CYIL vol. 12 (2021)

peter klanduch CYIL 12 (2021) The OTP will proactively include specific lines of inquiry to determine whether such crimes were committed in the situations under investigation. 146 Wherever the evidence permits, the OTP will seek to include charges for crimes against or affecting children. 147 to capture “the totality of the violence perpetrated against children, and to highlight the unique experiences of children.” 148 In the sentencing stage, the OTP will request a sentence which adequately reflects the seriousness of the crimes against children taking into account both the immediate as well as long-term consequences to children, their families, and communities. 149 When we look at the ICC case law, we realize that sometimes it is very difficult to discern which violations under investigation fall within the category of crimes against children. With the exception of recruitment and use, most other crimes can be committed against both adults and children. Therefore, the Court often refers to categories such as “civilians” or “women and girls” rather than “children.” From the perspective of accountability for crimes against children, it seems that the ICC focused primarily on war crimes of recruitment and use in its first cases. It might be caused partly by the fact that the use of child soldiers has been a common, and sometimes culturally acceptable practice in most of Sub-Saharan Africa. 150 In addition, broadening the scope of charges to cover acts of sexual violence and other ICC crimes would put an extra burden on the prosecution, in particular in terms of additional evidence needed to build a strong and credible case. Nevertheless, a narrow approach does not provide the full picture of the scale and gravity of other crimes against children that deserve our attention. As Cécile Aptel suggests “[t]he harm suffered by victims of sexual slavery and other forms of enslavement deserves to be considered separately and, if applicable, like in the case of child soldiers, additionally to the harm caused by being recruited and used in hostilities,” and the Court and, specifically the OTP, should find a way how to better frame the charges in the future. 151 It is important to acknowledge the existence of other categories of crimes against children and to include them in the OTP prosecutorial strategies. In this regard, the 2016 policy document might help to shift the attention of the OTP this direction. Perhaps, it is too early to assess the impact of the Policy on Children on the work of the ICC, although an innovative approach in qualifying Taliban actions preventing girls from education as crimes against humanity might signal that the OTP takes its pledge to pay more attention to crimes against children seriously. 5. Conclusion This article cannot and does not provide full and detailed picture of all existing tools aimed at enhancing accountability for crimes against children in armed conflict. There are other alternative mechanisms that can contribute to better protection. In addition to the

146 Ibid. , para. 62. 147 Ibid. , para. 85. 148 Ibid. , para. 88. 149 Ibid. , paras. 101–103. 150 Cronin-Furman, “Managing Expectations,” p. 449. 151 Aptel, “Child Slaves,” p. 316.

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