Specific vulnerabilities

Women

Under IHL, special protection is afforded to women.

Special protection and adverse distinction

Women benefit from special protection under IHL.¹In particular, the law protects pregnant women and maternity cases. ² Expectant mothers must be the object of particular protection and respect.³

Specific rules protect women who qualify as prisoners of war or who are civilian internees, including the protection of their sexual integrity.⁴ As prisoners of war, women must be placed in separate dormitories and conveniences from men.⁵ The same applies to women whose liberty has been restricted in NIAC.⁶ The distinction also remains when undergoing judicial or disciplinary punishment.⁷

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.

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.⁸ In addition to treaty law, this requirement reflects customary law applicable in all armed conflicts. ⁹

In all armed conflicts children must 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.¹⁰ 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.¹¹ In addition, all rules specify that children may be evacuated from areas in which hostilities are taking place.¹²

In occupied territories, the Occupying Power may not compel persons under 18 years of age to work.¹³ It must also facilitate the care and education of children and take all necessary steps to facilitate the identification of children.¹⁴ In case of detention in occupied territory, proper regard shall be paid to the special treatment due to minors.¹⁵ 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.¹⁶

Recruitment and use in hostilities

IHL governing all armed conflicts strictly regulates the recruitment and use of children in armed conflicts. Under Additional Protocols I and II of 1977, no child under the age of 15 may be recruited – whether the recruitment is voluntary or compulsory – or allowed to participate in hostilities. These rules are the basis of a war crime as set out in the Rome Statute.¹⁷

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.¹⁸ 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)¹⁹ and States (which are required to raise the age for voluntary recruitment above 15 but may allow children under 18 to enlist voluntarily).²⁰

During the conduct of hostilities, IHL does not afford special protection to children directly participating in hostilities. However, they will benefit from special protection once they fall into the power of a party, whether or not they are prisoners of war.²¹

1
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
2
Arts, 21, 22, and 23 GC IV
3
Art 16 GC IV
4
See, among others, Art 108 GC III and Art 97(4) GC IV
5
Arts 25(4) (on dormitories) and 29(2) (on conveniences) GC III
6
Art 5(2)(a) AP II
7
Arts 97(4) and 108(2) GC III; Art 119(2) GC IV
8
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)
9
ICRC, Customary IHL Rule 135: ‘Children’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule135
10
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
11
Art 4(3) AP II
12
SeeArt 17 GC IV for IACs, and Art 4(3)(e) AP II for NIACs
13
Art 51 GC IV
14
Art 50 GC IV
15
Art 76 GC IV
16
Art 89(5) GC IV
17
See Art 77(2) AP I; Art 4(3)(c) AP II; Art 38 CRC. See ICC, in Prosecutor v Lubanga (14 March 2012), paras 627–628, for the understanding of participation in hostilities for the war crime.
18
Arts 1 and 2, Optional Protocol on the Involvement of Children in Armed Conflict
19
Art 4(1), Optional Protocol on the Involvement of Children in Armed Conflict
20
Art 3, Optional Protocol on the Involvement of Children in Armed Conflict
21
Art 77(3) AP I