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| 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)
