The child is not dead not at Langa nor at Nyanga
not at Orlando nor at Sharpeville
nor at the police station at Philippi
where he lies with a bullet through his brain
…
the child is present at all assemblies and law-givings…
The reprise of South African place names at the heart of Ingrid Jonker’s poem, a poem recited first by Oliver Tambo at the beginning of the end of apartheid, and then by his successor Nelson Mandela at its end, continues to play out. Years later the infants, children and teens targeted and the sites of the atrocities are different but the crime is the same. Though consistent with the elements of the crime against humanity of persecution, and the serious breach of international law it entails consistent with the nature and definition of a peremptory norm, it appears in public international law and its justice implements as an apparition. Like Ingrid Jonker’s child spectre ‘present at all assemblies and law-givings’ , but mostly unseen and unclaimed.
The everyday blowback of young age discrimination
When Lucy Maud Montgomery’s Emily of New Moon protests at being called ‘the child’ she is invoking her claim to possess rights and the prohibition it entails on young age discrimination. For children, as Francisco de Vitoria argued in De Indis (1539), more than two centuries before Immanuel Kant’s Principles of the Metaphysics of Morals (1785), are ends in themselves. Though every child has a claim to be regarded as a person with dignity or intrinsic worth, everywhere, in breach of their specific claim to age responsive supports, accommodations and safeguards, unless they commit a crime, young persons (from infants to teens under 18) merely exist in the public sphere, mostly unseen and unheard. Though their absence is periodically invoked by the Child Rights Committee and others, the animus or discriminatory intent that supports this situation, along with its serious consequences, is mostly unseen. And yet the radical or root breach of the prohibition on young age discrimination it entails creates what Hannah Arendt might call ‘the most radical and desperate of experiences’. The root breach creates the animus for more serious and irreparable breaches of their fundamental rights; in futurising their dignity or intrinsic worth it relativises their present worth and increases their risk as Immanuel Kant might quip of being made a thing and used and discarded as a means. If this is the everyday blowback of young age discrimination, its everyday denouement is the desperate experience of legally constituted loneliness and the ground for impunity: ‘to be alone, when no one hears you’.
The crime against humanity of young age persecution
In situations where there is a widespread or systematic attack against a civilian population, its extreme blowback is the crime against humanity of young age persecution. The severe deprivation of children’s fundamental rights that typifies such situations may consequently be intentional and the intent may be driven by their young age status. If this atrocity crime is not widely known, screened by vestigial myths that suggest a conception of justice through innocence and devotion, and deflected by its intersection with other impermissible grounds (in particular race, nationality, ethnicity and/or gender), it is nonetheless immanent in children’s young age status. Well, before the threat of persecution is real and imminent, a target mark is imprinted on their young bodies. Though children who act on their sensibility to injustice and resist its machinations are at particular risk for subverting both emergency rules and age based Ghosts (‘dead ideas and lifeless old beliefs’) that say ‘not a word not a word‘, every child is a potential target. The very reason we cherish children, the characteristics that distinguish their young age status, offer a means for bad actors (state and non-state) to achieve political or military-cum-political objectives — and turn them into specific targets.
Targets because of their evolving capacities and diminishing vulnerabilities to be used in hostilities as a means to achieve military objectives.
Targets because of their intrinsic worth to their families to punish and threaten their families and communities into silence; and persecute or oppress and dominate the same as members of a racial, national or ethnical group.
Targets because of their increased susceptibility and sensibility to serious psychological and bodily harm and death to expedite the destruction of part of a civilian population.
Targets because they are bearers of their group’s continuance as a source of life to deny their national, ethnical, racial or religious group’s right to exist.
Once targeted, the animus or discriminatory intent is marked on their young bodies and reflected in the nature and pattern of the constitutive act. Child specific persecutory acts, such as forcibly separating children from their parents, forcibly transferring them from their group or using children to actively participate in hostilities, are by their nature and scope driven by children’s young age. And even if the constitutive act is universal in nature and scope, used against adults as well as children, such as arbitrarily depriving persons of their liberty, personal security or life, the denial of children’s claim to specific measures of protection under international human rights law or special respect and protection under international humanitarian law, along with the cumulative effect of sequential or concurrent breaches may still signify intent. As six states intimate in their joint intervention to the International Court of Justice in The Gambia v Myanmar case, the pattern of military or law enforcement conduct, specifically, they argue, the targeting of children on a ‘significant scale’, may negate suggestions that serious breaches were lawful: necessary to counter a threat to life under international human rights law or incidental to the concrete and direct military advantage anticipated under international humanitarian law. Whatever its form children’s higher susceptibility and sensibility to harm lowers the threshold for breaches to be regarded as severe and makes the breach more serious. And yet this atrocity crime, though particularly serious by its nature and its young target, is perpetrated and endured without a word.
The denouement of young age discriminatio
Like an illusionist, children’s universally and accepted claim to specific rights, though necessary, seems to screen its fundaments and deflect attention away from their susceptibility to young age discrimination. Though crimes targeting children are recognised of particular concern to the international community as a whole and among the most serious of international crimes, the serious breach of international law they entail is barely recognised. Unlike the prohibition on racial discrimination, and like the prohibition on gender discrimination, it is not included on lists of peremptory norms; and in for example the Statute of the International Criminal Court‘s article 7 1 (h) defining the crime of persecution, it falls under ‘other grounds that are universally recognised as impermissible under international law’. And though the Office of the Prosecutor of the International Criminal Court, in its Policies on Gender Persecution and Children, distinguishes between crimes against and affecting children and interprets in the ground of age, neither policy clarify the discriminatory intent that drives the specific crime of young age persecution of children. Unlike the crime of gender persecution, it is a crime without the effective power of a name or principles for determining action towards justice. Though it lies at the root of crimes targeting children, as Sonja Grover argues in The Persecution of Children as a Crime Against Humanity The Case for Prosecution it has yet to be prosecuted. When for example members of the Security Council invoke responsibility for serious breaches of children’s fundamental rights or the International Criminal Court’s Office prosecutes crimes against children, the focus is on the linked breach or crime; and even then only if it coheres with idea systems supposed to have been abrogated by international human rights law, leaving some children without redress at all and radical or root justice for all children ‘like an acorn in the winter’.
the child is not dead
Over thirty-seven years since Oliver Tambo’s opening address to the International Conference on Children, Repression and Law in Harare, Zimbabwe (a conference that made headlines across the world), and over thirty years since Nelson Mandela’s inaugural State of the Nation address, Ingrid Jonker’s child is still not dead ‘not at [Dara’a] Langa nor at [Yangon] Nyanga / not at Donestsk Orlando nor at [Al Hadra] Sharpeville / nor at [the refugee camp at Jenin] the police station at Philippi / where he lies with a bullet through his brain’. Though this crime has deep roots and broad 21st-century iterations, since the atrocity crimes of October 7, 2023, Gaza has become its apotheosis, manifest not only in the nature, pattern and purpose of the severe deprivation of children’s fundamental rights but in its scale. And yet it appears as an apparition, dislimned by the occupying power and assisting states’ suggestions of lawfulness and the international community as a whole’s failure to make this crime visible. Like its young target, it is ‘present at all assemblies and law-givings’, waiting to be accounted for. In the silence, the upcoming treaty negotiations on preventing and punishing crimes against humanity, and the core text that is to serve as a basis for the negotiations, the International Law Commission’s 2019 Draft Articles, offer a ground for giving it the effective power of a name.
And in the dirt lay justice like an acorn in the winter
Till its oak would sprout in Derry where [the young] the thirteen men [7 teens] lay dead.
Inspired from Ingrid Jonker’s The Child is Not Dead, Louise Glück’s Averno 1 (to be alone), Henrik Ibsen’s Ghosts, Eavan Boland’s Art of Empire (not a word not a word) and Seamus Heaney’s The Road to Derry, informed from my research on the partiality of international justice for children in situations that threaten international peace and security and background to #Justice4Kids2028.