns or suicide attacks. Torture can also be reported under this category.
- The legal basis for this violation is the right to life, as proclaimed by art. 3 of the Universal Declaration of Human Rights (1948) and codified in art. 6 of the Convention on the Rights of the Child (1989) and art. 6(1) of the International Covenant on Civil and Political Rights (1966). Art. 7 of the same Covenant further prohibits torture and cruel, inhuman or degrading treatment.
- Common art. 3 to all four Geneva Conventions (1945) states that “persons taking no active part in the hostilities (…) shall in all circumstances be treated humanely”. This includes the prohibition of acts such as violence to life and mutilation (art. 3(1)-a).
- Art. 8(1) of the Rome Statute instituting the International Criminal Court includes breaches of the Geneva Convention¾such as killing and serious injury¾in its definition of war crimes.
Recruitment or use of child soldiers refers to compulsory, forced or voluntary conscription or enlistment of children into any kind of armed force or armed group(s) under the age stipulated in the international treaties applicable to the armed force or armed group in question. “Use of children” refers to the use of children by armed forces or armed groups in any capacity, including, but not limited to, children¾boys and girls¾used as fighters, cooks, porters, messengers, spies or collaborators. It does not only refer to a child who is taking or has taken a direct part in hostilities.
- Recruitment and use of child soldiers under the age of 15 is absolutely prohibited by the Convention on the Rights of the Child (art. 38) and the two additional protocols to the Geneva Conventions pertaining to armed conflicts of international and non-international nature (art. 77(2) of Protocol I and art. 4(3) of Protocol II). Voluntary recruitment of children between the ages of 15 and 18 is allowed, provided that safeguards ensuring that such recruitment is genuinely voluntary are respected (Optional Protocol II to the Convention on the Rights of the Child, art. 3(3)).
Rape and other forms of sexual violence against children includes rape, other sexual violence, sexual slavery, enforced prostitution, forced marriage/pregnancy or enforced sterilization. Rape/attempted rape: is an act of non-consensual sexual intercourse. This can also include the invasion of any part of the body with a sexual organ and/or the invasion of the genital or anal opening with any object or body part (any penetration is considered rape; efforts to rape someone, which do not result in penetration, are considered attempted rape). Sexual violence is any sexual act, attempt to obtain a sexual act or acts to traffic a child’s sexuality. Sexual violence takes many forms, including rape, sexual slavery and/or trafficking, forced pregnancy, sexual harassment, sexual exploitation and/or abuse and forced abortion.
- Art. 37 of the Convention on the Rights of the Child makes it a duty for States to ensure the protection of children against all forms of sexual exploitation and abuse.
- According to art. 27 of the Fourth Geneva Convention, women (and girls) shall be especially protected against attacks on their honor, in particular, rape.
- The Rome Statute (1998) includes sexual violence in its definition of crimes against humanity (art. 7(1)-g) and war crimes (art. 8(2)-b).
Abduction is the 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. This includes, but is not limited to, recruitment in armed forces or groups, participation in hostilities, sexual exploitation or abuse, forced labor, hostage-taking or indoctrination. If a child is recruited by force by an armed force or group, this is considered as two separate violations¾abduction and recruitment.
- Art. 35 of the Convention on the Rights of the Child makes it an obligation for States to prevent the abduction of children.
- Art. 37(b) prohibits the arbitrary or unlawful deprivation of liberty of a child.
- Art. 9(1) of the International Covenant on Civil and Political Rights establishes the right not to be arbitrarily deprived of liberty.
Attacks against schools or hospitals includes the targeting of schools or medical facilities that cause the total or partial destruction of such facilities. Other interferences to the normal operation of the facility may also be reported, such as the occupation, shelling, targeting for propaganda or otherwise causing harm, to schools or medical facilities or its personnel.
- Schools and hospitals are, in principle, civilian objects, and are therefore protected by the Geneva Conventions (Fourth Geneva Convention, art. 18 and Optional Protocol I, art. 57).
- Rome Statute (1998): art. 8(2)(b) – the definition of war crimes includes, “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.”
Denial of humanitarian access to children is the intentional barring by physical force or administrative restrictions the unhindered and safe movement of personnel and humanitarian material into and out of an affected area that prevents the timely provision of humanitarian assistance to persons in need. Humanitarian assistance includes all acts, activities and the human and material resources for the provision of goods and services indispensable for the survival and fulfillment of the essential needs of conflict-affected persons. Denial of humanitarian assistance includes: preventing the provision of medical care, food, education and other essential services; threats to and killing/injuring of humanitarian workers; and other significant impediments to humanitarian agencies that affect access to children. Denial of access can be through administrative, political or military obstacles, including check points and administrative procedures.
- The denial of humanitarian access to civilians is prohibited by the Geneva Conventions (Fourth Geneva Convention, Art. 23 and 142; Additional Protocol I, art. 70; Additional Protocol II, art. 18).
- The Rome Statute includes attacks on humanitarian workers in its definition of war crimes (art. 8(2)-b and e).