child soldier victims of genocidal forcible transfer exonerating child soldiers charged with grave conflict-related international crimes

Child Soldier Victims of Genocidal Forcible Transfer . Sonja C. Grover Child Soldier Victims of Genocidal Forcible Transfer Exonerating Child Soldiers Charged With Grave Conflict-related International Crimes Sonja C. Grover Lakehead University Faculty of Education 955 Oliver Road Thunder Bay, Ontario P7B 5E1 Canada sonja.grover@lakeheadu.ca ISBN 978-3-642-23613-6 e-ISBN 978-3-642-23614-3 DOI 10.1007/978-3-642-23614-3 Springer Heidelberg Dordrecht London New York Library of Congress Control Number: 2011944194 # Springer-Verlag Berlin Heidelberg 2012 This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Violations are liable to prosecution under the German Copyright Law. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com) This book is dedicated with great respect and love to the memory of my parents Gina and David Gazan and that of my brother Albert all of whom championed the cause of universal human rights in their own way. It is also dedicated to all victims of genocidal forcible transfer in whatever form and especially to the child victims. This work is but a small contribution made in the hope that child victims of genocidal forcible trans- fer (such as child soldiers recruited to armed groups or forces perpetrating mass atrocities and/or genocide and the chil- dren born of mass wartime rape) will be acknowledged as such, that the survivors receive fair reparations from the State and that the international community implement effective ongoing strategies to prevent all forms of genocide and other grave international crimes. . Preface The current inquiry challenges the demonization of and backlash against a certain segment of the child soldier population which seeks to frame these children as culpable for atrocities they committed as child members of non-State armed groups or State national forces committing systematic mass atrocity and/or genocide. It is argued that these children are the victims of genocidal forcible transfer to these armed groups or forces regardless the manner of their so-called initial ‘recruitment.’ Various judicial and extra-judicial modes of accountability for these children are assessed from this perspective and found to be irrelevant and inapplicable to the factual circumstances of such cases. In Chapter 1, State obligations under international law relating to the special protected status of children during armed conflict are addressed as are children’s participation rights balanced against their protection rights. A view of child soldier members of armed groups or forces that consistently commit grave violations of IHL as holding the legal status under IHL of civilian ‘noncombatants’ is discussed. The participation of these children in mass atrocities and/or genocide as members of armed groups or forces systematically using such tactics is considered as a quintessential example of (to use the international labor organization terminology) the ‘worst forms of child labor’. 1 The State’s burden to protect children from this horrendous worst form of child labor is considered. Chapter 2 includes an examination of the legal implications of the failure to set a universal minimum age of criminal culpability for, for instance, the issue of fair prosecutorial treatment of child soldiers charged with grave conflict-related inter- national crimes. Also discussed is the lack of International Criminal Court (ICC) jurisdiction over child soldiers (persons under age 18 at the time of their alleged commission of war crimes, genocide and/or crimes against humanity) as ‘substantive law’ rather than just a jurisdictional matter. It is argued that the Rome Statute sets out a standard for the humane treatment of child soldiers accused of conflict-related atrocity who are the victims of genocidal forcible transfer to 1 International Labor Organization (2011). vii a murderous State force or non-State rebel armed group. In addition, a challenge is advanced to the presumptions (currently being promulgated by some social scientists and even certain legal scholars) that: (1) child soldiers who commit conflict-related atrocities as part of an armed group or force committing systematic mass atrocities and/or genocide had, in some if not most instances, the alleged option to exercise ‘tactical agency’ and resist committing these international crimes and/or that (2) IHL requires that these children offer such resistance despite the coercive circumstances in which they were situated as victims of genocidal forcible transfer to these armed groups or forces. Chapter 3 includes an examination of case examples of armed forces or groups that are committing systematic mass atrocities and/or genocide and their so-called ‘recruitment’ of children for the purpos e of the children’s active participation (directly or indirectly) in these atrocities. It is argued that ‘recruitment’ under the aforementioned circumstances amounts to ‘forcible transfer to another group’ (where ‘forcible transfer’ is not restricted to the use of physical force but can include transfer based on exploitation of coercive circum stances and/or the use of threats of violence to the child or his or her family and other forms of intimidation) in violation of Article 2(e) of the Genocide Convention. Prevalent narrow, arbi- trarily restricted interpretations of the Genocide Convention Article 2(e) are shown to reflect an underestimation of: (1) the status of children as autonomous rights bearers, and of (2) the adverse impact of the forcible transfer of children from their group to an armed group or force committing mass atrocities and/or genocide on the persistence/survival, vitality and mental and physical integrity of the children’s group of origin (at least as originally constituted) and of the child group transferred. Chapter 4 examines the role of high profile international human rights gate keepers of human rights claims and academic scholars in promoting the notion that child soldiers who have committed conflict-related atrocities (as part of a murderous non-State armed group or State national force) are best characterized in a legal and practical sense not simply as victims but as ‘perpetrators’ or, at best, ‘victim-perpetrators’. The latter attempt to characterize these children as criminally culpable is shown to be contrary to the facts pointing to their being the victims of genocidal forcible transfer to armed groups or forces engaged in mass atrocities and/or genocide. Parallels are drawn with the situation of children born of war time rape who also have not been adequately recognized under IHL and international human rights law as an independent separate category of persons who have suffered grave human rights violations as victims of genocidal forcible transfer. The special plight of girl child soldiers and their experience as victims of genocidal forcible transfer to the armed group or force committing mass atrocities and/or genocide is also discussed. The case of child soldier Omar Khadr as a victim of genocidal forcible transfer to the Afghan Al Qaeda-linked Taliban is considered and his prosecution for international crimes by the US analyzed from this perspective. ICC cases involving persons who were, on the analysis here, the child victims of genocidal forcible transfer to armed groups committing heinous mass atrocities are discussed (i.e. Dominic Ongwen and Thomas Kwoyelo; both child abductees of the LRA who rose in the ranks to senior positions and committed conflict-related viii Preface atrocities both as child and as adult members of the LRA). The issue is raised as to whether these ICC defendants’ history as child abductees of the LRA ought be considered as a mitigating factor at a minimum in the sentencing phase of an ICC trial (if they are convicted in regards to the grave international crimes they allegedly committed as adult members of the LRA). Chapter 5 examines Truth and Reconciliation processes in Sierra Leone and Liberia in raising the issue of whether such mechanisms are a suitable alternative to criminal prosecutions for holding child soldiers accountable for conflict-related grave international crimes allegedly committed as children (as is claimed by most of those who hold these children are culpable and had ‘tactical agency’ to resist committing conflict-related atrocities as members of armed groups or forces engaged in perpetrating systematic mass atrocities and/or genocide). The proposi- tion that: (1) child soldiers are culpable who have engaged in conflict-related atrocities as child members of armed groups or national forces that use such tactics against civilians as a matter of course and that (2) these individuals should provide a narration of their alleged offenses before a Truth and Reconciliation Commission are both challenged. The latter propositions are found to be inconsistent with the proper administration of justice. The fact that Truth and Reconciliation mechanisms are often times non-therapeutic and even counter-productive for the ex child soldier population accused of conflict-related atrocities and for the local communities involved is discussed. Chapter 6 presents concluding remarks regarding: (1) the ongoing occurrence in various conflict-affected regions of genocidal forcible transfer of children to armed groups or forces committing systematic mass atrocities and/or genocide and (2) the failure of the international community to recognize the phenomenon of children’s ‘recruitment’ into armed groups committing systematic atrocities as a war tactic as a form of genocidal forcible transfer of children to another group. The point is made that justice demands that: (1) children who have suffered this form of genoci de be regarded as the victims they are; and (2) it be acknowledged that the conflict-related atrocities they may have committed as children were carried out under coercive circumstances which preclude their criminal liability or responsibility on any account. Rather, it is argued, the State and the international community must b ear the full burden of responsibility for these child-perpetrated conflict-related atro- cities as a result of their failure to protect this most vulnerable population from genocidal forcible transfer. Thunder Bay, ON, Canada Sonja Grover Preface ix . [...]... Claims of Child Soldier Victims of Genocidal Forcible Transfer 4.1 Human Rights Gatekeepers and Their Approach to Child Soldiers 4.2 The Failure to Acknowledge the Genocidal Forcible Transfer of Child Soldiers: A Parallel Case in Children Born of War-Time Rape 4.2.1 ‘Children of the... Re-Victimizing Child Soldiers: Setting the Stage for the Alleged Criminal Liability of Child Soldiers for Conflict-related International Crimes 2.1.8 On the Issue of Prosecuting ‘Those Most Responsible’: What then of Child Soldiers? 2.1.9 On ‘Blaming the Victim’ 2.1.10 A Note on Child Soldiers Entitlement Under IHL and International. .. Crimes 2.1.4 The Issue of Duress and Child Soldier Alleged Criminal Culpability for Conflict-Related International Crimes 2.1.5 The Flawed Presumption of Child Soldier Alleged ‘Tactical Agency’ as a Basis for Assigning Culpability 2.1.6 Rome Statute Article 26 and State Prosecution of Child Soldier Perpetrators of Conflict-Related International Crimes ... Parallel Cases of the Genocidal Forcible Transfer of Children 4.2.2 Additional Commentary on Defining What Is Meant by ‘Group’ in the Context of Genocide 4.2.3 Gendered Sexual Violence and the Forcible Transfer of Children to Another Group 4.3 Gaps in Protection Under International Law Against Child Soldiering ... Rhetoric: Distorting the Plight of the Child Soldier Committee on the Rights of the Child: General Comment 13 on CRC Article 19: 33 Children without obvious primary or proxy caregivers: Article 19 also applies to children without a primary or proxy caregiver or another person who is entrusted with the protection and well-being of the child [i.e commanders of armed groups violating international humanitarian... committing grave international crimes) is articulated also at Article 22 of the CRC dealing with child refugees (as are so many demobilized child soldiers and children at risk of recruitment into child soldiering i.e over 100,000 unaccompanied children fled as refugees into neighboring countries during the Rwandan genocide)52: Article 22: Convention on the Rights of the Child 1 States Parties shall take... to child civilian populations, implicitly acknowledges that child soldiers are in fact exploited child civilians notwithstanding the commonly used misleading nomenclature namely; child soldier. ’ Thus, the OP-CRC-AC67 (Article 1) tacitly accords with the ICRC view of the direct participation of children (persons under age 18) in armed conflict as being: (1) inconsistent with the IHL obligations of the... Chapter 1 Children’s Rights Participation Rhetoric: Distorting the Plight of the Child Soldier The child soldier defies our desire for .“decaffeinated war”, or “war without warfare” that is, as much war as we want, but without the ugly side effects What is disturbing about the child soldier is its ability to reveal the Real of modern warfare.1 1.1 The Child s Right to Survival Versus the Child s Participation... power of a party to the conflict Chapter II – Measures in favour of women and children.”41 This formulation is consistent with the view (endorsed by the current author) that child soldiers are in fact exploited child civilians As such, they are entitled under IHL to a broad range of protections as a special protected class of civilians and not properly to be treated as ‘combatants’ or soldiers with. .. forces engagement with child soldiers when correctly identified as children (where child soldiers are characterized/defined in the manual as persons under age 18 taking a direct part in hostilities who are members of State armed forces or a non-State armed group): NZ [New Zealand] recognizes that the circumstances under which children are recruited and employed as soldiers [as members of national armed . Child Soldier Victims of Genocidal Forcible Transfer . Sonja C. Grover Child Soldier Victims of Genocidal Forcible Transfer Exonerating Child Soldiers Charged With Grave Conflict-related International. Claims of Child Soldier Victims of Genocidal Forcible Transfer 209 4.1 Human Rights Gatekeepers and Their Approach to Child Soldiers 209 4.2 The Failure to Acknowledge the Genocidal Forcible Transfer of. Forcible Transfer of Child Soldiers: A Parallel Case in Children Born of War-Time Rape 214 4.2.1 ‘Children of the Enemy’: Parallel Cases of the Genocidal Forcible Transfer of Children 217 4.2.2