|Ine van Giessen|
On 13 November 2015, bombings and shootings in six different locations in Paris killed over 130 people and injured over 100 others. Five months later, bomb attacks in the departure hall of Zaventem Airport and at Maalbeek Metro station in Brussels, killed 31 people and injured 220 more on 22 March 2016. These attacks on European territory share common denominators, namely, the Islamic State (ISIL) claimed responsibility for both attacks. Furthermore, Belgian nationals committed the attacks in Paris and Brussels. According to research by the International Centre of Counter-terrorism (ICCT) at least seven of the perpetrators of the Paris attacks had allegedly previously fought for ISIL. Of those seven perpetrators, intelligence suggests that three traveled to Syria at some point before the attacks. This raises questions legal classifications, and obligations or possibilities to prosecute under domestic and/or international (criminal) law.
On 1 April 2016, the ICCT published a report on the phenomenon of Foreign Fighters (FF) in the European Union. The research shows that the total of FF from the European Union lies between 3922 and 4294 people of which 30 percent have returned to Europe and 14 percent is confirmed dead. The ICCT research states that amongst those FF are minors. ISIL grooms children and educates them on its ideology to create a new generation of supporters of the caliphate. These young children (known as ashbal al-khilafa “cubs of the caliphate” are used on the battlefield as well as featured in promotional videos. Many of the videos show these young children in different capacities acting on behalf of the caliphate.
Scholars such as Capone argue that there are two main categories of child FF. The first category consists of those who are motivated to leave their home in pursuit of their own personal identity, and the second category consists of those who want to live in a true Islamic Community. Furthermore, the families of children could have forced these children to join the caliphate as a Dutch mother did, in March 2015, who brought their two Dutch children to join ISIL in Syria. Moreover, Watts’ research indicates that recruitment of FF by family members forms a high percentage of means of recruitment.
Interpretation of international law indicates that the three who travelled to Syria could be classified as FF whilst the others who did not travel abroad prior to the attacks would most likely be classified as terrorists. Since there does not exist an universally accepted definition of terrorist or FF under public international law (PIL), the UN leaves the door open for the interpretation of the definition of terrorism on a domestic level. Pursuant to States’ discretion to define terrorism under their domestic legislation, differences occur between domestic systems leading to different legal consequences. Similarly, there does not exist a universal definition of a FF. The commonly used definition is that of the UNSC, which intrinsically links FF to terrorists groups. The UNSC does refer to children in Resolution 2178, calling upon the Member States to prevent the radicalization to terrorism and the recruitment of FF, including children. However, the PIL system lacks possibilities to prosecute those children for terrorist acts on an international level. PIL such as IHRL, IHL and ICL makes no distinction between adult perpetrators and children with respect to terrorist acts. Children are not excluded as perpetrators of terrorist acts by virtue of childhood. Consequently, children can be the violators of international rights and provisions governing terrorist acts. On itself, PIL does not prohibit the prosecution of children. The Committee on the Rights of the Child merely urges states to set the limit of criminal liability not below the age of 12. There exists no international juvenile court, which, in theory, would mean that children would face prosecution before the ICC since IHRL, IHL and ICL mostly rely on the ICC for the prosecution of individual perpetrators. However, under PIL there exists no de facto possibility to prosecute children on an international level, as the ICC excludes prosecution of persons below the age of 18. De jure, prosecution is possible before other institutions such as special tribunals; however, these are not (yet) in place. Consequently, PIL leaves the prosecution of child terrorists and child FF to the municipal courts. Whether child terrorists and child FF will f before domestic courts under international law or domestic law consequently depends on the state that will undertake the prosecution. Since the definition of terrorism and FF and the criminalization of these acts is left to the discretion of states, differences in legal consequences will occur.
A vast framework of IHRL instruments is set up to protect the rights of children, with the key international instrument being the Convention on the Rights of the Child which awards children special protection with respect to fair treatment and fair trial in case of prosecutions under article 40(2). However, the lack of consistency on the international level with respect to child terrorists and child FF does, in my opinion, does not coincide with children’s need for special protection.
The international community made a first step in acknowledging that children can be the perpetrators of terrorist acts but has failed to take the second step and create a better protection framework. The international legal system, as it is now, is not yet ready to prosecute children for gruesome acts on an international level, leaving the prosecution to the discretion of states. If the international legal system is not ready to prosecute child perpetrators, to what extend will it be ready, in its current state, to protect the rights of these children when they face prosecution by states on a domestic level. Children need extra protection at all times, even in the capacity of terrorists and FF, and in my view, it is of utmost importance that the international community strengthens the protection framework in a timely manner.
Guest Post By Ine van Giessen (Ine holds an LL.M in Public International Law from Utrecht University and specialises in issues of human rights and terrorism)