Child Soldier Victims of Genocidal Forcible Transfer : Exonerating Child Soldiers Charged With Grave Conflict-related International Crimes

This book provides an original legal analysis of child soldiers recruited into armed groups or forces committing mass atrocities and/or genocide as the victims of the genocidal forcible transfer of children. Legal argument is made regarding the lack of criminal culpability of such child soldier 'recruits' for conflict-related international crimes and the inapplicability of currently recommended judicial and non-judicial accountability mechanisms in such cases. The book challenges various anthropological accounts of child soldiers' alleged 'tactical agency' to resist committing atrocity as members of armed groups or forces committing mass atrocity and/or genocide. Also provided are original interpretations of relevant international law including an interpretation of the Rome Statute age-based exclusion from prosecution of persons who were under 18 at the time of perpetrating the crime as substantive law setting an international standard for the humane treatment of child soldiers. Cover 1 Child Soldier Victims of Genocidal Forcible Transfer 4 ISBN 9783642236136 5 Preface 8 Acknowledgments 12 Contents 14 Chapter 1: Children ́s Rights Participation Rhetoric: Distorting the Plight of the Child Soldier 18 1.1 The Child ́s Right to Survival Versus the Child ́s Participation Rights 18 1.2 Child Soldiers as Civilians with Special Protected Status and No Unconditional Right to Participate in Hostilities 27 1.3 The Privileged Status of Children During Armed Conflict and the Inadequacies of the `Best Interests of the Child Principle’ Rationale 37 1.4 What the Historical Record on IHL Teaches About Jus Cogens Norms and Children Affected by Armed Conflict 45 1.4.1 The Origin and Basis of the Special Protections Accorded to Children During Armed Conflict 45 1.4.2 The Uneven Development of Child Protection Guarantees in IHL and International Human Rights Law 55 1.4.3 More on the Preparatory Work for AP I and the Position of the ICRC 64 1.5 The Inapplicability of Participation Rights Rhetoric to `Child Soldiering ́ in an Armed Group/Force Committing Mass Atrocities and/or Genocide 67 Literature and Materials 73 Literature 73 Materials 75 Chapter 2: The Fallacious Demonization of Child Soldiers 78 2.1 Analyzing Backlash Arguments Favoring the Prosecution of Child Soldiers 78 2.1.1 Examining the Failure to Establish a Universal Minimum Age of Criminal Culpability for International Crimes 78 2.1.2 Challenging the Categorization of the Age Exclusion of the Rome Statute as `Procedural ́ Rather than `Substantive ́ Law 93 2.1.3 International Practice in Cases Concerning Child Soldiers Accused of Conflict-Related International Crimes 96 2.1.4 The Issue of Duress and Child Soldier Alleged Criminal Culpability for Conflict-Related International Crimes 103 2.1.5 The Flawed Presumption of Child Soldier Alleged `Tactical Agency ́ as a Basis for Assigning Culpability 108 2.1.6 Rome Statute Article 26 and State Prosecution of Child Soldier Perpetrators of Conflict-Related International Crimes 113 2.1.7 Re-Victimizing Child Soldiers: Setting the Stage for the Alleged Criminal Liability of Child Soldiers for Conflictrelated International Crimes 123 2.1.7.1 Child Soldier Victims 130 2.1.8 On the Issue of Prosecuting `Those Most Responsible ́: What then of Child Soldiers? 133 2.1.9 On `Blaming the Victim ́ 138 2.1.10 A Note on Child Soldiers ́ Entitlement Under IHL and International Human Rights Law to Special Protections 145 2.1.11 Child Soldier Narratives 146 Literature and Materials 152 Literature 152 Materials 153 Chapter 3: Recruitment and Use of `Child Soldiers ́ in Hostilities by Armed Groups/Forces Committing Mass Atrocity and/or Genocide as Itself a Form of Genocide 154 3.1 Introduction to the Convention on the Punishment and Prevention of the Crime of Genocide 154 3.2 Children and Women as `Protected Groups ́ Under the Genocide Convention 164 3.2.1 Life Force Assaults as Genocidal Acts: Applications of the Concept 167 3.3 More on Determining `Protected Groups ́ Under the Genocide Convention 169 3.3.1 Analysis of the Terms in Article 2(e) of the Genocide Convention 171 3.4 Children as Autonomous Rights Bearers 186 3.4.1 Preserving Children ́s Authentic Identity in Times of Armed Conflict 191 3.5 More on Controversies in Applying Article 2 of the Genocide Convention 193 3.6 ICTR: A Case Example in Which the Transfer of Children as Child Soldiers to an Armed Group Attempting to Destroy a Targeted Population Ought to Have Been Classified as Itself a Form of Genocide 200 3.6.1 Case of Joseph Kanyabashi ICTR-9-15 201 3.6.2 Background to the Ethnic Conflict in Rwanda in Brief 201 3.6.3 Unjustified Failure to Charge Genocide Under Article 2(e) of the Statute of the ICTR: Kanyabashi as a Case in Point 202 3.7 SCSL: Prosecutor v Charles Ghankay Taylor 204 3.8 Ethnic Cleansing as Genocide: The Forcible Transfer of Children as a Case in Point 209 3.8.1 Introduction 209 3.8.2 An Analysis of Bosnia and Herzegovina v. Serbia and Montenegro (Application of the Convention on the Prevention and Punishment of the Crime of Genocide) 213 3.8.2.1 Excerpts from the International Court of Justice Judgement 26 February, 2007 Concerning the Forcible Transfer of Children to Another Group 213 3.8.3 Genocidal Attacks on Family 216 3.8.4 The ICC Charge of Genocide Against Omar Hassan Ahmed al-Bashir 218 3.8.5 The Case of Prosecutor v Momir Nikolic 221 Literature and Materials 222 Literature 222 Materials 223 Chapter 4: Challenging the Attempt to De-legitimize the Human Rights Claims of Child Soldier Victims of Genocidal Forcible Transfer 226 4.1 Human Rights Gatekeepers and Their Approach to Child Soldiers 226 4.2 The Failure to Acknowledge the Genocidal Forcible Transfer of Child Soldiers: A Parallel Case in Children Born of War-Time... 231 4.2.1 `Children of the Enemy ́: Parallel Cases of the Genocidal Forcible Transfer of Children 234 4.2.2 Additional Commentary on Defining What Is Meant by `Group ́ in the Context of Genocide 236 4.2.2.1 Lessons on the Definition of Group: The Darfur Situation 238 4.2.3 Gendered Sexual Violence and the Forcible Transfer of Children to Another Group 241 4.2.3.1 Girl Child Soldiers and Forcible Transfer 241 4.3 Gaps in Protection Under International Law Against Child Soldiering 247 4.3.1 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (OP-CRC-AC) 247 4.3.2 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography 250 4.3.3 Weaknesses in the CRC and the Rome Statute Protection for Girls in the Context of Armed Conflict 250 4.4 The Thomas Lubanga Dyilo ICC Case and Girl Child Soldiers 251 4.5 Improving the Bar to Impunity for the Recruitment and Use of Children by Armed Groups to Perpetrate Atrocity and/or Genocide 253 4.6 The Omar Khadr Child Soldier Case 254 4.6.1 Children as Propaganda Tools in Conflict and Post-Conflict Contexts 264 4.7 The Case of Prosecutor v Joseph Kony, Vincet Otti, Okut Odhiambo and Dominic Ongwen 265 4.8 The Case of Thomas Kwoyelo 272 Literature and Materials 275 Literature 275 Materials 277 Chapter 5: Truth and Reconciliation Mechanisms: A Re-victimization of Child Victims of Genocidal Forcible Transfer? 280 5.1 On Whether Truth and Reconciliation Mechanisms Deliver Justice to Ex Child Soldiers and Their Community 280 5.2 Children and the Truth and Reconciliation Process: Co-opting Children ́s Rights Participation Rhetoric 287 5.2.1 The Sierra Leone Truth and Reconciliation Commission 287 5.2.2 On `Socially Constructed ́ Ex Child Soldier Perceived Identities 294 5.2.3 The Liberian Truth and Reconciliation Commission 295 5.3 Children ́s Experiences in Testifying Before a Truth and Reconciliation Commission: The Sierra Leone Example 297 5.4 On Whether Truth and Reconciliation Mechanisms Foster Effective Community Re-integration of the Ex Child Soldier 299 Literature and Materials 303 Literature 303 Materials 304 Chapter 6: Concluding Remarks 306 Literature and Materials 313 Literature 313 Materials 314 Index 316 3642236138,9783642236136 Springer 2012 Front Matter....Pages i-xvi Children’s Rights Participation Rhetoric: Distorting the Plight of the Child Soldier....Pages 1-59 The Fallacious Demonization of Child Soldiers....Pages 61-136 Recruitment and Use of ‘Child Soldiers’ in Hostilities by Armed Groups/Forces Committing Mass Atrocity and/or Genocide as Itself a Form of Genocide....Pages 137-208 Challenging the Attempt to De-legitimize the Human Rights Claims of Child Soldier Victims of Genocidal Forcible Transfer....Pages 209-261 Truth and Reconciliation Mechanisms: A Re-victimization of Child Victims of Genocidal Forcible Transfer?....Pages 263-287 Concluding Remarks....Pages 289-297 Back Matter....Pages 299-302