Taking 2(E) seriously : forcible child transfers and the convention on the prevention and punishment of the crime of genocide
University of British Columbia
Master of Laws - LLM
The 1948 Convention on the Prevention and Punishment of the Crime of Genocide, Article 2(e) declares that the forcible transfer of children from a protected group to another group is an act that amounts to genocide when it is conducted "with intent to destroy" the group, "as such," at least "in part." Although listed co-equally with mass killing and forced sterilizations, and despite what appear to be repeated violations of this provision, forcible child transfers have received little attention. Utilizing various sources of international law, this thesis establishes the prima facie elements that must be satisfied in alleging an Article 2(e) violation. These sources include the emerging international case law on genocide, general legal principles, scholarly opinions, and the Genocide Convention's preparatory materials. The preparatory materials indicate that the Genocide Convention was intended to provide robust protections to specific types of human groups, and that protecting the group's right to retain custody and control over its children was considered central to those protections. Recent opinions from the International Court of Justice, as well as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda also recognize the Genocide Convention's robust group protections. Accordingly, they recognize a group right of existence and protect groups not as mere collections of individuals who happen to share similar traits, but as functional "separate and distinct entities." This implies broad and deep protections for the groups that have been targeted for forcible child transfers as it protects each functional subgroup, even where there is no larger intent to destroy the entire group, and protects against the targeting of a specific segment within a group, such as its leadership or its children. This thesis also considers the mens rea of genocide, finding that mixed intents or beneficent motivations will not excuse an otherwise genocidal act. Both the general principles of law and the existing case law on genocide generally prohibit consideration of the perpetrator's motivation in assessing the criminality of proscribed actions. Finally, the forcible child transfer programs in question have been defended on grounds that they could not amount to genocide because they were actually "cultural genocide," which is said to be excused from the Genocide Convention's prohibitions, or because they were conducted to assimilate the children, and therefore cannot constitute genocide. International courts have ratified the International Law Commission stance that the Genocide Convention does not encompass acts of cultural genocide. However, applying existing law, it appears that these programs were not instances of cultural genocide, but instead amounted to physical or biological genocide, categories of genoicidal destruction that the Genocide Convention certainly prohibits. Similarly, far from excusing these actions, the fact that they were committed in the context of a broader assimilation scheme may actually help prove genocide. This broader assimilative context is similar to the discriminatory treatment and acts of cultural destruction from which courts have inferred the specific intent to commit genocide.
Law, Peter A. Allard School of