The Persecution of Children as a Crime Against Humanity: The Case for the Prosecution 3030750000, 9783030750008

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Sonja C. Grover

The Persecution of Children as a Crime Against Humanity The Case for the Prosecution

The Persecution of Children as a Crime Against Humanity

Sonja C. Grover

The Persecution of Children as a Crime Against Humanity The Case for the Prosecution

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

ISBN 978-3-030-75000-8 ISBN 978-3-030-75002-2 https://doi.org/10.1007/978-3-030-75002-2

(eBook)

© Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

In honour of the memory of my brother Albert and in respect for all the child victims, named and unnamed, of persecution as a crime against humanity

Acknowledgements

I would like to express my heartfelt thanks to Dr. Brigitte Reschke, Springer Executive Editor of Law, for her support of this work. I also wish to thank my husband Roshan for his love and faith in the value of my research and my ability to execute the mission.

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Contents

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Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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International Atrocity Crimes Targeting Children and Lacunae in Charging Under International Criminal Law . . . . . . . . . . . . . . . . 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 The as Yet Unfulfilled Promise of the 2016 ICC ‘Policy on Children’ Regarding Equity in Accountability for Rome Statute Crimes Targeting Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 Case Examples in Brief of the Failure to Charge Age-Based Persecution as a Crime Against Humanity Targeting Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 The Child Collective as a Distinct Separable Specially Protected Group Under International Law . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Selected Examples of IHL/CIL Setting Out That Children Enjoy Special Protections as Children During Armed Conflict Beyond the Entitlement Owed to Protected Persons Generally . . . . . . . . . . . . . . . . . . . . . . 2.3.2 The Scope of the Privileges Children Enjoy Under Article 77 Protocol I and Article 4(3) Protocol II to the August 12, 1949 Geneva Conventions . . . . . . . . . . . . . . . . . . . . . . . 2.4 Factors That Facilitate the Potential Accountability for Violations of IHL/CIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Age-Based Persecution Targeting Children . . . . . . . . . . . . . . . . . . . 3.1 The Failure to Charge Persecution as a Crime Against Humanity Targeting Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Case 1: The Prosecutor v Bosco Ntaganda (ICC Case Regarding International Atrocity Crimes Committed in the DRC 2002–2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 Persecution of the Hema UPC/FPLC Child Soldiers . . . . 3.2.2 The UPC/FPLC Child Soldiers as Protected Persons Under IHL/CIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 The Persecution of Children Based on Age Intersecting with Gender and Ethnicity . . . . . . . . . . . . . . . . . . . . . . 3.2.4 Controversies on the Legal Status of UPC/FPLC Child Soldier/Sex Slaves . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.5 The Rape and Sexual Slavery of the UPC/FPLC Child Soldiers as Crimes Against Humanity as Well as War Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.6 UPC/FPLC International Atrocity Crimes Directed Against the Child Collective . . . . . . . . . . . . . . . . . . . . . 3.2.7 Rome Statute Element by Element Analysis of the ‘Age-Based Persecution’ of Hema Children Incorporated Into the UPC/FPLC as Child Soldier/Sex Slaves . . . . . . 3.2.8 The UPC/FPLC Child Soldiers as Enslaved Civilians . . . 3.2.9 Age-Based Persecution of the Child Collective ‘As Such’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.10 The Overlooked Older UPC/FPLC Child Soldiers . . . . . 3.2.11 More on Collective International Crimes . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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The Persecution of Children In Connection With Genocide . . . . . . . 4.1 Genocide Targeting the Child Collective ‘As Such’ or as ‘Part’ of the Larger Protected Group . . . . . . . . . . . . . . . . . . . . . . 4.2 Legal Controversy Re What Constitutes ‘a Part’ of the Targeted Group Under the Genocide Convention . . . . . . . . . . . . . . . . . . . . 4.2.1 Case 1: Prosecutor v. Krstic, IT-98-33-T, Trial Judgment, 2 Aug. 2001 (ICTY) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 On Destruction of a ‘Part of a Part’ as Genocide . . . . . . . . . . . . . . 4.4 Genocide by Imposing Measures Designed to Prevent Births: One Impact of the Srebrenica Massacre . . . . . . . . . . . . . . . . . . . . 4.5 The Srebrenica Massacre and Our Understanding of State Complicity in Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6 More on the Massacred Bosnian Male Adolescents at Srebrenica as the Collective Victim of Genocide . . . . . . . . . . . . . . . . . . . . . .

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ISIL, Age-Based Persecution and the Yazidi Children Born of Rape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8 Age-Based Persecution in Connection With the Genocide of Tutsi Children, Children of Tutsi-Hutu Heritage and the Children of Moderate Hutu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.1 The Incitement to Genocide Targeting the Child Collective: Rwanda 1994 . . . . . . . . . . . . . . . . . . . . . . . 4.9 Positive and Negative Definitions of the Part or Whole Targeted for Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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The Persecution of Children in Connection with Crimes Against Humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.1 Persecution as a Crime Against Humanity Under the Rome Statute . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.2 The Prohibited Grounds Under the Persecution Provisions of the Statutes of the ICTR, ICTY and SCSL . . . . . . . . . . 5.1.3 ‘Extermination’ on a Discriminatory Ground Not Covered in the Genocide Convention . . . . . . . . . . . . . . . . . . . . . . 5.2 The Persecution of Children in Connection with ‘Extermination’ as a Crime Against Humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 The Targeting of the Child Collective in the Context of Mass Killing (Extermination): The Rwandan 1994 Massacre of Tutsi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Case 1: Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu (Special Court of Sierra Leone) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.1 Children Spared from Extermination and Used as Child Soldiers/Sex Slaves (Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu (Special Court of Sierra Leone) . . . . . . . . . . . . . . . . . . . . 5.3.2 The Prohibition on ‘Age-Based Persecution’ as CIL: The Failure to Charge in Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu (Special Court of Sierra Leone) . . . . . . . . . . . . . . . . . . . . 5.4 Case 2: Theoneste Bagosoro and Anatole Nsengiyumva versus The Prosecutor (International Criminal Tribunal for Rwanda) . . . . 5.5 The Child Collective Persecuted Through Gender-Based International Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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5.5.1

The Persecution of Children Qua Children Based on Intersecting Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6 The Dominic Ongwen (ICC) Case and the Failure to Charge Persecution of Children in Connection with the Gender-Based Crimes Against Humanity of Rape, Sexual Slavery, Enslavement, Forced Pregnancy and Forced Marriage . . . . . . . . . . . . . . . . . . . 5.6.1 Introduction to Case 3: The Dominic Ongwen (ICC) Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6.2 Case 3: The Prosecutor v Dominic Ongwen (ICC) . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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The Persecution of Children in Connection with War Crimes: Selected Exemplars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Rome Statute War Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.1 The Persecution of Children in Connection with the War Crime of Torture . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.2 The Persecution of Children in Connection with Gender-Based War Crimes . . . . . . . . . . . . . . . . . . . . . . . 6.2.3 Forced Religious Conversion and Indoctrination into the Perpetrator Credo as Violations of IHL/CIL and International Human Rights Law . . . . . . . . . . . . . . . . . . . 6.2.4 International Human Rights Law Informing the Interpretation and Application of the Rome Statute . . . . . . 6.2.5 Persecution of Children in Connection with War Crimes Involving Forced Religious Conversion and Indoctrination into the Perpetrator Credo . . . . . . . . . . . . . 6.2.6 War Crimes Involving Attacks on Protected Education and Cultural Objects . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 The Severe Deprivation of Child Soldier/Sex Slaves’ Fundamental Rights as the Crime Against Humanity of Persecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Concluding Remarks: The Persecution of Children as a Distinct Rome Statute Prosecutable Crime Against Humanity . . . . . . . . . . . . 197 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 7.2 Age as a Universally Recognized Impermissible Ground for the Severe Deprivation of Fundamental Rights: The Persecution of Children as a Crime Against Humanity . . . . . . . . . . . . . . . . . . . . 198

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Chapter 1

Introduction

This research monograph discusses the perpetrator targeting of children1 for severe deprivation of one or more fundamental rights—where the contextual elements of crimes against humanity are met—as conduct constituting ‘age-based persecution’ as a crime against humanity.2 The focus of the discussion in this work is thus the crime against humanity of persecution fuelled by discriminatory intent as directed against child victims. The case examples of age-based persecution discussed highlight the reality of persecution as a crime against humanity directed against children and do not reflect persecutory conduct not rising to the level of an international crime. The objective of this work is to elucidate, through case examples, the robust legal and factual basis for bringing separate charges regarding the crime against humanity of (i) persecution of the child collective ‘as such’ or of (ii) the persecution of children based on their age-based group identity as members of a particular child collective with intersecting additional perpetrator-targeted characteristics. Both forms of persecution of children discussed occur in connection with genocide, and/or other crimes against humanity and/or war crimes. The selected case examples discussed in the current work are not at all intended to be an exhaustive representation of such collective crimes committed with persecutory intent against children. Rather the case examples presented set out the need for justice and accountability in regards to the persecution of children as a crime against humanity. This author adopts, for the purposes of clarity and the overall organization of this work, the definition of and elements of the crime against humanity of ‘persecution’ as set out in the Rome Statute and the Rome Statute Elements of the Crimes. However, the statutes of the ICTY, ICTR and the SCSL, in terms of the crime against humanity of persecution, are also discussed. The crime of persecution as set out in those statutes, in contrast to that as articulated in the Rome Statute,

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Children here refers to persons under age eighteen including infants. This is not to imply that other forms of age-based persecution as a crime against humanity do not exist i.e. persecution of the elderly but these other forms are outside the scope of the present work. 2

© Springer Nature Switzerland AG 2021 S. C. Grover, The Persecution of Children as a Crime Against Humanity, https://doi.org/10.1007/978-3-030-75002-2_1

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encompasses no element of a required nexus between the crime of persecution as a crime against humanity and other crimes covered in the respective statutes. In that regard the requirement is only that the conduct underlying the persecution should be of a similar gravity as the other international atrocity crimes set out in the specific statute at issue.3 The author thus adopts the Rome Statute definition of persecution rising to the level of a crime against humanity as referring to the perpetrator knowingly and with discriminatory intent imposing on a person or persons a severe deprivation of one or more fundamental rights. This author also adopts the elements of persecution as a crime against humanity as articulated in the Rome Statute Elements of the Crimes at Article 7(1)(h). Those elements set out the contours and content of that international atrocity crime of persecution and stipulate that: “the perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights” (Element 1); the perpetrator targeted the victim or victims “by reason of the identity of a group or collectivity” or “. . .targeted the group or collectivity as such” (Element 2); the perpetrator based the targeting on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law (emphasis added)” (Element 3); the perpetrator carried out the conduct in connection with any of the crimes against humanity referred to in the Rome Statute at article 7 paragraph 1 or any crime within the jurisdiction of the Court, (Element 4); the perpetrator’s conduct occurred as part of a widespread or systematic attack against a civilian population (Element 5); and the perpetrator knew or intended the conduct to be part of a widespread or systematic attack against a civilian population (Element 6). Chapter 2 sets out the failure of prosecutors of various international criminal law courts (i.e. the ICC, SCSL) and tribunals (i.e. the ICTY, ICTR) to charge ‘age-based persecution’ as a crime against humanity perpetrated against children qua children. The possible reason for this failure is discussed. That is no charge of ‘age-based persecution of children’ (in combination with other persecutory grounds as well as age) and in connection with the various other international atrocity crimes under the specific statute involved has to date been pursued despite the legal and factual support for such a charge in various international criminal law cases. The charge of ‘age-based persecution against children’ has not been advanced notwithstanding the facts in various international criminal law cases, on the respectful view here, proving the international atrocity crimes concerned were intentionally directed against children with discriminatory intent relating in significant part to age. That

3 For instance re the ICTY: “The Tribunal’s case-law has specified that persecutory acts are not limited to those acts enumerated in other sub-clauses of Article 5 or elsewhere in the Statute, but also include the denial of other fundamental human rights, provided they are of equal gravity or severity. Furthermore, the Tribunal’s case-law emphasises that discriminatory acts charged as persecution must not be considered in isolation, but in context, by looking at their cumulative effect. Although individual acts may not be inhumane, their overall consequences must offend humanity in such a way that they may be termed ‘inhumane’” (Krstic Judgment ICTY Part III Legal Findings: Persecutions para 535, https://www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e-3.htm).

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‘age-based persecution of children’ charge then could have been brought in the relevant ICC case under the persecution provision in the Rome Statute which provision acknowledges age as a prohibited ground of discrimination. This since the Rome Statute persecution provision references also non-enumerated grounds of persecutory discrimination that are universally recognized as impermissible (of which age is one). Also highly relevant regarding the viability of a charge of ‘age-based persecution of children’ as a crime against humanity under the Rome Statute (where the facts support the charge) is Rome Statute Article 21(3) on the interpretation and application of the law: “Rome Statute Article 21(3): Applicable Law: The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status (emphasis added).”4 Hence Article 21(3) of the Rome Statute guarantees to children equity in the interpretation and application of the Rome Statute. To in practice consider ‘agebased persecution of children’ as a crime against humanity as precluded at the outset (notwithstanding the evidence and the applicable international law) is, respectfully, it is here contented, a de facto if unintended violation of Rome Statute Article 21(3). In regards to ICTY, ICTR and SCSL cases; the persecution as a crime against humanity provision restricts persecution charges under that provision to a few discriminatory grounds which do not include age. Thus age-based persecution targeting children would have to be brought under, for instance, ‘other inhumane acts’ as a crime against humanity. Chapter 3 discusses the ICC case of Ntaganda5 in detail in that the Court determined, among other factual findings, that (i) the international atrocity crimes of the conscription and use of child soldiers under age fifteen and their repeated rape and sexual slavery were perpetrated by the UPC/FPLC militia in the Democratic Republic of Congo against Hema children during the relevant time period and that (ii) children of the Lendu civilian population were also targeted for rape and sexual slavery by the UPC/FPLC and not only women. Yet the age-based persecution of children (intersecting with other discriminatory grounds i.e. ethnicity) was not charged while persecution of the Lendu population was charged and a conviction had on that count resulting in a 30 year imprisonment sentence on that count. The discussion considers on what basis the charge of ‘age-based persecution targeting

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Rome Statute Article 21(3). Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement. 5

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children’—a grave international crime—could justifiably have also been brought in the case. The author then turns to a discussion of age-based persecution as a crime against humanity directed against children in connection with (i) genocide (Chap. 4), (ii) crimes against humanity (Chap. 5); and (iii) war crimes (Chap. 6). Of necessity there is some overlap in the chapters as the same conduct can constitute different crimes under the Rome Statute with the specific crime yet involving a distinguishing element that sets it apart from another Rome Statute international atrocity crime. Essentially the same conduct may thus be legally characterized in more than one way under the Rome Statute and permit cumulative charges. Chapter 7 presents concluding remarks in defence of age (specifically as relates to persons under age eighteen) as a universally recognized impermissible ground for persecutory targeting of children for severe deprivation of fundamental rights rising to the level of a crime against humanity. Additional argument is made for separate charges relating to the crime against humanity of the age-based persecution of children in connection with one or more other international atrocity crimes as set out in the Rome Statute. Also addressed are international crimes that disproportionately affect children i.e. attacks on schools and hospitals.6 Attacks on schools as a war crime are discussed in Chap. 6 in relation to the propaganda and indoctrination efforts of armed groups committing international atrocity crimes targeting children. The established pattern of the ICC and other international criminal tribunals prosecuting international atrocity crimes directed against children is to regard these atrocities as targeting individual children and groups of individual children per se and unrelated to their age-based group identity. To decline to view the child collective/group (with its’ intersecting attributes) as a perpetrator-targeted entity in itself or individual children as targeted due to their membership in that distinct particular child collective (notwithstanding the evidence to that effect where it exists) is, on the view here, to negate the suffering and dignity of children as children. The focus of this work is then on (i) the persecution of particular child groups/ collectives; each as a specific distinct and discrete collective victim of perpetrators committing mass international atrocity crimes or (ii) the persecution, through international atrocity crimes, of individual children based on discrimination relating to their specific child group identity (an identity defined in terms of age and other perpetrator-targeted characteristics). Considered also are the consequences for the

6 ‘The Six Grave Violations against Children during Armed Conflict (designated and monitored by the UN) include 1. Recruitment and use of children 2. Killing or maiming of children 3. Sexual violence against children 4. Attacks against schools or hospitals 5. Abduction of children 6. Denial of humanitarian access’ See Office of the Special Representative of the Secretary –General for Children and Armed Conflict, Working Paper No. 1, The Six Grave Crimes Against Children During Armed Conflict: The Legal Foundation (October 2009, updated November, 2013) p. 9 https://childrenandarmedconflict.un.org/publications/WorkingPaper-1_ SixGraveViolationsLegalFoundation.pdf.

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individual children who comprise those collectives and the impact on their particular persecuted communities and the global community as a whole. However, it must be highlighted at the outset that this focus is not intended to suggest that other distinct and vulnerable groups were/are not also often specifically targeted (such as women, the disabled, members of the LGBTQ plus community, ethnic minority groups, the elderly and others) for specific international crimes in those same contexts or that they are not equally deserving of accountability of the perpetrators. Accountability for international crimes perpetrated against the particular child collective ‘as such’ or against individual children based on their age-based group identity then in essence, it is here argued, is an essential aspect of an “. . .international jurisdiction that is able, and willing, to prosecute conflict-linked crimes against children.. [and the] struggle against the commission of such crimes.”7 It is noted that persecution of children as a crime against humanity may, however, also occur in peacetime. To accomplish the aforementioned objective of accountability the following must be amongst the preconditions met: (i) the facts relating to the nature and full range of the international crimes perpetrated against children must be scrupulously and fairly investigated and established as well as the facts regarding the knowledge and intent of, in particular, the command individuals responsible without limiting potential accountability, in addition, for the rank and file perpetrators and (ii) the legal and factual basis for a charge of ‘age-based persecution’ of children as a crime against humanity must be set out where international atrocity crimes are directed either (i) against the specific child collective ‘as such’ or (ii) against individual children in relation to their age-based group identity as it intersects with other perpetrator-targeted characteristics.

References Amann DM (2019) The policy on children of the ICC Office of the Prosecutor: toward greater accountability for crimes against and affecting children. International Review of the Red Cross Humanitarian debate: Law, Policy and Action, Children and War (IRRC No. 911). https:// international-review.icrc.org/articles/policy-children-icc-office-prosecutor-toward-greateraccountability-crimes-against-and

7 The ICC and international criminal tribunals while they addressed the issue of child soldiers’ active participation in hostilities “failed to identify, prosecute or punish the full range of international crimes that children endure amid armed conflict and similar situations of extreme violence.” (Amann 2019, p. 539).

6

1 Introduction

Materials Office of the Special Representative of the Secretary –General for Children and Armed Conflict Working Paper No. 1: The Six Grave Crimes Against Children During Armed Conflict: The Legal Foundation (October 2009, updated November, 2013). https://childrenandarmedconflict. un.org/publications/WorkingPaper-1_SixGraveViolationsLegalFoundation.pdf Rome Statute entry into force July 1, 2002. https://www.icc-cpi.int/resource-library/documents/rseng.pdf (accessed September 9, 2020)

Cases Krstic Judgment ICTY Part III Legal Findings: Persecutions para 535 https://www.icty.org/x/cases/ krstic/tjug/en/krs-tj010802e-3.htm (accessed January 2, 2021) Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement https://www.icc-cpi.int/itemsDocuments/191107-ntaganda-sentencingjudgment-summary-eng.pdf (accessed December 16, 2020)

Chapter 2

International Atrocity Crimes Targeting Children and Lacunae in Charging Under International Criminal Law

2.1

Introduction

This chapter addresses the reluctance of the prosecutors of international criminal tribunals/courts, including the ICC, to acknowledge, in practice, and charge the crime against humanity of age-based persecution of (1) the child collective as the direct group victim ‘as such’ based on age and intersecting characteristics or the persecution of (2) individual children on account of their age-based group identity and additional perpetrator-targeted intersecting characteristics. The reference here is then to children being targeted qua children through age-based ‘persecution as a crime against humanity’ in connection with genocidal acts and/or crimes against humanity and/or war crimes.1 Often, as mentioned, the persecution of children as a crime against humanity is not simply based on age, a universally acknowledged impermissible ground for the severe deprivation of fundamental rights. Rather the victimization is grounded on the young age of the victims (under 18; often including also infants) as it intersects with one or more other perpetrator-targeted characteristics of the children as these relate to the children’s group of origin i.e. ethnicity, religion etc. Age-based persecution of children as an international atrocity crime (a crime against humanity) in fact has yet to be charged in any international criminal law proceeding. Often the child victims are recognized only through aggravated charges in connection with perpetrator attacks on a group of civilians or on a group of otherwise protected persons of mixed ages that included also children. The aggravated charges arise in that international atrocity crimes perpetrated against children

1 Note that while the Rome Statute elements of the crime against humanity of persecution include a requirement for a connection to other crimes in the Statute; this is not the case in all statutes i.e. the statutes of the ICTR and ICTY (see Rome Statute Elements of the Crime entry into force July 1, 2002 Article 7(1)(h)) https://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B45BF9DE73D56/0/ElementsOfCrimesEng.pdf.

© Springer Nature Switzerland AG 2021 S. C. Grover, The Persecution of Children as a Crime Against Humanity, https://doi.org/10.1007/978-3-030-75002-2_2

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are considered grave crimes under international law given children’s vulnerability and their special protected status under IHL/CIL which we will be addressing in a later section. Even when, for instance, such grave crimes as gender-based international crimes against individual children or a group of individual children are charged (as in the Ntaganda case2 discussed in Chap. 3); ‘persecution as a crime against humanity targeting the particular child collective’ or targeting individual children on account of, at least in large part, their age-based group identity is not charged. Hence the age-based discriminatory intent underlying the specific international atrocity crimes perpetrated against children is not acknowledged and instead is met with impunity. This prosecutorial reluctance to charge age-based persecution involving the severe deprivation of one or more of the fundamental human rights of the child victims, it is contended, in great measure arises in that the particular child collective as a rights bearing group in and of itself is a notion inconsistent with the traditional view of children’s rights as confounded with and not separate or independent from parental and community rights. The Inter-American Court of Human Rights, Advisory Opinion on the ‘Juridical Condition and Human Rights of the Child’ alludes to the issue of a global history in which children’s inherent fundamental human rights had not been recognized: Article 3 of the American Convention on Human Rights recognizes the juridical personality of all persons, and this, of course, includes children. Nevertheless the former protective model only saw children as objects of protection and not as legal persons. Therefore, they did not enjoy recognition of their rights. Currently, the preamble of The Convention on the Rights of the Child and the principles of the United Nations Charter clearly state that children are legal persons, under conditions of equality and based on the inherent dignity of all human beings (emphasis added).3

It is here suggested further that while there has been significant progress in recognizing children’s inherent rights entitlements for instance through international and regional legal instruments such as respectively the Convention on the Rights of the Child and its optional protocols4 and the African Charter on the Rights and

2

Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC-01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement https://www.icc-cpi.int/itemsDocuments/191107-ntaganda-sentencing-judg ment-summary-eng.pdf (accessed December 16, 2020). 3 Inter-American Court of Human Rights, Advisory Opinion Oc-17 2002 of August 28, 2002, Requested by the Inter-American Commission on Human Rights, Juridical Condition and Human Rights of the Child https://www.refworld.org/cases,IACRTHR,4268c57c4.html. 4 Convention on the Rights of the Child, entry into force September 2, 1990 https://www.ohchr.org/ en/professionalinterest/pages/crc.aspx. Optional Protocol to the Convention on the Rights of the Child on a communications procedure entered into force April 14, 2014 https://www.ohchr.org/en/professionalinterest/pages/opiccrc. aspx. Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict entry into force February 12, 2002 https://www.ohchr.org/en/professionalinterest/ pages/opaccrc.aspx.

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Welfare of the Child;5 the violations of children’s basic rights are still, to a great extent, in practice viewed as infringements solely on the integrity of the children’s group of origin/community/family. The failure to charge age-based persecution as a crime against humanity targeting children—notwithstanding the evidence in particular cases supporting the charge—speaks to vestiges of that traditional view of children as protected property under the auspices of adults. Hence violations of the children’s protection rights and human dignity are not framed as a persecutory attack on the children directly but rather only on the family/the larger community and the religious/ethnic or otherwise perpetrator-defined group/population of origin of which the children are a part. The argument is made here that until the particular distinct perpetrator-targeted child collective is treated in practice as a separable autonomous rights bearing group that can be victimized ‘as such’; children are unlikely to receive the full measure of international criminal justice to which they are entitled as victims collectively and individually. The latter requiring then charges and reparations for age-based persecution targeting children. The proposition is advanced then that children, as persons in their own right and with inherent legal personality,6 have an independent right, both as individual victims and as members of the targeted particular distinct child collective at issue, to accountability of the perpetrators who committed international atrocity crimes against them and to reparations. The international law basis for considering the particular distinct child collective as a separable direct victim of age-based persecution in connection with other Rome Statute-defined crimes is examined in what follows. The persecution then is in violation of the high duty of care owed to children under international humanitarian law, customary international law and international human rights law.

2.2

The as Yet Unfulfilled Promise of the 2016 ICC ‘Policy on Children’ Regarding Equity in Accountability for Rome Statute Crimes Targeting Children

In 2016 the Office of the Prosecutor of the International Criminal Court launched its “Policy on Children” document. The document explains that one of the strategic goals of the ICC Office of the Prosecutor from 2012–2015 was to “pay particular Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography entered into force on 18 January 2002 https://www.ohchr.org/ EN/ProfessionalInterest/Pages/OPSCCRC.aspx. 5 African Charter on the Rights and Welfare of the Child as of December 30, 2020 ratified by 49 State members of the African Union https://www.acerwc.africa/wp-content/uploads/2018/04/ African_Children_Charter_Website_Version_English_2015.pdf. 6 Inter-American Court of Human Rights, Advisory Opinion Oc-17 2002 of August 28, 2002, Requested by the Inter-American Commission on Human Rights, Juridical Condition and Human Rights of the Child, p. 29.

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attention to sexual and gender-based crimes and crimes against children”.7 The ICC policy defines “children” as persons under 18 years which is (1) consistent with the general definition of ‘child’ (with a proviso) under the Convention on the Rights of the Child;8 (2) consonant with the fact that ICC prosecutions are not pursued against a person who was under 18 years at the time he or she perpetrated the Rome Statute international crime in question9 hence recognizing children as a separate group and (3) in line with the fact that the Rome Statute Elements of the Crime stipulates in relation to the genocidal act of the forcible transfer of children (from their group of origin to another group) that ‘child’ is defined (for the purposes of that particular international crime) as involving persons under age 18 years forcibly transferred to the other group.10 The ICC 2016 ‘Policy on Children’ acknowledges that, at times, children are “specifically targeted” for international atrocity crimes (here referencing genocide, crimes against humanity and war crimes) and makes the commitment that “crimes against or affecting children will be regarded as particularly grave, given the commitment made to children in the Statute, and the fact that children enjoy special recognition and protection under international law.”11 The latter point in the 2016 ICC ‘Policy on Children’ refers, for instance, to Rome Statute Article 54(1)(b) which requires that the Prosecutor “take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so. . .take into account the nature of the crime, in particular where it involves . . .violence against children.”12 We will at the outset be considering the international law basis for children’s special protected status under international humanitarian law (IHL) and customary international law (CIL) in the section immediately following. That special status creates a higher duty of protection and care owed to children than exists for civilians in general in armed conflict and in immediate post armed conflict situations.13 Also addressed are the intersections of international human rights law (IHRL) and other branches of law (IHL, CIL) as these relate to the duty of care and protection of

7

ICC Policy on Children (2016), p. 2. The Convention on the Rights of the Child stipulates at Article 1 that “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.” https://www.ohchr.org/en/ professionalinterest/pages/crc.aspx. 9 See Article 26 Rome Statute entry into force July 1, 2002. 10 Rome Statute Elements of the Crime (2010), Article 6 (e) point 5. 11 ICC Policy on Children (2016), p. 2. 12 Rome Statute Article 54(1)(b). 13 “Children are particularly vulnerable; they require privileged treatment in comparison with the rest of the civilian population. This is why they enjoy specific legal protection.” (emphasis added). International Committee of the Red Cross (ICRC 1987 commentary on Protocol II to the Geneva Conventions Article 4). 8

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11

fundamental rights owed to children during peacetime and during armed conflict.14 It should be kept in mind that: There is no single source for the international law of the child, which means it must be looked for in specific and general treaties, in the broad field of human rights at both universal and regional levels, in the rules of international humanitarian law, in customary international law and in the law practice of States.15

We will examine in subsequent chapters selected cases of the ICC and of certain other international criminal tribunals (the ICTR and ICTY) or international courts (the SCSL) where the fact pattern reveals that the ‘persecution of children as a crime against humanity’ occurred and took place in connection with other grave international atrocity crimes. This in order to illustrate that the international atrocity crimes targeting (1) specific identifiable, separable child groups (collectives) ‘as such’ or (2) individual children based, at least in significant part, on their age-based group identity were unjustifiably neither acknowledged nor prosecuted as persecution of children as a crime against humanity in these cases. The latter failure to prosecute for the crime against humanity of persecution targeting children represents, it is here argued, a glaring omission in the scope of the charges that the evidence and the law required be pursued. It is here contended, with respect, that in these cases therefore the prosecutors relied on an improperly narrow scope of accountability for international crimes perpetrated against children. In doing so, it is here further argued, the prosecutors inadvertently (1) undercut, to some extent, recognition internationally of children’s independent entitlement under international law to fundamental rights as children and (2) inappropriately set aside the notion that children can be and often are targeted for international atrocity crimes because they are children.16 Such a narrowed charging scope tends to focus on prosecuting the specifically childdirected international crime17 as an atrocity perpetrated against individual children

Note that Rome Statute at Article 21(1)(b) stipulates that “. . . where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict” are applicable law in interpreting and applying the Rome Statute. Hence international humanitarian law and customary international law are relevant to the interpretation and application of the Statute. Further Rome Statute Article 21(3) sets out that “The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status (emphasis added).” (Rome Statute entry into force July 1, 2002 Article 21). 15 Goodwin-Gill and Cohn (1994), p. 55. 16 An analogue might be the long-time failure of the ICC until fairly recently to acknowledge and prosecute gender-based crimes as a form of persecution or to consider persecution on intersecting grounds including gender. This even though the Rome Statute persecution provision Article 7(1) (h) enumerates gender as a prohibited ground (see Grey et al. 2020). 17 Certain child-directed Rome Statute crimes (i.e. recruiting children under age 15 years as so-called ‘child soldier’/sex slaves and using these children for active participation in armed conflict, perpetrating sexual violence against these children such as rape, forced pregnancy etc.) have been prosecuted by the ICC and certain international criminal tribunals. However charges have 14

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or against groups of individual children purportedly unrelated to their age-based group identity as such. The latter focus then reflects also no regard for the targeting of a particular child collective as a victim in and of itself defined, for example, in terms of the children’s particular ethnicity or other perpetrator-targeted defining characteristics and critically also age (under 18). Where the particular distinct child collective ‘as such’ is considered by the perpetrator as also the target or there is targeting of individual children based on their age-based group identity (intersecting with other perpetrator-targeted characteristics relating to ethnicity, religion etc.) ‘age-based persecution as a crime against humanity’ would be amongst the legally supportable charges. This in contrast to the situation where the child victims are considered only in their individual capacity and are targeted for reasons unrelated to their age-based group identity. In this regard recall that the second element of the Rome Statute crime against humanity of ‘persecution’ stipulates that “The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such (emphasis added).”18 The discriminatory element of the crime of persecution (Element 3) sets out that “Such targeting was based on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds that are universally recognized as impermissible under international law.”19 ‘Persecution’ as an international atrocity crime thus integrates into the concept of ‘crimes against humanity’ the notion of discriminatory intent as linked to the targeting of the particular group/collectivewhether that be in reference to (1) exclusively the distinct larger civilian population under attack or (2) also one or more discrete collectives—such as a distinct child collective—which forms a part of that larger distinct civilian population which is also under attack.20 Recall also that the Rome Statute crime of persecution involves an element that requires a connection to one or more other crimes in the Rome Statute. Thus persecution as a crime against humanity ‘in connection with’ any other Rome Statute crime imbues that other crime with an underlying discriminatory intent relating to the victim’s or victims’ group-based identity. Thus, for instance, the crime against humanity of rape (in the midst of a widespread or systemic attack on a particular civilian population) could be perpetrated against members of any civilian population

not been advanced for the crime against humanity of age-based persecution of (1) a child collective per se or (2) as against individual children or groups of individual children based in part on agebased group identity in relation to such crimes as the aforementioned. Hence the charge under the Rome Statute of age-based persecution has to date not been pursued even though, as we will discover, certain ICC and other cases could have supported such charges on the facts and their proper legal characterization in regards to the targeting of children for these international atrocity crimes. 18 Rome Statute Elements of the Crime, ‘Persecution’ Article 7(1)(h)(2). 19 Rome Statute Elements of the Crime, ‘Persecution’ Article 7(1)(h)(3). 20 Note that the Rome Statute Elements of the Crimes Article 7(3) clarifies that ‘attack’ on a civilian population does not necessarily refer to a military attack but rather commission of multiple acts listed in Rome Statute Article 7 paragraph one.

2.2 The as Yet Unfulfilled Promise of the 2016 ICC ‘Policy on Children’. . .

13

without any specific discriminatory intent nor based on any discriminatory ground (s). However when rape as a crime against humanity is carried out in connection with persecutory intent; the crime becomes one directed against individuals based on group identity and is discriminatory: In contrast with genocide, crimes against humanity do not need to target a specific group. Instead, the victim of the attack can be any civilian population, regardless of its affiliation or identity. Another important distinction is that in the case of crimes against humanity, it is not necessary to prove that there is an overall specific intent. It suffices for there to be a simple intent to commit any of the acts listed, with the exception of the act of persecution, which requires additional discriminatory intent (emphasis added).21

Given the current author’s foregoing analysis regarding crimes against humanity, at least where there is persecutory intent, she respectfully must disagree with the distinguished lawyer Philippe Sands’ opinion that crimes against humanity, by definition, concern the mass killing of individuals as individuals and not as an attack on the group (the latter in contrast to genocide where the mass killing of individuals is directed to the destruction of the group in whole or in part).22 On the analysis here, in contrast, crimes against humanity where they occur in connection with persecution do involve an attempt to destroy the particular targeted collective in whole or in part. Unlike genocide, crimes against humanity involve an element relating to their occurring in the midst of a widespread or systematic attack on a civilian population whereas genocide can theoretically occur even where there is only one victim and there is no widespread or systematic attack on a civilian population though that scenario is, as history teaches, significantly less likely. In certain statutes (those of the ICTY, ICTR and SCSL for instance) the ‘persecution as a crime against humanity’ provision itself does not allow for age as the basis, in whole or part, for the discriminatory intent involved in the persecutory targeting of children. In that case the persecution of children could potentially be charged under the residual crimes against humanity category of ‘other inhumane acts’ (i.e. persecution of children qua children/‘age-based persecution’ targeting children as an ‘other inhumane act’). That charge may be in connection with one or more specific other crimes against humanity and/or war crimes and/or specific genocidal act(s) though the statutes of the ICTY and ICTR do permit a charge of persecution without a nexus to another crime under the respective statute.23 In any case if the persecution charge under the ICTY or ICTR statutes is to succeed, whatever is the prohibited ground of discrimination; it must be shown to be the

21

United Nations Office on Genocide and the Responsibility to Protect: Crimes Against Humanity https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml. 22 Coalson, R What’s the difference between crimes against humanity and genocide The Atlantic (March 19, 2013) file:///C:/Users/sgrover/Desktop/What’s%20the%20Difference%20Between% 20’Crimes%20Against%20Humanity’%20and%20’Genocide_’%20-%20The%20Atlantic.html. 23 The connection to other ICC crimes as an element of the Rome Statute crime against humanity of persecution was intended to avoid the problem of the ICC potentially regarding any discriminatory conduct as automatically rising to the level of persecution as a crime against humanity under the Statute. This by creating a higher threshold for the crime (see Oosterveld 2006, pp. 49–89 at p. 57).

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reason for (the causal factor behind)—alone or in combination with other intersecting characteristics—the targeting of the victims for one or more international atrocity crimes.24 With the broadening of the scope of the charges to include persecution of the particular distinct child collective per se,25 or of children based in part on their age-based group identity, there is the possibility of an enhancement of the penalties under the Rome Statute for international atrocity crimes specifically perpetrated against children. This through cumulative charges that then include the grave charge of age-based persecution directed against children as committed in connection with various other international atrocity crimes targeting children.26 Where children are instead regarded as targeted individual child victims or groups of individual child victims unrelated to their age-based group identity (i.e. individual children regarded only as amongst the civilian victims in general); there is still, however, the possibility of aggravated charges and a charge of persecution relating to the victimization of the larger civilian population of which the child victims were a part.27 To recap a central point then recall that certain Rome Statute crimes are explicitly categorical or collective crimes in nature as reflected in certain of the elements of the crime. Specifically, they involve an element of (1) targeting a person or persons based on their group identity or (2) targeting the collective in whole or in part ‘as such’. In both cases then the perpetrator seeks to harm or, in some instances even destroy, the collective through the individual victims injured or by targeting, in For a discussion concerning persecution that may take “specific forms” related to a ground of discrimination versus persecution “because” of that ground and the difficulty, if not impossibility, of disentangling the two see the discussion in Oosterveld (2006), pp. 49–89 at pp. 82–85. 25 The distinct separable child collective targeted for persecution as a crime against humanity would be specified in the particular case i.e. the Yazidi child collective targeted by ISIL in Iraq as well as ISIL targeting of certain other child collectives that form a part of various other ethnic/religious groups in Iraq (Iraq is not a party to the Rome Statute. However, a case could potentially be brought before the ICC if an ISIL commander who was a national of a State Party to the Rome Statute were to be charged for a Rome Statute crime(s)). 26 Note that to establish the persecution of children as a crime against humanity in connection with war crimes—specifically the recruitment and use of children under age 15 in armed hostilities or the sexual slavery of child soldiers (persons under 18)—does not require that the civilian status of the children be proved although this author argues that these children retain their civilian status. This in that these war crimes do not have status of the victim as an element. At the same time, the use of child soldiers transferred from the targeted civilian population, and the atrocities also visited on these children after transfer to the perpetrator armed group or force, is part, it is here contended, of a widespread and/or systematic attack on a civilian population. The latter then, on the analysis here, fulfills this chapeau element of crimes against humanity for age-based persecution as a crime against humanity. 27 Note that Ntaganda received a sentence of 30 years for the persecution of the Lendu civilian population reflecting the gravity of the crime against humanity of persecution. However there was no charge of persecution in the case for the targeting of children per se or the targeting of the UPC/FPLC child soldier/sex slave collective ‘as such’. Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC-01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement https://www.icc-cpi.int/ itemsDocuments/191107-ntaganda-sentencing-judgment-summary-eng.pdf para 63. 24

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15

whole or in part, the collective ‘as such’.28 The international crime against humanity of persecution as a crime against humanity is a premier example of such a collective crime as are genocidal acts. Since persecution as a crime against humanity is the only such Rome Statute crime that requires proving a discriminatory intent29 and requires a connection also with one or more other Rome Statute crimes; it unambiguously transforms all international crimes under ICC jurisdiction committed in connection with an instance of persecution into a collective crime. This since individuals are discriminated against as members of a group/based on their group identity (i.e. that group identity being defined in terms of age, gender, sexual orientation, disability, ethnicity, religion, nationality, or politically or based on any other ground that is universally recognized as impermissible under international law). That is persecution sets out that the international atrocity crimes involved did not simply target individuals as individuals but rather based on their group identity and on some universally recognized impermissible ground. Thus, in regards to ‘age-based persecution directed against children’, that charge would address accountability for victimization of (1) individual child victims or groups of individual child victims targeted due to their group membership in a particular distinct separable child collective (one where age intersects with certain other perpetrator-targeted attributes) or (2) the targeting of the child collective ‘as such’.

2.2.1

Case Examples in Brief of the Failure to Charge Age-Based Persecution as a Crime Against Humanity Targeting Children

To date the targeting for international atrocity crimes of a particular discrete child collective ‘as such’ or of children due to their age-based group identity has not

28 Certain other Rome Statute crimes are crimes that also potentially target a collective and may involve discriminatory intent reflecting a universally recognized impermissible ground(s) of discrimination as the basis for targeting of victims i.e. Article 7(1)(g)-4, the crime against humanity of forced pregnancy with “the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law” (Element one, Rome Statute Elements of the Crime). This then can be a crime targeting a particular collective based on the ground of ethnicity and to that degree is arguably persecutory in nature. It is noteworthy that element one states also that this crime is accomplished “. . .by confining one or more women made forcibly pregnant (emphasis added)” (Rome Statute Elements of the Crime, Article 7(1)(g)-4, the crime against humanity of forced pregnancy, element one). This when in fact those girl children (persons under age 18) who have reached reproductive maturity are often also made forcibly pregnant by perpetrator armed groups or forces with the same discriminatory intent of affecting the ethnic composition of a particular targeted collective. 29 Legal Information Institute, Cornell Law School ‘To prove discriminatory intent the prosecutor must prove what was the ground for the discriminatory targeting—Rome Statute of the International Criminal Court, Article 7(1)(h)’ https://www.law.cornell.edu/women-and-justice/resource/rome_ statute_of_the_international_criminal_court_article_7(1)(h).

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resulted in a charge of ‘age-based persecution’ as a crime against humanity advanced by the prosecutor of any international criminal court or tribunal. The charge of age-based persecution directed against children would be simultaneously an acknowledgement and a condemnation of international atrocity crimes that were, in whole or in part, committed against children qua children. The ICC and other international criminal courts or tribunals have focused on provisions that specifically and explicitly reference children (such as the provision prohibiting the recruitment and use in armed hostilities of children under age 15) and have convicted also for other specific international atrocity crimes directed against a child collective under statute provisions that do not specifically reference children (i.e. sexual slavery and rape perpetrated against the child soldier/sex slaves of the UPC/FPLC as in the Ntaganda case).30 However not charging ‘age-based persecution’ in connection with these international crimes that, on the facts, reveal the specific targeting of children as children has resulted in the weakening in practice of the unique status of children as rights holders with special protection entitlements under international law (IHL/CIL and international human rights law). Consider then—in regards to the failure to charge age-based persecution perpetrated against children—the use of child soldier/sex slaves by the Hema as addressed in the Ntaganda case.31 Following are just a few excerpts from the brief filed with the ICC by the legal representative for the former UPC/FPLC child soldiers. The excerpts go to some of the evidence that was found credible and substantiates ‘age-based persecution’ intersecting with ethnicity as a crime against humanity perpetrated by the UPC/FPLC against these Hema children: August 2002, NTAGANDA was also forcibly recruiting in primary schools in Mudzipela (in fifth and sixth years of primary school) where he found young children, necessarily under-aged, to be trained in Mandro in order to participate in the Songolo attack. P-0190 testified that he and his parents were living in a house nearby and he was approached by many parents, [REDACTED], who reported that their children were taken. . . . Other children would be picked up along the way and had to travel on foot to the Mandro training camp. Among them was [REDACTED], aged 14 at the time, together with other young children According to P-0190, families and school officials reacted very strongly to the conscription of these children but were powerless(emphasis added).32

30

Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC-01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement https://www.icc-cpi.int/itemsDocuments/191107-ntaganda-sentencing-judg ment-summary-eng.pdf. 31 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC-01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement https://www.icc-cpi.int/itemsDocuments/191107-ntaganda-sentencing-judg ment-summary-eng.pdf. 32 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC-01/04-02/06, Trial Chamber VI November 7, 2018 Closing brief on behalf of the Former Child Soldiers, para 78, p. 40.

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P-0898 [REDACTED], [REDACTED] was 13 and joined the UPC/FPLC following the killings committed by the APC and the Lendu combatants. . . Most of these children were joining because they were orphans and were hoping to find shelter and food.33

If Hema parents did not cooperate with the ‘recruitment’ of their children the consequences included the children being abducted. Those child abductions, it is here contended, constitute ‘enforced disappearance’ as a continuing crime against humanity for as long as the children remained with the Hema militia and their status (alive or dead) and exact whereabouts was unknown: P-0315 reported that. . .Witnesses report that at the start of the conflict each Hema family had to give one child to the Hema militias or had to pay to be exempt from this obligation. If parents refused, their children were taken by force.34

On the analysis here; the coerced recruitment of the Hema children under 15 (who arguably were not legally competent to consent in any case) as well as the recruitment of older children (also recruited under coercive circumstances of mass killings by Lendu etc.) resulted in mental anguish for the surviving Hema parents. That mental anguish of the parents due to the forced recruitment of their children, on the view here, amounted to ‘mental torture’ of the parents as a crime against humanity. The previously mentioned outright abduction of other of the Hema children to be UPC/FPLC child soldiers arguably constitutes ‘enforced disappearance as a crime against humanity’. Hence it can be reasonably held that the persecution of the Hema civilian population itself was widespread and systematic in connection with (1) the war crime of conscripting35 and using Hema children to be UPC/FPLC child soldiers actively engaged in the hostilities and (2) other Rome Statute crimes perpetrated against Hema civilians by the UPC/FPLC (enforced disappearance of their children through child abductions; mental torture of the parents who had no choice but to surrender their children to the Hema militia, rape and sexual slavery of the UPC/FPLC child soldiers). That persecution of the Hema civilian population by the UPC/FPLC militia was based on ethnicity as it was Hema children the militia wanted as UPC/FPLC child soldier/sex slaves. The Hema children themselves were persecuted by the UPC/FPLC based on both age and ethnicity. The child soldiers/sex slaves insofar as they were also subjected to sexual violence were considered by the ICC to be hors de combat and hence protected persons on that ground also as will be discussed in further detail in Chap. 3.

33

Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC-01/04-02/06, Trial Chamber VI November 7, 2018 Closing brief on behalf of the Former Child Soldiers, para 79, pp. 40–41. 34 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC-01/04-02/06, Trial Chamber VI November 7, 2018 Closing brief on behalf of the Former Child Soldiers, para 82, p. 42. 35 Given the coercive circumstances of mass killings, food shortages, loss of parents etc. for the children of Ituri it seems fair to consider that recruitment of the children, in some instances purportedly voluntary, was in fact more often coerced.

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Consider now also the recent Yekatom and Ngaissona ICC case36 in regards to the failure to consider international atrocity crimes as ‘age-based persecution’ when children are one of the prime intended targets. In the Yekatom and Ngaissona case, for instance, the war crime of recruitment and use of children under 15 for active participation in the armed hostilities was not charged as part of the conduct underlying ‘age-based persecution of children’ as a crime against humanity where the discriminatory grounds were age intersecting with religion and arguably also ethnicity and a political dimension.37 The latter were the discriminatory dimensions involved since the child soldiers were ‘recruited’ by the anti-Balaka from the Christian civilian population presumed by that militia to be anti-Seleka and antiMuslim. It has been the pattern for the ICC and all other international criminal courts and tribunals (to this author’s knowledge), in regards to the aforementioned war crime, as with all other child-targeted international atrocity crimes, not to view the crimes as occurring in connection with age-based persecution as a crime against humanity. The Pre-Trial Chamber in Yekatom and Ngaissona declined to allow the ICC Prosecutor to amend the charges against Yekatom to include rape and sexual slavery despite the fact that the Prosecutor had already obtained the evidence relevant to those charges.38 The Chamber did so for technical reasons largely related to concerns that this would require another confirmation hearing and delay the trial (the trial date had not been set at the time, however, and the Prosecutor suggested various strategies to mitigate any undue harm to the defendant should the charges be amended and the trial delayed but to no avail even after the Prosecutor appealed on the issue).39 The Pretrial Chamber did not agree to amend the charges notwithstanding the gravity of the gender-based offences and available evidence from certain of the victims of the sexual violence and from independent NGOs that sexual violence, rape and sexual slavery was widely inflicted on women and girls in CAR by both the mostly Christian Anti-Balaka and by the Muslim Seleka armed groups.40

The ICC “Pre-Trial Chamber II found that there are substantial grounds to believe that, between September 2013 and December 2014, an armed conflict not of an international character was ongoing in the territory of the Central African Republic between the Seleka and the Anti-Balaka, both constituting organised armed groups at that time; and that the Anti-Balaka carried out a widespread attack against the Muslim civilian population, perceived—on the basis of their religious or ethnic affiliation—as complicit with, or supportive of the Seleka and therefore collectively responsible for the crimes allegedly committed by them (emphasis added).” The Prosecutor v Alfred Yekatom and Patrice-Edouard Ngaissona ICC Case Information sheet https://www.icc-cpi.int/ CaseInformationSheets/yekatom-nga%C3%AFssonaEn.pdf. 37 The political ground for discrimination arises in that children, including under 15s, were (in violation of IHL/CIL) ‘recruited’ also based on the fact that they belonged to the Christian civilian population as the anti-Balaka are mostly Christian. 38 Grey et al. (2020). 39 Grey et al. (2020). 40 Human Rights Watch (2017) ‘They said we are their slaves: Sexual violence by armed groups in the Central African Republic’ https://www.hrw.org/report/2017/10/05/they-said-we-are-theirslaves/sexual-violence-armed-groups-central-african. 36

2.2 The as Yet Unfulfilled Promise of the 2016 ICC ‘Policy on Children’. . .

19

The children were targeted as children (and not just women then were the victims) for these sexual violence international crimes constituting, it is here argued, a grave form of ‘age and gender-based persecution’. The sexual violence international crimes inflicted tremendous trauma with likely long term severe adverse impacts on the child victims as well as on the women and on the larger civilian collective of which they both were a part. The targeting of Christian children for the war crime of recruitment and use of child soldiers under age 15 in armed conflict and for sexual violence international crimes, including rape and sexual slavery, were based in Yekatom and Ngaissona on, at a minimum, the discriminatory intersecting grounds of age, and gender both universally recognized as impermissible under international law as bases for the severe deprivation of fundamental rights. That conduct, on the analysis here, constituted age-based persecution of children as a crime against humanity. Yet only persecution of the Muslim civilian population was charged in the Yekatom and Ngaissona case and not also ‘age-based persecution’ directed against children in connection with, for instance, (1) their use as child soldiers by the Anti-Balaka in armed conflict and (2) their victimization through gender-based crimes such as rape and sexual slavery. The anti-Balaka child soldier/sex slaves were, if we follow the same reasoning as did the Trial Chamber in Ntaganda,41 protected persons under IHL/CIL (APII Article 4(3)(d))42 as children at all times when they were hors de combat (i.e. when being sexually assaulted by their adult anti-Balaka militia compatriots and were so protected under international law even if they had previously engaged actively in the armed hostilities). The recruitment and use of children as child soldier/sex slaves with children taken from the parties’ respective own ethnic groups constitutes, furthermore, an attack and terrorization, on the view here, on the armed group’s own civilian population. The latter thus fulfills the chapeau contextual Rome Statute element of crimes against humanity of there being a widespread and systematic attack on a civilian population and persecution occurring in that circumstance. The anti-Balaka militia (comprised of various armed groups and mostly Christian) thus, on the analysis here, persecuted the Christian civilian population (their fellow Christians) by taking their children, including those under 15, to be anti-Balaka child soldier/sex slaves thus causing serious mental suffering to the parents in violation of the Rome Statute. That significant mental suffering relating to the loss of their children to the anti-Balaka militia as child soldiers could reasonably be legally characterized, it is here contented as, for instance, the crime against humanity of (mental) torture and the war crime of torture relating to discrimination. It should be noted that there is nothing in the Rome Statute elements of the crimes against humanity or war crimes relating to torture or

41

Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC-01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement. 42 Additional Protocol II to the 1949 Geneva Conventions.

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cruel treatment that specifies that the victims must be members of the civilian population associated with the adversary. According to the confirmation of charges judgment; the anti-Balaka defendants Yekatom and Ngaissona ‘persecuted’ the Muslim civilian population based on religious, ethnic and/or political grounds and in connection with various and numerous international atrocity crimes including war crimes and crimes against humanity.43 However no consideration was given to the persecution by the anti-Balaka of the Christian civilian population targeted for removal of children, including those under 15, to serve as anti-Balaka child soldier/sex slaves.

2.3

The Child Collective as a Distinct Separable Specially Protected Group Under International Law

Let us turn now to selected examples of IHL/CIL setting out the child collective as a distinct, separable, specially protected group during armed conflict. In Chap. 6 we will consider how these protections intersect with international human rights law especially in the context of armed conflict.

2.3.1

Selected Examples of IHL/CIL Setting Out That Children Enjoy Special Protections as Children During Armed Conflict Beyond the Entitlement Owed to Protected Persons Generally

The special status of children as a protected group under CIL/ IHL; a collective owed an especially high duty of care as children is, in part, set out at IHL/CIL rule 135. Rule 135 is a norm of CIL based on State practice: “Children affected by armed conflict are entitled to special respect and protection.”44 It is of note that age range for the notion of ‘child’ is not defined in IHL/CIL rule 135 and by custom, according to ICRC commentary, is considered to be referencing persons under 18 years old unless otherwise specified. Let us consider then as one example of the import of IHL norms that have achieved the status of customary international law and which impact children; the aforementioned IHL/CIL rule 135 and also IHL/CIL rule 136 which

43

The Situation in the Central African Republic (CAR), ICC Pre-Trial Chamber II No. ICC-01/1401/18, Corrected version of ‘Decision on the confirmation of charges against Alfred Yekatom and Patrice-Edouard Ngaïssona, December 11, 2019. 44 Committee of the International Red Cross (2005), Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Law Practice Volume I: Rules Cambridge: Cambridge University Press, p. 479.

2.3 The Child Collective as a Distinct Separable Specially Protected Group. . .

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states: “Children must not be recruited into armed forces”45 as well as IHL/CIL rule 137 which stipulates that “Children must not be allowed to take part in hostilities.”46 Rules 136 and 137 have been incorporated in a limited way into the Rome Statute—the enabling Statute of the International Criminal Court (ICC)—in that recruitment (conscription or enlistment) and use of children under 15 years old for active participation in hostilities is a war crime in both the international and non-international armed conflict context under the ICC Statute. However IHL/CIL rules 135, 136 and 137 recognize (1) the vulnerable protected status of both those direct child victims who actively participated in the hostilities and those child victims who were not participants but were still affected and (2) encompasses consideration in that respect of special protections during armed conflict for all persons under age 18 years. As will be discussed in a later section; children once hors de combat are entitled under IHL/CIL to all the special protections accorded children as if they had not taken an active part in the armed hostilities. It is to be highlighted that the age range for ‘child’ is in fact not defined in IHL/CIL rules 135–137. The fact that the Rome Statute designates recruitment and use of children under 15 for active participation in hostilities as specific war crimes does not imply licence under IHL/CIL to recruit and use children 15 and over (but under 18) for active engagement in the hostilities. In this regard it should be noted that in fact “there is no precise definition for ‘child’ in international humanitarian law . . . [rather] the age of fifteen years is considered to be a minimum beyond which, according to the nature of the actions or interests to be protected, some provisions nonetheless require or recommend that a higher age be taken into consideration.”47 In practical terms, however, accountability under the Rome Statute for the recruitment and/or use of children 15 and over for active participation with armed groups or forces committing mass atrocities must be addressed through charges other than the Rome Statute age—specific war crimes relating to the recruitment and /or use of children under 15. This if there is to be any criminal liability at all for perpetrators responsible for orchestrating the involvement of older children also in a campaign of mass atrocities in the context of armed conflict and using them as child soldier/sex slaves. One approach then, as advocated here, is to pursue charges of ‘age-based persecution’ as a crime against humanity directed against the child collective ‘as such’ or targeting individual children in respect of their age-based group identity. That persecution then could relate to war crimes such as cruel treatment of the child soldiers causing mental and physical suffering. This persecution in connection with

45

Committee of the International Red Cross (2005), Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Law Practice Volume I: Rules Cambridge: Cambridge University Press, p. 482. 46 Committee of the International Red Cross (2005) Henckaerts, Jean-Marie and DoswaldBeck, Louise, Customary International Law Practice Volume I: Rules Cambridge: Cambridge University Press, p. 485. 47 International Committee of the Red Cross (1990) Dutli, M.T. Captured Child Combatants, International Review of the Red Cross, No. 278, https://www.icrc.org/en/doc/resources/ documents/article/other/57jmea.htm.

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the war crime of cruel treatment would apply then to child soldiers of varying ages under 18. Other grave crimes in fact reaching to the level of jus cogens violations such as sexual slavery are often perpetrated against child soldiers and could be charged (1) as a separate charge and (2) in relation to age-based persecution as a crime against humanity targeting children (age intersecting with other perpetratortargeted characteristics as the discriminatory grounds for the persecution). For instance, consider children ‘recruited’ by ISIL in Iraq or from abroad into the overlapping categories of ISIL child soldier/sex slave.48 These children were victims of child trafficking for the purpose of enslavement and forced labour of various sorts including child soldiering and sexual slavery. Note that the Rome Statute stipulates that: “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children (emphasis added).49

The ISIL war crimes and crimes against humanity in Iraq relating to recruitment and use of child soldier/sex slaves thus involve also the international crimes of forced labour and enslavement (amongst others) in the context of child trafficking. Charges should then be brought for additional Rome Statute crimes50 in such circumstances as, for example, in regards to enslavement to perform forced labour (enslavement being a crime against humanity, Article 7(1)(c)), sexual slavery (a crime against humanity (Article 7(1)(g)-2) and a war crime i.e. in a non-international armed conflict situation (Article 8(2)(e)(vi)-2), age-based persecution targeting children (a crime against humanity, Article 7(1)(h)), other inhumane acts such as forced labour (a crime against humanity, Article 7(1)(k)) and for other international crimes as apply on the facts in the specific case. This then would help to ensure accountability for ISIL perpetrators also for the recruitment and use of children over 15 but under 18 in armed hostilities as child soldier/sex slaves (since the Rome Statute war crime provisions for recruitment and use of children in armed hostilities is applicable, as mentioned previously, only in regards to victims under 15). However simply charging Rome Statute crimes such as sexual slavery perpetrated by various individual ISIL perpetrators most responsible as, for instance, a war crime against individual children or groups of individual children unrelated to their age-based identity or as against civilians generally is insufficient. This since such an approach is inconsistent with the facts on the ground; namely that Iraqi children were being targeted qua children by ISIL for international atrocity crimes

48

See the definition of child soldier set out in the Paris Principles (Paris Principles: Principles and Guidelines on Children Associated with Armed Forces or Groups (February, 2007)). 49 Rome Statute Article 7(2)(c). 50 This assuming that ISIL perpetrators who had command responsibility at some level and are nationals of a State Party to the Rome Statute stand trial before the ICC as to date Iraq is not a party to the Statute. Iraq and Syria are not parties to the Rome Statute and any calls for referrals by the UN Security Council to the ICC Prosecutor on atrocities in Iraq during the ISIL-related siege in Iraq and region have been vetoed.

2.3 The Child Collective as a Distinct Separable Specially Protected Group. . .

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(i.e. given the high propaganda value for ISIL of targeting amongst the most vulnerable in a civilian population—children—and the blow this dealt to the viability of the targeted diverse ethnic/religious communities in Iraq from which the children taken to serve as ISIL child soldier/sex slaves were being forcibly recruited by all manner of coercive methods and in coercive circumstances).51 To hold ISIL perpetrators accountable for the targeting for atrocities of particular child discrete group/collectives ‘as such’ in Iraq or for the victimization of individual children in Iraq in relation to their age-based group-identity as it intersected with other characteristics such as religion and ethnicity requires a charge of ‘age-based persecution of children’ in connection with the various other Rome Statute international atrocity crimes involved that underlay that persecution (i.e. sexual slavery, child soldiering).52 Women and children are frequently, as a matter of course, amalgamated in the international criminal court/tribunal prosecution process as relates to their being victims of international sexual violence crimes. That approach serves misguidedly, on the respectful view here to (1) treat child victims of sexual violence international atrocity crimes as if the children are inseparable in law from the adult female victims rather than being autonomous rights-holding human beings individually and collectively in themselves under international law and to (2) preclude consideration of the persecution of children as a crime against humanity occurring on the discriminatory grounds of age intersecting with gender (and perhaps also in relation to additional other perpetrator-targeted characteristics of the child collective linked to the identity of the children’s group(s) of origin). Recall that the Rome Statute itself, for instance, recognizes the heightened gravity of the crimes set out in that statute when perpetrated against children and the relevance of age as a factor in the discriminatory targeting of child victims for such international atrocity crimes. That sensitivity to the issue of Rome Statute crimes targeting children is reflected in Rome Statute Article 54 (1)(b)(c): Duties and powers of the Prosecutor with respect to investigations and prosecutions which states: The Prosecutor shall. . .[t]ake appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children; and [f]ully respect the rights of persons arising under this Statute (emphasis added).53

51

The coercive circumstances in Iraq included i.e. ISIL massacres and other mass atrocities. Such international atrocity crimes targeting children could also be charged as the same under Iraqi domestic law should Iraq choose to incorporate such Rome Statute crimes as international crimes under the Iraqi criminal code. For instance Canada has domesticated the Rome Statute through its Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 Assented to 2000-06-29 “An Act respecting genocide, crimes against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, and to make consequential amendments to other Acts.” file:///C:/ Users/sgrover/Desktop/Crimes%20Against%20Humanity%20and%20War%20Crimes%20Act. html. 53 Rome Statute Article 54(1)(b)(c). 52

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A separate charge of ‘age and gender-based persecution as a crime against humanity specifically targeting children’, where supported by the evidence in the particular case (evidence that children were specifically targeted for these sexual violence crimes as children and based on gender) is thus not only legally supportable but necessary if the rights of children under international law are to be respected. To do otherwise is to render the child collective victim of international atrocity crimes such as sexual violence crimes, to some degree, invisible. Further, it is to be noted that while female children are at a disproportionately higher risk for such crimes; male child victims where they exist, of course, are to be included in prosecutors pursuing a charge of age and gender-based persecution as a crime against humanity in connection with sexual violence international crimes targeting children. Tragically and, on the respectful view here unjustifiably, adult and child male victims of international sexual violence crimes have been largely if not completely ignored by some international criminal courts/tribunals as in the Ongwen ICC case.54 To date there have been no ICC charges brought for ‘age-based persecution of children’ arising from enslavement of children as a crime against humanity in connection with also child sexual slavery and child soldiering forced labour. This despite evidence that would have supported such charges in the Ntaganda case and the Yekatom and Ngaissona case and certain others and the 2016 ICC Prosecutor’s Office ‘Policy on Children’ which promised increased accountability for Rome Statute international crimes against children.55 The issue in the recruitment and use of child soldier/child sex slaves for participation in hostilities of (1) the children’s alleged consent to become child soldier/ child slaves (voluntariness/‘enlistment’) and (2) potential child soldier culpability for any international crimes they may have committed as enslaved forced child soldiers is not applicable given the trafficking context.56 In regards to the latter point, 54

Grey et al. (2018). Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children in its definition of trafficking at Article 3(a) notes the overlapping elements of trafficking with forced labour, sexual slavery and servitude amongst other international crimes. Note that the Rome Statute also takes account of the overlapping elements of the Rome Statute offence of enslavement and trafficking i.e. footnote 18 to the Rome Statute Elements of the Crime of Enslavement as a crime against humanity addressing the deprivation of liberty associated with enslavement states: “It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element [of the crime against humanity of enslavement] includes trafficking in persons, in particular women and children (emphasis added).” 56 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children Article 3(b) “The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used. . .(emphasis added)” That is; where the trafficker employed mechanisms such as abduction and coercion in the “recruitment, transportation, transfer, harbouring or receipt of persons” (the trafficked children); the purported consent then of the children to their exploitation for child soldiering and the activities associated with child soldiering that could have 55

2.3 The Child Collective as a Distinct Separable Specially Protected Group. . .

25

furthermore, as will be recalled, significant duress is a defence to having committed international crimes (Rome Statute Article 31 (d)(i)(ii) stipulating, for instance, that duress arising from the existence of oppressive or coercive circumstances also excludes criminal responsibility for the international crimes at issue). The oppressive circumstance of being forcibly transferred, enslaved/trafficked children child soldiering for ISIL or any other perpetrator group; an armed group committing mass atrocity, certainly meets the Rome Statute bar, it is here argued, for children operating under ‘oppressive circumstances.’ Note that ‘child’ is defined as person under age 18 in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children Article 3(d)57 However, there is no specified definitive age range for the term ‘child’ or the term ‘minor’ in IHL or CIL and, under IHRL, there is no definitive universal age of majority in respect of every area of the law applicable.58 At the same time; it is the case that children of age under 15 years are explicitly accorded certain special protections under particular provisions of the Geneva Convention IV (GC IV) and under the Protocols I and II additional to the 1949 Geneva Conventions. Age range for ‘child’ hence is stipulated in certain articles of the GC IV and Protocols I and Protocol II additional to the 1949 Geneva Conventions. Nonetheless it is also the case that ‘children’ of undefined age range, ‘minors’; are also afforded special protections in certain other selected provisions of GC IV (applicable in international armed conflict contexts) and Additional Protocols I and II to the 1949 Geneva Conventions (applicable in international and non-international armed conflict contexts respectively).59 It is for that reason that the International Committee of the Red Cross (hereafter also referred to as the ICRC) holds that the assumption should be made that if an age of 15 or younger is specified in an IHL/CIL provision; this refers to the age range standard at a minimum for special protection entitlement in relation to the matter covered in the specific Convention provision. The latter, according to the ICRC commentary, then does not obviate the obligation to give priority to the protection of children generally during armed conflict including also children over 15 years (persons under 18).60 Further that protection of children also over 15 is to be regarded as all the more imperative the more critical the child’s interest at stake

included committing international atrocity crimes is irrelevant to a determination as to whether the child was trafficked and performing forced labor for which the child could not be held responsible. 57 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children Article 3(b). 58 International human rights law generally defines a child as a person under 18 years except where the law applicable to the child sets the age of majority earlier i.e. see Article I of the Convention on the Rights of the Child (1990). 59 International Committee of The Red Cross 1958 Commentary on Geneva Convention IV Relative to the Protection of Civilians in Time of War (August 12, 1949) in relation to the protection of children. 60 Plattner (1984).

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addressed in the IHL/CIL provision at issue.61 It is to be noted, as is discussed in Chap. 6, that the State practice as endorsed, in principle at least, by many States currently is to prevent and punish armed groups in regards to their recruitment and use of children under 18 for direct participation in armed hostilities (see the Optional Protocol to the Convention on the Rights of the Child (CRC) on the Involvement of Children in Armed Conflict62 Article 4(1) (2)). The same Optional Protocol to the CRC stipulates also that the States Parties shall take all feasible measures to prevent the direct participation in armed hostilities of child soldiers under 18 who are members of the State armed forces (Article 1). The aforementioned CRC Optional Protocol has been ratified by 170 States Parties as of January 9, 2021.63 It is a legally permissible inference from IHL/CIL rules 135–137, it is here contended in addition, that it is a violation of IHL/CIL for a non-State armed group or State armed force committing mass atrocities (i.e. non-State armed group such as ISIL) to ‘recruit’ or recruit and use children—persons under 18—as child soldiers. Such an armed group or force committing mass atrocity is obviously not adhering to IHL/CIL and therefore has, in the first instance, no right under the international law of wars (IHL/CIL) to recruit to that cause and its’ fighters no right to participate in the armed hostilities; whether in the context of an international or non-international conflict. This, on the view here, is the implication of Article 43(1) (2) of Protocol I to the 1949 Geneva Conventions.64 Though that Protocol applies specifically to international conflicts, it is here argued that Article 43(1)(2), in stipulating that a ‘combatant’ must be part of an armed entity adhering to IHL/CIL65 (the term ‘combatant’ used for our purposes on this point here only in the generic, everyday sense of ‘fighter’); set out an essential requirement to what constitutes lawful engagement in armed hostilities that is generalizable also to non-international armed conflicts. Furthermore the involvement of children with such an armed group or force committing mass atrocities constitutes, in itself, torture and cruel treatment of the child (person under 18) involving (1) mental torture in being coerced by a variety of factors to commit and witness atrocity and (2) physical torture through brutal

61 International Committee 1987 Commentary on Protocol II to the August 12, 1949 Geneva Conventions Article 4(3) (June 8, 1977) See also the International Committee 1987 Commentary on Protocol I to the August 12, 1949 Geneva Conventions (Article 77) (June 8, 1977). 62 Optional Protocol to the Convention on the Rights of the Child (CRC) on the Involvement of Children in Armed Conflict https://www.ohchr.org/en/professionalinterest/pages/opaccrc.aspx. 63 UN Treaty Collection: Ratification of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict https://treaties.un.org/Pages/ViewDetails. aspx?src¼TREATY&mtdsg_no¼IV-11-b&chapter¼4&clang¼_en. 64 Protocol I Additional to the 1949 Geneva Conventions Article 43 (1)(2) https://ihl-databases.icrc. org/ihl/INTRO/470. 65 “Such armed forces shall be subject to an internal disciplinary system which, ‘inter alia’, shall enforce compliance with the rules of international law applicable in armed conflict.” Protocol I Additional to the 1949 Geneva Conventions Article 43(1)(2) https://ihl-databases.icrc.org/ihl/ INTRO/470.

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27

physical punishments as discipline and physical and mental maltreatment in the course of so-called ‘military’ training. Protocol II additional to the 1949 Geneva Conventions (applicable in non-international armed conflicts) Article 4(3) begins: “Children’ [age intentionally left undefined and according to ICRC commentary presumed therefore to be referring in the opening sentence to under 18s]66 shall be provided with the care and aid they require. . .(emphasis added)”67 Protocol II additional to the 1949 GCs Article 4(3) thus does not authorize the recruitment of children over 15 or their use in any capacity by an armed group or force let alone one committing mass atrocity and also otherwise one exposing the children to cruel and even torturous treatment. This is evinced by the provision’s opening sentence which stipulates instead the broad obligation to provide children with the care and aid they require while not presenting an age range for the term ‘child’ in that opening line. Protocol II Article 4(3) simply dealt with the realities on the ground at the time of the Protocol’s drafting setting out explicitly undoubtedly an inadequate minimum guideline for humanitarian treatment of children in respect of protection from recruitment and/or use of children under 15 for active participation in armed conflict. This approach was no doubt adopted (1) given the constraints imposed by the realties in respect of the widespread recruitment and use of children in armed conflict (both those under and over age 15)68 and (2) the urgent need for State Party co-operation regarding Protocol II ratification which was much more likely with what the ICRC considered the minimum standards for child protection advanced. Increasingly the prohibition against the recruitment and/or use of children under 15 for active participation in armed conflict (see i.e. Protocol II Article 4(3)(c)) has come to be viewed by many States as falling below an acceptable minimum standard of humanitarian protection for children in the context of armed conflict.69 Indeed the ICC 66

Protocol II Additional to the 1949 Geneva Conventions Article 4(3). International Committee 1987 Commentary on Protocol II to the August 12, 1949 Geneva Conventions Article 4(3) (June 8, 1977). 68 It should be understood that once children are recruited by non-State armed forces committing atrocities the likelihood of their being used directly in the conflict is very high. A 2003 UNICEF survey referred to by Haer, R and Bohmelt, T (2015) reported that 90% of the child soldiers recruited by rebels reported in that survey that they had been actively involved in the hostilities (Haer and Bohmelt 2015, pp. 153–173 at p. 5). 69 Recognizing that setting the prohibition against age of recruitment and use of children for direct or active participation in armed hostilities at 15 is inadequate; there is perhaps in recent years a movement of States toward accepting a new emerging IHL/CIL norm in this regard offering children better protection. This is reflected in part in the entry into force of the ‘Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict’ which states at Article I: “States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities (emphasis added)”; at Article 2 that “States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces (emphasis added)”and at Article 4(1) that “Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years” and at Article 4 (2) that “the State shall take all feasible measures to prevent such recruitment and use. . . including legal measures necessary to prohibit and criminalize such practices (emphasis added).” In addition 67

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2 International Atrocity Crimes Targeting Children and Lacunae in Charging. . .

Office of the Prosecutor’s 2016 ‘Policy on Children’ itself construed “. . .the recruitment-or-use age of under 15 not as a definition but rather as a statutory element that confers ICC jurisdiction over a specific war crime”;70 an interpretation here also adopted. Note that several States’ military manuals prohibit the use of children71 in armed conflict72 and also in non-international conflict and several also have legislation prohibiting the same.73 The special respect and protection owed to children (persons under 18) affected by armed conflict under IHL/CIL rule 13574 (“Children affected by armed conflict Article 3(1) of the ‘Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict’ set out that States shall raise the minimum age for voluntary recruitment of children into the national armed forces “. . .from that set out in article 38, paragraph 3, of the Convention on the Rights of the Child” (which age is 15) while “recognizing that under the Convention [Convention on the Rights of the Child] persons under the age of 18 years are entitled to special protection.” (Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, entry into force February 12, 2002). To the same point regarding protection of the child collective from recruitment and use for active participation in armed conflict; the UN Secretary-General has announced a minimum age requirement for soldiers involved in UN peacekeeping missions and has asked States to send in their national contingents soldiers preferably not younger than 21 years of age and in no case less than 18 (see United Nations Secretary-General Decides to Set Minimum Age Requirements for UN Peacekeepers, Press Release SG/SM/6777/PKO/79 (October 29, 1998). Further the Convention on the Worst Forms of Child Labour lists compulsory recruitment of children and their use in armed conflict (children as persons under 18) as one of the worst forms of child labor (akin to forced labor) that States must endeavour to prevent (Article 3 (a) and 4 (1)). By August 2020 all 187 State members of the ILO had ratified the Convention on the Worst Forms of Child Labour (Wurth, M (2020) Historic commitment to end worst forms of child labour (Human Rights Watch report August 5, 2020 https://www.hrw.org/ news/2020/08/05/historic-commitment-end-worst-forms-child-labor#). Eighteen years old is also the minimum age-limit used in the African Charter on the Rights and Welfare of the Child (entry into force 1999) for soldiering. Recruitment and use of children for direct participation in armed conflict is prohibited at African Children’s Charter (Article 22(2) with ‘child’ being defined as persons under age 18 years). 70 ICC Office of the Prosecutor Policy on Children (2016), p. 542. 71 That is in reference to however ‘child’ is defined in terms of age range in the particular military manual. 72 Note that the Rome Statute war crime regarding the use of children for participation in armed hostilities is intended to “cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase or the use of domestic staff in an officer’s married accommodation. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included within the terminology.” Committee of the International Red Cross, Henckaerts, Jean-Marie and DoswaldBeck, Louise Customary International Law Volume I: Rules (Cambridge University Press, 2005), p. 487. 73 Committee of the International Red Cross, Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Law Volume I: Rules (Cambridge University Press, 2005), p. 486. 74 The ICRC has interpreted that special respect and protection of children affected by armed conflict to include: “protection against all forms of sexual violence (see also Rule 93); separation from adults while deprived of liberty, unless they are members of the same family (see also

2.3 The Child Collective as a Distinct Separable Specially Protected Group. . .

29

are entitled to special respect and protection.”),75 it is here argued, extends to the post conflict period as well insofar as their right to justice is concerned. That is the special respect for children affected by armed conflict must include, on the view here, realization of the children’s right, as members of a child collective victim and as individual victims, to justice in the form of accountability of the perpetrators also for their carrying out of age-based persecution of children. However to date the prosecutors of various international criminal tribunals/courts as we have been discussing have not pursued charges of age-based persecution targeting children where the evidence for the same existed.

2.3.2

The Scope of the Privileges Children Enjoy Under Article 77 Protocol I and Article 4(3) Protocol II to the August 12, 1949 Geneva Conventions

Protocol I additional to the 1949 Geneva Conventions (applicable to international armed conflicts) sets out the obligations to children at Article 77. That article sets out the following special protections for children: 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.76 2. The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest. 3. If, in exceptional cases, despite the provisions of paragraph 2, children who have not attained the age of fifteen years take a direct part in hostilities and fall into the power of an adverse Party, they shall continue to benefit from the special protection accorded by this Article, whether or not they are prisoners of war.

Rule 120); access to education, food and health care (see also Rules 55, 118 and 131); evacuation from areas of combat for safety reasons (see also Rule 129); reunification of unaccompanied children with their families (see also Rules 105 and 131). Committee of the International Red Cross (2005), Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Law Practice Volume I: Rules Cambridge: Cambridge University Press at p. 481 75 Committee of the International Red Cross (2005), Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Law Practice Volume I: Rules Cambridge: Cambridge University Press, p. 479. 76 The words “for any other reason” in para one Article 77 Protocol I additional to the 1949 Geneva Conventions refers, according to the 1987 ICRC commentary, to children who are physically and/or intellectually disabled and hence especially vulnerable. ICRC 1987 Commentary on Article 77 Protocol I additional to the 1949 Geneva Conventions https://ihl-databases.icrc.org/applic/ihl/ihl. n s f / C o m m e n t . x s p ? a c t i o n ¼o p e n D o c u m e n t & documentId¼8E174BC1926F72FAC12563CD00436C73.

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2 International Atrocity Crimes Targeting Children and Lacunae in Charging. . . 4. If arrested, detained or interned for reasons related to the armed conflict, children shall be held in quarters separate from the quarters of adults, except where families are accommodated as family units as provided in Article 75, paragraph 5. 5. The death penalty for an offence related to the armed conflict shall not be executed on persons who had not attained the age of eighteen years at the time the offence was committed (emphasis added).77

The Protocol I introductory lines according children special respect and protection, care and aid do not include an age range for the term ‘children’. According to ICRC commentary, the term ‘children’ thus should be interpreted as referring to persons under 18 except if a paragraph specifies otherwise.78 The opening lines of Protocol II convey the same guidance and obligation as to providing children affected by armed conflict the care and aid they require. Other Protocol II provisions mirror some of the admonitions/prohibitions regarding recruitment and use of young children for active participation in armed hostilities as contained in Protocol I. Article 4(3) of Protocol II additional to the 1949 Geneva Convention in full reads as follows: 3. Children shall be provided with the care and aid they require, and in particular: (a) they shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care; (b) all appropriate steps shall be taken to facilitate the reunion of families temporarily separated; (c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities; (d) the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured; (e) measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being (emphasis added).79

The 1987 ICRC commentary on Article 4(3) of Protocol II sets out that it is due to the special vulnerability of children that (1) they require and are entitled under IHL/CIL to “privileged treatment” over and above that owed to civilians in general and (2) as a result “enjoy specific legal protection” as children (being protected as a

77

Protocol I Additional to the August 12, 1949 Geneva Conventions Article 77. [Referring to para one of Article 77] The word “children” is not clarified in any way, and this omission is intentional. The Rapporteur said: “It should also be noted that the Committee decided not to place specific age limits in paragraphs 1 and 4 and that there is no precise definition of the term “children””. ICRC 1987 Commentary on Article 77 Protocol I addition to the 1949 Geneva Conventions https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp? action¼openDocument&documentId¼8E174BC1926F72FAC12563CD00436C73. 79 Protocol II to the August 12, 1949 Geneva Conventions Article 4(3) (June 8, 1977). 78

2.3 The Child Collective as a Distinct Separable Specially Protected Group. . .

31

child collective ‘as such’ or as individual members of the child collective).80 It is important to understand, as the ICRC commentary on Protocol II Article 4 (3) (addressing the special obligations owed to children under IHL/CIL) points out, that Article 4(3) does not set out an exhaustive definitive list of such obligations to children during armed conflict. Rather the list of obligations to children set out at Article 4(3) Protocol II additional to the 1949 Geneva Conventions are illustrative only. This, the ICRC commentary notes, is indicated by the words “in particular” in the opening line of Article 4(3) Protocol II. Note also that, as the ICRC commentary highlights, the opening line of Article 4(3) Protocol II makes the duty to children to provide them the care and aid they require during armed conflict a mandatory obligation not a discretionary one as indicated by the use of the term “shall”. The ICRC commentary makes clear that the obligation to children during armed conflict is broad and encompasses also “ensuring that they develop as normally as circumstances permit.”81 In the latter regard then Article 4(3) of Protocol II additional to the 1949 Geneva Conventions sets out the obligation, for instance, to provide the child continuity in their education and moral education such as is feasible in the circumstance and to work toward reuniting families. Protocol II additional to the 1949 Geneva Conventions at Article 4(3)(d) sets out that the special protections to be accorded to children under 15 during non-international armed conflict are still to be accorded to them even if they have taken direct part in hostilities and have been captured. Put more broadly; the age specification of under 15 at Protocol II Article 4(3)(c) is intended as an explicit statement of the obligation to treat under 15s as vulnerable children in need of protection in all circumstances. The inclusion in Protocol II Article 4(3)(c) of an explicit bar on the recruitment and use of children under 15 for active participation in armed hostilities is an enhancement of the Protocol I Article 77 (2) obligation for States Parties simply to “take all feasible measures” to prevent the use of children under 15 for active participation in the hostilities. The age specification at Article 4(3)(c) Protocol II additional to the 1949 Geneva Conventions was not intended to communicate that it is consistent with the general obligations under Protocol II Article 4(3)—to accord children [age undefined] the care and aid they require—that children 15 and over be treated and regarded as adults if they took direct part in hostilities and were captured. Rather the ICRC commentary on Protocol II additional to the 1949 Geneva Conventions Article 4 (3) conveys that children are to be regarded, in the first instance, as children. Hence the protection of children as a collective/a class of persons distinguished by age is, per Protocol II Article 4(3), to be among the priority considerations for the belligerents with (1) age to be interpreted as less than 18 years where the age range for ‘child’ or ‘minor’ is not specified in an IHL/CIL provision at issue; (2) due

80

International Committee 1987 Commentary on Protocol II to the August 12, 1949 Geneva Conventions Article 4(3) (June 8, 1977). 81 International Committee 1987 Commentary on Protocol II to the August 12, 1949 Geneva Conventions Article 4(3) (June 8, 1977).

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consideration given to the protection needs also of children 15 and over even if a provision explicitly only refers to children under 15, and with (3) the understanding that such consideration for children 15 and over is to be regarded as even more imperative where the protection needs of the child addressed in a particular Geneva Convention or additional protocol provision at issue are especially compelling given the vital interests at stake. The fact that children under 15 who took direct or active part in armed hostilities and were captured are entitled at that time to all the same special protections as children who did not take active part in hostilities (per Article 4(3)(d) of Protocol II additional to the 1949 Geneva Conventions) supports the interpretation that children under 15 falling into both of these status categories (children who did not take part in hostilities and children now factually hors de combat) are to be regarded under IHL/CIL as in effect holding the legal status under IHL/CIL of specially protected ‘civilians’ and not ‘combatants’ or ‘ex-combatants.’ 82 Indeed [n]one of the rules which identify such special protection [for children; persons under eighteen] provide for an exception in the event that children have taken part in hostilities.83 In addition, none of the practice supporting the prohibition of the participation of children in hostilities provides that they should be deprived of their special protection if they do participate in hostilities.84

Combatant status, according to IHL/CIL and ICRC commentary, in the first instance is only available to members of the State armed forces of a party to the 82 Though children taking a direct part in hostilities, whether in international or non-international armed conflict are, under IHL/CIL legally and technically civilians; in practice the ICRC has held that such a child who poses a risk to life or limb of members of an armed force or group (whether in international or non-international conflict) may become a legitimate target for attack for the duration of the time the child poses the risk. Military manuals generally reference situations where the child soldier poses an imminent risk. Of course deciding what is an imminent risk is a judgment call for unit commanders and other fighters on the battlefield and this creates great confusion in theatre (recall that technically combatant forces are recognized as such in part in that they adhere to IHL/CIL rules (Protocol I to the 1949 Geneva Conventions, Article 43). Hence it is highly problematic that though child soldiers are in fact civilians with special protections under IHL/CIL; in practice, according to military manuals for various combatant armed forces of democratic States, they can, under the exception mentioned, become legitimate targets for a time-limited period. Presumably the same practice would lawfully apply for non-state armed groups that adhere to IHL/CIL. 83 Recall that using children ‘to participate actively’ in hostilities is terminology that appears in the ICC elements of the war crime of the recruitement and use of children under 15 for active participation in armed conflict. The participation element refers, according to ICRC commentary, to direct combat activities but also encompasses military activities supportive of combat in terms of functions such as spying, sabotage, acting as a decoy etc. but does not include functions unrelated to combat such as, for instance, domestic services. Committee of the International Red Cross, Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Law Volume I: Rules (Cambridge University Press, 2005), p. 487. Of course the aforementioned distinctions between child active participation in hostilities and activities that are not combat supportive functions are arguably somewhat arbitrary. 84 Committee of the International Red Cross, Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Law Volume I: Rules (Cambridge University Press, 2005), p. 487.

2.3 The Child Collective as a Distinct Separable Specially Protected Group. . .

33

conflict in the context of international armed conflict.85 Thus both children and adults would not qualify for combatant status in the context of non-international armed conflict. However, more to the point in respect of children and their IHL official status in armed conflict more generally is the fact that children do not enjoy an ‘unqualified right’ to actively participate in armed conflict (international or non-international) unlike those who enjoy the privilege of combatant status under IHL /CIL rules. That privilege allows one to be designated a ‘prisoner of war’ if captured with attendant certain protections under IHL given that status. This is articulated at Article 43(2) Protocol 1 to the 1949 Geneva Conventions: “Members of the armed forces of a party [State Party] to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.”86 Children acting as so-called child soldiers, however, is contrary to IHL/CIL rules 136 and 137 prohibiting the recruitment (including through enlistment) and/or use of children in armed conflict. The fact that children, unlike adult ‘combatants’, (as that latter term is technically used as a legal status under IHL/CIL) have no unqualified right to actively participate in armed hostilities is also reflected in some of the restrictions placed explicitly on the use of children in that regard i.e. Protocol II additional to the 1949 Geneva Conventions prohibits the use of under 15s for active participation in armed hostilities while international human rights law has expanded protections against child soldiering in some important respects to under 18s (i.e. protection against compulsory recruitment by State armed forces as well as certain other protections are articulated at Article 4 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.87 Also several other protections for under 18s are stipulated in certain IHL convention provisions i.e. in the Geneva Convention IV Article 51 prohibits using persons under 18 for forced labour: The Occupying power may not compel protected persons to work unless they are over eighteen years of age, and then only on work which is necessary either for the needs of the power of occupation, or for the public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country88

Article 51 of Geneva Convention IV it can reasonably be contended then protects children under 18 from forced labour in the form of child soldiering for an Occupying Power. This in that it articulates a general prohibition against forced labour for under 18s and permits forced labor for over 18s only in providing services that are directed to humanitarian efforts in meeting basic needs for the Occupying power and/or the civilian population in the territory occupied.

85

Henckaerts and Doswald-Beck (2005). Protocol I Additional to the 1949 Geneva Conventions Article 43(2). 87 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, entry into force February 12, 2002. 88 Geneva Convention IV Article 51. 86

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Note that though child soldiers, not having been ‘combatants’ under the IHL criteria, cannot properly be designated as ‘prisoners of war’ if captured; they nonetheless are entitled in any case to a high duty of care and protection as children under IHL/CIL rules 135–137 and to be treated at a minimum as if prisoners of war.89 Consider further the following excerpt on the mis-identification often in scholarly legal literature of ‘child soldiers’ as ‘combatants’ (the latter term as used in the sense of a particular legal status under IHL/CIL): It is essential . . .to highlight the fact that the term ‘child soldier’ . . .is not equivalent to the term ‘child combatant’. . . children involved in armed conflict (so-called ‘child soldiers’) are in fact not (child) ‘combatants’. This is the case given the meaning of the term ‘combatant’ under international law. That meaning is not to be confused with the meaning in common parlance which refers simply to being a fighter. The term ‘combatant’ . . .as defined in international law, denotes someone who: a) is not a (protected) civilian and b) has an unqualified right to directly participate in hostilities and whose participation is therefore lawful (Article 43, Protocol I to the 1949 Geneva Conventions (1977). The term ‘child soldier’, in contrast, as defined under the Cape Town Principles (1977), reveals nothing about whether the child’s involvement is, or is not, in accord with international law provisions regarding the involvement of children in armed conflict.90

In summary then any distinction between (1) captured so-called ‘child soldiers’ under 15 who actively participated in armed hostilities and (2) children who did not take part in the armed conflict but were affected by it91 is, to a large extent, a false dichotomy. This is the case insofar as the dichotomy purports to distinguish between these groups of children as to (1) their right to access special protection; that is specifically erroneously considering child soldiers under 15 who actively participated in the armed hostilities to be precluded from entitlement to the same level and range of special protections as children who did not participate even when the child 89 ICRC Commentary: “. . .there is no age-limit for the right to such treatment. Theoretically prisoners of war may be very young or very old. However, according to Article 16 of the Third Convention, age is a factor which justifies privileged treatment.” (ICRC 1987 Commentary on Protocol I additional to the 1949 Geneva Convention provision Article 77(3) regarding the right of under 15s who did take active part in hostilities to special protection if captured by the adversary). 90 Grover (2008), pp. 53–65 at p. 54. 91 SELECTED EXAMPLES OF MODES BY WHICH CHILDREN ARE AFFECTED AS VICTIMS OF ATROCITY INTERNATIONAL CRIMES Witnessing violence Experienced death in the family Witnessed someone being injured or killed Was threatened with death Believed they would die Witnessed mutilations Witnessed rape or other sexual violence (1996) Exposure to war saw dead bodies or parts of bodies Witnessed massacre Hid for protection Adapted from UNICEF (1996) Exposure to war-related violence among Rwandan children and adolescents: A brief report on the National Baseline Trauma Survey (prepared by Leila Gupta) Chart reproduced in the report by Amnesty International UK (1999).

2.4 Factors That Facilitate the Potential Accountability for Violations of IHL/CIL

35

soldiers are factually hors de combat or (2) their victim versus non-victim status. Both groups are, under IHL/CIL, regarded as qualifying for special protections as ‘children’ (individually and as a collective) and as ‘civilians’(i.e. see Protocol II to the 1949 Geneva Conventions, Article 4(3)). As to children who actively participated in armed conflict; they are also considered as victims. This in that the use of children to actively participate in hostilities violates fundamental IHL/CIL rules and is regarded, moreover, as a form of grievous victimization92 especially where the armed group or force is committing mass atrocity international crimes. There has been a failure of the prosecutor of the ICC and of other international criminal courts/tribunals to in practice acknowledge and charge ‘age-based persecution’ of the child collective ‘as such’ in connection with genocide and/or crimes against humanity and/or war crimes. This has made it easier for some legal and social science scholars of the topic of ‘child soldiers’ to, on the respectful view here, ‘blame the victim’ when it comes to child soldiers who have committed atrocities as members of an armed group or force perpetrating mass atrocities. This by, at times, attributing to the individual traumatized child a tactical agency to resist, and purported opportunity for the same as something other than the exception in the given circumstance. On the view here, in contrast, systematic perpetrator efforts to recruit children and use them for direct participation in the armed hostilities and for commission of atrocity international crimes in the midst of, for instance, massacres and other heartless attacks on civilians implicate the oppressive conditions referred to in Article 31(d) of the Rome Statute which states: In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct: . . .The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control.93

2.4

Factors That Facilitate the Potential Accountability for Violations of IHL/CIL

Accountability for violations of customary international law is, in legal theory at least, as per a norm of CIL, not constrained by statutes of limitations.94 That is statutes of limitations are inapplicable to transgressions of IHL/CIL violations

92 Office of the Special Representative of the Secretary-General for Children and Armed Conflict The Six Grave Violations [Against Children] https://childrenandarmedconflict.un.org/six-graveviolations/. 93 Rome Statute Article 31(d), entry into force July 1, 2002. 94 International Committee of the Red Cross International Humanitarian Law Database: Practice Volume II, IHL Rule 160 ‘Statutes of Limitations may not apply to war crimes’.

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involving war crimes, whether committed during international or non-international armed conflict and inapplicable also to crimes against humanity and genocide.95 The inapplicability of statutes of limitations to these international atrocity crimes is set out in the UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity at Article 1: No statutory limitation shall apply to the following crimes, irrespective of the date of their commission: (a) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the “grave breaches” enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims; (b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed 2 by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide,96 even if such acts do not constitute a violation of the domestic law of the country in which they were committed.97

These international crimes are considered so heinous and such an offence to the international community that statutes of limitations are set aside to help facilitate accountability for such crimes. Thus the accountability of perpetrators for violations of IHL/CIL constituting the crime against humanity of ‘age-based persecution of children’ in connection with war crimes, crimes against humanity and/or genocide is also, it is here contended, a live issue for those perpetrators surviving who have not yet been held accountable for this international crime targeting children. Further accountability is potentially facilitated by the fact that customary international law is enforceable by the courts as ‘accepted law’ (i.e. by domestic courts, international courts and tribunals) and hence, universal jurisdiction for prosecution, in principle, if not often in practice, applies.98 Further accountability for violations of a wellestablished CIL norm especially where jus cogens is arguably shielded from a defence of purported retroactive application of the law where it is held that the 95

See the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity and the 1974 European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes. 96 Convention on the Prevention and Punishment of the Crime of Genocide, entry into forc January 12, 1951. 97 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, entry into force: 11 November 1970 Article 1 https://www.un.org/en/ genocideprevention/documents/atrocity-crimes/Doc.27_convention%20statutory%20limitations% 20warcrimes.pdf. 98 For instance, the International Court of Justice Statute stipulates that: “. . .international custom” is to be regarded as “evidence of a general practice accepted as law” Statute of the International Court of Justice Article 38(1)(b) https://www.icj-cij.org/en/Statute.

References

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perpetrators knew or should have known of their criminal liability for these violations.99

References Literature Goodwin-Gill G, Cohn I (1994) Child soldiers--the role of children in armed conflict. Oxford University Press, Oxford Grey R, O’Donohue J, Krasny L (2018) Evidence of sexual violence against men and boys rejected in Ongwen. Guest Opinion Piece for Amnesty International, 10 April 2018. https://hrij.amnesty. nl/evidence-sexual-violence-men-boys-rejected-ongwen. Accessed 7 Jan 2021 Grey R, Oosterveld V, Orsini R (2020) The ICC’s troubled track record on sexual and gender-based crimes continues: The Yekatom and Ngaissona case. http://opiniojuris.org/2020/07/03/the-iccstroubled-track-record-on-sexual-and-gender-based-crimes-continues-the-yekatom-ngaissonacase-part-2/. Accessed 20 Dec 2020 Grover SC (2008) ‘Child Soldiers’ as ‘Non-Combatants’: the inapplicability of the refugee convention exclusion clause. Int J Hum Rights 12(1):53–65 Grover SC (2010) The European Court of Human Rights as a pathway to impunity for international crimes. Springer, Berlin Haer R, Bohmelt T (2015) The impact of child soldiers on rebel groups’ fighting capacities. Confl Manag Peace Sci 33(2):153–173 Henckaerts J-M, Doswald-Beck L (2005) ICRC commentary on IHL/CIL rule 3: definition of combatants. In: Customary international law, Vol 1: rules. Cambridge University Press, Cambridge Oosterveld V (2006) Gender, persecution and the International Criminal Court: refugee law’s relevance to the crime against humanity of gender-based persecution. Duke J Comp Int Law 17:49–89 Plattner D (1984) Protection of children in international humanitarian law. International Review of the Red Cross, June 30, No. 240, https://www.icrc.org/en/doc/resources/documents/article/ other/57jmat.htm. Accessed 7 Jan 2021

Materials Additional Protocol II to the August 12, 1949 Geneva Conventions https://www.ohchr.org/en/ professionalinterest/pages/protocolii.aspx (accessed January 30, 2021) African Charter on the Rights and Welfare of the Child (as of December 20, 2020) ratified by 49 State members of the African Union). https://www.acerwc.africa/wp-content/uploads/2018/

99

Streletz, Kessler and Krenz v Germany case was heard by the Grand Chamber of the European Court of Human Rights. In part the Grand Chamber held that a State practice such as the East German border policy of shoot to kill anyone trying to flee from East to West Germany thus violating the right to life cannot be defended under Article 7(1) of the European Convention barring retroactive application of the law as such policy cannot be considered ‘law’. (European Court of Human Rights, Grand Chamber judgment of March 22, 2001 in the case of Streletz, Kessler and Krenz v Germany (App. Nos. 34044/96,35532/97, & 44801/98.49 ILM 811 (2001)), para 87 available at http://www.echr.coe.int/Eng/Judgments.htm See also the discussion of the case in Grover (2010), pp. 207–230.

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06/African_Children_Charter_Website_Version_English_2015.pdf (accessed December 30, 2020) Amnesty International UK (1999) In the firing line: War and children’s rights (London: Amnesty International) Coalson R (2013) What’s the difference between crimes against humanity and genocide The Atlantic (March 19, 2013) file:///C:/Users/sgrover/Desktop/What’s%20the%20Difference% 20Between%20’Crimes%20Against%20Humanity’%20and%20’Genocide_’%20-%20The% 20Atlantic.html (accessed January 1, 2021) Committee of the International Red Cross (2005), Henckaerts, JM and Doswald-Beck, L. Customary International Law Practice Volume I: Rules. Cambridge: Cambridge University Press Convention on the Prevention and Punishment of the Crime of Genocide, entry into force: 12 January 1951. https://www.ohchr.org/en/professionalinterest/pages/crimeofgenocide.aspx (accessed January 10, 2021) Convention on the Rights of the Child, entry into force September 2, 1990. https://www.ohchr.org/ en/professionalinterest/pages/crc.aspx (accessed September 7, 2020) Convention on the Worst Forms of Child Labour (1999) entered into force November 19, 2000. https://www.ilo.org/dyn/normlex/en/f?p¼NORMLEXPUB:12100:0::NO::P12100_ILO_ CODE:C182 (accessed January 30, 2021) Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 (Statutes of Canada) Assented to 2000-06-29 “An Act respecting genocide, crimes against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, and to make consequential amendments to other Acts.” file:///C:/Users/sgrover/Desktop/Crimes%20Against%20Humanity %20and%20War%20Crimes%20Act.html (accessed January 6, 2021) European Convention on Human Rights and Fundamental Freedoms, entered into force 1950. https://www.echr.coe.int/documents/convention_eng.pdf (accessed January 6, 2021) Geneva Convention IV:Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. https://ihl-databases.icrc.org/ihl/INTRO/380 (accessed January 6, 2021) Human Rights Watch (2017) They said we are their slaves: Sexual violence by armed groups in the Central African Republic https://www.hrw.org/report/2017/10/05/they-said-we-are-theirslaves/sexual-violence-armed-groups-central-african (accessed January 2, 2021) ICC Policy on Children (2016). https://www.icc-cpi.int/iccdocs/otp/20161115_otp_icc_policy-onchildren_eng.pdf (accessed December 30, 2020) International Committee of The Red Cross (ICRC) 1958 Commentary on Geneva Convention IV Relative to the Protection of Civilians in Time of War (August 12, 1949) in relation to the protection of children https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/475? OpenDocument (accessed December 30, 2020) International Committee of the Red Cross (ICRC) 1987 commentary on Protocol II to the Geneva Conventions https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/475?OpenDocument (accessed December 30, 2020) International Committee of the Red Cross (ICRC) 1987 Commentary on Protocol I to the August 12, 1949 Geneva Conventions (June 8, 1977). https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ INTRO/475?OpenDocument (accessed January 8, 2021) International Committee of the Red Cross (ICRC) International Humanitarian Law Database: Practice Volume II, IHL Rule 160 ‘Statutes of Limitations May Not Apply to War Crimes’ https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule160 (accessed January 10, 2021) International Committee of the Red Cross (ICRC) (1990) Dutli, M.T. Captured Child Combatants, International Review of the Red Cross, No. 278 https://www.icrc.org/en/doc/resources/ documents/article/other/57jmea.htm (accessed January 8, 2021) International Court of Justice Statute. https://www.icj-cij.org/en/Statute (accessed January 8, 2021)

References

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Inter-American Court of Human Rights, Advisory Opinion Oc-17 2002 of August 28, 2002, Requested by the Inter-American Commission on Human Rights, Juridical Condition and Human Rights of the Child https://www.refworld.org/cases,IACRTHR,4268c57c4.html (accessed December 30, 2020) Legal Information Institute, Cornell Law School Article, Rome Statute of the International Criminal Court, 7(1)(h). https://www.law.cornell.edu/women-and-justice/resource/rome_statute_of_the_ international_criminal_court_article_7(1)(h) (accessed January 1, 2021) Office of the Special Representative of the Secretary-General for Children and Armed Conflict. The Six Grave Violations [Against Children]. https://childrenandarmedconflict.un.org/six-graveviolations/ (accessed January 9, 2021) Optional Protocol to the Convention on the Rights of the Child on a communications procedure, entered into force April 14, 2014. https://www.ohchr.org/en/professionalinterest/pages/opiccrc. aspx (accessed December 30, 2020) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, entry into force February 12, 2002. https://www.ohchr.org/en/ professionalinterest/pages/opaccrc.aspx (accessed October 6, 2020) Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, entered into force on 18 January 2002. https://www.ohchr. org/EN/ProfessionalInterest/Pages/OPSCCRC.aspx (accessed December 30, 2020) Paris Principles: Principles and Guidelines on Children Associated with Armed Forces or Groups (February, 2007). https://www.unicef.org/emergencies/files/ParisPrinciples310107English.pdf (accessed January 30, 2021) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, entered into force December 7, 1979. https://www. ohchr.org/EN/ProfessionalInterest/Pages/ProtocolI.aspx (accessed January 30, 2021) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, entered into force December 7, 1978. https:// www.ohchr.org/en/professionalinterest/pages/protocolii.aspx (accessed January 30, 2021) Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Adopted and opened for signature, ratification and accession by General Assembly resolution 55/25 of 15 November 2000. https://www.ohchr.org/en/professionalinterest/pages/ protocoltraffickinginpersons.aspx (accessed January 7, 2021) Rome Statute, entry into force July 1, 2002. https://www.icc-cpi.int/resource-library/documents/rseng.pdf (accessed September 9, 2020) Rome Statute Elements of the Crime adopted 2010. https://www.icc-cpi.int/NR/rdonlyres/ 336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf (accessed September 9, 2020) Statute of the International Court of Justice (established October 24, 1945). https://www.icj-cij.org/ en/Statute (accessed January 10, 2021) UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, entry into force: 11 November 1970 Article 1 https://www.un.org/en/ genocideprevention/documents/atrocity-crimes/Doc.27_convention%20statutory%20limita tions%20warcrimes.pdf (accessed January 10, 2021) United Nations Office on Genocide and the Responsibility to Protect: Crimes Against Humanity. https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml (accessed January 30, 2021) United Nations Secretary-General Decides to Set Minimum Age Requirements for UN Peacekeepers, Press Release SG/SM/6777/PKO/79 (October 29, 1998) (accessed January 30, 2021) UN Treaty Collection: Ratification of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. https://treaties.un.org/Pages/ ViewDetails.aspx?src¼TREATY&mtdsg_no¼IV-11-b&chapter¼4&clang¼_en (accessed January 9, 2021)

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Wurth M (2020) Historic commitment to end worst forms of child labour (Human Rights Watch report August 5, 2020. https://www.hrw.org/news/2020/08/05/historic-commitment-end-worstforms-child-labor# (accessed January 30, 2021)

Cases Situation in the Central African Republic (CAR) The Prosecutor v Alfred Yekatom and PatriceEdouard Ngaissona ICC Case Information sheet. https://www.icc-cpi.int/ CaseInformationSheets/yekatom-nga%C3%AFssonaEn.pdf (accessed December 16, 2020) Situation in the Central African Republic (CAR) The Prosecutor v Alfred Yekatom and PatriceEdouard Ngaissona, ICC Pre-Trial Chamber II No. ICC-01/14-01/18, Corrected version of ‘Decision on the confirmation of charges against Alfred Yekatom and Patrice-Edouard Ngaïssona, December 11, 2019 (accessed January 9, 2021) Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC-01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement. https://www.icc-cpi.int/itemsDocuments/191107-ntaganda-sentencingjudgment-summary-eng.pdf (accessed December 16, 2020) Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC-01/04-02/06, Trial Chamber VI November 7, 2018 Closing brief on behalf of the Former Child Soldiers. https://www.icc-cpi.int/CourtRecords/CR2018_05215.PDF (accessed January 2, 2021) Streletz, Kessler and Krenz v Germany (App. Nos. 34044/96, 35532/97, & 44801/98.49 ILM 811) (2001), European Court of Human Rights, Grand Chamber judgment of March 22, 2001, para 87. http://www.echr.coe.int/Eng/Judgments.htm (accessed January 10, 2021)

Chapter 3

Age-Based Persecution Targeting Children

3.1

The Failure to Charge Persecution as a Crime Against Humanity Targeting Children

To date there have been ICC charges pursued and convictions obtained for Rome Statute crimes that included affected children as direct victims. This even where children are not explicitly mentioned in the Rome Statute provision setting out the offence i.e. charging sexual violence and gender-based international crimes perpetrated against children in the Ntaganda1 ICC case. Ntaganda was charged and convicted for, amongst other crimes, certain Rome Statute war crimes in connection with sexual violence atrocities committed against children in Ituri district of the Democratic Republic of Congo (DRC)2 in 2002 and 2003 by the Union des Patriotes Congolais (‘UPC’) and its military wing Forces Patriotiques pour la Libération du Congo (‘FPLC’). The latter two groups were both those in which Ntaganda was a member.3 During the relevant period Ntaganda was deputy chief of general staff with the rebel group Patriotic Forces for the Liberation of Congo (FPLC). International sexual violence crimes directed against children-as with other international crimes targeting children as members of a particular distinct child collective-have been to date criminally prosecuted (by international criminal tribunals and the ICC as in Ntaganda) misguidedly as if the individual child victims were targeted 1

Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of July 8, 2019). 2 “The Ituri district of the DRC at the relevant time was home to 3.5 to 5.5 million people and was an area rich in fertile land and natural resources” (Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of July 8, 2019) para 2 at p. 10) “The DRC has nearly 450 different ethnic groups and in Ituri there are 18 including the Lendu and Hema”. (Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of July 8, 2019) para 3 at p. 10). 3 The majority of the UPC/FPLC were of Hema ethnic origin. © Springer Nature Switzerland AG 2021 S. C. Grover, The Persecution of Children as a Crime Against Humanity, https://doi.org/10.1007/978-3-030-75002-2_3

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for reasons completely unrelated to their age-based group identity. These international crimes targeting children thus have not so far been prosecuted also as ‘agebased persecution’ of (i) a particular discrete child collective ‘as such’ or of (ii) individual children based on their particular child group/child collective identity. Note that the particular child group/child collective identity is defined not only in terms of age but also intersecting attributes such as i.e. ethnicity, nationality, religion etc. The perpetrator targets the child victims as children but most often also based on certain intersecting characteristics the children have in common with their group of origin (the larger population/community of which they are a part). Let us then consider the Ntaganda case in some detail as to the charges and the ICC rulings relevant to the issue of the crime against humanity of age-based persecution directed against children.

3.2

3.2.1

Case 1: The Prosecutor v Bosco Ntaganda (ICC Case Regarding International Atrocity Crimes Committed in the DRC 2002–2003) Persecution of the Hema UPC/FPLC Child Soldiers

Nowhere is the distinction between (i) prosecuting international atrocity crimes against children as individuals or groups of individuals per se versus (ii) prosecuting international crimes targeting the child collective ‘as such’ or victimizing individual children or groups of individual children on account of their age-based group identity and intersecting other characteristics illustrated more clearly than in the Ntaganda case. In that case the ICC charges and sentences included but were not limited to: • “rape of civilians as a crime against humanity and as a war crime (Counts 4 and 5): 28 years of imprisonment; • rape of children under the age of 15 incorporated into the UPC/FPLC as a war crime (Count 6):17 years • sexual slavery of civilians as a crime against humanity and as a war crime (Counts 7 and 8):12 years of imprisonment • sexual slavery of children under the age of 15 incorporated into the UPC/FPLC as a war crime (Count 9):14 years of imprisonment • persecution as a crime against humanity (Count 10):30 years of imprisonment”4 [referencing persecution of the Lendu civilian population]

4 Summary of ICC Trial Chamber VI’s sentencing judgment in the case of The Prosecutor v. Bosco Ntaganda, issued on 7 November 2019 at pp. 18–19.

3.2 Case 1: The Prosecutor v Bosco Ntaganda (ICC Case Regarding. . .

43

Note that Ntaganda is the first person convicted by the ICC for sexual slavery. He was sentenced to a total of 30 years on all counts (joint sentence) pertaining to all the crimes for which he was convicted. The question arises as to whether there was in Ntaganda a valid legal basis under the Rome Statute and on the facts for (i) charging rape and sexual slavery as crimes against humanity and also as war crimes as perpetrated against Lendu civilians (including Lendu children) in the context of an attack on a particular collective (the Lendu civilian population) but (ii) prosecuting rape and sexual slavery of Hema children under the age of 15 incorporated into the UPC/FPLC only as war crimes. That is an issue we will address here in a later section. The war crimes charges pertaining to the atrocities committed against the UPC/FPLC child soldier/sex slaves under age 15 (namely child soldiering and sexual violence international crimes) were framed by the ICC prosecutor as committed against individual children or groups of individual children. Those crimes were thus construed in legal terms as purportedly unrelated to the UPC/FPLC child soldier/sex slaves’ group identity as Hema children and allegedly as disconnected from age-based discrimination targeting children. Thus a separate crime against humanity charge against Ntaganda of ‘age-based persecution’ by the Hema militia of the UPC/FPLC children (through forced child soldiering, rape and sexual slavery) was not laid nor pursued. That age-based persecution referred to here relates to (i) the severe deprivation of the UPC/FPLC child soldier/sex slaves’ fundamental rights by the Hema militia (deprivation of liberty and integrity of the person in body and mind) and (ii) the discriminatory targeting of the UPC/FPLC child soldier/sex slaves for these severe deprivations of their fundamental rights based on their intersecting characteristics of being of an age under 18 (being a child) and of being of Hema ethnicity. The latter constitutes then persecution involving targeting of a child collective ‘as such’ or of individual children based on their group identity. These child soldier victims, furthermore, had a dual child group/collective identity being at once both (i) forcibly transferred child members of the Hema civilian population/ protected persons under IHL/CIL and (ii) a captive Hema UPC/FPLC child soldier/ sex slave collective.5 The notion of voluntary enlistment of children in the UPC/FPLC in the midst of the widespread and systematic attack on the Hema population is generally inapplicable given the coercive context. Hema parents were threatened and coerced in various ways into surrendering one or more of their children to the Hema UPC/FPLC militia; this then constituting an attack on the Hema population; a contextual element for the crime of persecution as set out in the Rome Statute persecution provision. As mentioned; there was no separate crime against humanity charge of ‘persecution’ of the UPC/FPLC child soldier/sex slaves based on the discriminatory grounds of age and ethnicity (ethnicity as ‘recruitment’ of child soldiers by the

5

We will consider later the contention of this author that child soldiers retain their civilian status even after incorporation as child soldier/sex slaves into an armed group or force committing mass atrocities.

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UPC/FPLC was from the Hema civilian population on the rationale that the Hema ethnic group needed to protect itself from the Lendu using every resource available). That persecution occurred then in connection with, in part, the conscription and use of UPC/FPLC child soldiers under age 15 for active participation in the armed hostilities and the sexual violence international crimes perpetrated against them by their adult UPC/FPLC compatriots. There was, furthermore, no age-based persecution charge pursued as related to the UPC/FPLC child soldier/sex slave victims more generally as constituted of persons under eighteen subjected, for instance, to the war crimes of rape and sexual slavery and cruel treatment. This though (i) children are a separable distinct group/ ‘part’ within any civilian population, (ii) children have a different legal status than do adults under IHL/CIL with special protections and a higher duty of care owed to children (persons under age 18) during armed conflict,6 and (iii) notwithstanding the fact that (a) rape and sexual slavery can be viewed as a form of torture inflicting mental and physical suffering7 (as can various aspects of the UPC/FPLC brutal so-called ‘military training’ of the child soldiers) and the fact that (b) children often have a different threshold of suffering in respect of torture (mental and physical) than do healthy adults.8 Note also that no charge of ‘age-based persecution targeting children’ was advanced despite the evidence that amongst the UPC/FPLC child soldier victims of rape (perpetrated by the UPC/FPLC) were a 9 year old who later died of the resultant injury and its sequelae and certain other child victims under age 15: In relation to the crimes committed against female UPC/FPLC members under the age of 15, the Chamber found Mr Ntaganda responsible as an indirect co-perpetrator for the rape of Nadège, an approximately nine-year-old girl, at Camp Lingo, and the rape and sexual slavery of P-0883, a girl under 15 years of age, at Camp Bule and of Mave, a girl under the age of 15 assigned as a bodyguard to Floribert Kisembo (emphasis added).9

Ntaganda was held responsible thus as an indirect co-perpetrator of rape of particular UPC/FPLC child soldier/sex slaves as a war crime though he personally was not accused of directly committing a rape.10 The Hema children transferred to and incorporated into the UPC/FPLC were targeted with discriminatory intent (persecuted) due to their group identity based on age and ethnicity and not as individuals or groups of individuals per se. Yet no persecution charge was pursued on behalf of this distinct, discrete child collective. 6

See Additional Protocols I and II to the 1949 Geneva Conventions, Article 77 and Article 4 (3) respectively. 7 Sellers (2008), p. 350. 8 Grover (2014). 9 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement, para 93 at pp. 41–42 https://www.icc-cpi.int/itemsDocuments/191107ntaganda-sentencing-judgment-summary-eng.pdf. 10 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement at p. 17 (full sentencing judgment, p. 528.

3.2 Case 1: The Prosecutor v Bosco Ntaganda (ICC Case Regarding. . .

45

Contrast this with the fact that a separate charge of persecution regarding the discriminatory targeting of the Lendu civilian population as a whole was advanced and Ntaganda was sentenced to 30 years of imprisonment on that count alone given the gravity of the offence of persecution as a crime against humanity. The count pertaining to persecution of the Lendu civilian population was based on the multiple grave international crimes committed during the attacks on the civilian Lendu population in numerous specified villages/collectives. Under the Rome Statute Elements of the Crimes; the crime against humanity of ‘persecution’ of a collective ‘as such’ or of individuals based on their group identity occurs (i) in connection with the commission of a crime(s) listed under Article 7 of the Rome Statute (crimes against humanity) or in relation to any other crimes under the jurisdiction of the ICC11 and is (ii) committed as part of widespread and/or systematic attack on a civilian population.12 The latter then would include also persecution committed in connection with war crimes. Now consider that the (i) rape and sexual slavery of Hema children under 15 incorporated into the UPC/FPLC and (ii) the recruitment and use in armed hostilities of Hema child soldiers under age 15 incorporated into the UPC/FPLC were both legally characterized in Ntaganda as war crimes. These war crimes were committed with discriminatory intent and could have formed the basis (in part) thus, it is here contended, for a charge of ‘age-based persecution as a crime against humanity’ directed against a defined group/collective of children.13 The persecution then being perpetrated against the UPC/FPLC Hema child collective ‘as such’ or its’ child members on the basis of their group identity defined by age and ethnicity.14 The enforced servitude of these children by the UPC/FPLC, especially given their sexual slavery and repeated rape, terrorized these children as is in large part the intent of persecution. The sexual crimes then involved the intersection of age, ethnicity and also

11 Rome Statute Elements of the Crimes, Crime Against Humanity Article 7(1)(h) Element Four:” The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court.” 12 Rome Statute Elements of the Crimes: See Introduction, paragraph three “Attack directed against a civilian population” in these context elements is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack” and also Rome Statute Elements of the Crime: Introduction, paragraph two “The last two elements for each crime against humanity describe the context in which the conduct must take place. These elements clarify the requisite participation in and knowledge of a widespread or systematic attack against a civilian population”. 13 “An act, or omission, is discriminatory if the victim is targeted due to his membership in one of the protected groups.” (Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 498). As discussed here in Chap. 2, children are a protected group under IHL/CIL as are defined ethnic groups. 14 Rome Statute Elements of the Crime Element Two: “The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.”

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gender as the bases for the discriminatory targeting. The UPC/FPLC use of child soldier/sex slave forced labor reflects the lack of respect for the children’s human dignity and is grounded on (i) age-based discrimination and (ii) a malignant power dynamic between adult and child exacerbated by the fact that it was communicated no doubt that the children’s UPC/FPLC abusers were allegedly wielding legitimate ‘military’ command authority over them in making the demands they did sexually and in terms of the other cruel treatment applied. The Hema UPC/FPLC adults who repeatedly raped the Hema sexually enslaved UPC/FPLC child soldiers appeared to perceive this sexual slavery and sexual violence committed against the children of the same militia as part of the regular duty of a Hema UPC/FPLC child soldier in giving aid and comfort to the adult fighters. This is reflected, for instance, in the fact that the repeated rapes of female UPC/FPLC child soldiers were a widespread occurrence and common knowledge amongst the UPC/FPLC fighters yet accepted as routine normalized conduct and often discussed.15 The UPC/FPLC in demanding from each Hema family the surrender of at least one of their children who was fit and healthy, even those under age 15 (as young as nine at least), for UPC/FPLC forced service was perpetrating a widespread and systematic attack on the Hema population itself in that regard (recall that ‘attack’ on the collective in the context of a crime against humanity per the Rome Statute need not be a military attack).16 The latter thus fulfils the contextual element of persecution.17 It is estimated from various evidentiary sources that 40% of each militia of the various groups fighting during the Ituri conflict 2002–2003 was comprised of children under age 18 “with a significant minority under fifteen.”18 Ntaganda himself was heavily involved in placing pressure on Hema parents to surrender children to the UPC/FPLC: As of June 2002, Mr Ntaganda was involved in large-scale recruitment drives conducted by the UPC/FPLC. On at least three occasions, he made calls for young people to join the UPC/FPLC ranks and follow military training, and also stated that parents and families should provide their children to the group. Between August 2002 and June 2003, the UPC/FPLC recruited, trained, and deployed children under the age of 15. The soldiers of

15 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement para 108 at p. 48. 16 Rome Statute Elements of the Crime Article 7(3). 17 “However, when families refused to provide children to the UPC/FPLC, the calls to contribute took the form of an obligation. Failing to provide children for recruitment purposes could result in imprisonment or in the community as a whole being left unprotected from future enemy attacks, as in the case of the village of Bogoro. The evidence shows that the recruitment method described. . .resulted in the conscription of children under the age of 15 years, as parents felt pressured to send them into the UPC/FPLC” (Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 ICC Pre-Trial Chamber II Decision on the Charges of The Prosecutor Against Bosco Ntaganda June 9, 2014 para 86 at p. 32). 18 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) Closing brief on behalf of the Former Child Soldiers, November 7, 2018 at para 28.

3.2 Case 1: The Prosecutor v Bosco Ntaganda (ICC Case Regarding. . .

47

the UPC/FPLC were treated the same. Those under 15 were threatened, punished, and suffered physical violence, as other recruits and soldiers (emphasis added).19

It is to be noted that Lendu child civilians were amongst those subjected to rape and other international atrocity crimes during UPC/FPLC attacks on Lendu villages in the relevant time period. In their case also an argument can be made for charging age-based persecution where ethnicity and gender were intersecting discriminatory factors with age. In that instance the persecution was motivated by animus and a desire to rid the Ituri area of Lendu. Raping Lendu children was a way to terrorize the Lendu population and help force them to leave the region and to simultaneously weaken the Lendu group then and for the future. However those Lendu child cases were rolled into the charge of ‘persecution against the Lendu civilian collective’ as a whole in the Ntaganda case (with the evidence of UPC/FPLC multiple international crimes committed in the attacks on various Lendu villages supporting the contextual element of the persecution charge). It is here argued then that discriminatory intent and conduct is evinced by the facts and overall circumstances relating to the UPC/FPLC persecution of both Hema UPC/FPLC child soldiers and of Lendu children; both child groups here regarded as being protected groups under IHL/CIL as is discussed next.

3.2.2

The UPC/FPLC Child Soldiers as Protected Persons Under IHL/CIL

The Ntaganda Trial Chamber held that the children under 15 incorporated into the UPC/FPLC did not have to be protected persons under IHL in the sense of the Geneva Conventions of 1949 (“Geneva Conventions”) or “[p]ersons taking no active part in the hostilities” in the sense of Common Article 3 to the 1949 Geneva Conventions (“Common Article 3”) (so-called “Status Requirements”)20 to be entitled to protection against rape and sexual slavery. This being the case whether the aforementioned sexual violence war crimes were perpetrated by members of the opposing party to the armed hostilities or by members of the same party (UPC/FPLC members). Hence the Ntaganda Trial Chamber ruled that these crimes against the UPC/FPLC child soldier/sex slave victims fell under the Court’s jurisdiction.21 Trial 19 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement https://www.icc-cpi.int/itemsDocuments/191107-ntaganda-sentencing-judg ment-summary-eng.pdf para 29–30 at p. 10. 20 See Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 OA5 (Judgment on the appeal of Mr Ntaganda against the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9)(June 15, 2017) para 16 at p. 7. 21 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 OA5 (Judgment on the appeal of Mr Ntaganda against the “Second decision

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Chamber VI in Ntaganda further held it was not necessary, therefore, to determine whether these children incorporated into the UPC/FPLC were in fact “members of the UPC/FPLC.”22 The Appeals Chamber upheld the Trial Court ruling on that issue stating that in order to enjoy protection from sexual violence crimes “. . .the victims of the war crimes of rape and sexual slavery need not be protected persons in the (limited) sense of the grave breaches or Common Article 3 (emphasis added).”23 Despite the validation by both the Ntaganda Trial and Appeals ICC Chambers that the UPC/FPLC child soldiers were entitled to protection from the grave sexual violence war crimes of rape and sexual slavery, the ‘age-based persecution’ of this particular child collective ‘as such’ or of the members based on group identity was not charged by the prosecutor nor commented on by either of the Chambers. Furthermore it appears that the rape and sexual slavery of Hema UPC/FPLC child soldiers under 15 and their incorporation into the UPC/FPLC was not viewed by the ICC Prosecutor as constituting a continuing crime against humanity of persecution (discriminatory targeting of the Hema child collective as such or, based on group identity, victimizing of the members for grave international atrocity crimes severely depriving them of certain fundamental rights). Note in the latter regard that sexual slavery has been viewed as a continuing crime given that the perpetrator continues to exercise a right of ownership over another person and slavery is not committed at a specific temporal moment in contrast, for instance, to an act of murder or mutilation. In addition; the conscription of children under age 15 into an armed force or group has also been considered a continuing crime for as long as the children are incorporated into that group and until they reach 15 years old.24 There is a debate about whether and how the Rome Statute addresses ‘continuing crimes’ and Schabas maintains that this is a matter for the ICC to sort out through its case practice.25 Trial Chamber VI in Ntaganda did not wish to make a determination as to whether the children under 15 incorporated into the UPC/FPLC were to be considered members of that Hema militia. It is here contended, however, that Trial Chamber VI in Ntaganda nonetheless, in effect, through the text of the reasoning in the sentencing, for instance, treated these child soldier/sex slaves as if they were

on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9)(June 15, 2017 at para 21–23. 22 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 OA5 (Judgment on the appeal of Mr Ntaganda against the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9) (June 15, 2017 at para 24. 23 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 OA5 (Judgment on the appeal of Mr Ntaganda against the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9)(June 15, 2017 at para 51. 24 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of July 8, 2019 (Disposition on the Merits-Guilt or Innocence on the various charges) at para 1104. 25 Nissel (2004), p. 656.

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‘non-civilians’ and, by implication, as members of the UPC/FPLC. For instance; Trial Chamber VI in Ntaganda stated the following: “In determining the sentences for sexual slavery for both the civilian and female UPC/FPLC soldier victims under the age of 15. . .(emphasis added)”26 This, in some ways, misleading distinction (between the child soldier victims of UPC/FPLC sexual violence and the child victims of sexual violence crimes who were not incorporated into the UPC/FPLC), it is here argued, was also reinforced in the first instance by the ICC Prosecutor’s not charging (i) the incorporation into the UPC/FPLC in itself as persecution; a crime against humanity and (ii) not charging the rape and sexual slavery of members of that UPC/FPLC child soldier/sex slave collective as crimes against humanity and not only as war crimes. The latter in that crimes against humanity are conceived as directed against any civilian collective ‘as such’ or its’ members based on their group identity while persecution as a specific instance involves discriminatory intent.27 There was then a failure to charge the sexual violence counts relating to rape and sexual slavery as also crimes against humanity (not only war crimes) perpetrated against the Hema children incorporated into the UPC/FPLC. This may have occurred because the ICC Prosecutor did not regard these grave international crimes as part of a widespread and systematic attack on a civilian population (the Hema); the latter being the chapeau element for any crime against humanity. As previously here discussed, however, the widespread and systematic forced recruitment of Hema children as UPC/FPLC child soldiers was an attack on the Hema population itself and the sexual crimes against the child soldiers incorporated into the UPC/FPLC occurred in that context of persecution by the UPC/FPLC also of their own civilian population. The ICC Prosecutor’s full thinking in not charging Ntaganda with age-based persecution against the UPC/FPLC child soldier/sex slaves relating to the severe deprivation of their liberty and their security of the person is likely not entirely clear to those outside the Office of the Prosecutor. It is not unreasonable, however, to consider that the Prosecutor may also have been reluctant to advance the charge of persecution of the UPC/FPLC child soldier/sex slaves due to (i) concerns over the fact that ‘age-based persecution’ targeting a particular collective of children has not to date been a charge tried in any international criminal law forum, including the ICC, and (ii) anticipation that a charge of persecution as a crime against humanity perpetrated against a distinct collective of child soldiers might have raised purportedly complex questions regarding their protected status, if any, as at once children

26 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement at para 31 https://www.icc-cpi.int/itemsDocuments/191107-ntagandasentencing-judgment-summary-eng.pdf The ICC Summary of the Ntaganda sentencing judgment reflects, with respect, on the view here, the erroneous distinction the Trial Chamber VI made between who it termed civilian victims of rape and sexual slavery versus “children under 15 associated with the UPC/FPLC. . .”; erroneous to the extent that the children under 15 associated with the UPC/FPLC were thereby not also considered as civilians See para 27, 30, 31. 27 That civilian population may include also persons hors de combat.

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and child soldiers. As it turns out, however, the latter question was addressed by the Court in any case as the Defence in Ntaganda argued that the UPC/FPLC child soldier/sex slaves had no protected status as they had engaged actively in the armed hostilities. The Court held, in contrast, that these UPC/FPLC child soldier/sex slaves were protected persons essentially as they were to be considered as hors de combat: . . .the Chamber clarifies that those subject to rape and/or sexual enslavement cannot be considered to have taken active part in hostilities during the time they were subject to acts of sexual nature, including rape. . .The sexual character of these crimes, which involve elements of force/coercion or the exercise of rights of ownership, logically preclude active participation in hostilities at the same time.28

Chamber VI in Ntaganda further held that the crimes of rape and sexual slavery perpetrated against the UPC/FPLC child soldier/sex slaves could properly be charged as war crimes in any case. This as, regardless the victims’ status, they were protected against such crimes under IHL which “seeks to mitigate the suffering that results from armed conflict.”29 Recall also that the Pretrial Chamber in Ntaganda had held that based on the obligation under IHL/CIL for humane treatment of children as vulnerable persons and on the APII (Additional Protocol II to the 1949 Geneva Conventions) prohibition in particular against the recruitment and use of child soldiers under age 15: . . .to hold that children under the age of 15 years lose the protection afforded to them by IHL merely by joining an armed group, whether as a result of coercion or other circumstances, would contradict the very rationale underlying the protection afforded to such children against recruitment and use in hostilities.30

Note that as the Prosecutor only charged rape and sexual slavery regarding the UPC/FPLC child solders under 15, the ICC Pre-Trial Chamber in confirming the charges was forced to confine its conclusions to child soldiers in that age group: The Chamber finds that UPC/FPLC child soldiers under the age of 15 years continue to enjoy protection under IHL from acts of rape and sexual slavery as reflected in Article 8(2) (e)(vi) of the Statute.31

28 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 ICC Pre-Trial Chamber II Decision on the Charges of The Prosecutor Against Bosco Ntaganda June 9, 2014 at para 79. 29 ICC Press Release (January 4, 2017) Nataganda case: ICC Trial Chamber VI rejects challenge to jurisdiction over two war crimes counts https://www.icc-cpi.int/Pages/item.aspx?name¼PR1267. 30 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 ICC Pre-Trial Chamber II Decision on the Charges of The Prosecutor Against Bosco Ntaganda June 9, 2014 at para 78. 31 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 ICC Pre-Trial Chamber II Decision on the Charges of The Prosecutor Against Bosco Ntaganda June 9, 2014 at para 80.

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In fact, however, Additional Protocol II to the 1949 Geneva Conventions (APII) (on which the ICC in part relied in Ntaganda32) at Article 4(3) holds that all children (age undefined and therefore to be interpreted as under 18s according to ICRC commentary) shall be given the care and respect they need during armed conflict. This means that also children 15 and over but under 18, during times when not actively engaged in combat, are protected persons. This is the case though Article 4 (3) of AP II places emphasis in particular on children under age 15 and their protection from recruitment and use in armed conflict. ICRC commentary makes it clear that AP II Article 4(3) indicates that all children (persons under 18) are to be given the care they need and hence also the protection they need: Children are particularly vulnerable; they require privileged treatment in comparison with the rest of the civilian population. This is why they enjoy specific legal protection.33 [Referring to AP II Article 4(3)] “The general principle of protection laid down at the beginning of the paragraph is illustrated with a list of obligations implied by it (sub-paragraphs (a)-(e)). As indicated by the words “in particular”, this list is illustrative only and does not in any way prejudice other measures which may be taken (emphasis added).”34

The ICC in Natganda regarded the UPC/FPLC child soldier/sex slaves under age 15 as persons entitled to protection against child soldiering and sexual violence and hence as (i) victims of child soldiering given the IHL/CIL prohibition against recruiting and using children under age 15 for active participation in armed conflict and (ii) in terms of their victimization by the UPC/FPLC also through sexual violence: The Chamber concluded that “there is never a justification to engage in sexual violence against any person” and that “such conduct [rape and sexual slavery] is prohibited at all times, both in times of peace and during armed conflicts, and against all persons, irrespective of any legal status” (emphasis added).35

Thus the ICC in Ntaganda affirmed that (i) children are protected against rape and sexual slavery regardless whether they are child soldiers or not and, if child soldiers, regardless whether the sexual violence against them was perpetrated by their compatriots or by the adversary and that (ii) under AP II Article 4(3)(c), if under age 15, the children have special protections against child soldiering and all the varied

32 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 ICC Pre-Trial Chamber II Decision on the Charges of The Prosecutor Against Bosco Ntaganda June 9, 2014 at para 77. The Court relied on APII Article 4(1)(2). 33 ICRC 1987 Commentary on Additional Protocol II to the 1949 Geneva Conventions (APII) Article 4(3) Available for download at https://ihl-databases.icrc.org/ihl/WebART/475-760008? OpenDocument. 34 ICRC 1987 Commentary on Additional Protocol II to the 1949 Geneva Conventions (APII) Article 4(3) Available for download at https://ihl-databases.icrc.org/ihl/WebART/475-760008? OpenDocument. 35 ICC Press Release (January 4, 2017) Nataganda case: ICC Trial Chamber VI rejects challenge to jurisdiction over two war crimes counts https://www.icc-cpi.int/Pages/item.aspx?name¼PR1267.

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risks of the same in any case. Nonetheless this was also a case where no charge of ‘age-based persecution targeting children’ was advanced by the ICC Prosecutor. Nor was the viability of such a potential persecution of children charge commented on by the ICC either in relation to, for instance, the sexual victimization by the UPC/FPLC Hema militia of Lendu children or of the Hema UPC/FPLC child soldiers. The thread of ‘age-based persecution targeting children’ and intersecting with ethnicity and gender (most victims of the sexual violence and sexual slavery by the UPC/FPLC were female) runs through the sexual victimization of both the Lendu and Hema children in the Democratic Republic of Congo situation during the time period covered in Ntaganda. The rape and sexual slavery of the Lendu children was considered separately from that perpetrated against the Hema children incorporated into the UPC/FPLC as child soldier/sex slaves (the latter conduct was considered only as constituting war crimes as previously mentioned). The sexual international crimes perpetrated against Lendu children in the context of attacks on their villages was considered in combination with that perpetrated against Lendu women and the other atrocities committed against the Lendu civilian population. Hence the sexual violence crimes against the Lendu were legally characterized in Ntaganda as both crimes against humanity and war crimes.36

3.2.3

The Persecution of Children Based on Age Intersecting with Gender and Ethnicity

The failure in Ntaganda to charge ‘age-based persecution’ perpetrated against the UPC/FPLC child soldier collective of Hema children under age fifteen (through child soldiering, rape and sexual slavery) is particularly notable. This given that this was, in some sense, an ICC Prosecutor age-defined victim group in the first instance per (i) the Rome Statute elements of the war crime prohibiting the recruitment and use for active participation in hostilities of child soldiers under age fifteen which was charged in the case and (ii) the fact that the ICC Prosecutor charged rape and sexual slavery of the Hema UPC/FPLC child soldiers only in regard to the contingent of those children under age 15. The Rome Statute elements of the crime against humanity of ‘persecution’ were met on the facts and the law, it is here contended, in relation to the child collective ‘Hema children under the age of fifteen incorporated into the UPC/FPLC’.37 We will in the next section go through the exercise of a

36

Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement https://www.icc-cpi.int/CourtRecords/CR2019_06674.PDF at pp. 527–528. 37 The reference here is to the children under fifteen incorporated into the UPC/FPLC as the Prosecutor unfortunately and, on the view here, unnecessarily confined the charges regarding UPC/FPLC child soldiers in regards to rape and sexual slavery only to the children in that age range.

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Rome Statute element by element analysis of the crime against humanity of ‘age-based persecution’ involving the targeting of the UPC/FPLC child soldiers aged under 15 for rape, sexual slavery and ‘child soldiering38 First, however, let us step back and consider an overview of the child collectives persecuted by the UPC/FPLC in Ituri in the relevant period. The age-based persecution against children by the Hema UPC/FPLC militia was directed against (i) the Hema child soldiers over and under age fifteen who had been incorporated into the UPC/FPLC armed group and also targeted (ii) the Lendu child civilian collective generally. We focus on the child collective comprised of UPC/FPLC child soldiers under 15 next simply because the ICC Prosecutor considered individual victims of that child collective separately from any adult victims. In contrast, the Lendu children who were subjected to sexual violence, sexual slavery and other atrocities at the hands of the UPC/FPLC were considered by the Prosecutor in combination with the adult Lendu civilians, mostly women, subjected also to rape and/or sexual slavery (See the Trial Chamber VI discussion of rape and sexual slavery of the Lendu civilians as meeting the elements of both crimes against humanity and war crimes). The material facts cited by the Court referenced both child and adult female Lendu victims of sexual violence and sexual slavery which occurred in the context of attacks on particular Lendu villages.39 The crime against humanity of persecution of the Lendu population in Ntaganda was materially based on murder, attacking civilians and attacking protected objects for which Ntaganda was held responsible as one of the direct perpetrators.40 The persecution was planned and systematic and intended: to drive out all Lendu from the localities targeted. . .Mr. Ntaganda and his co-perpetrators wanted to destroy and disintegrate the Lendu community and ensure that the Lendu could not return to the villages that were attacked. This involved the targeting of civilian individuals by way of acts of killing and raping, as well as the targeting of their public and private properties, through acts of appropriation and destruction (emphasis added).41

The actual age-defined child collectives victimized by the UPC/FPLC, in part through rape and sexual slavery, included then (i) Hema children, both over and under the age of 15, incorporated into the UPC/FPLC as child soldier/sex slaves and

38 Note that rape and sexual slavery can be a form of torture as can child soldiering; the latter particularly when the children are part of an armed group or force committing mass atrocities. However the aforementioned atrocity international crimes were not additionally charged in Ntaganda as meeting the elements of torture. 39 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement at p. 17. 40 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement para 745 at p. 358. 41 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement para 25 at p. 9.

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(ii) also Lendu children subjected to sexual slavery and rape.42 The rape and sexual slavery of Hema children incorporated into the UPC/FPLC was, on the legal analysis here, part of the widespread and systematic attack committed by the Hema rebel militia against their own Hema civilian population in general (as a whole). In the latter instance through forced recruitment of their children into an armed group (the UPC/FPLC) committing mass atrocities. Hence it is here argued that there was no basis in law that compelled a prosecutorial strategy where (i) the rape and sexual slavery of Hema children incorporated into the UPC/FPLC were charged as war crimes alone and hence distinguished from (ii) the rape and sexual slavery of Lendu children which crimes were charged as part and parcel of the war crimes and crimes against humanity against the Lendu population as a distinct collective. This distinction in the charging appears to have been based, in part at least, on the fact that the rape and sexual slavery of Lendu children were framed legally as part of the attack on the Lendu population as a whole while the rape and sexual slavery of Hema children incorporated into the UPC/FPLC were atrocities erroneously not framed as occurring in the context of an attack on the Hema population (the latter involving, for instance, the widespread and systematic coercion of Hema parents to surrender at least one of their children to the UPC/FPLC as a child soldier).43 Notwithstanding the aforementioned distinction in the charging, the targeting based on the discriminatory grounds of age, ethnicity and gender of neither child collective (Hema nor Lendu) was addressed in Ntaganda. That is; ‘age-based persecution’ was not considered within the scope of the international crimes to be charged. Consider that the ICC Chamber explained in Ntaganda that “Some charges may be properly framed more broadly . . . and need not necessarily be framed as a specific incident or an aggregate of acts”44 (the latter occurring at particular times and places against identified individual persons; though specific incident examples can be used to support the broad charge). “In other words, the acts or the references to any individual victims become evidential details for proving that crimes within these parameters occurred.”45 It is here contended that in Ntaganda the charges of rape and sexual slavery of UPC/FPLC Hema child soldier/sex slaves by the UPC/FPLC could have been advanced, in addition, as ‘age-based persecution’ perpetrated against 42

For the UPC/FLPC child soldier/sex slaves the repeated rapes and sexual slavery occurred most often in UPC/FPLC ‘military’ camps at various locations and for the Lendu children; their rapes and sexual slavery by UPC/FPLC occurred most often in their Lendu villages during the widespread Hema attacks on the Lendu civilian population living in those villages and to some extent in UPC/FPLC camps near the villages attacked. 43 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 ICC Pre-Trial Chamber II Decision on the Charges of The Prosecutor Against Bosco Ntaganda June 9, 2014 para 86 at p. 32. 44 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of July 8, 2019) para 40 at p. 21. 45 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of July 8, 2019), para 40 at p. 21. The Trial Court gave as examples of such broad charges “deportation of ‘civilians’ across a range of places and times” as opposed to an aggregate of specific instances with particularized times and places.

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those children based on their group identity (defined in terms of age, ethnicity and gender) with specific incidents involving individual child victims as evidentiary detail regarding the material facts. The sexual atrocities committed against Lendu children by the UPC/FPLC then could likewise have been legally characterized, in addition, as ‘age-based persecution’ of the Lendu children (based on the discriminatory grounds of age, ethnicity and gender). On the respectful view here; the persecution of the Lendu children through rape and sexual slavery should have been charged separately from the persecution of the Lendu population per se (only the latter persecution charge was advanced in Ntaganda). This in that the former persecution involved a factor that the latter did not; namely the discriminatory ground of age informing the perpetrator discriminatory specific intent. In both cases then-in respect of Hema children and Lendu children victimized by the UPC/FPLC through rape and sexual slavery-the individual child was targeted based on her group identity as part of a child collective with intersecting characteristics of ethnicity and gender. The targeting of a child collective weakens the larger population (defined in terms of ethnicity, religion, nationality or some other impermissible ground or combination of grounds of discrimination) of which that child collective is a part. However, the targeting of the child collective is also victimizing of an entity in itself (‘as such’) and hence, for this reason also, the charge of ‘age-based persecution as a crime against humanity’ is legally supportable. The issue of a ‘part’ of a population being a targeted entity in itself is discussed in detail in the next chapter in a different legal context and in relation to the ICTY Krstic case.46 To be clear this author is not suggesting that the ‘part’ of a collective targeted in genocide or a crime against humanity must be an entity in itself in order that it be considered a targeted part. Rather the argument here is that when that part targeted for persecution is comprised of children–especially a specifically defined child collective such as UPC/FPLC Hema female child soldier/sex slaves or Lendu female children as in Ntaganda-the part is an entity in itself. Furthermore the children are being targeted also as children (a group that holds a unique status under IHL/CIL) and not just as members of a larger mixed age group/population/ community/collective. It is the case, however, that neither in the Ntaganda prosecution nor that of any of his co-perpetrators was there an acknowledgement of the persecution of the distinct child collective targeted. Instead the prosecution for rape and sexual slavery of children incorporated into the UPC/FPLC was pursued in the Ntaganda case pursuant only to Rome Statute war crimes under Article 8 (2)(e)(vi). The latter articulation of the war crimes of rape and sexual slavery does not require the victimization of a collective ‘as such’ nor the targeting of individuals due to their group identity as an element of the crimes. The Lendu female child collective targeted was also not considered as an entity in itself as indicated by the fact that age-based persecution (intersecting with ethnicity and gender) was not prosecuted.

46

Prosecutor v Radislav Krstic Appeals Chamber Judgment Press Release (April 19, 2004) https:// www.icty.org/en/press/appeals-chamber-judgement-case-prosecutor-v-radislav-krstic (accessed October 25, 2020).

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The failure in Ntaganda to charge and convict for age-based persecution (intersecting with ethnicity and gender) translates to less than a full measure of justice achieved for either the Hema or Lendu child victims of UPC/FPLC international atrocity crimes. In this regard recall that the Trial Chamber in Ntaganda acknowledged “the gravity of the crime of persecution . . .as well as the fact that persecution generally involves a multiplicity of acts or crimes.”47 The Trial Chamber in Ntaganda expanded on their holding regarding the gravity of the international crime of persecution thus: The prohibition of persecution as laid down in Article 7(1)(h) of the Statute is intended to protect the right of all individuals not to be discriminated against on the basis of political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognised as impermissible under international law. In the view of the Chamber, persecution therefore constitutes, in and of itself, one of the most serious crimes against humanity, as it amounts to a denial of fundamental rights of one or more persons by virtue of their belonging to a particular group or collectivity (emphasis added).48

The war crimes targeting the UPC/FPLC child soldier/sex slaves were framed by the ICC Prosecutor in Ntaganda as perpetrated against individual child victims unrelated to discriminatory factors; namely their collective identity as children and Hema (and in the case of the sexual violence crimes against the female child soldiers also their identity as female children). On the respectful view here, however, that legal characterization was an error in that the UPC/FPLC child soldier/sex slave members were targeted for ‘age-based persecution’ based on the aforementioned discriminatory grounds that defined their child group identity.

3.2.4

Controversies on the Legal Status of UPC/FPLC Child Soldier/Sex Slaves

The ICC Trial Chamber in Ntaganda deftly but, on the view here, sadly sidestepped the issue of whether or not the UPC/FPLC child soldier/sex slaves were still to be regarded as civilians under IHL/CIL post incorporation into the UPC/FPLC. That is; there was no determination as to whether the children were to be considered ‘members’ of the UPC/FPLC. That determination was deemed by the Trial Chamber in Ntaganda as unnecessary in regards to whether the children were to be considered protected persons in regards to being entitled to a legal shield under IHL/CIL against sexual violence and sexual slavery perpetrated by their UPC/FPLC compatriots or by

47

Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement, para 177 at p. 77. 48 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgment, para 175 at p. 76.

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members of the opposing armed group and that position was not controverted by the Appeals Chamber: Having concluded that “the protection against sexual violence under international law is not limited to members of the opposing armed forces, who are hors de combat, or civilians not directly participating in the hostilities”, the Trial Chamber considered it unnecessary to determine whether “child soldiers” must be considered members of the UPC/FPLC.49

It is here argued, however, that child soldiers per APII Article 4(3)(c)(d)50 do not lose their civilian status under IHL/CIL though they can temporarily lose protected status. That is an opposing lawful force or armed group may exercise prudent selfdefence measures when confronted by a child belligerent posing an imminent serious threat. Recall that a lawful armed force or armed group is in part defined by the fact that it follows IHL/CIL. The colloquial term ‘child soldier’ does not reference combatant status under IHL and an adversary adhering to IHL/CIL would attempt to spare the child where feasible even where the child is actively engaged in the armed hostilities at the precise time of the confrontation if the child yet does not pose an imminent threat. Note that the war crime of ‘attacking civilians’ (Rome Statute Elements of the Crime Article 8(2)(e)(i)) in relation specifically to those Hema children attacked through abduction51 and eventually incorporated into the UPC/FPLC as child soldier/sex slaves victims was also unfortunately not charged (i.e. this includes also no charges regarding the attack on the Hema as an aspect of persecution specifically of the Hema child collective per se and of the larger Hema population). The war crime of “attacking civilians” contains an element that sets out that the “perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack.”52 The current author argues that when children are targeted in the context of a widespread and systematic attack on a civilian population; they are always being attacked as (i) a vital but highly vulnerable collective core to (part of) that civilian population (the larger collective victim) and not simply as individual victims and also (ii) as a child collective ‘as such’. There was no consideration it would appear, furthermore, given to whether the forcible transfer of children to the UPC/FPLC ‘military’ camps could be classed as forcible transfer of a discrete civilian collective constituting the crimes against humanity of (i) attacking a child civilian distinct group as, for instance, an act of 49

Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 OA5 (Judgment on the appeal of Mr Ntaganda against the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9)(June 15, 2017 at para 24. 50 Protocol II:Additional Protocol II to the 1949 Geneva Conventions Article 4(3)(c)(d). 51 Some of the Hema children allegedly volunteered to be UPC/FPLC soldiers. However given the coercive circumstances in which the children were living and the pressures the UPC/FPLC put on Hema families to surrender children to the UPC/FPLC in the resistance to the Lendu; it is highly suspect how voluntary the children’s so-called enlistment to the UPC/FPLC was in fact. 52 Rome Statute Elements of the Crime Article 8(2)(i))Element Three.

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persecution (Rome Statute Article 7(1)(h) and forcibly transferring a part of a civilian population (namely a discrete child collective) to a new location (Rome Statute Article 7(1)(d)) and (ii) the war crimes of attacking civilians (Rome Statute Article 8(2)(e)(i) and of displacing civilians (Rome Statute Article 8(2)(e)(viii)). It is here held that the persecution of the Hema child soldier/sex slaves, even if the children were not considered as civilians post incorporation into the UPC/FPLC, would still be an attack on not only the child soldier/sex slave Hema child collective per se but the Hema civilian population generally: . . . the Chamber notes that, despite the requirement that the attack be directed against a civilian population, there is no requirement that the individual victims of crimes against humanity be civilians for the purpose of IHL, but may include persons otherwise protected under this body of law (emphasis added).53

As discussed here previously the ICC in Ntaganda held that UPC/FPLC child soldiers were to be considered ‘protected persons’, regardless of any other status (i.e. they were protected persons as against sexual violence and sexual slavery international crimes and as against child soldiering if under 15).54 To exclude these children (child soldier/sex slaves) from these protections would not be concordant, for instance, with the humane treatment and special care requirement pertaining to children articulated in Protocol II Additional to the 1949 Geneva Conventions at Article 4 (c)(d). The Defence in Ntaganda had in fact raised the question (in response to the Rome Statute Article 8(2)(e)(vi) charges of war crimes relating to rape and sexual slavery) as to “. . .whether there are restrictions on the categories of persons who may be victims of the war crimes of rape and sexual slavery.”55 The Defence argued that the crimes against the UPC/FPLC child soldier/sex slaves by their Hema ‘compatriots in arms’ did not fall under IHL or international criminal law. The Defence relied in part on the erroneous and inapplicable proposition that:

53

Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of July 8, 2019 para 669 at pp. 328–329. 54 Emerging customary international norms extend these protections: The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Article 4 (1) “Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.” Article 4(2) “States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices.” (emphasis added) (Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, entry into force February 12, 2002). 55 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, Judgment January 4, 2017 para 7 at p. 4.

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International humanitarian law is not intended to protect combatants from crimes committed by combatants within the same group. Such crimes come under national law and human rights law.56

In fact the Defence position in this regard is arguably inconsistent with Article 21 (3) of the Rome Statute which clearly stipulates that the application and interpretation of the Rome Statute is to be informed by international human rights norms and values and that age as a discriminatory factor (i.e. in the application of legal protections) is impermissible: The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as . . . age. . .57

However the children incorporated into the UPC/FPLC remained, in any case, as civilians as combatant status is not available in non-international conflicts and certainly not to armed groups such as the Hema UPC/FPLC which did not adhere to IHL.58 Interestingly the Prosecution in Ntaganda took a more limited approach in rebuttal to the Defence argument that the children incorporated into the UPC/FPLC could not be the victims of rape and sexual slavery as war crimes when that conduct was perpetrated by members of the UPC/FPLC itself. The Prosecution argued that the child soldier/sex slaves under 15 unlawfully recruited and incorporated into the UPC/FPLC were protected under Common Article 3 of the Geneva Conventions “regardless of whether the children are categorised as ‘civilians’ or ‘members of armed forces”59 On the analysis here, the Prosecution position is too narrow. This in that protected status would extend to any child (person under age 18) incorporated into an armed group or force committing mass atrocities. This since the recruitment and incorporation into an armed group of any child of any age under 18 is unlawful when that armed group engages in mass atrocities. The children’s recruitment and incorporation into the armed group or force violating IHL/ICL is a form of incitement of and coercion imposed on the children to commit various international crimes with culpability attaching to the adult perpetrators for the incitement and coercion where the international crime(s) are in part carried out by the child soldiers. The Prosecution in Ntaganda argued that “the specially protected status of children in times of armed conflict endures notwithstanding any participation in hostilities, except to the limited extent required for targeting by the adverse party.”60 The latter is in accord with the stipulation of Protocol II Additional to the 1949 Geneva Conventions Article 4(3)(c)(d) and the ICRC commentary on that Article. It

56 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 20 at pp. 9–10. 57 Rome Statute Article 21(3). 58 See Protocol I Additional to the 1949 Geneva Conventions Article 43. 59 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 31 at p. 15. 60 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 31 at p. 15.

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should be noted in this regard, however, that, on the analysis here, the loss of protected status “to the limited extent required for targeting by the adverse party”61 does not transform the child into a ‘combatant’ under IHL during that period.62 In any case the Prosecution in Ntaganda argued that “children [under age 15] unlawfully recruited into the UPC/FPLC were nonetheless protected by Common Article 3 at the material times, regardless of whether the children are categorized as ‘civilians’ or ‘members of armed forces.”63 According to the Ntaganda ICC Trial Court, however, there was no requirement that the UPC/FPLC child soldier/sex slaves meet the requirements for ‘protected persons’ under Common Article 3 of the Geneva Conventions in order that their victimization through rape and sexual slavery could be prosecuted as war crimes under Rome Statute Article 8(2)(e)(vi). Rome Statue Article 8(2)(e) allows for prosecution of war crimes that are “Other serious violations of the laws and customs of war” in the context of a non-international conflict and do not include a victim status element.64 To summarize then the question arose in Ntaganda as to whether the children incorporated into the UPC/FPLC were in fact ‘civilians’ or instead in any technical legal sense to be regarded under IHL/CIL as child soldiers/child combatants. The children would in either case still remain as protected persons as children under IHL (i.e. Protocol II Additional to the 1949 Geneva Conventions Article 4(3) and in particular Article 4(3)(c)(d)). The argument here is, however, that the UPC/FPLC child soldiers were in fact and remained as child civilians. In this regard, it should be kept in mind that the children transferred and incorporated into the UPC/FPLC as child soldier/sex slaves in the midst of coercive circumstances were arguably the victims also of the ‘crime against humanity of forcible transfer’ (here from their Ituri home communities to a new location- a ‘military’ UPC/FPLC camp and at varied points of the frontline in the armed hostilities) (see Rome Statute Article 7(1) (d) Crime Against Humanity of Forcible Transfer also giving rise, it is here argued, to the Rome Statute ‘crime against humanity of age-based persecution targeting children’). The victims of forcible transfer and incorporation into an armed group or armed force for forced labour (which is in any case labour that is unlawful in regards to children in particular), it is here argued, do not thereby lose their civilian status.

61 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 31 at p. 15. 62 It is further unclear whether the targeting of a child soldier posing a threat to an adversary not following IHL and committing mass atrocities is lawful under any circumstance and if so; lawful under which circumstance. 63 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 31 at p. 15. 64 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 40 at p. 19 Referring to serious violations the customs and laws of war other than or in addition to those serious violations of Article 3 common to the four Geneva Conventions of 12 August, 1949.

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The children incorporated into the UPC/FPLC-both those under and over age 1565—were targeted as a child collective ‘as such’ or as individuals based on their group identity for, in part, the international crimes of rape and sexual slavery. The child collective transferred to the UPC/FPLC targeted for sexual violence and child soldiering international crimes was defined by age (under 18), ethnicity (Hema) and gender (more frequently the female children suffered the sexual violence and sexual slavery crimes), and arguably also home community (home community located in the DRC Ituri region). The adult UPC/FPLC perpetrators appeared to consider that these female child soldiers were obligated (duty bound) to provide sexual and soldiering servitude as a means of intraparty support. This soldiering66 and sexual servitude being considered by the militia as the ‘raison d’etre’ of the female children and for their being incorporated into the UPC/FPLC in the first instance. That this was the view of the UPC/FPLC commanders and fighters is, to some degree, reflected in the tacit subtext of the Ntaganda defence argument that these children were not protected persons under the Geneva Conventions as they were on the same side of the armed conflict (intraparty). The Defence contended on that basis that the rape and sexual slavery of these children could allegedly not be prosecuted under the Rome Statute as war crimes that violated IHL norms and values and involved victimizing a protected group as that term is understood under IHL/CIL. That argument that Rome Statue defined war crimes could not be charged when the victims were intraparty was, it will be recalled, rejected by the ICC Ntaganda Trial Court and that ruling was upheld on appeal. The female soldier/sex slaves were named as ‘PMF, ‘personnel militaire féminin’67 and regularly raped68 and among these PMF’s there were girls also

65 The Prosecution in Ntaganda argued that the children “unlawfully recruited” into the UPC/FPLC were protected by Common Article 3 irrespective of whether the children are categorised as ‘civilians’ or ‘members of an armed force’ (see Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 31 at p. 15). The Prosecution was here referencing children under 15 recruited into the UPC/FPLC in violation of the Rome Statute prohibition on under fifteens being recruited or used in armed hostilities. However this author holds that in the coercive circumstances of the conflict in Ituri in the relevant period; all of the children transferred and incorporated into the UPC/FPLC Hema militia were unlawfully forcibly transferred children. 66 “Female child soldiers of the UPC/FPLC “. . .were recruited, trained and fought in battle in the same manner as the male recruits and certain female recruits were selected to serve as bodyguards to UPC/FPLC commanders; to this extent, there was no difference in treatment between the various soldiers of the UPC/FPLC on the basis of gender (emphasis added).” Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of July 8, 2019), para 406 at p. 180. 67 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of July 8, 2019), para 406 at p. 180. 68 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of July 8, 2019), para 407 at p. 180.

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under fifteen who suffered sexual violence.69 These children were considered as the property of the Hema UPC/FPLC militia group to do with as the adult fighters pleased and the commanders authorized this directly by explicit communication or indirectly by their acquiescence. On the analysis here the children incorporated into the UPC/FPLC were targeted for persecution (tied to rape and sexual slavery as crimes against humanity and war crimes) both by reason of a) the identity of a group (Hema) (the Hema children transferred to the UPC/FPLC were targeted as a part of the Hema civilian population and also targeted as an entity in themselves; a collective of children targeted as children). In addition, as mentioned previously, the persecution was a gendered crime in regards to the victimization of the children by way of rape and sexual slavery as most victims of the sexual violence were female. After incorporation into the UPC/FPLC then the Hema child soldier/sex slaves were the victims of ‘agebased persecution’ linked to (i) rape and sexual slavery as crimes against humanity and war crimes and (ii) in connection with the war crime of recruiting and using child soldiers for active participation in the armed hostilities (in the case of child soldiers under age 15).

3.2.5

The Rape and Sexual Slavery of the UPC/FPLC Child Soldiers as Crimes Against Humanity as Well as War Crimes

The Ntaganda ICC Trial Court clarified the meaning of ‘civilian population’ within the Rome Statute crimes against humanity element referencing a widespread or systematic attack on a civilian population: “The term ‘civilian population’, within the phrase ‘directed against any civilian population’, denotes a collective, as opposed to individual civilians” (emphasis added).70 The Ntaganda ICC Trial Chamber here was thus referring to the fact that the ‘crimes against humanity’ set out at Rome Statute Article 7 occur in the context of an ‘attack on a civilian population’ as an element of each of those crimes against humanity (see Rome Statute Article 7 (1) introductory paragraph and Rome Statute Elements of the Crime introduction 7 (2) and 7(3))71 The UPC/FPLC ‘attack’ as perpetrated against Hema child civilians included forcible transfer to the UPC/FPLC for child soldiering and the children’s subjugation through sexual slavery and rape amongst other atrocities. Even if the forcible transfer of multitudes of Hema children to the UPC/FPLC was

69 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of July 8, 2019), para 408 at p. 182. 70 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of July 8, 2019 (Disposition on the Merits-Guilt or Innocence on the various charges) para 667 at p. 328. 71 Rome Statute Article 7(1).

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accomplished without physical force per se, but rather by means of other coercive means, such as threats, it would still be a crime against humanity as an “attack” on both: (i) a discrete ‘civilian collective’ (the Hema child civilian collective to be precise as a ‘part’ of the larger Hema civilian population but also as an entity in itself targeted as a collective for age-based persecution) and on (ii) the larger Hema civilian population. Recall that the ICC noted in a different context that: “The term “forcibly” [referencing “transferring forcibly”] is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment.”72 Certainly Ntaganda and his co-perpetrators employed, as was here previously discussed, such various coercion in ‘recruiting’ Hema children to the UPC/FPLC as child soldier/sex slaves including physical force-abductions. The UPC/FPLC ‘attack’ on (i) the Hema civilian population generally and on (ii) the Hema child collective ‘as such’ in particular (both before and after incorporation into the armed Hema militia of the individual children transferred as UPC/FPLC child soldier/sex slaves) thus fulfills the contextual element for crimes against humanity. Respectfully therefore, on the view here, it was an error not to charge the rape and sexual slavery of UPC/FPLC child soldier/sex slaves (re all such children under 18) as crimes against humanity and not just as war crimes. Even after the children were incorporated into the UPC/FPLC they were, according to the ICC in Ntaganda, under IHL/CIL, ‘protected persons’ insofar as their entitlement to protection from sexual violence and sexual slavery is concerned. This being the case even if one were to accept the notion-which the current author disputes- that the children were no longer civilians. Hence the UPC/FPLC child soldiers were, at a minimum, ‘protected persons’ in regards to (i) the absolute prohibition under international law on sexual international crimes with that bar applicable regardless of the children’s status under IHL/CIL73 and (ii) as children per the protections offered by way, for instance, of APII Article 4(3) guaranteeing children the “care and aid they require”74 during armed conflict (per APII Article 4 (3)(c)(d)- protection for children under 15 from recruitment and use for active participation in armed conflict and full protection restored, in particular for under 15s, once the child ceased active engagement in hostilities). It is here argued that the UPC/FPLC child soldiers were protected persons and remained under IHL/CIL

72 Rome Statute Elements of the Crime Article 6(e) Genocide by forcibly transferring children note 5. 73 Whether, for instance, the child soldier/sex slave was a protected person as defined under Common Article 3 (a civilian or hors de combat) was not an element to be determined in that the prohibition on sexual violence and sexual slavery international crimes was in any case applicable with no victim status requirements to be fulfilled. 74 Protocol II:Additional Protocol II to the 1949 Geneva Conventions Article 4(3) https://ihldatabases.icrc.org/ihl/WebART/475-760008?OpenDocument.

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civilians as part of the larger Hema civilian population though having been forcibly transferred to the UPC/FPLC.75 The Court in Ntaganda made clear that for the charge of crimes against humanity to stand; the attack on the civilians must be the primary one and not incidental to the targeting of another group.76 Here the widespread and systematic forced recruitment of Hema children to the UPC/FPLC was purposeful and planned. In the DRC situation at issue; the Hema children were not an incidental target of attack before or after incorporation into the UPC/FPLC. They comprised a discrete separable civilian collective that was a selected focus for the Hema UPC/FPLC perpetrators in their attack on the Hema civilian population. The Hema UPC/FPLC wished to dominate these children body and soul as expendable tools in the armed resistance to the Lendu.

3.2.6

UPC/FPLC International Atrocity Crimes Directed Against the Child Collective

The Legal Representative for the Victims (LRV) in Ntaganda made the point that the Defence misrepresented Counts 6 and 9 in that the child soldier/sex slaves under age 15 were not characterized by the Prosecution as “members of the UPC/FPLC” but rather as children incorporated into the UPC/FPLC. She went on to explain the LRV position that: “. . .child soldiers cannot be regarded as regular members of an armed group, because they have a different legal status. . .”77 The current author has previously discussed the fact that children are not entitled to ‘combatant status’ as they have no unqualified right under IHL/CIL to take part in armed hostilities in contrast to those who hold combatant status under IHL who do possess such a right (per Article 43 Protocol I Additional to the 1949 Geneva Conventions). The LRV instead relied on the fact that under the Rome Statute the child soldiers (persons under age 18) could not be held criminally liable for their conduct under the Rome Statute which asserts no jurisdiction in prosecuting children and thus places them in a different legal status than ‘members of an armed group.’ Further the LRV argued, in part, that even if the children incorporated into the UPC/FPLC were regarded as

The ICC in Ntaganda clarified that: “When crimes against humanity are alleged to have been committed during an armed conflict, as in the present case, the presence within a civilian population of individuals who do not fall under the definition of ‘civilians’ does not deprive the population of its civilian character.” (Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of July 8, 2019 (Disposition on the Merits-Guilt or Innocence on the various charges) para 668 at p. 328). 76 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of July 8, 2019 (Disposition on the Merits-Guilt or Innocence on the various charges) para 668 at p. 328. 77 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 33 at p. 15. 75

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members; under IHL and “. . . even in case of active participation in the hostilities, the established framework of international law unconditionally protects children affected by armed conflict.”78 The ICC in Ntaganda noted that no specific victim status is articulated as an element of the crime at Rome Statute Article 8(2)(e)(vi) concerning various sexual violence war crimes. Hence the Court rejected the notion advanced by the Defence that no war crimes (including rape and sexual slavery) had been perpetrated by the Hema captors against the children incorporated into the UPC/FPLC as the crimes were perpetrated intraparty against persons who purportedly did not enjoy protected status. According to the Defence, the child soldier/sex slaves allegedly did not hold protected status under Common Article 3 to the Geneva Conventions. The issue of victim status, however conceived, was in essence ruled as moot by the ICC Ntaganda Court since victim status was deemed irrelevant to the elements of the crimes at issue (those set out at Rome Statute Article 8(2)(e)(vi). The Ntaganda ICC Trial Court further held that since rape and sexual slavery were prohibited under IHL/CIL and the prohibitions were applicable as jus cogens law79 in both international and non-international armed conflicts, there was also, for that reason, no restriction/ limitation on victim status/category of those who can be deemed to have been targeted for these crimes in violation of IHL/CIL. That is; victims could be intraparty (incorporated into the armed group on the same side) and the relevant war crimes under Rome Statute Article 8(2)(e)(vi) charged.80 In addition the Court held that even if the Defence were correct that CIL did not criminalize war crimes inflicted by perpetrators against those on the same side as that particular party to the armed conflict; the Rome Statute did so thus making the prior criminalization or lack thereof under CIL or other treaty law irrelevant.81 The rapes and sexual slavery of the UPC/FPLC child soldiers were not prosecuted as Rome Statute crimes against a Hema child civilian collective which would have implicated these offences also as crimes against humanity (the same conduct giving rise to different Rome Statute offences; war crimes and crimes against humanity). It should be noted that the war crimes provisions of the Rome Statute concerning ‘rape’ (i.e. article 8(2)(e)(6)-1) and ‘sexual slavery ‘(i.e. article 8(2)(e)(6)-2) in the context of a non-international armed conflict do not, unlike the genocide or crimes against humanity articles, require as an element the victimizing of individuals based

78 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 33 at p. 16. See also Protocol II Additional to the 1949 Geneva Conventions Artucle 4 (c) and 4(d). 79 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 51–52 at pp. 27–28. 80 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 46–47 at pp. 24–25. 81 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 35 at pp. 16–17.

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on their identity as members of a targeted group/collective.82 This is in contrast to selected other war crimes that do include elements that involve consideration of targeting a collective, for instance, ‘the war crime of attacking civilians’ (i.e. article 8 (2)(e)(i)). The war crime of attacking civilians at element two sets out that “The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities.”83 Each of these victims constitute protected groups/ collectives as such or members of those groups targeted based on their group identity under IHL namely (i) the civilian population ‘as such’ and/or b) the collective comprised of “individual civilians not taking direct part in hostilities” which would include also those who have ceased doing so. Thus rape and sexual slavery as war crimes perpetrated against the Hema children under age 15 incorporated into the UPC/FPLC were contemplated by the ICC in Ntaganda, as explained, to be international atrocity crimes against individuals unrelated to their group identity; that is separate and apart from their group/ collective victim identity defined by age, ethnicity and gender. This, on the respectful view here, erroneous legal characterization of these international crimes, then led to also the failure to charge ‘age-based persecution’ targeting these children (UPC/FPLC child soldier/sex slaves) on the discriminatory grounds of age, ethnicity and gender.84 However neither the ICC nor any other international criminal tribunal, it is here argued, finds a legally supportable basis for ignoring the evidence, where it exists, as it did in Ntaganda, of either a collective victim targeted as such or individuals targeted based on group identity and subjected to sexual violence and other international atrocity crimes. Doing so for any reason is unjustified let alone when that discrete collective victim is comprised of children and the particular collective is clearly defined by age, ethnicity and gender85 as was the case in Ntaganda in respect of (i) Hema children used as UPC/FPLC child soldier/sex

82 “. . . although the issue was not specifically litigated in previous cases – the Court’s [ICC] case law has not required the Status Requirements [the victim being a protected person] to be proven when analysing rape as a war crime under Article 8(2)(b)(xxii) and 8(e)(vi). Instead, it was noted by Trial Chamber III that only the contextual elements differ between rape as a war crime and as a crime against humanity (emphasis added).” (Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 43 at p. 22). 83 Rome Statute Elements of the Crime Article 8(2)(e)(i). 84 The words “in particular” in the phrase “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” is taken to mean that this is not a requirement for the charge of war crimes; that is a collective need not necessarily be the target nor the attack orchestrated on a large scale (see McMahan 2008. p. 5). 85 This is not to imply that boys were not also transferred to and incorporated into the UPC/FPLC and may, in some instances, also have been subjected to rape and sexual slavery. However the focus in the Ntaganda case in regards to the war crimes of rape and sexual slavery was on the female child victims and hence that is the focus of the discussion here as well.

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slaves and (ii) Lendu children also subjected to rape and sexual slavery by the UPC/FPLC. The targeting of victims based on group identity is a key indicia of crimes against humanity or genocide (depending on the facts). The fact that the Rome Statute at Article 8(1) stipulates that “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 (emphasis added)”86 indicates, on the analysis here, that the Statute allows for priority consideration to be given to war crimes directed against the defined collective victim (whether a specific civilian population or some other distinct protected collective) as suggested by the plan, policy or widespread targeting of individuals based on group identity (the latter as opposed to prioritizing prosecution of war crimes committed as isolated uncoordinated acts perpetrated against individuals or numbers of individuals opportunistically and unrelated to their group identity). That is war crimes based on the group identity of the victims and targeting a civilian population or part thereof or any otherwise protected collective are to be given priority in prosecution per Rome Statute Article 8 (1). Such crimes will also likely fulfill the elements for crimes against humanity as well. It is here contended that the children incorporated into the UPC/FPLC also met the aforementioned criteria for collective victim. The current author is agreed with the Trial Court in Ntaganda that Rome Statute Article 8(2)(e) does not require that victims “be protected persons in the (limited) sense of grave breaches or Common Article 3”.87 However it is the case that the UPC/FPLC child soldier/sex slaves nevertheless were a protected, discrete, identifiable collective victim as children; as Hema and, insofar as the sexual violence is concerned, mostly female children. The ICC analytical framework in Ntaganda considered the UPC/FPLC child soldier/sex slaves only as individual victims or a group of individual victims. This erroneous (on the respectful view here) characterization precluded consideration of the international atrocity crimes of rape and sexual slavery perpetrated against these Hema children as crimes against humanity including ‘age-based persecution’. The latter perpetrated against a discrete, protected, child civilian collective providing forced labour and against individual children targeted based on the discriminatory grounds of age, ethnicity and gender which defined a specific group identity.88 The particular child collective targeted was that of the ‘Hema female children under fifteen incorporated into the UPC/FPLC’.89 That group, furthermore, was part of the targeted larger Hema child civilian collective and the Hema civilian population

86

Rome Statute at Article 8 (1). Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 44 at p. 22. 88 Likewise there was age-based persecution of Lendu children raped and at times sexually enslaved by the UPC/FPLC; persecution based on the discriminatory grounds of age intersecting with ethnicity and gender. 89 The ICC Prosecutor unfortunately advanced charges only in respect of the UPC/FPLC child soldier/sex slaves under 15. 87

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generally.90 In the next section is presented a Rome Statute element by element analysis of the age-based persecution of Hema children incorporated into the UPC/FPLC as child soldier/sex slaves.

3.2.7

Rome Statute Element by Element Analysis of the ‘Age-Based Persecution’ of Hema Children Incorporated Into the UPC/FPLC as Child Soldier/Sex Slaves

Let us consider then the basis for the claim here that the children incorporated into the UPC/FPLC as child soldier/sex slaves comprised (i) a persecuted discrete child collective; a protected entity in itself under IHL/CIL and (ii) also a group persecuted as ‘a part’ of the larger Hema child civilian collective targeted in Ituri by the UPC/FPLC. We do so by relating the relevant facts of the Ntaganda case to the various Rome Statute elements of the crime against humanity of ‘persecution’: Rome Statute Elements of the Crime of Persecution: (i) Element One of the Crime Against Humanity of Persecution: “The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights”: The children (persons under age 18) incorporated into the UPC/FPLC were deprived, contrary to international law of (i) their liberty and (ii) their fundamental right to security of the person physically and psychologically. This in part by being forced to engage in child soldiering that involved committing atrocities. The coercive circumstances created by the UPC/FPLC militia that led to some of the UPC/FPLC child soldiers being recruited and then committing atrocities for their Hema commanders implicates those Hema commanders most responsible also in perpetrating upon their child soldier/sex slaves the crime against humanity of torture involving the infliction of great mental pain (Rome Statute Article 7 (1)(f)).91 Note

90

There could justifiably have been aggravated charges imposed in Ntaganda in respect of the rape and sexual slavery of UPC/FPLC child victims pertaining simply to the victimization of children per se. In Ntaganda the Court found that the child soldier/sex slaves were subjected to longer duration and more repeated sexual violation than were the Lendu child victims of rape and sexual slavery perpetrated by the UPC/FPLC and this was considered an aggravated circumstance in respect of the sexual international crimes as perpetrated against the child soldier/sex slaves. 91 Rome Statute Article 7 (1)(f) Elements of the crime of torture as a crime against humanity: Elements: “1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons; 2.Such person or persons were in the custody or under the control of the perpetrator; 3. Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions; 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population; 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”

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that a charge of torture in connection with the UPC/FPLC child soldier victims would allow for vindication of the liberty and security of the person rights of all the children who soldiered for the UPC/FPLC and were severely deprived of those rights as a result and not just for those UPC/FPLC child soldiers under 15. In respect of the Hema female children incorporated into the UPC/FPLC rebel militia, this deprivation of security of the person was also, in particular, consequent to their being the victims of intraparty rape and sexual slavery. Thus the female children were acting in a position of servitude as child soldier/sex slaves. The rape and sexual slavery of these children incorporated into the UPC/FPLC occurred in the context of a widespread and systematic attack on the Hema civilian population. The latter through coercion to surrender certain of their children to the UPC/FPLC. Hence the crimes against humanity set out at Rome Statute Article 7(1)(g)-1 rape and Article 7(1)(g)-2 sexual slavery were implicated on the facts and the law and these crimes also met the elements as war crimes. In turn these crimes against humanity and war crimes constituted the further crime against humanity of ‘agebased persecution’. The foregoing is not an exhaustive list of the crimes against humanity and other international crimes that potentially could have been charged in relation to the age-based persecution of the Hema child collective incorporated into the UPC/FPLC. (ii) Element Two of the Crime Against Humanity of Persecution: “The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such”: The children forcibly transferred to and incorporated into the UPC/FPLC were targeted due to their group identity as Hema civilians and as children. That child collective was targeted at the same time as ‘a part’ of the Hema population as a whole. The widespread and systematic attack on the Hema civilian population was effectuated in the form of coercion to surrender certain of their children to the UPC/FPLC. The contextual element regarding crimes against humanity of an attack on a civilian population is thus met. (iii) Element Three of the Crime Against Humanity of Persecution: “Such targeting was based on political, racial, national, ethnic, cultural, religious, gender . . .or other grounds that are universally recognized as impermissible under international law”(emphasis added). The targeting of the female children incorporated into the UPC/FPLC for child soldiering as well as for victimization through rape and sexual slavery by the Hema UPC/FPLC perpetrators was based on, at a minimum (i) the children’s ethnicity (Hema),92 (ii) their age (as children), and (iii) their gender;93 all the foregoing being

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Lendu children were also raped and sexually enslaved by the UPC/FPLC. In this particular case their biological sex as female and gender presentation as female rendered them vulnerable to sexual enslavement. 93

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discriminatory grounds for targeting universally recognized as contrary to any permissible ground under international law. Presumably the rape and sexual slavery both (i) satisfied the perpetrators’ sexual appetites and (ii) were amongst the methods of subjugation and intimidation developed by the UPC/FPLC to ensure the children’s total loyalty and compliance with any order such as committing atrocities. In this regard note that the evidence showed that the female child UPC/FPLC child soldier/sex slaves were as engaged directly in the armed hostilities as were the male child soldiers in the armed Hema militia group.94 The Trial Chamber in Ntaganda held that “the Court may exercise jurisdiction over alleged acts of rape and/or sexual slavery committed by members of the UPC/FPLC against UPC/FPLC child soldiers under the age of 15 years’.95 On the analysis here then age-based persecution as a crime against humanity occurred in part in connection with the Rome Statute crimes of rape and sexual slavery96 perpetrated against the children (both under and over 15)97 incorporated into the UPC/FPLC. These crimes were perpetrated against the children on impermissible grounds under IHL; ethnicity, age (their status as children) as well as their gender. Persecution took place against the defined child collective incorporated into the UPC/FPLC, in addition, in connection with the war crime of recruitment and use of the children under 15 for active participation in the armed hostilities; hostilities which involved the UPC/FPLC committing mass atrocities. (iv) Element Four of the Crime Against Humanity of Persecution: “The conduct was committed in connection with any act referred to in article 7, paragraph 1,98 of the Statute or any crime within the jurisdiction of the Court” The current author argues (as previously here discussed) that the rape and sexual slavery of the Hema children incorporated into the UPC/FPLC were crimes against humanity as well as constituting war crimes just as in the case for the victimized Lendu children raped and sexually enslaved by the UPC/FPLC. This then meets the Rome Statute element four requirement for a connection between (i) the age-based 94 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of July 8, 2019), para 406 at p. 180. 95 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 21 at p. 10. 96 There were additional international atrocity crimes that could have been charged such as torture as a crime against humanity perpetrated by the UPC/FPLC against the children (over and under 15) incorporated into the armed Hema militia i.e. mental torture relating to separation from family, coercion to kill and commit other atrocities etc.(See Grover, SC (2014) The torture of children during armed conflicts: The ICC failure to prosecute and the negation of children’s human dignity (N.Y.: Springer Publishing). 97 Rape and sexual slavery as war crimes perpetrated against the under 15s incorporated into the UPC/FPLC were prosecuted by the ICC Prosecutor and not those crimes as committed against the UPC/FPLC child soldiers 15 and over as only the former were charged. 98 The Rome Statute Elements of the Crimes refers to crimes against humanity as “among the most serious crimes of concern to the international community as a whole”. . .(Rome Statute Elements of the Crime Article 7 Introduction, paragraph one).

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persecution as a crime against humanity to (ii) other international crimes and (iii) also meets the necessary threshold expected for the gravity of the crimes underlying the persecution. In sum then the Hema child civilian collective was targeted by the UPC/FPLC for various Rome Statute Article 7 crimes against humanity and for war crimes due to their group identity as Hema and as children thus constituting age— based persecution of this group.99 (v) Element Five of the Crime Against Humanity of Persecution: “The conduct was committed as part of a widespread or systematic attack directed against a civilian population” The gross maltreatment of the children and violation of their fundamental rights as UPC/FPLC child soldier/sex slaves was committed as part of a widespread and systematic attack on the Hema civilian population. The latter occurred in the form of the coercive methods used by the UPC/FPLC to force the Hema civilian families to surrender children as child soldiers to fight with the militia in the Hema cause to drive the Lendu from the Ituri region.. (vi) Element Six of the Crime Against Humanity of Persecution “The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population” The UPC/FPLC Hema perpetrators knew that their international atrocity crimes against the children incorporated into the UPC/FPLC were part of a widespread and systematic attack on the DRC Hema civilian population. The UPC/FPLC perpetrators were responsible for that attack in the form of the forcible transfer, by the use of varied coercive means from threat to abduction, of the Hema children to the UPC/FPLC as child soldiers, including those under 15, and for their further subjugation through rape and sexual slavery and also by way of other methods.100 In summary then; it is here contended that the Rome Statute elements of the crime against humanity of persecution (specifically age-based persecution intersecting with the discriminatory grounds of ethnicity and at times also gender) were met.

3.2.8

The UPC/FPLC Child Soldiers as Enslaved Civilians

The ICC Court in Ntaganda repeatedly articulated what, on the legal analysis here, with respect, was to a great degree a faux legal distinction between the Hema

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A segment of the Hema child civilian collective was transferred to the UPC/FPLC and incorporated into the militia but were not, on the legal analysis here, thereby morphed into combatants as that status is understood in international humanitarian law. 100 Likewise the rape and sexual enslavement of the Lendu children by the UPC/FPLC was part of a widespread and systematic attack in that case on the Lendu civilian population but that attack included also other heinous crimes such as mass murder.

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children incorporated into the UPC/FPLC as child soldier/sex slaves and the Lendu children raped and sexually enslaved by the UPC/FPLC. . . .the rape and sexual slavery of civilians and of female UPC/FPLC members under the age of 15 in this case are very serious crimes (emphasis added).101 While his degree of intent in relation to the commission of the sexual crimes against the UPC/FPLC victims was lower than for the sexual crimes against civilians. . .(emphasis added)102 The Chamber found Mr Ntaganda responsible for sexual violence crimes committed against two distinct types of victims, namely members of the civilian population. . .and female UPC/FPLC members under the age of 15. . . the Chamber analyzed the two types of victims separately and pronounces a separate sentence for rape and sexual slavery as war crimes for the civilian victims and the UPC/FPLC victims (emphasis added)103

The Court suggested that there were factual differences in the perpetration of the rape crime as against (i) the child civilians and (ii) as against the UPC/FPLC child soldier/sex slaves who suffered more systematic repeated rape.104 Nevertheless, on the respectful view here, the distinction between these two child collectives should not have been drawn as between child civilians versus alleged non-civilian UPC/FPLC child soldiers. As noted by the LRV, the children were incorporated into the UPC/FPLC as child soldiers but that is not equivalent to their being ‘members’.105 Certainly they were not members in the technical sense of being a ‘combatant member’ of an armed group or armed force (a soldier recognized as such under IHL/CIL per Article 43 AP I).106 Further being enslaved and incorporated into an armed group is arguably inconsistent with any common sense understanding of what ‘membership’ in an armed group generally connotes. On the view here, in addition, aggravated crime charges could have been brought also for the rape and sexual slavery of child soldiers over age 15 as they were also part of the enslaved Hema child soldier/sex slave collective victim: While most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat in

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Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement, para 130 at p. 58. 102 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement, para 130 at p. 58. 103 Summary of ICC Trial Chamber VI’s sentencing judgment in the case of The Prosecutor v. Bosco Ntaganda, issued on 7 November 2019 https://www.icc-cpi.int/itemsDocuments/ 191107-ntaganda-sentencing-judgment-summary-eng.pdf At para 23, p. 7. 104 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement, para 130 at p. 58. 105 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of January 4, 2017, para 33 at p. 15. 106 Protocol I:Additional Protocol I to the 1949 Geneva Conventions Article 43.

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the power of a party to the conflict, the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope of the protection against such conduct. In this regard the Chamber recalls the Martens clause, which mandates that in situations not covered by specific agreements, ‘civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’107

While the Ntaganda Trial Court seemed, at points, to tacitly imply that the children incorporated into the UPC/FPLC as child soldiers were not a ‘protected group’ as civilians;108 the court did hold that they were hors de combat at least at the time of their suffering repeated rapes. The Court further held that the protections against sexual slavery and rape existed for these children regardless their precise victim status but, at the same time, precluded them from the category of child victims of rape and sexual slavery as also crimes against humanity and of ‘age-based persecution’ perpetrated by the UPC/FPLC. It is here contended that due to the (on the view here) legally unjustified limiting of the charges in this way; the Ntaganda Trial Court did in fact inadvertently undermine the gravity of the sexual violence and sexual enslavement international crimes perpetrated against the UPC/FPLC child soldier/sex slaves. This by framing the crimes of rape and sexual slavery perpetrated against the UPC/FPLC child soldier/sex slaves only as war crimes constituting “serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law” and not also as crimes against humanity.109 Recall that crimes against humanity “as defined in article 7 are among the most serious crimes of concern to the international community as a whole, warrant and entail individual criminal responsibility, and require conduct which is impermissible under generally applicable international law, as recognized by the principal legal systems of the world.”110 On the analysis here, the Ntaganda Trial Court, as a result, unfortunately did not fully hold accountable the perpetrators for the suffering of the children incorporated into the UPC/FPLC as child soldier/sex slaves. With respect, it is here argued that this was the case notwithstanding the Trial Court’s endorsement of the view that there was (contrary to the position of the Defence in Ntaganda) no legal basis in international law to limit the protection of vulnerable persons who suffered intraparty violence. On that issue the Ntaganda Trial Court stated: The Chamber further considers that limiting the scope of protection in the manner proposed by the Defence is contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict,. . . In doing so, international

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Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, Judgment January 4, 2017, para 47 at pp. 24–25. 108 This too may have contributed to the failure to view the rape and sexual slavery of UPC/FPLC children also as crimes against humanity and not only war crimes. 109 Rome Statute War Crimes Article 8(2)(e). 110 Rome Statute Elements of the Crime Article &(1) Introduction.

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3 Age-Based Persecution Targeting Children humanitarian law accepts that the parties’ objective to overcome the opposition will result in certain suffering, damage and harm, but specifically determines that such consequences ought only to follow from actions that are militarily necessary or that will result in a definite military advantage. Raping and sexually enslaving children under the age of 15 years, or indeed any persons would never bring any accepted military advantage, nor can there ever be a necessity to engage in such conduct.111

There is a broad consensus among States that rape and sexual slavery of any person is a tactic in armed conflict that offends the conscience of humanity and which, depending on the facts, involves conduct by individual perpetrators that may properly be charged as involving certain acts of genocide and/or crimes against humanity and/or war crimes. While such tactics may not bring any “accepted military advantage” in the sense of military advantage brought about by legitimate acts of war consistent with IHL/CIL, at the same time, tragically, such acts do provide military advantage by the demoralizing effect they have on the targeted collective victim and the chaos they wreak. This explains in part the prevalence of widespread and systematic rape and sexual slavery also in contemporary conflicts. It is here argued that the children incorporated into the UPC/FPLC as child soldier/sex slaves were, under international humanitarian law, themselves at all times ‘civilians, and did not hold the legal status112 of ‘combatants’ according to 111

Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, Judgment January 4, 2017, para 48 at pp. 25–26. 112 While the children incorporated into the UPC/FPLC did not legally/technically hold the official status of ‘combatant’ under IHL/CIL (see Protocol 1 Additional to the 1949 Geneva Conventions Article 43), UPC/FPLC child soldiers who participated actively/directly in hostilities and posed an imminent threat were, per State practice and many military manuals, nevertheless lawful targets for attack from a lawful opposing belligerent until the children’s active involvement and the imminent threat it posed ceased. Here, however, the matter is complicated by the fact that the Lendu militia was also not a lawful armed group adhering to IHL/CIL. However even assuming the UPC/FPLC child soldiers were under lawful potential attack for the aforementioned reason; their status was still under IHL/CIL technically that of ‘civilian ‘and not ‘combatant’. This is a confusing state of affairs as reflected in the following ICRC commentary “Persons taking a direct part in hostilities in non-international armed conflicts are sometimes labelled “combatants”. . . However, this designation is only used in its generic meaning and indicates that these persons do not enjoy the protection against attack accorded to civilians, but this does not imply a right to combatant status or prisonerof-war status, as applicable in international armed conflicts” (International Committee of the Red Cross IHL Database: International Customary Law Rule 3 https://ihl-databases.icrc.org/customaryihl/eng/docs/v1_rul_rule3) This is particularly problematic with regard to children participating in non-international armed conflict as they have a special higher and broader privilege of protection under IHL/CIL than the protected status affords civilians generally. The latter likely explains why Protocol II Additional to the 1949 Geneva Conventions includes a stipulation that children who participated actively in a non-international armed conflict if captured are yet entitled to the same aid and care as children who did not participate again reflecting the special protected status of children qua children (collectively) and individually even when they participated in armed conflict actively and directly and even when not entitled to the privileges attaching to combatant status (i.e. prisoner of war; a protected group). (Protocol II Article 4(3)(c) “children who have not attained the age of 15 years shall neither be recruited in the armed forces or groups nor allowed to take part in

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the criteria set out at Protocol I Additional to the 1949 Geneva Conventions, Article 43.113 The conflict in the DRC that gave rise to the Ntaganda prosecution was an armed non-international conflict and combatant status under IHL is not available in such conflicts114 though certain IHL protections still apply for fighters who are captured for instance. The children incorporated into the UPC/FPLC were not ‘combatants’ in any legal technical sense under IHL for the aforementioned reason and also in part because they had no unqualified right to participate in the armed conflict115 as children. This given that IHL/CIL prohibits the use of young children in armed conflict and discourages the use of children generally. Though this is not reflected necessarily in all State practice; most States that use children in their armed forces use the older child at least above 15 years in age. In addition the children over and under 15 were integrated into the UPC/FPLC under coercive circumstances creating duress. That situation arguably makes any alleged consent question irrelevant116 such that the children were in fact civilian child sex slaves providing forced labour in terms of ‘soldiering’ and sexual services contrary to Additional Protocol II Additional to the 1949 Geneva Convention Article 4(3) which guarantees the

hostilities; Protocol II Article 4(3)(d) “the special protection provided by this Article to children who have not attained the age of 15 years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured. 113 ‘Child soldier’ is a commonly used colloquialism referring to children incorporated into an armed force or group. However the term combatant refers to persons who have an unqualified right to participate in armed conflict, and to members of forces that adhere to international humanitarian law and are engaged in an international conflict (Article 43 Protocol I Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflict (June 8, 1977) https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ART/470-750053?OpenDocument. 114 “In the context of internal armed conflicts, humanitarian law does not use the term combatant because it is difficult to determine clearly who is a member of the national armed forces and who is a member of an organized opposition group” and only the former are entitled to combatant status as direct participants in the hostilities. Doctors Without Borders The Practical Guide to International Humanitarian Law https://guide-humanitarian-law.org/content/article/3/combatants/. 115 The definition of combatant under Protocol I Additional to the 1949 Geneva Conventions Article 43 stipulates that the person with combatant status is a person who has an unqualified right to participate in the hostilities but children qua children do not have such an unqualified right under IHL/ CIL legitimately conferred by the State or non-State party. Becoming a so-called child soldier does not eliminate children’s special protected status as children under IHL/CIL and the associated limitations on their legitimate participation in armed conflict. 116 The ICC and other international criminal tribunals such as the ICTR have ruled that coercive circumstances can eliminate the issue of consent from the legal analysis such that the prosecution need not prove lack of consent as a separate element. It is here argued that recruitment and use of child soldiers under coercive circumstances should likewise lead to an inference of lack of consent here of the child to ‘soldiering’ and/or ‘sexual violence’ or other sexual contact (See MacKinnon, C The recognition of rape as an Act of Genocide –Prosecutor v Akayesu (October 27, 2008) Guest Lecture Series Office of the prosecutor of the ICC https://www.icc-cpi.int/NR/rdonlyres/ AF3FA255-B1D9-4FA4-992F-56079A2DCC63/279736/ICCOTP20081027MacKinnon.pdf.

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protection of children (age undefined).117 It would be contrary to the logic of IHL/CIL to assume that such forced labour is acceptable if the child victims are within one’s own party to the conflict but not so if they are members of the adversary or acceptable if the children are age 15 or older but under 18. This in that IHL/CIL sets out that children are to receive special care and protection during armed conflict without consideration of which party to the conflict claims them as their own or their specific age under 18 years (i.e. in respect of non-international armed conflict Protocol II to the 1949 Geneva Convention at Article 4(3) sets out that “children shall be provided with the aid and care they require”. . . (where the age range for ‘child’ is left undefined).118 Finally the UPC/FPLC did not adhere to IHL and hence none in the force could be considered combatants even if the conflict had been an international one since Protocol I to the 1949 Geneva Conventions Article 43119 specifies that to attain the status of ‘combatant’ the armed group or force in question must adhere to IHL which was certainly not the case for the UPC/FPLC.

3.2.9

Age-Based Persecution of the Child Collective ‘As Such’

The ICC Prosecutor in Ntaganda declined to charge the ‘age-based persecution’ of the Lendu child collective or of the UPC/FPLC Hema child collective.120 Yet both these child groups, defined by age and ethnicity, were targeted collectives ‘as such’ and subjected, on the analysis here, to ‘age-based persecution’ as a crime against humanity. The ICC Trial Chamber in Ntaganda explained that “The term ‘civilian population’, within the phrase ‘directed against any civilian population’ [the context of crimes against humanity being a widespread or systematic attack against a civilian population] denotes a collective, as opposed to individual civilians.”121 In the 117

Protocol II Additional to the August 12, 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflict (June 8, 1977) https://ihl-databases. icrc.org/ihl/WebART/475-760008?OpenDocument (the DRC armed conflict at issue in Ntaganda was a non-international one). Note that Geneva Convention IV Article 51 prohibits the use of forced labour of any kind for children (persons under age 18) by an Occupying power in the context of international armed conflict. 118 Protocol II Additional to the August 12, 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflict (June 8, 1977) (June 8, 1977) https:// www.ohchr.org/en/professionalinterest/pages/protocolii.aspx. 119 Protocol I Additional to the August 12, 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflict (June 8, 1977) https://ihl-databases.icrc.org/applic/ihl/ ihl.nsf/ART/470-750053?OpenDocument. 120 Non-Hema children from various minority groups were also recruited to the UPC/FPLC and the argument presented here applies to them as well though the majority of UPC/FPLC child soldiers were Hema. 121 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of July 8, 2019) At para 667 at p. 328.

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Ntaganda case the persecution of individual children, based on their group identity and of the child collective ‘as such’ occurred in the context of an attack on a civilian population in Ituri region of the DRC (both the Hema and the Lendu; the former by coercing surrender of their children to the UPC/FPLC to serve as child soldiers and the latter through all manner of international atrocity crimes). The Trial Chamber in Ntaganda explained that the Rome Statute Elements of the Crimes stipulates that (i) crimes against humanity pertain to attacks on “any” civilian population: “Attack directed against a civilian population” in these context elements is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population (emphasis added)”122 and (ii) “Whereas a civilian population under Article 7(1) cannot constitute a limited and randomly selected group of individuals, the use of ‘any’ indicates that the provision should not be understood as being limited to populations defined by a common nationality, ethnicity, or other similar distinguishing features (emphasis added).”123 In this regard note that “the UPC/FPLC extensively recruited [as child soldiers] individuals of all ages, in particular ‘young people’, including individuals under the age of 15 in various locations throughout Ituri. . .The UPC/FPLC mobilized primarily Hema, but also Bira, Alur, Lugbara, and Nyali (emphasis added).”124 In addition, “The UPC/FPLC also imposed an obligation on families to provide one or several ‘children’ to the UPC/FPLC for military service, including by threatening them.”125 Thus the contextual element for crimes against humanity was met on the facts of the UPC/FPLC attack on the Hema and on the Lendu civilian populations and in particular that part constituted of children. On the legal analysis here then an erroneous distinction was made between (i) Lendu child civilians subjected to rape and sexual slavery by the UPC/FPLC and (ii) so-called child soldier/sex slaves incorporated into the UPC/FPLC. This by way of the failure to charge and prosecute rape, and sexual slavery also as crimes against humanity in regards to the latter child collective victim. In Ntaganda the Appeals Chamber noted that “. . .in practice it is likely that in many cases the victims of rape or sexual slavery would actually be “protected persons” or “persons not actively participating in hostilities. . .”.126 The Appeals

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Rome Statute, Elements of the Crimes, Crimes Against Humanity, Introduction Article 7(3). Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of July 8, 2019) at para 667 at p. 328. 124 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of July 8, 2019) at para 347 at pp. 154–155. 125 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI judgment of July 8, 2019) at para 349 at p. 155. 126 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 OA5 (Judgment on the appeal of Mr Ntaganda against the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9)(June 15, 2017 para 48 at p. 20. 123

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Court in Ntaganda noted that victim status requirements are not a general rule of IHL and they are not under Rome Statute Article 8(2)(e). For that reason, amongst others, the Chamber held that there is no bar to holding that the rape and sexual slavery of child soldier/sex slaves belonging to the same side (same party to the armed conflict) are war crimes under Rome Statute Elements of the Crime 8(2)(e)vi-1 and 8(2)(e)vi2 respectively. The child civilian collective has a special protected status under IHL/CIL. That status affords children more protection than for other civilians and allows children (in particular, but not necessarily exclusively, children under 15) to retain those privileges in any period where they are not fighting even if they were previously taking relatively continuous active part in the hostilities (see Protocol II Additional to the 1949 Geneva Conventions Article 4(3)). It is relevant in the latter regard also to recall that the UPC/FPLC child soldiers were sexually enslaved and under ownership and control of the UPC/FPLC such that the children’s behavior, though intentional, was in essence not self-directed in any meaningful sense at all. To appreciate the import of this let us first consider what the Rome Statute Elements of the Crime articulates in respect of sexual slavery: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.127

Hence for child soldier/sex slaves their combat and other military engagements were forced enslaved labour and, on the analysis here, allows for a legal consideration such that these children incorporated into the UPC/FPLC are properly considered as having been civilians at all material times. The current author is agreed with the Special Court of Sierra Leone in the case of Prosecutor versus Brima, Kamera and Kanu as to the distinction between persons who are civilians and persons hors de combat who must still be regarded as members of an armed force or group who enjoy the protections associated with combatant status for those who have laid down arms for whatever reason.128 As the children incorporated into the UPC/FPLC were enslaved and forcibly transferred to the Hema militia; on the legal analysis here they were not ‘members’ of the UPC/FPLC according to the ordinary and common connotations assigned to the notion of ‘membership’. Not being members of the UPC/FPLC, but rather child soldiers doing soldiering ‘in servitude’; the child soldier/sex slaves could not be considered to be either combatant active participants in the hostilities nor hors de combat at points as under IHL former ‘combatants’ (even were the legal status of combatant available under IHL in a non-international armed conflict which it is not). Rather the child solder/sex slaves were civilians

127

See Rome Statute Elements of the Crimes, Crimes Against Humanity of Enslavement Article 7 (1)(c)footnote 11, Crimes Against Humanity of Sexual Slavery Article 7(1)(g)-2 footnote 18. 128 Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, para 219 at p. 83.

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forced to participate in the armed hostilities and they were protected civilians at those points where they were not participating in the hostilities while being subjected to repeated rape by their adult compatriots. The UPC/FPLC child soldier/sex slaves were thus civilian victims of also crimes against humanity perpetrated by the UPC/FPLC including rape, sexual slavery and persecution both as individuals based on their group identity (defined by age, and ethnicity and often gender) and as a child collective ‘as such.’ The same is true for the Lendu children raped and sexually enslaved by the UPC/FPLC. The failure to acknowledge the UPC/FPLC child soldiers as civilian fighters (though not technically ‘combatants’ under the IHL Protocol I Article 43 definition)129 is in effect a counter narrative to the fact that the children were enslaved and providing forced child soldiering. It distorts the picture of who these children were as protected civilians130 who were enslaved UPC/FLC child soldier/sex slaves and thereby is not a full acknowledgement of their suffering. The UPC/FPLC child soldier/sex slave victims were, on the respectful view here, thus accorded second tier victim status before the ICC, however unintended, due to the scope of the charges in their case being unjustifiably narrower than for the victimized Lendu children raped and sexually enslaved. While the ICC held that it did not need to determine whether or not the child soldiers were ‘members’ of the UPC/FPLC (as they were in any case under international law protected against rape and sexual slavery),131 the failure to designate these children as protected civilians (except when posing an imminent threat) meant that in practice they were treated as if they were UPC/FPLC ‘members’. That is not as civilians targeted also for crimes against humanity as members of a distinct particular child civilian collective which was part of a larger civilian population attacked by the UPC/FPLC. Thus the ICC Prosecutor did not charge Ntaganda132 (amongst other charges) with ‘age-based persecution’ as a crime against humanity perpetrated against the particular child collective comprised of children incorporated into the UPC/FPLC. Further the Ntaganda Trial Chamber did not comment on the fact that the crime of ‘age-based persecution’ was applicable in the case of children (persons under 18) incorporated into the UPC/FPLC victimized through brutal child soldiering, rape and sexual slavery. Recall that the Rome Statute allows for recognition of ‘age-based persecution’ targeting children since Article 7(h) concerning persecution as a crime against humanity refers to persecution “against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 129

Referring to Protocol I Additional to the 1949 Geneva Conventions Article 43. Protected civilians who lost that protection only temporarily when posing an imminent threat. 131 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 OA5 (Judgment on the appeal of Mr Ntaganda against the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9)(June 15, 2017 at para 24. 132 Ntaganda was charged as a member of the UPC/FPLC and as amongst those bearing the most responsibility for the atrocities committed against the Lendu. 130

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3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court (emphasis added).”133 Children, as members of a distinct particular child group (i.e. Hema children incorporated into the UPC/FPLC)134 are such an “identifiable group or collectivity” that may be subject to persecution as a crime against humanity as referred to in the Rome Statute persecution provision and analogous provisions in various other international criminal law statutes. Furthermore; as children are considered under international law as an especially vulnerable group and have a special status under IHL/CIL which entitles them to a higher level of protection than civilians generally, persecution of a particular child collective is a particularly significant violation of IHL/CIL135 and of international criminal law persecution provisions. Age then is a discriminatory ground for targeting that is universally recognized as impermissible under international law and this is especially so in respect of the persecution of children given children’s special protections which are even greater than that for adults during peacetime and during armed conflict. It is here argued that the failure of the ICC Prosecutor in Ntaganda to (i) charge rape and sexual slavery as also crimes against humanity perpetrated against the child soldier/sex slaves of the UPC/FPLC and (ii) also to charge ‘age-based persecution’ perpetrated against this distinct child collective in part through these sexual violence crimes was an important but legally insupportable partial victory for the Ntaganda Defence. 133

Rome Statute Article 7(1)(h). Most of the children incorporated into the UPC/FPLC as child soldier/sex slaves were Hema but there were also children from various minority groups and the discussion here is applicable also to those children. 135 Insofar as rape and sexual slavery of the protected class UPC/FPLC child soldier/sex slaves are concerned (the children considered as at least hors de combat due to their sexual enslavement and repeated rape); those war crimes were serious breaches of Common Article 3 (see AP II Article 4 (1) “They shall in all circumstances be treated humanely, without any adverse distinction” and 4 (2) (a)(e)(f)(h) even though the war crimes occurred in the context of a non-international conflict. Protocol II Additional to the August 12, 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflict (June 8, 1977). Note the ICRC 1987 Commentary that “Article 4, paragraphs 1 and 2, reiterates the essence of common Article 3” (ICRC 1987 Commentary on AP II Article 4 (available for download at https://ihl-databases.icrc.org/ihl/ WebART/475-760008?OpenDocument). See also Eboe-Osuji, C (n.d.) ‘Grave breaches’ as war crimes: Much ado about ‘serious violations’?1–14 at p. 14 https://www.icc-cpi.int/NR/rdonlyres/827EE9EC-5095-48C0-AB04E38686EE9A80/283279/GRAVEBREACHESMUCHADOABOUTSERIOUSVIOLATIONS. pdf: “In the final analysis. . . there are more powerful reasons to conclude that to take the view that ‘grave breaches’ is limited to international armed conflicts is to miss the whole point of international humanitarian law. It is about protecting the core values of humanity. And humanity remains the same, regardless of where it is found—on the fields of a high-tech war involving major Western powers against each other or against other nations, as well as in the jungle of an African or Asian country embroiled in a civil war fought with cudgels, machetes, and knobkerries. A serious violation of international humanitarian law is a ‘grave breach’ on either occasion. That is easy to see if the protection of humanity is the aim of international humanitarian law, as it ought to be (emphasis added).” 134

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There was then a failure, despite the factual and legal basis to the contrary, to recognize the children incorporated into the UPC/FPLC as civilian or hors de combat victims of a variety of ‘crimes against humanity’ involving sexual violence (Rome Statute Article 7(1)(g)-1 ‘rape’; Article 7(1)(g)-2 ‘sexual slavery’; and Article 7(1)(g)-6 sexual violence), forcible transfer (Article 7(1)(d)), severe deprivation of liberty Article 7(1)(e) and persecution (Article 7(1)(h)) and to more fully vindicate their rights and search for justice. This failure occurred despite the fact that the Rome Statute regards sexual violence crimes, in particular against children, as especially grave.136 The failure to charge the sexual violence crimes perpetrated against the children (persons under age 18) incorporated into the UPC/FPLC as crimes against humanity is all the more tragic given the aggravating factors that characterized their suffering “While the number of female UPC/FPLC victims under the age of 15 is lower,137 their rapes were systematic and, for the UPC/FPLC victims subjected to sexual slavery, their deprivations of liberty lasted longer than for the civilian victims (emphasis added).”138 As some of the female children incorporated into the UPC/FPLC became pregnant, and given that the rapes of children incorporated into the UPC/FPLC, according to the facts accepted by the ICC, were systematic; a reasonable argument can be made that a) the ‘crime against humanity ‘of ‘forced pregnancy’ (Rome Statute Article 7(1)(g)-4 was also perpetrated against these children as was the ‘war crime’ of ‘forced pregnancy’ (Rome Statute Article 8(2) (e)(6)-4).139

3.2.10 The Overlooked Older UPC/FPLC Child Soldiers For children over 15 or for persons who appeared to be children but of undetermined age, though incorporated into the UPC/FPLC, the international atrocity crimes of rape, sexual slavery, forced pregnancy, persecution, deprivation of liberty and forcible transfer perpetrated against them were not addressed by the ICC Ntaganda court. The result is very unfortunately, in part, that an inadvertent false implication is created that these child victims 15 and over incorporated into the UPC/FPLC may have consented to the sexual violence perpetrated against them and to child

136

Summary of ICC Trial Chamber VI’s sentencing judgment in the case of The Prosecutor v. Bosco Ntaganda, issued on 7 November 2019 at para 27 at p. 9 https://www.icc-cpi.int/ itemsDocuments/191107-ntaganda-sentencing-judgment-summary-eng.pdf. 137 Lower here when compared to the numbers of sexual violence victims in the population the ICC labelled as civilian (Lendu population). 138 Summary of ICC Trial Chamber VI’s sentencing judgment in the case of The Prosecutor v. Bosco Ntaganda, issued on 7 November 2019 at para 27 at p. 9 https://www.icc-cpi.int/ itemsDocuments/191107-ntaganda-sentencing-judgment-summary-eng.pdf. 139 Rome Statute Elements of the Crime.

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soldiering such that it was consensual. The fact that Trial Chamber VI, in a very lengthy judgement in Ntaganda, pointed out that (i) the Rome Statute Elements of the Crime for rape do not consider the consent issue and (ii) that lack of consent thus need not be proven140 is buried: The Elements of Crimes clearly seek to punish any act of penetration where committed under threat of force or coercion, such as that caused by the threat of violence, duress, detention, psychological pressure or abuse of power or, more generally, any act of penetration taking advantage of a coercive environment. The establishment of at least one of the coercive circumstances or conditions set out in the second element is therefore sufficient alone for penetration to amount to rape within the meaning of Articles 7(1)(g) and 8(2)(e)(vi) of the Statute.141

However, as explained here previously, these international crimes against humanity were also perpetrated against these child civilians 15 and over who retained, on the analysis here, their civilian status or otherwise protected status even after being incorporated into the UPC/FPLC. These children were operating under duress which can be inferred from the overall coercive circumstances such as abduction of mostly Hema children to serve as child soldiers, threats to parents to surrender one or more of their children to the UPC/FPLC as well as from their sexual enslavement and cruel treatment by the UPC/FPLC and severe deprivation of liberty once incorporated into the militia. As Mackinnon points out “consent is meaningless for acts of a sexual nature that have a nexus to genocide, armed conflict, and crimes against humanity. . . (emphasis added)”142 This then holds also for the UPC/FPLC child soldiers 15 and over operating under duress as sex slaves143 and forced child soldier victims of the UPC/FPLC in the midst of ruthless armed conflict. As previously discussed, consent is, in any case, irrelevant to the legal analysis in cases of sexual violence upon those enslaved/trafficked as were the child soldiers of the UPC/FPLC. In the Ntaganda case, according to the ICC Prosecution, the only protected children insofar as the international crimes of rape and sexual slavery as war crimes against individuals was concerned as these impacted child members of the UPC/FPLC were, in practice, those children under age 15. The latter tact (on the respectful view here) is misguided and in effect inappropriately defines ‘child incorporated into the UPC/FPLC’ as being a person under 15 regardless the matter under consideration. This prosecutorial tact implicitly relied on Rome Statute Article

140

Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of July 8, 2019 (Disposition on the Merits-Guilt or Innocence on the various charges), para 934 at p. 425. 141 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of July 8, 2019 (Disposition on the Merits-Guilt or Innocence on the various charges), para 934 at p. 425. 142 MacKinnon, C The recognition of rape as an Act of Genocide –Prosecutor v Akayesu (October 27, 2008) Guest Lecture Series, ICC Office of the Prosecutor (MacKinnon 2008, p. 102). 143 Lack of consent is not an element of the crimes of sexual violence listed in the Rome Statute that must be proved by the prosecution. Rather lack of consent can be inferred from coercive circumstances and other factors giving rise to duress.

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8(2)(e)(vii) which article in fact specifically and only articulates the prohibition on the recruitment and use for active participation in armed hostilities of children under fifteen.144 The definition of ‘child’ at Rome Statute Article 8(2)(e)(vii) as a person under 15, however, is only in respect of that specific provision (see also the mirror provision regarding international armed conflicts)145 and is not to be regarded as a Rome Statute definition of the age range for ‘child’ as a victim of other international crimes such as rape and sexual slavery–whether that child is part of an armed group or armed force or not.146 It should be noted that to its’ credit the Ntaganda Trial Chamber pointed out that its’ hands were tied in terms of administering justice and imposing penalties on the UPC/FPLC perpetrators in respect of their crimes of rape and sexual slavery of children 15 and over who had been incorporated into the UPC/FPLC as child soldier/sex slaves. The Prosecution had requested of the Court that it impose penalties reflecting aggravating circumstances to take account of the rape and sexual slavery of children 15 and over and of those children whose age could not be determined “because these acts are sufficiently linked to the crimes for which Mr. Ntaganda was convicted.”147 The Chamber noted in reply that “In this regard . . .there was no legal reason warranting a restriction of the charges to members of the UPC/FLPC under the age of 15 [as victims], as rape and sexual slavery are prohibited against any person and constitute war crimes if the armed conflict nexus is established.”148 The Chamber went on to lament that the “Prosecution nevertheless made the conscious choice to only charge rape and sexual slavery of persons under the age of 15, and did not seek to amend or modify the charges after the Chamber’s and Appeals Chamber’s rulings on the jurisdictional question, thus making it impossible for these alleged crimes to be considered on their own.”149 The Trial Court rejected considering aggravated charges based on the atrocities committed against the children incorporated into the UPC/FPLC who were 15 and over or of undetermined age. The Court held that (i) the crimes perpetrated against the latter should have been charged independently and (ii) represented conduct that “. . .cannot be considered as having a sufficient link to 144

Rome Statute Article 8(2)(e)(vii) War crime of using, conscripting and enlisting children in the context of a non-international armed conflict. 145 Rome Statute Article 8(2)(b)(xxvi) concerning conscription or enlistment of children under 15 or their use in armed conflict in the context of an international armed conflict. 146 Ntaganda was also separately charged and convicted of the war crime of recruiting and using children under 15 as child soldiers and a sentence of 18 years imprisonment was imposed in that regard. 147 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement, para 128 at p. 57. 148 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement, para 128 at p. 57. 149 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement, para 128 at p. 57

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the crimes for which Mr Ntaganda was convicted, for the purposes of aggravation.”150 The Court explained that “The fact that crimes were committed against persons within an organization does not mean that their suffering can be an aggravating circumstance in relation to crimes committed against different victims within that same organization.”151 Essentially the Court held that accepting as aggravating circumstances the uncharged crimes perpetrated against the children 15 and over and against children of undetermined age incorporated into the UPC/FPLC would be tantamount to “sentencing an individual for uncharged crimes.”152 This issue might have been resolved by requesting aggravating circumstances be considered based on the mental suffering induced in the children under 15 by also witnessing and otherwise learning of the sexual atrocities perpetrated by the Hema militia adults against the older UPC child soldier/sex slaves. Perhaps this would have provided “a sufficient link to the crimes for which Mr Ntaganda was convicted, for the purposes of aggravation.”153 It was, it is here argued, a significant error that the Prosecution in Ntaganda did not pursue the rape and sexual slavery charges also in connection with child victims incorporated into the UPC/FPLC who were 15 and over or children but of undermined age. It was, on the respectful view here, tantamount to erroneously not considering these children as vulnerable and helpless in the circumstance of UPC/FPLC captivity and negating their IHL/ICL protected status in particular as children to be shielded from these particular international atrocity crimes.

3.2.11 More on Collective International Crimes The ICC in Ntaganda did not acknowledge that children as a collective as such were targeted. MacKinnon has noted that sexual violence crimes are “often not yet recognized as group based, or destructive of peoples as such, when actually they are (emphasis added).”154 It is here argued that the destruction in part or weakening 150

Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement para 129 at p. 58. 151 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement para 129 at p. 58. 152 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement para 129 at p. 58. 153 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement para 129 at p. 58. 154 MacKinnon, C The recognition of rape as an Act of Genocide –Prosecutor v Akayesu (October 27, 2008) Guest Lecture Series, ICC Office of the Prosecutor (MacKinnon, C (2008) The ICTR’s legacy on Sexual Violence, New England Journal of International and Comparative Law, Vol. 14 (2), 101–110 at p. 103.

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of a larger distinct civilian population is particularly acute where there is sexual violation of its’ children. Such sexual violence international crimes when against children have been erroneously, most commonly, regarded as crimes against individual children or groups of individual children and not group-based crimes against children qua children (that is targeting a particular distinct child collective based on age and intersecting various other perpetrator-targeted attributes i.e. the children’s ethnic/religious group membership etc. (the latter constituting ‘age-based persecution’). The special protected status of child victims of rape and sexual slavery as children owed a higher duty of care under IHL/CIL than civilians in general was not fully in practice acknowledged by the ICC in Ntaganda. This is evidenced by the fact, for instance, that (i) the Lendu child victims were lumped together with adults as ‘civilian victims’ in the charging of rape and sexual slavery as crimes against humanity and war crimes perpetrated by the UPC/FPLC and (ii) the targeting of the UPC/FPLC child collective ‘as such’ was not considered in Ntaganda. Hence the children 15 and over and those children of undetermined age who were sexually enslaved and provided forced child soldiering155 did so with ultimately no accountability for the perpetrators in their case being rendered. In the Ntaganda case the international crimes of rape and sexual slavery were not charged as a form of age-based persecution committed against children as members of a child collective ‘as such’ (i.e. the child collective comprised of UPC/FPLC child soldiers for instance and the collective of Lendu children raped and/or enslaved by the UPC/FPLC).156 The Rome Statute crime against humanity of persecution requires that “The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such (emphasis added).”157 Rather persecution was charged only as a crime against humanity as against Lendu civilians generally. The latter in connection with the plan to drive out the Lendu from the targeted area by means of a variety of widespread and systematic attacks on that ethnic civilian population ‘as such’ that included mass

155

Note that the crime of armed groups or forces conscripting or enlisting children under age 15 and/or using them in armed hostilities is a categorical crime. This in that the Rome Statute stipulates as an element of that war crime a group membership criterion that delimits a particular child collective by age: “The perpetrator knew or should have known that such person or persons were under the age of 15 years” (i.e. Article 8(2)(e)(vii) (3)). Since the war crimes committed by Ntaganda and his group took place in a specific region of the DRC, the child collective targeted was defined by age, ethnicity, and locale and hence the charge of ‘age-based persecution’ of this particular child collective was legally viable under the Rome Statute. 156 “The Chamber found Mr Ntaganda responsible for sexual violence crimes committed against two distinct types of victims, namely members of the civilian population (Counts 4, 5, 7 and 8) and female UPC/FPLC members under the age of 15 (Counts 6 and 9)” (Summary of Trial Chamber VI’s sentencing judgment in the case of The Prosecutor v. Bosco Ntaganda, issued on 7 November 2019 para 23 at p. 7 (the issue of whether the children incorporated into the UPC/FPLC as child soldier/sex slaves were ‘members’ of the UPC/FPLC is discussed in this chapter as well as whether those children are to be considered combatants or instead civilians or combatants hors de combat. 157 Rome Statute Elements of the Crime Article 7(1)(h)(2).

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killings, appropriation and destruction of their property, rape of the females and sexual slavery, forcible displacement of the population, intentional attacks on protected objects.158 That narrow prosecutorial approach thus deftly avoided the filing of additional charges of ‘age-based persecution’ concerning the targeting of a child collective victim ‘as such’. Respectfully, on the view here, that approach did not fully and adequately meet the 2016 ICC Prosecutor Office Policy on Children commitment to “Wherever the evidence permits . . .seek to include charges for crimes directed specifically against children, as well as crimes that acutely or disproportionately affect children.”159 Where such full accountability has been pursued by the prosecutor successfully there is then a greater possibility perhaps of seeking reparation for child victims based on their being part of a targeted distinct child collective victim. The 2016 ICC Policy on Children in referencing the Rome Statute states that “The Statute recognises children as persons with individual rights, as members of families and as constituents of multi-generational communities.”160 However what is missing in the latter pronouncement is the fact that the Rome Statute articulation of international crimes also allows for prosecution of crimes against the child collective victim. There is then no bar in the Rome Statute to acknowledgement of children as members of victimized identifiable separable child collectives. Thus children as individuals, groups of individuals and/or a child collective itself as a distinct entity can be regarded, where the evidence exists, as direct child victim(s) of the international atrocity crimes at issue. However, the 2016 ICC ‘Policy on Children’ developed by the Prosecutor’s Office (with wide consultation) does not in fact address in any detail (i) the victimization of children based on their age-related group identity and intersecting additional perpetrator-targeted attributes or (ii) the targeting of child collectives as separable entities in and of themselves and, as such, also potential victims of ‘age-based persecution’ as a crime against humanity. This is unsurprisingly, but disappointingly, reflected in the narrow scope of the charges laid in the ICC various child victim related cases we are discussing here which do not include ‘age-based persecution’. This notwithstanding the fact that the 2016 ICC Policy on Children states that: Almost all crimes within the jurisdiction of the Court affect children. Certain provisions in the Statute make explicit reference to children. There are also crimes directed specifically against children or those that disproportionately affect them, some of which are set out below: *Conscription, enlistment and use of children under the age of fifteen years to participate actively in hostilities. . . . *Forcible transfer of children and prevention of birth. . . *Trafficking of children as a form of enslavement. . .may also cover instances in which children are subjected to forced labour or reduced to a servile status. . .

158

Compare Summary of Trial Chamber VI’s sentencing judgment in the case of The Prosecutor v. Bosco Ntaganda, issued on 7 November 2019 at p. 4. 159 ICC Policy on Children (2016) at p. 2. 160 ICC Policy on Children (2016) at p. 7.

References

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*Attacks against buildings dedicated to education and health care. . . *Torture and related crimes. . . *Persecution. . . *Sexual and gender-based crimes. . . (emphasis added)161

Persecution is arguably an inherent element in (i) crimes against humanity and (ii) genocide as those international atrocity crimes involve an element of targeting a distinct collective in whole or in part. War crimes may also be collective crimes in those situations, for instance, where the war crimes targeted individuals or groups of individuals due to their group identity and/or where committed as a widespread or systematic attack on a distinct civilian population (one that may also include other protected persons such as those hors de combat). It is here argued that where the child collective victim is targeted ‘as such’ (in whole or in part) based on age and various intersecting attributes i.e. ethnicity; the individual child victim’s suffering and possible death is equally linked to his or her group identity as for victims of collective crimes targeting a civilian population or other protected group with a mixture of ages. Yet to date ‘age-based persecution’ targeting children as children in connection with genocide, crimes against humanity, and/or war crimes has not been prosecuted in any international criminal law court or tribunal despite the evidence supporting the charge in various cases. In the next chapters we consider age-based persecution targeting children in connection with genocide (Chap. 4), crimes against humanity (Chap. 5) and war crimes (Chap. 6).

References Literature Eboe-Osuji C (n.d.) ‘Grave breaches’ as war crimes: Much ado about ‘serious violations’?1–14 at p. 14 https://www.icc-cpi.int/NR/rdonlyres/827EE9EC-5095-48C0-AB04-E38686EE9A80/ 283279/GRAVEBREACHESMUCHADOABOUTSERIOUSVIOLATIONS.pdf Grover SC (2014) The torture of children during armed conflicts: the ICC failure to prosecute and the negation of children’s human dignity. Springer MacKinnon C (2008) The recognition of rape as an Act of Genocide –Prosecutor v Akayesu (October 27, 2008) Guest Lecture Series Office of the prosecutor of the ICC. https://www.iccc p i . i nt / N R/ r d o n l y re s/ A F 3 FA 25 5 - B 1 D 9 - 4 FA 4 - 9 92 F - 5 6 07 9 A 2 D CC 6 3/ 2 79 7 3 6/ ICCOTP20081027MacKinnon.pdf. Accessed 30 Jan 2021 McMahan J (2008) Collective crime and collective punishment. Crim Just Ethics 27(1):4–12 Nissel A (2004) Continuing crimes in the Rome Statute. Mich J Int Law 25(3):653–689 Sellers PV (2008) Sexual torture as a crime under international criminal and humanitarian law. City New York Law Rev 11(2):339–351

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International Criminal Court (ICC) Office of the Prosecutor Policy on Children (2016), pp. 10–25.

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Materials Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949 (Geneva Convention IV) https://ihl-databases.icrc.org/ihl/INTRO/380 (accessed October 10, 2020) Doctors Without Borders The Practical Guide to International Humanitarian Law. https://guidehumanitarian-law.org/content/article/3/combatants/. Accessed 5 Nov 2020 ICC Press Release (January 4, 2017) Nataganda case: ICC Trial Chamber VI rejects challenge to jurisdiction over two war crimes counts. https://www.icc-cpi.int/Pages/item.aspx? name¼PR1267. Accessed 15 Dec 2020 International Committee of the Red Cross Commentary on Article 4(3) of Protocol II to the 1949 Geneva Conventions. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/475. Accessed 5 Oct 2020 International Committee of the Red Cross International Humanitarian Law (IHL) Database: International Customary Law Rule 3. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_ rule3. Accessed 1 Oct 2020 International Criminal Court (ICC), Office of the Prosecutor Policy on Children November, 2016. https://www.icc-cpi.int/iccdocs/otp/20161115_OTP_ICC_Policy-on-Children_Eng.PDF. Accessed 7 Sept 2020 Protocol I Additional to the August 12, 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflict (June 8, 1977a). https://ihl-databases.icrc.org/applic/ ihl/ihl.nsf/ART/470-750053?OpenDocument (Accessed November 5, 2020) Protocol II Additional to the August 12, 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflict (June 8, 1977b). https://ihl-databases.icrc.org/ihl/ WebART/475-760008?OpenDocument (Accessed October 5, 2020) Rome Statute entry into force July 1, 2002. https://www.icc-cpi.int/resource-library/documents/rseng.pdf (accessed September 9, 2020 Rome Statute Elements of the Crime adopted 2010. https://www.icc-cpi.int/NR/rdonlyres/ 336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf (Accessed September 9, 2020)

Cases Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone, Trial Chamber II June 20, 2007 Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016 (accessed January 30, 2021) Prosecutor v. Krstic Case No:IT-98-33-A Appeal Judgement April 19, 2004. https://www.icty.org/ x/cases/krstic/acjug/en/krs-aj040419e.pdf (accessed October 21, 2020) Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019a, Sentencing Judgement https://www.icc-cpi.int/CourtRecords/CR2019_06674.PDF (accessed December 16, 2020). See also Summary of Trial Chamber VI’s sentencing judgment in the case of The Prosecutor v. Bosco Ntaganda, issued on 7 November 2019 https://www.icc-cpi.int/ itemsDocuments/191107-ntaganda-sentencing-judgment-summary-eng.pdf (accessed November 4, 2020) Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Summary of Sentencing Judgement. https://www.icc-cpi.int/itemsDocuments/191107-ntaganda-sentencingjudgment-summary-eng.pdf (Accessed December 16, 2020)

References

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Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of July 8, 2019b (Disposition on the Merits-Guilt or Innocence on the various charges) Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) Closing brief on behalf of the Former Child Soldiers, November 7, 2018 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, Judgment January 4, 2017 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 OA5 (Judgment on the appeal of Mr Ntaganda against the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9) (June 15, 2017) Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 ICC Pre-Trial Chamber II Decision on the Charges of The Prosecutor Against Bosco Ntaganda June 9, 2014

Chapter 4

The Persecution of Children In Connection With Genocide

4.1

Genocide Targeting the Child Collective ‘As Such’ or as ‘Part’ of the Larger Protected Group

The Rome Statute genocide provision refers to specific genocidal acts against one or more persons (that is; “killing”, “causing serious bodily or mental harm”, “deliberately inflicting conditions of life calculated to bring about physical destruction”, “imposing measures to prevent births”, and/or “forcibly transferring children”).1 Each of the aforementioned genocidal acts, as the Rome Statute elements of the crime stipulate, are intended to destroy the targeted collective in whole or in part. In a genocidal context, individuals thus are targeted based on their group identity. Each genocidal act—defined as such in the Rome Statute—has as a key element “The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such (emphasis added)”2 of which the individual victim or groups of individual victims were or were perceived to be members. In instances where the genocidal perpetrator targets a part of a larger collective (where the larger collective is defined in terms of one or more of the protected dimensions of religion, ethnicity, nationality and/or ‘racial’ attributes); it may be that the part (of the larger collective targeted) is also a separable, discrete entity in itself. Such a ‘part’ then is itself also a collective victim that is defined by perpetrator perceptions and/or delineated based on objective characteristics. For instance the part of the larger collective targeted may be characterized in terms of age and/or gender and/or disability and/or sexual orientation and also on that basis or another be targeted for heinous international atrocity crimes. The intersecting traits of religion, ethnicity, nationality and/or ‘race’ that define the larger collective/group of origin for the part targeted may serve for the perpetrator as background baseline qualifiers for genocidal victimization of that part. In instances where the perpetrator wishes to 1 2

Rome Statute Elements of the Crime (2010) Articles 6(a) to 6(e). Rome Statute Elements of the Crime (2010) Articles 6(a) to 6(e).

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highlight the victimization of the especially vulnerable parts (i.e. children) of the larger collective/group of origin as, for instance, a propaganda move, (i) ‘the part’ targeted may more often be a collective victim in itself though, at the same time, (ii) part of a targeted larger collective/group of origin defined in religious, national, ethnic and /or racial terms.3 The perpetrator’s targeting of, for instance, the particular child collective generally or of children with disabilities, female children and/or children who are members of the LGBTQ+ population (or children with some or all of the foregoing attributes intersecting) involves targeting of each of those child groups ‘as such’ and as part of a larger targeted group of origin defined in terms of one or more of the protected grounds listed in Rome Statute Article 6. It is a genocide then by way of targeting those ‘parts’ as discrete child groups/collectives in themselves; constituent components of the religious, ethnic, national, and/or ‘racial’ larger collective/group of origin slated for genocide. In sum then child-targeted ‘age-based persecution’ in connection with genocide involves the severe deprivation of one or more of the fundamental rights of (i) a victimized ‘part’ (the particular child collective) of the larger collective/group of origin targeted for genocide where (ii) that part is defined by age and one or more intersecting attributes that are referenced in the genocide provision; religion, ethnicity, nationality and/or ‘race’ which are also perpetrator-targeted characteristics of the larger protected group. The Rome Statute genocide provision does not bar consideration of a part of the larger targeted collective/group of origin as a further protected collective victim in itself. This conceptual approach to an understanding of ‘age-based persecution’ in connection with genocide under the Rome Statute views children then (i) as themselves constituting a targeted protected collective victim and (ii) also as a part of a larger protected collective victim defined in religious, ethnic, national and/or ‘racial’ terms. Such a ‘theory of the case’ for prosecutorial purposes fits well, for instance, in considering the child victims belonging to the Yazidi religious/ethnic group in Iraq targeted by ISIS. Thousands of children, including Yazidi children, were amongst the Iraqi children from various ethnic groups who were forcibly transferred4 to serve as ISIS child soldier/sex slaves. The right against the forcible transfer of children to another group is a right that (i) belongs not only to the protected group of origin in respect of their children (a protected group of origin per Article 6(e) of the Rome Statute provision on

3 Whether the part targeted for genocide is most commonly to be considered as an entity in itself is a contentious question in international law and an open one. The current author is inclined to surmise that this may be the case in that the perpetrator of genocide and other international crimes against a category of persons defines the ‘part’ slated for destruction as a cohesive component of the larger group which the perpetrator seeks to annihilate through attacking its parts or its’ population in full. What is argued here, however, is that children themselves are a collective part of distinct larger groups and these particular distinct child collectives (with various intersecting attributes and often defined also by the delimited geographical region in which they live) are in themselves targeted for genocide and other international atrocity crimes as a collective child victim; an entity in itself. 4 That these children were forcibly transferred is a reasonable interpretation given the oppressive circumstance of ISIL-perpetrated mass atrocities in Iraq at the relevant time.

4.1 Genocide Targeting the Child Collective ‘As Such’ or as ‘Part’ of the. . .

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genocide defined by nationality, religion, ethnicity and/or ‘race’5) but also (under IHL/CIL and the Rome Statute) to (ii) the children themselves as individuals with legal personality and inherent human rights and to the particular child collective per se (a protected group in itself).6 Were this not the case then the children’s value to humanity would be considered only in terms of their membership in their religious, ethnic, national, and/or so-called ‘racial’ group of origin and in regards to its’ longevity. Each particular discrete child group which is ‘a part’ of a larger protected group (the latter as defined in the Genocide Convention) is, on the legal analysis here as explained, a distinct protected child collective in itself. The latter is defined first and foremost by age and then by the intersecting characteristics the children share with the larger group of origin. The particular child collective’s value to humanity, however, cuts across the religious, national, ethnic and so-called racial categories into which the children’s larger group of origin does or may be perceived to fall. The child collective has value as comprised of children per se and that value to humanity stands also autonomously thus separate and apart from the attributes that the children have which intersect with those of their ethnic, religious, national and/or ‘racial’ group of origin.7 The children retain their value to humanity as no less, furthermore, if they eschew their group of origin altogether. Further even where children may be permanently separated from their group of origin, and for whatever reason, as are so many at times (i.e. unaccompanied migrant or refugee children, stateless children, forcibly transferred children etc.); their inherent human dignity and worth remains intact. Children’s value to humanity must thus not be measured in purely instrumental terms in relation to their protected group of origin and its’ perpetuation but rather in relation to their inherent worth as children. Children’s inherent value to humanity combined with acknowledgement of their special vulnerability largely underpin their recognition under IHL/CIL as a special protected group owed a duty of care during armed conflict that is (i) even greater than that owed to civilians in general and (ii) greater consequently than the duty of care owed to the adults in the children’s group of origin (the larger protected group of which the children are a part defined along religious, ethnic, racial and/or national dimensions per the Genocide Convention). The right of the child collective not to be targeted ‘as such’ and of individual children not to be victimized based on their age-related group identity is in fact, it is here argued, embedded in the Rome Statute itself through the persecution provision. This in that the persecution provision of the Rome Statute encompasses the

5

The children’s group of origin—the protected larger group of which the children are a part-is defined by the restrictive contentious narrow parameters listed in Rome Statute Article 6 (religion, nationality, ethnicity and so-called race). 6 The Rome Statute itself, as has been pointed out in the work of Yudan Tan, incorporates and is declaratory of CIL norms. See Tan (2019) Therefore the status of children as a special protected group must be considered implicit in the Rome Statute provisions since children are considered a special protected group under IHL/CIL (i.e. Additional Protocol I to the 1949 Geneva Conventions Article 77, and Protocol II to the 1949 Geneva Conventions Article 4(3)). 7 Grover (2012).

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possibility of prosecuting ‘age-based persecution’ targeting children in connection with genocide, crimes against humanity and/or war crimes. No legal scholar, to this author’s knowledge, has argued that the Rome Statute is narrower in the special protection rights accorded children persecuted than is IHL/CIL.8 The right of the children themselves not to be forcibly transferred to another group is, furthermore, arguably explicitly set out at Article 6(e) of the Rome Statute. This in that the term ‘children’ used in Article 6(e) of the Rome Statute describes a collective entity in itself; one defined by age (children) against which forcible transfer to another group is stipulated to be a form of the international atrocity crime of genocide. While the children have intersecting attributes with their group of origin; it is also the case that Article 6(e) in effect protects a wide range of children from such forcible transfer. This would include then both minority and majority group children. Consider also that the genocidal forcible transfer of children perceived or actually belonging to a certain group of origin that can be defined in political terms will be, at the same time, children of a group of origin with characteristics that are listed in Article 6 of the Rome Statute as the protected grounds. For example, on the legal analysis here, the forcible transfer of the children of moderate Sunnis in Iraq to ISIS to serve as so-called child soldiers (as did occur) would be considered as genocidal forcible transfer away from a group of origin defined along political and religious/ethnic dimensions. Thus even though the political dimension per se is not listed as a protected ground in Rome Statute Article 6; the children targeted in part for their perceived affiliation with a particular political collective would yet be protected in international law from the atrocity crime of genocide (for instance) that targeted them as children for that attribute as it intersects with other characteristics that are listed as protected grounds at Article 6 of the Rome Statute. The particular, discrete child collective victimized then is a specially protected part of the group of origin where the latter is targeted for genocide as a collective (the group of origin being defined in religious, ethnic, national and/or racial terms). Children, it should be noted, are the only group or collective specifically and explicitly enumerated as a distinct protected part of the larger group of origin in the Genocide Convention and the genocide provision of the Rome Statute (namely at Article 6(e) of the Rome Statute regarding the genocidal forcible transfer of children).9 The genocide provision at Article 6(e) of the Rome Statute Elements of the

In fact “the Statute has codified and contributed to the formation of various rules of CIL” (see De Souzas Dias 2018, p. 70). 9 This is not to imply that other discrete parts of the larger group of origin do not similarly have an inherent right under the Rome Statute to protection against genocide as collectives in themselves and not only as groups of individuals (i.e. parts of the larger group of origin such as the elderly, the LGBTQ community, disabled persons etc. are also distinct protected collectives under IHL/CIL as especially vulnerable groups). With regard to persons with non-conforming gender identity “Similar to other civilians and persons hors de combat, members of the LGBT community are protected by IHL norms—in particular by the obligation of parties to the conflict to afford humane treatment and by the prohibition against adverse distinction. These norms are sufficiently broad to be tailored to the needs and sensitivities of LGBT individuals during armed conflict.” Margalit (2018), p. 264. 8

4.1 Genocide Targeting the Child Collective ‘As Such’ or as ‘Part’ of the. . .

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Crimes10 refers to the transfer of one or more persons by a perpetrator who knew or should have known that the person or persons transferred was/were under age eighteen. The Rome Statute Elements of the Crimes Article 6(e) in specifically referencing the discrete, separable part of the larger collective (protected group) that are under eighteen as the potential target for a specific genocidal act (s)11 affirms that ‘children’ as a collective are at risk of being targeted for genocide qua children. Hence any child member of the religious, ethnic, ’racial’ and/or national group of origin could have been subject to such genocidal forcible transfer based on their group identity (a) in the first instance as a child since the child collective was a genocidal target as a discrete part of the larger group of origin and (b) also based on the children’s religious, ethnic, ‘racial’ and/or nationality attributes which intersected with their age and were shared attributes with the group of origin targeted for genocide. To consider that the child collective as an entity in itself can be, in certain fact scenarios, a legally separable part of the larger national, ethnic, religious or ‘racial’ group with that part per se also targeted for genocide is consistent with the criteria set out by the International Court of Justice as to what would constitute genocide directed to the destruction of a distinct larger group/collective “in part”. This in that the International Court of Justice in its’ case law specifies that the intent must be to destroy a “substantial part of the particular group” and “the part targeted must be significant enough to have an impact on the group as a whole (emphasis added).”12 What is a ‘substantial part’ targeted for destruction through genocide need not 10

Rome Statute Elements of the Crime. There is no genocidal act listed at Rome Statute Article 6 involving the forcible transfer of adults to another group (there is rather a crime against humanity set out at Article 7(1)(d) regarding the deportation or forcible transfer of a population out of their home locale to another State or location). 12 The International Court of Justice in Bosnia and Herzegovina v. Serbia and Montenegro made clear that what is a ‘substantial part’ of a group targeted for genocide cannot always be determined solely in terms of the number of victims constituting that part but may have to include also or instead qualitative considerations. This author is in accord with the ICJ in the Bosnian genocide case that a ‘substantial part’ targeted for genocide can be considered also in terms of a qualitative dimension in terms of what that part signifies to the larger group in terms of its values and aspirations for physical and socio-cultural longevity: “If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4 [of the Statute which exactly reproduces Article II of the Convention]” (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 para 200). See also the ICJ concurrence with the Krstic Appeal Court citing the following: “The size of the Bosnian Muslim population in Srebrenica prior to its capture by the VRS forces in 1995 amounted to approximately forty thousand people. This represented not only the Muslim inhabitants of the Srebrenica municipality but also many Muslim refugees from the surrounding region. Although this population constituted only a small percentage of the overall Muslim population of Bosnia and Herzegovina at the time, the importance of the Muslim community of Srebrenica is not captured solely by its size.” (Krstic Appeal Court IT-98-33-A, Judgement, 19 April 2004, para. 15; footnotes omitted.)]” (Cited in 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 at para 296. 11

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necessarily be determined quantitatively or solely quantitatively. Indeed the Genocide Convention does not set out a quantitative threshold for what constitutes ‘a part’ of the protected group targeted for genocide.13 Certainly the forcible transfer to another group of numbers of the children14 of a particular protected group (as an attack on the child collective of the group of origin; a cohesive discrete part of the children’s group of origin) has a profound impact on the children’s group of origin as a whole (the latter protected group defined in religious, ethnic, ’racial’ and/or national terms). This in that such a forcible transfer is (i) an act of destruction of the children15 as members of a child collective16 and also (ii) an act of destruction against the group of origin as a whole. The children represent a substantial ‘part’ (as conceived, it is here argued, at Rome Statute Article 6) of the group qualitatively regardless of the numbers transferred to another group or destroyed through killing and/or other genocidal means. This in that the child collective represents the promise of the larger group’s physical longevity and enduring vitality and the perpetuation of

Rejecting a quantitative requirement to demonstrate genocidal intent Alonzo-Mazlish states “. . . neither the plain language nor the purpose of the statute supports any such quantitative requirement in the intent element” (Alonzo-Mazlish 2002, p. 1385). 14 The view here is that there need not be large numbers of children forcibly transferred in order that it can be considered that a “substantial part” of the group of origin has been the victim of the genocidal act of the forcible transfer of children to another group. This since there will yet be ramifications for the group of origin in terms of significant mental suffering and reduced reproductive capacity as a result of the loss of the numbers of children that were forcibly transferred and the propaganda message that the group of origin is targeted for destruction will have been sent and received. The current author’s view as to the scale of the numbers that must be targeted for a genocidal act to qualify as “a part” of the targeted larger protected group (within the meaning of “part” in the Genocide Convention) coincides with that of Alonzo-Mazlish. The latter genocide scholar argues that any quantitative criterion regarding a purported threshold necessary to be reached in order to classify an act as genocidal is “incompatible with the group-held right to exist on which the concept of genocide is premised” (Alonzo-Mazlish 2002, p. 1369). Alonzo-Mazlish notes that the Krstic Trial Court abandoned the strict quantitative criterion requiring large scale mass victims that amounted to a substantial percentage of the larger protected group and focused instead on intent. This in Krstic by holding that the destruction of a ‘part’ (military aged Bosnian Muslim males of Srebrenica plus also boys and some males older than military aged) of a protected ‘part’ (Bosnian Muslims in Srebrenica region) of the larger protected group at issue was sufficient evidence to support a charge of genocide targeting the larger protected group; namely the Bosnian Muslims of Bosnia-Herzegovina (id. at p. 1389). 15 The forcible transfer of children to another group as an act of genocide is an attempted destruction also of the children in terms of their psychological and developmental well-being and often leads to physical deterioration and, in some cases, death of certain of the children for any variety of reasons. Hence the forcible transfer of children to another group is an act directed to the destruction of the child collective as constituted and against their group of origin as well. 16 This is the case though the attack against the child collective is accomplished in practice through (a) the forcible transfer of individual children or groups of individual children to the other group; the latter defined in religious, ethnic, ‘racial’ and/or national terms and (b) the particular child collective victim targeted in the specific fact scenario may itself be but a part of a larger child collective of the particular protected group of origin targeted for genocide (as was the case for the Yazidi children who fled for refuge to Mount Sinjar only to have humanitarian aid blocked by ISIL. These children made up a small group compared to the larger targeted Yazidi child collective in Sinjar region). 13

4.1 Genocide Targeting the Child Collective ‘As Such’ or as ‘Part’ of the. . .

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the group’s self and other perceived/constructed identity; thus its’ social/cultural longevity as well.17 The genocidal attack on the particular child collective as a part of the larger protected group of origin is thus an attack, on the view here, that encompasses both the destruction of the physical and social dimensions of the children’s group of origin (their religious, ethnic, racial, and/or national group of origin).18 A genocidal attack on children is, it is here argued, properly legally characterized as an attack based on the children’s specific distinct group/collective identity. It is not an attack on individual children or groups of individual children in their individual capacity but rather on children (i) as members of a distinct child collective and (ii) as members of a targeted particular religious, ethnic, racial or national group of origin of which the victimized child collective is a part. It is thus both a genocidal attack on the child collective as an entity in itself and simultaneously on the children’s group of origin by means of targeting a vital part thereof qualitatively and in some situations also quantitatively. Hence, for instance, the ISIL blocking of humanitarian aid in August 2014 to the Yazidi children who tried to escape with their families to safety on Mount Sinjar in Iraq is a genocidal attack19 on a delimited child collective victim and not just on a group of individual children. The children subjected to the ISIS genocidal attack on Mount Sinjar and region were a vital part of the larger Yazidi collective in Sinjar region. That targeted ‘part’ of the Yazidi larger collective was defined objectively and also by the perpetrators’ targeting in terms of the children’s geographical location (Mount Sinjar and region)20 at the time

17 It was noted in the Bosnian genocide case that international jurisprudence accepts a combined subjective-objective definition of the group targeted for genocide (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 at para 191. 18 There is a controversy amongst legal scholars of genocide as to whether the part of the collective targeted for genocide can be distinguished as an entity for destruction solely along socio-cultural dimensions or whether there must be actual physical destruction of the part targeted. (See Kreb 2007, pp. 625–627. On Kreb’s analysis; the ICJ in the Bosnian genocide case rejected the notion of genocide as in certain instances involving the social rather than the physical destruction of a part of the larger religious, ethnic, national and/or ‘racial’ group (see Kreb 2007, p. 626 referencing the ICJ’s negation of the notion that ethnic cleansing—which involves the dispersal of a part of the group and a social destruction of that part—necessarily amounts to genocide (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 at para 190. 19 That is the ISIL genocidal attack on the Yazidi children starving and freezing on Mount Sinjar (where the children and their families had sought refuge) was in the form of depriving the children of the basic necessities of life as per the genocidal crime set out in Rome Statute Article 6(c) and it was directed to the children’s physical destruction. 20 As Kreb noted in regards to the Bosnian genocide of Bosnian Muslims in Bosnia-Herzegovina, the International Court of Justice appeared in that case to concur that a ‘part’ of a larger group targeted for genocide may be “. . .members of a group living in a geographically limited area..” (See Kreb 2007, p. 627). See also the ICJ judgement in the Bosnian genocide case: “. . . the Court observes that it is widely accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographically limited area.” Case concerning the

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of the ISIL victimization in question; the age range of the children involved, and the children’s religious, ethnic, and national characteristics which intersected with the larger Yazidi collective in Sinjar region. The child collective targeted by ISIL in the Mount Sinjar ‘incident’ must be considered separate and apart from the civilian victims as a general group on Mount Sinjar as well as in regards to the civilian victims in Sinjar region more broadly.21 This in that children, as explained, have a distinct higher special privileged protected status under IHL/CIL which sets them apart from civilians generally in that regard. Therefore simply adding aggravated charges and making penalties stiffer for international atrocity crimes involving also child victims is not sufficient to secure recognition and justice for the targeted particular child collective victim though it does highlight the severity of the crimes. It is also necessary, it is here argued, to prosecute the genocidal targeting of particular child collectives, for instance, through a charge of ‘age-based persecution’ in connection with genocide. The latter in order that the right to justice and protection is acknowledged for each particular child collective targeted for genocide also as an entity in itself and in order that the right to reparations for the child collective victim can be considered.

4.2

Legal Controversy Re What Constitutes ‘a Part’ of the Targeted Group Under the Genocide Convention

Let us consider next, in the context of selected international criminal case law, the issue of the targeting for genocide of a distinct part ‘as such’ of the larger protected group of origin. This in order to discuss the prosecutorial approach to the perpetrator targeting of a child collective as a targeted part ‘as such’ (in itself) of the children’s larger group of origin (a protected group) in connection with genocide.

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 at para 199. 21 “Hundreds of Yazidis—including infants and young children—died on Mount Sinjar before the Syrian Kurdish forces, the YPG, were able to open a corridor from Syria to Mount Sinjar, allowing for those besieged on the mountain to be moved to safety. Together with Yazidi volunteers, they repelled ISIS attacks on the corridor, as it sought to re-establish the siege.” (para 28, emphasis added)). . . “ISIS fighters summarily executed men and older boys who refused to convert to Islam.” (para 33,emphasis added) “While most killings were of groups of between two and twenty men and boys, there are two clearly documented cases of larger mass killings: those of the men and boys of Kocho and Qani villages.” (para 36, emphasis added)) Men and older boys who were forcibly converted to Islam became ISIS captives” (para 37, emphasis added) “Captured Yazidi women and girls are deemed property of ISIS and are openly termed sabaya or slaves.” (para 55, emphasis added) and subjected to repeated sexual violence. (See Unite Nations Human Rights Council (2016) They came to destroy: ISIS crimes against the Yazidis (UN Human Rights Council A/HRC/32/ CRP.2 (June 15, 2016) 32nd session) https://www.ohchr.org/Documents/HRBodies/HRCouncil/ CoISyria/A_HRC_32_CRP.2_en.pdf.

4.2 Legal Controversy Re What Constitutes ‘a Part’ of the Targeted Group Under. . .

4.2.1

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Case 1: Prosecutor v. Krstic, IT-98-33-T, Trial Judgment, 2 Aug. 2001 (ICTY)

In this section we will be considering the massacre of thousands of Bosnian Muslim males at Srebrenica; that massacre classed as a genocide by the ICTY and by the ICJ.22 The victims of the massacre included, for the most part, soldier and civilian23 military-aged men and, in addition, adolescent Muslim boys but also some men in their elder years: According to a demographic study issued in 2005 by the International Criminal Tribunal for the former Yugoslavia, some 97.1 percent of the 7,661 persons recorded as dead or missing as a result of the events at Srebrenica were males from 15 to 69 years of age. . .24

Considering that children are an especially vulnerable group recognized as such under IHL/CIL;25 it is here contended that the massacre of the Bosnian Muslim adolescent boys at Srebrenica could and should have been properly also prosecuted separately as ‘age-based persecution’ in connection with genocide. While the ICTY Statute provision on persecution as a crime against humanity covers only targeting on political, racial and/or religious grounds-not age—it includes as a category of crimes against humanity ‘other inhumane acts’ (see Article 5(i) of the ICTY Statute which includes ‘other inhumane acts’ as a crime against humanity).26 This ‘agebased persecution directed against children’ (on the grounds of age intersecting with religion, nationality, ethnicity and gender) could have been charged in relation to the

22 The Srebrenica massacre, on the view here, also represented gender-based persecution in connection with genocide (not all gender-based international crimes are sexual in nature). Krstic was found guilty by the ICTY Trial Chamber, however, of persecution on the basis of his participation in: “a. the murder of thousands of Bosnian Muslim civilians, including men, women, children, and elderly persons; b. the cruel and inhumane treatment of Bosnian Muslim civilians, including severe beatings; c. the terrorising of Bosnian Muslim civilians; d. the destruction of personal property of Bosnian Muslims; and e. the deportation or forcible transfer of Bosnian Muslims from the Srebrenica enclave” (Prosecutor v. Krstic IT-98-33 Trial judgment August 2, 2001, para 533 https://www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e-3.htm). 23 “Those men were systematically targeted whether they were civilians or soldiers” Krstic Trial Court, cited in 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 at para 197 https://www.icj-cij.org/en/case/91/judgments. 24 Sudetic, C (2010) The Srebrenica massacre (July 11-16, 1995) ‘Mass Violence & Resistance’ (July 7, 2010) https://www.sciencespo.fr/mass-violence-war-massacre-resistance/en/document/ srebrenica-massacre-july-11-16-1995.html. 25 See ICRC Address by Françoise Krill, ICRC Deputy Director of Operations, Helsinki, September, and 1999. ‘The elderly in situations of armed conflict’. See also ICRC IHL/CIL database “Rule 138. The elderly, disabled and infirm affected by armed conflict are entitled to special respect and protection.” https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_ rule138 Children as has previously been discussed here are specially protected under IHL/CIL i.e. under (Protocol I Additional to the 1949 Geneva Conventions ) AP I Article 77 and (Protocol II Additional to the 1949 Geneva Conventions) AP II Article 4 (3). 26 International Criminal Tribunal of the Former Yugoslavia (ICTY) Statute Article 5.

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Srebrenica massacre of Bosnian Muslim adolescent boys thus under the umbrella international crime category ‘other inhumane acts’.27 Furthermore, the massacre of this particular child collective based on age and intersecting characteristics constituted genocide. Though the total number of Bosnian Muslim adolescent boy victims was likely relatively much less in comparison to the military-aged adult males massacred at Srebrenica; their targeting with discriminatory intent related to age and other factors meets the criteria for persecution in connection with genocide (the other elements for crimes against humanity also having been met such as the massacre of the boys being part of an orchestrated widespread and systematic attack by the Bosnian Serbs on the Bosnian Muslims of Srebrenica, a protected part of a larger protected collective; namely the Bosnian Muslims of Bosnia-Herzegovina). Further the persecution of these Bosnian Muslim older boys based on age and religion, ethnicity, gender and nationality violates Protocol II Additional to the 1949 Geneva Conventions Article 4 (3) obligating States to provide children the care and aid they require; the latter Protocol II Article 4 having reached the status of CIL according to the UN Secretary General.28 Thus both adult males and children—boys under the age of 18—were victims of the massacre at Srebrenica but this fact is often lost when descriptions slip into referring to the massacre victims of the Srebrenica only as “military aged men” as did the ICJ in the Bosnian genocide case. The following passage is particularly striking in that, for instance, it mentions male victims aged 16 and above (some still under 18) but refers to them as “men” and not as children. The wording creates an incorrect narrative, in addition, in that it defines the ‘collective part’ targeted for the genocidal massacre (Bosnian Muslim males of Srebrenica) as constituted of ‘military-aged men’ notwithstanding the child victims and the elder victims aged 60–70 years who were also victims amongst that targeted part (a collective in itself): The VRS and MUP of the Republika Srpska from 12 July separated men aged 16 to approximately 60 or 70 from their families . . .Many of the Bosnian Muslim men from Srebrenica and its surroundings including those who had attempted to flee through the woods were detained and killed (emphasis added).29

The reality was in fact, as pointed out by the Krstic Trial Court, that while “A concerted effort was made to capture all Muslim men of military age;30 in fact, those captured included many boys well below that age and elderly men several years 27

Age-based persecution was directed also against the elder Bosnian Muslim victims (a protected group under IHL/CIL) of the Srebrenica massacre but discussion regarding that collective is beyond the scope of this book. 28 Protocol II Additional to the 1949 Geneva Conventions Article 4(3). 29 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 at para 288. 30 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 https://www.icj-cij.org/en/case/91/judgments at para 278 citing the Krstic Trial Court and referring

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above that age that remained in the enclave following the take-over of Srebrenica (emphasis added).”31 And these Bosnian Muslim boys and older men too were selected by the Bosnian Serb perpetrators for execution as an act of genocide. However these children and older persons have virtually been rendered invisible in some of the description and analysis of the Srebrenica massacre. In Krstic the International Criminal Tribunal for the Former Yugoslavia (hereafter ITFY) Trial Chamber held that: [T]he intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it. Although the perpetrators of genocide need not seek to destroy the entire group protected by the Convention, they must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such (emphasis added).32

The International Court of Justice (ICJ) in the Bosnian genocide case, however, rejected the aforementioned view of the Krstic trial court. The ICJ held that the Krstic trial court was incorrectly arguing for a qualitative dimension as a stand-alone identifier of ‘part’ of a protected group—the latter as the contended proper interpretation of the term ‘part’ as used in the genocide provision of the ICTY Statute. The ICJ held that the Krstic Trial Court’s view of “part” as necessarily a targeted distinct entity in itself is not legally supportable. That is the ICJ did not agree that the ‘part’ of the larger protected group (the latter defined along ethnic, religious, racial and/or national lines) must also be a distinct collective entity in itself targeted for destruction as such (not targeted then instead as a group of individuals).33 The Krstic trial court noted that the Genocide Convention provides no guidance as to what constitutes intent to destroy “in part”34 but held that the reference to destroy in part refers to intention and not to the scale of the genocidal acts.35 The genocide scholar Claus Kreb similarly objects to the proposition advanced by the Krstic Trial court that ‘the part’ must be a distinct entity in itself intentionally targeted ‘as such’ for genocide in order to fit the requirements of the genocide provision of the ICTY statute. Kreb further argues that the Krstic appeals court likewise introduced a “purely qualitative”, in his view, unacceptable approach to the definition of ‘in part’ when it considered the Bosnian Muslim collective of Srebrenica as a targeted part in itself of the protected group (the latter being the Bosnian Muslims of Bosnia-Herzegovina targeted by the Bosnian Serbs for

to “The military-aged Bosnian Muslim men of Srebrenica, however, were consigned to a separate fate.” (Prosecutor v. Krstic IT-98-33-T, Judgment, 2 August 2001, para. 1). 31 Prosecutor v. Krstic IT-98-33 Trial judgment August 2, 2001, https://www.icty.org/x/cases/krs tic/tjug/en/krs-tj010802e.pdf at para 85. 32 Prosecutor v. Krstic, IT-98-33-T, trial judgment, 2 Aug. 2001 para 590. 33 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 at para 200. 34 Prosecutor v. Krstic, IT-98-33-T, trial judgment, 2 Aug. 2001 para 585. 35 Prosecutor v. Krstic, IT-98-33-T, trial judgment, 2 Aug. 2001 para 583–584.

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genocide of which the Bosnian Muslims of Srebrenica made up only 2.9%).36 Kreb contends that, for instance, the killing of a large number of the protected group as a group of individuals spread over a wide geographic area could also be considered as genocide. This even when those victims did not purportedly comprise a distinct entity ‘as such’ as a part of the larger protected group.37 The current author, in contrast, would argue that also in instances of mass killing over a wide geographical area; the killing is not always directed to the destruction of groups of individuals in intent but rather to the victims collectively as such and as a part of the larger protected group. The targeted collective victim part in that situation, it is here argued, is (i) likely an emblematic ‘part’ of the larger protected group and one that satisfies a quantitative and/or qualitative threshold for being properly considered as a ‘substantial’ part of the larger protected group (the latter defined along the protected grounds stipulated in the Genocide Convention-‘race’, nationality, ethnicity and/or religion) and (ii) a protected entity in itself (‘as such’) defined by attributes which intersect with those of the protected larger group but may be defined in additional ways i.e. by age, by a specific geographical region or series of locales and/or along some other dimension (s) such as gender and age that allowed the perpetrator to (i) delimit the targeted protected part or parts even though spread widely and (ii) exclude, to the degree feasible those, if any, in the targeted locales who did not meet the criteria set out by the perpetrator for genocidal targeting. The Krstic Trial Court considered that the ‘Bosnian Muslim population of Srebrenica’ constituted a distinct collective and a ‘substantial part’ as such (within the Article 4 definition of the ICTY Statute provision regarding genocide targeting a part of a collective) of the larger protected population (the ‘Bosnian Muslim population of Bosnia-Herzegovina’). This despite the Srebrenica Muslim population being such a small percentage of the overall Bosnian Muslim population of Bosnia-Herzegovina. The Trial Court in Krstic explained why, in its’ view, the ‘Bosnian Muslim population of Srebrenica’ was of such import. In part the reason for the significance of the Bosnian Muslim population of Srebrenica was the Krstic Court said that: The elimination of the Muslim population of Srebrenica, despite the assurances given by the international community, would have served as a potent example to all Bosnian Muslims of their vulnerability and Defencelessness in the face of Serb military forces.38

It is here argued that similarly the genocide committed against a particular child collective as such (itself a protected group under IHL/CIL and arguably also under the Genocide Convention)39 as a part of a larger protected group of origin highlights also the weakness of the larger protected group of origin. This since the children’s 36

Kreb (2007), p. 628. Kreb (2006), p. 491, footnote 154. 38 Prosecutor v Radislav Krstic Appeals Chamber Judgment Press Release at p. 5 (April 19, 2004) at p. 5. 39 This being explicitly the case at Article II (e) of the Genocide Convention which protects the child collective ‘as such’ from a specific genocidal act (forcible transfer to another group) leading to the 37

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group of origin (defined along religious, ethnic, national and/or ‘racial’ characteristics) could not protect some of the most vulnerable amongst them (the children). The current author holds then that more commonly than not the victims comprising a part of a larger protected group are targeted for genocide as a collective themselves and as a qualitatively, and sometimes also quantitatively, significant constituent sub-group of the targeted larger protected group. The ‘part’ selected for genocide such as the child collective generally has a widely understood importance and its’ destruction has tremendous propaganda value for the perpetrators.

4.3

On Destruction of a ‘Part of a Part’ as Genocide

Kreb’s holds (as this author understands him) that the ‘Bosnian Muslim military age males40 of Srebrenica’ massacred represented but a “part of a part of the larger protected group. That ‘part of a part’, he further contends, is too narrow a category of victims to be considered a targeted part per the genocide provision of the ICTY Statute. More specifically then Krebs maintains that (i) the ‘Bosnian Muslim military age males of Srebrenica’ are a part of the ‘Bosnian Muslims of Srebrenica’ collective; (ii) the Bosnian Muslims of Srebrenica’ collective is the Krstic Court-identified ‘part’ of the larger protected group targeted for genocide and (iii) the larger group targeted in part was the ‘Bosnian Muslims of Bosnia-Herzegovina’. The importance of this so-called ‘part of a part’ was evident to the Serb perpetrators. This in that the destruction of that part of a part included mostly Bosnian Muslim military-aged males and this would leave the Bosnian Muslims of Srebrenica and immediate region virtually defenseless in future. The current author would categorize the Bosnian Muslim males massacred at Srebrenica as comprising a collective ‘as such’ and its’ destruction had both material and symbolic significance and not simply as ‘a part of a part’. Likewise the current author is respectfully not in accord with Kreb’s view (as she understands it) that because the Bosnian Muslim population of Srebrenica comprised but 2.9% of the Bosnian Muslim population of Bosnia-Herzegovina; the recognition of this group as a ‘part’ of the larger protected group (within the meaning of the ICTY Statute genocide provision) reduced the “quantitative threshold” to an unacceptable level41 and that: “In Prosecutor v. Krstic the Chambers may have seen the problem and may for this reason have stressed – and perhaps somewhat strained – the strategic importance of the existence of

inference that children as a collective per se must also be protected against the other genocidal acts set out in the Genocide Convention. 40 Recall that in fact the massacre victims at Srebrenica included also boys younger that military age and males older than military age including some elderly Prosecutor v. Krstic IT-98-33 Trial judgment August 2, 2001, https://www.icty.org/x/cases/krs tic/tjug/en/krs-tj010802e.pdf at para 85. 41 Kreb (2006), p. 491.

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the Bosnian Muslim community in Srebrenica for the “continued survival of the Bosnian Muslim people”.42

Rather it would appear that both of the Krstic Court Chambers well explained the strategic and symbolic importance of the Bosnian Muslims of Srebrenica to the Bosnian Muslim collective in Bosnian-Herzegovina generally and in the perception of the international community.43 The Bosnian Muslims of Srebrenica, as the ICTY explained, served as a bulwark against ethnic cleansing of Muslims from the region. As the Trial Chamber explained, Srebrenica (and the surrounding Central Podrinje region) were of immense strategic importance to the Bosnian Serb leadership. Without Srebrenica, the ethnically Serb state of Republica Srpska they sought to create would remain divided into two disconnected parts, and its access to Serbia proper would be disrupted. . . Control over the Srebrenica region was consequently essential to the goal of some Bosnian Serb leaders of forming a viable political entity in Bosnia, as well as to the continued survival of the Bosnian Muslim people.44

The current author then contends that the Bosnian Muslim adolescent boys massacred at Srebrenica constitute a distinct child collective victim of the 1995 Bosnian genocide. This as the boys were (i) a protected collective ‘as such’ defined in terms of age intersecting with gender, ethnicity, religion and nationality of the protected group ‘the Bosnian Muslims of Srebrenica’ and (ii) an adolescent distinct child collective that was a part of the protected group ‘the Bosnian Muslims of Srebrenica’ and targeted for killing in large part based on that group identity. Since (i) children, as here discussed, have a special privileged position under CIL/IHL greater than that of civilians generally and (ii) as children have a special significance in the perpetuation of a protected group physically and culturally, it is necessary to regard the Bosnian Muslim adolescent boys summarily executed by the Serb perpetrators at Srebrenica as the victim of ‘age-based persecution in connection with genocide’. The Bosnian Muslim male child victims of the Srebrenica massacre then were, in their own right, a ‘substantial part’ qualitatively of the larger Bosnian Muslim protected group in Srebrenica. The absolute numbers of the Bosnian Muslim adolescent males massacred as a proportion of the total of the Bosnian Muslim population of Srebrenica should not preclude their recognition as a collective targeted in itself ‘as such’ for genocide (per the meaning of ‘part’ in the genocide 42

Kreb (2006), p. 491. “. . .the importance of the Muslim community of Srebrenica is not captured solely by its size. As the Trial Chamber explained, Srebrenica (and the surrounding Central Podrinje region) were of immense strategic importance to the Bosnian Serb leadership. Without Srebrenica, the ethnically Serb state of Republica Srpska they sought to create would remain divided into two disconnected parts, and its access to Serbia proper would be disrupted. The capture and ethnic purification of Srebrenica would therefore severely undermine the military efforts of the Bosnian Muslim state to ensure its viability, a consequence the Muslim leadership fully realized and strove to prevent. . . . Because most of the Muslim inhabitants of the region had, by 1995, sought refuge within the Srebrenica enclave, the elimination of that enclave would have accomplished the goal of purifying the entire region of its Muslim population.” (Prosecutor v Radislav Krstic Appeals Chamber Judgment para 15). 44 Prosecutor v Radislav Krstic Appeals Chamber Judgment Press Release (April 19, 2004) para 15. 43

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provision of the ICTY Statute). This is not at all to diminish the import of the genocide committed against the rest of the Bosnian Muslim victims of the Srebrenica massacre including adult Bosnian Muslim males of military age and those victims over military age including some elderly. The International Court of Justice (ICJ) in the Bosnian genocide case, as here discussed previously, rejected the view that the ‘part’ of the protected group targeted for genocide must be a distinct entity targeted ‘as such’ (that part being defined qualitatively alone or in combination with a quantitative measure).45 While this may be the case, it is here argued that insofar as the “. . .boys . . . . summarily executed and buried in mass graves within a matter of days (emphasis added)”46 at the hands of Bosnian Serb perpetrators are concerned; they were a targeted discrete child collective victim ‘as such’ of the Srebrenica massacre. The ICJ rather considered only the ‘Bosnian Muslims of Srebrenica’ more generally as a part of the larger protected group (Bosnian Muslims of Bosnia-Herzegovina) as that term ‘part’ is referred to in the Genocide provision of the ICTY Statute and the Genocide Convention. However, it is here argued that even one individual can be a ‘part’ or alternatively many thousands or more may be in the mind of the perpetrator ‘a part’ of a larger protected group in the context of a genocidal campaign. This is because the individual victim or groups of individual victims are targeted based on their group identity; that is with genocidal intent. The intent is to destroy them by whatever genocidal act and simultaneously hence destroy the larger protected group in part practically and symbolically. The ICJ did find that the Bosnian Serbs had committed an act of genocide constituted in the massacre of Bosnian Muslim males in Srebrenica (mostly military age men but including adolescent boys and some elderly men) in July 1995. This the ICJ did by taking that Srebrenica massacre as evidence of the specific intent of the Bosnian Serbs to destroy a significant or substantial ‘part’ (‘part’ here referencing Bosnian Muslims of Srebrenica) of the Bosnian Muslim national/religious/ethnic group in Bosnia-Herzegovina (the larger protected group targeted with genocidal intent).47 The current author contends that, at a minimum, a reasonable case can be

“Establishing the “group” requirement will not always depend on the substantiality requirement alone although it is an essential starting point. It follows in the Court’s opinion that the qualitative approach cannot stand alone. The Appeals Chamber in Krstic also expresses that view.” (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 at para 200, (emphasis added). 46 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 para 229 citing a 1999 UN report (UN Secretary—General Report to the General Assembly, November 1999 Pursuant to General Assembly Resolution 53/35 ‘The Fall of Srebrenica’, (United Nations doc. A/54/549). https://peacekeeping.un.org/en/report-of-secretary-general-pursuant-togeneral-assembly-resolution-5335-fall-of-srebrenica-a54549. 47 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 https://www.icj-cij.org/en/case/91/judgments at para 297. 45

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made that a part targeted for genocide is also most often an entity (collective) in itself since (a) any part of a protected group is likewise itself protected under the Genocide Convention as an identifiable entity with attributes intersecting with those of the protected larger group and (b) the individual victims are targeted by the perpetrator based on group identity (that is as members of ‘a targeted part as such’ or ‘part of a part’ but in any case a slice of the larger protected group) and not as individual victims or groups of individual victims. The current author’s view is furthermore that the perpetrator, in delimiting the part(s) that will be targeted for genocide48 (regardless the size of the ‘part’(s)) according to the attributes (real and/or imagined) considered by the perpetrator to be relevant; de facto automatically (a) defines, respecting the part(s), a specific victim collective(s); an entity in itself (or entities) targeted for genocidal acts and (b) simultaneously also sets out the larger targeted protected group targeted for genocide of which the ‘part(s) are a vital constituent component (s) qualitatively and/or quantitatively.49 The current author thus respectfully dissents from Kreb’s view that “the collective intent to destroy could not have been derived from the plan to kill, meaning physically to destroy the group of 7000–8000 Muslim males in Srebrenica.50 This is because this group was only part of the identified part of the protected group”51 (that is; the military age males massacred at Srebrenica are a part of the ‘Bosnian Muslim population of Srebrenica’; the latter being the only ICTY-identified ‘part’ (per Article 4 of the ICTY Statute) of the protected larger group ‘Bosnian Muslims in Bosnia –Herzegovina’). That is the Trial Court in Krstic identified the ‘Bosnian Muslims of Srebrenica’ as a “. . .specific, distinct national group, and therefore covered by Article 4.”52 There is no logic arguably, it would appear, however, to discounting the 7000–8000 massacred Bosnian Muslim males of Srebrenica as a collective victim in themselves and also a protected group under Article 4 of the ICTY Statute and a part of two larger protected groups (‘Bosnian Muslims of Srebrenica’ and ‘Bosnian Muslims of Bosnian-Herzegovina’). The 7000–8000 massacred Bosnian Muslim males of Srebrenica were also distinguishable as a distinct collective in themselves in terms of religion, ethnicity and nationality; explicitly listed protected grounds under Article 4 of the ICTY Statute intersecting with age, gender and geographical location.

48 The fact is also that genocide is most often associated with the commission of additional international atrocity crimes falling into the categories of crimes against humanity and/or war crimes. 49 For instance ISIL massacred Iraqi air cadets, mostly Shia, at Tikrit. These air cadets were a targeted collective victim of extermination and genocide and a part of the larger protected collective (Iraqi Shia) under widespread and systematic attack by ISIL. 50 That group being comprised of not only Bosnian Muslim military aged men but also Muslim adolescent boys and some Muslim men well over military age including elderly men. 51 Kreb (2007), pp. 619–629 at footnote 55. 52 Prosecutor v Krstic, Trial Judgment at ‘(1) The Trial Chamber’s Findings that Genocide Occurred in Srebrenica (a) The Definition of the Part of the Group’: https://www.icty.org/en/press/appealschamber-judgement-case-prosecutor-v-radislav-krstic.

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The Defence in Krstic had argued that considering the massacred mostly military age Bosnian Muslim males of Srebrenica as a protected group in themselves ‘as such’ gave too narrow a definition to ‘part’ under the genocide provision of the ICTY Statute. The ICTY Chambers in Krstic appeared to have capitulated on that point by identifying only the ‘Bosnian Muslims of Srebrenica’ as an identified part of the protected group ‘Bosnian Muslims of Bosnia-Herzegovina’. On the view here, however, there was no clearly legally supportable reason for this limitation (that is of the Chambers’ considering only the overall population of ‘Bosnian Muslims of Srebrenica’ as ‘part’ (as per the genocide provision) of the larger protected group under the genocide provision. The latter as opposed to also the Bosnian Muslim males massacred at Srebrenica being considered ‘a part’ of the protected part and of the larger protected group (‘Bosnian Muslims of Bosnia-Herzegovina’). The facts on the ground are often complex and the structure of international atrocity crimes such as genocide complicated. Genocide and crimes against humanity commonly involve targeting multiple collectives within a single victimized identified protected population. This complicated picture should be acknowledged and addressed (i.e. the perpetrator may, in practice, target one or more parts of a larger protected group of origin and perhaps also, in instances, parts of parts as victim collectives in themselves for the various means of destruction listed in the Statute genocide provision). That complexity is not justification for discounting any such ‘part’ or ‘part of a part’ as a collective victim in itself of genocide where the evidence and the law justifies recognition as the same. Thus it is likewise legally insupportable to discount a child collective as victim, as an entity in itself and as a part targeted ‘as such’ (a part of a larger protected group) for an international atrocity crime such as genocide. This discounting of the ‘child collective victim’ as such is accomplished then by (i) lumping child victims in with a distinct civilian collective more generally (one of mixed ages), the latter as the protected part or whole targeted and/or (ii) as in the case of the Bosnian Muslim adolescent boys massacred at Srebrenica; failing to charge and prosecute for ‘age-based persecution targeting children in connection with genocide.’ In sum then the current author argues that the ‘Bosnian Muslim males of Srebrenica’ massacred by Bosnian Serb perpetrators constituted a collective victim ‘as such’ of genocide and a part of the larger groups; ‘Bosnian Muslims of Srebrenica’ and ‘Bosnian Muslims of Bosnia-Herzegovina’; the latter both being protected groups under international law that were targeted for certain genocidal acts. Further, on the view here, the massacred ‘Bosnian Muslim adolescent boys of Srebrenica’ were a distinct child collective persecuted (based on age intersecting with gender, nationality, ethnicity and religion) and in connection with genocide53 thus justifying a separate charge on that count but one that was unfortunately not advanced (i.e. under the category of the ICTY Statute ‘other inhumane acts’ as a crime against humanity).

53 Note that under the ICTY Statute no connection to other crimes in the Statute is necessary as an element in the crime of persecution.

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Notwithstanding the mass killings by the Bosnian Serb perpetrators of Bosnian Muslims that took place throughout Bosnia and Herzegovina, the ICJ held that there was purportedly insufficient evidence of “the specific intent on the part of the perpetrators to destroy, in whole or in part, the [national] group of Bosnian Muslims,” although they [the mass killings] may amount to war crimes and crimes against humanity.”54 But with regard to Srebrenica, the ICJ concluded that the Main Staff of the VRS (the Bosnian Serb army) had “the necessary specific intent to destroy in part the group of Bosnian Muslims (specifically the Bosnian Muslims of Srebrenica) and that accordingly acts of genocide were committed by the VRS” in Srebrenica.55 The ICJ held, however, that Serbia [the successor to the FRY; the Federal Republic of Yugoslavia] did not commit genocide nor was it, according to the ICJ, complicit in its’ commission (There were a number of dissenting opinions in that regard and others in the judgment). Serbia was held guilty, however, of not preventing the massacre at Srebrenica and not doing enough to ensure accountability of the perpetrators. It should be noted that the massacre at Srebrenica caused unimaginable suffering to the Bosnian Muslim surviving immediate family members and other relatives of the males killed/forcibly disappeared by the Serb perpetrators. This also arguably constitutes the genocidal act of, with specific genocidal intent “causing serious physical or mental harm to members of the group” see ICTY Statute Article 4(2 (b)). There were thus grave foreseeable harms done to the surviving family members and the rest of the Srebrenica population as well as to the Muslim community of Bosnia-Herzegovina as a whole. Thus the massacre at Srebrenica of military age males and also boys and some males older than military age, including elderly males, was simultaneously, on the view here, a genocidal attack on the Bosnian Muslims of Srebrenica and also on the Bosnian Muslims in Bosnia-Herzegovina generally. There cannot be such a thing, it is here agued, as too narrow a part of a larger group to constitute a protected part within the meaning of the genocide provision of the ICTY Statute Article 4(2) for instance (or Article II of the Genocide Convention) as long as that part is (i) a discrete collective delimited by the perpetrator and/or objective factors; (ii) in itself of import to the protected larger group; and (iii) distinguished in whole or in part by attributes that intersect with those of the larger

54 UN News ‘UN World Court acquits Serbia of genocide in Bosnia; finds it guilty of inaction’ February 26, 2007 https://news.un.org/en/story/2007/02/210142-un-world-court-acquits-serbiagenocide-bosnia-finds-it-guilty-inaction See also International Court of Justice Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Summary Judgment February 26, 2007 available for download https:// www.icj-cij.org/en/case/91. 55 Cited in UN News ‘UN World Court acquits Serbia of genocide in Bosnia; finds it guilty of inaction’ February 26, 2007 https://news.un.org/en/story/2007/02/210142-un-world-court-acquitsserbia-genocide-bosnia-finds-it-guilty-inaction.

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group protected on the stipulated grounds of religion, nationality, ethnicity or ‘race.’56

4.4

Genocide by Imposing Measures Designed to Prevent Births: One Impact of the Srebrenica Massacre

The question arises whether the forcible displacement and geographic dispersion of the female surviving Bosnian Muslim civilians of Srebrenica, in combination with their massacred husbands being listed as missing and not as deceased, may also be regarded as a means to genocide (the Bosnian Muslims of Srebrenica being part of the protected group ‘Bosnian Muslims’ of Bosnia-Herzegovina). This in that: . . .with the majority of men killed officially listed as missing, their spouses are unable to remarry and, consequently, to have new children. The physical destruction of the men therefore had severe procreative implications for the Srebrenica Muslim community, potentially consigning the community to extinction (emphasis added).57

The Bosnian Serb perpetrators of the 1995 genocide at Srebrenica went to some lengths to hide their international crime of the massacre of over 8000 males including Bosnian Muslim military age men as well as older boys and some elderly men. The massacre occurred in the town located in Bosnia-Herzegovina and in 2017 “new graves and victims [were] still being discovered”.58 It seems uncontestable that the Bosnian Serb perpetrators knew that in hiding the graves and remains of the massacred male victims of Srebrenica; the victims would be listed as ‘missing’ rather than deceased: Thousands were executed and then pushed into mass graves with bulldozers. Reports suggest some were buried alive, while some adults were forced to watch their children be killed.59

56

This approach is different from that of the Trial and Appeal Courts in Krstic where both chambers held that the part at issue was in fact the ‘Bosnian Muslims of Srebrenica’ as a part of the protected group “Bosnian Muslims” (of Bosnia-Herzegovina): “The men of military age, who formed a further part of that group, were not viewed by the Trial Chamber as a separate, smaller part within the meaning of Article 4 [Article 4 referring to the genocide provision of the Statute of the ICTY]. Rather, the Trial Chamber treated the killing of the men of military age as evidence from which to infer that Radislav Krstic and some members of the VRS [the Bosnian Serb army] Main Staff had the requisite intent to destroy all the Bosnian Muslims of Srebrenica, the only part of the protected group relevant to the Article 4 analysis.” Prosecutor v Radislav Krstic Appeals Chamber Judgment Press Release at p. 5 (April 19, 2004) https://www.icty.org/en/press/appeals-chamber-judgementcase-prosecutor-v-radislav-krstic. 57 Prosecutor v. Krstic IT-98-33 Trial judgment August 2, 2001. 58 Reuters picture caption cited in BBC News (July 2017) Bosnia’s Srebrenica massacre 25 years on-in pictures https://www.bbc.com/news/world-europe-53346759. 59 BBC News (July 2017) Bosnia’s Srebrenica massacre 25 years on-in pictures https://www.bbc. com/news/world-europe-53346759.

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Thus it can also be reasonably concluded60 that the massacre perpetrated by the Bosnian Serbs against the Bosnian Muslim men and boys of Srebrenica and the cover-up of the crime was conducted with the perpetrators’ knowledge and specific genocidal intent that it would result in (i) not allowing the women to remarry as their husbands would be listed as missing and (ii) therefore would prevent births. This also then was part of a genocidal strategy and constitutes the ICTY Statute Article 4 (d) crime of genocide by “imposing measures intended to prevent births within the group.”61 Kreb has pointed out that the evidence related to the women being forcibly displaced and not being able to remarry and procreate due to their husbands being massacred at Srebrenica and being listed as missing rather than deceased points to the Srebrenica massacre as part of an overall campaign of biological destruction of the Bosnian Muslims by the Bosnian Serbs: Surprisingly. . .neither the ICTY Chambers in Krstic nor. . .the ICJ characterized the Srebrenica campaign as the (generalized) imposition of measures intended to prevent births within the group. Perhaps this failure constitutes the one missing element to a coherent explanation of the atrocities committed in Srebrenica as genocide under international law.62

It should be noted, however, that missing from this Kreb analysis of “the Srebrenica campaign as the (generalized) imposition of measures intended to prevent births within the group”63 (Bosnian Muslims) is any reference to the impact of the massacre of the Bosnian Muslim adolescent boys at Srebrenica. Their massacre also would have procreative consequences in terms of reducing the availability of males soon (in a few years) ready for marriage and producing children of their own. This was yet another impact of the age-based persecution targeting children (Bosnian Muslim adolescent boys) for massacre in connection with the genocide at Srebrenica.

4.5

The Srebrenica Massacre and Our Understanding of State Complicity in Genocide

Srebrenica was, at the relevant period, supposed to be a UN safe zone. Therefore the argument can reasonably be made that the authorities of the Federal Republic of Yugoslavia (FRY) did not do their part to make this effectively the case even knowing that the numbers of UN peacekeeping troops located there were inadequate to hold the peace. This failure of the FRY is further exacerbated by the fact that FRY

60 This given that the perpetrators were aware of the traditions in the region and amongst Bosnian Muslims that remarriage and having additional children was not possible until the husbands were officially declared deceased. 61 ICTY Statute Article 4(d) https://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_ en.pdf. 62 Kreb (2007), p. 629. 63 Kreb (2007), p. 629.

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at the relevant time was still under a 1993 ICJ court order to ensure: “that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide, of conspiracy to commit genocide, of direct and public incitement to commit genocide, or of complicity in genocide.”64 The FRY thus, given the events of 1995 at Srebrenica, it would appear, was, on one view, in practice prepared to leave the civilian population of Srebrenica in whole or part as potential collective victim(s) of international atrocity crimes including genocide. This inaction of the authorities of the FRY to secure the UN safe zone at Srebrenica and keep the would-be Bosnian Serb perpetrators restrained65 may then, it can be argued, be characterized as reflecting a de facto genocidal intent and complicity accomplished through inaction. This in that the inaction nonetheless arguably constituted, from the legal perspective, an actus rea with intent considering that the FRY “could hardly have been unaware of the serious risk of it [genocide] once the VRS forces had decided to occupy the Srebrenica enclave.”66 This further being the case given the context at the time which put the Bosnian Muslims of Srebrenica at considerable risk of being the victims of international atrocity crimes including genocide. The current author thus respectfully cannot concur with the ICJ view in the Bosnian genocide case that complicity with genocide cannot derive from inaction to prevent even where the State knew that the risk of such inaction was high. The latter in terms of the possibility and probability of the international atrocity crime of genocide being inflicted on the targeted collective. The failure to act and to prevent the crime of genocide in that circumstance is itself, it is here contended, analogous to the situation where the State has taken upon itself to “furnish aid and assistance to the perpetrators of genocide.”67 This author does not agree with the ICJ that the risk of genocide must be perceived to be imminent (as opposed to, for instance, high) before State complicity in genocide can be charged. In the Srebrenica Bosnian massacre case the FRY gave aid and assistance (political, military and

64

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 at para 435. 65 The ICJ in the Bosnia genocide case conceded that the FRY was in a position of influence over the Bosnian Serbs in a way that was no other State Party to the Genocide Convention “the FRY was in a position of influence over the Bosnian Serbs who devised and implemented the genocide in Srebrenica, unlike that of any of the other States parties to the Genocide Convention. . .” 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 at para 434. 66 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 at para 436. 67 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 at para 432.

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financial) to the perpetrators also during that time as a continuation of a policy that predated the massacre.68 This despite knowing that the risk of genocide was high. There was, however, according to the ICJ, no definitive evidence that the authorities of the FRY continued to provide the perpetrators with material support “at a time when those authorities were clearly aware that genocide was about to take place or was under way; in other words that not only were massacres about to be carried out or already under way, but that their perpetrators had the specific intent characterizing genocide, namely, the intent to destroy, in whole or in part, a human group, as such”.69 In the current author’s respectful view; the immediate aforementioned lines from the ICJ Bosnian genocide case judgment reflect an inadequate benchmark for complicity in genocide that virtually guarantees exoneration of the accused State (whichever that may be) in most instances.

4.6

More on the Massacred Bosnian Male Adolescents at Srebrenica as the Collective Victim of Genocide

On the analysis here; where the perpetrators delimit any part or parts of a larger protected group for genocidal targeting; they have identified a collective victim or set of collective victims as entities in themselves belonging to an overall targeted group defined objectively and/or subjectively in religious, ethnic, national and/or ‘racial’ terms. In sum then a ‘part’ (i.e. a child collective) targeted for genocide is a ‘part” of the protected civilian population of a certain limited geographical area targeted for genocide,70 for instance, which in turn may be part of the larger protected group nationally defined along religious, ethnic, national and/or ethnic lines. The child collective located in a certain limited geographical area (such as the Bosnian Muslim adolescent boys massacred at Srebrenica) is thus what Kreb’s terms “a part of a part” (part of the Bosnian Muslim population of Srebrenica which is part of the Bosnian Muslim population of Bosnia-Herzegovina). This, however, it is here contended, does not undercut the evidence for genocidal intent and acts directed against a child collective ‘as such’ as contemplated by the genocide provisions of the various statutes of international criminal courts/tribunals. Rather, each collective

68

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 at para 422. 69 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. 70 “. . . the Court observes that it is widely accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographically limited area.” (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 at para 199 (emphasis added).

4.6 More on the Massacred Bosnian Male Adolescents at Srebrenica as the. . .

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victim of the international atrocity crime i.e. genocide- which collective is a part of the superseding larger part targeted (as if akin to a series of ‘doomed nesting dolls’)—builds the case for a specific genocidal intent. That specific genocidal intent animates the perpetrators of the international atrocity crime such as genocide targeting a class of persons some of whose characteristics align with one or more of the particular protected ground(s) set out in the relevant Statute under its’ genocide provision.71 In the massacre at Srebrenica we see, on the respectful view here, that the Bosnian Muslim adolescent boys killed; a targeted ‘part of a part’, were nonetheless (i) victims of genocide collectively as Bosnian Muslim male children; persecuted as children based on age and also intersecting characteristics and (ii) a particular and distinct child collective victim ‘as such’ targeted as part of the Bosnian Muslim population in Srebrenica and ultimately as part of the Bosnian Muslim national community of Bosnia–Herzegovina. The perpetrator reasoning behind the massacre of the older Bosnian Muslim boy children may have been in part at least to prevent their recruitment as child soldiers into a potential Bosnian Muslim armed resistance to the Bosnian Serb perpetrators. This, it is here argued, (a) amounts to age-based persecution of children as a crime against humanity in connection with genocide and extermination and (b) involves victims targeted based on their group identity as Bosnian Muslim male children of a particular age group; namely older children (younger children, male and female, were generally forcibly displaced with women and most of the elderly at Srebrenica during the genocide rather than massacred by the Bosnian Serb perpetrators). Krstic was convicted of aiding and abetting genocide and also of extermination and persecution72 as crimes against humanity (amongst other ICTY international crimes). However, the massacre of the older Bosnian Muslim boys at Srebrenica was lumped in with that of the military-aged and elderly men. Hence Krstic was not charged or convicted of the separate crime against humanity involving ‘persecution’ of the Bosnian Muslim male adolescent children. It is here contended, however, that the charge of ‘age-based persecution targeting children’ had a supportable legal

71 As the ICJ in the Bosnian genocide case pointed out; various international legal instruments include a provision on the State’s duty to prevent certain international crimes addressed in that legal instrument i.e. see The Torture Convention, Article 2 (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 at para 429) and it is here noted also that the prohibition against torture is part of CIL. 72 Note that the ICTY Appeals chamber in Krstic ruled that genocide does not subsume persecution. (Prosecutor v Radislav Krstic ICTY Appeals Chambers Judgment April 19, 2004, para 229 at p 74). Hence the ICTY held that persecution has a materially distinct element (one that requires proof of a fact that is not required for the elements of the other crime-genocide. i.e. Genocide requires proof of specific discriminatory intent to destroy a protected group in whole or in part while persecution, as a crime against humanity, requires proof of a contextual element; namely a widespread or systematic attack on any civilian population. In contrast for instance the crime of ‘persecution through inhumane acts’ subsumes the crime against humanity of inhumane acts such that there should not be cumulative charges for ‘persecution through inhumane acts’ and then also for a separate crime against humanity of “inhumane acts’ (see Prosecutor v Radislav Krstic ICTY Appeals Chambers Judgment April 19, 2004, para 231–232 at p. 75).

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foundation in that (i) the persecution of the Bosnian Muslim male adolescents at Srebrenica occurred in connection with their mass execution (constituting in this instance, on the facts of the case, genocide by killing and the crime against humanity of extermination of these children as a collective); (ii) the massacre of these adolescents was animated by discriminatory and specific genocidal intent relating to the children’s age intersecting with other perpetrator-targeted characteristics (gender, nationality, ethnicity and religion) and (iii) the massacre of these older Bosnian Muslim boys occurred in the context of a widespread and systemic attack on the Bosnian Muslim population in Srebrenica. That the older Bosnian Muslim boys were massacred as a part of a widespread and systemic attack on the Bosnian Muslim population in Srebrenica was in fact the intent of the Bosnian Serb perpetrators. The boys were not then accidental victims of opportunity. Furthermore these children (older Bosnian Muslim boys) were executed with the perpetrator knowledge that this attack on the child collective would likely greatly contribute to driving the Bosnian Muslims from Srebrenica. While Krstic was not prosecuted for persecution of the Bosnian Muslim older boys through massacre, he was convicted as an aider and abettor of persecution of the Bosnian Muslim general civilian population of Srebrenica through murder, cruel and inhumane treatment.73 On the respectful view here; the failure to charge—under the ICTY Statute74 ‘other inhumane acts’ provision—the international crime of ‘agebased persecution in connection with genocide’ (based on the facts of the targeted massacre of the Bosnian Muslim male adolescents of Srebrenica) is to render those child victims of the genocide at Srebrenica virtually invisible legally75 and to undermine their rights as a child collective to a closer approximation to justice and accountability.

4.7

ISIL, Age-Based Persecution and the Yazidi Children Born of Rape

Let us consider an example of how gender-based crimes may intersect with cultural norms and impact, amongst others, children in particular. For example let us explore the impact of the targeting of a distinct, separable child collective victim for ‘agebased persecution relating in part to gender-based crimes and in connection with genocide’. Yazidi children born of rape where those rapes were perpetrated by ISIL constitute such a particular child collective victim of ‘age-based persecution’. These 73 Prosecutor v Radislav Krstic ICTY Appeals Chambers Judgment April 19, 2004, para 3 at p. 1 and para 144 at pp. 50–51. 74 International Tribunal for the Prosecution of Persons Responsible for Serious violation of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 U.N. Doc. S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by Security Council on 25 May 1993, U.N. Doc. S/RES/827 (1993). (ICTY Statute). 75 This being the case notwithstanding the special protected status that children enjoy under IHL/CIL.

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rapes were part of mass gender-based ISIL attacks and other international atrocity crimes directed against various ethnic/religious groups in Iraq including the Yazidis. These children born of rape by an ISIL perpetrator were considered, according to cultural norm in the region, not only for Yazidis but for many other ethnic groups in Iraq as well, to be Muslim; this based on the ethnic/religious heritage of the biological father. Thus per common sentiment and tradition; these children born of rape were also considered to be ISIL since the biological father was ISIL. The perpetrator would have known at the time of the commission of these mass rapes of Yazidi women and girls that the children born of these ISIL rapes and their mothers would, in all likelihood, based on custom in the region, be permanently rejected in most cases by their Yazidi ethnic/religious community. The non-Muslim communities would fear dilution of their ethnic/religious identity should these children born of ISIL rape and considered Muslim be incorporated into their communities. Indeed the Yazidi community, for instance, requires that both biological parents be Yazidis in order for their biological child (children) to be accepted into the community and be considered as Yazidi.76 Also by custom (for the Yazidis and other ethnic/religious groups in the region); females raped by an oppressor group traditionally would not uncommonly be rejected by their community as somehow tainted and connected to the perpetrator group not simply as victims but now, due to the rapes, perceived as part of that oppressor community/collection of family units. Quite unexpectedly it occurred however that within the Yazidi community the mothers (women and girls) who had been raped by ISIL perpetrators and had forced pregnancies and forced births were declared by the community leadership to be held blameless.77 This pursuant to Baba Sheikh, the Yazidi supreme religious leader, together with the Yazidi religious council, issuing a decree in mid-September 2014 that provided for re-baptism and a ritual of purification which allowed for the re-integration of Yazidi women and girls who had been raped by ISIL perpetrators and whether or not they had become pregnant and given birth. The decree also included a re-integration opportunity on the same terms for ISIL girl child soldier/ sex slave victims taken from the Yazidi community such that they could be accepted back into the Yazidi faith and group.78 Further . . . [in] April [2019], the Yazidis’ Higher Spiritual Council issued an ambiguous decree welcoming “children of survivors,” sparking hope of a second reformation to accept those born of a Yazidi mother and IS father. But a ferocious backlash from conservative Yazidis

76 For those ISIL targeted moderate Sunni Muslim communities most of whose members did not practice fundamentalist versions of the Sunni faith or accept ISIL doctrinal proclamations as purported religious imperatives, children born of ISIL rape likewise would commonly be regarded as ISIL and often be rejected by the community. 77 This decree followed entreaties by NGOs for a mechanism to allow reintegration of the women and girls raped by ISIL and also for the children born of these rapes. 78 Aljazeera ‘Yazidis to accept ISIL rape survivors, but not their children’ (April 29, 2019) https:// www.aljazeera.com/news/2019/4/29/yazidis-to-accept-isil-rape-survivors-but-not-their-children.

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prompted the Council to clarify that nothing had changed: it would only welcome children born to two Yazidi parents.79

The suffering of (i) the female child victims through ISIL rapes of girl child soldier/sex slaves incorporated into ISIL combat units and the rapes of other female child civilians such as those sold into the sex slave market but not incorporated as child soldiers into ISIL and (ii) the victimization of the children born of these rapes as a result of the forced pregnancy and forced birth imposed on their mothers, some of those mothers being children themselves, provide the factual basis for charges against the ISIL perpetrators falling into the category of ‘age-based persecution of children’ in connection with the gender-based crimes against humanity of rape (Rome Statute Article 7(1)(g)-1) and forced pregnancy (Rome Statute Article 7(1) (g)-4) among others in the context of genocide. Next we explore in more depth the collective victim category of ‘children born of ISIL rape’; that collective child victim also being a persecuted group. To acknowledge through the international criminal tribunals/courts that the children born of rapes perpetrated by oppressor armed groups or forces (i.e. ISIL) are a persecuted victim group would be a long-overdue innovation. Respectfully, it would be an advancement in judicial reasoning consistent with the international humanitarian/customary law and international human rights values that the Rome Statute and the Statutes of other international criminal law tribunals/courts seek to preserve (the latter through holding those who violate these most basic norms of decency to account and the informing of legal reasoning in international criminal cases in part by international human rights and humanitarian law). The legal theory underlying the charge of ‘age-based persecution’ in regards to the children born of rape as an international crime is that persecution is a continuous crime as it applies to that particular child collective victim.80 That is; (i) ISIL perpetrators fathered these children through effecting rape, forced pregnancy and forced birth and (ii) ISIL continues to claim ownership of the children pre and post birth of those children and continues to successfully taint the children as ISIL in the eyes of their mothers, the children’s home communities and ISIL just as the perpetrators anticipated would occur. Thus under this conception; the notion of ownership/enslavement is expanded beyond just physical custody as the children born of ISIL rape are enslaved by ISIL even if not in ISIL physical custody. Here the notion of enslavement is expanded to include effective ownership through a form of branding of a person through various mechanisms namely the combination of the gender-based crimes of rape, forced pregnancy and forced birth. Those gender-based international crimes are utilized by the oppressor group to mark that the victims ‘belong’ to the perpetrator group and to Deaccon Chronicle AFP ‘Agony of Yazidi women torn between IS kids, or return home’ 14 July. 2019 https://www.deccanchronicle.com/world/middle-east/140719/agony-of-yazidi-women-tornbetween-is-kids-or-return-home.html. 80 Hence the age-based persecution charge against the ISIL perpetrator as involves his victimization of members of the child-collective ‘children born of ISIL rape’ is not a charge relating to a child (children) not yet born since the persecution continues after birth in the form of perceived ISIL ownership of the child and the child’s perceived ISIL identity. 79

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force exclusion of the victims from their rightful ethnic or religious or otherwise defined home community. There remains thus an element of perpetrator control even where there is no physical custody in that the oppressor group has orchestrated the alienation and ostracization of the child victims born of rape from their mothers’ home communities and sometimes also from the mothers themselves.81 The absence of these children in the home community is most often accompanied by great mental suffering of the mothers, the other group of origin community members and of the children themselves lost to that community. Note that the loss to the group of origin of these children born of oppressor rape (as with the loss of the community’s children for instance through forcible transfer to the perpetrator group to be child soldier/sex slaves and those children killed by the perpetrator group) serves to undercut the group of origin’s chances for physical longevity, social cohesion as well as its’ maintenance of a robust cultural, religious and ethnic vitality and group identity. The charge of ‘persecution of children as a crime against humanity in connection with gender-based international crimes’, however, sadly to date, to this author’s knowledge, has not been realized in any ICC case nor for that matter in any case decided before any other international criminal tribunal forum.82 Indeed age-based persecution as a crime against humanity in respect of any child collective victim and in connection with any international atrocity crimes to date, to this author’s knowledge, has not been charged in an international criminal law forum.

4.8

Age-Based Persecution in Connection With the Genocide of Tutsi Children, Children of Tutsi-Hutu Heritage and the Children of Moderate Hutu

If the individual or group of individuals victimized are not, in the perpetrator’s mind, targeted based on their perceived group identity as linked to the protected group which the perpetrator seeks to destroy in part or in whole (the latter by destruction of all of the perpetrator-defined parts); the atrocity may be better classed as some international atrocity crime other than genocide. Thus the elements of the crime of each genocidal act (listed for instance at Rome Statute 6(a)-6(e)) include the fact that

81 For instance; in most cases the Yazidi women and girls in Iraq who had children born of rape by ISIL had to choose to surrender them for adoption if they (the mothers) were to be able to rejoin their Yazidi community (see Gebeily, Maya (2019) ‘In agony, Yazidi women torn between Islamic state kids and return home’ (The Times of Israel, 14 July, 2019). Other Yazidis women may have chosen to keep their children born of ISIL rape and may have resorted to living in a refugee camp or seeking out other assistance. 82 For instance in the ICTR Akayesu case “at trial a witness testified that Interhamwe raped her six-year old daughter in the Taba commune.” This led to Akayesu being charged with “rape and inhumane acts as crimes against humanity; outrages upon personal dignity as a war crime and sexual violence in respect of genocide” (Sellers 2008) There was however no charge of ‘age-based persecution of children’ as ‘other inhumane acts’.

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the act was perpetrated against “a person or persons” as representing/constituting a part or a whole of the targeted protected group defined in terms of national, ethnic, racial or religious dimensions. The specific genocidal intent then is to destroy the protected group in part or in whole—a broad range quantitatively. To use an example, let us consider the mass killing of children based on their group identity that occurred in the 1994 Rwandan genocide. The massacre of Tutsi children, the children of moderate Hutu and the children of mixed Hutu-Tutsi ethnicity during the 1994 Rwandan massacre was not of children as individuals or as groups of individuals but killing targeting a particular child collective entity in itself (the perpetratorperceived Tutsi child collective). This is reflected in the incitement to genocide messaging of the Hutu perpetrators that framed the child victims not in individual terms but rather as the future leaders of the Tutsi people—a framing of the child collective ‘as such’; an entity in itself held ripe for genocidal targeting. Here follow examples illustrating that framing by the perpetrators of the targeted child collective as a genocidal target ‘as such’—a part in itself of, in particular, the larger protected group-the Tutsi population generally. The child collective victim of the 1994 Rwandan massacre was in fact constituted of (i) Tutsi children and (ii) those children considered by the perpetrators at the time of the 1994 genocide as outcasts from the Hutu community and equivalent to Tutsi83 as purported legitimate targets for genocide. Those children considered by the Rwandan 1994 genocidaires as equivalent to Tutsi children were (i) the children of moderate Hutu as well as (ii) the children of mixed Hutu-Tutsi ethnicity (the latter even where the father was Hutu and hence the child would normally have been considered Hutu). The incitement to genocide thus was not directed to the objective of destroying individual children or groups of individual children but rather the aforementioned targeted child collective in toto as (i) an entity in itself and (ii) a perceived vital ‘part’ (as that term is used in the Genocide Convention) of the Tutsi population.

4.8.1

The Incitement to Genocide Targeting the Child Collective: Rwanda 1994

In March 1993, Kangura (a Rwandan newspaper) published an article entitled “A cockroach cannot give birth to a butterfly”84 which helped lay the groundwork for Tutsi children as targets of genocide as a collective ‘as such’. The article read in part: “To support the argument that Tutsi had slipped “like snakes” into places unnoticed, propagandists asserted that many people who claimed to be Hutu were in fact Tutsi who had changed their identity papers. In a wildly exaggerated estimate, Kangura charged that 85 percent of Tutsi had changed their ethnic identification.” Des Forges, A. (1999) ‘Leave None to Tell the Story: Genocide in Rwanda’ Section on Propaganda and Practice at p. 88 (Human Rights Watch) https://www.hrw. org/reports/pdfs/r/rwanda/rwanda993.pdf. 84 Hutu Incitement to Genocide Propaganda during the 1994 Rwanda Genocide. Cited in Des Forges, A (1999) ‘Leave None to Tell the Story: Genocide in Rwanda’ (Human Rights Watch) at p. 87. 83

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We began by saying that a cockroach cannot give birth to a butterfly. It is true. A cockroach gives birth to another cockroach. . .The history of Rwanda shows us clearly that a Tutsi stays always exactly the same, that he has never changed. The malice, the evil are just as we knew them in the history of our country. We are not wrong in saying that a cockroach gives birth to another cockroach. . . (emphasis added)85

The above genocidal rhetoric thus sought to justify the killing of Tutsi children as equivalent to the killing of the parents and a necessary part of ‘extermination’.86 The incitement implicating also children in addition took the following form: Some killers urged eliminating Tutsi women because, they said, they would produce only Tutsi children, regardless of the ethnic group of their husbands.87 Infants and young children who had survived or been saved in the first weeks were also slain in mid-May. Killers sought to justify their slaughter by repeating a phrase about Kagame or Rwigema, the RPF commander who had led the 1990 invasion, having once been a baby too. This explanation, voiced uniformly throughout the country, carried the idea of ‘self-defence ‘to its logically absurd and genocidal end. Hutu who tried to buy the lives of children or save them in other ways had little success and sometimes had to pay fines for having protected them (emphasis added).88

There was thus a concerted effort by the Hutu perpetrators to legitimize the mass killing of targeted infants and children as a collective. That child collective victim was constituted of infants and children of Tutsi or mixed Hutu-Tutsi heritage as well as comprised of the offspring of moderate Hutu. The genocidal illogic was that one never knew who might become, amongst these youngsters, a great leader for the Tutsi and therefore the killing was justified. This brings to mind Himmler’s words in commenting on the Nazi forcible transfer of so-called ‘Aryan-looking’ children from various Europeans States to Nazi Germany: “We cannot take the responsibility of leaving this blood on the other side, enabling our enemies to have great leaders capable of leading them.”89 Again reflecting a targeting in effect of the child collective as an entity in itself and linked to the fear that these children may become the leaders of a resistance movement to the oppressor genocidaires. This was specific genocidal intent involving Nazi targeting of the children of various ethnic groups from the European region but motivated in part politically. In the genocidal mind set, as there is no way to know in advance who amongst the child group will emerge as important in the leadership; it is therefore necessary to target the child 85

Hutu Incitement to Genocide Propaganda during the 1994 Rwanda Genocide. Cited in Alison Des Forges (1999) ‘Leave None to Tell the Story: Genocide in Rwanda’ (Human Rights Watch) at p. 87. 86 Compare Jorgensen (2016), p. 86. 87 Hutu Incitement to Genocide Propaganda during the 1994 Rwanda Genocide. Cited in Alison Des Forges (1999) ‘Leave None to Tell the Story: Genocide in Rwanda’ (Human Rights Watch) at p. 443. Note this contradicted Rwandan tradition as normally the child’s ethnicity would be determined by the father’s ethnic group. 88 Hutu Incitement to Genocide Propaganda during the 1994 Rwanda Genocide. Cited in Alison Des Forges (1999) ‘Leave None to Tell the Story: Genocide in Rwanda’ (Human Rights Watch) at p. 443. 89 Mundorff (2009), p. 81.

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collective as an entity in itself, ‘as such’ for the genocidal act(s) (whether that be by killing, forcible transfer to the oppressor group or by some other means).90 Thus the incitement to genocide in that case is about targeting the particular child collective (itself a protected group under IHL/CIL) as a part of the larger protected group. This is implied in the following radio address of RTLM’s Noël Hitimana which advocates sparing no Tutsi: On the day when people rise up and don’t want you Tutsi anymore, when they hate you as one and from the bottom of their hearts . . . I wonder how you will escape (emphasis added).91

In the genocidal mindset the perpetrator does not destroy an individual or group of individual victims of the targeted protected group. This since the genocidal perspective is that the targeted protected group is not constituted of unique individuals to be assessed for moral worth on their own individual unique merits and demerits. Rather the targeted group is framed by the perpetrator as a monolith and hence, in the genocidaire world view, all stand for one and one for all when targeted for a genocidal act and the mass victims are thus rendered indivisible symbolically.

4.9

Positive and Negative Definitions of the Part or Whole Targeted for Genocide

The Rwandan 1994 Hutu massacre of (i) Tutsi children, (ii) children of mixed ethnicity (with often a Tutsi mother and Hutu father) and (iii) children of moderate Hutus (where the parents opposed genocide of the Tutsis and other such atrocities against the Tutsis) was spread across many communities. Yet together most of these child victims represented a substantial part as such of the overall protected group; namely the Tutsis of Rwanda targeted for genocide. That child collective victim as such defined in terms of age, nationality, and ethnicity;92 was a child group targeted for genocide as a collective; a protected entity in itself as well. Note that nothing in

90

In the incitement to genocide the children of the Hutu perpetrators were cast as the true victims relying for instance on epic myths: “The propagandists stressed that Tutsi were foreign to the area and had stolen Rwanda from its rightful inhabitants. The ruthless conquerors had ground the Hutu under their heel in a “repressive and bloody regime. . .epitomized by [the queen-mother Kanjogera who] to get up from her seat leaned on two swords planted between the shoulders of two Hutu children!” Cited in Alison Des Forges (1999) ‘Leave None to Tell the Story: Genocide in Rwanda’ (Human Rights Watch) at p. 86. 91 Ndahiro, K. (Editor of the New York Times) “In Rwanda, We Know All About Dehumanizing Language’ The Atlantic April 13, 2019 https://www.theatlantic.com/ideas/archive/2019/04/ rwanda-shows-how-hateful-speech-leads-violence/587041/. 92 The reference here is to children who were Tutsi or mixed Tutsi-Hutu ethnicity (the latter designated by the perpetrators as Tutsi, non-Hutu and hence alleged legitimate targets for the genocide).

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the Genocide Convention93 suggests that ethnicity within a targeted collective ‘as such’ cannot, objectively speaking, be varied as long as the perpetrator defines the victims as qualitatively equivalent for the perpetrator’s purposes. Thus children of mixed ethnicity (with one Hutu and one Tutsi parent; a family deemed by the perpetrator as outcasts from the Hutu collective) and the children of moderate Hutus were both defined by the extremist Hutu perpetrators of the 1994 Rwandan genocide as equivalent to Tutsi in the sense of being purportedly legitimate targets as loyalists to the Tutsi so as to be indistinguishable as anyone other than Tutsi. This highlights the critical importance in respect of the legal analysis of the perpetrator’s subjective definition of the relevant protected ground such as ‘ethnicity’ that directs the targeting. For instance, on the perpetrator’s analysis, the targeted child collective in the Rwandan 1994 genocide was characterized in terms of both a positive definition (an attribution of ethnicity to the members of the targeted collective as Tutsi or equivalent to Tutsi) and a negative definition; namely ‘not part’ of the Hutu recognized collective, ‘non-Hutu’ (i.e. which Hutu collective excluded moderate Hutu and all other ethnicities or mixed ethnicities). This author thus disputes the ICJ view in the Bosnian genocide case that targeted collectives cannot be also defined in negative terms in that in fact that is the natural result; the other side of the coin if— you—will of the positive definition assigned to the protected but targeted collective at issue.94 A strictly objective analysis of the protected grounds under the Genocide Convention would likely lead, in at least some instances, to disregard for the collective victim ‘as such’ targeted for Rome Statute international crimes along the perpetrator-perceived protected dimensions of ‘race’, ethnicity, nationality and/or religion. The latter would be a grave injustice and not at all legally supportable given that the Genocide Convention incorporates (i) the dubious protected ground of ‘race’ unsupported by science; (ii) the amorphous, undefined protected ground of ‘ethnicity’ (i.e. where the cultural aspects of communities may overlap significantly (as with the Hutu and Tutsi where it is unclear whether it is correct to consider the two groups as genuinely different ethnicities), (iii) ‘religion’ (it is unclear whether ‘religion’ here refers to distinct religious practices and rituals and/or to substantially distinct religious doctrine, and whether and which outlier spiritual groups are to be considered religions etc.), and (iv) ‘nationality’ though it is unclear whether the ground of nationality is to be considered as excluding the stateless as potential victims of genocide for instance or whether statelessness is covered as a condition relevant to the protected ground of ‘nationality’ (targeting for genocide due to the absence of nationality).

93 Convention on the Prevention and Punishment of the Crime of Genocide, entry into force January 12, 1951 https://www.ohchr.org/en/professionalinterest/pages/crimeofgenocide.aspx. 94 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 at para 194–196.

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What cannot be denied is that (i) thousands of infants and children were targeted for genocide during the 1994 Rwandan campaign of atrocity perpetrated by extremist Hutu and that infants and children of mixed ethnicity and the infants and children of moderate Hutu were amongst those numbers and not just the Tutsi young and that (ii) the infants and children of mixed ethnicity and the offspring of moderate Hutu were targeted due to their being categorized by the perpetrator group as ‘non-Hutu’, and for all intents and purposes of the genocide campaign, equivalent to the Tutsi and to be considered Tutsi. Thus the mass killing of infants and children during the 1994 Rwandan genocide was yet a targeted killing of defined groups of the young with definite Hutu perpetrator selection criteria applied (age (infants and children to be both included), perceived ethnicity (Tutsi children and children of mixed TutsiHutu heritage) and in respect of one group; also political considerations (in respect of the children of moderate Hutu). All of the foregoing grounds for targeting for the severe deprivation of a fundamental right (the right to life) then being impermissible under international law and constituting ‘age-based persecution in connection with genocide’. We turn in the next chapter to a consideration of age-based persecution of children in connection with other equally grave crimes against humanity.

References Literature Alonzo-Mazlish D (2002) Notes: In whole or in part, group rights, the intent element of genocide and the “quantitative criterion”. N Y Univ Law Rev 77:1369–1403 De Souzas Dias T (2018) The retroactive application of the Rome Statute in cases of Security Council referrals and ad hoc declarations J Int Crim Just 16:65–89 Grover SC (2012) Child soldier victims of genocidal forcible transfer: exonerating child soldiers charged with grave conflict-related international crimes. Springer, New York Jorgensen CM (2016) A case study analysis of de-humanization in Rwanda and Darfur, Department of Conflict Resolution Studies, Nova Southeastern University, Doctoral Dissertation https:// nsuworks.nova.edu/shss_dcar_etd/50/. Accessed 1 Nov 2020 Kreb C (2006) The crime of genocide under international law. Int Crim Law Rev 6:461–502 Kreb C (2007) The international court of justice and the elements of the crime of genocide. Eur J Int Law 18(4):619–629 Margalit A (2018) Still a blind spot: the protection of LGBT persons during armed conflict and other situations of violence. Int Rev Red Cross 100(1-2-3):237–265 Mundorff K (2009) Other people’s children: a textual and contextual interpretation of the Genocide Convention, Article 2(e). Harv Int Law J 50:61–127 Sellers PV (2008) The Prosecution of Sexual Violence in Conflict: The Importance of Human Rights as a Means of Interpretation. https://www2.ohchr.org/english/issues/women/docs/Paper_ Prosecution_of_Sexual_Violence.pdf. Accessed 30 Jan 2021 Tan Y (2019) The Rome Statute as evidence of customary international law. Doctoral Dissertation Leiden University Law. https://openaccess.leidenuniv.nl/handle/1887/71143 Accessed 19 Jan 2021

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Materials Aljazeera ‘Yazidis to accept ISIL rape survivors, but not their children’ (April 29, 2019). https:// www.aljazeera.com/news/2019/4/29/yazidis-to-accept-isil-rape-survivors-but-not-their-chil dren (accessed January 30, 2021) BBC News (July 10, 2017) Bosnia’s Srebrenica massacre 25 years on-in pictures https://www.bbc. com/news/world-europe-53346759 (accessed October 22, 2020) Convention on the Prevention and Punishment of the Crime of Genocide, entry into force January 12, 1951. https://www.ohchr.org/en/professionalinterest/pages/crimeofgenocide.aspx (accessed October 3, 2020) Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949 (Geneva Convention IV) https://ihl-databases.icrc.org/ihl/INTRO/380 (accessed October 10, 2020) Deaccon Chronicle AFP ‘Agony of Yazidi women torn between IS kids, or return home’ 14 July. 2019. https://www.deccanchronicle.com/world/middle-east/140719/agony-of-yazidi-womentorn-between-is-kids-or-return-home.html (accessed January 30, 2021) Des Forges A. (1999) ‘Leave None to Tell the Story: Genocide in Rwanda’ (Human Rights Watch). https://www.hrw.org/reports/pdfs/r/rwanda/rwanda993.pdf (accessed October 31, 2020) Gebeily M ‘In agony, Yazidi women torn between Islamic state kids and return home’ (The Times of Israel, July 14, 2019). https://www.timesofisrael.com/in-agony-yazidi-women-torn-betweenislamic-state-kids-or-return-home/ (accessed January 30, 2021) International Tribunal for the Prosecution of Persons Responsible for Serious violation of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 U.N. Doc. S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by Security Council on 25 May 1993, U.N. Doc. S/RES/827 (1993). (ICTY Statute) http://hrlibrary.umn.edu/icty/ statute.html (accessed December 8 2020) International Committee of the Red Cross Commentary on Article 77 of Protocol I to the 1949 Geneva Conventions https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/470 (accessed October 5, 2020) International Committee of the Red Cross Commentary on Article 4(3) of Protocol II to the 1949 Geneva Conventions https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/475 (accessed October 5, 2020) International Criminal Tribunal of the Former Yugoslavia (ICTY) Statute, September (2009). https://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf (accessed January 30, 2021) Krill, F International Committee of the Red Cross (ICRC) Deputy Director of Operations, Helsinki, Address September 1999. ‘The elderly in situations of armed conflict’ https://www.icrc.org/en/ doc/resources/documents/misc/57jqx9.htm (accessed January 30, 2021) Ndahiro K (Editor of the New York Times) “In Rwanda, We Know All About Dehumanizing Language’, The Atlantic, April 13, 2019. https://www.theatlantic.com/ideas/archive/2019/04/ rwanda-shows-how-hateful-speech-leads-violence/587041/ Prosecutor v Radislav Krstic Appeals Chamber Judgment Press Release, (April 19 2004). https:// www.icty.org/en/press/appeals-chamber-judgement-case-prosecutor-v-radislav-krstic (accessed October 25, 2020) Protocol I Additional to the August 12, 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflict (June 8, 1977a). https://ihl-databases.icrc.org/applic/ ihl/ihl.nsf/ART/470-750053?OpenDocument (accessed November 5, 2020) Protocol II Additional to the August 12, 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflict (June 8, 1977b). https://ihl-databases.icrc.org/ihl/ WebART/475-760008?OpenDocument (accessed October 5, 2020) Rome Statute, entry into force July 1, 2002. https://www.icc-cpi.int/resource-library/documents/rseng.pdf (accessed September 9, 2020

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Rome Statute Elements of the Crime, adopted 2010. https://www.icc-cpi.int/NR/rdonlyres/ 336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf (accessed September 9, 2020) Statute of the International Court of Justice (established October 24, 1945). https://www.icj-cij.org/ en/Statute Sudetic C (2010) The Srebrenica massacre (July 11-16, 1995) ‘Mass Violence & Resistance’ (July 7, 2010) https://www.sciencespo.fr/mass-violence-war-massacre-resistance/en/document/ srebrenica-massacre-july-11-16-1995.html UN Human Rights Council (2016) ‘They came to destroy, ISIS crimes against the Yazidis’ A/HRC/ 32/CRP.2 (June 15, 2016) 32nd session https://www.ohchr.org/Documents/HRBodies/ HRCouncil/CoISyria/A_HRC_32_CRP.2_en.pdf UN Secretary –General Report to the General Assembly November 1999 Pursuant to General Assembly Resolution 53/35 ‘The Fall of Srebrenica”, (United Nations doc. A/54/549). https:// peacekeeping.un.org/en/report-of-secretary-general-pursuant-to-general-assembly-resolution5335-fall-of-srebrenica-a54549 (accessed October 31, 2020) UN News, UN World Court acquits Serbia of genocide in Bosnia; finds it guilty of inaction February 26, 2007. https://news.un.org/en/story/2007/02/210142-un-world-court-acquits-ser bia-genocide-bosnia-finds-it-guilty-inaction (accessed January 19, 2021)

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, Judgment of 26 Feb. 2007. https://www.icj-cij.org/en/case/91/judgments (accessed October 21, 2020) Prosecutor v. Krstic IT-98-33 Trial judgment August 2, 2001., https://www.icty.org/x/cases/krstic/ tjug/en/krs-tj010802e.pdf (accessed October 26, 2020) Prosecutor v. Krstic Case No:IT-98-33-A Appeal Judgement April 19, 2004. https://www.icty.org/ x/cases/krstic/acjug/en/krs-aj040419e.pdf (accessed October 21, 2020)

Chapter 5

The Persecution of Children in Connection with Crimes Against Humanity

5.1

Introduction

The focus in this chapter is on the persecution of children in connection with selected various other crimes against humanity whilst recognizing that ‘persecution’ as set out in the statutes of various international criminal courts/ad hoc tribunals is itself a separate crime against humanity. Those other crimes against humanity, for example, as set out at Article 7 of the Rome Statute, are committed as part of a widespread or systematic attack directed against any civilian population, with perpetrator knowledge of the attack and include: “(a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity. . .(i) Enforced disappearance of persons; (j) The crime of apartheid; (k) ‘Other inhumane acts’ of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”1 We here will focus, for illustrative purposes, on the limited examples of persecution in connection with extermination and various gender-based crimes as crimes against humanity (Referencing then persecution of (i) the child collective ‘as such’ and of (ii) individual children based on their group identity linked to an age-defined collective in combination with their other intersecting characteristics such as ethnicity, religion, or other status). In considering the ‘persecution’ of the child collective in whole or in part in connection with various other ‘crimes against humanity’; we will examine through selected cases (i) the targeting in whole or in part of the particular child collective ‘as such’ for persecution as well as, at the same time, (ii) the targeting in whole or in part

1

Rome Statute Article 7 Crimes Against Humanity.

© Springer Nature Switzerland AG 2021 S. C. Grover, The Persecution of Children as a Crime Against Humanity, https://doi.org/10.1007/978-3-030-75002-2_5

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of the particular child collective as a part of a larger protected group such as a civilian population or a collective of persons hors de combat.

5.1.1

Persecution as a Crime Against Humanity Under the Rome Statute

Recall that the Rome Statute Elements of the Crime of persecution as a crime against humanity recognizes per element 3 persecution based on (i) “political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute or (ii) other grounds universally recognized as impermissible under international law”; the latter which would include then also age-based persecution directed at children due at least, in part, to their membership in the targeted particular child collective.2 Further persecution under the Rome Statute per element 4 is committed “in connection with” other crimes against humanity or “any crime within the jurisdiction of the Court.”3 The latter then would include also genocide and war crimes and could conceivably include also, for instance, the articulation of a crime grounded in CIL and/or jus cogens prohibitions; not set out explicitly in the statute though still under ICC jurisdiction. In respect of the crime against humanity of ‘persecution’ the injury in the first instance is inflicted on one or more persons (an individual or group of individual victims). Thus the Rome Statute crime of ‘persecution’, for instance, includes the element “The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights.”4 However the second element of the international crime of ‘persecution’ under the Rome Statute makes clear that the individual or group of individuals subjected to this particular international atrocity crime were but a means to the end of injuring the collective as an entity in itself: “The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.”5 That is the individuals or groups of individuals victimized were so victimized due to their identity in terms of their membership (perpetrator perceived or actual membership) in a distinct targeted collective. The specific, distinct, separable collective targeted for persecution is defined by the perpetrator(s) in terms (according to the persecution as a crime against humanity provision in the Rome Statute) of a) its’ actual or perceived “political, racial, national, ethnic, cultural, religious, [and/or] gender6” make-up or on “other

2

Rome Statute Elements of the Crime Element 3. Rome Statute Elements of the Crime Element 4. 4 Rome Statute Elements of the Crime (2010) Article 7(1)(h)(1). 5 Rome Statute Elements of the Crime (2010) Article 7(1)(h)(2). 6 The meaning of ‘gender’ in Article 7 of the Rome Statute setting out crimes against humanity including persecution is clarified at paragraph three of that provision in the Rome Statute as follows: “For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male 3

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grounds that are universally recognized as impermissible under international law.”7 The fact that the Rome Statute crime of ‘persecution’ sets out an element, relevant in some fact scenarios, involving targeting of a collective based on a ground universally recognized as impermissible under international law (i.e. other than “political, racial, national, ethnic, cultural, religious, [and/or] gender”) would allow then for charges of age-based persecution. The latter where a particular distinct child collective is targeted based, for instance, in the first instance on age (with such other intersecting attributes that may have also figured into the perpetrator’s incentive to target the child collective in question).8 The child collective targeted will have intersecting attributes that define it in terms of age and other characteristics such as ethnicity which are also the focus of the perpetrators’ antipathy. Such was the case with ISIS perpetrators in Iraq, for instance, who targeted child collectives defined by age and various minority ethnic/religious identities. The argument is made here that the crime of ‘persecution’ targeting a particular distinct child collective merits separate charges under the Rome Statute (in ICC cases) over and above the charge of persecution pursued for the targeting of a collective of mixed ages (where victimization was based on actual or perceived political, racial, national, ethnic, cultural, religious, [and/or] gender characteristics or other grounds universally recognized as impermissible under international law but not age). This in consideration of children as a collective victim as such owed a special duty of care under international law (i.e. CIL, IHL and IHRL) and as a distinct vulnerable group in and of itself.

5.1.2

The Prohibited Grounds Under the Persecution Provisions of the Statutes of the ICTR, ICTY and SCSL

It should be noted that the statutes of the Special Court of Sierra Leone (SCSL), the International Criminal Tribunal for the Former Yugoslavia (ICTY), and International Criminal Tribunal for Rwanda (ICTR) restrict the crime against humanity of persecution to narrow grounds. Under (i) the SCSL Statute at Article 2 persecution is based on political, racial, ethnic or religious grounds regarding the targeting of “any” civilian population; (ii) the ICTY Statute at Article 5 holds persecution to be based on political, racial and religious grounds for the targeting of “any” civilian population while (iii) the ICTR Statute at Article 3 likewise holds persecution to be based on political, racial and religious grounds targeting “any” civilian population. In respect of the SCSL, the ICTY and the ICTR, it is here argued, it would have been legally supportable (where the case fact pattern supported it), to charge age-based

and female, within the context of society. The term “gender” does not indicate any meaning different from the above.” (Rome Statute, 2002, Article 7, paragraph 3). 7 Rome Statute Elements of the Crime (2010) Article 7(1)(h)(3). 8 See the discriminatory grounds of persecution in the elements of the crime for persecution in the Rome Statute.

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persecution (grounded in an IHL/CIL prohibition) under ‘other inhumane acts’ as a crime against humanity. This in that age is not listed explicitly or implicitly as a prohibited ground in the persecution provisions of the Statutes of the SCSL, ICTY or ICTR. Thus age-based persecution would have included an element of the crime relating to age of the victims that sets it out as a crime distinguishable under the crimes against humanity category of ‘other inhumane acts’-that is relative to the conduct set out under the ‘persecution’ specific provisions of the aforementioned statutes. It likely would have been regarded as excessive ‘judicial activism’ had the SCSL, ICTY or ICTR recognized, on the facts of any specific case, that the particular child collective victim at issue was persecuted due to the intersecting attributes of age and one or more of the grounds listed in the particular relevant statute’s persecution provision. This given the narrow grounds in the definition of the crime against humanity of ‘persecution’ in the aforementioned respective statutes. Those narrow grounds listed in the persecution provisions precluded the specific, distinct child collective targeted by the perpetrator group being distinguished (by the ICTY, ICTR or SCSL) as a child collective victim of persecution in some form (referencing then ‘age-based persecution’) under the persecution provision per se. Thus while each of the aforementioned statutes refer to persecution as occurring in the context of a widespread or systematic attack on any civilian population, thereby being, in principle, inclusive of a child collective as a potential targeted civilian population ‘as such’ or part thereof, ‘age-based persecution’ is not contemplated by these particular statutes under their persecution provisions. In the following selected exemplar cases, however, neither was ‘age-based persecution’ charged under ‘other inhumane acts’ though such was feasible under the respective statutes. This was the case even though (i) there was targeted persecution of children as children and (ii) persecution of the children also based on one or more of the intersecting grounds listed in the persecution provision of that particular statute: (i) In the Special Court of Sierra Leone (SCSL) Brima case,9 for instance, persecution of children was based on political grounds intersecting with age as the AFRC/RUF sought dominance of the civilian population perceived to support the elected government of AT Kabbah while resisting the AFRC/RUF but age-based persecution was not charged. The AFRC campaign of terror was marked by its’ extreme brutality including against children.10 (ii) In the ICTY case of Krstic11 the facts reveal that Bosnian Muslim adolescent boys were massacred at Srebrenica12 and not just military-aged men. The massacre of these Bosnian Muslim adolescent boys constitutes persecution of 9

Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone, Trial Chamber II June 20, 2007. 10 Centre for Women, Peace and Security Brima, Kamara and Kanu Case https://blogs.lse.ac.uk/ vaw/landmark-cases/a-z-of-cases/brima-et-al-case/. 11 Prosecutor v. Krstic Case No:IT-98-33-A Appeal Judgement April 19, 2004. 12 The victims as explained were not confined to those of military age.

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a part of the Muslim Bosnian child collective of Srebrenica (‘age-based persecution’). Thus the facts in Krstic regarding the massacre of adolescent Bosnian Muslim boys—based on their group identity as ‘Bosnian Muslim children of Srebrenica’—, indicate persecution based on age intersecting with political,13 and religious grounds. These older boys approximately sixteen years and older but under eighteen (though some victims were even younger) were not victims of opportunity for the Bosnian Serb perpetrators as they had been selected out for execution: On 6 July 1995, Bosnian Serb forces attacked Srebrenica in earnest. UN forces surrendered or retreated into the town, and NATO air strikes, called in to help, did little to slow the advance. The enclave fell within five days. Gen Mladic walked triumphantly through the town with other generals. Some 20,000 refugees fled to the main Dutch UN base. Killing began the next day. As Muslim refugees boarded buses for evacuation, Bosnian Serb forces separated out men and boys from the crowds and took them away to be shot. Thousands were executed and then pushed into mass graves with bulldozers. Reports suggest some were buried alive, while some adults were forced to watch their children be killed.14 Bosnian-Serb soldiers and police rounded up men and boys ages 16 to 60 . . .trucked them to killing sites to be shot and buried them in mass graves. Serbian forces bused about 20,000 women and children to the safety of Muslim-held areas – but only after raping many of the women.15

The fact that military aged men and some elderly men16 were also the victims of the massacre does not detract from the fact that Bosnian Muslim adolescent boys were selectively also chosen as targets for execution. This during the separation of the crowds into those who would survive but be forcibly displaced and those who would be massacred. The execution of the Bosnian Muslim adolescent boys sent a particularly terrifying message as to the unrelenting mercilessness of the Bosnian Serb perpetrators and constituted ‘age-based persecution’ in connection with extermination as a crime against humanity and also genocide.

13 The children were perceived as belonging to a larger civilian population (the Bosnian Muslims of Srebrenica) that resisted the notion of the Serbian takeover of the area and ethnic cleansing from that locale of Bosnian Muslims. 14 BBC News ‘Bosnia’s Srebrenica massacre 25 years on-in pictures’ (July 10, 2020) https://www. bbc.com/news/world-europe-53346759. 15 Mockaitis T ‘Srebrenica 25 years later: Lessons from the massacre that ended the Bosnian conflict and unmasked a genocide’ (July 8, 2020) The Conversation (online journal) https://theconversation. com/srebrenica-25-years-later-lessons-from-the-massacre-that-ended-the-bosnian-conflict-andunmasked-a-genocide-141177. 16 Most of the more elderly men had been forcibly transported out of the Srebrenica area by the perpetrators along with the women and younger children.

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(iii) In the ICTR case of Theoneste Bagosoro and Anatole Nsengiyumva;17 the age-based persecution of the Tutsi child collective was based on age intersecting with ‘race’ (better described as ethnicity). In the latter case also the age-based persecution targeting children was, however, not charged under the category of ‘other inhumane acts’ or under any other statute provision. In none of these aforementioned selected case examples were the fundamental rights of the child victims to life and security of the person vindicated (on the view here as necessary and legally justified) through a charge and conviction of the perpetrators for ‘age-based persecution’ as an ‘other inhumane act’. This being the case notwithstanding the evidence of the crime of age-based persecution targeting children.

5.1.3

‘Extermination’ on a Discriminatory Ground Not Covered in the Genocide Convention

Extermination’ as a crime against humanity may involve mass killing on a basis that falls outside of the prohibited grounds set out in the Genocide Convention: The very term “extermination” strongly suggests the commission of a massive crime. . . It should be noted, though, that “extermination” could also, theoretically, be applied to the commission of a crime which is not “widespread” but nonetheless consists in eradicating an entire population, distinguishable by some characteristic(s) not covered by the Genocide Convention, but made up of only a relatively small number of people. . . the ICC definition of extermination indicates that it would be sufficient that the criminal acts be “calculated to bring about the destruction of part of the population. . .” (emphasis added).18

On the foregoing analysis in Krstic then, by implication, age could be amongst the characteristics distinguishing a small distinct group or population/collective ‘as such’; targeted for ‘extermination’ (referring here, for the purposes of this discussion, to a particular child collective targeted in whole or in part for extermination). At the same time, a child collective would commonly no doubt be considered by the perpetrator as a part of a larger population that is also targeted for extermination. The argument is here advanced that extermination in part or in whole of targeted child collectives ‘as such’19 has unjustifiably not figured into prosecutorial legal analysis and charging. This notwithstanding the facts in support of the charge as concerns child collectives in selected cases. Let us thus consider two selected cases as exemplars of where this insupportable bar to justice and accountability occurred

17 Theoneste Bagosoro and Anatole Nsengiyumva versus The Prosecutor (Case No. ICTR-98-41-A) (In the Appeals Chamber) Judgement of December 14, 2011. 18 Prosecutor v Radislav Krstic ICTY Trial Judgment August 2, 2001 Part III Legal Findings Extermination: para 502 at p. 178. 19 The child collective targeted for extermination is defined by age and also likely by intersecting other attributes, the latter at least in the perception of the perpetrator, and the combination more commonly leads to the targeting of the child collective rather than targeting being based on age alone.

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for the child collective victim of the grave crime against humanity of extermination. In other words, the current author will set out here, in the context of selected case examples, the crime against humanity of extermination directed to “eradicating an entire population, distinguishable by some characteristic(s) not covered by the Genocide Convention, but made up of only a relatively small number of people”20 (compared to the total targeted larger civilian population) and do so in reference to parts of particular discrete child collectives targeted for extermination. Before we turn to those cases please note that the current author is in agreement with the view that “. . .a perpetrator may be guilty of the crime of extermination if he kills or destroys one individual as long as that killing of that individual is part of a mass killing event.”21 Thus extermination, though it overall involves mass killing as the intent and conduct, may involve a particular perpetrator in targeting for extermination a part, even a very small part, of the civilian population under that mass attack. That small part may be, in certain cases, a child collective ‘as such’ or individual children killed due to their group identity relating to their age and one or more intersecting attributes shared with the larger targeted civilian population. It is here argued further then, with respect, that the international criminal tribunals or courts have erred whenever equating the mass killing involved in extermination with indiscriminate killing. This since extermination can involve the purposeful selective targeting, for instance, of smaller collectives ‘as such’ (for instance a child collective in whole or in part). Those smaller collectives are a part of the larger civilian population slated for extermination by the organized co-perpetrators carrying out the planned mass killings or imposition of conditions designed to decimate that targeted larger population to the greatest extent feasible under the circumstances. Further the mass killing involved in extermination involves the perpetrators in targeting individuals falling into various victim categories to ensure each status category is well represented in the victim count. Victim ‘status categories’ (for lack of a better term) may be based on age, gender and other categories such as ethnicity or a combination of factors (i.e. ISIS in Iraq targeted for mass killings and other international atrocity crimes different ethnic groups including but necessarily limited to the Yazidis, the Christians, the Shia Turkman, the moderate Sunni, the Shabak, the Kaka’I and the Sabean-Mandeans). This fervent effort by the perpetrator committing the crime against humanity of extermination, that the various victim status categories are well represented in the body count, is typically to send the message to the targeted civilian and/or other protected groups that no one amongst them is safe.22

20 Prosecutor v Radislav Krstic ICTY Trial Judgment August 2, 2001 Part III Legal Findings Extermination para 501 at p. 178. 21 Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone, Trial Chamber II June 20, 2007, para 683 at p. 209. 22 Hence it is not surprising that one of the Ten Commandments published in the anti-Tutsi widely read newspaper Kangura in December 1990 stated “The Hutu should stop having mercy on the Tutsi.” That then would include also not having mercy on children who more commonly garner sympathy from some quarters in armed conflict not of their making. The Ten Commandments, though published four years before the 1994 genocide, helped lay the groundwork for it by desensitizing the Hutu to atrocity (Genocide Archive of Rwanda).

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Among these victim status categories targeted during extermination in the cases to be discussed are children. They are our focus for the purpose of our discussion here which is to illustrate the selective targeting of the child collective in whole or in part ‘as such’ as age-based persecution in connection with various crimes against humanity including i.e. extermination.23

5.2 5.2.1

The Persecution of Children in Connection with ‘Extermination’ as a Crime Against Humanity The Targeting of the Child Collective in the Context of Mass Killing (Extermination): The Rwandan 1994 Massacre of Tutsi

Discriminatory intent is not a required element to be met regarding the crime against humanity of extermination as set out in the statutes of the ICC, ICTY, ICTR or SCSL. Yet the cases addressed by these international criminal courts/tribunals, where the cases involve extermination, amongst other international crimes, generally concern extermination in connection with persecution thus addressing extermination animated by discrimination on particular grounds: In the opinion of the Appeals Chamber, except in the case of persecution, a discriminatory intent is not required by international humanitarian law as a legal ingredient for all crimes against humanity. ..However, though such is not a requirement for the crime per se, all crimes against humanity, may, in actuality, be committed in the context of a discriminatory attack against a civilian population. As held in Tadic: “[i]t is true that in most cases, crimes against humanity are waged against civilian populations which have been specifically targeted for national, political, ethnic, racial or religious reasons”. It is within this context, and in light of the nature of the events in Rwanda (where a civilian population was actually the target of a discriminatory attack), that the Security Council decided to limit the jurisdiction of the Tribunal over crimes against humanity solely to cases where they were committed on discriminatory grounds. This is to say that the Security Council intended thereby that the Tribunal should not prosecute perpetrators of other possible crimes against humanity (emphasis added).24

23

Recall that in the earlier two genocides in Rwanda (prior to the 1994 genocide) children were not a collective victim (defined i.e. by age intersecting with perceived ethnicity) targeted for extermination and genocide. 24 United Nations Case Law Database ‘Discriminatory Intent, Prosecutor versus Jean-Paul Akayesu’, Appeals Judgement June 1, 2001 at para 464 https://cld.irmct.org/notions/show/274/ discriminatory-intent. According to the Akayesu ICTR Appeals Chamber; the perpetrator in committing extermination is, under the ICTR statute, as an element of the crime, required to know that his acts, when committed, are part of a widespread or systematic attack on a civilian population targeted on national, political, ethnic, racial or religious grounds and intend his conduct to result in or contribute to considerable loss of life in the targeted group as part of that attack. He need not have discriminatory intent in advance propelling the conduct.

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The ICTR case law on ‘extermination’ (as a crime against humanity) thus addresses the targeting of individuals based on their group identity and, as such, members also of a collective victim in itself. That victim collective is constituted, in the case of the international crime of extermination in the ICTR case law, as a part of a particular civilian population targeted (persecuted) on certain discriminatory grounds; namely national, political, ethnic, racial, or religious grounds.25 Thus while the crime of extermination under the ICTR statute addresses the deprivation of the lives of individuals on a mass scale without requiring discriminatory intent as an element; this mass taking of lives is, factually speaking in the ICTR case law, discriminatory in intent based on the group identity of the individual victims. The mass killing is intended to destroy a civilian population/collective in part or in whole by killing directly or by way of the conditions of life imposed by the perpetrator(s). Extermination under ICTR case law thus involves the targeting of a defined civilian population for destruction in part or in whole and occurs in the context of a widespread or systematic attack on that population. What is argued here is that where that part of the civilian population targeted (with discriminatory intent) for destruction itself has discrete, separable defining attributes that are the basis for the perpetrator’s targeting; then that part itself, as an entity in itself, is also a collective victim alongside the larger civilian population targeted through its part(s). One such defining feature of a part of the civilian population targeted for extermination in and of itself is age of the victims26 comprising that part; for instance persons under age

25 The Prosecutor v Akayesu, Jean-Paul (Trial Chamber), (ICTR 96-4) September 2, 1998, para. 591–592: https://unictr.irmct.org/en/cases/ictr-96-4-T. 26 While the focus in the current work is on the age-based persecution of children as a crime against humanity (where child is considered a person under eighteen); there are instances of age-based persecution that involve persons not classed as children. There are cases, for instance, where the individuals comprising the part of the civilian population targeted for mass murder are largely or exclusively adults of military age. In that instance age is yet a prime defining feature creating the contours of a discrete collective victim set apart from the larger population victimized. An example is the ISIL massacre of non-combatant Iraqi Military Cadets near Tikrit at Camp Speicher in June 2014 where the victims were all of military age (the majority in the 19–25 year range) (Fox News June 26, 2017 ‘Grieving Iraqis Call on US to Investigate Massacre of 1600 Air Cadets’ https:// www.foxnews.com/world/grieving-iraqis-call-on-us-to-investigate-massacre-of-1600-militarycadets) and mostly Shia. Hence the defining feature of age was an important one in setting up a discrete entity; a distinct part of the civilian population targeted for extermination in the Camp Speicher massacre; namely young persons of military age. It is estimated that 1700 young men were murdered in that incident. In that case; age also intersected with other attributes (i.e. religion) that characterized one of the Iraqi civilian religious/ethnic populations ISIS targeted. (Al Arabya News (July 12, 2015) ‘ISIS releases footage of Tikrit massacre’ https://english.alarabiya.net/en/News/ middle-east/2015/07/12/ISIS-releases-footage-of-Tikrit-massacre). The victims of the Camp Speicher massacre were in civilian clothes without arms when massacred. Hence these young men were, practically speaking, at the time of the attack, hors de combat. However it should be noted that the term hors de combat technically under IHL (AP I Article 43) actually refers to combatants in an international armed conflict situation who, for whatever reason, are no longer actively engaged in the hostilities. The situation in Iraq at the time of the Camp Speicher massacre is arguably considered to have been a non-international armed conflict though there was backing of various parties from different international stakeholders.

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eighteen; children/the child collective.27 Thus the systematic targeting of the child collective (as occurred in the 1994 Rwandan genocide), occurring in the midst of widespread and systematic attacks on a civilian population the perpetrator hoped to destroy, was it is here argued, ‘age-based persecution in connection with the crime against humanity of extermination’. The 1994 Rwanda genocide provides a compelling and horrendous case example of this systematic targeting of children (specifically, in that instance, the targeting of Tutsi children, children of mixed Tutsi-Hutu ethnicity/heritage and the children of moderate Hutu) for mass extermination. This was thus the crime against humanity of ‘age-based persecution’ in connection with extermination (a crime against humanity) and genocide amongst other international crimes: Countless thousands of children were slaughtered during the Rwandan genocide. . .Of the bodies that were exhumed by the Physicians for Human Rights at a mass grave in Kibuye province, some 44 percent were of children under the age of fifteen and 31 per cent were under ten. Most had been killed by machete; fewer than I percent, the more fortunate, had been killed by gunfire. Among the victims treated by physicians in western Rwanda, some 30 percent were children and most had been injured by machete28

Children were thus specifically targeted by the Hutu perpetrators on ethnic grounds (the Tutsi children and children of mixed Tutsi-Hutu heritage), and others on political grounds (the children of moderate Hutu), as these characteristics intersected with the victims’ age. Together these children constituted a distinct collective child victim as such in the 1994 Rwandan genocide. This is in part evidenced by the fact that as Straton Nsanzabaganwa, director of social planning and protection of vulnerable groups in the Ministry of Local Administration and Social Affairs confirmed: . . .children had seldom been targeted before even during the ethnic massacres of 1959 and 1973. With the 1994 genocide, he said, children lost their protected status (emphasis added).29

Of course the Director was referring to the children (mostly Tutsi children but also the children of moderate Hutu and the children of mixed ethnicity—often those with Tutsi mothers and Hutu fathers) losing their protected status in practice and becoming a collective target for extermination and genocide. It is here argued that

27 This analysis holds, it is here argued, even though the perpetrator group, in practical terms, may not accomplish the killing, by whatever means, of all the children of a particular civilian population. This in that the perpetrator message is still conveyed that the children of that distinct civilian population (i.e. a civilian population characterized by the perpetrator (with or without objective basis) in certain terms religiously, ethnically, politically etc.) were targeted for extermination as a collective victim in themselves. 28 Human Rights Watch Report (2003) ‘Rwanda 1994 Genocide: IV Children Attacked’ https:// www.hrw.org/reports/2003/rwanda0403/rwanda0403-03.htm. 29 Human Rights Watch Report (2003) ‘Rwanda 1994 Genocide: IV Children Attacked’ https:// www.hrw.org/reports/2003/rwanda0403/rwanda0403-03.htm.

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the children were targeted for extermination qua children.30 That is this author considers that the child collective itself was targeted as one of the parts of the larger Tutsi civilian population slated for extermination by the Hutu. That the ‘perpetratordesignated Tutsi child collective’ was targeted ‘as such’31 appears evidenced by the sheer magnitude of the killing of Tutsi children and perceived/designated Tutsi children during the 1994 genocide and the discriminatory purposeful intent behind the massacre of the children.32 That is; these children were targeted for extermination as a perceived part of the larger Tutsi civilian population; a part that the perpetrators intended to destroy through elimination of its perpetratordefined subpart(s) (ethnically Tusti children, Tusti-Hutu mixed ethnicity children and the children of moderate Hutu). While extermination as a crime against humanity, as previously here explained, does not include discriminatory intent as a statutory required element but rather focuses on mass killing;33 discriminatory intent may yet be present. In the case of the 1994 Rwandan massacre of some 800,000 Tutsi; both genocide and extermination, amongst other crimes, were held to have occurred in respect of the conduct of several of the perpetrators.34 Genocide involves the intent to destroy in whole in part a group defined along national, ethnic, religious or so-called racial lines and thus is animated by specific discriminatory intent. A number of the ICTR accused were also convicted of persecution in relation to the targeting in whole or in part of the larger Tutsi civilian population. They were not charged, however, for ‘age-based persecution’ categorized as an ‘other inhumane act’ in connection with the discriminatory targeting of the perpetrator-defined Tutsi child collective. On the respectful view here that omission in the charging was a very unfortunate but avoidable mistake. Discriminatory intent is an element of persecution as a crime against humanity. Under the statute for the ICTR Article 3(h) the discriminatory grounds of persecution

30

The children of course had not lost their protected status as a legal matter since their special protected status under IHL/CIL remained intact as children and as civilians. However that legal protection was violated in practice through such atrocities as extermination as a crime against humanity. 31 Where each individual child killed was killed due to their group identity (that is due to their being a member of the targeted Tutsi civilian population/being affiliated to perceived sympathizers of the Tutsi or being children of mixed ethnicity perceived as Tutsi) the analysis stands that this constituted ‘age-based persecution’ in connection with extermination as a crime against humanity amongst other international crimes. 32 The children of mixed Tutsi-Hutu ethnicity/heritage and the children of moderate Hutu were classed by the perpetrators as Tutsi (and non-Hutu) and as such purported legitimate targets for extermination. 33 This is true in the elements of the crime of extermination as set out i.e. in the Rome Statute, the Statutes of the ad hoc international criminal tribunals of the ICTY and ICTR and that of the Special Court of Sierra Leone. Extermination generally involves the killing of a significant proportion of a targeted population though, to the current author’s knowledge, no legal scholar has argued that a quantification standard minimum can in fact be set. 34 Human Rights Watch Summary of Judgements against the accused (ICTR) https://www.hrw.org/ reports/2004/ij/ictr/1.htm.

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are political, religious or racial or a combination of the foregoing (note that the differences between Hutu and Tutsi are arguably objectively more economic and class than subjectively perceived ethnic or racial differences).35 Clearly during the 1994 Rwandan genocide children were targeted based on their age-based group identity as it intersected with their perpetrator-perceived racial, ethnic or political attributes (children being Tutsi, being perceived as Tutsi though of mixed TutsiHutu heritage, or being regarded by the genocidaires, for political reasons, as Tutsi as the children of moderate Hutu parents). There was then during the 1994 Rwandan genocide impermissible discriminatory intent underlying the crime of age-based persecution (as an ‘other inhumane act’) targeting children and committed in connection with, among other atrocities, genocide and extermination. In the case of the 1994 Rwandan massacre in which the Tutsi child collective36 was a target as one vehicle to the objective of extermination of the Tutsi population, discriminatory intent was thus clearly involved. The targeting of the Tutsi child collective37 for extermination was a part then of the larger campaign of extermination and genocide directed against the Tutsi population generally. The Tutsi children during the 1994 Rwandan genocide, it is here argued, were targeted not as groups of individual children but as a discrete separable collective entity defined by age and particular intersecting attributes. Some of those intersecting characteristics mirrored certain of the protected grounds set out in the Genocide Convention (i.e. perceived ethnicity and nationality) and in the case of the children of moderate Hutu; the targeting was based on age, and connection with a group defined by perceived political affiliation, the political ground not being included as a prohibited ground in the Genocide Convention as of course neither was age. The targeting of the children of moderate Hutu occurred even though the children victimized would have included also those too young to have had any political preferences; those not interested in politics even though older and those who, for whatever reason, had no political leanings. The perpetrator expectation likely was that the children of Hutu moderates’, once older or adults, would in any case offer resistance to the political objectives of the perpetrators as did their moderate Hutu parent(s). On the view here it would be legally insupportable under IHL/ICL (the Genocide Convention) and the international criminal statute of the ICTR to discount the massacre of the children of moderate Hutu as an act of ‘age-based persecution in connection with genocide and extermination’ (charged under the ICTR statute as the crime against humanity of an ‘other inhumane act’). The discounting of that latter victim group (as victim of, at a minimum, persecution in connection with the crime against humanity of extermination) on the rationale that the perpetrators were of the 35

Statute of the ICTR Article 3(h) https://legal.un.org/avl/pdf/ha/ictr_EF.pdf. Referring here to the child collective targeted including children of Tutsi ethnicity, children of mixed Tutsi-Hutu ethnicity and the targeted children of Hutu moderates all regarded by the perpetrators as Tutsi for the purposes of targeting. 37 Referring here to the child collective targeted including children of Tutsi ethnicity, children of mixed Tutsi-Hutu ethnicity and the targeted children of Hutu moderates regarded by the perpetrators as Tutsi for the purposes of targeting. 36

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same ethnicity as the victims has, it is here contended, no supportable basis in international criminal law. Rather the children of Hutu moderates were also a collective child victim in themselves of Hutu persecution in connection with extermination and genocide38 based on discriminatory grounds. On the respectful view here, age-based persecution of the children of moderate Hutu could have been properly charged under the statute of the ICTR as an ‘other inhumane act’ (that persecution having been committed in connection with genocide39 and extermination with persecutory targeting based on the grounds of age, politics and the perpetrator-attributed Tutsi so-called racial identity assigned to these Hutu child victims). It is here contended that children as a collective are referenced in the Genocide Convention and the genocide provisions of the statutes of various international criminal courts/tribunals as a group ‘as such’ to be protected from genocide in the form of forcible transfer to another group. That children are considered as a protected group in themselves in terms of the prohibition against genocide through forcible transfer to another group is evidenced, for instance, by the fact that the elements of the crime stipulate that the perpetrator knew or should have known that the forcibly transferred child or children belonged to the child collective (the group of persons under age eighteen) (i.e. see Rome Statute Elements of the Crimes Article 6(e)). This element of the crime renders each child forcibly transferred a tangible symbol of a genocidal attack on the child collective itself as well as on the individual child forcibly transferred based on his/her group identity in terms of age and the intersecting protected grounds of religion, ethnicity, ‘race’ and/or nationality. Since children are a protected group in respect of the prohibition of the forcible transfer to another group; the inference that logically follows is then that they are also protected as an entity in itself in respect of the other genocidal acts (i.e. killing with specific genocidal intent where victimization is based on the child victim (s) having intersecting traits with a larger group of origin targeted for genocide). Children then can be considered a special protected group ‘as such’ under 38

Arguably several of the prohibited grounds listed in the Genocide Convention are in fact not immutable i.e. one can conceivably, where the conditions are ripe for the same and the opportunity arises, change one’s religion and nationality just as one can change one’s political affiliation (in theory at least) given an amenable context. Further political affiliation often intersects with listed protected grounds such as nationality and ethnicity. Hence it is an unresolved issue whether political groups identified with another protected ground such as ethnicity are an implied protected group under the Genocide Convention and the statutory international criminal law that mirrors its provisions. 39 Human Rights Watch (n.d.) Interpretation and Application of the genocide provision of the statute of the ICTR: Akayesu, (Trial Chamber), September 2, 1998, para. 720–721: “. . .a woman was beaten, threatened and interrogated about the whereabouts of another person, but . . . because she was Hutu, “they cannot constitute acts of genocide against the Tutsi group.” https://www.hrw.org/ reports/2004/ij/ictr/3.htm This foregoing instance is not entirely comparable to the selective targeting of the children of moderate Hutu for mass killing constituting genocide (involving discriminatory intent) and extermination. This since these children were designated by the Hutu perpetrators as a group to be considered en mass as Tutsi-non-Hutu- for the purposes of the Hutu genocidal campaign. The discriminatory intent was to weaken the chances of a successful political resistance by moderate Hutu to the control initiatives of the extremist Hutu.

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international criminal law statute also with regard to persecution in connection with extermination. Thus the targeted children (Tutsi children, children of mixed Tutsi-Hutu ethnicity and the children of moderate Hutus)40 were together, on the legal analysis here (i) a protected child collective ‘as such’ targeted for ‘age-based persecution in connection with genocide and extermination’ during the 1994 Rwandan genocide and (ii) a collective defined as a Tutsi child victim collective by the perpetrator despite the objective disparities in its’ parts.41 In addition, each distinct part of the aforementioned Rwandan child collective victim which emerged during the 1994 genocide was in turn ‘a part’ then (as that notion is understood in the genocide provision) in practice of the larger targeted protected mixed age group ‘Rwandan Tutsi.’ That larger group-‘Rwandan Tutsi’-was a protected part of the Rwandan civilian population with an absolute right to participate securely and fully in the national life of Rwanda.42 As mentioned previously; children had rarely been targeted in the Rwandan genocides of 1959 and 1973 but in the Rwandan genocide of 1994 children were not spared.43 It would, on the respectful view here, be incorrect to maintain that since there was mass killing in the 1994 Hutu genocide and extermination campaign and a goal of annihilation of the Tutsi in part; that the child victims were therefore not specifically targeted. It is here argued that the child victims were targeted (i) as children and (ii) as children with an intersecting actual or perpetrator perceived or designated Tutsi identity. This amounted to ‘age-based persecution in connection with genocide and extermination’. The reality is that even in mass killing there is targeting as rarely is it possible to kill the entire population. Mass killing involves designating in real time the categories of persons to be killed and hence it is not indiscriminate in that sense although

40 The children of moderate Hutus were also a group targeted by the Hutu extremists and formed, in addition, a smaller collective victim in themselves that had a protected status as children under IHL/CIL i.e. Protocol II: Additional Protocol II to the 1949 Geneva Conventions Article 4 (3) and arguably also under the Genocide Convention since they were perceived and treated by the perpetrators as Tutsi for the purpose of the genocide and extermination campaign. The children of moderate Hutus belonged to a group of origin that had just as much right as any other group to ‘participate in the national life of Rwanda’ (to use the ILC terminology). The children were born into the group (moderate Hutu) defined ethnically and politically rather than choosing it and, on the analysis here, were members of a group protected under the Genocide Convention. 41 Whether the Hutu and Tutsi are in fact two different ethnicities or whether the distinction is purely a colonial invention is in fact a contentious issue from a sociological and ethnographic perspective and beyond the scope of this work. 42 Compare The ILC 1996 report on genocide “While recognising that the Convention literally covered only the physical or material destruction of the group, the report explained that it was adopting a broader interpretation that viewed as genocidal any act which prevented an individual “from participating fully in national life”, the latter being understood “in its more general sense.” Cited in Prosecutor v. Krstic IT-98-33 Trial judgment August 2, 2001, para 575. 43 Human Rights Watch Report (2003) ‘Rwanda 1994 Genocide (IV) Children Attacked’ https:// www.hrw.org/reports/2003/rwanda0403/rwanda0403-03.htm.

5.3 Case 1: Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and. . .

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the sheer scale of the killing may make it seem, on its face, to be so. More precisely, not to spare (to the extent possible) anyone in a particular village, for instance, is most commonly to intentionally and knowingly ensure that persons falling into various status categories are well represented among the victims. That is; it is to target various status categories of victims collectively such that the individuals are also killed due to their category membership(s) (i.e. children, pregnant women, the elderly etc.). It is thus to ensure that children, for instance, are to the extent feasible not spared but rather sought out for massacre; not allowed to escape and instead hunted down and killed. Mass killing is thus complex in the way the various incidents involved play out in toto as ‘extermination’. Rarely does each incident of killing entail one modus operandi such as bombing a house with the target persons inside and the perpetrator not necessarily knowing the gender or age of the protected persons inside. The targeting of children as age-based persecution in the context of mass killing associated with extermination is illustrated here in the selected cases discussed next.

5.3

Case 1: Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu (Special Court of Sierra Leone)

On the respectful view here, an example of an international criminal court incorrectly deducing indiscriminate killing from mass killing in the context of an extermination campaign is found in the SCSL Trial Judgment in Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu: The indiscriminate manner in which the victims were targeted and the fact that the killings occurred in a single village over a relatively short period of time establishes that the principal perpetrators of the individual killings intended to contribute to the overall and massive result of these killings (emphasis added).44

Identical wording to that immediately above was used in the Special Court of Sierra Leone case Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu in referencing the killings in different villages carried out by the AFRC/RUF.45 Let us examine then a few examples of the selective purposeful targeting of children for gruesome killings cited in the evidence proffered and accepted in Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu. This to examine whether the killings of the children should be considered as part of indiscriminate mass killing or rather age-based targeted persecution in connection with extermination. It is here argued that the case in fact 44

Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone, Trial Chamber II June 20, 2007, para 857 at p. 259. 45 The AFRC refers to the Armed Forces Revolutionary Council; the RUF refers to the Revolutionary United Front.

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reveals, in contrast to the above proclamations by the SCSL regarding “indiscriminate” mass killing, evidence of the selective targeted killing of children. The latter as implementation of an AFRC/RUF plan for, in part, extermination of the discrete child civilian collective victim ‘as such’.46 In addition, the destruction of the child collective was viewed by the AFRC/RUF perpetrators as the elimination of a discrete part of a larger civilian population against which the perpetrators were waging an extermination campaign in a bid to quell any possible civilian resistance to the exercise of AFRC/RUF control over the area. Recall that all three defendants Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu were charged with extermination as a crime against humanity amongst certain other atrocity international crimes charged.47 Bornoya A man wearing shorts, boots and a jacket uniform, and another man with a head band carrying a cutlass, slit open the stomach of a pregnant woman named Isatta and removed the foetus. Isatta died as a result. . .Two children of one Alhaji Sorie Mansaray were intentionally burnt to death under a mattress which was set on fire.48 Karina In the presence of witness TF1-334, the Accused Kamara and two other “juntas” locked five young girls into a house and subsequently set it ablaze. The five girls were burnt alive.49 The Trial Chamber has found that, the Accused Kamara and two other “juntas” locked five young girls into a house and subsequently set it ablaze. The five girls were burnt alive. “Juntas” threw an unspecified number of little children into the flames of burning houses. The children were burnt alive. Soldiers stabbed a pregnant woman to death. A certain Saccoh Kankoh Fanta was injured during the attack and subsequently died. An unspecified number of children were killed during the attack.50

There was thus a targeting, using a variety of means in various situations, of children born and unborn for the crime against humanity of extermination. Rather than killing indiscriminately; the perpetrators knowingly and intentionally ensured that targeted specific children could be added to the count of child victims of extermination and would not be missed. The selective killing of children was purposeful and directed. The children were most often not simply victims of

46

This included also unborn children through the murder of pregnant women. Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone, Trial Chamber II June 20, 2007, para 14 at p. 23. 48 Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone, Trial Chamber II June 20, 2007, para 884 at p. 265. 49 Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone, Trial Chamber II June 20, 2007, para 887 at p. 266. 50 Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone, Trial Chamber II June 20, 2007, para 1561 at p. 432. 47

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opportunity amongst a mass of other civilians targeted in a specific locale but instead sought out even when separated from adults and trying to escape.

5.3.1

Children Spared from Extermination and Used as Child Soldiers/Sex Slaves (Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu (Special Court of Sierra Leone)

The fact that some children were selected to live (at least in the short term) so that they could be incorporated into the AFRC/RUF and become child soldier/sex slaves in itself speaks to the deliberate and non-indiscriminate killing of those children who were targeted for extermination. As was noted in the Krstic ICTY case . . .extermination. . .also covers situations where “some members of a group are killed while others are spared. . .”51

It is noteworthy but unsurprising that the targeting by the AFRC/RUF of individual children for sex slavery and child soldiering was acknowledged and addressed by the Prosecutor in the charging and by the Trial Court in the sentencing in Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor KanuI. Afterall there is a separate war crimes offence concerning the recruitment and use of children under fifteen for active participation in armed hostilities as set out in the Statute of the SCSL. The SCSL in Brima, Kamera and Kanu rejected, furthermore, the Defence contention that the defendants were not aware that recruitment of children under fifteen and their use in armed conflict was unlawful. The SCSL Trial Chamber stated that “it rejects any defence based on cultural distinctions regarding the definition of “childhood” and likewise rejected the defence that all parties to the conflict were using child soldiers.52 These then were the children spared from extermination and, as mentioned, ‘extermination’ as a concept in international criminal law does envision that some will be selectively and even intentionally spared while others are targeted to be amongst the victims of mass killing. Children over fifteen were (i) recruited and used for active participation in armed hostilities as forced child soldiers by the AFRC/RUF just as were younger children

51

Prosecutor v Radislav Krstic ICTY Trial Judgment August 2, 2001, Part III: Legal Findings: Extermination, para 500 at p. 177. Note that the current author respectfully dissents from the Trial Chamber view in Krstic that extermination distinguishes itself from genocide in part in that in the former some victims may be spared. Recall on that issue that children may be spared from death in some genocides on account of their forcible transfer to the perpetrator group (i.e. as child soldiers, as sex slaves). 52 Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone, Trial Chamber II June 20, 2007, para 1251 at p. 354 (The Defence had argued that in a “traditional African setting the concept of childhood is related to the ability to perform tasks not to age” para 1250 at p. 353).

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and (ii) they were also used as sex slaves. However the older children did not have these crimes against them prosecuted through the SCSL as war crimes or crimes against humanity. Further neither children over nor under the age of fifteen had the international crimes regarding their sexual slavery and child soldiering perpetrated by the AFRC/RUF addressed as ‘persecution’ under the crime against humanity of “other inhumane acts.” (Note that age is not enumerated as a prohibited ground in the SCSL statute persecution provision so that age-based persecution would have to be prosecuted as an ‘other inhumane act’). There were further charging possibilities as well that could have likely rendered some criminal accountability for the use of child soldier/sex slaves (referring here to persons under age eighteen). For instance; an enslavement charge could have been properly laid as a crime against humanity in respect of the child collective in toto (children under eighteen used as forced labour as child soldier/sex slaves) in violation of IHL/ICL amongst other sources of law.53 Recall that the prohibition against slavery in all its forms is set out in Protocol II Additional to the 1949 Geneva Conventions considered also as CIL (see Article 4 (2) (f)).54 This then would have allowed for accountability in regards to the AFRC/ RUF’s use of children of all ages for forced labour as both child soldiers and sex slaves.55

5.3.2

The Prohibition on ‘Age-Based Persecution’ as CIL: The Failure to Charge in Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu (Special Court of Sierra Leone)

It is here argued that the crime against humanity of ‘age-based persecution’ directed against children was applicable in regards to wide ranging atrocities committed by the AFRC/RUF against children including but not limited to (i) the use of children as sex slaves and child soldiers and (ii) the targeting of others of the child collective for extermination. However the crime of ‘age-based persecution’ in regard to the aforementioned conduct was never charged under the statute of the SCSL as ‘other inhumane acts’ as a crime against humanity.56 Yet since the prohibition against the 53 Neither were other charges such as rape and sexual slavery targeting female children charged separately in relation to the child collective victim with individual victim cases used as evidence for the broader charge regarding the child collective victim. 54 Protocol II Additional to the 1949 Geneva Conventions. 55 The Indictment “. . . alleges that captured women and girls were raped; many of them were abducted and used as sex slaves and as forced labour; and that some of these women and girls were held captive for years” (Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone, Trial Chamber II June 20, 2007 para 1432 at p. 401). 56 Note that in ‘Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu’, a conviction was obtained for “forced marriage” as the crime against humanity of ‘other inhumane acts’ when the Appeals Court reversed the Trial Court decision on that issue.

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persecution of children is part of CIL (i.e. Article 77 of Protocol I and Article 4(3) of Protocol II to the 1949 Geneva Conventions being aspects of IHL now widely accepted as CIL); the aforementioned prosecutorial strategy was quite feasible. The latter was a workable prosecutorial strategy then despite the limited grounds set out in the persecution provision of the Statute of the SCSL. Consider in this regard the SCSL Appeals Chamber commentary on the nature of the ‘other inhumane acts’ category of the crime against humanity provision of the statute of the SCSL: The Appeals Chamber agrees with the Prosecution that the notion of “Other Inhumane Acts” contained in Article 2.i of the Statute forms part of customary international law.. it serves as a residual category designed to punish acts or omissions not specifically listed as crimes against humanity provided these acts or omissions meet the following requirements: (i) inflict great suffering, or serious injury to body or to mental or physical health; (ii) are sufficiently similar in gravity to the acts referred to in Article 2.a to Article 2.h of the Statute; and (iii) the perpetrator was aware of the factual circumstances that established the character of the gravity of the act. . . The acts must also satisfy the general chapeau requirements of crimes against humanity (emphasis added).57

The conduct constituting age-based persecution of children by the AFRC/RUF in violation of CIL met all the required elements (as set out by the Brima, Kamera and Kanu SCSL Appeals Chamber above) in order properly to be classed as a crime against humanity under ‘other inhumane acts’ under the SCSL statute. Note that since ‘age-based persecution’ targeting children for various international atrocity crimes (whether during peacetime or armed conflict)58 is prohibited under CIL, the prosecution of defendants for that crime does not violate the principle of nullum crimen sine lege. The selective targeting of children qua children for ‘extermination’ was not addressed in the Brima, Kanera, Kanu prosecution. Instead children were considered in regards to ‘extermination’ only as victims amongst the mass killings rather than considered as a discrete collective victim. This is particularly disheartening for numerous reasons not the least of which is that the SCSL itself noted that (i) children are an especially vulnerable group and (ii) they were not uncommonly targeted by the AFRC/RUF for some of the most brutal and gruesome of violent acts such as being burned alive: The Trial Chamber notes the particularly brutal nature of a number of the acts of violence committed against civilians during the attacks including the splitting open of the stomach of

57

Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone (In the Appeals Chamber) Judgement February 22, 2008, para 198 at p. 65. 58 For example the Genocide Convention which is applicable in peacetime and during armed conflict and is arguably part of CIL prohibits the genocidal forcible transfer of children specifically. Protocol I and II Additional to the Geneva Conventions, now widely accepted as CIL, prohibit the victimization of children as civilians or hors de combat and accords all children in those categories the same broad special protection privileges during armed conflict while all children, regardless of victim status, are entitled to humane treatment during armed conflict (APII, Article 4).

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a pregnant woman and removal of the foetus and the burning of civilians alive. Similarly the Trial Chamber notes that a number of the acts of violence were carried out against particularly vulnerable persons – children and pregnant women (emphasis added).59

In sum; the Trial Court in Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, found collective punishment against protected persons by the AFRC/RUF for alleged support of President Ahmed Tejan Kabbah.60 The collective punishment61 by the AFRC/RUF of the protected child collective victim as a discrete entity in itself, part of the civilian population, however, was not prosecuted by the SCSL Prosecutor nor acknowledged by the Court. This was the case also in regards to the AFRC/RUF atrocity international crime of extermination targeting the child collective.62 This though there was nothing in the Statute of the SCSL that would have barred recognition of these international atrocity crimes as perpetrated against the child collective ‘as such’ and equating to age -based persecution as ‘other inhumane acts’.63 The Statute of the SCSL in fact addresses the targeting of a part of the (any) civilian population as meeting the criteria for an attack on a civilian population.64 The child collective, when targeted with discriminatory intent, while being part of the larger civilian population is also the victim of persecution as an entity in itself based on age and various characteristics it has in common with the larger targeted protected collective. There was in fact a mountain of evidence of international atrocity crimes of varied and heinous forms targeting the child collective ‘as such’ including but not necessarily limited to: mutilations, rape, sexual slavery, collective punishment, recruitment and use of child soldiers for active participation in the hostilities including persons under age fifteen, and extermination. On the view of the current author, with respect, it was a missed opportunity for the rendering of more complete justice to the child victims not to charge and convict separately for age-based persecution as “other inhumane acts” as a crime against humanity. All of these atrocity international crimes targeted at the child collective ‘as such’ involved the age-based severe

59

Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone, Trial Chamber II June 20, 2007, para 1570 at p. 434. 60 Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu Special Court of Sierra Leone, Trial Chamber II June 20, 2007 Para 1573 at p. 435. 61 Collective punishment is listed in the Statute of the SCSL under Article 3(b) “Violations of Article 3 common to the Geneva Conventions and Additional Protocol II” (see AP II Article 4(2)(b)). 62 Extermination is listed as a Crime Against Humanity at Article 2(b) of the Statute of the SCSL. 63 Alex Tamba Brima, and Santigie Borbor Kanu were found guilty of, amongst other international crimes, extermination and collective punishment while Kamara was found guily on rape as a crime against humanity (see Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone, Trial Chamber II June 20, 2007, Disposition at pp. 569–572). 64 Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone, Trial Chamber II June 20, 2007, para 217–218 at p. 83.

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deprivation of certain fundamental rights amounting to ‘age based persecution’.65 This is the case since ICL sets out the special protected status of children as a distinct collective victim. For instance, as explained, Protocol II Article 4(3) Additional to the 1949 Geneva Conventions (regarded as CIL)66 stipulates that children are to be accorded the care and aid they require in armed conflict thus clearly setting a condition incompatible with persecution of any kind targeting children in particular. To address ‘age-based persecution’ targeting (i) the child collective victim ‘as such’ or (ii) targeting individual children or groups of individual children based on their group identity in part as children, would have been a prosecutorial and judicial innovation. This since the Statute of the SCSL itself, as previously mentioned, is restrictive in its definition of persecution of any civilian population in regards to the enumerated discriminatory grounds. The Statute addresses persecution only on limited grounds and not on the prohibited grounds of age. Note, however, that the Appeals Court in the Brima, Kamera, Kanu case at that juncture in international criminal jurisprudence “recognize[d], for the first time, a new crime against humanity under customary international law of forced marriage as an “Other inhumane act.”67 Thus it was not entirely unrealistic to have aspired to see such innovation in the form of the SCSL in Brima, Kamera, Kanu recognizing AFRC/RUF ‘age-based persecution’ targeting children as likewise falling under “Other inhumane acts” as a crime against humanity. The latter grounded in the CIL prohibition on conduct that violates humanitarian norms by severely depriving a particular child collective of fundamental rights including, to a large extent, even the right to life.

5.4

Case 2: Theoneste Bagosoro and Anatole Nsengiyumva versus The Prosecutor (International Criminal Tribunal for Rwanda)

Evidence regarding targeting during the mass killing of extermination may, in some instances as previously discussed, also be provided in the form of the sparing of selected individual lives of certain protected persons notwithstanding their belonging to a status category of victims i.e. children well represented amongst those massacred. Such an example can be found, for instance, also in the International Criminal 65 Referring here for instance to the deprivation of life through extermination, the deprivation of, for instance, security of the person through collective punishment and other causes of physical and mental suffering, the deprivation of liberty etc. based on specific targeting of the child collective. 66 See The Amicus Brief of the University of Toronto International Human Rights Clinic and Interested International Human Rights Organizations, Argument para 9 at p. 7, para 13 at p. 9, para 16 at p. 10 discussing the Status of Protocol II Additional to the 1949 Geneva Conventions (Article 4 Fundamental Guarantees, including those accorded children, as CIL and violations of IHL as war crimes (in the Case of The Prosecutor versus Sam Hinga Norma Re the Fourth Defence Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment)). 67 Jalloh and Osei-Tutu (2008), p. 6.

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Tribunal of Rwanda case against Nsengiyumva. Defendant Nsengiyumva was convicted by the Trial Chamber of “genocide, crimes against humanity (murder, extermination, persecution, and other inhumane acts), and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (violence to life) pursuant to Article 6(1) of the Statute of the Tribunal (“Statute”)”68 Despite ample evidence of international atrocity crimes targeting children specifically; Nsengiyumva was not convicted of the separate international crime of ‘agebased persecution’ targeting Tutsi children and children perceived/designated as Tutsi by the perpetrator group. This as age is not one of the prohibited grounds to persecution listed in the ICTR Statute. However this author argues, as previously explained, that ‘age-based persecution’ targeting children is prohibited under Protocol II Additional to the 1949 Geneva Conventions under Article 4(3) and that Protocol II is CIL. Hence the charge of age-based persecution could have been properly laid in Nsengiyumva under “other inhumane acts” as a crime against humanity based in CIL. Defendant Nsengiyumva argued, among other things, alleged mitigating factors relating to his sparing of selected lives but in fact this too speaks to the targeting of the child collective: “Nsengiyumva submits that the Trial Chamber failed to consider the mitigating circumstances in his case appropriately.” In particular, he contends that the Trial Chamber erred in failing to accord sufficient weight to the assistance that he rendered to Tutsis. Nsengiyumva argues that he risked great danger by saving Tutsis, including by hiding them in his house, helping them cross the border and evacuating them in very difficult circumstances. He emphasises that he helped in the evacuation of bus-loads of Tutsi women from Kigali and children of victims of the attacks in Gisenyi town. He alleges that several witnesses testified that he assisted Tutsis and asserts that he was not selective in his assistance and did not turn people away (emphasis added).69

The Prosecution argued that Nsengiyumva’s assistance was in fact selective in aiding “certain Tutsis” and that this assistance was taken into account by the Prosecutor: The Prosecution responds that the Trial Chamber specifically considered the selective assistance that Nsengiyumva rendered to certain Tutsis, and that Nsengiyumva does not show how his selective assistance weighed heavily in mitigation. It argues that the gravity of the crimes and aggravating factors in Nsengiyumva’s case outweighed the selective assistance and other alleged mitigating factors (emphasis added).70

The ICTR Appeals Chamber acknowledged the witness testimony regarding the mitigating factors including “. . .Defence evidence relating to Nsengiyumva’s

68 Theoneste Bagosoro and Anatole Nsengiyumva versus The Prosecutor (Case No. ICTR-98-41-A) (In the Appeals Chamber) Judgement of December 14, 2011, para 6 at p. 2. 69 Theoneste Bagosoro and Anatole Nsengiyumva versus The Prosecutor (Case No. ICTR-98-41-A) (In the Appeals Chamber) Judgement of December 14, 2011, para 422 at p. 140. 70 Theoneste Bagosoro and Anatole Nsengiyumva versus The Prosecutor (Case No. ICTR-98-41-A) (In the Appeals Chamber) Judgement of December 14, 2011, para 423 at pp. 140–141.

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assistance in hiding or evacuating Tutsi women and children from Gisenyi.”71 The Appeals Chamber noted that the Trial Chamber had concurred with the Prosecution that the assistance Nsengiyumva had rendered to Tutsis was “selective” and “carried limited weight as a mitigating factor.”72 The Appeals Chamber upheld the decision of the Trial Chamber to give limited weight as a mitigating factor to Nsengiyumva’s contributions to the sparing of certain Tutsi lives. On the following basis the Appeals Chamber affirmed the Trial Chamber’s view on the issue of Nsengiyumva’s selective sparing of Tutsi lives: The Appeals Chamber has previously determined that “selective assistance” may be given only limited weight as a mitigating factor. Nsengiyumva fails to point to any error on the part of the Trial Chamber in its conclusion. Accordingly, the Appeals Chamber finds that it was within the Trial Chamber’s discretion to conclude that Nsengiyumva’s assistance to Tutsis was selective, and to accord limited weight to such evidence in mitigation for the purposes of sentencing (emphasis added).73

Here then we see an acknowledgement by an international criminal tribunal that selective targeting can yet occur in the midst of mass killing that meets the criteria for ‘extermination’. In sum then the current author has argued that children as a status category of victim are collectively targeted during certain extermination campaigns. In some instances, individual children and/or small groups of individual children may be selectively targeted to be spared. One could reasonably hold, it is here suggested, that Nsengiyumva’s sparing of the lives of “children of victims of the attacks in Gisenyi town”, for instance, was in fact selective assistance to a discrete child collective which speaks, at the same time, to the selective targeting of the remaining children for extermination. Despite this selective targeting of children for ‘extermination’ which is of course of the ultimate gravity; ‘age-based persecution’ directed against children was not charged. This though a charge of ‘age-based persecution’ targeting children conceivably could have succeeded under the ICTR statute category of ‘other inhumane acts’ as a crime against humanity grounded in a violation of CIL.

5.5

The Child Collective Persecuted Through Gender-Based International Crimes

It is noteworthy that adult and child victims are most often lumped together in the prosecution case when it comes to the consideration by the prosecutors of international criminal tribunals or courts of gender-based sexual violence or other gender-

71 Theoneste Bagosoro and Anatole Nsengiyumva versus The Prosecutor (Case No. ICTR-98-41-A) (In the Appeals Chamber) Judgement of December 14, 2011, para 425 at p. 141. 72 Theoneste Bagosoro and Anatole Nsengiyumva versus The Prosecutor (Case No. ICTR-98-41-A) (In the Appeals Chamber) Judgement of December 14, 2011, para 425 at p. 141. 73 Theoneste Bagosoro and Anatole Nsengiyumva. Versus The Prosecutor (Case No. ICTR-98-41A) (In the Appeals Chamber) Judgement of December 14, 2011, para 427 at p. 142.

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based international crimes. This notwithstanding the special legal status children hold under IHL/CIL and the fact, for instance, that Article 54 (1)(b) of the Rome Statute directs the Prosecutor to “ensure effective investigations and prosecutions . . .in particular where it involves sexual violence, gender violence or violence against children (emphasis added).”74 Note in this regard the following words of the ICC Prosecutor: In Nigeria, we have been analyzing whether there is a reasonable basis to believe that Boko Haram committed the crime of persecution on the basis of gender grounds against women and girls, men and boys (emphasis added).75 . . . the [ICC] Prosecutor has found a reasonable basis to believe that gender-based persecution has been committed in Nigeria by Boko Haram. The Prosecutor’s Office has identified that, by reason of their religion or for attending school, Boko Haram has carried out sexual violence against women and girls, including abductions, sexual slavery, and forced marriages. This offence is significant in being the only sexual and gender-based crime that requires discriminatory intent, as the Prosecutor must prove the crime was based on gender grounds. The crime is also an important recognition of the need to combat impunity for systematic persecutions on the basis of gender (emphasis added).76

Respectfully, as evidenced by the quotes immediately above, there appears to be little to no consideration in the above prosecutorial analysis regarding charging ‘agebased persecution’ specifically regarding the targeting of children for gender-based crimes (the selected example used here being emblematic of this unjustified omission from international criminal law prosecutorial strategy generally). This even though children have a different legal status under IHL/ICL than do adult victims;77 though women are also considered a vulnerable group. The argument here is that gender–based crimes targeting children should be charged additionally as ‘age-based persecution’ with the sentence upon conviction also reflecting the heightened gravity of this already grave offence when committed against children.’78 Separate charges for ‘age-based persecution’, either under the persecution provision of the particular international criminal law statute where feasible or under ‘other inhumane acts’ as 74

Rome Statute Article 54 (1)(b). Bensouda F (2019) Keynote address by Mrs. Fatou Bensouda Prosecutor of the ICC ‘Prosecuting Sexual and Gender-Based Crimes at the International Criminal Court’ at p. 2 (SAIFAC Conference: International Law and Justice for Victims of the Gross Human Rights Violation of Sexual and Gender-Based Violence) November 27, 2019, Johannesburg South Africa. 76 Legal Information Institute, Cornell Law School ‘To prove discriminatory intent the prosecutor must prove what was the ground for the discriminatory targeting -Rome Statute of the International Criminal Court, Article 7(1)(h)’ https://www.law.cornell.edu/women-and-justice/resource/rome_ statute_of_the_international_criminal_court_article_7(1)(h). 77 For instance, children are owed a higher duty of care than are civilians in general. 78 The separate charges for ‘age-based persecution’ of the child collective ‘as such’ or of children based on group membership in the particular child collective (identified in terms of age with also intersecting attributes) may, depending on the specifics of the international criminal statute involved, be brought as i.e. ‘other inhumane acts’ if the persecution provision of the specific statute does not, unlike the Rome Statute, for the purposes of the statute, contemplate age as a potential prohibited ground of persecution. 75

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need be, is an acknowledgement that children are not simply an appendage to adults, especially women. Rather children are persons in their own right with autonomous legal rights that are uniquely grounded in IHL/CIL and also international human rights law in a manner distinct from that in respect of protected adults. Gender-based international crimes targeting children, as was here discussed previously, figured prominently in the ICC Ntaganda case.79 In Ntaganda the Legal Representative of the Victims made the argument that child soldiers who are enslaved as sex slaves, even those actively (directly) involved in the armed hostilities, are in law to be considered as hors de combat at a minimum during the times they were being sexually violated.80 It is noteworthy that Protocol II Additional to the 1949 Geneva Conventions specifically addresses the fact that under that Protocol (which arguably is CIL);81 children aged under fifteen no longer actively engaged in the armed hostilities have all the same special privileges and protections as do child civilians under fifteen who never took part in the armed hostilities.82 It is not the case, however, that IHL/CIL, apart from humane treatment and selected other rights, necessarily in all cases provides the same full range of protections to adult fighters now hors de combat compared to that to be accorded to civilians who never took part in the hostilities. It would seem reasonable, however, that adults who engaged in the fighting under duress and/or as enslaved persons should be regarded as protected civilians once hors de combat with the same protection entitlements as if they had not engaged actively in the armed hostilities. Grey makes the point that the decision in Ntaganda83 has potential positive implications for adult members of an armed force or group and children fifteen and over but under eighteen sexually assaulted in

79 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement. 80 The term hors de combat properly understood as defined under IHL/CIL refers to combatants (in the technical meaning as defined in Article 43 AP I to the 1949 Geneva Conventions) who are no longer engaged actively in the hostilities. Since child soldiers, especially those under 15, are not combatants (as, for instance, they have no unqualified right to participate in the hostilities); when they are no longer engaged in the fighting the term hors de combat is misleading to the extent it implies they were formerly ‘combatants’ under IHL/CIL in the technical legal sense. Once they are no longer engaged in the fighting these children are protected persons once more. The term hors de combat thus should be understood in a non-technical sense when referring to civilians, adults or children, who are no longer actively engaged in the fighting including those who were incorporated into an armed group or force that does not meet the definition of a combatant group or force under Article 43 API. 81 Protocol II Additional to the 1949 Geneva Conventions Article 4(3). 82 In Ntaganda, as previously discussed, the ICC Prosecutor for some reason charged gender-based international crimes targeting the child soldiers only in respect of those child solder victims under fifteen. 83 The reference here is to the ICC considering children under 15 to be hors de combat and therefore protected persons at the times they were subjected to sexual violence by members of their own fighting force such that that sexual violence amounted to war crimes (Rome Statute Article 8(2)(e ) (vi) or Article 8(2)(xxii)).

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the context of an armed conflict due to “their sex, their sexual orientation or their failure to conform to socially constructed gender norms”:84 Read even more broadly, the Chamber’s reasoning suggests that the rape and sexual slavery of combatants of any age by members of the same armed forces or group could constitute war crimes under Article 8(2)(e)(vi) or 8(2)(b)(xxii), because “the sexual character of these crimes, which involve elements of force/ coercion or the exercise of rights of ownership, logically preclude active participation in hostilities at the same time (emphasis added).”85

The current author concurs that gender-based sexual violence international crimes targeting persons of any age-including child soldiers fifteen and over but under eighteen and children under fifteen-perpetrated by their compatriots in arms during an armed conflict constitute war crimes. These international crimes may also, as discussed, constitute crimes against humanity where they occur in the context of a widespread or systematic attack on any civilian population (recall that in the Ituri DRC situation described in Ntagnada the UPC/FPLC child soldiers were children forcibly transferred to the Hema militia as part of a fierce coercion campaign exerted on the Hema civilian population by the UPC/FPLC in a widespread and systematic fashion). On the current author’s view; both ‘gender-based’ and ‘age-based’ persecution of a targeted group of children may be operative, for instance, in situations where child soldiers are sexually violated and enslaved in part for sexual purposes. Given that children occupy a unique protected status under IHL/CIL; an age-based persecution (as a crime against humanity) charge in relation to the sexual violation and sexual enslavement of female child soldier victims would be in order (where age was one of the discriminatory grounds that factored into the perpetrator intent (mens rea) relating to the gender-based sexual violence). Further charging ‘age-based persecution’ targeting children in connection with torture and cruel treatment arising from gender-based sexual violence and child soldiering would seem to be a further legally supportable charge. This in that children may not experience suffering in the same way as do adults and their threshold levels of pain—mental and physical—may in many cases be different.86 This is especially pertinent given that many international crimes, including sexual violence crimes, may amount to torture as the ICC Office of the Prosecutor recognizes in the following policy statement: The Office [of the Prosecutor]. . .will bring chargers for sexual and gender-based crimes per se, in addition to charging such acts as forms of other violence. . .where the material elements are met e.g.; charging rape as torture (emphasis added).87

84

Grey (2014), p. 612. Grey (2014), p. 612. 86 See Grover (2014). 87 ICC Office of the Prosecutor, ‘Policy Paper on Sexual and Gender –Based Crimes’ (June, 2014) at p. 6. 85

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Charging ‘age-based persecution targeting children’ in connection gender-based sexual violence international crimes would contribute meaningfully to achieving a closer approximation of justice for the child victims individually and collectively.

5.5.1

The Persecution of Children Qua Children Based on Intersecting Grounds

‘Age-based persecution’ as a crime against humanity directed against children, as discussed, has not to date been prosecuted as a distinct international atrocity crime by prosecutors of international criminal tribunals/courts including the ICC. Perhaps this is in part due to the fact that age-based persecution is effectuated by the perpetrators in parallel with their persecution of the larger civilian population and is based on the children’s intersecting attributes which they share with the adults in their home community. Thus the prosecutor may choose to charge persecution only of the entire civilian population or of a smaller civilian collective of mixed ages targeted. This as, on its face, it may seem the simpler safer charging decision; it being familiar to the judicial panel as opposed to adding a separate novel ‘age-based persecution targeting children’ charge that has to date no precedent. It is the case that one or more of the following characteristics that children share with the adults in their lives may-along with the targeting of children qua childrendirect the perpetrators’ persecution of children in connection with various international atrocity crimes. This then masks, to an extent, the child collective victim as a separable discrete target of persecution. Here follows some of the bases for perpetrators’ discriminatory targeting of children for persecution: (i) Political Grounds: If the parents or other caretakers of the children are perceived to be resistant to the perpetrator group, then the children are considered by the perpetrators also resistant or potentially resistant in future such that they too must be suppressed through persecutory acts (in some cases children developmentally competent may indeed oppose the oppressor group); (ii) Racial or Ethnic Grounds: children are an especially vulnerable representative element of the ethnic or racial group of origin and hence are an effective vehicle for destruction of the children’s ethnic or so-called racial group of origin in whole or in part. This by all manner of atrocity including transferring the children to the oppressor group and forcing the child victim collective into child soldiering, sexual slavery and visiting upon them all manner of physical and mental injury or death; (iii) Religious Grounds: targeted children often belong to various distinct religious communities. Hence indoctrination into another religion and/or doctrine (such as did ISIL in Iraq with captive children forced to convert to fundamentalist Salafi and ISIL doctrine) contributes to the dilution and dissolution of the group of origin’s cultural and religious identity. That is the cultural identity of the children’s home community is undercut by the perpetrator group’s

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appropriation of the children belonging to that community. In this way the perpetrator group succeeds in eliminating cultural diversity. (iv) Gender Grounds: Children are frequently targeted also based on gender in particular for sexual violence crimes rising to the level of genocide, crimes against humanity and/or war crimes. Gender is here considered as a social construction in terms of gender identity as perceived by self and others. Targeting based on gender can also include persecution of those children with minority or non-conforming gender identity (children who are part of the LGBTQ+ community in terms of their self and/or other assigned/perceived gender identity). While biologically female children are most often the child victims of persecution linked to gender-based sexual violence international atrocity crimes during armed conflict; boys can be victims as well. The suffering of the male child victims often goes unreported or underreported due in part often to the nature of the stigmatization associated with such male sexual victimization (i.e. questions raised about the victim’s sexual orientation). Thus the perpetrators in gender-based sexual violence international crimes cases involving male victims generally are met with impunity.88 The Rome Statute Article 7(3) stipulates that for the purposes of the Statute “. . .it is understood that gender refers to two sexes, male and female, within the context of society (emphasis added).” There is then no specific reference to persons with non-binary gender identification and it unclear to what degree, if any, the Rome Statute definition acknowledges the social construction aspect of gender.89 Oosetrveld contends that the Rome Statute reference in the definition of ‘gender’ to male and female genders as occurring “within the context of society” was deliberately vague terminology. Specifically she suggests (citing others) that the phrase “within the context of society “was chosen to give ICC judges flexibility to determine the meaning of the phrase on a case by case basis.”90 Oosterveld also highlights that given this vague definition of gender in the Rome Statute that the ICC through its case law will have to develop “a set of signifiers of context” including but not limited to “. . .power as determined and/or expected within a society, or culture at any given time and place and as affected by race, class, sexual orientation, poverty level, ethnic group, age, and other factors (emphasis added).”91 Yet age of the victim in terms of targeting for persecution based, in significant part, on the intersection of age and gender (with other intersecting characteristics as well often factoring in to

88 Amnesty International ‘Evidence of sexual violence against men and boys rejected in Ongwen’, Guest opinion piece writer Dr. Rosemary Grey, Amnesty’s Legal Adviser Jonathan O’Donohue and International Criminal Justice Clinic student Leonard Krasny (April 12, 2018) https://hrij.amnesty. nl/evidence-sexual-violence-men-boys-rejected-ongwen/. 89 For a detailed discussion of this issue see, for instance, Oosterveld (2005) (see pp. 56–57 re the issue of the Rome Statute definition possibly conflating gender and sex and the ambiguity of the term “within the context of society” in reference to male and female gender identification). 90 Oosterveld (2005), p. 74. 91 Oosterveld (2005), pp. 74–75.

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varying extents) has not been taken into consideration by the ICC prosecutor or the ICC judicial panels. That is there has been no consideration of charging the crime of age-based persecution involving gender-based international crimes perpetrated against children. Rather the age variable has generally been considered only in terms of possible aggravated crimes charges and sentencing (stiffer penalties). This despite the fact that, as previously stressed; children have a different legal status under IHL and ICL than do adults such that they are a distinct group legally owed a higher duty of care.92 Hence children should be considered also separately as the collective victim of international atrocity crimes when age was a discriminatory factor in targeting (and not simply as part of a mixed age civilian population or protected group as a whole that has been victimized). Further; where the particular distinct child collective has been targeted; age-based persecution should be charged in connection with the category (or categories) of international atrocity crimes that were inflicted on the children as children. We turn now to the discussion of the ICC case The Prosecutor v Dominic Ongwen which highlights a relatively recent (at the time of writing) missed opportunity to charge persecution of children in connection with gender-based crimes along with the existing charges filed against that Defendant.

5.6

5.6.1

The Dominic Ongwen (ICC) Case and the Failure to Charge Persecution of Children in Connection with the Gender-Based Crimes Against Humanity of Rape, Sexual Slavery, Enslavement, Forced Pregnancy and Forced Marriage Introduction to Case 3: The Dominic Ongwen (ICC) Case

Recall that persecution under the Rome Statute could include ‘age-based persecution’ (where all the other elements of the crime are satisfied). This since the Rome Statute recognizes persecution on any ground universally recognized as impermissible under international law:

“Concern for children within humanitarian law or the laws of war [Geneva Conventions are considered CIL] in general has a long history, and is not a late twentieth century development. As such it precedes any notion of child’s rights per se, which is a more recent development. There is in fact a viable tradition of the special consideration for and protection of children during periods of war going as far back as Grotius, as well as Plutarch, Seneca, Sallust and others . . .the norm as a guiding and practiced principle has been circulating for a very long time.” (Fox 2005, pp. 27–48, emphasis added). 92

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Rome Statute Article 7(1)(h): Persecution as a Crime Against Humanity (1) “For the purpose of this Statute crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. . . (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court (emphasis added).93 We consider next ‘age-based persecution’ as directed against children but not charged as a separate international crime in an exemplar case brought before the International Criminal Court (the ICC). In The Prosecutor v Dominic Ongwen; gender-based international atrocity crimes figure prominently as the means of persecution targeting also children. The ICC Prosecutor noted that this was the first case before the ICC to include charges of forced pregnancy and forced marriage though these were not the only gender-based crimes with which Ongwen was charged.

5.6.2

Case 3: The Prosecutor v Dominic Ongwen (ICC)

Ongwen is a Ugandan national and alleged Sinia brigade Commander in the Lord’s Resistance Army (the LRA) that carried out an insurgency from July 1, 2002 to the end of 2005 against the Ugandan Government and the Ugandan Army. Insofar as crimes against humanity are concerned, Ongwen was charged with: murder and attempted murder; torture; sexual slavery; rape; enslavement; forced marriage as an inhumane act; persecution; and other inhumane acts as crimes against humanity.94 These charges as well as various war crimes charges were confirmed by Pre-Trial Chamber II on March 23, 2016. On December 6–7, 2016 the Trial opened.95 The closing statements in the case took place March 10–12 2020 and the judgement on the merits was released in February, 2021. Let us consider the ICC Prosecutor’s submission regarding the charges against Dominic Ongwen and how her legal analysis does or does not address the persecution of children in connection with gender-based crimes as crimes against humanity.

93

Rome Statute Article 7(1)(h). ICC Case Information Sheet ‘The Prosecutor v Dominic Ongwen’ (ICC-02/04-01/15). 95 The gender-based crimes of rape, and sexual slavery were also charged against Ongwen as war crimes and those charges as well were confirmed (Situation in Uganda in the Case of The Prosecutor v Dominic Ongwen, Pre-Trial Chamber II ICC Decision on the Confirmation of Charges Against Dominic Ongwen CC-02/04-01/15 (March 23, 2016)). See also Situation in Uganda in the Case of The Prosecutor v Dominic Ongwen, Trial Chamber IX, Trial Judgment (February 4, 2021). 94

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The Prosecutor submitted that the common plan of Ongwen, and other leadership of the Sinia Brigade was to “. . . abduct girls and women to serve as domestic servants, forced exclusive conjugal partners (forced wives) and sex slaves in the Sinia brigade.”96 The Prosecutor further contended that the co-perpetrators including Ongwen, intended their conduct and “to bring about the objective elements of the crimes of rape, torture, enslavement, sexual slavery and forced marriage, or were aware that they would occur in the ordinary course of events in implementing the . . .common plan.”97 Note that the Prosecutor here considers women and girls as one rather than considering separately the victimization of the children through these gender-based crimes given children’s unique status under IHL and CIL. The evidence, the Prosecutor maintained, indicated that from at least July 1, 2002 to December 31, 2005; women and girls were indeed abducted to serve as forced wives of LRA fighters in the Sinia brigade of the LRA.98 The Prosecutor held that the forced marriage of the women and girls to the LRA fighters of Sinia brigade amounted to “an inhumane act that caused great suffering or serious injury to these women’s and girls’ bodies, and mental and physical health of a character similar to other crimes against humanity charged in this document.”99 This prosecutorial strategy for addressing ‘forced marriage’ as a crime against humanity falling into the category of an ‘other inhumane act’ thus follows the lead of the Special Court of Sierra Leone (SCSL) in The Prosecutor versus Brima, Kamara and Kanu.100 and represents an innovation before the ICC. At the same time, however, there was no consideration of the girls’ victimized as children through forced marriage to LRA fighters and of other gender-based and sexual crimes perpetrated by the LRA against these female children as a distinct child collective victim. This was the case notwithstanding that children, as here previously discussed, have a unique legal status under IHL/CIL. That is; there was in The Prosecutor v Dominic Ongwen no charge brought of ‘age-based persecution’ directed against children in connection with gender-based and sexual violence

96 Annex A Public Redacted Version, Document Containing the Charges, Pre-Trial Chamber II, Situation in Uganda in the Case of The Prosecutor v Dominic Ongwen, December 22, 2015, para 129 at p. 41. 97 Annex A Public Redacted Version, Document Containing the Charges, Pre-Trial Chamber II, Situation in Uganda in the Case of The Prosecutor v Dominic Ongwen, December 22, 2015, para 129 at p. 41. 98 Annex A Public Redacted Version, Document Containing the Charges, Pre-Trial Chamber II, Situation in Uganda in the Case of The Prosecutor v Dominic Ongwen, December 22, 2015, para 130 at p. 41. 99 Annex A Public Redacted Version, Document Containing the Charges, Pre-Trial Chamber II, Situation in Uganda in the Case of The Prosecutor v Dominic Ongwen, December 22, 2015, para 130 at p. 41. 100 Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone (In the Appeals Chamber) Judgement February 22, 2008.

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crimes101 including rape, forced pregnancy, forced marriage, sexual slavery, and other inhumane acts including forced child soldiering. This though the Rome Statute criminalizes as a crime against humanity the persecution of any distinct collective based on any of the international crimes articulated in the Rome Statute and on any discriminatory grounds universally recognized as impermissible under international law (Rome Statute Article 7(1)(h)).102 Instead the ICC Prosecutor brought persecution as a crime against humanity charges in The Prosecutor v Dominic Ongwen only as a general charge relating to LRA attacks on the civilian population in general, as a whole as indicated in the quotes below from the charging document: The Prosecutor v Dominic Ongwen (ICC): Persecution Material Facts LRA fighters severely deprived, contrary to international law, the civilian residents of Pajule of their fundamental rights to life, to liberty and security of person, to freedom of movement, to private property, not to be subjected to torture or to cruel, inhumane or degrading treatment, and the right not to be held in slavery or servitude. The Pajule co-perpetrators, including Domnic Ongwen, targeted this group of civilian residents based on political grounds as they perceived them to be affiliated with and/or supporting the Ugandan government. They did so in connection with the crimes of attacks against the civilian population as such, murder, torture, other inhumane acts, cruel treatment, enslavement, and pillaging committed by the attackers at or near Pajule (emphasis added)103 Legal Characterization of the Material Facts Persecution, on political grounds, of civilians perceived by the LRA to be affiliated with, or supporting the Ugandan government. . . pursuant to Article 7 (1)(h). . .(emphasis added)104

101

Gender as defined in the Rome Statute at Article 7(3) arguably takes account of the fact that gender is a social construction (see ICC Office of the Prosecutor ‘Policy Paper on Sexual and Gender –Based Crimes’ (June, 2014) at p. 3. Hence gender-based crimes include also those against the LGBTQ plus community. 102 “The [Rome] Statute criminalizes persecution based on gender as a crime against humanity.” ICC Office of the Prosecutor ‘Policy Paper on Sexual and Gender –Based Crimes’ (June, 2014) at p. 5. Rome Statute Article 7(1)(h) “The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such. Such targeting was based on political, racial, national, ethnic, cultural, religious, gender. . . or other grounds that are universally recognized as impermissible under international law.” (Rome Statute Elements of the Crime, Article 7(1)(h) Persecution as a Crime Against Humanity, Elements one to three, emphasis added). 103 Annex A Public Redacted Version, Document Containing the Charges, Pre-Trial Chamber II, Situation in Uganda in the Case of The Prosecutor v Dominic Ongwen, December 22, 2015, Para 25 at pp. 11–12. 104 Annex A Public Redacted Version, Document Containing the Charges, Pre-Trial Chamber II, Situation in Uganda in the Case of The Prosecutor v Dominic Ongwen, December 22, 2015, Para 25, Item 10 at pp. 13–14.

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The same analysis strategy was applied also to the LRA attacks on the civilian population at Odek in regards to charging persecution on political grounds, of civilians perceived by the LRA to be affiliated with, or supporting the Ugandan government. . . pursuant to Article 7(1)(h)105 and the attacks on the civilian population of Lukodi.106 The same analysis was also applied to the LRA attack on Abok IDP camp regarding civilians and those hors de combat.107 However when it came to the gender-based sexual violence crimes the LRA perpetrated against girl civilians, and regardless whether or not they had been incorporated into the LRA as child soldier/sex slaves;108 there was no legal characterization of the material facts in terms of also ‘age-based persecution targeting children’. There was then a missed opportunity for an ‘age-based persecution’ as a crime against humanity charge in Ongwen relating to the child collective victim ‘as such’ and to the targeting of individual child victims grounded, in part, on their age-based group identity. The ‘age-based persecution’ charge could, it is here argued, reasonably have been framed in respect of the LRA relying in targeting children on the following discriminatory grounds that are universally recognized as impermissible under international law: (i) age (ii) intersecting political grounds (the children belonging to a larger collective of civilians (including those hors de combat) suspected of being affiliated with and/or supporting the Ugandan government and (iii) gender (in regards to the age-based persecution by way of sexual violence and sexual slavery since the female biological gender of those child victims was also a most frequent discriminatory ground for targeting). This then, respectfully, on the analysis here, was a sadly forsaken opportunity to (i) advance vindication of children’s status as a members of a distinct child collective ‘as such’ with special protection rights under IHL/CIL and to (ii) affirm the particular child collective as an identifiable, separable collective; one that must, under international law, be protected in its own right from ‘age-based persecution’. This whether targeted as a particular

105

Annex A Public Redacted Version, Document Containing the Charges, Pre-Trial Chamber II, Situation in Uganda in the Case of The Prosecutor v Dominic Ongwen, December 22, 2015, para 39 Item 23 at p. 21. 106 Annex A Public Redacted Version, Document Containing the Charges, Pre-Trial Chamber II, Situation in Uganda in the Case of The Prosecutor v Dominic Ongwen, December 22, 2015, para 52 at p. 25 and para 52 item 36 at pp. 27–28. 107 Annex A Public Redacted Version, Document Containing the Charges, Pre-Trial Chamber II, Situation in Uganda in the Case of The Prosecutor v Dominic Ongwen, December 22, 2015, par 58 at p. 29, para 65 at p. 32, para 65 item 49 at p. 34. 108 The current author, as explained, holds that child soldier/sex slaves recruited and used in armed hostilities by armed groups or forces committing mass atrocities are under threat/coercive conditions by definition and hence enslaved also for that reason. As they are enslaved and subject to rape and other gender-based and sexual violence international crimes by their own compatriot soldiers; they must be considered in law hors de combat for the purposes at least of considering charges such as persecution against the perpetrators of this victimization of these children. The current author thus endorses the view that child soldier/sex slaves are (in the practical non-technical sense) hors de combat even if they took active and direct part in hostilities. This being the case, at a minimum, during the periods where they were repeatedly subjected to rape and other sexual violence.

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child collective ‘as such’ or through the victimization of the members based on their age-related group identity; and whether victimized through targeted international atrocity crimes based on the ground of age alone or age in combination with intersecting other grounds. The failure to charge age-based persecution of children in connection with the various categories of Rome Statute international crimes continues to date to be the practice of the ICC Office of the Prosecutor notwithstanding, on the respectful view here, the material factual and legal basis for such a charge in certain ICC cases (this in regards to either persecution relating to the individual victim’s group membership in a child collective or persecution of the child collective ‘as such’). From this author’s respectful perspective; the failure to charge ‘persecution of the child collective’ (though there have been ICC cases where the facts and evidence support the charge) appears to have been due to this tact as ICC prosecutorial customary practice as accepted norm. The latter is, however, it is here argued, inconsistent with Rome Statute Article 54 (1)(b)’s requirement that the ICC Prosecutor ensure effective investigations and prosecutions and do so by taking into account “the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children (emphasis added).”109 In this regard also note that Article 21(3) of the Rome Statute on the application of the law highlights that “the application and interpretation of the law110 pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in Article 7 paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status (emphasis added).”111 With respect, it is here contended that there has been an unwitting failure of the ICC Office of the Prosecutor to charge- notwithstanding the evidence and the law in support-age-based persecution in connection with genocide and/or crimes against humanity and/or war crimes targeting a distinct child collective ‘as such’ or targeting individual children due at least largely to their group identity as children (see for instance the Ntaganda case).112 This then leads to an adverse distinction being made founded on the impermissible ground of age and arising from the ICC prosecutorial strategy itself. That is; the child collective is, as a consequence, improperly disregarded as a distinct

Rome Statute Article 54(1)(b) ‘Duties and powers of the Prosecutor with respect to investigations’. 110 The law here referring to the bodies of relevant law and legal instruments as set out in order of priority at Article 21 of the Rome Statute. 111 Rome Statute Article 21(3). 112 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement. 109

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group under IHL/CIL and international human rights law113 with a separable claim given its child membership to special human rights protections. A charge (in the proper case) of ‘age-based persecution’ which targeted children and did so in connection with one or more Rome Statute crimes would highlight the elevated status that the child collective victim ‘as such’ and persons under age eighteen targeted due to that group identity actually enjoy under international law. Such a charge where supported legally and factually furthermore would be an actualization in practice of the ICC Office of the Prosecutor’s promise and commitment to “[u] nderstand the intersection of factors such as . . .age. . .and other status or identities which may give rise to multiple forms of discrimination and inequities”.114

References Literature Fox M (2005) Child soldiers and international law: patchwork gains and conceptual debates. Hum Rights Rev 7:27–48 Grey R (2014) Sexual violence against child soldiers: the limits and potential of international criminal law. Int Fem J Polit 16(4):601–621 Grover SC (2014) The torture of children during armed conflicts: the ICC’s failure to prosecute and the negation of children’s human dignity. Springer Publishing, NY Jalloh CC, Osei-Tutu J (2008) Insights 12(10):1–12 May 20, 2008 at p 6 Prosecutor v Brima, Kamura, and Knau: First Judgement from the Appeals Chamber of the Special Court of Sierra Leone Oosterveld V (2005) The definition of “gender” in the Rome Statute of the International Criminal Court: a step forward or back for international criminal justice? Harv Hum Rights J 18:55–84

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The ‘Convention on the Rights of the Child’ (CRC), the ‘Optional Protocol to the CRC on the Involvement of Children in Armed Conflict’ as well as the ‘Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography’ are examples of international legal instruments dedicated to setting out the rights of the child in international human rights law. These rights intersect with, to some extent, the protections and rights in other bodies of law such as IHL and CIL and they importantly, to some extent, underpin the interpretation and application of the Rome Statute as concerns child victims of Rome Statute international atrocity crimes (see Rome Statute Article 21(3) on applicable law). 114 ICC Office of the Prosecutor ‘Policy Paper on Sexual and Gender –Based Crimes’ (June, 2014) at p. 16. 113

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Amicus Brief of the University of Toronto International Human Rights Clinic and Interested International Human Rights Organizations. Argument (in the Case of The Prosecutor versus Sam Hinga Norma Re the Fourth Defence Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment)) https://ihrp.law.utoronto.ca/prosecutor-v-sam-hinga-norman-%E2%80% 93-protecting-children%E2%80%99s-rights-special-court-sierra-leone (accessed November 29, 2020) Amnesty International (2018) ‘Evidence of sexual violence against men and boys rejected in Ongwen’ (Guest opinion piece writer Dr. Rosemary Grey, Amnesty’s Legal Adviser Jonathan O’Donohue and International Criminal Justice Clinic student Leonard Krasny) (April 12, 2018) https://hrij.amnesty.nl/evidence-sexual-violence-men-boys-rejected-ongwen/ Annex A Public Redacted Version, Document Containing the Charges, Pre-Trial Chamber II, Situation in Uganda in the Case of The Prosecutor v Dominic Ongwen, December 22, 2015 BBC News ‘Bosnia’s Srebrenica massacre 25 years on-in pictures’ (July 10, 2020). https://www. bbc.com/news/world-europe-53346759 (accessed December 28, 2020) Bensouda F (2019) Keynote address by Mrs. Fatou Bensouda, Prosecutor of the ICC ‘Prosecuting Sexual and Gender-Based Crimes at the International Criminal Court’ (SAIFAC Conference: International Law and Justice for Victims of the Gross Human Rights Violation of Sexual and Gender-Based Violence) November 27, 2019, Johannesburg, South Africa https://www.icc-cpi. int/iccdocs/otp/20191127-SAIFAC-Keynote%20remarks.pdf (accessed November 29, 2020) Convention on the Rights of the Child (CRC) Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990. https://www.ohchr.org/en/professionalinterest/pages/crc.aspx (accessed December 1, 2020) Centre for Women, Peace and Security ‘Brima, Kamara and Kanu Case’ https://blogs.lse.ac.uk/ vaw/landmark-cases/a-z-of-cases/brima-et-al-case/ (accessed January 30, 2021) Fox News (June 26, 2017) ‘Grieving Iraqis Call on US to Investigate Massacre of 1600 Air Cadets’ https://www.foxnews.com/world/grieving-iraqis-call-on-us-to-investigate-massacreof-1600-military-cadets (accessed December 20, 2020) Genocide Archive of Rwanda ‘The Hutu Ten Commandments’ https://genocidearchiverwanda.org. rw/index.php?title¼Kangura_No_6&gsearch¼hutu%20ten%20commandments (accessed November 27, 2020) Human Rights Watch (n.d.) ‘Summary of Judgements against the accused (ICTR)’ https://www. hrw.org/reports/2004/ij/ictr/1.htm (accessed January 31, 2021) Human Rights Watch Report (2003) ‘Rwanda 1994 Genocide: (IV) Children Attacked’ https:// www.hrw.org/reports/2003/rwanda0403/rwanda0403-03.htm (accessed January 31, 2021) Human Rights Watch (n.d.) ‘Interpretation and Application of the genocide provision of the statute of the ICTR regarding political grounds: Akayesu (Trial Chamber)’, September 2, 1998, para. 720-721: “. . .a woman was beaten, threatened and interrogated about the whereabouts of another person, but . . . because she was Hutu, “they cannot constitute acts of genocide against the Tutsi group.” https://www.hrw.org/reports/2004/ij/ictr/3.htm (accessed January 31, 2021) ICC Case Information Sheet ‘The Prosecutor v Dominic Ongwen (ICC-02/04-01/15)’ https://www. icc-cpi.int/CaseInformationSheets/ongwenEng.pdf (accessed November 30, 2020) ICC Office of the Prosecutor Policy Paper on Sexual and Gender –Based Crimes (June, 2014). https://www.icc-cpi.int/iccdocs/otp/otp-policy-paper-on-sexual-and-gender-based-crimes%2D %2Djune-2014.pdf Legal Information Institute (Cornell Law School) ‘Discriminatory Intent: Rome Statute of the International Criminal Court, Article 7(1)(h)’ https://www.law.cornell.edu/women-and-justice/ resource/rome_statute_of_the_international_criminal_court_article_7(1)(h) (accessed January 31, 2021) London School of Economics and Political Science (LSE) Centre for Women, Peace and Security ‘Brima, Kamara and Kanu Case’ https://blogs.lse.ac.uk/vaw/landmark-cases/a-z-of-cases/ brima-et-al-case/ (accessed January 23, 2021) Mockaitis T ‘Srebrenica 25 years later: Lessons from the massacre that ended the Bosnian conflict and unmasked a genocide’ (July 8, 2020) The Conversation (online journal) https:// theconversation.com/srebrenica-25-years-later-lessons-from-the-massacre-that-ended-the-bos nian-conflict-and-unmasked-a-genocide-141177 (accessed January 31, 2021)

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Optional Protocol to the CRC on the Involvement of Children in Armed Conflict, Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000, entry into force 12 February 2002. https://www.ohchr.org/en/ professionalinterest/pages/opaccrc.aspx (accessed December 1, 2020) Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography, Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000, entry into force January 18, 2002. https://www.refworld.org/ docid/3ae6b38bc.html (accessed December 1, 2020) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) entry into force December 7, 1978. https://www.ohchr.org/Documents/ProfessionalInterest/protocol2.pdf (accessed November 27, 2020) Rome Statute of the International Criminal Court, entered into force July 1, 2002. https://www.icccpi.int/resource-library/documents/rs-eng.pdf (accessed November 27, 2020 Rome Statute Elements of the Crime adopted 2010. https://www.icc-cpi.int/NR/rdonlyres/ 336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf (accessed November 22, 2020) Statute of the ICTR. https://legal.un.org/avl/pdf/ha/ictr_EF.pdf (accessed January 31, 2021) Statute of the SCSL; the SCSL being established by an Agreement between the United Nations and the Government of Sierra Leone pursuant to Security Council resolution 1315 (2000) of 14 August 2000. http://www.rscsl.org/Documents/scsl-statute.pdf (accessed November 28, 2020) United Nations Case Law Database ‘Discriminatory Intent, Prosecutor versus Jean-Paul Akayesu’, Appeals Judgement June 1, 2001 at para 464 https://cld.irmct.org/notions/show/274/ discriminatory-intent

Cases Prosecutor v Akayesu, Jean-Paul (Trial Chamber), (ICTR 96-4) September 2, 1998, para. 591-592: https://unictr.irmct.org/en/cases/ictr-96-4-T (accessed January 23, 2021) Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone (In the Appeals Chamber) Judgement February 22, 2008 Prosecutor versus Alex Tamba Brima, Brima Bazzy Kamera and Santigie Borbor Kanu, Special Court of Sierra Leone, Trial Chamber II June 20, 2007 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019, Sentencing Judgement Situation in Uganda in the Case of The Prosecutor v Dominic Ongwen, Pre-Trial Chamber II ICC Decision on the Confirmation of Charges Against Dominic Ongwen CC-02/04-01/15 (March 23, 2016) available for download at https://www.icc-cpi.int/pages/record.aspx?uri¼2228214 (accessed December 29, 2020), see also The Prosecutor v Dominic Ongwen, Trial Judgment on the merits, Trial Chamber IX, (February 4, 2021) icc-cpi.int/CourtRecords/CR2021_01026.PDF (accessed June 4, 2021) Prosecutor v Radislav Krstic ICTY Trial Judgment August 2, 2001 Part III Legal Findings Extermination: https://www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e.pdf Prosecutor v. Krstic Case No:IT-98-33-A Appeal Judgement April 19, 2004. https://www.icty.org/ x/cases/krstic/acjug/en/krs-aj040419e.pdf (accessed January 30, 2021) Theoneste Bagosoro and Anatole Nsengiyumva. Versus The Prosecutor (Case No. ICTR-98-41-A) (In the Appeals Chamber) Judgement of December 14, 2011 Para 6 at p. 2

Chapter 6

The Persecution of Children in Connection with War Crimes: Selected Exemplars

6.1

Introduction

This chapter discusses (i) gender-based and other war crimes targeting the child collective ‘as such’ or directed against children on account of their group identity (that is their belonging to a collective defined by age and as the latter intersects also with other characteristics that the perpetrator wishes to eliminate in part or in whole) and (ii) cumulative charges in respect of such Rome Statute war crimes. Note that the ICC Office of the Prosecutor set out a prosecutorial strategy of (i) highlighting gender-based international crimes in whatever way best to frame them within the Rome Statute international crime categories and with regard to the elements of each specific crime while also (ii) advancing cumulative charges in regards to such crimes in order to reflect their gravity: The Office will ensure that charges for sexual and gender-based crimes are brought wherever there is sufficient evidence to support such charges. It will bring charges for sexual and gender-based crimes explicitly as crimes per se, in addition to charging such acts as forms of other violence within the competence of the Court where the material elements are met, e.g., charging rape as torture. The Office will seek to bring cumulative charges in order to reflect the severity and multifaceted character of these crimes fairly, and to enunciate their range, supported by the evidence in each case.1

We will explore then the question of the degree to which, as of the date of this author’s writing, the above ICC commitments have been met in terms of (i) charging gender-based and other war crimes perpetrated against the child collective victim ‘as such’ or against individual children as children and as members of also a larger targeted group and (ii) bringing cumulative charges thereby also underscoring the heightened gravity of gender-based war crimes and other international atrocity crimes when committed against children.

1 ICC Office of the Prosecutor Policy Paper on Sexual and Gender –Based Crimes (June, 2014) Executive Summery point 7 at p. 6.

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Rome Statute War Crimes

The varied conduct constituting war crimes as set out in the Rome Statute falls into different categories including: (i) “Grave breaches of the Geneva Conventions of 12 August 1949” namely, any of the Rome Statute Article 8(2)(a) enumerated acts “against persons or property protected under the provisions of the relevant Geneva Convention” and occurring in the context of an international armed conflict; (ii) “Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law” namely the acts enumerated in Rome Statute Article 8(2)(b); (iii) “Serious violations of Article 3 common to the four Geneva Conventions”; namely the acts enumerated in Rome Statute Article 8(2)(c), and occurring in the context of a non-international armed conflict against “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause” and (iv) “Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law” namely, the acts enumerated at Rome Statute Article 8(2)(e).2 Insofar as war crimes against human victims (as opposed to property) is concerned we must consider whether (i) the crimes were directed at a distinct collective ‘as such’ in whole or in part or instead were (ii) perpetrated against individuals or groups of individuals where the victim’s group identity was not an element of the war crime. In most of the ICC cases it is likely that the war crimes charged are directed at particular collectives ‘as such’ or target individuals based on their group identity. This since the Rome Statute sets out that the jurisdictional priority is to consider widespread war crimes and/or war crimes when systematic, orchestrated and planned: “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 (emphasis added).”3 Such widespread war crimes, especially where also systematic or planned, generally involve targeting of a particular distinct collective. Note that the “[Rome] Statute is the first instrument in international law to include an expansive list of sexual and gender-based crimes as war crimes relating both to international and non-international armed conflict.”4 The focus in this chapter is on the ICC and its’ failure to prosecute the persecution of children in connection with gender-based and other war crimes. We will consider both child soldier/sex slave victims5 of persecution in connection with war crimes as well as child persecution victims not incorporated into an armed force or group but 2

Rome Statute Elements of the Crimes, War Crimes Article 8(2). Rome Statute Article 8(1) Introduction. 4 ICC Office of the Prosecutor Policy Paper on Sexual and Gender –Based Crimes (June, 2014) para 1 at p. 9. 5 Recall that under Article 4(3) Protocol II to the 1949 Geneva Conventions “children [age undefined] shall be provided with the care and aid they require” during armed conflict thus 3

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targeted during an armed conflict. The criminal liability of the perpetrators of gender-based and other war crimes targeting children, it is here argued, is not fully realized when there is a failure to also charge ‘age-based persecution targeting children’ in connection with war crimes where the evidence supports the charge. That charge could readily be brought before the ICC under Rome Statute Article 7(1) (h)) as the crime against humanity of persecution given the broad discriminatory grounds underpinning persecution as articulated in that provision.(or age-based persecution could be charged as an ‘other inhumane act’ constituting a crime against humanity (Rome Statute Article 7(1)(k)).6

6.2.1

The Persecution of Children in Connection with the War Crime of Torture

In regards to ‘persecution in connection with war crimes’ targeting the child collective ‘as such’ or children based in large part on their age-based group identity; note that various such war crimes can have gender-based aspects and also constitute torture (i.e. mutilation of the sexual organs etc.).7 Of special relevance also for the purpose of the discussion here is the fact that torture as a Rome Statute war crime includes as a potential element any discriminatory intent: War Crime of Torture: Grave Breaches of the August 12, 1949 Geneva Conventions in the Context of an International Armed Conflict, Rome Statute Article 8 (2) (a) (ii)-1: “The perpetrator inflicted the pain and suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind (emphasis added)”.8 War crime of Torture: Other serious violations of the laws and customs applicable in armed conflicts not of an international character, Rome Statute Elements of the Crime, Article 8 (2) (c) (i)-4: The element regarding discriminatory intent and motive is repeated verbatim as an element for the war crime of torture in the context of a non-international armed conflict “The perpetrator inflicted the pain and suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind (emphasis added).”9

The Rome Statute war crimes torture provisions thus include a potential element relating to some form of discrimination. The charge of ‘age-based persecution in connection with the war crime of torture’ targeting children would then likely be

precluding persecution against children as a crime against humanity effectuated in any form (i.e. in connection with war crimes) or by any means. 6 Rome Statute entered into force July 1, 2002. 7 ICC Office of the Prosecutor Policy Paper on Sexual and Gender –Based Crimes (June, 2014) para 35 at p. 20. 8 Rome Statute Elements of the Crime Article 8 (2) (a) (ii)-1 War crime of torture Element 2. 9 Rome Statute Elements of the Crime Article 8 (2) (c) (i)-4 War crime of torture Element 2.

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supportable on the evidence and the law where such a discriminatory element was present (i.e. with the persecution relating to a severe deprivation of rights such as the right to security of the person and the torture to inflict severe mental and/or physical suffering; both Rome Statute crimes then, in the particular case, targeting children (discrimination based on age and likely other intersecting characteristics such as gender). Both the ‘persecution’ and the ‘war crime of torture’ provisions of the Rome Statute contemplate those crimes as animated by a range of possible discriminatory bases that may include kinds unenumerated in those provisions. Thus these provisions allow for charging, in the proper case, for instance, of ‘age-based persecution of children in connection with gender-based war crimes rising to the level of torture’ (including but not limited to i.e. mutilation, rape, and forced pregnancy). This being the case though the Rome Statute persecution provision does not enumerate age as a discriminatory ground10 and the Statute’s torture provisions enumerate no specific discriminatory grounds but rather refer to the perpetrator inflicting pain and suffering for “any reason based on discrimination of any kind.”11 Both the ‘torture war crimes provisions’ and ‘the persecution provision’ of the Rome Statute affirm that any discriminatory grounds recognized as impermissible under international law for targeting for these international crimes are specifically prohibited. This would include then also age-based discrimination as a basis for victimization. Yet the ‘persecution in connection with war crimes’ of the child collective ‘as such’ or of individual children qua children (and also based on their intersecting other characteristics) has not to date been charged by the ICC Prosecutor even in cases where such a charge was, it is here argued, legally supportable.12 Respectfully, on the view here, this situation is not consistent with a more fulsome realization of the commitment made in the ICC Office of the Prosecutor 2014 ‘Policy Paper on Sexual and Gender –Based Crimes’.13 That commitment was that the persecution of children relating to crimes that have gender-based aspects would be addressed also in the charging in the first instance and not then, by implication, simply as by adding aggravated charges in relation to gender-based attacks on civilian populations or other protected groups that included also child victims: In principle, the Office will bring charges for sexual and gender-based crimes explicitly as crimes per se, in addition to charging these acts as forms of other violence within the Court’s subject-matter jurisdiction, where the material elements are met, e.g., charging rape as torture, persecution, and genocide (emphasis added).14

10

Rome Statute Elements of the Crime Article 7(h). Rome Statute Elements of the Crime Article 8 (2)(a)(ii)-1 and Article 8 (2) (c) (i)-4. 12 For instance ‘persecution targeting children in connection with gender-based war crimes’ was not charged in Ntaganda notwithstanding the evidence that would have supported such a charge. 13 ICC Office of the Prosecutor Policy Paper on Sexual and Gender –Based Crimes (June, 2014). 14 ICC Office of the Prosecutor Policy Paper on Sexual and Gender –Based Crimes (June, 2014) para 72 at pp. 29–30. 11

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Strategic goal 3 is to, enhance the integration of a gender perspective in all areas of our work and continue to pay particular attention to sexual and gender-based crimes and crimes against children (emphasis added).15

In regards to the persecution of children in connection with the war crime of torture note that children can be a prime target. Although it is likely the case that the torture of children to extract a confession or useful military or other information is less common than in the torture of adults; the torture of children nevertheless may serve a very specific perpetrator purpose. That is one related to its’ propaganda value. Specifically the war crime of torturing children serves well to intimidate16 the general population in a stark and fearsome manner by striking at the very heart of the larger protected community from which the children originate. This by subjugating and often eliminating, through torture, members of that community’s child collective.17 Torture as a war crime directed at a person or persons furthermore is a form of dehumanization and hence often accompanies or is enacted through other international atrocity crimes such as acts of genocide and or various acts of crimes against humanity18 which seek to destroy or weaken the targeted collective. It is important to recognize that although the crime of torture is articulated both as a war crime and a crime against humanity19 in various Rome Statute articles; there is no precise agreed upon definition of torture provided in the Statute nor in international law generally. Rather there is in the Rome Statute a recurring element referencing the following: “The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons”20 It is the case in fact that “Many acts, conducts or events may be viewed as torture in certain circumstances, while they may not be viewed as torture in some other situations.”21 Furthermore, “Torture is

15

ICC Office of the Prosecutor Strategic Plan, June 2012-2015 (ICC-OTP 2013), p. 27. https:// iccforum.com/media/background/general/2013-10-11_ICC_OTP-Strategic_Plan_June_20122015.pdf. 16 This is in fact a motive and intent possibility mentioned in the Rome Statute war crimes provisions regarding torture. 17 See, for example, Grover (2014). 18 The Rome Statute also sets out torture as a crime against humanity at Article 7(1)(f). 19 One difference between torture as a ‘war crime’ and torture as a crime against humanity’ as articulated in the Rome Statute is that torture as a crime against humanity explicitly references no purpose element but rather the contextual element specifying that “The conduct was committed as part of a widespread or systematic attack directed against a civilian population.” (Rome Statute ‘Crime Against Humanity of Torture’ Article 7(1) (f)). Nonetheless it may be the case that torture of children as a ‘crime against humanity’, as with torture of children as a ‘war crime’, often serves certain propaganda and intimidation purposes in respect of the targeted larger civilian or otherwise protected population. 20 Rome Statute Elements of the Crime Pertaining to torture: see Element one of Article 7(1)(f), Torture as a Crime Against Humanity, Element one of Article 8 (2) (a) (ii)-1, Torture as a war crime in an international armed conflict situation, Element one of Article 8 (2) (c) (i)-4, Torture as a war crime in a non-international armed conflict context. 21 Office of the High Commissioner for Human Rights (OHCHR) (2011) Interpretation of Torture in light of the practice and jurisprudence of international bodies at p. 2.

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not an act in itself, or specific type of acts, but it is the legal qualification of an event or behavior, based on the comprehensive assessment of this event or behavior.”22 The age and vulnerability of the victim are amongst the relevant factors in determining whether a legal characterization of ‘torture’ is warranted. Hence many acts that may constitute torture for a child may not necessarily be legally characterized (correctly or incorrectly) as such by a prosecutor of an international criminal court/ tribunal in circumstances where the victim is an adult and had no special pre-existing vulnerabilities. Further the war crime of incorporating children under fifteen as child soldiers or child soldier/sex slaves into an armed group or force committing mass atrocities in which these children are compelled to participate may also qualify as torture given the mental and physical suffering of these children.23 The older child soldiers are however also subjected to this torture including gender-based sexual violence.

6.2.2

The Persecution of Children in Connection with Gender-Based War Crimes

The ICC Office of the Prosecutor set out that the Office would engage in gender analysis to examine “the underlying differences and inequalities between women and men, and girls and boys, and the power relationships and other dynamics which determine and shape gender roles in a society, and give rise to assumptions and stereotypes (emphasis added).”24 The ICC prosecutor’s office also explained that “In the context of the work of the Office, this involves a consideration of whether, and in what ways, crimes, including sexual and gender-based crimes, are related to gender norms and inequalities (emphasis added).”25 Respectfully, what is missing in this ICC prosecutor analysis strategy regarding gender-based international crime, it is here contended, is consideration of the power dynamics also between adult perpetrators and child victims of gender-based Rome Statute offences and other international crimes with gender-based aspects. The persecution of particular distinct child collectives through gender-based and other international crimes is in part bolstered and rationalized by perpetrators based on a power differential between adults and children commonly reflected in pre-existing traditional status norms intersecting with gender. Further as, previously explained, there is a large population of children 22 Office of the High Commissioner for Human Rights (OHCHR) (2011) Interpretation of Torture in light of the practice and jurisprudence of international bodies at p. 2. 23 For example the Rome Statute gender-based international crimes such as rape (most often targeting women and children) also may qualify as torture given the dehumanizing character of the conduct and its long-lasting and broadly devastating impacts on the victims. 24 ICC Office of the Prosecutor Policy Paper on Sexual and Gender –Based Crimes (June, 2014) at p. 4. 25 ICC Office of the Prosecutor Policy Paper on Sexual and Gender –Based Crimes (June, 2014) at p. 4.

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in certain regions of the world and hence children may be considered by the perpetrators in those locales as readily expendable (i.e. as child soldier/sex slaves subject to repeated violation through gender-based international atrocity crimes where incorporated into the perpetrator armed militia or force). The failure to consider, in respect of particular ICC charging decisions, the power dynamics between adults and children is reflected, for instance, in the absence of Rome Statute charges for gender-based international crimes committed against child soldier/sex slaves aged fifteen and over i.e. as in the Ntaganda case and certain others.26 The latter is all the more striking given that these older children incorporated into the UPC/FPLC were, afterall enslaved just as were the child soldiers under age fifteen. The UPC/FPLC captors exerted a ‘right of ownership’ over the person of their child soldier/sex slaves thus making any issue of consent irrelevant and inapplicable as pertains also to children fifteen and older incorporated into the Hema militia. The common element of the ‘exercise of a right of ownership’ characterizes the Rome Statute crime of ‘enslavement’ (a crime against humanity) and of ‘sexual slavery’ (the latter set out in the Rome Statute either as a war crime or as a crime against humanity depending on the contextual elements present in the particular case fact scenario). In sum then child soldier/sex slaves of any age under eighteen are enslaved children whose most fundamental rights to security of the person, liberty and human dignity have been violated. These violations constitute infringements of jus cogens (i.e. the prohibition on slavery) and of international human rights and IHL/CIL (i.e. the prohibition on the recruitment and use of children under fifteen for active participation in armed conflict and the discouragement in IHL/CIL of the use of any person under age eighteen for a direct role in the armed hostilities). Rome Statute enumerated gender-based war crimes addressing offences that, in practice, are targeted more often at the subjugation of women and girls27 include but are not necessarily limited to: 8(2)(b)(xxii)-1 war crime of rape in the context of an international conflict 8(2)(b)(xxii)-2 war crime of sexual slavery in the context of an international conflict Note 53 to Article 8(2)(b)(xxii)-2 duplicates note 66 to Article 8 (2) (e) (vi)-2 re sexual slavery and its links to trafficking in women and children 8(2)(b)(xxii)-3 war crime of enforced prostitution in the context of an international conflict 8(2)(b)(xxii)-4 war crime of forced pregnancy in the context of an international conflict 8(2)(b) (xxii)-5 war crime of enforced sterilization in the context of an international conflict 8(2)(b) (xxii)-6 war crime of sexual violence in the context of an international conflict 8 (2)(e) (vi)-1 war crime of rape in the context of a non-international conflict

26 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of July 8, 2019 (Disposition on the Merits-Guilt or Innocence on the various charges). 27 Men and boys may also be subjected to some of these gender-based war crimes such as rape, sexual slavery and sexual violence.

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8 (2)(e) (vi)-2, war crime of sexual slavery in the context of a non-international conflict See Rome Statute Elements of the Crime note 66 to Article 8 (2)(e) (vi)-2 (sexual slavery): “It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children (emphasis added)”28 8 (2)(e) (vi)-3 war crime of enforced prostitution in the context of a non-international conflict 8 (2)(e) (vi)-4 war crime of forced pregnancy in the context of a non-international conflict 8 (2)(e) (vi)-5 war crime of forced sterilization in the context of a non-international conflict 8 (2)(e) (vi)-6 war crime of sexual violence in the context of a non-international conflict29

In the midst of mass atrocity it is disingenuous, it is here argued, to consider that any children had a genuine choice as to whether to become child soldiers per se or child soldier/sex slaves and their protected status under IHL/CIL thus remains intact for that reason also (except where they pose an imminent physical threat).30 The victimization of these children before and post incorporation into an armed group or

28 Note that the link between gender-based sexual violence crimes and trafficking in women and children is also set out in the Rome Statute and Rome Statute Elements of the Crimes Rome Statute, Crime Against Humanity of Enslavement, Article 7(2)(c): “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.” (emphasis added); Rome Statute Elements of the Crime Against Humanity of Enslavement, Article 7(1) (c) Note 11: “It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children (emphasis added)”; Rome Statute Elements of the Crime Against Humanity of Sexual Slavery, Article 7(1)(g)-2 Note 18 duplicates note 11 regarding Rome Statute Elements of the Crime Against Humanity of Enslavement Article 7 (1)(c). 29 Rome Statute Elements of the Crime Article 8 War Crimes. 30 CIL Rule 1. “The parties to the conflict must at all times distinguish between civilians and combatants. . .State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. . . The term “combatant” in this rule is used in its generic meaning, indicating persons who do not enjoy the protection against attack accorded to civilians, but does not imply a right to combatant status or prisoner-of-war status. . . . The ICRC has called on parties to both international and non-international armed conflicts to respect the distinction between combatants and civilians (emphasis added).” International Committee of the Red Cross ‘Customary International Humanitarian Law’ Vol. 1 Rules (Henckaerts, JM and Doswald-Beck, L (Eds.), Cambridge University Press, 2005. Also see Dormann who states that except in circumstances of a popular uprising: “civilians do not have the right to participate directly in hostilities. If they nevertheless take part, they remain civilians but become lawful targets of attack for as long as they do so.” Dormann (2003), pp. 45–74.

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force committing mass atrocities merits a separate charge of persecution as a crime against humanity directed against the child collective as such (persons under age eighteen). The latter in part in connection with, but not necessarily limited to, the war crimes of sexual slavery of children (persons under age eighteen) and the recruitment and use of children under fifteen in armed conflict. Yet many legal scholars have not considered the viability of charges related to ‘age-based persecution as a crime against humanity targeting children’ notwithstanding the factual and legal basis for such a charge in the specific case (whether one before the ICC or before another international criminal law tribunal or court). The use of child soldiers for sexual purposes is a grave human rights and international criminal law violation. Rosemary Grey points out that it is one, however, not “explicitly addressed” in international humanitarian or criminal law.31 She suggests that sexual violence international crimes against child solders yet could be addressed through enumerated statutory crimes relating to sexual violence set out in international criminal law instruments such as the Rome Statute or “by highlighting the sexual dimensions of the child soldier crimes in the statute.”32 The latter, it would appear, refers to (i) the prohibition (i.e. in the Rome Statute) on the recruitment and use of children under age fifteen as child soldiers actively engaged in armed hostilities and (ii) the possibility of including the sexual violation of these children by their adult soldier compatriots as an aspect of their prohibited use as child soldiers under fifteen. In regards to the latter approach recall that in Ntaganda the ICC prosecutor had not charged the gender-based crimes perpetrated against the child soldier/sex slaves aged fifteen and over but only charged these sexual violence crimes as perpetrated against the UPC/FPLC child soldiers under fifteen. This strategy perhaps reflects an attempt by the ICC Prosecutor to have the Court consider the gender-based sexual violence crimes perpetrated by the UPC/FPLC against their own child soldier/sex slaves as a part of the forced recruitment and use of child soldiers under fifteen (a war crime). The latter Rome Statute offence then would serve as a kind of ‘Trojan horse’ for bringing in consideration also of the gender-based international crimes committed against the child soldier/sex slaves by intraparty perpetrators. Importantly Grey points out that the war crime of recruitment and use of children under fifteen for active participation in armed hostilities is itself an international war crime also when perpetrated by one’s own side in an armed conflict.33 The current author cautions against conflating (i) intraparty sexual violence international crimes perpetrated by adult fighters against children with (ii) the war crime of recruitment or use for active participation in armed conflict of children under age fifteen. Such an approach, as discussed previously, would not address the intraparty sexual international crimes against child soldiers aged fifteen and over (but under eighteen). Note that where the children transferred to and incorporated into an

31

Grey (2014), p. 602. Grey (2014), pp. 603–660. 33 Grey (2014), p. 605. 32

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armed force or group committing mass atrocities are not only child soldiers but also sex slaves; these children have been trafficked for both forced sex labor and child soldiering and not simply recruited through conscription34 or enlistment. The contextual elements are thus complex in such situations.35 On the view here, the conflation of (i) intraparty sexual violence international crimes perpetrated against child soldiers under fifteen with (ii) the war crime of the children’s recruitment and use for active participation in armed hostilities reinforces the erroneous notion that child soldier/sex slaves are not civilians suffering sexual violence and enslavement. That notion, as here previously explained, is inconsistent with IHL/CIL and ICRC commentary on Article 4(3)(c)(d) of Protocol II Additional to the 1949 Geneva Conventions and with the IHL criteria for the legal technical status of ‘combatant’ versus ‘civilian’.36 Considering intraparty sexual violence against child soldiers to be an aspect of their forced recruitment and use in armed conflict as under fifteens thus may inappropriately hinder the bringing of a charge of ‘persecution as a crime against humanity targeting the child soldier/sex slave collective through sexual violence’—persecution involving an attack on a distinct child civilian population under age fifteen. In Ntaganda, for instance, rape was one of the crimes held to be connected with the UPC/FPLC persecution of the civilian Lendu population while the rape of the Hema children under fifteen incorporated into the UPC/FPLC as child soldier/sex slaves was not charged as a form of persecution.37 It is here contended, however, that the Hema UPC/FPLC child soldier/sex slave contingent (child civilians-persons under eighteen) suffered age-based persecution in part through intraparty sexual violence and sexual slavery. The sexual violence crimes perpetrated against the UPC/FPLC female child soldier/sex slaves aged under fifteen were charged separately (Counts 6 and 9)38 from the sexual violence crimes perpetrated against who the Trial Chamber VI termed “members of the civilian population” (counts 4,5,7,8) with the latter counts

34

Even the term conscription, it is here contended, is inapplicable to the indefinite forced service of a child as a child soldier who is enslaved. Conscription generally applies where there is compelled military service for a defined period that is respected and is, as part of military training, to ensure national readiness or compelled service during an emergency and service in the national interest of the State. 35 The UPC/FPLC child soldier/sex slaves were enslaved/trafficked civilians per the Rome Statute framing of the link between enslavement and child trafficking and the definition of trafficking in the Palermo Protocol. 36 See Protocol I Additional to the 1949 Geneva Conventions Article 43 Note that civilians engaging in hostilities do not become ‘combatants’ in the legal technical sense under the aforementioned provision. 37 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019 (Sentencing Judgment), para 34 at p. 19. 38 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019 (Sentencing Judgment), para 108–113, at pp. 48–51.

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referencing specific incidents involving women and girl victims.39 Trial Chamber VI in recounting the facts of the sexual violence against the UPC/FPLC child soldier/ sex slaves set out that the rapes and sexual slavery of these children occurred in military-related contexts; that is “during training at UPC/FPLC camps” or “during the assignment as an escort to a UPC/FPLC commander. . .during a period in which the UPC/FPLC was actively engaged in military operations and fought opposing armed actors. . .The Chamber found that this practice of sexual violence could occur due to the circumstances in which these vulnerable young girls were kept, notably not being able to leave.”40 Recall, however, that the Appeals Chamber in Ntaganda found that the child soldier sex slaves of the UPC/FPLC were protected under international law from sexual violence whether perpetrated by their compatriots or members of the opposing forces. This protection entitlement, the Appeals Court ruled in Ntaganda, existed whether or not the child soldier/sex slaves were to be considered to be members of the UPC/FPLC.41 The Court hence adopted an approach informed by IHL/CIL and jus cogens in analyzing the reasons for the accountability of the UPC/FPLC perpetrators for intraparty gender-based sexual violence crimes committed against UPC/FPLC child soldier/sex slaves under age fifteen. Grey notes that the “increased participation of feminist activists in international forums” may have been helpful in creating a new openness to considering the need for prosecution of gender-based international crimes.42 This openness by the Court in Ntaganda to considering the gender-based intraparty sexual violence against female child soldiers under fifteen then may have been a ‘spillover’ of considering gender-based international crimes as perpetrated against women as part of the victim civilian population and often also sexually enslaved.43 The Appeals Court in Ntaganda, as here discussed previously, held that the UPC/FPLC child soldier/sex slave victims of gender-based intraparty sexual violence international crimes were (i) protected persons even if one considers only the jus cogens prohibition on sexual slavery44 and (ii) to be considered hors de combat 39 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019 (Sentencing Judgment), Para 97–107 at pp. 43–49. 40 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019 (Sentencing Judgment), para 109 at p. 49. 41 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 OA5 (ICC Appeals Chamber) June 15, 2017, para 24 at p. 11. 42 Grey (2014), p. 604. 43 The current author endorses the view of legal scholars who hold that the same case that was made in Ntaganda as to why child soldier/sex slaves can be considered the victims of prosecutable international sexual violence crimes—whether committed by their compatriots or by members of the opposing force—can be made in regards to women (female adult) victims of those crimes who are incorporated into the armed group or force as soldier/sex slaves (and also in some instances as ‘forced wives’). 44 On the view of the current author there is a consistent mislabelling in some of the academic legal literature of so-called ‘child soldiers’ as something other than civilians i.e. misclassifying them as

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given their sexual slavery and their being subjected to repeated intraparty rapes. There was thus, given the Appeals Court analysis, in fact a potential, it is here contended, for considering these child soldier/sex slaves (protected persons) as the victims of UPC/FPLC ‘age-based persecution as a crime against humanity’ perpetrated by way of the following intraparty war crimes: rape, sexual slavery, and cruel treatment amongst other Rome Statute crimes. However age-based persecution in respect of the UPC/FPLC child soldier/sex slave victims was never charged. It is here argued that not to charge age-based persecution of the UPC/FPLC, mostly Hema, child soldier/sex slaves who suffered intraparty rape and sexual slavery; while advancing by implication the charge of UPC/FPLC persecution in regard to the Lendu children (as part of the Lendu larger civilian population in regards to which the charge of UPC/FPLC persecution was advanced) is (i) discriminatory and (ii) hence inconsistent with the requirements of Rome Statute Article 21(3) which bars any “adverse distinction founded on grounds such as . . .age . . .or other status” in the interpretation and application of the Rome Statute.45 On the respectful view here; the ICC Prosecutor in Ntaganda inadvertently; in practice (i) drew a discriminatory distinction based on the status of the child victims of the UPC/FPLC genderbased sexual violence crimes; namely in terms of whether or not the children were UPC/FPLC child soldiers and indirectly, also based on ethnicity and (ii) hence did not accord the UPC/FPLC, mostly Hema, child soldier/sex slaves equal justice compared to the Lendu child victims of the UPC/FPLC gender-based sexual violence crimes who had not been incorporated into the UPC/FPLC as child soldiers. This though the child soldier/sex slaves retained their protected status in regards, at a minimum, to sexual violence crimes (and, as discussed previously, on the analysis here, they retained also their civilian protected status more generally though they became legitimate targets in those times when they were an imminent threat to others while actively engaged in the hostilities).46 To recap then it has been here argued that (i) the UPC/FPLC child soldier/sex slaves retained their technical legal civilian status under IHL/CIL at all times (though they were not in practice ‘protected persons’ under IHL when actively engaged in the armed hostilities); (ii) the UPC/FPLC child soldiers under fifteen retained all the protection privileges accorded children under fifteen under IHL/CIL47 during those

presumptively ‘combatants’ in the technical legal as opposed to the colloquial sense of fighters engaged in hostilities for a period of time who stay as civilians but lose protection from targeting by the adversary while engaged directly in the armed hostilities. The child soldiers further too often do not have their rights to protection from sexual violence and sexual slavery under jus cogens CIL respected: “. . .the approach used in the SCSL has not specifically highlighted the issue of sexual violence against girl soldiers, as such. Rather, the victims of sexual violence are identified primarily as “civilians,” “women and girls” or “bush wives,” rather than as child soldiers, combatants or members of armed groups” (Grey 2014, p. 608). 45 Rome Statute Article 21(3). 46 Dormann (2003), p. 46. 47 Grey points out that the protections afforded children under APII (Additional Protocol II to the 1949 Geneva Conventions) Article 4(d) are more comprehensive than those afforded to persons

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periods when they were not actively engaged in the hostilities48 (per APII Article 4 (3)) and posing no imminent threat to others and enjoyed this protection entitlement even if they had been actively engaged in hostilities previously; (iii) the UPC/FPLC child soldier/sex slaves, regardless of age under eighteen, were (a) protected persons under jus cogens CIL law given the prohibition on sexual violence crimes and sexual slavery and were (b) ‘protected persons’ whenever not directly engaged in the armed conflict posing an imminent threat to others (arguably the children were to be considered for all practical purposes as hors de combat due to their sexual slavery as the Ntaganda Appeals Court appeared to suggest); and (iv) the transfer of Hema children to the UPC/FPLC armed group and the intraparty sexual violence perpetrated upon them was a continuation, in another form, of the widespread and systematic attack on the Hema civilian population (the latter which involved i.e. coercion and threats to surrender one or more children from each Hema family to the UPC/FPLC for training and service in combat and other roles, penalties where this did not occur, and abductions of Hema children and transfer to the UPC/FPLC militia). So-called child soldier/sex slaves are thus civilians though for limited periods where they are an imminent threat they lose protected status. The Rome Statute war crimes 8(2)(b)(xxvi) and 8(2)(e) (vii)49 (concerning the recruitment and use of children under fifteen for active engagement in armed hostilities) do not serve as a legitimate basis for holding that the child collectives referenced in these Rome Statute crimes are “child soldiers’ in any formal sense under IHL/CIL. That is these so-called child soldiers do not hold the status of ‘combatants’50 as that term is understood under IHL/CIL AP I to the 1949 Geneva Conventions Article 43(1)(2) (3) (in contradistinction to the status of ‘civilian’ or other protected person (i.e. someone hors de combat who previously held combatant status under IHL/CIL). Rather, as was noted in Ntaganda, these children are protected persons given the IHL/CIL prohibition on the use of children under fifteen as child soldiers

under APII Article 2 as the latter protects only those who did not take part in armed hostilities or are hors de combat but the protections afforded children under APII Article 4(d) stand even if the child has previously taken an active part in the hostilities (see Grey 2014, p. 606). While Article 4(d) of AP II applies in particular to children under fifteen, the principle can arguably be generalized to all children similarly situated as (i) APII Article 4(3) refers to children (age undefined) being entitled to the “care and aid they require” and (ii) (according to ICRC commentary) AP II Article 4(3) references the protection of under fifteens in particular at AP II Article 4(3)(c))(d) but does not in those subsections limit the potential applicability to only under fifteens. 48 Certain military manuals generally require treating the child soldier as protected if the child does not pose an imminent threat even if the child is actively engaged in hostilities. 49 The Rome Statute war crimes 8(2)(b)(xxvi) and 8(2)(e)(vii) involve the violation of the prohibition on the conscripting or enlisting of children under fifteen into an armed force or armed group in the context of an armed conflict and of the prohibition on their use in an armed conflict. 50 The term ‘combatant’ has a specific technical meaning and involves eligibility criteria under Protocol I Additional to the 1949 Geneva Conventions Article 43 that differs from the colloquial meaning of fighter. Not every ‘fighter’ then is a ‘combatant’ under IHL.

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and the jus cogens absolute non-derogable bar against all forms of slavery including for all the UPC/FPLC child soldier/sex slaves regardless of age.51 The current author contends then that the UPC/FPLC child soldiers fifteen and over; enslaved both as child soldiers and as sex slaves, were also to be considered protected persons. Even if it could be maintained that some older children voluntarily joined the UPC/FPLC (ignoring then the illogic of that claim given the coercive context of a Hema armed group committing mass atrocities including abductions of Hema children and the threatening of Hema families should they not surrender children to the militia); once joined the children were enslaved and not free to leave. On the analysis here it would have thus been possible to charge (i) the sexual violence perpetrated against the UPC/FPLC child soldier/sex slaves (under eighteens) in Ntaganda as ‘age-based persecution in connection with both war crimes and crimes against humanity’ and relating to gender-based sexual violence and (ii) to pursue cumulative charges relating to these sexual violence war crimes and crimes against humanity each separately charged also. The current author hence respectfully disagrees with the view that because the Rome Statute crimes against humanity have as an element an attack on a civilian population (meaning where most of that population is civilian but may include persons with other protected status as well) that this creates a hurdle for prosecution of intraparty sexual violence against child soldiers who have actively participated in the armed hostilities (whether or not their engagement is intermittent due to their being subjected at times to repeated intraparty rapes).52 On the analysis here; to regard child soldier/sex slaves as protected persons is consistent with (i) ICRC commentary on AP II Article 4(3) that children under fifteen in particular retain their full protected status once no longer actively engaged in the hostilities; (ii) certain military manuals of, for instance, western States that stipulate that children of any age are a lawful target only when they pose an imminent threat; (iii) the jus cogens IHL/CIL protected status accorded child soldier/sex slaves of any age with that status grounded in part on the absolute prohibition on enslavement of any person53 and (iv) the view of sexual slavery as a continuing crime for as long as the child is so enslaved. Grey points out that the Rome Statute legislative scheme has been successfully applied where intraparty sexual violence international crimes against child soldier/ sex slaves have been prosecuted under the Statute’s relevant gender-based sexual violence crime categories (additionally, in Ongwen certain intraparty sexual genderbased crimes were charged as ‘other inhumane acts’ i.e. in regards to forced

51

Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of July 8, 2019 (Disposition on the Merits-Guilt or Innocence on the various charges). 52 Grey (2014), p. 605. 53 Dormann states that except in circumstances of a popular uprising: “civilians do not have the right to participate directly in hostilities. If they nevertheless take part, they remain civilians but become lawful targets of attack for as long as they do so.” Dormann (2003), pp. 45–74 (emphasis added).

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marriage as an “other inhumane act” a conviction was secured at trial).54 The current author, however, highlights the fact that in none of these ICC cases to date have these gender-based sexual violence crimes against child soldier/sex slaves by their compatriots in arms also been charged as ‘age-based persecution as a crime against humanity’. Thus the targeting of children qua children and also based on their intersecting characteristics as in, for example, Ntaganda55 and Taylor,56 was not framed by the ICC prosecutor as ‘age-based persecution’ of the particular child soldier/sex slave collective. This notwithstanding, on the view here, overwhelming evidence supporting such a charge in those cases. Respectfully, the barriers to a charge under the Rome Statute of ‘age-based persecution’ of the particular child soldier/sex slave collective through intraparty gender-based sexual violence crimes and sexual slavery appear to be in large part (i) a misunderstanding of the status of child soldier/sex slaves as purported ‘combatants’ (in the technical sense under IHL/CIL) rather than viewing these children correctly under international law as civilian enslaved persons with ongoing ‘protected status’ in regards to sexual violence and the continuing international crime of sexual slavery and (ii) also the novelty of the charge of ‘age-based persecution’ itself and especially in relation to child soldier/sex slave victims.57 In Ntaganda the ICC Prosecutor charged rape and sexual slavery perpetrated against the members of the Lendu civilian mixed age population separately from the rape and sexual slavery of the Hema UPC/FPLC child soldier/sex slaves. In regards to the UPC/FPLC child soldier victims of intraparty sexual violence and sexual slavery; a legally supportable charge of persecution perpetrated against the children of this distinct group based on age (under eighteen) and gender could also have been advanced (gender as a ground as most of the child soldier victims were female though not exclusively so). The rape and sexual slavery of the adult and child members of the Lendu civilian population (male and female), however, were considered and charged also in connection with ‘persecution’ as a crime against humanity based on ethnicity (Lendu) and gender (most of the victims of this sexual violence also were female). The targeting of children for sexual violence international crimes adds to the terrorizing of and sense of vulnerability experienced by the children’s group of origin. In respect of the rape of elderly women, as occurred in Sierra Leone for

54

Grey (2014), p. 608. Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019 (Sentencing Judgment). 56 Prosecutor v Charles Ghankay Taylor Trial Chamber II (SCSL-03-01-T) (Special Court of Serra Leone) May 18, 2012 para 871–1207. 57 The Ntaganda Pre-Trial Chamber held that the child soldier/sex slaves were not actively engaged in the hostilities at those precise times when they were subjected to acts of a sexual nature including rape. (see Ntaganda, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06-309, 9 June 2014, Pre-Trial Chamber II, para 79). 55

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instance and was discussed in the Taylor case; the age of the victim is again relevant. This in that it reinforces the horrific nature of sexual violence international crimes and highlights/communicates for the perpetrators the absolute helplessness of the civilian population against such attack: Furthermore, the sexual violence unleashed caused terror as it violated cultural norms. Young girls, in particular virgins, women old enough to be grandmothers and mothers of the perpetrators, pregnant women and breastfeeding mothers were all targeted. Part of the terror experienced by victims included the fear of being stigmatised as victims of rape or other sexual violence, and the children conceived through such violence were often rejected by family and society (emphasis added).58

The child soldier/sex slaves targeted (whether by their compatriots or by members of the opposing armed party59) for sexual violence international crimes based on their gender, age and most often also ethnicity and/or religion are, on the case analysis here, generally victimized in the context of a generalized widespread and systematic attack on their particular group of origin/distinct home community collective.

6.2.3

Forced Religious Conversion and Indoctrination into the Perpetrator Credo as Violations of IHL/CIL and International Human Rights Law

During armed conflict the persecution of the child collective through an attack on the children’s education and religious rights and liberties is in fact a grave and likely risk and is recognized as such under IHL/CIL. This through the articulation of provisions intended to safeguard those rights and liberties such that their violation would be considered as a violation of international humanitarian law and the customs and practices of war, for instance:

58 Prosecutor v Charles Ghankay Taylor Trial Chamber II (SCSL-03-01-T) (Special Court of Serra Leone) May 18, 2012 para 873 at pp. 346–347. 59 The Defence in Nataganda argued that prosecution for sexual violence against child soldiers by members on their own side violated the principle of legality. (Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06, Ntaganda, Transcript ICC-01/04-02/06-T-10-Red-ENG, 13 February 2014, Pre-Trial Chamber II, 27, lines 22–25) .The Defence pointed to the fact that Article 4(d) of AP II refers to children under fifteen still being entitled to special protections if they have engaged actively in hostilities and are captured. The capture, the Defence argued, implies that AP II Article 4(3)(d) references protections for children under fifteen when in the hands of the opposing party. However, the UPC/FPLC child soldier/sex slaves were enslaved; and being used as gun fodder and put in a servile position. Hence the compatriots of the child solder/sex slaves were child traffickers and enslavers against whom the children had the right to be protected. Under jus cogens law the UPC/FPLC perpetrators knew or should have known that this conduct brought with it significant criminal liability under international criminal law.

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Article 4(1)of Protocol II to the 1949 Geneva Conventions stipulates under Fundamental Guarantees that: “All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. . .(emphasis added).”60

The protection of education and religious rights under Protocol II is then without adverse distinction of any kind including based on age: Article 4(3)(a) of Protocol II to the 1949 Geneva Conventions stipulates as a Fundamental Guarantee that: “Children shall be provided with the care and aid they require, and in particular: (a) they shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care (emphasis added).”61 The International Committee of the Red Cross 1987 commentary on the Protocol II Fundamental Freedoms Guarantees provision was as follows: The right of protected persons to respect for their honour, convictions and religious practices is an element of humane treatment . . .62 The right of respect for the person must be understood in its widest sense: it covers all the rights of the individual, that is, the rights and qualities which are inseparable from the human being by the very fact of his existence and his mental and physical powers.63 Geneva Convention Four Relative to the Protection of Civilians Persons in Time of War of 12 August, 1949, Article 27: GCIV Article 27 in part stipulates that “Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs.”64

Note that in his report on the establishment of the Special Court for Sierra Leone, the UN Secretary-General stated that: “Violations of common article 3 of the Geneva Conventions and of article 4 of Additional Protocol II thereto committed in an armed conflict not of an international character have long been considered customary international law, and in particular since the establishment of the two International Tribunals, have been recognized as customarily entailing the individual criminal responsibility of the accused.”65 Hence perpetrators can be held to be culpable in the

60

Protocol II: Protocol II Additional to the 1949 Geneva Conventions, Article 4(1). Protocol II to the 1949 Geneva Conventions, Article 4(3)(a). 62 ICRC 1987 Commentary on fundamental freedoms guarantees including education and religious rights and freedoms of protected persons including children during armed conflict as stipulated in Protocol II Article 4(3). 63 ICRC 1987 Commentary on rights and fundamental freedoms guarantees including education and religious rights and freedoms of protected persons including children during armed conflict as stipulated in Protocol II Article 4(3). 64 Geneva Convention IV Relative to the Protection of Civilians Persons in Time of War of 12 August, 1949, Article 27. 65 UN Secretary-General, Report on the establishment of a Special Court for Sierra Leone (October 4, 2000) para 14 at p. 4. 61

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use of children under fifteen for active participation in hostilities in that they knew or should have known that this practice violated international humanitarian/customary law (i.e. see Article 4 (c) Protocol II Additional to the 1949 Geneva Conventions). Emerging norms also indicate growing State consensus that the prohibition should extend to all persons under age eighteen as is discussed below in a later section with reference to the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.66 In addition the African Children’s Charter; a regional human rights treaty applicable to those members of the African Union which are State Parties to the treaty (i) prohibits the use of children under eighteen from direct participation in hostilities (Article 22 (2)) and (ii) guarantees that “State Parties to this Charter shall undertake to respect and ensure respect for rules of international humanitarian law applicable in armed conflicts which affect the child.” (Article 22(1)).67 This further substantiates the emerging international law norm regarding the prohibition against recruitment and use of children under age eighteen for active participation in armed hostilities. Thus the prohibition on the use of children in armed conflict is longstanding and that norm is gradually expanding to include not just younger children but also children fifteen and over but under eighteen. So too, as discussed, is the bar longstanding on the restriction of children’s religious and educational freedoms by an armed perpetrator group or force during armed conflict or occupation. Thus the protection of the education and religious rights of children as protected persons during armed conflict is guaranteed under IHL/CIL. This includes also, it is here argued, children forcibly transferred and incorporated into armed groups or forces as child soldier/sex slaves or those who purportedly joined voluntarily and were effectively enslaved (voluntariness here being a contentious notion given the coercive circumstances of being in a context where an armed group or force is committing mass atrocities and threatening and attacking in various ways the children’s group of origin). The argument that these child soldiers/sex slaves are enslaved and to be considered as hors de combat, at a minimum, while they are subjected to rape and sexual slavery has been here previously discussed.68 In any

66

Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, entry into force February 12, 2002. To date 170 State Parties have ratified the Optional Protocol to the Convention on the Rights of the Child on the Involvement of children in Armed Conflict (see UN Treaty Collection: Optional Protocol to the Convention on the Rights of the Child on the Involvement of children in Armed Conflict Ratifications as of May 24, 2020) https://treaties.un.org/Pages/ViewDetails.aspx?src¼IND&mtdsg_no¼IV-11-b&chapter¼4. 67 African Children’s Charter, entered into force on 29 November, 1999. This is a regional human rights instrument to which members of the African Union may become States Parties https://www. acerwc.africa/about-the-charter/. 68 Child soldier/sex slaves are hors de combat in the practical sense that they are entitled to protection under IHL/CIL when not actively engaged in the armed hostilities. However these child soldiers do not hold that official legal status of hors de combat under IHL since the use in armed hostilities of children under 15 in particular is prohibited under IHL/CIL. Hence the children were never combatants under Protocol I to the 1949 Geneva Conventions Article 43 definition of ‘combatant’ as someone with an unqualified right to participate in the hostilities (the term combatant

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case; Article 4(3)(d) of Protocol II to the 1949 Geneva Conventions and ICRC commentary on AP II Article 4(3) makes it clear that children (in particular but not necessarily only those under fifteen) do not lose their protected status when they have taken an active part in armed hostilities except for the limited periods in which they pose an imminent threat of significant physical harm to another. Furthermore, “To fulfil its task of disseminating IHL the ICRC has delegates around the world teaching armed and security forces that: “In case of doubt whether a person is a civilian or not, that person shall be considered as a civilian (emphasis added).”69 The latter ICRC advisory would appear to be all the more applicable where children (persons under eighteen) are concerned given: (i) their heightened special protected status under IHL/CIL compared to other protected groups, (ii) their high level of vulnerability exacerbated by armed conflict and (iii) as informed by Article 4(3) (d) of Protocol II to the 1949 Geneva Conventions (in particular if under fifteen); their full protected status once disengaged from active participation in the conflict even if they have previously directly participated in the armed hostilities. Their unlawful participation in the hostilities does not morph ‘child soldiers’ into ‘combatants’ in the technical legal sense under IHL/CIL (The term ‘combatant’, it will be recalled, refers to fighters who have an unqualified legal right under IHL/CIL to participate in the hostilities and who cannot be prosecuted for lawful acts of war)70 (see Additional Protocol I to the 1949 Geneva Conventions Article 43(2) on the definition of combatant which is a status only available formally in the context of an international armed conflict). The term ‘combatant’ as used in the context of noninternational armed conflicts serves only the purpose, according to the ICRC commentary, of allowing a practical distinction between those who can or cannot be lawfully targeted71 and the status does not imply any further privileges in that context:72 Except for the relatively rare case of a levée en masse, civilians do not have the right to participate directly in hostilities. If they nevertheless take direct part, they remain civilians but become lawful targets of attacks for as long as they do so (emphasis added).73

Hence child soldiers taking an active part in hostilities are also not “unlawful combatants” or “enemy combatants” or “unprivileged combatants” since under IHL is only applicable to fighters who meet the AP I Article 43 criteria and are engaged in an international armed conflict). 69 IHL Practice relating to Rule 6: Civilians’ Loss of Protection from Attack: Situations of doubt as to the character of a person https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule6_ sectionc. 70 Dormann (2003), p. 45. 71 Only those actively engaged in the hostilities can be lawfully targeted though there are further restrictions in regards to the targeting of child soldiers according to some military practice (i.e. that they must pose an imminent threat). 72 International Committee of the Red Cross ‘Customary International Humanitarian Law Vol. 1 Rules: CIL Rule One’ (Henckaerts, JM and Doswald-Beck, L (Eds.), Cambridge University Press, 2005) See also Dormann (2003), p. 46. 73 Dormann (2003), p. 46.

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they remain civilians. (Note that “Whereas the terms “combatant”, “prisoner of war” and “civilian” are generally used and defined in the treaties of international humanitarian law, the terms “unlawful combatant”, “unprivileged combatant/belligerent” do not appear in them”).74 The fact that Protocol II Additional to the 1949 Geneva Conventions stipulates at Article 4(d) that “the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured” indicates implicitly also that (i) a child cannot in any manner renounce his/her special protection fundamental rights under IHL/CIL and that (ii) their participating directly or actively in the armed hostilities is not an indicia of a lawful renunciation of their fundamental rights and freedoms.75 This, the current author holds, applies also for children fifteen and over in that under IHL/CIL children (age undefined) are to be accorded the care and aid they require (i.e. AP II to the 1949 Geneva Conventions Article 4(3)). The ICRC commentary also notes that: . . . this [age of fifteen in the provision barring recruitment and use of children under fifteen for active participation in armed conflict] is only an indication and should not be seen as a definition. Biological and psychological maturity varies, and it is important not to exclude the possibility that aid is required by children over the age of fifteen (emphasis added).76

In any case; armed groups or forces committing heinous widespread international crimes including, for instance, the trafficking and enslavement of children (as did ISIL with thousands of children in Iraq and region) are, of course, not exercising any lawful right under IHL/CIL to (i) ‘recruit’ children of any age or to use them for any purpose let alone active participation in armed hostilities or to (ii) indoctrinate the forcibly transferred children in terms of the armed group/force credo or to impose religious conversion as did ISIL.

6.2.4

International Human Rights Law Informing the Interpretation and Application of the Rome Statute

Recall that Rome Statute Article 21(3) on application and interpretation of law stipulates that: 74

Dormann (2003), p. 46. Interestingly Geneva Convention IV applicable only in international armed conflict settings explicitly addresses and disallows renunciation of rights by a Protected Person at Article 8-this would seem a fundamental principle underpinning humane treatment rights and State armed force and non-State armed group obligations in that regard and applicable also in non-international armed conflicts. 76 ICRC 1987 Commentary on Protocol 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 Article 4(3). Available for download at https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ INTRO/475. 75

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The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status (emphasis added).77

Given that the application and interpretation of the Rome Statute per Article 21 (3) is to be informed by “internationally recognized human rights”; let us consider what international rights instrument protection guarantees are provided for children’s freedom of religion and conscience rights. Children’s religious and freedom of conscience rights are articulated in the Convention on the Rights of the Child (CRC): Article 14(1) which states: “States Parties shall respect the right of the child to freedom of thought, conscience and religion.”78 Other articles of the CRC also apply including but not necessarily limited to Article 13(1) which stipulates that: “The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.”79 The freedom of expression right set out at CRC Article 13 then would include also freedom of religious expression. CRC Article 29 concerning education of the child stipulates that: Convention on the Rights of the Child: Article 29 Education Rights 1. States Parties agree that the education of the child shall be directed to: (a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the natural environment (emphasis added).80

77

Rome Statute Article 21(3). Convention on the Rights of the Child, Article 14(1), entry into force September 2, 1990 Article 14(1). 79 Convention on the Rights of the Child, Article 14(1), entry into force September 2, 1990 Article 13(1). 80 Convention on the Rights of the Child, Article 14(1), entry into force September 2, 1990 Article 29. 78

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Certainly Article 29 of the Convention on the Rights of the Child (CRC), in its articulation of children’s education rights, by implication vigorously bars forced religious conversion and other compelled indoctrination of children by a perpetrator group committing mass atrocities. This in that Article 29 of the CRC sets out that the children’s education rights include, among other things, the right to be educated for peace and tolerance, due regard for human rights as well as for respect of one’s cultural heritage (the latter which would then include respect also for the group of origin’s religious traditions and practices). Convention on the Rights of the Child (CRC) Article 30: Minority and Indigenous Religious Rights The child’s right to freedom of religion as a member of a minority or indigenous ethnic group is also protected under the CRC: In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.81 Thus the perpetrator group imposing forced religious conversion and other compelled indoctrination upon their child soldier/sex slaves violates the religious and freedom of thought and expression rights of the minority or indigenous children as set out also in international human rights law through the Convention on the Rights of the Child.82 The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (CRC-OP-AC) is relevant, for the purposes of this discussion, in that much perpetrator forced religious conversion and other indoctrination during armed conflict is imposed on children that the perpetrators have incorporated into their fighting units as child soldier/sex slaves. Let us then consider some relevant articles of the aforementioned Optional Protocol to the CRC on the matter of transferring and incorporating children into armed groups or forces. The CRC-OP-AC stipulates that State Parties should take all feasible measures such that children (persons under eighteen) in their forces do not take direct part in armed hostilities (Article 1) and sets out that non-State parties should not recruit or use child soldiers in armed hostilities in any circumstance (Article 4).83 The CRC-OP-AC also prohibits compulsory recruitment of under eighteens while stipulating that voluntary recruitment to the State armed forces must be accompanied by various safeguards

81

Convention on the Rights of the Child, Article 14(1), entry into force September 2, 1990 Article 30. 82 Convention on the Rights of the Child, Article 14(1), entry into force September 2, 1990. 83 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, entry into force February 12, 2002.

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relating to proof of age (over 15) and of free, informed and voluntary consent of the child and informed consent of the parents (Article 3). In regards to the relevance of the CRC and its first two Optional Protocols, for instance, recall that there was a commitment that the ICC Office of the Prosecutor “would take into account the evolution of internationally recognized human rights” in honoring its obligations under Article 21(3) of the Rome Statute that “mandates that the application and interpretation of the Statute be consistent with internationally recognized human rights without any adverse distinction “founded on any status.”84 Thus persecution as a crime against humanity; a crime that involves the severe deprivation of one or more fundamental rights, should not be precluded where there is evidence of the same simply due to accepted charging practice when the victims are children. Also for that reason it is here contended that the ‘persecution of children through forced religious conversion and other indoctrination’ should be, where warranted, charged in future ICC cases (as a crime against humanity and in connection with any further Rome Statute international atrocity crimes that the evidence reveals occurred). In the next section we consider persecution of children by way of the severe deprivation of their fundamental right to freedom of religion and conscience and in connection with selected war crimes.

6.2.5

Persecution of Children in Connection with War Crimes Involving Forced Religious Conversion and Indoctrination into the Perpetrator Credo

We turn next to consider persecution of children as a crime against humanity in connection with selected war crimes that can involve forced conversion of the child into an alternate religion and/or indoctrination into a terrorist ideology. That forced religious conversion and/or indoctrination into a perpetrator credo, so grossly inconsistent from the education and religious training the children received in their home community, causes great mental pain and psychological suffering for the child victims. Such excessive mental pain for children resulting from their forced conversion to an alternate religion arose, for instance, as a result of the practice of ISIL in Iraq.85 ISIL compelled the child solder/sex slaves they had incorporated into their

ICC Office of the Prosecutor Policy Paper on Sexual and Gender –Based Crimes (June, 2014) para 26 at p. 15. 85 ISIL, for many reasons, including its non-adherence to the laws and customs of war/IHL/CIL, is not, under international law, an armed group that is constituted of ‘combatants’ as that term is understood under Article 43 of Protocol I to the 1949 Geneva Conventions. The national law determines which groups or forces are recognized in non-international armed conflicts as combatants for the sole purpose of distinguishing them from civilians who are protected (See CIL rule 3 International Committee of the Red Cross (2005) ‘Customary International Humanitarian Law’ Vol. 1 Rules (Henckaerts, JM and Doswald-Beck, L (Eds.), Cambridge: Cambridge University Press). However. it would not be in keeping with IHL rules to consider an armed group or force 84

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ranks to convert to the preferred religion of the armed group and to swear dedication to the ISIL ideology and world view. The child soldier/sex slave victims incorporated into ISIL would most likely commonly have perceived their forced religious conversion as a personal betrayal of their conviction to their original faith and of their religious/ethnic home community traditions as also would have been the case with their perception of the forced sworn devotion to a murderous ISIL creed. This ‘agebased persecution of children’ can be considered in such a case (assuming all the other elements are also met) to be connected to the war crime of mental torture (i.e. Rome Statute Elements of the Crime Article 8(2)(c) i-4). Discrimination which animates the targeting of the particular, distinct child collective ‘as such’ for forced religious conversion and/or indoctrination (into the code of the perpetrator group that condones mass atrocity) is a common feature of the persecution of children as it is with persecution as a crime against humanity selectively victimizing any group. In the case of ISIL in Iraq, the discrimination guiding the targeting of children was based on age intersecting with ethnicity and religion and in certain instances also politics.86 In this instance the psychological and physical methods of coercion employed to accomplish the indoctrination into the new faith and to the ISIL credo and the use of degradation and physical punishment in the face of any resistance by the children constituted various war crimes. It is here contended these included, for instance, the war crime of cruel treatment (Rome Statute Article 8(2)(c)i-3). Furthermore it is here contended that forced religious conversion and indoctrination into a perpetrator ideology both in themselves constitute (where all the elements are met) “outrage[s] on personal dignity” (Rome Statute War Crime Article 8(2)(c)(ii)) causing severe humiliation and mental pain. Recall that it is here argued that the children incorporated into ISIL or other armed perpetrator groups or forces as child soldier/sex slaves (i) retain their civilian status under IHL/CIL and (ii) under IHL/CIL are protected persons with special privileges as children during the times they are not actively engaged in the armed hostilities posing an imminent threat to others. The children’s victimization through persecution involving various war crimes and most often also other international crimes is then part of the generalized attack on the civilian populations from which these child soldier/sex slave victims are drawn. The “severe physical or mental pain or suffering” of forced indoctrination and/or compelled religious conversion is inflicted on children based on “discrimination” directed against the members of the particular child collective targeted (i.e. with those children most commonly being from minority ethnic/religious groups or from the community of the political opposition) and with these child victims then being incorporated into the perpetrator group or force as child soldier/sex slaves. There is

committing mass atrocity as acting lawfully as a combatant armed force or group or as having the official status of combatant armed force or group under IHL/CIL in its full scope as set out under Article 43 Protocol I to the 1949 Geneva Conventions. 86 ISIL targeted also the children of moderate Sunni Muslims-persecution in that instance then based on age and politics.

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no possibility of reasonably considering that children voluntarily join these groups if their home country is where the mass atrocities are occurring given the coercive context this sets up. Children lured from abroad (i.e. as occurred in instances with ISIL) should be considered as trafficked children who are then enslaved upon first contact in theatre with the perpetrator group (the Rome Statute links enslavement and child trafficking).87 The matter of consent is hence inapplicable in terms of these enslaved children being the purported willing recipient of perpetrator sexual abuse and in regards to all manner of other atrocities inflicted upon them by the perpetrator group including forced religious conversion and/or indoctrination into a credo destructive to the children’s mental well-being. Forced religious conversion and indoctrination targeting (i) the child collective ‘as such’ and/or (ii) individual children based on their age-based group identity as it intersects with other characteristics, it is here contended, can hence, in the proper circumstances, constitute, in terms of war crimes, grave breaches or serious violations of the 1949 Geneva Conventions. Those violations of the 1949 Geneva Conventions could potentially include, but are not necessarily limited to, one or more of the following war crimes assuming all the elements of the particular crime are satisfied (Only selected elements are discussed for each crime below): I. Grave breaches of the Geneva Conventions of 12 August 1949 in the Context of an International Armed Conflict: Article 8 (2) (a) (ii)-1 War crime of torture in the context of an international armed conflict: “1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. The perpetrator inflicted the pain or suffering for such purposes as. . . punishment, intimidation or coercion or for any reason based on discrimination of any kind. . . .” 3. Such person or persons were protected under one or more of the Geneva Conventions of 1949. . .(emphasis added).”88 Article 8 (2) (a) (ii)-2 War crime of inhuman treatment Elements: “1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. . .”89

87

See Rome Statute Article 7(2)(c) Explanatory note re the crime against humanity of enslavement: “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.” See Rome Statute Elements of the Crime Article 7(1)(c) Crime Against Humanity of Enslavement footnote 11 and also Article 7(1)(g)-2 Rome Statute Elements of the Crime Against Humanity of sexual slavery footnote 18 (these footnotes links aspects of these crimes to trafficking in women and children). See also Rome Statute Elements of the War Crime of Sexual Slavery Article 8(2)(b)(xxii)-2 footnote 53; Rome Statute Elements of the War Crime of Enforced Prostitution Article 8 (2) (e) (vi)-3 footnote 66. 88 Rome Statute Elements of the Crime Article 8 (2) (a) (ii)-1. 89 Rome Statute Elements of the Crime Article 8 (2) (a) (ii)-2.

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II Serious Breaches of the Geneva Conventions of 12 August 1949 in the Context of an Armed Conflict Not of an International Character: Article 8 (2) (c) (i)-3 War crime of cruel treatment “1.The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. Such person or persons were either hors de combat, or were civilians. . .taking no active part in the hostilities.”90 War Crime Article 8(2)(c)(ii) Committing outrages upon personal dignity: “1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons. 2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity.”91 It is here contended that the ‘persecution of children in connection with war crimes involving inflicting mental suffering through children’s forced religious conversion and other indoctrination’ by an armed perpetrator group or force can, in some circumstances, where the other elements are met, also constitute the ‘genocidal forcible transfer of children’ from their community to another group. This representing a part of the psychological dimension of the genocidal forcible transfer of those children to another group. The genocidal forcible transfer of children to another group involves then also mental pain and a compelled radical shift in personal identity which, in part, is based on beliefs acquired through perpetrator indoctrination. In addition the persecution of children through forced religious conversion and indoctrination into perpetrator credo by an armed perpetrator group or force may constitute, where all the elements are met, the crime against humanity of ‘Other Inhumane Acts’. The first element of the latter crime being “The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act” having been satisfied as discussed.92 The persecution of children as a crime against humanity commonly occurs in connection with multiple other international atrocity crimes; each having a distinctive element not contained in the others. This allows then for cumulative charges. However, to this author’s knowledge, there have not to date been any ICC prosecutions for ‘persecution of children as a crime against humanity’. Nor, consequently, have there been cumulative charges brought in regards to the international crimes committed in connection with the persecution of children. Further aggravated charges have not been brought to date in cases (selected of which were discussed here previously) where, on the respectful view here, factually and legally children were targets of persecution as a child collective ‘as such’ and/or as individuals in part based on their age-related group identity. 90

Rome Statute Elements of the Crime Article 8 (2) (c)(i)-3 War crime of cruel treatment. Rome Statute Elements of the Crime Article 8(2)(c)(ii) War Crime Committing outrages upon personal dignity. 92 Rome Statute Elements of the Crime Article 7 (1)(k) Crime against humanity of other inhumane acts. 91

6.3 The Severe Deprivation of Child Soldier/Sex Slaves’ Fundamental Rights as. . .

6.2.6

189

War Crimes Involving Attacks on Protected Education and Cultural Objects

Mental pain is also inflicted on children through the war crime of attacking protected objects such as involves the destruction of schools and other places where children can have exposure to their home community’s cultural values, history and traditions and where they can develop their educational potential and skills. The attack on these objects are in large part an attack also on the children’s identity as imbued with the cultural values and teachings of their group of origin: Article 8 (2) (e) (iv) War crime of attacking protected objects Element 2: “The object of the attack was one or more buildings dedicated to religion, education, art, science . . .which were not military objectives (emphasis added)”93

Further the attack on protected educational and cultural objects can be viewed as an aspect of the effort to indoctrinate children into the perpetrator credo by eliminating any potential source of counter-narrative.

6.3

The Severe Deprivation of Child Soldier/Sex Slaves’ Fundamental Rights as the Crime Against Humanity of Persecution

The ICC 2014 Policy on Sexual and Gender-Based Crimes stipulated that the Office would, amongst other things, seek to “highlight the gender-related aspects of other crimes within its jurisdiction-for example in the recruitment of child soldiers and enslavement, and in the case of the latter, their manifestation as trafficking in persons, in particular women and children.”94 Further there was a commitment, as here previously mentioned, that the ICC Office of the Prosecutor “would take into account the evolution of internationally recognized human rights” in honoring its obligations in the application and interpretation of the Statute without any adverse distinction “founded on any status” which would of course include also any adverse distinction based on age.95 In this regard we will consider next the Convention on the Rights of the Child (CRC) and the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography.96 We will explore how this international rights law can inform the issue of ICC prosecution of gender-based

93

Rome Statute Elements of the Crime Article 8 (2)(e)(iv) War crime of attacking protected objects. ICC Office of the Prosecutor Policy Paper on Sexual and Gender –Based Crimes (June, 2014) para 8 at p. 6. 95 ICC Office of the Prosecutor Policy Paper on Sexual and Gender –Based Crimes (June, 2014) para 26 at p. 15. 96 Optional Protocol to the CRC on the sale of children, child prostitution and child pornography, entered into force January 18, 2002. 94

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Rome Statute crimes perpetrated against the child collective as such. Consider the following CRC articles relevant to the protection of the child’s security of the person through prohibitions on sexual abuse and exploitation, and physical or mental violence of any form perpetrated against the child. One is struck with the number of CRC articles concerning sexual violence, child trafficking and/or the moral and spiritual as well as physical well-being of children: Convention on the Rights of the Child Article 32 1. States Parties recognize the right of the child to be protected from . . .performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.97 Convention on the Rights of the Child Article 34 States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. . . For these purposes, States Parties shall in particular take all appropriate. . .measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices. . .98 Convention on the Rights of the Child Article 35 States Parties shall take all appropriate . . .measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.99 Convention on the Rights of the Child Article 36 States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare.100 Convention on the Rights of the Child Article 37 States Parties shall ensure that: a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. . .101

97 Convention on the Rights of the Child, Article Article 32. 98 Convention on the Rights of the Child, Article Article 34. 99 Convention on the Rights of the Child, Article Article 35. 100 Convention on the Rights of the Child, Article Article 36. 101 Convention on the Rights of the Child, Article Article 37.

14(1), entry into force September 2, 1990 14(1), entry into force September 2, 1990 14(1), entry into force September 2, 1990 14(1), entry into force September 2, 1990 14(1), entry into force September 2, 1990

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Convention on the Rights of the Child Article 38 1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.102

Note that the Paris Principles highlight that “Girls may be particularly vulnerable to forced recruitment or use by armed forces or armed groups if sufficient protection is not afforded, for example by having to fetch water and firewood unaccompanied in conflict zones” and being at risk therefore of abduction by a perpetrator group to be used as child soldier/sex slaves.103 This is also the case in that females, including girls, are viewed by perpetrator groups as the obvious choice for use “as “wives” or other forced sexual relations, actual forced marriage . . .domestic labour or logistical support in armed conflict’ all of which “constitute acts of recruitment or use”104 of children by armed forces or armed groups (with the conduct of gender-based sexual crimes being prohibited under the Rome Statute). The ICC Office of the Prosecutor could have laid charges hence, in a case such as Ntaganda105—informed in part by international human rights principles as articulated in the aforementioned articles of the Convention on the Rights of the Child—of persecution of the child collective ‘as such’ in connection with gender-based sexual violence crimes rising to the level of torture as well as cruel and degrading treatment as war crimes. Further in cases such as those that may develop in part in relation to a large scale sex slave trade in connection with an massive attack on a civilian population and including innumerable child victims there is not just ‘enslavement’ but also ‘child trafficking’. The latter with the distinguishing element of a trade involving “the recruitment, transportation, transfer, harbouring or receipt of persons” by various unlawful means.106 Useful on this point is the Palermo Protocol107 definition of trafficking in persons: Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (The Palermo Protocol) “Article 3 Use of terms 102

Convention on the Rights of the Child, Article 14(1), entry into force September 2, 1990 Article 38. 103 The Paris Principles: Principles and Guidelines on Children Associated With Armed Forces or Armed Groups (February, 2007) UNICEF https://www.unicef.org/mali/media/1561/file/ ParisPrinciples.pdf. 104 The Paris Principles: Principles and Guidelines on Children Associated With Armed Forces or Armed Groups (February, 2007) UNICEF https://www.unicef.org/mali/media/1561/file/ ParisPrinciples.pdf. 105 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of July 8, 2019 (Disposition on the Merits-Guilt or Innocence on the various charges). 106 Compare The Palermo Protocol, entry into force 25 December, 2003 Article 3. 107 The Palermo Protocol, entry into force 25 December, 2003 (as of 24 May, 2020 ratified by 176 counties).

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For the purposes of this Protocol: (a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude . . .108 (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used”109 While child trafficking is recognized in the Rome Statute as incorporating an element of ‘rights of ownership’ as with or linked to ‘enslavement’ and sexual slavery; there is no separate ICC international crime specifically addressing child trafficking. It would be legally supportable under the Rome Statute, however, it is here argued, to charge, where the elements are met, both ‘persecution’ and ‘other inhumane acts’ as crimes against humanity in connection with ‘child trafficking for the perpetrator purpose in part of committing gender-based crimes against children recruited and used as child soldier/sex slaves’. The latter charges would deliver fuller justice also to child victims fifteen and over since the violation of the jus cogens prohibition of all forms of slavery includes enslavement of the distinct child soldier/ sex slave collective. The aforementioned prosecutorial strategy would honor CIL rule 135 that stipulates that “Children affected by armed conflict are entitled to special respect and protection.”110 This by prosecuting also those most responsible for the persecution of children as a crime against humanity involving in particular the targeting of the child collective ‘as such’ comprised of the child soldier/sex slaves. These being children who, as explained, at no time lost their official IHL status as civilians and were entitled to special protection except for intermittent brief defined periods, if and when these occurred, for individual such children or groups of these children, who posed an imminent threat for some period during combat.111 Further this approach would be more fully consistent with an interpretation and application of the Rome Statute with due regard for (i) all children’s fundamental human right to protection and societal participation both as individuals and as members of a distinct particular child collective and (ii) their right to justice as articulated in international children’s human rights and other international law instruments. In the latter regard 108

The Palermo Protocol, entry into force 25 December, 2003 Article 3(a). The Palermo Protocol, entry into force 25 December, 2003 Article 3(b). 110 Committee of the International Red Cross, Henckaerts, Jean-Marie and Doswald-Beck, Louise ‘Customary International Law Volume I: Rules’ (Cambridge University Press, 2005) p. 479. 111 Dormann (2003), p. 46. 109

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consider the commentary of Christopher Roberts on the Rome Statute crime against humanity of ‘persecution’ as charged, as it must be under the Statute, in connection with other Rome Statute crimes: Persecution. . .may be a bridge through which categories of rights violation otherwise excluded from the Rome Statute list may be examined when the weight of violations encompassed by that list is sufficient. . . (emphasis added).112

The consideration of a Rome Statute charge of ‘persecution of the particular child collective ‘as such’ could, for instance, allow for due regard to children’s developmental rights (such rights are articulated at Article 6(2) of the Convention on the Rights of the Child which sets out the child’s right not just to survival but also development).113 A host of conduct by armed groups or forces targeting children for international atrocity crimes amounts also to ‘other inhumane acts’ as a crime against humanity. That conduct causes the children great mental and physical suffering and interference in their proper physical, emotional, spiritual and cognitive development (referencing here perpetrator conduct such as separating children from parents and other family and community, compelling children to commit and/or witness atrocity, forcing children into religious conversion and perpetrator indoctrination, denial to children of education and other perpetrator conduct of equal gravity in terms of its devastating effects upon the good overall development of child victims). Charging ‘persecution of the child collective as ‘such’ as a crime against humanity in connection with, for instance, particularized ‘other inhumane acts’ supports the age-based persecution charge under the Rome Statute. This allows then for vindication of children as autonomous rights bearers with special attention being paid also to child-centered rights such as the ‘right to development’ embodied in the Convention on the Rights of the Child and its first two optional protocols.114 The severe deprivation of children’s fundamental right to development, it is here argued, as carried out in the context of a widespread or systematic attack on a civilian population, and through specific perpetrator conduct, could justifiably be charged as itself an instance of ‘age-based persecution of children’. The latter severe rights deprivation (persecution) occurring then in connection with, for instance, the Rome Statute crime against humanity of “other inhumane acts’ where these are intentional and cause great suffering, or serious injury to body or to mental or physical health115 thus resulting commonly in severe long-term physical and mental suffering and stunted development in many areas for these traumatized child victims.116

112

Roberts (2017), pp. 23–24. Convention on the Rights of the Child, Article 14(1), entry into force September 2, 1990. 114 Judge Fausto Pocar of the ICTY noted that: “Persecution can consist of the deprivation of a wide variety of rights, including attacks on political, economic and social rights, as well as acts of harassment, humiliation and psychological abuse.” Pocar (2008), p. 359. 115 Rome Statute Article 7(1)(k). 116 Judge Fausto Pocar of the ICTY raises the issue as to whether Article 21 of the Rome Statute on applicable law which references the ICC’s ability to rely on other sources of law aside from only the Rome Statute, The Elements of the Crime and the Court’s Rules of Procedure and Evidence might 113

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In the next chapter the author shares some concluding remarks on the international atrocity crime of ‘age-based persecution of children as a crime against humanity’.

References Literature Dormann KK (2003) The legal situation of unlawful/unprivileged combatants. Int Rev Red Cross 85(849):45–74 Grey R (2014) Sexual violence against child soldiers: the limits and potential of international criminal law. Int Fem J Polit 16(4):601–621 Grover SC (2014) The torture of children during armed conflicts: the ICC’s failure to prosecute and the negation of children’s human dignity. Springer Publishing, NY Pocar JF (2008) Persecution as a crime against humanity. J Natl Secur Law Policy 2:355–365 Roberts C (2017) On the definition of crimes against humanity and other widespread or systematic human rights violations. Univ Pa J Law Soc Change 20(1):1–27

Materials African Children’s Charter on the Rights and Welfare of the Child (African Children’s Charter) Entered into force on 29 November, 1999. https://www.un.org/en/africa/osaa/pdf/au/afr_ charter_rights_welfare_child_africa_1990.pdf (accessed December 5, 2020) Convention on the Rights of the Child, Article 14(1), entry into force September 2, 1990. https:// www.ohchr.org/en/professionalinterest/pages/crc.aspx (accessed December, 5, 2020) Geneva Convention IV Relative to the Protection of Civilians Persons in Time of War of 12 August, 1949. https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.33_GC-IVEN.pdf (accessed December 4, 2020) ICC Office of the Prosecutor Policy Paper on Sexual and Gender –Based Crimes (June, 2014). https://www.icc-cpi.int/iccdocs/otp/otp-policy-paper-on-sexual-and-gender-based-crimes%2D %2Djune-2014.pdf (accessed December 1, 2020) ICC Office of the Prosecutor Strategic Plan, June 2012-2015 (ICC-OTP 2013). https://iccforum. com/media/background/general/2013-10-11_ICC_OTP-Strategic_Plan_June_2012-2015.pdf (access January 31, 2021) allow for “greater flexibility in the interpretation of the Statute in accordance with customary international law”. If so then the ICC would be able to consider also grave acts of persecution that are not necessarily connected to genocide, other crimes against humanity and/or war crimes set out in the Rome Statute or connected to other crimes within the jurisdiction of the ICC. This would allow then that these other forms of persecution (not connected to crimes under ICC jurisdiction) would not go unpunished. (Pocar 2008, p. 363). Judge Fausto Pocar notes that Article 21(b) of the Rome Statute “. . .no doubt requires judges to consider customary international law, which lacks the requirement of a link with other crimes for persecution, when assessing individual criminal responsibility of accused persons.” (Pocar 2008, p. 364). To date this possibility has not impacted, to the current author’s knowledge, ICC practice in any particular case.

References

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International Committee of the Red Cross ‘Customary International Humanitarian Law’ Vol. 1 Rules (Henckaerts, JM and Doswald-Beck, L (Eds.), Cambridge University Press, 2005 IHL Practice relating to Rule 6 Civilians’ Loss of Protection from Attack: Situations of doubt as to the character of a person https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule6_ sectionc (accessed December 4, 2020) International Committee of the Red Cross 1987 Commentary on Fundamental Guarantees in Article 4 Protocol 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. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/475 (accessed December 4, 2020) International Committee of the Red Cross (2005) ‘Customary International Humanitarian Law’ Vol. 1 Rules (Henckaerts, JM and Doswald-Beck, L (Eds.), Cambridge: Cambridge University Press https://www.icrc.org/en/doc/assets/files/other/customary-international-humanitarian-lawi-icrc-eng.pdf (accessed December 4, 2020) Office of the High Commissioner for Human Rights (OHCHR) (2011) ‘Interpretation of Torture in light of the practice and jurisprudence of international bodies’ at p. 2 https://www.ohchr.org/ Documents/Issues/Torture/UNVFVT/Interpretation_torture_2011_EN.pdf (accessed December 3, 2020) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, entry into force February 12, 2002. https://www.ohchr.org/en/ professionalinterest/pages/opaccrc.aspx (accessed December 4, 2020) Optional Protocol to the CRC on the sale of children, child prostitution and child pornography, entered into force January 18, 2002. https://www.ohchr.org/en/professionalinterest/pages/ opsccrc.aspx (accessed December 5, 2020) Protocol 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. https://ihl-databases. icrc.org/applic/ihl/ihl.nsf/INTRO/475 (accessed December 4, 2020) Palermo Protocol: Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime Adopted and opened for signature, ratification and accession by General Assembly resolution 55/25 of 15 November 2000. https://www.ohchr.org/en/ professionalinterest/pages/protocoltraffickinginpersons.aspx (accessed December 26, 2020) Rome Statute of the International Criminal Court entered into force July 1, 2002. https://www.icccpi.int/resource-library/documents/rs-eng.pdf (accessed November 27, 2020 Rome Statute Elements of the Crime adopted 2010. https://www.icc-cpi.int/NR/rdonlyres/ 336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf (accessed November 22, 2020) The Paris Principles: Principles and Guidelines on Children Associated With Armed Forces or Armed Groups (February, 2007) UNICEF https://www.unicef.org/mali/media/1561/file/ ParisPrinciples.pdf (accessed December 5, 2020) UN Secretary-General, Report on the establishment of a Special Court for Sierra Leone (October 4, 2000). https://digitallibrary.un.org/record/424039?ln¼en (accessed December 5, 2020) UN Treaty Collection: Optional Protocol to the Convention on the Rights of the Child on the Involvement of children in Armed Conflict (Ratifications as of May 24, 2020). https:// treaties.un.org/Pages/ViewDetails.aspx?src¼IND&mtdsg_no¼IV-11-b&chapter¼4 (accessed December 5, 2020)

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Cases Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019 (Sentencing Judgment) Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of July 8, 2019 (Disposition on the Merits-Guilt or Innocence on the various charges) Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 OA5 (ICC Appeals Chamber) June 15, 2017 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 Ntaganda, Transcript ICC-01/04-02/06-T-10-Red-ENG, 13 February 2014, Pre-Trial Chamber II Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06-309, 9 June 2014, Pre-Trial Chamber II (accessed December 27, 2020) Prosecutor v Charles Ghankay Taylor Trial Chamber II (SCSL-03-01-T) (Special Court of Serra Leone) May 18, 2012

Chapter 7

Concluding Remarks: The Persecution of Children as a Distinct Rome Statute Prosecutable Crime Against Humanity

7.1

Introduction

The case is set out in this chapter that the more expansive definition of ‘persecution’ as a crime against humanity incorporated into the Rome Statute (compared to the Statutes of the ad hoc tribunals the ICTY and the ICTR and the Special Court of Sierra Leone)—in terms of the scope of the possible discriminatory grounds implicated—is to be preferred. This in that the opening up in the Rome Statute for consideration of further possible grounds underpinning persecution is more likely to result in justice also for the child victims of that particular grave crime. More specifically the Rome Statute definition of persecution, and the elements of the crime of persecution stipulated under that Statute, potentially allows, depending on the facts of the specific case, for (i) genocide, crimes against humanity or war crimes or any other crime under the jurisdiction of the ICC to be viewed, where relevant, also through an ‘age-based persecution’ lens and this in turn (ii) provides the opportunity to advance, in the proper case, charges for the aforementioned crimes in connection with a separate charge of ‘age-based persecution directed against children’. The targeting may be based (i) singularly on the victims being children or (ii) grounded on age intersecting with the children’s other perpetrator-targeted characteristics. In this chapter we focus on the definition and elements of the crime against humanity of persecution as set out in the Rome Statute and consider legal scholarly debates on that international atrocity crime.

© Springer Nature Switzerland AG 2021 S. C. Grover, The Persecution of Children as a Crime Against Humanity, https://doi.org/10.1007/978-3-030-75002-2_7

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Age as a Universally Recognized Impermissible Ground for the Severe Deprivation of Fundamental Rights: The Persecution of Children as a Crime Against Humanity

It has been argued in the current work that the ICC Office of the Prosecutor has not fully adopted a charging strategy that conforms to the Rome Statute admonition at Article 21(3) that “The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as . . .age” (Rome Statute entry into force July 1, 2002 Article 21). This contended shortcoming in more completely fulfilling the obligations set out in Rome Statute Article 21(3), on the respectful view here, results from the failure to advance certain separate charges in relation to the Rome Statute crime against humanity of persecution; namely ‘age-based persecution targeting children’ (either in respect of persecution targeting the child collective ‘as such’ or individual children based on their child group identity often as intersecting with other characteristics targeted by the perpetrator group). That persecution occurs in the context of a widespread and/or systematic attack on a civilian population and in connection with other crimes under ICC jurisdiction. In previous chapters here the failure of the ICTR, the ICTY and the SCSL, and not only the ICC, to advance separate charges regarding the persecution of children was also discussed in the context of various selected cases. The consequence is that, in practice, the ICC and the other aforementioned international criminal law judicial forums have not criminalized the crime against humanity1 committed by perpetrator armed groups or forces of persecuting children qua children. In each context discussed then the perpetrator’s severe deprivation of one or more of the children’s fundamental rights, as part of the widespread or systematic attack on a specific civilian population, and as inflicted upon an identifiable particular child collective, has therefore been met with impunity insofar as the ‘age-based persecution targeting children’ as a distinct international atrocity crime is concerned. It is important to recognize, in considering this failure of the ICC Prosecutor (and the Office of the Prosecutors of the ICTR and ICTY ad hoc tribunals as well as of the SCSL)2 to charge the international atrocity crime of persecution of the child collective based on age and intersecting attributes that this international atrocity crime involves discriminatory intent. Thus not only does age (often as it intersects with other characteristic such as ethnicity, religion, child soldier status etc.) define the

See Pérez-León Acevedo (2017) for a discussion of the view that “. . .serious human rights violations may be criminalized as crimes against humanity and, thus, are constitutive of crimes against humanity. [and that] In turn crimes against humanity constitute a very important manifestation of serious human rights violations in international criminal law.” (at p. 147). 2 For the ICTY, ICTR and SCSL; the conduct constituting age-based persecution of children would have to be charged, as previously explained, as an ‘other inhumane act’ given the absence of age as a possible discriminatory ground enumerated or unenumerated in the persecution provision of the respective statutes. 1

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contours of the targeted child group but it (age) also is the universally recognized impermissible ground of persecution on which the perpetrator focused his primary discriminatory intent. The discriminatory intent then represents a core element of the crime (i.e. see Rome Statute Elements of the Crime Element 3: “Such targeting was based on “. . .political, racial, national, ethnic, cultural, religious, gender. . .or other grounds that are universally recognized as impermissible under international law.”3 Note that in the Rome Statute persecution provision: The word “impermissible” refers to the prohibited grounds on which members of a group or collectivity are deprived of fundamental rights, not to the ground on the basis of which a group or collectivity can be identified.4

When children are targeted for persecution qua children; it is targeting based on the impermissible discriminatory ground of age. For example; the perpetrator may seek children as potential child soldier sex slaves based on factors such as their perceived vulnerability to manipulation and control or target children for all manner of especially gruesome atrocity international crimes for the impactful propaganda value this conduct provides in terrorizing a civilian population. Further Element two of the persecution provision of the Rome Statute states: “The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such”5 . . .the phrase could be interpreted to encompass the requirement that the perpetrator committed his acts against members of a group or collectivity that can be identified in terms of the grounds enumerated in Article 7(1)(h)”6 while recognizing that “Article 7(1)(h) does not contain an exhaustive enumeration. . .as this provision includes other grounds that are universally recognized as impermissible under international law.”7

The grounds under Rome Statute Elements of the Crimes Article 7(1) (h) (Persecution) Element 3 “ universally recognized as impermissible under international law” thus includes also age as the discriminatory basis for the targeting of a “person or persons by reason of the identity of a group or collectivity” or of a “group or collectivity as such.” The impermissibility of discrimination based on age in severely depriving children of fundamental rights is set out explicitly8 in numerous international human rights instruments as well as in IHL/CIL including but not limited to the following instruments and provisions therein:

3 Rome Statute Elements of the Crime: Persecution as a Crime Against Humanity Article 7(1) (h) Element 3. 4 Boot (2002) Chap. 3 Crimes Against Humanity at p. 519. 5 Rome Statute Elements of the Crime: Persecution as a Crime Against Humanity Article 7(1) (h) Element 2. 6 Boot (2002) Chap. 3 Crimes Against Humanity at p. 520. 7 Boot (2002) Chap. 3 Crimes Against Humanity at p. 521. 8 Other provisions and instruments may address children’s fundamental rights implicitly in their grant of certain of those fundamental rights to “everyone” or “every person”.

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Convention on the Rights of the Child (CRC) • Article 2 “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status (emphasis added).”9 International Covenant on Civil and Political Rights • Article 2 duplicates the CRC Article 210 • Article 24 “1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State (emphasis added).”11 International Covenant on Economic, Social and Cultural Rights • Article 10 “3) Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. . .(emphasis added).”12 • Article 13 “1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. . .(emphasis added).”13 International Labour Organization: Worst Forms of Child Labor Convention 182 (1999): • Article 3: “For the purposes of this Convention, the term the worst forms of child labour comprises: (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict;14 (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the 9

Convention on the Rights of the Child, entered into force September 2, 1990, Article 2. International Covenant on Civil and Political Rights, entry into force March 23, 1976, Article 2. 11 International Covenant on Civil and Political Rights, entry into force March 23, 1976, Article 24. 12 International Covenant on Economic, Social and Cultural Rights January 3, 1976, Article 10 https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx. 13 International Covenant on Civil and Political Rights, entry into force March 23, 1976, Article 13. 14 As applicable to all children (persons under eighteen). 10

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relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children (emphasis added).”15 Universal Declaration of Human Rights • Article 2 “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (emphasis added).16 • Article 25 (2) that “. . .motherhood and childhood are entitled to special care and assistance. All children whether born in or out of wedlock, shall enjoy the same social protection.”17 Protocol I Additional to the 1949 Geneva Conventions • Protection of Children: Article 77 “1. Children18 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. . . .”19 Protocol II Additional to the 1949 Geneva Conventions Humane Treatment Article 4 - Fundamental guarantees • Article 4 “3. Children20 shall be provided with the care and aid they require, and in particular: (a) They shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care; (b) All appropriate steps shall be taken to facilitate the reunion of families temporarily separated;

15

International Labour Organization Worst Forms of Child Labor Convention 182 (1999) Article 3. Universal Declaration of Human Rights proclaimed and adopted by the UN General Assembly 1948, Article 2. 17 Universal Declaration of Human Rights proclaimed and adopted by the UN General Assembly 1948, Article 25(2) https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf. 18 Child is here undefined in terms of age. 19 Protocol I Additional to the 12 August, 1949 Geneva Conventions and relating to the protection of victims of international armed conflicts June 8, 1977, Entry into force: 7 December 1978, Article 77 https://ihl-databases.icrc.org/ihl/INTRO/470. 20 Children here undefined in terms of age. 16

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(c) Children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities; (d) The special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured; (e) Measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being.”21 Despite the unique protected status of children under IHL and CIL, as well as under international human rights law based on their age and vulnerability; there has been a reluctance by the Prosecutor of the International Criminal Court as well as the Prosecutors of the ad hoc International Criminal Tribunals and the SCSL to advance separate charges relating to the discriminatory age-based persecution of children as a crime against humanity (i.e. bringing charges either under the persecution provision or under the other inhumane acts provision according to what the specific statute allowed). This failure to charge the persecution of children furthermore is the state of play in these international criminal court judicial contexts notwithstanding the abundant evidence of the discriminatory targeting of children and of the child collective for horrific atrocities that severely deprived the children of their most fundamental of rights i.e. to life, development, protection against torture, protection against enslavement including sexual slavery etc. It is to be emphasized in regards to the latter, as Juan Pablo Acevedo explains, . . .not necessarily every violation of ius cogens results in a configuration of an international crime. Therefore, not every violation of human rights norms, is automatically and/or mechanically an international crime, particularly a crime against humanity. To qualify as such, the respective objective and subjective legal elements constitutive of those crimes must be proven.22

The inclusion of age as an unlawful discriminatory basis for the severe deprivation of fundamental rights as (i) set out in Rome Statute Article 21(3) explicitly in reference to equality under the law and (ii) at Rome Statute Article 7(h) (the persecution provision); as a non-enumerated ground but included implicitly under the reference in that provision to universally recognized impermissible grounds of discrimination under international law) serves to preclude frivolous or otherwise inapplicable charges of the persecution of children (i.e. where the deprivation of 21

Protocol II Additional to the 12 August, 1949 Geneva Conventions and relating to the protection of victims of non-international armed conflicts June 8, 1977, entry into force: 7 December 1978, Article 4 (3) https://www.ohchr.org/en/professionalinterest/pages/protocolii.aspx. 22 Pérez-León Acevedo (2017), p. 148.

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fundamental rights was not severe but rather trifling23 and/or not motivated by discriminatory intent).24 Boot raises the question in regards to the persecution provision of the Rome Statute set out at Article 7(1)(h) of whether “states excluded. . .grounds concerning age.”25 He poses this question perhaps since “It was proposed to include these grounds [mental or physical disability, economic grounds and grounds concerning age] explicitly in the April 1998 draft [of the Rome Statute], but they are not mentioned in the Rome Statute” (portions in brackets added for clarity of reference).26 The current author’s contention is that these grounds were not intended to be excluded in that the phrase prohibiting targeting of persons on “other grounds that are universally recognized as impermissible under international law” is not restrictive in respect of the ground of age considering that age as a prohibited ground of persecution is well established in IHL/CIL (i.e. Protocol II Article 4(3) of the 1949 Geneva Conventions and other customary international law and in international human rights law). The negotiators may have been reluctant to list and highlight age specifically as an enumerated prohibited ground of discrimination given, for instance, that so many States have not adequately protected children from various severe deprivations of fundamental rights relating to age such as the use of child soldier/sex slaves by armed forces or armed groups. Further even older children have been deprived, for instance, of any political rights of substance such as voting in innumerable States. The latter is relevant as crimes against humanity such as persecution can occur in times of armed conflict or peace. A compromise, it is here contended, was reached by the negotiators drafting the Rome Statute. That compromise was one wherein it would be possible, for instance, to advance the ground of age as an unenumerated universally recognized impermissible other ground of discrimination leading to a severe deprivation of children’s fundamental rights in connection with a widespread or systematic attack on a civilian population (Article 7(1)(h) Element 3 provides that the targeting for persecution could also have been based, aside from on the enumerated grounds; on “other grounds that are universally recognized as impermissible under international law).”27

23

For instance an element of the crime against humanity of persecution in the Rome Statute is that it must have a nexus to enumerated Rome Statute crimes or other crimes under the jurisdiction of the Court of comparable gravity (persecution being considered a very grave crime under international criminal law). 24 It is here suggested that Elements 2 and 3 of Rome Statute 7(1)(h) concerning targeting as an aspect of persecution as a crime against humanity and resulting in the victims being severely deprived of one or more fundamental rights, are satisfied even where, in the minds of the perpetrators, the discrimination was in the child’s best interest i.e. as ISIL perpetrators likely held was the forced religious conversion it imposed on children abducted to be ISIL child soldier/sex slaves. 25 Boot (2002), pp. 521–522. 26 Boot (2002), p. 522. 27 Rome Statute Elements of the Crimes Article 7(1)(h).

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Persecution, in order to be charged under the Rome Statute, would have to occur in connection with other Rome Statute atrocity crimes rising, on the facts of the particular case, to the level of gravity of persecution as a crime against humanity. The ad hoc tribunals, as discussed, did not have this nexus element in the crime of persecution to contend with as the statutes conceived of persecution also related to criminal conduct under CIL not necessarily enumerated in their respective statutes. Boot maintains that the Rome Statute nexus approach was adopted to prevent nullum crimen sine—“which prohibits extending the definition of crimes by analogy.”28 The connection element of the Rome Statute crime of persecution also ensures that the persecution charged is linked to “inhumane acts.”29 It is here contended that persecution through the use of children as child soldier/ sex slaves and forced religious conversion and indoctrination of the children into a worldview where atrocity is expected and condoned is perpetrator conduct constituting inhumane treatment. It is noteworthy that Article 4(3) of Protocol II Additional to the 1949 Geneva Conventions (considered CIL) mentions as part of the “humane treatment” of children during armed conflict; the protection of children from various specific threats to their well-being during armed conflict: child soldiering (which factually most often also includes sexual slavery mostly for girl child soldiers); protection from perpetrator forced religious and other indoctrination and from the harms of war (the latter through evacuation of children to safer parts of the country, ensuring, to the extent feasible, that children are not separated from parents unnecessarily and reunited as soon as possible if separation was unavoidable based on the best interests of the child etc.). Where such protection does not occur and children are persecuted through these means; there is then, at a minimum, a nexus of the persecution to the Rome Statute crimes against humanity of “other inhumane acts” (Article 7(1)(k)),30 sexual slavery (Article 7(1)(g)-2), rape Article 7(1)(g)-1, and severe deprivation of liberty (Article 7(1)(e )) as well as to other Rome Statute crimes where the evidence exists i.e. relating to the use of child soldiers under age fifteen as a war crime. Boot suggests that not enumerating age in the Rome Statute Article 7(1)(h) on persecution as a crime against humanity (as well as omitting from the explicit list a number of other grounds for discriminatory intent such as a social status ground, colour, mental or physical disability, birth status etc.) sets a “higher threshold” for proving such a ground as universally recognized as impermissible under

28

Boot (2002), p. 524. See Boot (2002), p. 524. 30 Note the following useful definition of ‘inhumane acts’ as crimes against humanity as constituted of “serious violations of international customary law and the basic rights pertaining to human beings, drawn from the norms of international human rights law, which are of a similar nature and gravity to the acts referred to in article 7(1) of the Statute.” This definition, the ICC Pre-Trial Chamber in Prosecutor v Katanga and Ngudjolo Chui held, was consistent with the requirements of Rome Statute “Article 7(1)(k) and, nullum crimen sine lege pursuant to article 22 of the Statute”. (see ICC case Prosecutor v Katanga and Ngudjolo Chui, ICC-01/04-01/07-717, Decision on the confirmation of charges, Pre-trial Chamber, September 30, 2008, para 448. 29

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international law and as the basis for discrimination rising to the level of persecution under Rome Statute Article 7(1)(h).31 Insofar as the impermissible ground of age is concerned; it is here argued, however, that we cannot infer that the reluctance of international criminal court or tribunal prosecutors currently to advance a separate charge in relation to the ‘age-based persecution of children as a crime against humanity’ is any indication that there would in fact be a higher threshold to meet in proving age as an impermissible discriminatory ground under Article 7(1)(h) of the Rome Statute. This in that the fundamental rights and freedoms of children have been widely accepted, in principle at least, by almost all of the States of the UN General Assembly as evidenced by the ratification of the Convention on the Rights of the Child by 196 States Parties with one State, the United States being only a signatory.32 Thus there has been much progress towards universal recognition of children’s fundamental rights since 2002 when Boot completed his dissertation. It is time, it is here argued, that the international criminal law prosecutorial strategy got caught up to the implications of this almost universal ratification of the Convention on the Rights of the Child in regards to advancing persecution of children charges where supported by the evidence and the international law. The current author thus, with respect, cannot agree-at least in regards to the universally recognized impermissible ground of age specifically as relevant to the targeting of children for persecution (the severe deprivation of one or more of their fundamental rights)— with Boot’s suggestion that: It might in fact be wise for the Court to be better safe than sorry, and be cautious in determining the commission of serious infringements of fundamental human rights on other grounds than the ones explicitly mentioned in the Statute. A decision concerning discrimination that is not well received by states may be counterproductive for the further development of international human rights.33

In regards to the recognition of children’s fundamental human rights IHL/CIL and, in contemporary times, the Convention on the Rights of the Child set out an almost universally agreed upon set of universal rights of the child.34 Thus the ICC will likely not be embroiled “into the debate on the universality of human rights”35 when it comes to age-based such rights specifically as applies to children in the context of considering persecution of children charges under Article 7(1)(h) of the Rome Statute (persecution as a crime against humanity targeting persons on the universally recognized impermissible ground of age). 31

Boot (2002), p. 522. United Nations Office of Human Rights, Status of Ratification of the Convention on the Rights of the Child as of December 9, 2020 https://indicators.ohchr.org/. 33 Boot (2002), p. 522. 34 It is to be noted further that emerging norms (with a growing number of states in consensus) in respect of better protecting children’s fundamental rights are developing in relation to the rights articulated in the optional protocols to the Convention on the Rights of the Child. 35 “The determination of grounds universally recognized as impermissible under international law” will require the court to enter into the debate on the universality of human rights.” (Boot 2002, p. 522). 32

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Article 21(3) of the Rome Statute, on the view here, specifically enumerates age as one of the grounds of deprivation of fundamental rights recognized as prohibited under internationally recognized human rights law. This in that Article 21 enumerates the prohibited grounds36—including age—relevant to interpreting and applying the Rome Statute if it is to be applied equitably and consistent with internationally recognized human rights law.37 Hence since age is a prohibited ground in the deprivation of equality under international law (i.e. the Rome Statute) it is, on the view here, a prohibited ground in respect of all fundamental human rights entitlements protected by universally recognized international law. Thus Article 21, by implication, stipulates that the Rome Statute allows, among other things, for accountability for international atrocity crimes within ICC jurisdiction that involve discriminatory targeting based on age and/or on other Article 21 enumerated status or other status not enumerated. Were this not the case then there would have been no need for age to factor in as a prohibited discriminatory enumerated ground as set out in Rome Statute Article 21 in (i) interpreting and applying the law relevant to the Rome Statute and in (ii) interpreting and applying the Rome Statute, its Elements of Crimes and its Rules of Procedure and Evidence (i.e. the law cannot be applied with adverse distinction based on age or age intersecting with other discriminatory grounds).38 Therefore it is here respectfully argued that (i) the age-based persecution of children based on their group identity (their membership in a particular distinct child collective) or (ii) the age-based persecution of a particular child collective ‘as such’ (where persecution is defined as “. . .the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”39) is criminalized under the Rome Statute. To recap then Rome Statute Article 21(3) requires that: “The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as . . .age. . .or any other status (emphasis added)”.40 On the view here then Rome Statute Article 21 requires that age (which is explicitly enumerated at Article 21(3) as a prohibited ground of adverse distinction in applying the law in the context of an ICC case) must be ‘read into’ the Rome Statute Elements of the

36

Article 21(3) of the Rome Statute also includes an open ended term that bars discrimination based on any status in applying the law relevant to the Rome Statute. 37 Applicable Law “The law to be used in order of priority in interpreting and applying the law in ICC cases is set out at Article 21 of the Rome Statute as follows: (1) “The Statute, Elements of the Crimes and the [ICC] Rules of Procedure and Evidence”; (2) . . .where appropriate applicable treaties and the principles and rules of international law including the established principles of the international law of armed conflict;”(3) Failing that general principles of law derived by the Court from national laws of legal systems of the world . . .provided that those principles are not inconsistent with the Statute and with international law and internationally recognized norms and standards.” (Rome Statute Article 21(a-c). 38 Rome Statute Article 21. 39 Rome Statute Article 7(2)(g) definition of persecution as a crime against humanity. 40 Rome Statute Article 21(3).

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Crime for ‘persecution as a crime against humanity’ at element 3 of that crime (as set out at Article 7(1)(h); Rome Statute Elements of the Crimes). Thus, in interpreting Rome Statute Article 7(1)(h) element 3 of the crime against humanity of persecution as to what are the prohibited grounds of targeting referred to in the phrase “such targeting was based on. . .other grounds that are universally recognized as impermissible under international law”;41 age must be considered as one of those “other grounds.” This in order to be consistent with (i) the requirements of Rome Statute Article 21(1)(3) and (ii) the aforementioned internationally recognized and widely, if not universally ratified, human rights instruments as well as those of IHL/CIL law in which certain provisions address the protection of children. Certain provisions of IHL/CIL, as previously discussed in detail, refer to special protections for children and hence substantiate that age is, under international law, a universally recognized impermissible ground for perpetrator targeting, especially of children, for international atrocity crimes including persecution. Nevertheless we have the situation we sadly have currently where age-based persecution of children as a crime against humanity42 is not acknowledged or charged separately by the ICC Office of the Prosecutor. As a result, respectfully, on the view here, justice is in significant part out of reach for the child victims in respect of that grave international atrocity crime due, in practice at least, to an adverse distinction, based on age, in interpreting and applying the law relevant to Rome Statute Article 7(1)(h) (re persecution). That adverse distinction is manifest in the failure to charge persecution of children as crime against humanity notwithstanding the evidence and law in support of the charge in the particular ICC case.43 What is required where the evidence warrants, it is here contended, with respect, is for the ICC Office of the Prosecutor and that of other international criminal law mechanisms44 to have the determination and courage to advance this novel (insofar

41

Rome Statute Article 7(1)(h) Element 3. Persecution here referring to targeting of the child collective ‘as such’ or of children based on their group identity as members of the child collective and possessing also other intersecting perpetratortargeted characteristics. 43 The current author thus respectfully but vigorously disagrees with M Boot’s view that the Article 21(3) prohibited grounds in applying and interpreting the law “are irrelevant in determining the criminality of persecutory conduct.” This in that while she agrees that “For the purpose of establishing persecution the Court must apply Article 7 of its Statute which enumerates certain grounds and includes unenumerated other grounds that are “universally recognized as impermissible” under international law; Rome Statute Article 21(3) provides guidance as to the proper interpretation of the phrase “other grounds universally recognized as impermissible” under international law. That guidance and the specific wording of Rome Statute Article 21(3)—which enumerates age as a prohibited ground of adverse distinction in the application and interpretation of the law—in fact allows for age as one of those other universally recognized impermissible grounds of adverse distinction referenced in Rome Statute 7(1)(h) dealing with the crime against humanity of persecution. (See Boot 2002, p. 523). 44 That is where the relevant statutes of these other international criminal law mechanisms have incorporated a Rome Statute type definition and elements of the crime relating to persecution as a crime against humanity. 42

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as case precedent is concerned), but long overdue, separate charge of ‘age-based persecution as a crime against humanity targeting the children of a particular child collective on account of their group identity (including intersecting characteristics) and/or targeting a distinct child collective as such’. Doing so would be consistent with an international law regime with respect to IHL/CIL and international human rights law, universally recognized, in principle at least, as according children protection as children, at a minimum, from the severe deprivation of fundamental rights where the elements of the Rome Statute crime of persecution as a crime against humanity have been met. As Acevedo notes “serious human rights violations may be and have been criminalized as crimes against humanity and, therefore, are constitutive of this category of international crimes (emphasis added).”45 In order to rise to the level of crimes against humanity these human rights violations must be widespread ad/or systematic46 and involve violations of “ius cogens norms and/or similar international customary rules or principles.”47 There is no legally supportable rationale under international criminal law (i.e. the Rome Statute) for failing to separately prosecute severe human rights violations involving the persecution of children (i) in the circumstance where all the elements of the Rome Statute crime against humanity of persecution are satisfied and the perpetrator conduct occurred in connection with other grave Rome Statute crimes or those under the jurisdiction of the Court and where (ii) the failure to prosecute reflects an adverse distinction based on age in the interpretation and application of the Rome Statute. Yet, as has been discussed in this work, this has been the situation as reflected in in ICC case law to date insofar as persecution as a crime against humanity targeting children qua children is concerned (that is in regards to the targeting with discriminatory intent of children based on their group identity as members of a particular discrete child collective or the targeting of that particular distinct child collective ‘as such’). Even where the ICC acknowledges the certain universally recognized non-derogable human rights entitlements of children as set down in international law,48 the Court has yet not been in the position of holding perpetrators to account for the age-based persecution of children as a crime against humanity due to the severe deprivation of one or more of these fundamental rights owed to children. It is long time now then, it 45

Pérez-León Acevedo (2017), p. 184. Pérez-León Acevedo (2017), p. 154. 47 Pérez-León Acevedo (2017), p. 153. 48 For instance in Lubanga the ICC made reference to children’s universal right when under age fifteen to be protected from being recruited into armed groups or forces as set out at Article 38(3) of the International Convention on the Rights of the Child and at Article 77(2) of Protocol I to the 1949 Geneva Conventions as well as Article 4(3)(c) of Protocol II to the 1949 Geneva Conventions. The Court made clear then that the Rome Statute war crimes prohibitions of the same were in intent and wording based on the aforementioned widely accepted international law instruments (Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v Thomas Lubanga Dyilo The Appeals Chamber ICC (December 1, 2014) No. ICC -01/04-01/06 A5). Yet age-based persecution of the children through recruitment and use of child soldiers under fifteen for active participation in the hostilities (a war crime) and sexual violence perpetrated against the children (the female child soldiers) was not charged notwithstanding the aforemenioned IHRL and IHL/CIL. 46

References

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is here contended, that the Office of the ICC Prosecutor fulfill its promise to take action to charge, where the evidence and law demands it, the full scope of international atrocity crimes specifically directed against children49 and that the prosecutors of other international criminal law mechanisms follow suit. This then will require also charging separately, on the merits, the crime against humanity of the age-based persecution of children involving perpetrator targeting of individual children due in part to their group identity as part of a distinct specific child collective or the targeting of the particular child collective in question ‘as such’. The ICC Trial Chamber in Ntaganda commented as follows on the gravity of the international crime of persecution as set out at Rome Statute Article 7(1)(h): The prohibition of persecution as laid down in Article 7(1)(h) of the Statute is intended to protect the right of all individuals not to be discriminated against on the basis of political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law. In the view of the Chamber, persecution therefore constitutes, in and of itself, one of the most serious crimes against humanity, as it amounts to a denial of fundamental rights of one or more persons by virtue of their belonging to a particular group or collectivity (emphasis added).50

It is especially imperative that as children are so often targeted qua children for the gravest of international atrocity crimes in an effort to do maximal damage to a particular civilian population that these child victims’ fundamental rights be more fully vindicated. This through, in part, as has been argued in this work, where the evidence warrants, prosecution of perpetrators for age-based persecution as a crime against humanity targeting children.

References Literature Boot M (2002) Nullum Crimen Sine Lege and the subject matter of the International Criminal Court: genocide, crimes against humanity, war crimes. Intersentia. Doctoral Dissertation, Faculty of Law, Tilburg University Pérez-León Acevedo JP (2017) The close relationship between serious human rights violations and crimes against humanity: international criminalization of serious abuses. Anuario Mexicano de Derecho International 17:145–186. Available for download at https://www.sciencedirect.com/ journal/anuario-mexicano-de-derecho-internacional/vol/17/suppl/C

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International Criminal Court, Office of the Prosecutor Policy on Children November, 2016 https:// www.icc-cpi.int/iccdocs/otp/20161115_OTP_ICC_Policy-on-Children_Eng.PDF. 50 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019 (Sentencing Judgment) para 175 at p. 76.

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Cases Prosecutor v Katanga and Ngudjolo Chui, ICC-01/04-01/07-717, Decision on the confirmation of charges, Pre-trial Chamber, September 30, 2008. https://www.icc-cpi.int/CourtRecords/ CR2008_05172.PDF (accessed December 10, 2020 Situation in the Democratic Republic of Congo in the Case of Prosecutor v Bosco Ntaganda No. ICC -01/04-02/06 (ICC Trial Chamber VI) judgment of November 7, 2019 (Sentencing Judgment) Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v Thomas Lubanga Dyilo The Appeals Chamber ICC (December 1, 2014) No. ICC -01/04-01/06 A5