CRINMAIL 155:
Children and International Justice

In this issue:

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Over five years after the arrest of former Congolese warlord Thomas Lubanga Dyilo and two and the half years after the commencement of his trial in The Hague, the International Criminal Court (ICC) reached a significant milestone when on Friday August 26 2011, the Chamber officially closed the trial phase of the ICC’s first case.

This takes the trial to its final stages—the judges will now retire to begin deliberations before a final trial judgment is delivered “within a reasonable period of time.”  

The Lubanga case is the only case brought before the ICC in which an individual is charged for the recruitment and use of children in armed forces. Read more.

In this context, today's CRINMAIL looks at how violations of children's rights in times of armed conflict are brought before international tribunals.

National courts bear the primary responsibility for prosecuting international crimes, however in many States affected by armed conflict the judicial system is too weak or suffers from fundamentals flaws, such as a lack of independence, to deal with such task.

To address this situation, a number of international courts and tribunals have been set up over the last two decades to combat impunity and restore justice and accountability. The State still bears the primary responsibility for ensuring access to justice for children whose rights have been violated; international courts are only competent when the State is unwilling or unable to investigate or prosecute international crimes.

Crimes against individuals who were children at the time of alleged crimes have rarely been initiated before an international court but some proceedings have been brought before the ICC and the Special Court for Sierra Leone (SCSL).

On the matter of prosecuting children as offenders, the Statute of Rome (what is this?) that established the ICC provides that the ICC shall have no jurisdiction over a child who was under the age of 18 at the time of the commission of the alleged offence.

In the case of Ad hoc tribunals (what is this?) such as the SCSL and the International Criminal Tribunal for the former Yugoslavia, their Statutes did not contain a minimum age of criminal responsibility, but neither of these tribunals indicted anyone under the age of 18. However, early in his tenure, the first Chief Prosecutor of the SCSL stated that as a matter of policy he did not intend to indict persons for crimes committed when they were children, but to indict those most responsible, meaning their adult recruiters and commanders.

The International Criminal Court

The ICC was established by the Rome Statute which came into force in July 2002. It is an independent, permanent court that tries individuals accused of the most serious crimes of international concern: crimes of genocide, crimes against humanity and war crimes.

The ICC also has jurisdiction over the crime of aggression. However, in contrast to the other three crimes, the Court remains unable to exercise jurisdiction over the crime of aggression as the Statute does not define the crime or set out jurisdictional conditions.

The definition was discussed and agreed upon in June 2010. The conditions for entry into force provide that the Court will not be able to exercise its jurisdiction over the crime until after 1 January 2017 when a decision will be made by State Parties to activate the jurisdiction. Read the resolution.

The Rome Statute was the first treaty to make the recruitment of child soldiers a crime under international law. The second Additional Protocol to the Geneva Convention of 1977 and the Convention on the Rights of the Child (1990) created an obligation on the part of States to refrain from recruiting child soldiers, but did not make it a crime.

In its definition of war crimes the Rome Statute includes “conscripting or enlisting children under the age of fifteen years into national armed forces or using them to participate actively in hostilities” (Article 8(2)(b)(xxvi)); and in the case of an internal armed conflict, “conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities” (Article 8(2)(e)(vii)).

When drafting the treaty, delegates agreed that the terms “using” and “participate” would prohibit not only children’s direct participation in combat, but also their active participation in military activities linked to combat such as scouting, spying, sabotage, and the use of children as decoys, couriers, or at military checkpoints.

Also prohibited is the use of children in “direct” support functions such as carrying supplies to the front line. The Rome Statute also defines sexual slavery as a crime against humanity (Article 7(1)(g)).

In 2004 the ICC announced that it was initiating investigations into crimes committed in the course of armed conflicts in Northern Uganda and Democratic Republic of Congo (DRC), where thousands of child soldiers are still being used.

The ICC's first prosecution came in 2006 when Thomas Lubanga Dyilo, the leader of a militia group based in the northeast of the DRC, was transferred to The Hague. He is charged with forcibly recruiting boys and girls under the age of 15 to fight with his militia from July 2002 to the end of 2003. Trial updates.

Visit the International Criminal Court website.

The Special Court for Sierra Leone

The Special Court for Sierra Leone (SCSL) was set up jointly by the Government of Sierra Leone and the United Nations in 2002, when the country emerged from 11 years of civil war. It is mandated to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.

It completed its work at the end of 2009. Its remaining case, the trial of Charles Taylor, continues in The Hague.

The SCSL was the first international tribunal to prosecute individuals for recruiting and using child soldiers during conflict.

The prosecutor of the SCSL issued its first indictments in 2003. They included charges of conscripting, enlisting or using boys and girls under the age of 15 to participate in hostilities.

Between June and August 2007, the SCSL handed down verdicts against three accused men from the rebel Armed Forces Revolutionary Council (AFRC) and Allieu Kondewa a former leader of Sierra Leone's Civil Defence Forces Militia. They were found guilty of different counts including the recruitment and use of child soldiers.

These were the first convictions by a UN-backed tribunal for the crime of recruiting and using child soldiers. This represented a ground-breaking step toward ending impunity for commanders who exploit hundreds of thousands of children as soldiers in conflicts worldwide.

Former Liberian president Charles Taylor was indicted by the SCSL in 2003 on 11 counts, including the use of child soldiers. In 2006 he was arrested and transferred to the Special Court in the Hague, Netherlands, under an agreement with the International Criminal Court. The trial began in January 2008 and the prosecution rested its case in February 2009. Trial updates.

In February 2009, Issa Hassan Sesay, Morris Kallon and Augustine Gbao, the most senior surviving commanders of the Revolutionary United Front (RUF) were found guilty of various war crimes and crimes against humanity, including the recruitment of child soldiers. They received jail terms of between 25 and 52 years.

Visit the website of the SCSL

ICC Quiz!

Sources: Child Soldiers International, SRSG on children and armed conflict, the coalition of the International Criminal Court,The Lubanga Triel website

Also see the new publication by the Special Representative of the Secretary-General for Children and Armed Conflict: Children and Justice During and in the Aftermath of Armed Conflict

UN Expert submits annual report on Children and Armed Conflict

The Special Representative of the Secretary-General for children and armed conflict, Radhika Coomaraswamy, has published her annual report to the Human Rights Council and presented it during an open discussion on 12 September, during the 18th session of the Human Rights Council. Download the report.

The Special Representative highlighted how children continue to be disproportionately affected by armed conflict and have their basic rights violated.

She also discussed the complex issue of accountability of children involved in armed conflict and children's access to justice, by examining how the current system enables child witnesses and victims to give evidence against perpetrators. Read more

A new Somali roadmap to peace

Twenty years of armed conflict in Somalia have taken a massive toll on civilians  who are victimised by violence, abuse, disease and poverty. Women and children have borne the brunt of the suffering. In recent months, fighting has intensified between opposition rebel fighters al-Shabab and the fighters of the Transitional Federal Government (TFG). Read more.

In addition to the armed conflict, children in Somalia are facing a desperate crisis caused by prolonged drought, soaring food prices and conflict. The United Nations has formally declared a famine in parts of southern Somalia. Tens of thousands of Somalis are estimated to have died and more than 3.2 million are facing severe food shortages following one of the most devastating droughts in the Horn of Africa in six decades.

Last week, a Roadmap was agreed at the end of the UN-backed consultative meeting. The plan spells out priority measures to be implemented by the current transitional government in the areas of security, writing a constitution, reconciliation and good governance.

Early last month Al-Shabab insurgents withdrew from Mogadishu under pressure from the 6,200-strong UN-backed African Union Mission in Somalia (AMISOM), a move that provided what the UN Secretary General called an “extraordinary moment” of opportunity for progress in a country that has not had a functioning national government since Muhammad Siad Barre’s regime collapsed in 1991. Read more.

SUDAN: Southern Kordofan civilians tell of air strike horror

The Sudan Armed Forces (SAF) are indiscriminately bombing civilian areas in the Nuba Mountains region of Southern Kordofan and preventing aid from reaching displaced people, Amnesty International and Human Rights Watch have said. Read the article.

Peacekeepers serving with the joint United Nations-African Union mission in Darfur (UNAMID) held a public awareness campaign last week about the risks posed by unexploded ordnance (UXO) in the wake of the recent deaths of two children who had been playing with ordnance.

UXO is a serious problem in Darfur, littering the landscape as a result of the protracted conflict between rebels, Sudanese Government forces and allied militiamen.

Last month a 14-year-old girl from a village in South Darfur had to have her right hand amputated and suffered wounds to her neck and face as a result of a UXO. Read more.

The United Nations is calling for an immediate end to Sudanese Government air attacks on civilian populations. 

THE LAST WORD

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