36 Children’s Legal Rights Journal [Vol. 38: 1 2018]
to the conscience and order of the international community and hence accountability through a fair
judicial mechanism and process is imperative.
Such special criminal courts as the Special Criminal Court of CAR, for instance, will
hopefully be empowered with special expertise to consider sexual exploitation and sexual abuse
crimes against children and others, including SEA perpetrated by international peacekeepers.
Given the sensitivity and widespread occurrence of SEA, including that committed by international
peacekeeper perpetrators against children, proper procedure in presiding over and evaluating such
cases must include special attention paid to ensuring the respectful treatment of the SEA victims-whether children or adults- at all stages of the Special Criminal Court judicial process.
The special criminal court could apply a mix of national and international law, as relevant
and applicable, addressing the situation in a specific State such as CAR, as is the plan for the CAR
Special Criminal Court. Such special criminal courts would most often likely have jurisdiction for
a limited duration of time, and over crimes that occurred within a specified-period of time with
due consideration also of “continuing violations.”165 Thus, the special criminal court would be
able to prosecute international peacekeepers and others for SEA crimes against children or adults
where the court has the required jurisdiction and where the international peacekeepers’ home state
is unable or unwilling to prosecute, or prefers to have the special criminal court address the matter.
The domestic courts of the troop contributing country and its military tribunals would not then be
over-extended by having to handle large volumes of such international peacekeeper SEA cases
and could potentially refer some of the most serious cases to the special criminal court.
A special criminal court may also be able to fill the gap should the crimes committed
constitute grave human rights violations, but not satisfy all the elements of the Rome Statute, or
not otherwise fall under the jurisdiction of the existing permanent International Criminal Court
located in The Hague. Further, where such special criminal courts can feasibly be and are in the
territory in which the crimes took place, there is the greater possibility of the SEA child victims
participating in the criminal accountability process. However, there may be instances where it is
advisable that the special criminal court be located, for all, or just for selected cases, outside the
territory in which the crimes took place ( i.e. to better ensure security for child and other witnesses
or parties during and after the trial, etc.).
Special criminal courts, such as that established for CAR, should, on the view of the current
author, allow for both ‘child witnesses’ and ‘child victim participants’ (the latter being full parties
to the process) as per the ICC model.166 The latter, it is here respectfully suggested, is more
consistent with full respect for children’s Convention on the Rights of the Child Article 12
8. 2 A Special Temporary Criminal Court Outside the National System
165 See generally Pawelyn, supra note 129.
166 Elisabeth Baumgartner, Aspects of victim participation in the proceedings of the International Criminal Court, 90
INT’L REV. OF THE RED CROSS 409, 425 (June 2008). See also ICC, RULES OF PROCEDURE AND EVIDENCE 33-38 (2d
ed. 2013); see also Stephen Cody et al., The Victims’ Court? A Study of 622 Victim Participants at the International
Criminal Court, HUM. RTS. CTR., U.C. BERKELEY SCH. OF L. 1, 1 (2015).
167 CRC, supra note 5, at art. 12.