The ICC jurisprudence on international crimes affecting children: a mixed outcome

Let’s move now to the realm of international criminal law to see how international courts, tribunals, and so on have dealt with the issue of children involved in the commission of international crimes. In the jurisprudence of the two tribunals for former Yugoslavia and Rwanda, there is no specific, you know, attention to the role of children as perpetrators or as victims of international crimes. More interesting from this perspective was the jurisprudence of the Special Court for Sierra Leone. In the ICC statute, when in the articles that, you know, define the crimes under the jurisdiction of the court, There are some provisions that specifically target children. In particular, enlisting, recruiting, and using in combat children under 15 years old is a war crime.

And also the prevention of birth and forcible transfer of children from one group to another can be a form of genocide. Sexual slavery, enforced sterilization, and forced pregnancy are also war crimes and/or crimes against humanity. And these are all crimes that may affect children. And of course, also many provisions in Article 8 concerning war crimes cover situations, crimes that disproportionately affect children. For example, attacks, bombing on schools, on hospitals, buildings that normally host children. Many of these provisions concern not only international conflicts, but also internal armed conflicts.

Regarding the threshold of 15 years established by the ICC to define the crime of enlistment, conscription, and use of children in combat, it’s worthy to say that these provisions are not aligned with the protocol of 2002, which is more progressive. The ACC is also committed to provide personnel, judges, staff, etc., with a special expertise on children’s issues. Staff, for example, in the Witness and Victims Unit, has to do with traumatized children and they have to, you know, implement all measures that can help these persons psychologically and also physically not to have a double trauma after the encounter that they have with investigators or other personnel of the court.

The ICC rules on procedure and evidence also support, not only the task of the ACC to achieve truth, but also this commitment to preserve the well-being, welfare, and the rights of children. The ICC’s first case against Thomas Lubanga Dyilo, that we have already discussed in Week Two, include the charge of war crimes for enlisting, conscripting, and using children actively to participate in hostilities in the Democratic Republic of Congo During the period of abduction, children– sexual violence was used on children to control and establish the ownership over them. Regrettably however, as we recall in Week 2 of this MOOC, the Court did not rule on the allegation of sexual violence because this charge were not included in the indictment.

With the Ntaganda case, the ICC set an important precedent in jurisprudence because it recognized that rapes and sexual enslavement, and so on, can be committed against children, child soldiers, also by the same members of the of the group to which the children belonged. We will see in the next months, hopefully, which is the–which will be the sentence imposed on Ntaganda, which has been convicted already and which kind of reparations will be given to the children–the victims.

Another case that we will analyze during this week is the Ongwen case about war crimes committed in Uganda This case is particularly challenging because it’s the first time that the former child soldier is prosecuted before the ICC and it’s the first time that an adult, an accused, face the charges for the same crime perpetrated against him. So this complexity of the ongoing case challenges the binary logic in criminal law and in general, international law. That’s why, probably, we have to maintain this link between international crime–criminal law and criminal law in general, and the attention to the, let’s say, human rights dimension of the prosecutions and also trials.

So the same persons may be guilty and innocent, can be victims and perpetrators. This is a dimension that we have to keep in mind when addressing these situations of crimes –even when victims of these crimes are children.