Children in conflict: exposing the shadows of justice (part I)

When peaceful protests calling for democratic reforms sparked in Syria in 2011, it was teenagers who took to the streets and graffitied walls with calls for an end to Bashar al-Assad’s regime. The brutal crackdown that ensued and unravelled into a civil war that has lasted ever since has affected millions of Syrians – many of whom, including children, have been killed, tortured, detained, raped, displaced or forced to take up arms.

In 2022, the United Nations reported a record number of 27,000 gross violations against children in conflict. In many places struck by conflict, youngsters make up the larger part of the population, meaning they are among most exposed to violations.

Yet, their stories are often left unheard in the courtrooms, drowned out by the noise of all the horrifying accounts that war breeds.

Save the Children and Justice Rapid Response (JRR) have been working with UN and regional bodies set up to investigate such atrocities to make sure children’s experiences don’t fall on deaf ears.

“Children in conflict remain too often invisible to international justice mechanisms and, in broader terms, to accountability mechanisms,” said Aurélie Lamazière, senior programme manager in charge of Save the Children’s project on advancing international justice for children.

“We want to make sure that those children who have suffered can have a recognition from justice of what they have been through, and ultimately, those who survive can get reparations,” she told Geneva Solutions.

An adult’s world

Accountability mechanisms are tasked with shedding light on the wide array of violations committed in contexts of violence. Some of them, such as the Commission of Inquiry (CoI) on Ukraine or the special rapporteur on Afghanistan appointed by the Human Rights Council, document and publicly expose rights abuses by compiling reports.

Others have quasi-judicial powers and can build criminal cases against individual perpetrators to be later taken up by legal courts with jurisdiction over them. Such is the case of the Independent Investigative Mechanism for Myanmar, or IIMM, and the International, Impartial and Independent Mechanism (IIIM) on Syria, created by the UN General Assembly in 2016 and the longest-running.

Save the Children has been working since 2021 with these bodies as well as others to support them in developing policies to involve youngsters in their investigations.

“We recognise it's a complicated and constantly challenging endeavour to focus on children. It's easier for those mechanisms to be adult-centric,” said Lamazière.

Dealing with children requires strict protocols, for example, to ensure that they are adequately interviewed, can consent and understand the implications of giving testimony. Their identities also need to be protected. All of these steps take up resources and time, Lamazière acknowledges.

“Realistically, commissions of inquiry are under a lot of pressure to report under very short deadlines and lack dedicated resources. We're trying to see with them how we can improve their access to children and that it becomes part of their methodology.”

The experts have made some efforts to shed light on the plight of children, according to Lamazière, for example, by including a section on children or even dedicating to them a whole report, like the Human Rights Council’s Commission of Inquiry on Syria, which produced a report entitled “They have erased the dreams of my children” in 2020.

But it is far from being common practice. “There is just not enough policy on children; it's not fair to say that there is nothing, but it's minimal, and we could do much more,” she said.

A delicate balancing act

While the need to protect children in conflict may seem like a given – a declaration on the rights of the child was penned in Geneva 100 years ago – in practice, it is a different story.

“These mechanisms, a lot of the time, rely on testimonials of victims. And speaking to middle-aged men is easier – at least as an unconscious bias. But then, how do you have the full picture of what happened in an armed conflict if you only speak to men?” Lamazière said.

International justice has made progress in broadening its understanding of who the victims are, according to Lamazière. For a long time, women were also sidelined from investigations.

“Women are often put aside or hidden in the public space in countries affected by conflict, so it’s more challenging for them to come forward. It's also difficult to get reliable evidence of sexual violence crimes just anywhere, even more so in an armed conflict,” she explained.

But unlike women, children haven’t had a strong movement to lobby for their interests, and, to the adults in the room, it may be easier to avoid the whole topic altogether than to risk causing further damage to child victims.

For Lamazière, it is a question of balance. “On one hand, children have the right to be heard, to participate in decision-making processes and to access justice, as the Convention of the Rights of the Child says. Some children don't want to access justice, and we should respect that. But some children do,” she explained.

“On the other hand, you have the ‘do no harm’ principle. If you interview or speak to children or any victim, for that matter, you want to make sure that you don't re-traumatise them. With children, the tendency will be to give more weight to the ‘do no harm’ principle.”

Undoing myths

Part of the problem is the dearth of international experts specialising in children’s rights. This is where Justice Rapid Response (JRR) comes in. The Geneva-based NGO deploys experts to help with investigations on war crimes, crimes against humanity, genocide and serious human rights violations.

The organisation has a roster of around 700 experts, many of whom have been requested to assist UN probe investigations, and is working on recruiting professionals qualified to work on child rights issues.

“It has become very clear that one of the overlooked components of international justice work is child victims,” said Federica Tronchin, head of JRR’s international justice programme and senior gender and child rights advisor.

The organisation has gathered a list of around 60 available experts on the topic, according to Tronchin, out of which 13 have been deployed to work with Human Rights Council mechanisms on Myanmar, Syria, Libya, Burundi, Sri Lanka, Ethiopia, Ukraine, Belarus and Iran.

She stressed that including these experts from the outset of investigations helps make sure that children “are visible” and “have agency”.

But scouting for these specialists hasn’t been easy. “Just like the field of gender justice 15 years ago, there is no specific career path to become an international child rights expert, but it is a specialised expertise that is growing and formalising itself,” said Tronchin.

For the moment, they come in many different forms and backgrounds, from police investigators with formal training to interview children, to psychologists called to testify in domestic abuse cases to international judges or prosecutors who have worked on cases involving children to even humanitarians or human rights defenders that have worked with children on the ground.

Getting the full package, meaning specialists trained to deal with children while also having experience with international crimes and human rights, is, as Tronchin puts it, “like searching for gold”.

A lot of the hesitation to address children-related atrocities in international justice also comes from assumptions that they make unreliable witnesses.

Tronchin said experts speaking from experience will argue otherwise. “Experts dealing with domestic abuse where a child is a victim and is providing testimony in a court of law can tell you that children can give you the most interesting details that other people wouldn't get. And they speak of cases where there is no other way than using that testimony as evidence to get justice,” she said.

But she noted that there have been unsuccessful stories at the international level, for example, in the case against the former leader of a Congolese armed group, Thomas Lubanga Dyilo, when a former child soldier recanted his testimony, almost causing the whole trial to be thrown out.

Tronchin points out that children are more susceptible to being led by the interviewer and having their interpretation of memories modified, especially if they are interviewed more than once and by non-trained professionals.

“It doesn't mean that they’re not reliable; it means if you don't do it properly, you can cause their testimony to be unreliable,” she said.

For Lamazière, that starts with making an assessment: “Why would it be less reliable to interview a 70-year-old than a 17-year-old? What we’re encouraging the mechanisms to do is to ‘do a proper age and gender assessment of the victims and survivors and take them into account in their full complexity.”

Save the Children and JRR have also been working on an online course for non-child rights experts to teach them some of the basics about for example interviewing children and documenting crimes against children.

“It's crucial to dismantle the myths and internal biases around what it means to look at crimes against children,” said Tronchin.

But beyond just personal apprehensions from these experts, she said there is a concern on their part about sufficient safeguards in place.

“Dealing with children requires strong structures and processes, for instance, victim’s participation, victim’s agency, witness protection, or psychosocial support. Those systems are generally not that strong, and so there is a risk of endangering children,” Tronchin said.

“So there is a need to get the house in order in a lot of the rooms first.

Lamazière pointed out that there are also alternative ways to collect information about crimes against children, such as speaking to specialised local organisations.

Shy, positive changes

Tronchin and Lamazière agree that there have been important steps taken in recent years, one of the most notable ones being the International Criminal Court’s chief prosecutor, Karim Khan, promising to prioritise the topic of children. In 2016, the ICC produced its first child policy and opened in March a call for suggestions to improve the document.

Save the Children is working with the Hague-based body to update that policy to help ensure it is actually put in practice. The IIIM on Syria, which already has a gender policy, is also working on more guidelines that Lamazière hopes will consider age as a factor when dealing with victims.

Lamazière said that states at the Human Rights Council could also contribute by including the focus on children from the start when they write up the resolution proposals to create the probe bodies. In this regard, the renewal of the CoI on Ukraine set a precedent in highlighting the impact on children, she said.

But she knows that it is often difficult to even set up these. “We understand the argument that sometimes it's very challenging even to establish a mechanism. If you accept in your negotiation, as a state, that justice is applied to your neighbour, it means that the next time something happens in your country, you may have a commission of inquiry looking at your own practices,” she said.

For Tronchin, “there are shy positive changes, but there is way more work that needs to happen in implementing the goodwill that we are starting to see.”

Lamazière said: “We need to capture the diversity of crimes and of victims that have been affected in the conflict.”

How war affects children

By Solenn Beaumont

Over 400 million children live in countries affected by conflict, according to Unicef. Often forced to flee their homes in search of safety, many get separated from their loved ones and have to find ways to survive on their own. This leaves them vulnerable to being recruited or trafficked by armed groups or criminal organisations. In 2020, 337 million children were at risk of being recruited, according to analysis by the Peace Research Institute Oslo.

The UN has confirmed 315,000 violations committed against children in Africa, the Middle East, Asia and Latin America since monitoring started in 2005. This includes more than 120,000 children killed or maimed and at least 105,000 children recruited or used by armed groups.

Beyond the physical risks, living through the horrors of war can also have severe, lasting effects on people’s mental health, causing, for example, post-traumatic stress disorder, depression, anxiety or dissociative disorders. Children are especially vulnerable to these consequences, although more recent studies also point to their resilience and ability to overcome trauma.

In Part II of this story, we look at the history of international courts and how they have addressed the issue of children in conflict.