Justice for Children in the Future Convention on the Prevention and Punishment of Crimes Against Humanity

Children and Crimes Against Humanity Coalition

I. Introduction: Children and Crimes Against Humanity

A new treaty on crimes against humanity should more effectively address crimes against children. This paper proposes how the future convention could better integrate comprehensive prevention, protection, justice, and reparation for child victims of crimes against humanity.

Justice for Children in the Future Convention on the Prevention and Punishment of Crimes Against Humanity

Nearly one third of the world’s population is under age 18. Approximately one in six children live in situations of armed conflict, and of those, some 149 million live in “high intensity” conflict zones. Children are also affected by other forms of organized, large-scale violence, including at the hands of non-state armed actors operating in non-conflict situations.

Children are among the victims of every act currently considered a crime against humanity: They are murdered, exterminated, enslaved, deported or forcibly transferred, imprisoned, tortured, raped, sexually enslaved, forcibly prostituted, forcibly impregnated, forcibly sterilized and subjected to other forms of sexual and reproductive violence, persecuted, forcibly disappeared, subjected to apartheid, and subjected to other inhumane acts. Children may suffer from other acts of similar gravity, including forced marriage, slave trade, and recruitment and use. Children may be specifically targeted for these crimes because of their age and on multiple and intersecting other grounds such as race, ethnicity, nationality, political opinion, culture, socio-economic status, religion, gender (including gender identity and sexual orientation), caste, indigenous status, disability, or presumed association with an armed force or armed group.

Because children are developing rapidly, crimes against humanity may damage children’s physical and psychosocial development and affect their mental health more severely than adults, as well as cause lifelong economic and social harm. Children may suffer from witnessing crimes against parents or caregivers and being born of rape. Children subjected to deportation or forcible transfer may experience unique harms from family separation and the denial of the right to education and identity. Harm caused by these crimes can affect successive generations beyond those who directly experience the atrocities.

Under international law, children are independent rights holders and additionally enjoy a distinct set of rights related to their age. Children have a right to be heard in judicial proceedings that affect them, and are entitled to special care and protection necessary for their safety and well-being, as well as measures to promote their physical and psychological recovery and social reintegration, with the child’s best interests as a primary consideration.

Historically, justice mechanisms have taken an adult-centric approach to the investigation and prosecution of international crimes. International investigations and documentation have often been blind to the breadth of children’s experiences in mass atrocity settings, to their evolving capacities, and to the different ways in which they are victimized. Reparation initiatives often exclude children, and when programs do exist, children’s rights and needs are almost entirely overlooked.

The Rome Statute of the International Criminal Court (ICC), which forms the basis for the crimes against humanity definitions in the current Draft Articles on Prevention and Punishment of Crimes against Humanity (the “draft articles”), contains a number of provisions aimed at ensuring a focus on crimes affecting children. However, in practice, the court has too rarely engaged children as victims and witnesses. Even where it has prosecuted cases affecting children, the court has not ensured that the crimes against or affecting children are sufficiently visible. As noted by the ICC prosecutor: “historically, [children] have remained largely invisible in the halls of international criminal justice. This includes at the International Criminal Court.”

Since the drafting of the Rome Statute, much more has been learned about how children are targeted and uniquely harmed because of their age. More, too, has been learned about how to make justice processes accessible and safe for children, including most recently in the ICC’s Office of the Prosecutor’s 2023 Policy on Children.

The future convention offers a crucial opportunity to better provide children suffering crimes against humanity with justice by 1) better capturing the scale and effects of the crimes committed against them, and 2) ensuring that justice and reparation mechanisms are accessible to and specifically crafted for children and safeguard their rights and best interests. This paper’s proposals are in line with the general principles recognized in the Convention on the Rights of the Child and the recently adopted UN Secretary-General’s Guidance Note on Child Rights Mainstreaming.

To complement the recommendations provided in this brief, states should seek meaningful participation of child victims and witnesses, taking into consideration the best interests of the child.