Prosecuting International Crimes Against Children

Abstract

States in post-conflict situations are faced with extremely difficult choices as they try to find the right balance between judicial and non-judicial means to improve accountability for crimes committed during the conflict and to contribute to national reconciliation. These choices are made on the basis of the specific circumstances of each state. Nevertheless, due consideration should be given to the duties imposed on states by international law. This paper presents a short overview of the obligations of states under international law to prosecute persons accused of genocide, war crimes, crimes against humanity, torture and enforced disappearances, specifically focusing on crimes against children. It also reviews international norms regarding children who may be accused of having participated in the commission of such crimes themselves – for example, as child soldiers – and identifies some outstanding questions regarding their criminal responsibility for such acts. Children are widely affected by atrocities as victims and have been specifically targeted for some international crimes. The recruitment of children for participation in an armed conflict is one of the most frequent and egregious violations targeting children. It is prohibited under several international conventions. The Special Court for Sierra Leone established that such recruitment below the age of 15 years is also a crime under customary international law. The Rome Statute for the International Criminal Court also recognizes criminal responsibility for under-age recruitment. This paper examines the implications of these developments and addresses some questions raised in the Lubanga and Katanga cases before the International Criminal Court. The fact that the very first cases to be tried by that court concern the recruitment of child soldiers or the use of children to actively participate in hostilities underscores both the seriousness of these crimes and the international priority to try to punish their perpetrators. Analysis of these recent developments and the evolving norms of international law and state practice show that states have a duty to prosecute persons accused of having committed international crimes if these acts occurred within their own territory. The obligations to prosecute alleged perpetrators of international crimes committed abroad, based on the principles of active or passive nationality or universal jurisdiction, vary from one crime to the other. At the same time, states often adopt amnesty laws that preclude prosecution for crimes committed during a conflict. This paper examines the permissibility of amnesties under international law, distinguishing between different types of amnesties used by states (e.g. „self-amnesties‟ and amnesties as part of a peace agreement). It concludes that no firmly established rule of international law expressly prohibits states from granting amnesties. However, according to a recent trend in national and international jurisprudence, amnesties for international crimes and serious human rights violations are increasingly being condemned. Moreover, a trend has emerged over the last 10 years of excluding application of amnesties to genocide, war crimes and crimes against humanity. This paper argues that states should reinforce these trends and refrain from adopting amnesties, in particular for crimes against children such as their recruitment in armed forces or groups. This will in turn reinforce state practice and may improve accountability and respect for the rule of law. The paper thus focuses on how international law regulates the prosecution of adults accused of crimes against children. It acknowledges that international norms are also evolving with regard to children, including child soldiers, who are accused of having participated in the commission of international crimes themselves. There is a consensus among states that these children should be considered primarily as victims, because they are often illegally recruited and they bear only limited, if any, responsibility if they commit such serious crimes. The paper briefly addresses the main contours of the normative framework regarding the criminal responsibility of children for their alleged participation in international crimes. It highlights some unresolved questions and points for discussion on this issue which, in a sense, represents „the other side of the coin‟ of the main topic of this paper.