49 State v. Ziegler, Commercial Crime Court, Regional Court of Kwa-Zulu Natal, Durban, South Africa, Case No. 41/1816/2010, 23 November 2010, Agreement in Terms of s105A of the Criminal Procedure Act 1977, 23 Dec 2010.
50 Rantsev v. Cyprus and Russia [2010] ECHR 25965/04, para 289.
51 Estey, W., “The Five Bases of Extraterritorial Jurisdiction and the Failure of the Presumption against Extra-territoriality” (1997) 21 Hastings International and Comparative Law Review 177.
52 2012 Criminal Code (Wetboek van Strafrecht) (Netherlands) 273f.
53 2008 Organ Transplant Act (Israel).
54 Ashkenazi, T., Lavee, J., and Mor, E., “Organ Donation in Israel – Achievements and Challenges” (2015) 99 Transplantation 295; Padilla, B., Danovitch, G.M., and Lavee, J., “Impact of Legal Measures Prevent Transplant Tourism: The Interrelated Experience of the Philippines and Israel” (2013) 16 Medicine, Health Care and Philosophy 915.
55 Council of Europe (n.14); OSCE Office of the Special Representative and Coordinator for Combating Trafficking in Human Beings, Policy and Legislative Recommendations Towards the Effective Implementation of the Non-Punishment Provision With Regard to Victims of Trafficking (2013); The European Parliament and the Council of the European Union (n.9) (Directive 2011/36/EU); United Nations Office of the High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking.
56 OSCE Office of the Special Representative and Coordinator for Combating Trafficking in Human Beings (n.12); United Nations, Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children.
57 OSCE Office of the Special Representative and Coordinator for Combating Trafficking in Human Beings (n.12); United Nations (n.60); United Nations Office on Drugs and Crime (n.19).
58 OSCE Office of the Special Representative and Coordinator for Combating Trafficking in Human Beings (n.12).
59 United Nations Office on Drugs and Crime (n.19).
60 Budiani-Saberi and Columb (n.10); Budiani-Saberi and Mostafa (n.44); OSCE Office of the Special Representative and Coordinator for Combating Trafficking in Human Beings (n.12); Pascalev et al. (n.3); United Nations (n.55); United Nations Office on Drugs and Crime (n.19).
61 Participants in the International Summit on Transplant Tourism and Organ Trafficking Convened by The Transplantation Society and International Society of Nephrology in Istanbul (n.5); The Ethics Committee of the Transplantation Society, “The Consensus Statement of the Amsterdam Forum on the Care of the Live Kidney Donor” (2004) 78 Transplantation 491; Pruett, T.L. et al., “The Ethics Statement of the Vancouver Forum on the Live Lung, Liver, Pancreas, and Intestine Donor” (2006) 81 Transplantation 1386.
62 “The Madrid Resolution on Organ Donation and Transplantation: National Responsibility in Meeting the Needs of Patients, Guided by the WHO Principles” (2011) 91 Transplantation S29.
63 Participants in the International Summit on Transplant Tourism and Organ Trafficking Convened by The Transplantation Society and International Society of Nephrology in Istanbul (n.5); World Health Organization, WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation (2010).
64 Warren, P.H. et al., “Development of the National Living Donor Assistance Center: Reducing Financial Disincentives to Living Organ Donation” (2014) 24 Progress in Transplantation 76.
65 L Delmonico, F.L. et al., “Living and Deceased Organ Donation Should Be Financially Neutral Acts” (2015) 15 American Journal of Transplantation 1187.
66 The Declaration of Istanbul Custodian Group, Patient Brochure “Thinking of Buying a Kidney? Stop”, www.declarationofistanbul.org/resources/patient-brochure-thinking-about-a-kidney.
11
Child soldiering in relation to human trafficking
Gus Waschefort
Introduction
During the past decade, the issue of child soldiering has captured the imagination of the Western world. Blockbuster films, songs, books, and news coverage have played a major role in creating the Western image of the ‘child soldier’. Similarly, it is only during the past two and a half decades that this issue has received substantial attention from academics or civil society.1 This is true notwithstanding the fact that child soldiering is a centuries-old phenomenon. Given the relative newness of academic scholarship on child soldiering, a number of unsupported contentions and assumptions have surfaced that either paint an inaccurate picture of the phenomenon, or fail to tell the entire story. One such assumption is that the abhorrence of child soldiering in modern Western mores is such that this concept has come to represent the sum total of the identity and suffering of such children. However, the child soldier is in fact a doubly vulnerable person. Judge Odio Benito’s separate opinion in the Lubanga case indicates well that children suffer from a range of other rights violations in the ordinary course of events when they are used or recruited in armed conflict.2 While her legal reasoning is unconvincing,3 her judgment serves as a reminder that we are not dealing with ‘child soldiers’; we are dealing with children who have fallen victim to unlawful recruitment or use in armed conflict. Invariably, these children are, at the same time, children who have also fallen victim to other serious rights violations, including sexual violence and, in the present context, trafficking. I do not use the word ‘invariably’ lightly. Article 38 of the Convention on the Rights of the Child (CRC), which provision prohibits child soldiering, is the only article of the CRC for which the age threshold for protection is reduced from younger than 18 to younger than 15.4 It is hard to imagine any circumstance where a person younger than 18 is afforded all their rights in terms of the CRC while serving in armed forces or armed groups.5
Discussion of the vulnerability, not to mention double vulnerability, of children in armed conflict is increasingly contested on the grounds that there is an inherent conflict between the liberal humanitarian narrative of the child soldier as passive victim, and the autonomy of the child, who is capable of making informed decisions, and thus responsible for her actions.6 While this is an extremely relevant and important debate, the purpose of the present chapter is to engage with the overlap between the international law prohibitions of child soldiering and child trafficking. Without denying the importance of agency on the part of a given child, the premise of the present chapter is that the child as a victim and the child as a conscious actor with agency are not mutually exclusive. While a child may well factually be best served by her decision to join a non-state armed group, as Rosen suggests,7 the commander of that group responsible for recruiting or using the child is not absolved from legal responsibility. Moreover, in instances of violent abduction, the relevance of the agency of the child is dramatically diminished.
This chapter commences with an overview of child recruitment in contemporary armed conflicts. While general trends regarding child soldiering are identified, the focus rests with the recruitment and use of children by the Islamic State of Iraq and the Levant (ISIL) and by Boko Haram. Thereafter, a comparative legal analysis is conducted, in which the international law prohibitions of child soldiering and trafficking are compared and contrasted.
Child recruitment in contemporary armed conflict
While it is often said that there are 250,000 to 300,000 child soldiers globally, the truth is that there are no remotely accurate statistics on the number of child soldiers internationally, nor have there ever been. For one, ‘child soldier’ is not a technical concept, and there is no agreed upon definition for this term – making it impossible to say how many people form part of this genus.8 However, available qualitative data suggest that the number of people younger than 18 years of age associated with armed groups total in the hundreds of thousands. During the period from the mid-1990s to the early 2000s, Africa experienced a massive spike in the number of high-intensity armed conflicts – specifically non-international armed conflicts (NIACs). It was in the context of these armed conflicts, which included the Rwandan Genocide and civil wars in Sierra Le
one, Liberia, Sudan, and the Democratic Republic of the Congo (DRC), that child soldiering became an issue of international concern, and for good reason. Notwithstanding the fact that the oft-cited 250,000 to 300,000 ‘estimate’ suggests otherwise, there has undoubtedly been a decline in the number of child soldiers globally since the mid-2000s. This is further supported by the fact that international interventions have been particularly successful in combating the use and conscription, as opposed to enlistment, of children by State armed forces. Nevertheless, as Drumbl accurately suggests: “although international interventions have helped reduce specific incidents, the practice of child soldiering still persists. It may shift locally, but it endures globally”.9
Rosen warns that “the specifics of history and culture shape the lives of children and youth during peace and war, creating many different kinds of childhood and many different kinds of child soldier”.10 Nevertheless, a number of trends regarding the child soldier phenomenon have emerged. Most of the scholarship on the phenomenon identifies the following trends: child soldiering occurs mostly in the context of armed conflicts in developing States; children are used and recruited by both State and non-state actors (although the number of offending States has declined dramatically); children are traditionally specifically used either because of their unique attributes (as spies, for example), or simply to replenish the ranks; children are often used in the context of criminalised armed conflict, such as for illegal natural resource exploitation; most children volunteer (whether this amounts to informed consent is certainly very debatable); and Africa has had the highest incidence of child soldier use and recruitment during the past two decades.11
Notwithstanding the fact that the elements identified above remain true for countless children, the emergence of relatively strong ideology-based, transnational non-state armed actors, particularly ISIL and Boko Haram, presents a significant local shift (as referred to by Drumbl). The overlap between child soldiering and child trafficking is also particularly acute in the practice of these groups. Bloom, Horgan, and Winter recently published preliminary findings in their on-going study of child and youth ‘martyrs’ who were eulogised by ISIL between January 2015 and January 2016. Eighty-nine people were included in the study; and they were categorised as ‘Pre-Adolescent’ (8 to 12), ‘Adolescent’ (12 to 16), or ‘Older Adolescent’ (16 to 21). Based on the data available to the researchers, the following trends emerged:
Fifty-one percent were alleged to have died in Iraq, while 36 percent died in Syria. The remainder were killed during operations in Yemen, Libya, and Nigeria. Sixty percent of the sample was categorized as “Adolescent” based on Islamic State photographs, 34 percent were classified as “Older Adolescent,” and 6 percent were “Pre-Adolescent.” Thirty-one percent were Syrian, 25 percent Syrian/Iraqi, and 11 percent Iraqi. The remaining 33 percent were from Yemen, Saudi Arabia, Tunisia, Libya, the United Kingdom, France, Australia, and Nigeria.12
Bloom (et al.) also identified a shift in the rationale for child recruitment by ISIL, when compared to past settings in which children were recruited:
It is equally striking that the Islamic State’s children and youth operate in ways similar to the adults. Children are fighting along-side, rather than in lieu of, adult males and their respective patterns of involvement closely reflect one another. In other conflicts, the use of child soldiers may represent a strategy of last resort, as a way to “rapidly replace battlefield losses,” or in specialized operations for which adults may be less effective. However, in the context of the Islamic State, children are used in much the same ways as their elders.13
The 89 ‘martyrs’ that formed the basis of Bloom’s (et al.) study were identified from online social media accounts provided by supporters of ISIL as part of their decentralised public relations initiatives. As such, that sample of 89 people paints the picture that children associated with ISIL are volunteers. However, the Special Representative to the Secretary General on Children in Armed Conflict (SRSG) has reported that “over one thousand girls and boys” have been abducted by ISIL.14 It is unclear whether these children are used for direct or indirect participation in armed conflict.
The West African ISIL affiliate, Boko Haram, has gained infamy for their abduction of children, and particularly girl children.15 In a single incident during the night of 14–15 April 2014, Boko Haram kidnapped 276 female students from the Government Secondary School in the town of Chibok, in Borno State, Nigeria.16 To date, most of the girls are believed to remain with Boko Haram. Moreover, Boko Haram is widely reported to use children for direct participation in hostilities, including as suicide bombers.17 It is unclear whether any of the girls abducted in Chibok have been used for direct participation in hostilities; nevertheless, UNICEF has reported that, during 2015 alone, 44 Boko Haram suicide bomb attacks were carried out by children – with 75% of the bombers being girl children, and the youngest child having been eight at the time of the bombing.18 While ISIL and Boko Haram have brought new-found focus to the issue of ideology-driven, transnational armed groups and their use and recruitment of children, specifically through the means of violent abduction, this is not a new phenomenon. The Lord’s Resistance Army (LRA), a Christian cult-movement, has abducted thousands of children specifically for military use in Northern Uganda, the DRC, South Sudan, and the Central African Republic during the past three decades.
Trafficking as a means of child recruitment in international law
Taking into account the factual scenarios within which children are recruited and used in armed conflict, it becomes apparent that there is significant overlap between different, closely related legal concepts aimed at child protection in international law. These include the prohibition of the military recruitment and use of children; child trafficking; the sale of children; slavery and servitude; forced labour; and child prostitution. A number of different sub-regimes of international law may be activated in the context of these legal concepts, including international human rights law (IHRL); international humanitarian law (IHL); international criminal law (ICL); and international labour law. Moreover, child trafficking is mostly addressed as a form of transnational criminal activity. From a legal perspective, the ideal of child protection is thus fraught with complexity. Moreover, a number of these regimes of international law may be activated at the same time; in which cases their relationship with one another adds to the existing complexity. While child soldiering and child trafficking are the subjects of the present section, it is important to remain aware that other child protection norms may also be relevant to a given case.
The prohibition of child trafficking
Prior to 2003, the United Nations Children’s Agency (UNICEF) adopted the following definition of trafficking: “the illegal trade across borders of goods, … especially contraband, … for profit”.19 However, the Palermo Protocol was the first legally binding, universal legal instrument that authoritatively defined human trafficking; and it provided for a much broader concept of trafficking:
“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.20
The Protocol signalled a departure from the idea that prevailed in some quarters that an inherent element of trafficking is transportation, specifically across borders. While transportation is not a necessary or explicit element in the Protocol definition, it is inherent in the concept and linguistic meaning of ‘trafficking’.21 It is also the transportation element that distinguishes trafficking from oth
er forms of child slavery.22
As the Protocol is additional to the United Nations Convention against Transnational Organized Crime (Organized Crime Convention), its scope of application is limited to transnational offences, committed by organised criminal groups.23 However, this circumscription does not limit the scope or definition of the prohibition of human trafficking, but instead is a formal limitation of the scope of applicability of the Protocol.24 Moreover, States Parties are not limited to the transnational and organised crime contexts in their domestic legislation that gives effect to the Protocol. For purposes of the Protocol, a child is a person under 18 years of age.25 In the context of children, the Protocol provides that the “means” element falls away. Thus, the Protocol’s definition of child trafficking is:
the recruitment, transportation, transfer, harbouring or receipt of persons, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
While the legal prohibition of human trafficking in general, and child trafficking in particular, is much more intricate than the above introduction to the Palermo Protocol suggests, this chapter serves to investigate the overlap between child trafficking and child soldiering. As such, the Palermo Protocol definition provides the background against which child soldiering as a form of child trafficking is assessed.26
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