The Right to Family Reunification of Displaced Children in Armed Conflict: Crossing Legal Borders in the Implementation of International Humanitarian and Human Right Law
Keywords:
Right to Family Reunification-Displaced Children-Armed Conflict- Crossing Legal Borders--International Humanitarian-Human Right Law-Abstract
Children as a minority group are understandably and predictably strongly affected by armed conflict. This negative experience becomes very precarious for these children in situations where they are separated from their families. As a preliminary remark, it should be acknowledged that while the effects of armed conflict are not always discernible and quantifiable in children, they remain present and multi-dimensional to such an extent that it would be extremely ambitious for any legal or normative framework to pretend to tackle them holistically. For those separated from their families, the risk of abuse and exploitation almost mathematically increases. In that sense, the quality of the experiences does not differ fundamentally between Internally Displaced Children or refugee children in that they are both deprived of their primary role model, their parents. In legal terms, however, internally displaced children do not benefit from the same level of protection that the status of refugee affords. The otherwise clear-cut legal distinction between IDPs and refugees appears, nevertheless, increasingly complicated to distinguish in its practice as both ‘internal’ and ‘external’ conflicts result often in refugee flows into the neighbouring countries. Although there is no constant pattern in the way that children are affected by each type of conflict, statistically over 20 million children have been displaced by war within and outside their respective countries. This figure serves well the purpose of indicating the size and urgency surrounding child displacement. Against an admittedly gloomy picture, the aim of this article is to discuss the legal aspects of the protection of separated children from both the viewpoint of international humanitarian law as well as of international human rights law under the Cameroonian point of view, in which due to the current crisis inflating the country, there has been a sporadic rise in the displacement of persons, and children in general from the two English Speaking regions. The main question addressed, through the comparative study of the two legal frameworks, will concern the compatibility and complementarities of the two regimes but also their responsiveness and adequacy for current humanitarian crises.
Do the two regimes award similar or contradictory rights? Do they result in the creation of legal gaps? Or do they simply follow radically different orientations?
References
1. Article 9, 10, and 12 of the 1989 Convention of the Right of the Child.
2. Article 23(1) of the International Covenant on Civil and Political Right 1966.
3. In conflict situations, where families are often torn apart and communities are displaced and divided, youth experience the political, social, economic and psychological effects of the war. These range from sexual abuse, grave psychological trauma to malnutrition, JFAL (2018) 38-47 © Law Journals 2018. All Rights Reserved Page 46 disease and lack of education. See United Nations, World Youth Report 2005: Young People Today and in 201 5, Department of Economic and Social Affairs 141 –152 (Oct. 2005) [hereinafter Word Youth Report 2005].
4. For a similar view see Alain Aeschlimann‚ Displaced Children Unaccompanied and Separated Children, Official Statement ICRC, Adding Colour to Peace - International Conference on Children Affected by Armed Conflict, Valencia, (Nov. 5–7, 2009).
5. Geneva Convention Relative to the Treatment of Prisoners of War (Aug. 12, 1949), 75 U.N.T.S. 135 herein referred as GC III.
6. Hamilton C. Armed Conflict: The Protection of Children under International Law. Available at www.essex.ac.uk/armedcon/international/c omment/Text/paper001.htm (last visited April 6, 2018).
7. Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. hereinafter referred to as AP II.
8. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 609 hereinafter referred as AP I.
9. Article 14 Geneva Convention IV.
10. Articles 17, 24(2), 49(3), 78, and 132(2) Geneva Convention IV; Article 78 Additional Protocol I; Article 4(3)(e) Additional Protocol II.
11. (Articles 23, 38, 50(5) and 89 Geneva Convention IV.
12. Articles 24, 25, 26, 49(3), 50, 82 Geneva Convention IV; Article 78 Additional Protocol I; Article 4(3b), 6(4) Additional Protocol II.
13. Article 24(1), 50, 94 GC IV; Article 78(2) AP I; Article 4(3) (a) AP II.
14. Articles 76(5), 82, 85(2), 89, 94, 119(2), 132 GC IV; Article 77(3) and (4) AP I; Article 4(3)(d) AP II).
15. Article 68(4) GC IV ; Article 77(5) AP I; Article 6(4) AP II.
16. Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, Aug. 12,1949, 75 U.N.T.S. 287 (entered into force Oct. 21,1956).
17. Article 24(1) GC IV in particular stipulates: “The Parties to the conflict shall take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition.”
18. Common Article 3 to all four Geneva Conventions constitutes an exception to this limitation insofar as it obliges parties, even in situations of internal conflicts, to provide limited protection to civilians. It disposes: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (i) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: a) violence to life and person, murder of all kinds, mutilation, cruel treatment and torture; b) taking of hostages; c) outrages upon personal dignity, humiliating and degrading treatment; d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. JFAL (2018) 38-47 © Law Journals 2018. All Rights Reserved Page 47 (ii) The wounded and sick shall be collected and cared for.
19. Protocol Additional to the Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) (hereinafter AP1).
20. Protocol Additional to the Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) (hereinafter AP II).
21. Article 77(1) of Additional Protocol 1.
22. Article 77(4).
23. Article 78(1) disposes. “No Party to the conflict shall arrange for the evacuation of children, other than its own nationals, to a foreign country except for a temporary evacuation where compelling reasons of the health or medical treatment of the children or, except in occupied territory, their safety, so require. Where the parents or legal guardians can be found, their written consent to such evacuation is required. If these persons cannot be found, the written consent to such evacuation of the persons who by law or custom are primarily responsible for the care of the children is required. Any such evacuation shall be supervised by the Protecting Power in agreement with the Parties concerned, namely, the Party arranging for the evacuation, the Party receiving the children and any Parties whose nationals are being evacuated. In each case, all Parties to the conflict shall take all feasible precautions to avoid endangering the evacuation.”
24. Article 77 AP I, supra note 19, and Article 4(3)(c) AP II, supra note 18.
25. This provision also retains the age of 15 years as a threshold for the recruitment of child soldiers and their direct participation in hostilities. Article 38(1) nevertheless contains a “bridging” provision with IHL legal texts by requiring the “respect for rules of IHL ...which are relevant to the child.” Cite this Article Nana Charles Nguindip. The Right to Family Reunification of Displaced Children in Armed Conflict: Crossing Legal Borders in the Implementation of International Humanitarian and Human Right Law. Journal of Family & Adoption Law. 2018; 1(1): 38–47p.
