Children in conflict: a historical blind spot for international courts (part II)

From Nazi Germany to former Yugoslavia and Rwanda, international courts have been set up in the last nearly eighty years to expose the worst atrocities in recent history and punish those responsible. While their rulings have been historic in obtaining justice, they have rarely focused on children.

In her recently published book, Cécile Aptel, international criminal law and child rights expert, explores the hits and misses of these tribunals, many of which she worked with, in lifting the veil on how war affects children.

“It is such a strong, deep emotion across different cultures to want your story to be known. I felt very strongly when I embarked on writing my book that the stories of children were not being told by international courts,” she tells Geneva Solutions in her UN offices in Geneva.

Aptel is the UN deputy director of the UN Institute for Disarmament Research and a visiting professor at the Geneva Academy. But her recently published book, Atrocity Crimes, Children and International Criminal Courts: Killing Childhood, is a side project she has worked on for the better part of the last decade and a journey that began even further back.

Aptel started her career as a humanitarian, helping distribute hygiene kits and other aid items in the Balkans in the 1990s when ethnic conflicts engulfed the region. She went on to help set up the UN International Criminal Tribunal on Former Yugoslavia in 1993 and the International Criminal Tribunal for Rwanda the following year.

“It was really exciting to see these tribunals being put in place, especially because I had been on the ground, and to think that those responsible for these war crimes and crimes against humanity were going to be held accountable,” she says.

What struck her during those years working with the courts was the lack of attention paid to children. “There was a divide between the work that we were doing in the courtrooms and what was the reality on the ground, where the impact on children was so huge, both in terms of numbers, especially in somewhere like Rwanda where children make up a large portion of the population, but also in terms of the impact, such as being deprived of an education. It may not be life-threatening, but it has lifelong consequences,” she explains.

From Nuremberg to The Hague

International justice has been slow to catch up with reality, she says. In her book, Aptel delves into the archives of the Nuremberg trials, the first war crimes trials in history, held between 1945 and 1946. She documents the prosecutor’s strategy to catch the top leaders, even if that meant neglecting the suffering of victims in the process.

She writes: “Victims and survivors of the Nazi atrocities were barely visible during the trial – not least because the prosecution relied primarily on documentary evidence written by the Nazis themselves rather than calling eyewitnesses to testify. And if adult survivors were hardly seen, children were all but absent.”

There were practical reasons for this approach. Aptel explains: “The higher you go in terms of responsibility, the more you're to an extent disconnected from what is referred to in jargon as the base of the crime. And until very recently, there were very few connections being made between crimes against children and the top leadership.”

In her book, Aptel notes that most of the prosecutors and judges in Nuremberg had a military background, which may also explain their reasoning. The result was 19 surviving Nazi leaders convicted for charges that included crimes against peace, war crimes and crimes against humanity.

However, Aptel notes that the judgement failed, for example, to mention how disabled children were killed as part of Nazi euthanasia programmes designed to eliminate those considered to be a burden or how little attention was given to the Heu-Aktion programme that saw some 250,000 youths, mainly from Eastern Europe, forcibly transferred to Germany for “Germanisation”.

The subsequent Tokyo trials held between 1945 and 1948 against Japanese leaders, according to Aptel, also followed a similar path, focusing on establishing command responsibility while children got lost in a sea of civilian victims. The indictment did, however, refer to the use of education centres to indoctrinate children and how girls and women were raped in large numbers.

It wasn’t until the 1990s that the focus on children sharpened. Aptel attributes this to several factors, including the adoption of the Convention on the Rights of the Child in 1989 and the UN Security Council creating a working group on children in armed conflict and appointing a special rapporteur on the issue.

“This meant that the UN and NGOs started to collect much more information on the ground on how children were impacted, which was crucial to then translate that into evidence that could be presented in court and challenge those responsible,” she explains.

The trials for former Yugoslavia and Rwanda, which produced the first convictions for genocide, reflect that upsurge in attention. The Yugoslavia tribunal, for example, held in The Hague, considered age in sexual violence cases as an aggravating factor. In the case of Rwanda, the killing of many Tusti children in a country where half of the population was under 18 was difficult to ignore.

No single case or trial, however, focused on children, Aptel documents. It was only in 2002 when the Special Court for Sierra Leone was set up by the government and the UN to try crimes from the country’s civil war, that the court became known for handing out the first-ever war crime conviction for child recruitment in an armed conflict.

In her book, Aptel quotes the special court’s chief prosecutor, David Crane, stating: “Two of the most egregious uses of children are sexual slavery and conscription of children into armed conflicts. Sierra Leone’s conflict was characterised by both, and we hope to establish a strong precedent that these abuses must end.”

But the breakthrough came with its drawbacks. “NGOs assimilated conflict with child soldiers, not grasping the full picture of how war actually impacts children,” the expert says. The image of the child forced to take up arms and become the perpetrator was crystallised to the point that other children were invisible to the public eye but also justice.

Aptel is critical of the International Criminal Court (ICC) for also falling into this trap and cites the case of former rebel leader Thomas Lubanga Dylio, convicted for sending children to battle in the Democratic Republic of Congo (DRC). According to her, judges denied requests by the victims, most of whom were children, to also charge him for acts such as sexual slavery and inhumane treatment.

The case was also almost thrown out after a former child soldier recanted his testimony, exposing weaknesses in the ICC’s witness protection safeguards and overall guidelines on how to deal with children's testimonies.

A turning point

Lessons have nonetheless been learnt, according to Aptel. The arrest warrant issued by the ICC’s chief prosecutor Karim Khan earlier this year against Russian President Vladimir Putin and his children’s commissioner, Maria Alekseyevna Lvova-Belova, for the forcible transfer of children from Ukraine to Russia, is a turning point.

“It's the first time in international criminal justice that we see charges for crimes where the victims are children and that are not about child soldiers,” she said.

This is despite the fact that “the phenomenon of stealing children to make them yours is something that we've seen repeatedly in so many places”, from Nazi Germany to Indigenous children put in schools in Canada and Australia and Yazidi children abducted by the Islamic terrorist group ISIS to “erase their identities”.

While abducting children may be overshadowed by the more immediate fatal threat of shelling civilian populations, experts have noted that it may lay grounds for the crime of genocide as evidence has shown it is part of a campaign to “Russify” children and erase their links to Ukraine.

Unlike these and other conflicts, Ukraine has garnered unprecedented attention and resources.

“Many humanitarians deplore the fact that there's so much money that has gone to Ukraine to the detriment of other situations, and it's also true in the field of justice,” Aptel points out. “But for once, there is, in fact, the room and resources to be comprehensive about these investigations.”

The attacks on schools and, more broadly, education, according to Aptel, is another area overlooked by international justice that the war in Ukraine may help bring awareness to. “It's not only that children are being denied a place of education, which means no access to a haven or seeing their friends, but it's also the life-long consequences,” Aptel says.

“When people migrate, even if they cannot carry anything, they carry with them their education. That’s what really gives them a chance at having a future.”

A chance to tell their story

Despite the thousands of atrocities documented globally, international courts only investigate a handful of cases due to strained resources. Aptel concedes that they often have to make hard choices when it comes to how they will seek justice. This means focusing on top leaders while leaving the prosecution of low-ranking officials to domestic courts, which, in reality, rarely pursue them.

Aptel recalls a woman coming up to her in the Democratic Republic of the Congo during a training session to explain to victims what the ICC could and couldn’t do. The woman had two daughters, one who had been raped and the other who had been killed. Every day, they would have to walk past the police station where their attacker worked, seeing him smirk at them while being untouchable.

“She said to me, ‘what you are now telling me is that the crimes that I have suffered and that my daughters have suffered are not grave enough to deserve justice, that he is too low ranking to be brought to justice’. What do you respond to that?” she wonders.

For Aptel, there is no correct answer. But there are consequences that must be considered.

“These choices have an impact on how many voices we hear and how much space we give victims, including children,” she says.

In her book, Aptel quotes the accounts of Tutsi children and how they perceived the genocide they witnessed in Rwanda: “We – children – were terrified. We no longer expected any mercy from (the adults). We could see that humanity had left them. We died exactly at the moment when we saw the deaths of those who had given life to us.”

Ignoring these versions of history, for Aptel, has wider implications. “It means that we're being shortsighted and not investing in true peacemaking nor making them feel that justice has been served for them,” she says. “By hearing their stories, we can hopefully address their grievances so that in 10 or 20 years, there isn’t another conflict.”

In Part I of this story, we look at two organisations working with human rights probe bodies to help them better document crimes against children.