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Children of War: Should they go to the ICC?
There are many crimes involving children in the Rome Statute. One of these crimes is conscripting or enlisting of child soldiers. Involvement in armed conflict is a major cause of why children participate in proceedings before the ICC; unfortunately, 'children continue to bear the brunt of today’s conflicts [and] … [v]iolations of children’s rights occur daily … often on a large scale' (UNGA Report). If one of the crimes in the Rome Statute is alleged to have taken place, the individuals involved, including children, can be involved in proceedings before the ICC either as a witness or victim.
Victims have a larger involvement in the legal proceedings than witnesses, especially the investigation stage, as 'they may indicate direct sources of evidence… [and] they may … contribute to establish the truth suggesting new elements to be investigated' (Grecco). The most significant element of their role is arguably that 'victims’ participation has relevant consequences on the judgment since the degree of harm caused by the offender to the victims constitutes one of the major criteria in assessing the punishment' (Grecco). The involvement of victims in ICC trials is clearly important; it 'reflects not only procedural fairness but also takes into consideration victims’ needs and claims for justice' (Grecco). Further, the possibility for children, not just adults, to participate in ICC proceedings reaffirms that there are 'positive outcomes associated with realising the right of children to be heard and taken seriously' (Lansdown), and the right to be heard in judicial proceedings, as outlined in Article 12 of the Convention of the rights of the Child.
Despite these benefits, there are practical problems that may occur if children are allowed to participate in ICC trials. For example, children are generally more vulnerable than adults; therefore, participation in a trial could be too emotional or disturbing an experience for them, especially because of the already traumatic experience they may have been through. However, while there are many potential negative effects that being involved in a trial before the ICC may have on a child, the very fact that the crimes alleged are so serious surely necessitates that justice must be done for these children. This may mean that if a child is a victim of a crime in the Rome Statute, it is in fact beneficial for them to participate in the trial because, as was highlighted above, victim involvement can be vital in facilitating a fair and just trial.
Not only may it be necessary in the interests of justice, there are also safeguards protecting children who participate in proceedings before the ICC. There are provisions in that provide for preventative measures; the Rome Statute obliges the Court to 'protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.' The Statute also established the Victims and Witnesses Unit, which protects and assists victims and witnesses in line with international law. This is even assists with trauma care. While '[t]he protective measures address only those persons who may be at risk on account of testimony given by a witness', so children are not singled out here, age is listed as a factor to be considered. Children may also get more protection through special measures, provided for by the Rome Statute, which aim 'to sustain and protect victims and witnesses called on to give testimony' (Grecco).
In conclusion, although there may be some concerns over the welfare of the child, or even the best interests of the child, the need for justice often means that children should participate in proceedings before the ICC. There are even safeguards in place to protect the child if they do participate. Therefore, child participation in the proceedings before the ICC should be considered a welcome development.