Weissbrodt, Hansen, & Nesbitt: The Role of the Committee on the Rights of the Child in Interpreting and Developing Humanitarian Law

David Weissbrodt (Univ. of Minnesota - Law), Joseph C. Hansen (Univ. of Minnesota - Law), & Nathaniel H. Nesbitt (Univ. of Minnesota - Law) have posted The Role of the Committee on the Rights of the Child in Interpreting and Developing Humanitarian Law (Harvard Human Rights Journal, forthcoming). Here's the abstract:

The interaction between human rights law and international humanitarian law (IHL) has received a great deal of scholarly attention. Commentators note the increased presence of IHL in the work of human rights bodies. There remains an interesting gap in the debate, however: while human rights bodies may be referencing international humanitarian law, what are they doing with it? To what extent are they interpreting its protections under a human rights framework? Are they performing substantive or precedential analysis of IHL? This article addresses one measure of that gap by comprehensively examining the work of the Committee on the Rights of the Child (CRC) as it relates to the interpretation of international humanitarian law.

This article finds that the CRC has incorporated the corpus of IHL into the Children's Convention and argues that it has an important role to play in interpreting international humanitarian law. The Children's Convention is the only core international human rights treaty that discusses humanitarian law explicitly and has an interpretive body to monitor its implementation. As a result, the CRC is the only human rights treaty body with a substantial existing humanitarian law jurisprudence. Further, the CRC considers reports from States under the Optional Protocol on Children in Armed Conflict, which recalls in its preamble the obligation of States parties “to abide by the provisions of international humanitarian law.” These features suggest that the CRC has unique institutional potential to interpret humanitarian law.

Yet while the CRC offers analysis of IHL, its analysis is implicit. It is possible, by assembling various pronouncements in the Concluding Observations, to find examples of States parties’ obligations under IHL as they relate to respect for and protection of children. Nonetheless, the Committee’s structure and mandate prevent it from performing fact-specific and potentially precedential analysis. Still, we argue that the Committee may be able to modify slightly the format of its Concluding Observations in order to provide more explicit links from IHL to the Convention. Moreover, through its consistent pronouncements as to certain mandatory protections for children in situations of armed conflict, the Committee may be developing and solidifying norms of customary international humanitarian law.