Can war in Ukraine be an opportunity for children’s justice?

Véronique Aubert Bell, expert on children and armed conflict and adviser to the International Criminal Court. (Credit: courtesy)

When it comes to defending children’s rights, Véronique Aubert Bell is one the key experts to turn to. Lead on children and armed conflict at Save the Children UK, she has dedicated her entire career to strengthening accountability for violations and crimes affecting children in conflict. She is a special adviser on crimes against and affecting children to the prosecutor of the International Criminal Court (ICC). The mother of two, based in Geneva, told Geneva Solutions how the war in Ukraine must be the moment not to fail children again and for justice to evolve.

GS News: What is the current situation for children in armed conflict?

Véronique Aubert Bell: Today approximately 426 million children are living in a conflict zone and disproportionately affected. In 2021, more than 26,000 violations committed specifically against children were documented by the United Nations in 19 countries. Children in armed conflict are routinely killed and maimed, used as soldiers, victims of sexual violence, attacked in their schools and hospitals, abducted and denied of humanitarian aid, but also tortured, enslaved, intentionally starved, deprived  of liberty... Such abuses have a destructive impact on children’s overall wellbeing, development and mental health, and their plight has not received comprehensive attention as international justice has so far failed to document and investigate these violations, or to hold the perpetrators to account.

What type of crimes are committed against them?

Children of all ages and genders are among the main victims of violation of international human rights law and international humanitarian law: that includes war crimes, crimes against humanity and genocide. For example, children constitute half of the world's forcibly displaced population. Not only do they suffer every day from all the crimes I mentioned earlier – and I could list many more – but there are also crimes that specifically target children such as attacks on students, schools, teachers, universities that are not captured at all by accountability mechanisms.

The Global Coalition to Protect Education from Attack [Editor’s note: a group of organizations working on education in emergencies and conflict-affected contexts] compiled over 11,000 reports of attack on education between 2015 and 2019, including attacks on schools, buildings, and over 22,000 teachers and students killed, recruited, raped and therefore deprived of education during war. However, in all those cases perpetrators are very rarely investigated and brought to justice.

Amid such a grim context, how could justice be achieved?

It’s a challenging question. In a recent Save the Children report, released with Oxford University, we addressed how the lack of state support deprives children of their right to be heard and their access to effective remedies. The persistent impunity not only prevents them from accessing justice, denies them the right to reparation, but it also means that children's perspective and voice remaining absent imply impunity for such crimes to continue to prevail.

Accountability mechanisms tend to address crimes affecting children as part of broader crimes committed against the civilian population. They don’t take into account the fact that age, sexual orientation, gender identity and expression, disability, ethnicity or demography affected and target children differently. I call it the “invisibilisation” of children in wars as children remain invisible and, therefore, the crimes committed against them and their suffering associated with it remain invisible.

Why is it that the most vulnerable are the least defended?

First, because of children’s relative disempowerment, compounded by their legal disenfranchisement, lack of representation in political entities and civil society organisations, the fact that they do not vote, and usually don't have an official job in society means that violations and crimes against children are very often considered as irrelevant. The international justice system also usually sees them as a monolith and the impact of children’s age and vulnerability are ignored.

Second, crimes and violations affecting children are seen as not part of mainstream human rights documentation and criminal investigations. Whenever they are investigated, crimes against children are often reduced to only child-specific crimes such as recruitment and use of children in armed groups, or rape. There is also a shortage of expertise in evidence collection: practitioners are hesitant to interview them sometimes because they are afraid to cause them harm, but often because they are questioning the accuracy of the information they provide. Finally, financial barriers and bureaucratic constraints result in the fact that children are often omitted in the planning phases of analysis and investigations.

How has the conflict impacted Ukrainian children?

Since February 2022, as published in Ukraine Symposium - War Crimes against Children - Lieber Institute West Point reported civilian casualties, including more than a hundred children killed, continue to grow, [Editor’s note: according to the UN, of 3,153 civilians that have been killed, 226 were children], 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 of 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 three and 17 years old.

What do you recommend to ensure their protection?

The 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 state parties. This was followed by pledges for contributions from about 20 states, some of which to be dedicated to investigate crimes against children as announced by the prosecutor. There are also other initiatives by the Ukrainian prosecutor or Eurojust [Editor’s note: the European Union Agency for Criminal Justice Cooperation], as well as specific national jurisdiction looking at Ukraine, and others.

All those different institutions must integrate in their mandate the collection, preservation and analysis of evidence on international core crimes against children from the outset. For example, the commission of enquiry, newly appointed by the president of the Human Rights Council, should also include child expertise. All these national and international mechanisms should absolutely coordinate their approach, in particular when investigating violations affecting children. It's only by collaborating with each other that there will be an ethical and successful outcome for justice for children in Ukraine.

Could the war in Ukraine provide a chance to stop failing children and for justice to evolve?

Absolutely. There is an unprecedented amount of interest and funding for international justice. The international community and accountability mechanisms have also started documenting and investigating crimes and collecting evidence as the conflict is still unravelling and crimes are still being committed. In this context of such goodwill initiatives, it is essential that, for once, child related expertise be included from the beginning and that funding for experts and expertise be integrated so that atrocities committed against girls and boys do not remain invisible in international justice processes.

In your career, you have witnessed a lot of armed conflict and children being subjected to war crimes. Do you see a real difference this time?

Since the Nuremberg trials, crimes against children have never been seriously tackled by international judicial and non-judicial mechanisms. The current situation is therefore unprecedented because of the number of governments and institutions that are supporting the deployment of the international and national investigations in Ukraine. But it is also unprecedented because we have some key actors like the ICC prosecutor, who is very eloquent on the importance of focusing on crimes against children, calling for all international and national, judicial and non-judicial mechanisms to collaborate.

Therefore, in this context, I really believe that we can set a precedent, we can demonstrate that children are not invisible and that the massive number of violations and crimes that they are suffering from will not be forgotten.  International justice cannot continue to fail these girls and boys affected by wars, and  we must end the current climate of impunity where perpetrators continue to kill, rape, recruit, attack schools, enslave children and so forth. These crimes and the impunity associated with them, don’t only terribly impact these girls and boys’ opportunity to grow and develop, but also their communities and the adults they will become.