Children and Accountability for International Crimes

Abstract

This paper analyses the extent to which international and „mixed‟ or „hybrid‟ criminal courts, in particular the International Criminal Court (ICC), have focused on crimes against children and dealt with children as victims, witnesses and potential offenders. While the earlier international courts -notably the International Military Tribunals of Nuremberg and Tokyo and the United Nations Tribunals for the former Yugoslavia and for Rwanda- referred mainly to crimes against children as part of other atrocities against civilians or against certain ethnic or religious groups, crimes against children are now receiving more focused attention. The paper underlines the major role played recently by international courts, notably the Special Court for Sierra Leone, followed by the ICC, in criminalizing as war crimes the conscription or enlistment of children and their use to participate actively in hostilities. The Special Court was the first to hand down convictions for these crimes. The first cases before the ICC also concern the unlawful recruitment of children or their use in hostilities, bringing these crimes to the fore. The paper emphasizes that despite the significant contributions of international courts to the understanding of how children are being victimized, much more remains to be done to fully document the extent of extreme violence they suffer. The current focus on the recruitment and use of child soldiers should not detract from other child victims and from the need to pursue accountability for other international crimes against children. Time and again, children are killed, tortured, enslaved or raped and are victims of genocide, crimes against humanity and other international crimes falling within the mandate of international courts. Yet the extent to which international and mixed tribunals have recognized and litigated these crimes remains limited. While international courts cannot prosecute each of these crimes, they can and should contribute to identifying the systematic, widespread or endemic patterns of criminality affecting children, whether or not it takes place during conflicts. Regarding children suspected of having participated in crimes, the paper establishes that none has been tried for international crimes by international courts. These courts have not prosecuted children because they are deemed not to be among those bearing the greatest responsibility for the worst crimes. International jurisdictions address the commission of crimes against rather than by children. This paper posits that children who have participated in international crimes should be considered primarily as victims, especially when the circumstances surrounding these crimes are inherently coercive. Yet some forms of acknowledgement, in a protective environment, may in certain circumstances be in the interest of these children and facilitate their rehabilitation and reintegration. Deconstructing the circumstances that led to children‟s involvement in international crimes may enable them, their victims, their families and their communities to better understand the causes, nature and consequences of what happened and how, thus diminishing the stigma attached to the children concerned. After presenting the relevant procedural provisions applicable before international courts, in particular the ICC, when interacting with child victims or witnesses, or with adults testifying about crimes they have experienced as children, the paper offers recommendations concerning specific areas where international practice could be improved. The paper concludes that it is important for children to emerge as a recognized category of victims, because the process acknowledges and empowers them. It is essential to break away from an adult-centric understanding of international crimes and acknowledge that, in numerous contexts, victims and witnesses of international crimes are children, and as children, they have specific rights and specific needs.