Introduction
International humanitarian law (IHL) exists to impose order upon chaos by limiting armed conflict’s worst effects through rules that protect those who are not or are no longer participating in hostilities, and by constraining warfare’s means and methods.Footnote 1 This deceptively simple formulation masks a sophisticated legal architecture built upon interlocking principles: distinction between combatants and civilians, proportionality in attack, precaution in the conduct of hostilities, military necessity as justification, and humanity as an absolute prohibition against unnecessary suffering. These foundational tenets, enshrined in the Geneva Conventions and their Additional Protocols and crystallized in customary law, represent humanity’s collective insistence that even warfare must yield to irreducible moral boundaries.Footnote 2
Over the past 150 years, IHL has developed both to account for new means and methods of warfare and to codify evolving normative values in recognition of the proposition that “the progress of civilization should have the effect of alleviating as much as possible the calamities of war”.Footnote 3 The development of IHL demonstrates that legal progress and increased protections often stem from shifts in interpretive frameworks rather than formal treaty amendments. A critical historical precedent is the reinterpretation of the elements of torture and rape within the founding statutes of the ad hoc international criminal tribunals – the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) – and subsequently under the Rome Statute of the International Criminal Court (ICC).Footnote 4 Previously, non-gendered interpretations largely denied women the full protection of the law.Footnote 5 Through the activism of feminist legal scholars, practitioners and judges, particularly within the ad hoc international criminal tribunals, this was remedied not by new treaties, but by a gender-sensitive interpretation of existing IHL. This shift recognized rape committed in armed conflict as both a grave breach of the Geneva Conventions and a form of torture, effectively dissolving the restrictive binary of “rape versus torture”.Footnote 6
This article argues that contemporary interpretations of IHL improperly categorize children as mini-adults, or “mini-civilians”,Footnote 7 and that this interpretive choice results in profound harm that is fundamentally inconsistent with the object and purpose of IHL. Applying the hermeneutic shift that transformed the legal understanding of gender, rape and torture by using a gender-sensitive lens, the article argues that IHL must similarly be viewed through a child-sensitive lens. Such a lens does not sideline children because of adult-centric interpretative bias, but rather recognizes them as a legally distinct category of protected persons whose specific vulnerabilities demand an interpretive framework equal to it, in particular with respect to proportionality assessments and precautions in attack. This child-sensitive interpretation is not only required by IHL as a distinct body of law, but is fully consistent with the interpretive approach promoted by States in other areas of international law. This is significant as the normative logic underlying these developments has broader applicability on IHL.
Regardless of how an armed conflict manifests, children continue to bear the brunt of the harm of hostilities;Footnote 8 they endure unique harms from both the direct and reverberating consequences of armed conflict and require specialist care and services.Footnote 9 Despite this, however, the persistence and severity of the harms caused to children by armed conflict sits in uncomfortable tension with the breadth of their formal legal protection: children are among the most extensively protected persons under IHL, and simultaneously among those who suffer most grievously when that law is violated or inadequately interpreted and applied.
IHL protects children in armed conflict, both in the form of general protections accorded to all civilians under the Geneva Conventions and Additional Protocols, and through child-sensitive provisions that recognize the particular requirements and vulnerabilities of children and acknowledge their special needs.Footnote 10 International human rights law (IHRL) similarly protects children in armed conflict. In particular, the Convention on the Rights of the Child (CRC) reinforces IHL’s protections, requiring States Parties to “take all feasible measures to ensure protection and care of children who are affected by an armed conflict” and to always act in accordance with the “best interest of the child”.Footnote 11
The primary challenge lies less in the substantive content of IHL and more in its interpretation, application and enforcement, which remain insufficient in scope and depth to effectively protect children in armed conflicts and satisfy their minimum protections.Footnote 12 Instead, contemporary interpretations of IHL default to a “mini-civilians” construct that treats children as part of a homogenous civilian population, with experiences and needs that are indistinguishable from those of adults. By failing to read specific physiological, psychological and developmental vulnerabilities and needs into existing provisions, this interpretive approach effectively sidelines children during the conduct of hostilities, notwithstanding that children may suffer through other activities in armed conflict outside of “attacks” as understood in the definition of Article 49(1) of Additional Protocol I (AP I). While this framework offers formal legal coverage, its lack of differentiation often nullifies substantive consideration by belligerents; consequently, children are left without effective or sufficient protection, because the law fails to account for the empirical reality that they are neither “mini-civilians” nor mini rights-holders. To give meaningful effect to children’s rights in armed conflict, the interpretation of IHL requires a fundamental rethinking, beginning with the principles of proportionality and precaution.
The necessary corrective for this problem lies not with the fundamental revision of existing statutes but with the introduction of a new, child-sensitive interpretive lens of IHL. There is an emerging recognition of the need for a more child-sensitive interpretation and application of international law to give effect to the rights afforded to children, both as members of the civilian population and as members of a distinct legal class with enhanced rights. These developments, whether in the practice or opinio juris of States, present an opportunity to correct the interpretive failings discussed above. This is particularly apparent in a series of United Nations (UN) member State interventions in recent cases before the International Court of Justice (ICJ), which explicitly acknowledge the unique harms that children experience and the special protections that must be afforded them.
From targeting assessments to operational planning to post-conflict impact assessments, “[c]hildren are rarely afforded the differential treatment that their needs, rights and risks require”.Footnote 13 The present article argues that remedying this gap requires a child-sensitive interpretation of IHL, one through which proportionality assessments and precautionary obligations can genuinely account for children’s distinct physiological, psychological and developmental vulnerabilities.
Distinct vulnerabilities, disproportionate and accelerated harm
In armed conflict, children suffer more than adults and endure distinct harms, both immediately and over a protracted period from conflict’s reverberating effects. Reverberating effects have been defined as those “that are not directly and immediately caused by the attack, but are nevertheless the product thereof”, and can persist over time in a multitude of ways.Footnote 14 These reverberating effects are not peripheral – they are often life-changing or life-ending for a child, leading to a compounded disproportionate harm.
Further, these distinct harms are not experienced uniformly. While there is an urgent need to disaggregate children from the broader civilian population, it is also important to emphasize that children themselves are not a homogenous group. Their vulnerabilities vary significantly based on factors such as age, gender, disability, migration status and social context – all of which inform the specific risks they face. For example, younger children are more dependent on caregivers than their older peers and are physiologically more vulnerable, whether to blast injuriesFootnote 15 or complications from malnutrition,Footnote 16 while adolescents are more likely to experience sexual violence.Footnote 17 When forcibly recruited, a child’s age has a bearing on the type of role they are forced to undertake – for example, small children and girls are often used as spies or suicide bombers, as they are less likely to arouse suspicion.Footnote 18
Gender also plays a critical role in a child’s unique vulnerabilities in armed conflict. For example, girls are at far higher risk of sexual and other forms of gender-based violence, including child, early and forced marriage.Footnote 19 Boys are much more likely to be exposed to the grave violations of killing and maiming, abductions and recruitment,Footnote 20 are more likely to be targeted as a perceived security threat, and are more regularly victims of explosive weapons, explosive remnants of war (ERW) and landmines.Footnote 21
Children living with disabilities face additional vulnerabilities in conflict. For example, they may face heightened mobility issues, be unable to hear or see hazards or warnings,Footnote 22 find themselves cut off from specialized services, or experience greater obstacles accessing assistance and services, including education.Footnote 23
These intersecting factors multiply both the vulnerabilities faced and the harms endured by children, not only exacting an immediate toll but also stripping away the scaffolding and specialist services they need to grow and develop, instigating a foreseeable trajectory of cumulative disadvantage for years to come. While this article references some specific intersectional vulnerabilities, further evidence and analysis are required to better protect all children and ensure that children’s specific rights and needs are not neglected.
It is critical to emphasize that there is a common thread running through every child’s experience: despite the explicit special respect and protection they are afforded under IHL, they continue to suffer more, and suffer in unique ways.Footnote 24 This gap between the promise and the performance of IHL needs to be closed, to end the pattern of children bearing a disproportionate burden of conflict. This section provides evidence of the distinct harms that children face in conflict owing to their physiological vulnerabilities, developmental vulnerabilities, and dependency on specialist care and services. It also demonstrates how these harms endure long after hostilities end, impacting individuals, communities and future generations.
Physiological vulnerabilities
Children’s physiology places them at heightened risk from both the direct and indirect impacts of an attack, leading to disproportionate harm. Children’s bodies are uniquely vulnerable to explosive weapons in a plethora of ways.Footnote 25 They are seven times more likely to die from blast injuries than adults.Footnote 26 Their lesser weight and size means they can be more easily thrown by blast forces, and they are more likely to sustain head and torso injuries.Footnote 27 One review of blast injuries found that 80% of children experienced penetrating head injuries, whereas 31% of adults suffered this injury.Footnote 28 Children under 7 years of age are the most vulnerable, being nearly twice as likely to experience head injuries as older children.Footnote 29 Infants with open cranial fontanelles are especially vulnerable to head injuries and potentially more prone to traumatic intracranial pathology.Footnote 30 Similarly, children are more likely to have shrapnel wounds to their heads, necks and torsos.Footnote 31 A study carried out in US military hospitals between 2002 and 2011 found that children were twice as likely as adults to suffer significant bleeding from the torso.Footnote 32
Children have less blood to lose, smaller and thinner abdominal walls, and proportionately larger livers and spleens,Footnote 33 all of which render them at greater risk of physical trauma. Children under two years of age have thinner skin compared with older children and adults, and are therefore more likely to suffer full-thickness burns, leading to a rapid loss of heat, fluid and protein.Footnote 34 This raises the risk of dehydration, nutritional deficiencies and hypothermia, which can carry substantial long-term consequences for a child’s health.Footnote 35
Children are likely at greater risk of toxicity from chemical weapons than adults due to a combination of physiological factors, including their smaller size, faster breathing and thinner airways. They are more likely to suffer seizures, and their cardiovascular systems are less resilient than those of adults under stress.Footnote 36 While there is a lack of widespread literature on the long-term impacts on children’s health, existing studies suggest that exposure to chemical agents can result in lasting consequences, including intergenerational impacts. For example, children born to parents exposed to Agent Orange in Vietnam were almost twice as likely to experience birth defects as those whose parents were not.Footnote 37
These physiological vulnerabilities extend beyond the consequences of weapon wounds; for example, when conflict leads to food scarcity, whether due to tactical decision or indirect consequence, children deteriorate faster than adults. They have greater relative nutritional needs than adults for growth and development, while simultaneously having less body fat and energy stores, making them less able to weather periods of food deprivation.Footnote 38 Children are also more susceptible to the harmful consequences of vitamin and mineral deficiencies,Footnote 39 and their immature immune systems leave them more prone to contracting infections that exacerbate malnutrition, which in turn further weakens their immune protection, increasing mortality from diseases that would be otherwise survivable. A child experiencing moderate or severe wasting (low weight-for-height) or stunting (low height-for-age) is eleven times more likely to die of treatable infections or diseases.Footnote 40
Developmental vulnerabilities
Conflict takes a distinct toll on children due to their stage of psychological, emotional and social development. Children’s identities, coping strategies and understanding of the world are still in formation, and exposure to conflict, displacement and instability disrupts these processes, with profound and lasting implications. Being exposed to conflict draws significant psychological resources from a child, diverting energy away from standard developmental tasks.Footnote 41 As a result, age-typical growth and development can be jeopardized, as children naturally devote energy to survival and processing fear.
Exposure to insecurity and stress in early life can change a child’s neurological pathways and immune systems, which shape how they behaviourally and psychologically respond to their environment.Footnote 42 These impacts are associated with poor mental and physical outcomes. Evidence indicates that children’s ages and developmental stages have a significant bearing on their psychological reaction, with symptoms of avoidance and dissociation being more prevalent in younger childhood, and intrusive thoughts and hypervigilance being more common in adolescence.Footnote 43
Children are more vulnerable to other protection risks arising in conflict; for example, they are generally easier to condition and control as they are still developing cognitively and socially, making them more vulnerable to recruitment.Footnote 44 If education is disrupted during conflict, children’s educational progress is likely to be diminished, as they cannot learn, complete courses or sit exams. Over time, this can cause an educational vacuum, with cumulative effects impacting them, their families and their communities.Footnote 45 This interruption can also stunt the cognitive and social development of children.
Many children, especially infants and young children, rely entirely on adults for protection, sustenance and safety – support that is often severed during conflict. Many children in situations of armed conflict lose their primary caregiver(s), either from death or separation, resulting in a high number of unaccompanied and separated children.Footnote 46 This loss can lead to emotional dysregulation, implications for future relationship-building and developmental impacts, including premature “adultification”, where children prematurely assume caregiving roles. The breakdown of family units and the weakening of social and protective systems – e.g., educational and social services – can lead to a greater prevalence of violence against children, including sexual violence, abuse, exploitation, child labour, and child, early and forced marriage. It is critical to note that social and protective systems vary, and that any individual child’s experience is affected by factors such as age, gender and disability status.
Children affected by conflict are more likely to lack documentation, such as identity papers and birth registration, due to their age and local practices.Footnote 47 Children who lack documentation are at heightened risk of protection threats, being excluded from essential services and denied assistance, including family reunification.Footnote 48
Dependency on specialist care and services
Children’s unique needs require access to specialist services, including neonatal and paediatric care and nutritional rehabilitation units. These services are often destroyed, interrupted or rendered inaccessible during hostilities, including due to the destruction of infrastructure, persistent insecurity, disruptions to supply chains, shortage of supplies and professionals, and frequent population movements.Footnote 49
Specialist services for both women and children – particularly sexual and reproductive health services – face systemic underfunding, which is exacerbated in conflict.Footnote 50 Limited access to specialist obstetric care and skilled birth attendants in conflict zones results in higher neonatal mortality rates.Footnote 51 An estimated 60% of preventable maternal deaths occur in conflict zones, where maternal mortality rates can double.Footnote 52 There are also socio-cultural and security barriers, especially in conservative societies, that may prevent women and girls from accessing care.Footnote 53 While these factors can increase barriers to specific services that may carry a stigma (such as family planning and reproductive health care), there is also an impact on children’s general access to services, as mothers more frequently accompany their children to receive care.Footnote 54
The erosion of services is a major cause of morbidity and mortality in children affected by armed conflict. A lack of specialist paediatric supplies, medication and expertise can result in neonatal and childhood illnesses being misdiagnosed or treated with inappropriate protocols and medicines designed for adults, increasing the likelihood of dosing errors, preventable complications and mortality.Footnote 55 Often, age-specific diagnostic tools such as paediatric blood pressure cuffs and pulse oximeters for infants and young children are unavailable, as are specific medical devices for children, such as for dialysis.Footnote 56 Similarly, paediatric-specific medications, including weight-specific dosages, are often in short supply, heightening the risk of serious complications.Footnote 57
Although often overlooked, child-specific mental health care is equally critical – and often limited in conflict. Mental health providers trained in paediatric care are frequently inaccessible for children, whether due to limited numbers of trained professionals, the disruption to the overall health system, or perceived stigma and insecurity.Footnote 58
Treatment and rehabilitation services for children suffering traumatic injuries are similarly often limited, resulting in permanent disabilities and higher rates of complications. For example, the recent conflict in Gaza has resulted in the biggest cohort of paediatric amputees in history, most of which would have been preventable under non-conflict circumstances;Footnote 59 outside of conflict, amputations of major limbs among children are rare.Footnote 60 Major traumatic amputations on children can lead to multiple complications and inflict significant physical and psychological trauma.Footnote 61 Children face an increased risk of morbidity and mortality, and require sustained and specialist care from multidisciplinary teams to ensure a future without unregulated pain and to improve their quality of life.Footnote 62 This includes pain management, residual limb wound care, prosthesis fitting, physiotherapy, psychological support and educational support. All of this is essential – and must be repeated as the child develops – to help children regain self-sufficiency and give them the best possible chance of participating in all aspects of life.
Along with a lack of care for conflict-related injuries and illnesses, many children are cut off from routine care for pre-existing conditions, chronic illnesses and treatable childhood ailments. This is particularly deadly for children with complex medical needs, such as cancer or congenital conditions. Inadequate care for such conditions can lead to more severe disease progression and complications in adulthood, including reduced quality of life and life expectancy.Footnote 63 For example, untreated diabetes in childhood can increase the risk of developing conditions such as high blood pressure, heart disease, nerve damage, kidney damage and osteoporosis later in life.Footnote 64
Missed vaccinations put children’s lives at risk from preventable diseases and can lead to avoidable outbreaks,Footnote 65 potentially increasing child mortality rates for years to come after a conflict has ended.Footnote 66 Infants and children under 3 years of age are less likely to have completed their routine vaccinations before the outset of conflict, which is exacerbated further when immunization systems break down during hostilities.Footnote 67 A number of factors drive this disruption, including damaged infrastructure, severed cold chains, insecurity, denial of access and vaccine hesitancy, which are compounded by instability and misinformation.Footnote 68 The number of children who have never had a routine vaccination – often referred to as “zero-dose” children – is three times higher in conflict zones (22.7%) than in the rest of the world (7.1%).Footnote 69
Enduring harm post-conflict
Children’s vulnerabilities do not end when hostilities do. There are lasting health implications for children following armed conflict: increased infant mortality rates may persist for up to eight years after the end of the conflict and children under 5 have heightened morbidity for up to five years post-conflict.Footnote 70
For example, children suffer disproportionately from landmines and ERW. Due to their natural curiosity and tendency to explore, children are more likely to handle or play with ERW, mistaking them for everyday objects or toys.Footnote 71 Studies from Afghanistan, Eritrea, Laos and Nepal reveal that children accounted for approximately half of all injuries caused by ERW.Footnote 72 Their shorter height means their vital organs are closer to the central focus of the blast, and they are far more likely to sustain permanent disabilities or die from their injuries compared to adults.Footnote 73
There is an array of long-term consequences of malnutrition, which profoundly impacts children’s cognitive development, affecting emotional and behavioural regulation.Footnote 74 These effects can persist into adulthood, altering a child’s developmental trajectory for life.Footnote 75 While this area remains significantly under-researched, available evidence indicates that there are likely consequences for a child’s education and future economic attainment; for example, stunting in childhood is linked to a seven-month delay in starting school,Footnote 76 and is significantly associated with decreased likelihood of a child completing their grade at an age-appropriate time.Footnote 77 The educational disadvantage for children appears to compound over time, affecting future opportunities: malnourished children face a 22–45% reduction in lifetime earnings.Footnote 78 On a societal level, endemic malnutrition can reduce a country’s GDP by 2–3% or more.Footnote 79
The psychological and developmental consequences of conflict for children are enduring. Trauma experienced by children during conflict can disrupt the development of the brain and other organs, predisposing them to psychological harm as well as cognitive impairment for decades to come.Footnote 80 Chronic stress in children has been linked to damage to multiple physiological systems, including the cardiovascular, immune and metabolic systems, making affected children more vulnerable to a range of health issues later in life.Footnote 81
The impacts of trauma, including low birth weight, developmental delays, chronic illness and mental health problems, can span generations.Footnote 82 For example, children of parents with post-traumatic stress disorder (PTSD) after the Rwandan genocide in 1994 exhibited higher levels of trauma and lower resilience than children whose parents did not have PTSD.Footnote 83
The child as a child in IHL
Recent armed conflicts reveal a regressive trend in the application of IHL, characterized by systemic non-compliance and increasingly permissive interpretations by States and belligerents that expand the scope of military necessity at the expense of humanitarian protections and considerations.Footnote 84 Despite the near-universal recognition of the unique needs, rights and risks of children within international legal instruments,Footnote 85 this normative consensus fails to find meaningful expression in the conduct of belligerents. Consequently, while IHL provides both general civilian safeguards and child-specific protections, the current interpretive frameworks and their subsequent implementation remain insufficient to address the acute realities faced by children in modern warfare.
In addition to the principle of distinction, according to which attacks cannot be directed against civilians or civilian objects, IHL imposes two distinct but complementary obligations with principal bearing on protecting civilians, including children, in the conduct of hostilities: proportionality and precautions in attack. These principles constitute the primary operational mechanisms through which IHL can impose duties on belligerents to meaningfully protect children during attacks, and to give effect to the duty to provide “special respect” and “protection”.Footnote 86
As detailed below, while the fundamental tenets of proportionality are well-established,Footnote 87 and notably lack any explicit qualification for age, health, or other physical or mental status beyond the affected individual’s civilian status, the unique vulnerabilities and special needs of children are inadequately accounted for in proportionality assessments as currently interpreted or applied by States and parties to armed conflict. Despite the compelling evidence of the unique and severe harms to children over the short and long term, this evidence does not currently translate into assigning greater normative weight to those harms in proportionality determinations.
The problem lies fundamentally with the interpretation by belligerents of their duties towards children. This interpretive posture persistently nullifies or under-estimates the direct and reverberating effects of military operations in general, and incidental effects of attacks in particular, on children. Effectively implementing proportionality requirements would demand that belligerents factor the harms to children that may arise from any given military operation, and not treat them as physiologically, psychologically or developmentally indistinguishable from adults.
Similarly, the obligation on belligerents to take “all feasible precautions” to avoid and in any event minimize incidental harm to civilians and civilian objects imposes qualitatively distinct duties when children are present in or near areas of military operations. As with proportionality, the language in Article 57(2)(a) of AP I references civilians without express qualification, neither limiting nor describing the civilian’s age, health, or other physical or mental characteristics. A child-blind analysis of “all feasible precautions” fails the “all” standard.
When applied to children, precautions should be interpreted to require specific, child-sensitive measures. Effectively protecting children in precautions would demand that belligerents undertake age-differentiated analyses in intelligence-gathering and targeting processes, and implement meaningful, targeted and effective precautionary measures for children specifically.
Proportionality
At its core, the proportionality principle is about balance between competing legal interests and between the “adverse effects of actions against the objective sought”.Footnote 88 It reflects the balance between military necessity and considerations of humanity. The proportionality principle, as codified in Article 51(5)(b) of AP I and reflected in customary IHL,Footnote 89 prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated. Importantly, IHL does not give priority to military expedience where the balance weighs against the military advantage.
Proportionality assessments are a prerequisite in planning and executing hostilities,Footnote 90 and in accordance with the requirement to take all feasible precautions in attack, belligerents must choose means and methods of warfare so as to avoid, and in any event minimize, incidental civilian harm.Footnote 91 Proportionality assessments are complex because they require belligerents to weigh the two incommensurable factors of excess and necessity, as well as civilian harm and military advantage, and to do so from the perspective of a “reasonable military commander”.Footnote 92 Ultimately, whether incidental harm is excessive in relation to a military advantage entails a complex value judgement, not a mechanical formula.Footnote 93
Nevertheless, proportionality has been studied extensively and methodologies expounded to improve the protection of the civilian population.Footnote 94 Perplexingly, children are largely absent from this larger discourse, and completely missing if understood to have unique vulnerabilities and needs, as detailed above. These interpretations risk undermining the effectiveness of children’s explicit protections under IHL, on the one hand, and creating an enabling environment for violations of IHL, on the other.Footnote 95 As such, there are critical aspects of proportionality analyses that require further clarification.
Incidental harm
While it is clear that IHL requires a balancing of harms in proportionality assessments, treaties, military manuals and the academic literature largely fail to provide a definition of harm or injury, or even guidance for interpreting the terms. Much of the relevant military doctrine remains classified, and the publicly available parts express generalities and platitudes, or often address only egregious violations, or concern themselves with immediate, visible outcomes, such as direct casualties.Footnote 96
This is facially reasonable since there must be scope for context-specific, nuanced assessments by those planning or executing an attack.Footnote 97 However, in the absence of definitional specificity in quantifying the concrete and direct military advantage anticipated and the expected incidental civilian harm, the ultimate determination is subjectiveFootnote 98 and, by extension, prone to permissiveness in light of the persistent view by many belligerents that the ultimate objective is and must be victory. This permissiveness, coupled with the “invisibility”Footnote 99 of children, excludes children from comprehensive and sufficient consideration in proportionality assessments, which practically nullifies certain of the general and specific protections afforded to children under IHL.Footnote 100
For the special respect and protection afforded to children to be meaningful in practice, it must constitute a continuous obligation throughout armed conflict, one that does not operate intermittently depending on the phase of military activity, if any. The practice of States is more limited than this, however. As assessed by the International Committee of the Red Cross (ICRC) and recorded in Rule 135 of the ICRC Customary Law Study,
the special respect and protection due to children affected by armed conflict includes, in particular: protection against all forms of sexual violence …; separation from adults while deprived of liberty, unless they are members of the same family …; access to education, food and health care …; evacuation from areas of combat for safety reasons…; [and] reunification of unaccompanied children with their families.Footnote 101
These protections risk becoming purely theoretical for children who do not survive military operations. Where children are not adequately accounted for in pre-attack harm assessments, most critically in the proportionality analysis,Footnote 102 the prospect of any post-attack protection is extinguished at the moment of the strike. Put differently, where children are killed as a result of their sufficient lack of genuine inclusion in proportionality assessments considering their particular vulnerabilities, the downstream protections contemplated by IHL are rendered entirely moot. This systemic gap in IHL application and compliance is not merely a doctrinal inconsistency; it represents a structural failure to give effect to the object and purpose of child protection under the law of armed conflict.
Assigning weight to particular incidental harm enables a range of considerations to be factored, including the likelihood that the harm in question will occur and the severity of the expected harm.Footnote 103 Left completely unstated in proportionality assessments are the longer-term, less visible harms that acutely and asymmetrically affect children, and which notably affect children distinctly at varying physiological, psychological and developmental stages of their lives, and based on diverse identity factors such as age, gender and disability status. For children, “incidental loss of life” or “injury” are fundamentally different than for adults, can arise in significantly different ways than with adults, and generally manifest at a lower threshold than for adults, as detailed above. The severity threshold for child suffering is inherently lower than for adults – not because children count for more, but because they experience conflict and its effects differently – and this necessitates adjustment to harm assessments.
Military operations in urban areas are particularly likely to exacerbate children’s vulnerabilities. Systematic failures in targeting verificationFootnote 104 often result in a failure to identify the presence of children, leading to a breach of the duty to take all feasible precautions.
Mental harm is a similarly striking yet under-assessed harm that is especially devastating for children.Footnote 105 The use of explosive weapons in and around areas where children are generally present, such as playgrounds and schools, predictably traumatizes children, with reverberating and long-term consequences. Any proportionality assessment that accounts for children must recognize the foreseeable psychological harm to children, not as individuals with fully developed psyches but as children who invariably struggle to understand and process the consequences of an attack. This analysis may render otherwise lawful attacks unlawful, especially when military advantages are marginal.Footnote 106
Taken together, belligerents are likely to under-estimate or overlook these harms in the calculus of incidental damage, despite their profound and lasting effects on children. As a result, military practitioners may not use necessary methodologies and data to systematically assess and assign appropriate weight to the harm that children face during hostilities, even if there were meaningful efforts to fully protect children.Footnote 107
Severity of harm
Severity of harm refers to the degree of physical or mental suffering anticipated because of an attack. In the context of the principle of proportionality, this encompasses both the anticipated incidental loss of civilian life and injury to civilians. The gravity of this expected incidental harm dictates the weight that it must be accorded when balanced against the concrete and direct military advantage anticipated.Footnote 108 While AP I does not establish a specific minimum threshold for what constitutes an “injury”, belligerents are nevertheless required to assess the severity of all potential civilian harm for every individual attack to ensure that it is not excessive. The conceptual boundaries between incidental harm and the nature of the attack itself remain a subject of intense legal debate. The view has been expressed that when incidental civilian harm largely outweighs the damage to the military objective, it should be considered not as incidental but rather as a de facto direct attack on the civilian population.Footnote 109
This is where the law confronts a stark reality: children are not small adults or “mini-civilians”. Their physiological and psychological immaturity and their relative lack of access to information, resources and decision-making spaces make them more susceptible to severe harm from attacks that would cause lesser injuries to adults. This heightened vulnerability, and its systematic exclusion from standard proportionality assessments, itself violates the general protections afforded by IHL, since an assessment that is blind to the particular characteristics of the civilian population at risk cannot credibly claim to weigh incidental harm in any meaningful sense. Furthermore, the legal assessment of harm must account for the context of the attack. The state of local medical infrastructure is crucial contextual information: in settings with limited or non-existent medical support, or with barriers to access, including gender-related barriers, an injury that might be treatable elsewhere becomes far more likely to cause death or permanent disability. For example, where local health infrastructure is limited to basic treatment only, injuries caused by blast weapons that might be survivable in better-resourced medical environments are significantly more likely to prove fatal or to result in permanent disability, an elevated risk that falls disproportionately on children.Footnote 110 The lack of adequate medical support should therefore significantly increase the weight assigned to potential incidental harm in any proportionality assessment, reflecting the compounded risk to the most vulnerable.
Causation and foreseeability
A causal nexus between the attack and the expected civilian harm is required in proportionality assessments. This determination is essential for defining the scope of “incidental loss of civilian life, injury to civilians and damage to civilian objects” that must be weighed against military advantage.
AP I does not define causation and foreseeability in proportionality; nevertheless, other areas of international law can assist in their interpretation.Footnote 111 Both factual and legal causation are necessary for determining foreseeability. Factual causation considers whether the particular incidental harm would have occurred “but for” the attack of the belligerent.Footnote 112 Incidental harm can be considered to have been caused by the attack if it is the outcome that “was expected to occur from the attack in the ordinary course of events”.Footnote 113 As Article 51(5)(b) of AP I does not contain limiting criteria based on proximity or causal directness, neither geographic or temporal distance from the attack nor the number of intervening causal steps between the attack and the experience of harm precludes foreseeability itself from being included in proportionality analyses. Therefore, the harm must be a reasonably foreseeable consequence of the attack, even if it is not immediate or direct.Footnote 114 The assessment is objective and pivots on what a reasonable commander, with the information and resources available at the time, should have foreseen.Footnote 115
As detailed above, the severity and impact of harm is different for children than for adults. Although it manifests differently and may emerge over different time horizons, the severity and impact of harm for children is very much causally related to the attack and is foreseeable to commanders who include child-specific harms in proportionality assessments. For example, when attacks on water infrastructure predictably cause disease or malnutrition among children (who are generally more vulnerable than adults to disruptions in nutrition, health services, shelter and sanitation), such harm constitutes foreseeable incidental damage requiring a more stringent proportionality assessment.Footnote 116
Excessive harm
The proportionality rule is clear: attacks expected to cause “excessive” harm in relation to the concrete and direct military advantage anticipated are prohibited. “Excess” is therefore central to proportionality, and the finding that an act is “excessive” conclusively determines its legality, singularly differentiating between a lawful attack and an unlawful attack.Footnote 117
Although neither AP I nor military manuals provide conclusive guidance on how to interpret the notion of “excessiveness”, it is not an indeterminate standard.Footnote 118 Several armed forces have developed procedures and analytical matrices to assist commanders in identifying expected incidental harm and to promote objectivity and consistency.Footnote 119 It is clear, however, that there is no textual requirement that the difference between the expected incidental civilian harm and military advantage needs to be significant for an act to violate the proportionality rule.Footnote 120
Based on the factors detailed above in the section “Distinct Vulnerabilities, Disproportionate and Accelerated Harm”, the threshold for what constitutes “excessive” incidental civilian harm should be considerably stricter when children are foreseeably present or likely to be affected.Footnote 121
Implications for belligerents
The meaningful consideration of children in proportionality assessments would have several practical implications. Among other measures, commanders would have to explicitly account for children in harm assessments and incidental harm calculations, and would have to engage in child-specific intelligence-gathering, including demographic mapping of child presence in the weapon effects area, assessment of child-specific vulnerabilities, and tracking of effects on civilian infrastructure on which children depend.Footnote 122
First, belligerents should, to the extent feasible and consistent with evolving research, best practices and technology, disaggregate populations in order to identify vulnerable groups, including children.Footnote 123 Traditional proportionality assessments focus on aggregate civilian harm without consideration of vulnerable populations within an affected civilian population, an approach that fundamentally undermines civilian protection. These default, adult-centric approaches fail to protect children meaningfully, creating an asymmetrical protection gap and allowing belligerents to perfunctorily comply with IHL requirements without actually meaningfully protecting children, the most substantial vulnerable sub-group within any population.
Solutions have been proposed to address this problem; for instance, there have been recommendations to integrate child protection expertise into operational planning and to implement age-disaggregated casualty tracking measures.Footnote 124 Despite these proposed operational safeguards, the lack of systematic adoption by parties to conflict suggests a failure to operationalize the “special respect and protection” afforded to children under IHL and IHRL. This opens a protection gap where the absence of age-disaggregated data and child-specific expertise effectively precludes commanders from conducting a legally sufficient proportionality assessment, thereby rendering the foundational IHL principle of distinction illusory for children.Footnote 125 To have meaningful impact, it would also be necessary to disaggregate “children” further and not treat them as a homogenous group: an infant has distinct protection requirements compared to a toddler or a teenager.
Second, parties to a conflict should conduct child-specific intelligence-gathering, as children’s smaller size, distinct movement patterns and different spatial usage render them obscured and overlooked during intelligence, surveillance and reconnaissance activities.Footnote 126 This legal imperative can inform the reasonableness of a commander’s actions.Footnote 127 Such child-specific data on harm and vulnerability is critical to account for children’s needs and risks, and ensures their general and specific rights under IHL.
Commanders are explicitly obligated to do “everything feasible” to verify that attacks comply with the principle of proportionality, a contextual standard that requires the use of all reasonably available information.Footnote 128 As with discrete areas of proportionality that are undefined, other areas of law such as tort can help unpack what constitutes “reasonable” under the circumstances. At a minimum, where there is actual or constructive knowledge of the particular vulnerability of those at risk, that knowledge raises the standard of care that reasonableness demands.Footnote 129 While resource capacities vary, proportionality obligations apply equally to all parties.Footnote 130 The unpredictability of modern warfare does not minimize this obligation – to the contrary, it underscores the duty to protect civilians, because commanders cannot argue that it is “practically impossible” to know whether children are present and the direct and reverberating harms they may suffer, given children’s omnipresence in contemporary conflicts.Footnote 131
It is impossible to fulfil the object and purpose of IHL without differentiating among civilians and assessing harm by reference to the particular vulnerabilities and needs of all groups present. Any interpretive regime that sets the threshold for unlawful harm by reference to the most physiologically and psychologically resilient members of the civilian population, treating adult tolerance for injury as the implicit baseline, will systematically under-protect those least able to withstand the effects of attack, chief among them children. Children are generally the most vulnerable category of civilians, so by anchoring proportionality assessments in children’s protection needs, belligerents achieve comprehensive civilian protection through a single, legally grounded methodology that generally elevates protection standards for all civilians while ensuring special consideration for those most at risk.Footnote 132
Precaution
The principle of precaution requires all partiesFootnote 133 to take all “feasible precautions” to avoid, or at least minimize, civilian harm during an attack.Footnote 134 The word “feasible” in this context has been defined as “those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations”.Footnote 135
Based on the unique way in which conflict impacts children, the traditional, narrow interpretation of precaution, which focuses on specific types of actions during the attack phase (e.g., warnings and timings), may be insufficient to meet the generalized or specific protections afforded to children under IHL. A protective, child-sensitive application of the duty of constant care under Article 57(1) of AP I necessitates an evidentiary threshold that accounts for the distinct physical and behavioural profiles of children. This mandates that the “feasibility” of precautions be assessed through a specialized, child-sensitive lens, requiring parties to conflict to calibrate their selection of means and methods in order to mitigate both the immediate and reverberating impacts on this uniquely vulnerable population.Footnote 136
Expanding the scope of precaution is not just a best practice – it should be a legal duty under IHL in order to realize the generalized and specific protections afforded to children, necessitating a conceptual shift to long-term preparatory analysis and planning in order to meet the requirements of the principle during attacks.Footnote 137
Weapons and weapon danger area templates
Weapon danger area templates represent a critical technical component of the precautionary principle, translating the abstract obligation to “take all feasible precautions in the choice of means and methods of attack”Footnote 138 into concrete operational parameters that enable commanders to fulfil their legal duties regarding civilian protection.
The use of weapon danger area templates that fail to account for child-specific physiological factors can render an attack indiscriminate, a direct violation of Article 51(4)(c) of AP I. Traditional calculations of weapon effects, which are predominantly based on adult physiological parameters, systematically under-estimate the foreseeable harm to children, as discussed above in the section “Distinct Vulnerabilities, Disproportionate and Accelerated Harm”. When outdated templates are used, the foreseeable effects of a weapon, from blast overpressure to fragmentation, inevitably disproportionately harm children whose vulnerabilities are not factored into the calculations. Such an attack violates the fundamental principle of distinction, which requires parties to direct operations strictly against military objectives and employ means and methods of warfare that can be limited in their effects.
The legal requirement to take “all feasible precautions” in the choice of means and methods of attack necessitates age-differentiated modelling. This approach would account for children’s enhanced susceptibility to weapon effects at distances that are often considered safe according to standard, adult-based radii. A failure to integrate these factors into operational planning arguably constitutes a breach of the obligation to take all feasible precautions, as the harm to children would be both predictable and avoidable.
The feasibility standard under the principle of precautions in attack requires belligerents to use all information that is reasonably available to them at the time. In essence, the use of a knowingly flawed model based on adults should be seen as a failure of not only precaution but also distinction.Footnote 139 The feasibility standard requires parties to the conflict to seriously engage with and amend their practices once they are aware of the unique vulnerabilities of children to a particular weapon or its particular usage.Footnote 140 The body of evidence of disproportionate and differentiated harm to children in armed conflict is sufficiently well established and accessible that belligerents, including both organized armed non-State groups and State armed forces, cannot plausibly maintain that the particular vulnerability of children is unknown to them or irrelevant to their operational planning. Where such evidence is reasonably available, a failure to integrate it into proportionality assessments and precautionary measures is difficult to reconcile with the due diligence standard that the precautionary principle demands, and may, depending on the circumstances, engage responsibility for a violation of that principle.
Messaging in effective advance warnings
Messaging is a form of communications by which belligerents provide warnings to affected populations. As established in Article 57(2)(c) of AP I, belligerents must provide “effective advance warning … of attacks which may affect the civilian population, unless circumstances do not permit” As detailed in the ICRC Customary Law Study, there are different State practices related to the question of effectiveness, in particular with respect to the level of detail provided and the impact of this on operations.Footnote 141
It is self-evident that children do not understand warnings in the same way that adults do, whether substantively or grammatically. Adherence to the plain meaning of Article 57(2)(c) of AP I requires that warnings are tailored to children, including by adopting language that is comprehensible and usable to children; employing means accessible and understandable to children; delivering messages at times when children are likely to receive them; preventing additional harm to children in order to receive them; and explaining actions that children can safely take without exposing themselves to additional danger or inevitably requiring the assistance of adults and other third parties.Footnote 142
When issuing warnings, selecting weapons or planning attacks, the feasibility standard should be reinterpreted to account for children’s distinct vulnerabilities. For a warning to be “effective”, it must be reasonably expected to reach and be understood by children and their caregivers. Warnings must accommodate different languages, varying literacy levels and the needs of children with disabilities.Footnote 143 There must be effective dissemination methods that genuinely reach and inform children and families, rather than assuming a generic civilian population.Footnote 144 A warning that fails to reach or is incomprehensible to its intended audience cannot legally satisfy the standard of “effective” under precautionary obligations.Footnote 145
Satisfying this legal duty on belligerents requires a number of key legal and operational shifts, accepting that precautions in attack cannot be effectively operationalized without doing advanced work to understand the impacts on children. There are a number of best practices to achieve this. At its core, any best practice for complying with Article 57(2)(c) of AP I requires the systemic integration of child protection norms into armed conflict, as well as an appreciation that this a continuous process, not a singular event.
Particular best practices for complying with the legal norm include systematic risk identification and mitigation before military operations commence. This in turn requires, at a minimum, pre-operational child protection and legal training; collecting child-specific intelligence, including analysis of children’s unique patterns of life, to inform targeting decisions (e.g., the location of schools, medical facilities and displaced populations); preparing warnings, ensuring that both their formatting and the media used to transmit them are adapted to reach and be understood by children; and selecting appropriate means and methods of attack. While not all of the best practices identified above are legal duties in themselves, their effective incorporation would help to ensure that belligerents comply with their obligations under AP I to provide effective warnings.
Long-term means and methods development and testing
While the means and methods of warfare are often dictated by retrospective analyses of military practices, the legal obligation to develop effective precautions must be prospective. Under Article 36 of AP I, High Contracting Parties are mandated to determine whether the employment of any new weapon or method would, in some or all circumstances, violate international law. This review must specifically account for the presence of children in combat zones, acknowledging that their unique physical and mental composition renders conventional “less-lethal” technologies, which are themselves calibrated to adult physiology, potentially lethal or indiscriminate. Consequently, the Article 36 obligation requires a child-sensitive assessment during the study, development and adoption phases to ensure that new means of warfare do not inherently result in prohibited harm to this particularly vulnerable population. Means and methods available to belligerents, among other considerations, should include a baseline assessment of how not to harm children, rather than a residual assessment after focusing on lethality.
Insofar as artificial intelligence (AI) is and will continue to be incorporated into armed activities,Footnote 146 this should include the development of AI that builds in distinction parameters which do not allow the targeting of children for as long as they retain their civilian status. AI is presently based on models that are generally trained on adult-oriented datasets and inputs,Footnote 147 which can lead to misidentifying children as adults, treating children as combatants or failing to recognize children’s civilian status. The small stature, rapid movements and often unpredictable behaviour of children can make them particularly difficult for AI systems to distinguish from combatants, especially in complex or fast-evolving environments.
Civilian harm tracking and casualty recording
Effective tracking of civilian harm and casualties, disaggregated by age and sex, enables belligerents to accurately reflect the true impact of conflict on children. The lack of this data can lead to flawed future decisions and the perpetuation of tactics that systemically harm children.Footnote 148 Civilian harm tracking is the “internal process by which an armed actor systematically gathers data on civilian deaths and injuries, [and] property damage or destruction, … caused by its operations”.Footnote 149 Embedded in the principle of precaution and the feasibility requirement is the duty to document civilian harm and to draw lessons from it so as to prevent its recurrence. A system that does not require documentation cannot require the adoption of best practices for weapons selection and targeting, and thereby cannot comply with the underlying legal obligation to take precautions.
Under the duty of constant care provided for in Article 57(1) of AP I, and further detailed below, civilian casualty tracking and post-strike analysis function as indispensable procedural imperatives. Without these mechanisms, the requirement to take “all feasible” precautions is rendered illusory, as parties cannot substantively learn from previous experiences or adapt their means and methods in order to minimize incidental loss as required by law. Consequently, casualty tracking is not an administrative elective but is a legal prerequisite derived from the intersection of the principle of precaution and the rule of proportionality. It ensures that a commander’s assessment of “reasonableness” is anchored in cumulative operational reality rather than insulated by a self-perpetuating evidentiary vacuum.Footnote 150
Effective implementation of this standard demands empirical understanding of weapons’ effects and tactical consequences derived from systematic casualty analysis, particularly regarding children, whose physiological vulnerability creates disproportionate harm patterns that adult-based casualty models systematically under-estimate.Footnote 151
Age-disaggregated casualty tracking represents the practical implementation of a mechanism through which commanders fulfil their legal obligation to account for children’s “special respect and protection” in targeting decisions. Interpreting the rules of the conduct of hostilities in light of the duty under Article 77 of AP I to consider the specific vulnerabilities of children in attacks is a logical evolution of the “constant care” principle. It would close the lacuna wherein the specific vulnerabilities of children are not explicitly mandated as a factor in the targeting cycle, and transforms Article 77’s normative requirement into operationally relevant data that enables genuine compliance with precautionary obligations.
The foundation for this interpretive move is textual: as the ICRC Commentary on Article 77 confirms, the provision “is not subject to any restrictions as regards its scope of application; it therefore applies to all children who are in the territory of States at war, whether or not they are affected by the conflict”.Footnote 152 This scope is the interpretive gateway through which Article 77(1) reaches into the conduct of hostilities.
It is noteworthy that Article 77(1) does not include a limiting clause when establishing categorical obligations of “special respect” for children. Unlike Article 77(2) on the recruitment and participation of children in hostilities, or Article 75, whose chapeau explicitly addresses persons “in the power of a Party”, Article 77(1) contains no phase or subject-matter restriction. This silence is legally significant:Footnote 153 the drafters of the Additional Protocols chose not to include limiting language, a choice that must be respected. The “special respect” required by Article 77(1) sets a standard that is deliberately higher than the general civilian protection framework. Consequently, this requirement operates as a continuous, qualitative duty that augments Articles 51 to 58 and does not duplicate them, a reading that avoids rendering it redundant.
Critically, AP I was adopted prior to the CRC, which introduced a direct nexus between children’s rights and IHL.Footnote 154 The near-universal cohort of States party to both AP I and the CRC, the “best interests” principleFootnote 155 and the CRC’s continuous-protection framework must inform the interpretation of Article 77(1) of AP I.Footnote 156 The CRC fundamentally reoriented child protection by establishing children as autonomous rights-holders, and therefore, neither AP I nor the ICRC’s Commentary on Article 77 can serve as a static interpretive ceiling.Footnote 157 Beyond this, IHL and IHRL exist in parallel and offer similar protections that are, ultimately, mutually reinforcing, allowing both legal frameworks to be interpreted “in accordance with the ordinary meaning to be given … in their context and in the light of their object and purpose”.Footnote 158
The operational implementation of this interpretive framework is therefore both legally required and practically achievable. Casualty tracking and lessons-learned processes, grounded in age-disaggregated data, provide the vital evidentiary foundation needed to translate the continuous duty of “special respect” under Article 77(1) from an abstract normative commitment into a concrete, enforeceable operational standard. In practice, this data empowers military commmanders to systematically refine targeting protocols, revise rules of engagement, reconsider weapons selection and adjust operational timing to account for children’s predictable presence.
Beyond immediate targeting adjustments, these data-driven insights serve a critical institutional role: they could also be used to incorporate lessons learned into military training and simulations,Footnote 159 thereby allowing belligerents to more accurately prepare personnel for the realities of combat and the heightened precautions necessary to give effect to the protections afforded to children.
Constant care
In IHL, the obligation to take “constant care” serves as a comprehensive umbrella principle that governs all aspects of military operations, extending significantly beyond the specific temporal and functional limits of the precautions in attack framework. The law mandates that “in the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects”.Footnote 160 It is worth noting in this context that the child-specific provisions of AP I and Additional Protocol II (AP II) adopt markedly different formulations of the protective standard. Article 77(2) of AP I obliges States Parties to take “all feasible measures” to prevent children under 15 from taking direct part in hostilities, a qualified standard that, as the drafting history acknowledges, was a deliberate compromise reflecting the practical realities of certain conflict environments, including occupied territories and wars of national liberation.Footnote 161 AP II, by contrast, admits of no such qualification, providing that children “shall neither be recruited in the armed forces or groups, nor allowed to take part in hostilities”.Footnote 162 This divergence in drafting is itself instructive, as it demonstrates that IHL’s graduated approach to child protection is not incidental but reflects a conscious and context-sensitive normative architecture.
While the specific “precautions in attack” apply to the actual planning and execution of a specific strike or strikes, the “constant care” obligation is an ongoing duty that persists throughout the entire duration of an armed conflict. It applies to any movement or activity with a view to combat or in relation to the conduct of hostilities, regardless of whether such activity constitutes an “attack” as defined in Article 49 of AP I.
The “constant care” obligation should be interpreted as demanding systematic child protection integration across strategic, operational and tactical planning.Footnote 163 Beyond pre-strike demographic assessments, it entails real-time monitoring protocols and post-strike impact evaluation and monitoring, as well as the adoption of comprehensive risk mitigation frameworks. One implication of this is the establishment of pre-strike protocols that assess civilian objects with a known high concentration of children, such as schools, hospitals and child protection facilities. This proactive approach, grounded in the duty to take all feasible precautions, has been incorporated into the military doctrines of some countries. For example, the US Department of Defense (DoD) has established a Civilian Harm Mitigation and Response (CHMR) Action PlanFootnote 164 and subsequent Instruction that require planners to consider demographic data and patterns of life.Footnote 165
Post-strike monitoring of child casualty patterns is also essential as it can indicate where precautionary measures have failed, serving as a critical feedback loop for commanders. When monitoring reveals that the long-term effects of an attack, such as the collapse of a health-care system or widespread psychological trauma, are causing ongoing harm to children, it triggers a duty for belligerents to take measures to mitigate these downstream impacts.Footnote 166
The implications of the constant care principle are varied, but a multifaceted approach is essential for closing critical gaps in military medical readiness,Footnote 167 including, most concretely, the formal integration of paediatric-specific medical readiness into all military doctrine and training. Targeted, coordinated and streamlined research and data collection needs to be funded to understand the specific causes of death and injury in child casualties in order to develop more effective treatments – an obligation which, properly interpreted in light of children’s particular vulnerabilities and the child-specific protections of Article 77 of AP I and Geneva Convention IV (GC IV), requires that the medical capacity necessary to fulfil it in practice be developed, maintained and calibrated to the needs of the most vulnerable.Footnote 168
A more expansive best practice coupled with a legal obligation conception of precautions – including the entire process of training, budgeting for staff capacity, dedicating child-specific expertise, enabling professional development, supporting planning processes, integrating legal advisers, developing military legal expertise and promoting accountability efforts – may substantially increase civilian risk mitigation in armed conflict.Footnote 169
Implications for belligerents
The ICRC Commentary on AP I makes it clear that commanders bear responsibility for implementing the precautionary principle.Footnote 170 This includes not only the duty to issue lawful orders, but also the obligation to ensure that forces are trained and equipped to implement precautions effectively.Footnote 171
Accordingly, commanders who order unlawful strikes or fail to implement feasible systems to prevent the unlawful killing of a child may be held criminally responsible for subsequent violations by their subordinates. This may include the failure to implement policies for identifying children in a strike zone, to enforce rules of engagement tailored to children’s vulnerabilities or to select weapons that do not indiscriminately harm children. The failure to act on feasible precautionary measures, particularly concerning children, is not a mere oversight but could be a violation of a commander’s legal obligations under IHLFootnote 172 and subject to criminal accountability under international criminal law.
After-action reviews, a vital operational mechanism used to fulfil the duties that prevent a commander from incurring criminal liability, should specifically examine the effectiveness of child protection measures, ensuring that lessons learned are integrated into future operations. This systematic approach, blending legal obligations with a commitment to best practices, is necessary to transform the law into a framework for tangible protection.
Concluding remarks
Children are invariably present and mixed among civilian adults in contemporary armed conflicts, yet they experience conflict differently and suffer its effects uniquely. These truths are functionally ignored when belligerents continue to employ precautionary measures that are fundamentally geared towards adults.
This is clear across a gamut of precautions, from the selection of weapons and weapon area danger templates to messaging and civilian harm tracking. Fidelity to the object and purpose of IHL, not to mention the humanitarian impulse of the Geneva Conventions,Footnote 173 cannot be achieved without consideration of the nature and severity of the harm children suffer, the short- and long-term consequences of that harm, and the enhanced precautions required to protect them. To ensure the meaningful protection of children in armed conflict, belligerents must accept that children in armed conflict can only enjoy the general and specific protections afforded under IHL and IHRL if they are treated as children and not as “mini-civilians”, and if their differentiated and unique needs, rights and risks are meaningfully and systematically considered.
A necessary corrective of a customary norm: The application of a differentiated harm assessment for children affected by armed conflict
The preceding sections have established that a significant gap persists between children’s formal protections under IHL and the disproportionate harm they continue to suffer in armed conflict. That gap is attributable, in substantial part, to unduly restrictive interpretations of existing IHL provisions that fail to give necessary weight to children’s distinct needs and rights and the risks they face. This is exacerbated by a broader crisis of compliance and increasingly permissive interpretations by States and belligerents that expand the scope of military necessity at the expense of humanitarian considerations. This section advances a corrective interpretive framework grounded in treaty text, IHL’s object and purpose, and a growing body of State practice and opinio juris.Footnote 174 It argues that this framework, if systematically adopted, would bring the applicable customary norm into conformity with IHL’s protective mandate and with the cross-legal-regime consensus that children constitute a legally distinct category of protected persons.
The current customary IHL concerning children and its application to the conduct of hostilities
Rule 135 of the ICRC Customary Law Study reflects an assessment of State practice indicating that children affected by armed conflict are entitled to “special respect and protection”, mirroring the language of Article 77(1) of AP I.Footnote 175 As assessed by the ICRC, the customary norm as currently understood encompasses a defined set of protective obligations operating primarily as a framework of care, service provision and treatment obligations for children affected by armed conflict.Footnote 176 These include, inter alia, protection against sexual violence, separation from adults while deprived of liberty, access to education, food and health care, evacuation from combat areas, and family reunification.
Rule 135 does not limit, prima facie, the special respect and protection owed to children to the period following the conclusion of military operations, nor does it confine such protection to children within the power or control of a party to the conflict. The scope of the customary norm therefore remains open to development as State practice evolves. There is, in fact, an emerging body of State practice that may be understood as supporting an expansion of the customary norm to encompass the conduct of hostilities – a development that the present article seeks to encourage, as discussed below.
The more restrictive interpretation of “special respect and protection” as applying exclusively after the conclusion of military operations is difficult to sustain on three grounds. Each of these grounds counsels in favour of States changing their practice to recognize children’s distinct needs and vulnerabilities in harm assessments during the conduct of hostilities.
First, a plain reading of Article 77(1) does not support the interpretation. As argued in the above section on “The Child as a Child in IHL”, the text of Article 77(1) imposes categorical, phase-neutral obligations of “special respect” without any limiting language. A customary norm that confines these obligations to in-power contexts effectively reads a restriction into the treaty text that its drafters chose not to include.
Second, this narrow construction sits in tension with IHL’s foundational object and purpose: to limit the harmful effects of armed conflict for humanitarian reasons. Where a restrictive interpretation produces outcomes that are impossible to reconcile with that purpose, and the evidence of differentiated, severe and long-term harm to children documented above in the section “Distinct Vulnerabilities, Disproportionate and Accelerated Harm” demonstrates that it does, the interpretive framework generating those outcomes demands revision.
Third, GC IV provides further support for a differentiated approach to civilian protection. The Convention systematically distinguishes among groups of civilians, establishing enhanced obligations for those with particular vulnerabilities: specific provision for children’s care and education, dedicated evacuation procedures and reinforced protections during occupation.Footnote 177 This graduated framework establishes a clear precedent within IHL’s own architecture – effective civilian protection is not uniform in application but is calibrated to the characteristics and needs of different civilian populations. A customary norm that flattens those distinctions in respect of children is difficult to reconcile with the structure of the very treaty regime from which it derives.Footnote 178
Taken together, these grounds demonstrate that a restrictive interpretive approach misreads Article 77(1), conflicts with IHL’s object and purpose, and is architecturally inconsistent with the broader IHL framework. Compliance with IHL generally, and Article 77(1) in particular, demands a reading that, through evolutive and systematic interpretation, obligates belligerents to integrate children’s specific vulnerabilities and needs into targeting decisions, proportionality assessments and precautionary measures. As the analysis below will show, the cross-regime consensus emerging across IHRL, State responsibility under the Genocide Convention, international criminal law and child-specific treaty practice represents not merely persuasive authority but the normative foundation for the progressive development of a customary norm in this direction – a norm that gives concrete operational expression to obligations which are already latent within the existing IHL framework, if properly interpreted within its overarching object and purpose.Footnote 179
That reading is made plain in the CRCFootnote 180 and the interpretation of the Human Rights Committee, which affirmed in its General Comment No. 36 that the duty to protect the right to life requires States to take special measures of protection towards persons in vulnerable situations, expressly including children in situations of armed conflict.Footnote 181 While this obligation arises under the International Covenant on Civil and Political Rights rather than the Geneva Conventions or their Additional Protocols, it reflects a convergent interpretive trend across treaty regimes. When these parallel bodies of IHRL and IHL are viewed together, it is clear that there is authority for the proposition that children constitute a legally distinct category of civilians who are entitled to enhanced, operationally specific protection. This emerging cross-regime consensus should inform the progressive development of this customary norm against the existing, restrictive interpretation of Article 77(1) of AP I.
Treaties and opinio juris
Treaty law and expressions of opinio juris by States constitute independent and potentially generative sources for the development of a corrective customary norm. The ICJ has confirmed that treaty ratification constitutes significant evidence of opinio juris and that treaty norms can lay the foundation for new customary rules.Footnote 182 Non-judicial processes, including treaty negotiations, reservations and declarations, similarly constitute relevant expressions of States’ legal convictions.Footnote 183 These modalities of opinio juris are of particular significance here, given the near-universal ratification of the relevant instruments: at the time of writing, the CRC has 195 States Parties and its Optional Protocol on the Involvement of Children in Armed Conflict (OPAC) has 173 States Parties.Footnote 184
The CRC contains several provisions of direct relevance to the interpretation of IHL obligations towards children. Of particular significance, the CRC’s preamble explicitly recognizes that “the child, by reason of his physical and mental immaturity, needs special safeguards and care”,Footnote 185 establishing vulnerability as a foundational premise and interpretive guide for the entire Convention. Moreover, Article 3 requires that “the best interests of the child shall be a primary consideration in all actions concerning children” without limitation as to context or the phase of activity affecting children. The CRC goes further by linking IHL, IHRL and children, by explicitly providing in Article 38(1) that States Parties must “respect and ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child”. This provision does more than place IHL and the CRC in parallel; it establishes a direct normative bridge between the two, requiring that existing IHL obligations be understood and applied through a child-rights lens. Read together, these provisions impose an independent legal obligation on belligerents to assess anticipated harm through child-specific frameworks. This is an obligation that cannot be discharged by treating children as undifferentiated members of the civilian population, with the default presumption that they are physiologically and psychologically indistinguishable from adults.Footnote 186
The declarations entered upon ratification of the CRC by Argentina, Austria, Colombia, Germany, the Netherlands, Poland, Spain and Uruguay, which concerned raising the minimum age for participation in armed conflicts from 15 to 18, collectively support the interpretive direction towards enhanced concern for children.Footnote 187 The Netherlands went further in its declaration, stating that “[i]n times of armed conflict, provisions shall prevail that are most conducive to guaranteeing the protection of children under international law, as referred to in article 41 of the Convention”.Footnote 188
While these treaty provisions and subsequent declarations do not prescribe the specific conduct required of belligerents in any given operational context, they reflect a legally attributable and convergent State conviction: children are not undifferentiated members of the civilian population whose protection can be assessed by reference to generic civilian standards, but rather constitute a distinct category whose special needs, rights and risks require assessments of harm that lead to different legal conclusions. That conviction extends, on the plain terms of these treaty texts and State declarations, to the ways in which children experience and are harmed by armed conflict. It supports the proposition that an interpretive framework requiring belligerents to account for children’s particular vulnerabilities, including in proportionality assessments and precautionary obligations, is not a progressive development unsupported by existing State practice but is grounded in a substantial and growing body of legally attributable opinio juris.
The OPAC provides additional and more operationally specific evidence of this opinio juris. Its Article 1 obliges States Parties to “take all feasible measures to ensure that members of their armed forces who have not attained the age of eighteen years do not take a direct part in hostilities”.Footnote 189 Article 2 requires that persons under 18 not be compulsorily recruited.Footnote 190 These provisions are significant not merely as child protection measures but as evidence of a State conviction that age constitutes a legally relevant criterion giving rise to enhanced protection obligations that go beyond the general civilian protection framework. The “all feasible measures” standard in the OPAC, which echoes the language of Article 77(2) of AP I and draws on the protective ethos of the CRC, reflects a deliberate normative choice to impose a graduated, age-differentiated standard of protection on the conduct of hostilities specifically, rooted in the particular vulnerability of children rather than in the operational logic of targeting that underlies Article 57 of AP I.
At the regional level, the African Charter on the Rights and Welfare of the Child (ACRWC), which has been ratified by fifty-one States, provides that “States Parties … shall, in accordance with their obligations under [IHL], protect the civilian population in armed conflicts and shall take all feasible measures to ensure the protection and care of children who are affected by armed conflicts”.Footnote 191 The EU Guidelines on Children and Armed Conflict, representing the collective position of twenty-seven member States, similarly commit belligerents to “take effective measures to protect children from the effects of armed conflict”,Footnote 192 reinforcing regional alignment.
The provisions of the Geneva Conventions and Additional Protocols, CRC, OPAC, ACRWC and EU Guidelines, as well as the declarations and reservations entered by States upon their ratification, reflect a coherent and legally attributable opinio juris: that legal frameworks affecting children in armed conflict must account for their differentiated needs and rights and the risks they face, and that the “special respect and protection” owed to children under the customary practice identified in Rule 135 of the ICRC Customary Law Study and Article 77(1) of AP I must be re-evaluated by belligerents in that light.
Submissions by States before the International Court of Justice
Recent State submissions in contentious proceedings before the ICJ reflect a growing recognition that children’s special protection extends beyond the obligations currently encompassed by Rule 135 of the ICRC Customary Law Study and align with the CRC, the OPAC and the regional documents identified above.Footnote 193 While these submissions arise in the context of State responsibility under the Genocide Convention and are not, as such, constitutive of customary IHL, they represent documented and legally attributable expressions of these States’ practice on the normative content of children’s protection under general international law. Their significance lies in what they reveal about States’ evolving understanding of that normative content and in the broader legal logic they articulate – a logic that is not confined to State responsibility under the Genocide Convention specifically.
In The Gambia v. Myanmar, a case currently (as of May 2026) pending before the ICJ, six States – Canada, Denmark, France, Germany, the Netherlands and the United Kingdom – filed a joint declaration of intervention advancing a legally significant proposition.Footnote 194 They submitted that “[i]n assessing whether a specific act constitutes an underlying act of genocide, if the act is committed against children, its particular impact on children must be taken into account”.Footnote 195 In particular, the intervening States argued that a lower threshold applies to the assessment of “serious bodily or mental harm” under Article II(b) of the Genocide Convention when the victim is a child – in effect, that acts insufficient to meet the requisite threshold when committed against adults may do so when committed against children. Further, these States submitted that the standard for “grave and long-term disadvantage to the ability to lead a normal and constructive life”Footnote 196 must be assessed by reference to the child’s specific developmental situation given that children’s developmental trajectories and capacity for recovery differ materially from those of adults, which is consistent with the harms identified above in this article.
Ireland advanced near-identical arguments in both The Gambia v. Myanmar and South Africa v. Israel, submitting in the latter case that “extra weight should be given to evidence of the effects of the material acts of genocide on children” and adducing empirical evidence that children are disproportionately susceptible to harm from explosive weapons, hunger and malnutrition.Footnote 197 That position was further reinforced and expanded upon by Namibia’s declaration of intervention in South Africa v. Israel, in which it submitted that “[t]he killing of children at a certain level and scale makes it implausible for the State to allege that the killings were, for instance, foreseen incidental civilian harm under the rule of proportionality”.Footnote 198
The normative logic underlying these submissions is not body-of-law-specific. The principle affirmed across these interventions, that children’s enhanced vulnerability is legally material to the assessment of harm, derives from the factual reality of children’s susceptibility, which does not vary according to the legal framework within which it is assessed. If that susceptibility is legally relevant to the threshold of “serious harm” under the Genocide Convention, it is not coherent to maintain that the same susceptibility is irrelevant to proportionality assessments under Article 51(5)(b) of AP I, which expressly requires evaluation of anticipated incidental civilian harm, or to the precautionary obligations under Article 57(2)(a)(ii) and Article 57(2)(b) of AP I, which respectively require that those who plan or decide upon an attack take all feasible precautions to avoid, and in any event minimize incidental civilian harm, and require the cancellation or suspension of an attack where it becomes apparent that harm would be excessive. Ultimately, the submissions in these cases establish that an expansive, child-sensitive interpretation of protective obligations under international law is legally articulable by certain States and, critically, tenable in practice according to those States.
What weight, if any, these submissions carry in relation to IHL interpretation, and in particular whether they evidence a nascent opinio juris or State practice regarding the child-sensitive application of IHL principles, is ultimately a matter for the ICJ to determine; however, the fluid and mutually reinforcing nature of international legal regimes is clear. In practice, different branches of international law constantly interact with and inform each other’s interpretation and development: the ICJ has cited the ICTY’s case law;Footnote 199 the ICTR transposed IHL into actionable international criminal law by analyzing and applying Article 3 common to the four Geneva Conventions (common Article 3) in order to establish individual criminal responsibility for violations committed during a non-international armed conflict;Footnote 200 the Rome Statute imports substantial parts of the Geneva Conventions;Footnote 201 and the ICRC has cited the jurisprudence of the ICJ and ICTY when identifying customary norms.Footnote 202 While it would be improper to import wholesale and without reservation an interpretive framework from one legal regime into another, denying the interplay between these bodies risks missing the points of overlap and, critically, the need for coherence across regimes where there is no explicit, affirmative grounds for distinct and potentially contradictory approaches to the same issue. Further, it misses the interpretive models at the heart of the question of assessing harm to children in armed conflict, and the proposition that children’s unique vulnerabilities and special needs are critical to any analysis.
While States may, and often do, adopt positions in international litigation that do not translate directly into their interpretation of other bodies of law, the normative logic underlying these submissions is not confined to State responsibility under the Genocide Convention. The child rendered unable to develop normally as a consequence of conditions deliberately imposed as part of a genocide is not factually distinguishable from the child rendered unable to develop normally as a consequence of the physical destruction of their environment by military operations. While the legal frameworks differ, the factual assessment of harm and its root causes does not.
These submissions, taken collectively, do not yet establish a new customary norm. No final judgment has been rendered in either case before the ICJ, the practice is limited to eight States across two proceedings and, as noted, the submissions arise in the context of State responsibility under the Genocide Convention rather than the Geneva Conventions and Additional Protocols to the extent that this distinction is materially relevant. The formation of a custom requires evidence of a general practice accepted as law, and that threshold is not yet met here. What this body of State practice does establish – in public and legally attributable submissions – is a discernible and growing foundation for a customary norm that establishes that children’s particular vulnerabilities are relevant to harm assessment as a matter of binding law.
To be firmly established, a customary IHL norm of the kind argued for in this article would require this reasoning to be systematically adopted in IHL contexts, by a substantially greater number of States, and across a far wider range of operational and legal settings, including, critically, in proportionality assessments and the implementation of precautionary measures.Footnote 203 It is indisputable, however, that the foundations for a such an interpretation have been laid.
United Nations resolutions, reports and other documents
Security Council resolutions
While UN Security Council resolutions do not of themselves constitute direct sources of customary international law, the ICJ confirmed in Nicaragua v. United States that they may provide evidence of the existence of a customary rule or the emergence of opinio juris,Footnote 204 with greater evidentiary weight attaching to resolutions commanding broader support.Footnote 205 In that capacity, the Security Council’s Children and Armed Conflict (CAAC) agenda, spanning over twenty-five years, reflects an institutionalized and evolving normative consensus that children’s differentiated needs, rights and risks impose specific obligations on parties to armed conflict.Footnote 206
The CAAC agenda has developed incrementally through a series of thematically linked resolutions: Resolution 1261 (1999)Footnote 207 formally recognized children’s particular suffering in armed conflict; Resolution 1314 (2000)Footnote 208 called for child-specific protection measures; Resolution 1612 (2005)Footnote 209 established the Monitoring and Reporting Mechanism for the six grave violations against children; Resolution 2427 (2018)Footnote 210 emphasized the need to prevent harm to children in the conduct of military operations; Resolutions 2106 and 2122 (both 2013)Footnote 211 required pre-deployment and in-mission training on sexual and gender-based violence to account for the distinct needs of children; and Resolution 2764 (2024)Footnote 212 addressed the need to maintain adequate child protection capacities in UN peace operations, including during mission transitions.
As a cumulative body of practice, these resolutions reflect a progressively institutionalized recognition by the Security Council that children’s status as conflict-affected persons is legally distinct and operationally significant. This body of practice does not in itself resolve the question of whether parties to an armed conflict bear heightened obligations to account for children’s distinct vulnerabilities in proportionality and precautions assessments. It does, however, reinforce the normative foundation for the corrective norm that children are not merely an interchangeable subset of the civilian population indistinguishable from adults, but rather form a legally distinct category whose particular characteristics demand a correspondingly differentiated standard of protection.
Other UN mechanisms and international and regional institutional policy and practice
Beyond the Security Council, a range of additional UN mechanisms and other institutional practices contribute to the ongoing development of this normative landscape.
The report of the UN’s Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment recognized that the threshold at which treatment or punishment may be classified as torture or ill-treatment is lower in the case of children, in particular in the case of children deprived of their liberty.Footnote 213 The Special Rapporteur attributed this to children’s “unique physiological and psychological needs, which render them particularly sensitive to deprivation and treatment that otherwise may not constitute torture”, meaning that they “are more vulnerable to ill-treatment and torture than adults”.Footnote 214 The Rapporteur has further stated that “higher standards must be applied” when assessing treatment of children, and that their particular vulnerability “imposes a heightened obligation of due diligence on States”.Footnote 215 While this does not yet, in and of itself, constitute evidence of a custom in formation, it provides a referential foundation consistent with the differentiated interpretive approach advanced in this article.
The ICC Office of the Prosecutor’s Policy on ChildrenFootnote 216 operationalizes a similar logic within the international criminal law framework, requiring prosecutors to assess harm to children by reference to their specific vulnerabilities and developmental contexts. To the extent that more robust ICC jurisprudence on crimes against and affecting children develops from this policy, it may feed into a broader normative environment supportive of customary norm development.
The North Atlantic Treaty Organization’s (NATO) Policy on Children and Armed Conflict, adopted as part of its Human Security Framework in 2023,Footnote 217 calls for CAAC risk assessments to be integrated across mission planning cycles.Footnote 218 The operationalization of this policy has seen it translated into practical guidance, training requirements, roles and procedures for NATO forces before, during and after missions.Footnote 219 While not dispositive in and of itself of a new norm, the Framework and risk assessment frameworks evidence a growing recognition of children’s special needs and rights and the risks they face, as well as the operational plausibility of protecting children in armed conflict.
Finally, the Office of the UN High Commissioner for Refugees’ (UNHCR) Guidelines on International Protection No. 8 provide that children face a lower threshold for persecution in asylum claims due to their enhanced vulnerability, explicitly stating that “[b]eing young and vulnerable may make a person especially susceptible to persecution”.Footnote 220 To that end, the Guidelines clearly provide that acts which might not constitute persecution for adults potentially do when affecting children because of the latter’s developmental immaturity and reduced capacity to cope with harm.Footnote 221
These developments, across military, prosecutorial and protection-oriented institutional frameworks, reflect an emerging consensus that the legal assessment of harm must be calibrated to the particular vulnerabilities of child victims.
Concluding remarks
The case for a corrective customary norm is grounded in three convergent lines of authority. First, the plain text and object and purpose of Article 77(1) of AP I and the broader architecture of GC IV support a differentiated, phase-neutral interpretation of children’s special needs, rights and risks.Footnote 222 Second, a substantial and growing body of State practice, in treaty ratification, declarations and ICJ submissions, reflects a legally attributable conviction that children’s vulnerabilities are material to harm assessment under international law. Third, UN resolutions, international and regional institutional policies, and subsidiary mechanisms progressively reinforce the normative expectation that parties to armed conflict must treat children as a distinct category of protected persons.
None of these elements individually constitutes a new customary norm. Collectively, however, these instruments, including the ICJ submissions examined above, establish a substantial, multi-regional and growing foundation of State practice and legal conviction on which a corrective customary norm could develop, and which, at minimum, provides authoritative guidance for the interpretation of States’ existing IHL obligations towards children, consistent with the presumption that States interpret their treaty commitments coherently and in good faith. Whether that development will materialize depends, ultimately, on whether States are willing to adopt, systematically and in operational as well as juridical contexts, the interpretive principle that the same act may cross a legally relevant threshold when its victim is a child even where it would not when its victim is an adult.
The foregoing analysis demonstrates that this principle is not novel, not radical and not unsupported by law – to the contrary, it is the interpretation that existing treaty provisions, their object and purpose, and the cross-regime trajectory of State practice together require.
Conclusion
Children are not peripheral to the protection framework of international law; they are central to its foundational purpose. The disproportionate and excessive suffering of children in armed conflict is not a matter of some legal lacunae in IHL, but one of interpretive failure. As it stands, IHL contains within its architecture sufficient normative material to afford children meaningful and differentiated protection. The Geneva Conventions, their Additional Protocols and the body of customary international law that has crystallized around them do not leave children unaddressed or without protections. Yet the persistent, systemic harm that children endure in contemporary armed conflicts compels an honest reckoning: formal protection and effective protection are not the same thing, and the distance between them is, at present, unconscionably wide.
A child-sensitive interpretation of IHL is not a deviation from IHL’s foundational logic; rather, it is at once an indispensable component and the law’s fulfilment. To read proportionality assessments, precautionary obligations and military necessity through a lens that genuinely accounts for children’s distinct physiological, psychological and developmental vulnerabilities is to honour the humanitarian object and purpose that animates this body of law.
The “mini-civilian” construction is not a neutral interpretive default: it is an active legal choice with lethal consequences. When targeting officers assess anticipated civilian harm without disaggregating children from the broader civilian population, when precautionary measures in attack do not incorporate child-specific risk factors, when post-conflict accountability mechanisms treat the deaths and maiming of children as legally equivalent to adult casualties requiring no further analytical attention, the law is being applied in a manner that is structurally inconsistent both with IHL’s own child-sensitive provisions and with the reinforcing obligations imposed by the CRC. This inconsistency is untenable and demands a corrective interpretive framework that recognizes children’s vulnerabilities and needs, and that meaningfully protects them from harm.
The emerging State practice before the ICJ, and the broader normative momentum gathering in multilateral forums, suggests that the interpretive shift argued for here is neither utopian nor diplomatically premature – the trajectory is visible. What remains to be done is to accelerate this development through a coalition of mutually reinforcing and sustained efforts: scholarly advocacy that sharpens the legal argument; operational leadership by those military establishments that have already embedded child-protective standards into their doctrine, rules of engagement and training programmes; and principled engagement by like-minded States that have demonstrated, through treaty ratification, national legislation and battlefield practice, that robust protection of children in armed conflict is both legally required and operationally achievable. To these must be added the institutional pressure of international organizations and monitoring bodies whose reporting and accountability mechanisms translate normative commitment into measurable State behaviour.
Children in armed conflict cannot wait for the law to catch up with their suffering. The law, properly interpreted, has already recognized that suffering; the imperative now is to ensure that this recognition translates into protection which is not merely formal but real, differentiated and enforceable.
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