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Palestinian children who have been killed
since the outbreak of the al-Aqsa Intifada on 29 September 2000
Children up to 15
Children aged 15 to 17
Legal
analysis and list of children killed during the al-Aqsa Uprising
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Legal position
of children in war
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Who is a "child"? Before
establishing a list of child casualties of the al-Aqsa intifada,
it is important to clarify the distinction made in international
law between "child" and "adult." the purpose
is obviously to determine up until what age a person can benefit
from the special protection due to children. the United Nations
Convention on the Rights of the Child, adopted on 20 November
1989 and ratified by almost every country in the world,
including Israel, states in Article 1:
For the purposes of the
present Convention, a child means every human being below the age
of eighteen years unless under the law applicable to the child,
majority is attained earlier.
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Under Israeli law,
majority is indeed attained at 18 years, so this is the age up
to which persons can be considered as "children." It is world
noting that a lower threshold has sometimes been provided for
participation in armed conflict. Here, the Convention on the
Rights of the Child states in Article 38:
2. States Parties shall
take all feasible measures to ensure that persons who have not
attained the age of fifteen years do not take a direct part in
hostilities.
3. States Parties shall refrain from recruiting any person who has
not attained the age of fifteen years into their armed forces.
(…)
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The Additional Protocols
of 1977 to the four Geneva Conventions of 1949 (1st Prot. Art.
77.2, 2nd Prot. Art. 4.3.c), although not applicable to Israel
as conventional law since Israel did not ratify them, also set
the minimal age at 15 years. However, an Optional Protocol to
the Convention on the Rights of the Child on the Involvement of
Children in Armed Conflict provides that "States Parties
shall take all feasible measures to ensure that members of their
armed forces who have not attained the age of 18 years do not
take a direct part in hostilities," (Art. 1), and that
"States Parties shall ensure that persons who have not
attained the age of 18 years are not compulsorily recruited into
their armed forces" (Art. 2).It is highly questionable
whether the Palestinian children aged 15 to 18 who were killed
during this Intifada can be considered "combatants."
First, the character of the confrontation is more that of a
Palestinian civilian uprising against the Israeli occupation -
opposing an occupation army to a civilian population - than that
of a conflict between two armed forces. It can certainly not be
said that children are "compulsorily" recruited; nor
can children participating in the Intifada be considered
"child soldiers." As the UN Commission of Inquiry
which visited the region in February 2001 stated, "stone
throwing by youths at heavily protected military posts hardly
seems to involve participation in hostilities."
(E/CN.4/2001/121 of 16 March 2001, Para. 43) In addition, many
of the children listed were not taking part in the
confrontations when they were mortally wounded. In fact,
Palestinian security forces do not enlist anybody below 18 years
of age; the draft Palestinian Child Rights Charter contains a
provision forbidding the enlistment of children under 18 in any
armed forces. the Coalition Against the Use of Child Soldiers,
based in London, confirms that this rule is generally applied in
Palestine. In special cases, a Jordanian military provision authorizing
enlistment at 17 years of age is applied, but, according to the
Coalition, minors aged 17 only serve in music bands or other
special activities. Nevertheless, because international law does
distinguish between children below 15 and children aged 15 to
18, we have decided to include the latter in a separate
category.
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International Standards
on the Protection of Children in Armed Conflict According to
customary principles of international humanitarian law, the
civilian population must be protected against the dangers
arising from military operation, and, in particular, must not be
the object of attack. Civilians are defined as non-combatants,
i.e. individuals who do not take part in the hostilities. As
early as 1863, the Lieber Code (Art. 18) recognized the need for
special protection of non-combatants, especially women and children. As
noted above, the civilian character of the Intifada is being
disputed by Israel, which argues that it faces a situation of
"armed conflict," where its army battles against armed
forces of the Palestinian Authority. the Palestinians, on the
other hand, characterize the current conflict as a civilian
uprising against the occupation, and therefore contend that even
armed policemen retain their "civilian" character. Notwithstanding
this rather legalistic debate, it would be difficult to find
individuals more "civilian" in character than unarmed
children, and they must undoubtedly be protected by this principle. Children
are also given special protection in situations of armed
conflict under the Convention on the Rights of the Child (1989),
of which Israel is a signatory. Of particular note is Article
38, which deals expressly with situations of armed conflict.
Sections 1 and 4 of Article 38 state:
1. State Parties undertake to respect and
ensure respect for rules of international humanitarian law
applicable to them in armed conflicts which are relevant to the
child.
4. In accordance with their obligations under international
humanitarian law to protect the civilian population in armed
conflicts, States Parties shall take all feasible measures to
ensure protection and care of children who are affected by armed
conflict.
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Arguably, the Palestinian Authority
also bears some responsibility to protect children, by ensuring that
no shooting occurs from crowds which include unarmed children.
the Palestinian Authority indeed has pledged to make an effort
to prevent children from taking part in demonstrations. In its
report to the UN Commission on Human Rights, the UN Commission
of Inquiry states:
the Commission heard evidence from
parents and NGOs about the unsuccessful attempts of many parents
to prevent their children participating in demonstrations and the
grief caused them by the death and suffering of their children. It
is likely that the Palestinian Authority could have done more to
restrain children from participation in stone-throwing
demonstrations. the evidence suggests that, on occasion, the
Palestinian police made attempts to prevent demonstrations, but
these attempts were often unsuccessful. this can be ascribed to
the incompetence of the Palestinian police, the fact that the
Palestinian police were themselves targeted by stone-throwers when
they attempted to curtail demonstrations, and an understandable
identification of the Palestinian police with the goals and spirit
of the demonstrators. (E/CN.4/2001/121 of 16 March 2001, Para. 48)
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Israeli Army Firing
Regulations the Israeli army firing procedures are contained
in the "Pocket Booklet for Soldiers Serving in the Central
Command," distributed to all soldiers. the regulations
specify that "firing at women and children will be
avoided as much as possible." It is doubtful that this
"as much as possible" provision is sufficient to
comply with the standards set by international humanitarian law
or to meet Israel's obligations as a signatory to the United
Nations Convention on the Rights of the Child. the following
children have been killed by the Israeli forces since the
outbreak of Al-Aqsa Intifada on 29 September 2000
Total number
of children killed in the Aqsa Intifada is 148
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