Abstract
Chapter seven examines extra-judicial executions and wilful killings of children during armed conflict as part of a common plan and a form of physical and/or psychological torture. Selected ICC and Inter-American human rights system cases are discussed in this regard.
‘Murder’ here refers to: (i) murder as a war crime under the Rome Statute (2002) (Article 8(2)(c)(1)) occurring in a non-international conflict situation where civilians among other protected persons are knowingly being killed and (ii) murder as a crime against humanity under the Rome Statute (2002) (Article 7(1(a)) where the killing of civilians occurred as part of an intentional systematic and widespread attack on civilians.
“Wilfull Killing” refers to the war crime of ‘wilful killing’ under the Rome Statute (2002) (Article 8(2)(a)(i)) where the killing of civilians among other protected persons under the 1949 Geneva Conventions occurred in the context of an international conflict (Note that the Rome Statute (2002) also addresses genocide through killing (Article 6(a)).
The term ‘extra-judicial execution or killing’ is here used to refer to a killing that occurs without legal due process and is carried out by an agent of the State while the term ‘murder’ or ‘wilful killing’ is used here to refer to a killing that is not necessarily carried out by an agent of the State (i.e. it could be committed by a rebel perpetrator).
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Notes
- 1.
There is no suggestion here whatsoever that the judicial execution of any person; let alone someone under age 18, is not also a form at a minimum of psychological torture but that discussion is beyond the scope of this present inquiry.
- 2.
Inter-American Commission of Human Rights Report No. 33/04 in Jailton Neri Da Fonseca v Brazil 11 March 2004.
- 3.
The Pre-Trial Chamber in Katanga Chui characterized the conflict as an international conflict in Ituri District between, at least, August 2002 and May 2003 (Situation in the Democratic Republic of Congo: 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, para 240).
- 4.
The Situation in the Democratic Republic of Congo: 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.
- 5.
This based on the Pre-Trial Chamber’s contention that these two crimes were not part of the plan to “wipe out” Bogoro village but occurred incidentally after the attack without being part of the mental element of the two co-accused Katanga and Cui (see The Situation in the Democratic Republic of Congo: The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui Pre-Trial Chamber I Decision on the Confirmation of Charges 30 September 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, para 570-571).
- 6.
This is not to suggest that physical and torture was not also inflicted on the adults targeted in Bogoro village but rather to suggest that, as has been discussed, children are entitled to special protections that go beyond a basis just in their status as civilians. Further, as discussed here also previously, children as victims are held by experts on torture and those in the medical community who study this issue generally to have a lower threshold for pain and suffering including psychological suffering (see for example Quiroga (2009)). Hence, based on that empirical context; it was reasonable on the facts to infer that the children in Bogoro village in particular suffered torture due to the murderous attack planned and implemented by Katanga and Chui.
- 7.
The Situation in the Democratic Republic of Congo: The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui Pre-Trial Chamber I Decision on the Confirmation of Charges 30 September 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, para 449.
- 8.
On 18 December 2012, Trial Chamber II acquitted Mathieu Ngudjolo Chui of the charges of war crimes and crimes against humanity and ordered his immediate release. On 21 December 2012, Mathieu Ngudjolo Chui was released from custody. The Office of the Prosecutor has appealed the verdict.
- 9.
See, for example, Grover (2013a), pp. 3–80.
- 10.
See for instance Protocol I Additional to the Geneva Conventions of 12 August (1949), (Article 77(1)):
“Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason.”
and Protocol II Additional to the Geneva Conventions of 12 August (1949), (Article 4(3)):
“Children shall be provided with the care and aid they require…”
Both these introductions to the respective articles in the Additional Protocols reflect international customary law codified on the special protection owed ‘children’ during armed conflict. These lines do not specify an age in referring to “children’ but the term “children’ here is interpreted by the ICRC as covering persons under 18.
References
Literature
Grover SC (2013a) Humanity’s children: ICC jurisprudence and the failure to address the genocidal forcible transfer of children. Springer, Berlin
Quiroga J (2009) Torture in children. Torture (Journal on Rehabilitation of Torture Victims and Prevention of Torture) 19(2): 65–87
Materials
Protocol I Additional 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
Protocol II Additional to the Geneva Conventions of 12 August (1949), and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977 http://www.icrc.org/ihl.nsf/WebART/470-750099 Accessed 18 April 2013
Cases
Inter-American Commission of Human Rights Report No. 33/04 in Jailton Neri Da Fonseca v Brazil 11 March, 2004 http://cidh.org/annualrep/2004eng/Brazil.11634eng.htm Accessed 18 May 2013
The Situation in the Democratic Republic of Congo: 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
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Grover, S.C. (2014). ‘Murder’, ‘Wilful Killing’ or ‘Extra-Judicial Killings’ of Children as Conflict Strategy and a Form of Torture. In: The Torture of Children During Armed Conflicts. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-40689-8_7
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