Report on the Open Debate of the Security Council on Children in Armed Conflict

The Security Council, on 19 September 2012, held an open debate pertaining to The Report of the Secretary-General A/66/782-S/2012/26 on the status of children in armed conflicts and Resolution 2068(2012), the Security Council’s response to the Secretary-General’s report. While this subject of protecting children seems noncontroversial, the resolution proved more polemical than one may have expected. The principle subject under dispute was the reach of the Security Council’s mandate to protect children in armed conflict. The modalities of such protection and the efficacy or appropriateness of different options were also discussed. This report outlines key aspects of the resolution and the lines of argument the debate followed.

Resolution 2068(2012) passed with eleven votes in favor1, none against, and four abstentions2. The abstaining countries were China, Pakistan, Russia , and Azerbaijan. However, a number of countries that voted in favor of the resolution voiced concern or disappointment with elements of the resolution in their statements.

The Resolution, inter alia, “(a) calls upon Member States concerned to bring to justice those responsible for such violations through national justice systems, and where applicable, international justice mechanisms;” and “(b) reiterates [the Security Council’s] readiness to adopt targeted and graduated measures against persistent perpetrators.” It does so,

“stressing the primary role of Governments in providing protection and relief to all children affected by armed conflict, and reiterating that all actions undertaken by United Nations entities within the framework of the monitoring and reporting mechanism must be designed to support and supplement, as appropriate, the protection and rehabilitation roles of national Governments;”

“recognizing the importance of strengthening national capacities for the protection, reintegration and rehabilitation of children affected by armed conflict, bearing in mind national ownership;” and

“recalling the responsibilities of States to end impunity and to prosecute those responsible for genocide, crimes against humanity, war crimes, and other egregious crimes perpetrated against children.”

Resolution 2068(2012) also states,

“the present resolution does not seek to make any legal determination as to whether situations which are referred to in the Secretary-General’s report are or are not armed conflicts within the context of the Geneva Conventions and the Additional Protocols thereto, nor does it prejudge the legal status of the non-State parties involved in these situations.”
The latter paragraph proved especially disputatious. The Report of the Secretary-General A/66/782-S/2012/26, to which Resolution 2068(2012) is a responding action, provides a list of countries in which the rights of children are violated, with a description of the situation of children in each. The purpose of the “List of Shame,” as it is called, is to draw attention to and thereby leverage pressure upon States in which children are victimized. Controversially, the list includes countries that are not on the Security Council’s agenda as well as countries that are . In his report, A/66/782-S/2012/26, the Secretary-General stated,
“In the performance of her mandate, my Special Representative has adopted a pragmatic and cooperative approach to this issue, with a humanitarian emphasis, aimed at ensuring broad and effective protection for children exposed to and affected by conflict in situations of concern.”

Some member States asserted that this is an inappropriate and extra-mandate mode of protecting children. It was argued that the Security Council may, and ought, only attend to agenda item countries that technically qualify as armed conflicts according to specific Conventions and Protocols, or to countries that the Secretary-General deems to imminently threaten international peace and security.

The representative of India, Mr. Manjeev Singh Puri, outlined this position in his Statement:

“Paragraph 16 of resolution 1379(2001) requested the Secretary-General to report on the situations that are on the Security Council’s agenda or that may be brought to the attention of the Security Council by the Secretary-General, in accordance with Article 99 of the Charter, which in his opinion threaten the maintenance of international peace and security. All subsequent resolutions, including resolution 1882(2009), which makes reference to other situations of concern, draw their legitimacy from paragraph 16 of 1379(2001). In spite of that clearly spelled out mandate, the Secretary-General’s reports include situations that do not meet the threshold for being an armed conflict or a threat to the maintenance of international peace and security. The fact…should have led to the removal of such situations, not their continued inclusion with a blasé disclaimer.”

Such jurisdictional “adventurism,” said Mr. Tarar, the representative of Pakistan,

“creates legal, political, and practical difficulties for both the Secretary-General and the United Nations system as a whole…That disturbing trend is bringing into disrepute both…the Security Council and the esteemed Secretary-General.”

It was also suggested that, in addition to overstepping its legal authority, the Security Council diminishes its efficacy by too broadly expending its resources on “mandate creep.” While the suffering of children is deplorable in countries beyond the purview of the Security Council agenda, “for those cases there are other bodies and other ways of dealing with the issue,” said the representative of Colombia, Mr. Osorio. Organizational myopia is, according to this argument, necessary in that it allows individual bodies to most efficiently address the issues of their specific foci.

“The major challenge is the question of resources. While some members of the international community never tire of pushing to expand the mandate, they are unwilling to provide adequate resources even for meeting the requirements of the agreed mandate,” said Mr. Manjeev Singh Puri.

The Representative of the United Kingdom, Sir Mark Lyall Grant, dismissed the notion of mandate creep altogether.
“We cannot accept the assertion made by some Council members that the former Special Representative of the Secretary-General overreached her mandate in the conduct of her business. That accusation is completely unfounded,” he said.

The argument against the inclusion of non-agenda countries was strongly associated with typical debates over the primacy of the principle of sovereignty versus human rights. Mr. Li Baodong, the representative of China, said,

“the sovereignty of countries in conflict should be respected. The key to implementation of relevant resolutions and the effective implementation of various initiatives to protect children lies in support, cooperation, and action on the part of the countries concerned.”

Mr. Grauls, the representative of Belgium, had this to say regarding sovereignty:

“For my country, it is crystal clear that sovereignty, as a matter of principle, should never, ever be invoked in order to deprive children of the protection they deserve, since sovereignty is a means for a State to protect its own citizens, whatever their age. Allowing the United Nations access in situations of concern, and allowing it to report and verify incidents of violations against children is, in Belgium’s view, merely a part of a correct implementation of the sovereignty principle.”

In reference to situations not on the Security Council’s agenda, the representative of the Russian Federation, Mr. Karev, added,
“they can by considered by the Working Group only with the consent of the State involved.”

Most of the statements were more ambiguous, however. Conceptual gradations of an applied sovereignty principle rode on the notion of responsibility: who is responsible for violations of children’s rights, who is responsible for the protection of children rights, and what is the responsibility of the Security Council in relation to these exigencies?

Often, abuses of children’s rights are committed not by States, but by non-State armed actors.

“We should note that State actors in most cases have been cooperative and have worked constructively in preparing and implementing concrete, time-bound action plans to cease and prevent abuse and violations against children. The major challenge, however, has been bringing armed opposition and rebel groups into compliance. Thus, when considering compliance measures, we need to ensure that they will be effective against non-State parties in particular,” said the representative of South Africa, Mr. Mxakato-Diseko.

The Statement of the representative of Guatemala, Mr. Brix Gutiérrez, elaborated upon this concern. The majority of the 32 parties listed as persistent perpetrators, he pointed out, are non-State actors,

“groups that, by definition, we have difficulty reaching. Such parties to conflict have not been affected by being on the naming and shaming list, they are not accountable for their acts, and they do not comply with recognized international rules, human rights law, or humanitarian law. They are considered as illegal or criminal within their own countries. In addition, they do not seem to care about their reputation or international image. Many of these non-State armed groups oscillate between acting on political motives and fulfilling criminal objectives. Those doing the latter are even less responsive to incentives and deterrents to change their modus operandi in areas under their control.”

The representative of the United States of America, Mr. DeLaurentis, said,

“We agree with the Secretary-General that we must find a better way to affect the conduct of persistent perpetrators. Since most Government forces have signed action plans or given indications that they will do so, our main concern should be with non-State armed groups. In addressing such armed groups, …because national Governments have the primary responsibility to protect children in their territory, the United Nations must work with armed groups only in close cooperation with national authorities.”

Mr. Karev, the representative of the Russian Federation said,

“The primary responsibility for protecting and rehabilitating children belongs to national Governments. Steps taken by United Nations entities should be designed to support and complement those efforts. United Nations representatives may be allowed to engage with non-governmental armed groups only with the consent of the Government of an affected nation.”

The representative of Togo, Mr. Menan, insisted that States are responsible for what transpires inside their borders, and therefore also culpable in cases of failure to protect children within their territories. Mr. Menan largely attributed such failure “to a lack of national policies to safeguard the well being of children. Moreover, where Governments have taken steps or adopted action plans on children, implementation suffers from the lack of follow-up.”

Several speakers expressed a hybrid of these positions, placing the responsibility to protect citizens within the purview of States and simultaneously recognizing the infeasibility in many cases of States preventing and prosecuting perpetrators of children’s rights violations. It was proposed that, in such cases, the Security Council, in cooperation with other UN bodies such as the Department of Peace Keeping Operations and the Peacebuilding Commission, should support States with capacity building programs. It was broadly agreed that increased cooperation with the international and national courts, especially in cases of State incapacity to administer justice, might effectively counter the impunity that facilitates persistent perpetrators. The International Criminal Court’s conviction of Thomas Lubanga and the Special Court of Sierra Leone’s verdict against Charles Taylor were cited in support of optimism in this regard.

Other States advocated harsher application of sanctions against perpetrators.

“Although we are aware of the difficult issues this raises…further work is necessary to ensure that sanctions are imposed against individuals or entities who commit grave violations against children. The imposition of sanctions sends a signal to parties who commit such crimes and contributes to greater compliance with the Council’s agenda on children in armed conflict,” said Mr. Gutiérrez for Guatemala.

Currently, there are four sanctions committees that include grave violations against children amongst the criteria for their work, the committees for Somalia, Sudan, the Democratic Republic of the Congo, and Côte d’Ivoire. Many representatives commended this and expressed hope that other committees would adopt such criteria.

Mr. Arnaud, the representative of France, spoke in support of a broader, less encumbered sanctions mechanism. “The Working Group could…become an ad hoc sanctions committee when the situation so requires,” he said.

However, the representative of Colombia, Mr. Osorio, cautioned that

“applying sanctions only makes sense when a Government fails to heed appeals by the international community. However, applying sanctions to armed non-State actors in situations not on the Council’s agenda poses a panoply of complications, starting with the fact that, clearly, this can have a bearing on fundamental interests of the country involved, as well as on matters of national security.”

The United States of America’s representative, Mr. DeLaurentis, concurred with this position. While agreeing that “the Security Council should consider a broader range of options to increase pressure on persistent perpetrators,” he asserted that “a free-standing sanctions regime on children in armed conflict would not seem to address the need for better tools to deal with persistent perpetrators.”

The criticism was also made that the criteria for escaping the List of Shame are unclear and inconsistent. Said the representative of Thailand, “once a country is put on the list, it is not objectively clear what it must do to be removed. The list thus becomes a hall of shame, rather than a potential tool.” Pakistan and India explicitly shared this concern. Pakistan’s representative, Mr. Tarar, further accused the Office of the Special Representative of the Secretary-General of condemning acts of child violation selectively.
“While they did not lose time in issuing statements regarding acts of terrorism involving children in specific countries, even when those were not situations of armed conflict," he said, "the Office is known to have turned a blind eye to the killing of children in actual armed conflict situations.”

Delisting criteria are outlined in the Secretary-General’s Report on children and armed conflict (A/64/742-S/2010/181), Paragraphs 178 through 180. They include “a halt to violations and/or the pattern of violations concerned,” “official command orders issued through the chain of command of the armed force or group specifying a commitment to halt violations and to take disciplinary measures against perpetrators,” and “an agreed means of cooperation between the party concerned and the United Nations to address grave violations committed against children.” Triggers for being listed include “recruitment and use of children, killing and maiming of children in contravention of applicable international law, and rape and other forms of sexual violence against children,” as detailed in Paragraph 231 of the Secretary-General’s 2012 Report, A/66/782-S/2012/26. The trigger violations were expanded in this year’s report to include attacks on schools and/or hospitals. Mr. Seger, the representative of Switzerland, added, “two more types of serious violations should be included: abduction and denial of access to humanitarian aid.” This sentiment was echoed by the representative of Lichtenstein, Mr. Barriga.

There was additional disagreement over the effectiveness of “naming and shaming” States. Positively, inclusion on the list has pressured many States to sign action plans and led to the demobilization and release of tens of thousands of child soldiers, according to the Secretary-General's report
.
“The creation of the Working Group and…the design of action plans, through which parties can commit to ending their criminal practices, has had tangible results that are genuinely reflected in the number of children who have been released and reintegrated, and in the delisting of parties to conflicts that had previously been included on those lists,” stated Mr. Estreme, representative of Argentina.

The representative of the Russian Federation, however, pointed out the dissonance between word and deed.
“On the one hand, certain parties to armed conflicts have adopted such plans but are still listed, and, on the other, it is well known that the existence of this type of document in no way ensures that it is being implemented in practice or even that there is an intention to do so.”

During the debate, the Council also heard statements by Ms. Leila Zerrougui, the newly appointed Special Representative of the Secretary-General for Children and Armed Conflict, Mr. Hervé Ladsous, Under-Secretary-General for Peacekeeping Operations, Mr. Anthony Lake, Executive Director of UNICEF, and Mr. David Tolbert, President of the International Center for Transitional Justice (ICTJ). These statements outlined the vast body of work being undertaken to relieve children in conflict situations as well as the profound urgency and difficulty of the work. Mr. Tolbert’s statement thoughtfully expanded upon the definition of accountability that seemed to be operating throughout most of the debate.

“Prosecutions are, after all, essential for accountability. They send a clear message that certain violations will not be tolerated by society or by the international community. However, ICTJ’s work over the past decade in over 40 countries has shown that, in isolation, prosecution is not enough. Accountability for violations against children in armed conflict is best achieved through a comprehensive approach to justice that addresses not only the responsibility of perpetrators but also the rights of victims within a broader process of social change. A comprehensive approach to justice should include truth seeking, reparations, and institutional reform in addition to prosecutions. “

Ms. Zerrougui, who previously served for four years in the Democratic Republic of the Congo as the Deputy Special Representative of the United Nations Organization Stabilization Mission, said,

“I would like to share with the Council that children and their families have high expectations of the Council. Victims feel that it can and should alleviate their suffering. I have seen what the Council in action can do. It can change the fate of a child. Many challenges remain, but Governments and non-State actors have begun to respond to the Council’s call for action. I believe that the protection of all children from grave violations is within our reach. If we stand firm and united, we can move forward and deliver on what is expected from us, namely, that the international community come together and demonstrate its determination to protect children from war.”

Transcripts of the debate’s morning and afternoon sessions are available online.

• 1. Colombia, France, Germany, Guatemala, India, Morocco, Portugal, South Africa, Togo, the United Kingdom of Great Britain and Northern Ireland, and the United States of America were the countries in favor of the resolution.
• 2. China, in its explanation of its abstention, took exception to the inclusion of Pakistan in the report. Russia spoke in defense of the Syrian government