From Syria to the Central African Republic, war has many victims. But it is children that often suffer most. A reported one billion under 18 lived in conflict areas over the past two decades, with many of these forced to fight as soldiers.
Access to justice for children, whether through local courts or international tribunals, can no longer be ignored.
Prosecuting crimes against children at the ICC
One of the most important avenues for justice that exists for children today is the ICC.
The preamble to the Rome Statute—the Court’s founding treaty—recognizes that during the 20th century millions of children have been victims of unimaginable atrocities that deeply shock the conscience of humanity.
The Statute gives the Court jurisdiction over many of the most serious crimes that are committed against children, and provides special safeguards for child victims and witnesses during Court proceedings.
The ICC currently has jurisdiction over three main categories of crimes—genocide, crimes against humanity and war crimes—any one of which children can fall victim to.
Regarding genocide, the Statute criminalizes the forcible transfer of children from one group to another.
The crime against humanity of enslavement, a crime that poses a particular risk for children, features a special provision for the trafficking of children.
Finally, the Rome Statute includes the conscripting, enlisting and use of child soldiers as a war crime, a first in international law.
Individuals responsible for any of these harms against children may face prosecution.
Child protection under the Rome Statute
The Rome Statute also protects child victims or witnesses from further trauma.
The Court has a specially-dedicated Victims and Witnesses Unit that is mandated to, among other things, facilitate testimony from children. The Unit has staff with special expertise in handling cases of children suffering from trauma related to sexual and other violence.
Additionally, the Rome Statute requires member states to consider the need for judges to have legal expertise in the area of violence against children when filling judicial vacancies.
Similarly, the ICC prosecutor and registrar are required to appoint advisors and staff with relevant expertise in child violence issues.
The prosecutor must also, in the course of investigating crimes, take appropriate measures with respect to the personal circumstances and interests of victims and witnesses, including age, and pay particular attention to the nature of the crime where it involves violence against children.
ICC judges may choose to conduct any part of a trial in a private session or allow for evidence to be provided through special means, such as electronically, in order to protect child victims and witnesses.
The protections in place for child victims at the ICC are doubly important because victims are empowered to participate in the Court’s proceedings.
Victims’ ability to participate in a meaningful capacity during proceedings is an important element of ensuring the effective and meaningful administration of justice.
Under the Rome statute, victims are granted greater rights even than those afforded to witnesses, and they are permitted to participate throughout the entirety proceedings, not only during the trial stage.
Indeed, to date more than 5,000 victims have been authorized to take part in the Court’s proceedings.
Child soldiers – an global problem
At a given moment, over 300,000 child soldiers—some as young as eight—are involved in armed conflict in around 30 countries around the world.
Around 300 million of these were under five. More than 18 million have become refugees or internally displaced. Many others have been recruited or coerced to fight as soldiers.
Children in conflict areas may become child soldiers in any number of ways.
Some, having their parents killed in fighting or by HIV/AIDS, are susceptible to exploitation by militias or armies.
Others are offered as soldiers by poor parents hoping for food or shelter in return, while still more—unable to understand the gravity of their situation—choose to fight in order to seek revenge on a rival tribe or ethnic group.
Regardless of the reasons why they become soldiers, such children suffer immense harm. Many of them are forcibly abducted into armed groups. Many are raped. Nearly all are forced to commit atrocities themselves.
Justice for children who suffer these terrible crimes is crucial. It provides child victims with an opportunity for redress and reparation.
Seeing justice done can also help children move through the healing process and demonstrate to them in a meaningful way that they are not to blame for the atrocities committed against themselves and their community, even if they were forced to play a part in them.
Lubanga conviction demonstrates impact
The conviction of Thomas Lubanga Dyilo for recruiting and using child soldiers in the ICC’s landmark first trial shows just what an impact the ICC can have.
Soon, victims who participated in the Lubanga proceedings by telling the Court, and the world, what happened to them—former child soldiers included—will have access to reparations that will help them and their communities come to terms with the crimes that have befallen them.
With its particular ability to work around difficult situations involving children and its emphasis on empowering victims, the ICC is uniquely placed to allow war’s youngest victims to pursue justice for themselves.
The conviction and sentencing of Lubanga for 14 years was an important moment for the victims of atrocities in Ituri, who found renewed hope for justice in the ICC.
However, the acquittal of in March of this year of Germain Katanga for child soldier war crimes in the DRC showed the difficulty in proving these types of charges.
Being given a voice can go a long way
More still needs to be done in the area of victims’ participation rights, but it is clear nonetheless that many steps have been taken toward ensuring that children and communities are afforded more direct control and ownership over their pursuit of justice and accountability for the abhorrent crimes that have been committed against them.
The emotional consequences of armed conflict require months to years of rehabilitation, but not all children can access such programs.
It is far better to prevent them from getting involved in armed conflicts in the first place, so that they will not have to bear the physical and emotional scars of their experiences for the rest of their lives.
But as the experience of the Lubanga trial demonstrates, for those children for whom prevention is too late a goal, being given a voice can go a long way.
Bukeni Tete Waruzi, the program manager for Africa and the Middle East at WITNESS:
“For the children, I think that they would agree that the ICC has given them the opportunity to use the power of their story, the power of their testimony, their experience to demand and obtain justice.”
Have your say – What do you think can be done to end the use of child soldiers around the world?
Follow @StephenLamonythe Coalition’s Senior Adviser on AU, UN and Africa situations.
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