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Children in Armed Conflict . Legal Theory. Enemy Combatants Unlawful Combatants Terrorists (including children) . Fundamental Legal Framework. 1.- B 9/11 – A 9/11 2.- General Legal Norms (umbrella) GC/ GP 2.- Specific to Children (CRC/Protocol)

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slide3

Legal Theory

Enemy Combatants

Unlawful Combatants

Terrorists

(including children)

slide4

Fundamental Legal Framework

1.- B 9/11 – A 9/11

2.- General Legal Norms (umbrella) GC/ GP

2.- Specific to Children (CRC/Protocol)

3.- Special focus and international legal interest & decisions

slide5

Universal Challenge

Global War on Terror

international law new legal theories and philosophies

International Law New Legal Theories and Philosophies

For the Greatest Good

With us or against us

Theory of the Preventive attack

Approach to Human Rights and Criminal Justice from the perspectives of Jakobs' Law of the Enemy.

HRG/SCr1624(2005)

criminal law of the enemy jakobs
‘Criminal Law of the Enemy' Jakobs
  • a) the defendant is criminalized solely for the potential threat posed by his/her status of terrorist;
  • b) the due process guarantees are limited or cancelled;
  • c) the penalties are so severe and disproportionate such that they 'lie outside the call for reflection, moderation and control, typical of the rule of law and more concretely the criminal law.'
  • Since it is a type of law specifically intended to neutralize enemies, once they are identified, the punishment intervenes pre-emptively.
  • Such penalties mostly concern deportation or solitary/secret confinement (incommunicado) and might even have no fixed term.
2 6 5 legalization of special investigative techniques resolution 1373 paragraph 2 e
2.6. 5

Legalization of Special Investigative techniques

Resolution 1373 Paragraph 2 (e)

PIA (SC/CTED)

8

HRG/SCr1624(2005)

slide9

General Legal Norms: GC/ GP

Umbrella

Four Geneva Conventions of 1949

Additional Protocols to the GC 1977

(Established initial standards prohibiting child recruitment)

slide10

General Legal Norms: GC/ GP (2)

Geneva Conventions of 1949

Major improvements in the legal protection of victims of conflict.

Apply essentially to international conflicts – wars between states.

Only Article 3, common to all four Conventions, refers to internal conflicts; its adoption was itself a great step forward but the rules contained in the Article are mainly of a general nature.

Countries that became independent after 1945 “inherited” the Geneva Conventions from the former colonial powers – the adoption of the Protocols was also an occasion for them to contribute to developing the law.

combatant s privilege geneva conventions
“Combatant’s Privilege” Geneva Conventions
  • Under the Geneva Conventions, members of a state’s armed forces who kill enemy combatants on the battlefield may not be prosecuted for murder under the domestic laws of the enemy state.
  • Individuals who take up arms that are not part of a state’s armed forces, so-called unlawful (or, more properly, unprivileged) combatants, enjoy no such immunity from domestic criminal prosecution.
geneva conventions
Geneva Conventions
  • To kill an enemy combatant on the battlefield, is not a war crime
  • Battlefield killing only becomes a war crime when a combatant – privileged or otherwise – targets a person with protected status, or uses prohibited methods of killing.
  • Protected persons include civilians, all persons in custody, incapacitated military personnel, or military medical or religious personnel.
  • Prohibited methods include the use of human shields, poison gas, or intentional deception designed to induce the enemy into believing that one is a protected person (which is known as perfidy).
conflicts of not of an international character art 3 1
Conflicts of not of an InternationalCharacter Art 3 (1)
  • In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria

conflicts of not of an international character art 3 2
Conflicts of not of an InternationalCharacter Art 3 (2)

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

a) violence to life and person, in particular murder of all kinds, mutilation,

cruel treatment and torture;

b) taking of hostages;

c) outrages upon personal dignity, in particular humiliating and degrading

treatment;

d) the passing of sentences and the carrying out of executions without

previous judgment pronounced by a regularly constituted court, affording

all the judicial guarantees which are recognized as indispensable

by civilized peoples.

conflicts of not of an international character art 3 3
Conflicts of not of an InternationalCharacter Art 3 (3)
  • The wounded and sick shall be collected and cared for.
  • An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
  • The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
  • The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
gc protocol i
GC Protocol # I
  • TheParties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces.
  • In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest.”
gc protocol 2
GC Protocol #2
  • Article 4(3) Protection of Victims of Non International Armed Conflicts (Protocol II)

“Children shall be provided with the care and aid they require, and in particular:

(c) Children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities.”

ihl in d ecline
IHL in Decline?
  • How to apply IHL when nature of armed conflicts have dramatically changed?
  • Countries decide to sub-contract mercenaries?
  • Hostilities developed via computer or nanotechnology?
  • How does IHL applies when new war strategy has been adopted? ( saving own forces to the cost of enemy lives including civilians)
slide20

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Signature

25 Jan 1984 

Entry into force

26 June 1987  

protection against torture non derogable right
Protection against Torture: Non-derogable right
  • As ‘terrorist’ threat is high, torture becomes justified as a modality to extract life-saving information for the greater public good.

4

convention against torture and other cruel inhuman or degrading treatment or punishment 1
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1)
  • Article 1 (1) …the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
  • It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions...
convention against torture and other cruel inhuman or degrading treatment or punishment 2
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2)

Essential elements for  torture:

  • The infliction of severe mental or physical pain or suffering
  • By or with the consent or acquiescence of the state authorities
  • For a specific purpose, such as gaining information, punishment or intimidation
  • Torture is characterised and distinguished from other forms of ill-treatment by the severe degree of suffering involved.
convention against torture and other cruel inhuman or degrading treatment or punishment 3
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (3)
  • Cruel treatment, and inhuman or degrading treatment or punishment are also legal terms which refer to ill-treatment causing varying degrees of suffering less severe than in the case of torture.
  • It does not have to be inflicted for a specific purpose, but there does have to be an intent to expose individuals to the conditions which amount to or result in the ill-treatment.

Elements of the offence

    • Intentional exposure to significant mental or physical pain or suffering
    • By or with the consent or acquiescence of the state authorities
convention against torture and other cruel inhuman or degrading treatment or punishment 4
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (4)
  • Article 2 (1) Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
  • No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
  • An order from a superior officer or a public authority may not be invoked as a justification of torture.

ABSOLUTE PROHIBITION!!!

convention against torture and other cruel inhuman or degrading treatment or punishment 5
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (5)
  • Prohibition of expel, return ("refouler") or extradite a person when it would be in danger of being subjected to torture (art. 3)
  • Incorporation as offences into criminal law (art. 4)
  • Norms of jurisdiction and extradition (arts. 5-9)
  • Education and training of law enforcement personnel (civil, military, etc) (art. 10)
  • Right to prompt and impartial investigation, availability of effectives remedies and adequate compensations for victims of torture (arts. 12-14)
  • Inadmissibility in court’s proceedings of evidence gathered through torture (art. 15)
will you order it
Will you order it?
  • Imagine: Police has captured a child terrorist whom they suspect has placed a bomb that is about to explode in the middle of a large city.
  • Police believes that only torture will make the suspect disclose the information needed to prevent the deaths of thousands of people.
  • The question is posed: “May the person be tortured?”

4

detainee policies
’Detainee Policies’

Wikileaks releases 2002 Camp Delta SOP manual

Thursday, 25th October 2012

http://wikileaks.org/detaineepolicies/

4

cat committee
CAT Committee
  • The obligation to protect against and sanction torture is an obligation ergaomnes, an obligation owed to all States.
  • In a case in which it has been alleged that the “interrogators who use physical pressure in extreme circumstances (“ticking bomb cases”) might not be criminally liable as they may be able to rely on the “defence of necessity”;
  • The CAT Committee reiterates its previous recommendation that the State party completely remove necessity as a possible justification for the crime of torture.
  • See CAT Concluding Observations/Recommendations on Israel (art. 19), on 2002 (A/57/44(SUPP)) and 2009 (CAT/C/ISR/CO/4)

4

erga omnes
ErgaOmnes

In toto fine ergaomnes et omnia

Latin: “Towards everyone". For all purposes, in regards to all and everything.

4

slide31

The Convention on the Rights of the Child (CRC) signed by

  • the United Nations General Assembly in 1989 protects
  • children under the age of 15 from involvement in the
  • armed forces. All countries but Somalia and the United States
  • have ratified the CRC.
  • A 2000 Protocol (optional addition) to the CRC raised the
  • age from 15 to 18 years.
    • This Protocol also prohibits non-governmental armed
    • groups from recruiting soldiers under the age of 18
the convention on the rights of the child 1
The Convention on the Rights of the Child (1)
  • The CRC is a treaty that lays out the rights of children and the standards to which all governments must aspire in order to promote these rights
  • Recognizes armed conflict practices as a violation of human rights, and obliges each government to work toward eliminating these practices within their own nation and throughout the world.
the convention on the rights of the child 2
The Convention on the Rights of the Child (2)

Article 38(2)

“States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.”

slide34

The Optional Protocol to the

Convention on the Rights of the Child on the involvement of children in armed

conflict

  • Entered into force on 12 February 2002
  • milestone in the eradication of children in armed
  • conflict
  • Strengthens the legal protection of children and
  • helps to prevent their use in armed conflict.
slide35

Security Council and Children in Armed Conflict

“The heinous crimes committed against children should motivate the Council to contemplate coercive measures of deterrence to prevent violations of the rights of children.

Increased cooperation with the International Criminal Court would contribute to the credibility of the Council's determination to put an end to impunity in that area.”

slide36

Mandate of SRSG (5)

Contained in Resolutions limited to

1612 (2005)

1882 (2009)

1998 (2011)

slide37

Mandate of SRSG –SC r 1612(5)

(d) Also stresses that any dialogue established under the framework of the monitoring and reporting mechanism by United Nations entities with non-State armed groups in order to ensure protection for and access to children must be conducted in the context of peace processes where they exist and the cooperation framework between the United Nations and the concerned Government;

slide38

SRSG –addressing the SC(1)

  • Way forward: Measures to be taken
  • Increased tailored political engagement of the Council
  • Strengthened accountability measures
  • Targeted measures, where necessary.
slide39

SRSG –addressing the SC(2)

“Situations in Libya, Syria and Mali, pose new threats for children that the Council, along with my Office and its partners, must address.

The situation of children in Syria is dire.

slide40

SRSG –addressing the SC(3)

“My staff and other United Nations colleagues have documented Government attacks on school, children being denied access to hospitals, girls and boys suffering and dying in

bombardments of their neighborhoods and also being subject to torture, including sexual violence, sometimes for weeks”

slide41

SRSG –addressing the SC(4)

“Since its inception in March 2012, the crisis in Mali has been characterized by grave violations against children. Hundreds of cases of recruitment and use of children by the Mouvement national pour la libération de l. Azawad(MNLA).

Training Camps in northern Mali and sexual violence against children, especially by the MNLA are alarming”

slide42

SRSG –addressing the SC(3)

“My staff and other United Nations colleagues have documented Government attacks on school, children being denied access to hospitals, girls and boys suffering and dying in

bombardments of their neighborhoods and also being subject to torture, including sexual violence, sometimes for weeks”

slide43

SRSG –addressing the SC(4)

“Since its inception in March 2012, the crisis in Mali has been characterized by grave violations against children. Hundreds of cases of recruitment and use of children by the Mouvement national pour la libération de l.Azawad (MNLA).

Training Camps in northern Mali and sexual violence against children, especially by the MNLA are alarming”

slide44

Resolution 2068 (2012) (1)

1. Welcomes the appointment of the new Special Representative of the Secretary-General for Children and Armed Conflict and highlights the importance of

her work in carrying out her mandate for the protection of children in situations of armed conflict, in accordance with relevant Security Council resolutions

slide45

Resolution 2068 (2012) (2)

5. Reiterates its call upon the Working Group on Children and Armed Conflict to consider, with the support of the Special Representative for Children and

Armed Conflict, within one year, a broad range of options for increasing pressure on persistent perpetrators of violations and abuses committed against children in situations of armed conflict;

slide46

Resolution 2068 (2012) (3)

In favour:

Colombia, France, Germany, Guatemala, India, Morocco, Portugal, South Africa, Togo, United Kingdom of Great Britain and Northern Ireland, United States of America

slide47

Resolution 2068 (2012) (4)

Against:

None

Abstaining:

Azerbaijan, China, Pakistan, Russian Federation

slide48

Next Actions

  • First, the Council should press States to leverage
  • international resources and expertise to support national processes.
  • Second, the United Nations should
  • include a greater focus on an integrated approach to accountability for violations against children once action plans are implemented.
involvement of the sanctions committee
Involvement of the Sanctions Committee
  • The toolbox for the Monitoring Group should be linked not only to the SRSG but also to the Sanctions Committee of the UN
russian federation 1
Russian Federation (1)
  • “Welcome the successful and active part played by the Special Representative in the International Criminal Courtduring the first prosecution of a war crime for the recruitment and active use of children in combat in the Lubanga case.
  • With respect to Libya, we never received complete information with respect to the situation of children in that country and the investigation of the deaths of children as a result of the NATO military operation in that country. There are ample credible reports in this case, not only on children’s deaths but also on their recruitment.
russian federation 2
Russian Federation (2)
  • In conclusion, we deem regrettable that for the first time a draft resolution on the issue of children and armed conflict was not adopted unanimously by the Security Council. ……..We hope that in future such situations will be avoided”
  • Sergey Karev
slide52

Dr Miriam Estrada-Castillo

Professor

miriam.estrada@rwi.lu.se