If children are not prosecuted for war crimes, are they more likely chosen by warlords to perform the worst atrocities?
Some 300,000 combatants under age 18 – some as young as six and 40% of them girls – are illegal recruits in more than 30 conflicts around the world, experts say in a new United Nations University book that explores accountability for war crimes by children without indirectly exposing them to even more dangerous combat assignments.
Co-edited by Vesselin Popovski and Karin Arts, the landmark book, "International Criminal Accountability and Children's Rights," (publisher: TMC Asser Press, The Hague, Netherlands; distributor: Cambridge University Press), argues that criminal responsibility for children's war crimes lies with the adults who enlist them and that children can be held accountable in ways that serve both justice and the child's interests in the short and long terms.
Launched in Tokyo Weds. Oct. 25 by Under Secretary-General Hans van Ginkel, Rector of UNU, at ceremonies to mark United Nations Day the book says recognizing the needs and rights of children within international war crime accountability mechanisms has only recently attracted attention.
Child soldiers usually are made to commit serious crimes alongside adult soldiers in such strife-torn places as Darfur, the Congo, Sierra Leone, Philippines, Nepal and Colombia. But there are cases of child soldiers clearly in control of their actions, "who were not coerced, drugged or forced into committing atrocities. Some have become child soldiers voluntarily and committed atrocities of their own discretion.
"Shall juveniles committing war crimes be prosecuted? If not, is there a danger that warlords may delegate more atrocities to be committed by child soldiers?"
"One may argue that child recruitment into armed forces is in itself a war crime, and that child soldiers are overwhelmingly victims rather than perpetrators and should therefore not be prosecuted," the authors say. "Yet such impunity may encourage military commanders to delegate the 'dirtiest' orders to child soldiers. In that way, a decision not to prosecute child perpetrators would indirectly expose child soldiers to more risks rather than protecting them."
The authors argue that "there may be situations where it could be in the interest of children to be held accountable," but international courts are not the place. "These are not matters for an international court, which is more of an opportunity to bring to justice leaders and architects of crimes who would otherwise escape from justice in unwilling or incapable states."
For children, "accountability does not necessarily involve criminal responsibility … a wide range of other options exist," including, for example, specialized participation in post-conflict truth and reconciliation tribunals and peace-building exercises.
"Forcing children into armed combat is one of the most reprehensible acts imaginable," says UN Under Secretary-General Hans van Ginkel, Rector of UNU. "How best to deal with those involved, warlord and child alike, is a matter of importance for all UN member states and this book makes a major contribution by capturing thoughts on the matter of some of the world's most authoritative experts."
According to the book, girls represent up to 40% of the estimated 300,000 children associated with armed groups and, though they remain largely invisible, many are engaged in direct combat.
Save the Children says that in 2002, nearly half the girls associated with armed groups in the Democratic Republic of Congo (DRC) described their primary role as "fighting." A large majority suffers severe sexual violence.
"The trauma and stigma attached to such violence often makes it very difficult for them to open up with their experiences once the conflict has calmed down. Girls returning home are often marginalized and excluded from their communities. They are viewed as violent, unruly and promiscuous.
"If post-conflict measures such as disarmament, demobilization, reintegration, educational programs or refugee camp management fail to recognize these realities, the girls involved might be discriminated against as the programs or facilities offered will not be accessible to them. In practice, less than 2% of the children participating in the DRC programs were girls."
The authors also explore the challenge of exposing children as victims and witnesses in criminal tribunals for most serious crimes, such as genocide and crimes against humanity. Children are often crucial witnesses, especially in cases relating to the recruitment of child soldiers, abduction and other crimes that explicitly target children. However, such exposure may exacerbate trauma and "child-specific measures of protection must be woven into the law and practice of the tribunals."
The authors note that courts are developing special measures and elaborating policies for working with child victims and witnesses.
"In all actions, whether undertaken by social welfare institutions, courts of law, or administrative or legislative bodies, the best interests of the child shall be the primary consideration."
"The principles of the child-rights based approach--best interests of the child, participation and nondiscrimination – jointly construct a formidable challenge for all possible criminal accountability mechanisms, international and domestic."
In addition to their recruitment as soldiers, UNICEF research reveals a range of devastating impacts on children of armed conflicts in the last decade: more than two million killed; more than six million permanently disabled or seriously injured; an estimated 20 million children forced to flee homes; more than one million orphaned or separated from their families.
The children suffer directly as victims of atrocities and indirectly, "as their childhood, education, family life and expectations are ruined," the authors say.
The authors note that the international criminal tribunal for the former Yugoslavia gave stiffer sentences to suspects based mostly on the fact that many children were among the victims, a precedent that "must be further followed and strengthened."
Vesselin Popovski is Director, Studies on International Order and Justice, UNU Peace and Governance Programme, Tokyo, Japan. Karin Arts is Associate Professor, International Law and Development, Institute of Social Studies, The Hague, The Netherlands.
United Nations University
Established by the U.N. General Assembly in 1973, United Nations University is an international community of scholars engaged in research, advanced training and the dissemination of knowledge related to pressing global problems. Activities focus mainly on peace and conflict resolution, sustainable development and the use of science and technology to advance human welfare. The University operates a worldwide network of research and post-graduate training centres, with headquarters in Tokyo.
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