Denver Journal of International Law and Policy

Here in the United States, there has been a recent uptick in news about the “humanitarian crisis” stemming from children migrating across Central America and coming across the United States southern border. The news reports are less frequent now than they were a few months ago, but over the summer months headlines of the “humanitarian crisis” flooded news services. On June 30, 2014, President Obama released a statement recognizing the “humanitarian crisis” that was stemming from the danger and violence in Central America resulting in the influx of children and individuals crossing the border. But what exactly is causing this humanitarian crisis? The current crisis is more than the current influx in border crossings, decades old problems facing youth in Central America is making the international issues of Central America feel very real here at home. See Maria Baldini-Potermin, A Step Forward and Back: The Border Crisis and Possible Solutions Focused on Fundamental Fairness and Basic Human Rights, 91 Interpreter Releases 1401, 1401-02 (2014).

In June 2014, Vice President Joseph Biden traveled to Guatemala to speak with leaders from Guatemala, El Salvador, Honduras, and Mexico to discuss the shared responsibility of the region. Vice President Biden was also trying to reiterate the current administration’s stance on the futility of trying to obtain legal status without a proper visa. Minors from Guatemala, El Salvador, and Honduras make up three quarters of the total numbers of migrants coming into the United States. Between last October and August, 63,000 undocumented children were detained at the southern border. Guatemala, El Salvador, Honduras, and Mexico, while addressing the situations within their own nations have also pushed back on the United State’s policy, seeking better conditions for the detained children in the United States and criticizing American drug consumption, which makes their nations the staging grounds for trafficking.

Unaccompanied Alien Children (UACs) by Location of Origin for CY 2014: Honduras, El Salvador, and Guatemala
Image Source: pewresearch.org

How does the United States’ deportation policy play into the “shared responsibility” idea? According to the home nations, it does not play out well. Children who are deported back to their home nation face the same violence they were fleeing and if they were trying to escape gang activity, it is often futile. The cycle of violence continues. The Americas have the highest rates of homicides of the UN regional breakdowns, with Central America having the highest rate within the region. There are two points of concentration that generate this violence: gangs and organized crime.

According to a study that Elizabeth Kennedy, a Fulbright Scholar, is conducting in El Salvador, children are migrating to the United States because of fear of gang violence. Currently, over 600 children have been interviewed for the study; these interviews are comprised of basic questions, questions about the child’s neighborhood and gang presence, and finally, why the child wants to go to the United States. Sixty percent of the children have listed gangs or violence as the reason that they want to migrate. After gang violence, the next highest-ranking reason for wanting to migrate to the United States is family reunification. Family reunification makes up 35 percent of the children interviewed, which is interesting because of how low that number is when considering that over 90 percent of these children have a family member in the United States, and over half have a parent in the United States. The numbers that Ms. Kennedy has uncovered around gang violence are particularly striking: 145 of 322 children live in a neighborhood with a gang present, 109 have been directly threatened, 14 have had a family member murdered by the gang, and 32 are so afraid they never leave their homes day or night.

There are common features between Guatemala, El Salvador, and Honduras that are pushing children, despite the danger, to attempt to migrate across Mexico to the United States. These reasons include poverty, institutional challenges (particularly in crime control), political instability, migration, and destruction of the social fabric. In El Salvador, there has been an active attempt to mitigate the gang violence and two years ago, there was truce designed to protect police and civilians. While initial results of the truce dropped murder rates by 40 percent, killings have since doubled. However, recently five gangs have approached the government wanting to reopen negotiations, but the President is hesitant to follow the gangs’ program. Mexico, meanwhile, has aggressively begun to sweep migrants off “La Bestia,” creating roadway checkpoints, and raiding safe houses along the voyage north. And not surprisingly, Honduras is facing monumental challenges in addresses migration problems when statistics show that 64.5 percent of Hondurans lived in poverty, economic growth is 2.2 percent and San Pedro Sula, is the world’s “murder capital.

Commentators suggest that the real way to solve the humanitarian crisis is to focus on the poverty, violence, and suppression that are preventing the people in these countries from maintaining a healthy livelihood, and to make humanitarian visas to the United States more accessible. It certainly does seem that just trying to stop transport via “La Bestia” is not going to change migration trends or protect the lives of those who are constantly under threat of gang violence. The only way to solve this humanitarian crisis is going to the source.

Alison Haugen is a 2L law student at the University of Denver Sturm College of Law and a Staff Editor for the Denver Journal of International Law and Policy.

An oft-stated axiom of international humanitarian law is that civilians can never be targeted in armed conflict, enshrined by rules 48, 51(2) and 52(2) of Additional Protocol I to the Geneva Conventions.  The International Committee for the Red Cross study of customary law affirms that under customary law civilians can not be targeted.

The London Blitz

However, the United Kingdom issued a “reprisal” reservation to the basic AP1 rules when it signed the convention in 1998, a reservation clearly based on its experience with the German bombing of London in World War II.   During the so-called “Blitz”, Germany indiscriminately bombed London for 76 straight nights (known as the Blitz).  Prior to the war, PM Chamberlain stated that aerial bombing of residential areas was clearly illegal, but once the Blitz started and with Germany posing an existential threat, the UK war department explicitly chose to target German residential areas rather than military targets.  The UK was clearly on the horns of a dilemma: its RAF bombers were suffering catastrophic losses when they attempted to bomb well-defended military targets in Germany.    The only viable way for RAF bombers to bomb Germany targets was to focus on civilian infrastructure in residential areas that was less heavily defended.   Of course, that meant killing lots of German civilians.

The Blitz dilemma was the basis of the 1998 reservation which reserved Britain’s limited right to target enemy civilian targets if UK citizens were being attacked.  The reservation states the UK must issue a formal warning to the adverse party first, and civilian-directed force will only commence if the warning is disregarded.  Also, the force used must be proportional to the violence to which it responds.  Finally, the right of reprisal ends once the adversary ceases its attacks.

So what do we make of the reprisal reservation?  The UK’s experience cannot be summarily dismissed, but what does it mean for humanitarian law?  Can it be argued that the right of reprisal exists in IHL?  Are there examples of state practice?  I.e., is it an argument that it was implicitly invoked by Israel in Operation Cast Lead or Sri Lanka in its war against the Tamils?  Both states were facing enemies that targeted civilians.  Lastly, what level of violence does IHL require a state to endure when facing an enemy that targets civilians?

The Taliban

I was pleased to see an article in which Amnesty International calls for the International Criminal Court (ICC) to investigate crimes by the Taliban in Afghanistan.

I have long felt that non-state actor groups that wage military style campaigns that intentionally target civilians get more lenient treatment in international criminal law circles.   For example, many international law commentators have called for an investigation into Israel’s three-week military campaign in Gaza Operation Cast Lead.  However, less frequently do have I seen the argument that Hamas should be investigated for the eight years preceding Cast Lead in which it fired thousands of missiles indiscriminately at Israel as a war crime or crime against humanity – except when added as a concession in an call to investigate Israel.

I find the similar is true with Sri Lanka, where there are calls for an investigation into Sri Lanka’s 2009 military campaign against the Tamil Tigers.  Prior to that campaign, I rarely saw arguments that  the Tamils should be investigated for their targeting of civilians, use of child soldiers, assassination of two world leaders, ethnic cleansing campaigns and abuse of prisoners of war in contravention of customary international law.

Should states be held to a higher standard than non-state actors?  Should a protracted terror campaign should be viewed less critically than a state military campaign?