Researches

The United Nations Convention on the Right of the Child (UNCRC,1989) and its usefulness and role in improving children's everyday life in Nepalese context

Amar Bahadur Singh

Abstract

This paper presents the historical development of UNCRC with the principles and theoretical discussion underlying it. It also discusses the controversies and confusion that lie in certain articles of the Convention. Furthermore, it reflects on how UNCRC has been a crucial instrument in improving children’s everyday life around the world, particularly in context to Nepal.

Introduction

The UN Convention on the Rights of the Child (UNCRC) is said to have brought changes in viewing children as well. It has helped people believe that children are also active, competent human beings, not passive becomings. They are also independent right-holders human beings. They should be let involve in the issues that concern and affect them. These notions have appeared noticeably in sociologies of childhood after the introduction of the UNCRC.

The Convention has been the first powerful international legal instrument to ensure the rights of children across the world.  It has incorporated full range of human rights-civil, cultural, economic, political and social rights.  The Convention sets out these rights in 54 articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life.  Every right spelled out in the Convention is inherent to the human dignity and harmonious development of every child. It protects children’s rights by setting standards in health care; education; and legal, civil and social services. 

So, the UNCRC has been a vital legal instrument in protecting and promoting the rights of the children around the world.  It has been successful in placing the children’s issues at the centre of the mainstream human rights agenda. Admitting its paramount importance, James P. Grant, the third Executive Director of the UNICEF, as cited in Fottrell (2000), has termed the UNCRC as the ‘Magna Carta for children’. In contrast, the UNCRC has recently been criticized for not having the provision for lodging individual complaints against child right violators and being more inspirational and conditional, and less realizable.

Historical background 

The discussion about the rights of children is not a recent one. The advocacy of children’s rights began even before the industrial revolution. In the 1760s, Jean-Jacques Rousseau argued that children had a right to childhood and right to enjoy it, which had a marked influence in child-rearing practice. By 1830s Rousseau’s ideas were initially applied by better off parents and later all reformers to all children. Elizabeth Barrett Browning’s famous poem ‘the cry of the children’ gave a strong voice to advocacy of children rights too (Cunningham and Stromquist, 2005).

Child labour was extreme during the 1830s (Cunningham and Stromquist, 2005). It made many child-right activists and writers raise their voice against extreme exploitation of children in the industrial economics of western world. An article entitled ‘The Rights of Children’ appeared as early as June 1852, and in France Jean Valles attempted to establish a league for the protection of the rights of children in the aftermath of the Paris Commune (Freeman, 1992). This was, as Freeman describes, also the period of the child saving-movement which led to the development of juvenile justice and establishment of compulsory education.

Around the turn of the century a considerable amount of attention was paid in the protection of children. The ‘child protection’ and ‘compulsory school’ laws were passed around everywhere in the industrialized world, particularly in the UK. The book ‘The Century of the Child’ published in 1903 by Ellen Key, a Swedish feminist, brought the issues of the rights of children into limelight in the international arena of discussion. In 1902 the Hague Conference on Private International Law considered ‘interest of the child’ as an important criterion in the convention on guardianship of minors (Verhellen, 2006).

Until 1918, international discussions on child labour and their protection were largely confined to Europe and areas of white settlements outside it. International Labour Organization (ILO), established in 1918, in its first conference in Washington, set a minimum age of 14 for employing children. It was the first legal provision for the protection of the children mainly from labour exploitation (Fottrell, 2000).  This is very closely linked to the children’s right not be exploited in any kind of productive work.

In 1920, Eglantyne Jebb, the president of Save the Children Fund decided to set up the Save the Children International Union. This international organization soon had numerous national sections dealing with the post-war plights of children. The five fundamental aims of the organization were put into five-points programme called the ‘Declaration of the Rights of the Child’ (Verhellen, 2006).

1.      The child must be given means needed for normal development, both materially and spiritually.

2.      The child that is hungry should be fed; the child that is sick should be helped; the erring should be reclaimed; and the orphan and homeless child should be sheltered and succoured.

3.      The child must be the first to receive relief in times of distress.

4.      The child must be put in a position to earn livelihood and must be protected against every form of exploitation.

5.      The child must be brought be in the consciousness that its best qualities are to be used in the service of its fellowmen.

Verhellen (2006, p. 64)

The notion of the child as an independent-right holder emerged in international law along with Declaration on the Rights of the Child, which adopted the five-points programme set by Eglantyne Jebb, passed by League of Nations in 1924. This was one of the earliest international human rights instruments which was essentially paternalistic and welfare oriented and its conceptualization of the child stressed vulnerability and the emphasis was on protective strategies (Fottrell, 2000). And the Declaration points out adults obligations to assert the rights of the children. Moreover, the Declaration was non-binding and few States incorporated it into their domestic legislation. That’s why it had limited impact on the practice of States or international organizations.

 Ten years later in 1934, the Declaration was reconfirmed by the League of Nations’ General Assembly and the States promised to enact its principles in their own legislation (Verhellen 2006).

Similarly, the Universal Declaration of Human Rights (1948), a non binding resolution implicitly raised the issues of children’s rights. The Declaration states, ‘Motherhood and Childhood are entitled to special care and assistance. All children, whether born in or out of wed lock, shall enjoy the same social protection’ (Article 25; 2).

Although the rights of children were implicitly included in this Declaration, it was felt by many to be insufficient and that special needs of children justified an additional, separate document. In November 1958, the UN General Assembly adopted the second Declaration of the Rights of the Child. This consisted of ten principles and included the guiding principle of working in the best interests of the child. However, this Declaration was not legally binding and was only a statement of general principles and intent.

Up to the 1970s the debates and discussions about the child as a rights-holder, as Fottrell (2000) mentions, was confined very much to the domestic arena in a few Western States.  The children‘s rights did not feature highly on the human rights agenda on the international level; they were a matter of particular concern to humanitarian organizations.

There emerged a coherent and robust movement for the empowerment of children in political, civil and social contexts in the US in 1970s. This made a move from the welfare-oriented paternalism, to which Archard termed ‘the caretaker thesis’ of earlier campaigns towards a radical liberation-oriented approach, the cornerstone of which was the recognition of the child’s autonomy (Fottrell, 2000; Archard, 1993).

Likewise, as mentioned in the CRC preamble, the international community also acknowledged the special rights of children in the International Covenant on Economic, Social, and Cultural Rights (CESCR) and the International Covenant on Civil and Political Rights (CCPR), which both entered into effect in 1965.

In addition, children’s rights advocates strongly discussed the need for a separate and particular canon of rights for children which reflected their needs and concerns (Fottrell, 2000).  This discussion got widespread and the international movement for recognition children’s rights as human rights started growing after the debates taking place in the US in the 1970s. Increased pressure to create a binding international instrument led to a formal proposal from the Polish delegation. They presented the proposal conceptualizing a Convention on the Rights of the Child to the UN Commission on Human Rights in 1979, the International Year of the Child. Over the next decade, as Fottrell (2000) describes, this proposal was redrafted several times as debates and controversies like the point at which life begins, parameters for autonomy, adoption in Islamic worlds, etc emerged around inclusion of several rights. Additionally, the drafting process was hampered by the need to balance between the traditional attitudes and cultural peculiarities, and the radical proposal for the empowerment of children. Finally, the Convention was adopted by the UN General Assembly after a decade of negotiations on November 20, 1989, and entered into force on September 2, 1990. This is the historic achievement for the children’s rights and Nepal ratified the UNCRC on September 14, 1990.

Guiding principles of the UNCRC

There are four main sections to the UNCRC: (1) the Preamble, which sets out the major underlying principles of the UNCRC and provides context for it;  (2) the substantive articles, which set out the rights of  all children and obligations  of governments (Part I, Articles 1-41); (3)  the implementation  provisions, which define how compliance with the UNCRC is be monitored and fostered (Part II, Articles 42-45); and (4) the conditions under which the UNCRC comes into effect (Part III, Articles 46-54).They are all together 54 articles. The Convention has two Optional Protocols, adopted by the General Assembly in May 2000 and applicable to those states that have signed and ratified them: The Optional Protocol on the Involvement of Children in Armed Conflict and the Optional Protocol to the Convention of the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. Nepal government signed both the optional protocols on 8th Sept 2002

The Preamble of the UNCRC acknowledges the family as the fundamental group of society and natural and happy environment for the growth and harmonious well-being of children and states the duty of the family to afford the necessary protection and assistance to the children.

The UNCRC applies to all children under 18.  Each of the substantive articles, Articles 1-41, details a different type of right for children. According to Alderson (2008), the substantive articles of the UNCRC detail three overlapping kinds rights (three P’s in short) viz. Provision rights, protection rights and participation rights.  Anne Trine Kjørholt, the academic coordinator of NOSEB, has mentioned four P’s in her lecture, viz. Provision rights, prevention rights, protection rights and participation rights. Agreeing with them, I would like to classify these articles into the following four types of rights.

1.      Provisional or Survival rights: include the right to life and needs that are most basic to existence, such as nutrition, shelter, an adequate living standard, and access to medical services

2.      Development rights: include  the right to education, play, leisure, cultural activities, access to information, freedom of thought, conscience  and religion

3.      Protection rights: safeguard children from all forms of abuse, neglect and exploitation, including, special care for refugee children, children in criminal justice  system and rehabilitation  of children who have suffered exploitation or abuse of any kind

4.      Participation rights: incorporate children’s freedom to express opinions, to have a say in matters affecting their own lives, to join associations and to assemble peacefully. They have increasing opportunities to participate in the activities of their society along with their physical and mental development.

Fottrell (2000) states that the UNCRC is underpinned by five key principles that form a backdrop against which all actions of the States are to be measured

§  First, under Article 3 the best interests of the child are a primary consideration in all matters concerning the child. This principle is widely accepted in domestic law but is introduced by this provision into international law for the first time.

§  Second, Article 5 requires that account is to be had of evolving capacities of the child, thus children can be accorded greater autonomy and responsibility as they get older.

§  Third, Article 12 very radically requires that States ensure that due weight be given to the views of the child, and that children who are capable of expressing views be heard in all matters concerning them.

§  Fourth, Article 2 requires that all the rights in the CRC be accorded to all children without discrimination.

§  Finally, Article 6 protects the right to life, survival and development.

Fottrell (2000, p.5)

These guiding principles or key themes provide a strong framework for the adoption of child-friendly focus in all of the obligations imposed on the State. The  UNCRC has introduced new rights and reconstructed the existing rights so as to promote a child-centred perspective. It has been instrumental in recognising children’s rights as human rights in international legislation. 

Furthermore, the UNCRC has been a common platform for all. Recognizing its importance, 193 States have ratified it. It has changed the way we used to view the children. It has helped people view children as competent social actors who have valid perspectives and experiences of their own lives and others. The provisions enshrined in Articles 12-17, which include the rights to freedom of expression, association, privacy, and most controversially, freedom of religion are said to be extreme and radical in application to children.

Theoretical discussions to the UNCRC

Much of the initial discussions about children’s rights has been philosophical and conceptual in nature. The advocacy of children’s rights is to simply a device of diminishing the real freedom of adults. The focus on general and theoretical considerations has overlooked the practical suggestions for change on children’s rights (Franklin, 1995).  The theoretical debates and discussions are still going on about the CRC and two main conflicting views linked to the theoretical discussions of children’s rights are discussed

a. Caretaker thesis versus child liberation thesis

In regard to welfare and liberty rights, there are two diametrically opposite theses, viz. ‘the caretaker thesis and the child liberation thesis (Arhard, 1993).  These are the two conflicting points of views underlying the theory of children’s rights.

The advocates caretaker thesis argue that children should not be free to make autonomous decisions and their caretakers should be responsible in making decisions for them since, as they argue, children are the property of their natural parents and that’s why their treatment should be at the sole discretion of their parents. As Archard (1993) says, they deny only the right of self-determination because of a general political philosophy that accords self-determination a central and much valued place.

The caretaker view is the traditional view of children’s rights which is still dominant all over the world, particularly in developing worlds. This view stresses that children are weak, helpless and unknown about the world around them. So it is parents’ duty and right to make all choices for their children. Children are fully dependent on their parents and have only some sorts of dependency rights which are related to reasonable expectations that they will be given whatever they require to grow into healthy and functioning adults. This states that children have some rights but not all the rights that adults have. This view is dominant my country as well.

 In striking contrast to the ‘caretaker’ view is the ‘child liberation thesis’ which is believed to be relatively radical. This view stresses that children have exactly the same rights that adults have, including such rights as the right to choose for oneself.  Children should have the rights to decide matters that affect them most directly. The children’s liberation view is based on the argument that children do not differ from adults in ways that justify claiming that they do not have the same rights adults have. Children are also human beings. Children have the same fundamental human dignity that adults demands from others, and so they should have the same freedom to decide how they will run their own lives. This view is thought to be very revolutionary and most probably, because of this view, the United States is yet to ratify the UNCRC.

Likewise, the advocates of child liberation thesis argue that the right to self-determination is a fundamental right of all children. This is the central point of them. As they argue, the children are competent social beings, not incompetent ones as seen by the advocates the caretaker’s thesis. And denying rights simply on the basis of arbitrary criterion of age is fair and just. The advocates of child liberation thesis have propelled the children’s right movement to the recognition human rights although they do not have consistent arguments for the rights children

Definition of ‘children’ and ‘rights’

There is no universal definition of a child. The social and biological definition of a child seems to be place, ethnicity, caste, gender and class specific. CRC (Article 1) states... ‘a child means every human being below the age of eighteen years unless the law applicable to the child, majority is attained earlier’. In Nepal, a person below 16 years of age is regarded as a child (Children’s Act, 1992).

Children and childhood have various connotations around the world. Being a child, as Franklin (1995) describes, is not a ‘universal experience of any fixed duration’. It is differently constructed social phenomenon on the basis of a divergent gender, class, ethnic, historical locations of particular individuals. Defining a child seems very important as the age limit determines the involvement of children in work, armed conflict, etc. The geographical, historical, and cultural factors existing around the world have set the age of children according to their cultural and social peculiarities. This has hindered CRC’s principle of protecting children under 18 as many children in different part of the world are defined as adults.

Franklin (ibid.) describes the three factors underlying the complexity of the notion of children and childhood.  First, the age boundary between childhood and adulthood is established at different ages in different spheres of activities.  In UK, a child reaches the age of criminal responsibility at 10 but he or she does not have suffrage until he or she is 18. In some states of Australia a child as young as seven can be considered criminally responsible. In Nepal, the minimum age for criminal responsibility is 10, but for suffrage 18. Similarly, in India it is 7, Bangladesh 9, Bhutan 10, etc. (UNICEF). This arbitrariness of age of criminal responsibility has violated children’s right to ‘juvenile justice’ (Article 40) which recommends the penal provision be raised to at the age of 18.

Second, the definition of everyone under 18 as a child does not seem fair to all children ranging from zero to 18. The infants have definitely different needs other than the teenagers. So the heterogeneity of childhood does not seem to have been addressed by CRC.

Third, children have different experiences in different countries. Ennew (2000; in Franklin 2000(eds.) argues that the conception childhood which stresses domesticity and dependency, is largely a western definition which places certain children, especially the street children ‘outside childhood’. She further argues that the place for childhood is inside a family, inside a society and inside a private dwelling. However, street children have been the ‘ultimate outlaws and CRC does not have any provisions protecting their society. They have been outside childhood.

Children rights have been a buzzword at the moment all over the world. United States is yet to decide whether to ratify the CRC or not. Many parents object to children’s rights as they suspect that their children might be disobedient. Many religious institutions seems opposite of children’s rights, as CRC (Article 14) enshrines the right to religion of the children.

Rodham (1973; in Franklin 1995) states that children’s rights were described as a ‘slogan in search of definition’ in the early 1970s. In the subsequent two decades children right have got much discussions and a wide range of rights have been claimed by and for children including basic human rights. ‘It is important that the discussions of children’s rights should keep two broad distinctions in mind; between legal and moral rights, and between welfare and liberty rights’ (Franklin 1995, p. 9).

Legal right is an entitlement which is acknowledged and enforced by an existing law. The children possess the legal rights. A moral right, however, enjoys no legal endorsement (Feinberg, 1973; in Franklin 1995).  By contrast, a moral right is a claim which it is believed children should possess. For example, children’s right to education is a legal right, and respecting and obeying seniors could be a moral right.

Certainly, the member countries of the UNCCR have made some sort of legal provisions applicable to the children in their context. Nevertheless, the moral rights are very subtle which reflect the historical and cultural peculiarities’ of a particular place. The type of society, either matriarchal or matriarchal or both has much impact on children’s rights. In patriarchal society, children are supposed not to raise any questions in front of their seniors, if they do, they are regarded not good children. Then, what about the right of children to ‘freedom of expression’ (Article 13)?  So the exiting concept of morality in a particular culture has been a barrier for children to enjoy their basic human rights.

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Likewise, much controversy lies in CRC, Article 3, which states that ‘in  all actions concerning children, whether undertaken by public or private social welfare instructions, courts of law, administrative authorities or legislative bodies, the best interests of the child  shall be a primary consideration’. The meaning of ‘the best interests’ is very broad and varying. Different people have different explanation on the basis of the social, cultural, economic, etc., values of their society. To the children of a porter who relies on carrying loads for a two square meal working and earning money may be in the best interests of his or her children. In patriarchal society, following the decisions made the parents can be in the best interests of the children. To the children of a poor family working and earning can be in the best interest of their children rather than playing in free and leisure time. Therefore, there is, as Kjørholt (2008) states, no universal yardstick by which children’s best interests can be measured. These best interests, as stipulated in the Convention, are dependent on social, cultural, economic, educational, political and other factors and their emphasis in a society. The ambiguity of the definition of best interests has been a hindrance to the rights of children as it leaves the authority to the adults of a society who manipulate children in the way they like.

Implementation of the CRC in context to Nepal

Nepal ratified the UNCRC in 1990 and both Optional Protocols on September 8, 2002. After the ratification of the CRC, there have been a lot changes so as to safeguard the rights of children. Government of Nepal brought The Children’s Act, 1992; and Child Labour (Prohibition and Regulation) Act, 1999.  These two legal provisions for protecting and promoting children’s rights are historic achievement for children and child advocates. These provisions have been made to materialize the spirit of CRC. In addition to CRC, Nepal has ratified about a dozens of international conventions concerning children and their rights. They are

1.       First SAARC Ministerial Conference on Children, 1986;

2.       Convention on the Rights of the Child, 1989;

3.       World Declaration and Plan of Action for the Protection and Development of Children (1990);

4.       International Programme on Eradication of Child Labour 1992;

5.       Second SAARC Ministerial Conference on Children,Colombo1992

6.       Stockholm Declaration adopted at the World Congress against Commercial Sexual Exploitation of Children, 1996;

7.       Third SAARC Ministerial Conference on Children, Rawalpindi, 1996;

8.        The Declaration on the Elimination of the Most Intolerable Forms of Child Labour, adopted at the Amsterdam Child Labour Conference, 1997;

9.       ILO Convention No. 138 Concerning Minimum Age for Admission to Employment, 1996;

10.    Optional Protocols to the Convention on the Rights of the Child on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography;

11.     Yokohama Declaration, adopted at the Second World Congress against Commercial Sexual Exploitation of Children, 2001;

12.    Declaration of Commitment adopted by the twenty-sixth special session of the  General Assembly on children, 2001; and

13.    ILO Convention No. 182 on Worst Forms of Child Labour

                 (source: Second periodic report of States parties due in 1997: submitted on 4th March 2004)

Likewise, in April 2000, the Government of Nepal, keeping in the mind the children’s right to ‘juvenile justice’ guaranteed by the CRC(Article 40),  established Juvenile Benches in all 75 district courts of the country to deal with cases related to children in conflict with the law. The intention behind establishing Juveniles Benches seems to coordinate with the judiciary to involve child psychologists, social activists, and child experts in the Benches during the court proceedings.

The Constitution of Nepal (1990) and other laws prohibit the discrimination on the basis of race, caste, and gender. This provision ensures the children’s right ‘against discrimination’ (CRC, Article 2). However, gender, caste, race and class based discrimination is still in practice. And particularly the girls and women of lower caste and lower class have suffered a lot from discrimination although it exists in all class, caste, and race. Gender discrimination is still rampant in Nepal because of the overwhelming wish in Nepalese society for having a male child. This traditional thinking of people has helped violate the rights of children. The adverse effect of illiteracy reflects every sphere of life.  The girl children are regarded the properties of somebody else other than their parents, and boy-children the properties of their parents.  This feeling, most probably caused dogmatic Hinduism, has fuelled gender based discrimination and violence.

In order to combat this and other heinous forms of discrimination, Government of Nepal created the National Human Rights Commission in 2000.  It has played a very important role in preventing child right violations and strongly advocated against the employment of children as domestic workers. It has also recommended to the Government to separate children from adults in places of detention. There are many children ranging from under five to under 18 years of age are imprisoned in either alone or with their mothers. Many of them are facing the consequences of their mothers’ faults. This has violated children’s ‘best interests’ and ‘rights to be protected’ (CRC, Articles 3 & 4) and right ‘not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment’ (CRC, Article 37) and many other rights enshrined in the CRC. If both parents are sent to jail, there is no way to their children except living with their parents in poorly facilitated jails.  Although the Government has established a high-level commission for ‘Dalit’ (the lower castes), it has not been much effective in mitigating caste-based abuse and violence.

‘The best interests of children’ (CRC, Article 3) has rather been a dream to the children in Nepal. Their best interest is determined by their best interest of their parents.  This is downright against Article 12 of the CRC, which makes provision for respecting the view of children.  There are a few radio and televisions programmes targeted to children. The children are not supposed to go against decisions of their parents. The issues of politics and development have overtaken even the issues of women, let alone children. Women are still fighting against their rights and abuse and violence against them. The children’s rights come last in priority list. In such a context, the rights of children are often neglected. However, many national and international organizations are working for the rights of children. Hope children will soon get full-fledged rights.

Nepal is a developing country and about 40 percent people live below the line of abject poverty. Moreover, 80 percent people live in villages where there are poor and limited health facilities.  There are many remote villages where there is no health post too. In such a situation, children have limited ‘right to life, survival and development’ (CRC, Article, 6). About 44,000 children die of different kinds of communicable diseases (Save the Children; Nepal Country Profile 2006). So a large number of children have even not got chance to enjoy basic human rights. Their right to ‘adequate standard of living’ (CRC, Article 27) has been limited since they have not got the basics of life too. The children of poor family have not enjoyed their right to ‘social security’ and ‘standard of living’ guaranteed by the CRC (Article 26 and 27).

In the male-dominated society children are supposed to be obedient and loyal to their seniors. They are not supposed to involve the gathering of seniors and they are not supposed to be inquisitive in the issues that adults are discussing. This kind of traditional culture had limited the children’s ‘freedom of expression’ guaranteed in the CRC (Article 13). There are a few media for promoting this right of children. We can just find a weekly column in the national newspapers dealing with children and children’s issues.  Muna, Balak, Sunkeshra and Balkoseli are children’s magazines which are mainly circulated in city areas. There are a few child oriented radio and televisions programmes. Children have very limited right to access to information from mass media guaranteed by the CRC (Article 17).

The Children’s Act 1992 ensures children’s right to ‘freedom of association and peaceful assembly’ guaranteed in the CRC (Article 15). However, in July 1998, the Jagriti Children’s Club filed a case in the Supreme Court against the decision of Ministry of Home and District Administration Office to deny its registration as an organization. This is very shocking since the State seems to go against the right of the children. This is what is really prevalent in Nepali society concerning children’s rights. In such a situation, ensuring children their rights is not an easy job. Moreover, the children should ask for permission to their guardians if they want to go out of home. The unfortunate thing is that the girl children are not allowed to move alone and their movement at night is strictly prohibited.  In such situation, their rights are limited because of traditional beliefs and values. These things are slowly changing though.

Many children have been arrested and jailed. As mentioned in second State party report in 2004, 798 children are estimated to have been detained between 1996 and 2000, and a total number of 3,679 children are reported missing during the same period. How many children have been arrested and detained so far has not been studied. Similarly, how may detained children die because of torture and punishment is yet to study in Nepal. About 99% children are said to have been detained in adult-friendly jails and there is no child friendly jail in Nepal.  Nepal has enforced Juvenile Justice (Procedures) Regulations, 2006 too in order to check and monitor these kinds of cases but, sadly much in paper and very less in practice. This is against the children’s ‘right not to be separated from their parents’ (CRC, Article 9).

Kidnapping and trafficking of children is increasing alarmingly in Nepal as the political situation of country is worsening day by day. About 12000 children and women are being trafficked abroad every year, particularly to Indian brothels. About 5000 to 7000 children are being trafficked. Many children have been kidnapped and brutally murdered. In order to check this crime and protect the rights of children enshrined in the CRC, particularly in Article 11, the responsibility of the State to prevent illicit transfer of children, Article 34, the to be protected from sexual abuse and exploitation, Article 35, the right to be protected from abduction and selling, and Article 36, the right to be protected from all forms of exploitation that might harm the children, the Government  has established the Community Surveillance System Against Trafficking (CSSAT) in 220 Village Development Committees of 14 districts. In addition, a number of I/NGOs are also working in order to combat child abduction and trafficking.

The condition of disabled children has not improved yet. There are a few number of disabled children friendly schools.  The disabled children’s right to get facilities and assistance fit to their physical conditions in CRC, Article 23 has not been protected by the State in sufficient way.  The Government has formed a National Disability Service Coordination Committee in 2000 to develop and support programmes for persons with disabilities. However, the disabled children have been much deprived of their rights as there are limited disabled children friendly facilities provided by the State and much worse is that disability is still taken as a social stigma and many of the parents do not let other know that their child  has some sort of handicap. This kind of thinking has made the lives of disabled children very worse.

Child labour is still rampant in Nepal. There are about 12.12 million children (48% of total population) under age of 18. Out of them, more than 2.6 million children are working in different factories, mines etc. About 5000 children live in streets; about 8000 children between 12-18 years are associated with armed forces and armed groups, one million children do not attend school. Similarly, 5000 girls aged below 16 are involved in commercial sex work. In order to check right labour, Government of Nepal adopted the Child Labour (Prohibiting and Regularizing) Act in 1999 which prohibits the hazardous works for children and protects the right of children to be protected from dangerous forms of works guaranteed by CRC, Article 32. The Government has ratified the ILO Convention No. 182 regarding the Elimination of Worst Forms of Child Labour and Convention No.29 regarding Forced Labour in September 2001.  Likewise, it has also adopted the Child Labour Master Plan 2001-2010, with a comprehensive and holistic approach to tackle child labour by coordinating all the stakeholders to avoid overlapping and duplicating.  In July 2000, the Government abolished the practice of Kamaiya, a worst form bonded labour practice widely prevalent in western part of Nepal.

Similarly, about one million children have not got their ‘right to education’ guaranteed by CRC, Article 28. Although the government has already made primary schooling free to all, the school charge money to the parents and they have to pay for reading materials too.  This has caused many children to remain out of schools. There are very limited early child care and education institutions in Nepal and they are very expensive too. The much facilitated are private schools and children care centres which are meant for rich people only.

 Conclusion,

There have been a lot of changes at least in paper so as to protect and promote children’s rights in Nepal but very less in practice. If you visit the Kathmandu city and travel on public vehicles you can many children working as the helpers of drivers. If you visit garment factories, still thousands of children working there. This is the situation in the capital city where policies and decisions are made. The situation is much worse than told in State party reports.

Child trafficking and kidnapping, child labour, sexual abuse, harmful traditional practices, etc are the major problem of children mainly fuelled by political stalemate, poverty, illiteracy, social values and norms and discriminatory and weak law enforcement in the country. However, much has been done over the past 20 years than before regarding the protection and promotion of the rights of the children.

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Children in armed conflicts in Nepal

Amar Bahadur Singh

Abstract

This paper describes the children’s involvement in Maoist revolution which lasted for more than a decade and claimed about 14 thousand lives. A large number people were disabled and displaced. It seems clear that Maoists recruited a large of individuals under the age of 18 in their People’s Liberation Army (PLA) since about 3,000 combatants were discharged because of being minors from Maoist cantonments in the UN mediated verification process in 2007. It also describes how children supported and suffered disproportionately in the war. Furthermore, it explores the causes of children’s active involvement in the conflict as it is said that Maoist insurgency got a success by influencing all corners of society within a short span of time because of the active involvement of women and children.  Likewise, it also reflects upon why the international legal instruments, the UNCRC in particular, applicable to all member States has not able to protect children in difficult situations and what we need to do to safeguard children in war.

1.   An overall view to children in armed conflict

It is children who bear the brunt of conflicts much more than other populations. ‘Children of all ages do suffer disproportionately in conditions of war and poverty’ (Read, 2001). More children than soldiers are killed in contemporary wars, and half of all refugees in the world are children (UNICEF 1995). Because of conflicts and poverty a large number of children have lost their childhood. They have to involve themselves in socio-economic activities and existential decisions that should belong only to adults before they turn 18 (Read, 2001). In its factsheet about child soldiers, UNICEF reports that 300,000 children, the boys and girls under the age of 18, are estimated to be totally involved in more than 30 conflicts worldwide.  They are used as combatants, messengers, porters and cooks and for forced sexual services. Some are kidnapped and forcibly recruited; others are driven to join by poverty, abuse and discrimination, or to seek revenge for violence enacted against them or their families. More than two million children have died as a direct result of armed conflict over the last decade. More than three times that number, at least 6 million children have been permanently disabled or seriously injured. More than 1 million have been orphaned or separated from their families. Between 8,000 and 10,000 children are killed or maimed by landmines every year. An estimated 20 million children have been forced to flee their homes because of conflict and human right violations and are living as refugees in neighboring countries or are internally displaced within their own national borders.  Armed conflict across the world is robbing 28 million children of an education, by keeping them out of school where they are often targets of sexual abuse and violence (UNESCO, 2011). More than 50% landmine victims are children (Freedson, 2002).

However, under international law; Geneva Protocols (1997) and Optional Protocol to the Convention on the Rights of Children on the involvement of children in armed conflict (2002), children under 15, and the UNCRC children under 18  are entitled to special treatment. They should not be arbitrarily killed, tortured or ill-treated. They should get utmost priority in terms of receiving food and shelter and be kept with their families where possible.  Armed conflict is seen as a great source of danger to children physically, psycho-emotionally and developmentally. This is how people look at children at the present time virtually across the globe.

Jason Hart describes the four trends of looking at children during the conflict. They are psychology, human rights, security studies and ethnography. Those who analyze conflict from psychological point view see it as pathological and they are concerned with healing the damaging impact on living in conflict situation. They are concerned with pathologies of childhood and believe that young people involved in conflicts have damaged or lost childhood.  They take children as apolitical and innocent. This approach focuses upon individual child and his or her suffering.  It also concerns with traumatic life created by conflict. Children have been the victims of conflict. Similarly, human rights approach focuses upon violations of the rights of children who are individual rights holders. And it stresses the protection of children and childhood demarcated according to age (0-18). Security studies approach focuses on children’s involvement and potential for involvement in conflict in particular socio-cultural setting. And ethnography approach, which is getting more important to popular understanding of children involved in armed conflict, is concerned with children’s overall experiences of conflict. How children view the conflict in their everyday life context and what makes them interested in getting involved in the conflict.  Ethnography approach analyzes and assesses the conflict at local social, cultural, economic and political settings (paraphrased the lecture of Jason Hart given on 21 March 2011). This paper will look at the involvement of children in armed conflict in Nepal from human rights and ethnography approaches in general.

Children are the most vulnerable beings during the conflict as they are socially, economically and politically powerless in the society. They are the powerless structure in societal hierarchy. Any armed group can force and use them. About the condition of children during the armed conflict, Graca Machel stipulates:

It is unfortunate that children are assaulted, violated, murdered and yet our conscience is not revolted nor our sense of dignity challenged. This represents a fundamental crisis of our civilization (UN, Office of the Special Representative of the Secretary-General for Children and Armed Conflict, 2009).

It clearly depicts that enough has not been done yet to protect the children during the armed conflict. Political motives always intervene in our policy of protecting children during the conflicts.  The UN Security Council has identified six categories of violations that warrant attention. As the papers states, these six grave violations against children during armed conflict have been selected due to their ability to be monitored and quantified, their egregious nature and the severity of their consequences on the lives of children. The six categories of violations are as follows:

1.     Killing or maiming of children

2.     Recruitment or use of child soldiers

3.     Rape and other forms of sexual violence against children¨

4.     Abduction of children

5.     Attacks against schools or hospitals

6.     Denial of humanitarian access to children

This term paper discusses the involvement of children in armed conflict from socio-economic point of view in Nepal. It will also see the conflict in light with the above six categories of violation in the context as well. In what ways children involved or were involved in armed conflicts. What are that reasons behind children’s involvement in the conflicts? What have both government and Maoists done to stop children involving in the conflicts? Do children have right to involve in armed conflicts or not?  In addition, this papers will briefly presents the conflict situation in Nepal as well.

2.    A brief introduction to conflict in Nepal

Nepal is one of the developing countries in south Asia. About 10 million people (roughly 40 percent of the total population) are estimated to be living under poverty line, who earns less than 1 USD/ day.  Poverty is said to be a rural phenomenon since 90 per cent of total the total poor live in rural areas. That’s why poverty seems to be a main cause of social and economic problems. Nepali people have been fighting for democracy for more than 60 years and democracy has not taken its form yet. We are still fighting to stabilize democratic system and consolidate its principles and values.

Nepal is a multi-cultural, multi-lingual and multi-ethnic country sandwiched between two giant countries of Asia, China and India. It is suffering from worst political crisis in its history. A constitutional democracy that was established following the 1990 People’s Movement was challenged by continued success of Maoist guerrilla insurgency or ‘People’s War’ that was launched on 12 February of 1996 by The Communist Party of Nepal-Maoist (CPN-Maoist). It lasted for about 10 years and 13,000 people were killed and more than two hundred thousand people displaced internally during the insurgency.  The decade long civil war attracted thousands of young boys and girls away from their villages into the jungles to fight, cook, and spy for the Maoist rebels. Many children were performers in cultural groups which spread propaganda in remote villages. Many served in guerrilla by joining People’s Liberation Army (PLA).

 Maoist insurgency became a direct threat and a death-knell to government. The then king Gyanendra dismissed the elected government on 4 November 2002 on the charge of inability to deal with growing Maoist insurgency, replaced it with the government formed by his handpicked men and suspended  the elections that had been planned for the following month. This created a situation for political parties to be united against the autocratic move of the king. After the prolonged street protests by political parties against king and his nominated government, the king dismissed his own government and reappointed the elected prime minister, who he had dismissed earlier. In February 2005, the authoritarian ambition laden king seized power again in a coup, imprisoned the leaders of political parties and civil society and declared a state of emergency. This move distanced the relation political parties from the king and brought them closer to the Maoists. On 25 May, Maoists cease-fired and made an alliance with major political parties which ended monarchy in 2007.

3.  Childhood and Maoist child soldiers

At the present childhood is deemed as a period of life for learning and enjoyment detached from adults’ world. The UNCRC and social studies of childhood has spread this romanticized view of childhood all over the globe and there has been an established trend to look at children and childhood from this point of view. Any childhood out of the view taken by the UNCRC, which represents the western notion of childhood, is not a normal childhood. It is distorted or lost childhood.  The western model of childhood idealizes children as innocent and harmless, which does not fit in many socio-economic contexts of the Third World.

During the conflict, the children have ambiguous roles. Different actors have incongruous concepts of children and childhood for their own purposes.  The international aid organizations, such as UNICEF in Uganda advocate that children involved in armed conflict should be regarded as children, however, the Ugandan military sees them more trained combatants who can easily risk their lives rather than children. The various concepts employed by different actors that complicate the operation of army’s offensive, amnesty and repatriation in Uganda (Cheney, 2005).  

The concept of childhood in Nepalese society seems very similar to that of the western concept. It is an innocent and harmless period of life for learning and enjoyment. This idea about childhood has been further promoted by international organizations, such as UNICEF, which, as Jenks (1996) contends, see children as only innocent victims of war and not as potential perpetrators , because under this construction children and violence cannot be commensurate (in Cheney, ibid.).  During the 10 devastating years of Maoist insurgency, the children engaged in Maoists combatants were taken as the direct enemies to government security forces rather than as ‘children’. Many of the children allegedly involved in Maoist insurgency were captured, detained, tortured and killed by security forces. The girl child soldiers raped and killed too. The case of 15 years old, Maina Sunuwar, who was arrested on account of allegedly being a Maoist combatant and died in Army custody because of torture, defamed Nepalese Army internationally during the conflict. In their heartland, particularly western and far western part of the country, the Maoists operated a ‘one family, on child’ program whereby each family had to provide a recruit or face severe punishment if failed to do so. Once recruited, children were kept in the ranks through punishment or the fear of it. If a child escaped or tried to escape, his or her families would possibly face reprisal (Human Rights Watch, 2007)

Children’s Act, promulgated in  2048 v.s.(1992 AD) in Nepal, defines a child ‘a minor not having completed the age of sixteen’ which is not in agreement with the definition given by United Nations Convention on the Rights of the Child 1989 (UNCRC). In Article 14, Chapter 2 of the Act deals with Child and Criminal Liability. The Article states;

(1) If a Child below the age of 10 years commits an act which is an offence under a law, he shall not be liable to any type of punishment.

 (2)  If the age o f the Child committing an offence which is punishable with fine under law, is 10 years or above and below 14 years, he shall be admonished and convinced and if the offence committed is punishable with imprisonment, he shall be punished with imprisonment for a term which ma y extend to six months depending on the offence.

(3) If a Child committing an offence is 14 years or above and below 16 years, he shall be punished with half of the penalty to be imposed under law on a person who has attained the age of majority.

(4) If a child commits an offence under advice or influence of any person, the person doing such act shall be liable for full punishment as per the law as if he/she has committed such offence.

 The UNCRC defines a child as a person below the age of 18 and legally keep individuals below the age of 18 away from joining into armed conflicts. In Nepalese context 18 years old person is not a child although Nepal ratified the UNCRC in 1990 and both Optional Protocols in 2002.  He or she is much more like an adult. The different biological definition of child in Nepalese context has allowed the individuals aged between 16 and 18 years of age to join the conflict on their own volition.

In such situations, what constitutes a ‘child’ in Nepalese context?  The   age-based approach to define children and childhood does not take into account other aspects of development, maturity, social functioning (Kohrt et al. 2008, cited in Kohrt and Maharjan 2009). This approach sees children merely chronologically distinct subset of human beings. It does not see children’s ability to take part in wider socio-cultural and economic circumstances. The huge involvement of children in battle and other economic activities in the Third World has challenged the western notion of childhood which detaches children from adult worlds. They have also challenged the popular notion that childhood is a period of harmlessness, innocence and learning.

The majority of ‘child soldiers’, the term mainly preferred by the non-governmental organizations, are teenagers. Anybody who is below the age of 18 involving in armed groups in different ways is a child soldier. They can be involved in direct fight or helping the fighting groups risking their lives during the battle. UNICEF gives a broader definition of a child soldier:

A child soldier is any person under 18 years of age who is a part of any kind of regular armed group in any capacity including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The definition includes girls recruited for sexual purposes and for forced marriage. It does not, therefore, refer to a child who carrying or has carried arm. (UNICEF, 2011)

About 3,000 Maoist fighters were discharged as being minors in the facilitation of United Nations Mission in Nepal (UNMIN) after comprehensive peace agreement concluded in 2006 between political parties and Maoists. Children involved in People’s Liberation Army were identified being aged 16 and 18 and it is clear that they got joined to Maoist movement in their early teenage. Reports reveal that those children joined in Maoist army were between the age of 10 and 16 and it look factual as well since the disqualified Maoist combatants were aged 16 and 18 during the verification process. They were generally first recruited into the militia on a part-time basis. They carried out propaganda activities and distributed Maoist newspapers. Some were unarmed, while others had crude weapons. Only children over 16 were officially able to join the ‘whole-timers’, many of them were in fact much younger though. ‘Whole-timers’ were given one month’s training on personal security, military tactics and political ideology and were equipped with home-made guns and pressure-cooker cooks. They were usually deployed in distant areas from their homes and family and no longer attended schools (Coaliation to Stop the Use of Child Soldiers, 2007)

Majority of the child soldiers (more than 53%) in Maoist militia were girls (Kohrt et al. 2008).  However, this number is three times more than the female child soldiers (about 16% only) in Uganda and Congo (Bayer et al. 2007, as cited in Kohrt and Maharjan, 2009).  Out of the total killings of 13,247, security forces killed about 63 per cent and rest of them by Maoist militia. Killing of persons below 18 totaled 447; the government forces killed about 55percent of children who died in the conflict. This account of child soldiers was ascertained reporting made by various national and international research and organizations. However, the actual number of child soldiers is still difficult to ascertain since the recruiting party remains mute on the account of child soldiers. Nevertheless, the number of Maoist combatants under the age 18 the end of insurgency is likely greater than 9,000 and may be as high as 20,000 (Human Rights Watch, 2007). And about 10 percent under 18 are government army (Singh, 2004, as cited in Kohrt and Maharjan, ibid.). The individuals under 18 were often the victims of torture perpetrated by security forces and they were most often encouraged and kidnapped to join the battle by Maoist insurgents.

The armed conflict has severely affected children of all ages. In a number of cases, many children were killed or injured as a direct result of the conflict, or detained by the Maoist rebels or the security forces. Many children were abducted and recruited by Maoist rebels to carry ammunition and supplies, and act as sentries and messengers or abducted and subjected to political indoctrination (UNICEF, 2007). In addition, others were orphaned and separated from their families. Some of them were compelled to involve in labor market, including into the worst forms of child labor, in order to avoid Maoist insurgency. Conflicts increased the numbers of children migrating to urban areas to find work in the informal sector like garment factories. Birth registration was also seriously hampered, making children more vulnerable to exploitation. Many of them could not get access to education and health services and a number of teachers and health workers declined to go to the work field due to harassment and attacks by the Maoists. Schools were the targets of both Maoist and security forces. They set of camps in public schools in rural areas. School grounds turned into the places for combatant recruitment, training and political indoctrination.  Maoist encouraged many families sending their children into their militia and discouraged or even threatened them not sending their children into schools.

Both security forces and Maoists planted explosives across the country. Security forces killed many children being Maoist suspects. In addition, many reports claim that government also recruited many young people have not reached 18 years of age in security forces as well.  Maoists even made the children carry explosives. This placed children in grave danger. Many small children lost their lives while playing with the explosives they found in the surroundings of their houses. UNICEF study puts Nepal amongst the 10 most affected countries for victim-activated explosions-ranking higher than Chechnya; and with the second highest proportion of child causalities in the world.

4.    Causes of children’s involvement in the conflict

Conflict is a universal phenomenon. All countries have gone through conflicts and have come to this state of development. It is an inevitable phenomenon of social advancement. There are many theories on what triggers conflicts in society. Violence has been a natural form of political behavior in society. Inflicting pain by means of violence seems to be a useful political bargaining within domestic and international society by discontented party. Karl Marx asserts that conflicts arise inevitably out of socio-economic change and disparities.

In a society such as Nepal, in transition from traditional to modern, active monarchy to democracy, the causes of conflicts are many (Thapa, 2008).  Conflict between parties seeking changes and resisting it has ebb ongoing since the establishment of democracy in the late 1940s.

a.      poverty

There are numerous reasons behind children’s involvement in conflicts. One of pressing factors is abject poverty. About 40 percent people of the total population do not earn enough to have even a minimum diet. About half of the under-five populations of 1.7 million are stunted or suffer from chronic malnutrition in Nepal. According to the most recent government census 1.3 million out of 4.2 million families in Nepal did not own land in 2001. About 5.5 million populations out of the total population are landless. They are mostly the marginalized and disadvantaged groups of the society. There is still a big gap between the haves and have-nots. The poor are getting poorer and the rich are richer. Similarly, the powerful people have treated the powerless inhumanely and the powerless people hardly got justice. Because of these burning factors Maoist revolution peaked within a short span of time and had influence all over the country. Finally, they became capable to have parallel power with the government.

Poverty and inequality are rampant in society, more noticeably in developing worlds. These are not natural and permanent but socially constructed which reflect historically particular social relations (Julian Surin 1996, cited in Hart, 2008). Poverty breeds numerous problems including the devastating war. Poverty, social inequalities and injustice stimulated the Maoist insurgency. Wealth remains in the hands of ruling classes and they have controlled economic sources. 

b.     Familial support

Because of this depressing and provoking situation, many children participated in the Maoist insurgency as their family members encouraged them to do so, possibly following their own example (Hart, 2001).  However, in many cases children participated at will, out of their parents’ wishes undermining their parents’ authority. The most notable thing is that children took part as the replacement of their parent since Maoist enforced ‘one house one Maoist cadre’ policy in rural parts of the country. In such complex situation, children preferred to join themselves rather than their parents. This policy of Maoist had enormous impact on children because they to make a decision otherwise lose their parents.  This is a kind of ‘emotional tactics’ applied by Maoist militia made the children participate in the conflict. Maoist student wing played a significant role in employing emotional tactics in recruiting children in the conflict.

c.      Arrests and deaths parents or relatives

Likewise, the arrests of parents allegedly being Maoists, supporters or sympathizers of Maoists incited children to join the Maoists. This is one of the reasons that young children involved in conflict seeking revenge of unfair treatment to their families by security forces. Many people arrested in an allegation o being Maoists died in prisons.  Even some of them are still missing and yet nobody knows where security forces have put them. The disappearance of parents or relatives made children to fight against government security forces.

d.     Displacement

Another cause is the displacement of families living in grey area in particular (Hart, 2001). The children of displaced families were likely to be motivated or even forced by Maoist cadres to join them. There was also high possibility that those children could be arrested by security forces in an allegation of being a Maoist spy or activist.  Those children were really in difficult situation. Security forces interrogated them when they came across them and Maoist cadres coaxed or even forced them to join. Children did not feel secure remaining neutral during the conflict. This catch-22 situation also made them either to join security forces or Maoist militia.

e.      Teachers and closure of schools

Next cause is the prolonged closure of schools. Because of the strike called on by Maoists, many schools in the rural areas remained closed for a long time. Children remained free and quite limited to their houses. To avoid this kind of monotonous situation, some children joined the Maoists.  Similarly, many teachers were involved in Maoists insurgency. Those who were principally motivated Maoist ideology tried to indoctrinate their students and incited them to join in remote villages. Schools used to run at the will of Maoists in remote areas. Those teachers who were not Maoists were either abducted and killed or departed to cities.  Maoists openly made schools as training centers and motivated many young children by their athletic and military skills as well.

f.      Gender discrimination

Many women and girls joined the PLA voluntarily to fight against gender discrimination and Maoist force is only one option for them to fight for gender equality. The patriarchal society structured has limited the rights of women and girls in Nepali society. The participation in social activities is sparse in comparison with the participation of their male-counterparts. Men have many privileges but women do not have and they are more restricted to domestic chores. Maoist raised these issues very strongly which attracted a large number of women and girls in their fighting.

7. Forced recruitment

Many reports produced by human rights organizations reveal that Maoist forced children to join them. They abducted many children on the way to schools or back home. The insurgents also operated a ‘one family, one child’ program in their heartland in the country’s west and far west for making the families to compulsorily provide a recruit to them. This campaign of the Maoist escalated after 2000 before they agreed to end People’s war. They named it ‘people special military campaign’ and took many high and higher secondary school children in their ‘secret camps’ for training and political indoctrination.

5.  Role of International legal instruments

Here, children’s involvement in armed conflict in Nepal is presented in light of international legal instruments made for the protection of children during the armed conflict. The UNCRC has been a vital universal legal instrument in protecting individual below 18 years. However, it does not clearly state about those children involved in armed conflict. That’s why Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict was brought into effect in 2002 to protect the children during armed conflict. All the counties which are signatory to it should enforce the principles of it during the conflict. However, it does not seem to be strict in its enforcement since it states in the Article 1-‘States Parties will take all feasible measures to ensure that members of their armed forces who have not attained  the age of 18 years do not take a direct part in hostilities’. It seems quite vague since it keeps the door open for the indirect participation of children. In practice, as Freedson (2002) argues, children are often the most neglected by the international community. The UN Security Council has repeatedly made commitments for the protection of childen in aremd conflicts. But little has been done to turn these commitments into real protection on ground. Graca Machel, one of the world’s most dedicated advocates for war affected children, warns, ‘the implmentation of the measures promoted in the General Assembly and Security Council resolutions is slow at best, and improvements we have been pushing for are still only intermittently and dimly reflected in the everyday lives of children’ (as cited in Freedson,ibid., p. 38). Before going to the Optional Protocol thoroughly, the nature of national legal system is briefly described.

‘In internal conflicts the battlefield is not clearly marked and people are often caught up in the conflict as victims or participants- a distinction that is sometimes hard to draw (e.g. in the case of child soldiers)’ and ‘violence against the civil population both by government and non-state forces is now rule rather than the exception’ (Harvey, 2003, p. 5). Violence against civilian is often deliberate. And children have suffered sexual violence, grave psychological trauma, malnutrition, diseases and the multiple consequences of their participation in conflict. Legal protection of children during conflict is contained in two bodies of international law; i.e. international humanitarian law and international human rights law (ibid.).

‘International Humanitarian law is the body of law that seeks to regulate the methods and means of welfare, and the treatment of people in times of war, who are not, or who no longer (e.g. prisoners of war, or injured soldiers) participating in the hostilities’ and ‘International Human Rights Law primarily seeks to regulate the way States treat people who are in their jurisdiction. Although human rights law is not specifically designed to protect during times of armed conflict, many of its provision remains applicable’ (Harvey, 2003, p. 7).

Definitely, Internation Human Rights Law seems more practicable with regard to the proctection of  children during the conflict since they give a kind of moral  to the States which signatory to it.  The UNCRC and Optional Protocal to the Convention on the Righs of the Child on the involvement of children in armed conflict are the two vital internationl human rights law produced to proctect children in general and the second one during conflict in particular. They have universal effect on the legal system of every country for protecting and keeping the children away from serious dangers.  However, all countries have taken only some of the principles of  the UNCRC in their legal system and have made their own provision taking the UNCRC into consideration. A few countires have ditto translation of internantional human rights law in their domestic law. Nepal has its own  Children Act which defines individuals of 16 years of old as children and legally let the children of 16 and 18 to join any forces.  

Pointing out some of the limitations of the UNCRC, Harvey opines that ‘while being considered to be non-derogable during the times of war, the CRC is not suited to the realities of conflict’ (2003. P.12). the monitoring mechaninsim of the UNCRC, the committee on the Rights of the Child, is noot able to respond in siturations of emergency. It cannot make ad hoc recommendations or comment on situations in countires outside its concluding comments on States reports. It cannot hear individual complaints  and cannot  impose sanctions on offenders or or order compensation (ibid.).

Moreover, the UNCRC includes a wide range of rights, which governemnets struggle to immplement even in peacetime. As Harvey (2003) argues, the UNCRC is   is the most violated  human rights document although it the most ratified in the world.  During  the situations of armed conflict, the rights of children are invisible and interdependent.  The right to survial, development and health take precedence over other rights of children.  The Optional Protocol came into being to address the widespread recruitment and use of children by armed forces around the world.  This instrument raised, as Harvey (2003) states, the  minimum age ( for the existing standard of 15 years) for compulsory and voluntary  recruitment and deployment for both States and non-state forces. Article 3 of Optional Protocol also allows the voluntary recruitement of  children under 18 in the state forces as well. Legally, this document also opens door for the recruitment of children in armed conflict as well since it does not force any party to strictly abide by its principles.

 Now there exists a strong legal framework for the protection of children druing the conflict internationally in order to judge the actions of States and non-state actors. However, the enforcement of these laws and standards in reality is limited, leaving children vulnerable to abuse (Harvey, 2003). These international legal frameworks have made the member states to make legal provisions in their contexts to safeguard children during the most difficult circumstances. After the ratification of the UNCRC in 1990, Nepal brought Children’s Act in 1992 and other legal provisions as well to protect children. However, their application is very limited and children are being abused. Maoists recruited a large number of individuals even after they joined the peace process in 2006. Moreover, internatioanl legal instruments have labeled childhood as an innocent  and harmless period of life. Children are a kind of inable to participate in the conflicts and they should be protected from joining the armed conflict. The children involved in armed conflicts have their childhood stolen or damaged. Nevertheless, they have failed to recognize the children socio-cultural and economic situations which make them join the conflicts. The large involvement of children in armed conflict aslo shows that children are no longer incapable to take part in armed conflicts. They are equally capable as adults are but most vulnerable to abuse during the conflicts.

6.  Conclusion

Children have been the most vulnerable and affected during the difficult circumstances such as conflict. They have been used both States and non-state actors during the conflicts. They have performed a wide range of activities of non-state actors, like spreading propagandas to fighting in the front line battle. They have also been used as human shields by the non-state actors. Nepali Maoists made use of a large number of children, even after they joined the peace process. Many of combatants were discharged because of being minors during the UN mediated verification process from the cantonments. Children became the victims of both government armies and Maoist insurgents and most of killings of children were done by government security forces on account of allegedly being Maoist activists. They were the most vulnerable to conflict and were not able to defend themselves. Because of this, a large number of children, including women joined or were made to join the Maoists.

Both international and national legal instruments have failed to protect children during the conflict. Most significantly, they have failed to recognize the local situations that have pushed children to get engaged in conflicts. Moreover, the growing number of children in armed conflicts challenges the popular notion that children are not capable to take part in armed conflicts and at the same time it also reveals that children are most vulnerable population to abuse during the conflicts. There is an urgent need of bringing stricter legislation both nationally and internationally so that the perpetrators can be brought to justice and both state and non state parties are made to strictly abide by the law.

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