Child-Taking

A ruling group at times takes certain children out of their community and then tries to remake them in its image. It tries to rid the child of undesired differences, in ethnicity or nationality, religion or politics, race or ancestry, culture or class. There are too many examples: the colonialist residential schools that forced settler cultures on Indigenous children; the military juntas that kidnapped dissidents’ children; and today’s reports of abductions amid crises like that in Syria. Too often nothing is done, and the children are lost. But that may be changing, as the International Criminal Court (“ICC”) is seeking to arrest Russian President Vladimir Putin and Commissioner for Children’s Rights Maria Lvova-Belova for the war crimes of unlawfully deporting or transferring children from Ukraine to Russia.

This article examines the criminal phenomenon that it names “child-taking.” By its definition, the crime occurs when a state or similar powerful entity, first, takes a child, and second, endeavors, whether successfully or not, to alter, erase, or remake the child’s identity. Using the ICC case as a springboard, this article relies on historical and legal events to produce an original account of child-taking. Newly available trial transcripts help bring to life a bereft mother and five teenaged survivors, plus the lone woman defendant, who testified at a little-known child-kidnapping trial before a postwar Nuremberg tribunal. Their stories, viewed in the context of the evolution of international child law, inform this article’s definition. These sources further reveal child-taking to be what the law calls a matter of international concern. At its most serious, child-taking may constitute genocide or another crime within the ICC’s jurisdiction. Yet even if circumstances preclude punishment in that permanent criminal court, child-taking remains a grave offense warranting prosecution or other forms of local and global transitional justice. This is as true for the Indigenous children of residential schools in North America, Australia, and elsewhere, and for children in Syria and many other places in the world, as it is for the children of Ukraine.

∗ Diane Marie Amann, Regents’ Professor of International Law, Emily & Ernest Woodruff Chair in International Law, and Faculty Co-Director of the Dean Rusk International Law Center at the University of Georgia School of Law. I served as the Special Adviser to International Criminal Court Prosecutor Fatou Bensouda on Children in and affected by Armed Conflict from 2012 to 2021; after a preprint draft of this article was posted online, I was invited to serve on the Bring Kids Back UA Task Force, which aims to strengthen international frameworks for returning taken children. That said, this article is written solely in my personal capacity and does not necessarily reflect the views of any institution or entity. Aspects of this research were presented at the American Society of International Law Midyear Meeting Research Forum and to Yale University students in the United States, at the Siracusa International Institute for Criminal Justice and Human Rights in Italy, and at University College London Faculty of Laws, University of Cambridge Faculty of Law, and King’s College London in the United Kingdom. Thanks to participants at those events, and to Aypayuq/Jim LaBelle, Elena A. Baylis, Chanel Chauvet-Maldonado, Margaret M. deGuzman, Melissa J. Durkee, Alexander K.A. Greenawalt, Alonso Gurmendi Dunkelberg, Desirée Leclerq, A. Dirk Moses, Fionnuala Ní Aoláin, Tiernan O’Neill, Martins Paparinskis, Dan Plesch, Jaya Ramji-Nogales, William A. Schabas, Jonathan Todres, and Maria Varaki for their thoughtful comments. Special thanks, for rigorous and helpful editorial assistance, are due to Matt Azzopardi, Grace Bruce, and all the terrific staff of the Michigan Journal of International Law.