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Between the utopian imaginaries of literature and international law: The question of the insurgent child in international legal discourse and Kris Montañez’s Youth
Published online by Cambridge University Press: 16 September 2021
Abstract
This article argues that international law and the literature of civil war, specifically the narratives from the Philippine communist insurgency, present two visions of the child. On the one hand, international law constructs a child that is individual and vulnerable, a victim of violence trapped between the contending parties. Hence, the child is a person who needs to be insulated from the brutality of the civil war. On the other hand, the article reads Filipino writer Kris Montañez’s stories as revolutionary tales that present a rational child, a literary resolution of the dilemmas of a minor’s participation in the world’s longest-running communist insurgency. Indeed, the short narratives collected in Kabanbanuagan (Youth) reveal a tension between a minor’s right to resist in the context of the people’s war and the juridical right to be insulated from the violence. As their youthful bodies are thrown into the world of the state of exception, violence forces children to make the choice of active participation in the hostilities by symbolically and literally assuming the roles played by their elders in the narrative. The article concludes that while this narrative resolution appears to offer a realistic representation and closure, what it proffers is actually a utopian vision that is in tension with international law’s own utopian vision of children. Thus, international law and the stories of youth in Kabanbanuagan provide a powerful critique of each other’s utopian visions.
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Footnotes
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I would like to thank the University of Hong Kong, Faculty of Law for supporting this research, my supervisor Dr. Marco Wan for his critical comments and unwavering support for this project, Dr. Lulu Reyes for her invaluable corrections and suggestions, the editors and anonymous reviewers of Leiden Journal of International Law for the enlightening comments that vastly improved the form and substance of the article, and, of course, Wenxin for the conversation. It goes without saying that the author alone is responsible for any lapse in thought and style.
References
1 M. Freeman, ‘Introduction’, in M. Freeman (ed.), Children’s Rights: Progress and Perspectives (2011).
2 C. Conde, ‘Dispatches: Fighting over Child Soldiers in the Philippines’, Human Rights Watch, 16 February 2016, available at www.hrw.org/news/2016/02/16/dispatches-fighting-over-child-soldiers-philippines. Conde notes the dubious record of the Philippine military in attributing child recruitment to the rebels. The Philippine Government has been struggling with the Communist New People’s Army (NPA) since 1968. It is now one of the world’s longest civil wars. Some of the leaders of the Communist Party of the Philippines (CPP) are currently exiled in Utrecht, The Netherlands.
3 There were around a quarter of a million child soldiers in 2017 according to the World Health Organization. J. Marten, The History of Childhood: A Very Short Introduction (2018), at 103. This figure is far below the number of child soldiers in the American civil war or in the army of Great Britain during the First World War. David Rosen argues that the controversy is not due to the increasing number of child soldiers, but to the changing idea of childhood: D. M. Rosen, ‘Child Soldiers in Historical and Comparative Perspective: Creating a Space for Data-driven Analysis’, in M. A. Drumbl and J. C. Barrett (eds.), Research Handbook on Child Soldiers (2019), at 151–8.
4 Mark Drumbl has identified four images of the child soldier in transnational discourses: i) The faultless victim; ii) The lost generation; iii) The hero; iv) The demon/bandit. Among the four images, it is the ‘victim’ that dominates international discourse and guides law and policy: M. A. Drumbl, ‘The Effects of the Lubanga Case on Understanding and Preventing Child Soldiering’, in T. D. Gill et al. (eds.), Yearbook of International Humanitarian Law (2012), at 94.
5 See J. Gelden and R. Stites (eds.), Mass Culture in Soviet Russia: Tales, Poems, Songs, Movies, Plays and Folklore 1917-1953 (1995).
6 See the chapter ‘Little Red Devils’, in E. Snow, Red Star over China (1968).
7 N. Cantwell, ‘The Origins, Development, and Significance of the United Nations Convention on the Rights of the Child’, in H. J. Steiner and P. Alston (eds.), International Human Rights in Context: Law, Politics, Morals (2000), at 513; see K. Montañez, ‘Mula sa Awtor’, Kabanbanuagan (1987).
8 See N. Machiavelli, The Prince (translated by H. Mansfield) (1998). Notably, the heroic images in Youth differ from the literary representations of African child soldiers studied in M. Kamara, ‘In Search of the Lost Kingdom of Childhood’, in Drumbl and Barrett, Research Handbook on Child Soldiers, supra note 3, at 36. The African works problematize the images of the child-victim and soldier-perpetrator. These two images constitute a predominant narrative and counter-narrative that permit ‘gaps to open in the law’. See Rosen, supra note 3, at 171. In this context, the analysis of the tales in Youth may widen our own understanding of children in war as they focus on the child as hero/helper.
9 A. Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking about International Law (2016); K. Hanson and C. Molina, ‘Getting Tambo out of Limbo: exploring alternative legal frameworks that are more sensitive to the agency of children and young people in armed conflict’, in Drumbl and Barret, ibid. Drumbl has argued that ‘literary accounts’ tend to ‘unpack the subtleties of and contiguities of victim and perpetrators’ from which law may learn from. Cited in Kamara, ibid., at 45.
10 J. H. Dekker, ‘The Century of the Child Revisited’, in Freeman, supra note 1, at 488.
11 Ibid., at 490.
12 Ibid., at 480.
13 Ibid.
14 Ibid.
15 See note to P. Biyakhin, ‘The Little Red Devils’, in Gelden and Stites, supra note 5, at 36.
16 See Snow, supra note 6, at 322–3.
17 See Rosen, supra note 3, at 153. Rosen notes the unremarkable presence of the child in nineteenth century armies.
18 B. K. Barber, ‘Glimpsing the Complexity of Youth and Political Violence’, in B. K. Barber (ed.) Adolescents and War: How Youth Deal with Political Violence (2009), at 6.
19 M. Wessells and K. Kostelny, ‘Youth Soldiering: An Integrated Framework for Understanding Psychosocial Impact’, in Barber, ibid., at 106. For a discussion on the ‘lost generation’ see A. Dawes, ‘Political Transition and Youth Violence in Post-apartheid South Africa: In Search of Understanding’, in J. Hart (ed.), Years of Conflict: Adolescence, Political Violence and Displacement (2010), at 93–4.
20 See Wessells and Kostelny, ibid., at 120.
21 G. Hernandez, International Law (2019), at 389.
22 See Barber, supra note 18, at 6.
23 See Wessells and Kostelny, supra note 19, at 107.
24 Citing J. Boyden, in Barber, supra note 18, at 6.
25 Art. 1, UN Convention on the Rights of the Child (1989).
26 See Freeman, supra note 1, at 14.
27 Art. 38(2), (3) UN Convention on the Rights of the Child (1989).
28 See Cantwell, supra note 7, at 515.
29 Art. 1, Optional Protocol (2002).
30 Art. 4, ibid.
31 The New People’s Army critiques the protocol’s problematic definition of the child soldiers and for its bias against liberation movements. See Conde, supra note 2.
32 Art. 4 (3) Protocol II to the Geneva Conventions. Art. 77 of Protocol I also states the same rule. See Hernandez, supra note 21, at 389.
33 Hernandez, ibid.
34 See Wessells and Kostelny, supra note 19, at 105.
35 Ibid.
36 1959 UN Declaration on the Rights of the Child.
37 Principle 2, ibid.
38 Cited in H. Beirens, ‘UNHCR and the Military Recruitment of Adolescents’, in Hart, supra note 19, at 145.
39 K. H. Federle, ‘Rights Flow Downhill’, in Freeman, supra note 1, at 450; the images of helplessness lead to an essentialized victimhood, see also Drumbl, supra note 4, at 94.
40 See Principle 1.7.4, Paris Principles (2007).
41 Cited in M. Freeman, ‘To Take Children’s Rights Seriously’, in Freeman, supra note 1, at 17–18.
42 Hernandez, supra note 21, at 389, 449–50; Drumbl, supra note 4, at 88.
43 Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeals against Trial Chamber II’s ‘Decision setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable’, ICC-01-/04/-01-06-3466-Red, 18 July 2019.
44 See Beirens, supra note 38, at 146.
45 Ibid., at 138.
46 Ibid., at 151–4.
47 See ‘Introduksyon’, in Muog: Ang Naratibo ng Kanayunan sa Matagalang Digmang Bayan (1998).
48 C. Hau, Necessary Fictions: Philippine Literature and the Nation, 1946-1980 (2000), at 255.
49 See Montañez, supra note 7.
50 Montañez, ‘On What his Father would Do’, ibid., at 13.
51 Ibid.
52 Ibid., at 17.
53 Ibid., at 18.
54 Ibid.
55 The folktale usually ends with ‘The hero is married and ascends the throne.’ V. Propp, Morphology of the Folktale (1977), at 63.
56 The ‘boondocks’ (Anglicized ‘bundok’ or mountain) were the last refuge of the anti-colonial insurgents that resisted the US recolonization of the islands in 1899.
57 In ‘Did many people attend the burial?’, the narrator ends the tale: ‘Ka Julian has no family, home, and farm to return to, but a whole guerilla front is waiting for him.’ See Montañez, supra note 7, at 12.
58 ‘Panty’, ibid., at 33. ‘Namundok’ (To leave the city for the mountains) suggests this utopian practice.
59 ‘Panty’, ibid., at 33–5.
60 ‘NPA Boy’, ibid., at 39.
61 Ibid.
62 Ibid., at 39–40.
63 Insurgents do not welcome everyone. See Y. Guichaoua, ‘Rebel Recruitment’, in G. K. Brown and A. Langer (eds.), Elgar Handbook of Civil War and Fragile States (2012), at 182.
64 See ‘Coffee’, supra note 7, at 98.
65 In his critical work, Montañez defines stock characters in mass art as devices for rendering the forces at work in society. One of these is ‘the boy who, starting out early in revolutionary work, is destined to follow the footsteps of his elders’. Cited in Hau, supra note 48, at 256. Marcial, Boy, and Sol belong to this type. My interpretation, however, emphasizes their immediate ascent to the adult role within the narrative.
66 See Montañez, supra note 7, at 16.
67 Ibid., at 39.
68 Ibid., at 96.
69 The title story ‘Kabanbanuagan’ (Youth) is an exception. It tells of Tim, a minor and organizer who was beaten until ‘his whole body was aching’. Montañez, ‘Kabanbanuagan’, ibid., at 22–3.
70 See Beirens, supra note 38, at 150.
71 See Montañez, ‘Toto’, supra note 7, at 63.
72 Ibid., at 67.
73 See Beirens, supra note 38, at 150.
74 LeVine and Rogoff as cited in Beirens, ibid.
75 Both stories have the same ending. After the task is fulfilled, the children attend their classes. See Montañez, supra note 7, at 35, 41.
76 Ibid., at vii.
77 This old rebellion is analysed in B. J. T. Kerkvliet, The Huk Rebellion: A Study of Peasant Revolt in the Philippines (2014).
78 See Montañez, supra note 7, at ii.
79 See Cantwell, supra note 7, at 515.
80 L. T. Sargent, Utopianism: A Very Short Introduction (2010), at 2.
81 Ibid.
82 Ibid.
83 F. Jameson, The Political Unconscious: Narrative as a Socially Symbolic Act (1983), 62.
84 Levi-Strauss, cited in Jameson, ibid., at 64 (emphasis added).
85 Ibid., at 64.
86 Ibid., at 281.
87 This mode of dreaming has been observed in narratives where the child is a dominant character, especially in folktales. Little Red Riding Hood, Hansel, and Gretel, and many more come to mind. Folk tales allow writers to express their visions of the ideal world. M. Warner, Fairy Tale: A Very Short Introduction (2018), at 75–85. Roman Jakobson also writes, ‘A [fairy] tale fulfils the role of a social utopia’. R. Jakobson, ‘On Russian Fairy Tales’, in Russian Fairy Tales (1945), at 650. This affinity between utopia, on one hand, and children’s tales and revolutionary writings, on the other, makes the utility of the notion of utopia in the analysis of Kris Montañez’s short fiction appropriate. Youth, which collects stories about children in the Philippine internal war, does have strong links to both folktales and revolutionary literary tradition. Aside from the child hero, the stories in Youth exhibit a familiar plot, similar motifs, and a ‘heroic optimism’ that make for happy endings – all general markers of a folktale.
88 See E. Pashukanis, ‘Law and Marxism’, in M. Freeman (ed.), Lloyd’s Introduction to Jurisprudence (2014), at 1010.
89 R. Gordon, ‘Law and Ideology’, in ibid., at 1034.
90 Jameson, supra note 83, at 64.
91 P. Gabel, ‘Reification in Legal Reasoning’, in Freeman, supra note 88, at 1043.
92 Ibid., at 1049.
93 Ibid.
94 Ibid.
95 Gabel describes him as ‘a social theorist of the imaginary’. Ibid.
96 Ibid.
97 L. Althusser, On Ideology (2020), at 36.
98 Jameson argues that all ideological visions are utopian since they are expressions of the unity of a collectivity. It follows that even conservative or statist texts may be considered utopian. See Jameson, supra note 83, at 276, 279, 281.
99 J. Crawford, Brownlie’s Principles of Public International Law (2019), at 29.
100 J. R. Slaughter, Human Rights, Inc: The World Novel, Narrative Form, and International Law (2012).
101 See N. Tadiar, Things Fall Away: Philippine Historical Experience and the Makings of Globalization (2009), at 345.
102 G. Kai, ‘People’s War’, in C. Sorece, I. Franceschini and N. Loubre (eds.), The Afterlives of Chinese Communism (2018), at 175.
103 Ibid.
104 R. K. Schoppa, ‘From Empire to People’s Republic’, in W. A. Joseph (ed.), Politics in China: An Introduction (2019), at 72.
105 Ibid., at 72–3, citing Ch’en Yungfa, Making Revolution: The Communist Movement in Eastern and Central China (1986).
106 See Hernandez, supra note 21, at 388.
107 M. Walzer, Just and Unjust Wars (1977), at 196.
108 See Montañez, supra note 7, at 18.
109 Ibid., at 31.
110 Ibid., at 35.
111 R. C. Ileto, Pasyon and Revolution: Popular Movements in the Philippines, 1840-1910 (1979), at 210.
112 Ibid.
113 Ka Bernie, an organizer who survived a massacre finds refuge with the rebels in the tale ‘Youth’. See Montañez, supra note 7, at 72.
114 Ibid., at 12.
115 Ibid., at 31.
116 Ibid., at 17.
117 Ibid., at 34.
118 Ibid., at 39.
119 J. Goldstein as cited in Federle, supra note 39, at 453.
120 Ibid., at 454.
121 Ibid.
122 Ibid.
123 Ibid., at 453.
124 I borrow here Jason Hart’s term ‘infantalising adolescents’. See J. Hart, ‘Introduction’, in Hart, supra note 19, at 3.
125 V. Pupavac, ‘The Infantilization of the South and the UN Convention on the Rights of the Child’, in H. Steiner and P. Alston (eds.), International Human Rights in Context: Law, Politics, Morals (2000), at 518.
126 See Federle, supra note 39, at 463.
127 Rationalism was also a main line of modern utopian thought. See E. H. Carr, The Twenty Years Crisis, 1919-1939 (1939), at 23.
128 See Paris Principles which state ‘… recruitment and use of children violate their rights … and causes them … harm’.
129 See Guichaoua, supra note 63, at 178.
130 Lord Acton on Plato, Plotinus, and More as cited in Carr, supra note 127, at 6.
131 K. Manheim, Ideology and Utopia (1936), at 203.
132 S. A. Smith, Russia in Revolution: An Empire in Crisis 1890-1928 (2017), at 391.
133 See Carr, supra note 127, at 11.
134 C. Gray, ‘The Use of Force and the International Legal Order’, in M. Evans (ed.), International Law (2018), at 601.
135 See Carr, supra note 127, at 13.
136 See the case of Prosecutor v. Thomas Lubanga Dyilo, 14 March 2012, Case No. ICC-01/04-01/06.
137 See Manheim, supra note 131, at 203.