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ADVANCING JUSTICE for CHILDREN: Innovations to Strengthen Accountability for Violations and Crimes Affecting Children in Conflict

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ADVANCING JUSTICE for CHILDREN: Innovations to Strengthen Accountability for Violations and Crimes Affecting Children in Conflict OXFORD INSTITUTE pax orbis terrarum FOR ETHICS, LAW AND OXFORD PROGRAMME ARMED CONFLICT ON INTERNATIONAL PEACE AND SECURITY ADVANCING JUSTICE FOR CHILDREN: innovations to strengthen accountability for violations and crimes affecting children in conflict RESEARCH PAPER MARCH 2021 2 ADVANCING JUSTICE FOR CHILDREN: innovations to strengthen accountability for violations and crimes affecting children in conflict OXFORD INSTITUTE pax orbis terrarum FOR ETHICS, LAW AND OXFORD PROGRAMME ARMED CONFLICT ON INTERNATIONAL PEACE AND SECURITY Mobile health clinic, Yemen 2016 4 EXECUTIVE SUMMARY Children are among the principal victims of violations of international human rights law and international humanitarian law, including those amounting to core international crimes under international law, such as, inter alia, war crimes, crimes against humanity and genocide. They also constitute half of the world’s forcibly displaced population. The harm inflicted on children in war and other situations of mass violence is egregious. They suffer the full gamut of international crimes, including torture, sexual violence, enforced disappearance, intentional starvation, other inhumane acts, and indiscriminate attacks. They are vulnerable to recruitment and use as child soldiers, a moniker that contains within it a panoply of egregious violations and human rights abuses. Such abuses have a destructive impact on children’s overall well-being, development and mental health. Children benefit from protection under international human rights, humanitarian, and criminal law. However, while preventing, monitoring and responding to violations of children’s rights in conflict have formed part of the United Nations’ (UN) international peace and security agenda for over two decades, their plight has not received comprehensive attention from all UN fact-finding and investigative bodies and international criminal courts and tribunals. Impunity negatively affects children’s right to development and the well-being and stability of communities they live in, and risks influencing negatively the adults they will become. It further affects children’s right to a judicial remedy and reparations and strips them of an opportunity to participate in the judicial process. In 2019, its centenary year, Save the Children launched its Stop the War on Children campaign to reassert the norms, standards, policy, practice and rules relating to the protection of children in conflict.1 The three pillars of this campaign are centred around upholding standards and norms for the protection of children in conflict,holding perpetrators of violations and crimes to account,2 and taking practical action to protect conflict-affected children and to enable their recovery. Against this background,Save 1 Save the Children, ‘Stop the War on Children’. 2 For ease of reference, the term “crimes affecting children” is used throughout this paper to denote both crimes against children that are constituted if the victim is a child (e.g. recruitment and use) and generic crimes against the civilian population that disproportionately affect children (e.g. attacks on hospitals). 5 the Children and the Oxford Programme on International Peace and Security at the Blavatnik School of Government’s Institute for Ethics, Law, and Armed Conflict (ELAC) agreed to a partnership grounded in pillar two of Save the Children’s new strategy, holding perpetrators of violations and crimes affecting children to account. The partnership aimed to generate the insight and analysis required to leverage much-needed change in the way this question is addressed by international criminal justice. Drawing on extensive desk research and the insights of practitioners, academics, and activists working on these issues, we have sought to identify barriers which prevent perpetrators being held to account and meaningful and practical strategies and solutions to overcome or mitigate those barriers. This Research Paper focuses on the investigation and documentation of violations and crimes affecting children, and on the decision to indict.3 Section I of this Research Paper addresses the most commonly identified barriers to the effective investigation, documentation, and indictment of violations and crimes affecting children. Part A briefly addresses the importance of pursuing accountability for crimes and violations affecting children, as well as the need for intersectional approaches – and specifically gender and age-disaggregated analyses – in collecting and evaluating information and evidence for the purposes of investigation, documentation and criminal accountability. It is essential to ensure that children are not rendered invisible by adult- centric approaches to accountability; that they are not ‘un-situated’;4 and that they are not seen as a homogenous group. Capturing the full breadth of their experiences is crucial, in order to understand the reasons why targeting children may be of strategic importance to perpetrators, as well as the intensity and severity of the harm children may suffer. Part B sets out the principal barriers to accountability identified by key experts and through our independent research, which are attitudinal, financial and structural and, in many cases, mutually reinforcing. An analysis of the approach taken by UN fact-finding and investigative bodies, and by international criminal courts and tribunals (hereafter referred to as ‘accountability mechanisms’) to these issues is contained at Annex I. AMONG THE MAIN BARRIERS IDENTIFIED ARE: Overarching and attitudinal barriers, such as: The ‘invisibilisation’ of children both in situations of war/protracted armed violence and in accountability processes; including a level of indifference pertaining to children’s issues, linked in part to the conceptualisation of children as passive objects, lacking in agency and requiring protection; The relative disempowerment of children, compounded by their legal disenfranchisement and their lack of representation in political entities and civil society organisations; 3 While the charges on which an accused will stand trial are subject to judicial confirmation, orf ease of reference the term “to indict” is used in this Research Paper to denote a decision to prosecute. This paper does not address other relevant aspects of accountability such as trial proceedings, truth commissions, reparations, and domestic remedies and institutional reforms. Further, the specific situation of children asperpetrators of international crimes and other serious violations of international human rights and humanitarian law are also not discussed in this paper. 4 Throughout this Research Paper, by ‘un-situated’ we mean not placed in the context of other identifiers (urban/rural; gender; ability; class; age) that inform the analysis and understanding of the experience of particular children in the particular context that is being documented. 6 ADVANCING JUSTICE FOR CHILDREN: INNOVATIONS TO STRENGTHEN ACCOUNTABILITY FOR VIOLATIONS AND CRIMES AFFECTING CHILDREN IN CONFLICT Conditions on the ground, which cannot, however, be solely remedied through the adoption of a child-competent approach; The degree of discretion enjoyed by prosecutors in deciding which charges to pursue, coupled with a lack of prioritisation of the investigation and prosecution of violations and crimes affecting children; and, Limited access to the most probative evidence, which is often quite limited for ‘conduct’ violations as compared to ‘treatment’ violations. Structural barriers, such as: Lack of buy-in by States, compounded by a lack of UN and civil society accountability- focussed constituency, which results in a lack of sustained engagement and prioritisation of accountability for crimes against/affecting children in international fora, and inconsistent funding being provided to build and sustain the expertise needed to deliver such accountability; Failure to sustainably and effectively mainstream child-competent approaches in investigation, documentation, and prosecution strategies both by non-judicial and judicial accountability mechanisms, resulting in a tendency to see such accountability as something warranting additional, thus separate, consideration; Conflation of investigating violations and crimes affecting children with interviewing children, which is something accountability mechanisms often shy away from, for a range of reasons we identify; Resource and bureaucratic constraints, and lack of timely and effective support, which are not exclusive to accountability for crimes and violations affecting children, but rather linked to the design and operationalisation of ad hoc mechanisms (including, among others, drawn-out recruitment processes and other challenges in the ‘start-up’ phase of mandates, and the lack of standardised methodological and operational tools for information collection); Lack of proper child-competent expertise, or the fact that, where expertise is available, it is rarely specific to children or structurally ingrained within accountability mechanisms; Silos and limited cooperation among actors, including among accountability mechanisms, and between accountability mechanisms and other actors and groups conducting documentation on the ground; and, Lack of outreach and engagement with families and communities, which seriously limits the ability to relate and build trust with communities on the ground, and affects the information collection process. In Section II, we analyse which lessons and solutions can be drawn from the pursuit of
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