Specific vulnerabilities

Women

Under IHL, special protection is afforded to women, based upon perceived vulnerabilities,

whether objectively and physiologically justified, or based on social stereotypes. Treaty IHL also understands gender as limited to biological sex and does not go further than a binary distinction between males and females. This obvious gap has been tentatively addressed in the case-law on international criminal law, as well as in customary IHL.

Special protection and adverse distinction

The special protection afforded to women seemingly is in tension with the prohibition on discrimination based on sex. On the one hand, treaty and customary IHL (in both IAC and NIAC) prohibit adverse distinction;¹ on the other hand, certain rules and provisions afford women special protection. The prohibition on adverse distinction implies that when men and women belong to a broader category (such as civilians in the power of the enemy, or wounded, sick or shipwrecked), no difference of treatment may exist based on sex. Yet, women, as a category on its own, do benefit from special protection according to IHL.²

In particular, the law protects pregnant women and maternity cases. For example, rules on humanitarian assistance provide that certain goods (such as essential foodstuffs, clothing and tonics) must be allowed through if related to expectant mothers and maternity cases.³ The transportation of maternity cases must also be respected and protected.⁴ In the same vein, expectant mothers must be the object of particular protection and respect.⁵ In addition to expectant mothers, mothers of children under the age of seven years may be protected from the effects of war through safety zones and localities.⁶

Numerous rules protect women who qualify as prisoners of war or civilian internees, notably related to the protection of their sexual integrity.⁷ As prisoners of war, women must be treated with all regard due to their sex, ⁸ including by enjoying separate dormitories and conveniences from men;⁹ the same applies to persons whose liberty has been restricted in NIAC.¹⁰ The distinction also remains when undergoing judicial or disciplinary punishment.¹¹

Children

Beyond general protection rules (such as those on humane treatment), numerous IHL instruments foresee provisions relating to children, who are regarded as particularly vulnerable. It must nevertheless be noted that not all instruments share the same scope, as the age to define children generally varies between 15 to 18 years. In any case, rules pertaining to the protection of children cover a broad range of situations.

Special respect and protection

As a general principle, under treaty law governing international and non-international armed conflict, children are entitled to special respect and protection.¹² In addition to treaty law, this requirement reflects customary law applicable in all armed conflicts. ¹³

Similarly, in all armed conflicts children shall be provided with the care and aid they require. Rules pertaining to IAC are more developed, comprising detailed provisions on food, clothing and care of orphaned or separated children, as well as regarding distribution of specific relief consignments.¹⁴ In NIACs, treaty rules are more limited but nevertheless mention that children shall be provided with the care and aid they require, in particular religious and moral education.¹⁵ In addition, all rules specify that children may be evacuated from areas in which hostilities are taking place.¹⁶

In occupied territories, the Occupying Power may not compel persons under 18 years of age to work.¹⁷ It must also facilitate the care and education of children and take all necessary steps to facilitate the identification of children.¹⁸ In case of detention in occupied territory, proper regard shall be paid to the special treatment due to minors.¹⁹ In case of internment in either occupied territory or on the territory of a party to the conflict, protected persons under the age of 15 years shall be given additional food.²⁰

Recruitment and use in hostilities

Perhaps more importantly, IHL governing all armed conflicts strictly regulates the recruitment and use of children in armed conflicts. However, it must be noted that those instruments adopt a different scope regarding the precise age of children to be protected. In any case, and under Additional Protocols I and II to the GCs, the age of 15 is the minimum threshold below which recruitment – whether voluntary or compulsory – and participation in hostilities of children are prohibited. This age limit forms the basis of the corresponding war crime.²¹

It is worth mentioning that, under human rights law, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict raises the threshold of compulsory recruitment and of use in hostilities to the age of 18 years.²² Regarding voluntary recruitment, the Optional Protocol on the Involvement of Children in Armed Conflict creates a distinction between non-state armed groups (which are prohibited from recruiting and using in hostilities children under 18 years of age)²³ and States (which are required to raise the age for voluntary recruitment above 15 but may allow children under 18 to enlist voluntarily).²⁴

During the conduct of hostilities, IHL does not afford special protection to children directly participating in hostilities. As such, they may qualify as legitimate targets, regardless of whether such children voluntarily joined or were forcibly recruited into the armed forces/armed group. However, such children participating in hostilities will benefit from special protection once they fall into the power of a party, whether or not they are prisoners of war.²⁵

1
See Common Art 3(1) GCs; Art 12 GC I; Art 12 GC II; Art 16 GC III; Art 13 GC IV; Art 75 AP I; ICRC, Customary IHL Rule 88: ‘Non-Discrimination’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule88
2
Art 12(4) GC I; Art 12(c) GC II; Art 14(2) and 27(2) GC III; Art ; Art 76(1) AP I; ICRC, Customary IHL Rule 134: ‘Women’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule134
3
Art 23 GC IV
4
Arts 21 and 22 GC IV
5
Art 16 GC IV
6
Art 14 GC IV
7
See, among others, Art 108 GC III and Art 97(4) GC IV
8
Art 14(2) GC III
9
Arts 25(4) (on dormitories) and 29(2) (on conveniences) GC III
10
Art 5(2)(a) AP II
11
Arts 97(4) and 108(2) GC III; Art 119(2) GC IV
12
Art 77(1) AP I; Art 4(3) AP II. The Convention on the Rights of the Child mentions ‘protection and care of children who are affected by an armed conflict’ at Art 38(4)
13
ICRC, Customary IHL Rule 135: ‘Children’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule135
14
See, among others, Art 23 GC IV (consignment of foodstuffs, clothing and tonic intended for children under 15), Art 24 GC IV (measures relating to child welfare, such as maintenance, exercise of religion and education), Art 38 GC IV (preferential treatment for children under 15 years of age), as well as Art 70(1) AP I
15
Art 4(3) AP II
16
SeeArt 17 GC IV for IACs, and Art 4(3)(e) AP II for NIACs
17
Art 51 GC IV
18
Art 50 GC IV
19
Art 76 GC IV
20
Art 89(5) GC IV
21
See Art 77(2) AP I; Art 4(3)(c) AP II; Art 38 CRC. Nonetheless, the exact scope of the notion of ‘participation in hostilities’ remains unclear. The ICC, in Prosecutor v Lubanga (14 March 2012), paras 627–628, has adopted an understanding of participation in hostilities that is broader than the traditional concept of direct participation in hostilities. On the other hand, Art 77(2) AP I adopts the same language as the one used for direct participation in hostilities
22
Arts 1 and 2, Optional Protocol on the Involvement of Children in Armed Conflict
23
Art 4(1), Optional Protocol on the Involvement of Children in Armed Conflict
24
Art 3, Optional Protocol on the Involvement of Children in Armed Conflict
25
Art 77(3) AP I