Child soldiers as victims of 'genocidal forcible transfer': Darfur and Syria as case examples

International Journal of Human Rights

Volumn 17, Issue 3, 2013, Pages 411-427

  Grover, Sonja ^a  

^a LAKEHEAD UNIVERSITY   (Canada)

Author keywords

Child soldiers; Children's human rights; Genocidal forcible transfer; International law; Rome statute

Indexed keywords

EID: 84874415693     PISSN: 13642987     EISSN: 1744053X     Source Type: Journal    
DOI: 10.1080/13642987.2012.744305     Document Type: Article

References (69)

1. Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). Adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948, http://www.hrweb.org/legal/genocide.html (accessed July 7, 2012).
2. Henry R. Huttenbach, 'From the Editor: Lemkin Redux: In Quest of a Word', Journal of Genocide Research 7, no. 4 (2005): 443-5.
3. Daniel Jonah Goldhagen, Worse Than War: Genocide, Eliminationism, and the Ongoing Assault on Humanity (New York: Public Affairs, 2009), 451. (The work of Lynn H. Nichols, Cruel World: The Children of Europe in the Nazi Era (New York: Alfred A. Knopf Publishers, 2005) is an exception to this neglect of the topic of children as the particularised targets of genocide.)
4. The current author strongly favours Abed's notion of genocide (including the 'genocidal forcible transfer of children') as 'social death' (which may or may not also be accompanied by physical death). The 'social death' of the transferred children is reflected in the fact that their place in their families and home communities is ostensibly forever lost as, to use Abed's terminology, the genocide victims (here the child victims of genocidal forcible transfer) can no longer connect to the culture and social ethos of their original socio-cultural group/home community. This is the case in that the perpetrator group seeks and succeeds in destroying the children's original personal and cultural identity and remakes the children's self-perception and the community's perception of the transferred children into one of 'perpetrator' who holds mass violence as his/or her primary social ethic (they become thus 'children of the enemy' of civilized society). On the analysis here, however, the protected group as such harmed by genocide and experiencing 'social death' includes children as a group in and of themselves and not just the children's social/cultural/ethnic group of origin as a group 'as such' which is decimated psychologically and culturally, that is, by the loss of their young generation in whole or in part (the child group as a protected group as such is an age-defined group whose child members amongst themselves share no agreed upon social structure or social ethos). The current author thus endorses, in that respect, a more expansive definition of 'protected group' than does Abed (see Mohammed Abed, 'Clarifying the Concept of Genocide', Metaphilosophy, 37, nos 3-4 (2006): 308-30).
5. Steven Dewulf, The Signature of Evil: (Re)Defining Torture in International Law (Cambridge: Intersentia, 2011), 23.
6. The current author would however maintain, as does the International Committee of the Red Cross, that any use of children (persons under 18) in hostilities as child soldiers is an inhumane practice.
7. Rome Statute of the International Criminal Court (entry into force 1 July 2002), http://untreaty.un.org/cod/icc/statute/romefra.htm (accessed July 7, 2012).
8. The definition of 'child soldier' used here is similar to that incorporated in the 'Paris Principles' describing 'a child associated with an armed force or armed group' (see Paris Principles: The Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (February 2007), http://www.child-soldiers.org/childsoldiers/Paris_Principles_March_2007.pdf pp. 1-50 (accessed July 26, 2012)).
9. Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).
10. Rome Statute of the International Criminal Court.
11. Rome Statute Elements of the Crime (adopted by the Assembly of States Parties 9 September 2002), http://www.icc-cpi.int/NR/rdonlyres/9CAEE830-38CF-41D6-AB0B-68E5F9082543/0/Element_of_Crimes_English.pdf (accessed July 10, 2012).
12. Genocide Convention.
13. Rome Statute of the International Criminal Court.
14. Caroline Fournet, The Crime of Destruction and the Law of Genocide: Their Impact on Collective Memory (Hampshire: Ashgate Publishing, 2007), 49.
15. Genocide Convention (Article 2(e)).
16. Rome Statute of the International Criminal Court.
17. Genocide Convention.
18. Florian Jessberger, 'The Definition and the Elements of the Crime of Genocide', in The UN Genocide Convention: A Commentary, ed. Paola Gaeta (Oxford: Oxford University Press, 2009), 87-112
19. Kurt Mundorff, 'Taking 2(e) Seriously: Forcible Child Transfers and the Convention on the Prevention and Punishment of the Crime of Genocide', Masters of Law Thesis, University of British Columbia, 2007, https://circle.ubc.ca/bitstream/handle/2429/31682/ubc_2007-0524.pdf?sequence=1 (accessed July 12, 2012).
20. The current author endorses the view of Damien Short that 'cultural genocide' describes a method of genocide and that it can be carried out in whole or in part (amongst other methods) via the removal of children from the distinct cultural group such as occurred in regards the 'Stolen Generations' of indigenous Australian children appropriated by Australian colonialists. As a result of this 'genocidal forcible transfer' of children from the group, the reproductive capacity and cultural vitality of the group of origin is reduced. The children transferred to the perpetrator group often suffer a 'disconnect' with their cultural roots to some greater or lesser extent though arguably colonialists have generally been unable to squash indigenous culture entirely in the long-term despite decimating various indigenous groups globally at various historical points and in contemporary times as well (see Damien Short, 'Australia: A Continuing Genocide?', Journal of Genocide Research 12, nos 1-2 (2010): 45-68). The current author, however, does not view the 'genocidal forcible transfer of children' as simply and exclusively reducible to the physical and/or cultural destruction of the children's ethnic or cultural group or group of origin however defined. Rather, the 'genocidal forcible transfer of children' is here also viewed as an attack on the child group in and of itself; a protected group as such, whose members have an inherent human right to their family and group of origin however defined; in cultural or other terms and to their personal identity (in part selfshaped).
21. Genocide Convention.
22. Rome Statute of the International Criminal Court.
23. Compare the definition of genocide offered by Helen Fein insofar as it involves designating the protected group as any victim target group 'defined outside the universe of obligation of the perpetrator by a government, elite, staff or crowd representing the perpetrator'.
24. Israel W. Charney, 'The Definition of Genocide', in The Genocide Studies Reader, ed. Samuel Totten and Paul R. Bartrop (New York: Routledge, 2009), 36-40, at 37.
25. Genocide Convention.
26. Rome Statute of the International Criminal Court.
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28. Protocol I and II Additional to the 1949 Geneva Conventions, entry into force 7 December 1977. Available for download at http://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/index.jsp (accessed July 7, 2012).
29. Alcinda Honwana, Child Soldiers in Africa (Philadelphia: University of Pennsylvania Press, 2006).
30. Mark A. Drumbl, Reimagining Child Soldiers in International Law and Policy (New York: Oxford University Press, 2012)
31. Sonja Grover, Child Soldier Victims of Genocidal Forcible Transfer: Exonerating Child Soldiers Charged With Grave Conflict-Related International Crimes (Berlin: Springer Publishing, 2012).
32. Mary-Jane Fox, 'Child Soldiers and International Law: Patchwork Gains and Conceptual Debates. Human Rights Review 7, no. 1 (2005): 27-48, at 29.
33. Drumbl, Reimagining Child Soldiers in International Law and Policy, 27.
34. Protocol I Additional to the 1949 Geneva Conventions (1977).
35. International Committee of the Red Cross, Commentary on Article 77 (Protection of Children) of Protocol I Additional to the 1949 Geneva Conventions, 1977, http://www.icrc.org/ihl.nsf/COM/470-750099?OpenDocument (accessed July 9, 2012).
36. Protocol II Additional to the 1949 Geneva Conventions (1977).
37. Protocol I and II Additional to the 1949 Geneva Conventions (1977).
38. Sonja Grover, 'Child Soldiers as Non-combatants: The Inapplicability of the Refugee Convention Exclusion Clause'. International Journal of Human Rights 12, no. 1 (2008): 53-65.
39. International Committee of the Red Cross, Commentary on Article 4 (3) Protocol I Additional to the 1949 Geneva Conventions (1977), 1977, http://www.icrc.org/ihl.nsf/COM/475-760008?OpenDocument (accessed July 26, 2012).
40. Fox, 'Child Soldiers and International Law', 30. Fox states that: 'The very concept of child soldier or child combatant does not exist within law, with the exception of provisions made for captured, armed minors.'
41. Sonja C. Grover, Humanity's Children: ICC Jurisprudence and the Failure to Address the Genocidal Forcible Transfer of Children (Berlin: Springer Publishing, 2013).
42. Protocol I and II Additional to the 1949 Geneva Conventions (1977).
43. Sonja Grover, 'The Supreme Court of Canada's Declining of its Jurisdiction in Not Ordering the Repatriation of a Canadian Guantanamo Detainee: Implications of the Case For Our Understanding of International Humanitarian Law'. The International Journal of Human Rights 15, no. 3 (2011): 481-508.
44. Sonja Grover, 'Canada's Refusal to Repatriate a Canadian Citizen from Guantanamo Bay as a Violation of the Humanitarian Values Underlying the Principle of Non-refoulement: A Reanalysis of the Reasoning in Omar Ahmed Khadr v The Prime Minister of Canada et al.', High Court Quarterly Review 5, no. 2 (2009): 42-8.
45. American Non-governmental Organizations Coalitions for the International Criminal Court, 'The International Criminal Court and Children in Armed Conflict: Prosecuting the Crime of Enlisting and Conscripting Child Soldiers', 2009, http://www.amicc.org/docs/Child_Soldiers.pdf at p. 2 (accessed July 13, 2012)
46. UN Secretary-General, Report to the Security Council on Children and Armed Conflict 26 April, 2012 Covering the Period January-December and Including the 'List of Shame' Annex 1 and II, 2011', 2012, http://www.un.org/children/conflict/_documents/A66782.pdf (accessed July 13, 2012).
47. UN Secretary-General, Report to the Security Council on Children and Armed Conflict, 22.
48. Rome Statute of the International Criminal Court.
49. UN Secretary General, Report to the Security Council on Children and Armed Conflict.
50. Human Rights Watch, 'Sudan in Flames: Atrocities in Western Sudan', Human Rights Watch, 16, no. 5 (2004), http://www.sudantribune.com/IMG/pdf/darfurinflames.pdf (accessed July 13, 2012).
51. UN Secretary General, Report to the Security Council on Children and Armed Conflict.
52. Rome Statute of the International Criminal Court.
53. Protocol I and II Additional to the 1949 Geneva Conventions (1977).
54. Rome Statute of the International Criminal Court.
55. Stephanie Bouchie de Belle, 'Chained to Cannons orWearing Targets on Their T-shirts: Human Shields in International Humanitarian Law', International Review of the Red Cross 90, no. 872 (2008): 883-906, http://www.icrc.org/eng/assets/files/other/irrc-872-bouchie-de-belle.pdf (accessed July 10, 2012). (Note that should human shields be inadvertently killed or injured during an attack by an armed force or group operating lawfully and within the rules of war in circumstances where there was military necessity, the criminal culpability for these adverse consequences to civilians would, according to international humanitarian law, lie with those utilising the human shields.)
56. UN Secretary General, Report to the Security Council on Children and Armed Conflict, 2.
57. Ibid., 23.
58. Human Rights Watch (citing the report of the UN Secretary General, Report to the Security Council on Children and Armed Conflict) highlights the fact that the Syrian regime perpetrated violations, in a climate of total impunity, include[ing] targeted killings, torture of children in detention, the use of children as human shields, and attacks on schools and their use for military operations' (Human Rights Watch, Syria: Stop Grave Abuses of Children, June 11, 2012, http://www.hrw.org/news/2012/06/11/syria-stop-grave-abuses-children (accessed July 13, 2012)).
59. Matthew Happold, Child Soldiers in International Law (Manchester: Manchester University Press, 2005), 101.
60. New Zealand Defence Force Law of Armed Conflict Manual.
61. Happold, Child Soldiers in International Law, 102.
62. Kristina Anne Bentley, 'Can There Be Any Universal Children's Rights?' International Journal of Human Rights 9, no. 1 (2005): 107-23, at 112.
63. For a contrary view see S. Grover, 'A Response to K.A. Bentley's "Can There Be Any Universal Children's Rights"', International Journal of Human Rights, no. 4 (2007): 429-43.
64. Convention on the Rights of the Child (1990).
65. For a contrasting view see Bentley, 'Can There Be Any Universal Children's Rights?', 115.
66. Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (OP-CRC-AC), entry into force 12 February 2002, http://www2.ohchr.org/english/law/crc-conflict.htm (accessed July 12, 2012)
67. Genocide Convention.
68. Rome Statute of the International Criminal Court.
69. The Prosecutor v Thomas Lubanga Dyilo, ICC Trial Chamber I, Decision on Sentence Pursuant to Article 76 of the Statute, 10 July 2012, http://www.icc-cpi.int/iccdocs/doc/doc1438370.pdf (accessed July 27, 2012).