Somalia, the fate of Children in the conflict Case Essay
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Somalia, the fate of Children in the conflict Case Essay
. Classification of the situation
1. (Paras [2], [23]-[24])
a. How would you classify the situation in Somalia? Does al-Shabaab fulfil the requirements for being a party to a non-international armed conflict? What evidence speaks for it to be? Against this position? If there is a non-international armed conflict, which treaties apply? (GC I-IV, Art. 3; P II, Art. 1)
b. Does it matter for the application of IHL that the UN and almost all key foreign governments recognize the TFG as the legitimate government of Somalia? What impact does the political situation have on the qualification of the conflict? (GC I-IV, Art. 2(1))
c. Do the interventions of AMISOM, Kenya and Ethiopia and the support of the TFG by Western countries have an impact on the qualification of the conflict? Does the intervention of other states automatically make any conflict international?
II. Protection of children during hostilities
2. (Paras [3], [4], [16], [17])
a. Are children afforded specific protection in non-international armed conflicts? (P II, Art. 4(3) and 6(4); CIHL, Rules 135-137)
b. Do the al-Shabaab fighters violate IHL when using schools as firing positions? (P II, Art. 13(1); CIHL, Rules 22-24)
c. Are schools a legitimate military objective under IHL? Do they become one for the TFG or AMISOM forces if they are used by al-Shabaab fighters as firing positions? Which principles must be observed when attacking schools? In which cases must these forces refrain from launching an attack? (P I, Arts 51, 52 and 57; CIHL, Rules 8, 9, 10, 14-21)
d. Are TFG or AMISOM forces allowed to target students who are being used by al-Shabaab fighters as human shields? Under which circumstances? Is the use of human shields allowed under IHL? Which principle does it certainly violate? (P II, Art. 13(1); CIHL, Rules 22-24, 97)
III. Recruitment of children
3. (Paras [4]-[8], [14], [15])
a. Is the forced recruitment of civilians prohibited by the IHL of non-international armed con?icts? If the recruited persons are above 18 years of age? If they are between 15 and 18? If they are below 15? What if the children voluntarily enlist? In the governments forces? In a non-state armed group? What are the differences between the formulations of the provisions relating to child soldiers addressed to governments and armed groups? (GC I-IV, Art. 3; P II, Art. 4(3)(c); CIHL, Rules 136-137; 1989 Convention on the Rights of the Child, Art. 38(2) and (3); The International Criminal Court, Art. 8(2)(e)(vii); See Document, Optional Protocol on the Convention on the Rights of the Child, on the Involvement of Children in Armed Conflict, Arts 1-4;)
b. Is the TFG obliged under IHL to ensure that their soldiers are above the prescribed age by conducting age screening procedures?
c. Who is bound by the different international instruments prohibiting the recruitment of children? The state parties? Non-state armed groups operating on the territory of a state party?
d. How can the distinction between voluntary and forced recruitment be drawn? To what extent can a child give its consent to being a child soldier? Are the spreading of extremist propaganda and the promise of material rewards sufficient to imply a degree of coercion amounting to forced recruitment?
e. How can a distinction be drawn between child soldiers that take a direct part in hostilities and those who do not? Does the different formulation in the two Additional Protocols also entail a different meaning (P I, Art. 77(2); P II, Art. 4(3)(c))? Should the notion of direct participation in this context be interpreted in the same way as in the context of conduct of hostilities? What are the consequences of these interpretations for children used in support roles?
4. May child soldiers be classified as combatants in a non-international armed conflict? In international armed conflicts?
5. Does IHL allow the targeting of child soldiers who are actively participating in hostilities? Who are directly participating in hostilities? Who have a continuous fighting function? Does the principle of necessity applied in the context of IHL require the attacking forces to try to capture a child soldier before killing it? (P II, Art. 4(3)(d); see Document, ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities)
6. (Para. [13]) May the TFG detain child soldiers from al-Shabaab? On which legal basis? Is your answer different if the child is captured on the battlefield or escaped from al-Shabaab? Do the children still benefit from special protection when they are detained? (P II, Art. 4(3)(d); CIHL, Rule 135)
7. Do the recruiting methods of al-Shabaab violate the prohibition to commit acts or threats of violence the primary purpose of which is to spread terror among the civilian population? (P II, Art. 4(2)(d); CIHL, Rule 2)
IV. Control of curriculum and restrictions on girls
8. (Para. [18])
a. Does IHL guarantee the right to education for children in a non-international armed conflict? (P II, Art. 4(3)(a))
b. Do human rights apply in the present situation? Are non-state armed groups bound by international human rights law? If they exercise effective control over a territory? Can Somalia be held responsible for the violations of human rights by al-Shabaab?
c. How is the relationship between a non-state armed group exercising effective control over a territory and the local population regulated in the law of non-international armed conflicts? Is IHL of military occupation applicable to the situation in Somalia? To what extent does al-Shabaabs role similar to that of an occupying power in the regions under its control? Could the discussed provisions, or some of them, therefore be applied by analogy? What is the opinion and practice of states and armed groups relating to this matter? If the law of occupation was applied by analogy, could al-Shabaab change the curriculum of schools in a fundamental way and enforce restrictions on girls dress and interactions with male students?
V. Treatment of soldiers within al-Shabaab
9. (Paras [9]-[11])
a. Does the treatment of male child soldiers by al-Shabaab violate IHL? Does its treatment of female child soldiers violate IHL?
b. Does IHL traditionally prohibit such practices within one party to the conflict? Could the fundamental guarantees in Article 4 of Protocol II also apply to victims of such abuses by their own party to the conflict? What could be your argumentation?
c. Do human rights apply in this situation? Can Somalia be held responsible for al-Shabaabs treatment of its own members?
VI. Restrictions on humanitarian access
10. (Paras [25]-[29])
a. May al-Shabaab be held responsible for not supplying the local population with food to the extent possible? Is al-Shabaab allowed to restrict the work of aid agencies? Under which circumstances? Can it restrict the freedom of movement of people seeking access to humanitarian assistance? (P II, Arts 13-14 and 18; CIHL, Rules 53-56)
b. Are humanitarian workers protected from threats and attacks under IHL? (P II, Arts 13 and 18; CIHL, Rule 31)
c. Under which conditions does IHL allow the diversion of humanitarian aid? Can the provisions of Protocol I be applied by analogy in this case? (CIHL, Rule 55; P I, Art. 70)
VII. Implementation of IHL
11. (Paras [19]-[20])
a. Can the TFG and AMISOM waive their obligations under IHL as a response to al-Shabaab atrocities? (CIHL, Rules 140 and 145)
b. For which type of violations of IHL may individuals be held criminally responsible? Under which conditions may commanders be prosecuted for such acts? (GC I, Art. 50; GC II, Art. 51; GC III, Art. 130; GC IV, Art. 147; P I, Art. 85; CIHL, Rules 151-155)
c. Does Somalia have an obligation under international law to prosecute persons responsible for violations of IHL? If they were committed by members of the TFG forces? If they were committed by al-Shabaab? Does your answer vary in cases of international armed conflicts? (GC I, Art. 49; GC II, Art. 50; GC III, Art. 129; GC IV, Art. 146; CIHL, Rule 158)
12. (Paras [19] and [21]) Do the UN, US and EU violate IHL by offering political and financial support to Somalia without effectively demanding that the TFG respect IHL? What obligations do states have when it comes to ensuring that other state parties respect IHL? Do these obligations also apply in non-international armed conflicts? (GC I-IV, common Art. 1; CIHL, Rule 144)
RUBRIC
Excellent Quality
95-100%
Introduction 45-41 points
The background and significance of the problem and a clear statement of the research purpose is provided. The search history is mentioned.
Literature Support
91-84 points
The background and significance of the problem and a clear statement of the research purpose is provided. The search history is mentioned.
Methodology
58-53 points
Content is well-organized with headings for each slide and bulleted lists to group related material as needed. Use of font, color, graphics, effects, etc. to enhance readability and presentation content is excellent. Length requirements of 10 slides/pages or less is met.
Average Score
50-85%
40-38 points
More depth/detail for the background and significance is needed, or the research detail is not clear. No search history information is provided.
83-76 points
Review of relevant theoretical literature is evident, but there is little integration of studies into concepts related to problem. Review is partially focused and organized. Supporting and opposing research are included. Summary of information presented is included. Conclusion may not contain a biblical integration.
52-49 points
Content is somewhat organized, but no structure is apparent. The use of font, color, graphics, effects, etc. is occasionally detracting to the presentation content. Length requirements may not be met.
Poor Quality
0-45%
37-1 points
The background and/or significance are missing. No search history information is provided.
75-1 points
Review of relevant theoretical literature is evident, but there is no integration of studies into concepts related to problem. Review is partially focused and organized. Supporting and opposing research are not included in the summary of information presented. Conclusion does not contain a biblical integration.
48-1 points
There is no clear or logical organizational structure. No logical sequence is apparent. The use of font, color, graphics, effects etc. is often detracting to the presentation content. Length requirements may not be met
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Somalia, the fate of Children in the conflict Case Essay