Controversy at the Security Council: Children and Armed Conflict

by Kristen Boon

Children and armed conflict or “CAAC” (as the unharmonious acronym goes), has become a controversial area of activity for the UN Security Council.   Although the Security Council has adopted a series of important resolutions on the topic since 2005, its most recent foray into the fray led to four abstentions to Resolution 2068.   Azerbaijan, China, Pakistan and Russia declined to support the resolution, which largely repeated the language of prior resolutions.

Why the controversy?  Lurking behind attempts to address the induction of children into armed conflict situations are two important legal questions.

First, some query whether the definition of “armed conflict” established by the Geneva Conventions and Additional Protocols is met in the circumstances being investigated by the Special Rapporteur.  Specifically, some of the situations included in the SRSG’s reports force the issue of what status non-state actors should have under IHL, and particularly whether non-state actors can control territory.  In addition, its not clear whether the situations under investigation constitute sustained hostilities.  The Legal Opinion published in the UN Juridical Yearbook (2009) highlights this controversy.

Second, some countries are concerned that the Security Council is engaging in “mission creep” by considering situations in countries that are not otherwise on its agenda. The Security Council addresses CAAC listed on Annex 2 created under SC Resolution 1882. Most of these countries are not, however, part of the “situations” the Security Council has jurisdiction over pursuant to the usual Chapter VII procedure.  As a result, those suspicious of an activist Security Council assert situations are arriving on the Security Council’s agenda through a back door.

The biggest victims of the controversy are children.  The persistence of sexual assaults, attacks on schools and hospitals, and recruitment of children into armies is serious.   A number of countries have signed “action plans” with the UN to implement the principles in a concrete way.   The ICC’s Lubanga judgment of August 2012 reinforced this effort – convicting him of conscription and enlistment of children under 15 for use in active hostilities.   Similarly, the decision of the Special Court for Sierra Leone Tribunal in Taylor creates a strong legal framework to prosecute crimes against children.  The feisty new Special Rapporteur Zarrougi is not holding her punches.  She was to the point in her August 2012 report, and in her presentation to the Security Council in September.

Want to keep up to speed on this important issue?  Download this impressive new app developed by the Watchlist on Children and Armed Conflict and Liechtenstein’s mission to the UN, which collates key documents and policy questions on the issue.

http://opiniojuris.org/2012/10/23/controversy-at-the-security-council-children-and-armed-conflict/

4 Responses

  1.  
    Kristen, Thanks for calling attention to this important issue. What made the vote on resolution 2068 so surprising was that all 8 previous resolutions on children and armed conflict were adopted unanimously.  And as you point out, the real victims of the controversy are the children. While agreeing with your conclusion, I would raise two issues on the analysis.
     
    First, and taking your points in reverse order, Annex 2 –situations not on the agenda of the Security Council – is beyond controversy. The Security Council specifically (and unanimously) asked the Secretary-General to include such situations in his reports in resolution 1379 (2001), and it repeated this request, with reference to the relevant paragraph of resolution 1379, in its unanimous resolutions 1460, 1539, 1612, 1882, 1998 as well as several Presidential Statements. In asking for these reports in resolution 1379, the Security Council referred explicitly to article 99 of the Charter, which gives the Secretary-General authority to bring to the Council’s attention any matter which in his opinion may threaten international peace and security. This use of article 99 has been one of the greatest strengths of the Children and Armed Conflict agenda. Even the country which voiced the strongest criticism of the Secretary-General’s report in 2012 (Pakistan) strongly endorsed annex 2 when it was previously on the Council in 2004.
     
    Second, and in contrast, there has been an interesting legal question related to the definition of “armed conflict”, but I would place the emphasis differently. The controversy here dates back to 2003 when the Secretary-General’s report (the first to include annex 2) included situations in Northern Ireland and Chechnya as situations of armed conflict. The Secretary-General subsequently amended his report, reportedly at the insistence of certain countries, inter alia, to re-label these situations as “situations of concern” rather than “situations of armed conflict”. At the same time, caveats were put in the reports and in Security Council resolution 1539 and subsequent resolutions to make clear that inclusion of a situation of concern was without prejudice to the existence of an armed conflict or the status of the parties. Until now, this compromise was seen adequate to address concerns over the status of non-State actors. For some years though, it was unclear whether the Secretary-General had the mandate to include “situations of concern” in the report or was to be limited to situations of armed conflict. Resolution 1882 asks the Secretary-General to include “situations of concern” which OLA took as clarifying this mandate, although differing interpretations continue to exist (others argue that resolution 1882 refers to and must be interpreted in light of 1379’s reference to “situations of armed conflict”).
     
    While there is an interesting legal question of the threshold of armed conflict in the background, the main point is that the Secretary-General and his Special Representatives have approached their reports pragmatically and with a humanitarian emphasis, to ensure the maximum protection of children from grave violations committed in armed conflict. While taking guidance from IHL, they have managed to avoid pronouncing on potentially difficult legal questions and keep the focus on children. To many observers, the recent controversy was an attempt to intimidate the new Special Representative of the Secretary-General with a view to removing certain situations from future reports. It is worth noting that, of the 11 States which took issue with the Secretary-General’s report, 8 were States which were mentioned in the report. The vast majority of participating States, comprising States of all regions, some of whom were also mentioned in the report, remains steadfastly behind the pragmatic, humanitarian approach of the Secretary-General and his Special Representative.
     

  2. David – thanks for these additional points, and for flagging the controversy about “other situations of concern.”  With regards to Annex 2, this Security Council report flags the ongoing concerns about “mandate creep”:  http://www.whatsinblue.org/2012/09/children-and-armed-conflict-open-debate.php 

  3. It’s true that a few countries have tried to take issue with annex 2 and suggested it’s removal, but ultimately it’s been unanimously supported in all of the repeated resolutions (including by Colombia and India in resolutions 1998 and 2068) and Pakistan in resolution 1539. For a Member State to suggest the inclusion of this annex would go beyond the SG’s mandate could be perceived to call into question that State’s commitment to article 25 of the Charter.  

    During this year’s Open Debate on Children and Armed Conflict, only India used the term “mandate creep”. In using this term, it made clear that its issue was not with annex 2 per se, but rather with whether the situations mentioned in annex 2 or the body of the report (which included India) met the criteria for inclusion (i.e. whether they were in the SG’s opinion a threat to peace and security or an armed conflict).  
    Pakistan similarly expressed its concern about the SG’s compliance with his mandate in terms of whether the situations in the report (including Pakistan) amounted to situations of armed conflict or were considered to be threats to peace and security by the SG. In making their legal argument that the SG’s report should be limited to situations of armed conflict which in his opinion threaten peace and security, these countries rely on the SC resolutions prior to Resolution 1882 and in particular to paragraph 16 of resolution 1379 which is the most explicit endorsement of annex 2. So whatever merit their legal arguments have with regard to “situations of concern” (and again it is an interesting legal question), they can’t make them without accepting annex 2.

  4. PS: Stay tuned for a repeat next week, this time on Women, Peace and Security: http://www.whatsinblue.org/2012/10/women-peace-and-security-debate-1.php

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