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The rights of the child are human rights. What makes them so special, requiring separate legal treatment, is their link with the social category "childhood." Childhood is a human construct, not a natural phenomenon; its meaning has varied in different historical periods and social environments. An understanding of childhood is necessarily associated with culture, tradition, and social structure. For that reason, children are too often perceived as small adults; once physically ready, they engage in different life activities. That has at times included hard labor, marriages, armed conflict, and other activities now deemed only appropriate to adulthood. However, despite worldwide legal protection, in many places around the world children still engage in all sorts of such harmful activities and situations. Probably the worst of all is a situation of armed conflict.

There is great concern about and awareness of the vulnerability of children, particularly in special circumstances such as armed conflict. So as to be clear in mandating protection, international law, and primarily the 1989 Convention on the Rights of the Child, established an age limit and defined a child as a human being below the age of eighteen. This age limit also applies to situations where children must confront genocide and crimes against humanity. Therefore, the 2000 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts forbids recruitment and participation of children younger than eighteen years in any armed conflicts. Only strict respect of those provisions could prevent children becoming either victims or perpetrators of crimes against humanity or genocide.

Children as Victims

Throughout history children have been victims of genocide and crimes against humanity. Such criminal acts have been committed against children in both times of peace and armed conflict. In the past, wars were officially announced and waged by armies, far away from the civilian population, on the battlefields. Civilians, including children, were victims of wars, but on a lesser scale than in the twentieth century, when the situation dramatically changed. In World War II, 47 percent of the victims were civilians, including children (compared to 5% in World War I). Children perished as a result of not only aerial bombardment, but also genocidal actions. They were not separated from adults nor spared in the Nazi concentration camps.

After World War II approximately 150 armed conflicts had occurred worldwide by 2004. The previous strict division between civilians and armed forces became weaker, and so did the division between children and adults. In the last two decades of the twentieth century such a development produced a period that was probably the most detrimental of all to the lives of children across the globe. The deaths of an estimated 1.5 million children in the 1980s were directly war-related. Within the timeframe of civil wars in Mozambique, Cambodia, Sierra Leone, the former Yugoslavia, Rwanda, El Salvador, Guatemala, the Middle East, and other locales, several million children died as a direct consequence of atrocities. Relentless warlords and their combatants, more frequently operating outside of the constraints of regular army forces, do not respect the established rules of conduct concerning civilian populations and children; they often commit genocide and crimes against humanity, organizing the campaigns and carrying out the orders to do so.

Being that such crimes should not be forgotten nor go unpunished, the United Nations (UN) established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994, with the task of prosecuting, trying, and punishing individuals who are found guilty of committing genocide or crimes against humanity. In these two countries two terrible wars were waged, conflicts that left many children dead, displaced, abandoned, parentless, wounded, and sick. All who survived bear deep emotional scars.

Energetic prosecutions within both tribunals have resulted in numerous convictions. With regard to the crimes committed, the judgments of both courts have addressed different aspects of crimes against humanity and genocide. Many of them included the charge of atrocities committed against children. At the Rwandan tribunal the most well-known cases that included charges of genocide against children were those of Kayishema and Akayesy. At the tribunal for the former Yugoslavia a general of the army, Krstic, was tried and convicted of genocide, and sentenced to forty-six years in prison. He was found guilty of numerous crimes committed in the small town of Srebrenica in Bosnia and Herzegovina in July 1995. Those crimes included forcibly transferring children from their original place of residence that was considered an element of genocide.

The work of such tribunals, as well as that of national or combined courts (e.g., the Special Court for Sierra Leone), is very important because it deals with individuals who are responsible for genocide and crimes against humanity. By establishing such courts, the international community expresses its commitment to ending the impunity of warlords and criminals. A strong message is delivered to potential war criminals: Genocide and crimes against humanity will not be tolerated and perpetrators will face the consequences of their acts.

Child Soldiers as Perpetrators

As already noted, despite the high level of awareness and means of protection worldwide, children are still perceived as adults in some circumstances. Owing to such attitudes, children, sometimes as early as the age of five, are used as child soldiers. Several sources, including Save the Children UK (report 1989), claim that in the late 1980s children younger than sixteen participated in combat in twenty-five states and territories. In Mozambique, Sierra Leone, Iran, Rwanda, and many other places, children, mostly boys, have been brutally recruited, removed from their families, and forced to participate in all kinds of war activities. In some cases children joined military forces because of the absence of adult family members, and the only means of survival was joining some military group, whether legitimate or not. Child soldiers, usually under force, often perpetrate the most serious atrocities, including the crimes of genocide and those against humanity.

None other but national courts have dealt with children responsible for genocide and crimes against humanity. For example, thousands of children were recruited as soldiers in Rwanda. After the civil war ended, a significant number were arrested for being responsible, allegedly, for genocide against the moderate Hutu and Tutsi in that country. Since 1995 Rwandan authorities have arrested and detained some five thousand children under inhumane conditions for years without trial. In June 2002 four thousand children were still awaiting trial. A large number of the detainees are accused of having committed genocide. Rwandan cases indicate just how difficult it might be for a state to effectively try perpetrators, particularly when they are children.

The 1996 UN study on the impact of armed conflict on children notes: "The dilemma of dealing with children who are accused of committing acts of genocide illustrates the complexity of balancing culpability, a community's sense of justice and the best interest of the child." The severity of the crime involved, however, provides no justification for suspending or abridging the fundamental rights and legal safeguards accorded to children under the Convention on the Rights of the Child.

Only when the Statute of the International Criminal Court (ICC) was drafted in 1998 was the act of recruiting children as soldiers established as a war crime. That should, in the future, serve as a disincentive to the recruitment of children as soldiers and also prevent their participation in such terrible crimes.

International Law Protecting the Rights of Children in Armed Conflicts

The international legal protection of children facing genocide and crimes against humanity is provided through general provisions that apply to children in the situation of armed conflict. The Geneva Convention of 1949, and the two Additional Protocols of 1977, directly recognized such children as having special needs. The 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide protects children by additionally defining the crime of genocide as the forcible transfer of children from one group to another. The 1989 Convention on the Rights of the Child of 1989 pays special attention to the protection of children in armed conflicts and also the prevention of recruitment of children for direct participation, as child soldiers. The same applies to a regional instrument: the African Charter on the Rights of the Child. The 2000 Optional Protocol to the Convention on the Rights of the Child, addressing the involvement of children in armed conflict, raises the standard of child recruitment by establishing an age limit of eighteen. The 1998 Rome Statute of the ICC characterizes as a war crime the conscription or enlistment of children under the age of fifteen into national armed forces, or their use as active participants in hostilities. The International Labor Organization's (ILO's) 1999 Worst Forms of Child Labor Convention includes in its definition of the worst forms of child labor the forced or compulsory recruitment of children for use in armed conflict.

Besides the protection afforded by such binding international documents, there are numerous declarations, protocols, comments, and reports providing guidance to states in dealing with children in armed conflicts.

Key Roles in Protection

Several mechanisms exist whereby children are protected from such crimes. Some are legal, such as national and international courts. Besides legal actions, the numerous efforts of international organizations in the field can make a difference. The UN, United Nations Children's Fund (UNICEF), United Nations Educational, Scientific, and Cultural Organization (UNESCO), World Health Organization (WHO), United Nations High Commissioner for Refugees (UNHCR), and other intergovernmental organizations work actively to protect children. The International Committee of the Red Cross (ICRC) orchestrates various sorts of interventions including, among others, the protection of children, visits to prisoners of war, and tracing family members. International nongovernmental organizations (NGOs), such as Medicines sans Frontier, Save the Children, Cooperative for American Relief to Everywhere (CARE), and other organizations, are also active protectors, particularly in the postwar recovery of children who have participated in armed conflicts, including those who were recruited to fight as soldiers, and the prevention of such activities.

SEE ALSO Guatemala; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia; Rwanda; United Nations; Yugoslavia

Nevena Vuckovic Sahovic