1 00:00:00,720 --> 00:00:06,780 I'm happy that I've been able to somehow bring all three of these entities in Oxford together. 2 00:00:07,110 --> 00:00:14,430 I've been teaching on the Masters Program of International Human Rights and Cruel Summer School Program. 3 00:00:14,910 --> 00:00:22,000 The course of international criminal law. And I know how difficult it is for Oxford people to talk to Oxford people more or less project. 4 00:00:22,020 --> 00:00:29,220 So I'm happy to act as a force field of convergence for, if nothing else, just for today. 5 00:00:29,610 --> 00:00:33,540 So we are going to be speaking. I'm going to be speaking, as a matter of fact. 6 00:00:33,540 --> 00:00:37,860 And hopefully you'll be speaking afterwards with some questions about the Lubanga case. 7 00:00:38,070 --> 00:00:41,250 But let me give a tiny bit of truth in lending. 8 00:00:41,460 --> 00:00:45,660 I'm using the bank as a pretext to speak about something else. 9 00:00:46,440 --> 00:00:50,910 But first, let's start with Lubanga was the first case at the International Criminal Court. 10 00:00:51,150 --> 00:00:56,549 And as you know now, it concluded in May of 2012, which almost makes it an ancient case. 11 00:00:56,550 --> 00:01:04,770 But since there is no other completed case that led to a conviction, one can still get a little bit of leeway still out of Lubanga. 12 00:01:05,100 --> 00:01:08,459 And Lubanga is still said I was convicted. 13 00:01:08,460 --> 00:01:14,070 He was convicted for conscription and enlistment of child soldiers. 14 00:01:14,070 --> 00:01:20,510 And I'm going to use that term. And I know that the politically correct term is children associated with armed forces or armed groups. 15 00:01:20,790 --> 00:01:22,620 But I'm going to shorthand child soldiers. 16 00:01:22,950 --> 00:01:33,960 He was convicted of enlisting in conscripting child soldiers and also convicted of using children to participate actively in the hostilities. 17 00:01:34,530 --> 00:01:46,620 Now, Mr. Lubanga was the president of the Union of Patriotic Congolese, which is, well, one can say an armed group or a militia or a political group. 18 00:01:46,800 --> 00:01:49,320 But let's say it was a non-state entity. 19 00:01:50,070 --> 00:01:58,350 And as president, during a very short interim period, two or three years, he had to raise their fighting forces. 20 00:01:58,860 --> 00:02:08,670 And for him, a way that he could do that that was expedient and that would have loyal fighters was to enlist and conscript children. 21 00:02:09,630 --> 00:02:13,140 Now, Mr. Lubanga was in charge of this military wing. 22 00:02:13,440 --> 00:02:16,500 He raised the level of combatants. 23 00:02:16,890 --> 00:02:23,700 And at the trial he was convicted and sentenced to 14 years. 24 00:02:25,440 --> 00:02:34,320 And the reactions is that a lot? Is that enough? Is that not enough? The judgement in terms of the sentencing is on appeal at this very moment. 25 00:02:35,250 --> 00:02:44,430 The Lubanga case was important for many reasons, but among those it's the first case that really gives us a decision concerning victims reparations. 26 00:02:44,700 --> 00:02:46,590 And as you know, the International Criminal Court, 27 00:02:47,010 --> 00:02:52,710 very different from the ad hoc tribunals or the special court for Sierra Leone, has victim representation. 28 00:02:52,860 --> 00:02:58,950 There were about 129 victims who testified from their own legal base with their own legal counsel. 29 00:02:59,400 --> 00:03:07,530 About 34 were girls, 93 were boys or had been girls and boys during the time period of this conflict. 30 00:03:07,950 --> 00:03:12,179 And the reparations decisions has been hailed as being a first, 31 00:03:12,180 --> 00:03:17,760 although has been controversial a bit in terms of the actual content of the reparations. 32 00:03:18,690 --> 00:03:29,160 But these child soldiers who came to testify, they had to meet a benchmark of having themselves suffered because of the accused Lubanga. 33 00:03:29,970 --> 00:03:33,450 There were other types of reparations that were more generalised to the community, 34 00:03:33,630 --> 00:03:39,750 but these child soldiers suffered in relationship to acts that the Bonga had committed. 35 00:03:40,920 --> 00:03:47,850 There are also some very important international humanitarian law holdings regarding these crimes. 36 00:03:48,060 --> 00:03:52,680 And let me go over them for you quite briefly. And as I said, I'm setting the scene. 37 00:03:53,370 --> 00:04:01,530 First of all, conscription or enlistment are two different aspects of how children can become part of an armed group. 38 00:04:02,280 --> 00:04:06,450 Conscription is this notion that the child comes up and wants to be part of the group. 39 00:04:07,050 --> 00:04:10,860 And enlistment is somewhere where the child has been enlisted, recruited. 40 00:04:10,860 --> 00:04:15,930 And we all know from our own layperson's life you go to, you know, enlist or enrol in the army. 41 00:04:16,650 --> 00:04:21,730 Conscription is, you know, I'll join in sometime. 42 00:04:21,750 --> 00:04:25,200 We use the word recruitment to kind of cover both of those concepts. 43 00:04:25,770 --> 00:04:36,089 Well, one of the things that the court found and remember, we're talking about persons under 15 years of age because under customary national law and 44 00:04:36,090 --> 00:04:41,880 under the explicit provisions of the Rome Statute and under the additional protocols, 45 00:04:42,360 --> 00:04:46,650 child soldiers are persons who are 15 years of age or younger. 46 00:04:46,950 --> 00:04:54,540 Now, why why cut off in 15 for you historians is a lot of historical reasons that that occurs during last century. 47 00:04:54,540 --> 00:04:57,900 A lot of people left school after the equivalent the United States of eighth grade. 48 00:04:58,170 --> 00:05:03,380 Even today, the Mennonites. Quakers and I, not the Quakers. 49 00:05:03,390 --> 00:05:08,330 I come from outside of Philadelphia, but the Amish are allowed to leave school after eighth grade. 50 00:05:08,340 --> 00:05:12,230 That's considered a reasonable age at which you take on responsibilities of manhood. 51 00:05:12,380 --> 00:05:17,570 And that's slightly where we have this descended concept of 15, and below are children. 52 00:05:17,750 --> 00:05:26,360 After 15, you're an adult. But now international human rights law and criminal law seem to be moving that age toward 18. 53 00:05:26,630 --> 00:05:33,890 For example, the special court for Sierra Leone was allowed to try persons who were children. 54 00:05:34,010 --> 00:05:38,479 The prosecutor took the decision not to under a convention for the rights of the child. 55 00:05:38,480 --> 00:05:43,459 The child is someone up until the age of 18 years old and under the Optional Protocol for the Convention 56 00:05:43,460 --> 00:05:48,050 for the Rights of the Child we're looking at 18 and below would be considered a child soldier. 57 00:05:48,230 --> 00:05:50,390 But right now we're caught in that in-between netherworld. 58 00:05:50,630 --> 00:05:56,450 So when I'm talking about child soldiers today, I'm talking about persons who are 15 years of age or younger. 59 00:05:56,690 --> 00:06:01,610 Okay? So these 15 younger than 15 year old were conscripted or enlisted. 60 00:06:02,270 --> 00:06:07,010 And what the court held was that these were continuous crimes, 61 00:06:07,700 --> 00:06:12,950 meaning that when you're conscripted or when you enlist, the crime doesn't happen that moment and stop. 62 00:06:13,550 --> 00:06:25,280 It's not an act. The crime continues until you become 15 and therefore you're no longer a child or until you are no longer part of the armed group. 63 00:06:26,210 --> 00:06:34,610 Irrespective of how you leave or disengage yourself or due to death, your crime stops at death and you might die before you reach the age of 15. 64 00:06:34,850 --> 00:06:38,060 So conscription analysts are continuing crimes. 65 00:06:38,150 --> 00:06:41,270 They're not one off crimes. 66 00:06:41,720 --> 00:06:48,620 Hold that notion. The other thing that the court found is that children cannot consent. 67 00:06:49,400 --> 00:06:54,680 Cannot consent to be enlisted or conscripted is no contradiction. 68 00:06:54,680 --> 00:06:58,340 You just said conscription was when you joined voluntarily. 69 00:06:59,240 --> 00:07:10,010 Well, the court held that a child is psychologically too immature to consent to either conscription or enlistment. 70 00:07:11,000 --> 00:07:16,610 And were they psychologically immature about about death? 71 00:07:18,020 --> 00:07:24,320 They really can't conceive of what it is to die and what it is to cause other persons to die. 72 00:07:25,400 --> 00:07:34,940 In this psychological immaturity, the court says, means that consent is just it's evidentiary going to be present, but it's legally it's irrelevant. 73 00:07:35,600 --> 00:07:42,620 So therefore, Mr. Obama could not say, well, he consented, she she agreed to be a soldier. 74 00:07:43,640 --> 00:07:51,770 Okay. And then the last thing I'd like to tell you in terms of the legal holdings was that used to participate actively. 75 00:07:51,770 --> 00:07:54,319 We have really three different crimes, but two different crimes. 76 00:07:54,320 --> 00:08:02,120 Conscription and enlistment or the use of children participate actively in hostilities and used to participate actively in hostilities. 77 00:08:02,420 --> 00:08:06,260 Doesn't presuppose that you've been enlisted or recruited. 78 00:08:07,070 --> 00:08:13,280 You can just spontaneously be used to participate actively in hostilities, and that in itself is a crime. 79 00:08:13,490 --> 00:08:23,060 Okay, so there are three crimes and the chamber used a sliding scale of finding out whether your participation was direct or indirect. 80 00:08:23,570 --> 00:08:32,690 Did your participation put you directly in the way of harm or was it indirect participation and therefore you were not directly in the way of harm? 81 00:08:33,380 --> 00:08:41,720 And the harm I'm talking about is what is the harm from the opposing or the enemy side being able to be targeted, 82 00:08:43,010 --> 00:08:49,490 being a military objective as opposed to being a civilian object. 83 00:08:50,150 --> 00:08:52,670 I'm speaking to all people here. Right. 84 00:08:53,570 --> 00:09:03,080 So when the court is looking about active participation, placing children, using them, they did an indirect or direct type of test. 85 00:09:04,280 --> 00:09:10,940 So those are some of them, I think interesting holdings and very notable holdings in a longer case. 86 00:09:11,360 --> 00:09:15,200 Now, let me tell you some of the things that were not in the Alabama case. 87 00:09:16,160 --> 00:09:21,979 One of the things not in Alabama case was sexual violence. Oh, yes, there was evidence of sexual violence. 88 00:09:21,980 --> 00:09:23,720 It was just battering out. 89 00:09:24,380 --> 00:09:31,970 Almost every other child soldier who got up spoke about sexual violence, but it had not been charged, had not been legally characterised. 90 00:09:32,370 --> 00:09:35,809 He was not taken into consideration. So therefore, 91 00:09:35,810 --> 00:09:45,890 sexual violence was not part of the deliberation to find out factually or legally to determine whether someone had been conscripted or enlisted. 92 00:09:46,400 --> 00:09:50,600 We didn't say, oh, this person was sexually violent. That is evidence of conscription or enlistment. 93 00:09:51,110 --> 00:09:59,180 Sexual violence was not part of the observations or the holding to find out whether that was part of an ongoing nature of any of these crimes. 94 00:10:00,380 --> 00:10:09,290 Sexual violence was not used in the determination of whether a child had been used to participate actively in hostilities directly or indirectly. 95 00:10:10,400 --> 00:10:15,350 Well, how would this come up? I think if any of you read the Lubanga case, 96 00:10:15,350 --> 00:10:26,110 you'll see that there's a vociferous dissent in particularly talking about girls who were in the Army who were used as sexual predators. 97 00:10:26,210 --> 00:10:29,840 You know, I don't think you may recall these inverted commas. 98 00:10:30,350 --> 00:10:33,890 Right. Were they not being used to participate? 99 00:10:33,920 --> 00:10:38,030 Was this actively being used participate? Was this direct harm or indirect harm? 100 00:10:40,160 --> 00:10:47,390 So the other thing about the Lubanga case is that had originally been charged as an international armed conflict, 101 00:10:48,260 --> 00:10:56,870 but the judges decided that they were going to classify or characterise a conflict as a non international armed conflict, 102 00:10:57,230 --> 00:11:01,280 i.e. are common article three internal armed conflict. 103 00:11:02,390 --> 00:11:05,880 So there you have in very broad strokes. 104 00:11:05,930 --> 00:11:15,680 Lubanga had a bit of his holdings. But I'd like to talk about the absence of Lubanga, the absence of sexual violence evidence. 105 00:11:16,370 --> 00:11:24,110 And I think that in this absence, that was really the source of an outcry when the charging first came down. 106 00:11:24,590 --> 00:11:29,420 But as I said afterwards, when the judge video Benita from Costa Rica led her dissent, 107 00:11:29,960 --> 00:11:38,690 I find this absence of the charges to be some were revelatory and allows us to take a little bit of a hypothetical, 108 00:11:38,900 --> 00:11:44,900 not leap, but what I would call an exploration the absence of sexual violence. 109 00:11:45,020 --> 00:11:54,320 But also if we could re-imagine Lubanga as an international armed conflict and not a non international armed conflict. 110 00:11:54,950 --> 00:12:01,100 The question that a jury we need to raise is in the dissent becomes quite pertinent. 111 00:12:02,420 --> 00:12:08,149 She says, How could you not take sexual violence into account when you're measuring whether the 112 00:12:08,150 --> 00:12:13,670 children were harmed directly or indirectly because of the spirit of the Rome Statute? 113 00:12:13,670 --> 00:12:23,780 It's about. Protecting civilians, children, women, and anyone who has an access to war crimes against humanity. 114 00:12:24,290 --> 00:12:28,850 Protecting them. Are we only concerned about protection from the other side, them not being targeted? 115 00:12:29,540 --> 00:12:34,070 Or should we be concerned about them being protected from their own side? 116 00:12:35,750 --> 00:12:41,690 She asks us in some ways to look at what I call the Andy Warhol, you know, negative portraits. 117 00:12:42,470 --> 00:12:48,740 You know, what does that blue stripe really mean? And Sophia Loren face, you know, or Jackie Onassis face. 118 00:12:49,070 --> 00:12:52,970 And it is that opposite that's going to reveal something. I think that's quite telling. 119 00:12:53,750 --> 00:13:08,930 If we look at international armed conflict, it makes us say that the feminist critique of international law is very present, 120 00:13:09,710 --> 00:13:18,080 because the feminist critique makes us look at questions of gender what happens to girls, women, boys and men? 121 00:13:19,010 --> 00:13:27,530 It makes us look at the very foundations and structures of international humanitarian law and ask certain questions. 122 00:13:28,430 --> 00:13:31,880 And generally we need to was asking really from her point of view. 123 00:13:32,450 --> 00:13:43,400 But I think we can say from a theoretical feminist critique of international monitoring law, what is your law for if it's not to protect humans? 124 00:13:45,530 --> 00:13:53,310 Well, let's let's say this way, because we know really Hayley or other from his critique who told us that feminism take a break right now. 125 00:13:53,330 --> 00:13:56,000 She says, Well, feminist theory is kind of like all broken up. 126 00:13:56,360 --> 00:14:02,540 We can only give maybe a partial critique and we have some very imperfect and partial insights. 127 00:14:03,710 --> 00:14:11,090 Hilary Charlesworth has been telling us that, look, we feminist serious, we like to talk, but we're basically talking with ourselves. 128 00:14:12,110 --> 00:14:15,560 Either no one else is listening or no one else is interested in our conversation. 129 00:14:16,190 --> 00:14:21,950 And that's why today I'm very happy that I have three different entities that aren't necessarily feminists, 130 00:14:23,450 --> 00:14:29,360 because I'd like to broaden this conversation about the very structural foundations of international monitoring law, 131 00:14:29,660 --> 00:14:37,730 looking at it from a feminist lens. And that's why I call this speech beyond gender, beyond gender with the child soldiers. 132 00:14:38,390 --> 00:14:42,980 So now that the truce is up, what am I here to talk about? 133 00:14:45,150 --> 00:14:49,350 I'm here to question. Under international armed conflict. 134 00:14:51,310 --> 00:15:01,570 Is our abiding paradigm, meaning that a war crime has to be committed by one party against the soldiers or 135 00:15:01,570 --> 00:15:10,660 nationals of another party with the presumption that they have a different nationality. 136 00:15:11,980 --> 00:15:17,020 I mean, that's what war crimes are about, right? Geneva one, two, three, four. 137 00:15:17,860 --> 00:15:23,740 One state has reciprocal obligations to the other states in terms of protected persons. 138 00:15:24,580 --> 00:15:28,660 And where does a child combatant fall within this realm of protection? 139 00:15:29,890 --> 00:15:38,800 Well, when you look at it quite closely, this reciprocity from Geneva does already have a couple little cracks in it. 140 00:15:39,250 --> 00:15:44,470 Remember, when we go from the 1949 conventions to the additional protocols in 1977, 141 00:15:44,830 --> 00:15:50,740 we're already willing to say, okay, international armed conflict is not always international armed conflict. 142 00:15:51,100 --> 00:16:01,540 Okay, we will allow and colonialism wars of colonial struggles for allowing wars of liberation wars against apartheid. 143 00:16:02,080 --> 00:16:06,370 These can all now be considered under the rules of international armed conflict. 144 00:16:06,640 --> 00:16:07,629 And technically, 145 00:16:07,630 --> 00:16:20,020 those wars could have a war crime committed by a party against a national or a person who is from their same citizen group or national group. 146 00:16:20,500 --> 00:16:26,620 How how how you say how do you do colonialism? Let's take the easy, not easy example of Algeria. 147 00:16:27,340 --> 00:16:36,000 The Algerian war, France fought against Algerian citizenships, but part of the Algerian citizenry, 148 00:16:36,040 --> 00:16:40,660 such as the Algerian Jews, have been declared French citizens. 149 00:16:42,310 --> 00:16:46,120 But war crimes could have been committed against them because, 150 00:16:46,120 --> 00:16:54,220 a it was a colonial war and we weren't going to make the type distinction of the other, the enemy being from a different state. 151 00:16:54,850 --> 00:16:59,920 And the same holds true holds true if there is a war in terms of apartheid. 152 00:17:01,000 --> 00:17:08,960 Apartheid usually happens within one state. So this paradigm of war crimes are always against the enemy. 153 00:17:08,980 --> 00:17:14,970 National already has a little bit of lessening a little bit, as I would call cracks or zeroes. 154 00:17:15,670 --> 00:17:19,810 But the issue I want to bring up is slightly different. 155 00:17:20,440 --> 00:17:24,460 It's not your Tadic issue where you have wars that could be internationalised, 156 00:17:24,790 --> 00:17:33,760 meaning that Serbia has been effectively controlling Serb scope and has internationalised servicemen's war against Bosnia. 157 00:17:34,720 --> 00:17:36,879 Then you could say all this the Serbs, 158 00:17:36,880 --> 00:17:43,120 the Bosnian Serbs are really not from the same nationality as the Bosnians because they've been internationalised by Serbia. 159 00:17:44,800 --> 00:17:50,200 My case is a little bit harder and some, I think, a bit more compelling. 160 00:17:51,160 --> 00:18:02,800 I'm talking about child soldiers who ostensibly come from the same side as the armed group for which they're fighting or which they're apart. 161 00:18:03,970 --> 00:18:12,400 And the fundamental question becomes, what happens when you commit a crime against a child soldier from your own side, a war crime, not just a crime. 162 00:18:13,560 --> 00:18:18,810 Okay. Now, let's just walk the child soldier back, because at this point, we have to admit at least two things. 163 00:18:18,810 --> 00:18:22,680 Under international law, armed conflict, that child soldier is a combatant. 164 00:18:24,360 --> 00:18:30,840 Under international armed conflict, there might be some varying differences. And non-international armed conflict is a child soldier fighter? 165 00:18:31,470 --> 00:18:36,209 Is everyone a fighter, a non fighter, a civilian under non-international armed conflict. 166 00:18:36,210 --> 00:18:44,430 But under international conflict, it's fairly clear that the child soldier on set recruited, meaning conscripted or enlisted or a combatant. 167 00:18:45,000 --> 00:18:49,260 And proof of that is that therefore they come under Geneva one. 168 00:18:50,100 --> 00:18:57,040 I mean, if they're, you know, wounded or sick on land, I don't know what you mean, child soldiers who are out at sea. 169 00:18:57,060 --> 00:19:04,740 But I think Robert was bringing up over lunch about pirates, young pirates who might be child soldiers, depending on the configuration. 170 00:19:04,740 --> 00:19:07,960 So maybe Geneva two could apply to them the shipwrecked. 171 00:19:07,980 --> 00:19:17,879 We might have child soldiers sort of shipwrecked. And certainly child soldiers can become prisoners of war with all of the rights and 172 00:19:17,880 --> 00:19:24,570 duties that a state who's holding them would bow if they did become a prisoner of war. 173 00:19:25,410 --> 00:19:33,180 And child soldiers might maybe only be used in hostilities who aren't really soldiers could come under the fourth convention. 174 00:19:33,450 --> 00:19:41,160 So their protection is very classical, very common, protected under 1 to 3 or four as combatants. 175 00:19:43,290 --> 00:19:47,970 Now, does that give leeway for them being protected against their own side? 176 00:19:49,350 --> 00:19:53,040 Now it is possible that you could say that. 177 00:19:53,040 --> 00:19:56,459 Well. Well, you think it's incongruous? 178 00:19:56,460 --> 00:20:01,470 They don't need to be protected against their own side because that's what you have the military code for. 179 00:20:01,470 --> 00:20:11,850 That's what you have internal discipline for. If their own side does something to them, then you know what will turn and find out. 180 00:20:11,970 --> 00:20:17,490 But would we call that infraction? But that's we're going to rule far and saying that's a war crime. 181 00:20:18,870 --> 00:20:23,280 I think so. Yeah. Stop right there, Petty. You know, let's stop this. 182 00:20:23,730 --> 00:20:33,240 But then you would say, do you mean the very fact that their situation is recognised as illegal under international law? 183 00:20:33,330 --> 00:20:43,709 The fact that they've been conscripted, they've been enlisted, they're very in situ illegality now prevents any other illegality occurring 184 00:20:43,710 --> 00:20:51,480 from them from the same side that has given them or made them in situ illegal. 185 00:20:52,170 --> 00:20:59,340 Your perpetrator can only one crime upon you, and that's conscripting or enlisting you or abusing you in hostilities. 186 00:20:59,340 --> 00:21:04,200 And after that, your perpetrator is no longer a perpetrator of the same category. 187 00:21:06,030 --> 00:21:11,700 Well, in the special court for Sierra Leone, the prosecution versus CSA, the court said yes. 188 00:21:12,270 --> 00:21:17,370 Yeah, that's that's exactly right. That's what we're saying. It said that it would be inappropriate. 189 00:21:17,670 --> 00:21:22,950 It would be a re conceptualisation of the fundamental principle of international monitoring law 190 00:21:23,850 --> 00:21:28,410 to make the perpetrator guilty of other crimes against child soldiers other than conscription, 191 00:21:28,620 --> 00:21:40,269 enlistment and use. And I ask you just to take maybe 2 seconds and think a bit about the types of 192 00:21:40,270 --> 00:21:45,610 crimes that the perpetrator could perpetrate under this continued illegality. 193 00:21:46,210 --> 00:21:50,200 If child soldiers stay for a day, five years, ten years. 194 00:21:51,370 --> 00:21:55,190 And the crime configuration that I want to talk about is the sexual violence. 195 00:21:55,840 --> 00:21:59,520 Just to give us a window on what type of illegality could we be talking about? 196 00:21:59,980 --> 00:22:03,400 Illegality, this it's recognised that says as a war crime. 197 00:22:04,240 --> 00:22:11,889 And I put forward that the sexual violence that occurs with child soldiers is at this 198 00:22:11,890 --> 00:22:18,670 point in time something that we have not fully or completely explored or been aware of. 199 00:22:18,670 --> 00:22:22,420 And I would propose two systems that I see operating in child soldiers. 200 00:22:23,770 --> 00:22:31,570 Many people seem to be aware that girls are often used to be in quotes, and I hate this linguistic camouflage. 201 00:22:32,230 --> 00:22:35,559 Bush wives has nothing to do with being a wife. 202 00:22:35,560 --> 00:22:46,390 It doesn't matter. The foliage that you were around that girls are often enslaved and part of their enslavement is continual sexual access. 203 00:22:46,930 --> 00:22:52,839 And many of those girls stay with the armed group and have children. 204 00:22:52,840 --> 00:22:57,520 So we have some forced populations, forced breeding going on. 205 00:22:59,080 --> 00:23:07,180 Many of these girls are susceptible to early abortions, spontaneous abortions, death by birth. 206 00:23:08,530 --> 00:23:19,090 They're susceptible even if they do not complete births, miscarriages, fistulas, in other words, maiming of their intestinal organs. 207 00:23:19,720 --> 00:23:29,410 And they are under a continual related psychological strain of just being a young child, having a child, I mean, susceptible to rape. 208 00:23:29,770 --> 00:23:36,579 How this often works within girl children in the West Africa scenario is that they 209 00:23:36,580 --> 00:23:41,530 are picked up and picked out not just by the soldiers but by the boy soldiers. 210 00:23:42,490 --> 00:23:45,670 They go to girls who they know who are easier to follow them. 211 00:23:46,270 --> 00:23:49,690 And after in the beginning, they're kept in some type of sexual pool, 212 00:23:49,870 --> 00:23:53,979 kind of like the secretarial pool from the Madmen movies or Mad Men TV shows we 213 00:23:53,980 --> 00:23:57,700 watch and the man gets to go by and pick out with secretarial work on this project. 214 00:23:58,480 --> 00:24:06,910 So for men in the armed groups that don't have a Bush wife, they often pick these girls out of the pool for sexual assault, 215 00:24:07,660 --> 00:24:11,710 and then the girls are put back in the pool for the next sexual assault. 216 00:24:11,980 --> 00:24:17,770 And if they're, in quotes, lucky in inverted commas, again for survival sex, 217 00:24:17,770 --> 00:24:24,220 they might hope to want to be attached to one male in a group and hopefully the male that has the most power, 218 00:24:24,430 --> 00:24:29,530 which means that they'll become more exclusively that males property and slavery 219 00:24:29,530 --> 00:24:36,430 is exercising the powers of ownership over someone and not have to be raped, 220 00:24:36,670 --> 00:24:40,090 gang raped, forced pregnancies by other men. 221 00:24:40,660 --> 00:24:51,069 Often when militias who are comrades, they will share this pool of women among them, and often this pool of young girls. 222 00:24:51,070 --> 00:24:58,630 I shouldn't say women. Young girls will be used to reward, but also to punish soldiers who have not performed duties. 223 00:24:59,170 --> 00:25:04,450 And that's the girl sign. But feminism want to make us look at a gender lens. 224 00:25:04,690 --> 00:25:08,560 What about the boys? What about the sexual violence in the boys? 225 00:25:09,820 --> 00:25:13,000 Well, obviously, boys are raped. 226 00:25:15,760 --> 00:25:21,490 Boys are forced to perform fellatio, but even more vicious than that. 227 00:25:22,540 --> 00:25:30,219 Young boys quickly learn that they are in a male dominated group that has a 228 00:25:30,220 --> 00:25:35,680 sexual hierarchy and they look and see how does this sexual hierarchy perform? 229 00:25:37,270 --> 00:25:45,010 The top people in the sexual hierarchy can have their own Bush wife and children. 230 00:25:46,390 --> 00:25:54,970 The lower people in the sexual hierarchy, the lower boys don't even have access to the sexual secretarial pool. 231 00:25:56,680 --> 00:26:10,600 And if you want to in any way engage in survivor sexual acts or techniques or conduct as a perpetrator or as a sexual assault victims that survivor, 232 00:26:10,600 --> 00:26:20,780 you as a boy better learn those codes right away. You better learn how to rape when you're on mission and bring women back to the pool grove. 233 00:26:22,100 --> 00:26:27,290 You need to show your skills, whether it be killing or looting, so that you can start to have access to the pool, 234 00:26:28,760 --> 00:26:36,860 that you can inflict sexual harm in order to make your masculinity go up and therefore possibly have access to more girls. 235 00:26:37,880 --> 00:26:41,180 And as your military rank goes up and your sexual prowess goes up. 236 00:26:41,420 --> 00:26:49,700 It's every wolf and it's interlinked until you can have your own Bush wife or set of wives and children. 237 00:26:51,670 --> 00:26:56,350 So that's the harm I'm talking about coming from the same side. 238 00:26:58,980 --> 00:27:06,570 So that goes back to the question. The fact that you were in an illegal situation of having been enlisted and conscripted, therefore, 239 00:27:06,750 --> 00:27:16,830 is stop any other legality that the perpetrator thinks of you and that in situ situation canal do in terms of other forms 240 00:27:17,130 --> 00:27:27,060 and I view sexual violence as an example but it could be killing other forms of maiming or any of the other war crimes. 241 00:27:30,650 --> 00:27:38,390 Now when we get back to our international monitoring role paradigm, the answer, of course, is no. 242 00:27:39,530 --> 00:27:44,810 Even though all the sexual assault conduct I've just described certainly has a nexus to an armed conflict. 243 00:27:45,350 --> 00:27:49,010 One of the other jurisdictional elements that we need for war crimes. 244 00:27:50,720 --> 00:27:55,700 So what would I propose in this situation? 245 00:27:59,360 --> 00:28:05,950 Well, I've come to bring a problem and offer possibly a solution. Under the additional protocol one. 246 00:28:06,350 --> 00:28:13,090 Exactly, Article 77 that talks about children during time periods of armed conflict. 247 00:28:14,050 --> 00:28:18,400 And it's under Article 77 one No. 248 00:28:18,460 --> 00:28:26,410 77 two that it talks about the children not to be refrain from being recruited and or not to take part in hostilities. 249 00:28:27,370 --> 00:28:32,740 That's where we get our customary law basis not to conscript enlist children. 250 00:28:32,980 --> 00:28:37,090 Special court for Sierra Leone has recognised that even though there's been some 251 00:28:37,090 --> 00:28:41,770 divergence of opinion and the Rome Statute has expressed that in provisions, 252 00:28:42,460 --> 00:28:48,490 even if it's not part of customary law, those states that have signed the Rome Statute have agreed that this would be the law that we will abide 253 00:28:48,490 --> 00:28:53,410 by and that the conventional wisdom is now that customary law has caught up to the conventional law, 254 00:28:53,710 --> 00:28:58,990 and these are solid war crimes conscription, enlistment use and hostilities, either directly or whatever. 255 00:29:00,250 --> 00:29:09,670 So Article 77 of Additional Protocol one starts off in subsection one and says children shall have special protection. 256 00:29:11,370 --> 00:29:20,160 The party shall protect children, offer them special protection, including indecent assault in all its forms. 257 00:29:22,200 --> 00:29:29,550 Well, if you look at the Vienna Convention and just say let's let's look the plain word, meaning that, what does that mean? 258 00:29:30,540 --> 00:29:37,650 Well, it probably means that the parties shower for children shall offer children special protection. 259 00:29:39,500 --> 00:29:44,960 And that indecent assault of any kind can't be inflicted upon them. 260 00:29:46,220 --> 00:29:51,830 Well, we know what parties mean, particularly under international armed conflict, with a special protection. 261 00:29:52,970 --> 00:29:55,310 Those of you who've looked at that, 262 00:29:55,310 --> 00:30:02,840 I assure you understand that special protection or certain special measures under international law that are given to protected persons, 263 00:30:04,610 --> 00:30:12,860 such as what one can do in terms of regulation, of not being able to have the death penalty be inflicted upon women who are pregnant. 264 00:30:14,240 --> 00:30:18,110 That's a special protection, no adverse discrimination based on sexual health. 265 00:30:19,340 --> 00:30:26,780 So special protections or types of special measures. But what is indecent assault or indecent assault? 266 00:30:26,960 --> 00:30:37,730 I mean, that as a technical term is found in Article 27 of the fourth Geneva Convention that says that talks about 267 00:30:37,730 --> 00:30:46,940 civilians and in particularly talks about when civilians are in the hands of the other power of the other state, 268 00:30:47,210 --> 00:30:54,590 and that women shall be protected against rape, forced prostitution, any form of indecent assault or any other form of indecent assault. 269 00:30:54,800 --> 00:31:04,460 So this other form of indecent indecent assault relates back to rape from forced prostitution or types of illicit sexual conduct. 270 00:31:05,190 --> 00:31:10,490 Oh, where else do we find this notion of indecent assault? 271 00:31:11,210 --> 00:31:18,140 Well, if you look at Article 75 of additional protocol one, it's the fundamental guarantees. 272 00:31:18,440 --> 00:31:27,680 It's kind of like the grave breaches of additional protocol one and under subsection to be of Article 75. 273 00:31:27,980 --> 00:31:35,270 It talks about outrages upon personal dignity, things you cannot commit, including any form of indecent assault. 274 00:31:36,560 --> 00:31:41,780 And once again, if you go to Article 76, right before Article 77, an additional protocol one, 275 00:31:41,780 --> 00:31:49,010 it talks about the special protection for women and again, mentions rape, prostitution or indecent assault. 276 00:31:49,790 --> 00:31:59,660 So plain language meaning of Article 77 as it relates to children must mean that the parties cannot inflict indecent assault upon children. 277 00:32:02,020 --> 00:32:06,590 And then says, as I said before, you have to refrain from recruiting children. 278 00:32:08,720 --> 00:32:13,820 And it says, but in the event that children are used in hostilities, 279 00:32:14,600 --> 00:32:23,510 athletes participate in hostilities and fall into the hands of the other power, the detaining power of the other party. 280 00:32:24,380 --> 00:32:34,070 It says the special protection continues. That the special protection starts once from the hands of the officer, but it continues. 281 00:32:34,940 --> 00:32:41,899 Which makes you say, Well, where did it begin? Began when the children were with the party. 282 00:32:41,900 --> 00:32:45,770 That was even their own side. I would argue. 283 00:32:47,150 --> 00:32:56,390 So if there is under Article 77, under additional protocol one, which is recognised basically as customary law, 284 00:32:56,900 --> 00:33:02,630 that there is a continuation of protection against indecent assault. 285 00:33:02,900 --> 00:33:10,160 Even when that child soldier or that child who participates in hostilities falls into the hands of the detaining power. 286 00:33:11,240 --> 00:33:17,930 Well, you would say, well, basically that doesn't have to really be covered by Article 77, 287 00:33:17,930 --> 00:33:24,380 because you've got the whole Geneva Convention three, you know, and the third Geneva Conventions about prisoners of war. 288 00:33:25,190 --> 00:33:30,530 And if the job is a comfort in the child, falls in the prison and so forth, you just kind of being redundant, aren't you? 289 00:33:31,820 --> 00:33:39,320 Because prisoners of war, of course, are protected from sexual violence inflicted by the other side. 290 00:33:42,950 --> 00:33:46,670 Well, where does that come? Under the Prisoner of War Convention. 291 00:33:47,930 --> 00:33:53,210 Well, it starts in 1929 under Article three, 1929. 292 00:33:54,020 --> 00:33:57,860 There's a big draft in the Geneva Conventions, in particular related to prisoners of war. 293 00:33:58,430 --> 00:34:07,550 And the German delegate suggested that we should add into this 1929 convention that women should be protected, 294 00:34:08,210 --> 00:34:10,700 women should be given all consideration to their sex, 295 00:34:11,390 --> 00:34:18,230 which is kind of like Victorian code language to say that female prisoners of war should not be raped. 296 00:34:18,900 --> 00:34:25,910 Doesn't mean you could break them in. This made it very explicit that female prisoners of war would be given all consideration to their sex. 297 00:34:26,660 --> 00:34:32,480 That became quite interesting when you look into the commentary of the resolution that that meant protection against sexual violence. 298 00:34:33,620 --> 00:34:41,360 Then we got to 1949 and lo and behold, in the first convention and the second convention and back to the third convention. 299 00:34:41,570 --> 00:34:51,340 That phrase is repeated. Under Articles 12, 12 and 13, 14, women should be given all consideration due their sex, 300 00:34:52,420 --> 00:34:58,660 meaning that the opposite party, the opposite power, cannot sexually assault the women. 301 00:34:58,870 --> 00:34:59,230 Okay. 302 00:34:59,620 --> 00:35:07,660 And that's why, you know, I'd love to take all the credit that just like ad hoc tribunals, he made rape a war crime, and I did it in a forensic case. 303 00:35:08,320 --> 00:35:11,230 Rape has been a war crime. I mean, it's one of the oldest. 304 00:35:11,410 --> 00:35:17,380 It's one of the core crimes of war crimes that exist, particularly for the civilian population. 305 00:35:17,920 --> 00:35:27,760 But what's interesting from the 29 conventions of the 49 conventions, it's reiterated that combatants cannot be sexually violated by the other side. 306 00:35:27,790 --> 00:35:31,900 That's that's a big new thing of the 2949 conventions. 307 00:35:32,230 --> 00:35:40,120 But when you look at the commentaries, official ICRC commentaries, you know about what does that phrase really mean? 308 00:35:40,900 --> 00:35:43,870 You would say yes, so that the detaining power can't rape women. 309 00:35:43,870 --> 00:35:47,380 And they've got a special provision that women are supposed to be guarded only by other women. 310 00:35:48,220 --> 00:35:52,130 But when you read what Pictet says, it says, you know what? 311 00:35:52,150 --> 00:35:56,710 Male and female prisoners from the same side are be separated out. 312 00:35:58,210 --> 00:36:07,410 And the detaining power is to ensure that females are not assaulted by prisoners of war from their own side. 313 00:36:09,430 --> 00:36:15,550 They are protected against sexual assault from their own side in the hands of the detaining power. 314 00:36:16,930 --> 00:36:26,229 And I would argue that this precept, this precept under the third convention, which actually dates back to 1929, 315 00:36:26,230 --> 00:36:31,990 when we're really starting to understand combatant vulnerability and humane treatment, 316 00:36:34,060 --> 00:36:41,230 has to be read into Article 77 when we talk about children as combatants falling into the hands of. 317 00:36:43,060 --> 00:36:50,200 Tim Powers at that stage, there's special protection against any form of indecent assault. 318 00:36:51,280 --> 00:36:58,920 That protection stands even in terms of members from their own party or P.O.W. cannot assault. 319 00:36:58,960 --> 00:37:10,280 And. You add that together with Article 77 one, knowing that this protection continues when detained and children have special protection. 320 00:37:11,770 --> 00:37:14,830 I would say that the paradigm of war crimes. 321 00:37:17,980 --> 00:37:27,490 Already allows for a fundamental shift. In particular when we're talking about children and in particular, we talk about child combatants. 322 00:37:28,470 --> 00:37:33,870 And especially when we understand the nature of the sexual violence, any form of indecent assault. 323 00:37:35,260 --> 00:37:40,420 The child combatants can undergo. Well, why hasn't this been written up before? 324 00:37:40,450 --> 00:37:43,180 I mean, if it's so hot, you know, let's try it all out. 325 00:37:44,500 --> 00:37:50,490 Well, I think that these are among the things that a feminist critique of international military law can offer us. 326 00:37:52,410 --> 00:37:57,300 Depending on the doors we enter in and what we see what is before us when we put on a gendered lens. 327 00:37:57,960 --> 00:38:02,520 There are other things that the Lubanga case can offer to us. 328 00:38:03,120 --> 00:38:12,389 As I mentioned before, this ideal of the constant crime when we look at enslavement, when we look at what I hate to call forced marriage, 329 00:38:12,390 --> 00:38:17,250 inhumane treatment, this notion that it's one off, it was done with that 10 seconds. 330 00:38:17,250 --> 00:38:24,690 We never think of torture that the one act or doesn't most physical torture turn into psychological torture. 331 00:38:26,310 --> 00:38:35,520 When we look at this issue of consent and say that a child cannot consent to enlist or conscript because they mentally don't understand death, 332 00:38:36,370 --> 00:38:46,050 we understand that at this time period, international monitoring law and national criminal law, consenting to sexual violence even for a child, 333 00:38:48,060 --> 00:38:54,150 is dependent other than from the Rome Statute on the circumstances in which they find themselves. 334 00:38:54,600 --> 00:38:59,160 We don't say a child that not does not understand gang rapes. 335 00:39:00,860 --> 00:39:10,190 A child does not understand being sexually abused with fistula and many international criminal are up until today, 336 00:39:10,940 --> 00:39:18,080 apart from what might be a future interpretation of the statute, has no age cut off in terms of consent and sexual violence. 337 00:39:18,770 --> 00:39:24,110 The most progressive way we look at it is saying, Oh, let's look at the circumstances in which the person is. 338 00:39:24,710 --> 00:39:30,080 And these are the findings not only from Rwanda, from the ad hoc Yugoslav Tribunal, special court for Sierra Leone. 339 00:39:30,080 --> 00:39:34,970 Possibly the Rome Statute will make us interpret, unable to give genuine consent, 340 00:39:35,120 --> 00:39:40,310 meaning that if you cannot continue and can send a court, that your consent is not genuine, you're unable to give. 341 00:39:40,340 --> 00:39:47,600 It is the equivalent of consent being just irrelevant for the circumstances or for the act that we're talking about. 342 00:39:48,590 --> 00:39:56,540 Well, I would like to close here, but with just a couple of very, very quick reflections, 343 00:39:56,750 --> 00:40:00,530 because there have been a couple of scholars that have looked at some of these issues. 344 00:40:01,160 --> 00:40:06,240 And as a matter of fact, I think Robert Roe from Lancaster has talked about friendly fire. 345 00:40:06,980 --> 00:40:14,600 When you are killed by someone from your own side, not necessarily that that's a war crime, but that harm does come from our own side. 346 00:40:15,770 --> 00:40:23,629 Also, when we talk about and this is from one of the scholars at Nottingham Sanders for Suvi marin who does male sexual 347 00:40:23,630 --> 00:40:31,340 assault that well so does internal non-international armed conflict says that the Geneva Conventions from 1854, 348 00:40:31,340 --> 00:40:37,490 from 1906 to 1929 really were talking about helping the wounded in the sick, 349 00:40:37,850 --> 00:40:46,010 irrespective of the nationality, and that all parties have the same obligations to all wounded and victims. 350 00:40:47,240 --> 00:40:50,809 And so I come back to where are these? 351 00:40:50,810 --> 00:40:54,140 Just a couple of partial imperfect insights. 352 00:40:56,220 --> 00:41:01,080 Is this not the very basis of Geneva humanitarian law? 353 00:41:01,080 --> 00:41:06,870 The humane part is supposed to be about irrespective of the victim, irrespective of the party. 354 00:41:07,830 --> 00:41:15,240 And maybe just the example of children in particularly through a feminist lens, allows us to see what's right in front of us. 355 00:41:16,440 --> 00:41:24,180 To conclude, as Hilary Charlesworth would say, I hope we broaden the conversation because this is one that we should all be happy. 356 00:41:24,810 --> 00:41:25,950 Thank you very much for.