CYIL vol. 12 (2021)

peter klanduch CYIL 12 (2021) system of protection based on the principles of military necessity, humanity, distinction, proportionality, and precautionary measures sets the constraints for military action. The right to life is a fundamental right and arbitrary killing is prohibited by many international and regional human rights instruments, including Article 6 of the CRC. Deliberate attacks aimed at children are the most reprehensible violations of children’s rights. Attacking children is not only legally prohibited but also morally wrongful and indefensible. 21 Indiscriminate attacks are violating the IHL principle of distinction and in a particular case might be also violating the principle of proportionality. There are certain types of weapons that have inherently indiscriminate nature and that are known for causing particular suffering to civilians, often children, such as biological and chemical weapons (which are prohibited in any circumstances), landmines, and cluster munition. 22 Particularly deceitful are booby-traps attached to or associated with children’s toys or other portable objects or products specially designed for the feeding, health, hygiene, clothing, or education. 23 On the other hand, there is general acceptance that if the deprivation of life takes place during the conduct of hostilities in line with the principles of IHL, it is not considered “arbitrary.” This includes the situations of the use of lethal force against combatants as well as incidental deaths resulting from proportionate attacks directed against military targets. 24 Civilians, including children, are protected against direct attack “unless and for such time as they take a direct part in hostilities.” 25 However, they lose this protection if they take up arms and directly participate in military activities. Killing and maiming of children is one of the “six grave violations” and it is not a coincidence that due to its gravity, this category of crimes usually appears at the top of the list. While the term “killing” covers actions resulting in death, we must acknowledge that not all of them can be qualified as law violations. A soldier exercising the right to self-defense may be forced to use lethal force even against children. Furthermore, children participating in hostilities become lawful targets and others may be lawfully killed in collateral damage. In Nigeria, for example, the militant group Boko Haram often used abducted girls as human bombs, tying improvised explosive devices to their bodies and forcing them to perpetrate suicide attacks. 26 In 2017, this strategy led to over half of all the verified child casualties in the country. 27 21 Nathanson, Stephen. “Are Attacks on Civilians Always Wrong?” in Lovell, D.W., Primoratz, Igor ed. Protecting Civilians during Violent Conflict: Theoretical and Practical Issues for the 21st Century, Farnham, Surrey, England; Burlington, Vt.: Ashgate, 2012, pp. 17–21. 22 E.g., Rome Statute, Article 8(2)(b)(xvii)-(xx); see also the Amendment to article 8 of the Rome Statute of the International Criminal Court, 10 June 2010, 2868 UNTS 195; and the Resolution on amendments to Article 8 of the Rome Statute of the International Criminal Court (ICC-ASP/16/Res.4) of 14 December 2017. 23 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II, as amended on 3 May 1996) annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, 3 May 1996, 1342 UNTS 168. 24 Fatima, Protecting Children, p. 148. 25 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), 8 June 1977, 1125 UNTS 3, Article 51(3); Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non- International Armed Conflicts (Additional Protocol II), 8 June 1977, 1125 UNTS 609, Article 13(3). 26 UN Doc. A/HRC/40/49, para. 11. 27 Children and Armed Conflict. Report of the Secretary-General, UN Doc. A/72/865-S/2018/465, para. 7.

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