By Janine Morna
FLORIDA USA, Jul 3 2023 (IPS)
Around 2018, when Anwar was 14 or 15 years old, his father, a member of IS, forced Anwar to train with the group as a young teenager. He even made Anwar watch as he inflicted brutal punishments on people who broke IS’ rules.
The suffering was intolerable. Anwar tried to run away from his father and flee IS-controlled territory on multiple occasions. “I hated everyone,” he said.
In 2011, as the early versions of IS began to re-emerge in Iraq, the UN was quick to document violations the armed group had committed against children. That year, the UN Secretary-General included the group in the organization’s annual report on children and armed conflict, in which perpetrators of grave violations are named and shamed. The UN is required to negotiate action plans with parties listed in the report as part of efforts to stop and prevent the violations from occurring in future.
While the annual report is a powerful tool that prompts action in many contexts, it has had little impact on groups like IS, which are unlikely to engage in dialogue with the UN.
Over the last 11 years, numerous parties listed in the annual report can be classified as ‘persistent perpetrators’ — armed groups and forces that have appeared in the report for more than five consecutive years, and have failed to respond to reports on the violations they have committed against children. IS has been listed in the report for the last 13 years.
The UN Security Council has previously focused on the issue of persistent perpetrators, including by passing a resolution and holding an open debate in 2012 where they emphasized the importance of addressing violations committed by these groups and forces. It has also made efforts to promote sanctions against recalcitrant parties.
Despite these initiatives, the UN Security Council and its subsidiary, the Security Council Working Group on Children and Armed Conflict (Working Group), could do much, much more to support meaningful accountability.
Domestic prosecutions of crimes against children
The Working Group, as the primary body carrying out the UN Security Council’s agenda on children and armed conflict, should strengthen its calls for the UN and its donors to help countries to develop and implement domestic legislation that criminalizes grave violations against children. It should also support national criminal justice systems to pursue accountability, in line with international fair trial standards.
Today, many prosecutions of non-state perpetrators of grave violations – like IS in Iraq and Syria, and Boko Haram in Nigeria – take place in domestic counterterrorism courts which, in many cases, fail to include crimes under international law, let alone crimes against children.
The Working Group must encourage the trial of individual members of these groups in national courts that are capable of adjudicating international crimes. Prosecutions could occur in the state where the crimes took place and, where relevant, in states that exercise universal jurisdiction – a legal principle whereby states can prosecute offenders of certain grave crimes irrespective of the location of the crime and the nationality of the perpetrator or victim.
When trials on crimes against children take place in counterterrorism courts, the relevant authorities must enable prosecutors and judges to draw on international law, provide sufficient resources to pursue the prosecutions, and ensure defendants can exercise their full fair trial rights.
In cases involving children associated with armed groups and forces, states should treat children who are accused of crimes during their association primarily as victims of violations of international law and not only as perpetrators, in accordance with international standards. Children should never be prosecuted for mere affiliation with an armed group or force.
Cooperating with the International Criminal Court and other international mechanisms
In situations where domestic legal systems are unable or unwilling to pursue prosecutions of crimes against children, the Working Group should explore opportunities to collaborate with the International Criminal Court (ICC) and other international justice mechanisms, such as the International, Impartial and Independent Mechanism (IIIM) on Syria or the Independent Investigative Mechanism for Myanmar to achieve accountability.
This type of collaboration was envisioned when the Working Group first adopted a list of actions it could take in response to grave violations against children. Effective cooperation between international justice mechanisms is critical to achieve a measure of comprehensive justice.
The Working Group’s engagement with the ICC has historically been limited, but it is now time to further develop connections between the two bodies. The Office of the Prosecutor for the ICC has welcomed opportunities to “strengthen cooperation with relevant actors” and earlier this year launched a public consultation to renew its policy on children that “will build upon new approaches… [to] affect meaningful change”.
In the past, some Working Group members have considered indicating when parties have likely committed a war crime or other crimes within the jurisdiction of the ICC. They have also explored the possibility of sharing their conclusions with the ICC, and arranging for the prosecutor of the ICC to share briefings with the Working Group.
Ten years ago, some members of the Working Group also considered, in the absence of a UN Security Council referral, inviting states that are party to the Rome Statute to refer situations to the ICC, in which armed groups or forces have committed grave violations against children. Unfortunately, deeply divided opinions about the ICC among Council members have, in the past, limited the adoption of these recommendations.
Children must be protected
On July 5, the UN Security Council will host its annual Open Debate on Children and Armed Conflict. The occasion offers all UN member states an opportunity to publicly commit to efforts to broaden and strengthen accountability for violations against children.
As a first step, member states should call for the UN Secretary General to, once again, identify persistent perpetrators in the annual reports on children and armed conflict, a practice that was stopped in 2017.
The Council has the power to take greater action in response to some of the world’s most egregious perpetrators of crimes against children. It is unacceptable that children like Anwar should have to wait so long for justice and accountability.
Janine Morna, is Thematics Researcher – Children, Amnesty International’s Crisis Response Programme
*Name changed to protect identity.
IPS UN Bureau