The Genocidal Forcible Transfer of Children: A Crime Well Established in International Law; Yet Still Not Prosecuted by the ICC

Grover, Sonja C.

doi:10.1007/978-3-642-32501-4_6

The Genocidal Forcible Transfer of Children: A Crime Well Established in International Law; Yet Still Not Prosecuted by the ICC

Sonja C. Grover²

Chapter
First Online: 01 January 2012

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Abstract

As the selected ICC case law here previously discussed illustrates, there is a continuing failure to acknowledge and prosecute the recruitment of children (persons under age 18) and/or their use for active participation in hostilities by armed groups or forces (State or non-State) that perpetrate mass atrocities and/or genocide as the ‘genocidal forcible transfer of children’. Rather, such recruitment and/or use when involving under 15s is classified exclusively in terms of war crimes for the first time under international criminal treaty law (the Rome Statute). The latter war crimes are regarded by some as a novel category of international crime though, as previously discussed here, this category of war crimes was already reflected in customary international law. For instance, Schabas states “…the Rome Statute does recognize some new crimes that were probably not covered by the earlier instruments, such as the recruitment of child soldiers …”

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Notes

1.
Rome Statute (2002).
2.
The rules of war as encoded in the Additional Protocols I and II to the 1949 Geneva Conventions (1977).
3.
Schabas (2010, p. 213, emphasis added).
4.
Rome Statute (2002, Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii)).
5.
Rome Statute (2002, Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii)).
6.
The genocidal forcible transfer of children in such instances as here discussed involves the children in forced service as child soldiers and/or sex slaves or in some other capacity in support of the armed group or force or is accomplished via children’s sexual violation even if the children are not transferred physically to be a member of and travel with the armed group or force as child soldiers or sex slaves etc. (even if allegedly enlisted the children are not free to leave). The deeper purpose is to establish control over the targeted population via alienating children from their families and communities and appropriating them fully and indefinitely to the perpetrator group (a political/military entity) represented by the armed group or force committing systematic mass atrocities and/or genocide.
7.
Rome Statute (2002).
8.
Rome Statute (2002).
9.
For instance the Rome Statute Elements of the Crime regarding the genocidal forcible transfer of children in part includes the following: “The perpetrator forcibly transferred one or more persons”. [Rome Statute (Elements of the Crime) (2002)].
10.
Rome Statute Article 8 (1): “The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.” (Rome Statute, 2002).
11.
Schabas (2010, p. 201, emphasis added).
12.
Office of the Prosecutor, Letter concerning communication on the situation in Iraq (9 February, 2006, p. 8, emphasis added).
13.
Rome Statute (2002).
14.
Rome Statute (2002).
15.
Rome Statute (2002, Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii)).
16.
Wagner (2003, p. 424).
17.
Arguably the UN Security Council referral to the ICC of a situation in a non-State Party to the Rome Statute does imply an obligation on all States to: (1) abide by international legal principles and (2) take all necessary and feasible measures towards ensuring that the international crimes listed in the Rome Statute do not occur on their territory and are not perpetrated by their nationals in any territory. This in that such referral would not be likely to lead to Pre-Trial authorization for an investigation of the situation (given the Court’s reliance on the principle of complementarity) where the non-State Party was willing and able to address the situation internally and had established it was taking or had taken active measures in that direction. Thus, though the Rome Statute deals with criminal responsibility only in respect of individuals and not States, State obligations are nonetheless indirectly incorporated through the Rome Statute complementarity principle. Others such as Wagner (2002, pp. 489–490) take the view that any suggestion that the ability of the ICC to potentially consider situations in non-State Parties does not create an obligation on non-State parties and that any theory to the contrary is a “novel theory.”
18.
See Grover (2012).
19.
Rome Statute Elements of the Crime (2002).
20.
Wagner (2003, p. 417).
21.
Rome Statute, 2002, Article 9, emphasis added.
22.
Rome Statute (2002).
23.
For example, such appropriation of children as child soldiers: (1) reduces the future reproductive capacity of the group of origin by removing children from their midst, (2) causes immense physical and psychological suffering for the children and their groups of origin reducing the vitality of both; (3) often involves sexual violence with respect to girl child soldiers reducing their reproductive capability as a member of their original group should they return to their home communities, (4) destroys the children’s personal identity and links to their communities with this ultimately contributing to the physical and psychological destruction of the original communities/groups from whence the children were transferred etc.
24.
Rome Statute (2002).
25.
For a discussion on this issue see Wagner (2003, p. 423).
26.
Wagner (2003, p. 423) takes the opposition view to that of the current author.
27.
Afflito (2000, p. 82)
28.
Rome Statute (2002).
29.
Rome Statute (2002).
30.
Rome Statute (2002).
31.
It has been noted here in a previous section that the term ‘child soldier’ is not a term to be found in international treaty or convention instruments. This author has argued here and elsewhere that so-called child soldiers under 15 are in fact civilians as are so-called child soldiers (persons under 18) participating with unlawful armed groups or forces perpetrating mass atrocities and/or genocide as part of a common plan (Grover 2008, 2012).
32.
Rome Statute (2002).
33.
This assuming of course that all ICC jurisdictional and admissibility requirements are met in regards to the cases developed.
34.
Rome Statute (2002, Article 17(d)).
35.
Statement by Luis Moreno-Ocampo, Prosecutor of the ICC, Informal meeting of legal advisors of Ministries of Foreign Affairs, New York, 24 October, 2005 Cited in Schabas (2008, p. 738, emphasis added).
36.
Prosecutor v Lubanga Pre-Trial Chamber I, Decision on the Prosecutor’s Application for a warrant of arrest. Article 58, ICC-01/04-01/06-8-Corr, para. 41 Cited at para 56 of the Pre-Trial Chamber decision to authorize an investigation into situation in the Republic of Kenya (Kenya) 31, March, 2010, emphasis added).
37.
Pre-Trial Chamber decision to authorize an investigation into situation in the Republic of Kenya (Kenya) 31, March, 2010, para 57.
38.
Pre-Trial Chamber decision to authorize an investigation into situation in the Republic of Kenya (Kenya) 31, March, 2010, para 58.
39.
Pre-Trial Chamber decision to authorize an investigation into situation in the Republic of Kenya (Kenya) 31, March, 2010, para 61.
40.
Pre-Trial Chamber decision to authorize an investigation into situation in the Republic of Kenya (Kenya) (31, March, 2010, para 61).
41.
Rome Statute (2002).
42.
Pre-Trial Chamber decision to authorize an investigation into situation in the Republic of Kenya (Kenya) (31, March, 2010, para 63).
43.
Trial Chamber decision to authorize an investigation into situation in the Republic of Kenya (Kenya) (31, March, 2010, para 63).
44.
Trial Chamber decision to authorize an investigation into situation in the Republic of Kenya (Kenya) (31, March, 2010, para 63).
45.
Ratifications to the Rome Statute.
46.
Human Rights Watch (2012a, p. 1, emphasis added).
47.
Human Rights Watch (2012a, p. 1).
48.
Human Rights Watch (2012a, p. 1).
49.
Human Rights Watch (2012a, p. 1).
50.
Human Rights Watch (2012a, p. 1).
51.
Human Rights Watch (2012b) World Report 2012: Somalia.
52.
Human Rights Watch (2012a, p. 4).
53.
Human Rights Watch (2012a, p. 44).
54.
Human Rights Watch (2012a, p. 1).
55.
Human Rights Watch (2012a, p. 3).
56.
Human Rights Watch (2012a, p. 2).
57.
Human Rights Watch (2012a, p. 2)
58.
Human Rights Watch (2012a, p. 2).
59.
Human Rights Watch (2012a, p. 2, emphasis added).
60.
Human Rights Watch (2012a, p. 30).
61.
Human Rights Watch (2012a, p. 31).
62.
Human Rights Watch (2012a, p. 2, emphasis added).
63.
Human Rights Watch (2012a, p. 3).
64.
Human Rights Watch (2012a, p. 3).
65.
Human Rights Watch (2012a, pp. 24–25).
66.
Human Rights Watch (2012a, p. 28).
67.
Human Rights Watch (2012a, p. 3).
68.
Human Rights Watch (2012a, p. 3).
69.
Human Rights Watch (2012a, pp. 23–24).
70.
Grover (2011).
71.
Human Rights Watch (2012a, pp. 7–8).
72.
See the Additional Protocols I and II to the 1949 Geneva Conventions (1977).
73.
The current author holds as does the ICRC that the use of children (persons under age 18) by armed groups or forces (State or non-State) for direct or indirect participation in armed hostilities is in fact an inhumane practice. However, the straight 18 position with respect to protection of children from direct or indirect participation in hostilities as members of armed groups or forces has not as yet been incorporated into international humanitarian or criminal law (though prohibitions on States using persons under 18 in their armed forces to take a direct part in hostilities and on armed groups recruiting or using children (persons under age 18) in hostilities under any circumstances does appear in the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2002)).
74.
Pre-Trial Chamber decision to authorize an investigation into situation in the Republic of Kenya (Kenya) 31, March, 2010, para 61.
75.
HRW reports that: “… sexual and gender-based violence in Somalia is widespread and perpetuated not only by combatants but also by civilians.” Human Rights Watch (2012a, p. 59).
76.
For instance See Schauer and Elbert , T. (2009).
77.
Human Rights Watch (2012a, p. 60).
78.
There is dispute as to whether or not the Rome Statute (2002) contemplates the notion of ‘continuing crimes’. This author maintains that the Statute should be interpreted as doing so and that this is consistent with the purpose of the Statute and its mandate to hold accountable those who commit the gravest of international crimes which generally are continuing crimes. Arguably the prohibition against appropriation and use of other people’s children has been a part of customary law for some time. For a discussion of the matter of continuing crimes under the Rome Statute (2002) see Nissel (2004).
79.
Human Rights Watch (2012a, p. 5).
80.
Human Rights Watch (2012a, p. 3).
81.
Additional Protocols I and II to the 1949 Geneva Conventions (1977).
82.
Human Rights Watch (2012a, pp. 4–5, emphasis added).
83.
The child-specific international crimes referred to are those involving the genocidal forcible transfer of children (persons under 18) and the recruitment and use of under 15s for active participation in hostilities.
84.
Note that the OTP of the ICC has made it clear that “there is a difference between the concepts of the ‘interests of justice’ and the ‘interests of peace’ and that the latter falls within the mandate of institutions rather than the Office of the Prosecutor.” [Office of the ICC Prosecutor. Policy paper on the interests of justice (September 2007, p. 1)].
85.
Human Rights Watch (2012a, p. 6).
86.
“Children have suffered both from the conflict generally and because they have been specifically targeted for recruitment, rape, forced marriage, and other grave violations of international law by the parties to the conflict.” Human Rights Watch (2012a, p. 11). Children have also succumbed in record numbers due to the drought conditions with most affect regions in south-central Somalia and given al-Shabaad’s blocking of much of the attempted international humanitarian assistance.
87.
Cryer (2009, pp. 71–72, emphasis added).
88.
Moreno-Ocampo only recently ended his term as ICC Prosecutor replaced by Prosecutor Fatou Bensouda who took her oath of office 15 June, 2012.
89.
Cryer (2009, p. 71).
90.
Human Rights Watch (2012a, p. 5).
91.
Human Rights Watch (2012a, p. 50).
92.
Human Rights Watch (2012a, p. 49, emphasis added).
93.
See for example Drumbl (2012) who argues that child members of armed groups or forces committing mass atrocities do not always hold victim status or victim status exclusively. For the opposing view see, for instance, Grover (2012).
94.
Human Rights Watch (2012a, p. 17).
95.
Human Rights Watch (2012a, p. 17).
96.
Human Rights Watch (2012a, p. 17, emphasis added).
97.
Human Rights Watch (2012a, p. 102).
98.
Lobe (2011).
99.
Rome Statute (2002).
100.
Chad ratified the Rome Statute 1 November, 2006. Chad is providing the ICC access to Darfurian refugees to assist in the ICC prosecution of cases relating to Darfur, Sudan but would not assist in the apprehension and transfer of President Al-Bashir of Sudan to the ICC.
101.
Coalition for the International Criminal Court (n.d.).
102.
Human Rights Watch (2011, p. 1).
103.
Rome Statute (2002).
104.
UNICEF (2012):Food shortages in Chad have reached to the point in 2012 of creating life threatening conditions for many civilians with children being especially vulnerable.
105.
All Africa UN (News Service) (4 April, 2012).
106.
Amnesty International (2011).
107.
Amnesty International (2011, p. 5).
108.
Amnesty International (2011, p. 5).
109.
Amnesty International (2011, p. 5).
110.
Amnesty International (2011, p. 6).
111.
UNHCR (2012).
112.
All Africa UN (News Service) (4 April, 2012).
113.
Report of the Secretary-General on children and armed conflict (9 February, 2011, p. 5, para 11).
114.
Amnesty International (2011, p. 10).
115.
UNHCR (2012).
116.
Chad was accused by Sudan of supporting a JEM attack on Omdurman 10 May, 2008 in which children participated as child soldiers. About 109 of those children were captured by the Sudanese and at least 8 were tried and sentenced to death in contravention of international law [See Amnesty International (2011, p. 11)].
117.
Report of the Secretary-General on children and armed conflict (9 February, 2011, p. 6, para 18).
118.
Report of the Secretary-General on children and armed conflict (9 February, 2011).
119.
Report of the Secretary-General on children and armed conflict (9 February, 2011, p. 5, para 12).
120.
Report of the Secretary-General on children and armed conflict (9 February, 2011, pp. 4–5, para 10).
121.
UN News Centre (23 February, 2012) UN report on sexual violence during conflict singles out worst offenders.
122.
Child Soldiers International (2012, p. 2, emphasis added).
123.
Child Soldiers International (2012, p. 2, emphasis added).
124.
All Africa UN (News Service) (4 April, 2012)
125.
For further discussion and debate regarding the issue of politics and the ICC see, for instance, Nouwen and Werner (2011).
126.
U.S. Child Soldiers Prevention Act (2008).
127.
Lobe (2011). The other countries granted the waiver as well were the Democratic Republic of Congo (the DRC received a partial waiver only given its restance to fully demobilizing child soldiers), Yemen and the newly independent nation of South Sudan.
128.
Lobe (2011).
129.
Patel (2011).
130.
Rogin (2011).
131.
Report of the U.N. Secretary-General on children and armed conflict (26 April, 2012).
132.
The U.S. ratified the Optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict 23 December, 2002 (the U.S. has signed the CRC but not ratified that Convention).
133.
U.S. Child Soldiers Prevention Act (2008).
134.
U.S. Child Soldiers Prevention Act (2008).
135.
Lobe (2011).
136.
Cited in Lobe (2012).
137.
For example Rosen points out that “… Protocol Additional I permitted guerrilla movements engaging in wars of national liberation to recruit and enlist children below the age of fifteen by categorizing wars of national liberation as international conflicts rather than as internal conflicts. This was particularly significant since virtually all insurgent forces in twentieth century wars of national liberation recruited vast numbers of child fighters.” (Rosen, D.M., p. 93).
138.
Rosen (2009).
139.
Additional Protocols I and II to the 1949 Geneva Conventions (1977).
140.
Additional Protocols I and II to the 1949 Geneva Conventions (1977).
141.
Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) (1951).
142.
Rome Statute (2002).
143.
Rosen (2009).
144.
Rome Statute (2002).
145.
Rome Statute (2002).
146.
Rome Statute (2002).
147.
Several States have insisted on zero increase in the ICC budget (see Human Rights Watch 2011, p. 2). There are also constraints on ICC investigations due to volatile country security situations and concerns regarding the safety of potential witnesses and victim participants that hamper progress in prosecuting cases etc.
148.
Human Rights Watch (2011, p. 2).
149.
Human Rights Watch (2011, p. 4).
150.
For instance, consider the situation in Chad and the impunity existing for international crimes perpetrated during armed conflict against children and women in Chad; impunity in part due to inaction at the national level regarding prosecution of those most responsible. Chad ratified the Rome statute 1 November, 2006 and it entered into force 1 January, 2007. There has yet been no self-referral by the State of the situation in Chad to the ICC nor had the former ICC prosecutor taken steps to begin a preliminary examination on his own motion of the situation in Chad regarding child soldiering and child sex slavery.
151.
For instance, consider the failure of the U.N. Security Council to refer Somalia to the ICC versus the referral of Darfur, Sudan despite the grave abuses of children and women occurring on a systemic basis in Somalia as well and the failure of the Transitional Federal Government (TFG), for a variety of complex reasons, to vigorously prosecute those most responsible.
152.
Human Rights Watch (2011, p. 5).
153.
Human Rights Watch (2011, p. 27).
154.
Human Rights Watch (2011, p. 4, emphasis added).
155.
The current author holds that children’s direct or indirect participation in armed hostilities is in any circumstance an inhumane practice regardless the motives behind the military campaign.
156.
Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 Feb. 2007.
157.
Kreß (2007, p. 623, emphasis added).
158.
The concept of race has no scientific validity according to the general consensus in the scientific community.
159.
The removal of these children from their original group/communities reduces the birth rate in the groups/communities from whence the children were transferred (a marker for genocide) while forced pregnancies of girl child soldiers and the addition of the children recruited to the perpetrator group as child soldiers often increases substantially the perpetrator group’s overall numbers.
160.
Genocide Convention (1951).
161.
HRW notes that after the charges against Lubanga were confirmed “ children were hidden or chased from the [militia] ranks, and some were abandoned rather than being brought to the demobilization ceremonies.” (Human Rights Watch, 2011, p. 11 FN 17).
162.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012).
163.
Schabas (2008, p. 741).
164.
Schabas (2008, pp. 742–743). Schabas states that there have been more combat-related deaths in Iraq than in the DRC and Uganda combined in relation to the conflict in the latter territories for instance. However, the number of victims is not the only criterion to be considered. Whether cases against those most responsible for any alleged atrocities in Iraq connected to the U.S. and British invasion should have been developed by the OTP for prosecution by the ICC (assuming the ICC formalities allowing for the same were in place) is a topic beyond the scope of this book.
165.
Rome Statute (2002).
166.
For a discussion of the internationalization of crimes see Slye and Van Schaack (2009, pp. 107–119).
167.
Schabas (2008, p. 744, emphasis added).
168.
See Schabas (2008, p. 744) discussing the fact that the Pre-Trial chamber noted the Prosecutor’s allegation regarding the DRC not pursuing an investigation against Lubanga.
169.
Schabas (2008, p. 744).
170.
Schabas (2008, p. 744).
171.
This author concurs with those who maintain that mass rape of women (and girls) during armed conflict is a form of genocide intended to alienate these women from their communities and reduce the reproductive capacity of their communities (See for example, Mackinnon 2007).
172.
Human Rights Watch (2011, p. 9). This is not at all to suggest that sexual violence should not also have been charged as war crimes and/or crimes against humanity should the facts substantiate such a charge in any particular case developed in the context of the situation of the DRC.
173.
Office of the ICC Prosecutor. Prosecutorial Strategy 2009–2012 (February 1, 2010, para 18–21).
174.
Human Rights Watch (2011, p. 21).
175.
Human Rights Watch (2011, p. 20).
176.
Radio Netherlands Worldwide (International Justice Desk) ‘ICC Prosecutor seeks long sentence for Lubanga’ (15 March, 2012).
177.
The LRA has now left Northern Uganda but is implicated in mass atrocities against civilians in northeastern DRC, CAR, and South Sudan (Human Rights Watch, 2011, p. 23).
178.
Human Rights Watch (2011, p. 23, emphasis added).
179.
Human Rights Watch (2011, p. 29).
180.
Human Rights Watch (2011, p. 29).
181.
Human Rights Watch (2011, p. 30).
182.
“According to Ugandan army officials, Lt. Col. Charles Arop commanded the group of LRA combatants that attacked the town of Faradje on December 25, 2008, killing at least 143 people, mostly men, and abducting 160 children and dozens of adults.” (Human Rights Watch, 2011, p. 30).
183.
Human Rights Watch (2011, p. 7).
184.
Rome Statute (2002).
185.
Human Rights Watch (2011, p. 1).
186.
Schabas points out that States will be unlikely to self-refer situations to the ICC if they think that, in practice, some of their own leaders have a high probability of being prosecuted by the ICC thus putting the ICC Prosecutor, who needs State cooperation, in a difficult bind (Schabas 2008, p. 753).
187.
For the contrasting view see (Heller 2009, p. 14).
188.
For instance, a 2005 judgement of the ICJ held that the Republic of Uganda trained child soldiers as well as committing a range of other grave crimes against the Congolese civilian population (Democratic Republic of Congo v Uganda, ICJ, 2005, p. 280, para 3).
189.
Sometimes such States also set up Truth and Reconciliation Commissions as in Sierra Leone some of which can make referrals to the Courts.
190.
Osiel (2009) discussed the difficulties of defining what should be taken as indicators of “social alarm” in the international community regarding certain conduct such as child soldiering which he states is “regarded as ‘regional custom’ in much of Africa” (p. 5).
191.
Rome Statute (2002).
192.
Coalition for the International Criminal Court (n.d.) Africa and the International Criminal Court (p. 1).
193.
Coalition for the International Criminal Court (n.d.) Africa and the International Criminal Court (p. 1–2).
194.
International Criminal Court, States Parties to the Rome Statute (2012).
195.
Office of the ICC Prosecutor. Prosecutorial Strategy 2009–2012 (February 1, 2010, para 22, p. 6, emphasis added).
196.
The grave international crimes referred to here include but are not delimited to recruitment and use of children for active participation in hostilities, and mass sexual victimization of children as part of a common plan.
197.
Office of the ICC Prosecutor. Prosecutorial Strategy 2009–2012 (February 1, 2010, para 23, p. 7).
198.
Office of the ICC Prosecutor. Prosecutorial Strategy 2009–2012 (February 1, 2010, para 23, p. 7).
199.
It has been noted that the Prosecutor of an international criminal tribunal [and by implication then also the OTP of the ICC ] has a great margin of discretion in selecting cases for prosecution and that “the criteria upon which prosecutorial discretion is to be exercised are ill-defined and complex.” (Statement of Justice Arbour, L., 8 December, 1997 to the Preparatory Committee on the Establishment of an International Criminal Court at 7–8). Cited in Schabas (2008, p. 735, FN 16).
200.
Rome Statute (2002).
201.
There may be a few exceptions as when a perpetrator is deathly ill.
202.
See Schabas (2008, p. 735) for a general discussion of issues of gravity and interests of justice and the ICC Prosecutor exercising his or her proprio motu powers.
203.
Office of the ICC Prosecutor, “Prosecutorial Strategy 2009–2012,” (February 1, 2010, p. 6, para 20, emphasis added).
204.
Once the Somalia situation were referred to the ICC by the UN Security Council, the ICC Prosecutor would be obligated also to examine the facts relating to other parties to the conflict such as the TFG and its use of child soldiers.
205.
Recall Schabas’ comment: “As for Lubanga he must be delighted to find himself in The Hague facing prosecution for relatively less important offences concerning child solders rather than genocide and crimes against humanity.” (Schabas 2008, p. 744).
206.
Rome Statute (2002).
207.
Schabas (2008, p. 743)
208.
Rome Statute (2002).
209.
To date, the State self-referrals of ‘situations’ to the ICC (Uganda, DRC and the Central African Republic) have led only to ‘cases’ involving international crimes being perpetrated by rebel armed groups in those States. This has led to some criticism of the OTP on this very point. However, it must be understood that States that self-refer situations contemplate the possibility of cases being developed regarding State officials understanding that the ICC Prosecutor is duty bound under the Rome Statute to objectively and impartially consider the activities of all parties to the conflict.
210.
As when both State and non-State armed forces are using children to participate in perpetrating mass atrocities and the child soldiers are being subjected to sexual violation and various types of cruel and inhuman treatment by all sides to the conflict.
211.
Office of the ICC Prosecutor (2003). Informal expert paper: The principle of complementarity in practice [The complementarity regarding prosecutions refers here to national (domestic) prosecutions of some perpetrators as well as ICC prosecutions in respect of certain State or rebel leaders where domestic prosecutions of the latter individuals may contribute to civil unrest].
212.
Recognizing that the same facts may, in addition, meet the criteria for war crimes and/or crimes against humanity and that the crimes should then also be charged as such in addition to the charge of the genocidal forcible transfer of children.
213.
Rome Statute (2002).
214.
That is, assuming cases (falling under ICC jurisdiction and meeting admissibility requirements) involving the genocidal forcible transfer of children are brought before the ICC for adjudication in the first instance which assumption, as we have seen, is too often in fact incorrect.
215.
Special Representative of the Secretary-General for Children and Armed Conflict (SRSG) Press Release 11 June, 2012.
216.
Special Representative of the Secretary-General for Children and Armed Conflict (SRSG) Press Release 11 June, 2012.
217.
U.N. Secretary-General’s annual report on children and armed conflict (26 April, 2012, p. 23, para 122).
218.
U.N. Secretary-General’s annual report on children and armed conflict (26 April, 2012, p. 23, para 123).
219.
U.N. Secretary-General’s annual report on children and armed conflict (26 April, 2012, p. 23, para 124).
220.
U.N. Secretary-General’s annual report on children and armed conflict (26 April, 2012, p. 23, para 125).
221.
United Nations News and Media. Statement of UNICEF spokesperson Patrick McCormick (1 June, 2011).
222.
Save the Children (2012). Untold Atrocities: The stories of Syria's children.
223.
Such targeting of children in particular for varied atrocities generally occurs alongside sexual violence against girls and women as well.
224.
Rome Statute Elements of the Crime (2002, emphasis added).
225.
Schabas (2000) states that: “There are several definitions of crimes against humanity, but they share the common denominator of persecution of individuals or groups in a widespread and systematic fashion.”
226.
Forster (2011, pp. 141–142).
227.
Forster (2011, p. 142, emphasis added).
228.
Rome Statute (2002).
229.
Genocide Convention (1951).
230.
Genocide Convention (1951).
231.
Schabas (2000, pp. 291–292).
232.
Genocide Convention (1951).
233.
Genocide Convention (1951).
234.
Genocide Convention (1951).
235.
Genocide Convention (1951).
236.
The political motivation is, of course, on the view here, to quash opposition to the Bashar al-Assad’s regime by setting as the price of opposition the cost of losing one’s children in a most horrific way.
237.
Very young children have been targeted for torture, massacre and abduction and used as human shields (See Special Representative of the Secretary-General for Children and Armed Conflict (SRSG) Press Release 11 June, 2012) Thus, though there may have been some children who have been victimized by the regime who participated in the opposition this is not generally the case nor have children targeted been selected on such a basis.
238.
The majority of persons killed in the Houla massacre were women and children (49 children were victims in that massacre).
239.
See Article 6 (e) of the genocide provision in the Rome Statute (2002).
240.
See Article 6 of the Rome Statute (2002).
241.
Tamil Guardian Refer Syria to ICC – Navi Pillay (13 December, 2011).
242.
Secretary-General’s annual report on children and armed conflict with appended list of shame at annex I (26 April, 2012).

Literature, Materials and Cases

Literature

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Materials

All Africa (UN News Service) (2012) Chad: UN Official Highlights Human Rights Concerns, Praises readiness to address them. http://allafrica.com/stories/201204041085.html. Accessed 10 Apr 2012
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Office of the ICC Prosecutor (2003) ‘Informal expert paper: the principle of complementarity in practice’. http://www.iclklamberg.com/Caselaw/OTP/Informal%20Expert%20paper%20The%20principle%20of%20complementarity%20in%20practice.pdf. Accessed 15 Apr 2012
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Office of the ICC Prosecutor (2010) Prosecutorial Strategy 2009–2012. http://www.icc-cpi.int/NR/rdonlyres/66A8DCDC-3650-4514-AA62-D229D1128F65/281506/OTPProsecutorialStrategy20092013.pdf. Accessed 12 Apr 2012
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Osile M (2009) How should the ICC Office of the Prosecutor choose its cases? The multiple meanings of ‘Situational Gravity’. http://www.haguejusticeportal.net/Docs/Commentaries%20PDF/Osiel_ICC_EN.pdf. Accessed 7 Apr 2010
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Rome Statute Elements of the Crime (2002) http://www.icc-cpi.int/NR/rdonlyres/9CAEE830-38CF-41D6-AB0B-68E5F9082543/0/Element_of_Crimes_English.pdf. Accessed 18 Jan 2012
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UNHCR (United Nations High Commission on Refugees) (2012) 2012 UNHCR country operations profile – Chad. http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e45c226. Accessed 10 Apr 2012
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Cases

Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (International Court of Justice)(ICJ), Judgment of 26 Feb. 2007. http://www.icj-cij.org/docket/files/91/13685.pdf. Accessed 13 Apr 2012
Democratic Republic of Congo v Uganda,(Case concerning armed activities on the territory of the Congo) (International Court of Justice) (ICJ) 2005 judgement. http://www.icj-cij.org/docket/files/116/10455.pdf. Accessed 15 Apr 2012
Pre-Trial Chamber decision (ICC) to authorize an investigation into situation in the Republic of Kenya (Kenya) 31, March, 2010. http://www.icc-cpi.int/iccdocs/doc/doc854287.pdf. Accessed 4 Apr 2012
Prosecutor v Lubanga Pre-Trial Chamber I, Decision on the Prosecutor's Application for a warrant of arrest. Article 58, ICC-01/04-01/06-8-Corr, para. 41.
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Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012). http://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf. Accessed 20 Mar 2012

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Faculty of Education, Lakehead University, Thunder Bay, Canada
Sonja C. Grover

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Grover, S.C. (2013). The Genocidal Forcible Transfer of Children: A Crime Well Established in International Law; Yet Still Not Prosecuted by the ICC. In: Humanity’s Children. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-32501-4_6

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DOI: https://doi.org/10.1007/978-3-642-32501-4_6
Published: 01 October 2012
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