By: Rebecca Pioso

Journal of Global Rights and Organizations, Associate Articles Editor

THE HAGUE, The Netherlands – On December 8, 2023, the ICC Office of the Prosecutor implemented the “Policy on Children” to address the worldwide suffering that children face regarding their historic underrepresentation and lack of appropriate engagement with the criminal justice process.

The ICC’s Rome Statue grants the ICC jurisdiction over international crimes involving genocide, crimes against humanity, war crimes, and crimes of aggression. Article 54 of the Rome Statute mandates that the Office of the Prosecutor devote special consideration to investigations and prosecutions against children. Children have the right to partake in the criminal justice process, just as adults are. However, the ICC has acknowledged the routine failure of tribunals to appropriately include children in international criminal justice processes, which in turn violates their human rights.

Addressing children’s participation in the international criminal justice processes is crucial. Nearly one third of the global population is under eighteen years of age, yet children’s experiences and their key roles within the accountability processes are largely overlooked or otherwise ignored based on misconceptions, stereotypes, and failures to devote appropriate resources to support proper methodologies that account for the specific needs of each child. For example, tribunals traditionally have an adult-centric view which largely excludes children and often stereotype them as a homogenous group, regardless of their unique needs and capacities. Moreover, crimes impacting children are routinely under-reported, under-investigated and under-prosecuted.

The ICC has recognized the necessity of improving the understandings of and adaptation to children’s experiences and facilitating their engagement in the international criminal justice processes. The Court has committed to increasing children’s access to justice by implementing a children’s rights approach. It will ensure that children’s voices will be affirmatively heard in each case and situation that they are involved in under the Rome Statute so that their unique vulnerabilities and the manners in which they are targeted and ultimately impacted based on their status in society regarding their physical, mental, psychological development, and ability to engage with criminal justice process, can be better understood.

The Prosecutor’s new has specific objectives to:

• Remedy the historic lack of representation and engagement of children in the international criminal justice process.
• Bring attention to the viewpoint that crimes under the Rome Statute can be committed against and impact children.
• Ensure that, in all dealings with children, the Office of the Prosecutor takes a child rights, child-sensitive, and child-competent approach that is guided by the child’s best interests.
• Actively adapt and reflect topics including intersectionality, children’s developmental stages, their capacities and abilities.
• Re-emphasize the Office of the Prosecutor’s commitment to building an international community that facilitates effective investigation and prosecution of crimes against children.
• Promote the exchange of knowledge regarding best practices and accountability efforts.

The Policy focuses on recruitment, training, external collaboration, implementation, monitoring, and evaluation, with the goal of promoting a more effective and equitable system for prosecuting crimes against and impacting children. The Policy also reflects the ICC’s awareness of their place within a global ecosystem of accountability, and specifically, the Office of the Prosecutor’s commitment to broadening and then reflecting its understanding as to the unique impacts of Rome Statute crimes involving children, and to improving the processes for effectively including children in the international criminal justice processes.

For further information, please see:

ICC – How the Court Works – 2024

ICC Office of the Prosecutor – Policy on Children – Dec. 2023

ICC Office of the Prosecutor – Statement by ICC Prosecutor Karim A.A. Khan KC – 8 Dec. 2023

ICC Office of the Prosecutor – Policy on Children (2016) – Nov. 2016

By: Tiffany D. Johnson

Impunity Watch News Staff Writer

THE HAGUE, The Netherlands – The International Criminal Court (ICC) has taken bold steps towards addressing alleged war crimes in Ukraine. It first dispatched a 42-member team for a comprehensive investigation in 2022. This move was particularly noteworthy considering Ukraine’s status as a non-member state of the ICC.

The ICC also filed charges against Russian President Vladimir Putin and Russian bureaucrat, Maria Lvova-Belova, for the unlawful deportation and transfer of Ukrainian children from occupied areas of Ukraine to the Russian Federation, in violation of Article 8(2)(a)(vii) and Article 8(2)(b)(viii) of the Rome Statute. Most recently, ICC established of a country office in Ukraine in March of last year, marking a pivotal moment in the Court’s engagement with non-member states.

Despite Ukraine’s status as a non-party to the Rome Statute, under Article 12(3) of the Statute, it has twice exercised its prerogatives to accept the jurisdiction of the Court over alleged crimes under the Rome Statute that have allegedly occurred on its territory. In its initial declaration, the Ukrainian government acknowledged the International Criminal Court’s jurisdiction over crimes allegedly committed on its territory between November 21, 2013, and February 22, 2014. The second declaration expanded this period indefinitely to include ongoing accusations of crimes committed across the entirety of Ukraine starting on February 20, 2014. The ICC’s decision underscores its commitment to fostering cooperation and addressing alleged human rights abuses even in the absence of formal membership.

The establishment of a country office signifies a strategic effort by the ICC to enhance its presence on the ground, facilitating direct collaboration with local authorities, civil society, and other stakeholders. This development reflects the ICC’s dedication to transcending geopolitical boundaries and ensuring the pursuit of justice is not confined by legal technicalities.

The ICC’s mandate is primarily rooted in the Rome Statute, an international treaty that governs the Court’s jurisdiction over the most serious crimes of international concern. Early February 2023, the ICC Prosecutor submitted applications to Pre-Trial Chamber II of the International Criminal Court for warrants of arrest in violation of Article 8(2)(a)(vii) and Article 8(2)(b)(viii) of the Rome Statute. To be classed as crimes against humanity, attacks must be part of what the ICC’s founding treaty, the Rome Statute, calls “a widespread or systematic attack directed against any civilian population”. While Ukraine is not a party to the Rome Statute, the ICC can exercise jurisdiction under specific circumstances, such as when the alleged crimes were committed on the territory of a state that is a party to the Statute or when the United Nations Security Council refers a situation to the ICC.

The decision to investigate a non-member state raises important legal and diplomatic questions. It underscores the ICC’s willingness to address alleged crimes even in the absence of formal membership, emphasizing the Court’s role as a global arbiter of justice. However, it also brings to the forefront the delicate balance between the ICC’s pursuit of justice and the principles of state sovereignty.

The ICC’s actions in Ukraine may set a precedent for future cases involving non-member states, encouraging a collaborative approach to address impunity and hold perpetrators accountable. On the contrary, the ICC must navigate potential diplomatic challenges and ensure that its investigations are conducted impartially to maintain credibility and legitimacy. The Court’s success hinges on its ability to gather evidence, cooperation with local authorities, cooperation by states around the world, and protection of witnesses and victims. It provides an opportunity for Ukraine to actively participate in the pursuit of justice for alleged crimes committed within its borders, fostering a sense of shared responsibility in upholding international human rights norms. This investigation showcases the ICC’s commitment to its mandate, even in the face of geopolitical complexities. The outcome may not only shape the trajectory of justice in Ukraine but also influence the ICC’s approach to non-member states in the years to come.

For further information, please see:

UN – Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 – 1998

UN – United Nations General Assembly Resolution 60/147, Establishing the International Criminal Court – 2006

ICC – Ukraine and International Criminal Court sign an agreement on the establishment of a country office – 23 March 2023

ICC – Statement by Prosecutor Karim A. A. Khan KC on the issuance of arrest warrants against President Vladimir Putin and Ms. Maria Lvova-Belova – 17  March 2023

Al Jazeera – ICC sends 42-member team to probe alleged war crimes in Ukraine – 1 May 2022

International Human Rights Law Review – Will the International Criminal Court (icc) Be Able to Secure the Arrest of Vladimir Putin When He Travels?, Vol. 12, Issue 1 – 2023