The forcible transfer of children of a protected group to another group is the fifth punishable act of genocide. It originally formed part of the definition of cultural genocide. The definition was contained in a draft by the UN Secretariat, submitted as a first step in creating the Genocide Convention that was adopted in 1948. The definition reads as follows:
Destroying the specific characteristics of the group by (a) forced transfer of children to another human group; or (b) forced and systematic exile of individuals representing the culture of the group; or (c) prohibition of the use of the national language even in private intercourse; or (d) systematic destruction of books printed in the national language or of religious works or prohibition of new publications; or (e) systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersal of documents and objects of historical, artistic, or religious value and objects used in religious worship.
The UN General Assembly rejected the concept of cultural genocide, holding that it was not consonant with the principal aim of the law of genocide. The aim of that law is to protect the right of national, ethnic, racial, and religious groups to physical existence as such. The acts that are listed in the Genocide Convention as acts of genocide are: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group. The list is exhaustive and, with the exception of the forcible transfer of children, all the acts contained therein are physical. Generally speaking, therefore, the law of genocide is not concerned with cultural, economic, educational, linguistic, and political or social continuity. These concerns are protected elsewhere, by laws pertaining to human rights and minority rights.
The forcible transfer of children was added to the list of acts of genocide at the insistence of Greece after the UN General Assembly had rejected the inclusion of cultural genocide in the Convention. Its inclusion was achieved by a minority vote. Only twenty-five member states voted for its inclusion, whereas thirteen opposed it and thirteen abstained from voting.
The lukewarm support for including the forcible transfer of children among the acts of genocide may be explained by the fact that it is out of harmony with the other listed acts, whose common denominator is the physical destruction of the protected groups. Forcibly transferring children from one group to another results in the dispersal of the original group's members. It weakens their cohesion as a group, but it does not take away their physical characteristics. An African or Chinese remains African or Chinese, wherever he or she may be. The transfer, however, does make the transferred members of the group lose their cultural or linguistic identity by forcibly assimilating them into other groups. If those other groups speak different languages, practice different religions, or possess different cultures, transferred children will be forced to do likewise. Strictly speaking, this would constitute genocide only if the purpose of the transfer were to subject the children to slave labor or other forms of physical or mental harm. Such treatment would weaken them physically and would amount to subjecting them to conditions of life calculated to bring about their physical destruction, in whole or in part.
It must, however, be conceded that the forcible transfer and isolation of children from their original group frequently makes it difficult for them when they become of age to marry people of their original group, for they may no longer share the linguistic, religious, cultural, or social traditions with that group. They are thus unable to reproduce their own kind and to perpetuate their group. As a direct result, the group itself will gradually dwindle in number and ultimately become extinct. The inclusion of the forcible transfer of children as an act of genocide is designed to prevent this eventuality.
There are several key conceptual elements that under-pin the assignment of forcible transfer to the broader category of genocidal acts. These concepts include the definition of "child," the characteristics that define an act as forcible transfer, the definition of "protected groups," and the broader issue of the intent behind the transfer of children from their group of origin to another group.
Definition of Children
Neither the Genocide Convention nor the statutes of ad hoc tribunals or the International Criminal Court defines who a child is. The statute of the International Criminal Court that outlaws the conscription or the enlisting of children into armed forces confined the crime to "children under the age of fifteen years" (Article 8(2), paragraph (e) (viii)). The U.S. proposal to adopt the age of fifteen as the defining criterion of children within the Genocide Convention was rejected, possibly because the UN Convention on the Rights of the Child, to which most states were already party, used the criterion of "every human being below the age of 18 years" in defining who qualified as a child. State representatives therefore took the view that the definition of what constituted a child was already settled and did not want to reopen it. In keeping with that understanding states that were party to the Rome Statute subsequently accepted the age of eighteen as the cut-off point in the definition of "child" and incorporated it as one of the elements defining the crime of genocide (Article 6(e)).
The Genocide Convention and the statutes of ad hoc tribunals and the International Criminal Court specifically refer to the forcible transfer of children. Does this mean that more than one child must be transferred for such transfer to qualify as an act of genocide? Not necessarily so. The transfer of even one child qualifies as an act of genocide if it is shown to be manifestly part of a master plan to destroy in whole or in part a protected group. It would be even more so if it were coupled with other acts of genocide. However, before a person who is charged with genocide on account of the forcible transfer of children can be found guilty of the crime, the prosecution must prove that the defendant knew or ought to have known that the persons being transferred were children as defined above. Such proof may not always be easy, particularly when large numbers of children are involved. For that reason it would be sufficient for the prosecution to prove that the accused knew or ought to have known that at least some of the people transferred were under eighteen years of age.
Transfer means removing children from their parents or guardians and placing them in the custody of persons belonging to groups other than the one in which they had been raised up to the time of the transfer. It also includes removing the children from their physical place of residence, such as a neighborhood, village, district, or community inhabited by members of the child's group and sending them to another location that is inhabited by members of different groups. During the meetings of the Preparatory Committee for the International Criminal Court. the United States proposed that forcible transfer be restricted to children in "lawful residence." The Preparatory Committee rejected the proposal, contending that it is immaterial that the place of residence from which the children are transferred is unlawful, for the children are not responsible for their place of residence. Accepting the U.S. proposal would have denied legal protection to children of illegal immigrants, for example. Instead, the committee held that what is material is that the children are uprooted from the custody of their parents or guardians or from their actual place of residence.
Not only must there be a transfer, the transfer must be forcible. "Forcible" transfer means transfer by force or by compulsion, without the consent of the parents or guardians of the affected children. It is no defense to say that the children consented for, in law, children lack the capacity to give such consent. It must also be stressed that the term "forcible" is not restricted to physical force. It also includes the threat of force and coercion caused by fear of harm or oppression to the children or to their parents, guardians, or others. It also includes artifice and trickery, as well as psychological force exerted on the children, parents, guardians, or others connected with them.
For purposes of the genocide law the children who are forcibly transferred must belong to a particular national, ethnic, racial. or religious group. These are the only groups that are protected under the law of genocide. One reason for restricting protection to these groups is that membership in the groups is involuntary. It is inherited, not opted for by an individual. Another reason is that such groups are relatively stable and easily identifiable. The only group that does not meet these criteria and is therefore out of place is the religious group. Membership in this group, as is the case with respect to cultural, social, or political groups, is voluntary. One may join or abandon the group as his or her conscience dictates. It is true that a child may be born into a religion, but on reaching the age of discretion, he or she may repudiate that religion and embrace another, or give up belief altogether. In the modern era of religious liberty, it can no longer be assumed that children will necessarily cling to their parents' or ancestors' religious beliefs.
The Concept of Intent
It is not enough to show that there was a forcible transfer of children from their group to another. Such transfer, in itself, is only what is known in law as the actus reus. To prove a charge of genocide, it must simultaneously be shown that the transfer was done with the specific intent of destroying the group, in whole or in part, and that the transfer was part of that plan. This aspect of intent is known in law as the dolus specialis. This point is well illustrated by the Australian case of Alec Kruger & Ors; George Ernest Bray & Ors v. Commonwealth of Australia. The plaintiffs in the case were aboriginal Australians, members of the so-called "lost generation." They alleged that, when they were children, they were forcibly removed from their home communities in the Northern Territory and forcibly transferred into the custody of the Chief Protector of Aborigines (or of his successor in function, the Director of Native Affairs). Thereafter they were denied contact with their families and kept in aboriginal reserves. Section 6 of the 1918 Aboriginals Ordinance under which they were so removed provided as follows:
- The Chief Protector shall be entitled at any time to undertake the care, custody, or control of any aboriginal or half-caste, if, in his opinion, it is necessary or desirable in the interests of the aboriginal or half-caste for him to do so, and for that purpose may enter any premises where the aboriginal or half-caste is or is supposed to be, and may take him into his custody.
- Any person on whose premises any aboriginal or half-caste is, shall, on demand by the Chief Protector, or by any one acting on behalf of the Chief Protector on production of his authority, facilitate by all reasonable means in his power the taking into custody of the aboriginal or half-caste.
- The powers of the Chief Protector under this section may be exercised whether the aboriginal or half-caste is under a contract of employment or not.
These provisions were supported by further conditions set forth in Section 7 of the same Ordinance, which read:
- The Chief Protector shall be the legal guardian of every aboriginal and of every half-caste child, notwithstanding that the child has a parent or other relative living, until the child attains the age of eighteen years, except while the child is a State child within the meaning of the Act of the State of South Australia in force in the Northern Territory entitled The State Children Act 1895, or any Act of that State or Ordinance amending or substituted for that Act.
- Every Protector shall, within his district, be the local guardian of every such child within his district, and as such shall have and may exercise such powers and duties as are prescribed.
Under the Ordinance it was an offense for an aboriginal or half-caste child to refuse to be removed. Only in certain specific circumstances could a child be exempted from compulsory removal to the reserves or other state-run institutions. These circumstances included children who were lawfully employed, who held permits that authorized them to be absent from aboriginal reserves or institutions, or females lawfully married to and residing with a husband who was substantially of European origin or descent.
Alec Kurger & Ors; George Ernest Bra & Ors v. Commonwealth of Australia
In the case of Alec Kruger & Ors; George Ernest Bray & Ors v. Commonwealth of Australia, the plaintiffs sought, among other things, a declaration that the provisions of the 1918 Aboriginals Ordinance were invalid. They contended that the ordinance was contrary to an implied constitutional right to freedom from any law or executive act that, among other things, constituted or authorized the crime of genocide. In support of their case they cited several provisions contained within the Genocide Convention, which they argued were violated by the Aboriginals Ordinance. These included:
- The removal and transfer of children of a racial or ethnic group in a manner which was calculated to bring about the group's physical destruction in whole or in part;
- Actions which had the effect or likely effect of causing serious mental harm to members of a racial or ethnic group;
- The deliberate infliction on a racial or ethnic group conditions of life calculated to bring about its physical destruction in whole or in part.
The Australian Parliament had passed the Genocide Convention Act in 1949, which had authorized the government to ratify the UN Convention. However, by as late as 1997 the Australian Parliament had not gotten around to enacting legislation to implement the Convention. In the case of Alec Kruger & Ors; George Ernest Bray & Ors v. Commonwealth of Australia, this had significant consequences. The court held that:
[T]he Convention has not at any time formed part of Australian domestic law. . . .[I]t is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. Where such provisions have not been incorporated they cannot operate as a direct source of individual rights and obligations.
The court did acknowledge that the rules of legal interpretation allowed preference to be given to legal interpretations that accorded with the country's international obligations. However, the court hastened to say that it would not accord such a preference where the laws to be interpreted had been enacted before the international obligations had been assumed. This was the case of the Aboriginal Ordinance. The Ordinance was passed in 1918, long before Australia became party to the Genocide Convention in 1951.
The court could nonetheless have interpreted the provisions of the Aboriginal Ordinance in light of Australia's international obligations by referring to customary international law rather than by referring specifically to the Genocide Convention. After all, genocide was already forbidden under customary international law at the time that the Aboriginals Ordinance was enacted. The court, however, found difficulty here as well, this time based on problems inherent in the definition of genocide as a crime. According to the court, the transfer that the Aboriginals Ordinance authorized lacked the requisite mental element of "intent to destroy" the children's racial or ethnic group. Rather, the court held that the forcible transfers authorized by the Ordinance were intended "for the good and welfare" of the aboriginal population. The court based this interpretation on the conditions that prevailed at the time of the Ordinance's passage. At that time, the population of the aboriginals in the Northern Territory was rapidly decreasing due to disease and unsanitary conditions. The policies and measures adopted by the government of Australia were supposedly designed to rescue the aboriginal population from extinction.
The court did, however, admit that the measures adopted under the Aboriginals Ordinance were ill advised and mistaken, particularly by contemporary standards. It acknowledged that the measures led to the physical abuse, humiliation, dehumanization, and traumatization of generations of the aboriginal people. They also callously disregarded familial unity and cultural cohesion in the aboriginal community. They ultimately resulted not only in the cultural but also in the physical extinguishment of the group as a race. Nevertheless, according to the court, "a shift in view upon the justice or morality of those measures taken under an Ordinance which was repealed 40 years ago does not of itself point to the constitutional invalidity of that legislation and to the legal basis of the plaintiffs' claim." For all these reasons, the court dismissed the case.
Nevertheless, the case of Alec Kruger & Ors; George Ernest Bray & Ors v. Commonwealth of Australia, and others that followed, served to awaken national consciousness over the injustice done to the aborigines in Australia. At the level of the state legislatures, such cases led to the passage of motions acknowledging the inequity and cruelty of Australia's treatment of her aboriginal population and offering apologies for such treatment. For instance, the State Legislative Assembly of New South Wales passed a motion in 1997 that apologized "unreservedly" to the aboriginal people of Australia for the systematic separation of generations of Aboriginal children from their parents, families, and communities. It also acknowledged and regretted the assembly's role in enacting laws and endorsing policies of successive governments whereby "profound grief and loss have been inflicted upon Aboriginal Australians."
The Native American Experience
Similar to the case of the Australian Aborigines is the experience of Native Americans in the United States during the nineteenth century. The Removal Act of 1834 authorized the forcible removal of American Indians from desirable land to hostile environs. One of the results of the act came to be known as the "Trail of Tears," in the course of which aboriginal peoples were removed from Georgia to Oklahoma. Thousands of them died during the difficult march to their newly assigned territory. At the time, a U.S official asserted that, "[t]he American Indian is to become the Indian American," implying that the motive behind the forced transfer was to facilitate education, "civilization," and assimilation. Again, the charge of genocide is difficult to make in this case, since assimilation is not synonymous with physical destruction. As with the example of Australian Aborigines, the requisite mental element of "intent to destroy" the group as such, in whole or in part, was lacking. Therefore the transfers, though catastrophic in some instances, did not amount to genocide.
However, although the U.S. government's forcible transfers of Native Americans may not have qualified as genocide, they could qualify as crimes against humanity and subsumed under "deportation or forcible transfer of (a) population," according to the standards set forth by the International Criminal Court. This species of crime against humanity is defined as the "forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law." The other element that is needed to qualify the transfer as a crime against humanity is that the transfers must be carried out "as part of a widespread or systematic attack" directed against a civilian population. It would appear that this was the case with respect to the transfers forced upon Native Americans.
Forcible Transfer and Forced Labor
In his 1996 Nobel Prize–winning book Fateless, Imre Kertesz tells the story of Jewish boys from Hungary who were forcibly taken to Germany to work in labor and concentration camps. For instance, Georg Koves, the main character in the book, was described as a "laborer in training." He was only fourteen years of age when he and many other boys were snatched from buses and taken to Germany. Once there, they were subjected to unspeakably cruel and inhumane treatment. Anyone who did not qualify to work, whether due to age, ill-health, or pregnancy, was killed in the gas chambers. Those who were not killed at the outset faced hunger and privation. Koves was so desperate for food that, in his words:
[I]f I did not eat wood, iron, or stones, it was only because they were not chewable or digestible. For instance I did try to eat sand, and if I spotted some grass, I didn't hesitate for a moment. Unfortunately grass was difficult to find in the factory and in the camp (p. 120).
In spite of their deplorable state of health, Koves and the boys who shared his fate had to work. If any complained of being tired or hungry, they would have been subjected to beatings, kicks, and other forms of physical and psychological torture. Any who dared to complain of sickness were sent to the gas chambers. According to Koves, "Everyone works; don't get tired, don't get sick" (p. 62).
Kertesz's account of the treatment of the Hungarian boys by the Nazis amounted to genocide in several respects. Those who were to unable to work were actually and deliberately killed. Real physical and mental harm was inflicted on many of them. The deliberate reduction of food rations, leading to the boys' virtual starvation, also amounted to the "infliction of conditions of life calculated to bring about the destruction of their group," as invoked in the Genocide Convention.
Nevertheless, it is debatable whether the forcible transfer of Hungarian boys to Germany in and of itself amounted to genocide. This is so because the purpose of their transfer to Germany was not that they be absorbed into another group. Rather, the principal purpose of their transfer was to facilitate their contribution to Germany's war machine through forced labor. Indeed the inhumane and barbaric treatment that the German authorities subjected them to discounts any idea of any notion of their being absorbed or assimilated into any group in Germany.
Forcible Transfers, Genocide, and the Rights of Children
In condemning the forcible transfer of children as an act of genocide, the law is primarily concerned with protecting the larger group to which they belong. However, by such condemnation the law does indirectly protect children as a particularly vulnerable group. Children as such possess rights that are recognized and protected today under international human rights law. These rights are most concretely embodied in the 1989 UN Convention on the Rights of the Child.
Article 7 of the Convention provides that a child has "the right to know and be cared for by his or her parents" insofar as this is possible. In Article 9, the Convention further provides that "a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine" that this should be done. The Convention assumes that, by protecting the parent-child custodial relationship, children are naturally guaranteed affection, as well as moral and material security—conditions that are vital to their physical, emotional, intellectual, and social development. Forcible transfer, by contrast, generally traumatizes children and naturally inhibits their normal physical, emotional, intellectual, and social development.
Article 8 of the Convention also provides that "the child is entitled to preserve his or her identity, including nationality, name, and family relations as recognized by law without unlawful interference." It is inhuman and deplorable to forcibly transfer children from their families, communities, and countries to groups, communities, or countries not of their choosing, even when this is done for allegedly altruistic motives, such "civilizing them." The forcible transfer of children violates their right to liberty and security of the person as well as their freedom of movement and residence, and is also an affront to their human dignity.
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Daniel D. Ntanda Nsereko