A future Crimes Against Humanity Convention holds tremendous potential to strengthen protection for people at risk of egregious rights violations when part of a widespread or systematic attack directed against any civilian population, whether in armed conflict or other situations of violence, repression, or instability. But few States have considered how it could enhance access to justice for children—a key missed opportunity.
Nearly one-third of the world’s population is under age 18, and as many as 149 million children live in high-intensity conflict zones. Children are among the victims of every act currently understood or proposed as a crime against humanity. Crimes against humanity may damage children’s physical and psychosocial development even more severely than adults’, as well as cause lifelong economic and social harm. With less than a year before States can submit formal proposals for amendments to the International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity (Draft Articles), now is the right time to address this missing piece of the puzzle.
On May 5, representatives from States, civil society, the United Nations, and academia came together to discuss proposals to strengthen prevention, protection, reparation, and justice for children in a future convention.
The conference followed the issuance of a briefing paper endorsed by 38 organizations (including those where the present authors work) and individuals on the need for child-specific provisions in a future convention. Ambassador Alicia Buenrostro Massieu, Deputy Permanent Representative of Mexico to the United Nations in New York, opened the conference by noting, “We have a responsibility to build a treaty that does not leave children behind.”
In addition, Undersecretary of State Zuzanna Rudzińska-Bluszcz from the Ministry of Justice of the Republic of Poland urged during her presentation, “As we move forward in the negotiations of the convention, it is crucial that we pay special attention to one group that has been too often overlooked, especially in the twentieth century . . . children. They are abducted, recruited as soldiers, sexually abused, forcibly disappeared, and deprived of their childhoods in conflict zones . . . In these crimes children must be protected, their rights must be safeguarded, and their future must be ensured.”
A U.N. Preparatory Committee is set to begin working in January 2026 toward States’ negotiation of the convention in 2028 and 2029.
In the last 30 years, much has been learned about how children are targeted and uniquely harmed because of their age when, for example, they are recruited and used by armed actors or abducted and forcibly married. More, too, has been learned about how to make justice processes accessible and safe for children.
Child-specific provisions are needed in a future convention to increase the visibility of certain crimes that affect children specifically, and to heighten the likelihood that these crimes would be among the charges brought by a prosecutor. In addition, provisions are needed to ensure the safe and fair participation of children in criminal proceedings and to guarantee special protections for children accused of committing crimes against humanity.
Endorsers of the briefing paper are urging States to use this opportunity to ensure that children are visible and more specifically included in a future convention, and that children can access and benefit from any related justice and reparation processes. These goals also have relevance within existing frameworks, such as the International Criminal Court.
Making Children More Visible in a Future Convention
Despite numerous crimes against humanity committed against children, children are mentioned only twice in the Draft Articles, once in the opening paragraph of the preamble and once in the crime of enslavement (article 2(1)(c)). At least two textual suggestions should be considered to make children more visible in a future convention.
First, including language in the text that a child is anyone under age 18, drawing on the language of the Convention on the Rights of the Child (the most ratified and universally accepted human rights instrument), would help ensure clear and consistent application of a future convention to children. Poland made a similar proposal last year.
Furthermore, adding a second reference to children in the existing preamble paragraph regarding victims and witnesses (“Considering the rights of victims, witnesses, and others, including children”) would highlight the importance of making justice processes accessible to children and ensure that children are explicitly included in the convention’s protections.
Crimes Against Humanity Affecting Children
Children may fall victim to all the crimes against humanity listed in article 2 of the Draft Articles: murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty, torture, sexual violence (rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization), enforced disappearance, apartheid, and other inhumane acts. The Draft Articles should be amended to explicitly add the crimes of forced marriage and the recruitment and use of children. The enumerated crimes and their definitions should better capture crimes against humanity affecting children. Any assessment of a crime’s gravity, if relevant, should also reflect the distinct harm to children. Below are our main recommendations.
a. Including Age as a Ground for Persecution
Some victims of persecution are targeted specifically for their age for the purposes of enslavement, forcible transfer, denial of education, sexual violence, forced marriage, and child recruitment. While age has already been deemed a ground for persecution, it is not yet explicitly enumerated in the Draft Articles’ definition of persecution, instead being identified as one of the “other grounds.” Specifying “age” as an explicit ground for persecution would increase the visibility of children as victims of this crime and the likelihood that prosecutors consider investigating and, if sufficient evidence exists, prosecuting persecution based on age.
b. Forced Pregnancy
Regarding the crime of forced pregnancy, the Draft Articles mention only “a woman forcibly made pregnant” (article 2(f)). Adding “girl, or other person” to follow “woman” in the definition would avoid it being misread to exclude people under 18, as well as gender-diverse people, who are also subjected to this crime.
c. Forced marriage
A future convention should codify existing jurisprudence and explicitly recognize forced marriage as a separate crime against humanity. Moreover, the definition of the crime should consider whether a person’s age may have prevented them from providing genuine consent to the marriage. A similar assessment of whether age may prevent a person from giving “genuine consent” is required for other crimes in the Rome Statute.
d. Recruitment and Use of Children
A future convention should also include the crime of recruiting, enlisting, or using people under age 18 to participate in armed violence. Since the adoption of the Rome Statute, States have expanded international prohibitions of the recruitment and use of children below 18.
The widely ratified Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict contains a general prohibition on compulsory recruitment and use of children under 18, including during peacetime, and calls on States to adopt legal measures to prohibit this crime. Recruitment and use of children should be added as a separate crime against humanity to strengthen the likelihood of prosecution and acknowledge the gravity and scale of the violation.
Children Accused of Crimes Against Humanity
The convention should specify that States should exclude from prosecution in the adult criminal justice system crimes against humanity allegedly committed by people under age 18 and ensure that any such cases are handled only within a dedicated child justice system that prioritizes the child’s best interests and all other relevant safeguards.
Children accused of crimes against humanity are entitled to special protections. With respect to crimes under international law and other serious human right violations, international guidance calls for children associated with armed groups and forces to be treated as victims first and foremost, and recognizes that children who carry out crimes in this context have often also been subjected to abuse (e.g. recruitment, sexual abuse, slavery, and forced drug use) and forced to act under duress.
Child Victims and Witnesses
Every investigation and prosecution of crimes against humanity should assume that children may be victims, or witnesses, or otherwise affected. A future convention should adopt a definition of “victim,” currently not defined in the Draft Articles, such as the one used in Rule 85 of the ICC Rules of Procedure and article 81 of the recently adopted Ljubljana-The Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes Against Humanity, War Crimes and Other International Crimes. The definition should be sufficiently broad to encompass anyone who suffers harm from acts that constitute crimes against humanity. This would ensure that children who are individually targeted, as well as those who have suffered indirect harm, are all identified as victims.
In addition, a future convention should incorporate specific measures to ensure the participation of child victims and witnesses in criminal proceedings, emphasizing the best interests of the child, child-sensitive approaches, and the importance of criminal procedures that take into account children’s specific needs. Children have a right to be heard in judicial and reparation proceedings that affect them.
Finally, a future convention should go beyond the Draft Article on the right to reparation to include a provision recognizing the need to give special attention to children who are victims. Because child victims of crimes against humanity suffer harm that is unique and distinct from the harm against adults and have specific needs, reparation measures and programs should include provisions specifically tailored according to their age and responsive to children’s situations.
Conclusion
Unlike individual crimes, crimes against humanity capture the widespread or systematic nature of violations, reflecting their scale, coordination, and intended impact on entire communities. The collective and long-term harm caused by these crimes is not only inflicted on individual children, but also on whole future generations, and on the social fabric they depend on to develop.
Incorporating child-specific provisions and child-centered approaches into a future Crimes Against Humanity Convention would help domestic justice systems to better capture children’s unique experiences and needs, and to uphold their rights. This will enhance the protection of children and ensure accountability and redress for crimes against humanity when they disproportionately target and impact them.
FEATURED IMAGE: Women reflect in dirty water in Nastiraishe’s neighbourhood. The residence faces acute water shortages amongst early child marriages on October 28, 2021 in Epworth, Harare, Zimbabwe. (Photo by Tafadzwa Ufumeli/Getty Images)
