COMBATANTS AND PRISONERS OF WAR

Question 1

CHILDREN IN IACs

Answer 1

(Protocol I - art 77)
Total ban on any kind of recruitment under 15 Y (customary law)
They canNOT take a direct part in hostilities (problems with indirect participation)
+ take all feasible measures to avoid those situations to happen

In all cases, children shall benefit from special protection measured to their age
- ex: prohibition to execute death penalty on persons who have not 18 Y at the time the facts were committed

Question 2

CHILDREN IN NIACs

Answer 2

(Protocolo II - art 4.3) - stricter provision (bc are non-state groups who use children the most)
Prohibition to use children for any participation in hostilities (also indirect participation!)

Convention on the right of the child - totally unsatisfactory - big movement in civil society:
Optional Protocol to the Convention (2002)
- no child can be recruited (voluntary or involuntary) under 16 Y
- children between 16-18 Y cannot take a direct part in hostilities + cannot be compulsory recruited.

Question 3

CHILDREN - war crimes

Answer 3

According to the Int Criminal Court it is WAR CRIME to conscript (compulsory) or enlist (voluntary) recruit children under the age of 15 Y and using them to participate ACTIVELY in hostilities (both in IACs and in NIACs).

direct participation ≠ active participation (can include both direct and indirect participation) = extend as much as possible the protection to children
- Court: deciding IF and indirect role is to be treated as active participation in hostilities whether his/her support expose him/her to real danger as a potential target (= the point is IF the child became a potential target).

Question 4

SPIES

Answer 4

• acting clandestinely or on false pretences (makes the enemy think that he/she is someone else)
• wants to obtain information in the territory controlled by an adverse party
• intention of communicating it to the hostile party

1. if the spy is captured IN THE ACT: LOSES the status of prisoner of war and may be tried and punished fro espionage under domestic law
2. captured after having RE-JOINED the army as a combatant: NOT lose his status of combatant + NOT incur any responsibility for his previous acts of espionage