Why Killing Children (or any civilian) in War Isn't Always Illegal According to International Law

It is a gut wrenching reality of international law.

In the searing theater of war, the idea of intentionally harming children is universally abhorrent. Yet, the legal framework surrounding this issue is a labyrinth of complexities and gray areas. In fact, killing civilians in war is technically not illegal. If a military, aided by legal counsel, determines that the anticipated civilian casualties resulting from a strike are justified by the importance of the military objective, it often aligns with the principles of warfare.

Kidnapping, forced starvation, sexual violence, torture, attacks on humanitarian aid and willful destruction of property are all considered war crimes, but an airstrike that takes out hundreds of civilians - including babies - may not be.

It’s chilling, but that’s the legal framework. Let’s break it down a little more.

International humanitarian law unequivocally prohibits the deliberate targeting of civilians, including children, during armed conflicts. However, collateral damage isn’t illicit in and of itself. The reality of warfare often blurs the lines between combatants and civilians. In the chaos of battle, identifying and isolating legitimate military targets from civilian populations, including children, can be immensely challenging.

Photo by Levi Meir Clancy on Unsplash

Central to international humanitarian law is the principle of proportionality. This principle mandates that military actions must not result in excessive harm to civilians compared to the military advantage gained. Yet, in scenarios where combatants operate in densely populated areas or use human shields, the calculation of proportionality becomes exceedingly complex. Despite efforts to minimize harm, unintended casualties, including children, may tragically occur.

The absence of a universal definition of "child" in international law further complicates matters. While the Convention on the Rights of the Child defines a child as anyone under 18, some legal frameworks recognize combatant status for individuals as young as 15 under certain circumstances. This ambiguity blurs the lines between child and adult combatants, impacting interpretations of their rights and protections.

Further, the principle of state sovereignty often limits the jurisdiction of international legal mechanisms, particularly in conflicts occurring within a state's own borders. While states are still bound by international law, the enforcement of accountability may be hindered by political considerations and the reluctance of states to intervene in internal affairs.

International criminal law distinguishes between crimes committed with intent and those resulting from recklessness or negligence. While deliberate targeting of children constitutes a grave breach of international law, unintentional harm caused as a result of military operations, even if foreseeable, may not always meet the threshold for criminal liability.

While these legal intricacies may seem like semantic gymnastics, they underscore the inherent challenges of applying universal principles to the messy realities of armed conflict. However, it is essential to emphasize that legal complexities should never serve as excuses for atrocities. The protection of children in war must remain a paramount concern, with all parties obligated to take every feasible measure to minimize harm to innocent lives.

So, while international law condemns the deliberate targeting of children in armed conflict, the complexities of warfare and legal interpretation create gray areas. Efforts to protect children must persist, with accountability for violations of international law upheld to ensure justice and deter future atrocities.

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