The Convention on the Rights of the Child, adopted 25 years ago, was a truly ground-breaking document. Not so much because it codified the human rights of children into one document, nor because it has subsequently become the most widely ratified human rights instrument in the world. The real innovation – which continues to be a bedrock in the conceptualisation of children’s rights today – is the conception of the child as a rights holder, not merely an object of protection. This in many ways marked a turning point in how children are viewed within the societal or community context. Around the world, children were considered to have a similar status to possessions, to be told what to do and to be subject to the whims of others, and in some cases to be traded for the benefit of adults, among other things. There was no generally accepted idea that children might be rational actors, with lives and interests separate from (albeit part of) the family and community at large. Nor was there a real notion that children might be capable of making, or at least contributing to, decisions affecting their lives. With the adoption of the CRC, all of that changed – in theory at least, even if practice has taken and is taking longer to catch up, as it usually does.

The concept of the child as a rights holder, however, is informing discussions of and developments around the implementation of international justice and accountability efforts. Prior to the turn of the century, children got pretty short shrift when it came to judicial and non‑judicial accountability mechanisms. While crimes and other violations against children were not totally absent, both in foundational documents and in factual narratives, they were under‑charged and under-represented in those mechanisms, which did little if anything to involve children in their work. The prevailing thought – if any was given – was that adults could accurately convey the experiences of children, who would invariably find it too distressing or even traumatic to participate directly themselves.This is a view that is still held by many today, notwithstanding the clear recognition of the right of the child to participate in judicial and administrative proceedings affecting their lives, as reflected in the CRC. It is also a commonly-held view despite a developed understanding of how children’s evolving capacities to understand these kinds of proceedings and to overcome distressing experiences can be an important step in their overall healing and recovery following trauma, such as massive human rights violations.

Nonetheless, there have been developments in paying attention to the experiences of children in both judicial and non-judicial proceedings, and to involving children in their work, since the turn of the century. The Special Court for Sierra Leone, for example, focused on the experiences of children throughout their indictments and decisions. Several truth commissions and other non-judicial mechanisms have also focused on violations against children, including disseminating child friendly versions of their reports. The International Criminal Court has likewise had a focus on children, albeit through the lens of specific cases rather than mainstreaming children’s experiences in a representational way as part of an overall case and even then, with a focus on the conscription, enlistment or use of children to participate actively in hostilities. The ICC Prosecutor, upon taking office in 2012, indicated that this should change under her leadership: the focus would not be only on child soldiers, but on all children affected by armed conflict, including children involved with armed forces in numerous different ways. The Prosecutor is making good on this commitment, through the investigations she is directing and the cases she is bringing, as well as through the development of a children’s policy, along the same lines as the sexual and gender-based violence policy developed not long after she took office. The rest of the world – in both judicial and non-judicial mechanisms – would do well to follow the example set by Fatou Bensouda, even as we encourage her to do even better in the years ahead.

The 25th anniversary of the Convention on the Rights of the Child provides an opportunity, as such important anniversaries do, to reflect both on the achievements of the last 25 years and to build on those achievements for the next 25 years. The conceptualisation of the child, that is anyone under the age of 18, as a rights holder is one that should stay unchanged: children are human beings with rights the same as anyone else, albeit with a greater need for help in realising those rights. It is incumbent upon today’s adults in all spheres of life, including international justice and accountability, to work with today’s children to improve how that is done, in a way that facilitates the enjoyment of all of their rights in a manner consistent with their best interests. This is the best gift we can give to mark this important occasion and, in many ways, one of the most important responsibilities we have.

*  Alison Smith is Legal Counsel and Director of International criminal Justice Program of No Peace Without Justice

For further information, contact Alison Smith on asmith@npwj.org or +32-2-548 39 12 or Nicola Giovannini on ngiovannini@npwj.org or +32-2-548-3915.