Portrait of the ICC Prosecutor Fatou Bensouda
The ICC Prosecutor Fatou Bensouda

The ICC Policy on Children

The Initiative of the ICC Prosecutor

As we have seen, progress has been made at the international level to provide legislative and judicial measures to protect children.

However, many critical aspects have to be taken into consideration to address international crimes committed against children, including the participation of victims in judicial proceedings.

With the aim to make the ICC more effective and sensitive on this issue, in 2016 the ICC Prosecutor published the document “ICC Policy on children”. This policy is the product of extensive expert consultations and is also informed by the insights of children themselves.

The policy highlights the severity of violence affecting children and it aims to reinforce the office’s child-sensitive approach, based on the general principles and the rights of children as recognised in the CRC. It deals with different issues related to children and the work of the Office of the Prosecutor such as general policy, regulatory framework, and engagement with children at all stages of the proceedings.

The Key Points of the ICC Policy on Children

The policy is an operational tool to guide the office in its role to investigate international crimes against children and hold perpetrators accountable. To this scope, the document identifies children as any person under eighteen. Here, we summarise the main points articulated in the policy:

  • In general, the policy establishes that the Office of the Prosecutor will consider the crimes against or disproportionately affecting children as particularly grave, given the international legal framework aimed at protecting children, with reference not only to the ICC Statute but also to the CRC.

  • The policy commits the prosecutor’s office to seek to include, wherever the evidence exists, charges for crimes directed or affecting specifically children in the indictment. Further, it should strengthen its capacity to identify all aspects that can disproportionately impact children, especially where sexual and gender-based violence occur. In order to capture the full extent of the harm suffered, the office should to highlight the multi-faceted impact of the crimes on children, at all stages of its work.

  • The approach of the office to children should consider them as multi-faceted individuals and, simultaneously, as members of multi-generational communities. It is a fact that children are frequently more vulnerable than other persons because of their age and, in the most of cases, they are dependent on others. Nevertheless, children, like all human beings, have their own capacities and resources, and they continuously develop them. So in establishing an interaction between the office and a child, as a victim or a witness, this aspect should be adequately considered.

  • In carrying out its activity, the ICC engages with children, especially as victims and/or witnesses. In all circumstances the ICC activities must be driven by the principle of the best interest of the child and the respect of her/his rights and well-being. In this light, the office must exert the maximum effort to ensure that no harm to children involved in the proceedings will come from its action.

  • As a primary consideration, the office should assess the child’s best interest. In order to do so, the policy establishes a two-step process. First, the office will consider the child’s specific situation, the views of the child and of other relevant persons, and the child rights at issue. Second, the office will take into account any other relevant factors that need to be balanced. If conflicts arise, the office will resolve them on a case-to-case basis.

  • The policy reaffirms that the office recognises the rights of children enshrined in international law, and that, for many children, it is still challenging to exercise their rights due to their age and status in society.

  • During a preliminary examination of a situation in which children are affected, the office should identify local institutions, international organisations, non-governmental organisations, and other entities that can contribute as sources of information and/or local support for the activities of the office.

  • The work of investigating international crimes, carried out by the Office of the Prosecutor, always presents various challenges. One of the main issues concerns the cooperation of individuals that is strictly linked with the capacity of the office to ensure their safety, well-being, and privacy. When children are involved, the complexity becomes even greater. The policy commits the office to explore specific means to address it, always having in mind the best interests of the child.

  • In accordance with the recognition and consideration of children in international criminal proceedings, the policy affirms that children should be considered capable of giving credible evidence. In any case, in deciding whether to interview or take evidence from a child, the office should first and carefully consider the age of the child, his/her level of maturity, his/her capabilities and vulnerabilities, and the existence of other available evidences.

  • The policy outlines that when defining the sentencing, the office should take into account not only immediate and long-term harms caused to children, but also to their families and communities.

  • A child-sensitive approach is also supported with regards to reparations. The office will differentiate the effects and the harms caused to boys and girls by international crimes committed against them. Especially in cases involving children, the nature of reparations is intended to be transformative. So one of the key issues to be carefully dealt with in terms of reparation is the right of child victims to reintegration into their communities. In order to contribute to the most effective and appropriate forms of reparation and, bearing in mind, the best interests of the child, the office will support consultation with child victims. The office will also consider other actions including non-monetary initiatives that aim to enhance a child’s sense of justice and promote reconciliation in a community.

  • The policy also refers to the cooperation and external relations, stressing that it is essential to address efforts to ensure a meaningful cooperation with states, international organisations, and relevant entities. It is the only way the office’s work regarding children can be effective. On the other hand, the office renews its commitment to encourage and support national efforts to hold persons accountable for crimes against or affecting children.

  • Finally, the policy outlines that to implement the provisions of the policy itself, the office should be provided with appropriate resources and expertise. The implementation phase includes also an initiative for the dissemination of information relating the ICC and the Policy on Children and for spreading awareness on children rights, using informative material in a format that children can understand.

This Policy on Children reflects the greater attention and commitment of many international actors for the protection of children involved in armed conflicts. Many initiatives came from the UN system.

The ICC is increasingly participating in the effort to end impunity and prevent international crimes against children. Part of its engagement with this policy is found in the Strategic Plan 2016–2018, where Strategic Goal 2 was dedicated to, “continue to integrate a gender perspective in all areas of the office’s work and to pay particular attention to sexual and gender-based crimes (“SGBC”) and crimes against and affecting children, in accordance with office policies”. The Policy on Children aligns with the Strategic Plan and will contribute to achieving the strategic goals.

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Human Rights and International Criminal Law: An Introduction

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