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50 Harv. Int'l L.J. 61 (2009)
Other Peoples' Children: A Textual and Contextual Interpretation of the Genocide Convention, Article 2(e)

handle is hein.journals/hilj50 and id is 63 raw text is: VOLUME 50, NUMBER 1, WINTER 2009 Other Peoples' Children: A Textual and Contextual Interpretation of the Genocide Convention, Article 2(e) Kurt Mundorff* The 1948 Genocide Convention, 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, this provision has received little attention. This Article lays out the prima facie elements that must be satisfied to bring a claim of genocidal forcible child transfer. It asserts that a perpetrator's mixed intents or benevolent motivations toward the individual children involved will not absolve the perpetrator when forcible child transfers amount to genocide. This Article also places Article 2(e) in historical context by considering the factors that led to its inclusion in the Genocide Convention, and contextualizes 2(e) within the emerging international case law on genocide. In addition, by fully developing the arguments around Article 2(e), this Article broadens current concep- tions of genocide. In particular, it challenges current doctrine, which limits culpability to purely physical and biological destruction, by exploring the manner in which forcible child transfer has cultural effects that destroy protected groups. Finally, this Article highlights several programs, including the American Indian boarding school program and Australia's Aboriginal removal programs, and argues that these could be considered genocide. I. INTRODUCTION You first taught me the white man's road. I am now very poor and disconsolate. All you gave me is gone, and if you can send me any clothes or something to work in I will be thankful. I have no tools to work with, or plows to work the ground to make corn. Can you send me some? I am again a Comanche. I was compelled to go back to the old road, though I did not want to, but I had no pants and had to take leggings. I never have any money, for I cannot earn it here, and my heart told me to come to you for help, and perhaps you could send these things to me. I have no piece of ground for my own, and now when I want to work the white man's road and learn it, I have nothing to do it with. I am work- ing first on this man's ground, then on somebody else's, and I am * Ph.D. Student, LL.M., The University of British Columbia, Faculty of Law; J.D., Benjamin Car- dozo School of Law; M.A., John Jay College of Criminal Justice; B.A., University of Oregon. I am especially indebted to Judy Mosoff and Wes Pue for providing insightful comments and unflagging support. Thank you also to Emily Compton for valuable editorial comments. Finally, I want to thank the Article Editors of the Harvard International Law Journal, Hanseul Kang and Jennifer Yu.

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