CHILDREN IN CRISIS PROTECTION OF REFUGEE CHILDREN AND CHILDREN INTERNALLY DISPLACED: A LEGAL-HUMAN RIGHTS PERSPECTIVE

Wars, international armed conflicts or civil wars, are all about negation of all rights. Armed conflicts and massive violations of human rights continue to elude the efforts of the international community to prevent them. Laws do not offer any easy answers as to how to prevent any infringement of basic dignity and integrity of all peoples, both in times of war and peace. The general feeling is that conventions, covenants and declarations are on paper and abuses of human rights a ground reality. Human rights are those basic fundamental and inalienable rights which are essential to the life of every human being. These rights may, however, be interpreted as being different in the context of particular economic, social, cultural and political society in which they are located.
In situations of armed conflicts, both international and internal, the immediate outcome of such conflicts is the massive outflows of refugee flows and vast masses of people being internally displaced. While the events which lead to such massive displacements, both internally and across national borders, may be particular to each setting, certain common factors remain. Immediate threat to life, liberty and security, deliberate massive and systematic violations of human rights by brutal authoritarian regimes, mass expulsions, savage attacks by government forces in response of a failed rebellion, adoption of scorched-earth policies in enemy territories leading to destruction of livelihoods and habitats, denial of  access to food supplies coupled with economic underdevelopment have become major causes of mass displacement and refugee outflows all around the world. Such displacements take place suddenly and under highly stressful circumstances. No matter what the causes of such massive displacements, children are the most tragic consequences of any war or armed conflict and pay the heaviest price for the short-sighted economic policies, political blunders and wars, robbed of their childhood and normalcy of living in their homes and lands. No matter whether they have crossed borders or have remained in their  disrupted and threatened villages and towns, they are the ultimate victims of such events.
This Article seeks to shed a small light on the issue of child refugees/ internally displaced children and the response of the international community to this issue from a human rights perspective and the lacunae these institutions face in dealing with the most vulnerable category of displaced persons.
 
Children form the most vulnerable and tragic consequences of any wars, civil conflicts, insurgencies, low-intensity conflicts and natural disasters. They are victims of events in which they have no hand in creation nor can  fathom them. In many parts of the world witnessing protracted conflicts entire generations of children have known no other life except life under the shadow of gunfire and hostilities. For them reintegration into a post-war society challenges governments, organizations and all the stake holders involved in this process.
 
Children have been victims of abuse, torture and rape, watched their villages and homes burn, saw their parents and siblings either raped, tortured or killed in front of their eyes. They lose years of their lives in isolation due to wars and civil conflicts, live in camps or are resettled in an alien third country. Life in the camp is no better, is always brutal and under the threat of violence and brutality. Not able to run and play or attend school and study, they live crippled lives. They either become soldiers or are used as porters and couriers to carry mines, ammunition and essential commodities to military camps of rebel insurgent forces or forces belonging to some warlord. Living in overcrowded camps which are unhygienic and dangerous refugee and relocation camps they face the risk of diseases, malnutrition, poverty and illiteracy.
Education in such war-ravaged towns and village being totally collapsed as educational facilities have been destroyed or damaged beyond repair. Children no having access to education save in learning how to handle guns and grenades and growing up in such hostile and hatred-filled environments, sow the seeds of future conflicts and hostilities leading in a never-ending cycle of violence from which there is no relief. Many children in flight have been captured, orphaned or wounded, pressed into combat service, taught to kill and dismember. These children face life of poverty, illiteracy and insecurity with fathers absent, either fighting or are dead. With no access to education, adequate health care or proper nutrition they face severe physical and psycho-social consequences which have long-term effects. Parents too who have suffered the trauma of exile and displacement and the stress of war go into a withdrawal mode and are themselves no longer capable of meeting the children’s needs or upto interacting with them. The sense of dislocation, powerlessness and the lack of self-confidence shatters the trust the children have on those who should be .
 
CHILD REFUGEES- PROTECTION IN INTERNATIONAL LEGAL INSTRUMENTS
 
Having said that, the international community too is aware of the perils this vulnerable section of the displaced population face. The need for special care and protection for all children was first recognized internationally in the 1924 League of Nations Declaration on the Rights of the Child.[1]This was followed by a series of similar and related declarations.
The 1951 Refugee Convention just recommends family unity and protection and access to primary education.[2]Article 22 of the UN Convention on the Rights of the Child[3] endorses appropriate protection and humanitarian assistance by essentially cross-referencing the Convention with other international instruments and inter-governmental bodies in matters of tracing and family union.
The CRC has no general derogation clause for times of emergency, so there exists no possibility of derogation in such matters as torture, arbitrary detention, administration of justice guarantees.[4]Accordingly a child who takes refuge in the territory of a State Party benefits as much as a child nationals of that country. Child as someone who is entitled to special protection has been specified in the International humanitarian Law also called the Laws of War. Some 25 articles in the Geneva Conventions of 1949 and the 1977 Additional Protocols ( Additional Protocol I dealing with International Armed Conflicts and Additional Protocol II Dealing with Non-international Armed Conflicts). Children are mostly protected by the 1949 Geneva Convention IV Dealing with Protection of Civilians during Armed conflicts. Article 14 of GC IV offers protection of children under fifteen. Children are given access to free passage from besieged or encircled areas.[5] Children have to be provided education and other necessary measures who have been orphaned or separated from their families.[6] All State Parties should maintain the good functioning of institutions for the care of children in occupied territories.[7]
The 1977 Additional Protocols to the Geneva Conventions go further in expressly confirming special protection due to children. Article 77 of Additional Protocol I (dealing with International Armed Conflicts) declares in its opening paragraph,” Children shall be the object of special respect and shall be protected against any indecent assault and shall be provided with care and aid they require”. Article 4 of the Additional Protocol II dealing with Non-international Armed Conflicts confirms the obligation to provide children with care and especially education, family reunion, limitations on recruitment of children (as child soldiers) and temporary evacuation. Both the Geneva Conventions and the Additional Protocols link the protection of children to the maintenance of family life.[8] Emphasis is also given to the reunion of displaced families as possible,[9] and return of the children to their families with the help of the Central Tracing Agency of the International Red Cross Committee, which has the expertise in such matters.[10]
Similar objectives are also clarified in human rights context where the states have recognized that the family should receive protection by society and the state. Special measures of protection and assistance should be taken on behalf of all children and young persons.[11]The best interests of the child should be the primary consideration in all protection and assistance matters.[12]These provisions question the solutions where the child may be removed from actual or potential family environment or leave the child without care and support on the return to the country of origin. This is when the family has not been traced or any interim arrangement in the country of refuge is no longer possible or viable.
            In 1987 UNHCR brought the situation of refugee children before the Executive Committee. These included refugees, asylum seekers and displaced persons of concern to UNHCR until the age of 18 unless in applicable national law the age of majority is less.[13]
In 1988 the UNHCR issued the First Edition of the Guidelines on Refugee Children for protecting the safety and liberty of the refugee children. These Guidelines were revised again in 1994. The Child Rights Convention was recognized as a normative framework of reference for UNHCR action.[14] Emphasis was laid on tracing the relatives and promoting family reunion.[15]It identified the primary goals as ensuring protection and healthy development and durable solutions to immediate and long-term developmental needs.[16] Unaccompanied children are children who are separated from both parents and not being cared for by an adult who, by law or custom, has the responsibility to do so.[17]
The International Committee of the Red Cross has considerable long-term experience in tracing family members separated as a result of the conflict through its Central Tracing Agency. Coordination with such agencies is absolutely imperative to enhance the prospects of finding separated family members.[18] States have an obligation to ensure that children below 15 are not recruited as child soldiers.[19] Internment of parents or detention and the actions of aid workers have also led to the incidence of children being separated from their parents and families.[20] Even if family tracing is successful family reunion will still be delayed because of myriad immigration hurdles. Nations can place restrictions on Child Rights Convention provisions on family reunion with conditions attached to the status of temporary protection. These restrictions stand to undermine and frustrate fundamental rights relating to family and can seriously undermine the best interests of the child. Issues relating to immigration being a highly political policy matters of Nations. UNHCR/UNICEF Guidelines emphasize on evacuation of children from conflict areas as a part of the family unit with children being kept with their primary caregivers.[21]
As far as adoption is concerned refugee children orphaned with relatives in different countries or may be living with a foster family who is unrelated, if the family is willing then there is an option of adoption.[22]Such a step can be taken only with the consent of the child concerned or a parent if alive and with the child. If voluntary repatriation in conditions of safety and dignity appears feasible in the near future, and if option of adoption is present in the child’s country of origin, then the adoption is initiated. This is because the country of origin would be much better for the psychological and cultural needs and development of the child than adoption in the country of refuge or a third country of asylum.[23] Where reunion is not in the best interests of the child or realized with a reasonable time, adoption should be undertaken within a period of normally two years. In fact both states of origin and states of asylum bear the responsibility for adoption decisions. However it is seen that states of asylum donot always accept that refugee children on their territory are habitual residents within the meaning of the Hague Convention in respect of inter-country adoption.[24] This was the Declaration on Social and Legal Principles relating to the protection and welfare of children with special reference to foster placement and adoption, nationally and internationally.[25] The Cartagena Declaration on the Refugees in Central America in 1984 also acknowledges reunification of families as the fundamental principal which should be the basis for the regime of humanitarian treatment in the country of asylum and also in facilities granted in the case of voluntary repatriation.[26]
 
PROTECTION TO INTERNALLY DISPLACED CHILDREN
More than half the internally displaced persons around the world are children. Unlike refugee children internally displaced children are still present in conflict areas and active conflict zones. They become easy targets for warring parties in search of cheap and obedient recruits. Children are vulnerable and easily impressionable and can be led to believe that they would be safer under the protection of a local warlord or a rebel armed force. Children are more often forcibly recruited when they lose the protection of their families during displacement
As far as protection to internally displaced children the 1998 Guiding Principles of Internal Displacement, principle 4 states,” Certain groups of internally displaced persons such as children, especially unaccompanied minors, expectant mothers, mothers with young children shall be entitled to protection and assistance required by their condition and to treatment which takes into account their special needs.[27] It gives protection for children against forced labour and military recruitment of children.[28] Children are not required or permitted to take part in hostilities.
In Sri Lanka where protracted conflict prevented children from living a normal life, UNICEF negotiated days of tranquility during which all parties agreed to interrupt the fighting in order to allow immunization campaigns to take place.[29] User-friendly mine awareness has been provided to internally displaced children who often play in unfamiliar surroundings with little knowledge of where the mines are likely to be located.[30]
            The main issue at heart of addressing the issues of aid and assistance to the internally displaced is the principle of sovereignty of nations and non-intervention in the internal affairs of states. The 1992 Report of The Refugee Policy Group of Washington DC on the issue of the human rights of the internally displaced persons stated that, “ Respect for the sovereignty has taken precedence over their equally compelling obligations to provide humanitarian assistance to persons at risk and to promote observance of human rights”. It goes on to state that, “When governments seriously violate them they open themselves up to criticism and potentially to international actions”. The Report laid stress that respect for sovereignty has been the cornerstone of the UN system and the basis for the provision of humanitarian aid to beleaguered populations”.[31] It also makes a very pertinent point when it states that in some cases, “voluntary agencies have taken the position that humanitarian concerns must take primacy over state imperatives and that governments forfeit their sovereignty when they refuse to meet the humanitarian needs of their population”.[32]
The 2000 London Declaration on international law principles on internally displaced persons states that’ “All internally displaced persons especially children separated from their parents or other family members, are entitled to the right to family reunification”.[33]
 
INSTITUTIONAL RESPONSE TO REFUGEE CHILDREN AND INTERNALLY DISPLACE CHILDREN
 
So far as refugee children are concerned normally UNHCR is the agency which is empowered by its Statute to address all issues relating to the refugees. All children are covered by the UNICEF which is essentially a development agency. However, it has of late been increasingly involved in emergency works such as providing basic health care, nutrition, water and sanitation as also basic education facilities. Earlier UNICEF did not recognize internally displaced children as a special category of persons in need as it would lead to discrimination against those not displaced.[34] But since it has modified its position and has devised a number of policies and programmes for the internally displaced children.[35] More emphasis has been put on protection activities which are defined as protecting children from physical and psycho-social violence, preserving their cultural identity and responding to their basic needs on a rights-based approach to programming.[36]
Since 1998 field visits by the Office of Coordination On Humanitarian Assistance(OCHA) have been undertaken in a number of places such as Sri Lanka, Colombia, Sudan and Sierra Leone to collect information on the protection activities on behalf of the internally displaced children. UNICEF has also helped in drafting a Manual on the Field Practice on Internally Displaced Persons based on these field visits.[37]
Bridging the gap between emergency relief and sustainable development is the United Nations Development Programme(UNDP). The UNDP has had continued field presence in many countries so it can also have a role in early warning and influence the root causes of displacement. On issues of governance, development, human rights awareness the agency can contribute to the prevention of displacement.[38] A Memorandum of Understanding between UNICEF and UNHCR states explicitly that UNICEF has responsibility for unaccompanied children within the country of origin, including internally displaced children, whereas UNHCR will assume responsibility for refugee children.[39] The Clause which provides the intervention of both agencies in favour of internally displaced persons, are usually part of a broader UN- coordinated Plan of Action.[40] This Clause serves as a reminder that the problem of internally displaced persons is not just the concern of humanitarian agencies, but also requires concerted political action.
UNHCR has interpreted the protection of internally displaced children as encompassing the protection against physical and psycho-social harm, preserving their identity, and cultural, linguistic and inheritance rights as also responding to their basic needs.[41] Special emphasis should be put on family unity and mental health support for children who suffer from severe trauma. Strengthening the already existing Child Rights Convention, an Optional Protocol on the Involvement of Children in Armed Conflicts has also been adopted to address this problem. Requirements for physical survival include sufficient nutrition, protection from physical harm, and appropriate medical care. Impact of the refugee experience depends on the child’s age, the composition of his or her family, conditions of flight and the situation awaiting the refugee child in the host country. Obtaining an education helps children to gain self-respect, confidence and a sense of control over his/her future. Where there are no educational facilities or other opportunities in refugee camps, these children may turn to crime which often brings reprisals.
Refugees go from “visible emergency of flight” to the invisible emergency of stagnation[42] For them “non-belonging “becomes a way of belonging.[43] Refugees and internally displaced persons are ordinary people like you and me, who are caught up in extraordinary circumstances not of their own making and children are even more so. Innocent as they are most of the time, traumatized and uncomprehending at the rapid turn of events which have shattered their peace, way of live, secure family life and have, most of all, childhood snatched away. As Carel Sternberg, a wise and compassionate man, who fled the Gestapo in 1938 and also in 1944, put it, “The Refugee condition, once experienced, does not wash off”.[44] If the refugee and by inference, internal displacement does this to a grown-up man, one can only imagine what such an experience can be on an innocent child. Scars of deep psychosomatic, sociological, feelings of alienation, displacement remain which can be carried through well into adulthood. Hence humanitarian aid and assistance administered by child-friendly sensitive agencies and aid workers can help in effectively handling this extremely vulnerable and often neglected section of displaced population.
No matter how many legal instruments are formulated, and institutions exist to address the problems of children in crisis, whether refugees or internally displaced, is not enough. Neither the UNHCR which enjoys the competence and the wherewithal to provide international protection and assistance to refugees, nor UNICEF which is involved with the developmental aspects of children or the UNDP which is entrusted with the sustainable development programmes on a long-term basis has the competence to address the needs of displaced children. There is a need for another agency having child welfare as its mandate to be created. Maybe this new agency will be better placed to monitor the responsibilities towards child refugees and internally displaced children.

[1] Ressler, E, Boothby, N and Steinbeck, D, Unaccompanied Children: Care and Protection in Wars, Natural Disasters and Refugee Movements(New York ,Oxford University Press, 1988).

[2] Article 22(1)(2), Convention Relating to the Status of Refugees.

[3] Henceforth referred as CRC

[4] Articles 37 and 39,  Child Rights Convention. see Cohn, I, The Convention on the Rights of the Child; What it means for Children in War, 3, International Journal on Refugee Law, 1991, p. 291.

[5] Article 17 A Geneva Convention IV.

[6] Article 24, Ibid.,

[7] Article 50, Ibid.,

[8] See Singer, S. The protection of Children during Armed Conflict  Situations, International Review of the Red Cross, May-June 1986, p.133.

[9] Article 74, Additional Protocol I

[10] Article 78(3) Additional Protocol I, Article 4(3) Additional Protocol II.

[11] Article 23(1) 1966 international Covenant on Civil and Political Rights., Article 10(3)1966 international Covenant on Economic, Social and Cultural Rights.

[12] Article 5(1) Child Rights Convention, Article 4, 1990 African Charter on the Rights and Welfare of the Child.

[13] Para 8, UNHCR Note on Refugee Children, UN Doc, E/SCP/46, 19 July 1987.

[14] UNHCR, Refugee Children: Guidelines On Protection and Care(UNHCR, Geneva, 1994).

[15] See UNHCR Policy on Refugee Children, UN doc, EC/SCP/82. 6 August 1993.

[16] P, 23,1994 UNHCR Guidelines, see also Report of the Working Group on Refugee Women and Refugee Children, UN Doc, EC/SCP/85, 5 July 1994.

[17] UNHCR Guidelines on Refugee Children (Geneva, UNHCR, August 1988), P. 2. 27.

[18] 1994 UNHCR Guidelines, pp, 128-129.

[19] Ibid., p, 85, see also Cohn, I and Goodwin-Gil, G S, Child Soldiers(Oxford, Clarendon Press, 1994), pp77-78 and 152-153.

[20] 1994 UNHCR Guidelines, p.22.

[21] Ressler, Evacuation of Children from Conflict Areas: Considerations and Guidelines (UNHCR/UNICEF, Geneva, 1992), p. 23.

[22] Ibid., p.22

[23] 1994 UNHCR Guidelines, pp. 130-131, see also Mcleod, M. Legal Protection of Refugees Separated from their Parents: Selected Issues, International Migration, Vol. 27, 1989, p. 295

[24] Article 4, 1993 Convention on the Protection of Children and Cooperation in Respect of inter-Country Adoption, UNGA Res. 41/85, 3 December 1986.

[25] Ibid.

[26] Conclusion 1, 1984 Cartagena Declaration for the Protection of Refugees in Central America.

[27] Guiding Principles of Internal Displacement (OCHA, Geneva, 1998).

[28] Principle 13, Ibid.,

[29] UNICEF Mission to Sri Lanka, p. 5.

[30] Ibid.,

[31] Roberta Cohen, Human Rights Protection for Internally Displaced Persons(Washington DC, The Refugee Policy Group, 1991) pp. 17. 19

[32] Ibid, p. 18

[33] Article 7, London Declaration of International Law Principles on Internally Displaced Persons, 29 July 2000, London, UK, http://www.refworld.org/docid/42808e5b4.htm (Accessed on 18 June 2013)

[34] Cohen and Deng, Masses in Flight, P. 138.

[35] UNICEF, Internally Displace Children: The Role of UNICEF(New York, Nd),  also J. Kinder, Needs of Internally Displaced Women and Children: Guiding Principles and Considerations(UNICEF, Office of Emergency Programmes, New York, Working Paper Series, September 1998) P. 1.

[36] Kinder, pp. 19-21.

[37] OCHA Manual on Field Practice on Internally Displaced, Examples from UN Agencies and Partner Organizations of Field-Based Initiatives Supporting Internally Displaced Persons, Inter-Agency Standing Committee, Policy Paper Series No 1, 1999)

[38] UNDP, Sharing New Ground in Post-Conflict Situations; THE Role of UNDP in Support of Reintegration Programmes, DP/2000/14 , 9 February 2000.

[39] Memorandum of Understanding between UNHCR and UNICEF, 14 March 1996.

[40] Ibid., para 11, See also para 3, 7, Memorandum of Understanding between UNHR and WHO, March 1997

[41] Kinder, p.19.

[42] W.R. Smyes, Refugees-A Never Ending Story, Foreign Affairs, Fall 1985, p. 159.

[43] Judy A. Mayotte, Disposable People: The Plight of Refugees (New York, Orbis Books, 1992)p. 4.

[44] Ibid., p.10.
BY
DR. ANURADHA RAMANNA
ASSOCIATE PROFESSOR
DEPARTMENT OF POLITICAL SCIENCE
M S RAMAIAH COLLEGE OF ARTS, SCIENCE AND COMMERCE
BANGALORE-560054