ABSTRACT
The chapter focuses on Article II(e) of the United Nations’ Genocide Convention (UNGC) – the prohibition of forcibly transferring children of a group to another group – the most neglected aspect of the UNGC. I argue that Article II(e) is founded on a mixed victim-centred deontological and consequential ethical reasoning and thus diverges from Articles II(a–d) and the UNGC as a whole as it concerns a sub-group of the protected group. In this, Article II(e) recognizes the special vulnerabilities of children, and the transfer’s impact on the group’s continuity. This position is commensurable with the widespread recognition of the special protected status of children in municipal and international law at least since the late nineteenth century. Furthermore, Raphael Lemkin’s autobiography and legal writings unfold his soft spot for children and their critical contribution to the group’s continuity. These render children as a protected group in and of itself, irrespective of their other affiliation.
This chapter presents hypothetical application of the UNGC to historical forcible child transfers to draw attention to the diverse yet highly similar patterns (colonial genocide in North America and Australia, Jewish-Yemeni immigrants in Israel, Republican children in Franco’s Spain, and Operation Peter Pan in Cuba). Applying the criteria for protected groups used by the Akayesu Chamber, children, as such, can indeed be considered a protected group by the UNGC. While the Akayesu Chamber was inclined to expand somewhat the types of protected groups, subsequent case law did not further it.
Therefore, I argue for the need to add an Amending Protocol to the Genocide Convention to protect from forcible transfer of children of any identifiable group of persons perpetrated with the intent to destroy the group as such. This provision together with Communications and Rapid Inquiry Procedures will highlight the gravity of this heinous crime, including cases of forcible recruitment of child soldiers by non-state or state actors perpetrating genocide and mass atrocities as genocidal forcible child transfer (e.g. Lubanga). By highlighting the gravity of the crime, this amendment and mechanism will hopefully contribute to the prevention and punishment of genocide.
