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fatouTwelve years ago today, a treaty aimed at removing anyone under 18 from combat entered into force – a milestone marked annually as Red Hand Day, also known as the International Day against the Use of Child Soldiers. A significant commemoration has been taking place all this week at The Hague, where International Criminal Court Prosecutor Fatou Bensouda and her staff have sought confirmation of child-soldiering charges brought against Bosco Ntaganda, the Congolese ex-militia leader who surrendered 11 months ago, after years as an ICC fugitive. (credit for photo, from video clip of Bensouda delivering opening statement at Monday’s session)

Ntaganda had been charged back in 2006 along with a colleague: Thomas Lubanga, the former leader whose trial led to the 1st ICC verdict, a 2012 conviction for the crimes of conscripting and enlisting children under 15 and of using them to take active part in hostilities in a non-international armed conflict, the 2002-2003 civil war in Ituri, a region in the eastern part of the Democratic Republic of the Congo. An ICC Trial Chamber ruled that the conduct occurred in violation of Article 8(2)(e)(vii) of the 1998 Rome Statute of the ICC.

At this week’s confirmation hearing, ICC Pre-Trial Chamber II – composed of Presiding Judge Ekaterina Trendafilova and Judges Hans-Peter Kaul and Cuno Tarfusser – has been considering the same charges against Ntaganda. The Prosecutor’s January 2014 submission to the chamber thus states (p. 5 ¶ 4):

‘… Bosco NTAGANDA is charged with the war crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities within the region of Ituri during the entire period of the charges.’

Most notably, prosecutors have lodged additional charges, charges not presented in Lubanga, of crimes committed against children while they were in Ntaganda’s militia. (An NGO statement on this development is here.) The same paragraph of the Prosecutor’s submission thus concludes:

‘He is also charged with rape and sexual slavery of child soldiers within his own group during this same geographic and temporal scope.’

The charges point toward a broader presentation of the ways that children are affected by armed conflict (an approach I discussed in this newly published article, “Children and the First Verdict of the International Criminal Court”; note that although I am honored to serve as the ICC Prosecutor’s Special Adviser on Children in and affected by Armed Conflict, I contribute this and all blog posts in my personal capacity).

The week-long confirmation hearing in Ntaganda is set to conclude tomorrow. Further information, including links to documents and webstreaming, available here.

‘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.

contemplation of justiceHere, in a nutshell, are the marriage equality rulings issued just now by the U.S. Supreme Court, with links to the actual judgments:

Judgment in United States v. Windsor: By a 5-4 vote, the Court held that equal protection and due process guarantees inherent in the Due Process Clause of the 5th Amendment to the Constitution forbid the federal government to privilege one class of married people over another, as the Defense of Marriage Act had required. The Act is thus unconstitutional as applied to same-sex couples married in states permitting such marriages. (Prior post.) Quote from opinion for the Court by Justice Anthony M. Kennedy (pp. 25-26):

‘DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.’

Judgment in Hollingsworth v. Perry: By another 5-4 vote, the Court held that petitioners, private parties opposed to same-sex marriage who stepped in when the State of California would not, did not have standing. The petitioners had appealed a federal district court ruling that invalidated Proposition 8, the state constitutional provision banning gay marriage. Quote from opinion for the Court by Chief Justice John G. Roberts, Jr. (p. 17, citations omitted):

‘The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal,particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers.“Refusing to entertain generalized grievances ensures that . . . courts exercise power that is judicial in nature,” and ensures that the Federal Judiciary respects “the proper — and properly limited — role of the courts in a democratic society.” States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.’

This ruling leaves in effect the lower court order allowing same-sex marriages in California. SCOTUS blog posts on the question here.