Atrocity Crimes Children and International Criminal Courts: Killing Childhood 9781032420554, 9781032420578, 9781003361015

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“Cécile Aptel has written a must-read primer on international criminal law and child rights. Her book takes readers on the dark journey into the findings of International Courts concerning atrocity crimes committed against children – she provides a sobering account of the tragic impact of these crimes on children and their communities. Building on her own impressive experience, she charts a clear path for us all to do better in delivering justice to child-victims of international crimes.” Carla Del Ponte, former Chief Prosecutor of two UN international criminal tribunals, former Attorney General of Switzerland. “[The book] deftly blends the relevant international criminal law standards with international child rights law and international humanitarian law in dealing with international crimes committed against or by children. This original display of Prof Aptel’s erudite theoretical as well as practical grasp of the issues marks a timely contribution for academicians, students, judges, law and policy makers, and others working towards creating a violence-free world for all children.” Prof Benyam Dawit Mezmur, Member and former Chair of the United Nations Committee on the Rights of the Child & Eleanor Roosevelt Fellow, Human Rights Program, Harvard Law School. “Cécile Aptel’s book represents an essential contribution to the promotion of justice for children in wars. She presents an in-depth analysis of the methodologies and approaches used by international criminal jurisdictions that have considered international crimes committed against or by children. She also provides an impressive list of lessons learnt and good practices triggering suggestions for increased collaboration efforts and for the development of new tools, so that the investigations of crimes affecting children can be prioritized and become more systematic and effective.” Véronique Aubert, Save the Children UK’s Lead on Children and Armed Conflict & Special Adviser on Crimes Against and Affecting Children to the Prosecutor of the International Criminal Court.

Atrocity Crimes, Children and International Criminal Courts

This book shows how international criminal courts have paid only limited and inconsistent attention to atrocity crimes affecting children. It elucidates the many structural, legal, financial and even attitudinal obstacles, often overlapping, that have contributed to the international courts’ focus on the experience of adults, rendering children almost invisible. It reviews whether and how different international and hybrid criminal jurisdictions have considered international crimes committed against or by children. The book also considers how international criminal justice can help contribute to the recognition of the specific impact that international crimes have on children, whether as victims or as participants, and strengthen their protection. Finally, it proposes an agenda to improve this situation, making specific recommendations encompassing the urgent need to further elaborate child-friendly procedures. It also calls for international investigative and prosecutorial strategies to be less adult-centric and broaden the scope of crimes against children beyond the focus on child-soldiers. This book is an invaluable resource for academics, researchers and fieldworkers in the areas of international criminal law, international human rights law/child rights, international humanitarian law, child protection and transitional justice. Dr Cécile Aptel is an international legal practitioner recognised for her expertise in international criminal justice, international humanitarian law, human rights and child rights. She has over 20 years of experience in international affairs, working for several United Nations (UN) entities, thinktanks and non-governmental organisations, at headquarters and in Africa, the Middle East and the Balkans. She is currently the deputy director of the United Nations Institute for Disarmament Research, a UN thinktank on disarmament and security; and until 2019 was director and acting undersecretary general at the International Federation of the Red Cross and Red Crescent. Previously, she led the creation of the UN Mechanism on Syria; was the senior legal policy adviser to the UN high commissioner for human rights; and contributed to establishing the Special Tribunal for Lebanon, the Court of Bosnia-Herzegovina and, earlier, the UN International Criminal Tribunals for the former Yugoslavia and Rwanda. She is professor of practice at the Fletcher School, Tufts University, visiting scientist at Harvard University and visiting professor at the Geneva Graduate Institute and Geneva Academy.

Atrocity Crimes, Children and International Criminal Courts Killing Childhood

Cécile Aptel

First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 Cécile Aptel The right of Cécile Aptel to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-1-032-42055-4 (hbk) ISBN: 978-1-032-42057-8 (pbk) ISBN: 978-1-003-36101-5 (ebk) DOI: 10.4324/9781003361015 Typeset in Galliard by Taylor & Francis Books

Contents

Acknowledgements Overall summary Abbreviations and acronyms 1

Introduction

xi xiii xiv 1

1 International accountability for atrocity crimes 1 1.1 International and hybrid criminal courts 1 1.2 International atrocity crimes 10 2 Defining a ‘child’ 17 3 How international crimes affect children 22 4 Arguments and structure 25 2

The Legal Protection of Children under International Law 1 International human rights law 28 1.1 The human rights of children 28 1.2 Child rights 30 1.3 The Convention on the Rights of the Child 31 2 International humanitarian law 38 2.1 IHL treaties 39 2.2 Customary IHL 41 3 The prohibition of the recruitment and use of children in hostilities 41 4 The protection of children from recruitment and use in hostilities 44 5 Procedural guarantees 45 5.1 Protection of children during investigations 50 5.2 Protection in court 54 5.3 Participation of child-victims in the proceedings 56 6 Conclusion 58

28

viii Contents 3

International Courts and Child-Specific Crimes

59

1 Forcible transfer of children to another group 60 1.1 The Genocide Convention 60 1.2 Forcible transfers of children in Nazi Germany 61 1.3 The International Criminal Tribunals for the former Yugoslavia and Rwanda 65 1.4 The International Criminal Court 65 2 Conscripting or enlisting children or using them to participate actively in hostilities 68 2.1 The International Military Tribunal of Nuremberg 69 2.2 The Special Court for Sierra Leone 70 2.3 The International Criminal Court 74 2.4 Salient jurisprudential findings 81 3 Attacks against buildings dedicated to education 91 4

International Courts and Child-Victims of Generic Atrocity Crimes 1 The International Military Tribunal of Nuremberg 99 1.1 Crimes against children as part of the civilian population 101 1.2 Crimes against Jewish children 104 1.3 Nazi indoctrination and mobilisation of youth 106 1.4 Concluding remarks 108 2 The International Military Tribunal for the Far East 109 2.1 Indoctrination 109 2.2 Crimes against non-Japanese children in occupied territories 112 2.3 Sexual crimes 115 2.4 Concluding remarks 117 3 The International Criminal Tribunal for the former Yugoslavia 117 3.1 Crimes against children targeting the civilian population in general or a specific group 123 3.2 Killing of boys 125 3.3 Sexual crimes 128 4 The International Criminal Tribunal for Rwanda 131 4.1 Children victims of genocide 132 4.2 Sexual crimes 136 5 The Special Court for Sierra Leone 138 5.1 Additional crimes against ‘child-soldiers’ 139 5.2 Sexual crimes 141

98

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ix

5.3 Forced marriage 143 5.4 Crimes against other children 148 6 The International Criminal Court 150 6.1 The Lubanga case 153 6.2 The Katanga case 156 6.3 The Ntaganda case 158 6.4 The Ongwen case 163 7 Conclusion 166 5

International Courts and Children Involved in International Crimes

167

1 Minimum age of criminal responsibility and juvenile justice 168 1.1 Juvenile justice 168 1.2 Minimum age of criminal responsibility 170 2 International criminal jurisdictions and children involved in crimes 172 2.1 The International Military Tribunals of Nuremberg and Tokyo 173 2.2 The International Criminal Tribunal for the former Yugoslavia 175 2.3 The International Criminal Tribunal for Rwanda 177 2.4 Hybrid or mixed courts 179 2.5 The International Criminal Court 184 3 Children involved in crimes as witnesses before international courts 192 4 What is in the best interests of the children involved in crimes? 194 5 Children involved in crimes and transitional justice 201 5.1 Peru 201 5.2 Sierra Leone 202 5.3 East Timor 203 5.4 Liberia 203 5.5 Concluding remarks 205 6

Conclusion and Recommendations 1 International criminal courts and children: accomplishments and failures 206 1.1 The International Military Tribunal of Nuremberg 206 1.2 The International Military Tribunal of Tokyo 208 1.3 The International Criminal Tribunal for the former Yugoslavia 209 1.4 The International Criminal Tribunal for Rwanda 210

206

x

Contents 1.5 The Special Court for Sierra Leone 213 1.6 East Timor Special Panels for Serious Crimes 216 1.7 The International Criminal Court 216 1.8 Concluding remarks 219 2 Explaining these accomplishments and failures 220 2.1 External circumstances 220 2.2 Surmounting internal obstacles 225 3 An agenda for improvement 234 3.1 Child-friendly procedures 234 3.2 Beyond child-soldiers: a broader scope 236 3.3 Rethinking the international investigative and prosecutorial strategies 242 4 Conclusion 249 Bibliography Index

252 266

Acknowledgements

This book seeks to encompass the results of many years of research and practice. I started it with the intent to demonstrate the scope of the victimization of children when mass atrocities are committed, and the relatively little attention paid by international criminal jurisdictions to the crimes that children suffer. I was personally confronted by this gap when I worked at the International Criminal Tribunals for the former Yugoslavia and Rwanda in their early years, as I helped to set them up and directly contributed to the first decade of their judicial work, drafting some of the landmark judgments that are analysed in this publication. There, I compared the prosecution strategy with what I had seen on the ground, working in the humanitarian sector in the former Yugoslavia itself as the crimes were ongoing a few years earlier. And I realised that we were failing children; not giving them a voice; leaving untold the devastating harm they suffered. Ultimately, children were too often invisible among the victims. From my first-hand experience of the impact of mass atrocities on children, I know that they are both vast in terms of the number of victims and deep in terms of the gravity of the impact. Children are not only largely represented among the victims of genocide, crimes against humanity and war crimes, but also generally much more deeply affected – both physically and psychologically – than older victims, because of their particular vulnerability. The vast gap between the number of child-victims and the acuity of their suffering on the one hand, and the limited attention paid by international criminal jurisdictions and other transitional justice mechanisms to these crimes on the other, is disheartening. As my research progressed, over the last few years I have written or co-written several pieces on topics related to the subject of this book. These permeate all the chapters and some sections draw heavily on them. I have also been an advocate participating in raising attention for this issue, shaping the agenda and helping to promote accountability for crimes against children – notably in my functions at the United Nations (UN) Office of the High Commissioner for Human Rights and previously at the International Center for Transitional Justice, where I launched the Children and Transitional Justice Program; at the United Nations Children’s Fund (UNICEF), as an expert consultant; at the US Institute of Peace, which awarded me a Jennings Randolph senior fellowship to lead research in this area; and at the International Criminal Court (ICC) – notably through the filing of an

xii Acknowledgements amicus curiae brief on children’s right to reparations, participation in the drafting of the Prosecutor’s Policy on Children and the recent efforts of its chief prosecutor to give greater visibility to children. I am very humbled to have been able to help shape the debate around international crimes and children. Throughout these experiences, many rich exchanges and discussions have informed my thinking. Among those who have been most influential are Robert Roth and the late Nino Cassese, under whose direction I started my doctoral studies. I am most grateful to Professor Roth for his insightful guidance and patient support. The many other great minds who have contributed to my understanding of the law over the years include Navi Pillay, Carla Del Ponte, Yasmin Sooka, Serge Brammertz, William Schabas, Paola Gaeta and the late Laity Kama, Cherif Bassiouni and Christof Heyns. I would like to acknowledge and thank them, as well as Marta Santos Pais, Afshan Khan, Saudamini Siegriest, BoVictor Nylund and Susan Bissell at UNICEF; Chantal de Jonge Oudraat and Lili Cole at the US Institute of Peace; Karim Khan, Fatou Bensouda, Véronique Aubert, Diane Marie Amann, James Stewart, Mandiaye Niang, Shamila Batohi, Dianne Luping and Gloria Atiba-Davies at the ICC; David Crane, Stephen Rapp, Luc Côté, Saleem Vahidy and An Michels at the Special Court for Sierra Leone; and Juan Mendez, Graeme Simpson, David Tolbert, Marieke Wierda, Virginie Ladisch and Brian Jacobi at the International Center for Transitional Justice. My colleagues at Tufts University’s Fletcher School – notably Ian Johnson, Hurst Hannum and Dyan Mazurana – and at the Harvard FXB Center – especially Jaqueline Bhabha and Jennifer Leaning – have been important sources of support and inspiration. I am also grateful for the research assistance provided by Luciana Storelli; and for the editorial assistance of Abbey Doyno, Kaleigh Homstad and Michael Vandergriff. I would also like to acknowledge the many children whom I have met along the way, especially those in the most challenging places, from Bosnia-Herzegovina to the camps in Cox’s Bazar. While they will remain unnamed for their own safety and right to privacy, many of their statements are vivid in my mind – including the words of one young schoolgirl in the Democratic Republic of Congo who, when speaking of the many terrible crimes she had witnessed, said, half-questioningly and half-assertively: “I think we have a right to be heard.” Last but not least, I would like to acknowledge and thank my husband, Jamie Allan Williamson; our daughter Anna; my mother, Marie-France Aptel-Fèvre; and my entire family, for their tireless support. My mother has taught me many lessons – not least to be attentive to children’s rights, opinions and perspectives, and to recognise their vulnerability and also their determination, resilience and agency. Jamie’s broad expertise and leadership – as an international lawyer, a humanitarian and a strategist – is accompanied by his capacity to make everyone laugh even in the toughest of times. Without his encouragement and patient support, this book simply would not have been completed. As for my wonderful Anna, she has been the inspiration for this research, so that she will hopefully live in a world more aware of the plight of children and less tolerant of it.

Overall summary

This book reveals that international criminal courts have paid only limited and inconsistent attention to the atrocity crimes affecting children. For too long, these courts have failed to highlight crimes against children, despite the now well-documented historical occurrences – from the systematic killings of Jewish children upon arrival in the Nazi extermination camps to those of the Tutsi children at the roadblocks set up by militia in Rwanda in 1994 – and their continuing occurrence today, from Afghanistan to Ukraine. It is only the most recent courts – notably the Special Court for Sierra Leone and the International Criminal Court – which have started to devote more attention to the suffering of children; although still in a limited way, centred on the recruitment and use of children – predominantly boys – and, to a more limited extent, on sexual crimes committed against girls. This book elucidates the many structural, legal, financial and even attitudinal obstacles, often overlapping, that have contributed to the international courts’ focus on the experience of adults, rendering children almost invisible. Finally, it proposes an agenda to improve this situation, making specific recommendations encompassing the urgent need to further elaborate child-friendly procedures and to rethink international investigative and prosecutorial strategies to be less adult-centric and broaden the scope of crimes against children beyond the focus on child-soldiers.

Abbreviations and acronyms

APs CRC DRC GC ICC ICCPR ICESCR ICJ ICRC ICTR ICTY IHL IHRL ILO IMTs LRA NGOs OPAC SCSL UN UNICEF UNSC UNSG

Additional Protocols to the Geneva Conventions Convention on the Rights of the Child Democratic Republic of Congo Geneva Conventions International Criminal Court International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice International Committee of the Red Cross International Criminal Court for Rwanda International Criminal Court for former Yugoslavia International Humanitarian Law International Human Rights Law International Labour Organization International Military Tribunals of Nuremberg and Tokyo Lord’s Resistance Army Non-governmental organizations Optional Protocol to the CRC on the Involvement of Children in Armed Conflict Special Court for Sierra Leone United Nations United Nations Children’s Fund United Nations Security Council United Nations Secretary-General

1

Introduction

The vision for international criminal justice is encapsulated in the preamble of the Statute of the International Criminal Court (ICC), whose drafters declared to be: ‘Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.’1 Time and again, children have been victims of genocide, crimes against humanity and war crimes – atrocity crimes falling within the mandate of international courts. These offences are not only from the past; they continue today, unbidden. Starting from the premise that children are among both the victims and the perpetrators of war crimes, crimes against humanity and genocide, this book assesses the extent to which several international and hybrid courts have dealt with crimes committed against children, going back in time to the International Military Tribunals of Nuremberg and Tokyo, and then surveying more recent jurisdictions – namely the United Nations (UN) established International Criminal Tribunals for the former Yugoslavia and for Rwanda; the Special Court for Sierra Leone (SCSL); and the ICC. It also presents the legal standards pertaining to the protection of child-victims of international crimes, as well as of children who allegedly participated in such crimes. To introduce the topic, this first chapter succinctly presents the abovementioned international or hybrid courts and international crimes; defines the term ‘children’; briefly outlines how international crimes affect children; and lays out the book’s structure.

1 International accountability for atrocity crimes What are these international criminal jurisdictions and the crimes that fall within their respective competence? 1.1 International and hybrid criminal courts Pursuing individual criminal accountability for mass atrocities is a relatively new phenomenon. During most of human history, many cases were recorded and left 1 Preamble of the Statute of the International Criminal Court (adopted 17 July 1998, entered in force 1 July 2002) 2187 UNTS 90, 91 (Rome Statute).

DOI: 10.4324/9781003361015-1

2 Introduction unpunished; well-known historical cases range from the destruction of Carthage to the anti-Jewish pogroms in Eastern Europe. Criminal accountability emerged and developed as one of the core sovereign attributes. It was hampered in the case of mass atrocities because they are usually committed by states authorities themselves, or by warlords or organised criminal networks too powerful to prosecute. The growth of international law and the creation of new international criminal jurisdictions explain why the main advances in the repression of mass atrocities have occurred mostly over the last century. International tribunals or courts are established by way of international treaties or by an international organisation; and possess, under international law, a legal personality distinct from that of a particular state or group of states.2 They are generally competent over the gravest crimes under international law, or atrocity crimes: genocide, crimes against humanity and war crimes, presented below. The main objective assigned to international criminal tribunals and the scope of their activities is to attribute individual criminal responsibility. They are primarily retributive: they identify a relatively small number of key persons among those bearing the greatest responsibility for crimes, try them and, if found guilty, pronounce punishments – usually prison sentences. To examine whether individuals are guilty and convict them in a court of law presupposes not only holding trials, but also having previously investigated the alleged conduct and assembled evidence – notably documents and witnesses that must be identified and probed. The mandate to investigate is usually granted to the chief prosecutor of international courts, while the defence can separately and independently carry out its own investigations.3 Through a rigorous, professional, independent and impartial process, international tribunals expose atrocity crimes and contribute to the establishment of a historical record of some – but not all – of these crimes, thereby restricting the scope for negating them. So far, there have only been a few examples of international courts, each with a specific limited mandate in terms of its material, territorial and temporal jurisdiction. They usually do not have an exclusive jurisdiction; they are concurrently competent with other criminal courts – those of the countries concerned and possibly other countries under the exercise of the principle of universal jurisdiction.4 Typically, international courts do not follow the criminal procedure of a given country, but one defined internationally: in some cases, by the entities that established a tribunal in the first place; in other cases, by the tribunal’s judges. There is not (yet) a unified international criminal procedure and the applicable rules of

2 Throughout this book, the terms ‘tribunals’ and ‘courts’ are used interchangeably. 3 In the Extraordinary Chambers in the Courts of Cambodia (ECCC), investigations are led by co-investigating judges. 4 The courts competent in criminal matters usually include those of the state on whose territory the crime was committed; those of the state of nationality of the defendant (active nationality); and eventually – in particular, for atrocity crimes – those of the state of nationality of a victim (passive nationality).

Introduction

3

procedure vary from one court to another, but minimum guarantees – including the rights of the defendants – are always provided.5 1.1.1 The International Military Tribunals of Nuremberg and Tokyo After several earlier unsuccessful attempts to create international courts, the very first international tribunals established were the International Military Tribunals of Nuremberg and Tokyo, conceived to record the crimes committed by the Nazis and the Japanese, and to hold their leadership accountable.6 These two courts fundamentally changed the system of criminal accountability by ending the exclusivity of the prerogative of states to render justice. They enshrined the idea that individuals can be held criminally responsible internationally for certain particularly grave crimes. Among many other fundamental principles, known as the ‘Nuremberg Principles,’ the statutes of these tribunals enshrined the principle of ‘command responsibility’, according to which superiors are responsible for the crimes committed by those under their command; and rejected the validity of a defence of obedience or superior orders.7 The statutes also had crucial limitations: they did not provide for an appeals procedure and have rightly been criticised for not having respected the rights of the accused, although these rights were mostly codified under international human rights law years after the tribunals had completed their work. Even 5 For instance, while most international tribunals do not allow victims to be represented as such in the proceedings, the procedures before the ICC, the Special Tribunal for Lebanon and the ECCC do provide for such direct representation. Similarly, reparations can only be granted by a few of the international tribunals, including the ICC. See Kai Ambos, ‘International criminal procedure: “adversarial”, “inquisitorial” or mixed?’ International Criminal Law Review vol 3, no 1 (2003): 1–37; and Frédéric Mégret, ‘Beyond “Fairness”: Understanding the Determinants of International Criminal Procedure’, UCLA Journal of International Law and Foreign Affairs vol 14 (2009): 37–76. 6 Earlier unsuccessful attempts to establish international courts include the 1915 warning by the ‘Allied governments’ of the ‘Supreme Porte’ that further ‘crimes … against humanity and civilization’ would not be tolerated and that those responsible would be held personally accountable; and Articles 227 to 230 of the Treaty of Versailles, which demanded the trials of German ‘war criminals’, including Kaiser Wilhelm II. Treaty of Peace with Germany (Treaty of Versailles) (entered into force 10 January 1920), Arts 227–230 [https://www.loc.gov/law/help/us-treaties/bevans/m-ust000002-0043. pdf]. 7 The Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, known as the Nuremberg Principles, were adopted by the International Law Commission (ILC) in 1950; see ILC, ‘Yearbook of the International Law Commission, 1950’ vol II (6 June 1957) UN Doc A/CN. 4/ SER.A/1950/Add. 1, para 97. See notably Nuremburg Charter (adopted 8 August 1945) 82 UNTS 279 (Charter of the International Military Tribunal) arts 7–8 [https:// ghum.kuleuven.be/ggs/events/2013/springlectures2013/documents-1/lecture-5nuremberg-charter.pdf]. On command responsibility and criminal liability, see notably Jamie A Williamson, ‘Some considerations on command responsibility and criminal liability’, International Review of the Red Cross, vol 90, Issue 870 (2008): 303–317.

4 Introduction more fundamentally, there was ‘victors’ justice’, as their mandates did not extend to any of the war crimes committed by the Allies, such as the bombing of German and Japanese cities and their civilian populations. 1.1.1.1 THE INTERNATIONAL MILITARY TRIBUNAL OF NUREMBERG

The International Military Tribunal of Nuremberg was established by the London Charter of 8 August 1945, adopted by the governments of Great Britain, the United States, France and the Soviet Union, ‘for the just and prompt trial and punishment of the major war criminals of the European Axis’.8 Article 6 of the Charter determined that the material jurisdiction of the Tribunal would cover three categories of crimes: crimes against peace (today known as the crime of aggression); war crimes; and the then-newly created crimes against humanity. The tribunal charged 24 persons, individually and as members of the Reich Cabinet, the Leadership Corps of the Nazi Party, the Schutzstaffeln der Nationalsozialistischen Deutschen Arbeiterpartei (known as the SS), Der Sicherheitsdienst, the Secret State Police (known as the Gestapo), the Sturmabteilungen and the General Staff and High Command of the German Armed Forces.9 They were tried during a single trial that lasted from 20 November 1945 until 31 August 1946, and the final judgment was issued on 1 October 1946.10 Out of the 24 individuals charged, 22 were tried. Three were acquitted; all others were found guilty and sentenced to punishment ranging from ten years’ imprisonment to execution.11

8 Nuremburg Charter (adopted 8 August 1945) 82 UNTS 279 (Charter of the International Military Tribunal) art 1 [https://ghum.kuleuven.be/ggs/events/2013/sp ringlectures2013/documents-1/lecture-5-nuremberg-charter.pdf]. As early as 1943, Franklin D Roosevelt, Winston Churchill and Josef Stalin had signed the Moscow Declaration of German Atrocities, indicating that upon an armistice, the German leaders deemed responsible for atrocities would be tried and punished. 9 Hermann Wilhelm Göring, Rudolf Hess, Joachim von Ribbentrop, Robert Ley, Wilhelm Keitel, Ernst Kaltenbrunner, Alfred Rosenberg, Hans Frank, Wilhelm Frick, Julius Streicher, Walter Funk, Hjalmar Schacht, Gustav Krupp von Bohlen und Halbach, Karl Dönitz, Erich Raeder, Baldur von Schirach, Fritz Sauckel, Alfred Jodl, Martin Bormann, Franz von Papen, Artur Seyss-Inquart, Albert Speer, Constantin von Neurath, and Hans Fritzsche, individually and as members of any of the following groups: Die Reichsregierung (Reich Cabinet); Das Korps der Politischen Leiter der Nationalsozialistischen Deutschen Arbeiterpartei (Leadership Corps of the Nazi Party); Die Schutzstaffeln der Nationalsozialistischen Deutschen Arbeiterpartei and including Der Sicherheitsdienst; Die Geheime Staatspolizei (Secret State Police, commonly known as the Gestapo); Die Sturmabteilungen der NSDAP and the General Staff and High Command of the German Armed Forces. Although part of the original joint indictment, Robert Ley (who committed suicide) and Gustav Krupp von Bohlen und Halbach (who was determined to be medically unfit for trial) were not included in the final judgment. Judgment of 1 October 1946, 22 IMT 203 (IMT 1946) [http:// werle.rewi.hu-berlin.de/IMTJudgment.pdf]. 10 Judgment of 1 October 1946, 22 IMT 203 (IMT 1946) 547 [http://werle.rewi. hu-berlin.de/IMTJudgment.pdf]. 11 Ibid.

Introduction

5

1.1.1.2 THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST IN TOKYO

The Charter of the International Military Tribunal for the Far East based in Tokyo was adopted on 19 January 1946.12 Modelled after the Nuremberg Charter, the material jurisdiction of the Tokyo Tribunal extended to the same three categories of crimes: crimes against peace; war crimes; and crimes against humanity. The Tribunal tried 28 Japanese leaders who were charged for crimes encompassing the waging of aggressive war, murder and other war crimes committed against prisoners of war, civilian internees and the inhabitants of occupied territories, committed between 1 January 1928 and 2 September 1945.13 All accused were alleged to have used their leadership positions to instigate wars of aggression.14 While the prosecution fell short of reviewing the role of important individuals, such as Japanese Emperor Hirohito, the high-ranking politicians tried included Kuniaki Koiso15 – who had been the prime minister of Japan from 1944 to 1945 – and military commanders of the Japanese Army, including Iwane Matsui.16 Two of the accused died during the proceedings and one was ruled unfit to stand trial. All remaining defendants were found guilty of at least one count in the final judgment, which was rendered on 4 December 1948, and sentenced to punishment ranging from seven years’ imprisonment to execution. Importantly, unlike the Nuremberg Tribunal, the Tokyo Tribunal convicted some of those

12 General MacArthur, Special Proclamation by the Supreme Commander for the Allied Powers (19 January 1946) [https://www.un.org/en/genocideprevention/docum ents/atrocity-crimes/Doc.3_1946%20Tokyo%20Charter.pdf]. The Tribunal Charter was adopted on the same day and amended on 26 April 1946. 13 Sadao Araki; Kenji Dohihara; Kingoro Hashimoto; Shunroko Hata; Kiichiro Himanuma; Koki Hirota; Kaoki Hoshino; Seishiro Itagaki; Okinori Kaya; Koichi Kido; Heitaro Kikura; Kuniaki Koiso; Iwane Matsui; Yosuke Matsuoka; Jiro Minami; Akira Muto; Osami Magano; Takasumi Oka; Shumei Okawa; Hiroshi Oshima; Kenryo Sato; Mamoru Shigemitsu; Shigetaro Shimada; Toshio Shiratori; Teilchi Suzuki; Shigenori Togo; Hideki Tojo; and Yoshijiro Omezu. See ‘Judgment of 12 November 1948 (International Military Tribunal for the Far East)’ in John R Pritchard, Sonia M Zaide and Donald Cameron Watt, The Tokyo War Crimes Trial, vol 2 (New York: Garland Publishing, 1981): {48, 414}. 14 ‘In Count 1 all accused are charged with conspiring as leaders, organisers, instigators or accomplices between 1st January 1928 and 2nd September 1945 to have Japan, either alone or with other countries, wage wars of aggression against any country or countries which might oppose her purpose of securing the military, naval, political and economic domination of East Asia and of the Pacific and Indian oceans and their adjoining countries and neighboring islands.’ ‘Judgment of 12 November 1948 (International Military Tribunal for the Far East)’, in John R Pritchard, Sonia M Zaide and Donald Cameron Watt, The Tokyo War Crimes Trial, vol 2 (New York: Garland Publishing, 1981): {48,421}. 15 ‘Judgment of 12 November 1948 (International Military Tribunal for the Far East)’, in John R Pritchard, Sonia M Zaide and Donald Cameron Watt, The Tokyo War Crimes Trial, vol 2 (New York: Garland Publishing, 1981): {49,811}. 16 Ibid {49,814}. During the course of the trial, two defendants died (Yosuke Matsuoka and Osami Magano), and one was deemed unfit to withstand trial (Shumei Okawa). All remaining 25 were convicted. See ibid {48,425}.

6 Introduction found guilty of atrocity crimes by omission – namely for their failure to have acted to prevent atrocity crimes from occurring or continuing. 1.1.2 The UN International Criminal Tribunals for the former Yugoslavia and Rwanda It is only in the aftermath of the Cold War that the next international criminal tribunals were established. Prompted by the atrocities committed in the Balkans and the genocide in Rwanda, the UN Security Council (UNSC) set up two ad hoc courts: the International Criminal Tribunal for the Former Yugoslavia (ICTY), in 1993;17 and the International Criminal Tribunal for Rwanda (ICTR), in 1994.18 These two courts – although largely independent from each other – shared a common appeals chamber and operated under similar rules of procedure and evidence. Until 2003, they also shared a chief prosecutor.19 As subsidiary organs of the UNSC vested with the authority of having been adopted under Chapter VII of the UN Charter, they had primacy over the domestic courts of any country and all states were required under international law to cooperate with them – notably to arrest and surrender fugitives. Although these courts have been criticised for their high financial cost and for operating too remotely from the countries and populations of primary concern, they helped (with varying success) to reinforce the judicial systems in the Balkans and Rwanda – notably through incentivising prosecutions, referring some specific cases to them and building their technical capacity. The ICTY was established in 1993 by the UNSC through the adoption of Resolutions 808 and 827, acting under Chapter VII of the UN Charter.20 Its jurisdiction extended over the laws and customs of war, including the grave breaches of the 1949 Geneva Convention (GC), crimes against humanity and genocide committed from 1 January 1991 onwards in the territory of the former Yugoslavia.21 Its temporal jurisdiction was initially open ended, starting from 1991. The ICTY performed its mandate from 1993 until 2017. It indicted over 17 UNSC Res 808 (22 February 1993) UN Doc S/RES/808; UNSC Res 827 (25 May 1993) UN Doc S/RES/827. 18 UNSC Res 955 (8 November 1994) UN Doc S/RES/955 (Establishment of an International Tribunal and Adoption of the Statute of the Tribunal). 19 The Security Council decided to split this mandate and establish two independent positions in 2003. See UNSC Res 1503 (28 August 2003) UN Doc S/RES/1503. On the split of this mandate and the reasons behind it, see Carla Del Ponte, Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity, ed Chuck Sudetic (New York: Other Press, LLC, 2011), 223–242. 20 UNSC Res 808 (22 February 1993) UN Doc S/RES/808; UNSC Res 827 (25 May 1993) UN Doc S/RES/827. 21 UNSC (UNSC), ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’ (3 May 1993) UN Doc S/25704, Annex arts 2–5 (Annex: Statute of the International Tribunal [for the Prosecution of Persons Responsible for Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia]).

Introduction

7

160 persons – including heads of state, prime ministers, army chiefs of staff, interior ministers and many other high- and mid-level political, military and police leaders – for crimes that occurred between 1991 and 2001 in the former Yugoslavia (ie, Croatia, Bosnia and Herzegovina, Serbia, Kosovo and the Former Yugoslav Republic of Macedonia). The ICTR was also established by the UNSC, a year after the ICTY, in 1994. Resolution 955 was also adopted by the UNSC acting under Chapter VII of the UN Charter.22 Its jurisdiction covered war crimes, crimes against humanity and genocide committed throughout 1994 in Rwanda; and also genocide and other such violations committed by Rwandan citizens in the territory of neighbouring states.23 The ICTR indicted over 90 persons, including a head of state, a prime minister and high-ranking military and government officials, politicians, businessmen, as well as religious, militia and media leaders. Its most important jurisprudential development centred on the crime of genocide, as it was the first international tribunal to rule on this crime – notably in the landmark Akayesu judgment.24 Both the ICTY and ICTR completed their work and closed down respectively in 2017 and 2015; their remaining functions were handed over to the specially established UN International Residual Mechanism for Criminal Tribunals.25 These two jurisdictions paved the way for the creation of the ICC in 1998. 1.1.3 The International Criminal Court The ICC is the only permanent international criminal jurisdiction. Established in 1998 by way of a treaty – the so-called Rome Statute – its jurisdiction covers international crimes committed on the territories or by nationals of its states parties and can be extended by the UNSC.26 Any situation in which an international crime appears to have been committed can be referred to the ICC by the UNSC, creating the potential for the ICC to have universal jurisdiction.27

22 UNSC Res 955 (8 November 1994) UN Doc S/RES/955 (Establishment of an International Tribunal and Adoption of the Statute of the Tribunal). 23 Ibid, para 1. 24 Prosecutor v Akayesu (Judgment) ICTR-96–4-T (ICTR 1998) [http://www.unictr. org/Portals/0/Case/English/Akayesu/judgement/akay001.pdf]. 25 ‘International Residual Mechanism for Criminal Tribunals’, United Nations [https:// www.irmct.org/en]. 26 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) UNTS vol 2187, no 38544, arts 12, 13, 17 (Rome Statute) [https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf]. 27 Article 13 (B) of the Rome Statute states that: ‘A situation in which one or more … crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.’ Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) UNTS vol 2187, no 38544, art 13(B).

8 Introduction The Rome Statute entered into force in July 2002, triggering the start of the temporal jurisdiction of the ICC.28 The ICC investigates and, where warranted, tries individuals charged with any or a combination of the four categories of international crimes: genocide; war crimes; crimes against humanity; and the crime of aggression.29 The ICC was conceived as a court of ‘last resort’: in accordance with the ‘principle of complementarity’, it acts only when the competent national justice systems are unable or unwilling to try those responsible. Seeking to improve on the prior international criminal jurisdictions, the drafters of the Rome Statute established new standards for victims’ participation and protection, and created a Trust Fund for victims to provide for reparations. Like all other international tribunals, the ICC does not have its own police force and relies on the cooperation of states for any coercive measures, such as to access a territory, subpoena suspects or witnesses and execute arrest warrants. Therefore, and as a treaty-based court, the ICC rests primarily upon states’ cooperation. Several countries have referred crimes committed on their own territories to the competence of the ICC; the first was Uganda in 2004.30 The UNSC has also referred two situations to the ICC prosecutor: Darfur in 2005 and Libya in 2011.31 Successive ICC prosecutors have also used their proprio motu powers to launch investigations. While limited by its mandate and resources, the ICC has the potential to strengthen criminal accountability for international crimes – notably against senior leaders, including heads of states, who may be de jure or de facto immune from the competence of national courts. 1.1.4 Hybrid or mixed courts: the Special Court for Sierra Leone While the ICC was being established, around the turn of the last century, new models of ‘hybrid’, ‘internationalised’ or ‘mixed’ courts were also conceived in parallel. These jurisdictions combine elements of national and international criminal justice: they have usually been established by way of agreements between an international or regional organisation – in almost all cases the UN – and the government of the state primarily concerned. They mix international and national 28 The Statute took effect on 1 July 2002 upon its ratification by 60 states, which officially established the ICC. Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) UNTS vol 2187, no 38544, art 11(2). 29 Rome Statute, art 5. The crime of aggression was defined per amendments made in 2010. 30 Other states which have referred crimes committed on their own territories to the competence of the ICC include the Democratic Republic of Congo, the Central African Republic and Mali. Regarding the important questions raised by the practice of so-called ‘self-referral’ and their impact on the ICC, see notably Paola Gaeta, ‘Is the Practice of “Self-Referrals” a Sound Start for the ICC?’, Journal of International Criminal Justice vol 2, no 4 (2004): 949–952 [https://doi-org.eres.qnl.qa/10. 1093/jicj/2.4.949]. 31 UNSC Res 1593 (31 March 2005) UN Doc S/Res/1593; UNSC Res 1970 (26 February 2011) UN Doc S/Res/1970.

Introduction

9

components, being composed of international and local judges, prosecutors and personnel; and they usually sit in the country where the crimes took place, giving visibility to their work and ensuring that justice is not only done but also seen to be done. The first such hybrid court was the SCSL, established in 2002 by an agreement between the government of Sierra Leone and the UN to try those bearing the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law during the country’s civil war.32 As such, its material jurisdiction combines international crime, such as crimes against humanity and war crimes, with crimes under Sierra Leonean law.33 Interestingly for this thesis, among these are offences pertaining to the abuse of girls under the age of 14.34 This hybrid court prototype has then been replicated in several contexts, although each hybrid court has its own specificities. Examples of internationalised courts include the Special Panels of the Dili District Court in East Timor;35 the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea;36 the War Crimes Chamber of Bosnia-Herzegovina;37 the Special Tribunal for Lebanon;38 and the 32 The Statute of the Special Court was annexed to the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, signed on 16 January 2002. UNSC Statute of the Special Court for Sierra Leone (entered into force 16 January 2002) (SCSL Statute) [http:// www.rscsl.org/Documents/scsl-statute.pdf]. It was negotiated further to Security Council 1315 (2000) of 14 August 2000, which requested the Secretary-General ‘to negotiate an agreement with the Government of Sierra Leone to create an independent special court consistent with this resolution …’ (para 1). UNSC Res 1315 (14 August 2000) UN Doc S/RES/1315, para 1. On the SCSL, including its establishment and jurisdiction, see Charles Chernor Jalloh, ed, The Sierra Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law (Cambridge: Cambridge University Press, 2013). 33 SCSL Statute, art 5. 34 Article 5(a) of the SCSL Statute refers to: ‘Offences relating to the abuse of girls under the Prevention of Cruelty to Children Act, 1926 (Cap. 31): i. Abusing a girl under 13 years of age, contrary to section 6; ii. Abusing a girl between 13 and 14 years of age, contrary to section 7; iii. Abduction of a girl for immoral purposes, contrary to section 12.’ See infra. The other offences included in Article 5 of the SCSL Statute concern the wanton destruction of property. 35 They were created in 2000 by the United Nations Transitional Administration in East Timor to try cases of ‘serious criminal offences’, including murder, rape and torture. 36 These Chambers were created jointly by the government of Cambodia and the UN to review the allegations committed notably by the Khmer Rouge regime. 37 This Chamber was integrated into the domestic Bosnian legal system, with a mandate extending to cases referred to it by the ICTY, but also over the most sensitive cases brought at a national or local level. 38 This Tribunal was interestingly created initially by an agreement between the UN and the government of Lebanon and ultimately established on the basis of the UNSC Resolution. On this latter Special Tribunal, see Cécile Aptel, ‘Some Innovations in the Statute of the Special Tribunal for Lebanon’, Journal of International Criminal Justice vol 5, issue 5 (2007): 1107.

10 Introduction Extraordinary African Chambers in the Senegalese Courts.39 Other similar initiatives include the Special Criminal Court established with support from the United Nations in the Central African Republic and a similar mechanism in South Sudan. The SCSL was the first hybrid court and is also one of the better-known examples of this model. It is also the most relevant in the context of this study because it is the only international or hybrid criminal court to have been granted a unique jurisdiction over juvenile offenders,40 and the one that has evidently devoted the most attention to children. For instance, it was the first international or hybrid tribunal to try to convict persons for recruiting and using children.41 Overall, the SCSL convicted nine persons and sentenced them to terms of imprisonment ranging from 15 to 52 years, and also conducted contempt trials. It indicted and tried several leaders of three main entities: the Revolutionary United Front; the Armed Forces Revolutionary Council; and the Civil Defence Forces. It also tried and convicted Charles Taylor, the former head of state of Liberia.42 The subject-matter jurisdiction of the SCSL covered certain serious violations of Sierra Leonean law and also some international or atrocity crimes – namely war crimes (violations of Article 3 common to the GC and Additional Protocol II); other serious violations of international humanitarian law; and crimes against humanity.43 The next section presents these and the other atrocity crimes. 1.2 International atrocity crimes This study focuses on three crimes sometimes referred to as the gravest crimes under international law or the ‘core international crimes’: genocide; crimes against humanity; and war crimes.44 The terms ‘international crimes’ and ‘atrocity crimes’ are used interchangeably in this book to refer to these three crimes. While there is no pre-established list of international crimes over which international courts have jurisdiction, as seen supra, and each international or hybrid court has its particular subject-matter jurisdiction, these three crimes form the core of the material 39 Created under the auspices of the African Union, they convicted former Chadian President Hissène Habré of torture, war crimes and crimes against humanity for crimes committed in Chad between 1982 and 1990. 40 See Chapter 5. 41 See Chapter 3. 42 See generally Charles Chernor Jalloh, ed, The Sierra Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law (Cambridge: Cambridge University Press, 2013). 43 SCSL Statute, arts 2–5. 44 Other crimes, such as piracy, terrorism and apartheid, while they figure in international treaties and can therefore technically be deemed to be international crimes, do not systematically qualify as mass atrocities and are not within the ambit of this study. It is important to note that terrorism can be constitutive of war crime or qualify as a crime against humanity; and also that the abovementioned Special Tribunal for Lebanon has jurisdiction over this crime. Apartheid and torture can also fall within the ambit of international criminal jurisdictions when they constitute crimes against humanity or war crimes.

Introduction

11

competence of most international criminal tribunals. International crimes are defined and prohibited through customary international or treaty law. Cassese defined them as ‘breaches of international rules entailing the personal criminal liability of individuals concerned (as opposed to the responsibility of the State of which the individuals may act as organs)’.45 The terms ‘atrocity crimes’, ‘mass atrocities’ and ‘atrocities’ – although not defined as legal categories per se – have nevertheless increasingly been used by legal practitioners and academics alike to qualify the most egregious crimes committed against a large number of individuals, usually as the result of a concerted policy.46 These crimes have many overlapping characteristics – notably, that they are not bound by statutory limitations. They all involve a large number of victims and also usually many perpetrators: they are often committed in a massive, widespread and systematic manner. As such, genocide, crimes against humanity and war crimes epitomise mass atrocities. 1.2.1 Genocide ‘Genocide’ is a complex offence constituted when an underlying crime – such as killing or causing serious bodily or mental harm – is committed against members of a national, ethnic, racial or religious group, with the intent to destroy that specific group in whole or in part.47 The archetypical discriminatory crime, it can occur in a time of peace as well as during conflict. The word ‘genocide’ was first coined in 1944 by Polish lawyer Raphäel Lemkin, combining the Greek prefix ‘genos’, for ‘race’ or ‘tribe’, with the Latin suffix ‘cide’, meaning ‘killing’.48 With this new term, Lemkin wanted to name notably the Nazis’ crimes and policies of extermination of Jewish people during the Holocaust. His campaign to have genocide recognised and codified as an international crime led to the unanimous adoption in 1948 of the Convention for the Prevention and Suppression of the Crime of Genocide.49 ‘Genocide’ is thus defined by an international treaty. 45 Antonio Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), 1–472, 23. 46 See notably Theodor Meron, ‘International Criminalization of Internal Atrocities’, American Journal of International Law vol 89, no 3 (1995): 554–577 [https://doi. org/10.2307/2204173]. 47 On the crime of genocide, see William A Schabas, Genocide in International Law: The Crimes of Crimes (Cambridge: Cambridge University Press, 2000). 48 Raphäel Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress 1st ed (Washington D.C.: Carnegie Endowment for International Peace, 1944). 49 The Convention on the Prevention and Punishment of the Crime of Genocide was unanimously adopted by the UN General Assembly (UNGA) on 9 December 1948 as UNGA Resolution 260 and came into force on 12 January 1951. UNGA Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) (1951) 78 UNTS 277 [https://treaties.un.org/ doc/publication/unts/volume%2078/volume-78-i-1021-english.pdf]. Genocide was first recognised as a crime under international law in 1946 by the UNGA through A/ RES/96-I. UNGA Res 96 (11 December 1946) UN Doc A/RES/96(I).

12 Introduction Article II of the Genocide Convention states:50 … genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a b c d e

Killing members of the group; Causing serious bodily or mental harm to members of the group; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group; Forcibly transferring children of the group to another group.

This definition, adopted in 1948, has remained unchanged through the years and has been reproduced verbatim in the statutes of most contemporary international tribunals, including the ICTY, the ICTR and the ICC. Genocide had not been recognised as an international crime at the time of the adoption of the Charters of the Nuremberg and Tokyo Tribunals, and was not included in their material competence. Neither was it included in the jurisdiction of the SCSL. Article III of the Genocide Convention states that, in addition to genocide per se, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide are also crimes. These crimes were included in the competence of the ICTY and ICTR, but were not retained in the ICC Statute. The genocidal intent is all-encompassing: those bent on exterminating an entire people do not spare children. Conversely, for those committing genocide, the despised collective identity of their victims transcends their individuality: ultimately, the target of genocide is the national, ethnic, racial or religious group, made up of all its members, including children. 1.2.2 Crimes against humanity Like genocide, a ‘crime against humanity’ is a complex offence, constituted when an underlying crime – such as murder, rape, slavery, persecution, extermination or torture – is committed as part of a widespread and systematic attack directed against a civilian population.51 This crime was first defined in Article 6(c) of the statute of the Nuremberg Tribunal:52

50 Ibid, Article II. 51 On this crime, see notably M Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, 2nd ed (Leiden: Martinus Nijhoff Publishers, 1999). 52 Nuremburg Charter (adopted 8 August 1945) 82 UNTS 279 (Charter of the International Military Tribunal) [https://ghum.kuleuven.be/ggs/events/2013/spring lectures2013/documents-1/lecture-5-nuremberg-charter.pdf].

Introduction

13

Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds … It was also reproduced in the statute of the Tokyo Tribunal.53 In both International Military Tribunals, crimes against humanity were linked to the other two categories of offences that formed the Tribunals’ material competence. Since then, the elements of the offence have evolved. The definition included in the statute of the ICTY emphasised crimes directed against civilians committed during an armed conflict.54 Conversely, the ICTR statute did not require a nexus between a crime against humanity and an armed conflict, but rather stressed that the underlying crime must be ‘committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds’, adding a discriminatory element.55 The statute of the SCSL did not require this discriminatory element, except for persecution (on political, racial, ethnic or religious grounds); nor did it provide for a nexus with an armed conflict.56 Today, the two main authoritative sources to define crimes against humanity – namely the ICC Statute and the draft articles adopted by the International Law Commission (ILC) – provide the very same definition. Article 2 of the ILC’s draft articles on the prevention and punishment of crimes against humanity57 deliberately reproduces Article 7(1) of the ICC Statute, which defines a ‘crime against humanity’ as: any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: a b c

Murder; Extermination; Enslavement;

53 Charter of the International Military Tribunal for the Far East (entered into force 19 January 1946) TIAS No 1589, art 5(c). 54 UN Updated Statute of the International Criminal Tribunal for the Former Yugoslavia (February 2008), art 5 [https://www.un.org/ruleoflaw/files/statute-feb08-e.pdf]. 55 UNSC Statute of the International Tribunal for Rwanda (established 8 November 1994 by UNSC Res 955 (1994), last amended 13 October 2006) art 3 [https://lega l.un.org/avl/pdf/ha/ictr_EF.pdf]. 56 Article 2 of the SCSL Statute. 57 See Article 2 of the draft articles on prevention and punishment of crimes against humanity, ILC, Report on the work of the seventy-first session (2019) UN Doc A/ 74/10, chap IV, para 44 [https://legal.un.org/ilc/reports/2019/english/chp4.pdf]. The ILC adopted the draft articles on prevention and punishment of crimes against humanity, together with commentaries, during its 71st session in 2019, and recommended the elaboration of a convention by the UNGA or by an international conference of plenipotentiaries on the basis of the draft articles. On 18 December 2019, the UNGA, through its resolution 74/187, took note of these draft articles and decided to continue to examine the recommendation of the Commission contained in paragraph 42 of its report on the work of its seventy-first session.

14 Introduction d e f g h

i j k

Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; Enforced disappearance of persons; The crime of apartheid; Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

It is now well recognised that crimes against humanity, such as genocide, are punishable regardless of whether they were committed in time of peace or conflict. Crimes against humanity bear many resemblances with genocide; and in some contexts, such as in Rwanda in 1994, most of the acts constitutive of genocide also constitute crimes against humanity. 1.2.3 War crimes ‘War crimes’ are serious criminal acts committed within the context of an international or non-international armed conflict. As accurately noted by Corn, Watkin and Williamson: ‘Essentially, war crimes cover those IHL violations reaching a certain threshold of harm committed in armed conflicts, whether international or non-international.’58 They are violations of jus in bello, international humanitarian law or the law of armed conflict, which reach a certain threshold: only the worst of violations of international humanitarian law constitute war crimes. War crimes obviously take place in the context of a war – an armed conflict – and require a nexus between the crime and conflict. The criminal act must be related to the armed conflict; so, for example, a murder or a theft occurring during a conflict but without a nexus connecting it to the conflict does not qualify as a war crime. War crimes include unlawful criminal conduct such as attacking civilian objects and using certain prohibited weapons (eg, prohibited gases). While lists of war crimes can be found in international humanitarian law and international criminal law treaties, as well as in international customary law, there is not a single document in international law that codifies all war crimes. Instead, in each case, one must refer to the rule that has been breached.

58 Geoffrey Corn, Ken Watkin and Jamie Williamson, The Law in War: A Concise Overview (Abington: Routledge, 2018): 273.

Introduction

15

The scope of competence of successive international criminal jurisdictions over war crimes as defined in their respective statutes has differed greatly; but all these jurisdictions have contributed to the development of international criminal jurisprudence on war crimes. As noted by Sassòli, the application of international humanitarian law by international criminal jurisdictions has influenced its implementation and substantive clarification.59 In the statutes of the Nuremberg and Tokyo Tribunals, ‘war crimes’ were defined as ‘violations of the laws or customs of war’ and included acts such as murder or ill-treatment of civilian populations of or in occupied territory; murder or ill-treatment of prisoners of war; killing of hostages; wanton destruction of cities, towns or villages; and devastation not justified by military necessity.60 Shortly after these two tribunals completed their work, the four 1949 GCs were adopted.61 These Conventions substantially furthered international humanitarian law in many significant ways – notably in terms of the protection afforded to civilians during armed conflicts. The Conventions also defined grave breaches which are the quintessential war crimes. In the Statute of the ICTY, there are two articles pertaining to war crimes – Articles 2 and 3.62 Article 2 gave the ICTY competence over the abovementioned 59 Marco Sassòli has also pointed out that viewing international humanitarian law through the lens of international criminal law entails risks. Marco Sassòli, ‘Humanitarian Law and International Criminal Law’, in The Oxford Companion to International Criminal Justice (Oxford: Oxford University Press: 2009), 111–120. 60 Article 6(b) of the Statute of the Nuremberg International Military Tribunal and Article 5(b) of the Statute of the Tokyo International Military Tribunal. Nuremberg Charter (adopted 8 August 1945) 82 UNTS 279 (Charter of the International Military Tribunal) art 6(b) [https://ghum.kuleuven.be/ggs/events/2013/spring lectures2013/documents-1/lecture-5-nuremberg-charter.pdf]; Charter of the International Military Tribunal for the Far East (entered into force 19 January 1946) TIAS No 1589, art 5(b). 61 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 (First Geneva Convention); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (Second Geneva Convention); Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 (Third Geneva Convention); Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 74 UNTS 287 (Fourth Geneva Convention) [https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conven tions]. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (Protocol I); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (Protocol II). 62 UN Updated Statute of the International Criminal Tribunal for the Former Yugoslavia (February 2008), arts 2–3 [https://www.un.org/ruleoflaw/files/statute-feb08-e. pdf].

16 Introduction grave breaches of the 1949 GCs, so that it could try to sanction ‘persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949 …’63 Article 3 grants the ICTY jurisdiction over violations of the laws or customs of war, including:64 a b c d

e

employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; wanton destruction of cities, towns or villages, or devastation not justified by military necessity; attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; plunder of public or private property.

When the ICTR was established, a year after the ICTY, the extension of its material competence over war crimes triggered much debate, as most observers deemed that the situation in Rwanda was not an international armed conflict.65 The Statute of the ICTR contains a single article pertaining to war crimes: Article 4, entitled ‘Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II’.66 This article grants the ICTR a mandate over those ‘committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977 …’67 When the SCSL was later created, Article 3 of its Statute reproduced verbatim the above provisions included in Article 4 of the ICTR Statute. Another article pertaining to war crimes was included in the SCSL Statute: Article 4, entitled ‘Other serious violations of international humanitarian law’. It gives the SCSL competence over:68 the following serious violations of international humanitarian law: a

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

63 Ibid, art 2. 64 Ibid, art 3. 65 See notably Theodor Meron, ‘International Criminalization of Internal Atrocities’, American Journal of International Law vol 89, no 3 (1995): 554–577 [https://doi. org/10.2307/2204173]. 66 UNSC Statute of the International Tribunal for Rwanda (established 8 November 1994 by UNSC Res 955 (1994), last amended 13 October 2006), art 3 [https://lega l.un.org/avl/pdf/ha/ictr_EF.pdf]. 67 Ibid, art 4. 68 SCSL Statute, art 4.

Introduction b

c

17

Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

The last provision of Article 4 – granting the SCSL mandate over the conscription or enlistment of children into armed forces or groups or using them to participate actively in hostilities – is particularly significant for this research and led to massive jurisprudential development, as is analysed below.69 As for the ICC, its Statute gives it competence over war crimes through Article 8.70 This article – the longest in the Rome Statute – lists serious violations of the rules regulating international armed conflicts as well as those covering internal armed conflicts. The list provided in Article 8 is not intended to codify customary international humanitarian law, but merely to define the material competence of the ICC over war crimes. It is structured on the basis of the distinction between international armed conflicts and armed conflict not of an international character, listing, first, grave breaches of the four 1949 GCs and other serious violations of the laws and customs applicable in international armed conflict;71 and then serious violations of Article 3 common to the four GCs and other serious violations of the laws and customs applicable in armed conflicts that are not of an international character.72 Like the SCSL, the ICC’s mandate covers the conscription or enlistment of children into armed forces or groups the use of children to participate actively in hostilities, criminalising these acts in both international and non-international armed conflicts, as reviewed in more detail below.73

2 Defining a ‘child’ The Convention on the Rights of the Child (CRC), adopted in 1989, provided the first definition of a ‘child’ in an international treaty.74 None of the previous international treaties – even those concerning children – had previously defined the term. Article 1 of the CRC stipulates that: ‘for the purpose of the convention a 69 See Chapter 3. 70 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) UNTS vol 2187, no 38544 (Rome Statute), art 8 [https:// www.icc-cpi.int/resource-library/documents/rs-eng.pdf]. 71 Ibid, art 8(a) and (b). 72 Ibid, art 8(c) and (e). 73 Ibid, art 8(b) (xxvi) for international armed conflicts and art 8(b)(vii) for armed conflict not of an international character. See Chapter 3. 74 The CRC was adopted by UNGA Resolution 44/25 of 20 November 1989 and entered into force on 2 September 1990. Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC). See Chapter 2.

18 Introduction child would mean every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.’ Thus, under international law, a ‘child’ is defined solely on the basis of age, expressed chronologically. Interestingly, the CRC provides only an upper age limit and no lower age limit, leaving open the contentious issue of whether the rights it defines may apply before birth. A purely chronological definition of who is a child has the benefit of clarity and conciseness. However, like other attempts at legally capturing and clarifying a complex phenomenon, it is very reductive. All children are encapsulated into a single category, erasing their heterogeneity and diversity. For instance, there is no distinction between infants, toddlers or teenagers – all are simply labelled ‘children’, despite the huge variations in terms of their physical, physiological, emotional and psychological needs and capacities. All those in the phase between birth and adulthood are included; and the only accommodation made by the CRC is to recognise the principle of the ‘evolving capacities of the child’. Yet those falling within the categories of adolescents or youth are on a continuum that transcends a strict chronological age. In some situations, the CRC unequivocally sets the age of 18 as a strict limit – as when it prohibits life imprisonment without possibility of release or capital punishment for all those under 18 years of age.75 In other cases, the CRC leaves it to the discretion of states to determine a minimum age for children to access certain rights or exercise certain duties. The domestic laws of many – but not all – states set an age of majority: the overall upper limit of childhood, usually 18 years of age.76 In addition to laws determining an age of majority, most states have other laws establishing different ages at which an individual can, for example, legally marry, vote or be held responsible for criminal acts.77 These different domestic laws may at times be confusing because, for instance, in a given country, someone under the age of 16 may be deemed too young to drive but old enough to work long hours doing hazardous work. In addition, there may be discrepancies between formal national laws and customary or religious laws: in some states, the latter may apply to certain or all communities, and, because they play an important role regulating family affairs, may have a significant impact on matters relevant for children. Legal systems – international, national or customary – usually seek to protect children because of their implied vulnerability (eg, to protect them more than adults against violence or rape); to give them privileged rights (eg, to access free education or free medical care); and/or to forbid them from acting or being treated like adults (eg, by voting). The status of children per se, defined on the basis of their young age, is what entitles them to special protection. Thus, 75 See Chapter 2. 76 A list of the situation in each state, compiled and regularly updated by the non-governmental organisation Child Rights International Network, is available at https://a rchive.crin.org/en/home/ages.html. 77 On minimum age of criminal responsibility, see Chapter 5.

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international law reflects an understanding of children as having limited capacities and being vulnerable; and therefore, as being in need of and entitled to special protection by and care from others – their parents or guardians, their families, society and also the law. International human rights law – and in particular the CRC – aims to protect all children indiscriminately, irrespective of their other layers of identity, such as race, religion, nationality, ethnicity, sex and gender. But can and should children be merely construed as vulnerable and dependent on others? Are they not simultaneously – and at times concurrently – independent humans with their own agency? Balancing protection and recognition of agency lies at the heart of the CRC. It is divided into two main clusters of rights: rights protecting children against harm, because they are vulnerable and defenceless against harm; and participation rights, recognising that they are independent agents. Some children are independent and responsible earlier than others, while others are vulnerable for longer. It is crucial to recognise the heterogeneity of the category of childhood, both across contexts and within a given context, as this category encompasses individuals of different ages and with different socio-economic statuses, genders, ethnicities, education and so on. Despite the concept of the ‘evolving capacities of the child’, laws are ill suited to adjust to the reality that children grow in phases; and that as they grow, they become less vulnerable and are increasingly able to make independent decisions. A more nuanced understanding of childhood may be lacking because childhood is often defined negatively, in opposition to adulthood, as Archard suggests: For us, childhood is a stage or state of incompetence relative to adulthood. The ideal adult is equipped with certain cognitive capacities, is rational, physically independent and autonomous, has a sense of identity, and is conscious of her beliefs and desires, and thus able to make informed free choices for which she can be held personally responsible. It is on account of these dispositions that an adult is thought able to work for her living, be accountable at law for her actions, make sexual choices and help to choose the government of the community. It is because the child lacks these adult dispositions that he may not participate in this adult world.78 This is based on a conception of a child as an ‘incomplete’ human adult – an adult in the making who has not yet reached maturity and as such lack capacities and competencies. Verhellen has noted that children are often referred to as ‘not yets’: not yet mature, strong, smart and so on.79 This understanding of children as proto-adults or future beings, or as ‘people in the process of becoming’, largely 78 David Archard, Children: Rights and Childhood (New York: Routledge, 3rd edition, 2015): 39. 79 Wouter Vandenhole et al, ‘The Convention on the Rights of the Child: Reflections from a historical, social policy and educational perspective’, Routledge International Handbook of Children’s Rights Studies (London: Routledge, 2015): 45.

20 Introduction underpins both human rights and international law.80 Anthropologically, it explains why the end of childhood is celebrated across the world, in most if not all cultures, with coming-of-age rites. These take different forms, from lavish 18th or 21st birthday parties to marriage ceremonies. Among pastoral nomadic groups in Eastern Africa, such as the Maasai, there is a transition of several months during which children are required to live away from their parents with peers of a similar age. These ritual celebrations all mark the social recognition of an individual as having finally attained her or his full capacity: transitioning from being a child in one family to the social recognition that one can now start one’s own family. In many cultures, the determination of who is a child is defined through relationship: one is a child through one’s relationship with one’s parents. Obviously, children – like all other human beings – are social creatures and their identities are intertwined with those of their parents, families and communities. Being a child describes the interfamilial relationship: being the child of someone, rather than being of a certain age. The term ‘child’ has this dual meaning in many languages, such as ‘child’ in English, ‘enfant’ in French, ‘niño’ in Spanish and ‘mtoto’ in Swahili. There are many different understandings of identity linked to childhood. It can be understood objectively, such as in chronological terms. Age identity is also subjective, as assigned by others. It is also self-reflective: children perceive themselves as children or adults. The self-perception of a child and the perceptions of his or her community may differ, as illustrated by a child in Liberia who, when asked: ‘How old are you?’ reportedly replied: ‘Old enough to kill a man.’81 Perceptions of who is a child vary across cultures and evolve over time, because the understanding of who is child is also a socio-cultural construct. The expectations of what a child’s role, rights, entitlements, responsibilities and duties comprise also vary across times, cultures and contexts. They are influenced by a myriad of individual and societal factors, notably socio-economic status and gender.82 The cultural interpretations of gender roles and customs largely influence the local implementation of child rights. Some of the biggest discrepancies between legal provisions and child protection in practice tend to relate to gender differences, exemplifying the particular vulnerabilities faced by girls, whose needs are often underestimated or overlooked. 80 Alcinda Honwana and Filip De Boeck, Makers & Breakers: Children and Youth in Postcolonial Africa (Oxford: James Currey, 2005): 3–4. 81 Corinne Dufka, ‘Children as Killers’, in Crimes of War: What the Public Should Know, Roy Gutman, David Rieff and Kenneth Anderson, eds (New York: W.W. Norton & Company, 2007) 78–79. 82 For Julia Fionda, ‘Society’s notions of childhood are intrinsically linked to the way [children] are educated, the way they are dressed, the age at which they are expected to work and fend for themselves, and through common notions of responsibility of parents and the state towards them.’ Julia Fionda, Legal Concepts of Childhood (Oxford: Bloomsbury Publishing, 2001): 3.

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The gender neutrality of the term ‘child’ focuses on what boys and girls have in common – namely their young age and related vulnerability – and in so doing masks both the biological and socio-cultural differences between them. Subsuming girls under the category of either ‘children’ or ‘women’ is not sufficient to adequately understand their needs. Bearing in mind these challenges in defining a ‘child’, this study adopts an intersectional approach to recognise the complex, multi-dimensional and multilayered identities, perceptions and self-perceptions of children – notably in terms of gender, but also in terms of ethnicity, race, national origin, religion, class, disability and of course age.83 This approach is based on a structural understanding of identity, recognising that it is a multi-faceted social construct which is not static, but rather evolves and shifts over time. Of particular interest for this study is the recognition that identity is a multi-layered paradigm: one simultaneously selfcharacterises and is characterised by others in terms of nationality, race, language, gender, religion, culture, socio-economic background, education and many other attributes, in addition to age.84 This multi-layered understanding of identity is crucial for this study because international crimes are generally committed in contexts where one of these layers is made particularly salient, to the point of obliterating all others. For instance, the genocide against the Tutsi in Rwanda in the early 1990s could only take place because the perpetrators conceived of all Rwandans predominantly in terms of ethnicity: whether one was deemed Tutsi or not made the difference between life or death, even for children. Subsuming the experience of Tutsi children in the broader experience of all Tutsis in Rwanda would carry a huge risk of not giving these children a voice, recording their own perceptions of what happened to them and rendering visible the specific harm they have suffered. Yet their experiences and suffering are marked by their multi-layered identity as Tutsi children – as tragically revealed by these children themselves:85 We – children – were terrified. We no longer expected any mercy from (the adults). We could see that humanity had left them. We died exactly at the moment when we saw the deaths of those who had given life to us. This citation shows the specificity of the experience of Tutsi children, which would not have been elucidated by other non-Tutsi children or by older Tutsis. 83 See, for instance, Sumi Cho, Kimberlé Williams Crenshaw and Leslie McCall, ‘Toward a Field of Intersectionality Studies: Theory, Applications, and Praxis’ (2013) 38 Signs: Journal of Women in Culture and Society 785. 84 Ibid, at page 795: ‘This framing – conceiving of categories not as distinct but as always permeated by other categories, fluid and changing, always in the process of creating and being created by dynamics of power – emphasizes what intersectionality does rather than what intersectionality is.’ 85 Hélène Dumas, ‘When Children Remember: A History of the Tutsi Genocide Through the Eyes of Children (1994–2006)’, International Review of the Red Cross vol 101, no 910 (2019): 37–57, 39 [https://doi.org/10.1017/S1816383119000171].

22 Introduction This intersectional analysis can and should be furthered to consider the very specific experience of Tutsi girls and the way they were particularly targeted and suffered – for instance, as victims of sexual and gender-based violence. There again, their experience risks being diluted if it is merely incorporated into the experience of all Tutsis, or of Tutsi women – or even into the experience of Tutsi children. It is only when one considers the many layered aspects of a child’s identity that one can fully understand the impact of the crimes that a child has suffered and therefore deliver justice for those crimes.

3 How international crimes affect children The complex intersectionality that underpins what it means to be a child in a specific context is particularly relevant for understanding how international crimes affect children. Whenever mass atrocities have been committed, there have been children among the victims – often many children. Children are victimised alongside adults, as part of a civilian population or as part of groups targeted on discriminatory grounds – for instance, as ethnic groups such as the Tutsis were. Children are also sometimes targeted specifically as children because of their vulnerability – for instance, to be recruited to serve as ‘child-soldiers’. This section succinctly presents the diverse and deep impacts of international crimes on children; how those crimes affect children in ways at least as grave as adults; and why such crimes therefore merit specific attention and recognition. This notion underpins this study in its questioning of whether the international and hybrid courts mandated to investigate and prosecute such crimes have paid sufficient attention to the suffering of children. The impact of international crimes on children can safely be assumed to be at least as bad as the impact of such crimes on adults. Indeed, when children are affected alongside older victims – for instance, when their village or city is bombed, or when they are forcefully displaced – children are likely to be disproportionately affected because of their physical and psychological vulnerability. Children, especially younger ones, are also more at risk because they are less able to defend themselves when faced with aggression and usually depend on adults to protect them physically and provide basic needs. The consequences of the crimes are usually felt longer for children and appear to result in deeper trauma. To give a few examples: in the case of rape and other sexual crimes, children are likely to be even more adversely affected than adults, both physically and psychologically. In the case of forced displacement, children suffer alongside adults; but there may be other long-term consequences for children, as they lose access to education. If a family is separated, children disproportionately endure the consequences: while both parents and children are likely to be distraught and suffer psychologically, children endure disproportionate consequences because they lose their physical, emotional and material protection and care, as well as the access to regular food and other basic needs that parents usually provide. Their physical vulnerability – especially for younger children – place them at particular risk of malnutrition, starvation or death when populations are deprived of access to water, food or other basic services such as sanitation or medical facilities.

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In sum, children tend to be more negatively affected than adults when international crimes occur that impact them alongside adults. The different and more pronounced effect on children is due notably to their inherent vulnerability. In addition to children being affected by international crimes alongside others, they are also at times specifically targeted as children. Three main reasons, often interlinked or connected, seem to underlie the targeting of children. First, children may be deliberately targeted as a calculated means to harass, intimidate or undermine the resistance of their parents or the ‘group’ or ‘side’ to which they belong. Children can also be deliberately targeted in the attempt to destroy – physically or culturally – their groups or communities. There are several historical examples of children being forcefully removed from their families to be brought up either in residential schools (eg, aboriginal or indigenous children in Canada)86 or by adoptive families (eg, in Nazi Germany),87 so as to erase or eliminate the children’s prior identity.88 Dumas, focusing on the Rwanda genocide, has concluded: ‘Children are the primary targets of any genocide.’89 Second, children may be specifically targeted on account of their physical vulnerability: they are often victims of rape, exploitation or enslavement because they are weaker and cannot defend themselves as well as adults. Third, children may be deliberately targeted because of their specific characteristics as children. In the case of children who are enslaved, abducted to be forced labourers in illegal mines or recruited by armed groups or forces, it seems that their relative docility and malleability make them particularly attractive to criminals who are intent on exploiting them. Some armed groups, such as the Lord’s Resistance Army, have favoured recruiting children as combatants by abducting them. Other armed groups, which can count on adult combatants, still conscript children, revealing that children are deemed to be a precious resource for them. It is because children are deemed more malleable and more easily coerced or convinced to serve a range of purposes – from servants to sexual slaves – in addition to

86 See Canada’s Residential Schools: The Final Report of the Truth and Reconciliation Commission of Canada, vol 1 (Montreal: McGill-Queen’s Press-MQUP, 2015). 87 See Chapter 3. 88 This specific crime against children is recognised under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which refers to ‘Forcibly transferring children of the group to another group’ as one of the five underlying crimes which may constitute genocide if committed with the intent to destroy, in whole or in part, an ethnic, national, racial or religious group. UNGA Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) (1951) 78 UNTS 277, art 2(e) [https:// treaties.un.org/doc/publication/unts/volume%2078/volume-78-i-1021-english.pdf]. See Chapter 3. 89 Hélène Dumas, ‘When Children Remember: A History of the Tutsi Genocide Through the Eyes of Children (1994–2006)’, International Review of the Red Cross vol 101, no 910 (2019): 37–57, 39 [https://doi.org/10.1017/ S1816383119000171].

24 Introduction participating in combat, as well as to commit atrocities and terrorise populations, that they are recruited and particularly valued.90 Thus, overall, the vulnerability of children places them at greater risk not only of falling victim to crimes, but also of being more negatively impacted and experiencing greater suffering than adult victims of the same or similar crimes. This is why international law – including human rights law and humanitarian law – recognises that children’s vulnerability entitles them to protection that goes above and beyond the rights and general protection afforded to them as humans and civilians. This also underlines why it is important and valid to review the extent to which international and hybrid courts mandated to investigate and prosecute international crimes have paid sufficient attention to children. There is another dimension that justifies paying particularly close attention to the impact of atrocity crimes on children: the age demographic of many of the countries in which atrocity crimes are committed. In many of those worse affected, children constitute a very large percentage of the population, if not the majority. In 2022, children under the age of 14 years constituted over 40% of the population in Afghanistan; 45% in the Democratic Republic of the Congo; 37% in Iraq; 46% in Somalia; 41% in South Sudan; and 38% in Yemen.91 Such demographics and age pyramids have statistical consequences: where young children constitute such an important part of the population, it can logically be deduced that they are likely to form a very large part, if not the majority, of the victims of international crimes. They are also more likely to be possibly involved in the commission of these crimes. Not all children are affected in the same manner and some children may be affected even more than others. The impact that such crimes have on children is intersectional and likely to be shaped by overlapping social factors that compound their vulnerabilities. Younger children in particular, as already noted, can be particularly affected. Gender is also an important factor: girls are often exposed to especially serious violations; and the consequences of the same crimes may be graver for girls than for boys because of the attached stigma, as seen above. The impact of atrocity on children may be dramatic, in terms of the long-term physical and psychological consequences and traumatic impact.92 Exposure to violence can potentially harm children’s development: Pirisi argues that for children: ‘Exposure to armed conflict can culminate in symptoms such as anxiety and fear, developmental delays, learning difficulties, sleep disturbances and nightmares, social 90 See notably Michael Wessels, Child Soldiers: From Violence to Prevention (Cambridge: Harvard University Press, 2007). 91 World Population Dashboard, United Nations Population Fund, as of 31 December 2022 [https://www.unfpa.org/data/world-population-dashboard]. 92 ‘Relatively little is known about the psychosocial long-term effects of recent lengthy civil wars. The loss of parents and other close family members leaves a life-long impression and can dramatically alter life pathways.’ UNGA ‘Promotion and Protection of the Rights of Children: Impact of Armed Conflict on Children’ UN GAOR 51st Session UN Doc A/51/306, para 169 (1996) (prepared by Graça Machel).

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93

withdrawal, violent and aggressive behaviour, severe depression and suicide.’ Can children who have witnessed the rape or killing of their parents develop normal attachment and trust anyone? What is the long-term psychological impact of such attacks on children? Studies have shown that children – especially younger ones – perceive, comprehend and memorise traumatic events in a very different manner from adults, underlining that any experience of victimisation is not only subjective but also conditioned by age and the related developmental stage.94 A study of the trauma exposure and psychological reactions of Rwandan child-victims of genocide in 1994 indicates that they all shared a sense of a total collapse of the adult world, which either was incapable of protecting them or became a deadly threat.95 In their own words, children revealed that for them, the boundary between life and death had disappeared, as the quote cited above indicates. Many children mentioned the impossibility of living without parents; the death of their family was their own death. These ‘deaths’ are not symbolic and nor are they a rhetorical game of words; they are even more real when children are thrown into mass graves with corpses after large-scale attacks. Living and surviving in close proximity to the dead reinforces the already powerful feeling of being a corpse among corpses.96 Children who survive atrocity crimes often suffer long-term consequences, having lost crucial years of socialisation and education, and often enduring longlasting physical injuries and psychological trauma. Given that children are victims of atrocity crimes alongside others and are sometimes targeted specifically, the long-lasting impact of atrocity crimes on children and the particular vulnerabilities of children and associated specific legal obligations to protect children, crimes committed against children should receive particular consideration from international jurisdictions.

4 Arguments and structure This book reviews whether and how different international and hybrid criminal jurisdictions have considered international crimes committed against or by children. It assesses the extent to which the courts presented above – the Nuremberg 93 Sharanjeet Parmar et al, eds, Children and Transitional Justice: Truth-telling, Accountability and Reconciliation (Cambridge: Harvard University Press, 2010) 86; citing Angela Pirisi, ‘Healing the Minds of War-Exposed Children’, The Journal of Addiction and Mental Health vol 4, no 6 (Nov/Dec 2001). 94 See notably Jo Boyden and Joanna de Berry, eds, Children and Youth on the Front Line: Ethnography, Armed Conflict and Displacement (New York: Berghahn Books, 2004); and Charles W Greenbaum, Muhammad M Haj-Yahia and Carolyn Hamilton, eds, Handbook of Political Violence and Children: Psychosocial Effects, Intervention, and Prevention Policy (Oxford: Oxford University Press, 2020). 95 Hélène Dumas, ‘When Children Remember: A History of the Tutsi Genocide Through the Eyes of Children (1994–2006)’, International Review of the Red Cross vol 101, no 910 (2019): 37–57, 39 [https://doi.org/10.1017/S1816383119000171]. 96 Ibid, 49 (footnotes omitted); citing A Dyregrov et al, ‘Trauma Exposure and Psychological Reactions to Genocide among Rwandan Children,’ Journal of Traumatic Stress, vol 13, no 1 (2000) [https://doi.org/10.1023/A:1007759112499].

26 Introduction and Tokyo Tribunals, the ICTY, the ICTR, the SCSL and the ICC – have dealt with these crimes and how they have done so, focusing on their practice and settled jurisprudence.97 It further considers how international criminal justice can help contribute to the recognition of the specific impact that international crimes have on children, whether as victims or as participants; and makes recommendations to strengthen the protection of children. The next chapter (Chapter 2) reviews the rights of children and their protection under public international law, focusing on the rights recognised in international human rights law – notably by the CRC – and how international humanitarian law protects children. It also analyses how international law prohibits the recruitment and use of children in hostilities, and how it regulates their treatment if arrested or detained. It provides a brief overview of the procedural guarantees that apply to children in contact with criminal institutions, in particular at the ICC. Chapters 3 and 4 are devoted to the international crimes that victimise children and fall within the jurisdiction of international courts, distinguishing between child-specific crimes on the one hand and crimes committed against children alongside other victims on the other (in other words, ‘generic’ international crimes victimising children) – although the two categories may overlap.98 Chapter 3 reviews how international criminal courts have addressed child-specific crimes – namely crimes that constitute a criminal offence because the victim is a child (whereas the same act against an adult would not be criminalised). This chapter concentrates on the few child-specific crimes defined under international law, which are also internationally ‘criminalised’ (ie, attracting criminal liability before international courts). It successively reviews the crime of genocide for transferring children from one group to another; the war crime of conscripting or enlisting children or using them to participate actively in hostilities – the childspecific crime that has catalysed the attention of recent international courts, notably the SCSL and the ICC; and the war crime of intentionally directing attacks against buildings dedicated to education – which, although not a child-specific crime per se, primarily affects children. Chapter 4 surveys how international and hybrid courts have addressed the many other generic crimes committed against children – such as enslavement, torture, sexual slavery and rape – which are equally important and deserving of remedy for child-victims. Based on an analysis of selected portions of each court’s jurisprudence, the chapter reviews whether and how these courts have paid attention to these generic crimes, revealing that the vast scope of these crimes committed against children has mostly been left unaddressed.

97 The case law reviewed is limited to those cases which have been completed, including all appellate proceedings, so as to only cover settled jurisprudence. 98 The distinction between ‘child-specific offences’ and other ‘generic’ offences was first established in Cécile Aptel, ‘International Criminal Justice and Child Protection’, in Children and Transitional Justice: Truth-telling, Accountability, and Reconciliation, edited by Sharanjeet Parmar et al (Cambridge: Human Rights Program at Harvard Law School, 2010), 67–114.

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Chapter 5 turns to the delicate question of accountability for children who are suspected of having participated in international crimes. Should those children be held criminally accountable? Can and have they been tried by international courts? This chapter seeks to answer some of these questions, starting with a review of the applicable standards in terms of minimum age of criminal responsibility and juvenile justice, and then focusing on whether international criminal jurisdictions have considered children’s criminal responsibility. It shows that international criminal courts have avoided dealing with crimes committed by children. This has largely resulted from deliberate prosecution policies that have focused on those individuals bearing the greatest responsibility for crimes and, in so doing, have largely not been concerned by crimes committed by children. The concluding chapter, Chapter 6, summarises the findings and sets an agenda for improvement, with specific recommendations to expand the contributions of international and hybrid criminal jurisdiction to justice for children.

2

The Legal Protection of Children under International Law

Public international law is concerned with the rights and protection of children in two ways: first, it recognises and guarantees their fundamental rights as human beings; and second, it recognises that as children, they are bearers of special rights. This chapter first reviews the main legal instruments defining their rights and legal protection, under international human rights law and international humanitarian law. Thereafter, it analyses specific provisions and standards to assess how international law prohibits the recruitment and use of children in hostilities, and, how it regulates their treatment if arrested or detained. Lastly, it gives a brief overview of some of the main procedural guarantees applying to children in contact with international criminal courts, in particular at the ICC.

1 International human rights law Under international human rights law (IHRL), children benefit from general human rights laws that apply to all persons and also benefit from particular rights afforded to them as children – notably by the Convention on the Rights of the Child (CRC). 1.1 The human rights of children IHRL is grounded in the underlying assumption that all human beings have fundamental rights because they are human. Human rights are universal and apply to all without discrimination, irrespective of age and any other characteristics such as race, nationality, sex, gender and so on. Human rights are recognised globally; many of its norms are deemed to amount to customary law and some are even considered to be jus cogens rules. They are laid down in various international agreements, such as the 1948 United Nations Universal Declaration of Human Rights (UDHR) and multilateral and regional treaties; as well as in national constitutions and laws around the world. While it is now unquestionable that children benefit equally from all human rights, historically, international law – and particularly IHRL – did not necessarily develop with children in mind. The early texts or declarations that are often cited as the first attempts to encapsulate human rights, such as the United States DOI: 10.4324/9781003361015-2

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Declaration of Independence, refer to ‘the Rights of Men’: they excluded women; many if not all children – at least girls; and even many men themselves, such as all those of colour.1 It is only over time that children have been deemed to have equal rights – even if in practice, there are still many challenges, stemming notably from their vulnerability. For children, possibly even more than for older individuals, the distinction between civil-political rights on the one hand and socio-economic and cultural rights on the other is blurred. This is due to the fact that children have limited civil and political rights, such as the right to vote; and they are also usually dependent on others for their socio-economic and cultural needs. For children, especially younger children, freedom from want, access to nutritious food, medical services, education and security are intrinsically linked to the satisfaction of their parents’ and families’ needs and the realisation of their human rights. Conversely, the structural imbalances which are the source of many human rights violations and abuses – such as the impact of poverty or of caste systems on people’s human rights – are often magnified for children. The UDHR proclaims rights that are deemed to apply equally to children and adults. While the UDHR is not a binding text, most of its provisions have by now been recognised as customary law and some have been recognised as jus cogens. Only two articles in the UDHR refer explicitly to children. The first and main reference is contained in Article 25(2). This entitles ‘Motherhood and childhood … to special care and assistance’, lumping mothers and children together and deeming them all as objects of protection in a rather paternalistic manner. It continues: ‘All children, whether born in or out of wedlock, shall enjoy the same social protection.’ The discrimination of children born out of wedlock is probably less of a concern today than it may have been in 1948, but this provision is nonetheless a bit incongruous – if not for what it asserts than for its narrow focus. Even then, in the mid-1940s, many observers may have been surprised by this lone preoccupation retained by the drafters of the UDHR, when so many other provisions could have been extended to the many children deprived or discriminated against in so many different ways. Retrospectively, the concerns with children born out of wedlock may also be attributed to the personal views and values of many of the drafters. The second and last explicit reference to children in the UDHR is in Article 26(3), which gives parents the right to choose the kind of education that shall be given to their children. Two human rights covenants were adopted by the United Nations (UN) in 1966 to elaborate on the UDHR, as they turned its provisions into binding international law. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) both contain important rights for children, such as the right to a name and a nationality, the right to education and the right to healthcare. While the two covenants refer explicitly to children, they do not define who ‘children’ 1 Declaration of Independence (United States of America) (adopted 4 July 1776) [https:// www.archives.gov/founding-docs/declaration-transcript].

30 The Legal Protection of Children under International Law are and use other terms – such as ‘young persons’ and ‘juveniles’ – that also remain undefined by the covenants. This led the UN Human Rights Committee to indicate in General Comment 17 on Article 24 of the ICCPR that: ‘the covenant does not indicate the age at which he [the minor] attains his majority … [because] this is to be determined by each State party in light of the relevant social and cultural conditions.’2 1.2 Child rights Child rights are part of human rights: they are human rights specifically applicable to children. Considering the specific vulnerability of children, efforts at capturing child rights in international documents started relatively early when compared with other attempts at codifying human rights. The first international declaration exclusively devoted to the rights of children appears to be the Geneva Declaration on the Rights of the Child, adopted by the League of Nations in 1924 in the wake of the First World War.3 Although not legally binding, it marks a seminal moment as, for the first time ‘countries of different cultures recognised universal principles and necessities of the Rights of the Child’.4 It was directly influenced by the realisation that children suffer particularly during armed conflicts. It states that children should be provided with the means for their development, afforded special help in times of need, given priority for relief and protected from exploitation.5 The Geneva Declaration also does not define a ‘child’ and therefore does not clearly spell out its scope of application. Considering it today, it seems to have been more concerned about ensuring that children were afforded special protections rather than granting them fundamental ‘rights’ as these would be understood today.

2 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 24; UN Human Rights Committee (HRC), ‘CCPR General Comment No. 17: Article 24 (Right of the child)’ UN HRC 35th Session (adopted 7 April 1989); UN HRC, ‘Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ UN Doc HRI/GEN/1/Rev.1, 23 (1994). 3 Geneva Declaration of the Rights of the Child (adopted 26 September 1924) League of Nations. 4 ‘Standard References on Child Rights’, Humanium [http://www.humanium.org/ en/childrens-rightshistory/references-on-child-rights/]. 5 The Declaration contains only five rules: ‘1) The child must be given the means requisite for its normal development, both materially and spiritually; 2) The child that is hungry must be fed; the child that is sick must be nursed; the child that is backward must be helped; the delinquent child must be reclaimed; and the orphan and the waif must be sheltered and succored; 3: The child must be the first to receive relief in times of distress; 4) The child must be put in a position to earn a livelihood, and must be protected against every form of exploitation; 5) The child must be brought up in the consciousness that its talents must be devoted to the service of fellow men.’ Geneva Declaration of the Rights of the Child (adopted 26 September 1924) League of Nations.

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In 1959, the UN General Assembly (UNGA) unanimously proclaimed the Declaration of the Rights of the Child.6 It recognised ten principles, including children’s rights to education, play, a supportive environment and healthcare; and called upon ‘parents, upon men and women as individuals, and upon voluntary organizations, local authorities and national Governments to recognize these rights and strive for their observance’.7 Like the 1924 Geneva Declaration, the 1959 Declaration did not define a ‘child’ and thus its scope of application. In the 1970s, several steps were taken under the auspices of the International Labour Organization (ILO) that marked important progress in the protection of child rights. In 1973, the adoption of a specific Convention concerning the Minimum Age for Admission to Employment (Convention 138) set the minimum age at 15 for employment and 18 for work that might be dangerous or jeopardise a person’s health, safety or morals, including military work.8 Focusing on children in emergency and conflict situations, and the first instrument to explicitly refer to children and armed conflicts, the UNGA Declaration on the Protection of Women and Children in Emergency and Armed Conflict of 1974 called on states to prohibit attacks against or imprisonment of civilian women and children, and upheld the sanctity of the rights of women and children during armed conflict.9 In 1979 – which was declared the International Year of the Child by the UN – Poland proposed the development of a binding international charter on child rights, suggesting that ‘almost twenty years after the proclamation of the principles of the UN Declaration of 1959 it was time to take further and more consistent steps by adopting an internationally binding instrument in the form of a convention’.10 This opened up a decade of intense negotiations and drafting, which resulted in what became the CRC. 1.3 The Convention on the Rights of the Child The adoption of the CRC on 20 November 1989 was a seminal moment. This is a key international treaty that contains a set of legally binding international 6 UNGA Res 1386(XIV) (20 November 1959) UN Doc A/RES/14/1386 (Declaration of the Rights of the Child). 7 Ibid, Preamble. 8 ILO, ‘C138 Minimum Age Convention, 1973’ (published 26 June 1973, entered into force 19 June 1976) (Convention Concerning Minimum Age for Admission to Employment) [http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100: 0::NO::P12100_INSTRUMENT_ID:3122 83.] This Convention was followed in 1999 by the Worst Forms of Child Labour Convention, calling for the immediate prohibition and elimination of any form of work that is likely to harm the health, safety or morals of children. ILO, ‘C182 Worst Forms of Child Labour Convention, 1999’ (published 17 June 1999, entered into force 19 November 2000.) 9 UNGA Res 3318(XXIX) (14 December 1974) UN Doc A/RES/3318(XXIX) (Declaration on the Protection of Women and Children in Emergency and Armed Conflict). 10 Sharon Detrick, A Commentary on the United Nations Convention on the Rights of the Child (Leiden: Brill Nijhoff, 1999), 15.

32 The Legal Protection of Children under International Law standards for the promotion and protection of children’s rights.11 The CRC was rapidly ratified by a large number of states and entered into force on 2 September 1990. Today, the CRC has been almost universally ratified, making it the most widely accepted human rights treaty in history. It is legally in force in all but one state,12 thus ‘providing a common ethical and legal framework for the realization of children’s rights’, according to the United Nations Children’s Fund (UNICEF).13 The CRC contains a comprehensive set of provisions covering the full range of civil and political, economic, social and cultural rights, asserting the complementarity and interdependence of human rights. As seen in Chapter 1, the CRC defines ‘children’ in a chronological manner – usually as those under the age of 18. The states parties to the CRC are obliged to take the ‘appropriate legislative, policy, administrative, and other measures for the implementation of the rights contained therein … ensuring, by all appropriate means, that the provisions are given legal effect in the States Parties’ domestic legal systems’.14 Detrick has noted that the rules are framed as the responsibilities of adults, who must refrain from violating children and instead protect them.15 The rights and protections that the CRC grants to children can be grouped into four main categories. First, the CRC covers the most basic rights or survival rights. These include the rights to life;16 to adequate nutritious food and clean drinking water;17 to an adequate standard of living;18 and to the highest attainable standard of health.19 Second, the CRC provides for protection rights, which seek to safeguard children against violence, abuse, neglect and exploitation in all forms,20 including the right to special protection in times of war.21 Third, the CRC 11 The CRC was adopted by UNGA Resolution 44/25 of 20 November 1989 and entered into force on 2 September 1990. Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC). 12 As of August 2022, there are 196 state parties to the CRC. The last two states which acceded to the CRC were Somalia and South Sudan, in 2015. Only the United States, which has signed the Convention, has not ratified it. Status of Ratification: Convention on the Rights of the Child, United Nations Office of the High Commissioner on Human Rights [https://indicators.ohchr.org/]. 13 UNICEF, ‘Frequently Asked Questions on the Convention on the Rights of the Child’, [https://www.unicef.org/child-rights-convention/frequently-asked-questions]. 14 Evarist Baimu, ‘International Protection of Children’, in Max Plank Encyclopedia of Public International Law (Oxford: Oxford University Press, 2009) (updated in 2013) [http:// opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e904?rskey=kNAAma&result=1&prd=EPIL]. 15 Sharon Detrick, ed, The United Nations Convention on the Rights of the Child: A Guide to the Travaux Préparatoires, 1992 ed (Geneva: Martinus Nijhoff Publishers, 1992), 13. 16 CRC, art 6(1). 17 Ibid, art 24(2)(c). 18 Ibid, art 27. 19 Ibid, art 24. 20 Ibid, art 19. 21 Ibid, art 38–39.

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22

encompasses development rights, including the rights to education; to leisure and participation in recreational and cultural activities;23 to access to information;24 and to freedom of thought, conscience and religion.25 Fourth, the CRC recognises that children have specific participation rights – notably the right to freedom of expression,26 and to express their views freely on all matters affecting them.27 These last two rights are particularly relevant to the meaningful participation of children in contact with international courts or other transitional justice mechanisms. Many, but not all of these rights are also enshrined in other IHRL legal instruments and as such apply to all human beings, including children. But the CRC consolidates and sometimes pushes further some of these rights as far as children are concerned. For example, Article 10 of the ICCPR affords general protection to persons who are deprived of their liberty, including juveniles;28 while Article 37 of the CRC grants more specific protection concerning detained or imprisoned children, such as a requirement that the detained or imprisoned child maintain contact with her or his family through correspondence and visits.29 The CRC sets out four general overarching principles that, according to the Committee on the Rights of the Child, should guide states in their interpretation and implementation of the CRC.30 First, all rights guaranteed by the CRC must be respected and ensured by states parties without discrimination.31 Second, the best interests of the child shall be a primary consideration in all actions concerning children.32 Third, every child has the right to life and states parties have the obligation to ensure the child’s survival and development.33 Fourth, in all matters

Ibid, art 28. Ibid, art 31. Ibid, art 17. Ibid, art 14. Ibid, art 13. Ibid, art 12. ICCPR, art 10. CRC, art 37. These principles were determined by the UN Committee on the Rights of the Child when it first met in a formal session in 1991. The committee highlighted the general principles that were to help in the interpretation of the convention as a whole and thereby guide its implementation. See, for instance, Laura Lundy and Bronagh Byrne, ‘The four general principles of the United Nations Convention on the Rights of the Child: the potential value of the approach in other areas of human rights law’, Children’s Rights Law in the Global Human Rights Landscape (Abington: Routledge, 2017): 52–70. 31 CRC, art 2. 32 The principle of ‘the best interests of the child’ refers to the core children’s rights principles to protect, respect and ensure the wellbeing of the child as a primary consideration when decisions are made on his or her behalf, by taking into account the child’s age, gender, experience, level of maturity, presence or absence of a parent, opinion, and the context. CRC, art 3. 33 Ibid, art 6.

22 23 24 25 26 27 28 29 30

34 The Legal Protection of Children under International Law affecting the child, the child’s own views must be considered and given due weight in accordance with age and maturity.34 Articles 5 and 12 of the CRC refer to the concept of the ‘evolving capacity of the child’. This is an important concept, based on the understanding that each child evolves at his or her own pace, progressively acquiring skills, competencies, independence and the capacity to become more autonomous.35 As children grow, their need for direction from others reduces and they gain a greater capacity to take responsibility for the decisions affecting their lives.36 According to the Committee on the Rights of the Child, commenting on Article 12(1): State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.37 The recognition of the child’s evolving capacity enables an interpretation of the CRC that establishes a corollary between the capacity of a child and the recognition of her or his agency. It also creates a continuum between protection and agency, with a recognition of the needs of younger children to be protected and an acknowledgement that children become increasingly active agents as they grow, and are gradually entitled to participate more and more in the decisions that affect their lives. As such, the CRC creates a paradigmatic shift in the understanding of children, from mere passive objects of protection, care and charity to human beings who – although young – have a set of rights and their own agency. The CRC basically marks the transition from a welfarist protectionism agenda to a rights-based understanding of children. UNICEF considers that the CRC changed ‘the way children are viewed and treated – i.e., as human beings with a distinct set of rights instead of as passive objects of care and charity’.38 The tension between conceiving of children as the object of protection because of their vulnerability and recognising their agency is at the heart of the balancing exercise that child rights seek to achieve. As noted by Graça Machel in her seminal study of the impact of armed conflict on children, the CRC ‘recognizes a comprehensive list of rights that apply during 34 Ibid, art 12. 35 Ibid, art 5, 12. 36 See notably Gerison Lansdown, ‘The Evolving Capacities of the Child’, UNICEF Innocenti Research Centre (2005) 1–82, 3 [https://www.unicef-irc.org/publica tions/pdf/evolving-eng.pdf]. 37 CRC/C/GC/12/, ‘Committee on the Rights of the Child -General Comment No. 12 (2009) The right of the child to be heard,’ [http://www2.ohchr.org/english/ bodies/crc/docs/AdvanceVersions/CRC-C-GC12.pdf]; Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, art 12 (CRC). 38 UNICEF, ‘Convention on the Rights of the Child’ [http://www.unicef.org/crc/].

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both peacetime and war’. Indeed, all the rights granted to children by the CRC and other international human rights treaties continue to apply in war.40 The Committee on the Rights of the Child has highlighted that the CRC has no derogation clause and applies both in times of peace and during armed conflict or emergency situations.41 The human rights of children should be safeguarded at all times, including during conflicts and public emergencies, when many human rights treaties allow for the temporary derogation or suspension of certain rights. Two provisions of the CRC explicitly refer to armed conflict: Articles 38 and 39.42 Article 38(4) reaffirms that states must respect and ensure respect for the rules of international humanitarian law (IHL) and take ‘all feasible measures to ensure protection and care of children who are affected by armed conflict’.43 Article 39 further promotes post-conflict recovery and reintegration in an environment that fosters the health, self-respect and dignity of the child.44 The explicit reference to IHL in Article 38 of the CRC, a human rights treaty, underlines how these two international legal regimes are complementary and mutually reinforcing in their efforts to protect children during armed conflicts. Although the CRC reiterates the importance of IHL, it is not as specific as the GCs – in particular GC IV and its detailed provisions on particular issues, such as the transfer or evacuation of children and family reunification.45 Article 38 of the CRC also covers the recruitment and participation in hostilities of children under the age of 15.46 It reiterates the provisions of the Additional Protocols (APs) to the GCs.47 Article 39

39 UNGA, ‘Promotion and Protection of the Rights of Children: Impact of Armed Conflict on Children’, UN GAOR 51st Session UN Doc A/51/306, para 227 (1996) (prepared by Graça Machel). 40 The International Court of Justice (ICJ) stated that protections offered by human rights conventions do not cease in times of war, except by operation of the Article 4 provisions on derogations of the International Covenant on Civil and Political Rights (ICJ, 2004:178 para 106; ICJ, 1996:239–240 paras 24–25). The applicability of IHRL in situations in armed conflicts was also confirmed by the ICJ in the Case Concerning Armed Activities on the Territory of the Congo. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) ICJ Rep 168 (ICJ 2005), 239–245, para 205–221 [https://www.icj-cij. org/files/case-related/116/116-20051219-JUD-01-00-EN.pdf]. 41 UN Committee on the Rights of the Child (19 October 1992) UN Doc CRC/C/10 (Day of General Discussion on Children in Armed Conflict), para 92 [https://www. refworld.org/pdfid/3f4763b24.pdf]. 42 CRC, arts 38–39. 43 Ibid, art 38(4). 44 Ibid, art 39. 45 Fourth Geneva Convention, arts 17, 24(1), 24(2), 25, 26, 49(3), 82, 132(2). 46 CRC, art 38. 47 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3, art 77(2) (Protocol I); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609, art 4(3)(c) (Protocol II).

36 The Legal Protection of Children under International Law of the CRC concerns the physical and psychological recovery, and the social reintegration, of child-victims of armed conflicts.48 Back in 1992, the UN Committee on the Rights of the Child observed that the protection of children within the family environment; the provision of essential care and assistance; access to food, healthcare and education; humanitarian assistance, relief and access; the prohibition of torture, abuse or neglect; the prohibition of the death penalty; protection in situations of deprivation of liberty; and the preservation of the child’s cultural environment are all essential for the realisation of the rights of children affected by armed conflicts49 This Committee subsequently highlighted the responsibilities of states to protect children from recruitment into armed forces;50 landmines;51 gender-based violence and harmful practices;52 torture and inhuman or degrading treatment or punishment;53 and the harmful impact of business activities.54 The Committee also emphasised that states must protect indigenous children55 and children affected by HIV/AIDS;56 48 CRC, art 39. 49 UN Committee on the Rights of the Child (19 October 1992) UN Doc CRC/C/10 (Day of General Discussion on Children in Armed Conflict), § 73 [https://www.ref world.org/pdfid/3f4763b24.pdf]. 50 UN Committee on the Rights of the Child (6 December 2016) UN Doc CRC/C/ GC/20, para 40, 81–83 (General Comment No 20 (2016) on the implementation of the right of the child during adolescence); UN Committee on the Rights of the Child (17 April 2013) UN Doc CRC/C/GC/16, para 52 (General Comment No 16 (2013) on State obligation regarding the impact of the business sector on children’s rights); UN Committee on the Rights of the Child (1 September 2005) UN Doc CRC/GC/2005/6, para 17, 28, 54–58 (General Comment N. 6 (2005) Treatment of Unaccompanied and Separated Children Outside their Country of Origin). 51 UN Committee on the Rights of the Child (27 February 2007) UN Doc CRC/C/ GC/9, para 23, 55 (General Comment No 9 (2007) The rights of children with disabilities). 52 UN Convention on the Elimination of All Forms of Discrimination against Women and UN CRC (14 November 2014) UN Doc CEDAW/C/GC/31/CRC/C/GC/ 18, para 8, 18, 23 (Joint general recommendation No 31 of the Committee on the Elimination of Discrimination against Women/general comment No. 18 of the Committee on the Rights of the Child on harmful practices); UN Committee on the Rights of the Child (1 September 2005) UN Doc CRC/GC/2005/6, para 47 (General Comment No 6 (2005) Treatment of Unaccompanied and Separated Children Outside their Country of Origin). 53 UN Committee on the Rights of the Child (18 April 2011) UN Doc CRC/C/GC/ 13, para 26. (General Comment No 13 (2011) The right of the child to freedom from all forms of violence). 54 UN Committee on the Rights of the Child (17 April 2013) UN Doc CRC/C/GC/ 16, para 2, 49–55, 76 (General Comment No 16 (2013) on State obligation regarding the impact of the business sector on children’s rights). 55 UN Committee on the Rights of the Child (12 February 2009) UN Doc CRC/C/ GC/11, para 1, 64–68. (General Comment No 11 (2009) Indigenous children and their rights under the Convention [on the Rights of the Child]). 56 UN Committee on the Rights of the Child (17 March 2003) UN Doc CRC/GC/ 2003/3, para 30, 38. (General Comment No 3 (2003) HIV/AIDS and the Rights of the Child).

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provide opportunities for play, recreation and cultural activity; provide access to development, adequate health, social services58 and human rights education;59 and ensure children’s active role in peace-building and post-conflict resolution processes.60 The Optional Protocols Three Optional Protocols to the CRC have been successively adopted, furthering child rights in specific domains. In 2000, the UNGA adopted the first two Optional Protocols to the CRC. The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (OPAC) was adopted by Resolution 54/263 of 25 May 2000 and entered into force on 12 February 2002.61 It focuses on the prohibition of the recruitment and use of children as soldiers in armed conflicts, furthering the provisions of Article 38 of the CRC. It seeks to have states ensure that members of their armed forces under the age of 18 do not participate in hostilities; and that persons under the age of 18 are not compulsorily recruited (Articles 1–2).62 States are also required to raise the minimum age for voluntary recruitment (Article 3).63 In addition, OPAC provides that non-state armed groups should not, under any circumstances, recruit or use in hostilities children under the age of 18; and requires states parties to take all feasible legal measures to prohibit and criminalise such practices (Article 4).64 OPAC condemns ‘the targeting of children in situations of armed conflict and direct attacks on objects 57 UN Committee on the Rights of the Child (17 April 2013) UN Doc CRC/C/GC/ 17, para 53 (General Comment No 17 (2013) on the right of the child to rest, leisure, play, recreational activities, cultural life and the arts (art 31)). 58 UN Committee on the Rights of the Child (27 February 2007) UN Doc CRC/C/ GC/9, para 55, 78 (General Comment No 9 (2005) The rights of children with disabilities); UN Committee on the Rights of the Child (1 September 2005) UN Doc CRC/GC/2005/6, para 60 (General Comment No 6 (2005) Treatment of Unaccompanied and Separated Children Outside their Country of Origin).; UN Committee on the Rights of the Child (1 July 2003) UN Doc CRC/GC/2003/4, para 4, 24, 38. (General Comment No 4 (2003) Adolescent Health and Development in the Context of the Convention on the Rights of the Child). 59 UN Committee on the Rights of the Child (17 April 2001) UN Doc CRC/GC/ 2001/1, paras 15–16. (General Comment No 1 (2001) Article 29 (1), The aims of education). 60 UN Committee on the Rights of the Child (6 December 2016) UN Doc CRC/C/ GC/20, paras 79–80 (General Comment No 20 (2016) on the implementation of the right of the child during adolescence); UN Committee on the Rights of the Child (20 July 2009) UN Doc CRC/C/GC/12, para 125–126 (General Comment No 12 (2009) The right of the child to be heard). 61 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts (adopted 25 May 2000, entered into force 12 February 2002) 2173 UNTS 222 (OPAC). 62 OPAC, arts 1–2. 63 Ibid, art 3. 64 Ibid, art 4.

38 The Legal Protection of Children under International Law protected under international law, including places that generally have a significant presence of children, such as schools and hospitals’.65 Interestingly, the only state that has not ratified the CRC is the United States of America, although it nonetheless acceded to the OPAC in 2002.66 As it is unusual for a state to bind itself to an optional protocol to a treaty while not being bound to the treaty itself, this has led some observers to qualify OPAC as a convention in its own right, or a ‘miniconvention’.67 The Second Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography was adopted by Resolution 54/263 of 25 May 2000 and entered into force on 18 January 2002. It prohibits and defines the sale of children, child prostitution and child pornography (Articles 1–2); and requires states parties to criminalise these offences and, where appropriate, to establish the liability of offenders in their domestic legal order (Articles 3–4).68 Finally, the Third Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure was adopted by UNGA Resolution 66/ 138 of 19 December 2011 and entered into force on 14 April 2014. It establishes an international complaints procedure for child rights violations, allowing children from states parties to bring complaints about violations of their rights directly to the UN Committee on the Rights of the Child if no remedy is found at the national level.69

2 International humanitarian law IHL – also known as the law of war or the law of armed conflict – seeks to limit the effects of conflict. It protects those who are not or are no longer participating in hostilities, and restricts the means and methods of warfare. As seen above, in armed conflict, children continue to benefit both from general human rights law, which applies to all persons, and from the particular rights afforded to them as children – notably by the CRC. In addition, under IHL, children benefit from general protections as civilians, and also from special protection as children.70 65 Ibid, preamble. 66 The United States of America acceded to OPAC on 23 December 2002; see UN Treaty Collection, ‘Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts’ [https://treaties.un.org/Pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11-b&chapter=4&clang=_en]. 67 See notably Radhika Coomaraswamy, ‘The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict – Towards Universal Ratification’, The International Journal of Children’s Rights vol 18, no 4 (2010): 535–549. 68 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (adopted 25 May 2000, entered into force 18 January 2002) 2171 UNTS 227, art 1–4 (OPSC). 69 Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (adopted 19 December 2011, entered into force 14 April 2014) 2983 UNTS.

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Preoccupied with the protection of children during armed conflicts, IHL notably regulates their access to vital supplies for their physical and mental wellbeing (eg, medical care, food and clothing), and to activities essential for their development, particularly education. IHL treaties and customary IHL protect children in all types of conflicts. 2.1 IHL treaties The major sources of IHL relevant to the protection of children are the abovementioned GCs and their APs relating to the protection of victims of international and non-international armed conflicts.71 IHL requires special protection for children in international armed conflict – notably with respect to the provision of food, clothing and education; care of children who are orphaned or separated from their families; treatment during deprivation of liberty; distribution of relief consignments; exemption of children from the death penalty; and the evacuation of children from besieged and encircled areas.72 The particular emphasis of IHL on the protection of children from the effects of attacks is demonstrated, for instance, in the requirement that safety zones and localities be created to protect children under the age of 15 from the effects of war.73 Under Additional Protocol I (AP I): Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them

70 Children who flee conflicts also benefit from international refugee law. See notably Jacqueline Bhabha, Child Migration and Human Rights in a Global Age (Princeton: Princeton University Press, 2014). 71 Other applicable IHL treaties relating to the rights and protection of children in armed conflict include the amended Protocol II and Protocol V to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects; the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction; and the 2008 Convention on Cluster Munitions. See Protocol on Prohibitions or Restrictions on the Use of Mines, BoobyTraps and Other Devices, annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (entered into force 3 December 1998) 2048 UNTS 93 (Protocol II); Protocol on Explosive Remnants of War to the Convention, annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (entered into force 12 November 2006) 2399 UNTS 100 (Protocol V); Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and Their Destruction (entered into force 1 March 1999) 2056 UNTS 211. 72 Fourth Geneva Convention, arts 17, 23–26, 38, 49, 50–51, 68, 76, 82, 85, 89, 94, 119, 132. 73 Ibid, arts 14–15.

40 The Legal Protection of Children under International Law with the care and aid they require, whether because of their age or for any other reason.74 Children must also be protected against ‘any form of indecent assault’.75 Children should be provided with respect, care and the aid they require, including relief, education, protection from assault and recruitment into armed forces, family reunification and exemption from the death penalty.76 Children can only be evacuated by their own nationals and with the written consent of their caretakers; and should be provided with education and identification cards during their relocation.77 Children who are detained during an armed conflict also benefit from protection: when arrested, detained or interned for reasons related to the conflict, children who are not accompanied by their families should be ‘held in quarters separate from the quarters of adults’.78 Otherwise, when children are accompanied by their families, they should be held in the same place and accommodated as family units.79 It is important to repeat at this juncture that the protections provided by the CRC continue to apply during armed conflict, and that detaining children remains a measure of last resort.80 IHL also protects children in administrative detention or interned during conflicts: child internees are usually to be lodged with family members81 and provided with suitable sleeping quarters and bedding,82 additional food,83 schooling and playgrounds.84 The age of a child internee must be considered when applying disciplinary penalties.85 Similar to IHRL, IHL generally prohibits the imposition of the death penalty on children who were under the age of 18 at the time of the offence.86 In non-international armed conflicts, too, IHL requires that children be provided with the care and aid they require, including education, family reunification, evacuation and protection from recruitment by armed forces and from the death penalty.87 74 Ibid. 75 Ibid. 76 Protocol Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3, arts 70, 76 and 77 (Additional Protocol I). 77 Additional Protocol I, art 78. 78 Ibid, art 77, para 4. 79 Ibid. 80 CRC, art 37(b). 81 Fourth Geneva Convention, art 82(2)–82(3). 82 Ibid, art 85(2). 83 Ibid, art 89(5). 84 Ibid, art 94(2)–94(3). 85 Ibid, art 119(2). 86 Additional Protocol I, art 77(5) and Additional Protocol II, art 6(4). 87 Additional Protocol II, art 4(3), 6(4). Protections during non-international armed conflicts are usually less elaborated than those applicable during international armed

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2.2 Customary IHL A study prepared by the International Committee of the Red Cross (ICRC) has contributed to the clarification of the content of customary IHL.88 Rule 135 of this study indicates that the practice of states establishes that ‘children affected by armed conflict are entitled to special respect and protection’ in both international and non-international armed conflicts.89 This extends in particular to protection against sexual violence; access to education, food and health care; evacuation from areas of combat for safety reasons; and reunification of unaccompanied children with their families.90 Rules 55, 80, 93–94, 105, 117, 120, 131 and 136–137 of this study all directly concern children and cover a wide range of issues, including rapid and unimpeded passage of humanitarian aid to children; prohibition of boobytraps; protection from sexual violence, slavery and recruitment into armed forces; and guarantees of family reunification and unity.91 This study also includes rules on child detention: state practice compiled under Rules 120 and 135 indicates that children deprived of their liberty during armed conflict must be held in quarters separate from those of adults, except where families are accommodated as family units.92

3 The prohibition of the recruitment and use of children in hostilities Both IHL and IHRL prohibit the recruitment and use of children in hostilities, reinforcing each other. IHL, as the legal body regulating the conduct of warfare, is very concerned with the protection of children who take part in hostilities. In particular, it seeks to ensure that children are not recruited by parties to an armed conflict, so that they are not considered combatants or participants in hostilities. In furtherance of the general protection afforded to children by the GCs, their APs respectively covering international and non-international armed conflicts prohibit the recruitment or use in hostilities of children under the age of 15. AP I provides that states parties shall take all feasible measures so that children under 15 do not participate directly in hostilities, and that states parties shall refrain from recruiting them into their armed forces.93 AP II provides an absolute prohibition:

88

89 90 91 92 93

conflicts because states have been more reluctant to develop an international legal framework which could curb their capacity to deal with what they consider internal matters. International Committee of the Red Cross, ‘Study on Customary International Humanitarian Law’, October 2007, 1 [ https://www.icrc.org/eng/assets/files/ other/30ic_8-3_customaryihl_report_final_eng.pdf]; Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, vol 1 (Cambridge: Cambridge University Press, 2005). Ibid, 479. Ibid, 479–482. Ibid, 433–482. Ibid, 193–488. Additional Protocol I, art 77(2).

42 The Legal Protection of Children under International Law in non-international armed conflicts, states parties are not to recruit children under 15 or allow them to take part in hostilities.94 It also guarantees special protections under Article 4 to children under 15 who take part in the hostilities and are captured.95 So, under IHL, the protection granted to children depends on the type of conflict: while states have an obligation of means not to recruit children under 15 in their armed forces or to use them in hostilities during international armed conflicts, both state and non-state armed forces and groups are absolutely prohibited from recruiting or using children in hostilities in non-international armed conflicts. This disparity in legal protection between international and non-international armed conflicts can be explained notably by states’ views that conferring protections to non-stated armed groups may limit their capacity to handle such matters internally. The abovementioned ICRC study on customary law has clarified that the prohibition of child recruitment into armed forces or armed groups and the prohibition of participation of children in hostilities are deemed to be norms of customary IHL applicable in both international and non-international conflicts.96 While the ICRC study acknowledges that there is no uniform practice with respect to the minimum age for child recruitment and participation in hostilities, there is a general agreement that it should not be below 15 years of age.97 The IHL provisions included in the APs were reiterated in the 1989 CRC. Article 38 of the latter treaty recalls states’ obligation to ensure that children under 15 do not participate directly in hostilities98 and the prohibition of recruitment of children under 15 into a state’s armed forces.99 OPAC subsequently reinforced the CRC. Its Article 4(1), using non-binding language, sought to have states raise the minimum age for participation in hostilities and for compulsory recruitment to 18 in all types of conflicts.100 OPAC distinguishes between compulsory recruitment into a state’s armed forces (prohibited for children under the age of 18) and voluntary recruitment (for which the minimum age is set at 15).101 OPAC also emphasises that states should ‘take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities’.102 Another international instrument that prohibits the forced or compulsory recruitment of children under 18 is ILO Convention 182.103 Other non-binding 94 Additional Protocol II, art 4(3)(c). 95 Ibid. 96 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, vol 1 (Cambridge: Cambridge University Press, 2005), 482–489 (Rules 136–137). 97 Ibid. 98 CRC, art 38(2). 99 Ibid. 100 OPAC, art 4(1). 101 Ibid, arts 2, 3(1). 102 OPAC, art 1.

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international efforts to halt the recruitment and use of children include the Cape Town Principles and Best Practices on the Prevention of Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa;104 the Paris Commitments to Protect Children from Unlawful Recruitment or Use by Armed Forces or Armed Groups;105 and the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups.106 While there is no single standard regarding the minimum age for recruitment and participation in hostilities, and practice across the world varies, it should in any case not be below the age of 15, and many child advocates have called for it to be raised to 18. Building on the prohibition to recruit and use children in hostilities, international law has also criminalised these acts. The Statute of the International Criminal Court lists ‘conscripting or enlisting children’ under 15 into armed forces or groups or using them to ‘participate actively in hostilities’ as war crimes in both international and non-international armed conflicts.107 During the negotiations in Rome that led to the adoption of this Statute: several states, supported by a few strongly lobbying [non-governmental organizations], had strived to raise the relevant age to 18 … This was rejected by delegations, primarily based on the argument that there was no adequate support for the customary status of the age limit of 18 in international law.108 Provisions similar to those found in the Statute of the ICC were later included in the Statute of the Special Court for Sierra Leone (SCSL), adopted in 2002.109Chapter 3 reviews and analyses how these provisions were used and interpreted by these international jurisdictions, giving rise to an elaborate jurisprudence.

103 ILO, ‘C182 Worst Forms of Child Labour Convention, 1999’ (published 17 June 1999, entered into force 19 November 2000), art 3. Importantly, the 1990 African Charter on the Rights and Welfare of the Child also posits 18 as the minimum age for recruitment and use of children in hostilities. 104 UNICEF, The Cape Town Principles and Best Practices (adopted 27–30 April 1997) [https://www.unicef.org/emergencies/files/Cape_Town_Principles(1).pdf]. 105 UNICEF, The Paris Commitments to Protect Children from Unlawful Recruitment or Use by Armed Forces or Armed Groups (adopted 5–6 February 2007) [https:// www.unicef.org/protection/pariscommitments.pdf]. 106 UNICEF, The Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (adopted February 2007) [https://www.unicef.org/emerg/ files/ParisPrinciples310107English.pdf]. 107 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 38544 (Rome Statute), art 8(2)(b)(xxvi) and art 8(2)(e)(vii) [https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf]. 108 Michael Cottier, ‘Participation of children in hostilities’, in Commentary on the Rome Statute of the International Criminal Court, edited by Otto Triffterer (Oxford: C.H. Beck, Hart, and Nomos, 2008), 468. 109 SCSL Statute, art 4(c).

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4 The protection of children from recruitment and use in hostilities International law prohibits the recruitment and use of children in armed conflicts, and also protects those who fall victim to such recruitment or use in hostilities. Children who directly participate in hostilities continue to benefit from special protections. AP II stipulates that the special protection provided to children below the age of 15 in areas such as education, family reunion and evacuation shall remain applicable even if such children participate directly in hostilities and are captured.110 Under AP I, children under 15 who participate directly in hostilities and fall into the power of an adverse party shall continue to be protected from assault and be afforded the aid and care they require, whether or not they are prisoners of war.111 OPAC condemns the ‘targeting of children in situations of armed conflict’112 and requires states parties to ‘take all feasible measures to demobilize and rehabilitate former child soldiers and to provide them adequate assistance’.113 More generally, under the CRC, states shall take ‘all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of armed conflicts’.114 On this basis, organisations such as the UN (notably UNICEF) and others, such as the ICRC and Geneva Call, seek to obtain that the parties to a conflict release the children in their ranks. Children who participate directly in hostilities remain protected if they are deprived of their liberty. For instance, as reviewed above, AP I prescribes that children who are arrested, detained or interned for reasons related to the armed conflict should be held in the same place and accommodated as family units; or otherwise, if not accompanied by their families, ‘held in quarters separate from the quarters of adults’.115 These special protections apply to all children under the age of 15 who take direct part in hostilities, whether or not they are considered to be prisoners of war.116 The minimal protections envisaged in AP II – such as the provision of required care and aid to children, including access to education and family reunification – also apply to captured children.117 As further analysed in Chapter 5, there have been cases of released children being detained –and sometimes tried and convicted – for their participation in hostilities, or even at times merely for their association with armed forces or groups. Chapter 5 provides some answers to the lingering questions of whether such detention and criminal trials are permitted under international law, and of the possible approaches available to deal with children suspected of having committed crimes while being associated with armed forces or groups.

110 111 112 113 114 115 116 117

Additional Protocol Additional Protocol OPAC, preamble. Ibid, art 6(3), 7(1). CRC, art 39. Additional Protocol Additional Protocol Additional Protocol

II, art 4 (3)(d). I, art 77(3).

I, art 75, para 5 and art 77, para 4. I, art 77(3). II, art 4(1) and (3).

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5 Procedural guarantees This section provides an overview of the specific procedural protection provided by international law in general, and international criminal law in particular, to children interacting with international accountability mechanisms, with a particular focus on the ICC. In line with Article 12(2) of the CRC – which stipulates that children have agency and a right to be heard in any judicial and administrative proceedings affecting them, and recognises them as stakeholders in such proceedings – children’s participation and inclusion are essential to enable the exposition of the whole range of crimes committed against them and to further ensure accountability for these crimes.118 A child-sensitive approach to such interactions is supported by other key provisions of the CRC. Under Article 12 of the CRC, children have the right to express opinions and have these opinions taken into account in decisions affecting them.119 The CRC also recognises that, like adults, children have the rights to information (Article 13); to freedom of thought, conscience and religion (Article 14); and to freedom of association (Article 15).120 Article 40 specifically promotes ‘the child’s reintegration and the child’s assuming a constructive role in society’.121 While children’s involvement in judicial and non-judicial accountability mechanisms poses protection challenges, as noted by the Committee on the Rights of the Child in General Comment 12, this should not undermine the binding nature of Article 12 of the CRC and the resulting legal obligation to give the views of children due weight in decisions that affect them.122 It is incumbent on all those involved to determine children’s appropriate role in diverse situations and safeguard their best interests throughout their involvement. Of considerable importance in this regard are the abovementioned overarching guiding principles defined by the CRC,123 including the best interests of the child;124 the rights to life, survival and development;125 the right to non-discrimination;126 and the right to participation.127 118 119 120 121 122

123 124 125 126

CRC, art 12(2). Ibid, art 12. Ibid, art 13–15. Ibid, art 40. Article 12 of the CRC states: ‘(1). States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. (2). For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.’ CRC, art 12. See Chapter 2. CRC, art 3. Ibid, art 6. Ibid, art 2.

46 The Legal Protection of Children under International Law Child participation must be commensurate with a child’s evolving capacities, as prescribed under Article 5 of the CRC, which states that the guidance provided by parents or others with responsibility for the child must take into account the child’s capacity to exercise rights on his or her own behalf, from the perspective of that child’s own experience and life skills.128 In its decision on victims’ participation in Lubanga, the ICC referred to the CRC – particularly Articles 3(1) and 12(2) – and asserted that ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’; and that for this purpose, the child shall in particular be provided with the opportunity to be heard in any judicial and administrative proceedings affecting him or her, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.129 Importantly, Article 39 of the CRC calls on states to take all appropriate measures to promote the physical and psychological recovery and social reintegration of child-victims in an environment that fosters their health, self-respect and dignity.130 This is reinforced by Article 6 of OPAC.131 Furthermore, according to the 2005 Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime, child-victims have a right to reparation.132 To enable children’s participation in line with their evolving capacity requires the adoption and implementation of child-friendly procedures. These ensure that children’s rights are respected; that their needs are considered; that the stress, trauma or possible harm associated with testifying is minimised; and that children understand the process and can fully contribute to it. During criminal proceedings, children may be asked to recall or describe traumatic experiences and may be directly confronted with people who harmed them. This experience may be empowering for some children but potentially traumatising for others. To minimise distress and disruption to the life and wellbeing of the child, children’s testimony in criminal proceedings must be used only when necessary and in the child’s best interests. When children’s testimony is introduced in courtroom trials, proper and appropriate protections for child-witnesses must be in place – including, for example, shielding them from the accused and protecting their privacy at all stages of the proceedings. These procedures should conform to all relevant international standards, including those set out in the CRC, as well as the UN Guidelines for Action on Children in the Criminal Justice System; the 127 Ibid, art 12. 128 Ibid, art 5. 129 Decision on Victims’ Participation (The Prosecutor v Thomas Lubanga Dyilo) ICC-01/ 04–01/06 (ICC 2008), paras 36–37 [https://www.icc-cpi.int/CourtRecords/ CR2008_00364.PDF]. 130 CRC, art 39. 131 OPAC, art 6. 132 UN ECOSOC Res 2005/20 (22 July 2005) UN Doc E/Res/2005/20 (Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime).

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Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime; and the Model Strategies and Practical Measures on the Elimination of Violence Against Women in the Field of Crime Prevention and Criminal Justice.133 Child-friendly procedures are warranted because children may easily be intimidated by investigators, lawyers, judges, courtrooms and criminal procedures. This is certainly heightened in the case of trials before international criminal jurisdictions, as testifying before such courts usually involves travelling – often across international borders – which in turn causes disruptions such as separation from family and absence from school. Investigators, lawyers and judges interacting with children may not speak the child’s language and use interpreters instead. Even more disturbing for children, those testifying are often confronted in the courtroom with persons who caused terrible suffering in their lives and asked to revisit those experiences. Child-witnesses are asked to recall and describe in detail traumatic events that they may have painstakingly attempted to forget. They do not always understand that what they have experienced is wrong and may have been convinced otherwise by the perpetrator.134 While the experience of telling one’s story may produce a sense of relief for some individuals, it can also be traumatising or exacerbate existing trauma. Disclosing painful experiences can make children feel ashamed and guilty, and can have long-term negative impacts.135 The clinical consequences of trauma are complex and affect the capacity of victims to recall and narrate events; and may also adversely impact on the assessment of coherence and credibility given to their testimonies as part of a criminal process.136 In turn, investigators and prosecutors may fear that children may poorly recall or recount the events; may change their mind as to whether they wish to participate; or may be ill-equipped to withstand cross-examination if it applies. Some 133 Specifically for children in conflict with the law, discussed in Chapter 5, the applicable standards also include Article 40 of the CRC and the 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, which detail the principles of a justice system that promotes the best interests of the child, including education and social services and proportional treatment for child detainees; and the 1990 Guidelines for the Prevention of Juvenile Delinquency, which outline strategies for preventing criminality and protecting young people at high risk. Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, art 40 (CRC); UNGA Res 40/33 (29 November 1985) UN Doc A/Res/40/33 (United Nations Standard Minimum Rules for the Administration of Juvenile Justice; UNGA Res 45/112 (14 December 1990) UN Doc A/Res/45/ 112 (United Nations Guidelines for the Prevention of Juvenile Delinquency). 134 World Health Organization, Guidelines for Medico-legal Care for Victims of Sexual Violence (Geneva: World Health Organization, 2003), 74–96. 135 John Philippe Schuman, Nicolas Bala and Kang Lee, ‘Developmentally Appropriate Questions for Child Witnesses’, Queen’s Law Journal vol 25 (1999): 252–302, 253; Debra A Poole and Michael E Lamb, Investigative Interviews of Children: A Guide for Helping Professionals (Washington, DC: American Psychological Association, 1998). 136 See, for instance, Ellie Smith, ‘Trauma-Impacted Evidence and the Assessment of Witness Credibility’, Global Security and Disaster Management [https://gsdm.globa l/trauma-impacted-evidence-and-the-assessment-of-witness-credibility/].

48 The Legal Protection of Children under International Law have also argued that time seems to undermine the reliability of child-witness testimony, because children apparently experience a sharp decline in memory immediately after an event.137 Depending on their age and individual development, young children may not have a sufficiently developed understanding of concepts such as ‘truth’ and ‘lies’, which form the basis of criminal justice. This reflects the concept of the evolving capacity of the child, which depends on each child’s cognitive, emotional, social and moral development, as well as on the specific socio-cultural framework. ‘Moral development’ refers to the capacity to distinguish between right and wrong. A child’s level of moral development is an important factor to understand the meaning and the impact of a justice process, the value of testimony and the importance of telling the truth. Of course, each child is unique and has his or her own individual development, influenced by factors such as social environment, education and culture. Nonetheless, younger children may in general face difficulty in distinguishing between reality and fantasy, especially when recounting traumatic events. The capacity of a child to make a true statement needs to be assessed carefully and individually.138 The general reluctance of prosecutors to call children as witnesses led to the development of the Model Guidelines for the Effective Prosecution of Crimes Against Children by the International Association of Prosecutors.139 These guidelines notably provide that prosecutors have an obligation to ‘ensure that the testimony is reliable and of good quality by assessing the ability of the child to give evidence and appreciating the relevant language skills and conceptual ability of the child’.140 The Model Guidelines further state that: Children should be considered as capable of credibly reporting events and of being credible witnesses; prosecutors must consider the protection of the child, including the risk of further trauma and victimization; prosecutors should make an early assessment of the ability of the child to give evidence and form an appreciation of the child’s developmental level. This may involve meeting the child and reviewing videotaped and other evidence; and prosecuting cases involving repressed memory requires particular caution in determining whether to proceed. This may include consultation with expert witnesses or specialists to assist in making this determination. In most cases 137 Stuart Beresford, ‘Child Witnesses and the International Criminal Justice System: Does the International Criminal Court Protect the Most Vulnerable?’, Journal of International Criminal Justice vol 3 (2005): 721–748, 737, citing L Ellison, The Adversarial Process and the Vulnerable Witness (Oxford: Oxford University Press, 2001), 23–24. 138 See Debra A Poole, and Michael E Lamb, Investigative Interviews of Children: A Guide for Helping Professionals (Washington, DC: American Psychological Association, 1998). 139 International Association of Prosecutors, ‘Model Guidelines for the Effective Prosecution of Crimes Against Children’, 1999 [https://icclr.org/wp-content/uploads/ 2019/06/Children2.pdf?x21689]. 140 Ibid, art 17.

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involving crimes against children the victim’s testimony is vital and prosecutors should develop techniques which lessen the child’s trauma and ensure that the testimony is reliable and of good quality by: assessing the ability of the child to give evidence; appreciating the relevant language skills and conceptual ability of the child; being informed about cultural differences and the impact they may have on the testimony of the child; and determining whether an interpreter is necessary.141 International criminal procedure has developed incrementally, being refined as more international or hybrid courts have been established. It is therefore unsurprising that the Statute of the ICC provides the most elaborate procedural framework of all international courts concerning the protection of and support for victims and witnesses, in particular children.142 It is based on the fundamental principle that: The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender …, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children.143 Also, the ICC ‘shall take into account the needs of all victims and witnesses … in particular children, elderly persons, persons with disabilities and victims of sexual or gender violence’.144 At the ICC – as at all other contemporary international or hybrid courts – a specific Victims and Witnesses Unit, functionally under the Court’s registrar, is responsible for providing protective measures and security arrangements, counselling and other appropriate assistance for victims and witnesses appearing before the ICC and others who are at risk on account of their testimony.145

141 Ibid, art 7. 142 See notably Linda A Malone, ‘Maturing Justice: Integrating the Convention on the Rights of the Child into the Judgments and Processes of the International Criminal Court’, Georgia Journal of International and Comparative Law, vol 43, no 3 (2015); Cynthia Chamberlain, Children and the International Criminal Court: Analysis of the Rome Statute Through a Children’s Rights Perspective (Cambridge: Intersentia, 2015), chs 3, 6. 143 Rome Statute, art 68(1). 144 Rules of Procedure and Evidence of the International Criminal Court (adopted 3–10 September 2002) ICC-Asp/1/3, art 86 [https://www.icc-cpi.int/iccdocs/pids/lega l-texts/rulesprocedureevidenceeng.pdf]. 145 At the ICC, this unit was established pursuant to Article 43(6) of the Rome Statute.

50 The Legal Protection of Children under International Law 5.1 Protection of children during investigations The investigative phase is crucial in terms of both physical and psychological protection of victims and vulnerable witnesses. Initial contacts and interactions carry the greatest risk for the physical security and mental wellbeing of the children concerned. Great caution should thus be exercised by international investigators and prosecutors at this stage – in particular, when they go through intermediaries, whether individuals or organisations, to identify potential witnesses, including children. Not only is there a risk that the investigation may be manipulated by such intermediaries, but there are potential security risks for vulnerable witnesses identified and approached in this way, as well as for the intermediaries themselves. Collaborating exclusively with trustworthy, impartial, professional, reliable and reputable organisations (including child protection agencies) and developing a reliable network to approach and protect victims and witnesses – especially vulnerable ones – takes time and requires a deep knowledge of the situation on the ground. This poses challenges to foreign investigators with a limited understanding of the country in which they operate; yet it is key in ensuring the protection, privacy and wellbeing of vulnerable victims and witnesses. Institutionally, the investigative phase is challenging for international courts. In the most recent courts – notably at the ICC – the protection of victims and witnesses falls formally within the ambit of the Victims and Witnesses Unit, a part of the registry; but those operating on the ground are investigators, who are part of the Office of the Prosecutor. Coordination between the different organs within courts is therefore crucial in providing support to victims and potential witnesses early on in the process, as soon as the investigation starts. The practice of the SCSL in this regard provides a good example. In addition to the Victims and Witnesses Unit in the registry, a Witness Management Unit was established as part of the investigation team in the Office of the Prosecutor.146 Early in 2003, before any trials on the merits had started, a document titled Principles and Procedures for the Protection of Children in the Special Court for Sierra Leone was jointly developed by the SCSL, child protection agencies (in particular UNICEF) and the Sierra Leone government.147 Recognising that children’s participation should be steered by the best interests of the child, the document set out guiding principles for collaboration between the SCSL and child protection agencies,148 and a protocol for identifying and interviewing potential child witnesses.149 146 This unit, composed largely of Sierra Leoneans with a police background, played a crucial role in centralising the information regarding children and protecting them before they were formally identified as potential witnesses, at which time they became the responsibility of the registry. 147 The government was represented by the Ministry of Social Welfare, Gender and Children’s Affairs. The UN peace-keeping mission in Sierra Leone was also actively involved in this exercise. 148 This collaboration has been critical to ensure the identification of child-witnesses and their support during the investigations, as well as the adequate provision of psychosocial support to these children.

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This practice of the SCSL was later adopted by the ICC, whose prosecutor – in addition to the Victims and Witnesses Unit established in the registry by the Rome Statute to protect and assist victims and witnesses testifying before the ICC or otherwise at risk on account of the testimony given – established a specialised unit with specific procedures for children.150 This additional measure taken by the prosecutor is in line with the Statute of the ICC, which stipulates that during investigations, the prosecutor should: Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender … and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children.151 Implementing these provisions requires notably that specialists assess the ability of each child to give evidence before the interview, in order to minimise the risk of re-traumatisation.152 These individual assessments can determine whether the interview or appearance in court is in the best interests of the child; and whether special protective measures are required to facilitate the interview or testimony. Child-friendly interviewing techniques should be used to minimise the hardship for children. The basic principle is that children should be allowed to express themselves as freely as possible. Investigators and lawyers should be trained in employing the use of testimonial aids such as drawings and asking children appropriate questions tailored to their development.153 Best protecting a child while eliciting the optimal answers and asking suitable questions which the child can answer accurately requires an understanding of the evolving capacity of each 149 This detailed protocol provides for a vulnerability test to be passed before a childwitness is selected by the prosecutor, providing notably that the child is to be interviewed in the presence of a parent or guardian, and stipulating confidentiality and security measures. 150 This is required under Article 42(9) and is also envisaged under Regulation 6(a) and Regulation 12 of the Regulations of the Office of the Prosecutor; Regulations of the Office of the Prosecutor (entered into force 23 April 2009) ICC-BD/05–01–09, 6(a), 12 [https://www.icc-cpi.int/NR/rdonlyres/FFF97111-ECD6-40B5-9CDA-792BC BE1E695/280253/ICCBD050109ENG.pdf]. 151 Rome Statute, art 54(1)(a). 152 At the SCSL, child-witnesses as well as any witness who was a child when witnessing the crimes were systematically evaluated by a psychologist before testifying. On child protection at the SCSL, see A Michels, ‘As if it was happening again: supporting especially vulnerable witnesses, in particular women and children, at the Special Court for Sierra Leone’, in International Criminal Accountability and the Rights of Children, edited by Karin Arts and Vesselin Popvski (The Hague: Hague Academic Press, 2006), 133–145. See also Special Court for Sierra Leone, ‘Best-Practice Recommendations for the Protection & Support of Witnesses’, 2008, 36 [http://www.rscsl.org/ Documents/WVS%20Best%20Practices.pdf]. It seems that the ICC has also, over the last few years, adopted a similar evaluation process.

52 The Legal Protection of Children under International Law child, in terms of his or her linguistic, cognitive and emotional abilities. An accurate understanding and assessment of the child’s cognitive development is particularly important to elicit from her or him evidence that can be used in court. This development refers to the acquisition of the ability to perceive and store information, to form abstract concepts and to reason about various ideas. It determines whether a child will function well as a witness in court, considering that a court usually requires a witness to make accurate observations; provide a precise recollection of past events using concepts such as time, numbers, sequencing, size and distance; handle abstractions; and make inferences. A child who is not yet equipped to answer questions using these concepts may become confused and perform poorly under cross-examination. Children, especially young children, may be unable to indicate the time when something happened or to put events in a chronological order. Evidently, it is therefore particularly difficult for younger children to provide explanations about their own thinking or emotional processes, and about the motives of other people, while these elements are intrinsically part of a testimony.154 At the ICC, Article 42(9) of the Statute requires the prosecutor to appoint ‘advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children’. In its first decade, the ICC and in particular the ICC Office of the Prosecutor were slow in developing expertise on children. Seeking to remedy this deficiency, then chief prosecutor Fatou Bensouda appointed Professor Diane Marie Amann in 2012 as her ‘special adviser on children in and affected by armed conflict’.155 Amann spearheaded the development of a Policy on Children, which was adopted by the ICC prosecutor in 2016, outlining the applicable regulatory framework and practices related to the proper treatment of children and children’s issues.156 In itself, the process of drafting this Policy – which lasted two years – presented opportunities for consultations with experts from different disciplines and was also informed by the insights of children themselves.157 The Policy recalls that most crimes under the Statute affect children in various ways. Borrowing from the child protection language, the Policy refers to 153 A Michels, ‘Psychosocial Support for Children: Protecting the Rights of Child Victims and Witnesses in Transitional Justice Processes’, Innocenti Working Paper no 2010–14 (2009): 1–34. 154 See notably John Philippe Schuman, Nicolas Bala and Kang Lee, ‘Developmentally Appropriate Questions for Child Witnesses’, Queen’s Law Journal vol 25 (1999): 252– 302, 257. 155 ‘ICC Prosecutor Fatou Bensouda appoints Patricia Sellers, Leila Sadat and Diane Marie Amann as Special Advisers’, International Criminal Court, 12 December 2012 [https://www.icc-cpi.int/Pages/item.aspx?name=pr861&ln=en]. 156 ICC Office of the Prosecutor, Policy on Children, November 2016 pp 6–8, paras 1–4 [www.icc-cpi.int/Pages/item.aspx?name=161115-otp-policy-children]. See Diane Marie Amann, ‘The Policy on Children of the ICC Office of the Prosecutor: Toward Greater Accountability for Crimes against and affecting Children’, International Review of the Red Cross 101 (2019): 537. 157 Prosecutor Bensouda announced that she was starting the process of preparing a comprehensive policy paper on children on 20 November 2014, on the occasion of the 25th anniversary of the CRC.

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a ‘child-sensitive approach’ that is to underpin all work of the ICC Office of the Prosecutor when children are concerned, grounded in the CRC.158 Importantly, the Policy takes a resolutely intersectional approach to children, highlighting that ‘children may be impacted differently by crimes based on their sex, gender, or other status or identities’.159 The Policy also provides space for the Office of the Prosecutor to ‘strive to ensure that its activities do no harm to the children with whom it interacts, particularly victims and witnesses’; and elaborates more detailed procedures to be used with children.160 Current ICC Prosecutor Karim AA Khan also decided to appoint a special adviser on children, labelling this post as ‘Special Adviser on Crimes Against and Affecting Children’ and therefore broadening its scope. He appointed a recognised child rights’ expert, Véronique Aubert, in September 2021.161 Both she and Prosecutor Khan have pledged to implement the 2016 Policy on Children and have been particularly active in highlighting the plight of children and the need to foster accountability for the crimes they suffer.162 Yet while progress has certainly been made, much more remains to be done – especially as the needs are vast at the ICC, considering that most, if not all investigators and attorneys should ideally further their expertise on crimes against children and how to interact with children. Mainstreaming expertise across the ICC Office of the Prosecutor is therefore critical – especially as each child’s own wishes, in addition to her or his best interests, should ideally be sought and considered when determining the best profile for an investigator to interview that child. For instance, a child should not automatically be interviewed by a person of the same gender but should rather be offered a choice. Last but not least, when considering the protection of children during an investigation, successful accountability for atrocity crimes begins with sustained communication efforts –even before the investigation is launched. Victims and witnesses, including children, and their communities should be informed so that they understand the international court’s mandate, procedures and objectives. Outreach is critical to inform victims and witnesses, build their trust and secure their cooperation.163 Child-friendly materials and events should be designed and used, especially when the investigations concern crimes committed against children.164 Detailed child-friendly explanations are particularly important when conducting forensic examinations.165 These can facilitate the task of investigators in 158 ICC Office of the Prosecutor, Policy on Children, November 2016 pp 6–8, paras 1–4 [www.icc-cpi.int/Pages/item.aspx?name=161115-otp-policy-children]. 159 Ibid, p 12, para 18. 160 Ibid, p 17, para 33. 161 International Criminal Court, ‘ICC Prosecutor Mr Karim A.A. Khan QC appoints Seventeen Special Advisers’, ICC-CPI-20210917-PR1611, 17 September 2021. 162 Justice Rapid Response, ‘ASP event: ICC Prosecutor commits to put policy into action on justice for children’, 23 December 2021 [https://www.justicerapidresp onse.org/asp-event-icc-prosecutor-commits-to-put-policy-into-action-on-justicefor-children/]; ibid. 163 Obviously, outreach is easier for mixed courts located in situ than it is for international courts located abroad.

54 The Legal Protection of Children under International Law earning the trust and cooperation of child-witnesses. The children’s version of the UN Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime (2007) provides advice and guidance to children who are called as witnesses, notably before international and mixed criminal courts. International courts should be encouraged to quasi-systematically produce child-friendly documents and explain their mandates and procedures, as well as the extent and limits of the protection they can provide, including in court. 5.2 Protection in court Once a trial has started, the judges themselves appear to be the most important single factor in ensuring the protection and wellbeing of children. It is therefore reassuring that the Statute of the ICC provides that ‘judges with legal expertise on specific issues, including, but not limited to, violence against women or children’ should be designated.166 At the ICC, certain protective measures may apply quasi-systematically for child witnesses. These include providing support persons to assist children through the judicial proceedings167 and holding closed sessions. Judges may authorise the use of voice and image distortion technology and the giving of testimony through distance video conferencing or closed-circuit television.168 Indeed, Article 68(2) of the Statute indicates that, to protect vulnerable witnesses, hearings may be held in camera or evidence presented by electronic or other special means; and that ‘such measures shall be implemented in the case of … a child who is a victim or a witness, unless otherwise ordered by the Court’.169 The Statute of the ICC also allows it to hold trials closer to the location where the crimes were committed and where most witnesses live. In any case, when witnesses travel to The Hague to testify, the Victims and Witness Unit should take all measures to provide them with an environment which is as close as possible to that to which they are accustomed.170 164 The SCSL, the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the International Criminal Tribunal for Rwanda (ICTR) have conducted outreach events specifically targeting children. In Sierra Leone, the SCSL regularly conducted outreach events in schools. In Cambodia, the ECCC reported, for example, holding an outreach event at Bak Touk High School in Phnom Penh on 1 March 2010 where over 7,000 students and teachers were briefed by ECCC officials. The ICTR also launched in its last years an outreach programme for Rwandese children and youth. 165 On forensic interviews of children, see Lindsay E Cronch, Jodi L Vilijoen and David J Hansen, ‘Forensic interviewing in child sexual abuse cases: Current techniques and future directions’, Aggression and Violent Behaviour, vol 11, no 3 (May 2006):195– 207, [DOI: 10.1016/j.avb.2005.07.009]; Michal E Lamb et al, ‘Structured forensic interview protocols improve the quality and informativeness of investigative interviews with children: A review of research using the NICHD Investigative Interview Protocol’, Child Abuse and Neglect, vol 31, no 11–12 (2007): 1201–1231. 166 Rome Statute, art 36(8)(b). 167 Rules of Procedure and Evidence of the ICC, art 17(3). 168 Ibid, art 87(3). 169 Rome Statute, art 68(2).

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The ICC may also order that the name of a witness be expunged from its public records or that a person be referred to by a pseudonym. To limit the impact of questioning – and particularly of cross-examination – the judges should control the manner of questioning to avoid any harassment or intimidation, especially with respect to victims of sexual violence.171 In the specific case of a child testifying in the trial of one of their parents, the child shall not be required to make any incriminating statement against the accused.172 Despite all these remarkable advances in the Statute of the ICC, its practice during the first trial involving a child witness, Lubanga, was not without problems, as reviewed in Chapter 3. One particular area that may also warrant further attention concerns the protection of child witnesses in court when defendants charged with crimes committed against children elect to represent themselves. In such cases of selfrepresentation, these defendants may directly question and confront a witness in the course of cross-examination. Because this questioning and confrontation can be very distressing to a child – or a witness testifying about crimes suffered as a child – it has been suggested that defendants who represent themselves in person should be prohibited from cross-examining child-witnesses in person if the judges are satisfied that the quality of their evidence would be diminished by such a crossexamination.173 In such cases, the accused should be given an opportunity to arrange legal representation; but if none is arranged, the judges should consider appointing a lawyer to conduct the cross-examination.174 Because of the time it usually takes for international or hybrid courts to be established or seized, investigate and then try crimes, many of those who were children at the time of the violations will be adults by the time a trial begins. This begs the question: should those individuals be treated as adults, which they now are; or as children, because of their vulnerability when they were victimised? As a consequence of violations suffered as children, these individuals may have been affected physically or psychologically. They may also have missed out on a range of basic needs, including access to education and job training, which can have longlasting – if not permanent – negative consequences. It seems therefore warranted

170 The practice of the SCSL in this regard can serve as a model: it operated a safe house in The Hague for witnesses testifying in the trial of Charles Taylor, which was designed and operated so as to resemble the usual living conditions in Sierra Leone, including the food provided. Sierra Leoneans were employed as support personnel, cooks, security officers and drivers, so as to provide familiarity and comfort to victims and witnesses, and limit the need for interpreters. 171 Rules of Procedure and Evidence of the ICC, art 88(5). 172 Ibid, art 75(1). 173 See Stuart Beresford, ‘Child Witnesses and the International Criminal Justice System: Does the International Criminal Court Protect the Most Vulnerable?’, Journal of International Criminal Justice vol 3 (2005): 721–748, 746–47, citing L Ellison, The Adversarial Process and the Vulnerable Witness (Oxford: Oxford University Press, 2001), 23–24. 174 Ibid.

56 The Legal Protection of Children under International Law to extend protective measures to all those who were victimised as children, focusing on their age at the time the violation occurred. 5.3 Participation of child-victims in the proceedings While none of the earlier international or hybrid courts provided an opportunity for victims, including children, to be legally represented in proceedings concerning them, the legal frameworks of the ICC and the Extraordinary Chambers in the Courts of Cambodia (ECCC) do provide for the legal representation of the victims, as well as for the award of compensation or reparations to those they recognise as victims.175 The Statute of the ICC stipulates that: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered … Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.176 The Rules of Procedure and Evidence of the ICC further elaborate on the scope and modalities of victims’ representation177 and the award of reparations.178 Before prior courts, such as the ad hoc tribunals, the rules of procedure and evidence provided that for child witnesses who would not understand the nature of the solemn declaration usually required from witnesses,179 the judges could permit the child to testify ‘without’ this declaration, provided that ‘the child is sufficiently mature to be able to report the facts of which the child had knowledge and understands the duty to tell the truth’; but that a judgment could not be based on such testimony alone.180 In other words, a conviction could not be 175 See notably Francesca Capone, Reparations for Child Victims of Armed Conflict: State of the Field and Current Challenges (Cambridge: Intersentia, January 2017). 176 Rome Statute, art 68(3). 177 See, inter alia, Rules 89–95 of the Rules of Procedure and Evidence of the ICC. 178 Rule 97(1) of the Rules of Procedure and Evidence indicates that: ‘Taking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both.’ 179 Rule 90(a) of the ICTY Rules of Procedure and Evidence and Rule 90(b) of the ICTR Rules of Procedure and Evidence required that each witness first solemnly declare that he or she will tell the truth. Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia (adopted on 11 February 1994, as amended 8 July 2015) UN Doc. IT/32/Rev.50, art 90 [icty.org/x/file/ Legal%20Library/Rules_procedure_evidence/IT032Rev50_en.pdf]. Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda (entered into force 29 June 1995) UN Doc ITR/3/REV.1 [http://hrlibrary.umn.edu/africa/ RWANDA1.htm]. 180 Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia, art 90(B); Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda, art 90(C).

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based solely on the unsworn testimony of a child, unless that testimony was corroborated by an adult.181 Conversely, at the ICC – where Rule 66(2) allows a child to testify without a solemn undertaking if he or she does not understand the nature of that undertaking – there is no restriction on the use or weight of that testimony, provided that the ‘Chamber considers that the person is able to describe matters of which he or she has knowledge and that the person understands the meaning of the duty to speak the truth’.182 It is thus up to the judges to decide on the appropriate weight to be given to a child’s testimony: the evidence is not automatically considered less probative because the child does not understand the nature of a solemn declaration. Despite the advances found in the statutes of the ICC and the ECCC, the modalities of participation of the victims – notably through their legal representatives – have been contentious matters in these courts.183 Another contentious issue concerns legal representation. Legal assistance should systematically be made available to child-witnesses at risk of incriminating themselves, as reviewed in Chapter 5. Also, adequate legal representation can take place only if free legal assistance is available to victims – especially more vulnerable victims and those without financial means, notably children. According to Rule 89(3) of the ICC Rules of Procedure and Evidence, in the case notably of child-victims, an application for participation may be made by ‘a person acting on behalf of a victim’, apparently even in the absence of the child-victim’s consent. In Lubanga, the judges ruled that: ‘the person acting on behalf of a victim does not have to be a relative or legal guardian because, within the Rules, the “person acting” is undefined and unrestricted.’184 Also, due to the magnitude of the offences alleged in trials for serious international crimes and the number of victims involved, individual victims may have different or divergent views and interests, leading to uncoordinated positions and even possible conflicts of interest. Victims or groups of victims often insist on having their own experiences heard in court and reflected in the findings, as demonstrated at the ECCC. The fact that some of the victims participating in the proceedings may also be called as witnesses is problematic, especially in the case of children who were formerly associated with armed groups or forces and who may incriminate other children represented as victims in the proceedings. 181 On this, see David Tolbert, ‘Children and International Criminal Law: The Practice of the International Tribunal for the former Yugoslavia’, in International Criminal Accountability and the Rights of Children, edited by Karin Arts and Vesselin Popvski (The Hague: Hague Academic Press, 2006). 182 Rules of Procedure and Evidence of the ICC, art 66(2). 183 See notably the REDRESS Trust, ‘Victims, Perpetrators or Heroes? Child Soldiers Before the International Criminal Court’, September 2006 [https://www.refworld. org/docid/4bf3a5e22.html]. 184 Order issuing public redacted annexes to the Decisions on the applications by victims to participate in the proceedings of 15 and 18 December 2008 (in The Prosecutor v Thomas Lubanga Dyilo) (Trial Chamber Decision) ICC-01/04–01/06, 58 (ICC 2009) [http://www.worldcourts.com/icc/eng/decisions/2009.05.08_Prosecutor_v_Luba nga.pdf].

58 The Legal Protection of Children under International Law

6 Conclusion There are many challenges that highlight the very serious limits to the protection that international courts can provide to witnesses and victims. These are primarily associated with the structures of international courts and the international dimension of their work. First, without their own police force and operating internationally, international courts rely on others – often states – to identify, approach and ultimately protect witnesses.185 This carries many risks for these witnesses, especially for their continued protection once the international court closes down or disengages.186 Second, these courts usually operate in the context of ongoing conflicts and may target powerful leaders, heightening the challenges associated with witness protection. Third, international and local media and the public follow these procedures closely, increasing the risk that witnesses will be recognised despite protection measures. Notwithstanding these constraints, the protection of witnesses remains and should remain paramount. It is therefore crucial to initiate as early as necessary the protection of witnesses or potential witnesses, particularly children – at least as soon as a child has been in contact with investigators. This protection should continue for as long as necessary – usually well beyond the closing of a case. It is crucial for children to be and feel safe and secure; fear of retaliation can harm and inhibit them, especially when they live in a volatile or conflict-affected situation, in fear that those responsible for the crimes or their allies will hurt them, their families or their community. Having clarified the specific rights and protections existing under international law for children, the following chapters assess how successive international courts have engaged children and the atrocity crimes they have suffered from (Chapters 3 and 4) or committed (Chapter 5).

185 The SCSL in this regard may once again provide an example of good practice as it has standing arrangements with Sierra Leone police to monitor the welfare of former witnesses. 186 Some of these challenges are only being progressively uncovered as the contemporary international courts have been closing their doors, but are being followed by residual mechanisms. There remain pending questions as to how the protection of witnesses will be guaranteed over the longer term in certain situations. These issues are also relevant for the ICC. While it is a permanent court, it cannot be expected to remain involved over time in the same countries and will have to progressively ‘disengage’ from them.

3

International Courts and Child-Specific Crimes

This chapter reviews how international criminal courts have addressed what I have coined ‘child-specific crimes’ – namely crimes that are constituted as a criminal offence because the victim is a child (whereas the same act against an adult would not be criminalised).1 There are a few child-specific crimes defined under international law, and that are also internationally ‘criminalised’ as they attract criminal liability before international courts.2 The first child-specific crime to have been defined in an international treaty is genocide through transferring children from one group to another. The child-specific crime which has catalysed the attention 1 See Chapter 1. 2 The three crimes reviewed in this chapter are found in the statutes of at least two international or hybrid courts. In addition to these three crimes, the Rome Statute includes another child-specific crime: child trafficking as a form of the crime against humanity of enslavement, when committed as part of a widespread or systematic attack directed against any civilian population, as defined in Articles 7(1)(c) and 7(2) (c) of the Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 38544 (Rome Statute) [https://www. icc-cpi.int/resource-library/documents/rs-eng.pdf]. This has not yet given rise to jurisprudential developments at the ICC. Interestingly, the ICC Prosecutor Policy on Children also refers to persecution as a specific crime against or affecting children, indicating that ‘acts targeting children on the basis of age or birth may be charged as persecution on “other grounds”’ and that ‘children may also be persecuted on intersecting grounds, such as ethnicity, religion and gender’, citing Article 7(1)(h) of the ICC Statute. See Office of the Prosecutor, International Criminal Court, ‘Policy on Children’, November 2016, p 24, para 51 [https://www.icc-cpi.int/iccdocs/otp/20161115_OTP_ICC_Policy-on-Children_ Eng.PDF]. Diane Marie Amman had made that argument in 2015, indicating that: ‘A charge of the crime against humanity of persecution likewise might be child specific, if the accused were alleged to have committed ‘the intentional and severe deprivation of fundamental rights contrary to international law’ on account of the victim’s young age’, referring in a footnote to Articles 7(2)(g) and 7(1)(h) of the Rome Statute, which proscribes persecution with reference to ‘any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender … or other grounds that are universally recognized as impermissible under international law’; Diane Marie Amann, ‘The Child Rights Convention and International Criminal Justice’, Nordic Journal of International Law 84 (2015): 260.

DOI: 10.4324/9781003361015-3

60 International Courts and Child-Specific Crimes of recent international courts is the war crime of conscripting or enlisting children or using them to participate actively in hostilities. Lastly, this chapter also reviews the war crime of intentionally directing attacks against buildings dedicated to education – which, although not a child-specific crime per se, primarily affects children.

1 Forcible transfer of children to another group The first child-specific crime defined in an international treaty is genocide through forcibly transferring children from one group to another. 1.1 The Genocide Convention The 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’) determines that there are five underlying acts – or crimes – which constitute genocide if committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such.3 Whether a genocide has occurred hinges upon the existence in the perpetrator’s mind, at the time of the commission of the prohibited act, of the specific intent to destroy, in whole or in part, a protected group by one of the specified methods, alongside the intent to commit the specified act. As reviewed in Chapter 1, the five prohibited acts constitutive of genocide listed in Article II of the Genocide Convention are: a b c d e

killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group.4

It is noticeable that, while the first four acts listed under Article II involve or lead to the physical destruction of the targeted group, the last one – the forcible transfer of children – does not involve such physical destruction. It rather presumes the opposite: that the children are kept alive and ‘transferred’ to another group. It envisages a process of acculturation and reculturation of children, who lose their own national, ethnical, racial or religious identity and acquire another, thus being assimilated into another group. As such, the ‘forcible transfer’ of children alludes to cultural genocide. 3 UNGA Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) (1951) 78 UNTS 277 [https://treaties.un.org/doc/publication/unts/volume%2078/volume-78-i-1021-engl ish.pdf]. 4 Ibid.

International Courts and Child-Specific Crimes 61 This is explained by the drafting history of the Genocide Convention. The initial draft prepared by the United Nations (UN) Secretariat to support the development of the Genocide Convention divided the crime of genocide into three categories: physical, biological and cultural genocide.5 The draft referred in the last category to: ‘Destroying the specific characteristics of the group by (a) forced transfer of children to another human group.’6 Although the Sixth Committee of the UN voted to exclude cultural genocide from the scope of the final text of the Convention, it exceptionally allowed the ‘forcible transfer of children from one group to another’ to be retained as a punishable underlying act.7 One notes that, if the forcible transfer of children does not inevitably lead to the physical destruction of their group of origin, it may contribute to such physical destruction, as the original group may gradually decline in numbers and ultimately become extinct. The inclusion of the forcible transfer of children as a constitutive act of genocide may have sought to prevent this eventuality. This underlines an important characteristic of genocide: that, beyond individual children, this crime targets the group to which they belong. The explicit reference to children in the Genocide Convention appears to be the first such mention included in an international treaty defining a crime under international law and hence establishing the first child-specific international crime. As discussed previously, child-specific crimes are those constituted as a criminal offence because the victim is a child. In this case, establishing that those individuals who have been forcibly transferred were children is indeed a sine qua non of the offence. 1.2 Forcible transfers of children in Nazi Germany The crime of genocide was not included in the jurisdiction of the International Military Tribunals of Nuremberg and Tokyo, and the Genocide Convention was only adopted after their establishment. Consequently, these two tribunals did not 5 See Draft Convention on the Crime of Genocide (26 June 1947) UN Doc E/447, 6 [https://digitallibrary.un.org/record/611058?ln=en]. The Genocide Convention was drafted in three main stages. First, the United Nations Secretariat – assisted by three experts, including Raphael Lemkin – composed a draft text. Second, this draft was reworked by an Ad Hoc Committee set up under the authority of the Economic and Social Council. Finally, the Ad Hoc Committee draft was the basis of negotiations in the Sixth Committee of the General Assembly in late 1948, which agreed upon the final text of the Convention, submitting it for formal adoption to the plenary General Assembly. 6 William A Schabas, ‘Convention on the Prevention and Punishment of the Crime of Genocide, Introductory Note’, UN Audiovisual Library of International Law (2008): 1–6 [http://legal.un.org/avl/ha/cppcg/cppcg.html]. 7 Ibid. The forcible transfer of children was included among the acts of genocide at the insistence of Greece and achieved by a minority vote: 25 states voted for its inclusion, 13 opposed it and 13 abstained from voting. See ‘Forcible Transfer’, Encyclopedia of Genocide and Crimes Against Humanity [https://www.encyclopedia.com/interna tional/encyclopedias-almanacs-transcripts-and-maps/forcible-transfer].

62 International Courts and Child-Specific Crimes try anyone for this crime. Nevertheless, there are references to the forcible transfer of children by the Nazi regime in the judgment of the Nuremberg Tribunal. Heinrich Himmler is cited as having declared in October 1943:8 What happens to a Russian, a Czech, does not interest me in the slightest. What the nations can offer in the way of good blood of our type we will take; if necessary, by kidnapping their children and raising them here with us. The Nuremberg judgment also indicates that Alfred Rosenberg bears a major responsibility for the formulation and execution of occupation policies in the occupied Eastern territories, including the extermination of Jewish adults and children, and policies of ‘Germanisation’ – that is, indoctrination into becoming culturally German.9 It notes that Rosenberg approved the ‘Heu Aktion’ programme:10 ‘His signature of approval appears on the order of 14th June, 1944, for the “Heu Aktion,” the apprehension of 40,000 to 50,000 youths, aged 10–14, for shipment to the Reich.’’ The HEU Aktion apparently aimed to transfer to Germany several thousand orphans or homeless children from the Eastern territories under Nazi occupation, primarily Poland. It was named ‘HEU’ in light of its intention to reach the heimatlos, elternlos and unterkunftslos: that is, the homeless and orphans. Many of the transferred children’s parents had been killed or sent to concentration or labour camps.11 It is disconcerting that the Nuremberg judgment includes only passing reference to this ‘Heu Aktion’ and to the forcible transfer of children to Nazi Germany for the purpose of their ‘Germanisation’. It is estimated that up to 250,000 mostly Eastern European children deemed to meet desired racial standards were forcibly transferred to Nazi Germany for ‘Germanisation’.12 The estimates indicate that most of these children (about 200,000) were from Poland, about 20,000 from the Soviet Union (notably Ukraine and Belarus) and others from Romania and Yugoslavia; and that some of them may have been Jewish.13

8 Judgment of 1 October 1946, 22 IMT 203 (IMT 1946), 456 [http://werle.rewi. hu-berlin.de/IMTJudgment.pdf]. 9 Ibid, 496–97: ‘Rosenberg bears a major responsibility for the formulation and execution of occupation policies in the occupied Eastern territories … He helped to formulate the policies of Germanization, exploitation, forced labour, extermination of Jews and opponents of Nazi rule, and he set up the administration which carried them out.’ 10 Ibid, 496–97. 11 Lynn H Nicholas, Cruel World: The Children of Europe in the Nazi Web (New York: A.A. Knopf, 2005): 351. 12 Talk Magazine, ‘Stolen Children: Interview with Gitta Sereny’, Jewish Virtual Library, November 1999 [https://www.jewishvirtuallibrary.org/stolen-children]. See also Richard C Lukas, Did the Children Cry? Hitler’s War against Jewish and Polish Children, 1939–1945 (New York: Hippocrene Books, 2001). 13 Ibid.

International Courts and Child-Specific Crimes 63 Apparently, it is Himmler who elaborated on Hitler’s racial ideology and desire to ‘Germanise the East’14 and who advocated for the abduction of children in the occupied Eastern territories. Himmler and the Nazi Office for Race and Resettlement considered the question of the ‘racially valuable’ children of Poland for more than two years.15 Shortly after the Nazi invasion of Poland, Himmler reportedly announced to a restricted audience of Schutzstaffeln der Nationalsozialistischen Deutschen Arbeiterpartei (SS) officers the Nazis’ plan for Poland:16 The population of [occupied Poland] will become a permanently inferior race that will be available to us for slave labor. A fundamental question is the racial screening and sifting of the young. It is obvious that in this mixture of people some very good racial types will appear from time to time. In May 1940, Himmler underlined:17 We have faith above all this in our own blood, which has flowed into a foreign nationality through the vicissitudes of German history … We are convinced that our own philosophy and ideals will reverberate in the spirit of these children who racially belong to us. One of the primary sources for the identification of children were orphanages and children’s homes.18 Teams of SS doctors would tour them and sift through children by conducting physical and other examinations to determine whether they met the desired standards.19 Younger children were particularly targeted, as the Nazis felt that they would be more malleable and susceptible to indoctrination, and thus more easily transformed and ‘Germanised’.20 Eventually, almost all orphaned Polish children between the ages of two and 12 were examined and segregated into those deemed either ‘racially valuable or worthless’.21 Some of the children deemed ‘racially inferior’, including most 14 The Nuremberg Tribunal in its judgment indicated that, in Mein Kampf, Hitler had noted the need to Germanise the East. Judgment of 1 October 1946, 22 IMT 203 (IMT 1946), 456 [http://werle.rewi.hu-berlin.de/IMTJudgment.pdf]. 15 Talk Magazine, ‘Stolen Children: Interview with Gitta Sereny’, Jewish Virtual Library, November 1999 [https://www.jewishvirtuallibrary.org/stolen-children]. 16 Ibid. 17 Ibid. 18 Lynn H Nicholas, Cruel World: The Children of Europe in the Nazi Web (New York: A.A. Knopf, 2005): 244. 19 The Office for Race and Settlement decided the children’s suitability for Germanisation on the basis of measurements of 62 parts of their bodies. Talk Magazine, ‘Stolen Children: Interview with Gitta Sereny’, Jewish Virtual Library, November 1999 [https:// www.jewishvirtuallibrary.org/stolen-children]; Lynn H Nicholas, Cruel World: The Children of Europe in the Nazi Web (New York: A.A. Knopf, 2005): 244. 20 Lynn H Nicholas, Cruel World: The Children of Europe in the Nazi Web (New York: A.A. Knopf, 2005): 242. 21 Himmler, quoted in ‘Talk Magazine, ‘Stolen Children: Interview with Gitta Sereny’, Jewish Virtual Library, November 1999 [https://www.jewishvirtuallibrary.org/sto

64 International Courts and Child-Specific Crimes Jewish children, were sent to concentration camps – notably Auschwitz – and ghettos such as Lodz, or to work for the Reich as forced labourers.22 For those children found to be of ‘racial value’, those between the ages of two and six were first sent to homes run by the SS-led Lebensborn Society and then eventually given for adoption to ‘families of good race’; while those between the ages of six and 12 were sent to Heimschulen – boarding schools run by Lebensborn – to be ‘Germanised’.23 By late 1941, the SS-led Lebensborn Society, as the executant of the ‘Germanisation’ project, had set up, in Germany and most of the territories conquered by the Nazis, large children’s reception centres, used for the initial sorting of children by ‘racial experts’; and smaller homes, where selected children spent several months being taught the German language and Nazi ideology.24 The Lebensborn Society was granted the right to act as the civil registry and as the children’s legal guardian, enabling it to issue official birth certificates with false names and invented places and dates of birth.25 Had the competence of the Nuremberg Tribunal extended to the crime of genocide through transferring children from one group to another with the intent to destroy the group, it seems likely that the Tribunal would or should have retained such qualifications in the charges against at least Rosenberg, if not others. Yet such charges may have been difficult to prove, because all documentation of the kidnappings and transfers was apparently ordered to be

22

23 24 25

len-children]. According to Gitta Sereny, the project was launched in Poland in 1941 via a secret order signed by the head of the SS central office in Poland, indicating that there were ‘a large number of children in [Poland] who by reason of their racial appearance should be regarded as children of Nordic parents … The children who are recognized as bearers of blood valuable to Germany are to be Germanized … My representative will inform the Lebensborn Society of the children aged between two and six who have been recognized as being capable of Germanization. The Lebensborn Society will in the first place transfer the children to one of its children’s homes… From there the Lebensborn Society will see to the distribution of these children among [selected families] with a view to subsequent adoption…. These children are to be treated as German children even before the granting of German nationality… Particular care must be taken to ensure that the term “Germanizable Polish children” does not come to public knowledge…. The children should rather be described as German orphans from the regained Eastern territories.’ ‘Heuaktion’, Wikipedia [https://en.wikipedia.org/wiki/Heuaktion]. See also Wendy Lower, Nazi Empire-building and the Holocaust in Ukraine (Chapel Hill: UNC Press Books, 2005) 117. Talk Magazine, ‘Stolen Children: Interview with Gitta Sereny’, Jewish Virtual Library, November 1999 [https://www.jewishvirtuallibrary.org/stolen-children]. Ibid. Ibid. A secret paper from the Nazi Office for Race and Resettlement underlined that: ‘The first condition for [the management of] racially valuable children … is a complete ban on all links with their Polish relatives. The children will be given German names of Teutonic origin. Their birth and heredity certificates will be [filed] in a special department.’

International Courts and Child-Specific Crimes 65 26

destroyed in April 1945. This made it particularly difficult to locate childvictims in Germany after the end of the Second World War and return them.27 1.3 The International Criminal Tribunals for the former Yugoslavia and Rwanda While the International Military Tribunals did not have competence over the crime of genocide, as it remained to be defined when they were established, subsequent international courts have had genocide included in their respective ratione materiae jurisdiction. The provisions of the Genocide Convention, including the five underlying acts contained in its Article II, have been reproduced verbatim in the statutes of successive international courts – notably the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)28 – as well as in the Statute of the ICC.29 As a result, the prohibited act of forcibly transferring children from one group to another group constitutive of genocide falls within the respective jurisdiction of each of these tribunals. While the two UN ad hoc Tribunals have tried individuals for genocide, neither of them has specifically ruled on the forcible transfer of children as genocide, as it seems that their investigators and prosecutors did not find evidence of such crimes being committed in the former Yugoslavia or Rwanda. 1.4 The International Criminal Court During the negotiation of the Rome Statute, the inclusion of the crime of genocide in the competence of the ICC was unquestioned. Article II of the Genocide Convention was transposed into Article 6 of the Statute of the ICC. The Elements of Crimes of the ICC contain important clarifications as to the requirements to establish the crime of genocide by forcibly transferring children, under Article 6(e) of the Statute

26 Talk Magazine, ‘Stolen Children: Interview with Gitta Sereny’, Jewish Virtual Library, November 1999 [https://www.jewishvirtuallibrary.org/stolen-children]; see also Richard C Lukas, Did the Children Cry? Hitler’s War against Jewish and Polish Children, 1939–1945 (New York: Hippocrene Books, 2001). 27 Ibid. Gitta Sereny, who was involved in such efforts, indicates that there was no proper record established of the ‘stolen children’ or of how many were returned, and no one knows how many were never discovered and remained in Germany, oblivious of their origins. Ultimately, only a small percentage of children were returned: about 25,000 Polish children out of a reported 200,000 missing. 28 United Nations Security Council (UNSC) Statute of the International Tribunal for Rwanda (established 8 November 1994 by UNSC Res 955 (1994), last amended 13 October 2006) art 2(3)(a) [https://legal.un.org/avl/pdf/ha/ictr_EF.pdf]. 29 Rome Statute, art 6.

66 International Courts and Child-Specific Crimes of the ICC.30 According to these, the crime is proven if seven elements are cumulatively established:31 1 2 3 4 5 6 7

The perpetrator forcibly transferred one or more persons. Such person or persons belonged to a particular national, ethnical, racial or religious group. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. The transfer was from that group to another group. The person or persons were under the age of 18 years. The perpetrator knew, or should have known, that the person or persons were under the age of 18 years. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

It is noteworthy that the ICC Elements of Crimes provide that the crime of genocide for forcibly transferring children is established even if only one child has been transferred from his or her group. This seems to depart from Article 6(e) of the Statute of the ICC and from the terms of the Genocide Convention itself: both refer to ‘forcibly transferring children of the group to another group’, using the plural ‘children’ rather than the singular form.32 Usefully, the ICC Elements of Crimes also clarify that the term ‘forcibly’ is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment.33 For Nsereko, a former ICC judge and law professor, ‘forcible’ is also understood to include artifice and trickery, as well as psychological force exerted on the children,

30 ICC, ‘Elements of Crimes’ (2011): 1–50, 2–3 [https://www.icc-cpi.int/NR/rdon lyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng. pdf]. The ICC has reproduced information on Articles 6–8 in the document ‘Elements of Crimes’, from the Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court and the Official Records of the Review Conference of the Rome Statute of the International Criminal Court, in Kampala. See ICC (3–10 September 2002) ICC-ASP/1/3/Add.1 and Corr.1, II(B) (Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court); ICC (31 May-11 June 2010) ICC RC/11 (Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala). 31 Ibid. 32 Rome Statute, art 6(e). 33 ICC, ‘Elements of Crimes’ (2011): 1–50, 3 [https://www.icc-cpi.int/NR/rdon lyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng. pdf].

International Courts and Child-Specific Crimes 67 parents, guardians or others connected with them.34 Future case law will possibly clarify the scope of this term. A pending question that may be elucidated by jurisprudential developments concerns the exact meaning of the term ‘transfer’. Kress, also a law professor, has argued that confining children to locations outside the realm of their original group may be enough to constitute genocide; it is not required that children be introduced into a different group – for example, by way of adoption.35 Arguably, a plain reading of the phrase ‘forcibly transferring children of the group to another group’ indicates that it is insufficient to take children away; there is also a requirement that those who commit the crime transfer the children to another group, different from their original national, ethnic, racial or religious group. There may be future opportunity for international courts to litigate the crime of genocide for forcibly transferring children. In addition to the historical cases of forcible transfer of children which may possibly amount to genocide,36 there are contemporary situations of major concern – for instance, those allegedly perpetrated by Boko Haram and Daesh. One such situation that was documented by a UN Commission of Inquiry concerns the forcible transfer by Daesh/ISIS fighters of Yazidi children.37 In cases documented in 2016, the UN Commission found that:38 ISIS forcibly transfers Yazidi children in two ways, depending on their sex. Girls, on reaching the age of nine, are taken from their mothers and sold as sex slaves to ISIS fighters in Syria and Iraq. Yazidi boys, once they reach the age of seven, are also taken from their mothers and sent to ISIS training bases in Syria and Iraq where they are instructed on how to follow Islam as interpreted by ISIS, and on how to fight. Later, trained “converted” Yazidi boys fight in battles as part of ISIS forces.39 In this way, ISIS transfers Yazidi children to the custody of fighters, albeit in radically different ways. These transfers, achieved through physical force at the time the children are taken from their mothers, remove the children from their community and the practice of their faith. In this way, ISIS intentionally seeks to destroy Yazidi children’s 34 See Daniel David Ntanda Nsereko, ‘Forcible Transfer’, Encyclopedia of Genocide and Crimes Against Humanity [https://www.encyclopedia.com/international/encyclop edias-almanacs-transcripts-and-maps/forcible-transfer]. 35 Claus Kress, ‘The Crime of Genocide under International Law’, International Criminal Law Review vol 6 (2006): 461–502, 484 [https://www.legal-tools.org/doc/ 8799cd/pdf/]. 36 These includes allegations raised in Australia concerning aboriginal children and those in Canada regarding the forcible transfer of First Nations children to residential schools. 37 UNHRC (15 June 2016) UN Doc A/HRC/32/CRP.2 (Report of the UN Commission of Inquiry on Syria, ‘They came to destroy’: ISIS Crimes Against the Yazidis) [https://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/A_HRC_ 32_CRP.2_en.pdf]. 38 Ibid, para 96. 39 Ibid, para 147.

68 International Courts and Child-Specific Crimes concept of themselves as Yazidi, erasing their attachment to the Yazidi religion. Whereas Yazidi girls are prevented from practising their religion, Yazidi boys are fully indoctrinated into ISIS ideology.40 At the training centres or camps, there is no reference to the Yazidi boys’ birth religion. Their past is deemed erased and all contact with their family and community is effectively cut off. Instead, a new identity is forcibly imposed. The objective of the training centres and the indoctrination programme is thus two-fold. On a general level it aims at increasing recruitment, and all children are treated as potential or future recruits regardless of their background. But on a specific level, targeting the Yazidi boys uniquely, it aims at destroying their religious identity as Yazidis and recasting them as followers of Islam as interpreted by ISIS. In this way, Yazidi boys are transferred out of their own community, and through indoctrination and violence, into ISIS. The UN Commission concluded that ISIS had committed the prohibited act of forcibly transferring Yazidi children to another group.41 Whether these allegations will ever fall within the mandate of an international or hybrid court and be litigated remains to be seen.

2 Conscripting or enlisting children or using them to participate actively in hostilities The child-specific crime which has catalysed the attention of recent international courts is the war crime of conscripting or enlisting children or using them to participate actively in hostilities. The recruitment and use of children in hostilities are prohibited under international law, with provisions of international humanitarian law (IHL) having been reinforced by international human rights law (IHRL), as reviewed in Chapter 2. The question of the individual criminal liability of those involved in the violation of this prohibition has been posed before international tribunals, as the statutes of some courts list it as a crime within their respective jurisdictions. The adoption of the Rome Statute of the ICC in 1998 marked the first explicit reference in an international treaty to the recruitment and use in hostilities of persons younger than 15 as an international crime.42 Two provisions pertaining to 40 Ibid, para 148. At para 94, the Commission found: ‘The separation of Yazidi boys aged seven years and above was systematic. After taking them from their mothers, ISIS forcibly transferred the boys to training centres or military camps … There the boys are registered and given Islamic names. From then on, the boys are only called by their new names, and are treated as ISIS recruits.’ 41 Ibid, para 149. 42 The recruitment and use of child soldiers is not systematically criminalised under domestic laws. So far, only a few countries have adopted relevant national laws; see, for instance, Child Soldiers Accountability Act of 2008 (United States of America) Pub L 110–340 (enacted 3 October 2008); and Code of Crimes against International Law (Germany) (enacted 30 June 2002).

International Courts and Child-Specific Crimes 69 war crimes in the Statute of the ICC refer to this crime. Article 8(2)(b)(xxvi) criminalises ‘[c]onscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities’ during international armed conflicts.43 Article 8(2)(e)(vii) sanctions ‘[c]onscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities’ in the course of armed conflicts not of an international character.44 The criminalisation of the enrolment and use of child-soldiers was reiterated in Article 4(c) of the Statute of the Special Court for Sierra Leone (SCSL), adopted in 2002.45 The SCSL is the first of the international courts to have focused on this crime and charged and convicted individuals with the unlawful recruitment and use of children, as is reviewed below. The ICC followed this trend and gave this crime prominence through its very first trial, involving Thomas Lubanga Dyilo, launched exclusively on the basis of three counts of war crimes for enlisting and conscripting children under the age of 15 in the Democratic Republic of Congo (DRC) and using them to participate actively in hostilities, to the exclusion of any other charges.46 Commonly known as the recruitment or use of ‘child-soldiers’,47 these crimes affect hundreds of thousands of girls and boys throughout the world. Those who survive often suffer long-term consequences, having lost crucial years of socialisation and education, and many of them endure long-lasting physical injuries and psychological trauma. 2.1 The International Military Tribunal of Nuremberg The recruitment and use of child-soldiers were not yet criminalised at the time the two International Military Tribunals completed their work, and these courts thus did not litigate any such occurrence. Nevertheless, some of the prosecutions before the Nuremberg Tribunal alluded to this crime: those against von Schirach, who exercised control over Nazi youth organisations – most notably the Hitler Jugend.48 According to the Nuremberg main judgment, the Hitler Jugend were reported to have received pre-military training; and in October 1938, von Schirach entered into an agreement with Himmler under which certain members of the 43 Rome Statute, art 8(2)(b)(xxvi). 44 Rome Statute, art 8(2)(e)(vii). 45 Article 4(c) of the SCSL Statute criminalises ‘[c]onscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in Hostilities’. 46 Decision on the Confirmation of Charges (The Prosecutor v Thomas Lubanga Dyilo), ICC-01/04–01/06 (29 January 2007), 153–57 [http://www.worldcourts.com/icc/ eng/decisions/2007.01.29_Prosecutor_v_Lubanga1.pdf]. 47 The terms ‘child-soldier’ and ‘child associated with armed forces or armed groups’ are used interchangeably in this book. The use of these terms is not meant to confer any legitimacy on these appalling crimes. 48 See Chapter 4. Judgment of 1 October 1946, 22 IMT 203 (IMT 1946), 512–13 [http://werle.rewi.hu-berlin.de/IMTJudgment.pdf].

70 International Courts and Child-Specific Crimes Jugend who met the SS criteria would serve as a primary replacement pool for the SS.49 In August 1939, von Schirach similarly agreed with Keitel that the Jugend would carry out pre-military training under standards laid out by the armed forces of Nazi Germany (Wehrmacht), which in turn agreed to train 30,000 Jugend instructors each year.50 The judgment also indicates that von Schirach was informed that the Jugend participated in a plan initiated in Autumn 1944 where, as recounted in the judgment: ‘50,000 young people between the ages of ten and twenty were evacuated into Germany from areas recaptured by the Soviet forces, and used as … auxiliaries in units of the German armed forces.’51 The judgment stresses that the establishment of the Hitler Jugend was of strategic importance for the Nazi regime in fulfilling a supporting role and assuring that its ideology would outlive its creators through future generations.52 Educating youth in the spirit of National Socialism was seen as a priority for the Third Reich in consolidating its power and inscription into the Jugend was mandatory.53 Ultimately, the Nuremberg judges found that the Hitler Jugend had a war-like nature, but that their activities did not constitute a crime that could qualify under their statute.54 2.2 The Special Court for Sierra Leone The first prosecutions at the international level for the recruitment or use of childsoldiers took place shortly after the adoption of the Statute of the ICC. As mentioned above, the SCSL was the first internationalised court to charge, try and ultimately convict individuals for the crime of recruiting and using child-soldiers.55 Article 4(c) of the Statute of the SCSL granted jurisdiction to the Court over serious IHL violations – specifically ‘conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities’. The use of children as soldiers during Sierra Leone’s civil war is very well known and documented, to the point of being one of the Ibid, 512. Ibid. Ibid, 513. ‘The Hitler Jugend placed particular emphasis on the military spirit, and its training programme stressed the importance of return of the colonies, the necessity for Lebensraum, and the noble destiny of German youth to die for Hitler.’ Judgment of 1 October 1946, 22 IMT 203 (IMT 1946), 512 [http://werle.rewi.hu-berlin.de/ IMTJudgment.pdf]. 53 ‘Apart from the policy of crushing the potential opponents of their regime, the Nazi Government took active steps to increase its power over the German population. In the field of education, everything was done to ensure that the youth of Germany was brought up in the atmosphere of National Socialism and accepted National Socialist teachings.’ Ibid, 418. 54 Ibid, 512. 55 See Chapter 2. This section draws largely on Cécile Aptel, ‘Unpunished Crimes: The Special Court for Sierra Leone and Children’, in The Sierra Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law, edited by Charles Chernor Jalloh (Cambridge: Cambridge University Press, 2013), 340–60. 49 50 51 52

International Courts and Child-Specific Crimes 71 conflict’s better-known characteristics, as acknowledged by the Sierra Leone Truth and Reconciliation Commission in its final report.56 In 2003, at the onset of the SCSL, its chief prosecutor, David Crane, declared that: ‘Two of the most egregious uses of children are sexual slavery and conscription of children into armed conflicts. Sierra Leone’s conflict was characterized by both, and we hope to establish a strong precedent that these abuses must end.’57 Crane followed through with a series of indictments containing these charges against leaders of all the main armed factions: the Revolutionary United Front (RUF); the Civil Defence Forces (CDF); and the Armed Forces Revolutionary Council (AFRC). In 2004, the SCSL Appeals Chamber ruled, in an interlocutory appeal, that the prohibition of unlawful recruitment and use of children under the age of 15 had crystallised as a norm of customary international law by November 1996, and as such had attracted individual criminal responsibility at least from that date onwards.58 This position had been presented by the United Nations Children’s Fund (UNICEF) in an amicus curiae brief submitted to the SCSL.59 This ruling resulted from the interlocutory appeal launched by Sam Hinga Norman, one of the accused, who challenged the jurisdiction of the SCSL, arguing that this was not a crime under customary international law and therefore did not attract individual criminal responsibility at the relevant time, thus violating the criminal law principle of nullum crimen sine lege. The Appeals Chamber – based notably on its review of different IHL and human rights instruments, states’ legislation, the practice of the UN and the jurisprudence of the ICTY and ICTR – asserted that: 56 In its final report, the Sierra Leone Truth and Reconciliation Commission noted: ‘The Sierra Leonean conflict, perhaps more than any other conflict, was characterized by the brutal strategy, employed by most of the armed factions, of forcing children into combat. The Commission finds that, during the conflict, all the armed groups pursued a policy of deliberately targeting children.’ Report of the Truth and Reconciliation Commission of Sierra Leone, ‘Volume Two, Chapter Two: Findings in Respect of Children’, 6, para 464 [https://www.sierraleonetrc.org/index.php/view-report-textvol-2/item/volume-two-chapter-two]. 57 In 2003, the prosecutor of the SCSL declared that: ‘T]wo of the most egregious uses of children are sexual slavery and conscription of children into armed conflicts. Sierra Leone’s conflict was characterized by both, and we hope to establish a strong precedent that these abuses must end.’ Office of the Prosecutor, Special Court for Sierra Leone, ‘Press Release: Honouring the Inaugural World Day Against Child Labour’, 12 June 2003 [http://www.rscsl.org/Documents/Press/OTP/prosecutor-061203. pdf]. 58 Prosecutor v Sam Hinga Norman (Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) (Appeals Chamber)) SCSL-2004–14-AR72(E) (SCSL 2004), paras 51–53. 59 UNICEF, in the amicus curiae brief it submitted to the SCSL, indicated that prior to the adoption of the Rome Statute, criminalisation of underage recruitment was established by customary international law. Amicus Curiae Brief of the United Nations Children’s Fund (UNICEF), SCSL-2003–08 (SCSL, 21 January 2004), para 4 [http s://www.refworld.org/type,AMICUS,UNICEF,,49aba9462,0.html] [UNICEF Intervention before the Special Court for Sierra Leone in the case of the Prosecutor against Sam Hinga Norman].

72 International Courts and Child-Specific Crimes ‘Child recruitment was criminalized before it was explicitly set out as a criminal prohibition in treaty law and certainly before November 1996.’60 On this basis, the first convictions for recruiting and using child-soldiers were recorded in 2007 by the SCSL. Three leaders of the AFRC – Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu – were found guilty of enlisting children under the age of 15 into armed groups or using them to participate actively in hostilities, among other crimes.61 Interestingly, responding to the defence’s argument that the age of a child should be construed in a given context depending on its culture, the judges underlined that the age of a child cannot be construed flexibly depending on context: there is no room for cultural relativism or interpretation in defining who is a ‘child’.62 Also in 2007, the SCSL Trial Chamber convicted a CDF leader, Allieu Kondewa, for conscripting children under the age of 15 into armed groups and forces or using them to participate actively in hostilities; while it acquitted his coaccused.63 Kondewa’s conviction was later overturned on appeal.64 Subsequently, in 2009, two leaders of the RUF – Issa Hassan Sesay and Morris Kallon – were also found guilty of war crimes for recruiting and using ‘child-soldiers’.65 The trial and conviction in 2012 of former Liberian President Charles Taylor demonstrated the sustained attention that the SCSL gave to crimes victimising child-soldiers.66 Taylor has been accused of playing a prominent role in the Sierra 60 Prosecutor v Sam Hinga Norman (Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) (Appeals Chamber)) SCSL-2004–14-AR72(E) (SCSL 2004), para 53. 61 Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T (SCSL, 20 June 2007) [http://www.rscsl. org/Documents/Decisions/AFRC/613/SCSL-04-16-T-613s.pdf];Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Appeals Chamber), SCSL-04–16-T (SCSL, 22 February 2008) [http://www.rscsl.org/ Documents/Decisions/AFRC/Appeal/675/SCSL-04-16-A-675.pdf]. 62 Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T (SCSL, 20 June 2007), paras 730–732 [http://www.rscsl.org/Documents/Decisions/AFRC/613/SCSL-04-16-T-613s.pdf]. 63 Prosecutor v Moinina Fofana, Allieu Kondewa (Judgment, Trial Chamber I), SCSL04–14-A (SCSL, 2 August 2007), 291 [http://www.worldcourts.com/scsl/eng/ decisions/2007.08.02_Prosecutor_v_Fofana_Kondewa1.pdf]. 64 Prosecutor v Moinina Fofana, Allieu Kondewa (Appeal Judgment), SCSL-04–14-A (SCSL, 28 May 2008), paras 139–146 [https://www.refworld.org/cases,SCSL,484417252.html]. 65 Prosecutor v Issa Hassan Sesay, Morris Kallon, Austine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T (SCSL, 25 February 2009), paras 2223–2234 [http://www. worldcourts.com/scsl/eng/decisions/2009.02.25_Prosecutor_v_Sesay_Kallon_Gbao. pdf]. The judgment was affirmed on appeal. Prosecutor v Issa Hassan Sesay, Morris Kallon, Austine Gbao (Judgment, Appeals Chamber), SCSL-04–15-T (SCSL, 26 October 2009) [http://www.rscsl.org/Documents/Decisions/RUF/Appeal/1321/ RUF%20Appeal%20Judgment.pdf]. 66 Prosecutor v Charles Ghankay Taylor (Judgment, Trial Chamber II), SCSL-03–01-T (SCSL, 18 May 2012), paras 438–444 [http://www.rscsl.org/Documents/Deci sions/Taylor/1283/SCSL-03-01-T-1283.pdf].

International Courts and Child-Specific Crimes 73 Leone conflict by assisting, encouraging, acting in concert with and directing or controlling the conduct of warring parties in Sierra Leone, including in conscripting or enlisting children under the age of 15 into armed forces or groups, or using them to participate actively in hostilities as a serious violation of IHL.67 In 2012, the SCSL found that Taylor had aided and abetted the commission of crimes by providing practical assistance such as arms and ammunition, military personnel and other forms of operational support, as well as providing encouragement for the commission of these crimes and participating in their planning.68 Taylor was convicted of aiding, abetting and planning the conscription or enlistment of children under the age of 15 into armed forces or groups, or using them to participate actively in hostilities in various places in Sierra Leone.69 In 2013, these findings were upheld on appeal.70 Considering Taylor’s position, this judgment is particularly significant in underlining the importance of the crime of the recruitment and use of children in hostilities, and the fact that even a head of state can be held criminally accountable for this crime.71 Ultimately, the SCSL included counts relating to the recruitment and use of child-soldiers in each of the indictments it issued against a total of 13 individuals, proceeding to prosecute them for these crimes. While the SCSL has a brilliant legacy in terms of highlighting this child-specific crime, its focus on the specific crime – recruiting children or using them to participate actively in hostilities – may possibly have been to the detriment of capturing other crimes suffered by these same children, who were not only recruited and used but also subjected to other horrendous abuse. Girls were particularly victimised in many different ways, as reviewed in the next chapter: many were notably sexually abused, forcefully married and raped. This is why statutory rape was specifically included in the Statute of the SCSL; but these qualifications were never retained by the SCSL, not even as cumulative charges, leaving the dramatic suffering of many girls unrecorded, the victims without access to justice and those responsible unpunished.72

67 See Prosecutor v Charles Ghankay Taylor (Prosecution’s Second Amended Indictment), SCSL-03–01-PT (SCSL, 29 May 2007), 6–7 [http://www.rscsl.org/Docum ents/Decisions/Taylor/255/SCSL-03-01-PT-263.pdf] (Count 9). 68 Prosecutor v Charles Ghankay Taylor (Judgment, Trial Chamber II), SCSL-03–01-T (SCSL, 18 May 2012), paras 6901–6973 [http://www.rscsl.org/Documents/Deci sions/Taylor/1283/SCSL-03-01-T-1283.pdf]. 69 Ibid, para 6905. 70 See Prosecutor v Charles Ghankay Taylor (Judgment, Appeals Chamber), SCSL-03– 01-A (SCSL, 26 September 2013) [http://www.rscsl.org/Documents/Decisions/Ta ylor/Appeal/1389/SCSL-03-01-A-1389.pdf]. 71 The SCSL dismissed Taylor’s claims of personal immunity and functional immunity. Prosecutor v Charles Ghankay Taylor (Decision on Immunity from Jurisdiction, Appeals Chamber), SCSL-2003–01-I (31 May 2004), paras 20–33 [http://www. worldcourts.com/scsl/eng/decisions/2004.05.31_Prosecutor_v_Taylor.pdf]. 72 SCSL Statute, arts 5, 15(4). See Chapters 1 and 4.

74 International Courts and Child-Specific Crimes 2.3 The International Criminal Court The first cases before the ICC also focused on the unlawful recruitment or use of children in hostilities. The first ICC prosecutor, Luis Moreno Ocampo, followed in the footsteps of his predecessor at the SCSL, devoting considerable attention to investigating and prosecuting the enlistment or use of child-soldiers to participate actively in hostilities in the early ICC cases. In 2006, referring to these crimes, he declared: ‘These are extremely serious crimes. Forcing children to be killers jeopardises the future of mankind … We are committed to putting an end to these crimes – it’s our special duty pursuant to the Rome Statute.’73 Eight of the first 17 individuals publicly indicted by the ICC were charged with these crimes: Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, leaders of the Lord’s Resistance Army (LRA); and Thomas Lubanga Dyilo, Bosco Ntaganda, Germain Katanga and Matthieu Ngudjolo Chui, leaders of Congolese armed groups.74 Significantly, the very first trial before the ICC, involving Thomas Lubanga Dyilo, was launched exclusively on the basis of three counts of war crimes for enlisting and conscripting children in an armed group and using them to participate actively in hostilities.75 2.3.1 The Thomas Lubanga Dyilo case Thomas Lubanga Dyilo, a national of the DRC, was accused by the ICC of having committed, as a co-perpetrator, war crimes of enlisting and conscripting children under the age of 15 into the Forces patriotiques pour la libération du Congo (FPLC) – the military wing of the Union des Patriotes Congolais (UPC) – and using them to participate actively in hostilities in Ituri, a district in Eastern DRC, between September 2002 and August 2003.76 73 Statement by Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court, Press Conference in relation with the surrender to the Court of Mr Thomas Lubanga Dyilo, The Hague, 18 March 2006 cited in Diane Marie Amann, ‘The Child Rights Convention and International Criminal Justice’, Nordic Journal of International Law 84 (2015), 262. 74 Prosecutor v Germain Katanga (Decision on the Confirmation of Charges), ICC-01/ 04–01/07–717(14 October 2008), 113–15 [https://www.icc-cpi.int/pages/record. aspx?uri=571253]. The ages of the witnesses and victims are not specified in the decision. However, certain statements in the testimonies suggest that the crimes encompassed girls and women. 75 Prosecutor v Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC01/04–01/06 (29 January 2007), 153–57 [http://www.worldcourts.com/icc/eng/ decisions/2007.01.29_Prosecutor_v_Lubanga1.pdf]. 76 Ibid. He was surrendered and transferred to the Court on 17 March 2006, upon a warrant of arrest issued by Pre-Trial Chamber I. His trial lasted from 26 January 2009 until his conviction on 14 March 2012. Over the course of 220 hearings, the Chamber heard 36 witnesses called by the Office of the Prosecutor, including three experts, 19 witnesses called by the defence and three witnesses called by the legal representatives of the victims participating in the proceedings. The Chamber also called four

International Courts and Child-Specific Crimes 75 At the onset of the trial, allegations of prosecutorial impropriety relating to nondisclosure and the use of intermediaries by ICC investigators were raised, which led to the proceedings being stayed twice.77 The trial also highlighted the difficulties of holding an international trial in which many of the prosecution witnesses were children or had witnessed the events when they were children. The first witness called by the prosecution in the Lubanga trial – and therefore the very first witness ever to appear before the ICC – was apparently just over 18 when he entered the courtroom on 28 January 2009. As a former child-soldier in Lubanga’s armed group, he was called to testify on crimes that he had suffered as a child. Once in the courtroom, he appeared concerned and frightened, and ultimately recanted his testimony.78 The trial judges deemed the witness unfit to continue and suspended the proceedings. The witness appeared again about two weeks later, on 10 February 2009, after a determination that he was fit to testify and subject to specific protective measures. By decision of the trial judges, fewer persons were present in the courtroom and public gallery; the witness was allowed to testify without any prompting or interruptions by the prosecution or the defence; and, most critically, the witness was shielded from the direct view of the accused.79 This incident offered important lessons, notably in procedural terms. The initial measures adopted to protect the witness were clearly insufficient. As seen above, children and persons testifying on crimes they experienced as children and other vulnerable witnesses should be duly informed of the aims, objectives and limitations of the trial process; and should be provided with culturally appropriate psycho-social support. This should ideally include the possibility to testify in the presence of a person of the child’s choice and, if warranted, with the assistance of a psychologist or another experienced professional. Apparently, none of these measures was initially in place for this first hearing, showing unpreparedness and deficiencies. Following the appearance of this first witness, the ICC took steps to address these problems, including by reviewing its court procedures for vulnerable other experts to testify. A total of 123 victims, represented by three teams of legal counsel, were authorised to participate in the trial and to examine witnesses on specific issues. 77 See Prosecutor v Thomas Lubanga Dyilo (Decision on the Consequences of Non-disclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, Together with Certain Other Issues Raised at the Status Conference on 10 June 2008, Trial Chamber I), ICC-01/ 04–01/06–1401(15 January 2008) [https://www.icc-cpi.int/pages/record.aspx?uri= 511249]. While the use of intermediaries in criminal investigations is questionable, in the context of the investigations for atrocity crimes conducted by the ICC in the DRC, it seems to have been commonly used, and was explained notably by concerns for the safety and protection of witnesses and informants, especially in the conflict context. 78 See notably Diane Marie Amann, ‘The Child Rights Convention and International Criminal Justice’, Nordic Journal of International Law 84 (2015), 263. 79 International Justice Monitor, ‘Thomas Lubanga at the International Criminal Court’, 29 July 2020 [https://www.ijmonitor.org/category/thomas-lubanga/].

76 International Courts and Child-Specific Crimes witnesses. Shortly after this incident, the Victims and Witnesses Unit hired a psychologist who had worked at the SCSL and was thus experienced in working with child-victims of international crimes to assess their capacity to testify and the risks they face prior to court appearance. Yet while this Unit or the parties can recommend consideration of special protective measures, the final decision rests with the judges. As previously underlined, the judges are obviously the single most important factor in securing protection for vulnerable witnesses.80 After this first testimony, several other former ‘child-soldiers’ testified during the Lubanga trial. While their identity was protected, it seems that most – if not all – of them were male. This is unfortunate, as it did not reflect the fact that girls had also apparently been illegally recruited by the FPLC. Another milestone of this first ICC trial was the unprecedented direct involvement of and participation by victims in international criminal proceedings. Victims were given the opportunity to present evidence, question witnesses and make oral and written submissions, assisted by legal counsel.81 Considering that Lubanga was exclusively charged with recruiting and using children, the victims were predominantly children formerly associated with armed groups and their families. During the trial, the legal representatives of some of the victims requested the addition of new legal charges against Lubanga, such as sexual slavery, inhumane treatment and cruel treatment, in addition to the charges on the recruitment and use of child-soldiers, as reviewed below.82 These requests was ultimately denied.83 80 See Chapter 2. 81 Prosecutor v Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute, Trial Chamber I) ICC-01/04–01/06–2842 (5 April 2012), 178–477 [https://www. icc-cpi.int/pages/record.aspx?uri=1379838]. 82 Prosecutor v Thomas Lubanga Dyilo (Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court) ICC-01/04–01/06 (14 July 2009) [http://www.worldcourts.com/icc/eng/decisions/2009.07.14_Pro secutor_v_Lubanga.pdf]. See below in this chapter for further information. 83 On 14 July 2009, the Trial Chamber issued its ‘decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court’. Prosecutor v Thomas Lubanga Dyilo (Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court) ICC-01/04–01/06 (14 July 2009) [http://www.worldcourts.com/icc/eng/decisions/2009.07.14_Prosecutor_v_Luba nga.pdf]. The Appeals Chamber reversed this decision, ruling that the Trial Chamber’s finding that the legal characterisation of the facts may be subject to change was based on a flawed interpretation of Regulation 55. The Appeals Chamber did not rule on the question of whether the majority of the Chamber had erred in determining that the legal characterisation of the facts may be changed to include crimes under Articles 7(1)(g), 8(2)(b)(xxvi) [sic], 8(2)(e)(vi), 8(2)(a)(ii) and 8(2)(c)(i) of the Statute because the Trial Chamber had not yet done a detailed review of the questions in this issue. See Prosecutor v Thomas Lubanga Dyilo (Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber 1 of 14 July 2009 entitled ‘Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts may be Subject to Change in Accordance with

International Courts and Child-Specific Crimes 77 Lubanga was eventually convicted on 14 March 201284 and the Appeals Chamber confirmed the conviction on 1 December 2014.85 This case is significant in that it gave record visibility to the recruitment and use of child-soldiers and resoundingly signalled that these are international crimes, and that those involved are liable and may face criminal sanctions. Yet for all its positive qualities, this case is not beyond criticism. Among other things, an important first set of concerns relates to the prosecution’s reliance on many former child-soldiers whose testimonies were rejected by the judges.86 Ultimately, the conviction was based on the testimony of experts and UN officials, as well as the Trial Chamber’s own viewing of a video in which the accused spoke at a training camp while guarded by ‘recruits who were clearly under the age of 15’.87 Second, the exclusive focus of this case on a very limited number of charges sent mixed signals in terms of the accountability for crimes committed against children, as is reviewed below.88 2.3.2 Other selected ICC cases Following the trial and conviction of Lubanga, the ICC prosecutor and his successors continued to devote much attention to the recruitment and use of children by armed groups. Among the most significant cases are those concerning Germain Katanga, Mathieu Ngudjolo Chui, Bosco Ntaganda and several leaders of the LRA, including Dominic Ongwen. 2.3.2.1 THE GERMAIN KATANGA CASE

Germain Katanga was charged with, among other things, the war crime of using children under the age of 15 to participate actively in hostilities before, during and in the aftermath of an attack at Bogoro village in Ituri District, DRC in February 2003.89 The

84

85

86

87 88 89

Regulation 55(2) of the Regulations of the Court’) ICC-01/04–01/06 (8 December 2009) [http://www.worldcourts.com/icc/eng/decisions/2009.12.08_Prosecutor_ v_Lubanga.pdf]. Prosecutor v Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute, Trial Chamber I) ICC-01/04–01/06 (ICC, 14 March 2012) [http://www.world courts.com/icc/eng/decisions/2012.03.14_Prosecutor_v_Lubanga3.pdf]. Prosecutor v Thomas Lubanga Dyilo (Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction) ICC-01/04–01/06 A5 (ICC, 1 December 2014) [http s://www.icc-cpi.int/CourtRecords/CR2014_09844.PDF]. Prosecutor v Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute, Trial Chamber I) ICC-01/04–01/06 (ICC, 14 March 2012), para 792 [http:// www.worldcourts.com/icc/eng/decisions/2012.03.14_Prosecutor_v_Lubanga3. pdf]. Ibid. See also Diane Marie Amann, ‘The Child Rights Convention and International Criminal Justice’, Nordic Journal of International Law 84 (2015), 263. See Chapter 4. Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04–01/07, Document Containing the Charges as Confirmed by the Pre-Trial Chamber, Annex I, 28 October 2009, Count 3 (the cases against Katanga and Chui were later severed on 21 March 2012).

78 International Courts and Child-Specific Crimes trial judges acquitted Katanga of this particular charge.90 They determined that children under the age of 15 had been fully integrated into some militia groups associated with Katanga during the relevant attack(s) (and whose presence Katanga either knew or reasonably ought to have known about), and that they had participated directly in the attacks(s). However, the trial judges were unable to ‘infer a direct nexus to suggest that the Accused used these children to participate in the hostilities’ – that is, they could not establish ‘a direct link between the Accused and the child militia members or an effective hierarchical link between the Accused and the camp commander’ responsible for the relevant attack(s).91 According to the judges, the evidence did not meet the required threshold for a variety of reasons, including a failure to corroborate some evidence; the unreliability of one witness; contradictions in the testimonies of some witnesses; and a lack of concrete evidence directly linking Katanga to the crime. Appeals by both parties were abandoned. 2.3.2.2 THE MATHIEU NGUDJOLO CHUI CASE

Mathieu Ngudjolo Chui was also charged with, among other things, the war crime of using children under the age of 15 to participate actively in hostilities before, during and in the aftermath of an attack at Bogoro village, Ituri District, DRC in February 2003.92 On 18 December 2012, the Trial Chamber acquitted Chui of all charges against him.93 The ICC established that the presence of children was a widespread phenomenon at the relevant time in Ituri, where Chui’s militia group was located, and that children under the age of 15 had been present in the group during the relevant attack; but it considered the evidence tendered to be insufficient to establish a link between Chui and the children.94 This decision was upheld by the Appeals Chamber on 7 April 2015.95 2.3.2.3 THE BOSCO NTAGANDA CASE

Bosco Ntaganda, a former deputy chief of staff and commander of operations of the FPLC, was charged in relation to attacks conducted in Ituri District, DRC in 90 Prosecutor v Germain Katanga (Judgment pursuant to Article 74 of the Statute, Trial Chamber II), ICC-01/04–01/07 (ICC, 7 March 2014) [https://www.icc-cpi.int/ CourtRecords/CR2015_04025.PDF]. 91 Ibid, paras 1024–1088, 1073, 1087. 92 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Document Containing the Charges as Confirmed by the Pre-Trial Chamber, Annex I) ICC-01/04–01/07 (ICC, 28 October 2009) (see Count 3). 93 Prosecutor v Mathieu Ngudjolo Chui (Judgment pursuant to Article 74 of the Statue, Trial Chamber II), ICC-01/04–02/12 (ICC, 18 December 2012), para 503 [http s://www.icc-cpi.int/CourtRecords/CR2013_02993.PDF]. 94 Ibid, para 504–516. 95 Prosecutor v Mathieu Ngudjolo Chui (Judgment on the Prosecutor’s appeal against the decision of Trial Chamber II entitled ‘Judgment pursuant to article 74 of the Statute’, Appeals Chamber II), ICC-01/04–02/12–271-Corr (ICC, 7 April 2015), paras 284– 294 [https://www.icc-cpi.int/CourtRecords/CR2015_03782.PDF].

International Courts and Child-Specific Crimes 79 96

2002 and 2003. On 8 July 2019, he was found guilty of 18 counts of war crimes and crimes against humanity, including conscripting and enlisting children under the age of 15 into an armed group and using them to participate actively in hostilities – notably to gather information about opposing forces and United Nations Mission in the Democratic Republic of Congo (MONUC) personnel.97 This conviction was confirmed by the ICC Appeals Chamber on 6 May 2021.98 According to the judgment, the UPC/FPLC had imposed – including by threats – an obligation on families in the areas it controlled to provide one or more children for ‘military service’.99 Some parents paid a fee or other contribution in order to exempt their children.100 Once recruited, children underwent training under Ntaganda’s responsibility.101 At the training camps, children were told that they would be killed if they tried to flee; and some of those who attempted to escape were brought back and beaten.102 Upon completion of their training, the children were assigned to perform a panoply of tasks, including acting as personal guards; gathering information or conducting reconnaissance missions to ascertain the position of opposing forces and the kinds of weapon they were using; observing MONUC personnel;103 and participating in military operations.104 96 On 4 June 2004, the ICC pre-trial judges confirmed the charges against Ntaganda, including as a direct and/or indirect co-perpetrator in the enlistment of children under the age of 15; as an indirect co-perpetrator in the conscription of children under the age of 15; and as a direct and/or indirect co-perpetrator in the use of children under the age of 15 to participate actively in hostilities, all war crimes allegedly committed between on/or about 6 August 2002 and 31 December 2003 in Ituri, DRC. Prosecutor v Bosco Ntaganda (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, Pre-Trial Chamber II) ICC-01/04–02/06 (ICC, 9 June 2014), paras 74, 97 [https://www. icc-cpi.int/CourtRecords/CR2014_04750.PDF];Prosecutor v Bosco Ntaganda (Updated Document Containing the Charges) ICC-01/04–02/06–203-AnxA (ICC, 16 February 2015) (see Counts 14–16). 97 Prosecutor v Bosco Ntaganda (public redacted version of Trial Judgment, Trial Chamber VI) ICC-01/04–02/06–2359-tFRA (ICC, 8 July 2019), para 1102 [https:// www.icc-cpi.int/CourtRecords/CR2019_03568.PDF]. For a concise analysis of other aspects of this judgment as it pertains to generic crimes committed against children, see Chapter 4. 98 Prosecutor v Bosco Ntaganda (public redacted version of Judgment on the appeals of Mr Bosco Ntaganda and the Prosecutor against the decision of Trial Chamber VI of 8 July 2019 entitled ‘Judgment’, Appeals Chamber) ICC-01/04–02/06 A A2 (ICC, 6 May 2021) [https://www.icc-cpi.int/CourtRecords/CR2021_04230.PDF]. 99 Prosecutor v Bosco Ntaganda (Judgment, Trial Chamber VI) ICC-01/04–02/06– 2359 (ICC, 8 July 2019), para 349 [https://www.icc-cpi.int/Pages/record.aspx? docNo=ICC-01/04-02/06-2359]. 100 Ibid. 101 Ibid, paras 360–379. 102 Ibid, para 376. 103 Ibid, paras 378–404. 104 Ibid, paras 414–416.

80 International Courts and Child-Specific Crimes Ntaganda was also found to have used child-soldiers as part of his personal escort to guard him, his residence and compound, and to participate in combat operations with him.105 2.3.2.4 THE DOMINIC ONGWEN CASE

The LRA is a rebel group which has operated since the 1980s in the northern districts of Uganda – and later in several neighbouring countries – and has allegedly directed attacks against government forces and civilian populations, including forcibly recruiting children to serve as fighters, sex slaves and porters. On 8 July 2005, the ICC issued arrest warrants for Joseph Kony and four other LRA leaders: Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen.106 The case against Dominic Ongwen (his birth name was Dominic Okumu Savio) was severed from the others after he surrendered in January 2015.107 He was charged for acts committed between 1 July 2002 and 31 December 2005 in northern Uganda.108 Ongwen – jointly with Joseph Kony and the Sinia Brigade leadership – engaged in a coordinated and methodical effort through LRA soldiers to abduct children under 15 years of age and force them to serve as Sinia fighters. These children were integrated into Sinia, trained, provided with weapons and made to take part in fighting.109 The charges also related specifically to four distinct attacks made on camps that housed internally displaced persons.110 Children under the age of 15 associated with the LRA participated in each of these attacks.111 In addition to participating in the fighting, children facilitated the

105 Prosecutor v Bosco Ntaganda (public redacted version of Trial Judgment, Trial Chamber VI) ICC-01/04–02/06–2359-tFRA (ICC, 8 July 2019), paras 1190–1192 [http s://www.icc-cpi.int/CourtRecords/CR2019_03568.PDF]. 106 Prosecutor v Joseph Kony and Vincent Otti (Decision on the prosecutor’s application for the warrants of arrest under Article 58, Pre-trial Chamber II) ICC-02/04–01/05– 1 (ICC, 9 July 2005) [https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/ 04-01/05-1]. The proceedings against Lukiwya and Odhiambo were later terminated after their deaths were confirmed; and Ongwen’s case was severed from Kony’s after the former’s surrender. 107 Kony and Otti are still at large and as such this case has not yet proceeded beyond the issuance of warrants of arrest. The proceedings against Lukiwya and Odhiambo were terminated after their deaths were confirmed. 108 Prosecutor v Dominic Ongwen (public redacted version of ‘Document Containing the Charges’, 21 December 2015, ICC-02/04–01/15–375-Conf-AnxA, Trial Chamber IX) ICC-02/04–01/15 (ICC, 25 May 2016) [https://www.icc-cpi.int/RelatedRecords/CR2016_03681.PDF] (see Counts 69 and 70). 109 Prosecutor v Dominic Ongwen (Public Redacted Trial Judgment, Trial Chamber IX) ICC 02/04–01/15 (ICC, 4 February 2021), paras 223 and 224 [https://www.icccpi.int/Pages/record.aspx?docNo=ICC-02/04-01/15-1762-Red]. 110 Prosecutor v Dominic Ongwen (Public Redacted Trial Judgment, Trial Chamber IX), 4 February 2021, ICC 02/04–01/15 (ICC, 4 February 2021), paras 144–204 [https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/04-01/15-1762-Red]. 111 Ibid at paras 147, 163, 180, 193 and 223.

International Courts and Child-Specific Crimes 81 attacks by raising alarms, burning and pillaging civilian houses, collecting and carrying pillaged goods from attack sites and serving as scouts.112 On 4 February 2021, an ICC Trial Chamber found Ongwen guilty of, inter alia, having committed a war crime by conscripting children and using them in armed hostilities, pursuant to Article 8(2)(e)(vii) of the Statute of the ICC.113 This holding was subsequently confirmed by the Appeals Chamber on 15 December 2022.114 While the Ongwen judgments did not elaborate on the legal elements of the conscription or enlistment of children and their use in hostilities, largely following the law already laid down in Lubanga and Katanga, this case is remarkable because of Ongwen’s own history as a former ‘child-soldier’, abducted by the LRA on his way to his primary school when he was just nine years old or so, and then forced to engage in combat.115 This has led to much questioning, related notably to the prosecutorial strategy adopted in this case, reviewed in Chapter 5. In addition to the above completed ICC cases, there are several other situations – notably under investigation or preliminary examination at the ICC – which may or could extend to alleged cases of conscription or enlistment of children to participate actively in hostilities. These include Afghanistan, the Central African Republic, Colombia, Nigeria and Ukraine, among others. It is therefore possible – although unlikely at this stage – that the jurisprudence on this child-specific war crime may continue to develop at the ICC. 2.4 Salient jurisprudential findings The jurisprudence developed in the above cases, especially at the SCSL and the ICC, has made a number of significant clarifications of the constitutive elements of the war crime of conscripting or enlisting children or using them to participate actively in hostilities. Three particular issues are successively reviewed below: 1 2 3

whether a distinction should be drawn between conscription and enlistment; whether there is more than one crime subsumed under ‘conscripting or enlisting children or using them to participate actively in hostilities’; and who the children are that ‘participate actively in hostilities’.

112 Ibid at paras 225, 2415-2447 and 3103. 113 Prosecutor v Dominic Ongwen (Public Redacted Trial Judgment, Trial Chamber IX) ICC 02/04–01/15 (ICC, 4 February 2021), paras 3101–3115 [https://www.icc-cpi. int/Pages/record.aspx?docNo=ICC-02/04-01/15-1762-Red]. 114 Prosecutor v Dominic Ongwen (Public Redacted Judgment on the appeal of Mr Ongwen against the decision of Trial Chamber IX of 4 February 2021 entitled ‘Trial Judgment’, Appeals Chamber) ICC-02/04-01/15 A (ICC, 15 Dec 2022), paras 862–927 [https://www.icc-cpi.int/sites/default/files/CourtRecords/ CR2022_07146.PDF]. 115 Ibid, paras 28 and 30.

82 International Courts and Child-Specific Crimes 2.4.1 Conscription and enlistment: an irrelevant distinction? International criminal jurisprudence has progressively clarified that whether children join armed forces or groups voluntarily or are forced to do so is ultimately irrelevant: those responsible for enlisting children under 15 who volunteer, as well as those who forcibly conscript them, can and have been held criminally liable before international criminal jurisdictions. Children can be recruited through abduction, coercion, manipulation, propaganda or conscription; or by exploiting their hope to escape impoverished circumstances. In some cases, children join armed groups or forces because they believe they will be protected by them. They are also sometimes motivated or convinced by others – including parents, families or community leaders – of the need to fight to defend their communities, redress inequalities or respond to discrimination. This led to the differentiation between conscription and enlistment reflected in the statutes of the ICC and the SCSL. Arguments in favour of criminalising all forms of recruitment of child-soldiers are found both in the Commentary on Article 4(3)(c) of Additional Protocol II (AP II) to the Geneva Convention (GC) and in the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (OPAC).116 The Commentary on Article 4(3)(c) refers to ‘[t]he principle that children should not be recruited into the armed forces’ and makes clear that this principle ‘also prohibits accepting voluntary enlistment’.117 Also, OPAC is generally understood as prohibiting recruitment under any circumstances, meaning cases of either conscription or enlistment, as Article 4 stipulates that ‘[a]rmed groups … should not, under any circumstances, recruit … persons under the age of 18 years’.118 At the SCSL, in Brima et al, a Trial Chamber distinguished between ‘conscription’, which it defined as encompassing ‘acts of coercion, such as abductions and forced recruitment, by an armed group against children, committed for the purpose of using them to participate actively in hostilities’; and ‘enlistment’, which it defined as ‘accepting and enrolling individuals when they volunteer to join an armed force or group’.119 It went further to clarify that the supposed consent of a

116 Yves Sandoz et al, eds, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Martinus Nijhoff Publishers, 1987), 1367–1381. 117 Ibid, 1380, para 4557; ‘Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts’, United Nations Treaty Collection [https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_ no=IV-11-b&chapter=4&clang=_en]. 118 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts (adopted 25 May 2000, entered into force 12 February 2002) 2173 UNTS 222, art 4. 119 Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T (SCSL, 20 June 2007), 734–35 [http:// www.rscsl.org/Documents/Decisions/AFRC/613/SCSL-04-16-T-613s.pdf].

International Courts and Child-Specific Crimes 83 child below the age of 15 is not a valid defence.120 The Trial Chamber in Fofona and Kondewa concurred, finding that: the distinction between voluntary enlistment and conscription is somewhat contrived. Attributing voluntary enlistment in armed forces or groups to a child under the age of 15 years, particularly in a conflict setting where human rights abuses are rife, is … of questionable merit.121 It also noted that the enlistment of children below the age of 15 is criminalised regardless of the nature of enlistment and the number of children enlisted. The Appeals Chamber ruled that enlistment should be broadly conceived to include ‘any conduct accepting the child as part of the militia [group]’.122 On a related point, since the consolidated indictment of Norman, Fofona and Kondewa additionally referred to ‘initiation’,123 in Fofona and Kondewa, the Trial Chamber held that while this was not a specific offence listed in the statute, evidence of initiation may be relevant in establishing liability.124 The SCSL case law was reiterated by the ICC in Lubanga. After stating that conscripting and enlisting ‘are two forms of recruitment, “conscripting” being forcible recruitment, carrying an element of compulsion, while “enlisting” pertains more to voluntary recruitment’, the Court concluded that ‘the child’s consent is not a valid defence’,125 reasoning that children under 15 are not entitled to choose to fight, so that enrolment of a child under 15 is illegal ‘with or without compulsion’.126 The ICC thus rejected the contentious distinction between voluntary (enlistment) and forcible recruitment (conscription), recalling that all forms of child recruitment are illegal. The United Nations Special Representative of the Secretary-General for Children and Armed Conflict (SRSG) submitted to the ICC that:127 120 Ibid. 121 Prosecutor v Moinina Fofana, Allieu Kondewa (Judgment, Trial Chamber I), SCSL04–14-A (SCSL, 2 August 2007), para 192 [http://www.worldcourts.com/scsl/ eng/decisions/2007.08.02_Prosecutor_v_Fofana_Kondewa1.pdf]. 122 Prosecutor v Moinina Fofana, Allieu Kondewa (Judgment, Appeals Chamber), SCSL04–14-A (SCSL, 28 May 2008), para 144 [http://www.worldcourts.com/scsl/eng/ decisions/2008.05.28_Prosecutor_v_Fofana_Kondewa.pdf]. 123 Prosecutor v Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (Indictment), SCSL-03–14-I (SCSL, 4 February 2004). 124 Prosecutor v Moinina Fofana, Allieu Kondewa (Judgment, Trial Chamber I), SCSL04–14-A (SCSL, 2 August 2007), para 198 [http://www.worldcourts.com/scsl/ eng/decisions/2007.08.02_Prosecutor_v_Fofana_Kondewa1.pdf]. 125 Prosecutor v Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC01/04–01/06 (29 January 2007), para 247 [http://www.worldcourts.com/icc/ eng/decisions/2007.01.29_Prosecutor_v_Lubanga1.pdf]. 126 Prosecutor v Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute, Trial Chamber I) ICC-01/04–01/06 (ICC, 14 March 2012), para 618 [http:// www.worldcourts.com/icc/eng/decisions/2012.03.14_Prosecutor_v_Lubanga3.pdf]. 127 Written Submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict, ICC-01/04–01/06–1229-AnxA (ICC, 18

84 International Courts and Child-Specific Crimes In most conditions of child recruitment even the most ‘voluntary’ of acts are taken in a desperate attempt to survive by children with a limited number of options. Children who ‘voluntarily’ join armed groups often come from families who were victims of killing and have lost some or all of their family or community protection during the armed conflict. Many ‘volunteer’ recruits soon become disillusioned, but are not able to leave due to fear of being killed. Many children who try to escape are executed in order to serve as an example to the other children. The line between voluntary and forced recruitment is therefore not only legally irrelevant but practically superficial in the context of children in armed conflict. Appearing as an expert witness before the ICC, as SRSG, Radhika Coomaraswamy focused on the difficulty of establishing whether a child is recruited ‘voluntarily’ or ‘forcefully’. She indicated that ‘children under 15 years cannot reasonably give consent to their own abuse and exploitation’,128 arguing that children younger than 15 cannot provide informed consent on the grounds of ‘their extreme vulnerability to pressure and inability to understand the potential consequences of their actions’.129 In Lubanga, the trial judges found that any supposed consent of a child under the age of 15 to enlist cannot be a valid defence, since such a child cannot legally and reasonably give consent to be enlisted. Enlistment and conscription therefore occur the moment a child below the age of 15 enrols or joins the armed force or group; continues for as long as the child remains with the group; and ceases either when the child leaves or when she or he attains the age of 15 – that is, the offences of enlistment and conscription have a continuous character.130 On appeal, however, the ICC found that there is a distinction between enlistment and conscription, as only the latter entails an element of compulsion.131

128 129

130

131

February 2008), para 14 [https://childrenandarmedconflict.un.org/publications/Am icuscuriaeICCLubanga.pdf]. Prosecutor v Thomas Lubanga Dyilo (Official Court Transcripts) ICC-01/04–01/06T-223-ENG (ICC, 7 January 2010), 11. Ibid, 23. The SRSG acknowledged that the ability to give consent by children between 16 and 18 is still being debated. Bo-Viktor Nylund – an experienced practitioner who has led UNICEF efforts in this area – has also underlined that, in practice, this distinction is often artificial because some children voluntarily join to seek revenge; while others may be ‘compelled to join due to the prevailing situation, the conflict, and the need to get food for the day’: Bo Viktor Nylund, ‘Child Soldiers and Transitional Justice: Protecting the Rights of Children Involved in Armed Conflicts’ (Cambridge: Intersentia, March 2016): 89. Prosecutor v Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute, Trial Chamber I) ICC-01/04–01/06–2842 (ICC, 5 April 2012), paras 610–618 [https://www.icc-cpi.int/pages/record.aspx?uri=1379838]. Prosecutor v Thomas Lubanga Dyilo (Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction) ICC-01/04–01/06 A5 (ICC, 1 December 2014), paras 275–313 [https://www.icc-cpi.int/CourtRecords/CR2014_09844.PDF].

International Courts and Child-Specific Crimes 85 2.4.2 How many crimes? A related question is whether more than one crime is subsumed under ‘conscripting or enlisting children or using them to participate actively in hostilities’.132 At the SCSL, the Appeals Chamber in CDF underlined that: ‘These modes of recruiting children are distinct from each other and liability for one form does not necessarily preclude liability for the other.’133 Also, an SCSL judge expressed in a separate opinion that this crime:134 may be committed in three quite different ways: (a) by conscripting children (which implies compulsion, albeit in some cases through force of law); (b) by enlisting them (which merely means accepting and enrolling them when they volunteer), or (c) by using them to participate actively in hostilities (i.e., taking the more serious step, having conscripted or enlisted them, of putting their lives directly at risk of combat). The view that these are in fact three separate criminal acts rather than one was apparently endorsed by the SRSG, who drew the attention of the ICC to ‘the invalidity of a child’s consent to any of the three crimes of child soldiering’.135 At the ICC, in Lubanga, the Trial Chamber clarified that ‘conscription’, ‘enlistment’ and ‘use’ constitute three separate offences.136 As such, the intention to use children to participate actively in hostilities is not a requirement to establish conscription or enlistment; neither is it necessary to prove conscription or enlistment in order to establish use.137 While the Appeals Chamber did not address the issue, one appeals judge wrote an illuminating partly dissenting opinion focused on this point, maintaining that enlistment, conscription and use constitute a single crime.138 In the view of Judge Sang-Hyun – which was based on the examination 132 See Nina HB Jorgensen, ‘The Contribution of the Special Court for Sierra Leone’ (paper presented at the 2009 Annual Conference of the International Bar Association (on file with the author)). 133 Prosecutor v Moinina Fofana and Allieu Kondewa (Judgment, Appeals Chamber) SCSL-2004–14-A (SCSL, 31 May 2008). 134 This distinction was made by Judge Robertson in his separate opinion appended to the Appeals Chamber Judgment in Prosecutor v Sam Hinga Norman (Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Separate Opinion of Judge Robertson, Appeals Chamber) SCSL-2004–14-AR72(E) (SCSL, 31 May 2004). [http://www.worldcourts.com/scsl/eng/decisions/2004.05.31_Prose cutor_v_Norman.pdf]. 135 Written Submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict, ICC-01/04–01/06–1229-AnxA (ICC, 18 February 2008), para 10 [https://childrenandarmedconflict.un.org/publications/Am icuscuriaeICCLubanga.pdf]. 136 Prosecutor v Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute, Trial Chamber I) ICC-01/04–01/06 (ICC, 14 March 2012), para 609. 137 Ibid, para 620. [http://www.worldcourts.com/icc/eng/decisions/2012.03.14_Pro secutor_v_Lubanga3.pdf]. 138 Prosecutor v Thomas Lubanga Dyilo (Partly Dissenting Opinion of Judge Sang-Hyun Song, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction)

86 International Courts and Child-Specific Crimes of ‘the provision’s “ordinary meaning”’, the ICC Elements of Crimes, ‘the object and purpose of the underlying international humanitarian law provisions’, the drafting history of the ICC Statute and the jurisprudence of the SCSL – ‘article (8) (2) (e) (vii) of the Statute contains three separate conducts of one offence’.139 Yet the disjunctive reading of ‘conscripting or enlisting children or using them to participate actively in hostilities’ was later confirmed in both Ntaganda and Ongwen. In both instances, the Trial Chambers affirmed that ‘conscription’ or ‘enlistment’ alone is sufficient to establish a breach of Article 8(2)(e)(vii). Article 8 (2)(e)(vii) does not require that these children be ‘used’ to participate actively in hostilities in order to establish a breach.140 2.4.3 Who ‘participates actively’ in hostilities? A conviction for using child-soldiers requires that it be established that the children were ‘used to participate actively in hostilities’.141 What is the meaning of the term ‘participate actively’? While this encompasses children engaging in activities such as scouting, spying and sabotaging, and also being used as decoys, couriers or at military checkpoints, does it also apply to children used in other functions, such as cooks, porters or servants, and those who are sexually exploited? The SCSL attempted to answer this question by stating in Brima et al that ‘[u] sing children to “participate actively in the hostilities” encompasses putting their lives directly at risk in combat’; and that ‘[a]ny labour or support that gives effect to, or helps maintain, operations in a conflict constitutes active participation’.142 In Fofona and Kondewa, the Trial Chamber considered this to mean direct combat roles, active participation in activities linked to combat and functions that directly support combat, but not activities unrelated to hostilities.143

139 140

141

142

143

ICC-01/04-01/06-3121-Anx1 01-12-2014 1/5 SL A5 (ICC, 1 December 2014) [CR2014_09848.PDF (icc-cpi.int)]. Ibid, para 3. Prosecutor v Bosco Ntaganda (Public Redacted Version of Judgment on the Appeals of Mr Bosco Ntaganda and the Prosecutor against the decision of Trial Chamber VI of 8 July 2019 entitled ‘Judgment’, Appeals Chamber) ICC-01/04–02/06 A A2 (ICC, 6 May 2021), para 1104 [https://www.icc-cpi.int/sites/default/files/CourtRecords/ CR2019_03568.PDF]; Prosecutor v Dominic Ongwen (Public Redacted Trial Judgment, Trial Chamber IX) ICC 02/04–01/15 (ICC, 4 February 2021), para 2768 [https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/04-01/15-1762-Red]. See Cécile Aptel, ‘Lubanga Decision Roundtable: The Participation of Children in Hostilities’, Opinio Juris (March 2012) [http://opiniojuris.org/2012/03/18/luba nga-decision-roundtable-the-participation-of-children-in-hostilities/]. This section largely draws on this blog contribution. Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T (SCSL, 20 June 2007), 736–737 [http:// www.rscsl.org/Documents/Decisions/AFRC/613/SCSL-04-16-T-613s.pdf]. Prosecutor v Moinina Fofana, Allieu Kondewa (Judgment, Trial Chamber I), SCSL04–14-A (SCSL, 2 August 2007), para 193 [http://www.worldcourts.com/scsl/ eng/decisions/2007.08.02_Prosecutor_v_Fofana_Kondewa1.pdf].

International Courts and Child-Specific Crimes 87 A few months later, in an amicus curiae brief submitted to the ICC, the abovementioned SRSG warned against attempting to determine specific activities qualifying under the term ‘participate actively’, which would risk excluding a great number of child-soldiers, particularly girls. She recommended that the ICC adopt a case-by-case approach, relying on the appreciation of ‘whether the child’s participation served an essential support function to the armed force or armed group during the period of conflict’.144 Crucially, she pointed out that children used in hostilities play multiple and changing roles:145 being fighters one minute, a ‘wife’ or ‘sex slave’ the next, and domestic aides and food providers at another time. Children are forced to play multiple roles, asked to kill and defend, carry heavy burdens, spy on villages and transmit messages. They are asked to perform many other functions and their use differs from group to group. Subsequently appearing as an expert witness before the ICC – and drawing inspiration notably from the abovementioned Cape Town Principles146 – the SRSG asked the ICC to protect all children, including girls, who are abused during their association with armed groups after they have been recruited or enlisted, regardless of whether they mostly engage in direct combat functions during conflict.147 She argued that: when girl children are abducted or enlisted or enrolled, even as sexual slaves, that it be regarded as enlistment or conscription from the day they entered the camp, because they play – they will play multiple roles in those camps … it would just be impossible [to determine] on these days she is a combatant and on these days she is a domestic aid …148 The SRSG also urged the ICC to ‘deliberately include any sexual acts perpetrated, in particular against girls, within its understanding of the “using” crime’, and underscored that ‘during war, the use of girl children in particular includes sexual violence’.149 She further explained that girl combatants are often invisible: ‘Commanders prefer to “keep their women,” who often mother their children, and even

144 Written Submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict, ICC-01/04–01/06–1229-AnxA (ICC, 18 February 2008), paras 20–21 [https://childrenandarmedconflict.un.org/publica tions/AmicuscuriaeICCLubanga.pdf]. 145 Ibid, para 22. 146 The Cape Town Principles and Best Practices (adopted 27–30 April 1997) (UNICEF) [https://www.unicef.org/emergencies/files/Cape_Town_Principles(1).pdf]. See Chapter 2. 147 Prosecutor v Thomas Lubanga Dyilo (Official Court Transcripts) ICC-01/04–01/06T-223-ENG (ICC, 7 January 2010), 15–16. 148 Ibid, 36. 149 Ibid, para 25.

88 International Courts and Child-Specific Crimes if the girls are combatants, they are not released with the rest. Their complicated status makes them particularly vulnerable.’150 Having considered these views, the ICC noted in Lubanga that language on this point has evolved: the phrase ‘participate actively in hostilities’, found in the statutes of the SCSL and the ICC, differs from the language ‘take a direct part in hostilities’ used in prior international legal instruments.151 While it is remarkable that the ICC Elements of the Crimes provide no clarification on these terms, it is important to note that, as pointed out by Marco Sassoli: As the equally authentic French text of the Conventions and Protocols show, the term ‘active participation’ in Common Article 3 and the term ‘direct participation’ used in the Protocols have the same meaning in IHL as the French text uses the same term – ‘participation directe’ – in both places.152 In Lubanga, the majority of the Trial Chamber stated that the expression ‘to participate actively in hostilities’ – as opposed to the expression ‘direct participation’ used in AP I to the GC – was intended to include varied activities, stating that ‘those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants’, if such involvement ‘exposed him or her to real danger as a potential target’.153 The Trial Chamber excluded from ‘active participation in hostilities’ the use of girls under the age of 15 for domestic work, in addition to the other tasks they carried out as UPC/FPLC soldiers.154 While it noted that testimonies had pointed out that girls as young as 12 were subjected to sexual abuse at the hands of commanders and other soldiers in their own militia, resulting in pregnancies, abortions, ostracism, stigmatisation and traumas,155 it considered this ‘irrelevant’ to the determination of guilt or innocence on account of ‘the prosecution’s failure to include allegations of sexual violence in the charges’.156 In her separate and dissenting opinion to the Lubanga trial judgment, Judge Odio-Benito argued for the inclusion of ‘sexual violence within the legal concept of “use to participate actively in the hostilities”’ and found that ‘[s]exual violence

150 Ibid, para 26. 151 See Prosecutor v Thomas Lubanga Dyilo (Decision on the Confirmation of Charges, Pre-Trial Chamber I) ICC-01/04–01/06 (29 January 2007), 261 [http://www. worldcourts.com/icc/eng/decisions/2007.01.29_Prosecutor_v_Lubanga1.pdf]. 152 Marco Sassoli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare (Cheltenham: Edward Elgar Publishing, 2019), 356. 153 Prosecutor v Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute, Trial Chamber I) ICC-01/04–01/06 (ICC, 14 March 2012), paras 627–628 [http://www.worldcourts.com/icc/eng/decisions/2012.03.14_Prosecutor_v_Luba nga3.pdf]. 154 Ibid, paras 878–882, 915. 155 Ibid, paras 890–895. 156 Ibid, para 896.

International Courts and Child-Specific Crimes 89 is an intrinsic element of the criminal conduct of “use to participate actively in the hostilities”’.157 The appeals judgment in this case explicated that the term ‘participate actively in hostilities’ should not be interpreted so as to only refer to direct participation in armed hostilities, as understood in the context of the principle of distinction and Common Article 3 of the GC.158 The ICC judges found that, in order for the crime of using children to participate actively in hostilities to be established, there needs to be a ‘link between the activity for which the child is used and the combat in which the armed force or group of the perpetrator is engaged’.159 They underlined that ‘active participation’ involves both direct participation in combat and support roles to combat of military operations which expose the child as a potential target in hostilities.160 The appeals judges also asserted that, in assessing whether an activity or role qualifies as ‘active participation in hostilities’, it is necessary to analyse the link between the activity and any combat in which the armed force or group of the perpetrator is engaged, rather than the risk posed to the child as a potential target in hostilities.161 Ultimately, the determination as to whether a particular activity constitutes active participation in hostilities must therefore be made on a case-by-case basis.162 The somehow ambivalent international criminal jurisprudence on this point highlights that the meaning of ‘direct participation’ and ‘active participation’ in hostilities remains controversial.163 It may also be possibly underpinned by the 157 Prosecutor v Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute, Separate and Dissenting Opinion of Judge Odio Benito) ICC-01/04–01/06 (ICC, 14 March 2012) paras 17, 20 [http://www.worldcourts.com/icc/eng/decisions/ 2012.03.14_Prosecutor_v_Lubanga3.pdf]. For Judge Odio Benito: ‘By failing to deliberately include within the legal concept of “use to participate actively in the hostilities” the sexual violence and other ill-treatment suffered by girls and boys, the Majority of the Chamber, is making this critical aspect of the crime invisible.’ Ibid, para 16. 158 Prosecutor v Thomas Lubanga Dyilo (Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction) ICC-01/04–01/06 A5 (ICC, 1 December 2014), paras 324–328 [https://www.icc-cpi.int/CourtRecords/CR2014_09844.PDF]. The Chamber stated that the term ‘does not have to be given the same interpretation as the terms active or direct participation in the context of the principle of distinction between combatants and civilians, as set out, in particular, in Common Article 3 of the Geneva Conventions’. Ibid, para 324. 159 Ibid, para 335. The existence of such a link, according to the Appeals Chamber, shall be made on a case-by-case basis, along with the guidance of the lists of activities set out in the International Committee of the Red Cross (ICRC) commentary on the Additional Protocols and in the Preparatory Committee’s Draft Statute. Ibid, para 335. 160 Ibid, para 621–628. 161 Ibid, para 332–335. 162 Ibid. 163 Marco Sassoli notes that ‘The meaning of direct participation is controversial’; and that ‘The concept of “direction participation in hostilities” is a cornerstone of IHL on the conduct of hostilities, and its practical importance has grown as armed conflicts have become “civilianized”’. Marco Sassoli, International Humanitarian Law: Rules,

90 International Courts and Child-Specific Crimes diverse views, background and perspective of international judges, with some of them perhaps operating from a predominantly human rights perspective and others being conceivably more influenced by IHL and criminal law. For those operating from a primarily child rights perspective, the best way to protect children seems to seek to broaden the understanding of who is a ‘childsoldier’ so as to encompass as large a group of children associated with armed groups and forces as possible, and hence extend to previously excluded categories the benefits afforded to child-combatants, such as demobilisation packages, training opportunities, compensation and access to reparation programmes, including court-ordered reparations. Often exploited by armed groups but less frequently carrying weapons, girls and younger boys used, for example, as cooks, were often overlooked and denied access to ill-conceived disarmament, demobilisation and reintegration programmes, which focused exclusively on children who had been armed with weapons. To remedy this, child protection agencies have sought over the years to broaden the category of persons who may be ‘use[d] to participate actively in hostilities’ to embrace all children associated with armed forces and groups, notably girls.164 This position was argued at the ICC by the SRSG, as seen above; and was reflected in the separate and dissenting opinion of Judge Odio-Benito, who insisted notably on the importance of including harm caused to children by their own militia.165 However, the efforts to broaden the categories of children falling within those deemed to ‘participate actively’ in hostilities can be seriously damaging for children because, under IHL, anyone ‘directly participates in hostilities’ in an armed conflict loses her or his protection from direct attack and becomes a potential legitimate target. On this basis, for those operating primarily from that perspective, the chief concern is rather to limit as far as possible those children who can be Controversies, and Solutions to Problems Arising in Warfare (Cheltenham: Edward Elgar Publishing, 2019), 356. The publication of ‘Interpretive guidance on the notion of Direct participation in hostilities under international humanitarian law’ by the ICRC in 2009 – while it was meant to help generate a common understanding of the concept, based on an expert process conducted by the ICRC from 2003 to 2008 – possibly triggered more questions than it sorted. See Nils Melzer, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law’, ICRC, May 2009 [https://www.icrc.org/en/doc/assets/files/ other/icrc-002-0990.pdf]. 164 Concerns about these overlooked children prevailed and were incorporated into the Paris Principles on the Involvement of Children in Armed Conflict, which define a ‘child-soldier’ as any person below 18 years of age who is, or who has been, recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls, used as fighters, cooks, porters, spies or for sexual purposes. See the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (adopted February 2007), 7 [https://www.unicef.org/em erg/files/ParisPrinciples310107English.pdf]. 165 Prosecutor v Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute, Separate and Dissenting Opinion of Judge Odio Benito) ICC-01/04–01/06 (ICC, 14 March 2012), para 21 [http://www.worldcourts.com/icc/eng/decisions/2012. 03.14_Prosecutor_v_Lubanga3.pdf].

International Courts and Child-Specific Crimes 91 legitimately targeted and killed to those who actually serve in combat functions, when and for as long as they directly participate in hostilities. From this viewpoint, children are best protected when a very narrow, restrictive understanding of who ‘directly participate[s] in hostilities’ or is ‘used to participate actively in hostilities’ is adopted.166 Moreover, from an IHL perspective, it is also coherent to exclude acts pertaining to the victimisation of children not by the enemy, but by their own side – namely the armed groups which recruited them. And this position also satisfies those who seek to ensure strict respect for the nullum crimen sine lege principle. These differing views have led to some misunderstanding and confusion. Ultimately, the protection of children recruited by armed groups and forces is maximised once one accepts that there is no contradiction between, on the one hand, broadening the human rights protection afforded to all children associated with armed groups and forces to better protect them from recruitment and use by armed groups and forces; and on the other hand, restrictively construing the category of those children ‘directly participating in hostilities’ so that only those directly involved in combat lose their protection as civilians under IHL.167 It is hoped that international criminal jurisprudence will further clarify that both objectives can be pursued simultaneously. This conundrum also highlights the difficulty of balancing victims’ right to be protected, which often demands a progressive and more encompassing construction of the law, with the rights of the defendants and the principle of legality – a fundamental principle that calls for the law to be specific, clear and not to apply retroactively. In these circumstances, so as to criminalise the full extent of reprehensible conduct and render justice to all child-victims while respecting the fundamental rights of the defendants, prosecutors and judges could make use of the entire legal arsenal at their disposal: they could charge and convict those responsible not only – or not necessarily – for the recruitment and use of child-soldiers, but also for the other crimes committed against children, such as enslavement, torture, sexual slavery and rape, which are equally important.168

3 Attacks against buildings dedicated to education Intentionally directing attacks against buildings dedicated to education (including schools), a crime that does not exclusively target children but primarily affects them, is an offence listed among the grave breaches defined under the GCs. Both IHL and IHRL ensure the right to education during conflicts and provide general and specific protection for educational facilities.169 Together, these two 166 See Cécile Aptel, ‘Lubanga Decision Roundtable: The Participation of Children in Hostilities’, Opinio Juris (March 2012) [http://opiniojuris.org/2012/03/18/luba nga-decision-roundtable-the-participation-of-children-in-hostilities/]. 167 Ibid. 168 See Chapter 4. 169 The right to education, enshrined in Article 26(1) of the Universal Declaration of Human Rights, is also found in key international human rights treaties, including

92 International Courts and Child-Specific Crimes legal regimes protect schools, students and teachers from attacks during armed conflicts; and limit the occupation or use of educational facilities by warring parties. Under the Hague Regulations, buildings dedicated to education must be protected from destruction, wilful damage and seizure during both conflict and occupation.170 GC IV and AP I protect infrastructure and property, including educational facilities, from direct and deliberate attack where such property is civilian and not used for military purposes.171 Article 24 of the GC IV notes that states must ensure that the education of ‘children under fifteen, who are orphaned or are separated from their families as a result of the war, [is] facilitated in all circumstances’. It may be implicit, in the ‘facilitation’ of the education of this subcategory of children, that attacks against schools should be prohibited or addressed. AP I specifically underlines that in case of doubt, all objects normally dedicated to civilian purposes, including schools, shall be presumed not to be used to make an effective contribution to military action.172 As for OPAC, it condemns ‘the targeting of children in situations of armed conflict and direct attacks on objects protected under international law, including places that generally have a significant presence of children, such as schools and hospitals’.173 According to the International Committee of the Red Cross study on customary IHL, deliberately targeting civilian objects, including schools, is prohibited

170

171

172 173

Article 13 of the International Covenant on Economic, Social, and Cultural Rights, and in Article 28 of the CRC. The Geneva Conventions and their Additional Protocols also contain several provisions protecting children’s right to education during armed conflict, including for certain particularly vulnerable children. Hague Convention (II) with Respect to the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 4 April 1900) (1900) International Peace Conference, The Hague, arts 46– 47, 56; Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land (entered into force 26 January 1910) (1910) International Peace Conference, The Hague, arts 46–47, 56; Hague Convention (IX) concerning Bombardment by Naval Forces in Time of War (entered into force 26 January 1910) (1910) International Peace Conference, The Hague, art 5. Fourth Geneva Convention, arts 11, 18; Additional Protocol I, arts 51–52; JeanMarie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, vol 1 (Cambridge: Cambridge University Press, 2005), 32–34 (Rule 9). In relation to international armed conflicts or occupation, Article 50 of the Geneva Convention IV requires the occupying power to facilitate the proper working ‘of all institutions devoted to the care and education of children’ and, if they are inadequate, to ‘make arrangements for the maintenance and education’ of children who are orphaned/separated from their parents. Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 74 UNTS 287, art 50 (Fourth Geneva Convention). Additional Protocol I, art 52(3). Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts (adopted 25 May 2000, entered into force 12 February 2002) 2173 UNTS 222, preamble, para 5 (OPAC). On OPAC, see Chapter 2.

International Courts and Child-Specific Crimes 93 and may constitute a war crime.174 The study documents that schools – like other civilian objects that are not military objectives – are protected against attacks;175 and that the seizure of or destruction or wilful damage done to institutions dedicated to education is prohibited.176 Special care must be taken in military operations to avoid damage to buildings dedicated to education, which benefit from special protection as cultural property under customary international law.177 Yet while parties to a conflict remain under the obligation to take precautionary measures to protect civilian objects, including schools, from the effects of military operations,178 IHL does not explicitly prohibit the use of educational facilities or their occupation for military purposes, unless these facilities qualify as a specially protected object, such as a cultural object or medical facility. For example, a teaching hospital would constitute a specially protected object. The problem is that the use or occupation of education facilities by armed forces or groups may turn them into military objects, exposing them to lawful attacks by the enemy and placing students and teachers at risk. Seeking to limit the occupation or use of education institutions by armed forces and groups, a Safe Schools Declaration was drafted by a group of states, notably led by Norway and Argentina.179 It was opened for states’ endorsement in 2015, so that states could commit themselves to minimise the use of schools or university buildings as military bases or barracks. To date, over 110 states have already done so.180 The United Nations Security Council has also insisted on the importance of protecting schools, encouraging all states to take concrete measures to do so.181 Of particular importance, it has stressed: 174 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, vol 1 (Cambridge: Cambridge University Press, 2005), 568–604 (Rule 156). 175 Ibid, 32–37 (Rules 9 and 10). 176 Ibid, 132 (Rule 40A). 177 Ibid, 127 (Rule 38A). 178 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3, arts 57–58 (Additional Protocol I); Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, vol 1 (Cambridge: Cambridge University Press, 2005), 51, 68– 71 (Rules 15, 22). 179 It was developed with the support of the Global Coalition to Protect Education from Attack, established in 2010. See ‘Safe Schools Declaration Endorsements’, Global Coalition to Protect Education from Attack [https://protectingeducation.org/news/ support-for-schools-on-the-frontline-of-conflict-a-priority-in-protecting-educationfrom-attack/]. 180 As of 17 January 2023, 116 states had endorsed the Safe Schools Declaration. Global Coalition to Protect Education from Attack, ‘Safe Schools Declaration Endorsements’ [https://protectingeducation.org/news/support-for-schools-on-the-frontline-of-con flict-a-priority-in-protecting-education-from-attack/]. 181 See notably UNSC Res 2143 (7 March 2014) UN Doc S/Res/2143, para 18 (Security Council Resolution 2143 (2014) [on children and armed conflict]); UNSC Res 2225 (18 June 2015) UN Doc S/Res/2225, para 7 (Security Council Resolution 2225 (2015) [on children and armed conflict]).

94 International Courts and Child-Specific Crimes the need for alleged perpetrators of crimes against children in situations of armed conflict to be brought to justice through national justice systems and, where applicable, international justice mechanisms and mixed criminal courts and tribunals in order to end impunity.182 International justice mechanisms can play an important role in this regard: the Statute of the ICC and the Statute of the ICTY before it, afford specific protection to educational facilities. Article 3(d) of the Statute of the ICTY prohibited ‘the seizure of, destruction or wilful damage done to institutions dedicated to … education’ as a war crime.183 At the ICTY, reflecting the high number of attacks against educational facilities and their destruction, this crime was specifically charged in several cases, although this resulted in only three convictions.184 ˇ erkez. This led the Trial The first conviction was recorded in Kordic´ and C Chamber to considered the crime of attacking educational facilities, based on an analysis of the Hague Regulations, AP I to the GC and the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict before concluding that, even though these instruments do not refer to educational facilities per se, educational facilities are ‘undoubtedly immovable property of great importance to the cultural heritage of peoples in that they are without exception centres of learning, arts, and sciences, with their valuable collections of books and works of arts and science’.185 The Appeals Chamber further noted that, in order for educational facilities to qualify as cultural property, their ‘cultural or spiritual heritage … transcends geographical boundaries, and … are unique in character and are intimately associated with the history and culture of a people’.186 It also 182 UNSC Res 1998 (12 July 2011) UN Doc S/Res/1998(2011) (Security Council Resolution 1998 (2011) [on children and armed conflict]). With this resolution, the UNSC also adopted this crime as a trigger for its monitoring and reporting system on crimes against children; see Chapter 6. 183 UN Updated Statute of the International Criminal Tribunal for the Former Yugoslavia (February 2008), art 3(d) [https://www.un.org/ruleoflaw/files/statute-feb08-e.pdf]. ˇ erkez were both convicted of destruction and wilful damage of Bosnian 184 Kordic´ and C Muslim educational (and religious) institutions; see Prosecutor v Dario Kordic´, Mario Cerkez (Judgment, Trial Chamber) IT-95–14/2-T, (ICTY 2001) and Prosecutor v Dario Kordic´, Mario Cerkez (Judgment, Appeals Chamber) IT-95–14/2-A, (ICTY 2004). Jokic´ pleaded guilty to the shelling of different protected objects located in Dubrovnik, including educational facilities; see Prosecutor v Miodrag Jokic´ (Sentencing Judgment, Trial Chamber) IT-01-42/1-S, 18 March 2004 (ICTY 2004)). Strugar was convicted by the Trial Chamber, inter alia, for destruction or wilful damage of institutions dedicated to education, also in Dubrovnik; see Prosecutor v Pavle Strugar et al (Judgment, Trial Chamber) IT-01-42-T, 31 January 2005 (ICTY 2005) and Prosecutor v Pavle Strugar et al (Judgment, Appeals Chamber) IT-01-42-A, 17 July 2008 (ICTY 2008). 185 Prosecutor v Dario Kordic´, Mario Cerkez (Judgment, Trial Chamber) IT-95–14/2-T, para 360 (ICTY 2001). 186 Prosecutor v Dario Kordic´, Mario Cerkez (Judgment, Appeals Chamber) IT-95–14/2A, para 91 (ICTY 2004).

International Courts and Child-Specific Crimes 95 stated that, although not all educational buildings would fulfil these requirements, the crime of destruction of educational buildings as a war crime is part of customary international law.187 Another ICTY Trial Chamber clarified that, in relation to the destruction or wilful damage to institutions dedicated to religion or education: ‘The damage or destruction must have been committed intentionally to institutions … which may clearly be identified as dedicated to religion or education and which were not being used for military purposes at the time of the acts.’188 Other important related ICTY jurisprudential developments include the Galic´, Strugar, Blaškic´, Krajišnik and Prlic´ cases.189 As for the Statute of the ICC, it qualifies intentionally directing an attack against buildings dedicated to education, provided that they do not have military objectives, as a war crime in both international and non-international armed conflicts.190 The ICC Elements of Crimes indicate that there are five cumulative requirements to establish the war crime of attacking protected objects under Article 8(2)(b)(ix) of the Statute of the ICC:191 1 2 3 4 5

The perpetrator directed an attack. The object of the attack was one or more buildings dedicated to … education, art, science … which were not military objectives. The perpetrator intended such building or buildings … to be the object of the attack. The conduct took place in the context of and was associated with an international armed conflict. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

The elements required to prove a war crime under Article 8(2)(e)(iv) are essentially the same, with one important exception: the fourth element provides that: ‘The conduct took place in the context of and was associated with an armed conflict not of an international character.’192 187 Ibid, para 92. 188 Prosecutor v Mladen Naletilic´, Vinko Martinovic´ (Judgment, Trial Chamber) IT-98– 34-T, para 604–605 (ICTY 2003). 189 See notably Prosecutor v Stanislav Galic´ (Indictment) IT-98–29-I, para 222 (ICTY 1999) [http://www.icty.org/x/cases/galic/ind/en/gal-ii990326e.pdf]; Prosecutor v Tihomir Blaškic´ (Judgment, Appeals Chamber) IT-95–14-A, para 44 (ICTY 2004) [https://www.icty.org/x/cases/blaskic/acjug/en/bla-aj040729e.pdf];Prosecutor v Pavle Strugar (Judgment, Trial Chamber) IT-01–42-T, 31 January 2005 (ICTY 2005); Prosecutor v Momcˇilo Krajišnik (Judgment, Trial Chamber) IT-00–39-T, para 786 (ICTY 2006) [https://www.icty.org/x/cases/krajisnik/tjug/en/kra-jud060927e.pdf]; Prosecutor v Prlic´ (Judgment, Trial Chamber) IT-04-74-T, 29 May 2013, para 458 and 1604 (ICTY 2013). 190 Rome Statute, art 8(2)(b)(ix), 8(2)(e)(iv). 191 ICC, ‘Elements of Crimes’ (2011):1–50, 2–3 [https://www.icc-cpi.int/NR/rdonlyres/ 336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf]. 192 Rome Statute, art 8(2)(e)(iv).

96 International Courts and Child-Specific Crimes In addition to the specific provisions protecting educational facilities, the Statute of the ICC protects educational facilities through the prohibition on attacking civilian facilities, which may constitute both a war crime and a crime against humanity. The ICC Prosecutor Policy on Children rightly notes that: Among the war crimes that may have a disproportionate effect on children are attacks on buildings dedicated to education and health care, as enumerated in article 8(2)(b)(ix) and article 8(2)(e)(iv) of the Statute, when committed in the context of an armed conflict. Such attacks contribute to the multi-layered effect on the lives of children, and deprive them of the basic right to life, survival and development.193 Yet despite the many allegations of such crimes that fall within the jurisdiction of the ICC, none of them has yet been directly addressed by the ICC and no one has been convicted. It is surprising, considering its prevalence, that the international crime of intentionally directing attacks against buildings dedicated to education has never been litigated. Several reports have highlighted occurrences of this crime and its many serious consequences.194 The 2022 Global Report of the Global Coalition to Protect Education Against Attack indicates that attacks on education and military use of schools increased by one-third in 2020 compared to 2019 and remained at the same rate in 2021.195 Reports of the United Nations Educational, Scientific and Cultural Organization have also established the prevalence of ‘attacks on education’, encompassing threats against teachers, pupils and students; physical attacks against them; and attacks against schools and other education buildings. These crimes have been found almost everywhere, although certain areas of the world are disproportionately affected. For instance, there are many allegations of such crimes committed by the Taliban in Afghanistan and in Pakistan, in particular with the aim of stopping girls from accessing education and stopping education that they deem does not match their own values.196 In Afghanistan, these attacks also include forced school 193 Office of the Prosecutor, International Criminal Court, ‘Policy on Children’, November 2016, para 49 [https://www.icc-cpi.int/iccdocs/otp/20161115_OTP_ ICC_Policy-on-Children_Eng.PDF]. 194 On the importance of education, see notably Cécile Aptel, Saudamini Siegrist and Friedrich W Affolter, ‘Transitional Justice and Children: Prioritizing Child Protection and Education Reform’, in Handbook of Political Violence and Children: Psychosocial Effects, Intervention, and Prevention Policy, edited by Charles W Greenbaum, Muhammad M Haj-Yahia and Carolyn Hamilton (Oxford: Oxford University Press, 2020). 195 Global Coalition to Protect Education from Attack, ‘Education Under Attack 2022’, EUA 2022 Brochure [netdna-ssl.com]. 196 These may include threats, often taking the form of so-called ‘night letters’: threatening notices posted by the Taliban on school doors which either dictate the curriculum or order the closure of the school. From 1996 to 2001, the Taliban regime in Afghanistan had banned girls from schools. This has been noted by the ICC; see

International Courts and Child-Specific Crimes 97 closures – notably by burning, bombing or otherwise destroying schools – and the kidnapping, wounding or killing of pupils, students, teachers or headmasters. They were particularly brought to light when the Taliban attempted to kill a young Pakistani girl, Malala Yousafzai. Schools, pupils and teachers have also been the objects of acts of violence in Nigeria, where Boko Haram has conducted targeted shootings at schools and abducted girls. Both of these situations, in Afghanistan and Nigeria, will hopefully be further investigated by the ICC. Prosecutions of attacks against education would bring greater visibility of their prevalence, seriousness and consequences. Loss of education threatens children’s sense of stability, both in the immediate day to day and in their future. Indeed, education is a right in and of itself; and it is also an enabling right, empowering access to other human rights and meaningful participation in society. It is a right deserving of protection, at all times and for all boys and girls.

notably Situation in the Islamic Republic of Afghanistan (public redacted version of ‘Request for authorisation of an investigation pursuant to article 15’, 20 November 2017, ICC-02/17–7-Conf-Exp, Pre-Trial Chamber III) ICC-02/17 (ICC, 20 November 2017), para 75.

4

International Courts and ChildVictims of Generic Atrocity Crimes

While many children are victims of child-specific crimes (ie, crimes constituting a criminal offence specifically because the victim is a child), children in general are also victims of all other international crimes, such as killing, deprivation of liberty and torture. These crimes are labelled in this study as ‘generic’ international crimes, to distinguish them from child-specific crimes.1 Children are usually victimised alongside adults, but at times may also be particularly targeted or may otherwise constitute a large portion of the victims – especially in contexts where children form a sizeable percentage, if not the majority, of the population. Because of the vulnerability of children, especially the youngest, they may suffer disproportionately from certain generic international crimes. For instance, in the case of a famine, children are more at risk of suffering and dying than adults. Children may also be comparatively more impacted than adults by the same crime: this may be the case for rape, for instance, because both the physical and mental health impact of rape may be worse for a child than for an adult. These few examples illustrate why it is important that when generic crimes are committed against children, they be specifically acknowledged – even when children have fallen victim alongside the rest of a population. This chapter reviews the manner in which each international court has paid attention to how generic crimes affect children, starting with the International Military Tribunal of Nuremberg; continuing through the International Military Tribunal for the Far East, the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL); and concluding with the International Criminal Court (ICC). This chapter analyses selected portions of each court’s jurisprudence and frequently cites jurisprudence directly to give a sense of the formulations retained by the respective judges. When reviewing the contribution of each of these jurisdictions in bringing to light the extent to which children were victims of generic atrocity crimes, it is important to bear in mind that the decisions to establish these courts were marked by many complex dynamics and diplomatic and political compromises. These compromises significantly influence each court’s mandate: each one has a limited 1 See Chapter 1.

DOI: 10.4324/9781003361015-4

International Courts and Child-Victims of Generic Atrocity Crimes 99 specific jurisdiction and can only prosecute the crimes falling within this scope.2 The respective contribution of each court in highlighting generic crimes committed against children must be assessed within this context, and also considering the limited resources available to each court, restricting its investigative and prosecutorial focus and capacity.

1 The International Military Tribunal of Nuremberg The International Military Tribunal of Nuremberg was ground-breaking in many ways, including because of its mandate to try and punish the ‘major war criminals’ responsible for the crimes committed by the Nazis. In line with its mandate, its investigations and prosecutions centred on those bearing the greatest level of de jure responsibility and, in so doing, chartered the way for the subsequent international or hybrid courts that have sought to focus on the highest echelons. During the investigations and proceedings, emphasis was given to the political responsibility of Nazi leaders for aggression or ‘crime against peace’, as it was then known.3 This may have been to the prejudice of the other two crimes falling within the mandate of the Nuremberg Tribunal: crimes against humanity and war crimes. Robert Jackson, the US chief prosecutor in Nuremberg, wrote that: ‘Our case against the major defendants is concerned with the Nazi master plan, not with individual barbarities and perversions which occurred independently of any central plan.’4 Ultimately, the Nuremberg trial and judgment demonstrated the Nazis’ crimes committed against Jews and their plan to exterminate the European Jews, providing an extensive and public account of the Holocaust, evidenced with documentation and some eyewitness testimonies. However, as noted by historian Michael Robert Marrus: because the trial was such a prodigious affair, lasting an entire year, and involving scores of witnesses, thousands upon thousands of pages of documents and testimony, and complex legal argumentation – the Holocaust was by no means at the center of attention.5 2 These courts and their respective mandates are presented in Chapter 1. 3 Crimes against peace are the first ones listed in Article 6 of the IMT Charter, emphasising their primacy and reflecting the priority given to them by the Allied powers that drafted the Charter. They were defined in Article 6(a) as: ‘planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.’ Charter for the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (signed 8 August 1945, recorded 15 March 1951) 82 UNTS 280, art 6(a) (Charter for the International Military Tribunal (Nuremberg)). 4 Robert H Jackson, ‘Report of Robert H. Jackson United States Representative to the International Conference on Military Trials’, Department of State pub 3080 (February 1949): 48. 5 Michael Robert Marrus, ‘The Holocaust at Nuremberg’, Shoah Resource Center, The International School for Holocaust Studies (1996):1–32, 1.

100 International Courts and Child-Victims of Generic Atrocity Crimes The Tribunal focused on the political and military roles in aggression of individuals who held the highest responsibilities and paid little attention to their civilian victims. Victims and survivors of the Nazi atrocities were barely visible during the trial – not least because the prosecution relied primarily on documentary evidence written by the Nazis themselves rather than calling eyewitnesses to testify. And if adult survivors were hardly seen, children were all but absent.6 The investigators and prosecutors must also have been overwhelmed by the panoply of terrible crimes committed over several years and it was clear that they could not investigate them all. They had to make difficult decisions and in these circumstances must have focused on those crimes for which evidence was most readily available. This may explain why crimes against children were not given much attention; nor were crimes committed against women, notably sexual crimes.7 The Tribunal’s judgment conspicuously lacks references to these crimes, even though they have been conclusively documented since then.8 It is also very likely that the backgrounds of most of the investigators and prosecutors, who were predominantly men with a military background, may have played a role in the lack of attention given to these crimes and their victims; they were doubtless not salient in their minds.9

6 See, for instance, Susanne Karstedt, who has argued that victims were invisible in the accountability efforts undertaken immediately after the Second World War. Susanne Karstedt, ‘From Absence to Presence, From Silence to Voice: Victims in International and Transitional Justice since the Nuremberg Trials’, International Review of Victimology vol 17, no 1 (2010): 9–30. 7 For an in-depth review of this question, see Kelly Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals, vol 1 (Leiden: Martinus Nijhoff Publishers, 1997). See also Hannah Arendt, who noted, ‘Rassenschande, sexual intercourse with Jews, was probably the greatest crime a member of the S.S. could commit, and though during the war the raping of Jewish girls became a favorite pastime at the front, it was by no means common for a Higher S.S. officer to have an affair with a Jewish woman.’ Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Penguin, 2006), 30. 8 On crimes against children, see notably Patricia Heberer, ‘Children During the Holocaust’, in Documenting Life and Destruction: Holocaust Sources in Context Series, United States Holocaust Memorial Museum (Lanham: Rowman & Littlefield Publishers, Inc., 2011); Azriel Louis Eisenberg, The Lost Generation: Children in the Holocaust (Cleveland: Pilgrim Press, 1982); Catherine Coquio and Aurélia Kalisky, L’enfant et le Génocide: Témoignages sur l’Enfance Pendant la Shoah (Paris: Bouquins Series, Robert Laffont, 2007); and on crimes against women see Helene Sinnreich, ‘“And it was something we didn’t talk about”: Rape of Jewish Women during the Holocaust’, Holocaust Studies vol 14, no 2 (2008): 1–22; Sonja Maria Hedgepeth and Rochelle G Saidel, Sexual Violence Against Jewish Women during the Holocaust (HBI Series on Jewish Women) (Waltham: Brandeis University Press, 2010). 9 See Kelly Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals, vol 1 (Leiden: Martinus Nijhoff Publishers, 1997); see also Amann’s work on the gender composition and dynamics of the Nuremberg team. Diane Marie Amann, ‘Portraits of Women at Nuremberg’, Studies in Transnational Legal Policy vol 42, no 1 (2010): 31–54.

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Only in rare exceptions does the Nuremberg judgment explicitly refer to children or youth independently of other victims; and in those cases where it does, their age and gender usually remain undetermined and the extent of their victimisation is not very detailed.10 In general, children are collapsed into unquantifiable, generic umbrella terms, referred to as ‘children’, ‘youth’, ‘families’, ‘inhabitants’, ‘population’, ‘people/persons’, ‘group’, ‘labourers’, ‘hostages’, ‘victims’ and ‘Jews’. The judgment is peppered with such references to crimes committed against children – notably as in the sentences pronounced against those convicted, inter alia, for planning and executing deportation, forced labour, concentration camp maintenance and persecution policies more generally, including Hermann Göring, Joachim von Ribbentrop, Ernst Kaltenbrunner, Hans Frank, Walter Funk, Fritz Sauckel, Artur Seyss-Inquart, Albert Speer, Constantin von Neurath, Martin Bormann, Wilhelm Keitel, Alfred Rosenberg and Baldur von Schirach. There is also an explicit reference to children in the sentencing of the Leadership Corps of the Nazi Party, one of six organisations tried under Article 9 of the Tribunal’s Charter. There are three main categories of references to crimes committed against children in the judgment: those committed as part of crimes against the civilian population in general; those specifically targeting Jews; and those related to Nazi propaganda indoctrination and mobilisation of children and youth. 1.1 Crimes against children as part of the civilian population The Nuremberg Tribunal was the first to adjudicate crimes against humanity, as these were defined for the first time in its Charter.11 It is therefore unsurprising that during the proceedings, the prosecutors emphasised the targeting of ‘civilians’ as required to establish such crimes. Probably as a result, both during the proceedings and in the judgment, children were often subsumed under the category of ‘civilians’ – usually implicitly, although in some instances there was explicit mention of children as a part of the civilian population. Some examples extracted from the judgment are set out below. The judgment contains several findings pertaining to the punishments or retaliations carried out against those involved in movements resisting Nazi occupation, and it elucidates that such punishment was not confined to those directly involved. Instead, severe measures targeted family members of suspected resistance leaders 10 Judgment of 1 October 1946, 22 IMT 203 (IMT 1946), 50–51 [http://werle.rewi. hu-berlin.de/IMTJudgment.pdf]. 11 Article 6(c) defines ‘crimes against humanity’ as ‘murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated’ (emphasis added). Charter for the International Military Tribunal, Constitution of the International Military Tribunal (signed 8 August 1945, recorded 15 March 1951) 82 UNTS 280, art 6(c).

102 International Courts and Child-Victims of Generic Atrocity Crimes and sometimes the broader community, including children. Von Neurath, as Reich protector for Bohemia and Moravia, proclaimed that ‘the responsibility for all acts of sabotage is attributed not only to individual perpetrators but to the entire Czech population’.12 Wilhelm Keitel was found guilty of authorising directives of wanton retaliation against civilian populations engaged in resistance against German occupying forces.13 On September 1941, he had ordered that attacks on German soldiers fighting in the East should be avenged by killing 50 civilians for every German soldier killed.14 He insisted that the relatives of those suspected of committing crimes or engaged in sabotage against German forces should also be held responsible. While the judgment does not detail who constituted a ‘relative’, it is likely that these would have included children.15 Other directives of Keitel included the Nacht und Nebel Decree, ordering that civilians found to be resisting in occupied territories be sent to Germany to be dealt with by the Gestapo in the event that the death penalty was not the likely outcome of a trial.16 An order published on 19 July 1944 to higher Schutzstaffel (SS) members and police leaders by the commander of the Sicherheitspolizei and Der Sicherheitsdienst (SD) in the district of Radom, Poland stated that: in all cases of assassination or attempted assassination of Germans, or where saboteurs had destroyed vital installations, not only the guilty person, but also all his or her male relatives should be shot, and female relatives over sixteen years of age put into a concentration camp.17 The zeal with which these different orders were pursued led to a rare call for restraint from the Reich commissar for Eastern Territories to Rosenberg, who cautioned:18 It should be possible to avoid atrocities and to bury those who have been liquidated. To lock men, women and children into barns and set fire to them does not appear to be a suitable method of combating bands, even if it is desired to exterminate the population. This method is not worthy of the German cause, and hurts our reputation severely. However, the judgment also shows that, beyond punishment and retaliation, the ultimate goal of the Nazis in the Eastern occupied territories was to fulfil a broader plan to ‘get rid of the whole native populations by expulsion and annihilation’, to

12 Judgment of 1 October 1946, 22 IMT 203, {524} (IMT 1946) [http://werle.rewi. hu-berlin.de/IMTJudgment.pdf]. 13 Ibid, {492}–{493}. 14 Ibid, {492}. 15 Ibid. 16 Ibid, {492}–{493}. 17 Ibid, {454}. 18 Ibid, {455}, emphasis added.

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make way for the complete German colonisation of these territories. This plan affected children alongside the rest of the population. An important part of this plan involved the large slave labour programmes that were progressively institutionalised by the Nazis in the Eastern territories they occupied. There again, children were not spared – at least initially – as demonstrated by the following citation from an order issued to the SD officers operating in Ukraine mentioned in the Nuremberg judgment:20 ‘When searching villages, especially when it has been necessary to burn down a village, the whole population will be put at the disposal of the Commissioner by force … As a rule no more children will be shot …’ Because a potential labourer’s ‘physical condition was the test of life or death’,21 only those deemed fit to work were used as slave labourers; those, including children, who proved unfit for the strenuous work environment were killed.22 Among those tried and convicted by the Nuremberg Tribunal was Rosenberg, who played a key part in this slave labour programme23 and was also deemed responsible for the HEU Aktion programme discussed in Chapter 3.24 As a result of those programmes and the forcible transfer to Nazi Germany of children to be ‘Germanised’, hundreds of thousands of children were separated from their loved ones, displaced and victimised in so many different ways. But this was not brought to the fore by the Nuremberg Tribunal. Interestingly, the judgment refers to a directive issued by the high command of the Wehrmacht on 16 December 1942 instructing that: ‘The troops … have the right and the duty to use … any means, even against women and children, provided they are conducive to success.’25 The use of ‘even’ in this sentence appears to indicate that there was a recognition that certain categories of persons, including children, should have been protected; yet the order was to deliberately contravene this principle. A last illustration of how the Nuremberg judgment failed to identify children among victims concerns the euthanasia programmes instituted to murder those deemed ‘useless eaters’. The judgment refers to Wilhelm Frick’s actions in the following terms, omitting children from the victims:26 During the war nursing homes, hospitals, and asylums in which euthanasia was practiced … came under Frick’s jurisdiction. He had knowledge that insane, sick and aged people, ‘useless eaters,’ were being systematically put to

Ibid {456}. See also Chapter 3. Ibid {461–462}. Ibid {465}. Ibid. Ibid {495–497}. See Chapter 3. Judgment of 1 October 1946, 22 IMT 203 (IMT 1946), 177 [http://werle.rewi. hu-berlin.de/IMTJudgment.pdf]. 26 Ibid, 119.

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104 International Courts and Child-Victims of Generic Atrocity Crimes death. Complaints of these murders reached him, but he did nothing to stop them. The judgment also indicates that ‘the policy … was in existence in Germany by the summer of 1940 (… and that …) It has been estimated that at least some 275,000 people were killed in this manner’.27 The judgment omits not only the fact that disabled children were among those systematically murdered as part of the Nazi euthanasia programme, but also the fact that the implementation of this programme may even have started with the killing of children: the first euthanasia was of a child, Gerhard Kretschmar, apparently as the result of a petition sent in mid-1939 to Hitler by the child’s own parents.28 1.2 Crimes against Jewish children It is particularly striking that the judgment seldom highlights how Jewish children were affected: they are only occasionally explicitly mentioned and rather subsumed under their collective identity as Jewish. This is understandable, considering that Jewish children were indeed discriminated against, persecuted and exterminated alongside their families and community for being Jewish. But their particular suffering could certainly have been highlighted, considering how the crimes specifically affected them. Children are first explicitly mentioned in the judgment in an excerpt concerning Otto Ohlendor, who headed one of the Einsatzgruppen that followed the German armies into occupied Soviet territories.29 He recounted how the German army operating in the southern sector ‘liquidated’ 90,000 men, women and children within a year30 – the majority of these victims being Jews.31 Children are also listed among the victims of an extermination campaign in the Jewish ghetto of Rowno32 in Ukraine, where contemporary sources have 27 Ibid {463}. 28 Helen Atherton, ‘Dangers of Ambivalence: Lessons Learned from the Nazi Era’, Learning Disability Practice vol 16, no 1 (2013): 16–20. See also Lynn H Nicholas, Cruel World: The Children of Europe in the Nazi Web (New York: A.A. Knopf, 2005): 38–54. 29 These special taskforces had been created under the directive of Heinrich Himmler, Reichsführer of the SS, to ‘combat’ ‘partisans and members of resistance groups and exterminating the Jews and Communist leaders, and other sections of the population’; see Judgment of 1 October 1946, 22 IMT 203 (IMT 1946), {455} [http://werle.rewi. hu-berlin.de/IMTJudgment.pdf]. 30 Ibid {455}. 31 Ibid. In his affidavit, he added that firing squads were employed to lesson feelings of individual guilt by soldiers. 32 A detailed eyewitness account of mass executions carried out at the Rowno ghetto was given by Hermann Friedrich Graebe, at the time manager and engineer of the Solingen firm branch of Josef Jung in Spolbunow, Ukraine: ‘Then the electric floodlights which had been erected all around the ghetto were switched on. SS and militia details of four to six members entered or at least tried to enter the houses. Where the doors and windows were closed, and the inhabitants did not open upon the knocking, the SS

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estimated that 5,000 Jews were massacred on 13 July 1942. The judgment also mentions children in describing the killings of most of the local Jewish population (approximately 12,000 people) in the Dubno ghetto, relying on evidence provided by an eyewitness:34 [W]e heard shots in quick succession from behind one of the earth mounds. The people who had got off the trucks, men, women and children of all ages, had to undress upon the orders of an SS man, who carried a riding or dog whip … During the trial, Rudolf Hoess – who had been camp commander in Auschwitz from 1 May 1920 to 1 December 1943 – also provided chilling information on the abominable treatment of young Jewish children upon their arrival:35 We had two SS doctors on duty at Auschwitz to examine the incoming transports of prisoners. The prisoners would be marched past one of the doctors, who would make spot decisions as they walked by. Those who were fit for work were sent into the camp. Others were sent immediately to the extermination plants. Children of tender years were invariably exterminated since by reason of their youth they were unable to work … Very frequently women would hide their children under their clothes, but of course when we found them we would send the children in to be exterminated. Although the judgment does not further analyse how, upon their arrival in extermination camps, children – especially young children – were systematically sent to the gas chambers to be killed, other sources have since indicated that there was an institutionalised operational mandate to exterminate the youngest deportees:36 Further triage took place upon arrival at the concentration camps … Here Anne Frank was selected to work, thereby gaining a few more months of life, as was Elie Wiesel, who survived. Both of them were in their teens. For small children there was no hope. With a very few exceptions, such as twins or others who seemed useful in some way to the medical researchers, they were trucked or marched directly to the gas chambers, sometimes with a relative, but often enough, it would appear, without any familiar adult to comfort them.

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men and militia broke the windows, forced the doors with beams and crowbars, and entered the dwelling. The owners were driven on to the street just as they were, regardless of whether they were dressed or whether they had been in bed… Car after car was filled. Over it hung the screaming of women and children, the cracking of whips and rifle shots.’ Ibid {456}. The Nizkor Project, ‘The Trial of German Major War Criminals’, [http://www. nizkor.org/hweb/imt/tgmwc/tgmwc-03/tgmwc-03-25-01.shtml]. Judgment of 1 October 1946, 22 IMT 203 (IMT 1946), {455} [http://werle.rewi. hu-berlin.de/IMTJudgment.pdf]. Ibid {466}. Lynn H Nicholas, Cruel World: The Children of Europe in the Nazi Web (New York: A.A. Knopf, 2005): 392.

106 International Courts and Child-Victims of Generic Atrocity Crimes Many other horrendous crimes committed against Jewish children, and in particular girls, are missing from the Nuremberg judgment. As mentioned above, sexual crimes committed against Jewish women and girls are conspicuously absent; as remarked by Sinnreich: ‘[I]t was something we didn’t talk about.’37 1.3 Nazi indoctrination and mobilisation of youth Compared to a lack of analysis regarding crimes committed against girls and women, the Nuremberg Tribunal appears to have dissected Nazi efforts to indoctrinate and mobilise youth.38 This is likely a result of the Tribunal’s efforts to expose the overall Nazi strategy and its crimes against peace. The judgment explains how propaganda was used to instil Nazi doctrine in the German population, particularly focusing on children and youth.39 The judgment examines the Nazi strategy to ‘ensure that the youth of Germany was brought up in the atmosphere of National Socialism’, carried out through the removal of ‘subversive’ teachers,40 the extensive use of propaganda and the formalisation of the Hilter Jugend as a military training organisation.41 In 1925, the Hitler Jugend was officially recognised by the Nazi Party.42 In 1931 all youth organisations were incorporated into the Hitler Jugend, meaning that when formal conscription was introduced in 1940, 97% of eligible children were already members of the Jugend.43 This dramatically increased the number of youth involved in Nazi strategy and under Nazi influence. 37 Helene Sinnreich, ‘“And it was something we didn’t talk about”: Rape of Jewish Women during the Holocaust’, Holocaust Studies vol 14, no 2 (2008): 1–22; see also Sonja Maria Hedgepeth and Rochelle G Saidel, Sexual Violence Against Jewish Women during the Holocaust (HBI Series on Jewish Women) (Waltham: Brandeis University Press, 2010). 38 See Chapter 3. 39 In a 1933 conversation, Hitler had apparently already underscored the characteristics that set youth apart and alluded to the adulation of young boys: ‘I am beginning with the young. We older ones are used up … But my magnificent youngsters! Are there finer ones anywhere in the world? Look at these young men and boys! What material! With them I can make a new world.’ Adolf Hitler quoted in Gerhard Rempel, Hitler’s Children: The Hitler Youth and the SS (Chapel Hill: University of North Carolina), IMT11946), 4. 40 The judgment also documented how the indoctrination of children by the Nazi regime was not confined to youth organisations, but also deeply embedded in the public education system: ‘In the field of education, everything was done to ensure that the youth of Germany was brought up in the atmosphere of National Socialism and accepted National Socialist teachings…’ Judgment of 1 October 1946, 22 IMT 203 (IMT 1946), {418} [http://werle.rewi.hu-berlin.de/IMTJudgment.pdf]. 41 Judgment of 1 October 1946, 22 IMT 203 (IMT 1946), {418} [http://werle.rewi. hu-berlin.de/IMTJudgment.pdf]. 42 Ibid {415}. 43 Ibid{415–417}. On 1 December 1936, Hitler signed a decree that incorporated all German youth within the Hitler Jugend. Ibid {512}. According to Rempel, between 1933 and 1936, membership of male and female children aged between ten and 18 increased rapidly from 1 million to 5 million. See Gerhard Rempel, Hitler’s Children: The Hitler Youth and the SS (Chapel Hill: University of North Carolina, 1989), 10.

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The Nuremberg Tribunal charged Baldur von Schirach with conspiring or having a common plan to commit crimes against peace and committing crimes against humanity based on his role in indoctrinating youth.44 von Schirach was the leader of the National Socialist Students’ Union, the Reich youth leader of the Nazi Party and the youth leader of the German Reich.45 The incorporation of all youth organisations into the Hitler Jugend followed soon after his appointment.46 von Schirach was found to have used the Hitler Jugend to systematically ‘educate’ youth with Nazi propaganda, to conduct pre-military training and to establish a ‘source of replacements for the Nazi Party formations’.47 But ultimately, the Tribunal found that: Despite the war-like nature of the activities of the Hitler Jugend, … it does not appear that von Schirach was involved in the development of Hitler’s plan for territorial expansion by means of aggressive war, or that he participated in the planning or preparation of any of the wars of aggression.48 Yet the Tribunal held that von Schirach was guilty of committing crimes against humanity for his role as Reich governor in Vienna in deporting and knowingly allowing the mass killings of Jews in Vienna.49 von Schirach maintained his role as a leader of youth education and was aware of the plan to utilise the Hitler Jugend to carry out the deportation and forced labour of youth. The Tribunal wrote:50 … von Schirach continued to function as Reichsleiter for Youth Education, and in this capacity he was informed of the Hitler Jugend’s participation in the plan put into effect in the fall of 1944 under which 50,000 young people between the ages of ten and twenty were evacuated into Germany from areas recaptured by the Soviet forces, and used as apprentices in German industry and as auxiliaries in units of the German armed forces. Sources other than the Nuremberg judgment have documented how, in addition to the SS, the Jugend collaborated with other security agencies; and how its members were recruited to fulfil different capacities, including acting as informants for the Gestapo.51 They have also shown that as defeat neared for the Nazis, 44 45 46 47 48 49

IMT 1946, {512}. Ibid {418}, {512}. Ibid {418}. IMT 1946, {512}. IMT 1946, {512}. ‘The Tribunal finds that von Schirach, while he did not originate the policy of deporting Jews from Vienna, participated in this deportation after he had become Gauleiter of Vienna. He knew that the best the Jews could hope for was a miserable existence in the ghettoes of the East. Bulletins describing the Jewish extermination were in his office.’ IMT 1946, {513}. 50 Ibid. 51 Gerhard Rempel, Hitler’s Children: The Hitler Youth and the SS (Chapel Hill: University of North Carolina, 1989), 60, 145.

108 International Courts and Child-Victims of Generic Atrocity Crimes children – increasingly of a younger age – were given increasingly greater responsibilities. According to Rempel:52 For years the SS had inducted underage youth, and millions of Hitler Jugend members already found themselves in ill-fitting SS uniforms doing men’s jobs at home and in combat. Millions of emaciated boys were digging tank traps and manning antiaircraft batteries. Young girls were replacing nurses in hospitals. Armies of children were collecting scrap metal and old clothes, fighting fires caused by bombing raids, policing streets and railroad stations, and serving as couriers and messengers. Paying particular attention to von Schirach’s effort to indoctrinate and recruit youth to fill a military capacity, the Tribunal held von Schirach responsible for crimes against humanity for acts that utilised militarised youth. While the Tribunal did not hold von Schirach directly responsible for the systematic indoctrination of youth, it did weigh his actions mobilising youth to commit crimes against humanity in its decision. Moreover, there are no direct references to children in the part of the judgment deciding on the criminal responsibility of the SA53 – an organisation which the judgment noted as having been affiliated with von Shirach and the Hitler Jugend.54 While certain sections of youth organisations were initially listed among the criminal organisations, the prosecution later recommended excluding them.55 Generally, the prosecution in Nuremberg did not focus on youth organisations, as they were not deemed to bear a major responsibility in the crimes. 1.4 Concluding remarks The overall impact of Nazi crimes on children was overwhelming – both in terms of the number of children victimised in so many different ways and in terms of the severity of the impact. German children were subjected to propaganda and brainwashed, and later used to play a wide array of roles. Children who lived in occupied territories – especially in the East – suffered from deprivation, including famine and forced labour akin to slavery, when not witnessing the death of their loved ones or being killed themselves. But none suffered like those subjected to the worst discrimination: the Jewish children whose lives were shattered. For a generation of Jewish children, life was wrecked – even if they survived.56 Yet only 52 Ibid, 233. 53 The official name of the SA is ‘Die Sturmabteilungen der Nationalsozialistischen Deutschen Arbeiterpartei’, though it is more commonly referred to as the ‘SA’. IMT 1946, {481}. 54 Ibid {512}–{513}. 55 ‘Volume 22 of the Trial Proceedings dated 29 August 1946’, paras 205–206, The Avalon Law Project, Yale Law School, 2008 [avalon.law.yale.edu/imt/08–29–46.asp]. 56 It is also important to note that, beyond the direct survivors, the impact of these crimes have even lingered on successive generations of children, considering the

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a few of these crimes were mentioned in Nuremberg and no specific attention was given to them.

2 The International Military Tribunal for the Far East Like the Nuremberg Tribunal, the International Military Tribunal for the Far East, or Tokyo Tribunal, was ground-breaking in many ways. Its mandate was similarly centred on high-ranking leaders and thus its primary focus and contribution were on political responsibility rather than on the suffering of vulnerable victims, notably children.57 Crimes against children were not prioritised, systematically pursued or given much attention either in the proceedings or in the judgment. Although there are a few explicit references to the victimisation of children in the judgment,58 children are mostly subsumed under generic umbrella terms such as ‘civilians or ‘victims’.59 Consequently, while children certainly figured among the victims of the crimes committed by the Japanese in the context of the Second World War, it is impossible to know or even estimate from the judgment how many were among the victims and how much they suffered. Overall, there are three main categories of explicit or implicit references to crimes committed against children in the judgment: those related to the indoctrination of Japanese children and youth; those committed by the Japanese imperial forces against non-Japanese children as part of the crimes against the civilian populations in occupied territories – notably in China and the Pacific; and those specifically related to sexual violence and crimes. 2.1 Indoctrination Like their contemporary Nazi counterparts, the Japanese imperial leaders zealously indoctrinated children and youth in nationalistic totalitarian teachings. These efforts were scrutinised in the course of the investigations conducted for the Tokyo Tribunal and resulted in a description of how the educational system was used to inculcate a spirit of totalitarianism among Japanese children in Section 6 of the indictment.60 The indictment states: ‘The educational system, civil, military

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intergenerational transmission of trauma. On this question, see notably the groundbreaking study of Rachel Lev-Wiesel, ‘Intergenerational Transmission of Trauma Across Three Generations: A Preliminary Study’, Qualitative Social Work vol 6, no 1 (2007): 75–94, [https://doi.org/10.1177/1473325007074167]. While it focused on senior leaders, this was with the notable exception of Hirohito. There are fewer than 20 explicit references in a document of over 500 pages. Judgment of 4 November 1948 (International Military Tribunal for the Far East), reprinted in John R Pritchard and Sonia M Zaide, The Tokyo War Crimes Trial vol 22 (New York: Garland Publishing, 1981), {48,421}–{48,424} [https://werle.rewi. hu-berlin.de/tokio.pdf]. Counts 37, 38, 45–50, and 53–54 all included crimes waged on a wholesale scale to include civilians. Judgment of 12 November 1948 (Indictment from the International Military Tribunal for the Far East) 18–19 (IMTFE 1946) [https://www.trumanlibrary.gov/library/

110 International Courts and Child-Victims of Generic Atrocity Crimes and naval, were used to inculcate a spirit of totalitarianism, aggression, desire for war, cruelty and hatred of potential enemies.’61 The judgment noted that propaganda and indoctrination were two modes employed by the Japanese government to gain popular support for its aggressive wars, and that special efforts were geared towards the indoctrination of young Japanese people. The judgment cited an official ordinance indicating that: the primary aim of the whole educational system (should be) to foster and develop the spirit of the nation … Every effort should be made to lay into the minds of youths the true significance of loyalty and patriotism, as well as to establish a spirit of self-sacrifice and public service.62 Kingoro Hashimoto, who was tried and convicted by the Tribunal, was instrumental towards this end: in 1936, he founded Dai-Nippon Seinento, an organisation of young men that he deemed equipped with the moral character and physical strength needed to carry out the mission of Kodo and create a ‘New Japan’.63 According to the Tokyo Tribunal:64 For, said HASHIMOTO, the first step in unifying the world was to unify the people of Japan itself directly under the Emperor. To achieve the renovation the blood and enthusiasm of young men were required; and it was the purpose of the Greater Japan Young Men’s Society to supply this need. Young men would become the framework of the New Japan, and would unite the entire strength, moral and physical, of the Japanese race in the spirit of Kodo or loyalty to the Emperor. Educational institutions were also used for propaganda and indoctrination, as noted in the judgment: ‘By mobilizing educational institutions and propaganda organs for a unified campaign, all possible efforts would be made to intensify the fighting spirit of the people, which would enable them to endure any amount of hardship and difficulties.’65 The judgment documented the many successive steps taken in organising the indoctrination of youth, starting as early as April 1926 with the creation of a new teaching organisation for youth aged 17 to 21 years, where half of the instruction

61 62

63 64 65

research-files/indictment-international-military-tribunal-far-east?documentid=NA&pa genumber=19]. Ibid, 19. Judgment of 4 November 1948 (International Military Tribunal for the Far East), reprinted in John R Pritchard and Sonia M Zaide, The Tokyo War Crimes Trial vol 22 (New York: Garland Publishing, 1981), {48,762} [https://werle.rewi.hu-berlin.de/ tokio.pdf]. See Chapter 5. Ibid {48,586}. Ibid {48,705}.

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was for military training. In 1927, military training – consisting of drills, physical strength building and war games – was made compulsory within the whole Japanese school system.67 Textbooks incorporating Japanese military history were designed to foster enthusiasm and support for the armed forces among students.68 In 1937, efforts to inject the Japanese educational system with a militaristic culture were ratcheted up under the tenure of Education Minister Koichi Kido: 66

In the subjects of the ordinary school course, as well as in those periods set aside for purely military training, the spirit of Kodo, or ultra-nationalism, was instilled into school children. They were taught that Japan was strong, and that she must show to the world her special characteristics. In universities as well as in schools military training and academic teaching were both used to inculcate a spirit of militarism, until the idea of regarding Japan as supreme had permeated the whole nation. War was represented as glorious, productive, and necessary to Japan’s future.69 The Tokyo Tribunal’s judgment also demonstrates how, taking over from Kido, Sadao Araki further consolidated the militaristic stronghold within the educational system as education minister from May 1938 to August 1939.70 He passed an ordinance to mobilise all educational institutions in a unified campaign to further intensify a warlike spirit among pupils. Under his leadership, the Japanese school system became completely dominated by military instructors who were outsourced by the War Ministry. Military training and lectures also became compulsory in Japanese universities. Those teachers and professors whose ideological bearings were not aligned with that of the military were either dismissed or forced to resign:71 Nowhere was the control of public opinion better exemplified than in the schools and universities of Japan. Professors and teachers were expected to 66 Ibid {48,588}. ‘In April 1926 the Education Ministry created a new teaching organization designed to cater for youths of seventeen to twenty-one years of age, who had received no formal schooling. The course, which was of four years duration, included subjects of general and vocational value; but one half of the total hours of instruction were specifically set aside for military training. In the month of their foundation, provision was made by the War Ministry for inspection of the military drills carried out at these youth schools. By the year 1927, military training was compulsory throughout the whole school system; and from 1925 to 1930, the amount of school time devoted to this type of instruction was steadily increased.’ 67 Ibid {48,588}. See also: ‘In August 1935 the War Ministry had issued regulations designed to investigate the conditions of military training in schools and universities, contribute to its developments and to ensure that the potential military value of the qualifications of graduating students was assessed.’ Ibid {48,550}. 68 Ibid {48,589}. 69 Ibid {48,662}. 70 Ibid {48,763}. 71 Ibid {48,660}.

112 International Courts and Child-Victims of Generic Atrocity Crimes cooperate wholeheartedly in propagating the policy of the Cabinet. Expressions of thought in favour of the ideals of peace, or in opposition to the policy of preparations for war, were rigorously suppressed. Hashimoto was convicted of leading the execution of a common plan and conspiracy to wage a war of aggression. Like Hashimoto, Kido and Araki were tried and convicted by the Tribunal. Araki was found guilty of conspiracy to wage aggressive war (specifically against China). The Tribunal considered Araki’s pattern of indoctrination practice in preparation of war. The Tribunal stated: As a member of different Cabinets he advanced the Army policy to prepare for wars of aggression by stimulating the warlike spirit of the young men of Japan, by mobilizing Japan’s material resources for war and by speeches and by control of the press, inciting and preparing the Japanese people for war.72 Kido was similarly found guilty of leading the execution of a common plan and conspiracy to wage a war of aggression. The Tribunal referred to Kido’s role as education minister and how he ‘applied himself to the development of a strong warlike spirit in Japan’.73 While the judgment does not discuss in detail the impact of indoctrination on individual children, by investigating the use of the education system to systematically indoctrinate the Japanese youth, the Tribunal emphasised the importance of this practice in cultivating a tendency towards war. The Tribunal weighed Hashimoto, Kido and Araki’s actions indoctrinating youth in its decisions on the defendants’ responsibility for conspiracy to wage aggressive war. 2.2 Crimes against non-Japanese children in occupied territories A large part of the judgment was devoted to the crimes committed by the Japanese imperial forces against non-Japanese civilian populations in occupied territories throughout the Far East. The patterns of abuses described in the judgment suggest that as Japanese forces gained ground, they engaged in grand-scale pillaging and destruction of villages, cities and their inhabitants. Civilians were routinely killed, tortured and forcibly conscripted for forced labour. Many children were among the victims, as the judgment occasionally notes. But in most instances, children are not explicitly mentioned and are instead subsumed under the broader category of ‘civilians’. This not only deprives child-victims of visibility, but also means that there is a general lack of information on how crimes affected them specifically. Yet from the dearth of information available on child victimisation in the judgment, it is nevertheless possible to extract valuable insight on some of the violations suffered by non-Japanese children. 72 Ibid {49,774}. 73 Ibid {49,803}–{49,804}.

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For instance, in China, in response to Chinese volunteers’ resistance in several towns and cities throughout occupied territories, Japanese forces instituted draconian retaliation measures that victimised many children. In September 1932, Japanese forces in pursuit of Chinese volunteer units came across the towns of Pingtingshan, Chienchinpao and Litsekou in the vicinity of Fushun:74 In each town the Japanese troops assembled people along ditches and forced them to kneel; they then killed these civilians, men, women and children; with machine guns; those who survived the machine-gunning being promptly bayoneted to death. Over 2,700 civilians perished in this massacre, which the Japanese Kwantung Army claimed to be justified under its program of exterminating ‘bandits’. The judgment highlights how the city of Nanking suffered some of the worst atrocities carried out against a civilian population during that awful period. On the night of 12 December 1937, Japanese forces stormed the city and ‘let loose like a barbarian horde to desecrate the city’, according to the testimony of one eyewitness:75 Soldiers went through the streets indiscriminately killing Chinese men, women and children without apparent provocation or excuse until in places the streets and alleys were littered with the bodies of their victims … At least 12,000 noncombatant Chinese men, women and children met their deaths in these indiscriminate killings during the first two or three days of the Japanese occupation of the city. For six weeks, individual and groups of Japanese soldiers roamed Nanking, looting, burning buildings, raping and murdering, resulting in estimates of total civilian casualties as high as 200,000.76 Iwane Matsui – who served as the commander of troops that captured Nanking – was held criminally responsible for having known and not taken any measures against the heinous crimes committed by Japanese forces in Nanking.77 Koki Hirota, in his role as the Japanese foreign minister from 1933 to 1936, received reports on atrocities against civilians committed by Japanese forces in Nanking where children were among the victims, yet

74 75 76 77

Ibid {49,601}–{49,602}. Ibid {49,604}, {49,605}. Ibid {49,608}. Contemporary estimates are generally deemed much higher. ‘He knew of them. He had the power, as he had the duty, to control his troops and to protect the unfortunate citizens of Nanking, He must be hold criminally responsible for his failure to discharge this duty.’ See ibid {49,816}. According to the judgment, the atrocities were so alarming that Matsui and 80 of his officers were eventually recalled from duty after hostile reports surfaced and garnered a rare public backlash in Japan. Ibid {49,611}. However, far from being punished, Matsui was decorated for his ‘meritorious services’ during his duty in China.

114 International Courts and Child-Victims of Generic Atrocity Crimes did not take immediate action that would bring an end to such abuses and was consequently convicted.78 The judgment describes how Japanese troops would rampage through villages and towns following a systematic routine of plunder, arson, torture, rape and murder of combatants and non-combatants, presumably including children. For instance, during the 1941 incursion into Tai Shan district in Kwantung Province, Japanese troops:79 indulged in a massacre of Chinese civilians, bayoneting male and female, old and young without discrimination. One eye witness, who survived a bayonet wound in the abdomen, told of the slaughter of more than 600 Chinese civilians by Japanese troops. The patterns and scale of abuse carried out in China were transposed by Japanese forces to the Pacific theatre of war with little variation. As the Tribunal judgment explicates: ‘There is a similarity of method to be found in most of the massacres. The victims were first bound and then shot, bayoneted or decapitated with swords’80 Yet in all the above extracts, even when children are explicitly or implicitly mentioned, the exact number of child-victims is unstated. The judgment is not precise about how many of the victims were children; or about whether childvictims were the exception or rather constituted a sizeable percentage of the victims. Instead, the judgment demonstrates how particularly egregious crimes committed against children were subsumed in wider criminal conduct, reflecting the broad and quasi-systematic targeting of civilians, including medical facilities and personnel:81 ‘When the Japanese troops entered Soebang, Java, in March 1942, they removed a nurse and her patients from the Military Hospital and massacred them with women and children of the civilian population.’ Another appalling atrocity discussed in connection with war in the Pacific was the setting fire to buildings with civilians, including children, trapped inside. The following excerpt provides a glimpse of the atrocity occasioned at the German Club in Manila in February 1945:82 78 ‘As to Count 55 the only evidence relating him to such crimes deals with the atrocities at Nanking in December 1937 and January and February 1938. As Foreign Minister he received reports of these atrocities immediately after the entry of the Japanese forces into Nanking … The Tribunal is of opinion that HIROTA was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented while hundreds of murders, violations of women, and other atrocities were being committed daily. His inaction amounted to criminal negligence.’ See ibid {49,791}. 79 Ibid {49,616}, emphasis added. 80 Ibid {49,639}. 81 Ibid. 82 Ibid {49,640}.

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Japanese soldiers surrounded the Club by a barricade of inflammable material, then poured gasoline over this barricade and ignited it. Thus the fugitives were forced to attempt to escape through the flaming barricade. Most of them were bayoneted and shot by the waiting Japanese soldiers. Some of the women were raped and their infants bayoneted in their arms. After raping the women the Japanese poured gasoline on their hair and ignited it. The breasts of some of the women were cut off by Japanese soldiers. This excerpt also refers to rape and other sexual violence and crimes: crimes which figured prominently among those perpetrated by the Japanese imperial forces against the non-Japanese civilian populations in the territories they occupied in China and the Pacific. The Tribunal considered these atrocities committed against children in the analysis of the responsibility of Japanese military officers for violations of international law.83 The following section reviews some of the Tribunal’s findings in this respect. 2.3 Sexual crimes If gender-based violence and sexual crimes were conspicuously absent from the Nuremberg judgment, the Tokyo Tribunal started to lift the veil and document them. The judgment notes that widespread acts of sexual violence occurred throughout the Japanese campaign, in particular to conquer China. Rape is shown to have been widely used, especially against women and girls. The judgment documented how an estimated 20,000 cases of rape occurred in Nanking during the first month of the occupation alone:84 There were many cases of rape. Death was a frequent penalty for the slightest resistance on the part of a victim or the members of her family who sought to protect her. Even girls of tender years and old women were raped in large numbers throughout the city, and many cases of abnormal and sadistic behavior in connection with these rapings occurred. Many women were killed after the act and their bodies mutilated. What age might be affixed to the phrase ‘girls of tender years’ is unspecified. More generally, the judgment does not usually mention the age of victims, including of rape. It often uses the term ‘girls’ – which, while it may qualify female children, is ambiguous and may also have been used to qualify young unmarried women, as in the case of this excerpt, referring to a 24-year-old ‘girl’ who was brutally mutilated in the Philippines:85

83 Ibid {49,630}–{49,644}. 84 Ibid {49,605}–{49,606}, emphasis added. ‘Approximately 20,000 cases of rape occurred within the city during the first month of the occupation.’ 85 Ibid {49,672}–{49,673}, emphasis added.

116 International Courts and Child-Victims of Generic Atrocity Crimes A young woman … about 24 years old was caught hiding in the grass. The officer in charge of the entire patrol tore off her clothes, while two soldiers held her. He then had her taken to a small nipa hut, without walls … and there the officer in charge of the patrol used his sabre to cut her breasts and womb. Soldiers held her while the officer did this. At first the girl was screaming. She finally lay still and silent. The Japanese then set fire to the nipa hut … Age ambiguity is scattered throughout the judgment, as in the following testimony offered by a Japanese soldier admitting to violations committed during the Japanese occupation of China, referring to a ‘daughter’ who may or not have been a child:86 [W]e captured a family of four. We played with the daughter as we would with a harlot. But as the parents insisted that the daughter be returned to them we killed them. We played with the daughter as before until the unit’s departure and then killed her. The judgment also contains only passing references to sexual slavery by Japanese forces.87 Here again, the lack of clarity is at times puzzling, such as in the following extract, where the use of the term ‘geisha girls’ introduces doubt as to whether these ‘girls’ – of undefined age – were acting on their own volition:88 General Tatekawa later told a friend that he had no desire to interfere with any proposed ‘Incident’ and had allowed himself to be decoyed to the Inn, where he was entertained by geisha girls while he listened to the sound of firing in the distance and later retired and slept soundly until called in the morning. With the benefit of hindsight, one is left wondering whether the ‘girls’ may have been so-called ‘comfort women’ – in fact, sexual slaves.89 The plight of the Chinese and Korean victims of sexual enslavement – many of whom were very young women – by Japanese military forces was extensively documented in the years that followed the work of the Tokyo Tribunal, and to date remains an issue that undermines the relationship between Japan and some of its neighbours. The judgment also demonstrates that sexual violence and crimes were not limited to women and girls, as it refers to a case in Manila where ‘an eyewitness described how his house boy was tied to a pillar. The Japanese then cut off his genitals and thrust his severed penis in his mouth’.90 Ibid {49,619}. Ibid {49,616}–{49,617}. Ibid {49,043}. See C Sarah Soh, The Comfort Women: Sexual Violence and Postcolonial Memory in Korea and Japan (Chicago: University of Chicago Press, 2008). 90 Judgment of 4 November 1948 (International Military Tribunal for the Far East), reprinted in John R Pritchard and Sonia M Zaide, The Tokyo War Crimes Trial vol 22 (New York: Garland Publishing, 1981), {49,673} [https://werle.rewi.hu-berlin.de/ tokio.pdf]. 86 87 88 89

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2.4 Concluding remarks Overall, the Tokyo Tribunal, like its Nuremberg counterpart, referred only marginally to children and did not devote particular efforts to highlighting their suffering. There are few direct references to children; they are usually subsumed under a broader category and largely disappear in the process, when in fact it is likely that children were among the most significantly affected. When seeking to understand why crimes against children were overlooked, several possible factors should be considered. First, the combination of the mandate and prosecutorial strategy of the Tokyo Tribunal led it to focus on the political responsibility of high-ranking leaders in the aggression campaign of the Japanese Empire, rather than on disfranchised victims. Second, considering the scale of the atrocities, it would have been impossible for the investigators and prosecutors to reveal their full and nuanced extent in court. Third, it is unlikely that all relevant information and details were available to them, such as the identification of victims by age or sex.

3 The International Criminal Tribunal for the former Yugoslavia Jumping to the 1990s and the conflicts that marked the division of Yugoslavia also means moving to an era in which international human rights law had been codified, advancing children’s rights. The ICTY was the first international court to refer in its case law to the CRC, which had just been adopted, with respect to the definition of a ‘child’.91 Unlike its predecessors in Nuremberg and Tokyo, the ICTY operated while the conflict was ongoing and had the opportunity to document and investigate the crimes as they were occurring, benefiting from a diversity of sources. It was established and started its work in a context where media, the UN and humanitarian organisations all had extensive access to conflict zones and reported widely on ongoing violations, including the suffering of children. The ICTY largely followed the path set by its predecessors, with a prosecution strategy intent on pursuing the ‘big fish’: those who were most responsible for the crimes, de jure or de facto. One of its chief prosecutors, Carla Del Ponte, clarified that the meaning of ‘those bearing the highest responsibility’ encompassed those holding high official positions, both de jure and de facto, as well as some

91 In Kunarac, the Appeals Chamber noted that: ‘Article 1 of the 1989 Convention on the Rights of the Child, effective for the former Yugoslavia since 2 February 1991, defines a child to be a human being under the age of 18 years unless national law provides the child with a younger age of majority.’ Prosecutor v Dragoljub Kunarac, Radomir Kovac, Zoran Vukovic (Judgment, Appeals Chamber) IT-96–23 & IT-96– 23/1-A, para 354 (ICTY 2002) [http://www.icty.org/x/cases/kunarac/acjug/en/ kun-aj020612e.pdf]. See David Tolbert, ‘Children and International Criminal Law: The Practice of the International Tribunal for the former Yugoslavia’, in International Criminal Accountability and the Rights of Children, edited by Karin Arts and Vesselin Popvski (The Hague: Hague Academic Press, 2006).

118 International Courts and Child-Victims of Generic Atrocity Crimes individuals responsible for particularly egregious crimes.92 This strategy led it in later years to try former heads of state such as Slobodan Miloševic´ and Milan Milutinovic´, in addition to prime ministers and other ministers and leaders from the various parties to the Yugoslav conflicts; but in its initial period, it also opportunistically indicted lower-ranking individuals, such as Tadic, who was the first individual tried by the ICTY. A review of selected ICTY jurisprudence indicates that it is the trials and judgments of lower-ranking cases that elucidate more information on how children were victims of generic crimes, as they focus on more specific allegations, rather than overlooking them in embracing the much broader scope of responsibility of higher-ranking leaders. Almost half of the indictments contain references to violations suffered by boys or girls, although mostly as part of wider factual allegations and charges of other violations.93 Despite the overwhelming evidence showing that children were among the victims and the fact that several trials 92 Carla Del Ponte, ‘Prosecuting the Individuals Bearing the Highest Level of Responsibility’, Journal of International Criminal Justice, vol 2, no 2 (June 2004): 516–519 [https://doi.org/10.1093/jicj/2.2.516]. This article hints at the fact that definitional issues were repeatedly debated within the ad hoc tribunals, many arguing that among those bearing the greatest responsibility were not only those individuals holding highranking positions but also those whose actions were particularly atrocious in terms of gravity and scale. One view is that the focus should be on hierarchy and the formal rank or official position of the concerned person; another is that the gravity of the crimes and their egregious nature should be considered; and a third is that only those individuals who both held high-ranking positions and committed particularly heinous crimes should be deemed among those holding the greatest responsibility. 93 This is based on a review of the ICTY indictments against all 94 individuals who had been indicted by 2013 (82 under direct ICTY jurisdiction and 12 to be transferred to national criminal jurisdictions). Out of these 94, 52 of them contained references to violations suffered by boys or girls: Vidoje Blagojevic´, Dragan Jokic´ (IT-02–60); Tihomir Blaškic´ (IT-95–14); Ljube Boškoski, Johan Tarcˇ ulovski (IT-04–82); Miroslav Bralo (IT-95–17) ‘Lašva Valley’; Radoslav Brđanin (IT-99–36) ‘Krajina’; Miroslav Deronjic´ (IT-02–61); Anto Furundžija (IT-95–17/1) ‘Lašva Valley’; Stanislav Galic´ (IT-98–29); Enver Hadžihasanovic´, Amir Kubura (IT-01–47); Sefer Halilovic´ (IT-01– ˇ erkez (IT-95–14/2); Milan 48); Goran Jelisic´ (IT-95–10); Dario Kordic´, Mario C Kovacˇ evic´ (IT-97–24); Momcˇ ilo Krajišnik (IT-00–39); Radislav Krstic´ (IT-98–33); Dragoljub Kunarac, Radomir Kovacˇ , Zoran Vukovic´ (IT-96–23 & 23/1); Zoran Kupreškic´, Mirjan Kupreškic´, Vlatko Kupreškic´, Drago Josipovic´, Dragan Papic´, Vladimir Šantic´, Kupreškic´ et al (IT-95–16) ‘Lašva Valley’; Milan Martic´ (IT-95–11) ‘RSK’; Dragomir Miloševic´ (IT-98–29/1) ‘Sarajevo’; Slobodan Miloševic´ (IT-02–54) ‘Kosovo, Croatia and Bosnia’; Mladen Naletilic´, Martinovic´ (IT-98–34) ‘Tuta and Štela’; Dragan Nikolic´ (IT-94–2) ‘Sušica Camp’; Momir Nikolic´ (IT-02–60/1) ‘Srebrenica’; Dragan Obrenovic´ (IT-02–60/2) ‘Srebrenica’; Biljana Plavšic´ (IT-00–39 & 40/1) ‘Bosnia and Herzegovina’; Ivica Rajic´ (IT-95–12) ‘Stupni Do’; Duško Sikirica, Damir Došen, Dragan Kolundžija, Sikirica et al (IT-95–8) ‘Keraterm Camp’; Blagoje Simic´, Miroslav Tadic´, Simo Zaric´, Simic´ et al (IT-95–9) ‘Bosanski Šamac’; Milan Simic´ (IT-95–9/2) ‘Bosanski Šamac’; Milomir Stakic´ (IT-97–24) ‘Prijedor’; Momir Talic´ (IT-99–36/1) ‘Krajina’; Stevan Todorovic´ (IT-95–9/1) ‘Bosanski Šamac’; Mitar Vasiljevic´ (IT-98–32) ‘Višegrad’; Dragan Zelenovic´ (IT-96–23/2) ‘Focˇ a’, Paško Ljubicˇ ic´ (IT-00–41), Radovan Stankovic´ (IT-96–23/2), and Milorad Trbic´ (IT-05–88/1).

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involved crimes committed against children as part of other crimes, not a single case or trial focused specifically on crimes committed against children. Indeed, many of the ICTY indictments list children among the victims – predominantly in allegations qualified as war crimes94 and/or crimes against humanity;95 and also, in some occasions, as genocide.96 Below are three examples illustrating the diversity of charges. Ivica Rajic´ was indicted for war crimes – notably for an attack in Stupni Do, during which at least three Muslim girls were assaulted along with other 94 Those accused of war crimes where the allegations included children among the victims include: Vidoje Blagojevic´ (IT-02–60); Dragan Jokic´ (IT-02–60); Ljube Boskosi, Johan Tarculovski (IT-04–82); Radoslav Brđanin (IT-99–36) ‘Krajina’; Stanislav Galic´ (IT-98–29); Enver Hadzihasanovic, Amir Kubura (IT-01–47); Sefer Halilovic (IT-01– ˇ erkez (95–14/2); Milan Kovacˇ evic´ (IT-97–24); Momcˇ ilo 48); Dario Kordic´, Mario C Krajišnik (IT-00–39); Radislav Krstic´ (IT-98–33); Dragoljub Kunarac, Radomir Kovac, Zoran Vukovic´ (IT-96–23 & 23/1); Zoran Kupreškic´, Mirjan Kupreškic´, Drago Josipovic´, Vladimir Šantic´, Kupreškic´ et al (IT-95–16) ‘Lašva Valley’; Dragomir Miloševic´ (IT-98–29/1); Slobodan Miloševic´ (IT-02–54) ‘Kosovo, Croatia and Bosnia’; Mladen Naletili, Vinko Martinovic (IT-98–34); Momir Nikolic´ (IT-02–60/ 1) ‘Srebrenica’; Dragan Obrenovic (IT-02–60.2), Biljana Plavšic´ (IT-00–39 & 40/1) ‘Bosnia and Herzegovina’; Ivica Rajic (IT-95–12); Duško Sikirica, Damir Došen, Dragan Kolundžija, Sikirica et al (IT-95–8) ‘Keraterm Camp’; Blagoje Simic´, Miroslav Tadic´, Simo Zaric´, Simic´ et al (IT-95–9) ‘Bosanski Šamac’; Milomir Stakic´ (IT-97–24) ‘Prijedor’; Momir Talic´ (IT-99–36/1) ‘Krajina’; Stevan Todorovic´ (IT-95–9/1) ‘Bosanski Šamac’; Mitar Vasiljevic´ (IT-98–32) ‘Višegrad’; Dragan Zelenovic´ (IT-96– 23/2) ‘Focˇ a’; Paško Ljubicˇ ic´ (IT-00–41); Radovan Stankovic´ (IT-96–23/2); and Milorad Trbic´ (IT-05–88/1). 95 Those accused of crimes against humanity where the allegations included children among the victims include: Vidoje Blagojevic´ (IT-02–60); Dragan Jokic´ (IT-02–60); Tihomir Blaškic´ (IT-95–14); Miroslav Bralo (IT-95–17) ‘Lašva Valley’; Radoslav Brđanin (IT-99–36) ‘Krajina’; Miroslav Deronjic´ (IT-02–61); Stanislav Galic´ (IT-98– ˇ erkez (95–14/2); Milan Kovacˇ evic´ (IT-97–24); Momcˇ ilo 29); Dario Kordic´, Mario C Krajišnik (IT-00–39); Radislav Krstic´ (IT-98–33); Dragoljub Kunarac, Radomir Kovac, Zoran Vukovic´ (IT-96–23 & 23/1); Zoran Kupreškic´, Mirjan Kupreškic´, Drago Josipovic´, Vladimir Šantic´, Kupreškic´ et al (IT-95–16) ‘Lašva Valley’; Dragomir Miloševic´ (IT-98–29/1); Slobodan Miloševic´ (IT-02–54) ‘Kosovo, Croatia and Bosnia’; Dragan Nikolic´ (IT-94–2) ‘Sušica Camp’; Momir Nikolic´ (IT-02–60/1) ‘Srebrenica’; Dragan Obrenovic (IT-02–60.2), Biljana Plavšic´ (IT-00–39 & 40/1) ‘Bosnia and Herzegovina’; Duško Sikirica, Damir Došen, Dragan Kolundžija, Sikirica et al (IT-95–8) ‘Keraterm Camp’; Blagoje Simic´, Miroslav Tadic´, Simo Zaric´, Simic´ et al (IT-95–9) ‘Bosanski Šamac’; Milan Simic´ (IT-95–9/2) ‘Bosanski Šamac’; Milomir Stakic´ (IT-97–24) ‘Prijedor’; Momir Talic´ (IT-99–36/1) ‘Krajina’; Stevan Todorovic´ (IT-95–9/1) ‘Bosanski Šamac’; Mitar Vasiljevic´ (IT-98–32) ‘Višegrad’; Dragan Zelenovic´ (IT-96–23/2) ‘Focˇ a’; Paško Ljubicˇ ic´ (IT-00–41); Radovan Stankovic´ (IT-96– 23/2); and Milorad Trbic´ (IT-05–88/1). 96 Those accused of genocide where the allegations included children among the victims include: Vidoje Blagojevic´ (IT-02–60); Radoslav Brđanin (IT-99–36) ‘Krajina’; Milan Kovacˇ evic´ (IT-97–24); Momcˇ ilo Krajišnik (IT-00–39); Radislav Krstic´ (IT-98–33); Slobodan Miloševic´ (IT-02–54) ‘Kosovo, Croatia and Bosnia’; Momir Nikolic´ (IT02–60/1) ‘Srebrenica’; Dragan Obrenovic´ (IT-02–60/2) ‘Srebrenica’; Biljana Plavšic´ (IT-00–39 & 40/1) ‘Bosnia and Herzegovina’; Duško Sikirica, Sikirica et al (IT-95– 8) ‘Keraterm Camp’; Milomir Stakic´ (IT-97–24) ‘Prijedor’; Momir Talic´ (IT-99–36/ 1) ‘Krajina,’ Milorad Trbic´ (IT-05–88/1).

120 International Courts and Child-Victims of Generic Atrocity Crimes Muslim men, women and children.97 Dragan Nikolic´ was charged with crimes against humanity for participating in the persecution of Muslims and other non-Serbs, including women and children.98 Children are mentioned among the victims of two counts of genocide and complicity in genocide in the socalled ‘Krajina’ indictment against Mormir Talic and Radoslav Brđanin, referring to the Trnopolje Camp, where detainees were predominantly women, children and the elderly.99 In many cases, the factual allegations concerned are legally qualified, either cumulatively or alternatively, under different counts, following the standard ICTY practice. For instance, in the indictment of Dragan Zelenovic´, the brutal gang rape of a 15-year-old girl is cumulatively qualified as a crime against humanity and a war crime.100 The ICTY practice also demonstrates that evidence of crimes against children can surface during the trial. This happened in the case of Martic, where the 97 ‘On the morning of 23 October 1993, HVO forces under Ivica RAJIC’s command attacked Stupni Do. After gaining control of various parts of the village, HVO soldiers forced the civilians out of their homes and hiding places, robbed them of their valuables, sexually assaulted Muslim women and willfully killed at least thirty-one Muslim men, women and children. Three Muslim girls were killed while hiding in a small cellar. After four Muslims in their group were first executed by being shot or having their throat cut, twelve other Muslim villagers were forced into a shed which the HVO soldiers then set on fire, but were able to escape. (A list of the victims killed and the women sexually assaulted is attached as confidential Annex 1.) During and following the attack, almost the entire village was extensively and wantonly destroyed.’ Prosecutor v Ivica Rajic (Amended Indictment) IT-95–12-PT, para 16 (ICTY 2004) [http://www.icty.org/x/cases/rajic/ind/en/raj-ai040114e.pdf]. 98 ‘As part of the persecutions, DRAGAN NIKOLIC detained Muslim and non-Serbs at the Susica camp and assisted in the forcible transfer of those detained at the camp from the Vlasenica municipality. At the end of June 1992, large numbers of the male detainees were transferred from the camp to the larger Batkovic detention camp near Bijeljina in northeastern Bosnia and Herzegovina. Most of the women and children detainees were transferred either to Kladanj or Cerska in Bosnian Muslim controlled territory.’ Prosecutor v Dragan Nikolic´ (Third Amended Indictment) IT-94–2-PT, para 5 (ICTY 2003) [http://www.icty.org/x/cases/dragan_nikolic/ind/en/nik-3a i031031e.pdf]. 99 Prosecutor v Momir Talic´ and Radoslav Brđanin (Fourth Amended Indictment) IT99–36-PT, para 42 (ICTY 2001) [http://www.icty.org/x/cases/talic/ind/en/ brd-4ai011210e.pdf]. ‘At the Trnopolje Camp detainees were predominantly women, children and the elderly. However, younger men were also detained. Male detainees were interrogated and beaten. Detainees were beaten in front of other detainees. Female detainees were raped.’ 100 ‘Another witness, FWS-87, a 15 year old, was interrogated by DRAGAN ZELENOVIC and three unidentified soldiers in a room at Buk Bijela. During the interrogation, they accused FWS-87 of not telling the truth. The interrogators removed her clothing and then, each one raped her. The nature of the rape was vaginal penetration. The first soldier also threatened her by putting a gun to her head. FWS-87 experienced severe pain during the assault, followed by heavy vaginal bleeding.’ Prosecutor v Dragan Zelenovic´ (Amended Indictment) IT-96–23/2-I, para 5.5 (ICTY 2001) [http://www.icty.org/x/cases/zelenovic/ind/en/zel-amin010420up070117. pdf].

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judgment made clear that children were among the victims, even though this had not been explicitly charged.101 In terms of sentencing, it appears that the ICTY judges usually considered the age of young victims as an aggravating circumstance, but not necessarily in a systematic way.102 It is noteworthy in this regard that the ICTY sentencing practice has been largely characterised in general as inconsistent.103 Also, as in the case of its predecessors, the lack of consistency in terminology at the ICTY and the frequent omissions of the ages of young victims hampered the systematic capturing of crimes committed against children. The use of ambiguous terms without age specification at times obscures the fact that the victims were probably children. One example of this can be seen in the Kupreškic´ case, where the indictment refers to a victim, named Dženana, as a ‘daughter’, masking her age; it is only in the judgment that the fact that Dženana was a ‘little girl’, and therefore a child, is revealed.104 101 While there was no mention of children in the indictment, in the Trial Chamber judgment, under section ‘II. Factual Findings: 3. Counts 1, 3 to 4, and 12 to 14 – Persecution, murder, destruction and plunder (Articles 3 and 5)’, the court refers to children: ‘The evidence shows that soldiers present in Škabrnja threatened villagers hiding in the basements, saying “Come out you Ustaše, we are going to slaughter you all” and that even women and children were being called “Ustašas” and were insulted by soldiers’. Prosecutor v Milan Martic´ (Judgment, Trial Chamber) IT-95–11-T, para 398 (ICTY 2007) [http://www.icty.org/x/cases/martic/tjug/en/070612.pdf];Prosecutor v Milan Martic´ (Amended Indictment) IT-95–11, para 21 (ICTY 2003) [http://www.icty.org/x/cases/martic/ind/en/mar-2ai030909e.pdf]. 102 See, for instance, Prosecutor v Blaškic´ (Judgment, Trial Chamber) IT-95–14-T, para 786 (ICTY 2000) [https://www.icty.org/x/cases/blaskic/tjug/en/bla-tj000303e. pdf], in which the Trial Chamber highlighted that the effect of the crimes upon the victims, and more particularly the targeting of women and children within the civilian population, constituted an aggravating circumstance. See also David Tolbert, ‘Children and International Criminal Law: The Practice of the International Tribunal for the former Yugoslavia’, in International Criminal Accountability and the Rights of Children, edited by Karin Arts and Vesselin Popvski (The Hague: Hague Academic Press, 2006). 103 See notably Uwe Ewald, ‘“Predictably Irrational’ – International Sentencing and its Discourse against the Backdrop of Preliminary Empirical Findings on ICTY Sentencing Practices’, International Criminal Law Review vol 10, no 3 (2010): 365–402. See also Barbora Holá, Catrien Bijleveld and Alette Smeulers, ‘Consistency of International Sentencing: ICTY and ICTR Case Study’, European Journal of Criminology vol 9, no 5 (2012): 539–552. Barbora Holá, Catrien Bijleveld and Alette Smeulers conducted a quantitative study to empirically investigate the consistency of international sentencing and concluded that sentencing in international criminal practice does not appear to be less consistent than sentencing under domestic jurisdictions. 104 See Prosecutor v Zoran Kupreškic´, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Dragan Papic and Vladimir Santic (First Amended Indictment) IT-95–16, para 30 (ICTY 1998) [http://www.icty.org/x/cases/kupreskic/ind/en/kup-1ai980209e. pdf]. ‘As the Pezer family fled toward the forest, VLATKO KUPRESKIC and other HVO soldiers … wounded Dzenana Pezer, the daughter of Ismail and Fata Pezer, and another woman. Dzenana Pezer fell to the ground and Fata Pezer returned to assist her daughter …’ (emphasis added) The trial judgment exposed the identity of Dzenana Pezer as a child: ‘They were fired upon from behind as they were in the wood.

122 International Courts and Child-Victims of Generic Atrocity Crimes In addition, crimes against children were rarely disaggregated from other crimes committed against other victims. Even where children are specifically identified as victims in a judgment, they are often subsumed in more general victim categories in subsequent sections. For instance, in the Kupreškic´ indictment, there is an initial mention of two ‘young’ daughters, members of the attacked Puscul family.105 In subsequent mentions, they are subsumed in the category of ‘family members’, with no reference to the fact that they are children.106 Ultimately, there were several convictions for crimes committed against children at the ICTY. Among those was the abovementioned Ivica Rajic, who was convicted on several counts of war crimes for his participation in the Stupni Do attack, where civilians – including children – were indiscriminately targeted as part of a mass murder campaign.107 Similarly, Dragomir Miloševic´ was cumulatively convicted of war crimes and crimes against humanity for the indiscriminate killing of children and babies by shelling.108 Some of the individuals whose indictments listed child-victims were acquitted of these charges. Examples include Radoslav Brđanin109 and Momcˇ ilo Krajišnik – the latter was convicted on several counts of crimes against humanity, but was acquitted on the charges of genocide and war crimes, which were those concerning children.110

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Witness CF was wounded in the neck and shoulder. Fata fell dead to his left and remained on the spot; the little girl (Dženana) was picked up and the rest went on.’ Prosecutor v Zoran Kupreškic´, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Dragan Papic and Vladimir Santic (Judgment, Trial Chamber) IT-95–16-T, para 458 (ICTY 2000) [http://www.icty.org/x/cases/kupreskic/tjug/en/kup-tj000114e. pdf]. Prosecutor v Zoran Kupreškic´, Mirhan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Dragan Papic and Vladimir Santic (First Amended Indictment) IT-95–16, para 32 (ICTY 1998) [http://www.icty.org/x/cases/kupreskic/ind/en/kup-1ai980209e.pdf]. Ibid, para 35. ‘When a group of Muslims (one man, nine women and three children) attempted to flee, the man was shot and killed … and two of the women and all three children were murdered in front of their house. Three of the young Muslim women who escaped the initial encounter … were then found hiding … and murdered.’ Prosecutor v Ivica Rajic (Judgment, Trial Chamber) IT-95–12-S, para 84 (ICTY 2006) [http://www. icty.org/x/cases/rajic/tjug/en/raj-tj0060508e.pdf]. Prosecutor v Dragomir Miloševic´ (Judgment, Trial Chamber) IT-98–29/1-T, para 546 (ICTY 2007) [https://www.icty.org/x/cases/dragomir_milosevic/tjug/en/071212. pdf]. ‘Immediately after the blast, the injured people were taken by civil defence workers to a shelter … 1955 W-107 testified that all she recalled was the screaming and moaning of many people around her in the shelter, among them children and small babies.’ Prosecutor v Radoslav Brđanin (Judgment, Trial Chamber II) IT-99–36-T (ICTY 2004) [http://www.icty.org/x/cases/brdanin/tjug/en/brd-tj040901e.pdf]. ‘[T]he detainees were predominantly non able-bodied men, women and children. Women were systematically raped …’ Prosecutor v Radoslav Brđanin (Sixth Amended Indictment) IT-99–36-T, para 42 (ICTY 2003) [http://www.icty.org/x/cases/brdanin/ ind/en/brd-6ai031209e.pdf]. Prosecutor v Momcˇilo Krajišnik (Judgment, Trial Chamber) IT-00–39-T (ICTY 2006) [http://www.icty.org/x/cases/krajisnik/tjug/en/kra-jud060927e.pdf]; Prosecutor v Momcˇilo Krajišnik and Biljana Plavšic´ (Amended Consolidated Indictment) IT-00–

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Overall, there are three main categories of references to crimes committed against children in the ICTY case law: those committed as part of other crimes directed against the civilian population in general or targeting a specific group; those specifically targeting boys for killings; and those pertaining to sexual crimes against girls. 3.1 Crimes against children targeting the civilian population in general or a specific group Many of the recorded crimes against children were captured by the ICTY as crimes targeting the civilian population in general, as one of the elements of crimes against humanity. For instance, in Mladic, the Trial Chamber explicitly noted that the age of the victims was one of the factors considered in determining their status as civilians.111 But mostly, the crimes committed against children documented by the ICTY followed ethnic or religious lines. In many excerpts, children are identified as having been targeted because they belonged to a particular ethnic or religious group (ie, Croats, Serbs or Bosnians/Bosniaks/ Muslims), as in the following situation:112 At least one hundred defenseless Bosnian Muslim civilians, including women, children, the elderly and the infirm, were killed and many wounded or harmed in their homes, in their yards, while attempting to escape from the HVO attacks or bombardments or after they had been detained by the HVO. At times, the discriminatory intent was somehow revised, with children targeted alongside others because their identity differed from that of their perpetrators, reflecting the discriminatory patterns at play in the former Yugoslavia – especially in Bosnia-Herzegovina, where three different ethnic/religious groups had cohabitated before the conflicts. An example is found in the indictment of Stevan Todorovic, where ‘non-Serb children’ were among those unlawfully deported and forcibly transferred, along with other older non-Serbs.113

39 & 40-PT (ICTY 2002) [http://www.icty.org/x/cases/krajisnik/ind/en/kra-ca i020307e.pdf]. 111 Prosecutor v Ratko Mladic´ (Judgment, Trial Chamber) Case IT-09–92-T (ICTY 2017), para 3194. 112 Prosecutor v Dario Kordic, Thiomir Blaskic, Mario Cerkez, Ivica Santic, Pero Skopljak, and Zlatko Aleksovski (Indictment) IT-95–14, para 24 (ICTY 1995) [http://www. icty.org/x/cases/aleksovski/ind/en/bla-ii951110e.pdf]. 113 ‘… Stevan TODOROVIC planned, instigated, ordered, committed … the unlawful deportation and forcible transfer of hundreds of Bosnian Croat, Bosnian Muslim and other non-Serb civilians, including women, children and the elderly, from their homes …’ Prosecutor v Blagoje Simic´, Milan Simic´, Morislav Tadi, Stevan Todorovic´ and Simo Zaric´ (Second Amended Indictment) IT-95–9, para 38 (ICTY 1998) [http://www. icty.org/x/cases/todorovic/ind/en/todorovic_981119eng_indictment.pdf].

124 International Courts and Child-Victims of Generic Atrocity Crimes The ICTY case law records how children were victims of different crimes alongside other civilians and also as part of groups discriminated against on the basis of their religious, ethnic or national identity (eg, as Muslims). These included deprivation of access to basic services – notably public services such as the supply of electricity or water.114 Alongside their families and communities, children were deported, expelled from their villages or cities, and deprived of liberty. Not only were the health and wellbeing of children undermined by the ongoing conflict; in some cases, the ICTY established that children were also deliberately deprived from access to basic services based on their particular ethno-religious identity: ‘When a doctor tried to negotiate the evacuation of two injured children, one of whom had her legs completely shattered, he was told over the radio “Die, balijas, we’re going to kill you anyway.”’115 Frequent shelling and sniping posed a persistent threat, even when performing ordinary daily activities, as can be seen from this extract: ‘It was very hard because there were children who were wounded in front of the school, while riding bicycles, in the streets.’116 Shelling and sniping killed and wounded thousands of civilians of all sexes and all ages, including children and the elderly. In Galic, the indictment mentions that:117 ‘The Sarajevo Romanija Corps directed shelling and sniping at civilians who were tending vegetable plots, queueing for bread, collecting water, attending funerals, shopping in markets, riding on trams, gathering wood, or simply walking with their children or friends.’ Ultimately, in its judgment, the Trial Chamber found that at least 295 children had been killed and a further 1,251 wounded during the period pertaining to the indictment; and also that they, along with women, were the predominant target of the violence.118 The omnipresent threat of violence significantly disrupted life and resulted in large-scale evacuations of women and children, the imposition of curfews and the shutting down of schools.119 Children of certain ethnic/religious identities were barred from attending school – for instance, in Prijedor.120 Many schools 114 Prosecutor v Momcˇilo Krajišnik (Judgment, Trial Chamber) IT-00–39-T, para 786 (ICTY 2006) [http://www.icty.org/x/cases/krajisnik/tjug/en/kra-jud060927e.pdf]. 115 Prosecutor v Radoslav Brđanin (Judgment, Trial Chamber II) IT-99–36-T, para 403 (ICTY 2004) [http://www.icty.org/x/cases/brdanin/tjug/en/brd-tj040901e.pdf]. 116 Prosecutor v Dragomir Miloševic´ (Judgment, Trial Chamber) IT-98–29/1-T, para 769 (ICTY 2007) [https://www.icty.org/x/cases/dragomir_milosevic/tjug/en/071212. pdf]. 117 Prosecutor v Stanislav Galic (Indictment) IT-98–29-I, para 4 (ICTY 1998) [http:// www.icty.org/x/cases/galic/ind/en/gal-ii990326e.pdf]. 118 Prosecutor v Stanislav Galic´ (Judgment, Trial Chamber) IT-98–29-T, paras 579, 592 (ICTY 2003) [https://www.icty.org/x/cases/galic/tjug/en/gal-tj031205e.pdf]. 119 Prosecutor v Tihomir Blaškic´ (Judgment, Appeals Chamber) IT-95–14-A, para 44 (ICTY 2004) [https://www.icty.org/x/cases/blaskic/acjug/en/bla-aj040729e.pdf]. 120 ‘The Chamber also finds that Serb authorities denied Muslims and Croats equal access to public services … by barring children of Muslims and Croats from attending public school in Prijedor municipality.’ Prosecutor v Momcˇilo Krajišnik (Judgment, Trial Chamber) IT-00–39-T, para 786 (ICTY 2006) [http://www.icty.org/x/cases/kra jisnik/tjug/en/kra-jud060927e.pdf].

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were transformed into internment or torture camps, including for children.121 Some communities established makeshift neighbourhood schools in cellars to minimise the distance that children had to travel and thus protect them from exposure to sniping and shelling.122 Children were also forcibly exposed to egregious abuses and crimes:123 Staff Security Administration informed that members of the EMD ‘ventured ahead of the defence line, killed many Chetniks, slit the throats of two of them and carried their heads through the villages of the Krivaja river, showing them to villagers and schoolchildren’. Living through such crimes and in constant fear of an attack caused severe mental health issues, especially for those children who had witnessed loved ones disappear or being killed. In the case against Biljana Plavsic, one psychotherapist testified before the ICTY that many of the child-victims of the 1992 persecutions, which Plavsic acknowledged, suffered from depression or incontinence and had problems concentrating and studying, leading them to isolate themselves from others.124 3.2 Killing of boys The ICTY jurisprudence highlights how boys were targeted for killings, especially if it was felt that they were contributing to armed efforts.

121 Prosecutor v Dragan Zelenovic´ (Amended Indictment) IT-96–23/2-I, para 5.5 (ICTY 2001) [http://www.icty.org/x/cases/zelenovic/ind/en/zel-amin010420up070117. pdf] ‘[A] group of 200 Bosnian Muslim men, women and children were detained at the Grabovica School. Women and children stayed there for one night.’ Prosecutor v Radoslav Brđanin (Judgment, Trial Chamber II) IT-99–36-T, para 817 (ICTY 2004) [http://www.icty.org/x/cases/brdanin/tjug/en/brd-tj040901e.pdf]. ‘[A]bout 160 detainees in Karakaj school were executed by Serb soldiers, and another 190 detainees were transported … and executed ….’ Prosecutor v Momcˇilo Krajišnik (Judgment, Trial Chamber) IT-00–39-T, para 374 (ICTY 2006) [http://www.icty.org/x/cases/ krajisnik/tjug/en/kra-jud060927e.pdf]. Additionally, ‘the women and children were detained in the Kalinovik Primary School, which is located in the centre of Kalinovik near the police station … citizens from the municipality of Gacko … were also detained in the Kalinovik Primary School.’ Prosecutor v Dragoljub Kunarac and Radomir Kovacˇ (Third Amended Indictment) IT-96–23-PT, para 1.9 (ICTY 1999) [http://www.icty.org/x/cases/kunarac/ind/en/kun-iii991108e.pdf]. 122 ‘Schools were closed, and temporary neighbourhood schools were established in cellars, to minimize the distance that children had to travel to their classes, and therefore their exposure to sniping and shelling.’ Prosecutor v Stanislav Galic´ (Judgment, Trial Chamber) IT-98–29-T, para 222 (ICTY 2003) [https://www.icty.org/x/cases/ga lic/tjug/en/gal-tj031205e.pdf]. 123 Prosecutor v Rasim Delic´ (Judgment, Trial Chamber) IT-04–83-T, para 503 (ICTY 2008) [http://www.icty.org/x/cases/delic/tjug/en/080915.pdf]. 124 See Prosecutor v Biljana Plavsic, referring to the testimony of Teufika Ibrahimefendic. Prosecutor v Biljana Plavsic (Sentencing Judgment) IT-00–39&40/1, para 49 (ICTY 2003) [https://www.icty.org/x/cases/plavsic/tjug/en/pla-tj030227e.pdf].

126 International Courts and Child-Victims of Generic Atrocity Crimes For instance, Dragomir Miloševic´ was charged and convicted by a Trial Chamber for spraying three boys with bullets and causing the death of one of them, Adnan Kasapovic´.125 On appeal, the Miloševic´ defence argued that the boys had been mistaken for combatants, since it was widely known that boys had taken up arms for their faction; and that therefore, the three boys had not been the subject of an indiscriminate attack, but rather discriminately targeted as combatants:126 As a result, he submits that because it was known that young boys bore arms at the time, one of the reasonably possible conclusions ‘would be that the three boys were on guard as members of the ABiH and when they were passing by the passage in the vicinity of Vemex they were spotted by SRK members and legally targeted as military objectives.’ The Appeals Chamber ultimately dismissed Miloševic´’s ground for appeal on the basis that Kasapovic´ was a young, unarmed civilian who could not be mistaken for a combatant by a sniper.127 One particularly harrowing set of crimes committed against children found in the ICTY case law concerns the events in Srebrenica in July 1995. Children in general were deemed to have been forcefully deported, together with women and older people,128 125 Prosecutor v Dragomir Miloševic´ (Amended Indictment, Trial Chamber) IT-98–2911PT, 1 (ICTY 2006) [http://www.icty.org/x/cases/dragomir_milosevic/ind/en/dm il-ai061219.pdf]. In the indictment, this particular crime was qualified cumulatively as a war crime and crime against humanity. Specifically, the sniping of 16-year-old Kasapovic´ fell under the counts of terror, a war crime (Count 1); murder, a crime against humanity (Count 2); inhumane acts, a crime against humanity (count 3); and unlawful attacks on civilians, a war crime (Count 4). The Trial Chamber subsequently found Miloševic´ guilty on Counts 1–3, acquitting him on Count 4; Prosecutor v Dragomir Miloševic´ (Judgment, Trial Chamber) IT-98–29/1-T, para 1006 (ICTY 2007) [https://www.icty.org/x/ca ses/dragomir_milosevic/tjug/en/071212.pdf]. 126 Prosecutor v Dragomir Miloševic´ (Judgment, Appeals Chamber) IT-98–29/1-A, para 202 (ICTY 2009) [http://www.icty.org/x/cases/dragomir_milosevic/acjug/en/ 091112.pdf]. 127 Ibid, para 207. 128 Prosecutor v Radislav Kristic (Judgment) IT-98–33-T, para 531 (ICTY 2001) [https:// www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e.pdf]. The combined experiences of being separated from loved ones and becoming displaced were found to be mentally harmful predominantly for women and children, as underlined in Prosecutor v Vidoje Blagojevic´ and Dragan Jokic´. The court noted: ‘… the suffering of the women, children and elderly people who were cruelly separated from their loved and forcibly transferred, and the terrible consequences that this had on their life, reaches the threshold of serious mental harm under Article 4(2)(b) of the Statute… the level of mental anguish suffered by the women, children and elderly people who were forcibly displaced from their homes – in such a manner as to traumatise them and prevent them from ever returning – obliged to abandon their property and their belongings as well as their traditions and more in general their relationship with the territory they were living on, does constitute serious mental harm.’ Prosecutor v Vidoje Blagojevic´ and Dragan Jokic´ (Judgment, Trial Chamber) IT-02–60-T, para 652 (ICTY 2005) [https://www.icty.org/x/cases/blagojevic_jokic/tjug/en/bla -050117e.pdf].

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with the Obrenovic´ judgment noting that: ‘Children who witnessed separations suffer from a range of problems years after the events.’129 However, older boys were found to have been specifically targeted to be killed alongside older men ‘of military age’ – apparently all those between 16 and 60 years old.130 The Radislav Kristic´ judgment described how men and boys of ‘military age’ were abducted:131 A concerted effort was made to capture all Muslim men of military age. In fact, those captured included many boys well below that age and elderly men several years above that age that remained in the enclave following the takeover of Srebrenica. These men and boys were targeted regardless of whether they chose to flee to Potocari or to join the Bosnian Muslim column. Boys and men were then transported to remote areas, summarily killed and buried in mass graves; while women and other children were taken to civilian internment centres and also subjected to abuse.132 The Krstic judgment clarifies that:133 One witness testified about the slaughtering of a baby. Expert reports on the exhumations show that a small number of the victims were under the age of fifteen or over sixty-five year old. Although those victims may not legally qualify as ‘military aged men’, there were obviously treated by the Bosnian Serb forces as if of military age. The testimony of one witness in the Krstic´ trial recounts the attacks on Potocˇ ari, where Serbian soldiers would select people from a crowd of gathered civilians and take them away. Sometimes those taken would return; in other instances, they would be found dead. Such was the case for one mother whose three male

129 Prosecutor v Dragan Obrenovic´ (Judgment, Trial Chamber) IT-02–60/2-S, para 76 (ICTY 2003) [http://www.icty.org/x/cases/obrenovic/tjug/en/obr-sj031210e. pdf]. 130 On the importance of the targeting of Bosnian Muslims men of military age in establishing the mens rea required for genocide, see notably Antonio Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), 104–105. On the age range, see Prosecutor v Vidoje Blagojevic, Dragan Obrenovic´, Dragan Jokic, Momir Nikolic, ‘VIDOJE BLAGOJEVIC, DRAGAN OBRENOVIC, MOMIR NIKOLIC, and DRAGAN JOKIC … were members of and knowingly participated in a Joint Criminal Enterprise, the common purpose of which was: to forcibly transfer the women and children from the Srebrenica enclave to Kladanj … and to capture, detain, summarily execute by firing squad, bury, and rebury thousands of Bosnian Muslim men and boys aged 16 to 60 from the Srebrenica enclave …’ Prosecutor v Vidoje Blagojevic, Dragan Obrenovic´, Dragan Jokic, Momir Nikolic (Amended Joinder Indictment, Trial Chamber) IT-02–60-PT, para 30 (ICTY 2002) [https://www.icty.org/x/cases/obre novic/ind/en/nik-ai020527e.pdf]. 131 Prosecutor v Radislav Kristic (Judgment) IT-98–33-T, para 85 (ICTY 2001) [http s://www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e.pdf]. 132 Ibid, para 54. 133 Ibid, 179, footnote 1149.

128 International Courts and Child-Victims of Generic Atrocity Crimes children – two in their teens and one a young child – were taken away and later found by their mother with their throats slit.134 Yet even if there were many boys among those killed, they are sometimes missing from some of the descriptions given – for instance, in the following excerpt referring to what has become known as ‘Srebrenica syndrome’, a pathology associated with disappearance:135 The impact of the events of Srebrenica upon the lives of the families affected has created what is known as the ‘Srebrenica syndrome’. The greatest and most stressful traumatic event for Srebrenica survivors is the disappearance of a large number of men, such that every woman suffered the loss of a husband, a father, brothers or uncles. In addition to the loss of numerous relatives, many of the families do not know the truth regarding the fate of their family members and are still waiting for news. Children who witnessed separations suffer from a range of problems years after the events. Specifically for the crimes committed in Srebrenica, Krstic´ was ultimately cumulatively convicted for genocide and crimes against humanity for his role in commanding the Drina Corps in the systematic killing of 7,000 to 8,000 men and boys, along with the mass displacement of 25,000 women, children and elderly persons.136 3.3 Sexual crimes In the ICTY jurisprudence, cases of rape and other sexual crimes are among those in which child-victims, specifically girls, are usually identified as victims; although they are sometimes grouped with women or more broadly defined as female victims without a systematic age distinction. The following excerpt provides an example:137 Many of the female detainees were subjected to sexual abuse during their detention at the Foca High School. From the second day of their detention, every evening, groups of Serb soldiers sexually assaulted, including gang-rape, some of the younger women and girls in class-rooms or apartments in neighbouring buildings. One case that highlighted the specific suffering of female children, and one of the most significant ICTY cases involving child-victims, is Focˇa. It concerned the rape 134 Ibid, para 44. 135 Prosecutor v Dragan Obrenovic´ (Judgment, Trial Chamber) IT-02–60/2-S, para 76 (ICTY 2003) [http://www.icty.org/x/cases/obrenovic/tjug/en/obr-sj031210e.pdf]. 136 Prosecutor v Radislav Kristic (Judgment) IT-98–33-T, para 727 (ICTY 2001) [https:// www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e.pdf]. 137 Prosecutor v Zoran Vukovic´ (Amended Indictment) IT-96–23/1-PT, para 6.4 (ICTY 1999) [http://www.icty.org/x/cases/kunarac/ind/en/vuk-1ai000221-e.pdf], emphasis added.

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and sexual enslavement of four girls, including one victim known under the pseudonym ‘AB’.138 AB was aged only 12 and the other victims were 15, 16 and 19 years old. All four girls were abducted, detained for months, repeatedly raped, beaten, threatened, psychologically oppressed and kept in constant fear.139 In the judgment, the ICTY found that Muslim women and girls were directly targeted for rape by Serbian soldiers.140 The trial judgment describes how soldiers would freely enter civilian internment camps and single out women and girls to ‘take out’ to rape them. These soldiers claimed that they had a right to do so, citing a document circulated by one of their superiors.141 The trial judgment lists a litany of crimes suffered by the girls142 and notes that some perpetrators of rape were very aware of the young age of their victims:143 Zoran Vukovic … personally rap(ed) at least two Muslim girls, FWS-75 and FWS-50. While raping FWS-50, a girl whom he knew was of the same age as his own daughter, Zoran Vukovic boasted that he could have done much worse to her and that she was lucky about this coincidence. Upon conviction, cumulatively for crimes against humanity and war crimes, at the sentencing stage, the Trial Chamber considered the young age of the victims as an aggravating factor in sentencing.144 It also considered as aggravating factors the length of time for which the rapes were repeated; the fact that there were multiple 138 Prosecutor v Dragoljob Kunarac, Radomir Kovac and Zoran Vukovic included charges against Kovac for crimes against humanity and war crimes with respect to the rape and sexual enslavement. Prosecutor v Dragoljob Kunarac, Radomir Kovac and Zoran Vukovic (Foca case) Judgement, Trial Chamber) IT-96–23-T & IT-96–23/1-T, para 746 (ICTY 2001) [https://www.icty.org/x/cases/kunarac/tjug/en/kun-tj010222e. pdf]. 139 ‘… Dragoljub Kunarac, together with Pero Elez and some of their soldiers, took FWS101, FWS-186, FWS-191 and 5 other young girls and women from the Primary School in Kalinovik and drove them to … Foca. There the girls and young women … some of them as young as twelve and fifteen years of age, were divided among the soldiers present for the purpose of sexual assault …’ Prosecutor v Dragoljub Kunarac and Radomir Kovacˇ (Third Amended Indictment) IT-96–23-PT, para 9.1 (ICTY 1999) [http://www.icty.org/x/cases/kunarac/ind/en/kun-iii991108e.pdf]. 140 ‘The accused acted intentionally and with the aim of discriminating between the members of his ethnic group and the Muslims, in particular its women and girls … evidenced by the occasions when the accused told women, that they would give birth to Serb babies …’ Prosecutor v Dragoljob Kunarac, Radomir Kovac and Zoran Vukovic ((Foca case) Judgment, Trial Chamber) IT-96–23-T & IT-96–23/1-T, para 654 (ICTY 2001) [https://www.icty.org/x/cases/kunarac/tjug/en/kun-tj010222e. pdf]. 141 Ibid, para 39. 142 Ibid, para 724. ‘Upon arrival, the girls were told where to sleep. FWS-191 was assigned to Kunarac, he ordered her to undress and he tried to rape her while his bayonet was placed on the table … Kunarac knew that she did not consent, and he rejoiced at the idea of being her “first”, thereby degrading her more.’ 143 Ibid, para 591. 144 Ibid, paras 874, 879.

130 International Courts and Child-Victims of Generic Atrocity Crimes perpetrators; and, related to the age of the victims, the fact that the crimes had been ‘committed against particularly vulnerable and defenceless girls’.145 On appeal, it was argued by the defence that the Trial Chamber had erred by considering the age of certain of the victims, arguing inter alia that there was no provision allowing for the aggravation of the sentence for a crime committed against a person over 14 years of age. The Appeals Chamber rejected the defence’s arguments, finding that the practice in the former Yugoslavia was for convictions for rape of persons under 18 to result in longer sentences; and that in any case, the Trial Chamber had ‘an inherent discretion to consider the victim’s age as an aggravating factor’.146 Importantly, the ICTY jurisprudence underlines the grave consequences of rape, both physical and mental, especially for younger victims. The following excerpt captures the long-term consequences that may result from cases of rape:147 Another important factor is the physical and mental trauma suffered by the victims, long after the commission of the crime. In 1992, FWS-75 and FWS87 were 25 and 15 years old, respectively. After their initial arrest, they were taken from one detention centre to another where they were repeatedly sexually abused … The victims of sexual abuse in the detention centres in Focˇ a suffered the unspeakable pain, indignity, and humiliation of being repeatedly violated, without knowing whether they would survive the ordeal. As a result of the violent sexual assaults, the physical and psychological health of many of the victims was seriously damaged. The women and girls in the detention centres lived in constant fear of repeated rapes and sexual assaults. Some became suicidal and others became indifferent to what happened to them. The scars left from the crimes committed against them were deep and might never heal. This, perhaps more than anything, speaks about the gravity of the crimes in this case. Importantly, the ICTY initiated many measures to protect victims, particularly the younger ones and those who were victims of rape or sexual violence. The identities of all the victims who remained alive were masked and pseudonyms were systematically used.148 145 Ibid. 146 Prosecutor v Dragoljub Kunarac, Radomir Kovac, Zoran Vukovic (Judgment, Appeals Chamber) IT-96–23 & IT-96–23/1-A, para 355 (ICTY 2002) [http://www.icty. org/x/cases/kunarac/acjug/en/kun-aj020612e.pdf]. The Appeals Chamber added that even though some of the victim’s ages were over 18, this discretion extended ‘to considering’ those victims at 19 and 20 ‘by reason of the closeness of that age to the protected age of special vulnerability’. 147 See Prosecutor v Dragan Zelenovic´ (Judgment, Appeals Chamber) IT-96–23/2-S, para 40 (ICTY 2007) [http://www.icty.org/x/cases/zelenovic/acjug/en/zel-sj071031e. pdf]. 148 See David Tolbert, ‘Children and International Criminal Law: The Practice of the International Tribunal for the former Yugoslavia’, in International Criminal Accountability and the Rights of Children, edited by Karin Arts and Vesselin Popvski (The Hague: Hague Academic Press, 2006).

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4 The International Criminal Tribunal for Rwanda The international crimes committed in Rwanda in 1994 – the year that constitutes the temporal jurisdiction of the ICTR – left hundreds of thousands of children dead and injured, and even more scarred for life. Many of them witnessed terrible atrocities, as people were killed in the streets, houses were raided and their communities and the country descended into turmoil. Those identified as belonging to the Tutsi group were targeted for killing, irrespective of age. Although estimates of the number of victims of this genocide vary greatly – between 500,000 and 1 million were killed – it is certain that many were children in a country where about half of the population comprises children.149 Hélène Dumas estimates that children constituted the majority of victims.150 As at the ICTY, despite the overwhelming evidence showing that children were frequently among the victims and the fact that several trials mentioned crimes committed against children as part of the other crimes reviewed, not a single ICTR case or trial focused specifically on crimes committed against children.151 In a genocide in which at least tens of thousands of children were massacred over a span of about 100 days – and probably thousands more sexually assaulted, mutilated or violated in some form or other – one wonders how any measure of accountability could have reasonably addressed the breadth and appalling nature of these crimes; but it seems that the ICTR did not even 149 As of 2022, 39% of the population of Rwanda were aged up to 14 years old and 31% between 10 and 24 years. The age demographics have not massively varied over the last decades; it is therefore reasonable to estimate that about half of the population in Rwanda in 1994 was made up of children. United Nations Population Fund, World Population Dashboard [World Population Dashboard (unfpa.org)]. 150 Based on a review of the Ministry of Local Government, Hélène Dumas notes that ‘… children under 15 accounted for almost 38% of those who survived, and over half were aged 20 or younger…’, citing Raporo y’imirimo y’ibarura ry’abacitse ku icumu ry’Itsembabwoko n’Itsembatsemba hagati ya tariki ya 01 Ukwakira 1990 na tariki ya 31 Ukoboza 1994, Kigali, 1998, p 12. Dumas also refers to a United Nations Children’s Fund (UNICEF) study conducted less than a year after the genocide, which assembled statistical data to obtain a picture of the extent and the nature of the trauma to which children had been exposed and found that almost 70% of those interviewed said they had witnessed killings or serious wounding. Hélène Dumas, ‘When Children Remember: A History of the Tutsi Genocide Through the Eyes of Children (1994– 2006)’, International Review of the Red Cross vol 101, no 910 (2019): 37–57, 39 [https://doi.org/10.1017/S1816383119000171] (footnotes omitted); citing A Dyregrov et al, ‘Trauma Exposure and Psychological Reactions to Genocide among Rwandan Children’, Journal of Traumatic Stress, vol 13, no 1 (2000) [https://doi. org/10.1023/A:1007759112499]. 151 The ICTR and ICTY shared their chief prosecutor until 2003. One of these chief prosecutors, Carla Del Ponte, following on the strategy initiated by her predecessors, clarified that the prosecution’s focus was on those bearing the highest responsibility – namely those holding high official positions, both de jure and de facto, as well some individuals responsible for particularly egregious crimes. See supra, Chapter 4, and Carla Del Ponte, ‘Prosecuting the Individuals Bearing the Highest Level of Responsibility’, Journal of International Criminal Justice vol 2, no 2 (June 2004): 516–519 [https://doi.org/10.1093/jicj/2.2.516].

132 International Courts and Child-Victims of Generic Atrocity Crimes attempt to draw particular attention to these crimes and to deliver justice to child-victims in particular. As no trial or indictment at the ICTR focused exclusively on crimes committed against children, the violations against them were not made salient, but rather subsumed in other crimes. At the sentencing stage, in cases involving crimes against children, the ICTR considered the age of some of the young victims as an aggravating circumstance; but it is difficult to assess whether it did so systematically. Almost all ICTR convictions involved genocide, which the court termed ‘the crime of crimes’ – arguably the most serious international crime.152 As a result, many of the sentences imposed by the ICTR were very heavy, often involving life imprisonment, which makes the impact of aggravating circumstances difficult to assess.153 Overall, there are two main categories of references to crimes committed against children in the jurisprudence of the ICTR: those committed as part of genocide; and those pertaining more specifically to sexual violence and crimes, often constitutive of the crime of genocide. 4.1 Children victims of genocide There are two main ways in which the ICTR referred to children as part of its findings on the crime of genocide. First, the court documented some of the crimes suffered by Tutsi children as part of the genocide against their group. Second, in showing how those who committed genocide had the requisite intent, the ICTR cited the perpetrators’ declarations that not even babies or foetuses should be spared. 4.1.1 Genocide against Tutsi children Confronted with large-scale massacres in which the exact number of victims was not determined, many extracts of the ICTR case law refer to children having been among the multitude of victims of genocidal attacks, as exemplified below: The attackers killed with a determination unlike before to such an extent that, apart from a few men, no woman or child was able to survive. Musema and

152 Prosecutor v Jean Kambanda (Judgment and Sentence) ICTR 97–23-S, para 16 (ICTR 1998) [https://www.refworld.org/cases,ICTR,3deba9124.html]. ‘The crime of genocide is unique because of its element of dolus specialis (special intent) which requires that the crime be committed with the intent “to destroy in whole or in part, a national, ethnic, racial or religious group as such”, as stipulated in Article 2 of the Statute; hence the Chamber is of the opinion that genocide constitutes the crime of crimes, which must be taken into account when deciding the sentence.’ 153 See notably Barbora Holá, Catrien Bijleveld and Alette Smeulers, ‘Punishment for Genocide – Exploratory Analysis of ICTR Sentencing’, International Criminal Law Review vol 11, no 4 (2011): 745–773.

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others shot into the crowd as such, individuals fell as they fled. Thousands were killed, including many of the witness’ relatives.154 The attacks resulted in thousands of deaths and numerous injuries to the men, women and children within the Church.155 On the way to the border and at the border, he stated that he had crossed streams and rivers in which the mutilated corpses of men, women and children floated by at an estimated rate of five bodies every minute. Dr. Zachariah stated under cross-examination that in his opinion the attacks were both ‘organised and systematic.’156 In some cases, the ICTR provides an approximate number of children killed – for example: soldiers … forcibly removed and killed approximately 25 children identified as Tutsi, including members of the Karenzi family.157 … Callixte Kalimanzira addressed the Hutu population …, stressing that all Tutsi who were still alive, including women, young girls, the elderly and children had to be killed because, if RPF won the war, they would, as potential witnesses, be the ones to denounce the killers. Immediately after the meeting, two old women and eight young girls were killed … Additionally, 10 to 15 Tutsi children were also killed following Callixte Kalimanzira’s order …158 Children were not merely among the victims, but also intentionally targeted, as demonstrated in the Musema and Gacumbitsi judgments: The witness testified that Musema asked where her children were and ordered them to be taken away to be drowned or put in bags and beaten like rats. Her two children, one and three years old, were then taken from the house. The witness followed the vehicle, throwing stones at it. Though she was later 154 Prosecutor v Alfred Musema (Judgment, Trial Chamber) ICTR-96–13, para 393 (ICTR 2000) [http://www.unictr.org/Portals/0/Case/English/Musema/judgem ent/000127.pdf]. 155 Prosecutor v Clément Kayishema and Obed Ruzindana (Judgment, Trial Chamber II) ICTR-95-T, para 42 (ICTR 1999) [http://www.worldcourts.com/ictr/eng/deci sions/1999.05.21_Prosecutor_v_Kayishema_1.pd]. Prosecutor v Obed Ruzindana, Judgment, Case no ICTR-95-T, 21 May 1999, paragraph 42 [http://www.unictr. org/Portals/0/Case/English/kayishema/judgement/990521_judgement.pdf]. 156 Prosecutor v Jean-Paul Akayesu (Judgment) ICTR-96–4-T (ICTR 1998), para 159 [http://www.unictr.org/Portals/0/Case/English/Akayesu/judgement/akay001. pdf]. 157 Prosecutor v Ildephonse Nizeyimana (Second Amended Indictment, Trial Chamber II) ICTR-2000–55, para 27 (ICTR 2010) [http://www.unictr.org/Portals/0/Case/ English/Nizeyimana/indictment/nizeyimana_indictment_101217e.pdf]. 158 Prosecutor v Callixte Kalimanzira (Indictment) ICTR-05–88, para 14 (ICTR 2005) [https://unictr.irmct.org/sites/unictr.org/files/case-documents/ictr-05-88/indictm ents/en/050721.pdf].

134 International Courts and Child-Victims of Generic Atrocity Crimes reunited with her own children, Witness I testified that she subsequently discovered sacks which had been thrown away in the forest containing bodies of dead children, some of which had been decapitated, as well as some children still alive, in the throes of death. The witness recognized many of these children whom she named at trial.159 Witness TAX testified that … Interahamwe … armed with bows, machetes, clubs and knives, had found a group of 15 Tutsi refugees in a classroom. The group comprised two adult men, children, women and young girls, including the witness. The attackers threw stones and small children at the bodies to discover survivors.160 It seems that the ICTR investigators and prosecutors were overwhelmed by the exorbitant number of crimes and victims, as the following extract gives a sense that they attempted to establish in court the overall picture, while also providing information on individual victims whenever they could:161 … The witness estimated that there were 300 men, 175 women, and many children, all taking refuge there … the compound was attacked by soldiers and Interahamwe, who encircled and killed the refugees. From his place of hiding, Witness FQW was able to see what was happening. He described the reluctance of some Interahamwe to kill people in a mosque, which led them to order everyone to come out, including elderly women and children. They were then taken to nearby houses, and almost everyone was subsequently killed. The next morning the witness found six survivors, three of whom were severely wounded and died subsequently. They told him that once the refugees had been put into the houses, grenades were thrown into the houses, and that they were the only survivors of the attack. Among those killed was Witness FW’s cousin, a seven-year-old girl. 4.1.2 Children and genocidal intent As the first-ever international criminal ruling on the crime of genocide, the Akayesu judgment was significant in defining ‘genocidal intent’ and demonstrating the types of proof that may be used to establish it. Crucial evidence used in this 159 Prosecutor v Alfred Musema (Judgment, Trial Chamber) ICTR-96–13, para 807 (ICTR 2000) [http://www.unictr.org/Portals/0/Case/English/Musema/judgem ent/000127.pdf]. 160 Prosecutor v Sylvestre Gacumbitsi (Judgment, Trial Chamber II) ICTR 01–64-T, para 140 (ICTR 2004) [https://unictr.irmct.org/sites/unictr.org/files/case-documents/ ictr-01-64/trial-judgements/en/040617.pdf]. Prosecutor v Sylvestre Gacumbitsi, Judgment, Case ICTR 01–64-T, 17 June 2004, paragraph 140 [http://www.ictrca selaw.org/docs/doc87981.PDF]. 161 Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze (Judgment, Trial Chamber) ICTR-97–27, para 450 (ICTR 2003) [http://www. ictrcaselaw.org/docs/doc40472.PDF].

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regard included the deposition of an expert witness, Alison Desforges, who testified that:162 [O]n the basis of the statements made by certain political leaders, on the basis of songs and slogans popular among the Interahamwe, I believe that these people had the intention of completely wiping out the Tutsi from Rwanda so that – as they said on certain occasions – their children, later on, would not know what a Tutsi looked like, unless they referred to history books. The intent to relegate an entire group of people to history led Akayesu to publicly call for the extermination of all Tutsis, including children, newborns and even foetuses: Witness KK later went to the Accused and asked him for an attestation to help her keep her children alive. She said he replied that it was not he who had made them be born Tutsi and that: ‘when rats are killed you don’t spare rats that are still in the form of fetus.’163 [T]he testimony of witness PP … mentioned a statement made publicly by the accused to the effect that if a Hutu woman were impregnated by a Tutsi man, the Hutu woman had to be found in order ‘for the pregnancy to be aborted’ … the accused expressed this opinion on other occasions in the form of a Rwandese proverb according to which if a snake wraps itself round a calabash, there is nothing that can be done, except to break the calabash (Iyo inzoka yiziritse ku gisabo, nta kundi bigenda barakimena). In the context of the period in question, this proverb meant that if a Hutu woman married to a Tutsi man was impregnated by him, the foetus had to be destroyed so that the Tutsi child which it would become should not survive. It should be noted in this regard that in Rwandese culture, breaking the ‘gisabo’, which is a big calabash used as a churn was considered taboo. Yet, if a snake wraps itself round a gisabo, obviously, one has no choice but to ignore this taboo in order to kill the snake.164 Several other ICTR cases underlined statements made by leaders to encourage the killing of Tutsis babies, foetuses and pregnant women as a way to emphasise the systemic nature of these killings, thereby proving genocidal intent: 162 Prosecutor v Jean-Paul Akayesu (Judgment) ICTR-96–4-T (ICTR 1998), para 118 [http://www.unictr.org/Portals/0/Case/English/Akayesu/judgement/akay001. pdf]. 163 Ibid, para 428. 164 Ibid, paras 118–121. Hélène Dumas writes: ‘The youngest, like their parents, were bracketed off from the rest of humanity, and given animal nicknames such as “little snakes” (utwinzoka) or “snake eggs” (amagi y’inzoka).’ Hélène Dumas, ‘When Children Remember: A History of the Tutsi Genocide Through the Eyes of Children (1994–2006)’, International Review of the Red Cross vol 101, no 910 (2019): 37–57, 39 [https://doi.org/10.1017/S1816383119000171].

136 International Courts and Child-Victims of Generic Atrocity Crimes BISENGIMANA has given instructions that Tutsi people must be killed, including the pregnant and the suckling.165 Callixte Kalimanzira…incited the people to eliminate the Tutsi, including those who were still in their mothers’ wombs.166 Aloys SIMBA … urged the participants not to spare a single Tutsi saying when you are killing rats in your home, you do not spare even the pregnant ones.167 These statements all show how deeply rooted was the hate of ‘the Tutsi’. They also demonstrate how societies determine the identity of children even before their birth; and how, in cases of genocide or other discriminatory atrocity crimes, this may lead to their elimination even before birth on account of their assumed ethnic, national, religious or racial identity. Significantly, one ICTR judgment also found that Tutsi children were referred to as ‘thorns’ who would grow up to retaliate against Hutus and who thus should not be spared:168 … Gérard Ntakirutimana [made] the following pronouncement … : ‘The thorns must be uprooted because, otherwise, they will grow again and can kill you or disable you. There should be no pity for Tutsi women and children because they are the ones who will reproduce in future, and we will be faced with the exact same problems that we are having now.’

4.2 Sexual crimes The early ICTR jurisprudence was particularly ground-breaking in its analysis and findings that sexual crimes, including rape, had been committed on a large scale in Rwanda; and in its conclusion that rape can constitute genocide if committed with the intent to destroy the targeted group.169 This was first asserted in the Akayesu 165 Prosecutor v Paul Bisengimana (Indictment) ICTR-00–60, para 3.27 (ICTR 2000) [http://www.unictr.org/Portals/0/Case/English/Bisengimana/indictment/index. pdf]. 166 Prosecutor v Callixte Kalimanzira (Indictment) ICTR-05–88, para 12 (ICTR 2005) [https://unictr.irmct.org/sites/unictr.org/files/case-documents/ictr-05-88/indictm ents/en/050721.pdf]. Prosecutor v Callixte Kalimanzira, Indictment, Case ICTR05–88, 21 July 2005, paragraph 12 [http://www.unictr.org/Portals/0/Case/Eng lish/Kalimanzira/indictment/Kalimanzira.pdf]. 167 Prosecutor v Aloys Simba (Judgment, Appeals Chamber) ICTR -01–76-A, para 279 (ICTR 2007) [https://opil.ouplaw.com/view/10.1093/law-icl/706ictr07.case.1/la w-icl-706ictr07]. 168 Prosecutor v Elizaphan and Gérard Ntakirutimana (Judgment and Sentence, Trial Chamber) ICTR-96–10 & ICTR-96–17, para 713 (ICTR 2003) [https://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=48abd5a610]. 169 Prosecutor v Jean-Paul Akayesu (Judgment) ICTR-96–4-T (ICTR 1998), paras 709, 731–734 [http://www.unictr.org/Portals/0/Case/English/Akayesu/judgement/a kay001.pdf].

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judgment, which also elicited evidence establishing that girls as young as 12 had been forced to parade naked, raped and killed.170 References to rape and sexual violence abound in the ICTR case law, but it often conflates the victims under the broad qualification of ‘women and girls’, obscuring the extent to which children were victims: Interahamwe and militiamen raped and sexually assaulted Tutsi women and girls throughout Rwanda, causing them serious bodily or mental harm. Such serious bodily or mental harm inflicted upon Tutsi women and girls was intended to destroy the capacity of persons of Tutsi ethnic or racial identity to sustain themselves physically or psychologically as a group, or to reproduce themselves as a group …171 BISENGIMANA has ordered that Tutsi women and girls be raped before killing them because they gave the country a bad smell.172 Yet in some specific cases, such as Muhimana, more details were elicited from a victim when she appeared in court, as shown by the following transcript excerpts:173 Q. We want to move on and focus now on you specifically. How old were you in 1994, 16 April 1994, when this was happening to you?. A. I was 15 years of age. Q. When you were ordered to undress and Mika also undressed, what did Mika do to you?. … A. He took his penis and introduced it into my sexual parts. I asked him to be merciful to me. He didn’t want to listen … Q. When Mika was taking advantage of you, what were the other persons who were in his company doing? A. Those who had come with him seized the other young girls who were with me, that is Murekatete and Mukasine. Q. When they seized Murekatete and Mukasine, did you see what they did to Murekatete and Mukasine? A. They also had to undergo the same fate as myself … Q. Madam Witness, can you also tell the Court how you felt when Mika Muhimana had sexual intercourse with you? A. I felt pain. 170 Ibid, paras 416, 421–424, 429–431, 437. 171 Prosecutor v Edouard Karemera, Mathieu Ngirumpatse, and Joseph Nzirorera (Amended Indictment) ICTR-98–44-I, para 99 (ICTR 2005) [https://unictr.irmct.org/ sites/unictr.org/files/case-documents/ictr-98-44/indictments/en/050824.pdf], 172 Prosecutor v Paul Bisengimana (Indictment) ICTR-00–60, para 3.28 (ICTR 2000) [http://www.unictr.org/Portals/0/Case/English/Bisengimana/indictment/index. pdf]. 173 Prosecutor v Mikaeli Muhimana (Public transcript of Hearing of 6 April 2004) ICTR95–1B-T, 41.

138 International Courts and Child-Victims of Generic Atrocity Crimes The ICTR jurisprudence also described how rape was often accompanied by other terrible crimes, such as in this excerpt: ‘the Appellant publicly instigated the rape of Tutsi girls, declaring that sticks should be inserted into their genitals if they resisted.’174 Importantly, in Akayesu, the Trial Chamber referred to children born of rape when it construed rape as constitutive of genocide, underlining that: in patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother’s group.175 Yet beyond this statement, the ICTR did not particularly emphasise the suffering of girls who not only suffered from rape but were also victims of forced pregnancy, unwillingly bearing children as a direct result of the sexual crimes they endured. While most of the victims of sexual crimes experience psychological trauma and difficulties in social reintegration, girls who bear children born of sexual violence face a particular risk of stigma and rejection.176 This was not a marginal issue considering that sources other than the ICTR have estimated that 10,000 babies were born in such circumstances in Rwanda.177

5 The Special Court for Sierra Leone While the SCSL made great advances on the crime of recruitment and use of children, as shown in the previous chapter,178 it less thoroughly documented the many other violations suffered by children in Sierra Leone.179 Other crimes 174 See Prosecutor v Sylvestre Gacumbitsi (Judgment, Appeals Chamber) ICTR-01–64-A, para 99 (ICTR 2006) [http://www.ictrcaselaw.org/docs/doc79825.PDF]. 175 Prosecutor v Jean-Paul Akayesu (Judgment) ICTR-96–4-T (ICTR 1998), para 507 [http://www.unictr.org/Portals/0/Case/English/Akayesu/judgement/akay001. pdf]. 176 UNICEF-Pole Institute, ‘Children Born of Sexual Violence in Conflict Zones, DRC Country Study’, as cited in Cécile Aptel, ‘International Criminal Justice and Child Protection’, in Children and Transitional Justice: Truth-telling, Accountability, and Reconciliation, edited by Sharanjeet Parmar et al (Cambridge: Human Rights Program at Harvard Law School, 2010), 95. 177 According to Patricia A Weitsman, these crimes were particularly common in BosniaHerzegovina and Rwanda. Patricia Weitsman, ‘The Politics of Identity and Sexual Violence: A Review of Bosnia and Rwanda’, Human Rights Quarterly vol 30 (2008): 561–578. [hereinafter ‘Weitsman, “The Politics of Identity and Sexual Violence”’]. 178 See Chapter 3. 179 This section is largely based on Cécile Aptel, ‘Unpunished Crimes: The Special Court for Sierra Leone and Children’, in The Sierra Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law, edited by Charles Chernor Jalloh (Cambridge: Cambridge University Press, 2013), 340–60.

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against children were usually not separately charged and consequently did not result in convictions, although the SCSL contributed to the documentation of some of the other violations suffered by ‘child-soldiers’ in addition to being recruited or used – notably sexual crimes and forced marriage committed against ‘girl-soldiers’; and it also considered some of the crimes perpetrated against other Sierra Leonean children. This section refers primarily to two cases: Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (hereinafter the Armed Forces Revolutionary Council (AFRC) case);180 and Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (hereinafter the Revolutionary United Front (RUF) case).181 5.1 Additional crimes against ‘child-soldiers’ During the trials at the SCSL, the so-called ‘military training’ of ‘child-soldiers’ was repeatedly described in ways indicating that it may have constituted separate war crimes or crimes against humanity, and could have been charged as such, either separately or at least cumulatively.182 For example, one witness described 180 Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T (SCSL, 20 June 2007) [http://www.rscsl. org/Documents/Decisions/AFRC/613/SCSL-04-16-T-613s.pdf];Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Appeals Chamber), SCSL-04–16-T (SCSL, 22 February 2008) [http://www.rscsl.org/ Documents/Decisions/AFRC/Appeal/675/SCSL-04-16-A-675.pdf]. 181 Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T, para (SCSL, 2 March 2009) [http://www.rscsl.org/ Documents/Decisions/RUF/1234/SCSL-04-15-T-1234.pdf];Prosecutor v Issa Hassan Sesay, Morris Kallon, Augustine Gbao (Judgment, Appeals Chamber), SCSL04–15-A (SCSL, 26 October 2009) [http://www.rscsl.org/Documents/Decisions/ RUF/Appeal/1321/RUF%20Appeal%20Judgment.pdf]. 182 Some of these acts may have been qualified as ‘war crimes’ – or violations of art 3 common to the Geneva Convention – under Article 3(a) of the SCSL Statute (violence to life, health and physical or mental wellbeing of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment) or under Article 3(e) of the Statute (outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault). Some of these acts may also have been constitutive of crimes against humanity, in particular as murder, under Article 2(a) of the Statute; as imprisonment, under Article 2(e) of the Statute; as torture, under Article 2(f) of the Statute; or as ‘other inhumane acts’, under Article 2(i). In the Armed Forces Revolutionary Council (AFRC) case, the forced military training of children and their abductions was also considered under Count 1 and 2 Acts of Terrorism and Collective punishments. Count 10 (violence to life, health and physical and mental wellbeing of persons, in particular mutilation) and Count 11 (other inhumane acts) dealt more with the attack against the civilian population and routing mutilations of the civilians. Children subjected to gruesome training and mutilations in the course of the forced military trainings were referred to under crime of conscription and use of child soldiers (Count 12). In the Revolutionary United Front (RUF), the gruesome treatment meted out to children was subsumed under the crime of conscription, enlistment and

140 International Courts and Child-Victims of Generic Atrocity Crimes that as a child-soldier with the AFRC, he had been repeatedly flogged and was threatened with and only narrowly escaped amputation.183 In RUF, the court noted that in several so-called ‘training camps’, children were beaten by so-called ‘instructors’ while obliged to crawl on the ground with their hands crossed on their backs.184 ‘Recruits who were unable to endure the training regime would be shot and killed.’185 Some were required to walk over ‘monkey bridges’ and those who fell were often injured and sometimes shot.186 Several of the children who had been associated with the RUF or the AFRC described how they had been forced or incited to take harmful drugs. For instance, one recounted that he had been repeatedly flogged and forced to take hard drugs, believed to be cocaine.187 Child-soldiers associated with the RUF were habitually drugged before and after combat, probably to become fearless and participate in atrocities.188 Children who refused drugs would be beaten and in some cases killed.189 The children were also sometimes cut with blades on their bodies and legs as a means to administer the drugs and ensure that they would be absorbed into their systems. These cuts were also meant to physically mark their allegiance to the RUF, with the initials often being carved on their chests.190 These different crimes were not merely a part of ‘recruiting’ or ‘using’ children; they constituted separate international crimes and could have been separately and cumulatively charged. Indeed, some of these may have qualified as ‘war crimes – or violations of Article 3 common to the Geneva Convention – under either Article 3(a) of the Statute (violence to life, health and physical or mental wellbeing of persons, in particular murder, as well as cruel treatment such as torture, mutilation or any form of corporal punishment) or Article 3(e) of the Statute (outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault). Some of these acts may

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use of children under the age of 15. There is also a small mention of the forced military trainings under Count 13 (abductions and forced labour) where reference has been made to the other civilians who were also subject to gruesome military trainings and to some extent under the broad umbrella of Count 1 (acts of terrorism). Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T, para 1254 (SCSL, 20 June 2007) [http:// www.rscsl.org/Documents/Decisions/AFRC/613/SCSL-04-16-T-613s.pdf]. Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T, para 1640 (SCSL, 2 March 2009) [http://www.rscsl. org/Documents/Decisions/RUF/1234/SCSL-04-15-T-1234.pdf]. The court relied on the testimony of TF1–141. Ibid, para 1641. The court relied on the testimony of TF1–141. Ibid, para 1640. Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T, para 1254 (SCSL, 20 June 2007) [http:// www.rscsl.org/Documents/Decisions/AFRC/613/SCSL-04-16-T-613s.pdf]. Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T, para 1623 (SCSL, 2 March 2009) [http://www.rscsl. org/Documents/Decisions/RUF/1234/SCSL-04-15-T-1234.pdf]. Ibid. Ibid, paras 1623–1624.

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also have been constitutive of crimes against humanity, in particular as torture, under Article 2(f) of the Statute; or as ‘other inhumane acts’ under Article 2(i). In this context, it is important to note that the AFRC, RUF and Taylor indictments all included counts of sexual slavery, abduction and forced labour of civilians; and to some extent, the court somehow addressed the crimes committed against recruited children under such counts. For example, the testimonies of some witnesses in AFRC were considered both under Count 12 on the recruitment and use of child-soldiers and under Count 13 on abduction and forced labour.191 The accused were ultimately found guilty not only of the crime of recruitment and use of children in hostilities, but also of subjecting civilians – including children – to forced labour and sexual slavery, as reviewed infra. During the AFRC trial, for instance, after the prosecutor had presented evidence indicating that children had been routinely recruited and used in combat by the AFRC and the RUF,192 the Trial Chamber found that ‘the only method of recruitment described in the evidence is abduction’.193 Abducted children were subjected to a series of abuses, including being forced to watch the brutal massacre of their parents and other members of their family.194 Many were forced to undergo military training and formed into so-called ‘Small Boys’ and ‘Small Girls’ units,195 before and during which they were subjected to beatings and flogging; given daily injections and tablets of drugs to make them fearless; forced into labour such as carrying heavy loads; sent into battle, often on the frontlines; and used as human shields. Many of these children – some as young as seven or eight years old – were threatened with amputation or death if they tried to escape or refused to obey orders.196 There again, these crimes should not merely be subsumed under the crimes of conscripting and enlisting children and forced labour. Although not all recruited children were enslaved, the actual conditions to which many children were subjected could amount to slavery. Unfortunately, the SCSL failed to acknowledge that abduction of children and their use in hostilities may, in certain circumstances, amount to slavery per se, irrespective of them being subject to sexual slavery and forced labour. 5.2 Sexual crimes In Sierra Leone, the crimes committed against child-soldiers included sexual crimes, sexual slavery and forced marriage. Many girl-soldiers suffered from sexual 191 See, for example, the testimonies of witnesses TF1–157 and TF1–158 in the AFRC Trial Chamber II Judgment. Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T, paras 1253– 1278, 1352–1378 (SCSL, 20 June 2007) [http://www.rscsl.org/Documents/Deci sions/AFRC/613/SCSL-04-16-T-613s.pdf]. Paragraphs1253–1278 relate to Count 12. Paragraphs 1352–1378 relate to Count 13. 192 Ibid, paras 1244–1276. 193 Ibid, paras 1276, 1285. 194 Ibid, paras 1256, 1275. 195 Ibid, para 1245. 196 Ibid, paras 1254–1275.

142 International Courts and Child-Victims of Generic Atrocity Crimes violence, slavery and rape.197 The SCSL adequately prosecuted these offences as separate from the recruitment and use of child-soldiers. Charges of crimes committed against girls and women were included in most of the indictments issued by the SCSL,198 which recorded several convictions for sexual slavery as a crime against humanity.199 Having dismissed the charges on sexual slavery as crimes against humanity in AFRC,200 the SCSL later delivered its first-ever convictions for these crimes in RUF, followed by Taylor.201 The victims included girls who had been abducted by armed groups and used in hostilities. One of them testified before the SCSL: ‘Yes, the three of them had guns with them and I was forced to have sexual intercourse with them.’202 The SCSL, correctly, did prosecute those responsible under specific counts of sexual slavery and sexual violence, rather than subsuming these crimes under the charges of recruitment and use of child-soldiers. However, despite several witnesses having testified that many children had been subjected to 197 On how the SCSL dealt with sexual crimes more generally, see Valerie Oosterveld, ‘The Special Court for Sierra Leone’s Consideration of Gender-based Violence: Contributing to Transitional Justice?’, Human Rights Review vol 10, no 1 (2009): 73–98. 198 See Prosecutor v Issa Hassan Sesay, Morris Kallon, Augustine Gbao (Corrected Amended Consolidated Indictment), SCSL-04–15-PT (SCSL, 2 August 2006) [http://www.rscsl. org/Documents/Decisions/RUF/617/SCSL-04-15-T-619.pdf];Prosecutor v Alex Tamba Brina, Brima Bazzy Kamara and Santigie Borbor Kanu (Further Amended Consolidated Indictment) SCSL-2004–16-PT (SCSL 18 February 2005) [http://www. rscsl.org/Documents/Decisions/AFRC/141/SCSL-04-16-PT-147.pdf];Prosecutor v Charles Ghankay Taylor (Indictment), SCSL-03–01-I (SCSL, 7 March 2003) [http:// www.rscsl.org/Documents/Decisions/Taylor/003/SCSC-03-01-I-001.pdf];Prosecutor v Johnny Paul Koroma (Indictment) SCSL-2003–03-I (SCSL 7 March 2003) [http:// www.rscsl.org/Documents/Decisions/Other/Koroma/SCSL-03-03-I-001.pdf]. 199 SCSL Statute, art 2(g). See Prosecutor v Issa Hassan Sesay, Morris Kallon, Augustine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T (SCSL, 25 February 2009) [http://www.worldcourts.com/scsl/eng/decisions/2009.02.25_Prose cutor_v_Sesay_Kallon_Gbao.pdf];Prosecutor v Issa Hassan Sesay, Morris Kallon, Augustine Gbao (Judgment, Appeals Chamber), SCSL-04–15-T (SCSL, 26 October 2009) [http://www.rscsl.org/Documents/Decisions/RUF/Appeal/1321/ RUF%20Appeal%20Judgment.pdf]. 200 The Trial Chamber dismissed Count 7 on sexual slavery and Count 8 on forced marriage as other inhumane acts and as duplicitous; and considered all evidence of sexual slavery within the war crime of outrages upon personal dignity, which was charged separately under Count 9. See AFRC Trial Judgment Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL04–16-T, paras 696, 715–722 (SCSL, 20 June 2007) [http://www.rscsl.org/Docum ents/Decisions/AFRC/613/SCSL-04-16-T-613s.pdf]. 201 Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T (SCSL, 2 March 2009) [http://www.rscsl.org/Docum ents/Decisions/RUF/1234/SCSL-04-15-T-1234.pdf];Prosecutor v Charles Ghankay Taylor (Judgment, Trial Chamber II), SCSL-03–01-T (SCSL, 18 May 2012), [http://www.rscsl.org/Documents/Decisions/Taylor/1283/SCSL-03-01-T-1283. pdf]. 202 Witness Testimony of TF1–314 Prosecutor v Issa Hassan Sesay, Morris Kallon, Augustine Gbao (RUF Trial Transcript, Trial Chamber I) SCSL-04–15, 26 (SCSL 2 November 2005) [http://www.rscsl.org/Documents/Transcripts/RUF/RUF-110205.pdf].

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sexual slavery, the SCSL failed to consider sexual violence committed specifically against children in RUF.203 Also, the charges referred to ‘civilian women and girls’, using general formulations which omitted to number the girls subjected to sexual slavery or the proportion of girls among all victims. Rosemary Grey observed that: the approach used by the SCSL has not specifically highlighted the issue of sexual violence against girl soldiers, as such … [T]he victims … were identified predominantly as ‘civilians’, ‘women and girls’, or ‘bush wives’ rather than as child soldiers, combatants, or members of armed groups.204 The importance of adequate prosecution of child sexual slavery is underscored by the brutal and long-lasting psychological and often physical impact of sexual slavery on children. Yet the SCSL noted that the crimes of sexual slavery and rape were rampantly committed against women and girls, and were used as a method to terrorise populations – rightly recognising the dreadful physical and psychological effects and the social stigma attached to the victims.205 5.3 Forced marriage Turning to the offence of ‘forced marriage’, the SCSL should be lauded for innovatively recognising this offence and defining it as a crime against humanity.206 Indeed, it was the first-ever international criminal court to prosecute the crime of forced marriage. During the war in Sierra Leone, thousands of girls recruited as child-soldiers were used as ‘wives’ by members of armed 203 See Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao, citing the Expert Report on Forced Marriages produced by Expert Witness TF1–369, who interviewed a number of women victims of forced marriage, many of whom were abducted schoolchildren. Additionally, the court referred to the testimony of Expert Witness TF1–081, according to whom over 80% of pregnant women and girls who had been abducted were aged between 14 and 18. Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T, paras 1409, 1520 (SCSL, 2 March 2009) [http://www.rscsl.org/Documents/Deci sions/RUF/1234/SCSL-04-15-T-1234.pdf]. 204 Rosemary Grey, ‘Sexual Violence against Child Soldiers – The Limits and Potential of International Criminal Law’, International Journal of Feminist Politics, vol 16, no 4 (2014): 601–621, p 608. 205 See, for example, Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T, para 1352 (SCSL, 2 March 2009) [http://www.rscsl.org/Documents/Decisions/RUF/1234/SCSL-04-15-T-1234. pdf]; see also Prosecutor v Charles Ghankay Taylor (Judgment, Trial Chamber II), SCSL-03–01-T, paras 1020, 2035 (SCSL, 18 May 2012) [http://www.rscsl.org/ Documents/Decisions/Taylor/1283/SCSL-03-01-T-1283.pdf]. 206 See notably Valerie Oosterveld, ‘Forced Marriage and the Special Court for Sierra Leone: Legal Advances and Conceptual Difficulties’, Journal of International Humanitarian Legal Studies vol 2, no 1 (2011): 127–158.

144 International Courts and Child-Victims of Generic Atrocity Crimes groups.207 They were forced to perform domestic chores, to have sexual intercourse with their so-called ‘husbands’ and to bear the children born as a result.208 The SCSL was called to pronounce on forced marriage in both AFRC209 and RUF.210 In AFRC, the prosecution argued that forced marriage was a form of ‘other inhumane act’, of which the accused were charged.211 In its judgment, the Trial Chamber found that forced marriage failed to qualify as an ‘other inhumane act’, and that it did not exist independently of enslavement, sexual slavery, rape, imprisonment and forced labour.212 It restrictively interpreted the offence of ‘other inhumane acts’ as applying only to grave non-sexual acts which offend the dignity of a person by inflicting great suffering or serious bodily, physical or mental injury.213 The Chamber considered all evidence of sexual slavery within the 207 See, for example, the testimony of witness TF1–085, in the AFRC Trial Chamber II Judgment. Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T, paras 1259, 1076–1185 (SCSL, 20 June 2007) [http://www.rscsl.org/Documents/Decisions/AFRC/613/ SCSL-04-16-T-613s.pdf]. 208 Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T, paras 1349–1351 (SCSL, 2 March 2009) [http://www. rscsl.org/Documents/Decisions/RUF/1234/SCSL-04-15-T-1234.pdf]. 209 Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T (SCSL, 20 June 2007) [http://www.rscsl. org/Documents/Decisions/AFRC/613/SCSL-04-16-T-613s.pdf];Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Appeals Chamber), SCSL-04–16-T (SCSL, 22 February 2008) [http://www.rscsl.org/ Documents/Decisions/AFRC/Appeal/675/SCSL-04-16-A-675.pdf]. 210 Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T (SCSL, 2 March 2009) [http://www.rscsl.org/Docum ents/Decisions/RUF/1234/SCSL-04-15-T-1234.pdf];Prosecutor v Issa Hassan Sesay, Morris Kallon, Augustine Gbao (Judgment, Appeals Chamber), SCSL-04–15-A (SCSL, 26 October 2009) [http://www.rscsl.org/Documents/Decisions/RUF/App eal/1321/RUF%20Appeal%20Judgment.pdf]. 211 See Prosecutor v Alex Tamba Brina, Brima Bazzy Kamara and Santigie Borbor Kanu (Further Amended Consolidated Indictment) SCSL-2004–16-PT, 14 (SCSL 18 February 2005) [http://www.rscsl.org/Documents/Decisions/AFRC/141/ SCSL-04-16-PT-147.pdf] (Count 8). 212 Judge Doherty dissenting, the majority of the Trial Chamber held that sexual slavery and other forms of sexual violence violated the rule against duplicity and confused sexual and non-sexual aspects into the crime of sexual slavery. Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II (Partly Dissenting Opinion of Justice Doherty on Count 7 (Sexual Slavery) and Count 8 (‘Forced Marriages’)), SCSL-04–16-T (SCSL, 20 June 2007), 582 [http://www. rscsl.org/Documents/Decisions/AFRC/613/SCSL-04-16-T-613s.pdf]. The majority ruling of the Trial Chamber found ‘no lacuna in the law which would necessitate a separate crime of “forced marriage”’. Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T (SCSL, 20 June 2007), paras 696–722, 713, 2116–2123. [http://www.rscsl.org/ Documents/Decisions/AFRC/613/SCSL-04-16-T-613s.pdf]. 213 Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T (SCSL, 20 June 2007), paras 697–699

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However, the Chamber was not war crime of ‘outrages upon personal dignity’. convinced that the evidence established the elements of a non-sexual crime of forced marriage as a form of ‘other inhumane act’, and considered that evidence brought by the prosecutor to support the charge of forced marriage was ‘completely subsumed’ by the crime of sexual slavery.215 The Appeals Chamber overturned these findings and recognised forced marriage as a distinct crime falling within the category of other inhumane acts.216 It held that forced marriage, while sharing certain elements with sexual slavery, is not only a sexual crime; it is distinguishable notably because it encompasses forced conjugal association by force or threat of force, including but not limited to nonconsensual sex in exchange for support and protection, resulting in great suffering and the relation of exclusivity between ‘husband’ and ‘wife’.217 Ultimately, the Appeals Chamber declined to enter new convictions on this count, finding that:218 214

[S]ociety’s disapproval of the forceful abduction and use of women and girls as forced conjugal partners as part of a widespread or systematic attack against the civilian population, is adequately reflected by recognising that such conduct is criminal … incurring individual criminal responsibility in international law. The first convictions for the inhumane act of forced marriage came later, in RUF.219 The accused were convicted of the crimes against humanity of sexual slavery as well as forced marriage as an ‘other inhumane act’. The contrasting views expressed by different Chambers of the SCSL on the relationship between forced marriage and sexual slavery, and also on whether forced marriage constitutes a separate crime, leave several issues open. Is forced marriage primarily a sexual crime? How should an accused be charged to best reflect the entire scope of crimes suffered by victims of forced marriage without diluting the concept of slavery?

214 215 216

217 218 219

[http://www.rscsl.org/Documents/Decisions/AFRC/613/SCSL-04-16-T-613s. pdf]. Ibid, paras 696, 715–722. Ibid, para 713. Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Appeals Chamber), SCSL-04–16-T (SCSL, 22 February 2008), para 186 [http://www.rscsl.org/Documents/Decisions/AFRC/Appeal/675/ SCSL-04-16-A-675.pdf] (hereinafter ‘AFRC Appeals Judgment’). Ibid, paras 190, 195. Ibid, para 202. Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T, para (SCSL, 2 March 2009) [http://www.rscsl.org/ Documents/Decisions/RUF/1234/SCSL-04-15-T-1234.pdf];Prosecutor v Issa Hassan Sesay, Morris Kallon, Augustine Gbao (Judgment, Appeals Chamber), SCSL04–15-T (SCSL, 26 October 2009) [http://www.rscsl.org/Documents/Decisions/ RUF/Appeal/1321/RUF%20Appeal%20Judgment.pdf].

146 International Courts and Child-Victims of Generic Atrocity Crimes The use of the term ‘marriage’ in this new offence is not unequivocal. This term normally refers to a freely accepted contractual relationship, which obviously does not match the reality of abduction. On this basis, ‘forced marriage’ is an oxymoron. Yet in a context such as Sierra Leone, where the practice of ‘early marriage’ remains prevalent and is a concern for child rights advocates, it is to be hoped that the SCSL case law may help to change attitudes towards the abuse of young girls who are formally ‘married’ against their will, whether in times of war or peace. The formulation retained by the SCSL and the resulting convictions refer to the victims as ‘civilian women and girls’.220 This formulation, on the one hand, demonstrates that girls were among the victims; but on the other hand, does not indicate how many girls were concerned or the percentage of children among the victims. Yet there are many reasons to believe that these crimes disproportionally affected younger victims. Evidence of this type was presented to the SCSL during the RUF trial. Witness TF1–369, an expert witness who had authored an expert report on forced marriage, testified that many victims of forced marriages and sexual slavery were schoolchildren and petty traders who had been abducted from various districts.221 In addition, Witness TF1–081, a medical expert, testified that: … of 1,168 patients examined between March and December 1999, 99% had been abducted following the 6 January 1999 invasion … Out of these patients… 200 (17.1%) were pregnant, over 80% of whom were girls between the ages of 14 and 18.222 220 See, for instance, Prosecutor v Charles Ghankay Taylor where the charges read, inter alia, ‘the accused committed widespread acts of sexual violence against civilian women and girls’. Prosecutor v Charles Ghankay Taylor (Prosecution’s Second Amended Indictment), SCSL-03–01-PT (SCSL, 29 May 2007), 4–5 [http://www.rscsl.org/ Documents/Decisions/Taylor/255/SCSL-03-01-PT-263.pdf]. 221 Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T, para 1409 (SCSL, 2 March 2009) [http://www.rscsl. org/Documents/Decisions/RUF/1234/SCSL-04-15-T-1234.pdf]. 222 Ibid, para 1520: ‘Expert Witness TF1–081 testified that of 1,168 patients examined between March and December 1999, 99% had been abducted following the 6 January 1999 invasion, the “vast majority” of whom originated from Freetown. Out of these patients, 274 (23.4%) had been beaten for refusing to engage in sexual relations or carry heavy looted goods; 648 (58.5%) of the abductees had been subjected to rape, some by more than two and up to 30 men; 281 (24.1%) complained of vaginal discharge and 327 (27.9%) had pelvic inflammatory disease, both of which are transmitted through sexual intercourse; and 200 (17.1%) were pregnant, over 80% of whom were girls between the ages of 14 and 18.’ In addition, the special representative of the secretary general for children and armed conflict had stated that: ‘It is estimated that around 60 per cent of children kidnapped during the January 1999 incursion were girls; 9 out of 10 abducted girls are believed to have been sexually abused.’ See ‘Press Release HR/4432: Action to Assist War-affected Children in Sierra Leone Proposed by Special Representative for Children and Armed Conflict’, Office of the Special Representative of the Secretary General for Children and Armed Conflict, 14 September 1999 [https://www.un.org/press/en/1999/19990914.hr4432.doc. html].

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The ambiguous formulation ‘women and girls’ also deprives the child-victims of the recognition of the particularly brutal impact that such crimes may have on them. While every victim does suffer, it can be assumed that the physical and psychological impact of these crimes on younger victims is even worse, causing them even greater suffering. In a socio-cultural context such as Sierra Leone, the stigma associated with rape, sexual violence, sexual slavery or forced marriage may also weigh more heavily on children than on adults. In RUF, the SCSL noted that the ‘[v]ictims of sexual violence were ostracized, husbands left their wives, and daughters and young girls were unable to marry within their community’,223 finding that these crimes resulted in the unravelling of ‘cultural values and relationships which held the societies together’.224 The long-term consequences for young victims were painfully illustrated by one victim, TF1–314, who testified in the RUF trial that she had been abducted and raped at the age of ten and forcefully ‘married’ to a rebel commander, undertaking domestic chores and being repeatedly raped by him.225 The ambiguities regarding the age and status of the victims, and the lumping together of ‘women and girls’, contribute to explaining why the SCSL never exercised its jurisdiction over statutory rape as defined in Sierra Leonian laws, including the child-specific provisions reproduced in Article 5 of the SCSL Statute relating to the abuse of girls defined under the Sierra Leonean Prevention of Cruelty to Children Act of 1926.226 Article 5 provides that:227 The Special Court shall have the power to prosecute persons who have committed the following crimes under Sierra Leonean law:a Offences relating to the abuse of girls under the Prevention of Cruelty to Children Act, 1926 (Cap. 31): i Abusing a girl under 13 years of age, contrary to section 6; ii Abusing a girl between 13 and 14 years of age, contrary to section 7; iii Abduction of a girl for immoral purposes, contrary to section 12. This ‘child-specific’ offence was never retained by the SCSL – not even as a cumulative charge. 223 Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T, paras 1347–1349 (SCSL, 2 March 2009) [http://www. rscsl.org/Documents/Decisions/RUF/1234/SCSL-04-15-T-1234.pdf]. The Trial Chamber stated: ‘According to TF1–369, fear of discrimination and stigmatisation remains an enormous barrier to the effective reintegration of victims and their families, which prevented the victims from returning to their communities, those who have been reintegrated struggle with psychological trauma and most live in denial along with their families, Exhibit 138, Expert Report Forced Marriage, p. 12088.’ 224 Ibid. 225 Ibid, paras 1460–1461, 1407–1408. 226 SCSL Statute, art 5. 227 Ibid, referring to ‘The Protection of Women and Girls Act, Cap. 31 of Sierra Leonian law’.

148 International Courts and Child-Victims of Generic Atrocity Crimes Do the failure to exercise this part of the SCSL’s jurisdiction and the ambiguous categorisation of ‘women and girls’ reflect the evidentiary difficulties encountered when attempting to establish the age of each individual victim? This argument – never explicitly made by the SCSL – does not hold in light of the prosecution of the recruitment and use of child-soldiers, which had to establish that the victims were under the age of 15 at the time of the offence. If the latter was possible, why was it not possible to determine the age of the victims of rape, sexual violence, sexual slavery and forced marriage? 5.4 Crimes against other children The major achievements of the SCSL in prosecuting the crimes committed against child-soldiers – primarily their recruitment and use – as well as the sexual crimes and forced marriages suffered by many girl-soldiers are certainly impressive. However, these directed attention towards these specific crimes and inadvertently away from the other (tens of) thousands of child-victims: those who were killed, maimed, persecuted or deprived of access to basic services essential to their survival; or who were victims of other crimes falling within the SCSL’s mandate.228 This is particularly sad considering the extent and gravity of the many crimes suffered by children in Sierra Leone. Certain crimes committed in Sierra Leone are known to have had a particularly severe impact on children, such as deportation or forced displacement,229 which too often caused the separation of the family – with dire consequences for children – and also led to nutritional problems, if not famine. However, these were not the focus of any prosecutions at the SCSL. When crimes against children are mentioned in the SCSL judgments, children are merely cited among the civilian casualties – as, for instance, in AFRC and RUF. In this regard, the SCSL followed the path of all prior international jurisdictions, from the International Military Tribunals of Nuremberg and Tokyo to the ICTY and the ICTR, as documented above. 228 ‘Press Release HR/4432: Action to Assist War-affected Children in Sierra Leone Proposed by Special Representative for Children and Armed Conflict’, Office of the Special Representative of the Secretary General for Children and Armed Conflict, 14 September 1999 [https://www.un.org/press/en/1999/19990914.hr4432.doc.htm l]. Then Special Representative Mr Olara A Otunnu stated: ‘The children of Sierra Leone have suffered beyond belief in this war: many children have been deliberately maimed, with their limbs brutally cut off; in the month of January 1999 alone, over 4,000 children were abducted during the Revolutionary United Front (RUF)/Armed Forces Revolutionary Council (AFRC) incursion into Freetown; 60 percent of abducted children were girls, the vast majority of whom have been sexually abused; more than 10,000 children have been serving as child soldiers in various fighting groups; over 60 percent of the 3 million Sierra Leoneans who have been displaced by war within and outside their country are children; and many children are suffering from serious psychological trauma.’ 229 Deportation as a crime against humanity under Article 2(d) of the SCSL Statute was neither charged nor used in any conviction in the three cases.

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This is illustrated by the reference, in the AFRC judgment, to a dead child who had been shot in the chest, identified among other persons killed or severely injured after an attack in Tikonko.230 The SCSL noted that many young children had been killed by being thrown into burning houses – for instance, during a mass attack on the village of Karina;231 and noted one specific instance when one of the accused in Kamamra, had, along with others, locked five young girls into a house, set the house on fire and burnt them to death.232 Much evidence of widespread amputations and mutilations of civilians was reviewed, with one witness specifically referring to an instance when the rebels cut off the hand of a child.233 Similarly, the RUF judgment contains some references to children killed. One witness, TF1–235, had his seven children killed by the rebels.234 Other dreadful accounts include how a rebel leader had cleaved a six-year-old child in two with a machete;235 and how the rebels had amputated a 15-year-old boy, cutting his hands from his wrists and his legs from his ankles before throwing him into a pit latrine.236 It is reasonable to list children among other civilian casualties when prosecuting some atrocity crimes – notably to evidence both that civilians were targeted and the widespread or systematic character of the crimes. This is also the regular way to proceed when the crimes were clearly perpetrated as part of a broader attack, as they often were. As an example, in AFRC, Witness TF1–209 recounted her ordeal when both her six-year-old son and her husband were killed by rebels, who then sexually assaulted and abducted her.237 Yet, while recognising that the limited number of cases which the SCSL could adjudicate necessarily restricted the scope of its prosecutions, it is regrettable that not a single case focused on the suffering of children. This would have drawn greater attention to these crimes and their scope and impact; and would also have acknowledged the harm caused to so many of the children of Sierra Leone, who account for around one-third of the country’s entire population.238 230 Testimony of Witness TF 1–004 in Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T, para 814 (SCSL, 20 June 2007) [http://www.rscsl.org/Documents/Decisions/AFRC/ 613/SCSL-04-16-T-613s.pdf]. 231 Ibid, paras 887–889; Testimony of Witness TF 1–334 in Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T, 65–67 (SCSL, 23 May 2005) [http://www.rscsl.org/Documents/ Transcripts/AFRC/AFRC-052305.pdf]. 232 Ibid, para 887 (Testimony of Witness TF1–334). 233 Ibid, para 1242 (Testimony of TF1–085). 234 Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T, para 1534 (SCSL, 2 March 2009) [http://www.rscsl. org/Documents/Decisions/RUF/1234/SCSL-04-15-T-1234.pdf]. 235 Ibid, para 1536 (Testimony of TF1–331). 236 Ibid, paras 1149–1150 (Testimony of Witness TF1–015). 237 Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T, 868 (SCSL, 23 May 2005) [http://www. rscsl.org/Documents/Transcripts/AFRC/AFRC-052305.pdf]. 238 In 2022, children under the age of 14 alone constituted 40% of the population of Sierra Leone, and 33% were between the age of 10 and 24. United Nations Population Fund, World Population Dashboard [World Population Dashboard (unfpa.org)].

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6 The International Criminal Court Unlike its predecessors, the ICC has not completed its work: it is a permanent jurisdiction, mandated to prosecute and try not just crimes committed in a single situation, but potentially globally, as seen above.239 Because of this broad mandate, the ICC chief prosecutor has a much wider responsibility – and a correlated broader margin of prosecutorial discretion – than his predecessors. He is requested only to consider ‘gravity’ and the ‘interest of justice’ when selecting cases to be investigated.240 The vagueness and ambiguity of these two concepts are such that they do not considerably restrict the prosecutor, as their understanding is inherently subjective. Schabas has remarked that: ‘These notions are so malleable as to provide any imaginative prosecutor with a rationale for what may be, in reality, rather arbitrary choices.’241 Thus, the ICC chief prosecutor exercises his discretionary powers in making significant selections, limiting investigations and prosecutions in six successive stages.242 The decisions taken at each of these stages, which may occur sequentially or simultaneously, progressively restrict the scope of accountability provided to victims. First, the ICC prosecutor can decide to investigate a specific situation in which one or more crimes appear to have been committed using his proprio motu discretionary powers, subject to the authorisation of the Pre-trial Chamber.243 Second, within the limits set by the applicable jurisdictional scope, he selects specific entities to investigate, such as focusing on the responsibility of members of the Lord’s Resistance Army in the case of Uganda. Third, within a given situation and concerning a specific entity, the prosecutor chooses which individuals to investigate and prosecute from among the many individuals involved in the commission of atrocity crimes. Even when focusing exclusively on the leadership – that is, on those most responsible for the gravest crimes – there are usually many 239 See Chapter 1. 240 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 38544, art 14, 15 (Rome Statute) [https://www.icc-cpi. int/resource-library/documents/rs-eng.pdf]; ‘Prosecutorial Strategy (2009–2012)’, para 22, The Office of the Prosecutor, International Criminal Court, 1 February 2010 [https:// www.icc-cpi.int/Pages/item.aspx?name=otp-rep-strategy-2010]. 241 William Schabas, ‘The International Criminal Court: Struggling to Find its Way’, in Realizing Utopia: The Future of International Law, edited by Antonio Cassese (Oxford: Oxford University Press, 2012), 257. 242 The following paragraphs are based on Cécile Aptel, ‘Prosecutorial Discretion at the ICC and Victims’ Right to Remedy: Narrowing the Impunity Gap’, Journal of International Criminal Justice vol 10, no 5 (December 2012): 1357–1375 [https://doi. org/10.1093/jicj/mqs077]. 243 See Rome Statute, arts 13, 15, 53. In addition to the proprio motu powers of its prosecutor, the other two ways in which the ICC can be seized is if a situation is referred to it by a state party or by the UN Security Council. The term ‘situation’ is from Article 13, where it is mentioned twice. See William Schabas, ‘The International Criminal Court: Struggling to Find its Way’, in Realizing Utopia: The Future of International Law, edited by Antonio Cassese (Oxford: Oxford University Press, 2012), 256.

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individuals who planned, ordered and orchestrated the crimes, and the ICC does not have the capacity or resources to thoroughly investigate them all. Fourth, the prosecutor selects specific factual allegations to list in the charges. Because of the widespread and systematic nature of most international crimes falling within the ICC’s mandate, only a few ‘illustrative’ events are selected – for instance, choosing the locations and dates of certain massacres among many others. Fifth, the prosecutor exercises his discretionary powers in deciding which legal qualifications to retain for the selected factual allegations – for example, whether to charge AlBashir with genocide in addition to the other crimes retained against him; or to try Thomas Lubanga Dyilo exclusively for the war crimes of enlisting, conscripting and using children to participate actively in the hostilities and not, for example, for child slavery.244 Sixth, the prosecution at the ICC selects which witnesses and victims to call to testify in court. This determines which victims are given space to ‘tell their story’ in court and which are not. The decisions taken at each of these six stages constrict subsequent decisions, like Russian dolls or overlapping concentric circles, creating an effect inverse to a ripple and progressively limiting the scope of crimes that fall within the purview of the ICC – and hence of the access of victims to justice. This is particularly significant for crimes against children because, at each of the above six stages where decisions are made, these crimes and their victims can be excluded or eclipsed by others. These steps should enable the implementation of one of the many revolutionary aspects included in the Statute of the ICC – the abovementioned Article 54(1), which stipulates that:245 The Prosecutor shall … Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, … take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children. Yet this explicit call on the ICC prosecutor to ‘take into account’ the nature of the crime, despite its wording as an obligation (‘shall’), hardly confines the discretionary power of the prosecutor in selecting cases for investigation and prosecution, as it merely requires him to ‘take into account’ specific crimes and categories of victims. Nonetheless, this is an explicit call on the prosecutor to consider crimes and categories of victims which have historically been given little attention. The ICC has the potential to play a catalytic role in eroding impunity for perpetrators of crimes against children, as recognised and highlighted in resolutions of the United Nations General Assembly.246 While the ICC commenced operations 244 See Chapter 3. 245 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 38544, art 54(1) (Rome Statute) [https://www. icc-cpi.int/resource-library/documents/rs-eng.pdf]. 246 UNGA Res 54/149 (25 February 2000) UN Doc Res A/RES/54/149 (The rights of the child) [https://undocs.org/en/A/RES/54/149]; UNGA Res 57/190 (19 February 2003) UN Doc A/RES/57/190 (Rights of the child) [https://www.iom.

152 International Courts and Child-Victims of Generic Atrocity Crimes in 2002, it still seems too early to assess whether it is fulfilling this role, considering that to date only six cases leading to convictions have been fully completed.247 Of these six cases, two include no reference to children.248 One pertains to offences against the administration of justice related to false testimonies;249 the other concerns Ahmad Al Faqi Al Mahdi, who was tried and convicted of attacking historic monuments and buildings dedicated to religion in Timbuktu, Mali.250 The very narrow focus of the ICC prosecution in this case did not provide an opportunity to bring justice to the many Malian children, particularly girls, who were reportedly victimised during the occupation of Timbuktu by Ansar Eddine – a movement associated with Al Qaeda in the Islamic Maghreb.251 Considering that Al Mahdi reportedly headed the Hisbah – a body set up to uphold public morals and prevent vices – and was also associated with the work of the Islamic Court of Timbuktu and participated in executing its decisions during the occupation, it would not have been unreasonable for the ICC prosecutor to pursue this

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int/jahia/webdav/shared/shared/mainsite/policy_and_research/un/57/A_RES_57_ 190_en.pdf]; UNGA Res 60/231 (11 January 2006) UN Doc A/RES/60/231 (Rights of the child) [https://www.un.org/en/development/desa/population/migra tion/generalassembly/docs/globalcompact/A_RES_60_231.pdf]. As of 1 January 2023. Cases are deemed fully completed upon appeals, if applicable. These two ICC cases are Prosecutor v Ahmad Al Faqi Al Mahdi (ICC-01/12–01/15) and Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido (ICC-01/05–01/13). Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment and Sentence, Trial Chamber VIII) ICC-01/12–01/15 (ICC 2016) [https://www.icc-cpi.int/CourtRecords/CR2016_ 07244.PDF];Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido (Judgment pursuant to Article 74 of the Statute, Trial Chamber VII) ICC-01/05–01/13 (ICC 2016) [https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/05-01/ 13-1989-Red]. Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido (Judgment pursuant to Article 74 of the Statute, Trial Chamber VII) ICC-01/05–01/13 (ICC 2016) [http s://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/05-01/13-1989-Red]. The case concerns offences against the administration of justice related to the false testimonies of defence witnesses in connection with the trial of Bemba for crimes allegedly committed in the Central African Republic, crimes for which he was ultimately acquitted. Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment and Sentence, Trial Chamber VIII) ICC-01/12–01/15, paras 10, 45 (ICC 2016) [https://www.icc-cpi.int/Cour tRecords/CR2016_07244.PDF]. Al Mahdi was tried and convicted exclusively for intentionally directing attacks against historic monuments and buildings dedicated to religion, including nine mausoleums and one mosque in Timbuktu, Mali, in June and July 2012, constitutive of war crime. For instance, Human Rights Watch recorded allegations of numerous war crimes, including rape, use of child soldiers, and pillaging of hospitals, schools and so on. Human Rights Watch, ‘Mali: War Crimes by Northern Rebels, Armed Groups Commit Rape, Use Child Soldiers’, 30 April 2012, https://www.hrw.org/news/ 2012/04/30/mali-war-crimes-northern-rebels.

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line of investigation and seek to document crimes that affected children in general, and girls in particular.252 The four remaining cases, all of which concerning African warlords, mention generic crimes against children: they concern Thomas Lubanga Dyilo, Germain Katanga, Bosco Ntaganda and Dominic Ongwen. 6.1 The Lubanga case The first-ever ICC case, Lubanga has already been reviewed extensively supra for its contribution to the crime of enlistment and conscription of children under the age of 15 and their use in hostilities.253 While laudable for casting a spotlight on this child-specific international crime, the exclusive focus may also – paradoxically – have been detrimental to bringing justice to other child-victims. Indeed, the decision to charge and try Lubanga only for recruiting and using child-soldiers was taken against a backdrop of widespread allegations that both Lubanga and his ‘child-soldiers’ had committed many other international crimes, including killings and sexual crimes.254 Some of these crimes were against some of the child-soldiers themselves, in particular girl-soldiers. Other ignored crimes were those impacting other children beyond the child-soldiers. Turning first to the omission of crimes committed against child-soldiers themselves: as soon as the arrest warrant was made public in this case, a number of civil society organisations raised concerns over the narrow scope of charges.255 During 252 See ICC, ‘Case Information Sheet, Situation in the Republic of Mali, The Prosecutor v Ahmad Al Faqi Al Mahdi’, March 2018 [https://www.icc-cpi.int/CaseInformation Sheets/al-mahdiEng.pdf]. 253 See Chapter 3. 254 In a ‘Joint Letter to the Chief Prosecutor of the International Criminal Court’ dated 31 July 2006, eight international human rights organisations (including Human Rights Watch) indicated that this ‘undercut the credibility of the ICC’, as well as limited victims’ participation. According to Laura Davis and Priscilla Hayner, citing a 2007 Agence France Presse report, local rights groups and women’s organisations were especially critical of the failure to include sexual crimes in the charges. Laura Davis and Priscilla Hayner, ‘Difficult Peace, Limited Justice: Ten Years of Peacemaking in the DRC’, International Center for Transitional Justice (March 2009), 29– 30 [https://ictj.org/sites/default/files/ICTJ-DRC-Difficult-Peace-2009-English. pdf] citing Agence France Presse, ‘Droits de l’homme: Appels à la CPI pour Punir les Crimes Sexuels en RDC’ (10 December 2007); Cécile Aptel and Virginie Ladisch, ‘Through a New Lens: A Child-Sensitive Approach to Transitional Justice’, International Center for Transitional Justice (August 2011), 22 [https://www.ictj.org/sites/ default/files/ICTJ-Children-Through-New-Lens-Aptel-Ladisch-2011-English.pdf] citing a confidential interview conducted by the International Center for Transitional Justice in April 2010 in Ituri, DRC. 255 See notably ‘ICC Charges Raise Concern, Joint letter to the Chief Prosecutor of the International Criminal Court’, 31 July 2006 [https://www.hrw.org/news/2006/ 07/31/dr-congo-icc-charges-raise-concern], and Women’s Initiatives for Gender Justice, ‘Public redacted version of confidential letter to ICC Prosecutor’, August 2006 [http://www.iccwomen.org/documents/Prosecutor_Letter_August_2006_ Redacted.pdf].

154 International Courts and Child-Victims of Generic Atrocity Crimes the trial, several victims and witnesses testified about the widespread commission of gender-based crimes, including rape and sexual slavery, particularly against forcibly recruited girls. This led victims’ legal representatives to request the addition of new charges of sexual slavery, inhumane treatment and cruel treatment, in addition to those on the recruitment and use of child-soldiers.256 The prosecutor responded that the initial indictment could no longer be amended as the trial had begun. This was despite his earlier declarations during the opening statements of the trial that once children are recruited, they enter an environment of abuse, sexual enslavement and violence.257 The victims’ request to add new charges was ultimately denied by the Appeals Chamber on procedural grounds.258 The issue continued to linger throughout the trial, leading one of the trial judges, Judge Odio Benito, to question the prosecution during the closing statements: How is sexual violence relevant to this case, and how does the Prosecution expect the Trial Chamber to refer to the sexual violence allegedly suffered by girls if this is not in the facts and circumstances described in the charges against Lubanga Dyilo?259

256 Prosecutor v Thomas Lubanga Dyilo (Joint Application of the Legal Representatives of the Victims for the Implementation of the Procedure under Regulation 55 of the Regulations of the Court, Trial Chamber) ICC-01/04–01/06–1891-tENG (ICC 2009) [https://www.icc-cpi.int/pages/record.aspx?uri=712021]. 257 Opening statement delivered on 26 January 2009. Prosecutor v Thomas Lubanga Dyilo (Prosecution’s Response to the Legal Representatives’ ‘Demand [sic] conjointe des représentants légaux des victimes aux fins de mise en œuvre de la procédure en vertu de la norme 55 du Règlement de la Cour’) ICC-01/04–01/06–1918, para 3 (ICC 2009) [https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/04-01/06-1918]. 258 On 14 July 2009, the Trial Chamber issued its ‘Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court’. The Appeals Chamber reversed this decision, ruling that the Trial Chamber’s finding that the legal characterisation of the facts may be subject to change was based on a flawed interpretation of Regulation 55. The Appeals Chamber did not rule on the question of whether the majority of the Chamber erred in determining that the legal characterisation of the facts may be changed to include crimes under Articles 7(1)(g), 8(2)(b) (xxvi) [sic], 8(2)(e)(vi), 8(2)(a)(ii) and 8(2)(c)(i) of the Statute because the Trial Chamber had not yet done a detailed review of the questions in this issue. See Prosecutor v Thomas Lubanga Dyilo (Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber 1 of 14 July 2009 entitled ‘Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court’, Appeals Chamber) ICC-01/04–01/06 (ICC, 8 December 2009) [http://www.worldcourts.com/icc/eng/decisions/2009.12.08_Prosecutor_ v_Lubanga.pdf]. 259 Prosecutor v Thomas Lubanga Dyilo (Official Court Transcript, Office of the Prosecutor’s Closing Statements, Trial Chamber) ICC-01/04–01/06-T-356, 53 (ICC 2011) [https://www.icc-cpi.int/Transcripts/CR2011_12578.PDF].

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This could all have been avoided had the prosecution considered from the outset the larger span of crimes committed against children, starting with those against the very children recruited by Lubanga’s armed group. In fact, for the victims, these ‘other’ crimes – namely sexual slavery and inhumane and cruel treatment – are likely to have caused them even more suffering than the crimes for which Lubanga was tried; and for the girl-victims of sexual slavery, to have had a much longer negative impact. The ICC could have played a key role, following in the SCSL’s footsteps, in identifying the gendered dimension of the experience of child-soldiers, highlighting that rape and sexual violence are often an integral part of the recruitment and ‘use’ of girl-soldiers in hostilities. Second, Lubanga missed other crimes targeting other children beyond those he had recruited. Considering that Lubanga was exclusively charged with recruiting and using children, the only victims represented during the proceedings and ultimately awarded reparations were those formerly associated with his armed group – namely children from his Hema group, an ethnic community of Ituri. Indeed, the trial judges ruled that the victims of crimes committed by those deemed ‘victims’ in this case – that is, by Lubanga’s child-soldiers – would not be granted the status of ‘indirect victims’, thus excluding them from participation in the proceedings and the award of reparations.260 Yet Lubanga and those under his command – including the children he recruited – allegedly murdered, raped, tortured, looted and destroyed property. The victims of these crimes were from other ethnic groups, primarily Lendu. Many Lendus claimed that the ‘real crimes’ that Lubanga had committed were these murders and rapes, which went unpunished.261 As early as 2010–2011, even before completion of the trial, some of these victims expressed frustration that the ICC was failing to try Lubanga for his ‘true crimes’. ‘The Lendu have never understood the crime of recruitment – these 260 Prosecutor v Thomas Lubanga Dyilo (Decision, Redacted version of the Decision on ‘indirect victims’, Trial Chamber I) ICC-01/04–01/06–1813, para 52 (ICC 2009) [https://www.icc-cpi.int/pages/record.aspx?uri=662407]. ‘The purpose of trial proceedings at the ICC, as stated by the Appeals Chamber, “is the determination of the guilt or innocence of the accused person of the crimes charged” and it is only victims “of the crimes charged” who may participate in the trial proceedings pursuant to Article 68(3), when read together with Rules 85 and 89(1).78 The charges confirmed against the accused in this case are confined to the conscription, enlistment or use of children to participate actively in hostilities. Indirect victims, therefore, are restricted to those whose harm is linked to the harm of the affected children when the confirmed offences were committed, not those whose harm is linked to any subsequent conduct by the children, criminal or otherwise’ (footnotes omitted). On this decision, see Valentina Spiga, ‘Indirect Victims’ Participation in the Lubanga Trial’, Journal of International Criminal Justice, vol 8, no 1 (March 2010), 183–198 [https://doi. org/10.1093/jicj/mqq009], arguing that the concept of ‘indirect victim’ in Lubanga should have included those harmed by the conduct of direct victims (ie, the childsoldiers), provided that such conduct was causally linked to the charges against the accused. 261 See Cécile Aptel and Virginie Ladisch, ‘Through a New Lens: A Child-Sensitive Approach to Transitional Justice’, International Center for Transitional Justice (August 2011), 23.

156 International Courts and Child-Victims of Generic Atrocity Crimes are not the true crimes of Lubanga. He is protected against his true crimes.’262 ‘[C]oncerning Thomas Lubanga, I think that he should be arrested for having killed people and not for recruiting children.’263 In a context that was highly polarised along ethnic lines, many Lendus were appalled that the only victims mentioned in the ICC were Hema former child-soldiers – members of Lubanga’s own ethnic group – and felt that Lendu victims, including children, had been forgotten. This case and the misunderstandings it generated illustrate not only the difficulties for international courts in bringing to the fore the full spectrum of generic atrocity crimes against children, but also their potential to achieve this. Lubanga exemplifies again how a focus on the child-specific crime of recruitment and use of child-soldiers may unintentionally but naively be detrimental to bringing justice to all children for all crimes they have suffered – starting with the child-soldiers themselves, who may have been victimised in many other ways, and obviously extending to other crimes suffered by other children. 6.2 The Katanga case The second of the two completed ICC cases that mention generic crimes against children involved Germain Katanga. While also pertaining to crimes committed in the Democratic Republic of Congo (DRC), it is somehow the flipside of Lubanga, as it concerns crimes committed by Ngiti militia predominantly against members of the Hema group. As already mentioned supra, Katanga was acquitted of the war crime of using children to participate actively in violence in Ituri.264 He was also acquitted of rape and sexual slavery as a crime against humanity, even though the court found that it had been established beyond reasonable doubt that these crimes had been committed. While the judgment does not usually specify the age of the victims of rape and sexual slavery, none of the six victims whose testimony is analysed in detail was apparently a child; but one of these victims referred to a girl also being ‘incarcerated and repeatedly raped by combatants’.265 Disappointingly, however, in the same paragraph that refers to a ‘girl,’ the judgment concludes: ‘The Chamber thus finds that these various testimonies confirm that other women were sexually enslaved by Ngiti combatants during the 24 February 2003 attack on Bogoro.’266 With this conclusion, the likely existence of girl-children among the victims is eclipsed by the use of the term ‘women’. 262 Ibid. 263 Ibid, 23, citing a confidential interview conducted by the International Center for Transitional Justice in April 2010 in Ituri, DRC: ‘If I see a child going to fight, I’m going to discourage him from doing so. I have never heard of the ICC, but concerning Thomas Lubanga, I think that he should be arrested for having killed people and not for recruiting children.’ 264 See Chapter 3. 265 Prosecutor v Germain Katanga (Judgment pursuant to Article 74 of the Statute, Trial Chamber II) ICC-01/04–01/07 (ICC, 7 March 2014), para 1021 [https://www. icc-cpi.int/CourtRecords/CR2015_04025.PDF]. 266 Ibid.

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There are many other references to children being the victims of generic atrocity crimes in this case. In describing different attacks, the Katanga judgment repeatedly indicates that children were among the victims, such as in the following extracts: [H]e heard that the attackers had killed one of his sons, aged four years, and one of his daughters and one of his nephews, both aged six years, by machete whilst they were fleeing. He further stated that his older sister’s three young children were killed by machete alongside their mother, who was shot dead.267 The Chamber has thus found that V-2’s baby, killed by machete, and the two-year-old child seen by P-268, shot dead and chopped to pieces by machete, were killed by Lendu.268 Ultimately, the Chamber found that: [F]rom the outset of the attack on Bogoro, the combatants pursued and killed the inhabitants of the village − men, women and children − with machetes and firearms, even though they had no part in the fighting and were fleeing.269 [T]he evidence shows that the battle of Bogoro claimed many victims. The village was littered with corpses, including those of women, children and elderly persons. Some had been cut to pieces by machete, whilst others had been shot dead.270 [T]he Chamber is in a position to establish that at least 60 people were killed on the day of the attack, including at least 25 children.271 … Ultimately, in the Chamber’s view, the attack on Bogoro claimed the lives of many of its inhabitants – the death toll of 60 constituting a minimum – including a significant number of women, children and elderly persons.272 While providing these estimates, the judgment offers a rare glimpse of the complexities of establishing an exact number of victims and their ages in international judicial proceedings for atrocity crimes:273 As to the breakdown of the death toll of the attack, two lists lie before the Chamber, compiled one by Witness P-317 and the other by an inhabitant of Bogoro. The first records 330 dead and missing, including 173 children under the age of 18 … whereas the second records approximately 150 dead. According to P-317 and P-166, the lists contain mistakes and may include 267 268 269 270 271 272 273

Ibid, Ibid, Ibid, Ibid, Ibid, Ibid, Ibid,

para para para para para para para

816, footnotes omitted. 867, footnotes omitted. 817. 836. 838. 841. 837, footnotes omitted.

158 International Courts and Child-Victims of Generic Atrocity Crimes names of living persons, fabricated names or names of UPC soldiers. The Chamber further notes that these two lists do not specify the circumstances of death nor, as concerns P-317’s list, identity (name, age and date of death) or military or civilian status. Moreover, the Chamber notes that Witness CHM1, an investigations team leader in the Office of the Prosecutor, stated that ‘the numbers are very vague’ and are based on witness statements and information provided by organisations present at the scene shortly after the events. 6.3 The Ntaganda case The case against Bosco Ntaganda is the third completed ICC case encompassing generic crimes against children. As noted supra, Ntaganda – like Lubanga – was a high-ranking member of the Patriotic Forces for the Liberation of Congo (FPLC) and tried in relation to attacks attributed to this militia group in Ituri, DRC, in 2002 and 2003.274 On 8 July 2019, he was convicted for conscripting and enlisting children and using them to participate actively in hostilities, as analysed in the previous chapter.275 Ntaganda was also found guilty of other counts of war crimes and crimes against humanity for murder and attempted murder; rape; sexual slavery; persecution; forcible transfer and deportation; ordering the displacement of the civilian population; intentionally directing attacks against civilians; intentionally directing attacks against protected objects; and destroying the adversary’s property.276 The trial judgment contains several references to children, including to children associated with the FPLC and other children who were the victims or among the victims of these generic atrocity crimes. 6.3.1 Generic atrocity crimes committed against children recruited and/or used by the FPLC Unlike Lubanga, who was initially his co-defendant, Ntaganda was charged with rape and sexual slavery committed against the girls recruited by his armed group 274 On 4 June 2004, the ICC pre-trial judges confirmed the charges against Ntaganda, including as a direct and/or indirect co-perpetrator in the enlistment of children under the age of 15 ; as an indirect co-perpetrator in the conscription of children under the age of 15; and as a direct and/or indirect co-perpetrator in the use of children under the age of 15 to participate actively in hostilities – all war crimes allegedly committed between on/or about 6 August 2002 and 31 December 2003 in Ituri, DRC. Prosecutor v Bosco Ntaganda (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, PreTrial Chamber II) ICC-01/04–02/06 (ICC, 9 June 2014), paras 74, 97 [https:// www.icc-cpi.int/CourtRecords/CR2014_04750.PDF];Prosecutor v Bosco Ntaganda (Updated Document Containing the Charges) ICC-01/04–02/06–203-AnxA (ICC, 16 February 2015) (see Counts 14–16). 275 See Chapter 3. 276 Prosecutor v Bosco Ntaganda (Judgment, Trial Chamber VI) ICC-01/04–02/06– 2359 (ICC, 8 July 2019), [https://www.icc-cpi.int/Pages/record.aspx?docNo= ICC-01/04-02/06-2359].

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Diane separately from the charges of recruitment and use of child-soldiers. Marie Amann noted that these charges were very promptly added by the ICC prosecution after the ICC trial judges, through the Lubanga judgment, challenged Fatou Bensouda, the then newly appointed ICC prosecutor, to do so.278 Interestingly, these crimes of rape and sexual slavery committed against UPC/ FPLC child-soldiers were cumulatively charged by the ICC prosecutor, including as war crimes under Article 8(2)(e)(vi) and 8(2)(e)(vi) of the Statute of the ICC. In 2015, Ntaganda’s defence counsel challenged the jurisdiction of the ICC in respect of the concerned counts, submitting that these could not be qualified as war crimes and that war crimes can only be committed against those ‘from another side’ in an armed conflict, not against members of one’s own group.279 Until then, this interpretation had indeed been the prevailing understanding under international humanitarian law. This gave raise to interesting interlocutory jurisprudence, with the ICC judges rejecting the defence’s request.280 They reasoned, inter alia, that types of conduct which are criminalised as war crimes under Article 8 of the Statute of the ICC need not necessarily have been criminalised before that Statute; and that the prohibitions against rape and sexual slavery are peremptory norms.281 Importantly for child-soldiers, they ruled that: It is … a recognised principle that one cannot benefit from one’s own unlawful conduct. It therefore cannot be the case that by committing a serious violation of international humanitarian law by incorporating … children under the age of 15 into an armed group, the protection of those children

277 Prosecutor v Bosco Ntaganda (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, Pre-Trial Chamber II) ICC-01/04–02/06 (ICC, 9 June 2014), para 76 [https://www.icc-cpi. int/CourtRecords/CR2014_04750.PDF]. 278 See Diane Marie Amann, ‘International Decisions: Prosecutor v Lubanga’, American Journal of International Law vol 106 (2012): 816. 279 Prosecutor v Bosco Ntaganda (Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, Trial Chamber VI) ICC-01/04– 02/06–2359 (ICC, 4 January 2017), para 28, [https://www.icc-cpi.int/Cour tRecords/CR2017_00011.PDF]. 280 Ibid, p 30. Before this ICC ruling, the ICRC, in its updated commentary to the First Geneva Convention of 1949, had considered whether members of armed forces sexually or otherwise abused by their own side in an armed conflict would benefit from protection under common Article 3 to the Geneva Conventions, and indicated that such abuse ‘should not be a ground to deny such persons the protection of common Article 3’. See International Committee of the Red Cross, ‘Commentary to the First Geneva Convention of 1949’, 2016 [https://ihl-databases.icrc.org/applic/ ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId= 59F6CDFA490736C1C1257F7D004BA0EC]. 281 Prosecutor v Bosco Ntaganda (Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, Trial Chamber VI) ICC-01/04– 02/06–2359 (ICC, 4 January 2017), paras 40–52, [https://www.icc-cpi.int/Cour tRecords/CR2017_00011.PDF].

160 International Courts and Child-Victims of Generic Atrocity Crimes under that same body of law against sexual violence by members of that same armed group would cease as a result of the prior unlawful conduct.282 The ICC prosecution had argued that ‘the specially protected status of children in times of armed conflict endures notwithstanding any participation in hostilities, except to the limited extent required for targeting by the adverse party’;283 while the legal representative of the victims in that case contended that ‘child soldiers cannot be regarded as regular members of an armed group, because they have a different legal status …’284 This paved the way for the conviction of Ntaganda for rape, sexual violence and exploitation, and sexual slavery committed against children associated with the FPLC.285 Three girl-victims are identified in the judgment.286 The girl referred to under the pseudonym P-0883 was abducted when she was 11 or 12 years old and taken to Bule Camp, where she was trained as a soldier while being repeatedly raped and sexually abused.287 Another girl, Mave, was identified as a soldier escort, believed to have been aged between 11 and 12 at the time;288 she was assigned to Floribert Kisembo, and raped repeatedly by UPC/FPLC soldiers under Ntaganda’s command, to the point that her health significantly Ibid, para 53. Ibid, para 31. Ibid, para 33. Prosecutor v Bosco Ntaganda (Public redacted version of ‘Trial Judgment, Trial Chamber VI) ICC-01/04–02/06–2359-tFRA (ICC, 8 July 2019), paras 818, 949, 954, 964, 974 and conclusion, pp 536–537 [https://www.icc-cpi.int/CourtRecords/ CR2019_03568.PDF]. See also paras 974 and 1196; and for instance, at para 404: ‘… a female soldier part of Mr Ntaganda’s escort was ordered by his chief escort to “act as if [she] were a prostitute” and, in accordance with this order, performed sexual activity with the “enemy”’’. These convictions were confirmed on appeal: Prosecutor v Bosco Ntaganda (Public redacted version of ‘Judgment on the appeal of Mr. Bosco Ntaganda against the decision of Trial Chamber VI of 7 November 2019 entitled “Judgment”’, Appeals Chamber) ICC-01/04–02/06 A A2 (ICC, 31 March 2021), paras 790, 821, 856, 864 and 877 [https://www.icc-cpi.int/CourtRecords/ CR2021_03027.PDF]. 286 Prosecutor v Bosco Ntaganda (Public redacted version of ‘Trial Judgment, Trial Chamber VI) ICC-01/04–02/06–2359-tFRA (ICC, 8 July 2019), paras 410, 974, and conclusion, para 1199, p 528 [https://www.icc-cpi.int/CourtRecords/CR2019_ 03568.PDF]. 287 Ibid, paras 174–188 [https://www.icc-cpi.int/CourtRecords/CR2019_03568.PDF]. Considering this victim, the trial judges clarified that: ‘While the Chamber observes that the Prosecution has not clearly tried to show how the situation of P-0883 (and other individuals who were allegedly under the age of 15 and who were part of the UPC/FPLC and alleged to have been subjected to sexual slavery) differed from being a “child soldier”, as such, the Chamber notes that the evidence establishes that P0883’s situation, as would those of others if they were similarly subjected to sexual violence on a near-continuous basis, was distinguishable from being a “child soldier” as such.’ Ibid, para 977. 288 Ibid, para 400.

282 283 284 285

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As for the third girl, Nadège – who was around nine years old deteriorated. at the time she was victimised – the judgment recognises that she was a victim of rape as a war crime, who ultimately succumbed to a vaginal infection as a result of forced penetration.290 289

6.3.2 Generic atrocity crimes committed against other children In addition to these crimes committed against the children associated with the FPLC, there are several references in the judgment to other children, including babies, being victims of generic atrocity crimes – notably of killings.291 For instance, the trial judgment indicates that during an assault on the village of Kobu, the UPC/FPLC murdered at least two young children, aged three and six years old, as they attempted to flee.292 But in most cases, the judgment fails to specify the childvictims’ age or even to indicate how many children were among the victims. This is the case in relation to the killings of civilians during military assaults – notably on villages in the Banyali-Kilo region and in Walendu-Djatsi, where children were among the casualties;293 and the armed assaults on Mongbwalu during the ‘First Operation’ and Bunia during the ‘Second Operation’, where Ntaganda ordered indiscriminate attacks on civilians and approved of those carrying out the attacks.294 The judgment also describes how, in Kobu-Wadza: Bodies of those killed were discovered in the banana field. There were bodies of men, women, and children, including babies. Some bodies were naked. Some sticks and pounders were lying amongst the corpses, but no other weapons. Some bodies, but not all, had been tied up. Some looked like they had been beaten to death. Some bodies had slit throats, and some had been decapitated …The body of at least one woman looked like she had a baby cut out of her.295 In Songolo, ‘they went from house to house looking for people, and survivors found hiding were beaten or killed, regardless of whether or they were “combatants”. Soldiers killed both men and women, as well as the elderly and children, including babies’.296 289 Ibid, para 411. The judgment indicates that Kisembo eventually intervened once Mave developed health problems due to the repeated rapes and instructed his soldiers to cease harming her; however, none of the soldiers were reprimanded for their conduct. 290 Ibid, paras 410, 974, 981, and conclusion, para 1199, p 528. Ultimately, she was not deemed a victim of the crime of recruitment and use of child-soldiers. 291 Ibid, para 633. 292 Ibid, para 1063. 293 Ibid, paras 873, 889, 893, 911. 294 Ibid, paras 1181, 1182, and 1185. 295 Ibid, para 633, footnotes omitted. 296 Ibid, para 454, footnotes omitted. See also para 665.

162 International Courts and Child-Victims of Generic Atrocity Crimes Also, according to the trial judgment, during the assault in Mongbwalu, ‘some individuals’ were killed, ‘including children and the elderly’;297 and as a result of the attack against Governor Lompondo’s residence, ‘bodies were found in the Governor’s residence, including bodies of women and children’.298 The Ntaganda judgment also records evidence heard to the effect that ‘UPC/ FPLC troops were specifically ordered to fight both Lendu soldiers and Lendu “civilians”, and told that they should kill anyone who remained behind, including children’ – for instance, before attacking Bunia in May 2003.299 Ntaganda was also found guilty of ordering the displacement of the civilian population as a war crime – a crime that undoubtedly caused much suffering for children.300 While it is obvious that children were among the victims, the judgment provides no indication of the number of child-victims, their ages or the extent to which children were impacted by these crimes – for instance, whether children were separated from their families during displacement; whether children were deprived of schooling and education; and the extent to which children endured physical and psychological trauma. The judgment also contains several references to the rape of girls.301 In some instances, it fails to identify the victims, subsuming them under the category ‘women and girls’ – for instance, when finding that ‘during and in the immediate aftermath of the UPC/FPLC assault on Mongbwalu, UPC/FPLC soldiers forced women and girls to have sexual intercourse with them’;302 or in Kobu, where ‘UPC/FPLC soldiers raped detained women and girls …’303 In other instances, the term ‘girls’ is used without specifying their age, in a context where it is unclear whether the victims were under 18, such as in this extract: ‘some UPC/FPLC soldiers used their influence on girls in Kilo to have sexual intercourse with them, and in one instance, forced a detainee to insert his hand into P-0022’s vagina.’304 However, at times the judgment provides specific information about the childvictim, such as in the abovementioned cases of the three girls who were associated with the FPLC; and also in the case of a 13-year-old girl raped by a UPC/FPLC commander and several soldiers.305 Underlining the long-lasting physical and psychological harm that rape inflicts on young girls, the judgment states that the 13-year-old girl-victim bled and had difficulty walking as an immediate result of the rape, and was also unable to speak for a day, indicating that her ‘wounds took several months to heal and required surgery years later. The girl incurred a longlasting fear, which caused her to drop out of school’.306 Another witness, 297 298 299 300 301 302 303 304 305 306

Ibid, para 495; see also para 885. Ibid, para 448. Ibid, para 656. Ibid, para 1075. Ibid – for instance, paras 521–523, 548 and 954. Ibid, paras 518 and 940. Ibid, paras 579 and 940. Ibid. Ibid, para 519. Ibid, para 520 (footnotes omitted).

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testifying under the pseudonym P-0892, stated that one girl who was approximately 14 years old was forced to enter a bedroom and beaten and raped by two UPC/FPLC soldiers.307 Furthermore, it was found that: during the course of the Second Operation, in Kobu, Sangi, Buli, and Jitchu, UPC/FPLC soldiers detained P-0018, P-0019, P-0113, and an 11-year-old girl, for certain periods, in some instances for several days, during which they raped them on one or more occasions, and forced them to carry items and/or prepare food.308 6.4 The Ongwen case The case against Dominic Ongwen is the last of the four completed ICC cases encompassing generic crimes against children. Among the particularly salient points in this case is the sexual and gender-based violence directly perpetrated by Ongwen, including forced marriage, rape, sexual slavery and forced pregnancy; as well as sexual and gender-based violence indirectly perpetrated by Ongwen, such as the abduction of women and girls who were then forced to serve in the Sinia Brigade as ‘wives’ of members of the Sinia Brigade and as domestic servants.309 The ICC judges referred to the victims of the sexual and gender-based violence directly perpetrated by Ongwen as ‘women’, although they also explicitly mentioned that ‘girls’ were among them.310 In relation to his indirect victims, the judgments repeatedly referred to ‘women and girls’, and specifically mentioned younger abducted girls, called ‘ting tings’, who were used as household servants, until such a time as they were considered mature enough to become ‘wives’.311 Ongwen personally decided on the ‘distribution’ of the abducted women and girls and used his authority as commander to enforce the so-called ‘marriages’. Occasionally ‘ceremonies’ would be performed to mark these ‘marriages’. Frequently, no ceremony occurred, and the abducted women and girls were considered ‘wives’ from the first time that they were raped by the man to whom they had been assigned.312 The Ongwen case is particularly significant because it illuminates how the ICC interprets sexual and gender-based crimes, including forced marriage and forced pregnancy. 307 Ibid, para 521. 308 Ibid, para 954. See also ibid, paras 106 and 579, describing how a male UPC/FPLC soldier who testified under the pseudonym ‘P-0017’ indicated that an 11-year-old girl had been captured by Commander Simba in Kobu and brought to Bunia where she was forced to engage in sexual relationships with him to save her life. 309 Prosecutor v Dominic Ongwen (Public Redacted Trial Judgment, Trial Chamber IX) ICC 02/04–01/15 (ICC, 4 February 2021), para 212 [https://www.icc-cpi.int/ Pages/record.aspx?docNo=ICC-02/04-01/15-1762-Red]. 310 Ibid, paras 205–211. 311 Ibid, paras 212–221. 312 Ibid.

164 International Courts and Child-Victims of Generic Atrocity Crimes 6.4.1 Forced marriage The Appeals Chamber addressed at length the situation of Ongwen’s ‘wives’ and the meaning of ‘forced marriage’. It stated that: … the central element of forced marriage is the imposition of a conjugal union and the resulting spousal status on the victim. The notion of ‘conjugal union’ is associated with the imposition of duties and expectations generally associated with ‘marriage’. Forced marriage is not necessarily sexual in nature but entails a ‘gendered harm’, which is essentially the imposition on the victim of socially constructed gendered expectations and roles attached to ‘wife’ or ‘husband’.313 Forced marriage describes a situation in which ‘a person is compelled to enter into a conjugal union with another person by the use of physical or psychological force, or threat of force, or by taking advantage of a coercive environment’. Such a union violates a person’s right to marry, which is recognised as a fundamental right under international human rights law.314 The Appeals Chamber confirmed that forced marriage qualifies as an ‘other inhumane act’ within the meaning of Article 7(1)(k) of the Statute315 and affirmed the residual nature of this provision, declaring that the term ‘character’ found in it refers to the nature and gravity of the act; and that a conviction can be entered if the act stemming from the perpetrator’s conduct – despite falling under one or more of the other enumerated crimes – is ‘in its entirety, not identical, but … nonetheless “similar” in character in terms of nature and gravity, to those enumerated crimes’.316 It underlined that ‘not any act will amount to “an other inhumane act” within the meaning of article 7(1)(k)’. Article 7(1)(k) of the Statute and the Elements of Crime require an act to be of a similar nature and gravity to any other act referred to in Article 7(1): such act must result in great suffering or serious injury to body or to mental or physical health; and must also be part of a widespread or systematic attack directed against any civilian population.317 This distinguishes the ICC Statute from the Nuremberg, ICTR and ICTY Statutes: while the Nuremberg Charter and the ICTR and ICTY Statutes left a broad margin for the jurisprudence to determine its limits, the Rome Statute contained certain delimitations with regard to the action that constitutes an inhumane act and the consequence required as a result of that action. This, the Appeals Chamber determined, made the scope of ‘other inhumane acts’ as prescribed under Article 7(1)(k) sufficiently clear and precise to satisfy the principle of nullum crimen sine lege.318 313 Prosecutor v Dominic Ongwen (Public Redacted Judgment on the Appeal of Mr Ongwen against the Decision of Trial Chamber IX of 4 February 2021 entitled ‘Trial Judgment’) ICC-02/04-01/15 A (ICC, 15 December 2022), para 15 [https:// www.icc-cpi.int/court-record/icc-02/04-01/15-2022-red], footnotes omitted. 314 Ibid, para 1024. 315 Ibid, para 41. 316 Ibid, paras 2745–2747. 317 Ibid, paras 1017–1018. 318 Ibid, para 1019.

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The Trial Chamber having determined that sexual slavery and forced marriage were distinct crimes,319 the defence had argued on appeal that ‘forced marriage and sexual slavery share the same protected interest of violence against physical integrity and the deprivation of liberty’.320 The Appeals Chamber confirmed the Trial Chamber’s findings that the ‘interest protected by this crime is distinct from that of sexual slavery’.321 It contended that the conduct underlying forced marriage and its impact on victims is not captured by other crimes against humanity such as sexual slavery and rape. It elucidated that: [the] fundamental nature of the crime of sexual slavery is reducing a person to a servile status, and depriving him or her of his or her liberty and sexual autonomy, whereas for the crime of rape, it is the invasion of a sexual nature, of a person’s body, and the attack on his or her sexual autonomy.322 It stated further that: ‘the interest protected by forced marriage as a form of other inhumane acts is not necessarily “violence against physical integrity and deprivation of liberty”… but, crucially, a person’s right to freely choose one’s spouse and consensually establish a family.’323 6.4.2 Forced pregnancy Ongwen marked the first time that the ICC considered forced pregnancy, based on Articles 7(1)(g) and 8(2)(e)(vi) of its Statute.324 Having reviewed the historical circumstances surrounding the adoption of these provisions,325 the Trial Chamber emphasised the importance of interpreting forced pregnancy in a manner which gives it an independent meaning from the other sexual and gender-based violence crimes found in the ICC Statute.326 It concluded that the crime of forced 319 Prosecutor v Dominic Ongwen (Public Redacted Trial Judgment, Trial Chamber IX) ICC 02/04–01/15 (ICC, 4 February 2021), para 2751 [https://www.icc-cpi.int/ Pages/record.aspx?docNo=ICC-02/04-01/15-1762-Red]. 320 Prosecutor v Dominic Ongwen (Public Redacted Judgment on the Appeal of Mr Ongwen against the Decision of Trial Chamber IX of 4 February 2021 entitled ‘Trial Judgment’) ICC-02/04-01/15 A (ICC, 15 December 2022), para 1663 [https:// www.icc-cpi.int/court-record/icc-02/04-01/15-2022-red]. 321 Ibid, para 41. 322 Ibid, paras 1678–1680. 323 Ibid, para 1683. 324 Prosecutor v Dominic Ongwen (Public Redacted Trial Judgment, Trial Chamber IX) ICC 02/04–01/15 (ICC, 4 February 2021), para 2717 [https://www.icc-cpi.int/ Pages/record.aspx?docNo=ICC-02/04-01/15-1762-Red]. 325 Ibid, paras 2718–2721. 326 Ibid, para 2722. The court justified this stance by referring to the rule against surplusage and the principle of fair labelling. The former is ‘a basic principle of statutory interpretation that presumes that the legislator does nothing in vain and that the court must endeavour to give significance to every word of a statutory instrument’; and the latter is about ‘the proper characterisation of the evil committed, that is to say, calling the crime by its true name, is part of the justice sought by the victims’.

166 International Courts and Child-Victims of Generic Atrocity Crimes pregnancy hinges on the unlawful confinement of a forcibly impregnated woman, with the effect that the woman is deprived of reproductive autonomy.327 The defence having challenged this interpretation – in particular with respect to the Trial Chamber’s decision that the crime seeks to protect a ‘woman’s right to personal and reproductive autonomy and the right to family’328 – the Appeals Chamber undertook its own dive into the historical circumstances surrounding the adoption of the relevant text. It concluded that a perusal of the drafting history revealed that the crime of forced pregnancy was considered since its inception to be an attack on reproductive integrity.329 It further reasoned that the fact that forced pregnancy is criminalised separately from other crimes listed in Article 7(1), such as rape and imprisonment, implies that the crime is intended to protect a victim’s reproductive rights, including the right to be pregnant and to autonomously determine the way in which she carries out her pregnancy.330 It confirmed the Trial Chamber’s findings and declared that the crime of forced pregnancy ‘seeks to protect, inter alia, a woman’s reproductive health and autonomy and the right to family planning’.331 Remarkably, the Appeals Chamber underlined that: … [the] unlawful confinement of women made pregnant can impact a number of their sexual and reproductive rights. Indeed, women in those circumstances are prevented from accessing healthcare services and information which may facilitate their decision-making on the pregnancy, including abortion. Therefore, the definition provided in article 7(2)(f) of the Statute indicates that the main focus of this crime is to protect a woman’s reproductive autonomy.332

7 Conclusion Thus far, the ICC appears to have largely followed the SCSL’s lead: focusing on the child-specific crime of recruiting and using child-soldiers, and only partially exposing the impact of generic international crimes on children, often in broad undefined terms. However, because of the still very small number of cases completed by the ICC to date, it remains challenging to assess its contributions to highlighting generic crimes against children. In addition to the above cases, there are several others at the ICC that concern or could be extended to cover generic international crimes against children, including cases under appeal, deliberation or at trial; and also other cases under investigation or even in the preliminary examination stages. Thus, it is expected that the jurisprudence on child-generic crimes will continue to expand at the ICC.

327 Ibid, para 2722. 328 Prosecutor v Dominic Ongwen (Public Redacted Judgment on the Appeal of Mr Ongwen against the Decision of Trial Chamber IX of 4 February 2021 entitled ‘Trial Judgment’) ICC-02/04-01/15 A (ICC, 15 December 2022), paras 1041–1043 [https://www.icc-cpi.int/court-record/icc-02/04-01/15-2022-red]. 329 Ibid, paras 1052–1054. 330 Ibid, para 1055. 331 Ibid, para 41. 332 Ibid, para 1055.

5

International Courts and Children Involved in International Crimes

Regardless of where and when international crimes are committed, children are always among the victims, as seen in the previous chapters. In environments such as the genocide in Rwanda in 1994, the conflict of the 1990s in Sierra Leone and the ongoing conflicts in Nigeria and Syria, to mention just a few cases, the lives of children are drastically disrupted, with many norms and values discarded or even reversed. These environments may lead – and indeed have led – some children to participate in international crimes. Why do children commit international crimes? Some may be encouraged by their families, friends, teachers or leaders – arguably to ‘defend’ their community; while others may be coerced. Children may be deliberately abducted or recruited by armed groups, for the very reason that they are deemed malleable and more easily pressured or coerced into committing atrocities. Children associated with armed groups or forces may be among those at risk of involvement in international crimes; however, not all child-soldiers commit crimes. Conversely, some children – notably those involved with youth militia or criminal gangs in situations of violence that may not amount to an armed conflict – may be in conflict with the law.1 Should the children allegedly responsible for international crimes be held criminally accountable? Can and have they been tried by international courts? Is there a specific age of criminal responsibility for grave international crimes? This chapter seeks to answer some of these questions. It starts with a short review of the applicable standards in terms of minimum age of criminal responsibility and juvenile justice. It then focuses on whether international criminal jurisdictions have considered children’s criminal responsibility. It shows that international criminal courts have consistently avoided addressing crimes committed by children. This has largely been due to deliberate prosecution policies followed by all tribunals since Nuremberg, which have focused on individuals bearing the greatest

1 Child protection actors, in particular the United Nations Children’s Fund (UNICEF), euphemistically use the terms ‘children in conflict with the law’ or even ‘children in contact with the law’ to refer to children who are alleged or convicted to have participated in crimes.

DOI: 10.4324/9781003361015-5

168 Children Involved in International Crimes responsibility in crimes, and in so doing have largely not been concerned by crimes committed by children. This chapter then turns to the challenges pertaining to the appearance of children involved in crimes as witnesses before international courts, before asking what is ultimately in the best interests of children involved in atrocity crimes and briefly reviewing how some transitional justice mechanisms have dealt with children involved in such crimes. This chapter argues that some form of acknowledgement of the crimes – as long as it is conducted in a protective environment – may be in the best interests of the children concerned, their victims and their communities; and may better serve children’s reintegration.

1 Minimum age of criminal responsibility and juvenile justice The United Nations Convention on the Rights of the Child (CRC) explicitly recognises that children can ‘infringe’ the laws and be held judicially accountable for such infringements.2 Article 40(3) of the CRC provides that:3 States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: (a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law; (b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. Thus, the CRC envisages a protective architecture composed of two parts, depending on the age of the child concerned. Younger children – those below an undefined minimum age of criminal responsibility – should be presumed not to be criminally responsible because they are incapable of infringing penal laws. For children older than the defined minimum age, while they can be tried, the modalities known as those of juvenile justice should apply and the primary objectives should be rehabilitation and reintegration. 1.1 Juvenile justice Juvenile justice should conform to all relevant international standards introduced above in Chapter 2, including the CRC provisions – notably Article 40(4), which envisages that:4 2 See in particular Articles 37 and 40. Article 40(1) calls on states to recognise and respect the rights of children who are ‘accused of, or recognized as having infringed the penal law’. Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, arts 37, 40 (CRC). 3 CRC, art 40(3). 4 Ibid, art 40(4).

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A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence. Other applicable standards for juvenile justice include the 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice;5 the Guidelines for the Prevention of Juvenile Delinquency;6 the Guidelines for Action on Children in the Criminal Justice System;7 and the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime.8 The Committee on the Rights of the Child has indicated that:9 [I]n all decisions taken within the context of the administration of juvenile justice, the best interests of the child should be a primary consideration. Children differ from adults in their physical and psychological development, and their emotional and educational needs. Such differences constitute the basis for the lesser culpability of children in conflict with the law. These and other differences are the reasons for a separate juvenile justice system and require a different treatment for children. The protection of the best interests of the child means, for instance, that the traditional objectives of criminal justice, such as repression/retribution, must give way to rehabilitation and restorative justice objectives in dealing with child offenders. States are therefore required to develop and implement comprehensive juvenile justice policies that guarantee a fair trial; are non-discriminatory; treat all children equally; and are articulated around three key elements: prevention, diversion and reintegration. Reintegration should be the ultimate purpose of a juvenile justice system. Article 40(1) of the CRC stresses ‘the desirability of promoting the child’s 5 UNGA Res 40/33 (29 November 1985) UN Doc A/Res/40/33 (United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘Beijing Rules’)). 6 UNGA Res 45/112 (14 December 1990) UN Doc A/Res/45/112 (United Nations Guidelines for the Prevention of Juvenile Delinquency. 7 ECOSOC Res 1997/30 (21 July 1997) UN Doc (Guidelines for Action on Children in the Criminal Justice System, Recommended by Economic and Social Council [http s://www.ohchr.org/EN/Professionalinterest/Pages/CriminalJusticeSystem.aspx]. 8 ECOSOC Res 2005/20 (25 July 2005) (Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime) [https://www.un.org/en/ecosoc/docs/ 2005/resolution%202005-20.pdf]; see also UNGA Res 65/228 (31 March 2011) UN Doc A/RES/65/228 (Updated Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice) [https://www.unodc.org/documents/justice-and-prison-reform/crimep revention/Model_Strategies_and_Practical_Measures_on_the_Elimination_of_Vio lence_against_Women_in_the_Field_of_Crime_Prevention_and_Criminal_Justice. pdf]. 9 UN Committee on the Rights of the Child (25 April 2007) UN Doc CRC/C/GC/ 10, para 10 (General Comment No 10 (2007) Children’s rights in juvenile justice).

170 Children Involved in International Crimes reintegration and the child’s assuming a constructive role in society’.10 Juvenile justice seeks to obtain change by helping and supporting juvenile offenders with acknowledging their responsibility, feeling accountable for their actions and understanding the harm they have caused to others. It encourages restitution, promotes reconciliation and draws upon restorative justice methods by involving the child, family members, victims and communities. Yet states’ practices vary widely from one country to another, because states and societies differ in what they deem as appropriate handling of juvenile offenders. There are very few juvenile justice systems in the world which work according to the standards and are truly based upon the principles of prevention, diversion and reintegration. Whether children are to be punished as adults or whether efforts are devoted to understanding the circumstances that led them to participate in crimes depends on what is considered acceptable at a given point in time by a given society. Some states permit the trial of children by ‘normal’ criminal justice systems designed for adults; while others have sophisticated juvenile justice systems and offer alternative restorative treatment to children in conflict with the law. In many countries, juvenile justice is not a top priority for governments and lawmakers, and is thus underdeveloped and underfunded. Too often, certain categories or groups of children face de facto discrimination, on racial or other grounds – for instance, indigenous children, girls or former child-soldiers. There are also limits to the types of punishments that can be pronounced by a court against children. The CRC explicitly prohibits the death penalty11 and life sentences without release or parole.12 No child shall be unlawfully or arbitrarily deprived of his or her liberty; and deprivation of liberty – including arrest, detention and imprisonment – should be used only as a measure of last resort and should only happen for the shortest appropriate period of time.13 Because deprivation of liberty is a measure of last resort and should last for the shortest appropriate period of time, alternatives to custodial sentencing must be available for children. These include counselling; probation; community service and community monitoring; day report centres; foster care; educational and training programmes; and other alternatives to institutional care.14 1.2 Minimum age of criminal responsibility The laws of many states stipulate a minimum age of criminal responsibility. Even if they have committed a criminal offence, children younger than that age cannot be formally charged with an offence or subjected to any criminal legal proceedings. The CRC does not set a clear minimum age of criminal responsibility. Article 40(3) of the CRC merely requires that states ‘shall seek to promote the 10 11 12 13 14

CRC, art 40(1). Ibid, art 37(a). Ibid. Ibid, art 37(b). Ibid, art 40(4).

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establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law’.15 Other international instruments, including the Beijing Rules, do not provide unequivocal guidance. Rule 4 indicates that: in those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.16 The Committee on the Rights of the Child has repeatedly recommended that states parties to the CRC increase the minimum age of criminal responsibility. For those states that do not have such a minimum age, the Committee has recommended that the age from which a child can be held criminally responsible be clearly set in the law and not be left to the court.17 While it has not determined such a minimum age, in its General Comment Number 10, the Committee has indicated that it regards 12 years old as the ‘absolute minimum’ age for criminal responsibility. It has also urged countries ‘to continue to increase it to a higher age level’.18 The set minimum age of criminal responsibility diverges considerably from one state to another, as different states’ laws or practices determine different minimum ages of criminal responsibility and the standards have evolved over time. In some states, the age of criminal responsibility is as low as seven; in others, it is 18. The most common minimum age of criminal responsibility appears to be 14. There is no global consensus regarding the youngest age at which a child can be deemed to form a criminal intent and be tried and convicted of a criminal offence. In some states, the age of criminal responsibility is lowered for serious offences. Those supportive of a lower age of criminal responsibility often react to headlinegrabbing media reports on the participation of children in serious crimes – for instance, where children are part of a gang involved in drug trafficking. In some cases, children released by armed groups have been detained – and sometimes tried and convicted – for their participation in hostilities, and sometimes merely for their association with armed groups. Some legal scholars have pleaded for the establishment of a minimum age of criminal responsibility in international law.19 Should there be such an age, at least 15 Ibid, art 40(3). 16 Beijing Rules, rule 4. 17 In some states, the age from which a child can be held criminally responsible depends on an individual assessment of her or his maturity by the court. This is problematic because imprecision leaves a wide margin of appreciation to the court and can lead to arbitrary decisions, in which a judge may be influenced by his or her own personal experience, societal beliefs or personal assessments. For example, in some countries, the minimum age of criminal responsibility is based on puberty. 18 General Comment No 10, para 33. 19 See Matthew Happold, ‘The Age of Criminal Responsibility for International Crimes under International Law’, in International Criminal Accountability and the Rights of Children, edited by Karin Arts and Vesselin Popvski (The Hague: Hague Academic

172 Children Involved in International Crimes for those children alleged to have committed international crimes? Answering this question would require determining whether children are capable of forming the criminal intent required for international crimes to be constituted. Can a child ever have a genocidal intent – namely the intent to destroy in whole or in part a specific ethnic, national, racial or religious group? Or can a child comprehend that his or her act is part of a widespread or generalised attack against a civilian population? Or can a child establish the nexus between the killing that he or she is about to commit and the ongoing armed conflict? From what age can a child make such determinations? When are children able, or when should they be presumed to be capable, of forming the requisite complex criminal intent required for these complex crimes? While answering these questions would go beyond the scope of this research, it is noteworthy that in the absence of an established minimum age of criminal responsibility in international law, the statutes of some international and hybrid courts have been silent on whether these courts could try children, which implicitly gives them a mandate over any individual, irrespective of age. Alternatively, the statutes have had a jurisdictional age threshold which excludes from their competence children below a certain age, as is reviewed in the next section.

2 International criminal jurisdictions and children involved in crimes As already mentioned, each international or hybrid court has its own specific mandate. So far, only a few of those courts have had an explicit jurisdictional age threshold, including the Special Court for Sierra Leone (SCSL) and the International Criminal Court (ICC). Yet, with only one exception, all these courts have focused on adult perpetrators and have not been concerned with child-offenders. Starting with the International Military Tribunals of the post-Second World War period, international tribunals have not investigated or prosecuted crimes committed by children. The only exception was before the Special Panels for Serious Crimes in East Timor – an oddity where the child concerned was ultimately not convicted of an international crime. Instead, all these tribunals have focused on the prosecution of high-ranking leaders, omitting children from their scrutiny. This was even the case before the SCSL, despite the local demands and expectations that it would prosecute some of those under 18 years of age who committed atrocities. This situation largely results from the international courts’ prosecutorial strategies and use of prosecutorial discretion. In accordance with their limited mandates and resources, international criminal prosecutors concentrate on those bearing the greatest responsibility, commonly seen as those who planned or orchestrated widespread criminal activity. In so doing, they do not pursue the offences committed by children, who do not usually occupy positions of authority and Press, 2006); or Sonja Grover, Child Soldier Victims of Genocidal Forcible Transfer: Exonerating Child Soldiers Charged with Grave Conflict-related International Crimes (Berlin: Springer, 2012).

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responsibility. However, it is important to note that even if international or hybrid courts are not considered appropriate fora to prosecute children under the dominant prosecutorial strategy, competent national courts are not precluded from trying children. This is especially noteworthy for the ICC, as that Court does not have primacy over domestic courts, but rather complements them. 2.1 The International Military Tribunals of Nuremberg and Tokyo The statutes of the International Military Tribunals of Nuremberg and Tokyo do not explicitly exclude children; nor do they set jurisdictional age limits.20 But their prosecution policies focused on those bearing the greatest level of de jure responsibility, per their respective mandates to try and punish ‘the major war criminals’, and not young perpetrators. 2.1.1 The International Military Tribunal of Nuremberg It is by now well documented that the Nazi regime deliberately brainwashed children in the National Socialist ideology – notably through education reform and through compulsory membership in the Hitler Jugend.21 Many children living under Nazi rule were directly involved in combat operations, especially in the late stages of the Second World War; and there are reasons to believe that their involvement extended to the commission of war crimes and other international crimes, in particular for those who joined the ranks of the Schutzstaffel (SS).22 Evidence of atrocity crimes committed by children under the command and responsibility of Nazi leaders would most probably have been available had the investigators and prosecutors of the Nuremberg Tribunal been looking for it. But they did not devote particular attention to the involvement of children in these crimes or to their indoctrination. Overall, the Nuremberg judgment described youth as being complicit in furthering the aims of Nazi Germany; but there are no allegations attributed to specific individuals and little information on children’s involvement in the commission of atrocity crimes.23 The charges retained before the Nuremberg Tribunal, in particular against Baldur von Schirach, related to the role of the Hitler Jugend: von Schirach was found responsible notably for using the Hitler Jugend organisation to educate 20 It is important to note that both of these tribunals were established well before the adoption of the CRC and before there was an internationally accepted definition of ‘children’. 21 By 1939, membership of the Hitler Jugend was compulsory for all children of a certain age. Judgment of 1 October 1946, 22 IMT 203 (IMT 1946), {512} [http://werle. rewi.hu-berlin.de/IMTJudgment.pdf]. 22 On Himmler’s insistence, after 1933, new recruits into the elite SS were to be under 25 years of age. The SS later become one of the primary ports of entry into the leadership of Nazi party after selected members of the Hitler Jugend reached the age of 18. Gerhard Rempel, Hitler’s Children: The Hitler Youth and the SS (Chapel Hill: University of North Carolina, 1989), 24. 23 See Chapter 3.

174 Children Involved in International Crimes German youth ‘in the spirit of National Socialism’ and subjecting them to an intensive programme of Nazi propaganda.24 But unlike the SS and other branches affiliated with the Nazi Party, the Nuremberg judges did not qualify the Hitler Jugend as a criminal enterprise.25 von Schirach made an impassioned defence of the Jugend before the Nuremberg Tribunal. Responding to a statement from the British prosecution that ‘Schirach corrupted millions of German children so that they became what they really are today, the blind instruments of that policy of murder and domination which these men have carried’, he declared:26 If this charge were justified I would not say a word in my defense. However, it is not justified; it is untrue … In this hour, when I can speak for the last time to the Military Tribunal of the four victorious powers, I should like, with a clear conscience, to confirm the following on behalf of our German youth: that it is completely innocent of the abuses and degeneration of the Hitler regime which were established during this Trial, that it never wanted this war, and that neither in peace nor in war did it participate in any crimes … in spite of the fact that its membership counted millions, the youth, as a matter of principle and without exception, kept itself apart from any actions of which it would have to be ashamed today. It knew nothing of the innumerable atrocities which were committed by Germans; and just as it knew of no wrongs, it did not wish any wrong … The Nuremberg Tribunal ultimately did not deem the activities of the Hitler Jugend to constitute a crime under the Tribunal’s statute, as already mentioned.27 While certain sections of the Stahlhelm youth organisations were initially listed among the criminal organisations, the prosecution later recommended their exclusion.28 Overall, the judgment contains few references to the role that children played in the execution of crimes and the responsibilities of those who systematically recruited them and subjected them to propaganda. 2.1.2 The International Military Tribunal of Tokyo Similar to the Nuremberg Tribunal, the International Military Tribunal for the Far East, based in Tokyo, did not try any children and its judgment contains scant references to the participation of children in crimes.

24 See Chapter 4. 25 Ibid. 26 Two Hundred and Sixteenth Day, Saturday, 31 August 1946, Nuremberg Trial Proceedings Volume 22, 391–393 [https://avalon.law.yale.edu/imt/08-31-46.asp]. 27 Ibid {512}. See Chapter 4. 28 See ‘Volume 22 of the Trial Proceedings dated 29 August 1946’, paras 205–206, The Avalon Law Project, Yale Law School, 2008 [http://avalon.law.yale.edu/imt/im tconst.asp#sec1].

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It is especially puzzling that the role of Dai-Nippon Seinen-to, also known as the Dai Nippon Sekisei-kai – the youth organisation created by Kingoro Hashimoto, who was among those tried by the Tribunal – was not examined in the judgment, as reviewed in Chapter 4.29 Modelled after the Hitler Jugend, it aimed to teach Japanese youth basic survival skills, first aid, life skills, cultural lessons, traditions and basic weapons training.30 The Tokyo Tribunal found that:31 HASHIMOTO, while engaged in founding his Greater Japan Young Men’s Society, was, in all his writings and utterances, preparing Japanese public opinion for war … Later in 1936, HASHIMOTO published the declaration, which embodied the aims of his new society. In this document, he said that Japan should increase her armaments to the amount absolutely necessary for conquering other countries of different principles that tried to hinder her from achieving the ‘Imperial Way.’ The judgment also stated that for Hashimoto: ‘To achieve the renovation the blood and enthusiasm of young men were required; and it was the purpose of the Greater Japan Young Men’s Society to supply this need.’32 The fact that the judgment did not further examine the possible role of Japanese children ultimately hindered any real grasp of the extent to which they were not only victims of systematic indoctrination, but also quite possibly perpetrators of crimes. Children are discussed only in relation to the crimes of war preparations to demonstrate how well planned the defendants’ actions were and how their efforts of indoctrination bolstered their war preparations. This demonstrates again how the prosecutorial strategies followed by international prosecutors, notably in Tokyo, emphasised the role of high-ranking leaders and omitted children from scrutiny. 2.2 The International Criminal Tribunal for the former Yugoslavia Like its predecessors, the International Criminal Tribunal for the former Yugoslavia (ICTY) did not have a clear age-based jurisdictional limit. Therefore, it was not restricted from looking into the penal responsibility of children involved in international crimes in the former Yugoslavia. But it never did so; instead, the ICTY focused on older individuals – in particular, on individuals deemed to have the 29 See Chapter 4. See also ‘Subject no 343-Hashimoto, Kingoro’, The International Military Tribunal for the Far East, University of Virginal Law Library, March 1946 [http://imtfe.law.virginia.edu/collections/tavenner/8/2/subject-no-343-hashim oto-kingoro]. 30 Judgment of 4 November 1948 (International Military Tribunal for the Far East), reprinted in John R Pritchard and Sonia M Zaide, The Tokyo War Crimes Trial vol 22 (New York: Garland Publishing, 1981), {48,588} [https://werle.rewi.hu-berlin.de/ tokio.pdf]. 31 Ibid {48,592}. 32 Ibid {48,586}.

176 Children Involved in International Crimes highest responsibility for crimes falling within the Tribunal’s mandate. For Carla Del Ponte, as mentioned supra, ‘those bearing the highest responsibility’ encompassed those holding high official positions, both de jure and de facto, as well as some individuals responsible for particularly egregious crimes.33 Apparently, for the ICTY prosecutors, no child fell within either category and therefore not a single child was tried by the ICTY. Importantly, however, in the Oric´ judgment, the ICTY judges made a crucial pronouncement concerning children’s accountability by underlining that the proposition that ‘there can be no criminal liability for a war crime committed by an individual below the age of 18 … is … completely unfounded in law, as no such rule exists in conventional or customary international law’.34 There are also occasional references in the ICTY case law to the involvement of children in international crimes. For example, the Kunarac et al trial judgment refers to a rape committed by a 15 or 16-year-old boy:35 ‘D.B. … was separated from FWS-75, taken to a room and raped first by Jure, then by “Gaga” and next by a young boy of 15 or 16 years of age.’ The Delic´ trial judgment also includes two mentions of children participating in crimes. First, it describes how a ‘young boy’, without specifying his age, beat and broke a soldier’s nose:36 ‘Upon their arrival … Marinkovic´ was forced to bend down to allow a young boy to hit him repeatedly, breaking his nose.’ Second, the judgment also refers to the involvement of two boys in torture:37 A Mujahedin boy joined in the attack by removing one of Aksentic´’s boots and biting his toes. Another Mujahedin boy, approximately 12 years old and from Saudi Arabia, cut Velibor Trivicˇ evic´’s ears with a pocket knife and stepped on Branko Ŝikanic´’s throat while Ŝikanic´ was physically restrained. While the conflicts in the former Yugoslavia are not known to have involved masses of children in the perpetration of atrocity crimes, there is anecdotal evidence that certain groups that committed international crimes may have included young people, most probably under 18 years of age. Although there were references to children involved in international crimes, the ICTY – similar to the

33 See Chapter 4. See Carla Del Ponte, ‘Prosecuting the Individuals Bearing the Highest Level of Responsibility’, Journal of International Criminal Justice vol 2, no 2 (June 2004): 516–519 [https://doi.org/10.1093/jicj/2.2.516]. 34 Prosecutor v Naser Oric´ (Judgment) IT-03–68-T 30, para 400 (ICTY 2006) [https:// www.icty.org/x/cases/oric/tjug/en/ori-jud060630e.pdf]. In footnote 1177, the judgment adds: ‘Reference to Article 26 of the Rome Statute is of no relevance as the age limit mentioned therein is only for jurisdictional purposes.’ 35 Prosecutor v Dragoljob Kunarac, Radomir Kovac and Zoran Vukovic (Foca case) Judgment, Trial Chamber) IT-96–23-T & IT-96–23/1-T, para 643 (ICTY 2001) [https://www.icty.org/x/cases/kunarac/tjug/en/kun-tj010222e.pdf]. 36 Prosecutor v Rasim Delic´ (Judgment, Trial Chamber) IT-04–83-T, para 245 (ICTY 2008) [http://www.icty.org/x/cases/delic/tjug/en/080915.pdf]. 37 Ibid, para 247.

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Nuremberg and Tokyo Tribunals – focused not on children, but on those older perpetrators who bore the highest responsibility in the crimes. 2.3 The International Criminal Tribunal for Rwanda The jurisdiction of the International Criminal Tribunal for Rwanda (ICTR), largely mirroring the ICTY’s mandate, did not exclude children. Similar to the ICTY, the ICTR did not try a single individual for crimes committed as a child, focusing instead on those its prosecutors deemed to bear the highest responsibility for the crimes committed. However, unlike the situation in the former Yugoslavia – where, apparently, children only infrequently participated in crimes – in Rwanda, many children were involved in the commission of atrocities in 1994, including genocide. As mentioned above, different Rwandese militia – notably the infamous Interahamwe – included many children, often labelled ‘youth’.38 Militia members of all ages played a role in the execution of the genocide: they erected and manned roadblocks in the streets, using them to identify, capture and kill Tutsis; and they hunted Tutsis who were seeking to flee and escape the massacres. Many children directly participated in these crimes, which were often carried out collectively, with several persons participating simultaneously in the massacre of several other persons, including many children as analysed in the previous chapters. From the viewpoint of those who orchestrated the genocide, the participation of children was particularly ‘useful’ considering the primary means used to kill: machetes. Because it usually took several machete blows to kill a human, and usually more than one person to carry it out, this egregious pattern viciously encouraged the participation of hundreds of thousands of persons in the crimes, including many children. It is also noteworthy that the age composition of the Rwandese population was very young in the 1990s and remains so today: children comprise over 40% of the country’s inhabitants.39 The ICTR’s indictments and judgment include many references to how youth militia wings were provided with weapons and trained in the lead-up to the genocide, and later incited to kill.40 They identified how different political parties established youth wings, which subsequently received military training and were 38 See Chapter 4. 39 See Chapter 4; World Population Dashboard, United Nations Population Fund [http s://www.unfpa.org/data/world-population-dashboard]. 40 Following a standard model, many indictments provide a historical background, in which they reference militia youth wings. For instance, see Prosecutor v Jean Bosco Barayagwiza: ‘Most of the political parties had created a youth wing. The members of the MRND’s youth wing were known as the “Interahamwe” and those of the CDR were known as the “Impuzamugambi.” Most of the MRND and CDR youth wings’ members subsequently received military training and were thus transformed from youth movements into militias.’ Prosecutor v Jean Bosco Barayagwiza (Amended Indictment) ICTR-99–52, para 3.7 (ICTR 13 April 2000) [https://unictr.irmct.org/ sites/unictr.org/files/case-documents/ictr-99-52/indictments/en/000413.pdf].

178 Children Involved in International Crimes thus transformed from youth movements into militia. The Interahamwe (linked to the National Revolutionary Movement for Development (MRND)) and the Impuzamugambi (associated with the Coalition for the Defence of the Republic (CDR)) were financed, trained and led by prominent civilians and military figures.41 The following extract provides one such example:42 … Augustin NGIRABATWARE, went to the roadblock … and gave 30,000 Francs to the Interhamwe youths manning the roadblock, including Honoré NDAYAMIYEMENSHI, as encouragement for their work in capturing and killing Tutsis, and thereby planned, instigated, ordered and aided and abetted the involvement of the youths manning the roadblock, in the capture and extermination of members of the Tutsi population … Youth militia were also issued with weapons, with the complicity of certain military and civilian authorities. They were transported to training sites, including certain military camps, in public administration vehicles or vehicles belonging to companies controlled by the president’s close circle.43 The case law of the ICTR also provides passing evidence that children were instrumentalised to aid and abet in the commission of international crimes – for example:44 ‘… NSENGIMANA gave a young orphan some money (about 30.000 Rwandan Francs) to get information about the hiding places of the three Tutsi priests who had fled the Christ – Roi College.’ Often, the references use broad categories, such as ‘youth’ or ‘students’, which point to children but are not sufficiently clear about the age of the individuals to provide certainty of children’s involvement. One such example reads: ‘As a direct consequence of these statements, the Hutu students (about 700) launched an attack against the Tutsi students (about 100), who fled the college.’45 What age group were these ‘students’? Is the term ‘students’ meant to be synonymous with pupils or schoolchildren, or are they separate categories? The use of vague terms such as those in much of the ICTR jurisprudence does not answer these questions and leaves open to interpretation whether those involved were children. In Rwanda, it is the national accountability mechanisms, including the Gacaca courts, more than the ICTR which somehow answered some of the interrogations

41 Ibid. 42 Prosecutor v Augustin Ngirabatware (Amended Indictment) ICTR-99–54, para 24 (ICTR 13 April 2009) [http://www.unictr.org/Portals/0/Case/English/Ngiraba tware/indictment/090413-amend.pdf]. 43 Prosecutor v Jean Bosco Barayagwiza (Amended Indictment) ICTR-99–52, para 1.19 (ICTR 13 April 2000) [https://unictr.irmct.org/sites/unictr.org/files/case-docum ents/ictr-99-52/indictments/en/000413.pdf]. 44 Prosecutor v Hormisdas Nsengimana (Indictment) ICTR-01–69, para 25 (ICTR 8 August 2001) [https://unictr.irmct.org/sites/unictr.org/files/case-documents/ ictr-01-69/indictments/en/010810.pdf]. 45 Ibid, para 10.

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on the extent of children’s participation in crimes, although not necessarily in a very specific manner.46 2.4 Hybrid or mixed courts The statutes and mandates of hybrid or mixed courts result from negotiations with the pertinent country and may accommodate the prevailing national laws or views pertaining to the accepted age of criminal liability. Hence, some of the hybrid courts have been competent to try children for crimes falling within their mandates. This has been the case for the Special Panels for Serious Crimes in East Timor, which was competent for persons over the age of 12;47 the War Crimes Chamber in the Court of Bosnia-Herzegovina, for persons over 14;48 and the SCSL, for persons over 15.49 It is particularly significant that those hybrid courts with jurisdiction over children decided not to invoke it, with the exception of one sole – and anomalous – case tried by the Special Panels for Serious Crimes in East Timor. 2.4.1 The Special Panels for Serious Crimes in East Timor The Special Panels for Serious Crimes in East Timor is the only hybrid or internationalised court in which a child has been formally charged and tried to date. As mentioned, its jurisdiction extended to any person over the age of 12, according to Section 45 of the applicable Transitional Rules of Criminal Procedure.50 In a highly unusual case, the accused – known under the pseudonym ‘X’ – was indicted in May 2002 for crimes against humanity for extermination and attempted extermination, after killing three young men in the Passabe massacre in Oecusse, East Timor when s/he was 14 years old.51 46 Jastine C Barrett, Child Perpetrators on Trial: Insights from Post-Genocide Rwanda (Cambridge: Cambridge University Press, 2019). According to different sources, it has been estimated that around 4,500 children were detained in Rwanda immediately after the 1994 genocide, in relation to events pertaining to the genocide. Many of the detainees who had been children in 1994 were released in different waves in the 2000s: around 1,100 in 2003, 1,900 in 2005 and an additional 78 in 2007. Child Soldiers International, ‘Child Soldiers Global Report 2008 – Rwanda’, 20 May 2008 [https://www.refworld.org/docid/486cb129c.html]. 47 See United Nations Transitional Administration in East Timor’s juvenile justice regulations for those age between 12 and 16. UNTAET Reg 2001/25 (14 September 2001), art 45 (On the Amendment of UNTAET Regulation No 2000/11 on the Organization of Courts in East Timor and UNTAET Regulation No 2000/30 on the Transitional Rules of Criminal Procedure). 48 At the time of the establishment of the Chamber, Article 8 of the Criminal Code of Bosnia and Herzegovina provided that a child who had not reached 14 years of age at the time of perpetrating a criminal offence should not be held criminally accountable. 49 See the section just below on the SCSL. 50 See United Nations Transitional Administration in East Timor Regulation 2001/25 (14 September 2001) UNTAET/REG/2001/25, art 45. 51 Judicial System Monitoring Programme, ‘The Case of X: A Child Prosecuted for Crimes Against Humanity’, January 2005, 5 [https://jsmp.tl/wp-content/uploads/

180 Children Involved in International Crimes X had been arrested in October 2001 at the age of 16 and was detained as a suspect.52 X claimed to have been forced to join a militia in September 1999 under threat by the village chief; to have been hit by a senior militia member; and to have feared being killed. Eventually, X pleaded guilty and was convicted not for crimes against humanity, but for manslaughter.53 According to a report prepared by the Judicial System Monitoring Programme, several procedural irregularities initially plagued the case – notably in terms of questioning by the police and pre-trial detention.54 X was interrogated at the police station without the presence of a legal representative or a relative; was held for a period of over 72 hours without being taken before a judge; and was kept in pre-trial detention for four months without a review of the detention order.55 The situation improved after X appeared before the Special Panel and was apparently granted specific guarantees commensurate with his/her age.56 The proceedings were adapted: the judges were not wearing their robes and conducted the hearings in a small room, closed to the public.57 They ensured that X was able to follow and understand the proceedings and would interrupt the hearing to give the child time to rest whenever tired. X was accompanied by his/ her grandfather during the hearing.58 The court also ordered that the child’s name be substituted by the letter X in all court documents to protect her or his identity. This peculiar case was not given much publicity by the Special Panels – possibly out of concerns for the protection of X and also because the conviction was ultimately not for an international crime. The procedural irregularities that marked this case may also have been a factor; as well the young age of X, who was not even 15 years old at the time of the crimes. There are no other known cases of a juvenile being charged or tried by the Special Panels. Overall, because of these circumstances, this case seems more of an oddity than a turning point for international or hybrid courts: it concerns an internationalised court operating under the United Nations (UN) umbrella having tried and convicted a child, but the conviction was not for an international crime. Therefore, it does not constitute a precedent of an international or hybrid criminal court convicting someone for an international crime committed as a child.

52

53 54 55 56 57 58

2012/05/The-case-of-X-a-child-prosecuted-for-crimes-against-humanity-2005.pdf]. Alternatively, the prosecution also presented a charge for other inhumane acts. Ibid. X gave a statement at the police station in October 2001 at the time of the arrest and a second statement in April 2002 s/he gave a second statement in the presence of a public defender. Ibid. Ibid. Ibid, 6. Ibid. Ibid, 10. Ibid.

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2.4.2 The Special Court for Sierra Leone Article 7(1) of the Statute of the SCSL gives the court jurisdiction over persons who were between 15 and 18 years old at the time of the alleged commission of a crime, while emphasising that the SCSL has no jurisdiction over anyone who was under the age of 15 at the time of the alleged commission of the crime.59 The Statute includes specific and detailed guarantees applicable to children aged between 15 and 18, implicitly referring to the CRC: Should any person who was at the time of the alleged commission of the crime between 15 and 18 years of age come before the Court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child.60 [I]n the disposition of a case against a juvenile offender, the Special Court shall order any of the following: care guidance and supervision orders, community service orders, counselling, foster care, correctional, educational and vocational training programmes, approved schools and, as appropriate, any programmes of disarmament, demobilization and reintegration or programmes of child protection agencies.61 In addition, if a child is convicted, Article 17(2) offers guidance, stating that he or she should not go to prison and should instead be placed in a rehabilitation programme.62 These provisions and their details are the result of the challenging debate that surrounded the establishment of the SCSL regarding whether to give it jurisdiction over children. From the inception of the talks between the UN and the government of Sierra Leone, the alleged criminal responsibility of many children – notably those recruited by armed groups and armed forces – was a difficult and contested issue. While some insisted on accountability for the crimes committed by those under 18, others were opposed to the prosecution of children. Among those insisting on accountability and refusing to exclude children from the jurisdiction of the SCSL were the government and some representatives of Sierra Leone’s civil society.63 Many in Sierra Leone, especially the victims, were adamant that children who had committed grave crimes should fall within the mandate of the SCSL.64 Different human rights and child protection organisations held 59 60 61 62 63

SCSL Statute, art 7(1). Ibid. Ibid, art 7(2) Ibid, art 17(2). UNSC (4 October 2000) UN Doc S/2000/915, para 36 (Report of the SecretaryGeneral on the establishment of a Special Court for Sierra Leone). 64 Diane Marie Amman, ‘Calling Children to Account: The Proposal for a Juvenile Chamber in the Special Court for Sierra Leone’, Pepperdine Law Review vol 29, no 1 (2001): 167.

182 Children Involved in International Crimes diverging views: some were opposed to the trial of children before the SCSL; while others supported the prosecution of juveniles, insofar as it conformed to international guidelines and standards.65 Even within the UN, there were different understandings: the United Nations Children’s Fund was strongly opposed to children being prosecuted, while the UN special representative for children and armed conflict commented positively on the possibility for the SCSL to prosecute children aged 15 to 18.66 The latter recommended the creation within the SCSL of a juvenile chamber overseen by a judge with juvenile justice expertise and the supervision of the implementation of sentences, insisting notably upon the provision of legal and other assistance; the ordering of protective measures to ensure the privacy of the juvenile within the proceedings; and the exclusion of the penalty of imprisonment.67 The UN secretary-general acknowledged the specific circumstances in which children were led to perpetrate atrocities (‘initially abducted, forcibly recruited, sexually abused, reduced to slavery of all kinds and trained, often under the influence of drugs, to kill, maim and burn and thus transform from victims to perpetrators’); and noted that: ‘Though feared by many for their brutality, most if not all of these children have been subjected to a process of psychological and physical abuse and duress which has transformed them from victims into perpetrators.’68 He also emphasised that:69 [T]he Government of Sierra Leone and representatives of Sierra Leone civil society clearly wish to see a process of judicial accountability for child combatants presumed responsible for the crimes falling within the jurisdiction of the Court. It was said that the people of Sierra Leone would not look kindly upon a court which failed to bring to justice children who committed crimes of that nature and spared them the judicial process of accountability. He stressed that he was mindful of the UN Security Council’s (UNSC) recommendation that only those who bear ‘the greatest responsibility’ should be prosecuted,70 but posited that: Within the meaning attributed to it in the present Statute, the term ‘most responsible’ would not necessarily exclude children between 15 and eighteen years of age. While it is inconceivable that children could be in a political or military leadership position (although in Sierra Leone the rank of ‘Brigadier’ was often granted to children as young as 11 years), the gravity and 65 Ilene Cohn, ‘The Protection of Children and the Quest for Truth and Justice in Sierra Leone’, Journal of International Affairs vol 55, no 1 (2001): 10–16. 66 Ibid, 11. 67 UNSC (4 October 2000) UN Doc S/2000/915, 8 (Report of the Secretary-General on the establishment of a Special Court for Sierra Leone). 68 Ibid, para 32. 69 Ibid, para 35. 70 Ibid, para 29.

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seriousness of the crimes they have allegedly committed would allow for their inclusion within the jurisdiction of the Court.71 He finally proposed granting jurisdiction to the Court to handle proceedings for crimes committed by those between 15 and 18 years old, noting that ‘ultimately, it will be for the Prosecutor to decide if, all things considered, action should be taken against a juvenile offender in any individual case’.72 The president of the UNSC also declared that the provisions on juvenile trials were mere guidelines for the prosecutor of the SCSL, who would ultimately decide whether to prosecute a juvenile.73 Fully aware of these debates, the first prosecutor of the SCSL, David Crane, nonetheless decided early in his tenure that he would not indict children.74 For Crane, ‘children under fifteen per se are legally not capable of committing a crime against humanity and are not indictable for their acts at the international level’.75 He publicly declared that instead, he would prosecute those ‘who forced thousands of children to commit unspeakable crimes’.76 At this juncture, it is noteworthy that his strategy, in due course, led to the first international prosecutions and convictions for the illegal recruitment and use of children in hostilities, as reviewed above. Crane’s decision was based on his postulation that children had not risen very high through the ranks and therefore were not among those who bear the greatest responsibility for the crimes. It rightly reinforced the distinction between those ultimately responsible and those children who followed their orders as a result of persuasion, propaganda or direct threats, or under duress. It was also justified considering the SCSL’s limited resources, enabling only a few cases to be investigated and prosecuted: it made sense to focus on those responsible for recruitment instead of investigating juveniles. Yet the SCSL had been expressly mandated to prosecute crimes committed by such children as a result of the demands 71 Ibid, para 31. 72 Ibid, paras 33, 36–38. 73 Ilene Cohn, ‘The Protection of Children and the Quest for Truth and Justice in Sierra Leone’, Journal of International Affairs vol 55, no 1 (2001): 17. 74 ‘Press Release: Special Court Prosecutor Says He Will Not Prosecute Children’, Special Court for Sierra Leone, Public Affairs Office, 2 November 2002 [http://rscsl. org/Documents/Press/OTP/prosecutor-110202.pdf]; see also ‘Children and Justice During and in the Aftermath of Armed Conflict’, Office of the Special Representative of the Secretary General for Children and Armed Conflict, United Nations, September 2011, 37 [http://reliefweb.int/sites/reliefweb.int/files/resources/Full_Report_ 1957.pdf]. On this, see also Luc Côté, ‘Prosecuting Child Related Crimes at the Special Court for Sierra Leone: a mid-term assessment’, in Expert Discussion on Transitional Justice and Children, UNICEF Innocenti Research Centre, November 2005. 75 Interview with David Crane, former SCSL prosecutor, conducted on 12 February 2009 (on file with the author). 76 ‘Press Release: Special Court Prosecutor Says He Will Not Prosecute Children’, Special Court for Sierra Leone, Public Affairs Office, 2 November 2002 [http://rscsl. org/Documents/Press/OTP/prosecutor-110202.pdf].

184 Children Involved in International Crimes emanating notably from the victims of these crimes and from the authorities of Sierra Leone. Crane overlooked these genuine local demands for accountability and justice; as a result, the opportunity to better understand why, how and to what extent older children had been involved in committing atrocities in Sierra Leone was missed. Ultimately, he imposed his own understanding of what constituted ‘the greatest responsibility’, which was inherently subjective and value driven, based on his own personal and cultural values. This poses fundamental question about the sense and purpose of a hybrid jurisdiction which seems not very concerned with local demands and expectations. 2.5 The International Criminal Court The Statute of the ICC, unlike the statutes of all other international or hybrid criminal jurisdictions, explicitly excludes from the Court’s jurisdiction individuals who were under the age of 18 at the time the act was committed. Article 26, entitled ‘Exclusion of jurisdiction over persons under eighteen’, provides that:77 ‘The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.’ During the negotiations on this Statute, it was made clear that this article merely set a jurisdictional limit to the ICC. This was confirmed by the ICTY judges in the abovementioned Oric´ judgment: ‘Reference to Article 26 of the Rome Statute is of no relevance as the age limit mentioned therein is only for jurisdictional purposes.’78 Indeed, the Statute of the ICC does not set an age of criminal responsibility; it merely asserts that the ICC ‘shall have no jurisdiction over any person who was under the age of eighteen at the time of the alleged commission of a crime’ (emphasis added). The exclusion of children from the jurisdiction of international courts does not mean that the age of criminal responsibility is fixed at 18; rather, it means that children fall outside the scope of the limited personal jurisdiction of the ICC.79 As such, Article 26 does not create an exemption or immunity for children: it does not prohibit the prosecutions of those under the age of 18 by competent national courts; nor can it be interpreted as demanding that national legislatures increase the age of criminal responsibility for international crimes.80 This position is consonant with the fact that, as shown

77 Rome Statute, art 26. 78 Prosecutor v Naser Oric´ (Judgement) IT-03–68-T 30, para 400, footnote 1177 (ICTY 2006) [https://www.icty.org/x/cases/oric/tjug/en/ori-jud060630e.pdf]. 79 See Per Saland, ‘International Criminal Law Principles’, in The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results edited by Roy SK Lee (The Hague: Martinus Nijhoff Publishers, 1999), 200–202. 80 See Roger S Clark and Otto Triffeterer, ‘Exclusion of Jurisdiction over Persons Under Eighteen’, in Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, edited by Otto Triffterer, 2nd ed (Munich: C.H. Beck/Hart/Nomos, 2008), 771–777; Micaela Frulli, ‘Jurisdiction ratione personae’, in The Rome Statute of the International Criminal Court: A Commentary, edited by Antonio Cassese et al (Oxford: Oxford University Press, 2002), 533–535.

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above, some hybrid jurisdictions – including the SCSL – established after the adoption of the ICC Statute, were given competence to try older children. This jurisdictional age limit was apparently included in the Rome Statute because of the lack of consensus on a minimum age for criminal responsibility and the wish to avoid possible conflict with national laws regarding that age.81 Other reasons were more prosaic and related to the challenge of assessing maturity – which requires appropriate expertise – and the difficulties in securing the special resources needed for juvenile detention and implementation of sentences in light of the ICC’s resource limitations.82 While children are expressly excluded from the jurisdiction of the ICC, the prosecution and subsequent conviction of Dominic Ongwen, a leader in the Lord’s Resistance Army (LRA), has triggered many questions because he was himself a child-soldier.83 Ongwen was tried as an adult and only for crimes which he committed while an adult in northern Uganda between 2002 and 2005. He was convicted of several crimes, including the conscription of children and their use in hostilities,84 murder, torture, forced marriage, rape, sexual slavery and enslavement.85 This is a prominent case for this book because Ongwen was abducted by the LRA when he was only around nine years old, in 1987.86 He was then subjected to harsh living conditions, violence and brutal training, and was forced to engage in combat.87 In both the trial judgment and sentencing, the judges underlined the dehumanising tactics used by the LRA to terrify the children they abducted into submission through fear, indoctrination, threats and violence.88 Abducted children were subjected to indoctrination rituals and beaten to instil obedience and prevent escapes.89 They were regularly forced to brutally kill or to watch killings after 81 Ilene Cohn, ‘The Protection of Children and the Quest for Truth and Justice in Sierra Leone’, Journal of International Affairs vol 55, no 1 (2001). 82 Ibid. 83 See Chapter 3. 84 Prosecutor v Dominic Ongwen (Public Redacted Trial Judgment, Trial Chamber IX) ICC 02/04–01/15 (ICC, 4 February 2021), para 3115 [https://www.icc-cpi.int/Pa ges/record.aspx?docNo=ICC-02/04-01/15-1762-Red];Prosecutor v Dominic Ongwen (Public Redacted Judgment on the appeal of Mr Ongwen against the decision of Trial Chamber IX of 4 February 2021 entitled ‘Trial Judgment’) ICC-02/0401/15 A (ICC, 15 December 2022), para 40 [https://www.icc-cpi.int/courtrecord/icc-02/04-01/15-2022-red]. 85 Ibid, para 3116. 86 Prosecutor v Dominic Ongwen (Public Redacted Trial Judgment, Trial Chamber IX), para 30. 87 Prosecutor v Dominic Ongwen (Public Redacted Sentence, Trial Chamber IX), 6 May 2021, ICC-02/04–01/15, paras 72–74 [https://www.icc-cpi.int/CourtRecords/ CR2021_04230.PDF]. 88 Prosecutor v Dominic Ongwen (Public Redacted Trial Judgment, Trial Chamber IX), paras 906–930, 950–952, 971–990, 991, 992, 999, and 1005; (Public Redacted Sentence, Trial Chamber IX), paras 359–362, 366. 89 Prosecutor v Dominic Ongwen (Public Redacted Trial Judgment, Trial Chamber IX), para 906.

186 Children Involved in International Crimes abduction.90 The LRA imposed a harsh and violent disciplinary system that enforced obedience: ‘The record of the case contains consistent evidence of disciplinary measures being applied in the LRA in an immediate, crude and brutal manner. It was not based on clear rules and procedures, but on arbitrariness and fear.’91 It is in this context that Ongwen grew up and progressively rose through the ranks to prominent positions; he had become second-in-command by the time he voluntarily surrendered in January 2015 and was handed over to the ICC.92 It is therefore unsurprising that in Ongwen, extensive arguments were made by the defence to exclude criminal responsibility on two grounds: mental diseases or defect, and duress, implicating centrally Ongwen’s recruitment as a child and its effect on criminal responsibility. As per Article 31(1)(a) of the ICC Statute, a person is not criminally responsible if: at the time of that person’s conduct … [t]he person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law. Ongwen’s defence team submitted that he suffered from a range of illnesses and disorders, and was at a high risk of suicide.93 The Trial Chamber noted that a determination of the possible presence of a mental disease or defect and its effect on the relevant mental capacities of the accused must be demonstrated at the time of relevant conduct, and not during the course of the proceedings. While there was no rule that prevented inferences from the latter to the former, these inferences needed to be clearly explained and reliable.94 After an examination of evidence presented by numerous experts, the Trial Chamber concluded that Ongwen did not suffer from a mental disease or defect at the time of the conduct relevant under the charges.95 While these findings were heavily contested at the appeal stage,96 they were upheld by the Appeals Chamber.97 Article 31(1)(d) of the Rome Statute excludes criminal responsibility for a given conduct if such conduct occurred under duress. Duress comprises three elements. The first is a requirement that the conduct constituting the crime has been caused by duress resulting from a threat of imminent death or of continuing or imminent 90 Ibid, paras 916–917. 91 Ibid, para 957. See also para 131. 92 Prosecutor v Dominic Ongwen (Public Redacted Sentence, Trial Chamber IX), para 400. 93 Ibid, paras 2450 and 2452. 94 Ibid, para 2454. 95 Ibid, para 2580. 96 Prosecutor v Dominic Ongwen (Public Redacted Judgment on the Appeal of Mr Ongwen against the Decision of Trial Chamber IX of 4 February 2021 entitled ‘Trial Judgment’, Appeals Chamber) ICC-02/04-01/15 A (ICC, 15 December 2022), para 1110 [https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2022_07146. PDF]. 97 Ibid, paras 1148–1384.

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serious bodily harm against that person or another person. This threat may either be made by other persons or be constituted by other circumstances beyond that person’s control. The threat is to be assessed at the time of that person’s conduct. The Trial Chamber clarified that the words ‘imminent’ and ‘continuing’ refer to the nature of the threatened harm, and not the threat itself. Consequently, duress does not exist if the accused is threatened with serious bodily harm that will not materialise sufficiently soon. A merely abstract danger or simply an elevated probability that a dangerous situation might occur – even if continuously present – does not suffice to meet this element.98 The second element of duress is that the person acts necessarily and reasonably to avoid the threat. The Trial Chamber clarified that this element does not require an individual to take all conceivable action to avoid the threat, irrespective of considerations of proportionality or feasibility. In considering what actions could have been taken ‘necessarily and reasonably’ to avoid the threat, a relevant consideration that the court can examine is whether others in comparable circumstances ‘could necessarily and reasonably avoid the same threat’.99 The third and last element of duress requires that the person does not intend to cause a greater harm than that sought to be avoided.100 Ongwen’s defence team had asserted that he ‘was under a continuing threat of imminent death and serious bodily harm from Kony and his controlling, military apparatus’.101 The Trial Chamber analysed this assertion by examining several parameters: (1) Ongwen’s status in the LRA hierarchy and the applicability of the LRA disciplinary regime to him; (2) executions of senior LRA commanders on Kony’s orders; (3) the possibility of escaping from or leaving the LRA; (4) Kony’s alleged spiritual powers; (5) Ongwen’s personal loyalty to Kony and his career advancement; and (6) crimes committed in private.102 In relation to Ongwen’s status in the LRA hierarchy and the applicability of LRA’s disciplinary regime to him, Ongwen’s defence team relied on evidence relating to Ongwen’s life in the LRA in the period immediately following his abduction in the 1980s, when he was still a child. However, the judges did not deem Ongwen’s childhood experience in the LRA as being central to the issue, as this related to a time period which was not relevant for the determination of Ongwen’s conduct as an adult. They noted that even if the threat to Ongwen’s life were to have started as a child, to be relevant under Article 31(1)(d) of the Statute, this threat would have had to express itself at the time of his conduct as an adult, when he had become a commander.103 The Trial Chamber ultimately concluded that Ongwen had not then

98 Prosecutor v Dominic Ongwen (Public Redacted Trial Judgment, Trial Chamber IX), 4 February 2021, ICC 02/04–01/15 (ICC, 4 February 2021), paras 2581 and 2582 [https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/04-01/15-1762-Red]. 99 Ibid, para 2583. 100 Ibid, para 2584. 101 Ibid, para 2586. 102 Ibid, paras 2590–2667. 103 Ibid, para 2592.

188 Children Involved in International Crimes been in a situation of complete subordination vis-à-vis Kony; nor had he faced any prospective punishment by death or serious bodily harm for disobeying Kony. Ongwen’s defence lawyers asserted that he was a victim and not a perpetrator. They submitted that he had been abducted as a young child and brutalised for almost three decades; and that as a result, he had become an adult only chronologically and not mentally.104 They argued that Article 21(3) of the Rome Statute prohibits a victim of a crime from being charged with the same crime.105 The Trial Chamber observed that while Ongwen had indeed been abducted at a young age, he was an adult at the time he committed the relevant crimes. Crucially, the judges held that the fact that someone has been the victim of a crime does not constitute a justification for the commission of crimes, beyond the potential relevance of the underlying facts to the grounds excluding criminal responsibility.106 The Trial Chamber also rejected the assertion that ‘Article 21(3) prohibits charging a victim of a crime with the same crime’, observing: ‘a rule that would immunize persons who suffer human rights violations from responsibility for all similar human rights violations that they may themselves commit thereafter manifestly does not exist in international human rights law.’107 Ongwen’s defence lawyers heavily contested the Trial Chamber’s findings on duress at the appeal stage.108 They asserted, inter alia, that the Appeals Chamber had failed to consider evidence on the impact of Ongwen’s abduction, indoctrination and experiences in the LRA. Ongwen had ‘spent the first nine of his 27 years in the LRA as a child soldier’ – a period that marked ‘the childhood development and formative years of his life’. Emphasising that ‘[t]he accused … was just a child when he was abducted, brutalised and made into a fighter machine without a mind of his own’, they insisted that ‘[a] human being cannot be detached from his past’; and that it was therefore ‘pathetic, insensitive and factually and legally erroneous’ for the Trial Chamber to focus its assessment of the applicability of duress exclusively on Ongwen’s situation as a commander.109 The defence insisted that the Trial Chamber should in fact have considered Ongwen’s background experiences – particularly: (1) his childhood ‘immediately before and after his abduction’; (2) the ‘vicissitudes and vacillations of his life under the 104 Prosecutor v Dominic Ongwen (Public Redacted Version of ‘Corrected Version of “Defence Closing Brief”, filed on 24 February 2020’, 13 March 2020, ICC-02/04– 01/15, Trial Chamber IX) ICC-02/04–01/15 (ICC, 13 March 2020), paras 11–13 [https://www.icc-cpi.int/CourtRecords/CR2020_00998.PDF]. 105 Ibid, para 494. 106 Prosecutor v Dominic Ongwen (Public Redacted Trial Judgment, Trial Chamber IX), 4 February 2021, ICC 02/04–01/15 (ICC, 4 February 2021), paras 2627 and 2672 [https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/04-01/15-1762-Red]. 107 Ibid. 108 Prosecutor v Dominic Ongwen (Public Redacted Judgment on the appeal of Mr Ongwen against the decision of Trial Chamber IX of 4 February 2021 entitled ‘Trial Judgment’, Appeals Chamber) ICC-02/04-01/15 A (ICC, 15 December 2022), para 1390 [https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2022_07146. PDF]. 109 Ibid, para 1466.

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coercive environment’; and (3) his ‘peculiar cum special attributes and the attention he was given, leading to his spectacular rise in rank’.110 The Appeals Chamber reaffirmed the Trial Chamber’s view that since the confirmed charges against Ongwen related to crimes committed as an adult, findings about his abduction as a child or alleged indoctrination as a child could not, in themselves, be determinative of the central issues of the case.111 The Appeals Chamber also determined that the defence’s submission that Ongwen’s early childhood background was ignored by the Trial Chamber was without merit.112 It also remarked that the Trial Chamber had explicitly noted the defence’s legally unspecified submissions about Ongwen himself being a victim of crimes, and had noted the potential relevance of these facts to grounds excluding criminal responsibility.113 Judge Luz Del Carmen Ibáñez Carranza, in her partial dissent to the appeals judgment, provided her more detailed views on Ongwen’s individual circumstances as a former child soldier. Referring to her own separate opinion in the Lubanga case,114 she noted that:115 … “damages to the project of life are the consequence of a psychosomatic collapse of such a magnitude that, for the victim, it means the frustration or lessening of his/her project of life”, thereby “creating an existential vacuum, a ‘grief invading someone who loses the source of gratification and the spectrum to develop his/her stand for life’”. While agreeing with the majority that Ongwen’s mental capacity was indeed not destroyed as understood by Article 31(1)(a) of the ICC Statute, for Ibáñez Carranza – as noted by some amici in this case – Ongwen’s experiences impacted on his personality, brain formation and future opportunities, and on the development of his moral values.116 She wrote:117

Ibid, para 1467. Ibid, para 1471. Ibid, para 1472. Ibid, para 1473. Prosecutor v Dominic Ongwen (Annex 2 to the Judgment on the Appeal of Mr Dominic Ongwen against the Decision of Trial Chamber IX of 6 May 2021 entitled ‘Sentence’), 15 December 2022, para 103, ICC-02/04–01/15-2023-Anx2 [https:// www.icc-cpi.int/sites/default/files/RelatedRecords/CR2022_07151.PDF]. 115 Ibid, para 105. 116 Ibid, para 111 and 136. Judge Luz Del Carmen Ibáñez Carranza considered that the Trial Chamber was correct in finding that expert witnesses’ reports did not lead to the conclusion that Ongwen’s mental capacity was destroyed or substantially diminished, but pointed out that none of the experts had been asked to present their views as to the impact of the traumatic experiences that Ongwen underwent as a child on his personality, the development of his brain and moral values, and future opportunities for the purposes of mitigating circumstances in sentencing. 117 Ibid, para 120. 110 111 112 113 114

190 Children Involved in International Crimes Mr Ongwen, as a former child soldier himself, must have experienced traumatic events that affected the formation of his personality, the development of his brain and moral values, scarring him for life. In cases such as this one, these circumstances ought to be properly considered as relevant and unique personal circumstances at the sentencing stage. Among the many other grounds of appeal raised by Ongwen’s defence, one related to the alleged failure of the Trial Chamber to address the defence’s argument concerning Uganda’s duty to protect Ongwen as a child. His lawyers asserted that it was legally inapposite to hold him individually criminally liable for crimes allegedly committed while under bondage in the LRA, because the government of Uganda and the international community had failed to protect him as a child.118 They submitted that the Trial Chamber had ‘erred by failing to respond to [its] arguments that Uganda had a legal duty to protect’ Ongwen as a child.119 The Appeals Chamber noted that the Trial Chamber had ‘duly considered’ the facts underlying the defence’s submissions, and that it had specifically rejected the defence’s submissions about Uganda’s alleged failure to protect Ongwen as a child when it dismissed its interpretation of Article 21(3).120 It concluded that that Uganda’s obligation under international law had no bearing on the ICC’s conclusions:121 … while the Appeals Chamber acknowledges that signatories to the UN Children’s Rights Convention are under a general obligation to ‘take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities’, it, nevertheless, notes that the question of whether the Government of Uganda was obliged under international law to protect Mr Ongwen from abduction, has no bearing on the Trial Chamber’s conclusion … The deliberations on sentencing in Ongwen are particularly illuminating. The Trial Chamber underlined that the abduction of Ongwen was a significant consideration in the determination of his sentence;122 and that it was acutely aware that this case presented:123 118 Prosecutor v Dominic Ongwen (Public Redacted Version of ‘Corrected Version of “Defence Closing Brief”, filed on 24 February 2020’, 13 March 2020, ICC-02/04– 01/15, Trial Chamber IX) ICC-02/04–01/15 (ICC, 13 March 2020), para 495 [https://www.icc-cpi.int/CourtRecords/CR2020_00998.PDF]. 119 Prosecutor v Dominic Ongwen (Public Redacted Judgment on the Appeal of Mr Ongwen against the Decision of Trial Chamber IX of 4 February 2021 entitled ‘Trial Judgment’, Appeals Chamber) ICC-02/04-01/15 A (ICC, 15 December 2022), para 1572 [https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2022_07146. PDF]. 120 Ibid, paras 1576 and 1577. 121 Ibid, para 1578. 122 Prosecutor v Dominic Ongwen (Public Redacted Sentence, Trial Chamber IX), 6 May 2021, ICC-02/04–01/15, paras 65–70 [https://www.icc-cpi.int/CourtRecords/ CR2021_04230.PDF]. 123 Ibid, para 388.

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… a unique situation of a perpetrator who willfully and lucidly brought tremendous suffering upon his victims, but who himself had previously endured grave suffering at the hands of the group of which he later became a prominent member and leader. Yet it held that this ‘in no way justifies or rationalises the heinous crimes he willfully chose to commit as a fully responsible adult’.124 It acknowledged that Ongwen’s abduction as a nine-year-old and his early years in the LRA had inflicted great suffering on him and caused him to miss out on numerous opportunities that he deserved as a child.125 It also noted that in its many years of operation, the LRA had abducted numerous children – some even younger than Ongwen – and integrated them in its ranks. But only a small minority of them experienced such a steep and purposeful ascent in the LRA hierarchy as Ongwen. The judges considered it necessary to acknowledge this fact in fairness towards the many other people who, despite finding themselves in very similar circumstances to Ongwen, made very different choices from his.126 They also reiterated that there was no basis to conclude that Ongwen had been forced to commit any of the crimes of which he had been found guilty.127 These conflicting considerations necessitated a delicate balancing exercise and the judges gave some weight to Ongwen’s circumstances – his abduction as a child, the interruption of his education, the killing of his parents and his socialisation into the extremely violent environment of the LRA – in the determination of each of his sentences.128 They agreed with the prosecution’s recommendation to consider these circumstances as warranting ‘approximately a one-third reduction’ in the length of the sentences that he would otherwise receive.129 On appeal, the judges noted that the Trial Chamber had considered the possibility of imposing life imprisonment, as recommended by the legal representatives of the participating victims, but had decided against this, given the individual circumstances of Ongwen, including his abduction and integration into the LRA as a child.130 As Ongwen’s defence had not challenged the decision of the Trial Chamber to give weight to Ongwen’s individual circumstances, the Appeals 124 125 126 127 128 129 130

Ibid. Ibid, para 83. Ibid, para 85. Ibid, para 86. Ibid, para 87. Ibid, para 88. Prosecutor v Dominic Ongwen (Public Document, Judgment on the Appeal of Mr Dominic Ongwen against the Decision of Trial Chamber IX of 6 May 2021 entitled ‘Sentence’), 15 December 2022, para 10 ICC-02/04–01/15 A2 [https://www.icccpi.int/sites/default/files/CourtRecords/CR2022_07148.PDF]. Judge Ibáñez Carranza chose to partly dissent, her dissent concerning only the determination by the majority of the Appeals Chamber of one aspect of ground of appeal 12 – namely the alleged double counting of the factor of the multiplicity of victims. Prosecutor v Dominic Ongwen (Annex 2 to the Judgment on the Appeal of Mr Dominic Ongwen against the Decision of Trial Chamber IX of 6 May 2021 entitled ‘Sentence’), 15

192 Children Involved in International Crimes Chamber did not examine whether the Trial Chamber had exercised its discretion properly when taking Ongwen’s individual circumstances into account. Nonetheless, the Appeals Chamber did take note of the Trial Chamber’s approach to this novel issue131 and confirmed the validity of taking into account Ongwen’s individual circumstances at the stage of sentencing, without losing sight of the fact that Ongwen was convicted of crimes of ‘extreme gravity’.132 To conclude on this significant Ongwen case, it raises the challenging question of the legitimacy of exclusively pursuing individual criminal liability in contexts where the complex circumstances that surrounded an individual’s engagement in alleged criminal conduct are not or cannot be explored. Ultimately, one is left with a picture of Ongwen’s brutality in the commission of international crimes, including by directly raping in circumstances where no duress could be argued; yet also with a lingering question: would Ongwen have committed these crimes had he not been abducted as a child, years earlier? This points to an intrinsic limit of international criminal accountability, which focuses on the crimes themselves and less on the circumstances in which they were committed.

3 Children involved in crimes as witnesses before international courts The efforts devoted in recent years to holding criminally accountable those leaders responsible for illegally recruiting and using children in hostilities, as described in Chapter 3, have resulted in a number of children formerly associated with armed groups or forces being called to testify against those who recruited or used them before the SCSL and, more recently, the ICC. Some of these witnesses may have committed crimes and are therefore at risk of incriminating themselves in the course of their testimony. While children usually have nothing to fear from international courts, as seen supra, they may nonetheless fall within the competence of national criminal systems and ultimately be prosecuted. The risks associated with self-incriminating evidence were not problematic when child-soldiers testified at the SCSL:133 because of the specific amnesty that applied to such crimes in Sierra Leone, children ultimately could only be prosecuted by December 2022, para 5, ICC-02/04–01/15-2023-Anx2 [https://www.icc-cpi.int/ sites/default/files/RelatedRecords/CR2022_07151.PDF]. 131 Ibid, para 12. 132 Ibid, para 14. 133 By March 2009, nine children (under the age of 18) had testified before the SCSL, all called by the prosecution, all of them boys and former child-soldiers. Most of them testified in open court, in view of the defendant(s), but with their identity and image protected from the public and their voice usually distorted. They testified as other witnesses do, answering the questions put to them by the judges and by the parties, including in cross-examination. Only two of these children testified outside the courtroom, from another room on the Court’s premises, connected to the courtroom by a closed-circuit television. Interview with Saleem Vahidy, chief of the Registry’s Witnesses and Victims Section, conducted on 18 March 2009 (on file with the author).

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134

But the the SCSL itself and it decided not to exercise that part of its mandate. situation at the ICC is dramatically different. Unlike previous international courts, it is based on the principle of complementarity rather than primacy, and therefore cannot actually guarantee to witnesses who incriminate themselves in the course of their testimonies that they will not be prosecuted before domestic courts. Rule 74 of the ICC Rules of Procedure and Evidence (entitled ‘Self-incrimination by a witness’) envisages protections that can be granted to a witness who may be at risk of self-incrimination.135 But it seems that the protection which the ICC can offer is limited to either not requiring that the witness answer questions or ensuring that the identity of the witness and the content of his or her testimony remain confidential.136 These measures suffer from obvious weaknesses. Even in the unlikely case of an agreement between the ICC and a state specifying that no witness could subsequently be charged domestically for crimes for which he or she self-incriminates before the ICC, this would be insufficient to fully protect the witness, for at least two reasons. First, this agreement would only be binding on the state concerned and the witness could possibly be tried before other competent domestic courts. Second, and more fundamentally, a state cannot abdicate its authority to pursue criminal justice: this would appear inconsistent with the principles of complementarity and the separation of powers, and may also contradict other international legal obligations of the state – notably those requiring that it prosecute or extradite those responsible for certain categories of international crimes. Ultimately, the only assurance the ICC could possibly give to such witnesses would be a pledge to try them before the ICC itself, rather than letting them be tried before domestic courts. Yet while this ‘remedy’ has been available to previous international courts, for the ICC, this may be impossible due to the principle of complementarity and the Court’s limited resources. Even more fundamentally, as far as children are concerned, it would be impossible because of the limits of the ICC’s jurisdiction to those over 18. In these circumstances, it is crucial for the ICC to fully warn and inform children of the possible consequences of their participation so that they understand the risks, giving full meaning to the principle of ‘informed consent’ and voluntary participation.137 In any case, children should always testify anonymously and with their identity protected, to minimise the risks.138 134 This amnesty arises from the relevant provisions of the Lomé Agreement that have been incorporated into Sierra Leonean law. 135 Rules of Procedure and Evidence of the International Criminal Court (adopted 3–10 September 2002) ICC-Asp/1/3, rule 74(4) [https://www.icc-cpi.int/iccdocs/pids/ legal-texts/rulesprocedureevidenceeng.pdf]. 136 Ibid, rule 74(5). 137 Among other relevant ICC Rules of Procedure and Evidence, Rule 190, entitled ‘Instruction on self-incrimination accompanying request for witness’ is of particular significance in this regard. 138 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, art 40(2)(b) (CRC); Rule 8 of the Beijing Rules.

194 Children Involved in International Crimes It is particularly problematic that witnesses at risk of incriminating themselves are provided with an opportunity to obtain legal advice only if an issue of selfincrimination arises in the course of the proceedings and if the witness so requests.139 In the case of children at risk of self-incrimination, legal advice should be systematically offered by the ICC to ensure that their rights are protected and preserved for the future. Ideally, children should always benefit from the assistance of a lawyer when interacting with international courts, and in particular with the ICC, as early as possible in their interaction with any organ of the ICC.

4 What is in the best interests of the children involved in crimes? Despite the inclusion of children above the age of 15 within the jurisdiction of the SCSL – an ipso facto recognition that juveniles can, at least theoretically, be held criminally liable before an international or hybrid criminal court – no child has yet been tried before such a court, with one odd exception in East Timor. But would prosecutions and trials before international courts be in the best interests of the children involved in atrocity crimes?140 Any response to this question should be based on an individual determination of what constitute the best interests of each individual child. It should therefore be case and context specific. However, it is important to note that many child protection practitioners and advocates have insisted that children should not be tried before international courts.141 The Key Principles for Children and Transitional Justice contend: ‘In principle, children should not be held criminally responsible under an international jurisdiction.’142 Those advocating for more restorative alternatives to criminal justice when dealing with children involved in atrocity crimes find support in the provisions of the CRC (notably Article 40(3)(b), which requires states to promote measures other than judicial proceedings (ie, diversion)), and in Paragraph 11 of the Paris Commitments, which requires member states to ensure:

139 ICC Rules of Procedure and Evidence of the International Criminal Court, rule 74 (10). 140 Article 3(1) of the CRC stipulates that the best interests of the child shall be the primary consideration in all actions concerning children. The Committee on the Rights of the Child found in its General Comment No 10: ‘10. In all decisions taken within the context of the administration of juvenile justice, the best interests of the child should be a primary consideration …’ UN Committee on the Rights of the Child (25 April 2007) UN Doc CRC/C/GC/10, para 10 (General Comment no 10 (2007) Children’s rights in juvenile justice); see Chapter 2. 141 See notably Ton Liefaard, ‘Child Soldiers: Towards a Rights-Based Imagery’, in Transitional Justice: Images and Memories, edited by Chrisje Brants et al (Farmham: Ashgate, 2013), 161–180. 142 ‘Key Principles for Children and Transitional Justice’, reprinted in Children and Transitional Justice: Truth-telling, Accountability and Reconciliation (Cambridge: Harvard University Press, 2010), 403 [https://www.unicef-irc.org/publications/p df/tj_publication_eng.pdf].

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that children under eighteen years of age who are or who have been unlawfully recruited or used by armed forces or groups and are accused of crimes against international law are considered primarily as victims of violations against international law and not only as alleged perpetrators.143 It is important to note that children associated with armed groups or violent youth militia are frequently coerced into committing grave crimes.144 Sometimes they act under duress because they have been abducted or have lost their families and have nowhere to go, or are under the influence of forcibly administered drugs, as has been seen in different contexts. Some armed groups – such as the Ugandan LRA – are known to have systematically abducted children and often, at the time of the abduction, forced them to torture or kill a member of their family or community. This deliberate tactic, also used by other groups, serves to psychologically break the children and to limit the risk of them subsequently escaping, as they will have lost any hope of being accepted back. ‘Duress’ and ‘coercion’ refer to situations where pressure – such as violence or threat – is exerted upon an individual to force him or her to participate in a crime or another act against the person. ‘Duress’ can be defined as any unlawful threat or coercion used to induce another to act in a manner they otherwise would not, or not to act in a manner they otherwise would.145 A defendant is usually deemed to have acted under duress, coercion or compulsion if, at the time of the crime, there was a present, immediate or impending threat of death or serious bodily injury to the defendant or a family member if the defendant did not participate in the commission of the crime; and if the defendant had a well-grounded fear that this threat would be carried out and had no reasonable opportunity to escape the threatened harm.146 Under most criminal justice systems, duress, coercion or compulsion legally excuses the commission of a crime in criminal justice matters.

143 This formulation contained in the Paris Commitments is more protective than the wording found in paragraph 3.6 of the Paris Principles: ‘Children who are accused of crimes under international law … should be considered primarily as victims of offences against international law; not only as perpetrators’, as it refers to children as ‘alleged perpetrators’ (emphasis added) and not only as ‘perpetrators’. The Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (adopted February 2007), para 3.6 [https://www.unicef.org/emerg/files/Paris Principles310107English.pdf]. 144 Sonja Grover, Child Soldier Victims of Genocidal Forcible Transfer: Exonerating Child Soldiers Charged with Grave Conflict-related International Crimes (Berlin: Springer, 2012), 76. 145 ‘Duress’, Black’s Law Dictionary [https://thelawdictionary.org/duress/]. 146 See, for instance, ‘Duress, Coercion or Compulsion (Legal Excuse)’, United States Courts for the Ninth Circuit, April 2019 [http://www3.ce9.uscourts.gov/jur y-instructions/node/382]. In the US, a fourth additional condition is that the defendant surrendered to authorities as soon as it was safe to do so – that would not apply in many of the circumstances in which international crimes occur, considering that there are often no such authorities.

196 Children Involved in International Crimes The testimony before the SCSL of a child who had been associated with the Revolutionary United Front illustrates well how children associated with armed groups are under constant duress: When you are there, you would have no way of escaping because if you were caught attempting to escape, they would kill you. Or if you risk it and you escape, if you landed in the hands of a Kamajor and they find that you are from a rebel zone, then they would kill you and eat up your flesh.147 In parallel to coercion and duress, another factor to consider is the pernicious effect on children of constantly living in a violent environment where crimes frequently occur and are condoned by leaders. The erosion of norms and values which comes with the perpetration of massive and systematic mass atrocities not only disrupts the lives of children, but may also modify their sense of what is expected from them, and of what is acceptable and the limits thereof. Such environments provide the context which leads some children – notably those associated with armed groups or forces, or those involved with political groups or militia – to participate in crimes. In situations such as the protracted conflicts in the DRC, children may be nudged by families, friends, teachers or leaders to participate in atrocities under the guise of ‘defending’ their communities. Children can also be deliberately subjected to propaganda over extended periods of time, as seen in Nazi Germany and Imperial Japan,148 and more recently with Daesh in Iraq and Syria. Without entering into a discourse on determinism and free will, it is clear that contexts influence children, who are recognised as more vulnerable and malleable than adults. This is especially the case for young children, because it is through interactions with their parents, teachers and other adults that they learn to make moral judgements and to understand the need to respect certain values, norms and conventions.149 As a Nigerian saying underlines, ‘A child is what you put into him.’ As children grow older, their moral development appears largely influenced by peer groups, which again can be assumed to be very detrimentally affected by circumstances of generalised criminality, in particular for those associated with armed groups or gangs. McCarney and Wessels, focusing on child-soldiers, argue that children adjust and adapt to the new circumstances of their lives and to the new prevailing norms.150 Judge Buergenthal, who survived as a child in a Nazi 147 Testimony of Witness TF 1–314 in Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T, 43 (SCSL, 2 November 2005) [http://www.rscsl.org/Documents/Transcripts/RUF/RUF-110205.pdf]. 148 See Chapter 4. 149 On this point, see notably Bernard Golse, Le développement Affectif et Cognitif de l’Enfant (Amsterdam: Elsevier Health Sciences, 2015); Peter K Smith, Helen Cowie and Mark Blades, Understanding Children’s Development, 4th ed (Hoboken: Blackwell Publishing, 2003); and the fundamental work of Jean Piaget, Le Jugement et le Raisonnement Chez l’Enfant (Paris: Delachaux & Niestlé, 1947). 150 Angela Veale, ‘The Criminal Responsibility of Former Child Soldiers: Contributions from Psychology’, in International Criminal Accountability and the Rights of the Child, edited by Karin Arts and Vesselin Popvski (The Hague: Hague Academic Press,

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extermination camp, wrote in his memoir: ‘Children, even relatively young children, learn to be cunning or street-smart when circumstances demand, and they are fast learners when they have to be in order to live another day.’151 Children may thus be subjected to a process of resocialisation, where new codes and norms imposed by their families, communities or groups not only encourage but even directly or indirectly reward criminality.152 Abnormal criminal behaviour becomes the new accepted – and even expected – behaviour, to which children conform. In such contexts, atrocity crimes become ‘banal’ for children, to draw an analogy with Hannah Arendt’s conception of the ‘banality of evil’.153 Children participating in crimes in those circumstances may not be strictly speaking deviant: on the contrary, they are complying with the norms surrounding them at a given time. This banality was saliently illustrated in Rwanda, in 1994, when the Interahamwe militia used the term ‘going to work’ to refer to hunting down Tutsis and killing them. Can children be expected to make sense of such contexts and not follow manifestly illegal orders? Answering this question goes beyond the scope of this study and would require an analysis informed not just from a legal perspective, but also from the fields of ethics, philosophy, psychology and neuroscience, among others. Yet crucially, the facts on the ground show that in all such contexts, some children participate in atrocity crimes – but not all children. Some refuse – sometimes at great risk to themselves. This plainly demonstrates that children, like all other humans, make choices. In chaotic and bewildering environments, when left unprotected, they develop their own strategies for coping and surviving, which may lead them to participate in crimes or may also conversely to resist committing atrocities. Recognising that agency in children is key and is certainly in their best interests. Children – especially older ones – are not all and always helpless, and it is important to acknowledge their capacity to decide for themselves, within the limits of that capacity. In this regard, age is an important factor: for example, it would be unreasonable to treat a 16-year-old who voluntarily joined an armed group and participated in a rape campaign while attacking a village identically to as an abducted eight-year-old forced to participate in that same attack under duress. Assuming that all children were manipulated or coerced into committing crimes reduces them to mere instruments at the hands of adults. Mark Drumbl noted that when atrocity crimes are committed by child-soldiers, it is as if the ‘responsibility 2006), 97–98, citing William McCarney, ‘Child Soldiers: Criminals or Victims? Should Child Soldiers Be Prosecuted for Crimes Against Humanity?’, paper presented to the Child and War Conference, International Institute for the Rights of the Child, Sion, Switzerland, 2001. 151 Thomas Buergenthal, A Lucky Child: A Memoir of Surviving Auschwitz as a Young Boy (Little, Brown Spark, 2009). 152 Michael Wessels, Child Soldiers: From Violence to Prevention (Cambridge: Harvard University Press, 2007). 153 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Penguin, 2006).

198 Children Involved in International Crimes passes entirely to the adult abductor, enlister, recruiter or commander’.154 Systematically denying their individual capacity to choose not only rejects their criminal responsibility, but also refutes their agency. Even if children’s criminal responsibility may be mitigated or extinguished because the circumstances in which they acted were inherently coercive, it does not erase their crimes or their victims. Victims also have rights, including the right to a remedy.155 The Constitutional Court of Colombia has stated that the status of child-soldiers as victims of illegal recruitment does not automatically preclude or extinguish their criminal responsibility. The rights of these children must be balanced with the rights of their victims – to truth, justice and reparations.156 Any consideration of whether children who commit atrocities should be held accountable for their crimes must balance the competing needs and rights of the children and their victims, who may themselves have been children. This was alluded to in several cases before the SCSL, as exemplified by the following testimony: ‘Well, these children who stayed with the various commanders, when it came to amputation, these children were used to amputate people in Kono.’157 Mariatu Kamara, the Sierra Leonean author, describes how, as a child, she became a double amputee: Two boys steadied me as my body began to sway. As the machete came down, things went silent. I closed my eyes tightly, but then they popped open and I saw everything. It took the boy two attempts to cut off my right hand. The first swipe didn’t get through the bones, which I saw sticking out in all different shapes and sizes.158 154 Mark Drumbl, Reimagining Child Soldiers in International Law and Policy (Oxford: Oxford University Press, 2012), 18. Before Drumbl, Boyden and Berry had already remarked that ‘the prevailing dichotomy between adult as active perpetrators and child as passive victims needs challenging’. Jo Boyden and Joanna de Berry, Children and Youth on the Front Line: Ethnography, Armed Conflict and Displacement (New York: Berghahn Books, 2004), xv. 155 Notably through the work of the Commission on Human Rights and its Sub-Commission different draft principles and guidelines have been adopted, including the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted and proclaimed by General Assembly Resolution 60/147 of 16 December 2005 [https://www.ohchr.org/EN/Professiona lInterest/Pages/RemedyAndReparation.aspx], which have enumerated the three basic rights of victims as: (1) the victims’ right to know; (2) the victims’ right to justice; and (3) the victims’ right to reparations. 156 Decision C-203/05 (Judgment) (Constitutional Court of Columbia, 8 March 2005). The court concluded that child-soldiers could be simultaneously considered as victims of the crime of illegal recruitment and as perpetrators. See also Decisión del 24 de febrero de 2010 (Judgment) (Corte Suprema de Justicia, Sala de Casación Penal, Colombia, 24 February 2010). 157 Testimony of Witness TF 1–334 in Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T, 6 (SCSL, 20 May 2005) [http://www.rscsl.org/Documents/Transcripts/AFRC/AFRC-052005.pdf]. 158 Mariatu Kamara with Susan McClelland, The Bite of the Mango (Toronto: Annick Press, 2008), 40–41.

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The best interests of child-victims, such as Mariatu Kamara, must surely be part of the equation when considering the best interests of the alleged child-perpetrators. Pretending that atrocities were not committed and that the children were solely victims is not realistic and may be counterproductive. As shown above in the case of Sierra Leone, the victims of gruesome crimes in which children participated, and their communities, demand justice. Children may be ‘feared by many for their brutality’.159 They may be violent and unpredictable, and be perceived as spiritually ‘contaminated’ and ‘possessed’ by the victims they have killed.160 These situations add further layers and complexities to the reintegration of children. The best interests of the child can seldom be separated from the views and expectations of their communities; recognising crimes and furthering accountability are inherently collective choices, as they concern the restoration of social and societal links. If the accountability demands of a community are unsatisfied, the children concerned may be stigmatised or even rejected, especially in contexts where they joined armed groups voluntarily. Indeed, if children perceived as perpetrators are to be effectively reconciled with society, they may need to fully realise the nature of their acts and recognise them as crimes and as morally abhorrent. An acknowledgement of the crimes committed and a full explanation of the circumstances may be in the best interests of the children concerned, because this process can maximise the opportunities for rehabilitation and reintegration into their families and communities. Also, considering that former child-soldiers themselves are usually aware of their ambiguous status,161 for them to acknowledge their participation in atrocity crimes may also hopefully prevent future relapses. This is especially important when considering that groups such as Daesh have deliberately recruited children, including transnationally, making reintegration very challenging. Also, experts working directly with children who committed serious crimes have confirmed the importance, for the children’s own psychosocial wellbeing, of understanding the harm they caused and that their crimes were transgressions, and dealing with the related trauma.162 There again, it may well be in the best interests of children to acknowledge their crimes and accept their responsibility, as long as 159 UNSC (4 October 2000) UN Doc S/2000/915 (Report of the Secretary-General on the establishment of a Special Court for Sierra Leone), 73. 160 Andrew Mawson, ‘Children, Impunity and Justice’, in Children and Youth on the Front Line: Ethnography, Armed Conflict and Displacement, edited by Jo Boyden and Joanna de Berry (New York: Berghahn Books, 2004), 135, discussing the return to their communities of children abducted by the LRA. 161 Cécile Aptel and Virginie Ladisch, ‘Through a New Lens: A Child-Sensitive Approach to Transitional Justice’, International Center for Transitional Justice (August 2011). 162 An Michels, a psychologist who worked with the SCSL and the ICC, notes that many of the victims of child recruitment who testified before the Court ‘showed symptoms of behavioral disorders’ and ‘suffered from intrusive thoughts and nightmares’. See An Michels, ‘As If It Was Happening Again: Supporting Especially Vulnerable Witnesses, in Particular Women and Children, at the Special Court for Sierra Leone’, in International Criminal Accountability and the Rights of Children, edited by Karin Arts and Vesselin Popvski (The Hague: Hague Academic Press, 2006), 136.

200 Children Involved in International Crimes this is done under protective conditions. This is particularly important for older children and for those involved in graver crimes. Assuming that a recognition of responsibility is important for all the above reasons, the question is then how this can best be elicited in a manner that is fully compliant with children’s rights. There appear to be two main avenues to this end. The first is offered by judicial processes, as they seek to establish criminal responsibility. If conducted in a way that fully complies with international human rights law and that is adapted to juveniles, as per the provisions reviewed above, this may provide a space that is sufficiently protective to allow children to face up to their responsibility, or even freely and willingly acknowledge their crimes. In this regard, it is important to distinguish between the related but separate stages of criminal justice processes: a recognition of responsibility or conviction is distinguished from, and need not necessarily be followed by, punishment. Juvenile justice is envisaged as less retributive and more restorative than general criminal justice; and where it works, it can support reintegration. While this first avenue is attractive, one challenge in its practical application is that very few states have functioning juvenile justice systems. And unfortunately, those with well-equipped and effective juvenile justice or criminal justice systems more generally are seldomly those most affected by atrocity crimes. Conversely, the states in which children participate in the commission of international crimes usually have weak judicial systems and a deficient rule of law. For instance, in the case of the ICC, these states are usually unwilling or unable to try suspects in the first place, and are therefore unlikely to have the capacity or willingness to offer a safe, protective and restorative space for the children involved in atrocities. The other avenue to elicit an acknowledgement of responsibility from children, or to have them recognise such responsibility, is offered by transitional justice processes, such as truth-seeking mechanisms or other alternative reconciliation mechanisms, insofar as these processes fully respect children’s rights. Transitional justice mechanisms – notably truth-seeking mechanisms, such as truth commissions – may be a useful tool in dealing with children who have participated in crimes. Managed with sensitivity, truth-telling or restorative justice mechanisms can help children to recognise their responsibility in the commission of a crime and, concomitantly, to expose their own victimisation and desire to be reintegrated into society. Such mechanisms may provide space for a deeper acknowledgement, covering the responsibility not only of the children concerned, but also of their families and communities, and the circumstances that led to their association with an armed group in the first place. When children participate in atrocities, it is generally because they have been left unprotected, if not incited or coerced. Thus, their participation indicates a deep failure in child protection, which local, national and international actors and policymakers are usually reluctant to acknowledge and recognise, but which may be uncovered by transitional justice. A caveat should be made that transitional justice mechanisms are not a panacea and may sometimes even be detrimental to some children by exposing them to the public or by retraumatising them. However, deconstructing the circumstances

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leading up to the use of children in armed conflict, and consequently their involvement in committing atrocities, provides space for those children who participated in crimes, their victims and communities to better understand the causes and nature of such complex situations. Transitional justice mechanisms have the potential to anchor a child’s criminal responsibility within the broader societal context that effectively destroyed the social fabric within their communities. This more holistic understanding may, in turn, diminish child stigmatisation. Moreover, these processes help to assert the agency and resilience of children, and actively engage them in the rebuilding of their communities and societies in the aftermath of atrocities.

5 Children involved in crimes and transitional justice Considering that it may be in the best interests of the children involved in atrocity crimes to have some form of acknowledgement in a protective environment, without necessarily involving punishment, transitional justice is of particular interest. Its emphasis on documentation and public acknowledgement makes it well suited to address the gaps between the experiences and suffering of the children who have participated in crimes and the perceptions of their families and communities. This section briefly reviews how some transitional justice mechanisms have interacted with such children and the results they have achieved, focusing on the truth commissions that operated in Peru, Sierra Leone, East Timor and Liberia. 5.1 Peru In its 2003 final report, the Peruvian Truth and Reconciliation Commission documented that all parties to the conflict in Peru had illegally and forcibly recruited children under the age of 18 in the 1980s and 1990s.163 Boys between the ages of 15 and 17 were compulsorily enlisted into the armed forces164 and had to follow a strict military regimen, serving as guards and spies, and sometimes engaging in combat.165 Armed groups forcibly recruited children through violence and coercion (kidnappings; threats to harm the families of the children who would not join), or through false promises, deception or indoctrination.166 It succinctly referred to children as perpetrators of crime, but in the context of the broader violence that engulfed Peru throughout the 1980s and the 1990s.167 Crimes committed by children were considered under the backdrop of illegal

163 La Comisión de la Verdad y Reconciliación, ‘Informe Final’, 28 August 2003, 620– 621 [https://www.cverdad.org.pe/ifinal/]. 164 Ibid, 602. 165 Ibid, 604. 166 Ibid, 614. 167 The crimes are systematically explained in relation to the broader context; see notably ibid, 604.

202 Children Involved in International Crimes recruitment,168 political indoctrination,169 the disruption of social safety nets170 and economic peril (large populations were displaced and often went hungry).171 5.2 Sierra Leone The Truth and Reconciliation Commission of Sierra Leone was the first truth commission to explicitly mention of children in its mandate, in recognition of the serious impact that the conflict had on children. It documented the role of children in the perpetration of crimes, placing these crimes within their contexts.172 Its 2004 final report contains a specific chapter devoted to children.173 The Commission indicated that more than 10,000 child-soldiers were recruited during the war;174 and that such forced recruitment in turn led to gross human rights abuses, including sexual slavery, rape, amputations, mutilation, displacement, torture, forced labour and murder.175 Thousands of children experienced inhumane and degrading treatment at the hands of their captors, including being forced to engage in gruesome practices such as eating human excrement, drinking human blood and cannibalism.176 To secure retention, armed groups branded or carved their acronyms on different parts of the children’s body, such as the chest, forehead, arms or back.177 The Commission found that all the armed groups perpetrated rape, sexual slavery and other forms of sexual violence. Young girls were repeatedly raped and some were forcefully married, becoming ‘bush wives’ or sexual slaves, exploited sexually and in many other ways. The Commission documented how child-soldiers, through coercion and under the influence of narcotics,178 were often forced to commit heinous atrocities, including carrying out the killing, amputation or rape of a loved one or community member.179 Descriptions of crimes committed by children are presented in the report along with considerations of children’s innate characteristics – namely their vulnerability and malleability, and their capacity to be manipulated through peer pressure and to imitate adult behaviour.180 The Commission sought to understand the roles of children 168 169 170 171 172

173 174 175 176 177 178 179 180

Ibid, 602. Ibid, 265. Ibid, 254, 261. Ibid, 261. Report of the Truth and Reconciliation Commission of Sierra Leone, ‘Volume Three B, Chapter Four: Children and the Armed Conflict in Sierra Leone’ [http://www. sierraleonetrc.org/]; see also Philip Cook and Cheryl Heykoop, ‘Child Participation in the Sierra Leonean Truth and Reconciliation Commission’, in Children and Transitional Justice: Truth-telling, Accountability, and Reconciliation, edited by Sharanjeet Parmar et al (Cambridge: Human Rights Program at Harvard Law School, 2010), 161. Ibid. Ibid, 236. Ibid, 266–278. Ibid, 276. Ibid, 275. Ibid, 280. Ibid, 263. Ibid, 281.

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as both victims and perpetrators, noting that the most heinous crimes committed by children were carried out while under the influence of drugs, and bringing to the fore the issue of a child’s diminished capacity to distinguish right from wrong.181 Importantly, the findings have been made available for children: there are two child-friendly versions of the Commission’s final report, a general one and one specifically for secondary-school children, in addition to a video version.182 Comparing it with the SCSL, the Commission obviously achieved a lot: it is unlikely that any criminal prosecution could have managed to present such a complete picture of the complexity of the situation for all those involved, and certainly for children. Messeh Leone, who was closely involved in the Sierra Leone Commission as a child, noted that: As children, we were given an opportunity to engage in the process and have a voice of our own. We felt empowered and engaged and it was encouraging to know that the world was listening to our devastating experiences of the war.183 5.3 East Timor The 2005 report of the Commission for Reception, Truth and Reconciliation of East Timor (Comissão de Acolhimento, Verdade e Reconciliação) documented how both pro-independence and pro-integration forces recruited children into armed groups. Upon recruitment, children became vulnerable to a range of abuses no different from those experienced by adults, including sexual violations, detention, torture and forcible displacement. The Commission underscored that the bulk of forcible recruitment practices and abuses towards children were disproportionately perpetrated by the Indonesian military and its auxiliaries.184 In evaluating the role of children in the armed struggle, the Commission concluded that: ‘The struggle for control of Timor-Leste was partly played out in the battle for its children.’185 5.4 Liberia The Truth and Reconciliation Commission of Liberia was informed in its approach by the experience in Sierra Leone. The two commissions worked closely 181 Ibid, 280. 182 The child-friendly versions as well as the complete versions are available at http:// www.sierraleonetrc.org/. 183 Messeh Leone was president of the Children’s Forum Network at that time the Sierra Leone Commission operated. Interview cited in Cécile Aptel, Saudamini Siegrist and Friedrich W Affolter, ‘Transitional Justice and Children: Prioritizing Child Protection and Education Reform’, in Handbook of Political Violence and Children: Psychosocial Effects, Intervention, and Prevention Policy, edited by Charles W Greenbaum, Muhammad M Haj-Yahia and Carolyn Hamilton (Oxford: Oxford University Press, 2020), 522. 184 Comissão de Acolhimento, Verdade e Reconciliação Report (Chega!)’, October 2005, Chapter 7.8, 2 [http://etan.org/news/2006/cavr.htm]. 185 Ibid, 98.

204 Children Involved in International Crimes to systematically include children in statement taking and in hearings throughout the country. Boys and girls were supported in their participation through special procedures developed to safeguard their involvement.186 This included a vulnerability assessment and safety checklist based on the Sierra Leone experience, together with measures to protect children’s identity and confidentiality during statement taking and hearings, and the provision of psychosocial support throughout the process.187 In its final 2009 report, the Liberia Commission found that the forced recruitment of children was widely used by all fighting forces;188 and that children were central to the armed groups’ logistics and combat efforts, as they were heavily relied upon to serve as porters, cleaners, cooks, scouts, domestic and sexual slaves, as well as active combatants.189 The Commission explained this reliance by a conjunction of factors, including the pliability and obedience of children.190 It documented that while some children were abducted – sometimes at school191 – others were enlisted based on political or nationalistic motivations,192 or a desire to seek revenge for the killing of a loved one or to escape an already abusive environment. For other children, joining an armed group was purely a survival strategy following displacement or the loss of caregivers. The children associated with armed groups or forces suffered from a range of abuses, including arbitrary detention,193 torture,194 disappearances195 and killings.196 Girls paid a particularly heavy price, as three-quarters of the Liberian girls associated with armed forces were raped or experienced some form of sexual violence. Many were made ‘bush wives’ and kept in a state of sexual slavery.197 Children were victims of cannibalism and were also forced to ingest human flesh as part of their initiation.198 The Commission documented that some child-soldiers 186 Theo Sowa, ‘Children and the Liberian Truth and Reconciliation Commission’, in Children and Transitional Justice: Truth-telling, Accountability, and Reconciliation, edited by Sharanjeet Parmar et al (Cambridge: Human Rights Program at Harvard Law School, 2010), 193–230. 187 Ibid. 188 Republic of Liberia, ‘Truth and Reconciliation Commission, Volume Three, Appendices, Title II: Children, the Conflict and the TRC Children Agenda’, 55 [http:// www.trcofliberia.org/resources/reports/final/volume-three-2_layout-1.pdf]. 189 Ibid, 96. 190 Ibid, 60. 191 Ibid, 36–44. 192 Ibid, 56. 193 Ibid, 40. 194 Ibid, 63. 195 Ibid, 45. 196 Ibid, 32–33. 197 Ibid, 50. 198 Among the gruesome depictions provided by the Commission were descriptions of children cannibalised because they embodied the qualities of youth and strength: ‘Rebel commanders organized cooking feasts and served children’s body parts, including their intestines and hearts. The blood of children was collected and cooked into soups in which hearts were served as choice meats for cannibalistic commanders. In other instances, children’s body parts were sold in open markets.’ Ibid, 43–44.

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perpetrated crimes (killing, torture, looting, corporal punishment and rape) against combatants and civilians, including against other children.199 The Commission placed these crimes against the backdrop of the conflict and an unstable and hostile environment in which children were often stripped of their free will. It found that, through forced drug consumption, used to overcome their inhibitions and fears,200 children were coerced into fighting, their moral sensibilities inhibited and their sense of right and wrong severely hampered. It concluded that children had little to no control over their actions. The Commission underscored that society must fully comprehend the complexities of the situation and the pressures under which children were placed before judging them,201 and concluded that children ought not to be prosecuted.202 5.5 Concluding remarks The examples outlined above demonstrate the potential of truth-seeking mechanisms – in particular, truth commissions – in highlighting the plight of the girls and boys involved in atrocity crimes, and the circumstances leading to the commission of these crimes. Because they prioritise acknowledgement and reconciliation over litigation and punishment, transitional justice processes respect child rights while offering the potential for children to acknowledge their responsibility; express contrition, regret or remorse; and explain their own victimisation and wish to be reintegrated into their families and communities. Particularly in contexts such as Sierra Leone, where a truth commission coincided with an international or hybrid court, transitional justice processes can play a useful complementary role to international criminal jurisdictions in dealing with children who have participated in atrocity crimes. While they are not a panacea, they can provide a forum to deconstruct the circumstances that led to the involvement of children in international crimes, so that victims – as well as the families and the communities of the child perpetrators – can better understand the causes, nature and consequences of the crimes.

199 200 201 202

Ibid, Ibid, Ibid, Ibid,

65. 36–64. 91. 92, 105.

6

Conclusion and Recommendations

This concluding chapter summarises the main findings of this study regarding the respective contributions of each of the international criminal jurisdictions, before explaining why international prosecutions have not been more focused on children and recommending specific improvements so that international criminal jurisdictions can better address and respect children’s rights and needs.

1 International criminal courts and children: accomplishments and failures The review of the practice and jurisprudence of different international and hybrid courts has demonstrated the gap that exists between the scope of atrocity crimes committed against children and the impact of these crimes on children, whether as victims or as alleged participants; as well as the very limited attention (if any) devoted by these jurisdictions to these crimes. 1.1 The International Military Tribunal of Nuremberg The ground-breaking International Military Tribunal of Nuremberg focused on those bearing the greatest level of de jure responsibility, emphasising the political responsibility of Nazi leaders for aggression or ‘crime against peace’, possibly to the prejudice of crimes against humanity and war crimes.1 The Tribunal focused on those individuals who held the highest political and military responsibilities in the acts of aggression, and paid relatively less attention to their civilian victims. Indeed, while the Nuremberg prosecutors demonstrated the Nazis’ crimes committed against Jews and their plan to exterminate the European Jews, they relied primarily on documentary evidence written by the Nazis themselves rather than on eyewitness testimony. Victims and survivors of the Nazi atrocities were barely visible during the trial, and children were all but absent. Only in rare exceptions does the Nuremberg judgment explicitly refer to children or youth independently of other victims; and in those cases where it does, 1 Judgment of 1 October 1946, 22 IMT 203 (IMT 1946) [http://werle.rewi.hu-berlin. de/IMTJudgment.pdf].

DOI: 10.4324/9781003361015-6

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their age and gender usually remain undetermined, and the extent of their victimisation is not very detailed. There are three main categories of references to crimes committed against children in the judgment: those committed as part of crimes against civilians in general; those specifically targeting Jews; and those relating to Nazi propaganda, indoctrination and mobilisation of children and youth. In general, children are collapsed into unquantifiable, generic umbrella terms, referred to as ‘children’, ‘youth’, ‘families’, ‘inhabitants’, ‘population’, ‘people/persons’, ‘groups’, ‘labourers’, ‘hostages’, ‘victims’, ‘Jews’ and so on. Yet implicit references to crimes committed against children are interlaced throughout the paragraphs pertaining to the sentencing of most of the accused convicted of planning and executing deportation, forced labour, concentration camp maintenance and, more generally, persecution policies.2 As such, overall, despite the overwhelming impact of Nazi crimes on children, the Nuremberg Tribunal largely failed to highlight their specific plight. German children were subjected to propaganda and brainwashed, and later used to play a wide array of roles. Children who lived in occupied territories – especially in the East – suffered from deprivation, including famine; forced labour akin to slavery; and the deaths of their loved ones or even themselves. But none suffered as much as those subjected to the worst discrimination: a whole generation of Jewish children, whose lives were shattered even if they survived. However, only a few of these crimes were even mentioned in the Nuremberg judgment. To take but one blatant example, none of those tried were formally charged specifically with the systematic killing of Jewish children on arrival at an extermination camp; and these crimes are barely mentioned in the judgment when compared with lengthy descriptions of political events.3 Another vacuum in the Nuremberg judgment concerns the participation of children and youth in the commission of atrocities. It is by now well documented that the Nazi regime deliberately brainwashed children in the National Socialist ideology, notably through compulsory membership in the Hitler Jugend.4 Many children living under Nazi rule were directly involved in combat operations, especially in the late stages of the Second World War; and there are reasons to believe that their involvement extended to the commission of war crimes and other international crimes, in particular for those who joined the Schutzstaffel ranks.5 Evidence of atrocity crimes committed by children under the command responsibility of Nazi leaders would most probably have been available had the investigators and prosecutors of the Nuremberg Tribunal searched for it. But they did not devote particular attention to the involvement of children in these crimes: the judgment contains little references to the role that children played in the execution of crimes. In sum, mirroring the way the Tribunal disregarded how crimes specifically targeted women and had a particular impact on them, the Nuremberg Tribunal 2 3 4 5

See Chapter 4. IMT 1946{466}. Ibid {415}. Ibid {512}.

208 Conclusion and Recommendations and judgment made only marginal references to children, neglecting their particular suffering and the extent to which international crimes impacted them. 1.2 The International Military Tribunal of Tokyo At the International Military Tribunal of Tokyo, the lack of emphasis on crimes against children is only slightly less prevalent. Although there are a few explicit references to the victimisation of children in the judgment, they are once again mostly subsumed under generic umbrella terms, such as ‘civilians’ or ‘victims’.6 This not only deprives child-victims of visibility, but also means that there is a general lack of information on how crimes affected them specifically. Consequently, while children certainly figured among the victims of the crimes committed by the Japanese in the context of the Second World War, it is impossible to know or even estimate from the judgment how many were among the victims and how much they suffered. Even where children are specifically mentioned in the Tokyo judgment, little additional information is provided concerning, for instance, their age or gender; although the nationality of the victims often either is directly referenced or can be inferred from the context.7 An exception to the lack of specificity on gender is the reference to ‘girls’ where the Tokyo Tribunal documented sexual violence against women and girls. However, the use of the term ‘girls’, while presumed to apply to female children, is ambiguous. Who exactly are labelled ‘girls’ and are they all children? Is the term also used to refer to younger unmarried women? Could this term encompass all unmarried young women in the minds of the Tokyo prosecutors and judges? These questions remain open and such ambiguity is reflected throughout the judgment. In Tokyo, as in Nuremberg, crimes against children were not prioritised, systematically pursued or given much attention in the proceedings or in the judgment. Turning to the possible participation of children in atrocities, it is noteworthy that, like their contemporary Nazi counterparts, the Japanese imperial leaders zealously indoctrinated children and youth in nationalistic totalitarian teachings.8 These indoctrination efforts were scrutinised in the course of the investigations conducted for the Tokyo Tribunal, but its judgment did not further examine the possible role of Japanese children in atrocity crimes. Children are discussed only in relation to the crimes of war preparations to demonstrate how well planned the 6 Judgment of 12 November 1948 (International Military Tribunal for the Far East), in John R Pritchard, Sonia M Zaide and Donald Cameron Watt, The Tokyo War Crimes Trial vol 2 (New York: Garland Publishing, 1981): {48,421}–{48,424}. Counts 37, 38, 45–50 and 53–54 all included crimes waged on a wholesale scale to include civilians. 7 There are fewer than 20 explicit references in a document of over 500 pages. 8 Judgment of 12 November 1948 (Indictment from the International Military Tribunal for the Far East) 18–19 (IMTFE 1946) [https://www.trumanlibrary.gov/library/ research-files/indictment-international-military-tribunal-far-east?documentid=NA&pa genumber=19].

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defendants’ actions were and how their efforts of indoctrination bolstered their war preparations. The prosecutorial strategy of the Tokyo Tribunal emphasised the role of high-ranking leaders, omitting children from their scrutiny. When seeking to understand why crimes against children were largely overlooked by the Tokyo Tribunal, several possible factors must be considered. First, the combination of its mandate and prosecutorial strategy led it to focus on the political responsibility of high-ranking leaders in the aggression campaign of the Japanese Empire, rather than on disfranchised victims. Second, considering the scale of the atrocities, it would have been extremely challenging for the investigators and prosecutors to reveal their full and nuanced extent in court. Third, it is unlikely that all relevant information and details were available to them, such as the disaggregation of victims by age or sex, or their identification. In sum, while the Tokyo Tribunal may have paid slightly more attention to childvictims than its sister tribunal in Nuremberg, it correspondingly referred only marginally to children. Overall, both international military tribunals were adult-centric, focusing on the experience and suffering of adults. They missed the opportunity to demonstrate the extent to which children fell victim to the crimes falling within their respective jurisdictions and the long-term impact of these crimes on the victims, their families and communities. These tribunals were creatures of their time and contexts: they operated in a world where children were not yet given much of a voice – not even recognised specific rights. Their mandate did not include any explicit or implicit references to children; and the courts themselves did not pay much attention to children – but neither did they to other categories of victims, such as homosexuals and persons with disabilities, among numerous others. 1.3 The International Criminal Tribunal for the former Yugoslavia The United Nations (UN) ad hoc tribunals for the former Yugoslavia and Rwanda were established in the 1990s, in an era when international human rights law (IHRL) in general and child rights in particular had developed substantially. This notwithstanding, when compared to their predecessors – the International Military Tribunals established immediately after the Second World War – they made only limited progress in addressing crimes committed against children. From the outset, the International Criminal Tribunal for the former Yugoslavia (ICTY) was in a strong position to investigate crimes against children as they occurred. Unlike its predecessors, it initially operated during the conflicts, in a context where media, the UN and humanitarian organisations all reported on ongoing violations, including the suffering of children. During its first few years of functioning, the ICTY opportunistically tried lowerranking individuals rather than immediately focusing on high-ranking political leaders. Several ICTY indictments from that early period listed children among the victims – predominantly in allegations qualified as war crimes or crimes against humanity.9 It is during this period that the ICTY jurisprudence elucidated more 9 See Chapter 4.

210 Conclusion and Recommendations information about how children were victims of generic crimes, as it focused on more specific allegations rather than on the much broader scope of responsibility of higher-ranking leaders. However, over time, the prosecution increasingly focused on those high-ranking political leaders deemed to have the largest de jure or de facto responsibility in the various Yugoslav conflicts; and despite the overwhelming evidence showing that children were among the victims and the fact that several trials involved crimes committed against children as part of other crimes, not a single case or trial focused specifically on crimes committed against children.10 A particular failure was the missed opportunity to highlight the impact of repeated rapes and forced pregnancies on girls when, in the context of the former Yugoslavia – especially Bosnia-Herzegovina – many thousands of the victims were children.11 Like its predecessors, the ICTY often omitted the age of young victims, hampering the systematic capturing of crimes committed against children. It only rarely disaggregated crimes against children from other crimes; and even when children are specifically identified as victims, they are often subsumed into more general victim categories in later sections of the indictments or judgments.12 It used ambiguous terms without age specification, such as ‘daughter’ or ‘family member’, obscuring the fact that children were the victims.13 In sentencing, the ICTY judges usually considered the age of young victims as an aggravating circumstance, but not necessarily in a systematic way. While the conflicts in the former Yugoslavia are not known to have involved masses of children in the perpetration of atrocity crimes, there is anecdotal evidence that certain groups that committed international crimes may have included young people, most probably under 18 years of age.14 The ICTY did not have a clear age-based jurisdictional limit and thus was not restricted from looking into the criminal responsibility of children that may have been involved, but it never did so. 1.4 The International Criminal Tribunal for Rwanda Turning to the International Criminal Tribunal for Rwanda (ICTR), the international crimes that fell within its jurisdiction – namely those committed in Rwanda in 1994 – left hundreds of thousands of children dead or injured and many more scarred for life because of the atrocities they had seen, as people were killed in the streets and their communities and country were ravaged.

10 Ibid. 11 Ibid. 12 See Chapter 4, referring notably to Prosecutor v Zoran Kupreškic´, Mirhan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Dragan Papic and Vladimir Santic (First Amended Indictment) IT-95–16, para 32 (ICTY 1998) [http://www.icty.org/x/cases/kup reskic/ind/en/kup-1ai980209e.pdf]. 13 Ibid, para 30. 14 See Chapter 5.

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However, as at the ICTY, despite the overwhelming evidence demonstrating that children were frequently among the victims, not a single ICTR case or trial focused specifically on crimes committed against children.15 In a genocide where Tutsi children were targeted for killing, irrespective of age, leaving least tens of thousands of children massacred in about four months and probably thousands more sexually assaulted, mutilated or violated in some form or other, the ICTR did not particularly attempt to draw attention to these crimes. Because no trial nor indictment at the ICTR focused exclusively on crimes committed against children, the violations against them were not made salient, but were rather subsumed under other crimes, as several trials mentioned crimes committed against children as part of the other crimes reviewed. There are two main ways in which the ICTR referred to children as part of its findings on the crime of genocide. First, the court documented some of the crimes suffered by Tutsi children as part of the genocide against their group. Second, in showing how those who committed genocide had the requisite intent, the ICTR referred to the perpetrators’ declarations that not even babies or foetuses should be spared. For instance, in the ground-breaking Akayesu judgment – the first ever on the crime of genocide – Jean-Paul Akayesu was found to have exhibited a clear genocidal intent to destroy all Tutsis, including children, newborns and even foetuses.16 The judgment noted that pregnant women – including those of Hutu origin – were killed on the grounds that the foetuses in their wombs had been fathered by Tutsi men; for in a patrilineal society such as Rwanda’s, the child is deemed to have the father’s ethnic identity.17 References to rape and sexual violence abound in the ICTR’s case law; and the abovementioned pioneering Akayesu judgment – which ruled that rape can constitute genocide – established that girls as young as 12 had been forced to parade naked and been raped and killed.18 But sadly, victims of rape and sexual violence are very often conflated under the broad qualification of ‘women and girls’, obscuring the extent to which children were victims of these crimes. Also, the ICTR did not emphasise the suffering of girls who were raped or who unwillingly bore children as a direct result of the crimes they endured. This was a massive failing considering that it has been estimated that 10,000 babies were born of ‘women and girls’ in such circumstances in Rwanda.19 At the sentencing stage, in cases involving crimes against children, while the ICTR considered the age of some of the young victims as aggravating circumstances, it is difficult to assess whether it did so systematically. This is because almost all those tried at the ICTR were convicted of genocide, often involving 15 See Chapter 4. 16 See Chapter 4; and Prosecutor v Jean-Paul Akayesu (Judgment) ICTR-96–4-T, para 121 (ICTR 1998) [http://www.unictr.org/Portals/0/Case/English/Akayesu/ judgement/akay001.pdf]. 17 Ibid. 18 Ibid, paras 416, 421–424, 429–431, 437,709, 731–734. 19 See Patricia A Weitsman, ‘The Politics of Identity and Sexual Violence: A Review of Bosnia and Rwanda’, Human Rights Quarterly vol 30 (2008): 561–578.

212 Conclusion and Recommendations imprisonment for the remainder of their lives, making it challenging to measure the possible weight of different aggravating circumstances.20 Regarding the possible participation of children in atrocity crimes, while its mandate did not exclude children, the ICTR did not try anyone for crimes committed as a child, focusing instead on high-ranking leaders, like the other international courts that preceded it. Its case law also did not highlight the recruitment of many children, often labelled ‘youth’, by different Rwandese militia – notably the infamous Interahamwe – even though militia members of all ages, including many children, participated in different ways in the execution of the genocide: erecting and manning roadblocks in the streets; using them to identify, capture and kill Tutsis; and hunting those who sought to escape.21 Overall, despite the overwhelming evidence showing that children figured prominently among the victims of the crimes committed in the former Yugoslavia and Rwanda – and despite the references to crimes against children in the jurisprudence of the ICTY and the ICTR – it appears that these ad hoc tribunals did not seek to underline these crimes or even to investigate them systematically. As noted in a study co-led by the organisation No Peace Without Justice and the United Nations Children’s Fund (UNICEF), ‘there has not been any systematic or specific focus on crimes committed against children in either Tribunal’.22 No specific charges sought to bring to light the particular plight of children. Because no indictments or even charges specifically concerned acts committed against children, child-victims are often mentioned among other victims; and the violations against them are not made salient, but rather subsumed either under indiscriminate crimes conducted against civilians or under discriminate crimes against a specific group targeted on discriminatory grounds (ethno-religious identity at the ICTY and Tutsi identity at the ICTR), including torture, persecution, sexual violence, forcible transfer, murder and extermination. The crimes were usually – but not systematically – considered as aggravating factors in the findings or sentencing. One particular concern from a gender perspective is that both the ICTY and ICTR failed to emphasise the suffering of girl-victims of forced pregnancy – even though, in the context of both the former Yugoslavia (especially Bosnia-Herzegovina) and Rwanda, many girls (probably thousands) were victims of forced pregnancy as a direct result of rape. Both tribunals also ignored the complex issue of the children born out of these rapes. It is now well established that babies and children born out of rape suffer from dreadful social stigma because, in patriarchal communities, they are assumed to bear the – often despised – ethnic or religious identity of their fathers. As noted by Patricia Weitsman: ‘Because their identities are 20 See notably Barbora Holá, Catrien Bijleveld and Alette Smeulers, ‘Punishment for Genocide –Exploratory Analysis of ICTR Sentencing’, International Criminal Law Review vol 11, no 4 (2011): 745–773. 21 See Chapters 3 and 4. 22 No Peace Without Justice and UNICEF, ‘Justice for Children Through Other Mechanisms’, International Criminal Justice and Children (September 2002): 112– 113 [https://www.un.org/ruleoflaw/files/ICJandChildren.pdf].

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inextricably linked to their fathers and because of the circumstances of their conception, they become subject to gross violations of their human rights.’23 These violations include neglect, infanticide, abandonment, violence and discrimination. Although such violations are usually inflicted on children by their own communities or families, the birth of the children and their subsequent stigmatisation were foreseeable and intended results of the rape or forced pregnancy. Children born out of rape were absolutely not a marginal phenomenon in either Bosnia-Herzegovina or Rwanda – yet they went unnoticed by the ICTY and ICTR. More recently, the Residual Mechanism which has taken over from the ICTY and ICTR sought to highlight the contributions of these tribunals by organising an online exhibition entitled ‘Children in Conflict’.24 The exhibition provide insight into the experience of children during the Balkan wars and the Rwandan genocide, relying on a selection of photographs, video and audio materials, transcripts and other official documents that were admitted as evidence in cases before the ICTY and the ICTR. It recognises that cases brought before the ICTY and ICTR:25 did not focus on the age of victims per se, nor did they record all significant attacks against children. Yet, many of the testimonies and objects admitted into evidence before the Tribunals depict how children often became the intentional target of sexual violence, torture, persecution, forcible transfer, murder and extermination, among other crimes. This sums up the contributions of these courts: while ample evidence showed the suffering of children, there was no particular focus on children, and thus no efforts to document the crimes that victimised them and hold those responsible to account. 1.5 The Special Court for Sierra Leone It is only with the Special Court for Sierra Leone (SCSL) that crucial advances were made in fostering accountability for crimes committed against children. The SCSL broke new ground by focusing on a child-specific crime: the recruitment of children under the age of 15 and their use to participate actively in hostilities. Its prosecutors included charges for this crime in every indictment they issued against a total of 13 individuals.26 This led to several convictions and an elaborate jurisprudence clarifying the elements constitutive of the conscription and enlistment of children, and their use to participate actively in hostilities, such as the 23 Patricia A Weitsman, ‘The Politics of Identity and Sexual Violence: A Review of Bosnia and Rwanda’, Human Rights Quarterly 30 2008, at 578. 24 International Residual Mechanism for Criminal Tribunals, ‘Children in Conflict – Evidence from the Archives of the International Criminal Tribunals’ [https://www. irmct.org/specials/children-in-conflict/index.htm]. On the Residual Mechanism, see Chapter 1. 25 Ibid. 26 See Chapter 3.

214 Conclusion and Recommendations distinction between ‘conscription’ and ‘enlistment’ and the scope of who is deemed to ‘participate actively’ in hostilities. This was a milestone in terms of the contribution of international and hybrid courts in furthering accountability for crimes against children. While the SCSL has a strong legacy in terms of this child-specific crime, its focus on this offence may possibly have been to the detriment of capturing other crimes suffered by those same children, who were not only recruited and used in hostilities, but also submitted to other horrendous forms of abuse. For instance, the SCSL did not consider that abduction of children and their use in hostilities may, in certain circumstances, amount to slavery per se. Also, because girls were particularly victimised in a number of different ways, with many sexually abused and raped, statutory rape – as defined under Sierra Leonian law – was included in the Statute of the SCSL; but this qualification was never retained by the Court, not even as cumulative charges.27 Nonetheless, the SCSL sought to bring to light different sexual crimes: it recorded convictions for rape, sexual violence and sexual slavery, and even innovated with the recognition of the crime of ‘forced marriage’; but without emphasising the child-specific dimensions of these crimes, usually lumping together ‘girls and women’.28 One psychologist who worked for the SCSL in its early years noted: ‘It is striking that the choice of witnesses generally reflects a typical gender division: boys are called to testify about being a child ex-combatant, women and girls testify about sexual violence.’29 The SCSL may thus have inadvertently contributed to a skewed understanding of the respective experiences of boys and girls, projecting an image of girls as powerless victims and undermining their agency, when – in Sierra Leone, as in other places – girls also participated in the hostilities and boys were also sexually abused.30 The SCSL paid surprisingly little attention to the many other generic crimes perpetrated against the many children in Sierra Leone who were never associated with armed groups or forces, including killings, maiming, persecution and deprivation of access to basic services essential to children’s survival. Not a single case 27 See Chapter 4, citing SCSL Statute, art 5(a). 28 Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T (SCSL, 20 June 2007), para 711 .[http:// www.rscsl.org/Documents/Decisions/AFRC/613/SCSL-04-16-T-613s.pdf]. InProsecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment, Trial Chamber I), SCSL-04–15-T, paras 1211–1214 (SCSL, 2 March 2009), there is a reference to a women and her ‘daughter’ who were both victims of forced marriage, but with no indication of their respective ages, leaving an ambiguity as to whether the daughter was a child [http://www.rscsl.org/Documents/Decisions/RUF/1234/ SCSL-04-15-T-1234.pdf]. 29 An Michels, ‘As If It Was Happening Again: Supporting Especially Vulnerable Witnesses, in Particular Women and Children, at the Special Court for Sierra Leone’, in International Criminal Accountability and the Rights of Children, edited by Karin Arts and Vesselin Popvski (The Hague: Hague Academic Press, 2006), 135. 30 See notably SJ Park, ‘Other Inhumane Acts: Forced Marriage, Girl Soldiers and the Special Court for Sierra Leone’, Social and Legal Studies vol 15, no 3 (2006): 321.

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focused on the suffering of these children: children were listed among other civilian casualties of generic crimes, to demonstrate the widespread or systematic character of these crimes or that civilians were indeed targeted. As a result, when generic crimes against children are mentioned in the SCSL judgments, children are usually cited among the civilian casualties – as, for instance, in the Armed Forces Revolutionary Council and Revolutionary United Front cases. This is particularly sad, considering the extent and the gravity of the many crimes suffered by children in Sierra Leone, who account for around one-third of the entire population of Sierra Leone.31 In a statement to the Truth and Reconciliation Commission of Sierra Leone, a group of children declared: Every child in this country has got a story to tell: a heart-breaking one. Unfortunately, only a handful of these stories will be told and made known to the world. But the devastating impact lingers and endures all the time. It continues to linger in the minds and hearts of young people.32 Unlike all the other international or hybrid courts, the SCSL was explicitly given jurisdiction over minors older than 15 years of age.33 This was a response to insistent demands in Sierra Leone from victims and many politicians that children responsible for atrocities be brought to justice. However, these demands conflicted with the views of some local child-rights actors and most international policymakers who, at the time, largely opposed the criminal prosecution of children. This led to a tense debate and, ultimately, the inclusion of Article 7 in the Statute of the SCSL, which included the explicit instruction that juveniles: shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child.34 Yet despite this mandate, the first prosecutor decided to focus on crimes committed against children rather than by children. This decision led to the focus on the recruitment and use of child-soldiers and related jurisprudential developments mentioned above; but it disappointed those – especially in Sierra Leone – who had 31 See Chapter 4. In 2022, children under the age of 14 alone constituted 40% of the population of Sierra Leone, and 33% were between the ages of 10 and 24. United Nations Population Fund, World Population Dashboard [World Population Dashboard (unfpa.org)]. 32 Report of the Truth and Reconciliation Commission of Sierra Leone, ‘Volume Three B, Chapter Four: Children and the Armed Conflict in Sierra Leone’, §§ 124, 260 [https:// www.sierraleonetrc.org/index.php/view-the-final-report/download-table-of-contents/ volume-three-b/item/witness-to-the-truth-volume-three-b-chapter-4?category_id=14]. 33 See Chapter 5, referring to SCSL Statute, art 7. 34 Ibid, art 7(1).

216 Conclusion and Recommendations expected that the SCSL would provide an opportunity to better understand why, how and to what extent older children had been involved in committing atrocities in Sierra Leone. The first prosecutor, followed by his successors, based this decision on the postulation that children were not among those most responsible for the crimes committed in Sierra Leone: that they had not risen very high through the ranks and therefore were not among those bearing the greatest responsibility for the commission of the crimes, the envisaged focus of the SCSL. Based as it was on an understanding of what constitutes ‘the greatest responsibility’ – which is inherently subjective and value driven – this decision was justified considering the SCSL’s limited resources, enabling only a few cases to be investigated and prosecuted. In this context, it made sense to focus on those responsible for recruitment instead of investigating juveniles – an approach which reinforced the distinction between those ultimately responsible and those children who followed their orders as a result of persuasion, propaganda or direct threats or under duress. However, it overlooked the genuine local demands for accountability and justice, essentially questioning the sense and purpose of a hybrid jurisdiction if it is not concerned with the expectations in the state primarily concerned. Overall, the SCSL made some crucial advances in fostering accountability for the crimes committed against children, but it also fell short in documenting the broader suffering of children. At the least, the SCSL made a serious dent in the impunity of the perpetrators of crimes against children and powerfully demonstrated that crimes against children are as significant as those against older individuals, opening the way for the International Criminal Court (ICC) to continue on this basis. 1.6 East Timor Special Panels for Serious Crimes While the work of the East Timor Special Panels for Serious Crimes was not reviewed in any depth in this study, it is important to mention them because this is the sole instance in which a child was formally charged and tried for crimes she or he had committed at the age of just 14 years old. Eventually, that child – known as ‘X’ – pleaded guilty and was convicted of manslaughter, and not of an international crime.35 As such, this odd case – while noteworthy – does not constitute a precedent of a juvenile being convicted of international crime by an international or hybrid criminal court, thus limiting its interest for our findings. 1.7 The International Criminal Court The ICC has followed the SCSL in contributing to the growing recognition of how atrocity crimes victimise children – notably through its very first trial, involving Thomas Lubanga Dyilo. A first in the history of international criminal jurisdiction, it was exclusively devoted to crimes against children, with three counts of war crimes for enlisting and conscripting children under the age of 15 and using 35 See Chapter 5.

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them to participate actively in hostilities in the Democratic Republic of Congo (DRC).36 The trial and subsequent conviction of Lubanga drew considerable attention to the phenomenon of the recruitment and use of children in hostilities, highlighting that those responsible for this international crime can be held liable at the international level. It also enabled the ICC to further clarify the elements constitutive of this crime, elaborating on the SCSL’s jurisprudential developments. However, the decision to charge Lubanga only with recruiting and using childsoldiers has been criticised as too limited because he and those under his command – including the children he recruited – allegedly committed many other atrocities, including murder, rape, torture and looting, against members of another ethnic group, the Lendus.37 In an ethnically polarised context, many Lendus were appalled that the only victims formally recognised by the ICC were Hema former child-soldiers – members of Lubanga’s own ethnic group – and felt that Lendu victims, including children, had been forgotten and the crimes they suffered left unpunished.38 Beyond Lubanga, the ICC has devoted considerable resources to investigating and prosecuting the recruitment or use of child-soldiers. Those charged in relation to these crimes include other leaders of African armed groups – notably Dominic Ongwen, Bosco Ntaganda, Germain Katanga and Matthieu Ngudjolo Chui.39 The last two were acquitted of these charges, despite the judges’ findings that children had been recruited and used extensively during the conflict under review.40 36 See Chapter 3. Prosecutor v Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute, Trial Chamber I) ICC-01/04–01/06–2842 (ICC, 5 April 2012), 178– 477 [https://www.icc-cpi.int/pages/record.aspx?uri=1379838]. 37 Ibid, paras 74–80. 38 See Chapter 4. Ultimately, when the ICC Appeals Chamber awarded $10 million in reparations, it identified the beneficiaries as ‘children under the age of fifteen years who were conscripted or enlisted into the FPLC, or used to participate actively in hostilities, as well as to indirect victims – including family members of those children’. 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, Appeals Chamber) ICC-01/04–01/06–3466-Red (ICC, 18 July 2019), para 37. 39 Prosecutor v Dominic Ongwen (Public Redacted Trial Judgment, Trial Chamber IX) ICC 02/04–01/15 (ICC, 4 February 2021), para 3115 [https://www.icc-cpi.int/Pa ges/record.aspx?docNo=ICC-02/04-01/15-1762-Red]; Prosecutor v Bosco Ntaganda (Judgment, Trial Chamber VI) ICC-01/04–02/06–2359 (ICC, 8 July 2019) [http s://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/04-02/06-2359];Prosecutor v Germain Katanga (Judgment pursuant to Article 74 of the Statute, Trial Chamber II) ICC-01/04–01/07 (ICC, 7 March 2014) [https://www.icc-cpi.int/Cour tRecords/CR2015_04025.PDF];Prosecutor v Mathieu Ngudjolo Chui (Judgment pursuant to Article 74 of the Statute, Trial Chamber II) ICC-01/04–02/12 (ICC, 18 December 2012), paras 504–516 [https://www.icc-cpi.int/CourtRecords/CR2013_ 02993.PDF]. 40 See Chapter 3, referring to Prosecutor v Germain Katanga (Judgment pursuant to Article 74 of the Statute, Trial Chamber II) ICC-01/04–01/07 (ICC, 7 March

218 Conclusion and Recommendations To date, in the 20 years of existence of the ICC, only six cases resulting in convictions have been fully completed, including the appellate stage. It is noteworthy that four of these six cases – those against Thomas Lubanga Dyilo, Germain Katanga, Bosco Ntaganda and Dominic Ongwen – all mention crimes against children. The remaining two do not include references to children: one pertains to offences against the administration of justice related to false testimonies;41 the other concerns Ahmad Al Faqi Al Mahdi, who was tried and convicted exclusively for attacking historic monuments and buildings dedicated to religion in Mali.42 The very narrow focus of the ICC prosecution in this latter case did not provide an opportunity to bring justice to the many Malian children, particularly girls, who were reportedly victimised during the occupation of Timbuktu by Ansar Eddine – a movement associated with Al Qaeda in the Islamic Maghreb.43 Al Mahdi – who headed the Hisbah, a body set up to uphold public morals and prevent vices, and who was also associated with the work of the Islamic Court of Timbuktu and participated in executing its decisions during that occupation – was apparently not investigated for crimes that affected children.44 One particularly prominent jurisprudential development at the ICC concerns the recently completed case concerning Dominic Ongwen, a former leader of the Lord’s Resistance Army – an armed group that was infamous for abducting children and using them to participate in hostilities and to commit atrocities.45 Ongwen himself is a former child-soldier who was abducted when he was only

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44

45

2014), paras 1024–88 [https://www.icc-cpi.int/CourtRecords/CR2015_04025. PDF]; Prosecutor v Mathieu Ngudjolo Chui (Judgment pursuant to Article 74 of the Statute, Trial Chamber II) ICC-01/04–02/12 (ICC, 18 December 2012), paras 397, 504–16 [https://www.icc-cpi.int/CourtRecords/CR2013_02993.PDF]. Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido (Judgment pursuant to Article 74 of the Statute, Trial Chamber VII) ICC-01/05–01/13 (ICC 2016) [http s://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/05-01/13-1989-Red]. The case concerned offences against the administration of justice related to the false testimonies of defence witnesses in connection with the trial of Bemba for crimes allegedly committed in the Central African Republic – crimes of which he was ultimately acquitted. Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment and Sentence, Trial Chamber VIII) ICC-01/12–01/15 (ICC 2016) [https://www.icc-cpi.int/CourtRecords/CR2016_ 07244.PDF]. Al Mahdi was tried and convicted exclusively for intentionally directing attacks against historic monuments and buildings dedicated to religion, including nine mausoleums and one mosque in Timbuktu, Mali, in June and July 2012, constitutive of war crimes. For instance, Human Rights Watch recorded allegations of numerous war crimes, including rape, use of child soldiers and pillaging of hospitals, schools and so on. Human Rights Watch, ‘Mali: War Crimes by Northern Rebels, Armed Groups Commit Rape, Use Child Soldiers’, 30 April 2012 [https://www.hrw.org/news/ 2012/04/30/mali-war-crimes-northern-rebels]. See ‘Case Information Sheet, Situation in the Republic of Mali, Prosecutor v Ahmad Al Faqi Al Mahdi, International Criminal Court, 20 March 2018 [https://www. icc-cpi.int/CaseInformationSheets/al-mahdiEng.pdf]. See Chapters 4 and 5.

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around nine years old. Although he was convicted only of crimes he committed as an adult – the ICC Statute, unlike those of all other international or hybrid criminal jurisdictions, explicitly excludes from its jurisdiction individuals who were under the age of 18 at the time the act was committed46 – his conviction raises the complex question of the legitimacy of exclusively pursuing individual criminal liability in contexts where the complex circumstances surrounding an individual engagement in alleged criminal conduct are not or cannot be fully explored.47 There are and will be many other opportunities for the ICC to pursue international crimes committed against children. Hopefully, the ICC will not merely focus on the child-specific crime of recruiting and using child-soldiers, but also highlight the wider impact of generic international crimes on children. There are several other cases that concern or could be extended to cover generic international crimes against children, including cases under investigation or even in the preliminary examination stages. Indeed, many of the situations examined by the ICC – including in the DRC, Uganda, the Central African Republic, Darfur in Sudan, Kenya, Libya, Côte d’Ivoire, Mali, Georgia, Burundi, Myanmar and Ukraine – are replete with allegations of international crimes committed against children. Thus, it is expected that the ICC jurisprudence on generic crimes against children will continue to develop. This is important considering the potential of the ICC to play a catalytic role in eroding impunity for perpetrators of crimes against children, as recognised and highlighted in resolutions of the United Nations General Assembly (UNGA).48 1.8 Concluding remarks In sum, the attention devoted by international criminal jurisdictions to international crimes affecting children has been limited and inconsistent. All these courts have primarily focused on the experience of adults. For too long, international jurisdictions have not sought to highlight crimes specifically targeting children, 46 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 38544, art 26 (Rome Statute) [https://www. icc-cpi.int/resource-library/documents/rs-eng.pdf]. 47 See Chapter 5, referring notably to consultation held in Northern Uganda by the Refugee Law Project has indicated that many stakeholders are of the view that the ICC must not only try Ongwen but equally take into account the circumstances of his abduction and ‘investigate the failures to protect him as a criminal liability for which impunity must not be condoned’. Refugee Law Project, ‘Ongwen’s Justice Dilemma: Perspectives from Northern Uganda’, 26 January 2015 [https://www.refugeelawp roject.org/files/briefing_papers/ONGWEN‘S_JUSTICE-DILEMMA_-_Perspectives_ from_Northern_Uganda_-_Dialogue_Report.pdf]. 48 UNGA Res 54/149 (25 February 2000) UN Doc Res A/RES/54/149 (The rights of the child) [https://undocs.org/en/A/RES/54/149]; UNGA Res 57/190 (19 February 2003) UN Doc A/RES/57/190 (Rights of the child) [https://www.iom. int/jahia/webdav/shared/shared/mainsite/policy_and_research/un/57/A_RES_ 57_190_en.pdf]; UNGA Res 60/231 (11 January 2006) UN Doc A/RES/60/231 (Rights of the child) [https://www.un.org/en/development/desa/population/m igration/generalassembly/docs/globalcompact/A_RES_60_231.pdf].

220 Conclusion and Recommendations despite the now well-documented historical occurrences, from the systematic killings of Jewish children upon arrival in the Nazi extermination camps to those of the Tutsi children at the roadblocks set up by militia in Rwanda in 1994. It is only the most recent courts – notably the SCSL and the ICC – which have started to devote more attention to the suffering of children, although in a limited way, centred on the recruitment and use of children – predominantly boys – and to a more limited extent on sexual crimes committed against girls. In this context, the overriding question of why crimes against children have been generally overlooked is daunting.

2 Explaining these accomplishments and failures Many interrelated obstacles may explain why international and hybrid courts, especially the earlier ones, did not pay much attention to the plight of children. There are many structural, legal, financial and even attitudinal obstacles – often overlapping – that render children invisible or make them disenfranchised. This section reviews some of these barriers and how they may have been lifted over time, enabling progress. It looks first at circumstantial obstacles, external to the courts, and then reviews the internal circumstances that may have hampered or facilitated efforts to address crimes against children. 2.1 External circumstances A crucial factor that is likely to have played a role in the absence of focus on children by international criminal courts, especially the earlier ones, is that they were operating in contexts where children’s perspectives were far from being systematically recognised as important and children were possibly not even deemed to be equal stakeholders. This does not mean that children were completely ignored; but rather that criminal accountability matters were – and probably still are – largely perceived as not being concerned with children. This was certainly the case in the 1940s, when the Nuremberg and Tokyo Tribunals operated: children’s needs were mostly subsumed under those of others. Children were still largely construed as passive objects of protection. Most legal systems saw them as ‘belonging’ to their families, and especially to their fathers, through the lens of family laws based on paternalism. Children had little say in general and were assumed not to have a role to play in matters of accountability for atrocity crimes. This provided a context in which the Tribunals paid only limited attention to children; and when they did, they construed children primarily as members of a group targeted on specific discriminatory grounds – for instance, as a national or religious group, as shown above. The context evolved considering over the decades that followed the conclusion of the Tribunals’ work, influenced notably by the significant development of public international law. The consolidation of international humanitarian law (IHL) and especially of IHRL, with child rights emerging as one of its branches, contributed to a major shift in the attention devoted to children. It also enabled

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the progressive application of the right of children to be consulted on matters that affect them. One particularly momentous step in this transformation was the adoption of the UN Convention on the Rights of the Child (CRC) in 1989 and its entry into force in 1991, which coincided with the creation of the ICTY and ICTR in the early 1990s.49 As the CRC’s impact started to be felt more in the late 1990s, and was reinforced by the publication of the 1996 report prepared by Graça Machel on the impact of armed conflict on children,50 one can posit that these developments more decisively influenced the courts established in the late 1990s – that is, the SCSL and the ICC. A related external factor which may help to explain the limited attention that international courts have paid to crimes committed against children is that they have operated in contexts in which, until recently, these crimes were not made particularly visible. A clear illustration of this relative unawareness of crimes or violations against children is found in reports seeking to document violations of international law, notably IHRL, such as UN reports: it is only recently that these reports have started to more systematically document child rights violations and crimes against children. Significantly, the UN reports of the early 1990s that led to the establishment of international courts, such as those which documented the violations respectively committed in the former Yugoslavia and in Rwanda, were hardly concerned with children. The final report of the so-called ‘Bassiouni Commission’, which constituted the bedrock on which the ICTY was established, barely mentioned children – even in the findings on the ‘battle and siege of Sarajevo’.51 Similarly, the report on the human rights situation in Rwanda prepared by UN Special Rapporteur Degni-Ségui, credited with launching the process that ultimately resulted in the creation of the ICTR, only seldom described how the human rights violations affected children.52 These reports set the scene for the ad hoc tribunals to largely overlook crimes against children, as analysed supra. Retrospectively, this points to the importance 49 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC)). 50 UNGA, ‘Promotion and Protection of the Rights of Children: Impact of Armed Conflict on Children’ UN GAOR 51st Session UN Doc A/51/306 (1996) (prepared by Graça Machel). 51 UNSC (27 May 1994) UN Doc S/1994/674 (Annex, Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992)) [https:// www.icty.org/x/file/About/OTP/un_commission_of_experts_report1994_en.pdf]. 52 UN Human Rights Council (HRC) (29 January 1996) E/CN.4/1996/68 (Report on the situation of human rights in Rwanda submitted by Mr René Degni-Ségui, special rapporteur of the Commission on Human Rights, under paragraph 20 of Resolution S-3/1 of 25 May 1994) [http://hrlibrary.umn.edu/commission/coun try52/68-rwa.htm]. One of the few excerpts mentioning children reads: ‘This barbarism does not spare either children in orphanages or patients in hospital, who are taken away and killed or finished off. Mothers have been forced to beat their children.’ Ibid, para 28.

222 Conclusion and Recommendations of early recognition and international acknowledgement of crimes committed against children for them to be made visible and therefore attract the attention of international and hybrid courts. Fortunately, there has been progress on this front since the mid-1990s, with the combined impact of different UN initiatives, such as fact-finding missions and commissions of inquiry, international investigations and especially the actions of the UN Security Council (UNSC). First and foremost, the abovementioned 1996 Machel report, commissioned by the UN,53 made an impact on international policy and decision makers and triggered a number of important UN initiatives. In 1997, a UN special representative of the secretary-general for children and armed conflict was first appointed to strengthen the protection of children affected by armed conflict.54 The work of this special representative captured the interest of the UNSC, which over time started to consider the plight of children in armed conflict. This resulted in the progressive establishment of an UN-led Monitoring and Reporting Mechanism on Children in Armed Conflict to monitor, document and periodically report to the UNSC on violations of children’s rights in armed conflict.55 This Reporting Mechanism has undoubtedly highlighted the specific plight of children in the context of some international crimes – albeit emphasising the use and recruitment of children to participate in hostilities, which initially was its only focus.56 Gradually, however, a wider range of violations was encompassed.57 By 2009, the UNSC had enabled the Reporting Mechanism to monitor five other categories of grave violations against children, in addition to the recruitment or use of child-soldiers: killing or maiming; rape and other forms of sexual violence; abduction; attacks against schools or hospitals; and denial of humanitarian access.58 The crimes against children reported by this Reporting Mechanism remain restricted because of its many limitations: it only covers some of the many violations committed against children, and only those committed during armed 53 UNGA, ‘Promotion and Protection of the Rights of Children: Impact of Armed Conflict on Children’ UN GAOR 51st Session UN Doc A/51/306, para 169 (1996) (prepared by Graça Machel). 54 UNGA Res 51/77 (20 February 1997) UN Doc Res A/Res/51/77, paras 35–37 (The rights of the child) [https://undocs.org/pdf?symbol=en/a/res/51/77]. 55 See SC Res 1261 (1999); SC Res1314 (2000); SC Res 1379 (2001); SC Res 1460 (2003); SC Res 1539 (2004); SC Res 1612 (2005); SC Res 1882 (2009); SC Res 1998 (2011); SC Res 2068 (2012), SC Res 2143 (2014), and SC Res 2225 (2015). See also S/PRST/1998/18; S/PRST/2002/12; S/PRST/2005/8; S/PRST/2006/ 33; S/PRST/2006/48; S/PRST/2008/28; S/PRST/2008/6; S/PRST/2009/9; S/PRST/2010/10; S/PRST/2013/8. 56 Ibid. 57 See SC Res 1261 (1999); SC Res1314 (2000); SC Res 1379 (2001); SC Res 1460 (2003); SC Res 1539 (2004); SC Res 1612 (2005); SC Res 1882 (2009); SC Res 1998 (2011); SC Res 2068 (2012), SC Res 2143 (2014), and SC Res 2225 (2015). See also S/PRST/1998/18; S/PRST/2002/12; S/PRST/2005/8; S/PRST/2006/ 33; S/PRST/2006/48; S/PRST/2008/28; S/PRST/2008/6; S/PRST/2009/9; S/PRST/2010/10; S/PRST/2013/8. 58 Ibid.

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conflicts; and it also suffers from obvious political restrictions related to the composition and mode of operations of the UNSC.59 Nevertheless, as of the 2000s, this mechanism has provided an important opportunity to increase alarm – if not reaction – when crimes against children are committed. This has probably influenced the international criminal courts operating during that period and since then, especially the ICC. Other UN fact-finding initiatives, such as commissions of inquiry and international investigations, have increasingly been considering violations committed against children over the last few years. For instance, while its mandate does not expressly refer to crimes against children, the UN Commission of Inquiry for Syria established by the Human Rights Council60 has nevertheless reported on violations against children in many of its public reports.61 Recently, in January 2020, for the first time, it focused one of its thematic reports on children, entitling it: ‘They have erased the dreams of my children’: Children’s rights in the Syrian Arab Republic.62

59 See Ingvild Bode, ‘Reflective Practices at the Security Council: Children and Armed Conflict and the Three United Nations’, European Journal of International Relations vol 24, no 2 (2018): 293–318; Jean-Marc de la Sabliere, ‘Security Council Engagement on the Protection of Children in Armed Conflict: Progress Achieved and the Way Forward’, United Nations (June 2012). 60 UN HRC, ‘Resolution adopted by the Human Rights Council at its seventeenth special session’, Res S-17/1 (23 August 2011) [https://www.ohchr.org/documents/ hrbodies/hrcouncil/coisyria/ress17_1.pdf]; UN HRC, ‘Resolution adopted by the Human Rights Council, S-19/1 The deteriorating situation of human rights in the Syrian Arab Republic, and the recent killings in El-Houleh’, UN Doc A/HRC/RES/ S-19/1 (4 June 2012) [https://www.ohchr.org/Documents/HRBodies/HRCoun cil/SpecialSession/Session19/A-HRC-RES-S-19-1_en.pdf]; UN HRC, ‘Resolution adopted by the Human Rights Council 21/26, Situation of human rights in the Syrian Arab Republic’, UN Doc A/HRC/RES/21/26 (17 October 2012) [https:// documents-dds-ny.un.org/doc/RESOLUTION/GEN/G12/176/37/PDF/ G1217637.pdf?OpenElement]; UN HRC, ‘Resolution adopted by the Human Rights Council on 23 March 2016 31/17. The human rights situation in the Syrian Arab Republic’, UN Doc A/HRC/RES/31/17 (8 April 2016). 61 See UN HRC, ‘Resolution adopted by the Human Rights Council at its seventeenth special session’, Res S-17/1, para 1 (23 August 2011); UN HRC, ‘Resolution adopted by the Human Rights Council, S-19/1 The deteriorating situation of human rights in the Syrian Arab Republic, and the recent killings in El-Houleh’, UN Doc A/ HRC/RES/S-19/1 (4 June 2012); UN HRC, ‘Resolution adopted by the Human Rights Council 21/26, Situation of human rights in the Syrian Arab Republic’, UN Doc A/HRC/RES/21/26, para 4 (17 October 2012); UN HRC, ‘Resolution adopted by the Human Rights Council on 23 March 2016 31/17. The human rights situation in the Syrian Arab Republic’, UN Doc A/HRC/RES/31/17, para 10 (8 April 2016). 62 UN HRC, ‘“They have erased the dreams of my children”: children’s rights in the Syrian Arab Republic, Conference Room Paper of the Independent International Commission of Inquiry on the Syrian Arab Republic’, UN Doc A/HRC/43/CRP.6 (13 January 2020) [https://www.ohchr.org/EN/HRBodies/HRC/Pages/News Detail.aspx?NewsID=25465&LangID=E].

224 Conclusion and Recommendations Some of the more recent UN fact-finding and accountability mechanisms have been explicitly mandated to monitor and report on violations against children. This is the case of the UN Commission of Inquiry for South Sudan, which is specifically mandated to monitor and report on violations of IHRL and IHL against children, including the recruitment and use of children and attacks on schools.63 The four periodic reports it has issued to date have all contained findings on children, focusing primarily on their recruitment and use;64 sexual and gender-based violence; killing and maiming; attacks on education; and forcible displacement.65 Another important development in this regard has been the inclusion, in the terms of reference of the two new international, impartial and independent UN mechanisms mandated to assist in the investigation and prosecution of those responsible for international crimes in Syria and Myanmar, of requirements that their secretariats include staff with expertise in children’s rights and crimes against children.66 The inclusion of such requirements creates conditions that incentivise these mechanisms to turn their attention to the suffering of children and to 63 UN HRC, ‘Resolution adopted by the Human Rights Council on 23 March 2016 31/20, Situation of human rights in South Sudan’, UN Doc A/HRC/RES/31/20, paras 1, 13 (27 April 2016) [https://documents-dds-ny.un.org/doc/UNDOC/ GEN/G16/086/91/PDF/G1608691.pdf?OpenElement]; UN HRC, ‘Resolution adopted by the Human Rights Council on 24 March 2017 34/25, Situation of human rights in South Sudan’, UN Doc A/HRC/RES/34/25, paras 1, 10 (5 April 2017) [https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/084/84/ PDF/G1708484.pdf?OpenElement]; UN HRC, ‘Resolution adopted by the Human Rights Council on 23 March 2018 37/31, Situation of human rights in South Sudan’, UN Doc A/HRC/RES/37/31, paras 1, 10 (13 April 2018) [https://docum ents-dds-ny.un.org/doc/UNDOC/GEN/G18/103/89/PDF/G1810389.pdf?Op enElement]; UN HRC, ‘Resolution adopted by the Human Rights Council on 22 March 2019 40/19, Situation of human rights in South Sudan’, UN Doc A/HRC/ RES/40/19, paras 1, 9 (8 April 2019) [https://documents-dds-ny.un.org/doc/ UNDOC/GEN/G19/100/97/PDF/G1910097.pdf?OpenElement]. 64 See UN HRC, ‘Report of the Commission on Human Rights in South Sudan’, UN Doc A/HRC/43/56, paras 45–57 (31 January 2020) [https://www.ohchr.org/ Documents/HRBodies/HRCouncil/CoHRSouthSudan/A_HRC_43_56.docx]. 65 UN HRC, ‘Report of the Commission on Human Rights in South Sudan’, UN Doc A/HRC/34/63, paras 42–44 (6 March 2017) [https://www.ohchr.org/en/hrbo dies/hrc/regularsessions/session34/documents/a_hrc_34_63_aev%20-final.docx]; UN HRC, ‘Report of the Commission on Human Rights in South Sudan’, UN Doc A/HRC/37/71, paras 28–33 (13 March 2018) [https://www.ohchr.org/EN/ HRBodies/HRC/RegularSessions/Session37/Documents/A_HRC_37_71_EN. docx]; UN HRC, ‘Report of the Commission on Human Rights in South Sudan’, UN Doc A/HRC/40/69, paras 40, 45, 48–53 (12 March 2019) [https://ohchr.org/ EN/HRBodies/HRC/CoHSouthSudan]. 66 UNGA, ‘Implementation of the resolution establishing the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, Annex’, UN Doc A/71/755, para 32 (19 January 2017) [https://documents-dds-ny.un.org/doc/UNDOC/GEN/N17/ 015/53/PDF/N1701553.pdf?OpenElement]; UNGA, ‘Letter dated 16 January

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collect, analyse and preserve information and evidence pertaining to the crimes they have endured. All these developments demonstrate that the attention given to crimes against children has progressively increased, creating an external environment that may well have nudged international criminal courts to consider these crimes as well. It is very likely that all these contextual factors have somehow influenced international criminal jurisdictions, especially the ICC, prompting it to pay more attention to crimes against children by making unescapable the fact that many atrocity crimes are committed against them around the globe. 2.2 Surmounting internal obstacles In addition to the abovementioned external circumstances that probably influenced international criminal jurisdictions vis-à-vis crimes against children, there have also been internal obstacles, including the lack of statutory requirements; security and safety concerns; procedural and evidentiary challenges; and a narrow set of prosecutorial priorities. 2.2.1 Statutory requirements The absence of explicit mandates to consider children in the statutes of different international and hybrid courts has been problematic and may explain why most of these courts have paid little attention to the crimes committed against them. As has been analysed supra, only the statutes of the most recent courts have included references to children. The statutes of the two International Military Tribunals made no reference at all to children. In the statutes of the ICTY and ICTR, there was a single such reference, granting these ad hoc courts jurisdiction over the forcible transfer of children constitutive of genocide.67 This changed with the ICC: its statute contains several provisions referring to children and even starts with a mention of children in the second paragraph of its preamble, emphatically declaring that its drafters were ‘[m]indful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity’.68 As for the SCSL Statute, it also includes several references to children, starting with the jurisdiction to prosecute the crime of recruitment and use of children to participate actively in hostilities, as well as the mandate to try juveniles.69 Another important factor weighing favourably on the most recent courts to consider the plight of children was the requirement introduced in the ICC Statute in 1998, under Article 36(8)(b), that states parties take into account ‘the need to 2019 from the Secretary-General addressed to the President of the General Assembly’, UN Doc A/73/716, para 25 (21 January 2019) [https://undocs.org/A/73/716]. 67 See Chapter 3. 68 Rome Statute, preamble; emphasis added. 69 See Chapter 3 and 6.

226 Conclusion and Recommendations include judges with legal expertise on specific issues, including, but not limited to, violence against women or children’.70 This was concomitant to the establishment of the SCSL, which also – while not explicitly required by its Statute – ensured that this type of expertise was represented among its first judges appointed in 2002.71 Significantly, the ICC Statute includes another requirement: for the ICC prosecutor to appoint ‘advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children’.72 A similar provision is found in Article 15(4) of the SCSL Statute, which stipulates that: Given the nature of the crimes committed and the particular sensitivities of girls, young women and children victims of rape, sexual assault, abduction and slavery of all kinds, due consideration should be given in the appointment of staff to the employment of prosecutors and investigators experienced in gender-related crimes and juvenile justice.73 Also in the SCSL Statute, Article 16(4) requires the registrar to set up a Victims and Witnesses Unit; and that Unit personnel ‘include experts in trauma, including trauma related to crimes of sexual violence and violence against children’.74 While the equivalent provision in the ICC Statute does not mention children,75 it elaborates on the question of protection: two of the paragraphs of Article 68, entitled ‘Protection of the victims and witnesses and their participation in the proceedings’, refer to children.76 So, while the conspicuous absence of child-specific provisions in the legal framework of earlier courts may possibly explain the absence of focus on children of these earlier courts, this was modified over time. Explicit statutory requirements undoubtedly called on the SCSL and ICC to pay more attention to children and ensured that they had some expertise to do so.

70 Rome Statute, art 36(8)(b); emphasis added. 71 Judge Renate Winter, who assumed office as an SCSL judge in 2002, has expertise notably in juvenile justice and child rights; see Office of the United Nations High Commissioner for Human Rights, ‘Winter, Renate’ [https://www2.ohchr.org/eng lish/bodies/crc/docs/elections/RenateWinter.pdf]. 72 Article 43(9) of the Rome Statute: ‘The Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children’ (emphasis added). 73 SCSL Statute, art 15(4); emphasis added. 74 Ibid, art 16(4). 75 Article 43(6) of the ICC Statute provides that: ‘The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.’ Rome Statute of the International Criminal Court, art 43(6). 76 Ibid, art 68(1)–(2).

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2.2.2 Security and safety concerns Reasons often adduced to explain why courts in general, and international courts in particular, do not adequately cover crimes against children primarily relate to security and safety issues. These are indeed important preoccupations, considering children’s vulnerabilities. Logistical and security concerns increase when dealing with younger witnesses and victims, which also usually requires the assent and participation of parents and guardians in the process. For international courts specifically, which operate in different states and normally necessitate that witnesses be positively protected, dealing with younger witnesses and victims usually multiplies the security and safety concerns. There are clear limits to the protection that international courts can provide to all witnesses and victims, in particular children. Challenges to protection are primarily associated with the structures of international courts and the international dimension of their work. First and foremost, lacking their own police force and operating internationally, these courts rely on others – often states – to identify, approach and ultimately protect witnesses. This carries many risks for these witnesses, especially for their continued protection when an ad hoc international or hybrid court ceases to function. Second, these courts usually operate in the context of ongoing conflicts or volatile and high-risk environments, and usually target powerful leaders, heightening the challenges associated with witness protection. Third, international and local media and the public follow these procedures closely, increasing the risk that witnesses will be recognised despite protection measures. Fourth, in most of the contexts in which international or hybrid courts operate, there may not be pre-existing safe and reliable referral pathways for children that investigators can rely on to support the physical and psychological wellbeing of child-victims. In this regard, the SCSL once again provides an example of good practice, as it entered into standing arrangements with the Sierra Leone police to monitor the welfare of former witnesses.77 For all these reasons, international investigators and prosecutors must carefully weigh the risks they may pose to children when directly or indirectly interacting with them; and must balance these risks with the potential benefits for children, including the satisfaction of their rights – notably to remedy and redress. Ideally, it should be for children, supported by their parents and guardians, to make such choices. However, as seen above, children themselves are easily intimidated by a court and its officials. International investigators are usually foreigners and may not speak a child’s language. The judges, lawyers and courtroom are all unfamiliar; and this is exacerbated in international courts. Appearing before an international court involves travelling – often across international borders – and the use of languages different from the child’s own and interpreters, among other aspects. Testifying against persons of authority who have caused terrible suffering to children is 77 Interview with Saleem Vahidy, chief of the Registry’s Witnesses and Victims Section, conducted on 18 March 2009 (on file with the author).

228 Conclusion and Recommendations obviously intimidating, if not destabilising – especially in the case of atrocity crimes. Children are asked to recall traumatic events and describe them in detail. This can exacerbate existing trauma or create new trauma. Disclosing painful experiences can make children feel ashamed and guilty, and can have long-term negative impacts.78 Indeed, studies pertaining to the involvement of children of different ages in domestic criminal investigations and proceedings have shown that important questions remain regarding the impact of trauma on children’s memory and on the recollection of traumatic childhood events.79 In sum, the concerns that court personnel may have about possibly causing children further harm or trauma, or leading them to being stigmatised, are genuine considerations that have probably played an important part in the decisions of many international or hybrid courts not to pursue crimes against children. 2.2.3 Procedural and evidentiary challenges So, are crimes against children particularly difficult to investigate and prosecute? A positive response to this question is often advanced as a reason for the relatively small number of prosecutions concerning these crimes at both the national and international levels. The awareness that crimes against children have been committed and the successful investigation and prosecution of such crimes often depend on the testimony of children. Children may possess the best and sometimes only evidence available of certain crimes – notably those committed against themselves or other children. However, in addition to the above security and safety concerns, many investigators and prosecutors have other preoccupations: for example, they may doubt that the testimonies of children are as reliable as other testimonies. International criminal prosecutors, like their national counterparts, are often disinclined both to interview children and to rely on their testimonies, and even on those of adults testifying about events they witnessed as children. They may be reluctant to take up cases concerning child-victims as they may not consider children credible.80 All these factors may contribute to cases concerning children being deprioritised. Even at the domestic level, there are many difficulties in accommodating childvictims or witnesses of crimes, or child-offenders.81 Involvement in judicial procedures is challenging for everyone – even adults, and all the more so for children. 78 Ibid. 79 See Chapter 2. 80 Prosecutors apprehend that children may poorly recall or recount the events, may change their mind as to whether they want to participate and may be ill equipped to sustain cross-examination if it applies. Some have also argued that time seems to undermine the reliability of child-witness testimony, because children apparently experience a sharp decline in memory immediately after an event. See Chapter 2. 81 Jillian N Ducker et al, ‘Children as Victims, Witnesses and Offenders, An Introduction through Legal Cases’, in Children as Victims, Witnesses and Offenders, Psychological Science and the Law edited by Bette L Bottoms, Cynthia J Najdowski and Gail S Goodman (New York: Guilford Publications, 2009), 1.

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Concerns have been raised pertaining to the ‘suggestibility’ of children or their capacity to resist false suggestions that certain events occurred, linked with apprehension that children could easily be led into making false reports of crimes.82 Scientific studies have demonstrated that the completeness and accuracy of a child’s testimony and capacity to resist false suggestions is usually related to his or her age.83 Ample research and publications based on national experience have discussed some of the numerous factors to be considered when children are involved in judicial proceedings, including their specific emotional needs; their ability to navigate the legal system; and the accuracy of their memory and related capacity to testify.84 Importantly, however, these studies have also enabled the identification of specific factors, including language ability and quality of attachment, which may moderate inaccuracies and increase the potential for reliable testimonies of children. The experience amassed by such research and the application of its findings by certain domestic criminal systems could and should inform the practices of international criminal courts. Over the years, experience and research have also influenced national procedural codes. Many of these codes have evolved and been refined over time to address the particular needs and circumstances of children. By contrast, the rules of procedure and evidence of the international or hybrid courts, even at the ICC, are relatively short documents, not as elaborate or sophisticated as those at the national level. For instance, the Rules of Procedure and Evidence of the ICTY and ICTR were adopted by the judges themselves. It is important to remember in this context that the judges were working on the basis of statutes that largely ignored children and did not require any of the judges to have specific expertise related to children. It is unsurprising, then, that the original Rules of Procedure and Evidence of the ICTY, adopted in 1994, did not include a single reference to children. It is only later, in 1995, as these Rules were repeatedly amended, that a paragraph was added to permit the testimony of a child without solemn declaration.85 In addition to their own possible reluctance to take on cases involving children and the limited procedural framework to support children’s participation in international judicial processes, several other internal challenges may have impeded the work of international investigators and prosecutors. These range from one extreme of being possibly overwhelmed by the amount of evidence to process, considering 82 83 84 85

Ibid, 3. Ibid. Ibid, 13. Rule 90(b) provides that: ‘A child who, in the opinion of the Chamber, does not understand the nature of a solemn declaration, may be permitted to testify without that formality, if the Chamber is of the opinion that the child is sufficiently mature to be able to report the facts of which the child had knowledge and understands the duty to tell the truth. A judgement, however, cannot be based on such testimony alone.’ Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia (adopted on 11 February 1994, as amended 8 July 2015) UN Doc IT/32/Rev.50, art 90(b) [icty.org/x/file/Legal%20Library/Rules_procedure_evi dence/IT032Rev50_en.pdf].

230 Conclusion and Recommendations systemic criminality, to the other extreme of lacking available information on child-victims, their ages, numbers and other crucial information. While this may seem contradictory, it is often the unfortunate reality when international crimes occur: a volume of information so huge that it is practically very challenging to process it, combined with scant solid evidence of specific individual cases concerning children. This is a general problem for international and hybrid courts: the scale of atrocities falling within their respective mandates renders the identification of individual victims and their age immeasurable in many, if not most cases. For instance, these courts have only rarely been able to access reliable disaggregated statistical data, such as those apportioning children among victims of certain crimes, which would provide a reliable alternative to individual testimonies. It is hoped that this may improve in the coming years as the quality of such data improve dramatically and its use in international investigations and prosecutions increases – for instance, with more age-disaggregated analysis of how children of varying ages are impacted by certain crimes. Among the many related concrete challenges for international investigators are those pertaining to the determination of the age of children, which must be established in the case of child-specific crimes. In some contexts, such as in remote areas of the DRC or Sierra Leone, there may not be formal documents recording the age of children – no birth certificate, no school registration or even necessarily a recollection from the parents of an exact birth date. In those contexts, as forensic examinations became increasingly reliable and available, international investigators and prosecutors have over time become more familiar with the use of such methods. These combined factors may explain in large part why there have been very few examples of children appearing as witnesses before international courts thus far. This is exacerbated by the time that is likely to elapse between the crimes occurring and the trial opening, by which point many child-victims may be adults.86 Adults who testify about crimes they witnessed or endured as children are likely to remain particularly affected. Child-victims of atrocities are more likely to remain vulnerable even if they have grown up. International and hybrid courts do not seem to have a set practice in terms of the protection afforded to witnesses older than 18 testifying about crimes they lived through as children.87 86 Because of lengthy procedures and possible delays – for instance, to arrest the accused – considerable time usually elapses between the commission of the crime and the launch of an investigation by an international court; and then again between the investigation – when a witness may first be interviewed – and the witness being called to testify at trial. See notably Erik Møse and Cécile Aptel, ‘Trial Without Undue Delay Before the International Criminal Tribunals’, Man’s Inhumanity to Man: Essays in International Law in Honour of Antonio Cassese, edited by Antonio Cassese and Lal Chand Vohrah (The Hague: Kluwer Law International, 2003), 539–565. 87 At the SCSL, such witnesses were mostly considered as child-witnesses. According to An Michels, who worked as a psychologist at the SCSL: ‘this was a deliberate policy decision, partly based on the fact that in many cases it was difficult to establish the exact age of witnesses; partly also because child ex-combatants, who often spent several years with the fighting forces during a crucial time in their development, might

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While it is clear from the above that international investigators and prosecutors may have reasons to be cautious about relying on the testimony of children, their disinclination to do so cannot in and of itself justify why crimes against children are seldom pursued. The understanding that crimes against children can only be successfully prosecuted based on evidence obtained from the interviews of children is defective. It conflates investigating and prosecuting crimes against children with interviewing children. The effective prosecution and conviction of these crimes need not rely – at least not exclusively – on evidence obtained from children. 2.2.4 Prosecutorial priorities Another significant factor that may explain why so little attention has been devoted to crimes against children by international or hybrid courts relates to the prosecutorial priorities of international prosecutors. International prosecutions are inherently selective, because international courts can only take up a few cases: investigators and prosecutors thus constantly make decisions to prioritise certain cases and leave others aside. International investigators and prosecutors probably pursue cases other than those concerning children because they believe that the latter may be particularly challenging to prove. International prosecutors are indeed granted wide discretionary powers, which are essentially unregulated: as long as the prosecutors act within their respective mandates – in terms of material, temporal, jurisdictional and personal criteria – they are largely unobstructed in the determination of their policies and selection of cases. The prosecutors of the Nuremberg and Tokyo Tribunals had broad discretionary powers; but in practice, their political sponsors significantly influenced the scope of accountability. Building on these precedents, the prosecutors of the international criminal tribunals established by the UN since the early 1990s have had wide discretionary powers. When the UNSC created these tribunals, it was assumed that they would concentrate on only a few cases; but no provision specified this, or which criteria the prosecutors should use in choosing these few cases. It was only when the SCSL was established that a statutory provision was inserted to this effect: its Article 1(1) explicitly limited the prosecutions to ‘those who bear the greatest responsibility for serious violations’.88 The expectation that international criminal courts focus on top leaders was also made clear by the UNSC when show a significant difference between their mental age and their biological age. For instance, these children or adolescents will easily give the impression of ‘being an adult’ on a behavioural level, while their emotional development is sometimes heavily disturbed.’ An Michels, ‘Protecting and Supporting Children as Witnesses: Lessons Learned from the Special Court for Sierra Leone’, UNICEF Innocenti Research Centre (2005), 2 (Annex to the Outcome Document of the Nov 2005 Meeting on Transitional Justice and Children) [https://www.unicef-irc.org/research/pdf/TJC_ Outcome_Document_FINAL.pdf]. 88 See UNSC, ‘Letter Dated 22 December 2000 from the President of the Security Council addressed to the Secretary-General’, UN Doc S/2000/1234, § 1, 1 (22 December 2000). Interestingly, the term ‘the most senior leaders suspected of being most responsible’ restricted the scope further than what had been proposed by the

232 Conclusion and Recommendations it nudged the ICTY and ICTR to complete their work.89 Consequentially, the ICTY Rules of Procedure and Evidence were amended so that the judges would ensure, before confirming an indictment, that it ‘prima facie, concentrates on or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal’.90 As for the ICC, it has largely followed in the footsteps of its predecessors. The successive ICC chief prosecutors have confirmed that their focus is to ‘investigate and prosecute those who bear the greatest responsibility for the most serious crimes’.91 This is despite some explicit calls included in its statute to consider ‘the nature’ of certain crimes – in particular, sexual violence, gender violence and violence against children. Indeed, as mentioned supra, Article 54(1)(b) states, under ‘Duties and powers of the Prosecutor with respect to investigations’, that the prosecutor shall: Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children.92 The significance of the inclusion of two specific calls on the ICC prosecutor cannot be underestimated: the prosecutor shall first respect the interests and personal circumstances of younger victims and witnesses, as appropriate measures to ensure the effective investigation and prosecution of international crimes; and second, take into account the nature of crimes involving violence against children. Undoubtedly, these explicit calls created circumstances conducive for the ICC prosecutors to pay more attention to crimes against children, as compared with their predecessors. But this occurred in an overall context marked by a sordid paradox: the worse the crimes (genocide, crimes against humanity, war crimes) and the greater the number of victims and perpetrators, the more selective international prosecutors must be in choosing the crimes and suspects to investigate and prosecute. This

89 90

91

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UN secretary general – namely, to grant the SCSL jurisdiction over persons alleged to have been ‘most responsible’ for crimes. See Chapter 1. Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia (adopted on 11 February 1994, as amended 8 July 2015) UN Doc IT/32/Rev.50 [icty.org/x/file/Legal%20Library/Rules_procedure_evidence/ IT032Rev50_en.pdf]. The Office of the Prosecutor, ICC, ‘Prosecutorial Strategy (2009–2012)’, 1 February 2010, 5 [https://www.icc-cpi.int/Pages/item.aspx?name=otp-rep-strategy-2010]. That main policy focus has apparently remained unchanged, as confirmed in the Office of the Prosecutor, ICC, ‘Strategic Plan (2019–2021)’, 17 July 2019, 19 [https:// www.icc-cpi.int/itemsDocuments/20190726-strategic-plan-eng.pdf]. Rome Statute of the International Criminal Court, art 54(1)(b); emphasis added. See Chapter 2.

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means that international prosecutors must determine which allegations and individuals to investigate, and in the process disregard other serious allegations and suspects – even those against whom there may be credible evidence. International criminal prosecutions are inherently selective: international prosecutors make significant choices based on determinative components, effectively limiting the scope of investigations and prosecutions, as seen supra.93 Before listing each of these determinative components, it is important to note that they may not necessarily occur sequentially, but also sometimes simultaneously; and that some of these determinations, rather than resulting from an active selection by the prosecutors, are the consequences of decisions made concerning other components. The first determinative component common to all the international criminal jurisdictions is the determination of specific entities falling within the limits set by the applicable jurisdictional scope. A second component concerns the decisions on the individual targets to be investigated and prosecuted. A third component concerns the selection of the specific factual allegations to be listed in the charges. Because of the widespread and systematic nature of most of the crimes that come to the attention of international courts, international prosecutors normally select only a few ‘illustrative’ events – for instance, choosing the locations and dates of certain massacres or detention camps, among many others. A fourth determinative component is the decision as to the legal characterisation of the offence, such as whether to try Thomas Lubanga Dyilo exclusively for the war crimes of enlisting, conscripting and using children to participate actively in the hostilities or considering alternative characterisation, such as enslavement. A fifth component occurs when international prosecutors make selections which impact on the scope of accountability due to their discretionary choice of witnesses, including victims to be called to testify. As is typical in common law jurisdictions, these decisions determine who among the victims is given space to ‘tell their story’ and are particularly significant for victims before those international or hybrid criminal jurisdictions that do not have a system of victim participation and are thus deprived of an opportunity to participate directly in the proceedings if they are not selected as witnesses. At this last stage, again, children may be excluded because international criminal prosecutors (like their national counterparts) may be reluctant to rely on the testimony of children, as is reviewed below – even if children may possess the best and sometimes only evidence available on certain crimes, notably those committed against themselves or other children. Each determinative component implies a narrowing of the number and categories of crimes scrutinised by international courts, and consequently of the victims, including children. With each decision on successive determinative components, prosecutors peel off another layer, further focusing the scope of their investigations and prosecutions on a smaller core of criminal responsibility; and by 93 The following paragraphs elaborate on the developments discussed in Chapter 4. They are based on Cécile Aptel, ‘Prosecutorial Discretion at the ICC and Victims’ Right to Remedy: Narrowing the Impunity Gap’, Journal of International Criminal Justice vol 10, no 5 (December 2012): 1357–1375 [https://doi.org/10.1093/jicj/mqs077].

234 Conclusion and Recommendations the same token, they cast aside many victims, in particular children. Indeed, when prosecutors progressively limit the scope of crimes that fall within the purview of international justice and thus exclude certain crimes – notably those against children – they are also limiting the victims’ access to justice.

3 An agenda for improvement The above analysis of the factors that may explain the records of international and hybrid courts vis-à-vis children allows us to identify several aspects that could possibly help in defining a roadmap for international criminal jurisdictions to act more decisively in fostering accountability for crimes against children. This agenda for improvement encompasses: 1 2 3

child-friendly procedures; a broader scope of attention to crimes against children beyond the crime of recruitment and use of children in hostilities; and a deep rethinking of the international investigative and prosecutorial strategies to take into consideration their impact on victims, especially the most vulnerable.

3.1 Child-friendly procedures As seen supra, some of the challenges in improving children’s access to international justice stem from the applicable procedures and the difficulties – perceived or real – in bringing children to court. While only a few children have so far appeared as witnesses before international courts, it is clear that these courts can and should review their procedures to make them child friendly, fully encompassing the CRC provisions relating to the participation of children.94 While the ICC Prosecutor Policy on Children has provided space to elaborate some of the procedures to be used when interacting with children, this internal policy applies only in the Office of the ICC Prosecutor and does not amount to actual rules of procedure and evidence that would have to be enforced. An updated child-friendly procedure would help to ensure that the rights of children are respected, their needs are considered and the stress, trauma and possible harm associated with testifying are minimised; and that they understand the process in which they are participating and can fully contribute to it. These revised procedures should conform to all relevant international standards95 and the 94 On desirable procedural improvements at the ICC and, more generally, the extent to which its procedure is in line with child rights, see Cynthia Chamberlain, Children and the International Criminal Court: Analysis of the Rome Statute Through a Children’s Rights Perspective (Cambridge: Intersentia, 2015), chs 3, 6. 95 In particular the ECOSOC Res 1997/30 (21 July 1997) (Guidelines for Action on Children in the Criminal Justice System, Recommended by Economic and Social Council) [https://www.ohchr.org/EN/Professionalinterest/Pages/CriminalJustice System.aspx]; UNGA Res 65/228 (31 March 2011) UN Doc A/RES/65/228

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overarching guiding principles defined by the CRC, including the best interests of the child;96 the rights to life, survival and development;97 non-discrimination;98 and the right to participation.99 The direct participation of children must be conducted only when both the physical protection and the psychosocial wellbeing of the children are prioritised and fully supported. Children should have access to psychosocial assistance throughout the process: before, during and after participating; and provision should also be made to guarantee their physical safety and long-term community support. And in all cases, an individual determination based on the best interests of the child must be made on a case-by-case basis as soon as possible and well before the time to appear in court, and after consulting the child and child’s parents or guardians, as well as child protection experts. It is also crucial to initiate the protection of witnesses or potential witnesses, particularly children, as early as possible – at least as soon as a child has been in contact with investigators. This protection should continue for as long as necessary – usually well beyond the closing of a case. Children must be and should feel safe and secure: fear of retaliation can harm and inhibit them, especially when they live in a volatile or conflict-affected situation, frightened that those responsible for the crimes or their allies will hurt them, their family or their community. While none of the earlier international or hybrid courts provided an opportunity for victims, including children, to be legally represented in proceedings concerning them, the legal framework of the ICC does allow for their participation and also for reparations. Yet the modalities of participation of the victims, directly or through their legal representatives, have proved contentious, in particular before the ICC and the Extraordinary Chambers in the Courts of Cambodia (ECCC). Meaningful legal representation can only take place if free legal assistance is available to victims, especially the more vulnerable and those without financial means. Also, due to the magnitude of the offences alleged in trials for serious international crimes and the number of victims involved, individual victims may have divergent views and interests, leading to uncoordinated positions and even possible conflicts of interest. Victims or groups of victims often insist on having their own experiences heard in court and reflected in the findings, as demonstrated at both the ECCC and the ICC. The fact that some of the victims participating in the proceedings may also be called as witnesses is problematic, especially in the case of

96 97 98 99

(Updated Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice) [https://www. unodc.org/documents/justice-and-prison-reform/crimeprevention/Model_Strategies_a nd_Practical_Measures_on_the_Elimination_of_Violence_against_Women_in_the_Field_ of_Crime_Prevention_and_Criminal_Justice.pdf]. Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, art 3 (CRC). Ibid, art 6. Ibid, art 2. Ibid, art 12.

236 Conclusion and Recommendations children who were formerly associated with armed groups or forces and who may incriminate other children represented as victims in the proceedings.100 Another improvement would be to develop more child-friendly outreach material. Successful investigations of international crimes begin with sustained communication efforts. Victims and witnesses (including children) and their communities should be informed so they understand the international or hybrid court’s mandate, procedures and objectives. Outreach is critical to inform victims and witnesses, build their trust and secure their cooperation. Child-friendly materials and processes should be designed and used, especially when the investigations concern crimes committed against children.101 Detailed child-friendly explanations are particularly important when conducting forensic examinations.102 These can facilitate the task of investigators in earning the trust and cooperation of child-witnesses. Child-friendly materials can also help to tackle challenging issues related to the risks of traumatisation or re-traumatisation – for instance, to explain counter-interrogation to children. Under cross-examination, children may feel that they are being ignored, discounted, disbelieved or even treated as a liar. This may undermine their confidence and sense of worth, be overwhelming or even cause deep re-traumatisation for children, particularly for victims. The children’s version of the UN Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime provides advice and guidance to children called as witnesses, notably before international and hybrid criminal courts. International courts and especially the ICC should produce child-friendly documents and explain their mandates and procedures, as well as the extent and limits of the protection they can provide. International courts are a means to address crimes against children, which should simultaneously improve accountability and adequately protect the children involved in this process, recognising that one objective should not preclude the other. Children’s participation should strengthen and enhance their protection, and protective measures should enable participation, in a virtuous circle. This must extend to all child-victims, beyond those victims of child-specific crimes – notably those recruited and used in hostilities. 3.2 Beyond child-soldiers: a broader scope The fact that international and hybrid courts have thus far focused so much on one crime – the recruitment and use of child-soldiers – is not problematic in and 100 See Chapter 5. 101 The SCSL, ECCC and the ICTR all conducted outreach events specifically targeting children, usually in schools. The ICC has also devoted considerable efforts to outreach. 102 On the specific requirements of forensic interviews conducted with children, see Lindsay E Cronch, Jodi L Vilijoen, and David J Hansen, ‘Forensic Interviewing in Child Sexual Abuse Cases: Current Techniques and Future Directions’, Aggression and Violent Behaviour, vol 11, no 3 (May 2006):195–207 [10.1016/j.avb.2005.07.009]; Michal E Lamb et al, ‘Structured Forensic Interview Protocols Improve the Quality and Informativeness of Investigative Interviews with Children: A Review of Research Using the NICHD Investigative Interview Protocol’, Child Abuse Neglect NIH vol 31, no 11–12 (2007): 1201–1231.

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of itself: this offence and its victims obviously deserve consideration and those responsible must be tried. Prosecutions and convictions by international criminal jurisdictions have even played a role in raising awareness of these crimes. The public testimonies of former child-soldiers and of expert witnesses such as the UN special rapporteur on children in armed conflict have exposed the modalities and effects of these crimes and their impact on the children concerned, their families and their communities, in line with the abovementioned Paris Commitments.103 Criminal accountability can be about stigmatisation: a conviction is a public pronouncement that what was done was wrong and sends a powerful message of condemnation, followed by punishment. Both the conviction and the sentence are ways not only to sanction but also to disempower those responsible, as their social status is irrevocably damaged: convicting high-ranking leaders for recruiting and using children as soldiers should hopefully dissuade further recruitment and can prevent further crimes.104 So there is no question that prosecutions for the recruitment and use of children must continue. However, while condemning those guilty of recruiting and using child-soldiers remains imperative, the way in which this has been achieved thus far by international or hybrid tribunals – namely the SCSL and ICC – has been problematic, for three reasons. First, prosecutions have not fully and systematically exposed the broader suffering of child-soldiers, especially girl-soldiers, who are often victims of many other related international crimes in addition to being used as child-soldiers. Second, the focus of the courts on the child-specific crime of child-soldiering seems to have blinded them to the broad scope of other generic crimes that affect children. Third, the focus on child-soldiers has contributed to frame the debate around the ‘victim-perpetrator dilemma’ (see Section 3.2.3 below), which has dangerously diverted attention away from the lack of accountability for the many hundreds of thousands of children who are unambiguously victims of international crimes. 3.2.1 Consider cumulative charges and convictions to capture all crimes which affect child-soldiers So far, international prosecutors have largely prosecuted the recruitment and use of children in isolation, without systematically considering the fuller panoply of 103 ‘To fight against impunity, and to effectively investigate and prosecute those persons who have unlawfully recruited children into armed forces or groups, or used them to participate actively in hostilities, bearing in mind that peace or other agreements aiming to bring about an end to hostilities should not include amnesty provisions for perpetrators of crimes under international law, including those committed against children.’ The Paris Commitments to Protect Children from Unlawful Recruitment or Use by Armed Forces or Armed Groups (adopted 5–6 February 2007), para 6 (UNICEF) [https://www.unicef.org/protection/pariscommitments.pdf]. 104 See Laura Davis and Priscilla Hayner, ‘Difficult Peace, Limited Justice: Ten Years of Peacemaking in the DRC’, International Center for Transitional Justice (March 2009), 30–31 [www.ictj.org/static/Africa/DRC/ICTJDavisHayner_DRC_Diffi cultPeace_pa2009.pdf].

238 Conclusion and Recommendations crimes suffered by child-soldiers themselves, such as rape, torture, forced labour and slavery. ‘Child-soldiering’ is not only a crime in and of itself: it also encapsulates a myriad of other crimes which should be disarticulated and recognised in their different forms to properly acknowledge the extent of the harm caused to victims, both boys and girls. In general, successive international prosecutors have not methodically resorted to separate and cumulative charges or convictions – as they could, and arguably should, have done – to reflect the whole scope of crimes committed against these children. While the SCSL at least prosecuted on cumulative charges, Lubanga proceeded at the ICC exclusively on counts of recruitment and use of children in hostilities, discounting the fact that many of the children were also victims of enslavement and some had reportedly been subjected to sexual slavery.105 There are grave risks in blurring the line between enslavement, recruitment and use of children and sexual slavery as a form of sexual violence against girls and boys: these are separate crimes, often with strong gender components, and should not be conflated. Doing so would leave unaddressed the plight of enslaved children associated with armed forces or groups who suffered abuses beyond being recruited and used in hostilities. Hopefully, lessons learned so far will inform a better framing of the charges in the future.106 For instance, the harm suffered by victims of sexual slavery and other forms of enslavement deserves to be considered separately and, if applicable, in addition to the harm caused by being recruited and used in hostilities. This is particularly important from a gender perspective, because international prosecutions have not yet fully exposed the plight of girlsoldiers, who are generally abused in many different ways: they are not only used to fight, but also often kept in domestic and sexual servitude, under constant scrutiny.107 There are specific provisions on these different crimes in the statutes of the international criminal tribunals, so each of these crimes should be charged and prosecuted as such. Cumulative charges should ideally be retained whenever possible, to ensure the effective prosecution of all crimes committed against children, including slavery.108 This is critical for acknowledging the victims and respecting their right to remedy 105 See Chapter 3. 106 However, it is encouraging to note the recent progress at the ICC, where – unlike in Lubanga – Ntaganda was charged with rape and sexual slavery committed against girlsoldiers, separately from the charges of recruitment and use of child-soldiers; and where the charges against Ongwen included forced marriage and forced pregnancy in respect of abducted girls. 107 More recent trials and judgments at the ICC have contributed to some of this exposure, but only in limited ways thus far. See, for instance, Prosecutor v Dominic Ongwen (Public Redacted Trial Judgment, Trial Chamber IX) ICC 02/04–01/15 (ICC, 4 February 2021) [https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/0401/15-1762-Red] and Prosecutor v Bosco Ntaganda (Judgment, Trial Chamber VI) ICC-01/04–02/06–2359 (ICC, 8 July 2019) [https://www.icc-cpi.int/Pages/ record.aspx?docNo=ICC-01/04-02/06-2359], reviewed in Chapter 4. 108 See Cécile Aptel, ‘Child Slaves and Child Brides’, Journal of International Criminal Justice vol 14, no 2 (2016): 305–325.

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and redress. It is also important more broadly because the effective prosecution of various atrocity crimes against children by international jurisdictions is fundamental to prevent such crimes from recurring and bring redress to their victims if they do happen. 3.2.2 Consider the broader scope of generic crimes affecting children Possibly even more problematic is that the focus on child-soldiers has largely eclipsed the broader scope of other international crimes committed against other children beyond child-soldiers, such as killing, persecution, torture, deprivation of access to basic services and so on. As seen above, all these crimes have a disproportionate impact on children when compared to adults, because of children’s physical and psychological vulnerability. Lubanga and the controversies it generated illustrate the difficulties for international courts in bringing to the fore the spectrum of international crimes committed against other children. This case exemplifies how a focus on the childspecific crime of recruitment and use of child-soldiers may unintentionally but naively be detrimental to bringing justice to all children for all the crimes they have suffered, starting with the direct victims of child-soldiers, who themselves may be children. Charging, prosecuting and convicting Lubanga only for recruiting and using child-soldiers has been criticised as too limited because of the widespread allegations that he committed many other international crimes, including killings and sexual crimes.109 The crimes charged represent only a very small part of the alleged atrocities committed by Lubanga and his group, including against children. Many of the other possible charges that were not advanced by the prosecutor, such as those for rape and sexual violence, loomed large throughout the proceedings; but ultimately, the children harmed by those recruited by Lubanga were excluded from the proceedings by the narrow set of charges brought. Such exclusion caused them many grave prejudices: not only were they not symbolically acknowledged as victims, they also could not be awarded reparations, as these are only available for those recognised as direct victims by the ICC. This outcome is unfair and can unwillingly send a very wrong message: that the Court somehow rewarded those children associated with armed groups, who used violence, and not those who refrained from joining these armed groups.110 Furthermore, the case against Lubanga in and of itself appears wholly inadequate in light of the huge number of terrible crimes committed in Ituri over several years. This is even more so the case when the limited findings in Lubanga are considered against the historic backdrop of the DRC, which has faced several complex armed conflicts fought on the basis of identity politics, but also for natural resources and power, at different points involving dozens of militias, several 109 See Chapter 4. 110 Cécile Aptel and Virginie Ladisch, Through a New Lens: A Child-Sensitive Approach to Transitional Justice (New York: International Center for Transitional Justice, 2011).

240 Conclusion and Recommendations countries and possibly multinational corporations. Lubanga would need to be accompanied by many more prosecutions to start depicting the universe of international crimes committed and falling within the jurisdiction of the ICC and to provide a remedy to all victims, including all child-victims. The focus of international courts on child-soldiers also reflects the closer attention paid to them by international policy and decision makers. Indeed, over the last 15 years or so, child-soldiers have been at the centre of attention of targeted advocacy and programme interventions by both the UN and several non-governmental organisations, for a combination of reasons. Graça Machel, in her abovementioned seminal 1996 UN report on the impact of armed conflict on children, elected to highlight the suffering of child-soldiers, devoting the first section of her study to them before turning to other children: those who are refugees or displaced by conflict, victims of sexual exploitation and gender-based violence, and so on.111 Magnifying the misery caused by the recruitment and use of children in conflict, which had hitherto mostly been ignored, was important at the time and was also strategic: it simultaneously captured the attention of the media, policymakers and advocates. War photographers started to publish images of child-soldiers and books were written recounting their stories. The Coalition to Stop the Use of Child-Soldiers was created in 1998.112 In the process, child-soldiers became the archetypes of the ‘children in armed conflict’; and problematically, concerns for them started to obliterate the broader concerns for other children affected by armed conflict – those who were bombed, displaced, tortured or those who died of starvation. The ‘child-soldier paradigm’ ended up not only epitomising the ‘child in war’ but taking most of the space, masking the grim reality of how children are affected by conflict in many other different ways. The terminology of ‘children in armed conflict’, as it gathered international attention – notably through discussion at the UNSC – started to conceal broader concerns for children victims of mass atrocities. As recalled above, advocacy efforts resulted in the adoption in 2002 of the Optional Protocol to the CRC, which raised the minimum age for recruitment or participation in hostilities to 18 years;113 and in 2005, the UNSC established its abovementioned Monitoring and Reporting Mechanism, which initially exclusively reported on the recruitment and use of child-soldiers. It is in this context that the international criminal prosecutions for the recruitment and use of children in hostilities must be read and understood: these prosecutions were concomitant to these developments and they further highlighted the 111 UNGA, ‘Promotion and Protection of the Rights of Children: Impact of Armed Conflict on Children’ UN GAOR 51st Session UN Doc A/51/306, para 169 (1996) (prepared by Graça Machel). 112 The Coalition to Stop the Use of Child Soldiers was formed in May 1998 by leading international human rights and humanitarian organisations. Coalition to Stop the Use of Child Soldiers, 1998 [http://www.child-soldiers.org/coalition/the-coalition]. 113 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts (adopted 25 May 2000, entered into force 12 February 2002) 2173 UNTS 222. See Chapter 2.

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plight of child-soldiers. The first charges were levied in 2003 at the SCSL; and in 2004, the SCSL Appeals Chamber delivered the interlocutory appeal, recalling that the prohibition of unlawful recruitment and use of children under the age of 15 had crystallised as a norm of customary international law.114 The first convictions occurred at the SCSL in 2007115 – the same year that Lubanga was charged by the ICC.116 While again, all this progress is certainly laudable, it concerned an extremely limited and circumscribed set of crimes committed against children in armed conflicts, risking the consolidation of two related misperceptions: that child-soldiers represent the worst form of victimisation of children in armed conflict; and that international crimes against children happen primarily – if not exclusively – in the context of armed conflicts. Both premises are incorrect. While many international crimes are committed against children in the course of conflicts, more consideration should also be devoted to international crimes committed against them in other contexts. These should include, for instance, the targeting of children as part of genocidal campaigns and the widespread worldwide enslavement of girls through child-marriages – which constitutes a crime against humanity.117 3.2.3 Focus on child-victims rather than on the ‘victim-perpetrator dilemma’ Clearly, the focus of international and hybrid courts on child-soldiers, if it were to continue, would risk further eclipsing the widespread victimisation of children for other crimes. There is another unintended consequence of this focus on childsoldiers: the relative obsession of many observers with what has been labelled the ‘child-soldier dilemma’ or the ‘victim-perpetrator dilemma’.118 While many childsoldiers are innocent victims, some of these children participate in atrocities, as was well documented notably in Sierra Leone, Uganda and the DRC. This has entertained an ambivalence concerning the victim status of these children, who may be not only victims but also perpetrators. 114 Prosecutor v Sam Hinga Norman (Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) (Appeals Chamber)) SCSL-2004–14-AR72(E) (SCSL 2004), paras 51–53. 115 Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Trial Chamber II), SCSL-04–16-T (SCSL, 20 June 2007) [http://www.rscsl. org/Documents/Decisions/AFRC/613/SCSL-04-16-T-613s.pdf];Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Judgment, Appeals Chamber), SCSL-04–16-T (SCSL, 22 February 2008) [http://www.rscsl.org/ Documents/Decisions/AFRC/Appeal/675/SCSL-04-16-A-675.pdf]. 116 Prosecutor v Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC01/04–01/06 (29 January 2007), 153–57 [http://www.worldcourts.com/icc/eng/ decisions/2007.01.29_Prosecutor_v_Lubanga1.pdf]. 117 See, for instance, Cécile Aptel, ‘Child Slaves and Child Brides’, Journal of International Criminal Justice vol 14, no 2 (2016). 118 See notably Farkhanda Zia-Mansoor, ‘The Dilemma of Child Soldiers: Who is Responsible?’, King’s Law Journal vol 16, no 2 (2005): 388–399; David M Rosen, ‘The Dilemma of Child Soldiers’, Insights on Law & Society vol 10 (2009): 6.

242 Conclusion and Recommendations This ambiguous status of child-soldiers seems to create a morbid fascination and has generated much attention in academic and policy circles, sometimes syphoning attention away from other important debates relating to child protection and justice for children.119 This is not only challenging but potentially dangerous for the broader child protection agenda – especially because in the last few years the debate has taken a new turn as many of the children recruited and used by armed groups are in the hands of terrorist groups, such as the Taliban, Daesh, the Islamic State and Boko Haram. A new paradigm has emerged, with children associated with such groups being in turn branded ‘child-terrorists’ and their ambiguous status as victims and perpetrators being emphasised even further, thus exacerbating their stigmatisation.120 It therefore appears crucial that international prosecutors look beyond childsoldiers to embrace the larger scope of crimes committed against children. This points to the importance of the investigative and prosecutorial strategies of international or hybrid courts. 3.3 Rethinking the international investigative and prosecutorial strategies As seen above, international prosecutors do have a significant margin of discretion in deciding whether and when to launch an investigation or prosecution for grave international crimes, against whom and to what end.121 As such, an increased focus on crimes targeting children can chiefly result from international prosecutors becoming more aware of the importance of prosecuting these crimes. Unlike domestic prosecutors in many countries, international prosecutors – more akin to their common law counterparts – are not obliged to investigate or prosecute every single allegation of serious crimes falling within their mandate. Conversely, they are expected to select only a very few so-called ‘representative’ cases to investigate and prosecute internationally. Hence, and as seen above, sifting through the crimes and layers of criminal responsibility to handpick a few cases is a quintessential part of what international prosecutors have been tasked to do since Nuremberg. 119 See, for instance, Mark Drumbl, Reimagining Child Soldiers in International Law and Policy (Oxford: Oxford University Press, 2012); Sonja Grover, Child Soldier Victims of Genocidal Forcible Transfer: Exonerating Child Soldiers Charged with Grave Conflictrelated International Crimes (Berlin: Springer, 2012); Joshua A Romero, ‘The Special Court for Sierra Leone and the Juvenile Soldier Dilemma’, Northwestern University Journal of International Human Rights vol 2 (2004): 2; David M Rosen, Armies of the Young: Child Soldiers in War and Terrorism (New Brunswick: Rutgers University Press, 2005). 120 See notably Cristina Martinez Squires, ‘How the Law Should View Voluntary Child Soldiers: Does Terrorism Pose a Different Dilemma?’, Southern Methodist University Law Review vol 68 (2015): 567. 121 See Chapter 4. This section reproduces parts of Cécile Aptel, ‘Prosecutorial Discretion at the ICC and Victims’ Right to Remedy: Narrowing the Impunity Gap’, Journal of International Criminal Justice vol 10, no 5 (December 2012): 1357–1375 [https:// doi.org/10.1093/jicj/mqs077].

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While those few entities, suspects and actual crimes selected for international investigation and prosecution constitute a very small fraction of the actual crimes committed, they nevertheless offer a unique opportunity for at least some victims to have access to an effective remedy. But the selection of situations, cases, individual targets and charges ultimately draws a line between those victims who are included and those who fall outside the scope of international purview. Thus far, children have largely been among those excluded and therefore denied their rights to remedy. While the decisions on who to target and for which reasons are an integral and inherent part of the work of international prosecutors, they have highly significant implications – not only in legal terms, in the attribution of criminal responsibility and the related reparations, but also in political and symbolic terms. The choices of international prosecutors as they exercise their discretionary power have fundamental ethical, political and historical consequences. There is often a collective meaning assigned to individual prosecutions, especially as prosecutions tend to shift political dynamics and redistribute power. This is exacerbated by the intrinsic political nature of international crimes, which are usually perpetrated as the result of state-sponsored or state-sanctioned policies. Whether or not international prosecutors want it or recognise it, their decisions in exercising their discretionary powers impact on the politics (within the concerned states and globally); on perceptions of individual and collective guilt and innocence; on the historical recognition and remembrance – or not – of the crimes; and also, of course, on their victims. The crimes not pursued by international prosecutors not only are often left unpunished, and their victims invisible and deprived of access to remedy and reparations, but also may ultimately be presumed less worthy of international scrutiny and thus less grave. By focusing on certain crimes, individuals and charges, as a result of the determinative components described above, international prosecutors are like film directors: they direct the spotlight on certain crimes and leave everything else in the dark, consigned to the dustbin of history. The direct consequence of the choices made by international prosecutors according to their discretionary powers is simultaneously to ascribe blame to the few instances, suspects and crimes they pursue and to draw attention away from others. There is an inherent tension at the heart of justice for atrocity crimes between, on the one hand, the demands of victims, who generally strive for accountability to be exhaustive and all-encompassing; and on the other hand, international prosecutors who – mindful of resources and other limitations – must make hard decisions and leave many grave crimes and alleged perpetrators unpunished. This interrogates one of the fundamental tenets of international criminal justice: that those bearing the greatest responsibility for crimes should be tried first, and sometimes exclusively; and that their trials would best serve the interests of justice and of reconciliation. As Cassese noted:122 122 Antonio Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), 444.

244 Conclusion and Recommendations [I]nternational criminal courts and tribunals must perforce confine themselves to prosecuting and trying those who bear the heaviest responsibilities for international crimes, the leaders or the high-ranking military officers. They may not or cannot try the thousands of people who have physically carried out murder, torture, rape, and other heinous acts. However, it is precisely these perpetrators that the survivors and the relatives of the victims would like to see in the dock. The strategy to target the leadership and those bearing the greatest responsibility makes sense from an international security viewpoint – if only to signal the end of impunity and create the conditions necessary for accountability at all levels, by literally ‘decapitating’ the top echelon of a system devoted to criminality. As such, this policy may ultimately be in the best interests of all victims, as it has the potential to result in broader accountability – and also because more may be deemed victims of those who planned and masterminded the crimes than when lower-ranking individuals are prosecuted. Nevertheless, as already noted, the symbolic dimension of international criminal justice results from its scope being ascribed a significant and larger meaning: it recognises and acknowledges certain victims while rejecting others. This puts an undue burden on international prosecutors, who largely define the scope of the trials, while the trials largely define the historical records of the crimes. Restrictive prosecution policies adversely affect the victims of crimes who not only do not see justice done at the international level or benefit from recognition of their status as victims, and are therefore denied acknowledgement, but are also deprived of compensation and other reparations which are usually accessible only to those officially recognised as victims. Therefore, if only to acknowledge the victims and grant them their right to a remedy, international prosecutors must focus on the most vulnerable victims, including child-victims. While some informed observers differentiate between ‘judicial truth’ and ‘historical truth’, and while there are important debates concerning the aims of international justice, it remains the case that the judgments of international tribunals – which recount a story established ‘beyond reasonable doubt’ as the result of a stringent judicial process – form a narrative with utmost historical and political importance. The different discourses and positions on the aim of international criminal justice can be positioned on a spectrum. At one end of the spectrum are proponents of a liberal legalist discourse that largely assimilates the output of these jurisdictions to that of domestic criminal courts, circumscribing them to a process that enables the determination of the guilt or innocence of individuals. At the other end of the spectrum are those who ascribe to international criminal justice a set of objectives which goes beyond the purpose of individual criminal accountability, encompassing notably the determination of ‘the Truth’ or the writing of a historical narrative. However, these positions are not incompatible: they can and should be reconciled. The former perspective – favoured by many international criminal legal

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practitioners and especially those with prior experience practising criminal law at the domestic level – fails to account for the expectations of victims and the general public, who ascribe to international criminal findings a meaning which goes well beyond individual criminal accountability. This is largely due to the nature of international crimes: as systemic crimes, they are committed in a widespread or systematic manner and often result from a deliberate policy. Trying such crimes therefore necessarily points to systemic failures or to policies of which victims or general public are usually well aware, yet are anxiously awaiting confirmation (or rejection) by an international court perceived as impartial, independent and objective. In addition, the higher in the chain of command the accused or convicts are, the more is read into the determination of their individual responsibility – and rightly so, especially when considering that international criminal modes of liability encompass command or superior responsibility and even forms such as ‘joint criminal enterprise’. In this context, the determination of the guilt or innocence of (former) high-ranking leaders for systemic crimes involving many other participants is not comprehended in isolation and is ascribed a deeper meaning. Construing it otherwise may be expedient for practitioners, as it may relieve them of a large part of their responsibilities – notably those associated with the limits they impose on many victims’ right to a remedy, as underlined above. The latter perspective – ascribing to international justice a set of objectives beyond the attribution of individual responsibility – is favoured notably by transitional justice scholars. However, this perspective risks setting unrealistic goals for international justice – the writing of a historical record or even reconciliation – and in the process diluting the understanding that criminal accountability is a goal in itself that is well worth pursuing. Reconciling these two apparently divergent positions presupposes accepting that the functions of international criminal justice primarily but not exclusively reproduce those of domestic accountability. These functions are complex and multilayered, may evolve over time and are possibly culturally marked. On this basis, it is reasonable to assume that international criminal prosecutions aim primarily to attribute individual responsibility for international crimes to those bearing the greatest responsibility; but that they are also ascribed a deeper symbolic meaning, notably because they determine who among the countless victims are publicly acknowledged as victims of international crimes and which of the many crimes are deemed the gravest. Judge William Webb, who presided over the trial of the Tokyo Tribunal, stated it plainly: ‘A Judgement may itself be historic, yet its contents may be incomplete as history.’123 The aims of international criminal justice resemble those of domestic accountability, in that they both seek to maintain or restore values; but international justice goes beyond this, because it also helps to clarify what those values are at the international level. 123 Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (Oxford: Oxford University Press, 2008), 312, cited in Kirsten Sellars, ‘Imperfect Justice at Nuremberg and Tokyo’ European Journal of International Justice vol 21 (2010): 1101.

246 Conclusion and Recommendations Against this background, important questions surface regarding prosecutorial strategy and the legitimacy and validity of discretionary prosecution policies and decisions or priorities concerning the spectrum of crimes investigated and prosecuted. Should an international prosecutor indict every accused for the full spectrum of crimes that she or he may have committed? Bearing in mind the magnitude of crimes and suspects when international crimes are committed, a realistic answer to this question must be grounded in the real resource limits of international courts. Assuming that international prosecutors focus on those bearing the greatest responsibility, it is often literally impossible to charge each accused with the full spectrum of crimes committed under both direct and command or superior responsibility.124 But victims’ demands for accountability are not necessarily satisfied when only the leaders or those formally bearing the greatest responsibility because of their functions (eg, as heads of state, ministers or generals) are held accountable. Victims may wish to see middle to lower-ranking criminals prosecuted, convicted and punished because they are the ones who directly harmed the victims and who carry the greater risk of committing future crimes. Such criminals are also those who tend to remain in the vicinity of their former victims: survivors or close family members of those killed. This proximity may be unbearable to the victims, who are constantly reminded of the crimes committed by the presence of the perpetrators and may feel, or actually be, directly threatened by them. Nevertheless, because international prosecutors have no choice but to be selective, the question is: on what basis should specific charges be pursued? To what extent should the views of those primarily concerned, in the place where the crimes occurred, be consulted? It appears that there are at least three options here, which are reviewed successively below. First, should the prosecutor – for the sake of resources and to ensure that a wider array of individuals are brought to justice – strictly limit each individual case to only those very few charges which are the easiest to prosecute, following a strategy not unlike that adopted against Al Capone, who was famously charged and convicted of tax evasion and contempt of court, and not of the many other crimes he allegedly committed?125 Such a prosecutorial strategy would clearly situate a prosecutor among the proponents of the liberal legalist discourse discussed above. Considering the impact of such a choice on the prosecution of crimes against children, it seems that such crimes would likely not be pursued were such a policy to be adopted, bearing in mind the usual reluctance of prosecutors to rely on child-witnesses and the other associated protection challenges identified above. In a context where the low-hanging fruit is pursued, crimes against children are less likely to be prosecuted than others because of the 124 Jamie A Williamson, ‘Command responsibility in the case law of the International Criminal Tribunal for Rwanda’, Criminal Law Forum, vol 13, no 3 (Springer Science & Business Media, 2002). 125 United States National Archives, ‘Verdict in United States of America v Alphonse Capone, October 17, 1931’ [https://www.archives.gov/historical-docs/todays-doc/? dod-date=1017].

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assumptions of many judicial practitioners that successful prosecution of those crimes depends on children’s testimonies and that children’s testimonies are not very reliable. Second, and alternatively, should international prosecutors seek to select and charge crimes that they deem representative of the universe of crimes committed? How feasible is this? Whose perspectives should inform what is deemed to be ‘representative’: the views of the victims or those of the political actors that established or seized the international court concerned? This policy – while probably ideal – presupposes that certain crimes or charges are ‘representative’ of others, which situates the discourse among those that ascribe to international criminal justice objectives that go beyond the purpose of individual criminal accountability. It also assumes that international investigators and prosecutors are equipped to determine what is representative and are bestowed with the legitimacy to do so, above and beyond the views and demands of the societies primarily concerned – illustrating the tensions between an international justice based on universal principles and the accommodation of local demands, which may vary significantly from one situation to another one. Or, as a third alternative, should an international prosecutor prioritise prosecutions for certain crimes over others? For instance, should sexual crimes take precedence over other crimes, as recommended by many and in line with the ICC prosecutor’s policy?126 This assumes that certain crimes or categories of victims may deserve more attention than others – a subjective assessment which has never been made by the drafters of the statutes of the different international criminal jurisdictions. Is there a hierarchy of crimes, putting some victims at the apex of the pyramid of horrors? Would not such a strategy be deceitful for the victims of those crimes considered as deserving less attention or a lower prioritisation, as they run a much bigger risk of going unacknowledged? It also risks undermining reconciliation efforts and leading to ‘politics of victimhood’, when criminal accountability is symbolically used to validate victimhood as a political status.127 Yet this strategy – inspired by a ‘positive discrimination’ approach – has been openly pursued by international courts concerning sexual crimes for over a decade now, and with some success.128 As this last approach forms part of a publicly assumed prosecutorial strategy – at least at the ICC, following in the paths of the UN ad hoc tribunals and the SCSL – there is no reason for some categories of victims or stakeholders to be less acknowledged than others – especially when they are, like

126 ICC, Office of the Prosecutor, ‘Policy Paper on Sexual and Gender-Based Crimes’ [https://www.icc-cpi.int/iccdocs/otp/otp-policy-paper-on-sexual-and-gender-basedcrimes–june-2014.pdf]. 127 On this issue, see Cécile Aptel, ‘International and Hybrid Criminal Jurisdictions: Stigmatizing or Reconciling?’, in Identities in Transition: Challenges for Transitional Justice in Divided Societies, edited by P Arthur (Cambridge: Cambridge University Press, 2010). 128 See, for instance, Serge Brammertz and Michelle J Jarvis (eds), Prosecuting Conflictrelated Sexual Violence at the ICTY (Oxford: Oxford University Press, 2016).

248 Conclusion and Recommendations children are, among the most vulnerable and afforded specific protection under international law. In this regard, particular attention must be paid to the specific impact of crimes committed against girls, who, as children and as women, are at the intersection of two categories specifically protected under international law in general, as well as under IHRL and IHL in particular. Yet girls cannot simply be reduced to either of the two categories: they are often victimised in different ways, both as women and as children, and actually as girls. The continuous failure to recognise the specific and unique vulnerability of girls and the intersectional nature of the discrimination they endure is detrimental to their protection. International criminal prosecutions can play a beneficial role in uncovering their distinct difficulties and predicaments – for instance, when they are deliberately denied access to education or when they are enslaved. In this vein, international investigations and prosecutions should not exclusively focus on one category of crimes, such as sexual crimes, but should rather seek to capture the much wider scope of crimes targeting girls. Expecting from the international courts renewed efforts to underline the differentiated suffering of child-victims of international crimes, considering the intersectional and multiple experience of different children, is realistic – even while acknowledging that the number of cases that an international court can deal with is necessarily limited. This is also what the ICC is expected to do: its important role in bringing to justice perpetrators of crimes against children has been recognised and highlighted in three separate resolutions of the UNGA.129 This largely reflects the increased recognition by the UN of the gravity of these crimes,130 mobilising world leaders to pledge to end impunity for the crimes committed against children.131 International tribunals, alongside national criminal courts, can play a critical role in ending the cycle of impunity. 129 UNGA Res 54/149 (25 February 2000) UN Doc Res A/RES/54/149 (The rights of the child) [https://undocs.org/en/A/RES/54/149]; UNGA Res 57/190 (19 February 2003) UN Doc A/RES/57/190 (Rights of the child) [https://www.iom.int/ja hia/webdav/shared/shared/mainsite/policy_and_research/un/57/A_RES_57_190_ en.pdf]; UNGA Res 60/231 (11 January 2006) UN Doc A/RES/60/231 (Rights of the child) [https://www.un.org/en/development/desa/population/migration/ generalassembly/docs/globalcompact/A_RES_60_231.pdf]. 130 See, for instance, UNSC Resolution 1379 S/RES/1379 (2001), urging states to prosecute those responsible for genocide, crimes against humanity, war crimes and other egregious crimes perpetrated against children. UNSC Res 1379 (20 November 2001) UN Doc S/RES/1379 [http://unscr.com/en/resolutions/doc/1379]. 131 In May 2002, during the UNGA’s Special Session on Children, at the occasion of the adoption of the Plan of Action incorporated in ‘A World Fit for Children’, world leaders pledged to: ‘Put an end to impunity, prosecute those responsible for genocide, crimes against humanity, and war crimes and exclude, where feasible, these crimes from amnesty provisions and amnesty legislation, and ensure that whenever post-conflict truth and justice-seeking mechanism are established, serious abuses involving children are addressed and that appropriate child-sensitive procedures are provided.’ ‘A World Fit for Children’, UNICEF, 2006, para 23 [https://www.unicef.org/p ublications/index_4445.html].

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These efforts are all crucial, because the lack of accountability for crimes against children leaves children vulnerable to further violation and abuse. Conversely, criminal investigations and trials raise public awareness of the crimes targeting children and can help to break the cycle of violence. Accountability can also contribute to the process of healing and assist children in understanding that they are not to blame for what has happened to them. Testifying in highly visible trials is a significant means by which children can be given a voice and realise their right to participate in hearings concerning them. Studies demonstrate that for the great majority of survivors, including children, the ability to relate their stories proves a therapeutic experience through the integration of traumatic fragments into a ‘whole’ with a purpose: that of leaving a legacy for history and education.132 Yet too often, child-survivors are not provided with a forum to relate their stories and, as a consequence, they continue to bear a great psychological burden. Documentation and accountability enable them to integrate the complex childhood events which helped to shape their personalities and lives. Child-survivors may be adults by the time these processes occur, and many child-victims only formulate later in their lives demands for justice for crimes they endured as children. In the case of atrocity crimes, this is facilitated by the non-applicability of statutory limitations.133

4 Conclusion As Graça Machel asserted: children have an important and unique role in processes that seek truth, justice and reconciliation. Adults can act on behalf of children and in the best interests of children, but unless children themselves are consulted and engaged, we will fall short and undermine the potential to pursue the most relevant and the most durable solutions.134 Recognising the specificity of children is crucial, for many reasons. They are many among the victims – sometimes the majority – and are thus not just an epiphenomenon, but rather possibly the ‘average’ victim of international crimes; yet this reality usually goes unrecognised. Children are also often directly targeted – often principally, sometimes exclusively – by the crimes, and recognition of this may enable better responses to these crimes. These crimes affect children differently from others. Exposing children to violence in their formative years undermines 132 Robert Krell, ‘Therapeutic Value of Documenting Child Survivors’, Journal of the American Academy of Child Psychiatry vol 24, no 4 (1985): 397–400. 133 See notably Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, UNGA Resolution 2391 (XXIII) (26 November 1968). 134 Graça Machel, ‘Foreword’, in Children and Transitional Justice: Truth-telling, Accountability, and Reconciliation, edited by Sharanjeet Parmar et al (Cambridge: Human Rights Program at Harvard Law School, 2010), x–xi.

250 Conclusion and Recommendations their sense of what constitutes acceptable behaviour, both in interpersonal relations and at the societal level. Accountability and justice are key to break a vicious cycle of cross-generational violence. To this end, children must be included in accountability and justice efforts as stakeholders and rights holders. The failure to do so has two grave consequences: it leads to an incomplete account of the nature and impact of the violations suffered, notably by children; and it wastes children’s capacity to foster longer-term accountability and reconciliation. Children must be consulted and involved in developing an understanding of the past if they are to play a constructive role in building the future. To highlight the plight of children when international crimes occur, specific prosecutorial approaches can and should be adopted. Crimes committed against children can be charged and tried separately or jointly with crimes against nonchild victims. Whether the trials should be joint or separate depends on the nature of the facts and offences; prosecutorial policies; the availability of evidence; institutional capacity and constraints; and the possible symbolic function of judicial trials in a given context, among others. The following important parameters should guide any decisions and should be concomitantly respected. First, it must be recognised that children’s participation and inclusion are essential to enable the exposition of the whole range of crimes committed against them and to further accountability for these crimes. Enabling this participation requires the adoption and implementation of child-friendly procedures in line with Article 12(2) of the CRC, which stipulates that children have agency and a right to be heard in any judicial and administrative proceedings affecting them; and that children are recognised plainly as stakeholders in justice initiatives. Second, prosecuting the full extent of the crimes suffered by children is essential; no grave, massive or systematic crimes committed against children should go unaddressed. Effective investigation and prosecution strategies should single out and explicitly charge crimes against children – namely child-specific and generic international crimes. Whenever child-specific crimes are committed, they should be charged as such. Third, investigating, prosecuting and trying those responsible for child-specific crimes should not serve as a token to make up for failing to try all other generic international crimes committed against children; all crimes affecting children should be viewed with equal seriousness. Fourth, when generic crimes are committed against children, it is conceptually and morally unacceptable to consider the targeting of children merely as an ‘aggravating factor’, discussed only or predominantly at the sentencing stage. Instead, instances of international crimes committed against children should be charged and fully exposed through the presentation of evidence during the trial, thus publicly highlighting the gravity of these crimes and the criminal responsibility of those who commit them. Fifth, and finally, international and mixed courts should thoroughly investigate systemic patterns of criminality affecting children not only during armed conflicts, but also in other situations – including times of peace – and prosecute those responsible. These include the enslavement of children and widespread forced

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labour – notably as they affect young girls who are forced to marry, constituting a crime against humanity. It is therefore important that international courts be prepared to prioritise cases concerning child-victims, rather than neglecting these cases because of perceived difficulties. These will ultimately require a more dedicated capacity, which could notably take the form of a specialised chamber devoted to crimes against children within the ICC. Children must be recognised as victims because this acknowledges, restores their dignity and empowers them. It is time to break away from an adult-centric understanding of international crimes and recognise that, in numerous contexts, victims and witnesses of international crimes are children; and that, as children, they have specific rights, perspectives and needs which cannot merely be subsumed under those of adults.

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Index

abduction 23, 82, 87, 167, 195, 197–198, 222; Boko Haram 97; crimes committed by children 182, 185–192; ICC 160, 163, 185–192; ICTY 127–130; Liberia 204; Nazi Germany 63; Ongwen 80–81, 163, 185, 218–219; SCSL 141, 142–143, 145, 146–148, 149, 214, 226 abortion 166; see also reproductive autonomy Additional Protocols to GCs 35; I 39–40, 41, 42, 44, 88, 92, 94; II 40n87, 41–42, 44, 82 adoption 23, 67 Afghanistan 24, 81, 96–97 AFRC/Brima et al 72, 82–83, 86, 139, 140, 141, 142, 144–145, 148–149, 215 agency 19, 34, 45; crimes committed by children 197–198, 201, 250 aggression, crime of (crime against peace) 4, 5, 8, 99, 100, 106, 107, 112, 117, 206 AIDS/HIV 36 Akayesu 7, 134–135, 136–137, 138, 211 Amann, DM 52, 159 amicus curiae 71, 87, 189 amnesty 192–193 amputations 149, 198–199, 202 anonymity 193; see also pseudonyms appeals 3; ICTY and ICTR 6 Araki, S 111, 112 Archard, D 19 Arendt, H 197 Argentina 93 arrests 6, 8, 40, 44, 170 assault, indecent 39–40 association, freedom of 45 Aubert, V 53 Bassiouni Commission 221 Belarus 62

best interests of the child 33, 45, 46, 249; children’s testimony in criminal proceedings 46, 235; crimes committed by children 168, 169, 194–201; ICC 51, 53; SCSL 50 birth certificates 230 Boko Haram 67, 97, 242 Bosnia-Herzegovina 123, 210, 212–213; crimes committed by children 179; War Crimes Chamber of 9, 179; see also International Criminal Tribunal for the former Yugoslavia (ICTY) boys, killing of (ICTY) 125–128 Burundi 219 business activities 36; multinational corporations 240 Cambodia see Extraordinary Chambers in the Courts of Cambodia Canada 23 cannibalism 202, 204 capital punishment 18, 36, 39, 40, 170 Capone, A 246 Cassese, A 243–244 caste 29 Central African Republic 81, 219; Special Criminal Court 10 child-friendly procedures 234–236, 250 child protection agencies/organisations 50, 90, 181–182 child-soldiers 23–24, 126, 170, 171, 239–240; agency 197–198; beatings and killings 140, 141, 185; child-soldier tried as adult and only for crimes committed as adult seeOngwen; drugs 140, 141, 182, 195, 202, 203, 205; ICC: additional crimes against 158–161; ICC: crimes omitted 153–156, 237; recruitment and use of children in hostilities

Index 267 and criminal liability see separate entry; recruitment and use of children in hostilities, prohibition of see separate entry; release 44; rights of victims of 198; SCSL: additional crimes against 139–141, 142–144, 238; Sierra Leone see child soldiers and Sierra Leone; truth commissions 200–205; victim-perpetrator dilemma 237, 241–242; Yazidi boys 67–68; see also crimes committed by children child-soldiers and Sierra Leone 198–199, 214; SCSL: recruitment and use of children in hostilities and criminal liability 10, 17, 43, 69, 70–73, 81, 82–83, 85, 86, 138, 141, 148, 183, 213–214, 215–216, 220, 237, 241; Truth and Reconciliation Commission 202–203 child-specific crimes 59–60, 147, 250; attacks against buildings dedicated to education 91–97, 222, 224; determination of age 230; forcible transfer of children to another group 60–68, 103, 225; recruitment and use of children in hostilities and criminal liability see separate entry child-terrorists 242 child-witnesses involved in crimes 192–194, 235–236 China 113–114, 115, 116 civil society organisations (CSOs) 153 civil-political rights 29, 32 clothing 39 cognitive development 48, 52 Colombia 81, 198 command responsibility 3, 207 Committee on the Rights of the Child 33, 35, 36–37, 45; armed conflict or emergencies 35; complaints procedure 38; criminal responsibility, minimum age of 171; juvenile justice 169, 171; views of child 34, 45 compensation 56, 90, 244; see also reparations complementarity, principle of 8, 193 conflicts of interest 57 consent: child-soldiers 82–84, 85; informed 193 Convention on the Rights of the Child (CRC) 19, 28, 31–38, 40, 53, 190, 221, 234–235; art 1: definition of child 17–18, 32, 117; art 2: non-discrimination 33, 45; art 3: best interests of the child 33, 45, 46, 235; art 5: parental

guidance 34, 46; art 6: right to life 32, 33, 45, 235; art 12: right to express opinions 33–34, 45; art 12(2): right to be heard in proceedings 45, 46, 250; art 13: freedom of expression 33, 45; art 14: thought, conscience and religion 33, 45; art 15: freedom of association 45; art 37: detained or imprisoned children 33; art 38: participation in hostilities 35, 42; art 38(4): international humanitarian law 35; art 39: post-conflict recovery and reintegration 35–36, 44, 46; art 40: crime and reintegration 45, 168–171, 194; Optional Protocol: armed conflict 37–38, 42, 44, 46, 82, 92, 240; Optional Protocol: complaints procedure 38; Optional Protocol: sale of children, child prostitution and child pornography 38; capital punishment 18, 170; evolving capacities of the child 18, 19, 34, 46, 48; life imprisonment 18; no lower age limit 18; overarching principles 33–34, 45, 235; people in process of becoming 19–20 Coomaraswamy, R 84 Côte d’Ivoire 219 Crane, D 71, 183–184 crimes against humanity 4, 5, 6, 8, 9, 10, 232–233, 241; civilian facilities 96; crimes committed by children 179–180; definitions 12–14; forced marriage 143, 164–165; forced pregnancy 165–166; genocide 14; ICC 13–14, 158, 164–166; ICTR 13–14, 164; ICTY 13, 119, 120, 122, 123, 129, 164, 209; Nuremberg Tribunal 12–13, 99, 101–104, 107, 108, 164, 206; SCSL 13, 139, 140–141, 142, 143–145; sex slavery 142 crimes committed by children 167–168; agency 197–198, 201; best interests of the children 168, 169, 194–201; CRC: art 40 45, 168–171, 194; criminal responsibility, minimum age of 168, 170–172, 179, 184–185; duress 182, 183, 186–189, 192, 195–196, 197, 198, 216; East Timor Special Panels for Serious Crimes 172, 179–180, 216; ICC 172, 173, 184–192; ICTR 177–179, 212; ICTY 175–177, 210, 212; juvenile justice 168–170, 200; Nuremberg Tribunal 172, 173–174, 207; SCSL 10, 172, 179, 181–184, 198–199, 215–216; self-incrimination 192–194; sentencing 170, 182, 190–192; Tokyo Tribunal

268 Index 172, 173, 174–175, 208–209; transitional justice 194, 200–205; victims, rights of 198–199; witnesses, children involved in crimes as 192–194, 235–236 crime against peace see aggression cross-generational violence 250 cultural environment 36 cultural property 93, 94 customary international law 11, 14, 28, 29; crimes committed by children 176; cultural property 93; educational buildings 93, 95; IHL 41, 42, 92–93; recruitment and use of children in hostilities, prohibition of 71–72, 241 customary laws 18 Daesh/ISIS/Islamic State 67–68, 196, 199, 242 Darfur 8, 219 death penalty 18, 36, 39, 40, 170 definitions: child 17–22, 29–30, 31, 32, 72, 117; crimes against humanity 12–14; genocide 11–12; war crimes 14–17 Del Ponte, C 117–118, 176 demobilisation packages 90 Democratic Republic of the Congo (DRC) 24, 196, 219, 230, 239–240, 241; Chui 78, 217; Katanga 77–78, 156–158, 217, 218; Lubanga 55, 57, 69, 74–77, 83–84, 85–86, 87–89, 153–156, 159, 216–217, 218, 238, 239–240, 241; Ntaganda 78–80, 86, 158–163, 217, 218 demography 24, 149, 177, 213 deportation 13, 14, 101; ICC 158; ICTY 123, 124, 126–127; Nuremberg Tribunal 105, 107, 207; SCSL 148; see also forced displacement Desforges, A 135 detention 33, 36, 39, 40, 44, 129, 130, 162, 203, 204; crimes committed by children 170, 171, 180, 185 Detrick, S 32 disabilities, persons with 49, 104, 209 do no harm 53 drugs 140, 141, 182, 195, 202, 203, 205; trafficking 171 Drumbl, M 197–198 Dumas, H 23, 131 duress 66, 182, 183, 186–189, 192, 195–196, 197, 198, 216; definition 195 East Timor: Commission for Reception, Truth and Reconciliation 203; crimes

committed by children 172, 179–180; Special Panels for Serious Crimes 9, 172, 179–180, 216 East Timor Special Panels for Serious Crimes 216 Eastern Africa: pastoral groups 20 education 22, 29, 31, 33, 36, 39, 40, 44, 55, 69, 248; attacks against buildings dedicated to 91–97, 222, 224; on human rights 37; ICC 162; ICTY 124–125; Safe Schools Declaration 93; Tokyo Tribunal 109–112 employment, minimum age for 31 enslavement 13, 23, 91, 141, 142, 182, 185, 214, 226, 238, 248, 250–251; of girls through child-marriage 241; sex slaves 67, 71, 76, 87, 91, 116, 129, 141, 142–143, 144, 145, 146, 147, 154, 155, 156, 158–160, 163, 165, 185, 202, 204, 214, 238; slave labour 103 ethnicity 21; ICC 155–156, 217; ICTY 123–124, 212; identity of father 212–213; see also International Criminal Tribunal for Rwanda (ICTR) euthanasia 103–104 evacuation of children 40, 44 evolving capacities of the child 18, 19, 34, 46, 48; ICC: investigations 51–52 expression, freedom of 33, 45 extradite or prosecute 193 Extraordinary African Chambers in the Senegalese Courts 10 Extraordinary Chambers in the Courts of Cambodia (ECCC) 9; outreach 54n164; participation of child-victims 56, 57, 235 fair trial 169 false testimonies 152, 218 family: children separated from 23, 39, 92; reunification 40, 44; see also abduction foetuses 135–136, 211; CRC’s definition of child: no lower age limit 18 food 22, 29, 32, 36, 39, 40; famine 98, 108, 148, 207 forced displacement 22, 128, 148, 158, 162, 202, 203, 212, 213, 224; see also deportation forced labour 64, 101, 107, 108, 112, 141, 144, 202, 207, 238, 250–251 forced marriage 202, 251; children born out of 211, 212–213; ICC 163, 164–165, 185; SCSL 73, 143–148 forced pregnancy 138, 163, 165–166, 210, 212–213

Index 269 forcible transfer of children to another group 60–68, 225; Genocide Convention 60–61; Nazi Germany 61–65, 103 Frick, W 103–104 Gacaca courts 178–179 gender 36, 49, 51, 52, 53, 101, 151, 207, 208, 214, 220, 224, 226, 232, 238; girls see separate entry; ICTY: killing of boys 125–128; women see separate entry; see also forced marriage generic crimes affecting children 239–241 Geneva Call 44 Geneva Conventions 1949 6, 10, 15–17, 35, 39; Additional Protocols to GCs see separate entry; attacks against buildings dedicated to education 91–92; Common Article 3 88, 89, 140; IV 35, 92 Geneva Declaration on the Rights of the Child 30 genocide 6, 7, 8, 10, 232–233, 241; Convention: five prohibited acts 60, 65; crimes against humanity 14; crimes committed by children 177; definition 11–12; forcible transfer of children to another group 60–68, 225; genocidal intent 132, 134–136, 172, 211; ICTR 12, 65, 131–137, 138, 172, 177–179, 211–212, 225; ICTY 12, 65, 119, 120, 122, 128, 225; primary targets: children 23; rape 136–137, 138, 211; trauma exposure and psychological reactions 25 Georgia 219 Germany 23; forcible transfers of children in Nazi 61–65, 103; International Military Tribunal of Nuremberg see separate entry; propaganda in Nazi 196 girls 20–21, 22, 24, 29, 170, 220, 248, 251; education 96, 97, 248; enslavement through child-marriage 241; ICC 152–155, 156, 158–161, 162–163, 237; ICTR 21, 137–138, 212–213; ICTY 120, 121, 122, 128–130, 212–213; ISIS 67–68; Liberia 204; Nuremberg Tribunal 105, 106, 108; recruitment and use in hostilities 76, 87–88, 90, 153–155, 238; SCSL 73, 139, 141, 142–144, 146–148, 149, 214, 226, 237; Tokyo Tribunal 115–116, 208; truth commissions 202, 204, 205; see also pregnancy; women Grey, R 143 Hague Regulations 92, 94 Hashimoto, K 110, 112, 175

health 124, 137, 164; highest attainable standard of 32; mental 125, 128, 130, 137, 143, 162, 164, 186, 189–190; rape 130, 137, 143, 160–161, 162; reproductive 166 healthcare 29, 31, 36, 37, 96, 166; ICTY 124; medical facilities/services 22, 29, 93, 114, 222 heard in proceedings, right to be 45, 46, 250 Himmler, H 62, 63, 69 Hirota, K 113–114 historic monuments and buildings 152, 218 Hitler, A 63 HIV/AIDS 36 Hoess, R 105 Holocaust 11, 62, 64, 99, 104–106, 107, 108–109, 206, 207, 220 homosexuals 209 Human Rights Committee: General Comment 17 30 hybrid or mixed courts 8–10, 184, 216; see also individual courts identity 20–22, 212–213; politics 239 impact of international crimes on children 22–25, 98 indigenous children 36, 170; removed from families 23 indoctrination: Nuremberg Tribunal on mobilisation of youth and Nazi 106– 108, 207; Tokyo Tribunal 109–112, 208–209 Indonesia 203 International Association of Prosecutors: Model Guidelines for the Effective Prosecution of Crimes Against Children 48–49 International Committee of the Red Cross (ICRC) 41, 42, 44, 92–93 International Covenant on Civil and Political Rights (ICCPR) 29–30; art 10: persons deprived of liberty 33 International Covenant on Economic, Social and Cultural Rights (ICESCR) 29–30 International Criminal Court (ICC) 7–8, 150–153, 221, 223, 247, 248, 251; advisers, legal expertise of 226; age limit, jurisdictional 184–185, 193, 219; children involved in crimes as witnesses 192, 193–194; Chui 78, 217; competence over war crimes (art 8) 17; crimes

270 Index committed by children 172, 173, 184– 192; definition of crime against humanity in Statute 13–14; duress and criminal responsibility 186–189, 192; educational facilities 94, 95–96, 97; expertise of judges 225–226; forced marriage 163, 164–165, 185; forced pregnancy 163, 165–166; forcible transfer of children to another group 65–68; generic atrocity crimes against child soldiers 158–161, 219; generic atrocity crimes against other children 161–166, 219; genocide 12, 65–68; international and internal armed conflicts 17, 43, 69, 95; Katanga 77–78, 156–158, 217, 218; lists of victims 157–158; Lubanga 55, 57, 69, 74–77, 83–84, 85–86, 87–89, 153–156, 159, 216–217, 218, 238, 239–240, 241; Al Mahdi 152–153, 218; mainstreaming 53; mental disease or defect and criminal responsibility 186, 189–190; Ntaganda 78–80, 86, 158–163, 217, 218; Ongwen 80–81, 86, 163–166, 185–192, 217, 218–219; outreach 53, 236; participation of child-victims 56, 57, 76, 226, 235; procedural protection 49, 50, 51, 52–53, 54–55, 75–76, 193–194, 226, 229, 234; protective measures in court 54–55, 75– 76, 193–194, 226, 229, 234; recruiting and using children 17, 43, 68–69, 74–81, 82, 83–84, 85–86, 87–89, 90, 153–156, 185, 216–217, 220, 237, 238, 239–240; reparations 56, 155, 217n38, 235, 239; selection of cases to investigate 150–151, 232; self-incrimination 192, 193–194; sentencing 190–192; solemn undertaking 57; Special Advisor 53; Victims and Witnesses Unit 49, 50, 51, 54, 76 International Criminal Tribunal for Rwanda (ICTR) 6, 7, 131–138, 148, 210–211, 221, 231–232; Akayesu 7, 134–135, 136–137, 138, 211; children and genocidal intent 132, 134–136, 172, 211; crimes committed by children 177–179, 212; definition of crimes against humanity 13–14, 164; forced pregnancy 138, 212–213; genocide 12, 65, 131–137, 138, 172, 177–179, 211– 212, 225; genocide against Tutsi children 132–134, 211; outreach 54n164; participation of child-victims 56–57; procedural rules 229; sentencing 132, 211–212; sexual crimes 136–138, 247; war crimes 16

International Criminal Tribunal for the former Yugoslavia (ICTY) 6–7, 117–130, 148, 221, 231–232; crimes against children targeting civilian population (in general or specific group) 123–125, 209–210; crimes against humanity 13, 119, 120, 122, 123, 129, 164, 209; crimes committed by children 175–177, 210, 212; definition of crimes against humanity 13; educational facilities 94–95; forced pregnancy 210, 212–213; genocide 12, 65, 119, 120, 122, 128, 225; killing of boys 125–128; participation of child-victims 56–57, 229; procedural rules 229; sentencing 121, 129–130, 210, 212; sexual crimes 128–130, 247; war crimes 15–16, 94–95, 119–120, 122, 129, 176, 209 international human rights law (IHRL) 28–31, 33, 90, 91–92, 164, 200, 209, 220–221, 248; Convention on the Rights of the Child (CRC) see separate entry; recruitment and use of children in hostilities, prohibition of 41, 224 international humanitarian law (IHL) 10, 38–41, 159, 220, 224, 248; Convention on the Rights of the Child 35; educational facilities 91–93, 224; Geneva Conventions 1949 see separate entry; recruitment and use of children in hostilities, prohibition of 41–42, 68, 86, 88, 90–91 International Labour Organization (ILO): Convention 138: minimum age for employment 31; Convention 182: compulsory recruitment 42 International Law Commission (ILC): definition of crimes against humanity 13–14 International Military Tribunal for the Far East in Tokyo 3–4, 5–6, 61–62, 109–117, 148, 208–209, 225, 245; age ambiguity 115–116, 208; crimes against non-Japanese children in occupied territories 112–115; crimes committed by children 172, 173, 174–175, 208–209; definition of crimes against humanity 13; definition of war crimes 15; indoctrination 109–112, 208–209; omission, guilt by 6; passive objects of protection 220; political sponsors 231; sexual crimes 115–116 International Military Tribunal of Nuremberg 3–4, 61–62, 64, 99–109, 148,

Index 271 206–208, 209, 225; crimes against children as part of civilian population 101– 104, 207; crimes against Jewish children 104–106, 108–109, 207, 220; crimes committed by children 172, 173–174, 207; definition of crimes against humanity 12–13; definition of war crimes 15; extermination camps 105, 207; Nazi indoctrination and mobilisation of youth 106–108, 207; passive objects of protection 220; political sponsors 231; recruiting and using children 69–70 International Residual Mechanism for Criminal Tribunals 7, 213 intersectional approach 21–22, 24, 248; ICC 53 interviews 51–52, 53, 180, 228, 231 investigation, protection of children during 50–54 investigative and prosecutorial strategies 242–249 Iraq 24, 196 ISIS/Islamic State/Daesh see Daesh/ISIS/ Islamic State Jackson, R 99 Japan: International Military Tribunal for the Far East in Tokyo see separate entry; propaganda in Imperial 196 jurisdiction 2; ICC 7–8, 184–185, 193, 219; ICC: age limit 184–185, 193, 219; ICTR 7; ICTY 6; Nuremberg Tribunal 4; SCSL 9, 10, 172, 179, 215, 225; Tokyo Tribunal 5; universal 2, 7 jus cogens/peremptory norms 29, 159 Kamara, M 198–199 Katanga 77–78, 156–158, 217, 218 Keitel, W 70, 101, 102 Kenya 219 Khan, KAA 53 Kido, K 111, 112 Korea 116 Kress, C 67 Kretschmar, G 104 Krstic´ 127–128 labour: forced 64, 101, 107, 108, 112, 141, 144, 202, 207, 238, 250–251; slave 103 landmines 36 League of Nations 30 Lebanon 9

legal assistance 235; see also legal representation legal personality 2 legal representation: assistance 235; childvictims 56, 57, 76, 235; defendants 55, 180; witnesses at risk of self-incrimination 194 legality, principle of 91 Lemkin, R 11 Leone, M 203 Liberia 20, 203–205 Libya 8, 219 life, right to 32, 33, 45, 96, 235 Lord’s Resistance Army 23, 74, 150, 195; Ongwen 80–81, 86, 163–166, 185–192, 217, 218–219 Lubanga 55, 57, 69, 74–77, 83–84, 85–86, 87–89, 153–156, 159, 216–217, 218, 238, 239–240, 241 Machel, G 34–35, 221, 222, 240, 249 Al Mahdi 152–153, 218 Mali 152–153, 218, 219 malleability 23–24, 63, 167, 196, 202 manslaughter 180, 216 marriage: enslavement of girls through child- 241; forced see separate entry; right to marry 164, 165 Marrus, MR 99 Matsui, I 113 media 58, 117, 171, 209, 240 medical facilities/services see healthcare memory 48, 228, 229 mixed or hybrid courts 8–10, 184, 216; see also individual courts Monitoring and Reporting Mechanism on Children in Armed Conflict 222–223, 240 moral development 48, 196 multinational corporations 240 Myanmar 219, 224–225 national criminal systems 2, 6, 8, 192, 193, 200, 228–229, 248; see also mixed or hybrid courts Neurath, C von 101, 102 Nigeria 81, 97, 196 No Peace Without Justice 212 Norway 93 Nsereko, DDN 66–67 Ntaganda 78–80, 86, 158–163, 217, 218 nullum crimen sine lege 91, 164

272 Index Ohlendor, O 104 older persons 49, 103–104, 120, 123, 124, 126, 127, 128, 133, 134, 157, 161, 162 Ongwen 80–81, 86, 163–166, 185–192, 217, 218–219 Optional Protocol on Armed Conflict to the CRC 37–38, 42, 44, 46, 82, 92, 240 orphans 39, 62, 63, 92, 178 outreach 53–54, 236 Pakistan 96, 97 Paris Commitments 43, 194–195, 237 paternalism 29, 220 patriarchy 138, 212–213 Peru 201–202 Philippines 114–116 Pirisi, A 24–25 Poland 31, 62, 63–64, 102 politics 243; identity 239; of victimhood 247 pornography, child 38 post-conflict recovery and reintegration 35–36, 37, 44, 46 poverty 29 pregnancy 135–136, 146, 211; forced 138, 163, 165–166, 210, 212–213 prison 18, 33, 132, 170, 182, 212 prisoners of war 44 privacy 46, 49, 50, 182 procedural rules 2–3, 45–57, 58, 234–236, 250; challenges 228–231; court, protection in 54–56, 75–76, 180, 181, 193–194, 200, 226, 229, 234; investigations 50–54; participation of child-victims in proceedings 56–57, 226; prosecutorial priorities 232; self-incrimination 193–194 prosecutorial and investigative strategies 242–249 prosecutorial priorities 2, 9, 99, 100, 109, 117–118, 172–173, 175–177, 182–184, 215–216, 231–234, 243–244, 246–247 prostitution 38, 140 protection of children: from recruitment and use in hostilities 44; international human rights law (IHRL) see separate entry; international humanitarian law (IHL) see separate entry; procedural rules see separate entry; recruitment and use of children in hostilities, prohibition of see separate entry pseudonyms 55, 129, 130, 160, 163, 179, 180 rape 22, 23, 73, 91, 98, 202, 204, 205, 222, 238, 244; children born of 138,

211, 212–213; crimes committed by children 176; genocide 136–137, 138, 211; ICC 154, 155, 156, 158–161, 162–163, 185, 192, 217, 239; ICTR 136–138, 211; ICTY 120, 128–130, 176, 210; SCSL 140, 142, 144, 147, 214, 226; Tokyo Tribunal 113, 114, 115–116 reconciliation 200, 205, 247, 250 recruitment and use of children in hostilities and criminal liability 17, 43, 68–69, 236–241; Cape Town Principles 43, 87; conscription and enlistment: difference 82–84, 214; ICC 17, 43, 68–69, 74–81, 82, 83–84, 85–86, 87–89, 90, 153–156, 185, 216–217, 220, 237, 238, 239–240; more than one crime 85–86; Nuremberg Tribunal 69–70; participate actively 86–91; salient jurisprudential findings 81–91; SCSL 10, 17, 43, 69, 70–73, 81, 82–83, 85, 86, 138, 141, 148, 183, 213–214, 215–216, 220, 237, 241; see also crimes committed by children recruitment and use of children in hostilities, prohibition of 17, 41–43, 68, 224; Convention on the Rights of the Child and OPAC 35, 36, 37, 42; GCs, Additional Protocol I 40, 41, 42; GCs, Additional Protocol II 41–42; ICC 17, 43; international and non-international armed conflicts 41–42, 43; minimum age 42, 43; non-binding documents 42–43; Paris Commitments 43, 194–195, 237; SCSL 10, 17, 43 recruitment and use in hostilities, protection of child victims of 44 reintegration 199, 200, 205, 215; CRC art 40: crime and 45, 168–171, 194; postconflict recovery and 35–36, 37, 44, 46 relief consignments 39 religion 220; buildings 95, 152, 218; freedom of thought, conscience and 33, 45; Holocaust 11, 62, 64, 99, 104–106, 107, 108–109, 206, 207, 220; ICTY 119–120, 123–124, 127, 129, 212; identity of father 212–213; laws, religious 18; Yazidi children 67–68 Rempel, G 108 reparations 46, 56, 90, 155, 198, 217n38, 235, 239, 243, 244 reproductive autonomy 166; see also abortion restorative justice 169, 170, 200; crimes committed by children 194–195, 200

Index 273 Romania 62 Rosenberg, A 62, 64, 101, 102, 103 RUF/Sesay et al 72, 139, 140, 141, 142–143, 144, 145, 146, 147, 148, 149, 196, 215 rule of law 200 Rwanda 14, 197, 213, 220; demography 177; ethnicity 21, 212–213; International Criminal Tribunal for Rwanda (ICTR) see separate entry; national accountability mechanisms 178–179; specificity of experience of Tutsi children 21; targeting of children 23; trauma exposure and psychological reactions 25; Tutsi girls 22 safety and security concerns 227–228, 235 safety zones 39 sale of children 38 sanitation 22 Sassòli, M 15, 88 Schabas, W 150 Schirach, B von 69–70, 101, 107, 108, 173–174 security and safety concerns 227–228, 235 self-incrimination 192–194 Senegal: Extraordinary African Chambers in the Senegalese Courts 10 sentencing 250; ICC 190–192; ICTR 132, 211–212; ICTY 121, 129–130, 210, 212; SCSL 10, 181 sex slaves see under enslavement sexual abuse 73, 88, 160, 182, 214 sexual crimes 22, 220, 247, 248; ICC 153–155, 239, 247; ICTR 136–138, 247; ICTY 128–130, 247; Nuremberg Tribunal 100, 106; rape see separate entry; SCSL 141–143, 149, 214, 220, 226, 247; Tokyo Tribunal 109, 115–116 sexual violence 222, 224, 232, 238; children born of 138, 212–213; customary IHL 41; ICC 14, 49, 51, 52, 55, 151, 154–155, 160, 226, 239; ICTR 132, 137–138, 211, 212–213; ICTY 130, 212–213; recruiting and using children 87, 88–89; SCSL 141–143, 147–148, 214, 226; Tokyo Tribunal 109, 115– 116, 208; truth commissions 202, 204 Sierra Leone 230, 241; child-soldiers and see separate entry; demography 149, 213; police 227; Special Court for (SCSL) see separate entry; Truth and Reconciliation Commission 202–203, 205, 215

Sinnreich, H 106 slavery see enslavement social construct 21, 164 socio-cultural construct 20 socio-economic and cultural rights 29, 32 socio-economic status 20 Somalia 24 South Sudan 10, 24, 224 Soviet Union 62 Special Court for Sierra Leone (SCSL) 8–9, 10, 16–17, 138–149, 203, 221, 231; additional crimes against child-soldiers 139–141, 142–144, 238; AFRC/Brima et al 72, 82–83, 86, 139, 140, 141, 142, 144–145, 148–149, 215; amputation 149, 198–199; children involved in crimes as witnesses 192; crimes against children who were not child soldiers 148–149, 214–215; crimes against humanity 13, 139, 140–141, 142, 143–145; crimes committed by children 10, 172, 179, 181–184, 198–199, 215–216; definition of crimes against humanity 13; domestic offences: abuse of girls under age of 14 9, 147–148; duress 196; employees 226; expertise of judges 226; first hybrid court 10; forced marriage 73, 143–148; jurisdiction 9, 10, 172, 179, 215, 225; outreach 54n164; recruiting and using children 10, 17, 43, 69, 70–73, 81, 82–83, 85, 86, 138, 141, 148, 183, 213–214, 215–216, 220, 237, 241; RUF/Sesay et al 72, 139, 140, 141, 142–143, 144, 145, 146, 147, 148, 149, 196, 215; security and safety concerns 227; selfincrimination 192; sentencing 10, 181; sexual crimes 141–143, 149, 214, 220, 226, 247; Taylor 10, 72–73, 141, 142; Victims and Witnesses Unit 50, 226; Witness Management Unit 50 Special Tribunal for Lebanon 9 Srebrenica syndrome 128 standard of living, adequate 32 statistical data 230 stigma 24, 138, 143, 147, 199, 201, 212–213, 228, 237, 242 Syria 196, 223, 224–225: Commission of Inquiry 67–68 Taliban 96–97, 242 targeting of children 23–24, 133–134, 241, 250; CRC: Optional Protocol on Armed Conflict 37–38, 44

274 Index Taylor 10, 72–73, 141, 142 terminology 10–11 Timor-Leste see East Timor torture and inhuman or degrading treatment 36, 91, 140–141, 185, 202, 203, 204, 212, 213, 217, 238, 239, 240, 244; crimes committed by children 176, 195, 205; ICC: inhumane and cruel treatment 154, 155; ICTY 125, 176; Tokyo Tribunal 112, 114 transitional justice 245; child protection, failure in 200; children involved in crimes and 194, 200–205; Key Principles for Children and 194 trauma 22, 24–25, 88, 162, 199, 226; child-soldiers 69; crimes committed by children 199, 200; experts in 226; intergenerational transmission of 108n56; investigations 51; rape 130, 138; Rwandan child-victims of genocide 25; testifying 46, 47, 48–49, 228, 234, 236; transitional justice 200 truth commissions 200, 205; East Timor 203; Liberia 203–205; Peru 201–202; Sierra Leone 202–203, 215 truth, historical and judicial 244 Uganda 8, 150, 219, 241; Lord’s Resistance Army see separate entry Ukraine 62, 81, 103, 104–105, 219 UNICEF (United Nations Children’s Fund) 32, 34, 44, 50, 71, 182, 212 United Nations 8, 9, 10, 44, 117, 169, 209, 221–225, 240; crimes committed by children 182; Declaration on the Protection of Women and Children in Emergency and Armed Conflict 31; Declaration of the Rights of the Child 31; General Assembly 31, 151, 219, 248; Guidelines for Action on Children in the Criminal Justice System 46, 169; Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime 46, 47, 54, 169, 236; Human Rights Council 223; Monitoring and Reporting Mechanism on Children in Armed Conflict 222–223, 240; Security Council 6, 7, 8, 93–94, 182, 183, 222–223, 231–232, 240; Special Rapporteurs 221, 237; Special Representative of the Secretary General for Children and Armed conflict 83–84, 85, 87–88, 90, 182, 222; Standard Minimum Rules for the Administration of

Juvenile Justice (Beijing Rules) 169, 171; Syria: Commission of Inquiry 67–68 United States: Convention on the Rights of the Child 38; Declaration of Independence 28–29 Universal Declaration of Human Rights (UDHR) 28, 29; art 25(2): special care and assistance 29; art 26(3): parental choice and education 29 Verhellen, E 19 victors’ justice 4 views of child 33–34, 45, 53 vulnerability 18–19, 20, 21, 29, 30, 34, 196, 202, 239, 248; impact of international crimes on 22–25, 98 war crimes 4, 5, 8, 9, 10, 158, 232–233; educational facilities 92–93, 94–96; ICC: Ntaganda 158, 159, 161, 162; ICTY 15–16, 94–95, 119–120, 122, 129, 176, 209; meaning of 14–17; nexus between crime and conflict 14; Nuremberg Tribunal 15, 99, 173, 206, 207; recruitment and use of children in hostilities and criminal liability see separate entry; SCSL: additional crimes against child soldiers 139–140; targeting civilian objects 92–93 water 22; right to clean drinking 32 Weitsman, PA 212–213 witnesses 233, 246; at trial of parent 55; children involved in crimes as 192–194, 235–236; cognitive development 48, 52; conflicts of interest 57; cross-examination 47, 52, 55, 236; Lubanga 75–76, 77; procedural and evidentiary challenges 228–231; procedural protection 45–57, 58, 75–76, 193, 226, 234–235; protection of children during investigations 50–54, 58; protection in court 54–56, 75–76, 193, 226, 234–235; reliability of childwitness testimony 48–49, 228–229, 231; security and safety concerns 227–228; selfincrimination 192–193; self-representation by defendant 55; solemn undertaking 56–57, 229; trauma and testifying 46, 47, 48–49, 228, 234, 236; victims now adults 55–56, 75 women 29, 31, 47, 54; ICC 156, 157, 161, 162, 163, 266; ICTR 135–136, 137, 211; ICTY 120, 124, 126, 127, 128, 129, 211; Nuremberg Tribunal

Index 275 100, 102, 103, 105, 106, 207; SCSL 142, 143, 146–148, 214, 226; Tokyo Tribunal 114, 115–116, 208; see also girls; pregnancy Yazidi children 67–68

Yemen 24 Yousafzai, M 97 Yugoslavia 62; Bosnia-Herzegovina see separate entry; ICTY see International Criminal Tribunal for the former Yugoslavia (ICTY)