Abstract
The purpose of this book is to explore through selected case examples from ICC jurisprudence how the ICC has dealt with the matter of: (a) the special targeting and particularly heinous treatment accorded children as victims of mass atrocity and with (b) the international law implications of this special targeting and selective treatment.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Goldhagen (2009, p. 451, emphasis added).
- 2.
Goldhagen (2009, p. 145).
- 3.
Genocide Convention (1951).
- 4.
Rome Statute (2002).
- 5.
The means of ‘destruction’ of children is not confined to the mass murder of children but can include, for instance, the genocidal forcible transfer of children to the perpetrator group and other means of destroying the children’s personal identities and psychological health.
- 6.
Genocide Convention (1951).
- 7.
Nuremberg Charter (1945).
- 8.
Eastwood (2011).
- 9.
Eastwood (2011, p. 1293).
- 10.
Eastwood (2011, p. 1292).
- 11.
Eastwood (2011, p. 1296).
- 12.
Eastwood (2011, p. 1300).
- 13.
Arguably, viewed from this perspective, the indoctrination of children and youth in genocidal hatred might have been classified as a form of enslavement and persecution (crimes against humanity) under the Nuremberg Charter (1945).
- 14.
Grover (2011a).
- 15.
The denial of the children’s personal identity is accomplished by: (a) transforming children into but cogs in the perpetrator’s machinery (this occurring most often if the children are members of the perpetrator so-called ‘racial’, ethnic, national and/or religious group); or by (b) classifying the children as subhuman if they are members of the victim non-perpetrator group targeted for destruction in whole or in part.
- 16.
Eastwood (2011, p. 1293).
- 17.
Eastwood (2011, p. 1293).
- 18.
Eastwood (2011, p. 1293).
- 19.
International Military Tribunal Trial of the Major War Criminals (1946, p. 616). Cited in Eastwood (2011, p. 1293).
- 20.
Baldur van Schirach was head of the Hitler Youth from 1931 to the end of WWII.
- 21.
International Military Tribunal Trial of the Major War Criminals (1946, p. 615).
- 22.
International Military Tribunal Trial of the Major War Criminals (1946, p. 616, emphasis added).
- 23.
International Military Tribunal Trial of the Major War Criminals (1946, p. 617).
- 24.
International Military Tribunal Trial of the Major War Criminals (1946, p. 617).
- 25.
Nuremberg Charter (1945).
- 26.
Such a war crime involving the recruitment and use of under 15s in hostilities can occur in the context also of internal or international conflict where (1) the parties are not engaged in perpetrating mass atrocities and/or genocide; (2) the child soldiers are not forced or expected to commit atrocity and are not subjected to cruel and inhuman treatment during training; and (3) the child soldiers are not regarded as property belonging indefinitely to the recruiting armed force or group such that the children’s bonds with their family and community are intentionally severed.
- 27.
Protocol I Additional to the Geneva Conventions.
- 28.
Protocol II additional to the Geneva Conventions.
- 29.
Grover (2011b).
- 30.
Security Council Working Group on Children and Armed Conflict (2005): The use of child soldiers is now understood to threaten peace and security in the regions affected. It is for that reason that a U.N. Security Council working group was established in 2005 to address reports on the incidence of children’s involvement in armed conflict globally and to make recommendations to the Security Council on needed measures to better protect children.
- 31.
Genocide Convention (1951).
- 32.
Genocide Convention (1951).
- 33.
See Article 7(i)(h)(3) of the Rome Statute (2002) pertaining to persecution as a crime against humanity.
- 34.
Rome Statute (2002).
- 35.
Genocide Convention (1951).
- 36.
UN Commission of Inquiry on Darfur (2005, p. 126, para 498, emphasis added).
- 37.
Genocide Convention (1951).
- 38.
Rome Statute (2002).
- 39.
Genocide Convention (1951).
- 40.
Genocide Convention (1951).
- 41.
Genocide Convention (1951).
- 42.
Protocols I and II Additional to the Genocide Conventions (1977).
- 43.
Convention on the Rights of the Child (1990).
- 44.
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2002).
- 45.
Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (2002).
- 46.
Rome Statute (2002).
- 47.
Genocide Convention (1951).
- 48.
The latter prohibition, of course, also affords women special protection against certain actions such as forced sterilization or compelled abortion where there is genocidal intent.
- 49.
Protocols I and II Additional to the Genocide Conventions (1977).
- 50.
This author has argued that child soldier recruits to armed forces or groups committing mass atrocities and/or genocide are in fact civilians and continue to hold the status of civilian as victims of genocidal forcible transfer to an unlawful belligerent State or non-State armed group or force.
- 51.
Children are here defined as persons under age 18 consistent with the age criterion for child incorporated in the Rome Statute (2002) elements of the crime regarding the genocidal forcible transfer of children and the exclusion of ICC jurisdiction over children (persons under age 18 at the time he or she committed an international crime) set out in the Rome Statute (2002).
- 52.
The perceived group affiliations of children may or may not be derivatives directly or indirectly from their parentage, and/or be objectively real, and may or may not involve groups that are amongst those listed as protected under the Genocide Convention (1951).
- 53.
Genocide Convention (1951).
- 54.
This is not to say that such conduct may not also be a genocidal attack on a particular targeted larger victim group perceived as of a particular ‘racial’, ethnic, religious or national group or, on the view here, whether defined in other terms. Where women and/or men of any identifiable group are targeted in an effort to wipe out future generations of any identifiable distinct group (as when women are gang raped and thereafter unable to bear children or men and women are sexually mutilated, or kept apart to prevent procreation and then in many instances killed etc.) such mass atrocities also, on the view here, rise to the level of genocide.
- 55.
Genocide Convention (1951).
- 56.
Genocide Convention (1951).
- 57.
Genocide can occur in instances where there is but one or a small number of victims targeted as well as where there are masses of victims if the destruction of each individual is, in effect, a genocidal attack on the group of which the victimized individual is perceived to be a member. For instance, where small or large numbers of children are killed or suffer any of the genocidal acts described at Article 2 of the Genocide Convention (1951) because they are as individuals imaginatively thought to be witches or to be possessed in some fashion as has occurred in some regions of particular African States; this too, on the analysis here, constitutes genocide. Any child is potentially at risk in certain regions if declared by community elders as a witch but especially so children who had unusual births, children who exhibit unusual behaviour, disabled children, children born with albinism, orphaned children and certain others such as twins (Cimpric 2010). These children so targeted are thus victimized as individuals first and foremost though their destruction or expulsion from the community is considered a vehicle also for eliminating some larger imagined or real group of which they are perceived to be a member [respectively a so-called witch group or some group characterized by a physical or behavioural feature or life circumstance (Cimpric 2010)]. Children being denied life-saving treatment and let die because they are severely disabled is a phenomenon that has occurred also in ‘developed’ countries even where some of the children involved would have, with the needed medical treatment, survived for shorter or some times long periods (Sobsey 2007, p. 378–384). In such instances also the children are being targeted firstly because of who they are as individuals though the ultimate effect is to reduce the overall population group comprised of severely disabled persons. Such medical non-treatment of certain categories of severely disabled children also arguably constitutes genocide though alleged defences regarding the children’s anticipated abysmal quality of life are generally raised.
- 58.
Genocide Convention (1951).
- 59.
Genocide Convention (1951).
- 60.
That special protection owed all children equally under international law must include, among other things, of course, protection of the child group as such from destruction in whole or in part regardless of how the perpetrators perceive or define the child group in question.
- 61.
Genocide Convention (1951).
- 62.
Genocide Convention (1951).
- 63.
Genocide Convention (1951).
- 64.
Genocide Convention (1951).
- 65.
Genocide Convention (1951).
- 66.
Genocide Convention (1951).
- 67.
Genocide Convention (1951).
- 68.
Genocide Convention (1951).
- 69.
Genocide Convention (1951).
- 70.
Genocide Convention (1951).
- 71.
Rome Statute (2002).
- 72.
Genocide Convention (1951).
- 73.
The current author has argued here that the Genocide Convention (1951) in fact also lists children as a protected group by articulating child-specific acts of genocide at Article 2 (d) and (e).
- 74.
Rome Statute (2002).
- 75.
That circular definition amounts to the following: ‘A group targeted for destruction in whole or in part by the means specified at Article 2 of the Genocide Convention (1951) is a protected group if the context is declared genocidal and the group targeted is not a protected group where the context is not declared genocidal.’ Thus, for instance, in the case of the Rwanda genocide, the ICTR arguably worked backward from the recognition of the fact that a genocide had occurred to a construction of ethnic distinction that was, on the view here, erroneously perceived as a precondition for affirming that the context of the armed conflict had been genocidal.
- 76.
Genocide Convention (1951) Article 2.
- 77.
Genocide Convention (1951) Article 2(e).
- 78.
Protocols I and II additional to the 1949 Geneva Conventions (1977).
- 79.
This since protection from recruitment and from use for active participation in hostilities as child soldiers is afforded under the Rome Statute (2002) Article 8 and the Additional Protocols I and II to the Geneva Conventions (1977) to all children regardless of their larger group affiliations (though granted only in regard to children under 15 making any under-inclusiveness in protection under Rome Statute Article 6(e) especially detrimental to child soldier victims of genocidal forcible transfer aged 15 and over who are not protected under Rome Statute Article 8).
- 80.
Genocide Convention (1951).
- 81.
Note that Article 32 of the Vienna Convention on the Law of Treaties (1969) does not contemplate that the proper interpretation of treaty text would lead to a “manifestly absurd” or “unreasonable” result. Recourse to other sources of law are then said to be necessary to rectify the unreasonable textual interpretation.
- 82.
There are no exclusions to the special care and respect owed children during international or internal armed conflict under the Additional Protocols to the Geneva Conventions based on the particular nationality, religion, ethnic group or ‘race’ of the children in question.
- 83.
Protocols I and II additional to the 1949 Geneva Conventions (1977).
- 84.
The same applies in regards to the need to consider all unborn children protected from attempts to prevent their existence motivated by genocidal intent and the unborn children’s affiliation, through their parentage, to some targeted group.
- 85.
Genocide Convention (1951, Article 2(e)).
- 86.
Protocols I and II additional to the 1949 Geneva Conventions (1977).
- 87.
Schabas (2010, p. 122–123, emphasis added).
- 88.
Rome Statute (2002, Article 6(e)).
- 89.
Genocide Convention (1951, Article 2(e)).
- 90.
Vienna Convention on the Law of Treaties (1969).
- 91.
Rome Statute (2002).
- 92.
Genocide Convention (1951).
- 93.
Genocide Convention (1951).
- 94.
Rome Statute (2002, Article 6).
- 95.
Genocide Convention (1951).
- 96.
Genocide Convention (1951).
- 97.
‘Ethnicity’ and ‘race’ in particular are considered in the scholarly legal and social science literature to be highly contentious concepts.
- 98.
Genocide Convention (1951).
- 99.
Genocide Convention (1951).
- 100.
Rome Statute (2002).
- 101.
Genocide Convention (1951).
- 102.
Genocide Convention (1951).
- 103.
Genocide Convention (1951).
- 104.
UN Commission of Inquiry on Darfur (2005, p. 160, para 638, emphasis added).
- 105.
UN Commission of Inquiry on Darfur (2005, p. 160, para 640, emphasis added).
- 106.
Prosecutor v Al Bashir (Second Warrant of Arrest, 12 July, 2010, ICC Pre-Trial Chamber I).
- 107.
Genocide Convention (1951).
- 108.
Genocide Convention (1951).
- 109.
Genocide Convention (1951).
- 110.
Genocide Convention (1951).
- 111.
Genocide Convention (1951).
- 112.
Rome Statute (2002).
- 113.
Genocide Convention (1951).
- 114.
Genocide Convention (1951).
- 115.
Genocide Convention (1951).
- 116.
Rome Statute (2002).
- 117.
UN Commission of Inquiry on Darfur (2011, p. 125, para 494, emphasis added).
- 118.
Rome Statute (2002).
- 119.
Rome Statute (2002).
- 120.
Genocide Convention (1951).
- 121.
Rome Statute (2002).
- 122.
Rome Statute (2002).
- 123.
Rome Statute (2002).
- 124.
Rome Statute (2002).
- 125.
Rome Statute (2002).
- 126.
Note that certain scholars of international law have argued that where there is a non-exhaustive list for one requirement (a gap) in the definition of the crime there is no bar to filling in the gap. (See Triffterer 2008) The argument here is that the list of protected groups in the Genocide Convention (1951) [duplicated in the Rome Statute (2002)] is in fact a non-exhaustive one given (1) the lack of clarity in the terms used to describe the protected groups and (2) the gaps in protection that arise if the list is considered exhaustive.
- 127.
Rome Statute (2002).
- 128.
Rome Statute (2002).
- 129.
Crema (2010, pp. 682–683, emphasis added).
- 130.
Crema (2010, pp. 682–683, emphasis added).
- 131.
Rome Statute (2002).
- 132.
Genocide Convention (1951).
- 133.
Genocide Convention (1951).
- 134.
The notion of children as a protected group is reflected in, for instance, Geneva Convention IV (1949) at Articles 50 and 68 which codify what may arguably be considered various customary law protections for children caught up in armed conflict.
- 135.
Genocide Convention (1951).
- 136.
Rome Statute (2002).
- 137.
Genocide Convention (1951).
- 138.
Rome Statute (2002).
- 139.
This is not to imply that other distinct groups such as women, for instance, should not be considered a protected group when analyzing a particular genocidal situation in which women were, for instance, targeted for mass rape in an effort to destroy not only the women but the larger identifiable group to which they belong. The points being made here are rather that: (1) the drafters of Genocide Convention (1951) Article 2(e) emphasized the fact that children are a protected group per se by explicitly including a child-specific provision and (2) the notion of children as a protected group in times of armed conflict was already well established in customary international law at the time of the drafting of the Genocide Convention adopted by the U.N. General Assembly 9 December, 1948 (entry into force 1951).
- 140.
Rome Statute (2002).
- 141.
Rome Statute (2002).
- 142.
The current author does consider certain categories of ethnic cleansing such as that involving the forcible permanent separation of males and females of the group through, for instance, the forcible transfer of men and boys away from the group and/or the killing of men and boys as possible mechanisms of genocide. This being the case where the intent is to destroy the group targeted in whole or in part through these acts (i.e. by reducing the reproductive capacity of the targeted group, causing severe mental suffering etc.).
- 143.
Genocide Convention (1951).
- 144.
Genocide Convention (1951).
- 145.
Rome Statute (2002).
- 146.
Genocide Convention (1951).
- 147.
Rome Statute (2002).
- 148.
Genocide Convention (1951).
- 149.
The intent was thus not to eliminate the children’s Nordic group of origin as that group of origin was considered a useful ongoing pool of Aryan-looking children to be forcibly transferred to the Nazi perpetrator group; and a source for the hoped for potential future Nazi leaders. Thus, the genocidal forcible transfer of these children can be considered as in part a genocidal attack on the child group per se as a protected group. At the same time, the Nazis were well aware that abducting these children would cause the Nordic families and communities affected severe mental suffering and that they would be destroyed in part as originally constituted.
- 150.
Genocide Convention (1951).
- 151.
Rome Statute (2002).
- 152.
Genocide Convention (1951).
- 153.
Rome Statute (2002).
- 154.
Rome Statute (2002).
- 155.
Rome Statute (2002).
- 156.
Genocide Convention (1951).
- 157.
In some cultural situations the children may be raised by the community and viewed as children of the community as opposed to being exclusively the children of any particular family. The existing immediate family in various cases at the time of the genocidal forcible transfer of the children of the group to another group may include the children’s biological parents and/or kinship primary caretakers or others authorized by the community to be the primary caretakers for the children (this would include, but is not limited to, for instance, persons designated as the children’s legal guardians or adoptive parents depending on the cultural context).
- 158.
The perpetrators (such as an armed force committing mass atrocities or genocide) may forcibly transfer children to be child soldiers and ensure that the children are permanently alienated from their families and communities by having the children commit atrocities often against their own family and/or community. This author has argued that such appropriation of children constitutes an instance of the genocidal forcible transfer of children (See Grover 2012).
- 159.
The listed protected groups in the genocide provision at Article 6 of the Rome Statute (2002) (‘racial’, religious, national and ethnic) are ambiguous and ill-defined categories and it is a highly contentious matter whether the list is in fact to be interpreted as exhaustive.
- 160.
Additional Protocols I and II to the Geneva Conventions (1977).
- 161.
Convention on the Rights of the Child (1990, emphasis added).
- 162.
Convention on the Rights of the Child (1990, emphasis added).
- 163.
Universal Declaration of Human Rights (1948).
- 164.
Rome Statute (2002).
- 165.
The targeted group of origin to which the children transferred belong might be described by the perpetrator in political terms, or in terms of ethnicity, religion, nationality or some other dimension.
- 166.
An armed force or group (State or non-State) perpetrating mass atrocities and/or genocide is a separable, distinct entity operating outside the margins of normal civil society and international humanitarian and human rights law.
- 167.
The requirement for genocidal intent here is met also since the perpetrator group has foreknowledge of the enormously destructive impact on the children’s original group that will ensue due to the forcible transfer of the children from that group to the perpetrator group and perpetrates the children’s forcible transfer in any case.
- 168.
Rome Statute (2002).
- 169.
There is no suggestion here that the recruitment and use of children for active participation in hostilities is in every instance a form of genocide. Genocidal forcible transfer of children for the purpose of child soldiering occurs, it is here contended, when: (1) the armed group or force is engaged in mass atrocities and/or genocide; (2) the armed group or force is intent on alienating the child recruits from their families and communities and alienating the families and communities from the children and (3) the armed group or force aims to permanently appropriate the children transferred away from their original group.
- 170.
Rome Statute (2002).
- 171.
European Court of Human Rights SW and CR v United Kingdom Cited in Grover (2010, p. 555, emphasis added).
- 172.
Grover (2010, p. 555).
- 173.
Rome Statute (2002).
- 174.
Rome Statute (2002).
- 175.
The Preamble makes reference to cultural groups however that term is contentious and open to broad interpretation as are the terms ethnic, racial and religious at Article 6 of the Rome Statute (2002).
- 176.
Rome Statute (2002).
- 177.
A discussion of issues of cross-national or cross-ethnic adoption and the like, in accord with international law, where in the best interests of the children is beyond the scope of this book.
- 178.
Grover (2010, p. 557).
- 179.
Grover (2010, p. 557).
- 180.
Where no new crime is postulated per a nonetheless unjustifiably contested interpretation (that is in fact consistent with treaty and customary international human rights law and jus cogens norms) that contested interpretation is not inconsistent with restrictive interpretation of the treaty provision in any meaningful way.
- 181.
Rome Statute (2002, emphasis added).
- 182.
Additional Protocols I and II to the Geneva Conventions (1977).
- 183.
Convention on the Rights of the Child (1990).
- 184.
The forcible transfer of children from their group to the perpetrator group is unlawful notwithstanding any laws that may be in place that endorse such a transfer such as laws passed by the Nazis that violate international human rights norms.
- 185.
Rome Statute (2002).
- 186.
The interpretation must, in accord with the thrust of the Vienna Convention on the Law of Treaties (1969), respect both the rights of the perpetrator to due process at all stages of the ICC process and those of the victims consistent with consideration of well-established international human rights law, other sources of law (including developing ICC case law) and the purpose of the Rome Statute (2002).
- 187.
Rome Statute (2002).
- 188.
Crema (2010, p. 691).
- 189.
Crema (2010, p. 694).
- 190.
Gaps and ambiguities exist in the precise text of Article 6 of the Rome Statute (2002) provision on genocide regarding respectively: (1) the precise meaning of the terms religious, ethnical, ‘racial’ or national group; (2) the precise meaning of the term genocidal forcible transfer of children of the group to another and in terms of (3) the scope of coverage regarding children as a protected group as such (in their own right) regardless of their other group affiliations given substantive law and justice considerations and existing relevant international human rights and humanitarian law and jus cogens norms.
- 191.
Rome Statute (2002).
- 192.
Rome Statute (2002).
- 193.
Rome Statute (2002).
- 194.
Rome Statute (2002).
- 195.
See Triffterer (2008) for a discussion of the specific wording of Article 22 (1).
- 196.
Rome Statute (2002).
- 197.
Grover (2010).
- 198.
For instance, at Article 7(1) (k) of the Rome Statute: “other inhumane acts of a similar character.”
- 199.
Such changing circumstances relevant to the current discussion include developments in international humanitarian and human rights law in terms of better acknowledging the scope of fundamental human rights of children during armed conflict and the extent of obligations of the State in protecting those rights and interests of children.
- 200.
Rome Statute (2002).
- 201.
Schabas (2010, p. 130, emphasis added).
- 202.
Rome Statute (2002).
- 203.
Rome Statute (2002).
- 204.
Rome Statute (2002).
- 205.
Vienna Convention on the Law of Treaties (1969, emphais added).
- 206.
Schabas (2010, p. 410, emphasis added).
- 207.
Recall that Article 22 of the Rome Statute (2002) concerns the principle of nullum crimen sine lege.
- 208.
With regard to Rome Statute (2002) Article 6 (e); this author has argued that the purpose is to protect all children from forcible transfer to a perpetrator group regardless of the children’s perceived or actual group of origin.
- 209.
Vienna Convention on the Law of Treaties (1969, emphasis added).
- 210.
Rome Statute (2002).
- 211.
Rome Statute (2002).
- 212.
Consider also that certain political groups often overlap in terms of membership with particular ethnic groups or groups defined along other dimensions.
- 213.
Rome Statue (2002, Article 6, emphasis added).
- 214.
This author has noted here previously that the concept of race in fact has no scientific basis.
- 215.
Genocide Convention (1951).
- 216.
Rome Statute (2002).
- 217.
The motives for such targeting being left undefined.
- 218.
Rome Statute (2002).
- 219.
Rome Statute (2002).
- 220.
Genocide Convention (1951).
- 221.
Genocide Convention (1951).
- 222.
Sadat (2011).
- 223.
Rome Statute (2002).
- 224.
Rome Statute (2002).
- 225.
Genocide Convention (1951).
- 226.
Genocide Convention (1951).
- 227.
Rome Statute (2002).
- 228.
Rome Statute (2002).
- 229.
Genocide Convention (1951).
- 230.
- 231.
Genocide Convention (1951).
- 232.
Genocide Convention (1951).
- 233.
- 234.
Mundorff (2007, p. 30).
- 235.
See the Convention on the Rights of the Child (1990).
- 236.
Rome Statute (2002).
- 237.
Convention on the Rights of the Child (1990).
- 238.
Rome Statute (2002).
- 239.
That destruction is in terms of reproductive capacity of the group of origin as well as in other terms such as the loss in vitality and morale of the group of origin.
- 240.
Rome Statute (2002, Article 6).
- 241.
Rome Statute (2002).
- 242.
Genocide Convention (1951).
- 243.
Genocide Convention (1951, Article 2).
- 244.
Goldhagen (2009, pp. 474–476, emphasis added).
- 245.
Goldhagen (2009, pp. 474–476).
- 246.
UN Commission of Inquiry on Darfur (2005, p.76, para 278–279, emphasis added).
- 247.
Goldhagen (2009, p. 468).
- 248.
The trauma suffered by the surviving children relates to their perhaps having lost their parent(s) and/or other loved ones to the mass atrocities; having witnessed the atrocities if they were old enough to comprehend at some level etc.
- 249.
Grover (2012).
- 250.
Prosecutor v Joseph Kony, Warrant of Arrest (2005).
- 251.
The genocidal forcible transfer of children involves such an appropriation of children.
- 252.
Note that in the view of many genocide scholars the Genocide Convention (1951) does not preclude the possibility of ‘autogenocide’ such that not every instance of genocide need necessarily involve a minority group (i.e. See Forster 2011).
- 253.
Genocide Convention (1951).
- 254.
Rome Statute (2002).
- 255.
Nor are children to be valued, for that matter, simply as vehicles for the perpetuation of any particular socially constructed or otherwise identifiable or perceived group whether classified on some social, political, economic, national, ethnic, biologic, religious or other dimension or combination of these (real or imagined characteristics).
- 256.
Genocide Convention (1951).
- 257.
This is not at all to suggest that other identifiable groups such as women are not also to be considered protected groups when under siege by a genocidal perpetrator group.
- 258.
Convention on the Rights of the Child (1990).
- 259.
Convention on the Rights of the Child (1990, emphasis added).
- 260.
Convention on the Rights of the Child (1990).
- 261.
Convention on the Rights of the Child (1990).
- 262.
The notion of ‘child’ is stipulated in the Convention on the Rights of the Child (1990) as including persons under age 18 unless otherwise specified in domestic law with respect to a particular legal domain.
- 263.
For instance, the Convention on the Rights of the Child (1990) contemplates the right of a child to abandon his or her national group and seek asylum where in the child’s best interest.
- 264.
The Convention on the Rights of the Child (1990) Articles 5 and 18 also recognizes the parents’ right to raise their child in accord with the parents’ cultural traditions and values with due regard to the child’s evolving capacities for independent decision-making.
- 265.
Convention on the Rights of the Child (1990).
- 266.
Convention on the Rights of the Child (1990).
- 267.
Convention on the Rights of the Child (1990).
- 268.
Convention on the Rights of the Child (1990).
- 269.
Rome Statute (2002).
- 270.
Genocide Convention (1951).
- 271.
Recall that under Article 21(3) of the Rome Statute (2002): “The application and interpretation of law [the Rome Statute (2002)] pursuant to [that] article must be consistent with internationally recognized human rights…”[i.e. such as those recognized universal children’s human rights articulated in the Convention on the Rights of the Child (1990)].
- 272.
Genocide Convention (1951).
- 273.
Rome Statute (2002).
- 274.
Children in fact cannot consent to their own genocidal forcible transfer thus, for instance, children who are alleged to have ‘volunteered’ for participation in an armed group or force perpetrating mass atrocities and/or genocide are also victims of a violation of Rome Statute Article 6 (e).
Literature, Materials and Situations/Cases
Literature
Crema L (2010) Disappearance and new sightings of restrictive interpretations. Eur J Int Law 21(3):681–700
Eastwood M (2011) Lessons in hatred: the indoctrination and education of Germany’s youth. Int J Hum Rights 15(8):1291–1314
Forster TK (2011) The Khmer Rouge and the crime of genocide: issues of genocidal intent with regard to the Khmer Rouge mass atrocities. http://www.cambodiatribunal.org/sites/default/files/reports/KHMER%20ROUGE%20AND%20THE%20CRIMES%20OF%20GENOCIDE.pdf. Accessed 18 Jun 2012
Goldhagen DJ (2009) Worse than war: genocide, eliminationism, and the ongoing assault on humanity. Public Affairs/Perseus Book Group, New York
Grover L (2010) A call to arms: fundamental dilemmas confronting the interpretation of crimes in the Rome Statute of the International Criminal Court European. J Int Law 21(3):543–583
Grover S (2012) Child soldier victims of genocidal forcible transfer: exonerating child soldiers charged with grave conflict-related international crimes. Springer, Berlin
Grover S (2011a) The Lebensborn children of Norway (children born of Nazi fathers during WWII) and the silencing of their voices by an international human rights court: an analysis of the 2007 European Court of Human Rights decision in Werner Hermann Thiermann and others v. Norway. Int J Interdiscipl Soc Sci 5(8):25–36
Grover S (2011b) Schoolchildren as propaganda tools in the war on terror: violating the rights of Afghani children under international law. Springer, Berlin
Mundorff K (2007) Taking 2(e) seriously: forcible child transfers and the Convention on the Prevention and Punishment of the Crime of Genocide. Master of Laws Thesis, University of British Columbia. https://circle.ubc.ca/bitstream/handle/2429/31682/ubc_2007-0524.pdf?sequence=1. Accessed 19 May 2012
Sadat LN (ed) (2011) Forging a convention for crimes against humanity. Cambridge University Press, Cambridge
Schabas WA (2010) The International Criminal Court: a commentary on the Rome Statute (Oxford commentaries on international law). Oxford University Press, New York
Schabas WA (2000) Genocide in international law. University of Cambridge Press, Cambridge
Sobsey R (2007) Implementing the rights of children with disabilities. In: Covell K, Howe RB (eds) Children’s rights in Canada: a question of commitment. Wilfred Laurier Press, Waterloo, pp 373–394
Triffterer O (2008) Commentary on the Rome Statute of the International Criminal Court. C.H. Beck/Hart Publishers, Baden-Baden
Materials
Cimpric A (2010) Children accused of witchcraft: an anthropological study of contemporary practices in Africa (A report prepared for UNICEF). http://www.unicef.org/wcaro/wcaro_children-accused-of-witchcraft-in-Africa.pdf. Accessed 13 May 2012
Convention on the Rights of the Child (CRC) (1990) Entered into force 2 September 1990. http://www2.ohchr.org/english/law/pdf/crc.pdf. Accessed 27 Oct 2011
Geneva Convention IV Relative to the Protection of Civilian Persons in Times of War, 12 August, 1949. http://www.icrc.org/ihl.nsf/WebList?ReadForm&id=380&t=art. Accessed 16 May 2012
Genocide Convention (Convention on the Prevention and Punishment of the Crime of Genocide). Entry into force 1951. http://www.preventgenocide.org/law/convention/text.htm. Accessed 3 Feb 2012
Nuremberg Charter (1945) Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal. London, 8 August 1945. http://www.icrc.org/ihl.nsf/INTRO/350?OpenDocument. Accessed 7 May 2012
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2002) Entered into force 12 February, 2002. http://www2.ohchr.org/english/law/crc-conflict.htm. Accessed 26 Feb 2012
Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (2002) Entered into force 18 January, 2002. http://www2.ohchr.org/english/law/crc-sale.htm. Accessed 26 Feb 2012
Protocol Additional to the 1949 Geneva Conventions relating to the Protection of victims of international armed conflicts (Protocol I) (8 June, 1977) http://www.icrc.org/ihl.nsf/FULL/470?OpenDocument. Accessed 18 Jan 2012
Protocol Additional to the 1949 Geneva Conventions Relating to the Protection of victims of non-international armed conflicts (Protocol II) (8 June, 1977) http://www.icrc.org/ihl.nsf/INTRO/475. Accessed 18 Jan 2012
Rome Statute (2002) Entered into force 7 January, 2002 http://untreaty.un.org/cod/icc/statute/romefra.htm. Accessed 17 Jan 2011
Security Council Working Group on Children and Armed Conflict (2005) http://www.un.org/children/conflict/english/securitycouncilwg.html. Accessed 8 May 2012
UN Commission of Inquiry on Darfur (2005). http://www.un.org/news/dh/sudan/com_inq_darfur.pdf. Accessed 25 Feb 2012
Universal Declaration of Human Rights, adopted by the UN General Assembly on 10 December 1948 http://www.un.org/en/documents/udhr/. Accessed 16 Apr 2012
Vienna Convention on the Law of Treaties (1969) Entered into force on 27 January 1980. http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf. Accessed 16 Apr 2012
Situations and Cases
International Military Tribunal Trial of the Major War Criminals, Vol. 19 (29 July, 1946, p. 616) http://avalon.law.yale.edu/imt/07-29-46.asp. Accessed 8 May 2012
Prosecutor v. Omar Hassan Ahmad Al Bashir, Second Warrant for Arrest for Omar Hassan Ahmad Al Bashir (Pre-Trial Chamber I, 12 July, 2010) http://www.icc-cpi.int/iccdocs/doc/doc907140.pdf. Accessed 14 May 2012
Prosecutor v Joseph Kony. Warrant for Arrest for Joseph Kony Issued on 8 July, 2005 as amended on 27 September, 2005 http://www.icc-cpi.int/iccdocs/doc/doc97185.PDF. Accessed 1 Mar 2012
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2013 Springer-Verlag Berlin Heidelberg
About this chapter
Cite this chapter
Grover, S.C. (2013). Reconsidering the Legal Concepts of Genocide and the ‘Genocidal Forcible Transfer of Children’. In: Humanity’s Children. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-32501-4_1
Download citation
DOI: https://doi.org/10.1007/978-3-642-32501-4_1
Published:
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-642-32500-7
Online ISBN: 978-3-642-32501-4
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)