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Accountability for Crimes against Children in Armed Conflict: The Lubanga Verdict and Beyond

Dear readers – please find below a commentary written by Julia Freedson, Senior Policy Consultant with the Children and Armed Conflict Accountability Project at Conflict Dynamics International  The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

International and national mechanisms have a bleak track record for holding to account perpetrators of grave crimes against children in armed conflict. This month the International Criminal Court (ICC) made concrete progress in the fight against impunity for these crimes with its verdict finding Thomas Lubanga, founder of the Union des Patriotes Congolais (UPC), guilty of conscripting and enlisting children as soldiers in the Ituri district of eastern Democratic Republic of Congo (DRC) during 2002 and 2003.

This verdict demonstrates that the Court can and will hold individuals criminally responsible for recruiting and using children. The judgment sets out strong new jurisprudence pertaining to this crime and rightly focuses the world’s attention on the perpetrators. It also gives new potency to the UN’s efforts to prod armed forces and groups to change their policies and end their practice of recruiting and using children. The verdict “will reach warlords and commanders across the world and serves as a strong deterrent,” according to the UN Special Representative for Children and Armed Conflict Radhika Coomaraswamy.

The critical sentencing and reparations stages remain pending. If they produce strong results the case will have even greater potential for a far-reaching and long-term legacy for the children and communities of DRC and others affected by armed conflict around the world.

These are all reasons for optimism and for reinvigorating support for the work of the ICC. Yet, the ICC is not and should not be the sole vehicle for accountability and ending impunity for grave crimes against children in armed conflict. The ICC is expensive and slow-acting by nature. It took nearly eight years for the court to reach this verdict and the sentencing and reparations phases are ongoing. By design the court will only ever target a few select individuals. It will not even reach the large numbers of accused perpetrators in dozens of armed forces and groups already identified by the UN in over 14 countries across the globe.

A strong and effective role for national and other international accountability mechanisms is essential. National governments bear the primary obligation for criminal prosecutions of those responsible for these crimes. National judicial systems and other national level accountability mechanisms have potential for reaching a larger number of accused perpetrators. They also have potential for more sweeping impact as they are closer to the affected populations. There is a need to invest in building or restoring the capacity of these systems in states in the midst of or emerging from conflict. With such support these systems may be more likely to overcome challenges in prosecuting these crimes such as lack of political will or lack of ability due to limited resources or being in a state of disorder.

Improving the track record will also require similar reinforcement of other punitive and non-punitive accountability mechanisms. A few examples of these include:

  • The UN’s complex system for addressing children and armed conflict. This entails a “naming and shaming” list, a global monitoring and reporting mechanism and the capacity to threaten and ultimately impose sanctions.
  • Ad-hoc tribunals, special courts, mixed chamber courts. These are typically set up to take punitive action in the context of a specific situation of armed conflict and often include an international component.
  • Alternative jurisdictions. These are instances of courts other than the ICC or national courts operating in the same jurisdiction where the alleged crimes were perpetrated that prosecute grave international crimes. For example, universal jurisdiction can be used by third party States to address crimes so grave that they impact the interests of the entire international community.
  • Truth-seeking and reconciliation processes. These non-punitive processes may take different forms but mandates typically include provisions for investigation, data collection, and documentation of human rights abuses.
  • Reparations. These generally seek to recognize the suffering of victims and typically involve some form of formal acceptance of facts or apology as well as compensation to victims for losses suffered.

Like the ICC, each of these mechanisms has the potential to play an important and unique role in ensuring more effective accountability. However, to date most of these mechanisms have made limited progress in the context of violations against children in armed conflict. Typically they have either not been utilized to specifically address violations against children or their efforts to address children have been flawed. As a result, most have fallen short of achieving concrete results and behavior change.

The solution to bridging this accountability gap is to reinforce the capacities of these national and international mechanisms so that they are able to realize their comparative advantages. Just as continued efforts by the ICC in this area are vital, so too is enhanced future work of these mechanisms.

To varying degrees this will require political, financial, technical, and other forms of support as well as action in a few other fundamental areas:

  • Increasing national and international priority attention to accountability for grave crimes against children;
  • Strengthening incentives for ending crimes against children;
  • Mitigating political constraints on accountability mechanisms;
  • Increasing coordination and planning efforts within and among accountability mechanisms;
  • Developing better approaches for engaging children and their communities; and
  • Providing high quality technical assistance and other forms of support.

Finally, the achievement of accountability in any particular context generally depends on the combined efforts of more than one mechanism. As a result it will be beneficial to encourage complementary action among these different mechanisms, such as engendering collaboration and forging partnerships when possible.  While such complementary activity is not without challenges, the potential for increasing accountability is significant and international and national mechanisms should make this a priority.

When these and other key accountability mechanisms lead to outcomes equally strong as the ICC’s recent success in the Lubanga case, they will achieve the desired end result for children. This means assigning responsibility to perpetrators; imposition of legitimate consequences; reconciliation and reparation for traumatized communities and individuals; and prevention of future violations. The Lubanga verdict is likely to infuse new lifeblood into the work of these other mechanisms. This is the time to build on the case’s groundbreaking advancement for accountability.

For more information on children and armed conflict and accountability see:

“Bridging the Accountability Gap: New Approaches to Addressing Violations Against Children in Armed Conflict” http://cdint.org/documents/CDI-Bridging-the-Accountability-Gap.pdf.