How to stop the massacre of innocents

Children may be victims of war but, says Jenny Kuper, international law can help to protect them

The most enduring images of certain armed conflicts are photographs of children: young Kurds fleeing to the snowy mountains of northern Iraq after the 1991 Gulf War; stone-throwing Palestinian children of the intifada; Mozambican boy soldiers almost dwarfed by their guns; a naked Vietnamese girl screaming from the pain of napalm burns. Yet even when the media are not publicising such images, every day children somewhere are involved, as civilians or as soldiers, in armed conflict. These armed conflicts are almost always non-international or "civil" wars, as in Sudan, Afghanistan, parts of the former Yugoslavia, Rwanda and Sri Lanka. The categorisation and scale of the armed conflict, however, matter little to those who are caught up in it.

While it is well known that children are often particularly affected by armed conflict, it is perhaps less well known that there is a substantial body of law and related enforcement procedures that aim to provide some protection specifically for children in those situations. Recent events have highlighted some of them. For example, there has been the unedifying spectacle of UN peacekeepers from various Western countries (Belgium, Italy and Canada) being tried before military courts for ill-treating civilians in Somalia. A number of those civilians were children.

The Belgian case was particularly shocking, in that some of the incidents were photographed by a former paratrooper who was a member of the unit involved. One photograph, published in a number of newspapers, showed two Belgian soldiers holding a youth over a camp fire, with the flames perilously close to his naked skin. Even more shocking is the fact that, in their recent court martial, these two soldiers were acquitted of any wrong-doing. The court found that they were not guilty of torture, assault and battery or even threatening behaviour. They were simply "participating in a playful game meant to discourage the child from stealing".

This truly astounding decision flies in the face of all relevant international law, as well as being repugnant on purely humanitarian grounds. Would the Belgian court have found the soldiers' behaviour equally "playful" if the child being dangled over the fire had been white, and Belgian? In any event, the court's decision is contrary to rules set out in numerous international legal treaties to which Belgium is a party. These include the 1989 Convention on the Rights of the Child, which prohibits torture and other "degrading treatment or punishment" of children (Article 37) and obliges governments to "take care of children who are affected by an armed conflict" (Article 38). Other relevant international treaties could include the 1949 Geneva Convention IV, concerning the protection of civilians, which, in Article 3, sets out a framework of rules to safeguard non-combatants in civil wars; and the 1966 International Covenant on Civil and Political Rights, which prohibits torture and other ill-treatment of any person (Article 7), and calls for special protection for children (Article 24).

In the coming months the Belgium military court is scheduled to hear cases involving charges that Belgian soldiers in Somalia force-fed a boy pork and salt water until he vomited, and kept another boy, accused of stealing, for two days in a closed metal container, where he died. It is to be hoped that, this time around, the court will be obliged to take into account the many applicable rules of international law, and adopt a radically different approach.

A more positive indication of the possible effectiveness of international law in providing some protection or redress for children (and others) in situations of armed conflict was the recent surprise arrest, by British special forces, of two Bosnian war crimes suspects, one of whom died in the process. In fact, many victims of war crimes committed in the former Yugoslavia were children: adolescent boys rounded up and incarcerated in the notorious concentration camps; girls as young as five raped, and many other children killed or injured as a consequence of the fighting. For them, too, the arrest of these war crimes suspects is a small step towards some sort of justice.

Moreover, in a number of armed conflicts in recent years there has been evidence of a greater observance of international law for the protection of children and other civilians. In the 1991 Gulf War, for example, the Allies' coalition repeatedly referred to the need to avoid "collateral damage" and apparently in some instances refrained from attacks where the harm to the civilian population might have outweighed any military advantage. Also during the war, the UN authorised a joint World Health Organisation and United Nations Children's Fund (Unicef) mission to Iraq, specifically to provide medical supplies to children and their mothers.

In some other armed conflicts (such as those in El Salvador, Lebanon and Sudan), Unicef has succeeded in establishing "days of tranquillity". In those situations, agreement was reached that hostilities would cease for periods of a few days in order to immunise children against preventable childhood diseases, or to provide them with food and other necessities. In all those cases, international law and diplomacy were no panacea, but in some of the conflicts, they did save the lives of some children.

International law and its enforcement mechanisms may be widely perceived as inadequate and almost irrelevant in efforts to secure some sort of protection or redress for children caught up in armed conflict. However, as one of the authorities on the laws of armed conflict, Fritz Kalshoven, has written regarding compliance with these laws: "Each even partial success means that a prisoner will not have been tortured or put to death, a hand-grenade not blindly lobbed into a crowd, a village not bombed into oblivion; that, in a word, man has not suffered unnecessarily from the scourge of war." To those of us watching the big and little armed conflicts of the world from a safe distance, this may not seem significant. But would we not feel otherwise if it were our child, or father, or sister, whose life was spared by a soldier who, in order to comply with the laws of armed conflict, did not throw that one grenade, or drop that one bomb?

The writer's book, `International Law Concerning Child Civilians in Armed Conflict', was published last month by Oxford University Press.