Statement by Prof. Cecile Aptel,
The Fletcher School of Law and Diplomacy, Tufts University
Arria formula meeting on the issue of:
“Children and Armed Conflict:
How to put more pressure on persistent perpetrators”
9 July 2012
Excellences,
Madam the Special Representative of the Secretary General,
Ladies and Gentlemen,
It is a great honor to be invited to address you, and I thank you for this opportunity.
1. Non-State Persistent perpetrators
Over 75% of the so-called ‘persistent perpetrators’, who have been listed for grave violations
against children for at least five years, are non-state armed groups.
In light of this high percentage of non-state actors among the persistent perpetrators, I would like
to start by asking whether the ‘naming and shaming’ and the monitoring and reporting
mechanism are less effective in dealing with non-state armed groups than with States’ armed
forces? It would seem so, for at least three reasons.
First, the system is designed to work through dialogue with those violating the rights of children.
It is therefore intrinsically undermined when such actors cannot be reached. This is unfortunately
sometimes the case with certain non-state armed groups, either because of their own reluctance
or because the States concerned oppose direct contact. In his report, Mr. de la Sablière notes this
difficulty, and insists on the importance that the Working Group’s messages reach non-state
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actors. These difficulties demonstrate the importance of establishing communication with all
non-state armed groups. When direct dialogue is impossible, it could at least be indirect, through
other entities or organizations.
Second, the system is designed to influence the behavior of parties through incentives and
deterrents which, so far, result mostly from being ‘named and shamed’, or being listed or delisted. These are based on the assumption that the parties care about their international image and
reputation. This assumption must be questioned in the case of some non-state actors, who may
be convinced that the United Nations is partial, or may believe that they have been definitely
casted as pariah. These groups are less likely to make efforts to be de-listed.
Third, in today’s complex and protracted asymmetric conflicts, some armed groups may be
oscillating between political motives and criminal objectives, thereby also becoming less
responsive to incentives and deterrents which are mostly political, and less susceptible to enter
into a meaningful dialogue and improve their behavior.
In such contexts, the approach would benefit from being more-specifically tailored to each
specific situation and group. Also, as envisaged in resolution 1998, a broader range of options for
increasing pressure on persistent perpetrators must be identified. Ideally, to maximize its impact,
the pressure should be incremental, progressively augmented on persistent perpetrators by
resorting to increasingly coercive measures if the previous less coercive measures have failed.
2. Accountability
Among these incremental measures which could be used to put pressure on persistent
perpetrators are criminal accountability measures.
These measures have been evoked by the Special Representative, notably in her last report. The
Council itself has regularly referred to accountability, as early as in resolution 1314 of 2000,
when it urged all parties to armed conflict to respect fully international law applicable to the
rights and protection of children in armed conflict, in particular the Geneva Conventions and
their Additional Protocols and the Convention on the Rights of the Child and its Optional
Protocols. The Council emphasized the responsibility of all States to put an end to impunity and
to prosecute those responsible for genocide, crimes against humanity and war crimes.
References to accountability have been reiterated by the Council, such as in resolution 1998.
The Council could further encourage the States primarily concerned, those on whose territory
parties to a conflict persistently commit crimes against children, to effectively implement and
meet their obligations under international law. It could encourage these States to ensure that
their national legislations specifically criminalize war crimes, crimes against humanity and
genocide, in particular when committed against children. An example would be to ensure that the
recruitment and use of children to participate in hostilities is criminalized under national law.
The States concerned could also be encouraged to adequately support their domestic or national
judiciary to ensure that those responsible for these crimes are investigated and tried more
efficiently and systematically.
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These measures would, in turn, simultaneously put increased pressure on the persistent
perpetrators, and send a strong signal to the population that violations against children are grave
crimes which are not tolerated.
The Council could consider taking an approach similar to the one it adopted when addressing
terrorism, notably through resolutions 1368, 1373 and 1566.
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Resolution 1373, unanimously adopted under Chapter VII of the Charter, requires all
Member States to ratify and implement the provisions of different international
counterterrorism instruments. A similar approach could be adopted to require that
member States ratify and implement the international treaties protecting children in
armed conflicts.
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The Counter-Terrorism Committee, charged with monitoring compliance with Resolution
1373, has requested all Member States to submit reports on the measures they had
adopted in implementing the resolution. A similar procedure could be initiated by the
Council concerning the measures taken by States to sanction violations against children
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To take a last example, resolution 1566 calls on countries to prosecute or extradite
anyone supporting terrorist acts or participating in the planning of such crimes. A similar
call could be made concerning crimes against children, in particular those constitutive of
international crimes such as war crimes.
If the forceful approach adopted when addressing terrorism were to be reproduced for crimes
against children, it would underline the importance that the Council attaches to these crimes, and
would strongly signal to States and non-state parties alike that inaction and impunity will not be
tolerated.
While this approach is forceful, it also respects the sovereignty of the States concerned, giving
them the opportunity to ‘take the first bite’ and remedy the situation of impunity which enable
persistent perpetrators to continue to abuse children.
Following the logic of the incremental approach outlined earlier, and in compliance with
international law, if the States concerned were to be unable or unwilling to hold the persistent
perpetrators to account, at least two successive steps could be envisaged. The first could be to
publicly request the Special Representative to share the information in her possession with the
International Criminal Court, thereby putting the persistent perpetrators and their State on notice.
As a second step, the Council could envisage referring the situation to the International Criminal
Court, as it has already done in different cases through resolutions 1593 and 1970.
The International Criminal Court, following on the steps of the Special Court for Sierra Leone,
has demonstrated its capacity to deal with crimes committed against children, with the judgment
of Thomas Lubanga Dyilo.
Excellences,
Ladies and Gentlemen,
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To conclude, I would like to highlight that the range of grave violations and abuses suffered by
children in armed conflict is large, and that the children of the World will be better protected in
conflict if the Council not only deepens and reinforces its action with regard to some of these
violations, but also, despite the difficulties, broadens its reach to adequately cover all the
violations it has identified in its successive resolutions, and ideally encompass other violations as
well.
I thank you.
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