CYIL vol. 12 (2021)
CYIL 12 (2021) TOWARD STRENGTHENING ACCOUNTABILITY FOR CRIMES AGAINST CHILDREN … 1. Introduction When we talk about wars, very often we tend to overlook its human dimension. We focus too much on political leaders, military commanders, fighting parties, military strategies, and achievements, but quite often we ignore their human costs. Every day we are confronted with the images of helpless civilians caught in the midst of brutal fighting. Disturbing photos of children are those that resonate and trigger strong public response. Many of us know the photo of the “Napalm Girl” which had a significant impact on the view of the American public on the war in Vietnam. None of us can stay calm while looking at the pictures of children killed during a chemical attack in Syria, dying of starvation in Yemen, or being on their desperate journey toward better future somewhere in Europe. Emotions are a very natural reaction to this tragic phenomenon of contemporary armed conflict. They can greatly affect public opinion, shape the nature, level, and promptness of international response and mobilize necessary resources. Nevertheless, in the search for an effective and sustainable solution, the international community needs to address this particular problem in a more systematic way. International law, despite its many imperfections, is still potentially a very powerful tool and an important normative framework through which we should look at the most serious violations of children’s rights in times when they are particularly at risk. This paper aims to look deeper into accountability for the most serious crimes aimed at or highly affecting children which are being committed in the context of an armed conflict. I will not address other “ordinary” crimes that have no connection with the conflict. Situations when states are failing in the protection of their citizens create conditions inducive to certain types of criminality. The lack of accountability and the culture of impunity encourages the kind of behavior which is hardly imaginable in a functioning state in times of peace. I will explore the issue primarily through the lens of international criminal law (ICL) and will focus on the most serious crimes typically facing children in armed conflict. Obviously, I cannot ignore the rules and principles of international humanitarian law (IHL) which, in most cases, form substantive ground for investigations and prosecutions. Finally, international human rights law (IHRL) provides a conceptual background for the criminalization of serious transgressions and plays a significant role in the procedural part of the accountability mechanisms. The landmark UN report on children and armed conflict of 1996 analyzed the problem primarily through the optics of IHL and IHRL with the Convention on the Rights of the Child (CRC) 2 as “a guiding source of operative principles and standards.” 3 This seems to be a good starting point for the discussion on individual criminal accountability. In fact, the definitions of crimes against children reflect the most serious violations of children’s fundamental rights and correspond to such rights as the right to life, right to dignity, right to food, right to health, education, and protection. 4 The interplay and seeming complementarity nature of the ICL, IHL, and IHRL regimes form the methodological basis for this article. 2 Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3. 3 Impact of armed conflict on children . Report of the expert of the Secretary-General, Ms. Graça Machel, submitted pursuant to General Assembly resolution 48/157, UN Doc. A/51/306 of 26 August 1996, para. 10. 4 Humanium, “Understanding Children’s Rights,” https://www.humanium.org/en/fundamental-rights (Accessed on 24 May 2021).
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