Focusing International Justice on Children: The Time is Now

[Alison Smith is the International Justice Director for No Peace Without Justice. She has worked and published on the rights of the child in accountability processes for twenty years, and participated in the consultations leading to the adoption of the OTP Children’s Policy.]

It has been 20 years since the launch of “International Criminal Justice and Children” by UNICEF’s Innocenti Research Centre and No Peace Without Justice. At the time, it was the only book dealing explicitly and exclusively with children and the myriad of ways in which they could become involved with an international criminal justice process. The impetus underpinning the book was the fact that while the disproportionate impact of conflict and violations during conflict on children was well-known, little emphasis was placed on children by accountability and truth-seeking processes. Even less attention had been paid to the intersections between such processes and the rights of the child, to justice, to redress and to participation. The book therefore aimed to describe the applicable legal frameworks and the functions and statutes of justice and truth-seeking mechanisms, including the International Criminal Court, so as to identify questions, explore emerging issues and address the critical gaps in accountability for crimes committed against children.

Since then, it has been heartening to see an expansion of interest in this topic, by practitioners, academics and – crucially – by justice and truth-seeking mechanisms themselves. We have seen children actively engaged in truth-seeking processes and in the investigations carried out by justice mechanisms. As a result, we have seen the experiences of children as victims of crimes under international law reflected in truth commission reports and in the investigations, indictments and judgments of international criminal mechanisms.

Most recently, on 17 March 2023, the International Criminal Court issued two warrants of arrest focusing only on the unlawful deportation and transfer of children, against Vladimir Vladimirovich Putin, President of the Russian Federation, and Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights in the Office of the Russian President. The media (like Associated Press) had reported on the deportation of Ukrainian children to Russia or Russian-held territories without their consent, ultimately giving those children Russian parents and Russian citizenship. It is significant that the first arrest warrant issued in the situation in Ukraine focuses on children and on a crime that violates so many of their rights, including the right to family life and the right not to be separated from their parents against their will.

Yet much still remains to be done. There is still a tendency to prioritise children’s protection over their participation, which can lead to their exclusion, instead of conceptualising protective measures as a means to help children exercise their right to participate. It remains too easy to think that as long as violations against children are recorded and reflected, it is alright that information has been provided by adults or through other means, rather than being expressed by children themselves. And we haven’t even really begun to think about the rights of children who are indirectly involved in justice and truth-seeking mechanisms, for example as children of witnesses, suspects or accused persons, and how their rights should be considered when the system deals with their parents.

There are, however, waypoints that give us an opportunity to look at some of these issues and find better ways forward. One such waypoint is the Children’s Policy of the Office of the Prosecutor of the International Criminal Court, which was adopted in 2016 and is currently under revision. First and foremost, the revision is an opportunity to build on the original consultation process and involve children in the revamping of the policy that is designed to address crimes committed against them, and to protect and promote their rights. To do so will require repackaging the policy in a way that is accessible and speaks to children, which should be done with child education specialists, child communicators and, above all, children themselves. Second, strengthen the perspective of the child as a rights holder – which is already implicitly underpinning the policy – and review the policy through this lens. Children are important actors in the justice process, not only because they represent the future,  but because they have rights that are applicable now, both because of their direct involvement, for example as a victim or witness, but also because of their indirect involvement, for example as a child of a victim, a witness or, indeed, a suspect or accused person. At every stage of the proceedings, the rights of the child should be an integral part of decision-making and a reflexive consideration of all actors.

Above all, a fundamental shift in conceptualisation is needed in how we consider justice and truth-seeking processes. At the macro level, we think of these processes in stages: documentation, investigations, prosecutions, appeals and reparations, to give an example. At the micro level, the ICC is further broken down with numerous actors playing different roles during those phases: pre-investigation documenters, be they civil society or otherwise; OTP investigators; outreach, both Registry and OTP; victim and witness protection; victims participation; Office of the Public Council for Victims; victims representatives; trial lawyers; defence lawyers; judges; Trust Fund for Victims, to name a few. Breaking it down like this helps us conceptualise the justice process and the role of different actors, and to analyse, support and encourage improvement in each.

To a child, however, justice is not categorised neatly into separate boxes. From their perspective, it is one long accountability journey that begins with the shock, horror and bewilderment of violations, or the shock, horror and bewilderment of a parent being accused of violations, and ends at some unknown distant point in the future with many unknown events along the way.  They will encounter many new people along this journey and the OTP Children’s Policy can be an important reference point for everyone to interact with these children with the same operational priorities. At every step, the question should not just be “how does our work comply with the rights of the child”, it should also be “how can our work be implemented in a way that proactively empowers children to exercise their rights”. Children have, often at the same time, resilience and vulnerabilities that need to be taken into account in supporting them to exercise their rights, precisely because they lack the life experience that would help them both know what their rights are and how to demand they be respected. This would help give life to integrating a child rights perspective and would be an innovative way to demonstrate how international justice can act at all times in the best interests of the child.