In 2012 the International Criminal Court (ICC) issued its first judgment pursuant to the Rome Statute, the international treaty that defines, inter alia, the ICC’s jurisdiction to investigate and prosecute war crimes. Almost six years after issuing a warrant for his arrest, the ICC convicted Thomas Lubanga Dyilo with the war crimes of enlisting and conscripting children under the age of 15 years and using them as child soldiers. Lubanga is currently serving a prison sentence of 14 years.

For victims, justice was slow. The armed conflict, in which children had been exploited as active participants in direct hostilities, occurred between 2002-2003. The trial involved the testimony of 67 witnesses, three of whom were victim-witnesses (Women’s Initiative for Gender Justice, 2010, p. 137-139). The prosecution, in this case, acknowledged that these witnesses, “transformed their suffering into evidence” thereby playing a crucial role in securing justice (ICC, 2012, p. 1).

As this case illustrates, in some circumstances, child victims are permitted a role as active participants in justice processes, therefore effective justice responses for children require an understanding of the various ways in which the categories of victim, witness, and alleged offender sometimes overlap. In the Lubanga case, the legal designation of “victim-witness” became a point of contention as the Trial Chamber found that the prosecution had relied extensively on intermediaries to access former child soldier witnesses. In many instances, where discrepancies arose in witness testimony, the Trial Chamber found that witnesses lacked credibility and, upon finding that the witnesses had been vulnerable to manipulation, the designation of victim-witness was revoked. The complexities in this trial point to the challenges in ensuring justice for child victim-witnesses, and underscore the importance of safeguards and minimum standards, particularly in circumstances that are likely to be confusing or intimidating. The ICC demonstrates particular attention to safeguarding vulnerable witnesses, having developed protocols that comprise a range of special measures, including for witnesses perceived to be vulnerable due to their age (children and the elderly).

While the ICC’s first conviction is held as a milestone achievement in international criminal law, there is some contention as to the extent to whether the full range of crimes endured by child victims was acknowledged through the respective conviction and reparation phases of the case. This includes the perceived failure to include charges for sexual and gender-based crimes “against the leader of a militia group widely known to have committed rape, sexual enslavement, and other forms of sexual violence” (Inder, 2011). While the Trial Chamber did recognize the severity of the sexual violence endured by victims, and the suffering of victims was acknowledged as part of the reparation phase of the case, victim advocate groups maintain that the failure to investigate and issue charges for sexual and gender-based violence resulted in a “gender injustice cascade” though all subsequent phases of the trial and reparations process. As Chappell explains:

“The ultimate effect of the cascade has been to limit victims of the sexual and gender-based crimes in this conflict from gaining any direct access to reparations measures, let alone the ‘transformative’ ones some advocates were searching for” (Chappell, 2017, p. 1223).

While scholars continue debate the various points of law pertaining to the investigative and prosecutorial scope in Lubanga, the treatment of sexual and gender-based violence in this case prompts critical attention to the extent to which legal process and legal institutions can, or currently do, address the range of justice needs experienced by victims of crime. Although the mechanisms vary across the international criminal jurisdiction, domestic criminal courts, juvenile or youth courts, and domestic courts that deal with family matters, the importance of justice for victims is the subject of international consensus, as recognized in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (General Assembly resolution 40/34, annex) as well as in the UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, 2005.

Sam, who lives with his mother and father, has been witness to extreme violence between his parents since he was four years of age. By the time Sam is 11-years-old, his parents’ have decided to dissolve their marriage, and they have become embroiled in complex divorce proceedings in the Family Court. On review of the history of extreme violence, and parental substance abuse, the Court decides that Sam should be removed from his parents and placed in alternative care. The location of Sam’s accommodation unit requires that he change schools. This means that in addition to losing daily contact with his parents, Sam also loses his friends, his teachers, and his soccer team. Sam makes a new friend in the accommodation unit and, together, they start skipping school, consuming alcohol, and breaking into cars to steal. Eventually, the manager of the accommodation unit observes this behaviour, and reports Sam and his new friend to the police. Sam is charged with breaking and entering a motor vehicle and, given he is above the age of criminal responsibility in his country, he faces criminal sanction for his actions.

Sam’s situation is extremely complex, and “justice” would involve much more than ensuring that he has access to a defence lawyer to assist with proceedings for the criminal charge. The rights enumerated in the CRC, and the specific guidance and rules enumerated in the relevant UN standards and norms on crime prevention and criminal justice, provide a strong foundation for understanding what a concept of “justice” would encompass for Sam. The following section illustrates the importance of coordinated and multi-sectoral responses that recognize a child’s full context (a child’s ecology) rather than reductive, and often heavy-handed, interventions that seek to either “fix” or “punish” a child’s unlawful or anti-social behaviours.