Abstract
Chapter three examines selected ICC cases in which the ICC Prosecutor advanced charges of torture of civilians generally. However, the special targeting of children for torture in those cases was not addressed; nor was the young age of certain of the victims argued as an aggravating factor.
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Notes
- 1.
ICC information sheet Situation in the Democratic Republic of Congo in the Case of the Prosecutor v Sylvester Mudacamura ICC-01/04-01/12.
- 2.
ICC information sheet Situation in the Democratic Republic of Congo in the Case of the Prosecutor v Sylvester Mudacamura. ICC-01/04-01/12
- 3.
ICC information sheet Situation in the Democratic Republic of Congo in the Case of the Prosecutor v Sylvester Mudacamura ICC-01/04-01/12
- 4.
ICC information sheet Situation in the Democratic Republic of Congo in the Case of the Prosecutor v Sylvester Mudacamura ICC-01/04-01/12
- 5.
Situation in the Democratic Republic of Congo in the Case of the Prosecutor v Sylvester Mudacamura Pre-Trial Chamber II Decision the Prosecutor’s Application under Article 58, p. 18.
- 6.
This question was not formally addressed in the case and hence no definitive conclusions can be based on the judgment in the case in regard to whether children were victimized as prized targets by the FDLR.
- 7.
The Prosecutor v. Ahmad Muhammad Harun ("Ahmad Harun") and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”) 2007.
- 8.
The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”) 2007, p. 5.
- 9.
The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”) 2007, p. 5.
- 10.
The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”) 2007, p. 12.
- 11.
Thus the discriminatory aspect, based on age, in the Al Bashir forces selecting children as high priority targets for torture was not considered despite the fact that this aspect would be relevant as an aggravating factor in sentencing should there be a conviction.
- 12.
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General 25 January, 2005, p. 60, para 221.
- 13.
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General 25 January, 2005, p. 63, para 242.
- 14.
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General 25 January, 2005, p. 74, para 272.
- 15.
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General 25, January, 2005 p. 76, para 278.
- 16.
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General 25 January, 2005, p. 90, para 343.
- 17.
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General 25 January, 2005, pp. 96–97, para 365.
- 18.
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General 25 January, 2005, p. 97, para 366.
- 19.
Rome Statute (2002).
- 20.
The International Committee of the Red Cross makes clear in its commentaries on the Additional Protocols I and II that it is children under 18 who are entitled to special respect and protection under Additional Protocols I and II to the 1949 Geneva Conventions in provisions therein stipulating special protections for children where the age of the child is not specified (International Committee of the Red Cross (ICRC) Commentary on Protocols I and II Additional to the 1949 Geneva Conventions (1987).
- 21.
Additional Protocols I and II to the 1949 Geneva Conventions (1977).
- 22.
Convention on the Rights of the Child (1990). Sudan is not a party to the CRC.
- 23.
Note that torture as a means of “the perpetrator caus[ing] serious bodily or mental harm to one or more persons” with the objective of genocide is mentioned at footnote 3 to Rome Statute Article 6(b). Genocide was a factor in Darfur and part of the common plan of the Al Bashir forces leading to targeting peoples also based on ethnicity as revealed by the facts in Harun regarding persecution of the Fur ethnic group.
References
Literature
Grover SC (2013a) Humanity’s children: ICC jurisprudence and the failure to address the genocidal forcible transfer of children. Springer, Berlin
Grover SC (2013b) Child soldiers as victims of ‘genocidal forcible transfer’: Darfur and Syria as case examples. The International Journal of Human Rights 17(3):411–427
Cases
ICC information sheet Situation in the Democratic Republic of Congo in the Case of the Prosecutor v Sylvester Mudacamura ICC-01/04-01/12
The Situation in the Democratic Republic of Congo (2008) The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui Pre-Trial Chamber I Decision on the Confirmation of Charges 30 September, 2008 ICC-01/04-01/07
The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”) Pre-Trial Chamber I Warrant of Arrest for Ahmad Harun 27 April, 2007 ICC-02/05-01/07
Materials
Rome Statute Elements of the Crimes (2002) http://www.icc-cpi.int/NR/rdonlyres/9CAEE830-38CF-41D6-AB0B-68E5F9082543/0/Element_of_Crimes_English.pdf
Convention on the Rights of the Child (1990) (entry into force 2 September 1990) http://www.unicef.org/crc/Accessed 19 April, 2013
International Committee of the Red Cross (ICRC) (2013) Commentary on Protocol 1 additional to the 1949 Geneva conventions http://www.icrc.org/ihl/INTRO/470(1987). Accessed 20 May, 2013
Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. http://www.icrc.org/ihl.nsf/WebART/470-750099 Accessed 18 April, 2013
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Grover, S.C. (2014). Selected ICC Cases in which Torture Charges Were Brought but the Special Targeting of Children for Torture Not Addressed. In: The Torture of Children During Armed Conflicts. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-40689-8_3
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