Options for a Peace Settlement in Ukraine: Options Paper IX – Children

[Diane Marie Amann is Regents’ Professor of International Law, Emily & Ernest Woodruff Chair in International Law, and Faculty Co-Director of the Dean Rusk International Law Center at the University of Georgia School of Law. In Summer 2022, she is a Visiting Academic at University College London Faculty of Laws. She thanks Alexander F. Krupp, University of Georgia School of Law J.D. candidate, for research assistance.]

The post below summarises Amann’s much longer treatment of Ukraine-Russia settlement options regarding children; her full paper, with copious citations, is on the Ukraine Peace Settlement Project website. The views expressed are hers alone.

Children and the Ukraine-Russia Conflict

In the months since Russia’s 24 February 2022 invasion of Ukraine, children reportedly have sustained a panoply of harms:

• Hundreds have been killed or wounded, often by weapons meant for indiscriminate attacks. The spectre of nuclear attack has loomed.
• Children have been subjected to sexual and gender-based violence.
• They have lost thousands of loved ones, civilians and combatants alike.
• More than half of Ukraine’s children – 4.5 million or more – have fled, as refugees, as internally displaced, or as deportees to Russia. Children had to abandon their education. They were denied medical care and access to humanitarian aid, even attacked, as in the bombing of a maternity hospital that claimed the life of a just-delivered infant and its mother. Children were deprived of shelter and food.
• Although child-soldiering allegations were debunked, the longer the conflict drags on, the more likely it will become that children will be recruited into armed service or used in hostilities. The risk of trafficking is acknowledged.
• Attributes like ethnicity, LGBTI identity, or disability generate additional risks, and many harms affect children disproportionately.

Syntheses of International Legal Frameworks on Children and Armed Conflict

Despite this, Ukraine-Russia settlement discourse has centred on grand strategy. Excepting President Volodymyr Zelensky’s emphasis on displaced Ukrainians, little has been said about vulnerable populations, and very little at all about children.

That may reflect a tradition by which peace agreements focused on so-called hard security issues. Even as human rights terms became more common, early references to children dwelt on child soldiering. Thus the preamble to the 1999 Lomé Agreement expansively

‘[r]ecognis[ed] the imperative that the children of Sierra Leone, especially those affected by armed conflict, in view of their vulnerability, are entitled to special care and the protection of their inherent right to life, survival and development …’

But it yielded just two provisions, on education/health and child soldiers.

Projects since Lomé have synthesised international legal frameworks like child rights, human rights, humanitarian law, criminal justice, refugee law, and transitional justice. This settlement-options paper draws on two projects, the:

• United Nations’ children and armed conflict agenda; and

• Policy on Children published in 2016 by International Criminal Court Office of the Prosecutor, on which this author was honoured to work when she served as Special Adviser to Prosecutor Fatou Bensouda on Children in and affected by Armed Conflict. (Neither Russia nor Ukraine belongs to the ICC’s 1998 Rome Statute, but Ukraine accepts the court’s jurisdiction over acts since 2013 and is working with its investigators; what is more, the court’s decisions on Myanmar extend its jurisdiction in relevant ways.)

Such syntheses influence other international organisations; for instance, the Syria war crimes mechanism is mandated to consider children and to appoint personnel ‘with expertise in … children’s rights and crimes against children’.

Syntheses also may inform peace processes: as Professor Christine Bell observed in Peace Agreements and Human Rights 313 (OUP 2003), ‘the international legal positions taken during the conflict shape the central deal’, and even when conflict is ongoing, ‘willingness and ability to enforce a human rights framework is therefore crucial’.

Syntheses’ International Legal Sources

A touchstone is the near-universally ratified 1989 Convention on the Rights of the Child, its Optional Protocols, and the work of its Committee on the Rights of the Child. (Ukraine and Russia belong to the main treaty and to its two 2000 Optional Protocols, on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography. Ukraine belongs to its 2011 Optional Protocol on a communications procedure.)

Tables in the Appendix to the full version of this paper list, along with key dates and parties, those treaties and the instruments below:

• International treaties like the 1948 Genocide Convention; 1949 Geneva Convention (IV) on Civilians; 1951 Refugee Convention; 1966 Convention on the Elimination of All Forms of Racial Discrimination; 1966 International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights; 1968 Nuclear Non-Proliferation Treaty; 1979 Convention on the Elimination of all Forms of Discrimination Against Women; 1980 Convention on Certain Conventional Weapons; 1984 Convention against Torture; 1997 Landmines Convention; 1998 Rome Statute of the International Criminal Court; 1999 International Labour Organisation Convention (No. 182) on Worst Forms of Child Labour; 2000 Protocol on Trafficking in Persons, especially Women and Children; 2006 Convention on the Rights of Persons with Disabilities; 2007 Enforced Disappearance Convention; 2008 Cluster Munitions Convention; and relevant protocols.

• Regional treaties like the 1950 European Human Rights Convention.

• Soft law instruments like the 1948 Universal Declaration of Human Rights; 2005 UN Guiding Principles on Internal Displacement; 2007 Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation; 2007 Paris Principles on Children Associated with Armed Forces or Armed Groups; 2015 Safe Schools Declaration; and 2017 Vancouver Principles on Peacekeeping and the Prevention of the Recruitment and Use of Child Soldiers.

Syntheses, the Child, and Child Rights

International child law syntheses embrace the four general principles undergirding the 1989 Convention:

• non-discrimination;
• the best interests of the child;
• the right to life, survival and development; and
• the right to express one’s views and have them considered.

This embrace has implications regarding age, society, and capability:

Children and age: Like the 1989 Convention, the syntheses define ‘child’ as anyone under 18. The Convention sets 15 for child-soldiering prohibitions, but its 2000 Optional Protocol on children in armed conflict raises to 18 the age for use in hostilities and compulsory recruitment. The UN children and armed conflict agenda favours the higher limit. The ICC OTP Policy regards the under-15 threshold in the 1998 Rome Statute as a jurisdictional element for child-soldiering crimes; for enumerations of crimes and pledges to take children’s experiences into account, anyone under 18 is a child.

Children and larger societies: Age cannot define the child’s place in society. Accordingly Article 29 of the 1989 Convention concerns both the child’s personal development and ‘development of respect’ for family, cultural identity, national values, international human rights, and the natural environment, to prepare ‘the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin’. This interplay of concerns is salient in adolescence, as discussed in General Comment No. 20, which the UN Committee on the Rights of the Child published in 2016.

The ICC OTP Policy issued that same year similarly acknowledges ‘children as persons with individual rights, as members of families and as constituents of multi-generational communities’, and encourages inquiry into

‘the significance of attributes like age and birth, and the degree to which they may give rise to multiple forms of discrimination and social inequalities, either alone or as they intersect with other factors, like race, ability or disability; religion or belief; political or other opinion; national, ethnic or social origin; gender, sex, sexual orientation; or other status or identity …’

The child’s capabilities and vulnerabilities: International humanitarian law provides: ‘Children affected by armed conflict are entitled to special respect and protection’. That said the 1989 Convention does not presume all children always are ‘vulnerable’; rather, it stresses ‘the evolving capacities of the child’. The ICC OTP Policy likewise states:

‘Children, by the very fact of their youth, are frequently more vulnerable than other persons; at certain ages and in certain circumstances, they are dependent on others. Notwithstanding any vulnerability and dependence, children possess and are continuously developing their own capacities – capacities to act, to choose and to participate in activities and decisions that affect them’.

This conceptualisation evokes the 1989 Convention’s fourth general principle, by which the newest General Comment of the UN Committee on the Rights of the Child, No. 25 (2021), looks to ‘realize children’s participation at the local, national and international levels’, to enable children ‘to express their views’, and ‘to participate on an equal basis with adults … so that they can be effective advocates for their rights, individually and as a group’.

Conflict Harms to Children As Grave, Even Criminal, Violations of International Law

In a milestone weeks after the 1999 Lomé Agreement, UN Security Council Resolution 1261

‘[s]trongly condemn[ed] the targeting of children in situations of armed conflict, including killing and maiming, sexual violence, abduction and forced displacement, recruitment and use of children in armed conflict in violation of international law, and attacks on objects protected under international law, including places that usually have a significant presence of children such as schools and hospitals, and call[ed] on all parties concerned to put an end to such practices…’

That spurred the UN conflict and armed conflict agenda, involving the UN Office of the Special Representative of the Secretary-General for Children and Armed Conflict, the Council’s Working Group on Children and Armed Conflict, the Secretary-General, UNICEF, and others. Through a Monitoring and Reporting Mechanism, they publicise data on practices condemned by Resolution 1261 and its successors. Known as the ‘Six Grave Violations’, they are:

• killing or maiming of children;
• rape and other forms of sexual violence against children;
• abduction of children;
• attacks against schools or hospitals;
• recruitment and use of children in armed forces or armed groups; and
• denial of humanitarian access.

The UN’s Six Grave Violations overlap with ‘crimes directed specifically against children or those that disproportionately affect them’ identified in the ICC OTP Policy, as codified in Articles 5-8 of the Rome Statute:

• torture and related crimes such as inhumane acts, inhuman or cruel treatment, and wilfully causing great bodily suffering, as war crimes and crimes against humanity;
• sexual and gender-based crimes against children of all genders, including rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilisation, as war crimes and crimes against humanity;
• forcible transfer of children and prevention of birth, as acts of genocide;
• attacks on buildings dedicated to education and health care, as war crimes;
• conscription, enlistment and use of children under 15 years to participate actively in hostilities, as war crimes;
• trafficking of children as a form of enslavement constituting a crime against humanity; and
• persecution, on grounds including status as a child, ethnicity, religion, and gender, as a crime against humanity.

Other Rome Statute crimes merit addition:

• deportation or forcible transfer of population, and enforced disappearance, as crimes against humanity; and the
• crime of aggression.

This catalogue offers a basis for efforts at transitional justice, not limited to criminal prosecution, and for peace settlement processes.

International Child Law Syntheses and Options for the Ukraine-Russia Peace Settlement Processes

Applying to the Ukraine-Russia conflict the ‘imperative’ to consider children, this paper relies on the syntheses and on two peace pacts: Sierra Leone’s 1999 Lomé Agreement, just quoted, and Colombia’s 2016 Acuerdo Final para la Terminación del Conflicto y la Construcción de una Paz Estable y Duradera. The paper first applies child rights precepts, and then evaluates ‘independent’ and ‘composite’ options for including children in a peace agreement.

Precepts: Process and Preamble Options

Precepts by which peace processes may heed children are grounded in the global treaty regime of the 1989 Convention – a regime that any agreement should confirm, as early as its preamble.

Presenting one way to do so is Colombia’s Acuerdo Final, which includes ‘the right of boys, girls, and adolescents’ in a preambular list of human rights. But paper builds on the 1999 Lomé Agreement preamble, quoted at top, to propose a fuller statement:

Recognising that this armed conflict has affected children of all ages, genders, capacities, and vulnerabilities, in particular and often disproportionate ways, it is imperative that the parties, as well as this agreement and its implementation, respect and ensure the rights of children, articulated in treaties to which the parties belong, particularly the 1989 Convention on the Rights of the Child and its Optional Protocols, and understood to comprehend, as guiding principles, the right of non-discrimination, the right of best interests of the child, the right of life, survival and development, and the right to express one’s views and have them considered.

This pledge suggests directions both for peace processes and for the overall preamble.

Processes: According to the fourth general principle just listed, by no means is every child too young to express views on armed conflict or to take part in processes designed to end it. Children who possess what the ICC OTP Policy described as the ‘capacities to act, to choose and to participate in activities and decisions that affect them’ must be given an opportunity to do so.

A potential model for children’s participation is the Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation which arose out of a 2007conference including ‘survivors of sexual violence in situations of conflict’ in Europe and elsewhere. Its paragraphs on participation included this one:

‘In order to achieve reparation measures sensitive to gender, age, cultural diversity and human rights, decision-making about reparation must include victims as full participants, while ensuring just representation of women and girls in all their diversity. Governments and other actors must ensure that women and girls are adequately informed of their rights’.

Application of paragraphs like this – replacing ‘women and girls’ and ‘victims’ with phrasing like ‘children of all ages and genders, to the extent of their capacities’ – could delineate children’s participation in Ukraine-Russia peace processes.

Preamble: This paper’s proposed pledge also refers to general principles of non-discrimination, best interests, and life, survival, and development, and that suggests adding this preambular paragraph:

Recognising that the particular, and often disproportionate, harms that children endure in armed conflict may constitute grave, even criminal, violations of international law, including but not limited to those violations enumerated in the ‘Six Grave Violations’ of the UN children and armed conflict agenda and in the 1998 Rome Statute of the International Criminal Court, and pledging to refrain from commission of those harms; …

Subsequent paragraphs then might contain commitments – or recommitments – to treaties and soft law instruments. As Grant Dawson, former principal legal officer of the Organisation for the Prohibition of Chemical Weapons, wrote in one settlement-options paper:

‘Where such obligations exist, they may be recalled or reinforced in any peace agreement. Where obligations do not exist, new obligations can be contemplated and memorialised in the peace agreement.’

The full version of this paper thus proposes preambular paragraphs that: reaffirm child rights, human rights, anti-discrimination, anti-torture, protection of civilians, and arms control treaties to which Ukraine and Russia belong; promise to consider joining other treaties, including the 1998 Rome Statute; and (re)endorse soft law instruments.

Options for Including Children in the Substance of the Agreement

Including children in the overall agreement may entail ‘independent’ or ‘composite’ options.

Independent option: By the ‘independent’ option, a chapter labelled ‘Children’ might contain articles itemising pertinent children’s issues. Iin an agreement organised by thematic chapters – ‘Education’, ‘Resettlement’, and the like – each chapter might include a separate, child-specific article.

Quoting the 1999 Lomé Agreement’s two child-specific provisions, this paper cites a few issues in which children require mention:

• End the war, withdraw troops, and guarantee Ukraine’s independence, stability, and security.
• Maintain humanitarian-aid corridors.
• Return children, whether they are refugees, internally displaced, or deportees.
• Reintegrate children uprooted by recruitment into armed service, use in hostilities, trafficking, and the like.
• Account for crimes, through investigation and adjudication. Mechanisms would require expertise on children and armed conflict – not stated in public documents related to the UN Commission of Inquiry on Ukraine launched in March 2022.

But separate articles could be lengthy and duplicative, and could cut children off from other communities.

Composite option: The paper thus proposes a ‘composite’ option, by which the agreement would name children explicitly in every provision in which they have a stake, thus reducing length and recalling that: 1) children are ‘persons with individual rights’, ‘members of families’, and ‘constituents of multi-generational communities’; and 2) their age intersects with ‘race, ability or disability; religion or belief; political or other opinion; national, ethnic or social origin; gender, sex, sexual orientation; or other status or identity’.

Precedent may be found in Colombia’s 2016 Acuerdo Final, which makes three dozen references to ‘niños, niñas y adolescentes’, or ‘boys, girls, and adolescents’. The formulation acknowledges that the experiences, capabilities, and needs of a child will differ according to age, gender, sex, and sexuality. Various provisions mention ‘boys, girls, and adolescents’ in relation to ‘women’, ‘women and men’, ‘elder persons’, ‘youths’, and the ‘LGBTI population’. The agreement situates boys, girls, and adolescents within an array of communities – some ‘vulnerable’ or subjected to ‘discrimination’ or ‘exclusion’ – with attributes like colour, race, ethnicity, indigeneity, African ancestry, pregnancy or lactation, disability, rural or displaced status, religion, or political or social opinion.

Conclusion

Relying on syntheses arising out of two projects, and on two peace agreements, this paper posits options for including children in any Ukraine-Russia process. A mix of options is perhaps advisable. What is essential is that the mix include the experiences, needs, rights, capacities – and views – of children.