Monthly Archives: October 2013

fey‘[T]here seems to be agreement that the shape of a deal will require some form of conditional pardon or suspended sentence for the rank and file, many of whom were recruited as child soldiers.’

– Transitional justice expert Naomi Roht-Arriaza, Professor of Law at the University of California Hastings College of the Law in San Francisco, in an IntLawGrrls post entitled “Colombian peace talks advance, but raise difficult justice issues.” Naomi recaps her own presentation last week to judges in Colombia, “on how comparative experiences can help inform the difficult choices the country will need to make in order to finalize a peace deal with the armed insurgents (FARC and ELN) and bring an end to over 50 years of armed conflict.” She then proceeds to discuss initiatives like the prosecutions under the Justice and Peace Law (sentencing in one expected tomorrow), and further to survey issues on the table as the country tries to bring insurgency to an end. (credit for photo (c) Women’s Commission for Refugee Women and Children, courtesy of Watchlist)

Blanket amnesty is not likely on the table despite talk of “conditional pardon,” Naomi reports. This is in part because Colombian negotiators understand that this would not be looked on with favor by two crucial international bodies: the Inter-American Court of Human Rights, to which Colombia belongs by dint of its 1973 ratification of the 1969 American Convention on Human Rights, and the International Criminal Court, which in 2004 launched a preliminary investigation into actions on the territory of Colombia, an ICC state party.

Naomi’s implication that ICC monitoring since 2004 is shaping the form of eventual peace bears note. So too her indication that grappling with the past recruitment of children in Colombia – a phenomenon explored here and here – poses questions not unlike those voiced in my post yesterday.

monitoring_and_reportingMuch to ponder following “Accounting for Children Affected by Armed Conflicts,” a dialogue in which I was honored to take part on Friday, as part of International Law Weekend-NYC, the 92d annual meeting of the American Branch of the International Law Association.

Joining me on the panel were Mark A. Drumbl, Washington & Lee University Law Professor, and Jo Becker, Advocacy Director of the Children’s Rights Division for Human Rights Watch. (Both are authors of books published in 2012: Mark, Reimagining Child Soldiers in International Law & Policy, which I reviewed here, and Jo, Campaigning for Justice: Human Rights Advocacy in Practice.) Our able moderator was Jonathan Todres, the children’s rights expert who chairs the Section on Children and the Law of the Association of American Law Schools.

Before an audience of academics, practitioners, and students, we four explored a range of issues related to children in and affected by armed conflict. We began with questions related to child soldiering:

► Why do some treaties, like the 4th Geneva Convention and the Rome Statute, outlaw recruiting of children under 15? Why do others, most notably the 2000 Optional Protocol to the Children’s Rights Convention, set the age at 18? And what are the implications of setting either as the threshold age?

► How does the presence of children in the ranks affect armed forces – not only discipline and professionalism within such units, but also the rules of engagement for adult units that find themselves confronting children in combat?

► How ought children affected by armed conflict be reintegrated into their societies? How can laws and transitional justice programs take into account the youth and vulnerability, as well as the age and agency, of children?

► To what extent can international efforts change norms respecting children in armed conflict? And to what extent can newly established norms be implemented on the ground?

As might be expected, international criminal law was considered; in particular, child soldiering convictions in cases like Lubanga at the International Criminal Court (my casenote here), and Taylor at the Special Court for Sierra Leone. Also looked at were noncriminal mechanisms for prevention, protection, and accountability; for example, the processes of monitoring and reporting, and naming and shaming, developed by the U.N. Security Council and administered by the Special Representative to the Secretary-General for Children in Armed Conflict, Leila Zerrougui. (Her annual report, which she presented before the U.N. General Assembly on October 17, is here.)

Those processes concentrate on 6 “grave violations” against children. One of the 6 – attacks on schools – is notable given the panel’s discussion of threats to education in times of armed conflict. Becker spoke of efforts to document military use of schools and to put an end to such use by urging armed forces to endorse guidelines banning the practice. Such a ban is needed, she said: such use endangers children and teachers not just by militarizing educations, but also by transforming the school buildings into legitimate military targets. (credit for © 2006 UN Photo/Eskinder Debebe, published by the Global Coalition to Protect Education from Attack, with the caption “Coats of students hang on the wall of a partially destroyed school in Kabul, where children attend as part of the ‘Back to School’ campaign launched by the Afghan government with UNICEF’s support to bring 1.7 million students back to school.”)

Ensuring safe and peaceable education could do much to improve the well-being of girls and boys – not to mention the societies that they one day will lead.

‘On Saturday, along the road between Goma and Kibumba, soldiers brought up two young men, both defectors from M23. One, who claimed to be 20, looked 16.
‘ “You are good boys. You have made a good decision to come,” General Bahuma told them as they stared on, sullen. “You should fight for your country.”’

gomaThus reported Nicholas Kulish toward the end of today’s front-page New York Times story, “A Reason for Hope in Congo’s Perpetual War.” The story told of apparent progress in efforts to quell years-old rebellion in the eastern portion of the Democratic Republic of the Congo – efforts including strengthened U.N. peacekeeping and increased disciplining of Congolese army troops. (map credit) The targeted rebels belong to M23, the armed group formed last year by mutineers from among the national army’s ranks.

M23 is alleged to recruit child soldiers. (Indeed, its onetime leader, Bosco Ntaganda, who surrendered to the International Criminal Court several months ago, faces trial on that very charge, relating to activities several years earlier.) The Democratic Republic of the Congo is a state party to the 2000 Optional Protocol pledging to outlaw recruitment under age 18, and has signed a U.N. action plan to end recruitment and use of children. President Barack Obama recently determined that the country was eligible for a waiver of aid restrictions applicable under the U.S. Child Soldiers Prevention Act of 2008.

With regard to the rebels, Kulish wrote, referring to an October 3 announcement by the State Department:

‘The United States cut off military aid to Rwanda this month over its alleged support for M23, which is believed to use child soldiers and depend heavily on Rwanda for supplies.’

That observation invites a rereading of the article’s 1st-quoted statement, that one of the “defectors … looked 16”: reportedly welcoming him back to combat was a general of the Congolese national army.

watchlistWatch List on Children in Armed Conflict welcomes applications for the position of Advocacy Officer.

Founded a dozen years ago, the New York-based nongovernmental organization that works on behalf of children in and affected by armed conflict through monitoring and reporting, through support of local groups, and through offering policy advice to U.N. entities working on the subject. It keeps track of developments in a dozen countries, from A (Afghanistan) to U (Uganda), and is the producer of the award-nominated smartphone app (icon below). The NGO’s publications include monthly updates on the issue as it plays out at the Security Council and elsewhere in the United Nations.

The new Advocacy Officer will be expected to promote these goals via a range of activities and duties. The successful applicant will have at least a master’s degree and 5 years’ work experience in relevant areas.children-in-armed-conflict-180

Applicant requirements and application details regarding this full-time position here.

Le Monde online debuts a novel feature today: articles en anglais. Prompting the presence of some English-language items is the Paris daily’s exposé of the degree to which the United States’ National Security Agency has been monitoring, well, everybody – including citizens of France.

patateNSA: un système géant d’espionnage mondial,” declares the banner headline. Beneath it are several sidebar articles, including, in a welcome mat from readers across the Channel and across the Pond, many with English titles and text. Examples: “Inside the NSA’s web of surveillance” and “France in the crosshair: Wanadoo and Alcatel targeted.”

There is much anger reported at these revelations. A leader of the National Assembly admitted that the fact that the NSA is surveilling France is not surprising. But he continued (my translation):

‘[T]he real discovery in this affair is the extent and the systematic nature of these wiretaps. These practices … damage considerably the image of this great democratic nation and question its conception of the world and of fundamental liberties.’

Despite that dark apparent reference to the United States’ global stature, a few cartoonists have approached the news with humor, telling the story “en patates.” The video published by Le Monde recounts the experiences of the “Lafrite” family  – the mother who works for Alcatel, the son who uses social media to keep in touch with a buddy in Turkey, and the father who stays clear of electronics (except to watch webcasts of “Game of Thrones”) – not to mention the sunglass-sporting NSA agent (above) who watches them. The video ends with President-Hollande-as-potato, peering at his own presumably compromised computer.

Comment la NSA vous surveille (expliqué en patates)” is here; Francophones, enjoy.

US_$2_obverse-highNext time someone says that international criminal justice is “just too expensive,” that the international criminal courts at work since 1993 “do too little,” here’s an answer: The United States just did nothing for 16 days, at a cost of $24 billion. That’s about 7 times more than the international community spent on international criminal justice in the last decade and a half.

The total cost of the war crimes tribunals” was “roughly $3.43 billion from 1993 to 2009,” wrote former U.S. Ambassador David Scheffer in his 2012 memoir, All the Missing Souls: A Personal History of the War Crimes Tribunals. Scheffer proceeded to put the figure in perspective, writing at page 28 that this amount

‘fell below the program costs of two Stealth bombers and equaled the two-week budget of American military operations in Iraq. Expenditures for two flights of the Space Shuttle, or about 17 percent of the cash bonuses paid out by Wall Street firms in 2008, could cover the entire international budget of the war crimes tribunals during this sixteen-year period.’

I quoted him around pages 9-14 of “A Janus Look at International Criminal Justice,” published this year in the Northwestern Journal of International Human Rights, and further estimated that the total annual budget for international criminal justice is in the neighborhood of half a billion dollars. (Because of different accounting methods and other reasons, a precise number is hard to pin down.) A report by Fordham Law’s Leitner Center added more comparisons. At page 77, the report projected that the 22-year cost of international criminal justice, from 1993 through 2015, would be $6.28 billion. It then likened this amount to a host of other expenditures – including the $15 billion spent on the 2012 London Summer Olympics.

But the Olympians did something – a lot, in fact, over the better part of 3 weeks. And their games still came in at half what the United States squandered in 16 days of doing nothing.

p5Rather muted in the U.S. press is France’s recent call for “self-restraint” on its part and that of its veto-friendly partners in the P-5.

The P-5, of course, are the 5 countries with permanent membership on the U.N. Security Council. By U.N. Charter mandate, each of the 5 enjoys the right to veto a resolution authorizing intervention – even if the rest of the 15-member Council finds harm to international peace and security. As has been evident in the 2-plus years of Syria’s civil war, by exercising its veto a P-5 member can leave a matter run its course without international intervention no matter what the casualty count.

France has suggested a way out of this predicament. As stated in an op-ed that Foreign Minister Laurent Fabius published October 4 in Le Monde, in French, and in the International Herald-Tribune, in English, here’s the idea:

‘[T]he five permanent members of the Security Council – China, France, Russia, Britain and the United States – themselves could voluntarily regulate their right to exercise their veto. The Charter would not be amended and the change would be implemented through a mutual commitment from the permanent members. In concrete terms, if the Security Council were required to make a decision with regard to a mass crime, the permanent members would agree to suspend their right to veto.’

How to determine when the commitment is in play? It’s “simple,” Fabius wrote:

‘[A]t the request of at least 50 member states, the United Nations secretary general would be called upon to determine the nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply.’

Fabius recognized “that objections of all kinds can be made,” and sought to deflect some of them with this caveat:

‘[T]his code would exclude cases where the vital national interests of a permanent member of the Council were at stake.’

It is not a new idea. As pointed out in an October 3 lecture at Georgia Law by Lee A. Feinstein, the former U.S. Ambassador to Poland who’s teaching here this semester, a similar idea appeared as Principle 3(D) of The Responsibility to Protect, the 2001 Report of the Independent Commission on Intervention and State Sovereignty, which launched the responsibility to protect concept.

What is new is that the show of support comes from a P-5 state itself. Yet it must be mentioned that France has vetoed far fewer times than most of its peers on the P-5. And those peers likely will be far less enamored of France’s idea, as Mark Goldberg posted at UN Dispatch.

What could draw those peers toward France’s idea? Perhaps an understanding that a P-5 member’s “vital national interests” are “at stake” whenever a resolution implicates the member’s client state. But then adoption would be hollow, for such a proviso would sap the proposal of its strength.

(credit for September 2013 U.N. photo by Mark Garten of, from left, British Foreign Secretary William Hague, French Foreign Minister Laurent Fabius, Russian Foreign Minister Sergey Lavrov, U.N. Secretary-General Ban Ki-moon, U.S. Secretary of State John Kerry, and Chinese Foreign Minister Wang Yi)