Previously posted on SSRN.

Abstract

A ruling group at times takes certain children from 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 is seeking to arrest President Vladimir Putin and Child Rights Commissioner 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 to alter or erase the child’s identity. Using the ICC case as a springboard, the 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, plus an account of the evolution of international child law, inform the 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.

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