Ukraine Symposium – War Crimes against Children

For the 452 million children living in conflict zones (1 in 6 globally), the effects of conflict are multiple, wide-ranging, and devastating. With an increase in asymmetric warfare globally, children are targets of horrific acts of violence, including killing, conscription, rape, sexual slavery, unlawful detention, abduction, disappearance, and torture. Millions of children every year are also killed and maimed in indiscriminate onslaughts against civilian populations and civilian objects. Schools and hospitals are too often illegitimately targeted.

Owing to their unique vulnerabilities related to age, capacity, and dependency on adults, children suffer egregious harms from crimes during conflict. In more than 30 conflict situations since 2005, the United Nations Security Council-created monitoring and reporting mechanism (“MRM”) has verified 266,000 cases of grave violations against children across Africa, Asia, the Middle East, and Latin America.

Systemic Accountability Failings

Despite these grueling numbers, investigations, and prosecutions of crimes affecting children have not received the attention from States that they deserve. It is to be recalled that States bear the principal responsibility of holding perpetrators to account. They must engage with international accountability mechanisms as analyzed in Advancing Justice for Children: Innovations to Strengthen Accountability for Violations and Crimes Affecting Children in Conflict, the recently released report by Save the Children and Oxford University.[1]

These mechanisms include UN fact-finding and investigative bodies and international criminal courts and tribunals set up to serve as complementary accountability tools to domestic processes. However, limited political support from States for accountability weakens the rule of law and undermines long term peace and stability efforts, essential to the safety and development of children. Lack of State support also deprives children of their right to be heard and their access to effective remedies.

Children and the crimes that affect them continue to be excluded from critical discussions of accountability. For example, most mechanisms have effectively failed so far to capture the full scope of children’s intersectional and multi-dimensional experiences in conflict settings. Most mechanisms have failed to account for the fact that children of different ages, sexual orientation, gender identity and expression, disability, ethnicity, or demography have been targeted and affected differently from one another. They have also neglected the necessary gender- and age-disaggregated analysis. This results in the experiences of children in wars remaining invisible or reduced to few and unrepresentative instances of victimization. The lack of age disaggregated, gender-related data due to poor or non-existent documentation is one of the key obstacles to systematic and thorough documentation investigations and prosecutions of crimes affecting children.

Further, such international accountability mechanisms deny children, who have the intellectual and emotional maturity and capacity, their right to participate in these justice processes. Children, often labelled as too vulnerable, unable to testify, or having inaccurate memories, are left out of international justice processes despite accounting for half or most of the world population affected by conflict. Children are rights-holders whose voices need to be heard and perspectives understood.

The diversity of crimes experienced by children go far beyond sexual and gender-based violence and child recruitment. It is critical that such crimes be recognized to include enslavement, murder, deprivation of liberty, torture, abduction, and crimes that specifically target children, such as attacks on students, teachers, schools, and universities. Currently, such crimes are often not captured by international accountability mechanisms. The Global Coalition to Protect Education from Attack (GCPEA) compiled over 11,000 reports of attacks on education between 2015 and 2019, including attacks on school buildings and over 22,000 teachers and students killed, recruited, raped, or deprived of education in wars. However, perpetrators have only very rarely been investigated and brought to justice for such crimes.

Ukraine is currently in the global spotlight for the devastating impacts of war. On the question of accountability, could harmful trends in accountability be reversed in the case of Ukraine, so that investigation and prosecution of international crimes committed against children will finally become a priority?

Children in the Ukraine-Russia Conflict

Since February 2022, children’s lives in Ukraine have been devastated. Reported civilian casualties, including more than a hundred children killed, continue to grow, with real numbers feared to be much higher than the official record.  An alarming scale of displacement raises further concerns for the 7.5 million children in Ukraine.

Civilian areas and infrastructure have been attacked, including schools and hospitals, and indiscriminate use of explosive weapons, such as ballistic missiles and cluster bombs, has caused mass destruction. Dozens of health care facilities and hundreds educational facilities have been damaged or destroyed including kindergartens and nurseries. The nationwide closure of schools and education institutions has affected the entire school-aged population—5.7  million students between 3 and 17 years old.

Armed conflict started on the Ukrainian territory in 2014. Since 2014, UNICEF and other agencies have reported that the conflict in eastern Ukraine’s Donbas region produced serious consequences for children’s rights. 39 children were killed and 137 injured due to mines and explosives since 2014, and many children have been left with disabilities and invisible psychological scars. Furthermore, between 2014 and February 24, 2022, the conflict in Eastern Ukraine destroyed, damaged, or forced the closure of more than 750 schools. This has disrupted access to education for thousands of children, with many too scared to attend and distressed by the presence of armed soldiers in and around their schools. GCPEA’s Education under Attack 2020 report found Ukraine to be among the countries affected by attacks on education in 2015-2019.

A Global Effort to Guarantee Justice for Children in War

The new ICC Prosecutor, Karim Khan QC, reacted to the Ukraine conflict promptly by opening an ICC investigation into the Situation in Ukraine following 41 referrals by States Parties. The Office of the Prosecutor has launched a portal where information can be submitted, and the Prosecutor and his team have made official visits to Ukraine and Poland. To speed up investigation of potential international crimes committed in Ukraine, the recent appointment of a new Prosecutor provides an opportunity to finally operationalize the Office’s 2016 Policy on Children which comprehensively articulates what it terms “a child-sensitive approach” to accountability for international crimes.

Since his appointment, the new Prosecutor has invigorated efforts to prioritize crimes against and affecting children. The Prosecutor recently confirmed that his Office received the first contributions to the dedicated Trust Fund for Advanced Technology and Specialized Capacity, with a total of 14 States Parties having already made contributions or stated their wish to do so. The first contributions will be in part deployed for dedicated and specialized capacity in investigating crimes against children.

To complement the ICC investigation, other accountability efforts for Ukraine have been established very quickly. This includes an Independent International Commission of Inquiry to investigate all alleged violations of human rights in the context of the Russian Federation’s aggression against Ukraine. The Commission is composed of three human rights experts appointed by the President of the UN Human Rights Council for an initial duration of one year.

In addition, the Eurojust initiative on the investigation of war crimes, crimes against humanity, and other core international crimes committed in Ukraine and the International Court of Justice case  Ukraine v. Russian Federation are also due to examine the Ukraine situation. The ICC’s foundational principle of complementarity to national processes also invites a multiplicity of justice efforts. This means that some States might choose to act if a person suspected of involvement in Ukraine-Russia war crimes were to seek refuge in their country, as seen when Germany recently tried Syrians in its courts on charges of war crimes committed in Syria. Ukraine could prosecute crimes committed in its territory and against its people, consolidating its own domestic process.

The simultaneous pursuit of these different avenues for criminal accountability could facilitate investigations and prosecutions that focus on crimes committed against children and lead to justice for the many boys and girls impacted by the conflict. It is therefore essential for the United Nations Members States and for the Members of the Assembly of States Party to the ICC to support international accountability mechanisms notably in supporting the appointment of child-dedicated expertise so that all alleged abuses, violations, and crimes in Ukraine committed against children can be documented and prosecuted where relevant.

It is clear from past examples that whenever child-dedicated expertise is deployed to support documentation and investigation, the mainstreaming of violations affecting children and the public reporting of crimes affecting children increase significantly. The Commission of Inquiry on Ukraine and the Office of the High Commissioner for Human Rights (OHCHR)—the leading UN entity on human rights which appointed it—should ensure that dedicated expertise and analysis regarding crimes committed against children is included in the work of the Commission, despite the absence of a child rights expert included in the list of positions currently advertised. Child rights expertise should systematically be included in the structure and work of Commissions of Inquiry.

Overcoming Barriers to Accountability Mechanisms

For States and mechanisms to bridge the accountability gap for children in armed conflict and live up to their commitments to hold perpetrators to account, global support should:

(1) ensure that crimes and violations affecting children, including attacks on students and teachers, are systematically enshrined into the mandates of accountability mechanisms and accompanied by the inclusion of child-specific expertise into the structures of these mechanisms;

(2) tackle funding obstacles that deprioritize the deployment of expertise and the provision of training to guarantee the adoption of child-competent approaches to the documentation and investigation of crimes and violations affecting children; and

(3) promote systematic sharing of relevant expertise and the development of effective collaboration strategies between the ICC, all the various UN and regional mechanisms being established, and domestic accountability efforts dedicated to the Ukraine situation, in order to prevent negative experiences for the victims and maximize the chance for successful justice processes.

The Security Council has underscored “the responsibilities of States to end impunity and to prosecute those responsible for genocide, crimes against humanity, war crimes and other egregious crimes perpetrated against children” (UNSCR 1612) and the need “for alleged perpetrators of crimes against children in situations of armed conflict to be brought to justice through national justice systems and, where applicable, international justice mechanisms and mixed criminal courts and tribunals in order to end impunity” (UNSCR 2068). The ICC, all the various UN and regional mechanisms being established, and domestic accountability efforts dedicated to the Ukraine situation must ensure that crimes against children is at the forefront as a priority. The children in Ukraine deserve nothing less.

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Véronique Aubert is the Lead on Children and Armed Conflict at Save the Children UK and Special Adviser on Crimes Against and Affecting Children to the Prosecutor of the International Criminal Court.

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Footnotes

[1] Further details on these solutions  are detailed in Advancing Justice for Children: innovations to strengthen accountability for violations and crimes affecting children in conflict, the recently released report by Save 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). The study identifies strategies and solutions to overcome barriers to the investigation, documentation, and indictment of violations and crimes affecting children in conflict and other situations of protracted armed violence, including war crimes, crimes against humanity, and genocide.

Photo credit: UNICEF/UN0243152/Morris VII