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The Policy on Children of the ICC Office of the Prosecutor: Toward greater accountability for crimes against and affecting children

Published online by Cambridge University Press:  21 February 2020

Abstract

The Policy on Children published by the International Criminal Court (ICC) Office of the Prosecutor in 2016 represents a significant step toward accountability for harms to children in armed conflict and similar situations of extreme violence. This article describes the process that led to the Policy and outlines the Policy's contents. It then surveys relevant ICC practice and related developments, concluding that despite some salutary efforts, much remains to be done to recognize, prevent and punish the spectrum of conflicted-related crimes against or affecting children.

Type
Legal protections for children
Copyright
Copyright © icrc 2020

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Footnotes

*

As Special Adviser, the author assisted in the research, drafting and implementation of the Policy discussed in this article; however, the article itself is written solely in her personal capacity.

References

1 Helena Smith, “Shocking Images of Drowned Syrian Boy Show Tragic Plight of Refugees”, The Guardian, 2 September 2015, available at: www.theguardian.com/world/2015/sep/02/shocking-image-of-drowned-syrian-boy-shows-tragic-plight-of-refugees. All internet references were accessed in December 2019.

2 See Richard Hall, “Children of Foreign Isis Fighters in Syria Are ‘Among World's Most Vulnerable’ and Should Be Brought Home, Says UN”, The Independent, 22 May 2019, available at: www.independent.co.uk/news/world/middle-east/isis-children-shamima-begum-syria-foreign-islamic-state-un-a8925601.html; Jonathan Kolieb, “When Soldiers Go Back to Being Children”, Foreign Policy, 12 December 2018, available at: https://foreignpolicy.com/2018/12/12/when-soldiers-go-back-to-being-children/; Kevin Ponniah, “Syrian Conflict: Why Are Children So Badly Affected in Aleppo?”, BBC News, 26 September 2016, available at: www.bbc.com/news/world-middle-east-37472975; Declan Walsh, “Yemen Girl Who Turned World's Eyes to Famine Is Dead”, New York Times, 1 November 2018, available at: www.nytimes.com/2018/11/01/world/middleeast/yemen-starvation-amal-hussain.html.

3 See, for example, Stein, Nancy Lipkin and Renteln, Alison Dundes (eds), Images and Human Rights: Local and Global Perspectives, Cambridge Scholars Publishing, Newcastle upon Tyne, 2017Google Scholar; Fehrenbach, Heide and Rodogno, Davide, “‘A Horrific Photo of a Drowned Syrian Child’: Humanitarian Photography and NGO Media Strategies in Historical Perspective”, International Review of the Red Cross, Vol. 97, No. 900, 2016Google Scholar. Discussion of this important issue is beyond the scope of this article.

4 Office of the Special Representative of the Secretary-General for Children and Armed Conflict, The Six Grave Violations Against Children During Armed Conflict: The Legal Foundation, October 2009, updated November 2013, p. 9, available at: https://childrenandarmedconflict.un.org/publications/WorkingPaper-1_SixGraveViolationsLegalFoundation.pdf.

5 See the Global Coalition to Protect Education from Attack website, available at: http://protectingeducation.org/ (including the text of the 2014 declaration, formally named the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict, as well as a list of endorsers). See also Ferrelli, Ashley, “Military Use of Educational Facilities during Armed Conflict: An Evaluation of the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict as an Effective Solution”, Georgia Journal of International and Comparative Law, Vol. 44, No. 2, 2016Google Scholar.

6 See the Vancouver Principles, available at: www.vancouverprinciples.com (including the text of the principles and a list of endorsers).

7 ICRC, “Children”, available at: www.icrc.org/en/war-and-law/protected-persons/children (listing relevant treaties and customary international law). See Convention on the Rights of the Child, 1577 UNTS 3, 20 November 1989 (entered into force 2 September 1990) (CRC). All UN member States have ratified this treaty except for the United States, which is also an ICC non-party State.

8 SCSL, Prosecutor v. Taylor, Case No. SCSL-03-01-A, Appeals Judgment, 26 September 2013; SCSL, Prosecutor v. Norman – Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Case No. SCSL-2004-14-AR72(E), 31 May 2004. Both judgments are available at: www.rscsl.org. On the work of the SCSL, see Aptel, Cecile, “Unpunished Crimes: The Special Court for Sierra Leone and Children”, in Jalloh, Charles (ed.), The Sierra Leone Special Court and Its Legacy, Cambridge University Press, New York, 2014Google Scholar.

9 ICC, Prosecutor v. Lubanga, Case No. ICC-01/04-01/06 A 5, Judgment on the Appeal of Mr Thomas Lubanga Dyilo against his Conviction, 1 December 2014. Unless otherwise noted, all ICC documents cited in this article are available at: www.icc-cpi.int. For a discussion of Lubanga, see, for example, Amann, Diane Marie, “Children and the First Verdict of the International Criminal Court”, Washington University Global Studies Law Review, Vol. 12, No. 3, 2013Google Scholar.

10 Fatou Bensouda, “The Incidence of the Female Child Soldier and the International Criminal Court”, keynote speech before the Eng Aja Eze Foundation in New York, 4 June 2012, available at: http://cpcjalliance.org/international-day-african-child/. Notably, that same year saw the issuance by the Extraordinary Chambers in the Courts of Cambodia (ECCC) of a judgment that did discuss a range of children's experiences – a fact seldom remarked upon, perhaps because the counts of conviction were not explicitly framed as crimes against or affecting children. See ECCC, Prosecutor v. Kaing Guek Eav alias Duch, Case No. 001/18-07-2007/ECCC/TC, Appeal Judgment, 3 February 2012, available at: www.eccc.gov.kh/en/.

11 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 17 July 1998 (entered into force 1 July 2002) (Rome Statute), Art. 42(9) (“The Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children”); ICC, “ICC Prosecutor Fatou Bensouda Appoints Patricia Sellers, Leila Sadat and Diane Marie Amann as Special Advisers”, 12 December 2012.

12 ICC Office of the Prosecutor, Strategic Plan June 2012–2015, 11 October 2013, p. 17, para. 32(3).

13 ICC Office of the Prosecutor, Policy on Children, November 2016 (Policy on Children). This article cites only the English version; all five versions are available at: www.icc-cpi.int/Pages/item.aspx?name=161115-otp-policy-children. Published as a paperback booklet, this document was the sixth in a series that the Office had issued. Preceding it were “policy papers” dating to 2007 and covering issues including victims’ participation, preliminary examinations and case selection. See ICC Office of the Prosecutor, “Policies and Strategies”, available at: www.icc-cpi.int/about/otp/Pages/otp-policies.aspx; see also note 18 below. The Office has announced work on at least one other such policy initiative. See ICC, “The ICC Office of the Prosecutor and UNESCO Sign Letter of Intent to Strengthen Cooperation on the Protection of Cultural Heritage”, 6 November 2017. For an analysis of papers that predated the Policy on Children, see Bådagård, Lovisa and Klamberg, Mark, “The Gatekeeper of the ICC: Prosecutorial Strategies for Selecting Situations and Cases at the International Criminal Court”, Georgetown Journal of International Law, Vol. 48, No. 3, 2017Google Scholar.

14 Policy on Children, above note 13, pp. 10–11, paras 13–14 and n. 22. ICC Office of the Prosecutor staffers leading this process were Shamila Batohi and Yayoi Yamaguchi, then the senior and associate legal advisers respectively, and Gloria Atiba Davies, head of the Gender and Children Unit.

15 See ICC, “ICC Prosecutor, Fatou Bensouda, launches Policy on Children: ‘We Must Strengthen Our Resolve to End Impunity for Atrocity Crimes against and Affecting Children’”, 18 November 2016, available at: www.icc-cpi.int/pages/item.aspx?name=pr1257 (including videos of these and other speakers).

16 Policy on Children, above note 13, pp. 6–8, paras 1–4.

17 Ibid., p. 11, para. 15, and p. 12, para. 17.

Ibid

18 ICC Office of the Prosecutor, Policy Paper on Sexual and Gender-Based Crimes, June 2014.

19 See, for example, Cassese, Antonio, Gaeta, Paola and Jones, John R. W. D. (eds), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002CrossRefGoogle Scholar; Triffterer, Otto (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd ed., Beck and Hart, London, 2008Google Scholar; Lee, Roy S. (ed.), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results, Kluwer Law International, The Hague, 1999Google Scholar.

20 Cf. Amann, Diane Marie, “The Post-Postcolonial Woman or Child”, American University International Law Review, Vol. 30, No. 1, 2015, p. 48Google Scholar (criticizing “‘women and children’” conceptualizations and preferring analysis of “the many different hues of human experience”).

21 For example, Malone, Linda A., “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, 2015Google Scholar, and other articles in this symposium issue. See also Amann, Diane Marie, “Children”, in Schabas, William A. (ed.), The Cambridge Companion to International Criminal Law, Cambridge University Press, Cambridge, 2016Google Scholar.

22 Policy on Children, above note 13, pp. 11–12, para. 16 (citing Rome Statute, Art. 26; ICC, Elements of Crimes, 2011, Art. 6(e)).

23 Policy on Children, above note 13, p. 20, para. 40 (observing, in accompanying note 51, that the same age appears in the 1977 Additional Protocols to the Geneva Conventions and the 1989 CRC, but that it has been raised to 18 in more recent treaties, including the 1990 African Convention on the Rights and Welfare of the Child, the 1999 International Labour Organization Convention No. 182 and a 2000 Optional Protocol to the CRC). See the article by Ahmed Al-Dawoody and Vanessa Murphy in this issue of the Review (examining recruitment ages in different legal systems).

24 Policy on Children, above note 13, p. 13, para. 22.

25 See ibid., p. 13, para. 22, n. 29 (quoting UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, para. 9(d) of Annex to ECOSOC Res. 2005/20, available at: www.un.org/ecosoc/sites/www.un.org.ecosoc/files/documents/2005/resolution-2005-20.pdf).

26 Drumbl, Mark A., Reimagining Child Soldiers in International Law and Policy, Oxford University Press, Oxford and New York, 2012, pp. 89CrossRefGoogle Scholar.

27 Policy on Children, above note 13, p. 12, para. 17.

28 Ibid., p. 12, para. 18.

Ibid

29 Ibid., p. 14, para. 25. See also ibid., p. 7, para. 3 (describing generational concerns), and p. 14, para. 24 (listing child rights). See also CRC, Art. 5 (referring to children's evolving capacities).

Ibid

30 Policy on Children, above note 13, p. 16, paras 29–31; see also ibid., pp. 18–19, para. 37.

31 Ibid., p. 16, para. 29, and p. 17, para. 32.

Ibid

32 Ibid., p. 19, para. 38; see also text accompanying above note 17.

Ibid

33 Policy on Children, above note 13, pp. 19–25, paras 39–52.

34 Ibid., p. 12, para. 19 and n. 28 (citing ICC Office of the Prosecutor, above note 18, p. 12, para. 16).

Ibid

35 Ibid., p. 24, para. 51 (quoting Rome Statute, Art. 7(1)(h)).

Ibid

36 See Statement by Virginia Gamba, Special Representative of the Secretary-General for Children and Armed Conflict, “Briefing to the Security Council on the Situation of Children in Syria (Humanitarian)”, 27 July 2018, available at: https://childrenandarmedconflict.un.org/srsgs-briefing-to-the-security-council-on-the-situation-of-children-in-syria/ (stating with regard to the ongoing civil war in Syria that “[r]ape has been used as a means of torture, especially while children were deprived of their liberty”).

37 See UNGA Res. 51/77, “The Rights of the Child”, 20 February 1997, p. 7, para. 35.

38 See Rome Statute, Art. 6 (setting out as the sole chapeau element “intent to destroy, in whole or in part, a national, ethnical, racial or religious group”), Art. 7(1) (detailing the contextual elements of crimes against humanity). “Peacetime” is used advisedly, given the violent essence of genocide.

39 Policy on Children, above note 13, p. 43, para. 116; and see ibid., pp. 41–44, paras 108–125.

40 Ibid., p. 17, para. 33.

Ibid

41 Ibid., p. 29, para. 68, and p. 29, para. 66.

Ibid

42 See ibid., pp. 28–33, paras 63–82, and pp. 35–37, paras. 89–97.

ibid

43 Ibid., pp. 33–34, para. 84; and see ibid., p. 38, para. 100 (detailing how this approach affects the presentation of evidence).

Ibid

44 Ibid., p. 34, para. 88.

Ibid

45 Ibid., p. 39, paras 102–103. Similar phrasing described the determination of gravity at the preliminary examination stage: ibid., p. 26, para. 57. Likewise, any prosecutorial submissions on reparations ought to “contribute to the best interests of children”: ibid., p. 40, para. 106.

Ibid

46 See above note 10 and accompanying text.

47 See ICC, Prosecutor v. Ntaganda, Case No. ICC-01/04-02/06, Decision Pursuant to Art. 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Bosco Ntaganda (ICC Pre-Trial Chamber II), 9 June 2014, paras 36, 74.

48 ICC, Prosecutor v. Ntaganda, Case No. ICC-01/04-02/06-1962, Judgment on the Appeal of Mr Ntaganda against the Second Decision on the Defence's Challenge to the Jurisdiction of the Court in Respect of Counts 6 and 9, 15 June 2017. For a meticulous analysis of this decision, see Sellers, Patricia Viseur, “Ntaganda: Re-Alignment of a Paradigm”, in Pocar, Fausto (ed.), The Additional Protocols 40 Years Later: New Conflicts, New Actors, New Perspectives, International Institute of Humanitarian Law and Franco Angeli, Milan, 2018, p. 116Google Scholar, available at: http://iihl.org/wp-content/uploads/2018/07/The-Additional-Protocols-40-Years-Later-New-Conflicts-New-Actors-New-Perspectives_2.pdf.

49 ICC, Prosecutor v. Ntaganda, Case No. ICC-01/04-02/06-2359, Judgment (Trial Chamber VI), 8 July 2019; ICC, Prosecutor v. Ntaganda, Case No. ICC-01/04-02/06-2442, Sentencing Judgment (Trial Chamber VI), 7 November 2019. At the time of this writing, both judgments are on appeal.

50 ICC, Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-3466-Red, 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), 18 July 2019, para. 37. On Lubanga, see also above note 9 and accompanying text.

51 ICC, Case No. ICC-01/19, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the People's Republic of Bangladesh/Republic of the Union of Myanmar (Pre-Trial Chamber III), 4 November 2019, para. 29.

52 Policy on Children, above note 13, p. 12, para. 17, quoted text accompanying above note 27.

53 ICC, “Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, at the Opening of Trial in the Case against Dominic Ongwen”, 6 December 2016. On this litigation, see ICC, “Ongwen Case: The Prosecutor v. Dominic Ongwen, ICC-02/04-01/15”, available at: www.icc-cpi.int/uganda/ongwen. For a sociological analysis of the issues posed, see Ramos, Carse, “Dominic Ongwen on Trial: Problematizing Definitional Boundaries and Exploring the Possibilities of Socialization”, in Drumbl, Mark A. and Barrett, Jastine C. (eds), Research Handbook on Child Soldiers, Edward Elgar Publishing, Cheltenham, 2019Google Scholar.

54 See ICC, Procureur c. Mathieu Ngudjolo, Case No. ICC-01/04-02/12, Judgment Rendered Pursuant to Article 74 of the Statute (ICC Trial Chamber II), 18 December 2012; ICC, Procureur c. Germain Katanga, Case No. ICC-01/04-01/07, Judgment Rendered Pursuant to Article 74 of the Statute (ICC Trial Chamber II), 7 March 2014, para. 1025, analyzed in D. M. Amann, above note 21, pp. 263–266.

55 ICC, Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Appeals Judgment, 8 June 2018; and see Sadat, Leila Nadya, “International Decisions: Prosecutor v. Jean-Pierre Bemba Gombo”, American Journal of International Law, Vol. 113, No. 2, 2019CrossRefGoogle Scholar.

56 ICC, “Situation in Afghanistan”, public redacted version of “Request for Authorisation of an Investigation Pursuant to Article 15”, ICC-02/17-7-Conf-Exp, 20 November 2017.

57 Ibid., p. 48, para. 87; p. 82, para. 171; pp. 60–62, paras 116–121; pp. 72–75, paras 145–153; p. 79, para. 165; p. 167, para. 343; p. 173, para. 358.

58 ICC, Case No. ICC-02/17-33, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Islamic Republic of Afghanistan (Pre-Trial Chamber II), 12 April 2019; and see Marlise Simons and Megan Specia, “U.S. Revokes Visa of Chief Prosecutor at I.C.C.”, New York Times, 6 April 2019, p. A4.

59 Fatou Bensouda, “Welcome and Opening Remarks, Official Launch of the Office of the Prosecutor's Policy on Children”, 16 November 2016, available at: www.icc-cpi.int/iccdocs/otp/ICC-ProsecutorsSpeechatChildrenSlaunchevent.pdf. See also Oosterveld, Valerie, “The ICC Policy Paper on Sexual and Gender-Based Crimes: A Crucial Step for International Criminal Law”, William & Mary Journal of Race, Gender, and Social Justice, Vol. 24, No. 3, 2018, p. 455Google Scholar (describing the predecessor policy paper as “a noteworthy addition to international guidance to states and others”).

60 International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Application Instituting Proceedings and Request for the Indication of Provisional Measures, 11 November 2019, paras 114, 116, available at: www.icj-cij.org/en/case/178.

61 See Fatima, Shaheed, Protecting Children in Armed Conflict, Hart, Oxford, 2018Google Scholar (describing the Inquiry at pp. 5–7, and setting out the Inquiry's findings and conclusions).

62 See UNSC Res. 2427, 9 July 2018 (condemning such detention, as part of comprehensive resolution on children and armed conflict, and urging “non-judicial measures as alternatives to prosecution and detention”); Report of the Independent Expert Leading the United Nations Global Study on Children Deprived of Liberty, UN Doc. A/74/136, 11 July 2019, available at: https://undocs.org/en/A/74/136.

63 See “Chapter IV: Crimes against Humanity”, in Report of the International Law Commission, Seventy-First Session (29 April–7 June and 8 July–9 August 2019), UN Doc. A/74/10, 2019, pp. 10–140, available at: http://legal.un.org/ilc/reports/2019/english/a_74_10_advance.pdf (setting out a definition virtually identical to that in the Rome Statute, yet omitting, following advocacy by civil society, the Statute's definition of “gender”).

64 See Save the Children, Blast Injuries: The Impact of Explosive Weapons on Children in Conflict, 2019, available at: https://reliefweb.int/sites/reliefweb.int/files/resources/CH1325872.pdf. This report composed a part of a larger advocacy campaign by this century-old non-governmental organization. See Save the Children, “Stop the War on Children”, available at: www.stopwaronchildren.org.

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