The right to justice of the victims is supported by the opinion of UN Human Rights Committee under which if a foreign citizen gains the right to enter the territory of the State Party, from that time they are entitled to enjoy the rights undertaken as an obligation by the State Party.79 Regarding our subject matter, the children affected by armed conflict are victims of war crimes. War crimes do not lapse; therefore, the current age of the victim is irrelevant, and the only relevant fact is that at the time of the commitment they were chil-dren, under the age of 18.
The International Criminal Court is the competent dispute resolution authority that applies international humanitarian law. The court has no jurisdiction over persons who have not reached the age of 19 at the time of the commission of the offence, says Article 26 of the Rome Statute.80 The prosecution of child soldiers falls under the jurisdiction of the state parties or another international tribunal with jurisdiction over children but not the ICC itself.
This is the criminal prosecutorial aspect of the participation of children in armed conflict.
The Special Court for Sierra Leone Statue offers through a solution for the complicated relationship between the avoidance of impunity on the one hand and respect for mental and intellectual maturity on the other. The Statue provides the Court with competence to try children or juvenile soldiers between 15–18 years of age. These cases referred to truth and reconciliation mechanism according to Article 15(5) of the Statue of the special court.81
The jurisdiction of the ICC is a complementary one in those countries of what the Rome Statute was signed and ratified. The status of the transformation of the Rome Statute raises questions in some country, and Hungary is one of them. Although the status of implementation of the Rome Statute is not examined in this article,82 for the sake of better understanding the implementation, we look into the national legislation in relation with offenses described in OPAC.
According to Article 3 (2) ac) of the Hungarian Criminal Code Act C of 2012 (CC) the CC shall be applied in such cases when a foreign citizen committed crimes abroad, if the prosecution of such crimes is prescribed by an international treaty promulgated by statute.
Hungary is a dualist country from the point of view of international law and the OPAC was promulgated by Act CLX of 2009 of what Article 4 prescribes the age limit of enlistment and voluntary procurement to be 18.
The universal jurisdiction as a legal institution created by the legal necessity83 and its application has two conditions: double incrimination and the fact that the General Prosecutor orders the commencement of a criminal procedure. If an international treaty prescribes the prosecution of the offense, it means an exception from double incrimination. According to
79 Csapó (2011): op. cit. 64.
80 Article 26 of the Rome Statute of the International Criminal Court: “Exclusion of jurisdiction over persons under eighteen. The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.” Available: http://legal.un.org/icc/statute/99_corr/cstatute.htm (Accessed:
10.04.2018)
81 Heintye–Lülf (2015): op. cit. 1297.
82 Ádány Tamás (2010): A Nemzetközi Büntetőbíróság joghatósága és a magyar jog. Pázmány Law Working Papers, No. 2.
83 Varga, Réka (2014): Challenges of Domestic Prosecution of War Crimes with Special Attention to Criminal Justice Guarantees. Budapest, Pázmány Press. 61.
some authors the fact that only the General Prosecutor shall order the commencement of the criminal proceeding fulfil the criteria of equity and provides enough guarantee for taking into account the points of the persecutor regardless if there is double incrimination or not.84
Accepting that the Hungarian authorities may apply85 the principle of universal juris-diction, they are legally obliged to submit the case to the General Prosecutor when a foreign citizen claims or suggests in front of the state authorities that he/she was involved in armed conflict before his/her age of 18, therefore they are under the subject scope of OPAC.
Although under the Article 146(3) of CC86 recruitment is a criminal offense only if it was committed on the territory of Hungary but it is an unnecessary restriction and it is not in line with the general goals of the OPAC.
If this theoretical event would not happen in practice, the ICC may claim the right to involve the victim in the prosecution or start the prosecution. On the other hand if the victim is a perpetrator himself, like it happened in the Ongwen case,87 the state authority i.e. asylum authority may start the investigation, otherwise the ICC may declare its jurisdiction over the perpetrator.88 Another issue is the case of those victims who committed a war crime; whether they participate in the criminal procedure as offended or as perpetrators?89 According to the humanitarian law, after the ending of the fights, they need to be prosecuted for their actions against the law of war but during the decision-making and the implementation of the sentence it has to be taken into consideration that they are victims and survivors of human rights infringement, and they have the right to restart their life and the right to integration.90
84 Polt Péter ed. (2013): A Büntető Törvénykönyv Kommentárja. Budapest, Nemzeti Közszolgálati és Tankönyv Kiadó. 54.
85 Even though our understanding is that authorities shall examine the applicability of universal jurisdiction in case of suspicion in parallel with the applicability of more frequently used principles, it is clear this is not the practice. Discovering the possible reasons of this practice is not the main topic of this article, but for the sake of the argument, we presume that in certain situations they may apply it.
86 “(1) Any attempt to recruit personnel in the territory of Hungary for military service – other than for any allied forces –, paramilitary service in a foreign armed body, or any mediation of volunteers for such service shall be construed a felony punishable by imprisonment between one to five years. (2) Any Hungarian citizen who voluntarily joins or offers to join any foreign armed body – other than the allied forces – that is involved in an armed conflict (national or international), or who participates in training in such an armed body shall be punishable in accordance with Subsection (1). (3) Any person who recruits or mediates persons under the age of eighteen years in the territory of Hungary for military service, paramilitary service in a foreign armed body, or any mediation of volunteers for such service shall be punishable by imprisonment between two to eight years.” Section 146 of the CC, illegal recruitment.
87 Dominic Ongwen is allegedly responsible for seven counts of crimes allegedly committed on or about 20 May 2004 at the Lukodi IDP Camp in the Gulu District, Uganda, being three counts of crimes against humanity:
murder, enslavement, inhumane acts of inflicting serious bodily injury and suffering; and four counts of war crimes: murder, cruel treatment of civilians, intentionally directing an attack against a civilian population, and pillaging. Available: www.icc-cpi.int/uganda/ongwen (Accessed: 10.04.2018)
88 This is a purely theoretical question, and it stops at this point because of the promulgation of the Rome Statute in Hungary. See more in Ádány (2010): op. cit.
89 Rosen, David M. (2010): The Dilemma of Child Soldiers. How Should International Law Treat Children Engaged in Armed Conflicts? Insights on Law & Society American Bar Association, Vol. 10, No. 3. 8.; Everett (2009): op. cit. 289.
90 CRC Article 37.
In line with that the application of alternative approach and legal instruments during the criminal procedure91 is a strong suggestion on several forums.92
War crimes are one of the classic examples of international crimes for which an in-ternational control mechanism is said to exist: the four Conventions of 1949 and Protocol I provide for the duty either to extradite or to prosecute suspected or convicted war criminal.
On closer scrutiny, however, the system hardly seems to work. Problems exist on two levels, both with respect to extradition (aut dedere) and with respect to prosecution (aut judicare).
Here too, Protocol I has failed to remedy the problems. In theory, the deficiencies of the extradition system should be compensated by other parts of the international duty either to extradite or to prosecute, namely the prosecution of alleged war criminals. The provision on universal jurisdiction contained in all four Geneva Conventions and incorporated by Article 85 (1) Protocol I should, theoretically oblige the State to prosecute those offenders whose extradition has been denied.93 The state parties are also obliged to provide for crimi-nalization of child recruitment under domestic law. However, in the literature some authors argue that this is problematic in many cases.94
Nevertheless, the contracting party to that treaty should bring its international leg-islation in line with its international obligations under that treaty. It is an open question whether a State must ensure that its legislation keeps pace with development in customary international law. The internationally wrongful act of the type under consideration here is a breach of the applicable treaty. Often it will be that the 1969 Vienna Convention on the Law of Treaties terms a material breach. Failure to do this is a breach of the treaty, regardless of whether or not any of that State’s nationals are charged with a crime of that sort before any competent tribunal. Often the act in question is already a crime under internal law, and the liability of the State to prosecute or extradite an accused person depends on the internal law of that State and its international obligations.95 Professor Geatano Arangio-Ruiz talked about relationship between the international responsibility of a State for criminal actions committed by individuals and attributed to the State and the international responsibility of that State arising out of that action. When an individual’s responsibility is involved, one should simply ascertain whether the prosecution of individual perpetrators by States injured for an international crime can also be properly considered a lawful form of sanction against the wrongdoing State. This might have been the case of exercise of jurisdiction that would otherwise be inadmissible with report to an official who was the material perpetrator of conduct that constituted or contributed toward constituting an international crime of State.96
91 “I call upon Member States to treat children associated with armed groups, including those engaged in violent extremism, as victims entitled to full protection of their human rights and to urgently put in place alternatives to detention and prosecution of children.” SRSG report 2016. Available: https://childrenandarmedconflict.
un.org/wp-content/uploads/2015/10/15-18739_Children-in-Conflict_FINAL-WEB.pdf (Accessed: 23.07.2017)
92 Drumbt, Mark A. (2011): Child Pirates: Rehabilitation, Reintegration, and Accountability. Case Western Reserve Journal of International Law, No. 46. 256.
93 Van Den Wyngeart, Christine (1991): The suppression of war crimes under additional Protocol I. In Delissen– Tanja eds.: op. cit. 202–203.
94 Heintye–Lülf (2015): op. cit. 1304.
95 Rosenne, Shabatai (1997): War Crimes and State Responsibility. In Dinstein, Zoram – Tabory, Mala eds.:
War Crimes in International Law. The Hague, Kluwer Law International. 67.
96 Rosenne (1997): op. cit. 65.
The most significant judgements regarding the use of child soldiers are at the trials of the International Criminal Court, because the judgements stating the responsibility of individuals strengthen the message that involving children into armed conflict does not remain unpunished. Thomas Lubanga Dylo from the Democratic Republic of the Congo was sentenced to 14 years of imprisonment in case no. ICC-01/04-01/06,97 because of the recruitment and use of children in armed conflicts under the age of 15 years. Unfortunately, similar judgements to the Lubanga case could only happen when both political and strategic aspects luckily met.98
The gaps in implementation of international treaties lead to the fact that State Parties rarely initiate procedures because of war crimes, despite the developing international regulation. Beside the monist and dualist systems, doubts can also hinder the referring of each state to the treaty as a legal basis. In addition to these reasons (which according to Francis are mainly the reason of reluctance in the African states) Cassese identifies as the fourth reason that national authorities try to interpret jurisdiction in the narrowest way to avoid applying international standards.99 Generally the flaws of proper transformation and implementation of the international treaties lead or accumulate to the situation inclined above: the states are reluctant to start a procedure because of war crimes.
Conclusions
The children who are involved in armed conflicts have rights under international hu-manitarian law, under international human rights law and even under the refugee law for special treatment and care to them. But at times of breach of obligation by State Parties of these treaties, the only response they would get is the decision of the ICC due to the lack of a CRC court of their own and Refuge Convention. In addition to personal reparation, the States are obliged to prove protection and it is an obligation that governs the actions of all State Parties. One of their possible responses regarding responsibility is to implement the examined treaties entirely and shape their legal system. The other possible response is to act according to its provisions and foster international cooperation in a reparative and in a preventive manner.
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Aranka Lőrincz
Introduction
International law declares the right of asylum which consists of the right of a state to grant asylum and the right of an individual to seek asylum. To date no international instrument or custom settles down the right of an individual to be granted asylum.2 The principle of non-refoulement is understood in international law as the duty of a state not to return a person to a place of persecution.3 When it comes to terrorism, the question is raised if it is permitted to strike a balance between the national security of a state and the obligation to provide protection against refoulement.4
In the aftermath of 9/11, governments all around the world have turned their attention to combat the threat of global terrorism. UN Security Council Resolution 1373 (2001) on the threats to international peace and security caused by terrorist acts was the response of the international community to terrorism which made explicit reference to the need to safeguard the system of international refugee protection from abuse by terrorists.5 The UN Security Council called upon states to deny asylum for those who finance, plan, support, or commit terrorist acts and to prevent those who finance, plan, facilitate or commit ter-rorist acts from using their respective territories for those purposes against other States or their citizens; States shall prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents.6 The UN Security Council thus asked the Member States to exclude terrorists from refugee status. However, as no uniform international definition of
1 Any views expressed in this work are those of the author and do not necessarily represent the views of the Office.
2 On the three faces of the right of asylum see Boed, Roman (1994): The State of the Right of Asylum in Inter-national Law. Duke Journal of Comparative & InterInter-national Law, Vol. 5, No. 1. 1–33.
3 There is a difference in international treaties whether the duty of non-refoulement applies to recognized ref-ugees or to all persons. Article 33 of the 1951 UN Refugee Convention protects only those who were granted asylum while Article 3 of the Convention Against Torture and Article 3 of the European Convention on Human Rights apply to all persons regardless their status.
4 Bruin, Rene – Wouters, Kees (2003): Terrorism and the Non-derogability of Non-refoulement. International Journal of Refugee Law, Vol. 15, No. 1. 5–29.
5 Zard, Monette (2002): Exclusion, terrorism and the Refugee Convention. Forced Migration Review, No. 13.
32.
6 UN Security Council Resolution 1373 (2001), para. 2 (c)-(d), (g).