Children have become the unwilling emblems of armed conflict and extreme violence.

Searing images have surfaced in news stories, aid workers’ alerts, and rights groups’ dispatches: a 5 year old pulled from Aleppo rubble, orphans at a Goma children’s center, a young Colombian woman struggling to readjust after years as a child soldier, and, face down on a Turkish beach, a drowned 3-year-old refugee. Images of this nature were shown yesterday at the International Criminal Court, during the opening statement in Ongwen, with Prosecutor Fatou Bensouda herself warning “that some of these images are extremely disturbing.”

There is no better time than now to press for strategies both to combat such harms and to bring the persons responsible to justice. Presenting an important step toward those goals is the Policy on Children of the International Criminal Court Office of the Prosecutor.

Prosecutor Bensouda launched the Policy on Children at an event during last month’s meeting of the ICC Assembly of States Parties. Bensouda quoted from the U.N. expert Graça Machel’s pathbreaking 1996 report on children and armed conflict, then commented:

“[I]t is indeed unconscionable that we so clearly and consistently see children’s rights attacked and that we fail to defend them.
“It is unforgivable that children are assaulted, violated, murdered and yet our conscience is not revolted nor our sense of dignity challenged. This represents a fundamental crisis of our civilisation and a failure of our humanity.
“By adopting the Policy on Children, which we launch today, we at the Office of the Prosecutor seek to ensure that children suffering the gravest injustices are not ignored. That through the vector of the law, we do what we can to protect and advance the rights of children within the framework of the Rome Statute.”

Leading the event was journalist Zeinab Badawi. Among the many others who offered live or video interventions were: Mamadou Ismaël Konaté, Mali’s Minister of Justice and Human Rights of the Republic of Mali; Zeid Ra’ad Al Hussein, U.N. High Commissioner for Human Rights; Leila Zerrougui, Special Representative of the U.N. Secretary-General for Children and Armed Conflict; Angelina Jolie, Special Envoy of the U.N. High Commissioner for Refugees; Nobel Peace Prizewinner Leymah Gbowee; Lieutenant General Roméo-Dallaire, Founder of the Roméo Dallaire Child Soldiers Initiative (see also IntLawGrrls post by Kirsten Stefanik); Marc Dullaert, Founder of KidsRights and the Netherlands’ former Children’s Ombudsman; and Coumba Gawlo, U.N. Development Programme Goodwill Ambassador and National Goodwill Ambassador for the U.N. High Commissioner for Refugees.

I am honored also to have offered brief remarks – and am especially honored to have assisted in the preparation of this Policy in my capacity as the Prosecutor’s Special Adviser on Children in & affected by Armed Conflict, working alongside a dedicated Office of the Prosecutor team led by Shamila Batohi, Gloria Atiba Davies, and Yayoi Yamaguchi. Preparation included experts’ gatherings at the University of Georgia School of Law Dean Rusk International Law Center, at Leiden Law School, and at the ICC itself, as well as consultations around the globe with young persons who had endured armed conflict. (Legal research produced by my students, in seminars on Children & International Law and through the work of the Georgia Law Project on Armed Conflict & Children, also was invaluable.)

The result is a Policy on Children spanning 47 pages, published simultaneously in Arabic, English, French, Spanish, and Swahili. Identifying children as persons under eighteen (paragraph 16), it covers a gamut of issues related to children and the work of the Prosecutor; for example, general policy, regulatory framework, and engagement with children at all stages of the proceedings. Among many other landmarks, the Policy:

► Embraces a child-sensitive approach grounded in the 1989 Convention on the Rights of the Child, a treaty ratified by every U.N. member state save one: the United States, which is also an ICC nonparty state. (My remarks happily noted that my other state of citizenship, the Republic of Ireland, is a state party to both the Child Rights Convention and the ICC’s Rome Statute.) Paragraph 22 of the Policy on Children thus states:

“In light of the foregoing, the Office will adopt a child-sensitive approach in all aspects of its work involving children. This approach appreciates the child as an individual person and recognises that, in a given context, a child may be vulnerable, capable, or both. The child-sensitive approach requires staff to take into account these vulnerabilities and capabilities. This approach is based on respect for children’s rights and is guided by the general principles of the 1989 Convention on the Rights of the Child: non-discrimination; the best interests of the child; the right to life, survival and development; and the right to express one’s views and have them considered.”

► Views children, like all human beings, as multi-faceted individuals and, simultaneously, as members of multi-generational communities. (See, for example, paragraph 100.) Paragraph 25 states:

“Children, by the very fact of their youth, are frequently more vulnerable than other persons; at certain ages and in certain circumstances, they are dependent on others. Notwithstanding any vulnerability and dependence, children possess and are continuously developing their own capacities – capacities to act, to choose and to participate in activities and decisions that affect them. The Office will remain mindful, in all aspects of its work, of the evolving capacities of the child.”

► Acknowledges in paragraph 17 “that most crimes under the Statute affect children in various ways, and that at times they are specifically targeted” – and then pledges that “the Office will, in order to capture the full extent of the harm suffered, seek to highlight the multi-faceted impact on children, at all stages of its work.” The regulatory framework thus enumerates a range of crimes against and affecting children:

• recruitment and use by armed forces and armed groups of children under fifteen as war crimes (paragraphs 39-43);
• forcible transfer of children and prevention of birth as acts of genocide (paragraphs 44-46);
• trafficking of children as a form of enslavement constituting a crime against humanity (paragraphs 47-48);
• attacks on buildings dedicated to education and health care as war crimes (paragraph 49);
• torture and related war crimes and crimes against humanity (paragraph 50);
• persecution as a crime against humanity (paragraph 50); and
• sexual and gender-based violence as war crimes and crimes against humanity (paragraph 52).

► Details the Office’s plan for applying the child-sensitive approach, with respect both to all stages of proceedings, including preliminary examinations, investigations, and prosecutions, and to cooperation and external relations, institutional development, and implementation.

Even as cases involving crimes against and affecting children, like Ongwen, go forward, the Office is working on implementation of its new Policy on Children. The implementation phase will include developing versions of the Policy accessible to children. I’m looking forward to the opportunity to contribute this phase – and to hearing others’ views on the Policy.

(Cross-posted from Diane Marie Amann)

THE HAGUE, Netherlands – Experts gathered this week from around the world for a wide-ranging consultation on the International Criminal Court Office of the Prosecutor’s draft Policy on Children.

In her Opening Remarks to Monday’s consultation, Prosecutor Fatou Bensouda explained:

“This Policy, once finalised and adopted, will guide my Office in our ongoing efforts to address international crimes against or affecting children under the Rome Statute, as well as our interaction with children during the course of our work.

“The Policy will further provide clarity and transparency on how we intend to methodologically undertake this crucial work.

“Additionally, it is my hope that this Policy will also serve as a useful guide for national authorities and other actors in their respective endeavours to address crimes against and affecting children, and in their interactions with children in judicial processes.”

Released last month, the draft Policy:

► Reaffirms an oft-repeated commitment of the Prosecutor. To be precise, the Policy reinforces her Office’s concern for “children with weapons” – that is, persons under fifteen who have been recruited or used in armed groups, often called “child soldiers.” But it also details the Office’s concern for what the Prosecutor called “children affected by the weapons” – that is, all persons who, before their 18th birthday, endured crimes within the jurisdiction of the Court.

► Adopts a child-sensitive approach to its dealings with children. That approach recognizes children as both vulnerable and capable, as both needy and resilient – often, at the same time. The Policy pledges sensitivity to these realities according to the regulatory framework of the Rome Statute system, and also according to principles drawn from international instruments, like the 1989 Convention on the Rights of the Child, a treaty that enjoys near-universal ratification and is founding on 4 guiding principles:

1. The child’s right to be treated without adverse discrimination;
2. The right to life, survival, and development;
3. The right to have the child’s best interests taken into account; and
4. The child’s right to express views and have them considered.

The draft Policy on Children (available in full here) explicitly recognizes those principles and sets out the contours for respecting and ensuring them.

It thus enumerates crimes against and affecting children. Included are crimes of conscription and use, as well as child trafficking as enslavement and forcible transfer as genocide. Also included are crimes like persecution, if it targets children on the basis or age or birth, as well as attacks on schools.

The policy further details the approach of the Office with respect to children at all stages of the proceedings: preliminary examinations, investigations, prosecutions, sentencing, and reparations.

All these aspects received discussion at Monday’s consultation; some are reflected in tweets available at #EndCrimesAgainstChildren. The policy working group will be considered along with other public comments. The Office welcomes additional such comments, which should be sent via e-mail to OTPLegalAdvisorySection@icc-cpi.int no later than Friday, August 5, 2016. The Office anticipates final publication in October of this year.

It was an honor to take part in this consultation in my capacity as the Prosecutor’s Special Adviser on Children in & affected by Armed Conflict – and also to be accompanied at the consultation by one of my Georgia Law students, Chanel Chauvet. (We’re pictured below in front of a mural at the ICC’s new permanent premises.) A  rising 2L and Dean Rusk International Law Center Student Ambassador, Chanel just completed a weeklong Hague summer school on international humanitarian law.

(Cross-posted from Diane Marie Amann)