Children and the first verdict of the International Criminal Court.

• Published date: 22 September 2013
• Author: Amann, Diane Marie
• Date: 22 September 2013

Days before she was sworn in as the new Prosecutor, Fatou Bensouda told a New York audience: "In the International Criminal Court, children, including girls, will not be invisible." (1) She affirmed that promise a few months later, pledging on the first-ever International Day of the Girl Child, "I shall continue to include gender crimes and crimes against children in our charges and to bring the full force of the law to bear on those most responsible for them." (2) Bensouda's declarations underscored the degree to which the fate of children in armed conflict has formed a cornerstone of the ICC's early jurisprudence.

This attention to the plight of children marked a notable development in the seven-decade history of international criminal justice. No mention of children appeared in either the 1945 Charter of the International Military Tribunal at Nuremberg or the instrument that set up the subsequent Nuremberg tribunals. (3) The same was true of the Tokyo Tribunal charter and, for that matter, of the Charter of the United Nations. (4) The silence of these post-World War II documents stood in stark contrast with the many references to children in the foundational instrument of the post-Cold War permanent international court. (5)

Drafters explained in the preamble of that last instrument, the Rome Statute, that "for the sake of present and future generations," they undertook to establish the ICC "[m]indful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity." (6) The statute they produced at the 1998 Rome Diplomatic Conference not only required the Prosecutor to "appoint advisers with legal expertise on specific issues, including ... violence against children," but also mandated that in composing the ICC bench, states parties "take into account the need to include judges with legal expertise on ... violence against women or children." (7) At several points, the statute admonished the Prosecutor and other ICC officials to adjust proceedings to accommodate the needs of children. (8) Unlike in the Nuremberg Charter, furthermore, concern for young victims was made explicit in the Rome Statute's enumeration of offenses. Included as one of the five acts that may constitute genocide punishable by the ICC was "[f]orcibly transferring children of" a protected "group to another group." (9) Enslavement, one of eleven acts that may amount to a crime against humanity, was defined in the statute with express reference to the trafficking of children. (10) Finally, the Rome Statute named "©onscripting or enlisting children under the age of fifteen years" into an armed force, "or using them to participate actively in hostilities," as war crimes within the jurisdiction of the ICC. (11)

It was on those last offenses that early prosecutions focused. The war crimes of recruiting and using child soldiers were charged in multiple cases arising out of the situations in Uganda and in the Democratic Republic of the Congo. (12) The ICC's first trial, Prosecutor v. Lubanga, dealt exclusively with those crimes. (13) The experiences of children thus underlay the ICC's first verdict; that is, the conviction, sentencing, and reparations decisions that ICC Trial Chamber I issued in Lubanga in 2012. (14) Examining those three decisions, this Article discusses how Trial Chamber I treated both child soldiering and, more broadly, the issue of children in armed conflict. The Article concludes by touching on prospects for the ICC's future treatment of these matters. In recognition, however, of Ambassador Stephen Rapp's description of international criminal justice as a single project whose roots may be found at Nuremberg, (15) this Article first makes a foray into history.

I. INTERNATIONAL LAW RESPECTING CHILDREN

To say that midtwentieth-century charters made no note of children is by no means to say that the plight of children in World War II went unnoticed. Several thousands were rescued via Kindertransport. (16) Other children were combatants. They fought for Germany; they fought for Russia; and they fought in resistance movements in occupied lands. (17) Many, many children suffered. Select children were forcibly made adoptees of German families, in furtherance of Nazi policies. (18) Children endured forced labor and violence, and children perished, in concentration camps. (19) These facts struck me, if I may speak personally, in a barracks in Austria. In a visit to the Mauthausen concentration camp decades after its liberation, the sight of a mountain of small shoes conveyed, with horrid immediacy, the full tragedy of the Holocaust. The only exhibit that has stirred similar emotion was the secret annex in Amsterdam that gave shelter to Anne Frank. (20) Teenagers made up a fifth of the inmates at Mauthausen, (21) and Frank was fifteen when, having been found and arrested after two years in hiding, she succumbed to typhus at the Bergen-Belsen camp (22) That both wrenching memorials centered on young victims attests to the special grip that children have on what Professor Mark Drumbl, in his book on child soldiers, called the "international legal imagination." (23)

Though conducted according to international charters that omitted mention of children, the post-World II accountability process nevertheless helped to train international attention on how war affects young people. The first Nuremberg judgment referred a dozen times to children. (24) For the most part the tribunal simply mentioned children alongside women and men; an example is its quotation of an affidavit in which Otto Ohlendorf, a Nazi who would incur the death penalty in a subsequent trial, stated that his Einsatzgruppe had "'liquidated approximately 90,000 men, women and children."' (25) Three of the judgment's passages went further, illustrating the special vulnerabilities of childhood. The tribunal wrote in one such passage of the Nazi practice of forcing pregnant slave laborers to abort "if the child's parentage would not meet the racial standards...." (26) In another, it relayed a Nazi leader's boast about the forced-adoption program: "'What the nations can offer in the way of good blood of our type, we will take. If necessary, by kidnapping their children and raising them here with US."' (27) In a third passage, the tribunal focused on conditions in the concentration camps. "'Children of tender years were invariably exterminated since by reason of their youth they were unable to work,"' a Nazi official had stated in an affidavit, from which the tribunal quoted at length. (28) He had continued: "'Very frequently women would hide their children under their clothes, but of course when we found them we would send the children in to be exterminated."' (29)

Direct testimony at the Trial of the Major War Criminals likewise had adduced grim evidence of the unique relationship of children to atrocity. In the following examination, the witness Ohlendorf--the same man whose Einsatzgruppe affidavit is excerpted above--answered questions put to him by the tribunal's Soviet judge, General Iona Nikitchenko:

Q: And in what category did you consider the children? For what reason were the children massacred?

A: The order was that the Jewish population should be totally exterminated.

Q: Including the children?

A: Yes.

Q: Were all the Jewish children murdered?

A: Yes. (30)

Discernible both in this battery of questions and in the judgment passages quoted is a perception that the killing of the youngest, most vulnerable, and most innocent persons constitutes an especially grave transgression, one that society must especially endeavor to prevent and punish. But a very different perception also is discernible: in the minds of genocidaires, survival of the young and innocent carries promise that a group will endure, and thus poses an especial threat to the perpetrators' genocidal project. Given Nuremberg's exposure of this clash of views, it is perhaps not surprising that, even as trials continued, states inserted in postwar legal instruments expressions of particular concern for the fate of children.

Signaling this development were two documents that the U.N. General Assembly adopted in December 1948: the Convention Against Genocide, which first articulated the ban on forcible transfer of children that would (31) and the Universal be reaffirmed a half century later in the Rome Statute; Declaration of Human Rights, which accorded "special care and assistance" to "childhood," and extended "social protection" to all children. (32) Less than a year later, states adopted the Geneva Conventions on the laws and customs of war, the fourth of which set out a host of requirements intended to assure the identification, education, health, and well-being of children, during conflict and under occupation. (33) The 1977 Additional Protocols to those conventions prohibited the recruitment of children under fifteen into armed forces, (34) and further insisted that captured child soldiers, no less than other children caught up in armed conflict, must receive special protections. (35) The 1989 Convention on the Rights of the Child affirmed those norms. (36) In the ensuing decade, the issuance of Graca Machel's milestone U.N. report on children and armed conflict, (37) coupled with media coverage of child soldiers, (38) laid the groundwork for the prohibition on recruiting and using young children that is entrenched in the 1998 Rome Statute of the ICC. (39)

Thus it was that in March 2006, Luis Moreno--Ocampo, then the ICC Prosecutor, announced that militia leader Thomas Lubanga Dyilo was in custody at The Hague, accused of conscripting, enlisting, and using children under fifteen in 2002 and 2003, amid a protracted armed conflict in the Ituri region of the Democratic Republic of the Congo. (40) In apparent explanation of his choice to charge only offenses related to child soldiers, the Prosecutor declared: "These are...