Afghanistan

As I wrote in an article published last year, “the fate of children in armed conflict has formed a cornerstone of the ICC‘s early jurisprudence.” That article focused on the 1st case tried by the International Criminal Court — Prosecutor v. Lubanga, a case that ended Monday with the Appeals Chamber’s affirmance (available here) of Trial Chamber judgments convicting and sentencing a Congolese ex-militia leader for conscripting, enlisting, and using children under 15 to participate actively in hostilities.

The statement has a wider application, however. Child-soldiering crimes also were pursued, albeit unsuccessfully, in the next trial, Katanga and Ngudjolo. And a case set for trial next year, Ntaganda, involves not only those crimes, but also charges that the accused ex-leader was responsible for sexual abuse that his troops perpetrated against children under fifteen in the same militia. (New IntLawGrrls post on latter case here.)

reportThere is evidence that this focus will remain an ICC cornerstone, moreover. One example is the ongoing process, in which I am honored to take part, of preparing an ICC Office of the Prosecutor Policy Paper on Children. Another is the 64-page Report on Preliminary Examination Activities 2014, which the Office of the Prosecutor released Tuesday. The Report indicated that crimes against children form a part of the analysis in at least 4 of the 9 pending preliminary examinations, as follows:

Afghanistan: Still under examination are allegations that children have been recruited for and used in armed violence. (¶¶ 81, 89, 97) A doubling of casualties involving children is another stated concern. (¶ 83) Finally, there is the matter of harm done to girls:

‘A second potential case against the Taliban relates to attacks on girls’ education (i.e., female students, teachers and their schools). The Taliban allegedly target female students and girls’ schools pursuant to their policy that girls should stop attending school past puberty. The Office has received information on multiple alleged incidents of attacks against girls’ education, which have resulted in the destruction of school buildings, thereby depriving more than 3,000 girls from attending schools and in the poisoning of more than 1,200 female students and 21 teachers. While the attribution of specific incidents to the Taliban, and in particular the Taliban central leadership remains challenging, there is a reasonable basis to believe that the Taliban committed the war crime of intentionally directing attacks against buildings dedicated to education, cultural objects, places of worship and similar institutions.’

¶ 87; see also ¶ 88. (David Bosco‘s just-published Foreign Policy article on a different aspect of the Afghanistan examination is here, while Ryan Goodman‘s Just Security post on same is here, and Ryan Vogel‘s Lawfare post is here.)

Colombia: The report reiterated a prior finding of “a reasonable basis to believe that war crimes under article 8 of the Statute have been committed … including … conscripting, enlisting and using children to participate actively in hostilities” in violation of Article 8(2)(e)(vii) of the ICC’s Rome Statute. (¶ 109)

Central African Republic: With respect to a matter that moved from preliminary examination to situation under investigation during the course of this year, Office reported a reasonable basis to believe that the same 3 war crimes — conscription, enlistment, and use — had been committed by Séléka, an armed group that staged a coup in the country in 2012, as well as by the opposition anti-balaka. (¶¶  204, 205)

Nigeria: Again, attacks against girls appear to be on examiners’ radar, as indicated by ¶  178:

‘The abduction by the group of over 200 girls from a government primary school in Chibok, Borno State on 14-15 April 2014 has drawn unprecedented international attention to the Boko Haram insurgency.’

As noted at ¶  187, Prosecutor Fatou Bensouda condemned the abduction soon after it occurred, in a statement that, like others she has made recently (see here and here), underscores that the Office’s attention not just to child-soldiering, but also to the full range of crimes against children.

sotu2014Despite the best efforts of pundits and D.C. PR, the State of the Union address this year seemed, well, small.

Perhaps it was because I didn’t watch the speech this year – 1st time in a long time. Just wasn’t up for TV anchors’ “this is Washington’s Oscars” spin as the government’s still-mostly-men file in. (credit for video screengrab) Nor for the up-close-and-personal vignettes that pepper SOTU no less than they soon will Sochi.

As for the text of the speech itself – except for the well-deserved celebration of an end to certain health care injustices – it paled in the gloss of my high-def tablet screen.

President Barack Obama put impressive force into his demand for higher wages for Americans at the bottom of the income rung, to a reverse in the trend of growing economic inequality, to a guarantee of a good job. Impressive, that is, absent the deflating reality revealed on one’s calculator. Obama’s centerpiece solution was a minimum wage of $10.10 an hour. That would bring the annual income of a person who works full-time and gets paid vacation (both unlikely, at this wage scale) to a grand total of $21,008.00. (Note that this is higher than the current income floor.) Given the high cost of living in the United States, one could almost hear the low-wage earner mutter,

‘That and a Dunkin’ Donuts gift card will get me a cup of coffee.’

As the President noted, the mutterer well may be a woman. He said:

‘Today, women make up about half our workforce. But they still make 77 cents for every dollar a man earns. That is wrong, and in 2014, it’s an embarrassment.’

Well, yes, it is, and the focus on this issue was inspiring. Or would have been, if Obama’s stated solutions – “equal sbapay for equal work,” “a day off to care for a sick child or sick parent” – weren’t as old as the women’s movement itself. (image credit) Consider this web account:

Susan B. Anthony‘s paper The Revolution, first published in 1868, advocated an eight-hour day and equal pay for equal work.’

In his speech Obama sounded an alarm about “the lives that gun violence steals from us each day,” as he has many times before. (Prior posts here, here, and here) His promise “to keep trying, with or without Congress,” served as a reminder of the difficulty of change.

“Diplomacy” was the SOTU foreign policy buzzword. That is welcome, but did not fully settle the mind given the tense nature of most of the situations mentioned – Iran, the Middle East, Afghanistan. One was struck, too, by the geographic lumping-together of our globe. Joining Africa as an apparently single-country? “The Americas.”

Let’s hope the President’s assertions of optimism prove better founded than this take on yesterday’s address.

girlchildlogoEfforts to put an end to attacks on education receive high marks this week – especially today, the 2d annual International Day of the Girl Child, the theme for which is “Innovating for Girls’ Education.”

Just yesterday, in Resolution 2120 on Afghanistan, the U.N. Security Council focused on threats to education amid armed conflict:

Expressing its serious concern with the high number of civilian casualties in Afghanistan, in particular women and children, the increasingly large majority of which are caused by Taliban, Al-Qaida and other afgviolent and extremist groups and illegal armed groups, condemning in the strongest terms the high number of attacks targeting schools, including their burning and forced closure, their use by armed groups, and the intimidation, abduction and killing of education personnel, particularly those attacks targeting girls’ education by armed groups including the Taliban ….’

It reiterated that concern in a later paragraph devoted to the harms children endure in armed conflict – a child-protection paragraph that is both welcome and new to the Council’s Afghanistan resolutions. (h/t David Koller of WatchList; credit for 2009 AP photo, above, of Afghan schoolgirl) Addressing matters outlined in the U.N. report on which I previously posted, the inclusion reflects a concerted effort by multiple U.N. entities – including the Council’s own Working Group on Children and Armed Conflict and the Office of the Special Representative of the Secretary-General on Children and Armed Conflict – and nongovernmental organizations – including those that form the Global Coalition to Protect Education from Attack.

fbThe education of children, particularly girls, is a goal that the International Criminal Court Prosecutor underscored in a statement she issued last year, on the 1st Day of the Girl Child. (photo credit) Speaking of her intention to continue to consider the experiences of children in and affected by armed conflict (since December, the mandate on which I have the honor of advising her), ICC Prosecutor Fatou Bensouda said:

‘The women of the future, the young girls of the world, should not be deprived of their fundamental human right to play and learn and enjoy being children.’

Giving eloquent voice to that thought earlier this week was 16-year-old Malala Yousafzai, victim of an assassination attempt a year ago, in her home region in Pakistan – an attempt made because she had blogged and spoken out in favor of girls’ education. She survived and has thrived as a forceful, global advocate for this worthy cause, as recognized by her new book and her receipt yesterday of the European Union’s Sakharov Prize malalafor Freedom of Thought. In a Daily Show interview Tuesday, she spoke of some of the world’s ills – war, repression, child labor – and then concluded:

‘Issues and problems are enormous. But the solution is one. And that is education.’

unamaThe cover photo of a new U.N. report speaks a thousand words: more and more, the protracted conflict in Afghanistan is claiming children as its victims. A reader hears these running children’s screams viscerally – much as she felt viscerally the life of a photographed 8-year-old child soldier in Syria.

Sadly, this visceral impression is confirmed by the text of the 94-page Mid-Year Report on the Protection of Civilians in Armed Conflict, issued yesterday by UNAMA, the U.N. Assistance Mission in Afghanistan. The report begins with a boy’s account of his mother’s killing in a Kabul suicide attack, then sets out grim statistics:

‘Escalating deaths and injuries to Afghan children, women and men led to a 23 percent resurgence in civilian casualties in the first six months of 2013 compared to the same period in 2012. UNAMA documented 1,319 civilian deaths and 2,533 injuries (3,852 casualties) from January to June 2013 ….’

This growth, the report continued,

‘reverses the decline recorded in 2012, and marks a return to the high numbers of civilian deaths and injuries documented in 2011.’

Increasingly, killings caused by improvised explosive devices and gunfights affect children (up 30%) and women (up 61%). The UNAMA report stated that international forces’ handover of security responsibility to national forces had “met with increased attacks by Anti-Government Elements” –  elements to whom 3/4 of the deaths were attributed.

Other documented offenses against children included:

► Attacks on education; that is, attacks on students and their teachers, destruction or occupation for military use of school buildings

► Recruitment and use of children into the government’s armed forces and into armed anti-government groups

► Attacks on hospitals, other health-care facilities, and medical personnel

► Displacement, within or without the country

Recommended to stem this tide? Compliance by all parties with the law, including international humanitarian and human rights treaties aimed at protecting children. A simple answer, difficult to implement.

observHarm suffered by children has topped a list of concerns respecting the United States’ behavior during armed conflict in Afghanistan.

The list appeared in just-issued Concluding observations of the U.N. Committee of the Rights of the Child. Of chief concern were child casualties. Noting the U.S. statement that overall civilian casualties had dropped in recent years, the report stated (¶ 7):

‘The Committee is nevertheless alarmed at reports of the death of hundreds of children as a result of attacks and air strikes by the US military forces in Afghanistan over the reporting period due notably to reported lack of precautionary measures and indiscriminate use of force. The Committee expresses grave concern that in fact the number of casualties of children doubled from 2010 to 2011. The Committee further expresses serious concern that members of the armed forces responsible for the killings of children have not always been held accountable and that grievances of families have not been redressed.’

On Friday, the U.S.-led coalition pushed back, insisting that the Committee’s

‘reports of the death of hundreds of children as a result of attacks and airstrikes by the US military in Afghanistan are categorically unfounded.’

Also garnering the U.N. Committee’s attention was the treatment of Afghan children said to be involved with anti-government forces. Reiterating at ¶ 33 its finding

‘that children were detained over extended periods of time, in certain instances for one year or more, the Committee notes with deep concern that the State party continue to arrest and detain children in Department of Defence custody.’

This assertion was not categorically rejected; rather, in a filing last December, the United States endeavored to explain the situation at its Detention Facility in Parwan, Afghanistan:

‘[O]ver the last several years the United States has captured more than 200 individuals under the age of 18 and held them at the DFIP; the average age of these individuals has been approximately 16 years old. The United States was not aware of the age of the children at the point of capture; in nearly all cases their ages were not finally determined until after capture. Few of these juveniles remain in detention at the DFIP; many of them have been released or transferred to the Afghan government.’

That last result drew separate criticism from the 18-member Committee, which asserted in its Concluding observations:

‘Children transferred to Afghan custody face torture and or ill-treatment.’

(¶ 33) The same paragraph stated that children over 16 are housed with adults, and that child detainees have limited access to legal aid or to anyone beside their captors and monitors from the International Committee of the Red Cross and the Afghan Independent Human Rights Commission. With regard to all these concerns, the Committee “urge[d]” the United States to reverse course – to step up precautions against such harms and, should prevention fail, to ensure redress. (¶¶ 8, 34)

The Committee’s report marked the end of a multiyear review of U.S. compliance with the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Although the United States never ratified the principal convention, it became a state party to the protocol in 2002. Implementation since then has included passage in 2008 of the federal  Child Soldiers Accountability Act and Child Soldiers Prevention Act, as well as the opening in many constituent states of child advocacy bureaus. The Committee lauded these efforts, but urged more; to be precise, establishment of a national children’s rights unit and extension of the ban on recruitment to age 18. Given the country’s tradition of recruitment in high schools, it seems unlikely that this last concern will have been addressed to the Committee’s satisfaction by the time the United States returns for a new round of review in 2016.