On 27 October 2015 Mr Ugo Cedrangolo defended his PhD thesis in International Studies, entitled “Child Victims, Witnesses and Offenders in International Criminal Justice”, at the Graduate Institute. The committee was presided by Professor Paola Gaeta and included Professor Andrew Clapham, thesis director, as well as Mr Jean Zermatten, former director of the International Institute for the Rights of the Child in Bramois, Switzerland, and Professor Olivier de Frouville from Paris II Panthéon-Assas University. Mr Cedrangolo’s research notably stands out for examining at the same time the treatment and rights of children as victims, as witnesses or as potential offenders in the framework of international criminal justice.

Why did you decide to work on this subject?

Both my professional experience (I work for OHCHR and supported for many years the activities of the UN Committee on the Rights of the Child) and personal interest have led me to reflect on the situation of children who enter in contact with international criminal justice as victims, witnesses and – potentially – as offenders. I find this topic fascinating for a number of reasons:

• It concerns a relatively new and rapidly evolving area of international law, with the natural consequence that there are still a number of gaps and, at the same time, opportunities to fill them.
• It implies a multidimensional approach, as it involves not only legal questions but also sociological, moral, philosophical and policy considerations.
• It allows an interdisciplinary approach, touching upon international criminal law (ICL), international humanitarian law (IHL) and international human rights law (IHRL).
• It allows an original thesis. To my knowledge, in fact, while a lot has been written on child soldiers and – to a lesser extent – on the accountability of children for international crimes, there is no academic work discussing at the same time the treatment and rights of children when they act as victims, appear as witnesses, or when they are considered as potential offenders in the framework of international criminal justice.

What are the major findings of your research?

I will present these findings in accordance with the three main thematic areas of my thesis: (1) children who become victims of international crimes, with a particular focus on the prohibition of child recruitment and the related war crime; (2) the treatment of children when they enter into contact with international criminal justice as victims or witnesses with a focus on their protection, as well as access to justice in terms of participation and reparation; (3) the accountability of children for international crimes.

1. While the last three decades have seen huge progress in the standard-setting related to the protection of children, they continue suffering widespread violations of their rights, the most notable being the recruitment and use of children in hostilities. One of my main findings is the possible emerging of higher standards in international law in relation to the prohibition of child recruitment and use in hostilities. In this respect, I examined treaty law (both IHL and IHRL) as well as the current status of customary law on the issue of child recruitment and use in hostilities, including the obligation of non-state armed groups. I also analysed in details sources of soft-law and the practice of States as well as of the United Nations and other bodies, focusing in particular on the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (CRC OPAC) and the most significant jurisprudence of the CRC Committee thereon.

Through my research, I found that we can affirm – with a certain degree of confidence – that we are moving towards higher standards in international law, i.e. the prohibition of compulsory recruitment of children under 18 and their direct participation in hostilities, both for armed forces and groups.

2. There has been no doubt an extraordinary improvement in recent years when it comes to children’s access to international criminal justice, notably with the participation scheme established by the International Criminal Court (ICC). Child victims in Lubanga, for instance, were able to participate in the proceedings by introducing evidence, questioning witnesses and present oral and written submissions. This was unimaginable only few years ago.

There are however important challenges with respect to the implementation of the right of children to participate before the ICC. One of these is certainly the slowness of and delays in the proceedings, resulting in overly long trials and few victims actually effectively participating. One of the main reasons for this is the lack of coherence in the jurisprudence relating to participation. I believe that a time may have come to make a choice between an almost perfect theoretical approach with scarce practical results and a perhaps less ideal one which though may ultimately lead to a less cumbersome and more effective and meaningful participation for victims, including child victims.

A more pragmatic approach to participation would also serve to strike a better balance between participatory rights and the right of the accused, to avoid what some scholars have defined as the “impartiality deficit” in international criminal justice due to an excessively active role of participating victims, which could represent a serious problem for the principle of equality of arms.

As for the issue of reparation for children, the decision on reparations in the Lubanga case before the ICC is an historical one as it is the first time child victims receive reparation in the context of an international criminal proceeding.

With respect to the forms of reparations, I found that the approach taken by the Trial Chamber in Lubanga – and largely confirmed by the Appeals Chamber – suggesting a collective community-based approach for the reparation of child victims was the right one in this case, for the following reasons:

• The collective forms of reparation identified in the judgment have an individual component and may ultimately results in benefits for the individual children (e.g. measures of reparation focusing on health or education).
• They will be designed and implemented in consultation with children themselves and their representatives in the community.
• They are less likely to result in social stigmatisation and possible reprisals in the community of origin.
• Finally, they are more easily implementable and are less costly.

On the other hand, these collective reparations need to be implemented with an individual component and when victims are older boys and girls or require more tailored measures, individual reparations may be preferable.

3. There is a growing consensus that child soldiers should be seen primarily as victims and not be prosecuted and tried through international criminal justice mechanisms for the crimes they may have committed once recruited. However, it is hard to conciliate this notion with the fact that these children are sometimes the author of grave crimes. I examined different complex issues resulting from this situation and proposed recommendations on the way forward, including in relation to: the opportunity of prosecuting child soldiers (national vs. international criminal jurisdictions); the value of their agency and their evolving capacities; whether some defences would be available to them in form of excuses, and which ones; whether children possess an adequate mens rea to be able to commit international crimes; the need to seek an agreement with respect to a minimum age of criminal responsibility for international crimes; what is the best interest of the child in these cases; what forms alternative to prosecution would best suit children who may have committed international crimes; and the responsibility of recruiters for the acts committed by the children.

Can you give us an example of a topical issue on which your research might help shed a new light?

One of the main arguments of my thesis is the need to focus more in international criminal justice on the responsibility of commanders/superiors for the crimes committed by the children they recruit. I believe in fact that international criminal tribunals, including the ICC, have so far failed to adequately explore and use the available legal tools to hold superiors/commanders responsible for the crimes committed by child soldiers they have recruited in violations of international norms. This would apply not only to the acts carried out by children below the age of 15 years (who in principle are considered as victims under the current customary norm on the prohibition of child recruitment) but also by those 16 and 17 years old recruited when they were below 15, given that the war crime of child recruitment can be considered as a continuous crime. I argue that all adequate legal tools exist in international criminal law to possibly hold recruiters accountable, for instance through the legal concept of “perpetration by means” or indirect participation, encompassed in article 25 (3) (a) of the ICC Statute, according to which “… a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible …”. This is clearly applicable to the case of crimes committed through children, who are not subject to the jurisdiction of the Court in light of article 26 of the ICC Statute. This approach would be a breakthrough in international criminal justice to bridge the current accountability gap for the crimes committed by those in the 15–18 age range.

Illustration: Antoine Bourdelle, Héraklès archer, bronze. Musée des Beaux-Arts de Lyon, France, acquis de l'artiste, 1927. © Lyon MBA – Photo Alain Basset.