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LESSON PLAN : The ICC and Children

ARTICLE ON THE ICC & CHILDREN

September 1998, Vol. 5, No. 4

Small Victories Children's rights under the International Criminal Court
By: Karen Austin

Increasingly, children are the victims of war. UNICEF estimates that in the past decade there have been 2 million children killed in situations of warfare, 4-5 million disabled, 12 million left homeless, and more than 1 million orphaned or separated from their parents. Children are particularly vulnerable to the ravages of war because of their inability to resist prolonged trauma. Low food supplies and contaminated waters brought about by warfare also affect children, whose growing bodies need nutrients and are unable to resist infections. In addition, psychological damages affect children for the rest of their lives.

The establishment of the International Criminal Court will help protect children who are victims of war as it will bring to trial perpetrators of some of the worst crimes known to humanity.

The Statute also aims to protect children who are actively involved in armed conflicts and may even be perpetrators of war crimes. In contemporary conflicts, government and armed opposition groups often recruit child soldiers as either support staff or active combatants.

Globally, it is estimated that there are over 250,000 child soldiers. In Rwanda there are 4,000 children being detained for their participation in the 1994 genocide. In Mozambique, close to 10,000 children recruited by RENAMO (Resistencia Nacional Mocambicana/Mozambican National Resistance) were forced to kill their own families and other civilians. In Liberia, 20 percent of total combatants were children under the age of eighteen. Some soldiers have been as young as six.

Because of their age, vulnerability, and immaturity, child soldiers are easy to coerce and control. They can be pushed into violent situations which they are too young to resist. Commanders often force child soldiers to participate in violent acts, sometimes against their own communities, in an attempt to desensitize the children and distance them from their families.

The Rome Statute has two clauses which aim to protect child soldiers. Although they are potential perpetrators of war crimes, their very participation, often under conditions of intimidation and fear, makes them victims as well as offenders. The definition of war crimes includes conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities (Article 8:2e/vii). This clause in the definition of war crimes moves the focus from the child soldier to the child recruiter, who will be liable for prosecution under the jurisdiction of the ICC and is a victory for advocates of childrens rights. It also means that it is a war crime to not only conscript children, but also to use them for purposes other than direct combat.

The inclusion of this clause was not without debate. The Chinese delegation was opposed to any provision against recruiting child soldiers, while several Middle Eastern states wanted only limited legislation concerning children taking part directly in hostilities. Several countries including Russia, Turkey, Brazil, and Cuba favoured even stronger legislation against recruiting child soldiers. The NGO community wanted the minimum age requirement to be raised to 18 years old, although there was opposition to this proposal, especially from the United States, whose army allows 17 year olds to enlist. Because of US insistence, the clause was changed from "recruiting children under the age of fifteen..." to "conscripting and enlisting children under the age of fifteen...". Many fear that this will prevent the Court from prosecuting guerrilla armies who 'recruit' children into their ranks. Although the clause is there, it is weaker than many human rights groups and government delegations had hoped.

In another attempt to protect child soldiers, the ICC Statute states that the Court shall have no jurisdiction over any person who was under the age of eighteen at the time of the alleged commission of a crime (Article 26). There is general agreement among the NGO community that with regards to children committing crimes under the jurisdiction of the ICC, the focus should remain on rehabilitation rather than punishment.

The protection of children and child soldiers under the ICC is a victory for which many delegations and NGOs struggled. Although somewhat diluted, the clauses offer a certain level of protection to children and offer a basis from which it is possible to move forward.

For further information, contact UNICEF (www.unicef.org or the Coalition to Stop the Use of Child Soldiers www.child-soldiers.org).

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