The information below is provided ahead of an Arria-formula meeting on “Addressing the Abduction and Deportation of Children During Armed Conflict: Concrete Steps for Accountability and Prevention” on Friday, 28 April 2023 at 10:00am.
This post is aimed at supporting the objectives of the organizers (Albania, France, the US and Ukraine) to raise awareness about the abduction and deportation of children during armed conflict and to explore ways to address these violations and abuses. The post is organized based on the questions identified in the concept note for the meeting.
Key topics below
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Extent of abductions of children [336 words]
Areas identified by Watchlist in its recommendations for the SG report (19 April 2023).
Comments by SRSG on CAAC (18 July 2022).
Impact of abductions of children [124 words]
Comments by SRSG on CAAC (18 July 2022).
Report of SRSG on CAAC to Human Rights Council (9 January 2023).
Legal framework and required measures [1,228 words]
The Geneva Conventions
The Rome Statute and International Criminal Court
The Genocide Convention
The Convention on the Rights of the Child (CRC)
The Hague Convention
Best practices and practical steps [452 words]
Mostly drawing on the SRSG's guidance note on abduction:
Legislation and accountability
Monitoring and Reporting Mechanism
Dialogue on action plans
Advocacy
Incorporating abductions into peace processes
Extent of abductions of children [336 words]
On 19 April 2023, the NGO Watchlist on Children and Armed Conflict published its recommendations for the Secretary-General’s 2023 annual report on CAAC. Watchlist recalled that the Secretary-General was mandated in Security Council resolution 1379(2001) and subsequent resolutions to list parties to armed conflict that abduct children, among other grave violations. Watchlist referred to the abduction of children in these areas: > Afghanistan: SG's 2022 report listed the Taliban for abductions. > Burkina Faso: SG's 2022 report listed Jama’a Nusrat ul-Islam wa al-Muslimin (JNIM) for abductions. > Cameroon: On April 7, armed separatists reportedly kidnapped 33 seminary students in Bachuo-Ntai, South-West region, according to Human Rights Watch. > Ethiopia: In 2022, the SG added Ethiopia as a situation of concern with immediate effect, highlighting abductions and other grave violations. > Central African Republic (CAR): SG's 2022 report listed the LRA for abductions. > Lake Chad Basin: Boko Haram-affiliated and splinter groups, including Jama’atu Ahlis Sunna Lidda’awati wal-Jihad and Islamic State West Africa Province, are currently listed for abductions. > South Sudan: SG's 2022 report listed the South Sudan People’s Defense Forces, including Taban Deng-allied South Sudan People’s Defense Forces, as well as Sudan People’s Liberation Movement/Army in Opposition - pro-Machar, for abductions. > Ukraine: Watchlist recommended SG's investigation into abductions by Russian Government Forces and pro-government forces (see p.25 of Watchlist's report for details).
On 18 July 2022, upon release of her guidance note on abduction, the SRSG on CAAC noted that countries and regions presenting the highest numbers of children abducted in 2020 and 2021 were Somalia, the DRC, Syria, Burkina Faso, and the Lake Chad basin region, mostly affecting boys but with girls being increasingly targeted at an alarming rate. She provided further data on trends in her report to the General Assembly [A/77/143] and detailed specific cases in the SG's report to the Security Council [S/2022/493].
The SRSG on CAAC drafted the guidance note on abduction in close cooperation with UNICEF, the Department of Peace Operations and the Department of Political and Peacebuilding Affairs.
Impact of abductions of children [124 words]
On 18 July 2022, the SRSG on CAAC, Ms. Virginia Gamba, noted: "The abduction of children (to serve armed conflict), in contravention of applicable international law, has dramatic consequences on the physical and mental well-being of children, their families, and communities, with possible impacts on the long-term peace and security contexts. Even when released or if they managed to escape their captors, abducted children continue to face major challenges regarding their reintegration back into their communities."
In her recent report to the Human Rights Council, the SRSG noted that a child abducted and trafficked may become subject to recruitment and use or other forms of exploitation, including forced labour, forced marriage and sexual exploitation and slavery, among others [A/HRC/52/60, 9 January 2023, para 33].
Legal framework and required measures [1,228 words]
The following is mostly based on a legal analysis by Dr. Alison Bisset, Associate Professor in IHRL at the University of Reading, UK, writing for Articles of War, Lieber Institute, West Point.
The Fourth Geneva Convention prohibits the separation of children from their parents, for example - in the manner of the Russian so-called filtration processes. There are overarching obligations in Geneva Convention IV and Additional Protocol I to treat children humanely and with special respect and care. Altering nationality and citizenship and facilitating adoptions abroad are flagrant violations of Article 50 of Geneva Convention IV and contravene the principles embodied within the Fourth Convention that family unity is to be protected and respected.
Forcible transfer or deportation of civilians, including children, is prohibited under the Fourth Geneva Convention [Article 49(1)]. Under the Fourth Geneva Convention and Additional Protocol I, deportation or transfer of the civilian population of an occupied territory is a grave breach of these instruments which ought to be prosecuted.
Forcible transfer and deportation constitute crimes incurring individual criminal responsibility under the Statute of the International Criminal Court (ICC). These crimes also form part of customary international law by which all States are bound, not only States Parties to the Rome Statute. In an international armed conflict, the “deportation or transfer [by the Occupying Power] of all or parts of the population of the occupied territory within or outside this territory” is a war crime under Article 8(2)(b)(viii). It can also constitute a crime against humanity under Article 7(1)(d) where it is committed as part of a widespread or systematic attack directed against any civilian population, with knowledge.
In the case of Ukraine, Pre-Trial Chamber II of the ICC issued warrants of arrest to Mr. Vladimir Putin and Ms. Maria Lvova-Belova. It considered, based on the Prosecution’s applications of 22 February 2023, that there are reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children.
In addition, forcibly transferring children of a national group to another group, with intent to destroy that national group in whole or in part, may constitute genocide, as defined under Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide 1948, and replicated in Article 5 of the ICC Statute. The transfer of children, their subsequent adoption, and the potential for their nationalities to be erased, their language, customs, and religion changed, has serious implications for their national group.
International Human Rights Law is equally relevant as International Humanitarian Law, particularly the Convention on the Rights of the Child (CRC). As there is no general derogation clause under the CRC, the rights of children are to be respected at all times, including during armed conflict. The Committee on the Rights of the Child has already called for Russia to uphold its obligations to protect children from physical and psychological violence.
Several CRC provisions are aimed at protecting and maintaining family units and connections. Children have rights to a name and nationality and to know and be cared for by their parents [Article 7(1)]. States Parties undertake to respect the right of the child to preserve their identity, including name, nationality, and family relations, without unlawful interference [Article 8(1)].
CRC States Parties shall ensure that a child shall not be separated from their parents against their will. In case competent authorities determine that such separation is necessary for the best interests of the child, all interested parties shall be given an opportunity to participate in the proceedings. The child has a right to maintain regular contact with parents. The parents or another member of the family should be provided with the essential information concerning the whereabouts of the child [Based on CRC, Articles 9 and 10].
The Committee on the Rights of the Child stated that "in order to pay full respect to the obligation of States under Article 9 of the Convention to ensure that a child shall not be separated from his or her parents against their will, all efforts should be made to return an unaccompanied or separated child to his or her parents except where further separation is necessary for the best interests of the child, taking full account of the right of the child to express his or her views" [General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, para 81].
The child has a right to leave any country and any restrictions must be consistent with the other rights recognized in the Convention [Based on Article 10].
States Parties shall take measures to combat the illicit transfer and non-return of children abroad [CRC, Article 11].
Generally, no child is to be subjected to arbitrary or unlawful interference with their privacy, family, or home [CRC, Article 16(1)].
Article 21 of the Convention sets the best interests of the child as the paramount consideration in all matters related to adoption. In addition, its implementation obliges States to ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counseling as may be necessary [Report on illegal adoptions, Special Rapporteur on the sale of children, 22 December 2016, para 18].
The 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption develops the principles set out in the Convention on the Rights of the Child, including the principle of subsidiarity. According to Article 4 (b) of the 1993 Hague Convention, an adoption shall take place only if the competent authorities of the State of origin have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests [Report on illegal adoptions, Special Rapporteur on the sale of children, 22 December 2016, para 20]. Further to this, it must be noted that Ukraine has already suspended intercountry adoption.
UNICEF states that children separated from their parents during a humanitarian emergency cannot be assumed to be orphans and are not available for adoption. Until the whereabouts of a child's parent(s) or other close family members can be verified, each separated child – even those who were living in residential care before the war – is considered to have living close relatives. Every effort should be made to reunify children with their families when suitable, if such reunification is in their best interest.
States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form [CRC, Article 35].
Adoptions resulting from crimes such as abduction and any illicit activity or practice, such as lack of proper consent by biological parents, constitute illegal adoptions and must be prohibited, criminalized and sanctioned as such. Illegal adoptions violate multiple child rights norms and principles, including the best interests of the child [Report on illegal adoptions, Special Rapporteur on the sale of children, 22 December 2016, paras 25-26].
Best practices and practical steps [452 words]
The following is mostly based on the SRSG's guidance note on abduction.
Legislation and accountability: In her latest report to the General Assembly, the SRSG on CAAC urged all parties to armed conflict to immediately end impunity and prevent the occurrence and reoccurrence of grave violations committed against children; take all the necessary measures to achieve that aim, including the adoption and implementation of legislation criminalizing violations and abuses against children; and strengthen accountability [A/77/143, para 76].
Monitoring and Reporting Mechanism: The SRSG on CAAC noted in her guidance note on abduction that the Monitoring and Reporting Mechanism (MRM) is a UN-led process, established by the Security Council in its resolution 1612 (2005), which provides for the systematic gathering of accurate, timely, objective and reliable information on the six grave violations committed against children [including abduction] in situations of armed conflict, as well as in other situations of concern as determined by the Secretary-General. Such information is used as a basis to foster the accountability and compliance by parties to conflict with international child protection standards and norms, and should lead to well-informed, concerted and effective advocacy and responses to protect all children in situations of armed conflict [p.12]. In this regard, it is worth noting that 45 States recently invoked the OSCE Moscow Mechanism to investigate alleged forced transfer of Ukrainian children and their deportation into Russia. Human Rights Watch noted that the investigation had already begun and that the report will be due three weeks after the experts' mission.
Dialogue on action plans: Security Council resolution 2225(2015), which added abduction to the listing criteria for the SRSG report, called upon listed parties to enter into dialogue with the UN to develop and implement action plans with concrete and time-bound activities to halt those violations. Annex IV of the SRSG's guidance note on abduction provides a sample of concrete measures to be included in an action plan to end and prevent the abduction of children in armed conflict. Those measures focus on accountability, prevention, awareness-raising, capacity-building, and support services aimed at the release and reintegration of these children into their community. They also aim at preventing any future occurrence of the violation in the first place.
Advocacy: It is crucial to engage in advocacy campaigns at the community-level, with community or religious leaders, families, youth groups, education and medical personnel, among others. Advocacy efforts should also include regular exchanges with embassies and donors present in concerned countries.
Incorporating abductions into peace processes: The SRSG on CAAC provides recommendations on measures to include in peace negotiations and other mediation efforts, with the support of Child Protection staff, to end and prevent violations against children, including abductions [guidance note on abduction, pp. 34-36].