INTRODUCTION

“The most serious crimes of concern to the international community as a whole must not go
unpunished”

-Preamble to the Rome Statue of the International Criminal Court

Although international humanitarian law has as its aim the limitation of the effects of armed
conflict, it does not include a full definition of those situations that fall within its material field of
application. While it is true that the relevant conventions refer to various types of armed conflict
and therefore afford a glimpse of the legal outlines of this multifaceted concept, these
instruments do not propose criteria that are precise enough to determine the content of those
categories unequivocally. A certain amount of clarity is nonetheless needed. In fact, depending
on how the situations are legally defined, the rules that apply vary from one case to the next. The
legal regimes that need to be taken into account are thus not always the same and depend on
whether the situations constitute, for example, an international or a non-international armed
conflict. Similarly, some forms of violence, referred to as ‘internal tensions’ or ‘internal
disturbances’, do not reach the threshold of applicability of international humanitarian law and
therefore fall within the scope of other normative frameworks.1

International Humanitarian Law distinguishes two types of armed conflict, namely:2

 International armed conflict, opposing two or more states, and

 Non international armed conflicts, between governmental forces and nongovernmental
armed groups, or between such groups only. IHL treaty law also establishes a distinction
between non-international armed conflicts in the meaning of common Article 3 of the
Geneva Conventions of 1949 and non-international armed conflicts falling within the
definition provided in Art. 1 of Additional Protocol II.

1
Sylvain Vite, “Typology of armed conflicts in International Law: legal concepts and actual situations”,
International Review of Red Cross, Vol. 91, p. 70, available at https://www.icrc.org/en/doc/assets/files/other/irrc-
873-vite.pdf , viewed on 6th January, 2019
2
International Committee of the Red Cross, “How is the term ‘Armed Conflict ‘ defined in International
Humanitarian Law” International Committee of Red Cross (ICRC) Opinion Paper, 2008, p. 1 available at
https://www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf , viewed on 6th January, 2019
 INTERNATIONAL ARMED CONLFICT

An international armed conflict occurs when one or more States have recourse to armed force
against another State, regardless of the reasons or the intensity of this confrontation. No formal
declaration of war or recognition of the situation is required. The existence of an international
armed conflict, and as a consequence, the possibility to apply International Humanitarian Law to
this situation, depends on what actually happens on the ground. It is based on factual conditions.
Apart from regular, inter-state armed conflicts, Additional Protocol I extends the definition of
international armed conflicts to include armed conflicts in which peoples are fighting against
colonial domination, alien occupation or racist regimes in the exercise of their right to self-
determination.3

The key instruments of IHL, i.e. the 1949 Geneva Conventions and the 1977 Additional
Protocols thereto, distinguish between international and non international armed conflicts by
specifically prescribing which rules apply in which type of armed conflict. According to
Common Article 2 of the Geneva Conventions, the provisions relating to international armed
conflicts apply to ‘all cases of declared war or of any other armed conflict which may arise
between two or more of the High Contracting Parties’ and to ‘all cases of partial or total
occupation’. Article 1 of Additional Protocol I further specifies that the said provisions also
apply to ‘conflicts in which peoples are fighting against colonial domination alien occupation
and racist regimes’; thus to situations that may seem to be of a non-international nature and were
indeed regarded as such until 1977. However, neither the Geneva Conventions nor Protocol I
contain a real definition of the expression ‘armed conflict.4

NON INTERNATIONAL ARMED CONFLICT

In order to distinguish an armed conflict, in the meaning of common Article 3, from less serious
forms of violence, such as internal disturbances and tensions, riots or acts of banditry, the
situation must reach a certain threshold of confrontation. It has been generally accepted that the

3
Bartels Rogier, “Timelines, Borderlines and Conflicts: the Historical Evolution of the Legal Divide between
International and Non International Armed Conflict”, International Review of Red Cross, Vol. 91, March 2009, p.
71 available at file:///C:/Users/Admin/Downloads/irrc-873-3%20(1).pdf Viewed on 6th January, 2019
4
The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims
of International Armed Conflicts (Protocol I), includes an article on ‘Definitions’ (Article 2), as well as one on
‘Terminology’ (Article 8), but the term ‘armed conflict’ is not defined therein.
lower threshold found in Article 1(2) of APII, which excludes internal disturbances and tensions
from the definition of NIAC, also applies to common Article 3. Two criteria are usually used in
this regard:5 ·

 First, the hostilities must reach a minimum level of intensity. This may be the case, for
example, when the hostilities are of a collective character or when the government is
obliged to use military force against the insurgents, instead of mere police forces.6 ·
 Second, non-governmental groups involved in the conflict must be considered as "parties
to the conflict", meaning that they possess organized armed forces. This means for
example that these forces have to be under a certain command structure and have the
capacity to sustain military operations.7

PROTECTION OF CHILDREN DURING ARMED CONFLICT

Armed conflicts destroy children’s lives. The changing nature of warfare has turned their homes
and villages into battlefields, with today’s wars fought inside States, rather than between them.
Millions of civilians, many of them children, find themselves the innocent bystanders and,
indeed, the intended targets of violence. In the war of 1914- 1918, civilians accounted for an
estimated 5 per cent of those killed. By the time of the Korean war that figure had risen to 80 per
cent. Today, civilians are thought to account for 90 per cent of war victims. Around half of the
casualties are children/8

The UN Security Council identified the Six Grave Violations against children during armed
conflict due to their especially egregious nature and severe impact on a child’s well being:

1. Killing or maiming

2. Recruitment or use of child soldiers

3. Rape and other forms of sexual violence

4. Abduction

5
ICTY, The Prosecutor v. Dusko Tadic, Judgment, IT-94-1-T, 7 May 1997, para. 561-568; see also ICTY, The
Prosecutor v. Fatmir Limaj, Judgment, IT-03-66-T, 30 November 2005, para. 84
6
ICTY, The Prosecutor v. Fatmir Limaj, Judgment, IT-03- 66-T, 30 November 2005, para. 135-170
7
ICTY, The Prosecutor v. Fatmir Limaj, Judgment, IT-03-66-T, 30 November 2005, para. 94-134
8
Report on the Impact of Armed Conflict on Children (A/51/306 and Addendum 1) August 1996
5. Attacks against schools or hospitals

6. Denial of humanitarian access

PROTECTION OF CHILD SOLDIERS

Children who are exposed to war and trapped in war zones, whose families are torn apart, can be
drawn into the fighting and may have to witness or be forced to perpetrate atrocities, sometimes
against their own families. The result can be a shattered childhood and scarring for life.9

Convention on the Rights of the Child defines “child” under art. 1 as follows:

“a child means every human being below the age of eighteen years unless under the law
applicable to the child, majority is attained earlier.”

Paris Principles and Guidelines on Children associated with Armed Forces of Armed Groups,
February 2007 defines the term “child associated with an armed force or armed groups” as
follows:

“refers to any person below 18 years of age who is or who has been recruited or used by an
armed force or armed group in any capacity, including but not limited to children, boys and
girls, used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only
refer to a child who is taking or has taken a direct part in hostilities.”

A protocol was adopted by UN General Assembly on 25th May, 2000 which came to be known
as Optional Protocol to the Convention on the Rights of the Child on the Involvement of
children in armed conflict. This protocol came into force on 12th February, 2002 and till now
168 countries have ratified the Optional Protocol.10 This protocol lays down various rules with
regards to recruitment of children in armed forces. Some of the important rules are:

 States will not recruit children under the age of 18 to send them to the battlefield.

9
ICRC, “Child Soldiers and other Children Associated with Armed Forces and Armed Groups”, International
Committee of Red Cross, p. 1 ( available at https://www.icrc.org/en/doc/assets/files/other/icrc-002-0824.pdf ) visited
on 9th January, 2019
10
Office of the Special Representative of the Secretary General for Children and Armed Conflict, United Nations
https://childrenandarmedconflict.un.org/tools-for-action/opac/
 States will not conscript soldiers below the age of 18.
 States should take all possible measures to prevent such recruitment –including
legislation to prohibit and criminalize the recruitment of children under 18 and involve
them in hostilities.
 States will demobilize anyone under 18 conscripted or used in hostilities and will provide
physical, psychological recovery services and help their social reintegration.
 Armed groups distinct from the armed forces of a country should not, under any
circumstances, recruit or use in hostilities anyone under 18.
 STATEMENT OF PROBLEM

In modern wars and armed conflicts children are extensively affected and also actively involved.
Since 1990, it has been estimated that 90 per cent of deaths due to armed conflicts around the
world have been caused to civilians and 80 per cent of these were caused to women and children.

Considering the vulnerable nature of children, they are highly likely to be deeply affected by
armed conflict. They are exposed to challenging circumstances as well as they become the direct
victims of conflicts. In conflict situations, not only are their lives at risk but they are also subject
to psychological and social harm, which affects their development into adulthood and can result
in a new generation of highly unstable characters. Children suffer not only from the lack of basic
needs, such as food and shelter, but also from violence and exploitation.

The overall wellbeing of children is in danger during the violence, the insecurity and the mass
instability of armed conflicts. Boys and girls are recruited to armed forces or armed groups,
either forcedly or voluntarily – which often means that a child does not have any other option.6
Recovery from the experiences of armed conflicts can, in many situations, be a burdensome
process. A child returning to civilian life is likely to face many challenges, and therefore the
support of their families and the community plays an important role.
 OBJECTIVES OF RESEARCH

The objective of my dissertation is twofold:

A) To differentiate between International and Non International Armed Conflict. This has been a
continuous debate between different forums and courts and also to understand the nature of
actions of belligerent. In any armed conflict, the Geneva Conventions can be applicable only if it
is within the well defined “armed conflict” provision and whether the state(s) involved in these
armed conflicts are following the customary law with regards to safety of civilians and non
armed groups.

B) To give a detailed analysis of protection of children during armed conflict by putting a special
emphasis on one of the grave violations of child rights i.e. “recruitment or use of children as
soldiers” by taking help of various international covenants on child rights and other war related
conventions and also taking into consideration various judicial pronouncements with regards to
protection of child soldiers

RESEARCH QUESTIONS

My dissertation will be researching upon following questions and co-relating it with current IHL
scenario:
 Difference between International and Non International Armed Conflict.
 Examples of different types of conflicts:
 Genocide
 War Crimes
 Crimes Against Humanity
 Conventions with regards to IAC, NIAC & Others
 Children in Armed Conflict and Conventions
 Child Soldiers
 SURVEY OF LITERATURE

 “The law & Practice of the International Criminal Court” edited by Carsten Stahn

After a decade of Court practice, this book takes stock of the activities of the International
Criminal Court, identifying the key issues in need of re-thinking or potential reform. It provides
a systematic and in-depth thematic account of the law and practice of the Court, including its
changes context, the challenges it faces, and its overall contribution to international criminal law.
The book is written by over forty leading practitioners and scholars from both inside and outside
the Court. They provide an unparalleled insight into the Court as an institution, its jurisprudence,
the impact of its activities, and its future development.

 The International Criminal Court: Challenges to Achieving Justice and Accountability

in the 21st Century By Mark S. Ellis; Richard J. Goldstone

Brings together a wide variety of resources on the history, structure, and mandate of the ICC. It
presents a general overview of court and offers a series of articles on the challenges facing the
international tribunal. Chapters include: History, Structue, Complementarity America and the
ICC, International Implementation and Objections, Gender crimes, Aggression, Security Council
and Darfur Referral, Enforcement and the ICC today.

 “Whose Crime Is It Anyway? the International Criminal Court and the Crime of
Aggression” By Kostic, Drew

This paper seeks to parse through this ambiguity by addressing the questions that will require
resolution by the judges at the ICC. The first section will provide a brief overview of the
negotiations at Kampala as well as discuss the final text that became the crime of aggression
amendments to the Rome Statute. The second section will analyze nine key questions that have
arisen regarding the elements of the crime as well as the ICC’s ability to exercise jurisdiction
over it and suggest how judges at the Court will likely interpret the text when these situations
come about. As the amendments will not enter into force until January 1, 2017 at the very
earliest, this analysis will function as the beginning of a dialogue on these topics in order to
generate a consensus over their answers and provide for a smooth transition into a new era of
international criminal law.

 “War & Law since 1945” Geoffrey Best

The book shows how the Second World War prompted reconstruction of international law, and
charts the fortunes of its relations with war since then. He surveys the whole range of
contemporary armed conflicts — high-tech international wars, wars of national liberation,
revolutionary risings and civil wars. Far more than a litany of the trouble-spots and tragedies of
the second half of the twentieth century, this book looks at contemporary history, law, politics,
and ethics.

 “Humanitarian Politics: The International Committee of Red Cross” by David P.

Forsythe
This book constitutes a study of the process by which the International Committee of the Red Cr
oss (ICRC) tries to protect and assist persons around the world. It deals primarily with the period
1945-75. It is directed to a very elusive, and perhaps mythical, reader the:
“general but sophisticated observer of world affairs”

 Occupation and Insurgency: A Selective Examination of the Hague and Geneva

Conventions on the Eastern Front, 1939-1945” by Colin D. Hearton
Occupation and Insurgency is a wonderfully researched book about Nazi domestic policy in the
Eastern European lands Germany conquered from 1941 to 1944, a topic relatively neglected until
now by military historians and Holocaust experts. Heaton’s argument shows how counterproduc
tive the Nazi’s brutal treatment of the Slavic population was. By giving racial policy in occupied
territories higher priority than the fight against Stalin, millions of potential supporters and soldier
were turned into efficient guerilla fighters who disrupted Wehrmacht supply and communication
 HYPOTHESIS
For the purpose of this study, the following hypotheses have been framed:
 Putting a stringent punishment on the offenders involved in child recruitment as soldiers
under domestic laws
 Providing compulsory educational facilities & other basic human needs to children in war
torn areas.
 Providing full protection to children in case of their participation in international criminal
trial for trying war offenders.
 RESEARCH METHODLOGY

The method of research is based upon the interpretation of the different conventions relating to
arm warfare under International Humanitarian Law and how these are to be applied theoretically
in a particular situation.

Also the method of research shall also be based upon the current happenings around the world
under International and Non International Armed Conflict and how the international
organizations and various countries are taking participation in these situations and what are their
contributions in controlling this warfare.

Also my dissertation research method will be based upon the hypothesis mentioned above by
taking into consideration the data since the end of World War II and the current armed conflicts
going in different countries in 2018. The main reason behind taking into consideration 80 years
of data is to analyze how the IHL came into existence, its various conventions, protocols,
domestic laws and international tribunal’s intervention in these situations.
 TENTATIVE CHAPTALIZATION

CHAPTER II
Origin of International Humanitarian Law
In order to understand the situation of victims of armed conflict, it is necessary to understand the
international humanitarian law first because without understanding its origin, one cannot
understand as to how the victims are provided protection under international law.

CHAPTER III
Armed Conflicts
This chapter deals with different types of armed conflict and current armed conflicts going on in
different parts of the world and different conventions providing protection to children during
armed conflict

CHAPTER IV
Children in Armed Conflicts
This chapter shall deal with six grave violations as provided by UN Security Council which are
faced by children during any armed conflict

CHAPTER V
Child Soldiers
This chapter shall provide detailed information as to who are child soldiers, under which
international provisions they are dealt with and the origin and current status with regards to child
soldiers’ recruitment.
CHAPTER VI
International Organizations Accountable
This chapter shall deal with the organizations including UN, UNICEF, OHCR, ICC among
others as to their approach to children in armed conflict

CHAPTER VII
Conclusion
 PROPOSED RESEARCH SOURCES
PRIMARY RESOURCES
 International Committee of Red Cross
 Commentaries on Geneva Conventions and Protocols
 International Criminal Court
 International Criminal Tribunal for Former Yugoslavia
 International Criminal Tribunal for Rwanda
 International Court of Justice
 African Court on Human Rights and People
 Supreme Court of America
 European Court of Human Rights
 European Court of Justice
 International Military Tribunal
 Special Court for Seirra Leone
 Special Tribunal for Yugoslavia

SECONDARY RESOURCES
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Human Rights Review, Vol. 8, No. 2, January-March 2007
 BRETT Rachel & MACCALLIN Margaret, Children: The Invisible Soldiers, Rädda
Barnen (Swedish Save the Children), Stockholm, 1996
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The Quarterly Journal, Vol. 3/3, September 2004
 DELISSEN Astrid J.-M., “Legal Protection of Child-Combatant after the Protocols:
Reaffirmation, Development or a Step Backwards”, in Humanitarian Law of Armed
Conflict- Challenges Ahead, Essays in Honour of Frits Kalshoven, Dordrecht, M.
Nijhoff, 1991
 DUTLI Maria Teresa, “Captured Child Combatants”, in IRRC, No. 278, September-
October 1990
 HAPPOLD Matthew, “Child Soldiers in International Law: The Legal Regulation of
Children’s Participation in Hostilities”, in Netherlands International Law Review, Vol.
47/1, 2000
 JESSEMAN Christine, “The Protection and Participation Rights of the Child Soldiers:
An African Global Perspective”, in African Human Rights Law Journal, Vol. 1/1, 2001,
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contemporaines au regard du droit international humanitaire et du droit international
penal”, Paris, Pedone, 2010
 MERMET Joël, “Protocole facultatif à la Convention relative aux droits de l’enfant
concernant l’implication d’enfants dans les conflits armés : quel progrès pour la
protection des droits de l’enfant ?”, in Actualité et Droit international”, June 2002,
http://www.ridi.org/adi.
 VANDEWIELE Tiny & ALEN André (eds), “A Commentary on the United Nations
Convention on the Rights of the Child: Optional Protocol: the Involvement of Children in
Armed Conflicts”, Leiden, Boston, M. Nijhoff, 2006
 VEERMAN Philip & HEPHZIBAH Levine, “Protecting Palestinian Intifada Children:
Peaceful Demonstrators, Child Soldiers or Child Martyrs?”, in The International Journal
of Children’s Rights, Vol. 9/2, 2001
 “Les enfants et la guerre”, in IRRC, No. 842, June 2001
 WEBSTER Timothy, “Babes with Arms: International Law and Child Soldiers”, in
George Washington International Law Review, Vol. 39, No. 2, 2007