IJCentral: International Justice Central

After a morning of confusing and, at times, conflicting stories on the capture and killing of Colonel Muammar Gaddafi in Libya today, it appears that a consensus has been reached among global news organisations that Gaddafi is indeed dead. The National Transitional Council has confirmed the ex-Libyan leader’s death, where he was, according to reports, hunkered down in a hole in the ground outside his home town of Sirta - reminiscent of the capture of Saddam Hussein in December 2003.

If Gaddafi is in fact deceased this will be a missed opportunity to see punitive justice done for the crimes committed during his regime. The ICC arrest warrants for Gaddafi, his son and brother-in-law, are legally binding. For the NTC to flout these UN mandated warrants is a discouraging indication of their willingness to participate in a constructive transitional justice process. As the news settles, and Gaddafi’s death or capture is confirmed, IJCentral will post further editorial on this monumental day for Libya, the Middle East, and the entire international community.

The IJCentral Team

Post Script: A photograph of a bloodied Gaddafi have emerged online, which appear to confirm reports of his death. IJCentral does not see fit to post that photograph here. 

A few weeks ago, a Symbolic Court Against Sexual Violence within the Colombian Armed Conflict met in Bogota, to deal with a range of cases related to sexual violence committed by armed groups in the Colombian internal conflict. This symbolic tribunal was integrated by five renowned experts on Women’s Rights .

The cases submitted to the tribunal result from a thorough selection process in which civil society organizations met with victims and survivors. The idea was to bring forth the victims without putting them at further risk, and looking to protect their identities, life and integrity. The Court was conceived as a place “aimed at making visible to the public the impact sexual violence has had in the context of armed conflict, especially emphasizing the rights of victims and the need to overcome the impunity that has characterized these crimes, and demand timely and effective attention by the state.”

This Tribunal made some recommendations urging the Colombian state to uphold their international obligations regarding the prevention, investigation, prosecution and judgment of gender violence. Colombia is a State party to the International Covenant on Civil and Political Rights, the Convention on the Elimination of all Forms of Discrimination, the American Convention of Human Rights, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, and the Rome Statute of the International Criminal Court, among others. It also considered the Report on the human rights situation from the office of the High Commissioner for Human Rights, in which it recommends the Attorney General’s office to adopt a policy to investigate the cases of gender violence and proceed with the investigations of the case already submitted.

Gender Violence and War

That gender violence has bean employed as a weapon of war, affecting women of every race, religion, ethnicity, age and status, sadly does not come as a surprise.

Unfortunately, the international community has continually failed to prevent the widespread and systematic violence against women in the context of armed conflicts.

In the Colombian case, the tribunal reported that among the crimes committed by the armed groups are: rape, enforced nudity, enforced contraception, sexual slavery, forced pregnancy and other gender crimes committed alongside other crimes, such as killing, enforced disappearances, kidnapping and torture. The judges said there is systematic gender violence in the Colombian armed conflict and that gender crimes are used as a weapon of war by the public forces, by the paramilitary groups and by the guerrillas, with the clear goal of “obtaining benefits in the developments of the hostilities.” Therefore, the Tribunal concluded, that if the Colombian authorities do not take the necessary steps – that is to investigate and prosecute those responsible for these types of crimes- then the ICC should address them.

Colombia is State Party to the ICC since November 2002 and its Criminal Code has a substantial regulation regarding international crimes. Nonetheless, it was also one of the two countries, along with France, that subscribed the disposition of Article 124, not accepting the ICC jurisdiction over war crimes for 7 years.

Colombia has been suffering an internal conflict for more than four decades; a conflict that appears unceasing, in which political corruption, drug-trafficking, paramilitaries and a high-level of violence are characteristic.

Colombia and the ICC: unresolved business?
The situation in Colombia has been on the ICC’s radar since, at least, 2006. At that time, the Office of the Prosecutor (OTP) declared it was “examining alleged crimes within the jurisdiction of the Court and investigations/proceedings conducted in Colombia against the allegedly most serious perpetrators, paramilitary leaders, politicians, guerrilla leaders and military personnel.” Later, the OTP added it was also analyzing allegations of international networks supporting armed groups committing crimes in Colombia.

The Court has not formally commenced any investigation because of the complementarity assured by the Rome Statute.  Colombia is classified as a “situation under analysis.” But the primary responsibility of investigating grave crimes remains under the jurisdiction of the Colombian tribunals. The ICC considers the Colombian judiciary capable and willing to carry out investigations of the crimes under the Court’s jurisdiction.

However, civil society organizations, including this symbolic Tribunal, consider that the Colombian judiciary is not addressing past and present international crimes, including gender violence, correctly.

Despite several visits by the OTP and other ICC officials, events and conferences, including the participation of President Santos in the Assembly of States Parties (ASP) last year, members of the International Federation of Human Rights (FIDH) and its league members – among other important NGOs - continue to call for ICC action in Colombia.

A recent report by Amnesty International notes the lack of reliable official statistics, and the fear around reporting gender-related crimes. It adds that the statistics available “do not clearly indicate cases of sexual violence against women and girls that may be conflict-related” and that “even when women muster the courage to report a case of rape or sexual violence, these are rarely investigated effectively.”
Before the current Prosecutor leaves….
… he must finish what his office started. Despite the efforts of the judiciary, the Constitutional Court and current laws adopted to acknowledge the rights of victims, we believe that the Office of the Prosecutor must provide a direct answer determining if the Colombian situation should be advanced to the status of official investigation.

Despite the 7-year moratorium for war crimes, at the very least all parties to the conflict have perpetrated crimes against humanity, including sexual violence as established in Art. 7.1.G of the Rome Statute. Moreno Ocampo leaves office next year and one of the debts he is leaving behind is the uncertainty regarding Colombia. 

Fortunately he still has time to make a final decision, regardless of its outcome.

—-

Mariana Rodriguez Pareja is a Communications Expert and Human Rights Advocate. Twitter: @maritaerrepe

Salvador Herencia Carrasco. LL.M. University of Ottawa, Legal adviser of the Andean Commission of Jurists. E-mail: sherencia@cajpe.org.pe

Exclusive blog series on the ever-changing relationship between the United States and the International Criminal Court (part 2 of 3).

In the first instalment of this blog, it was determined that the Bush administration, although initially belligerent towards the International Criminal Court, was not the only belligerent domestic actor. In fact, it was discovered that the Bush administration actually softened their stance on the ICC as their tenure developed.  The result of this initial analysis is that opposition to the ICC appears neither partisan nor necessarily administration specific, but something more institutional and interest-based.  With that as our foundation, enter the Obama administration to the ICC fray. 

As a candidate for President of the United States Barack Obama’s support for the ICC could be described as lukewarm at best.  During the election process the Obama camp mentioned the ICC once and even this statement was brief in nature.  Then candidate Obama stated that the ICC would be a situation that his administration would look at—he would counsel with his generals and military personnel and then they would approach the subject at a later date.  In short, he danced around the issue of the ICC and possible US support under his administration, never providing a definitive statement on his sentiments towards the Court.  This despite his definitive acceptance of a more multilateral approach to foreign policy and a purported break from past Bush administration policies.  ICC supporters latched onto the latter statements, hoping that such multilateral policies would result in eventual acceptance of the Court.

Since settling into office, the Obama administration’s ambivalence appears to be shifting to engagement, with the result being some movement towards creating a meaningful relationship with the Court and the notion of upholding the international justice structure.  This has been clearly seen in the US decision to obtain observer status for the ICC review conference in Kampala.  In the run up to this conference the United States took what appeared to be a very congenial position towards the Court.  Stephen Rapp, US Ambassador-at-large for War Crimes, repeatedly confirmed the United States historical relationship to the pursuit of global justice and the desire to build on this precedent in the future.  In October 2009, he stated that the US policy towards the ICC was under review.  Secretary of State Clinton went further than this stipulating, “it was a great regret” that the United States was not a member state.  Even President Obama confirmed his desire for strong forms of international justice in his May 2010 National Security Strategy:

From Nuremberg to Yugoslavia to Liberia, the United States has seen that the end of impunity and the promotion of justice are not just moral imperatives; they are stabilizing forces in international affairs. The United States is thus working to strengthen national justice systems and is maintaining our support for ad hoc international tribunals and hybrid courts. Those who intentionally target innocent civilians must be held accountable, and we will continue to support institutions and prosecutions that advance this important interest. Although the United States is not at present a party to the Rome Statute of the International Criminal Court (ICC), and will always protect U.S. personnel, we are engaging with State Parties to the Rome Statute on issues of concern and are supporting the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law. 

But this should not be taken as evidence of Obama’s clear and definitive support of the ICC and its mandate.  Within this statement one can discern the real nature of Obama’s interpretation of the emerging international justice structure and the US role in it.  Every statement made by the administration involves some reference to establishing a Court that parallels and advances US interests.  This type of rhetoric is more reflective of a hegemonist position of foreign policy than a multilateral liberal ethical one (although there may be point of intersection that needs to be further explored).  It appears that the Obama administration is in favor of strong international forms of justice, but only those that are either controlled by the United States and serve their interests or exempt the US from their jurisdiction.  In general, the idea of American exceptionalism remains the policy of the day, but with a less belligerent method.

The resulting policy is one in which the United States wants to employ the institutions of international justice to serve their interests but do not believe these rules and processes apply to the United States.  The multilateral rhetoric that seemingly parallels a more just global order does not conform to the actions of the United States within this structure, thus placing Obama in a similar position to the latter part of the Bush administration and/or the policies of the Clinton administration.  It is a friendly relationship but not truly supportive of the Court as an independent form of justice.

Two prime examples of this hegemonic action are the recent vote on Security Council Resolution 1970 and the US decision to assist Uganda in quelling the Lords Resistance Army (LRA) threat.  The UNSC Resolution grants the ICC jurisdiction in the current case concerning Libya.  However, this resolution is very similar to the Darfur Resolution (1593) approved under the Bush administration in that it exempts the United States from prosecution.  Maybe this vote was a step forward in US-ICC relations, since Obama voted in favor of the resolution as opposed to the Bush administration’s abstention.  Clearly the Obama administration wants to pursue some form of justice for the accused in Libya, but in a Nuremberg style system of justice that assures the United States that its personnel will not face prosecution.

This scenario plays out again in the US decision on Uganda.  Last week the Obama administration decided to send a group of advisors (military personnel) to Uganda to assist their government in the removal of LRA leader Joseph Kony.  The ICC issued an arrest warrant for Joseph Kony on July 8, 2005, but to date have not been able to fulfill that warrant.  Obama’s decision appears beneficial to the ICC and its mandate because ostensibly, this provides further assistance to the Court in capturing and extraditing Kony to The Hague.  But again, before ICC supporters view this as full acceptance of the ICC by the Obama administration, do not forget that the US has Uganda’s signature on a BIA.  This once again provides the administration assurances that its personnel will not find themselves in the dock at the Hague.  This is another ICC-friendly advance by the United States, without moving to full acceptance of the Court and its mandate.

Ultimately, the one step that would provide real movement towards acceptance of the ICC is reinstating the United States signature to the Rome Statute.  In order to accomplish this, the administration would simply deliver a note to the United Nations stating that said signature is reinstated.  To date this has not happened and the Obama administration continues to claim that ICC policy remains under review.  The one definitive step they have taken is to publically state that the Rome Statute will not come up for ratification any time soon.

So where does this leave US-ICC relations?  It is clearly not the belligerent relationship that existed 10 years ago; but it is also not the full acceptance that most global justice advocates desire.  It seems that the ICC-friendly policy will continue as long as the Court can assist the United States in fulfilling its national interest.  But this is such an ambiguous term—so what is national interest?  In the third and final installment of this blog series, I will take a look at US national interest as it pertains to international justice and what this might mean for future US-ICC relations. 

—-

Eric K. Leonard currently holds the Henkel Family Endowed Chair in International Affairs at Shenandoah University.  He has written and presented extensively on the International Criminal Court including journal articles, encyclopedia entries, case studies and a book entitled, The Onset of Global Governance: International Relations Theory and the International Criminal Court.

October 14, 2011
New York Times Blog
(Original Article)

As my colleagues Thom Shanker and Rick Gladstone report, “President Obama said Friday that he had ordered the deployment of 100 armed military advisers to central Africa to help regional forces combat the Lord’s Resistance Army, a notorious renegade group that has terrorized villagers in at least four countries with marauding bands that kill, rape, maim and kidnap with impunity.”

In Mr. Obama’s letter explaining the deployment to Congressional leaders, the president wrote that “U.S. military personnel with appropriate combat equipment” would work with armed forces in Uganda, South Sudan, the Central African Republic and the Democratic Republic of Congo “that have the goal of removing from the battlefield Joseph Kony and other senior leadership of the L.R.A.”

Just after the deployment was announced, Andrew Exum, a former United States Army officer who blogs about “small wars and insurgencies” under the pen name Abu Muqawama, observed on Twitter that Human Rights Watch, which launched a sophisticated media campaign calling for such an intervention a year ago, has now “successfully lobbied the Obama administration for U.S. military action in two African counties: Libya and Uganda.”

Mr. Exum also joked that American commanders should probably start paying more attention to the human rights group’s campaigns for humanitarian intervention, since they seem to be so effective.

The Human Rights Watch campaign for intervention, which began last November, included direct appeals for help from victims of the Lord’s Resistance Army in handwritten letters and an emotional video titled “Dear Obama.”

Ken Roth, the executive director of Human Rights Watch, was traveling and unavailable for comment on Friday, but he did post two brief updates on his Twitter feed, in which he welcomed and defended the deployment.

Mr. Roth also posted a link to an article he wrote last year for Foreign Policy in which he had argued that “there is no better case for the humanitarian use of force than the urgent need to arrest Joseph Kony, the ruthless leader of the Lord’s Resistance Army (L.R.A.), and protect the civilians who are his prey.”

In that article, Mr. Roth also explained that a small number of American Special Forces troops could likely do the job, since “the L.R.A. is not large — an estimated 200 to 250 seasoned Ugandan combatants, plus at least several hundred abductees — but as Ugandan President Yoweri Museveni recently told me, Uganda lacks the special forces, expert intelligence, and rapid-deployment capacity needed to stamp out this enemy.”

In July 2002, the Republic of Honduras ratified the Rome Statute of the International Criminal Court (ICC), thus becoming the 76th state party to the treaty. By joining the ICC system, the Honduras government committed itself to prosecuting those responsible for crimes against humanity, genocide and war crimes, if ever committed on its soil or by its nationals.
Honduras’ ratification signified and illustrated a decisive step to fight impunity and respect human rights in the Central American country. Human rights organizations worldwide, and the international community in general, welcomed this advance and viewed it as an opportunity for Honduras to heal from its past and progress toward a future based on the rule of law and respect for human rights.
Like many Latin American countries, Honduras has had a history of human rights violations and the issue of dealing with the past is a conflictive topic, particularly the very recent past, which tends to be a controversial issue in Honduras.

The Coup and alleged crimes

Seven years after the ratification of the Rome Statute, the democratic order was interrupted: in June 2009, Honduran President Manuel Zelaya was forcefully removed from his office by the military and exiled to Costa Rica. The Head of Congress, Mr. Roberto Micheletti was appointed as provisional President, and served until Porfirio Lobo was elected President of Honduras in November 2009 in a much-disputed election. 
The forceful removal of Zelaya and the ensuing disintegration of democracy set Honduras on a violent path and crimes against humanity are alleged to have been committed. NGOs communicated their concerns on the alleged crimes to the Office of the Prosecutor of the International Criminal Court starting in September 2009. It is alleged that some Honduran nationals representing the economic elite – in partnership with high-level officials from the military and government – are responsible for the perpetration of crimes against humanity as defined under article 7(h) of the Rome Statute. Given that the Honduran domestic judicial system never investigated and prosecuted those allegedly responsible for the crimes, civil society continued to press the ICC to investigate the matter.
These efforts culminated in the Argentine ICC Chief Prosecutor Luis Moreno Ocampo announcing publicly his decision to conduct a preliminary analysis of the situation in November 2010. Even though his decision was welcomed, there has not been any update on the actions carried out by the Prosecutor’s office to date.

Reign of Impunity, Lack of Accountability

In the last year and a half, NGOs have called on several occasions for the protection of human rights defenders, journalists, and social activists. Human Rights Watch (HRW) has also shed light on police brutality, lack of accountability for human rights abuses committed in the context of the coup, and lack of judicial independence. Then, on 26 January 2010, the Supreme Court of Justice acquitted the military regime that carried out the coup against Zelaya. The same day, the National Congress passed the Amnesty Act for political crimes committed in the context of the coup.

To date, the Supreme Court of Justice has not yet resolved the applications submitted for the enforced deportation of former President Zelaya and former Minister of Foreign Affairs Patricia Rodas. No one has been held accountable, not even for common crimes. In addition, all the high-level officials involved in the coup remain in office. The highest-ranked military officer Romeo Vásquez Velásquez- who personally led the coup- is an official of the current government and has announced his intention to run for the presidency in 2013.
Moreover, in 2010, the Comité de Familiares de Detenidos y Desaparecidos en Honduras (COFADEH), denounced the fact that more than a hundred corpses were dumped in mass graves, which was never investigated by the local authorities. These facts point to a resounding lack of interest from the judiciary, as well as the lack of capacity to carry out the identification of victims and prosecute those responsible for these crimes. The situation – this level of inaction – represents the policy followed by the Honduran state, oriented to avoid justice and redress for victims and their relatives. It is plainly evident that Honduras has not complied with the duties emerging from the Rome Statute and other important human rights instruments. 
In its 2009 report, the Inter-American Commission of Human Rights stated that the highest judicial organ in Honduras systematically denies justice to victims of human rights violations, even as those crimes are still being committed. The increase in violence and subsequent loss of human lives qualifies Honduras as one of the most violent and dangerous countries in the Americas.

If the commission of crimes still continues after the coup it is because those responsible remain at large. In this context of systematic and widespread violence it is worrisome that killings, enforced disappearances and repressive actions continue and increase, particularly against leaders of the opposition and their relatives, human rights activists, journalists, peasants and social leaders.

Nunca más?

Military regimes, enforced disappearances, crimes against humanity, genocide and Nunca más are words often associated with Latin America in the ‘60s, ‘70s and ‘80s. Nevertheless, in the case of Honduras some of these words currently characterize the country.
The reign of impunity has led to a point where the ICC should exercise its jurisdiction without further delay; more delays in the process of justice works against the deterrent effect that the ICC should have and against its mandate, particularly given that there are no ongoing cases into those that the ICC could potentially try.

Victims have the right to justice.

In a country where the judicial system seems to be unable and unwilling to investigate and prosecute the gravest crimes, the ICC represents a hope for them and for future generations.

It is time to act.

——

Mariana Rodríguez-Pareja is a Communications Expert and Human Rights Advocate. Twitter: @maritaerrepe

Verenice Bengtsson holds a BA in Law (Universidad Nacional Autónoma de Honduras), Postgraduate diploma in Human Rights (Lund University) and MA Candidate (University of Malmö).

In December this year, a little-reported process will conclude when those 118 States who are parties to the Rome Statute of the International Criminal Court (ICC) elect a new Prosecutor. There are many important decisions facing the world’s diplomats, including those gathered at the UN General Assembly this autumn, but though little-noticed this decision is no less momentous. The process must result in the appointment of the most qualified candidate, and not, as is too often the case when top international jobs are filled, the person thought least offensive to the most countries.

The ICC Prosecutor and the office he or she presides over carry a heavy responsibility—to bring to international justice the perpetrators of genocide, crimes against humanity and war crimes. Of course, the Prosecutor acts within the confines of the Rome Statute—only pursuing cases where states fail to do so, or where the states themselves, or the UN Security Council, refer situations to the Prosecutor. To open a case, the Prosecutor must convince the judges in pre-trial proceedings that he or she has sufficient grounds to do so.

In the last several years, we’ve seen how important this role is: pursuing criminal warlords in the Democratic Republic of the Congo and Uganda. And also how difficult: prosecuting political leaders in the Sudan, Kenya and Libya.

Some political leaders, including those who risk prosecution, are openly and maliciously challenging the impartiality of the Prosecutor; others refuse to abide by their obligations under the Rome Statute to co-operate fully with the Prosecutor so that investigations, indictments and trials can proceed.

And many powerful states, including China, Russia and the United States, all permanent members of the Security Council, have still not joined the court, even if they are now less vocal in opposing it.

Clearly, the Prosecutor has a tough job. He or she must stand with the victims and pursue justice, but do so in a way that demonstrates to all fair-minded people that the law is being applied equally without bias or favour. No easy task in a world where trust is in short supply. He or she must rely on governments to make justice real—there is no international police force. Legal knowledge is key, as is a devotion to justice and the ability to lead an international team effectively. The Prosecutor must, above all else, have the skill to build, pursue and win cases while deftly maintaining the confidence of both victims and governments.

The Rome Statute recognises that this is a unique international post. The Prosecutor serves for up to nine years, and cannot be re-elected—thus strengthening the independence of the post. Moreover, unlike many senior international posts, there are very specific and clear rules in place to prevent the arbitrary removal of the Prosecutor. The Rome Statute also makes clear that appointment should be solely on the basis of merit and proven experience, and that whoever is chosen must be a person of “high moral character”.

The 118 States that have so far joined the Rome Statute are obliged, therefore, to avoid the temptation of treating this appointment as they do other international jobs. Too often, candidates for senior posts at international organizations conduct elaborate election campaigns in conjunction with their governments. This approach brings quite a lot of problems with it: first, persons who are not supported by their own governments, no matter how qualified, have no hope of becoming an official candidate, much less getting elected. It also leads to vote-trading in a type of global bazaar: one country promises support for another country’s candidature in exchange for the latter’s support for one of its own candidatures for a different post. Merit often becomes a secondary consideration.

This must not happen in the election of the ICC Prosecutor. There must be no hint of politicking in the election of the person who will exercise the important functions assigned to this post.

To their credit, the States Parties to the Rome Statute are trying something new. A Search Committee with five members has been constituted to search for possible successors to the current Prosecutor. The Search Committee has drawn up a list of candidates all of whom will be interviewed, and then it will provide the States with a final short list of three names. The final decision rests with States. Member States may still nominate separate candidates, but so far none of them have done so, thereby respecting the Search Committee process.

This process is highly unusual in the international sphere and deserves the full support of all those interested in the success of the ICC. It holds out real hope of producing a consensus candidate who is chosen because he or she is best equipped to do the job. And it is this, above all else, that must guide the final decision in December.

When as UN Secretary-General I opened the Conference in Rome 1998 where the ICC Statute was being drafted, I urged the delegates “... not [to] flinch from creating a court strong and independent enough to carry out its task. It must be an instrument of justice, not expediency. It must be able to protect the weak against the strong.” This was accomplished in Rome. The ICC Statute is a remarkable achievement.

But politicizing the election process for the Prosecutor, or polluting it with the horse-trading and vote-swapping that characterize too many elections for international and UN posts, would risk undoing this important achievement.

Read original article on Huffington Post here.

At the end of September, the judges of the International Criminal Court’s (ICC) Pre-Trial Chamber III authorised the court’s prosecutor to launch formal investigations in Ivory Coast.

The investigations will focus on the violence that occurred in Ivory Coast from November 28, 2010, following the release of the results of the second round of elections in which the opposition movement, led by Alassane Ouattara, was declared victorious.

The post-election violence in Ivory Coast lasted more than five months. During this period, reports of widespread murder, rape and forced disappearances abounded.

As a result of the protracted violence, 3 000 people died and about one million more were internally displaced.

While relative stability has returned to the west African country, according to the UN Mission in Ivory Coast, more than 30 000 people remain internally displaced.

As per ICC procedure in matters such as these, the authorisation by the court’s judges followed a request on June 23, 2011 from the ICC prosecutor, Luis Moreno-Ocampo, to begin the investigations. Ocampo’s request stemmed from an invitation by the Ivorian government to investigate crimes committed in the country.

The judges’ decision is a welcome development in ensuring that justice is served for crimes committed in Ivory Coast. However, the decision comes at a time when the African Union’s relationship with the ICC remains sour.

Since 2009, when the ICC issued an arrest warrant for Sudanese President Omar Hassan al-Bashir, the AU has called on African states not to co-operate with the ICC.

Ironically, several African countries, notably Botswana, Burkina Faso, Nigeria, Sierra Leone and South Africa, have consistently voiced their support for the ICC and remain committed to co-operating with it.

Furthermore, several African states – Ivory Coast included – have shown continued support for the ICC by calling on the court to investigate and prosecute crimes committed in their countries.

The first situations before the ICC came about after states that are signatories to the ICC’s Rome Statute asked the court to investigate crimes committed in their respective countries. These states are Uganda, the Democratic Republic of the Congo and the Central African Republic.

The ICC can also claim jurisdiction over a matter in a state party if the prosecutor, of his own accord, requests authorisation from the ICC’s pre-trial chamber judges to initiate investigations.

To date, the prosecutor has only exercised this proprio motu power once, in the case of Kenya’s post-election violence.

The UN Security Council may refer situations to the ICC in countries that are not state parties to the Rome Statute.

The security council has exercised this power in respect of two situations before the court: those of Sudan’s western province, Darfur, and Libya.

With the recent authorisation of investigations in Ivory Coast, four of the seven cases before the ICC are the result of choices made by African states themselves. This is a clear sign of acceptance by Africans of the importance of the ICC in assisting them in meeting their obligations to end impunity and promote international criminal justice.

While Ivory Coast has not ratified the Rome Statute, it has formally accepted the jurisdiction of the ICC. The first declaration accepting the ICC’s jurisdiction was made in April 2003 by then-president Laurent Gbagbo.

In December 2010 and again in May 2011, incumbent Alassane Ouattara made similar declarations and invited the ICC prosecutor to investigate crimes committed since November 2010.

The peculiar situation in which Ivory Coast has accepted the ICC’s jurisdiction, without taking the broader step of ratifying the Rome Statute, creates an interesting precedent for the authorities of the Occupied Palestinian Territories.

The Palestinian authorities are bidding for statehood and in January 2009, made a similar declaration granting the ICC jurisdiction over the crimes allegedly committed by Israel during Operation Cast Lead in Gaza.

If the occupied Palestinian territories are granted statehood, the Palestinian authorities may also wish to refer the situation in their territories to the ICC.

However, pending the outcome of the Palestinians’ bid for statehood, to date all the cases before the ICC are from African countries.

This African focus has led to some criticism of the ICC as targeting Africa. This criticism, however, ignores important considerations.

Firstly, 32 African countries have voluntarily ratified the Rome Statute and Ivory Coast has voluntarily accepted the ICC’s jurisdiction.

Secondly, the criticism fails to acknowledge the fact that the majority of the situations before the ICC areas are a result of self-referral by the government of the country concerned.

Furthermore, the criticism overlooks that the ICC serves as a court of last resort, which only intervenes when a state is either unwilling or unable to prosecute alleged perpetrators of international crimes.

Lastly, the criticism does not acknowledge the pervasive culture of impunity and weak criminal justice systems in Africa – factors that have contributed significantly to the continued commission of international crimes on the continent.

The ICC exists to fill the impunity gap and to ensure justice for persons responsible for the most serious crimes of international concern.

The ICC is furthermore complementary to national criminal jurisdictions. The preamble of the Rome Statute stresses that the first commitment by states is to themselves “end impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes”.

Ivory Coast’s recent invitation to the ICC, alongside the ratification of the Rome Statute by 32 African states, are examples of African countries fulfilling their obligations to promote international criminal justice and end impunity.

The fact that at present, all the situations before the ICC are from African countries indicates not only that unacceptable levels of violence bedevil our continent, but it also presents an opportunity for Africa to be at the centre of developments in international criminal justice.

Even as certain African leaders criticise the ICC’s involvement on the continent, for Ivorian victims of mass atrocities, that involvement sends out a symbolically important message that their suffering has not been forgotten and that those responsible may meet justice, through the work of a faraway court in The Hague.

Maunganidze is a researcher in the International Crime in Africa Programme at the Institute for Security Studies.

Time is nearly up for the world’s first ever Chief Prosecutor of the International Criminal Court (ICC). Human Rights Watch has published a report about his period in office, entitled “Unfinished Business”. International Justice Tribune talked with its author, Liz Evenson.

Published on 11 October 2011. By Bram Posthumus, Brussels

A cursory glance at the internet reveals all manner of labels attached to the ICC and its most visible official, Chief Prosecutor Luis Moreno-Ocampo. At one end it is an “arm of Western imperialism”, at the other nothing more than a “paper tiger”. Criticism has been particularly virulent against the perceived bias of the ICC: why have, so far at least, all the defendants come from Africa?
ICC basics
Liz Evenson from Human Rights Watch summarizes the role of the court as “the world’s first permanent court, set up to try crimes of genocide, war crimes, crimes against humanity; the world’s worst crimes.’

There are three ways in which a case can come before the ICC. First: referral by a state that has ratified the document that created the ICC, the Statute of Rome. Second: an order to investigate by the United Nations Security Council. Third: the personal initiative of the ICC Chief Prosecutor. There are currently seven cases before the court; five of those are government referrals: three in the DR Congo, one in the Central African Republic and one in Uganda. Another one (Darfur) is a Security Council decision and one (Kenya) is the result of the Chief Prosecutor’s own will.

These constitute the subject matter of Evenson’s report.

The Chief Prosecutor and his office have very specific roles, says Evenson: ‘To bring investigations and prosecutions and to decide which countries to investigate, who to investigate and for what - and see that through to completion. He must also protect victims and witnesses but he must seek the truth. That is: look for evidence that incriminates an individual – but also evidence that exonerates an individual, in the interest of a fair trial.’

There is one extra, intermediate step, known as the ‘confirmation of charges hearing’. Here, the ICC judges will hear the evidence and then decide to let a case go ahead or throw it out.

The Face of the ICC

It is easy to see how and why the current Chief Prosecutor became the face of the ICC. His role is central to the whole process. Add to this Mr Moreno-Ocampo’s drive, flamboyant personality and an interesting legal career in his native Argentina and you have the ingredients for a major road show. The report, however, deals less with the character and more with the judicial nuts and bolts.

Impartiality and independence are the two key principles that should guide the work of the Prosecutor’s Office, while at the same time an entirely new international legal institution is created. Moreno-Ocampo’s job has been difficult. But how has he performed? For Liz Evenson the record is mixed.

‘We can take the case of the DR Congo. The justice needs there are tremendous. The Chief Prosecutor has conducted three investigations, two in the Ituri region and one in the Kivus. In Ituri, the leaders of two rival militias have been investigated. But our research indicates that those militias were supported by governments in the region. Rwanda, Uganda and officials in Kinshasa were involved. So we have urged the Chief Prosecutor to go up the chain of command to see if those who supported these militias also share criminal responsibility.’ The implication is clear: not doing so will mean that full justice is not delivered.

In the Ugandan case, the ICC’s impartiality was compromised when Moreno-Ocampo and the Ugandan president Yoweri Museveni gave a joint press conference in 2004, announcing the opening of investigations into Joseph Kony, the leader of the notorious Lord’s Resistance Army. The government’s own forces also committed abuses in this conflict and so, Evenson concludes: ‘It did undermine the sense of independence and impartiality – at least at the outset of the investigation. There may be legal reasons why only one side of the conflict has been investigated but the Chief Prosecutor must then explain these clearly.’

Weakness

The Uganda case exposes a crucial weakness of the ICC: its dependence on states parties to deliver alleged criminals. If the government does not want to do it, it simply does not happen. Conversely, governments may think that hauling citizens before the ICC can be a convenient way of getting rid of people they do not like.

The problem becomes even more glaring when we consider non-states parties like Sudan. Since July 14th 2008, Sudan has been ruled by an indicted war crimes suspect. And on March 9th 2009 the ICC issued a warrant for his arrest. This may restrict some of his travel plans but he is still the relatively untouchable President of Sudan. ‘It is a continuing battle to reinforce the importance of the arrest warrants,’ says Evenson. ‘Even if they cannot be executed tomorrow, justice has a very long memory.’ Ask Mssrs Mladic and Karadzic, now before the Yugoslavia Tribunal, a precursor to the ICC.

The Kenya case has brought more balance to the ICC prosecution’s handling of cases. Six alleged instigators of widespread post electoral violence are being investigated – the men coming from both main parties in the conflict and their hearings taking place simultaneously in The Hague. These are positive steps according to Human Rights Watch.

Powerful interests – an Africa bias?

In the end, arrests will come about because of government compliance or international action. But the question must be asked whether the ICC actually does its work free from political interference from the world’s heavyweights. Uganda is a friend of the USA; Sudan is a friend of China – and so on. Liz Evenson puts it subtly: ‘It’s still an unfortunate reality that those who are allied with powerful interests are more likely to escape justice.’

There is a perception that the court is picking on African countries. This is a moot point since African governments were important actors in creating the ICC, especially following the Rwanda genocide. Liz Evenson thinks that the concentration of attention on Africa is problematic – ‘but then the answer cannot be less justice for those who do fall within the ICC’s reach. Yes, all the cases currently being investigated are in Africa but that does not take away from the seriousness of those crimes.’

Moreno-Ocampo suffers from a degree of criticism but Evenson praises his passion and energy in what has been a challenging job. He has succeeded in putting the ICC on the map.

Next chapter

What does Human Rights Watch look for in the next Chef Prosecutor? Less flamboyance? Fundraising skills perhaps? The Office of the Prosecutor has a huge caseload and limited means. Liz Evenson sums it up: ‘The next person must have demonstrated skills in investigation and prosecution. Good office management is also necessary, given the amount of work. And the next person must also understand and be committed to communicating the work of the court. Names? Sorry, no suggestions. But these wishes have been communicated to the ICC.’

None of this implies that the current office holder did not do these things but they must be done better and for this reason, ‘We’ve made a choice as an international community – for justice. We no longer want leaders who commit crimes against their own people or against people of other countries being entitled to retire in this golden life of exile. Eventually we want to build a system that can deter these crimes’, says Evenson.

Read original article on Radio Netherlands Worldwide (RNW) here.

International Criminal Court chief prosecutor Luis Moreno-Ocampo is the subject of the documentary Prosecutor, premiering Oct. 9 on the Documentary Channel. He talks to Marlow Stern about going after war criminals Muammar Gaddafi and Sudan’s Omar al-Bashir, and why he can’t intervene in Gaza.

Boasting 118 member states representing approximately 2.4 billion people, the International Criminal Court is a tribunal whose mission is to prosecute individuals for genocide, war crimes, and crimes against humanity. It operates out of The Hague in the Netherlands, and since coming into being in 2002, the ICC, which is governed by the Rome Statute, has opened investigations in seven places: the Democratic Republic of Congo; Uganda; the Central African Republic; Darfur; Kenya; Libya; and Côte d’Ivoire.

The ICC can take action only if the crime took place in a member state or if the United Nations Security Council refers the case. And since 2003, Argentine lawyer Luis Moreno-Ocampo has served as the ICC’s chief prosecutor, overseeing all its cases.

Despite the ICC’s noble premise, many have been critical of the court for its inability to bring criminals to justice—it can’t send forces to apprehend criminals—even though the court has spent nearly $1 billion in member states’ money. Part of the problem, it seems, is that the ICC’s jurisdiction isn’t recognized by the U.N. Security Council’s five permanent members: the United States, the United Kingdom, China, France, and the Russian Federation. The highest-profile cases, however, have been referred to the ICC by the Security Council, including charging Sudanese President Omar al-Bashir with genocide, war crimes, and crimes against humanity in Darfur, and, recently, charging Libyan dictator Muammar Gaddafi and his son Saif al-Islam with war crimes and crimes against humanity for their actions during the ongoing Libyan revolution.

Moreno-Ocampo is the subject of a documentary, Prosecutor, that will premiere on the Documentary Channel on Oct. 7. In an interview with The Daily Beast, he talks about why he charged Bashir and Gaddafi with war crimes, how he can’t intervene in Gaza despite Palestine’s pleas, why he doesn’t need the U.S., and more.

Your job in the documentary is described as “a salesman of social justice.” Do you agree with this description?

I am a prosecutor, and my job is to investigate war crimes. And the money is coming from 118 states with 2.4 billion people, so a prosecutor has to reach the citizens he’s serving. How do you reach 2.4 billion people? With movies. It’s the only way to do it. The meaning of justice is not just for the judges; I need my citizens to understand what we are doing. The Nuremberg trials were very important, but what people really understood was the movie about the trials [Judgment at Nuremberg]. Movies are the way to reach a massive number of people.

How much harder is your job, given that the U.S. doesn’t recognize the ICC?

This International Criminal Court is the creation of small states, so all the big countries who are protected by big armies don’t need the law. It’s the first time that a multilateral institution was created without the big countries, and only the smaller countries. And it’s working.

Does it bother you that the U.S. isn’t involved?

No. It’s normal.

There’s a question posed in the documentary about charging U.S. soldiers with war crimes in Afghanistan, since Afghanistan recognizes the ICC. However, it clearly poses a huge problem, since the U.S. does not.

Any person committing crimes of humanity or crimes of genocide in Afghanistan could be prosecuted by the ICC. The issue is: there should be crimes committed, and there should be no national proceedings. Those are the two limits.

Much of the documentary focuses on Omar al-Bashir and the atrocities in Sudan. It was seen as a very controversial move when you charged him with genocide, crimes against humanity, and war crimes in Darfur back in 2008.

The decision to do justice in Darfur was not introduced by me. It was the Security Council’s decision in March 2005. For me, it took two years to collect the evidence, and we charged first the minister of state for the interior, Ahmed Haroun. We proved his role in the massive campaign surrounding villages in Darfur—shooting, killing, raping, and forcing the displacement of 4 million people. After that, President Bashir said he would not hand over Haroun because he was following his orders. So we kept investigating Haroun and Bashir, and how [Bashir] was giving him instructions, and when I had the evidence I informed the Security Council that I would proceed, and I proceeded. That’s my job. Basically, it’s a matter of time before Bashir faces justice. The problem is that in the meantime, the genocide is ongoing.

Do you wish you had a police force to actually bring these criminals to trial?

No. It would never work. We cannot invade. Look, it’s a matter of evolution. In the 19th century, in this country, the Supreme Court ruled that the state of Georgia passed a law against the Cherokees in this country that was unconstitutional. Then a journalist went to President Andrew Jackson and asked, “How are you going to enforce the Supreme Court’s decision against Georgia?” And the president said, “The Supreme Court decided it, and the Supreme Court will enforce it,” basically ignoring him. That was at the beginning of this country, but now, nobody challenges the Supreme Court. It’s a matter of time. The international criminal court of Yugoslavia has 18 years of activity now. Do you know how many war criminals they’ve indicted? 161. How many remain fugitives? Zero. It took a lot of time, but it’s a matter of time. At the end, they faced justice.

Interpol recently moved Libyan dictator Muammar Gaddafi and his son Saif al-Islam to the top of its “Most Wanted” list, at your request.

Yes, this was at my request. Libya is a case where it’s working very well. Gaddafi, who has a lot of power, suddenly started to kill civilians, and the media showed that. The crimes were committed on Feb. 17, and just days later the Security Council referred the case to the ICC. In Darfur, it took two years to decide to refer the case to the ICC. The world is evolving. After that, I had the mandate to investigate the crimes of Gaddafi, I presented my case three months later, the judge issued a warrant in June, and now Gaddafi is a fugitive. And Saif al-Islam and Muammar Gaddafi should be arrested.

What about Côte d’Ivoire? I read that you’re currently investigating it.

We requested to open an investigation in the Côte d’Ivoire, and we hope that in a few days we’ll get the authorization. But we say that when in December, Charles Blé Goudé was inciting young people to commit crimes, we said publicly this could be a crime, and then they would stop it, but then they started again after. When we say we’re going to do an investigation, we’ll do it.

The Palestinian National Authority has openly recognized the jurisdiction of the ICC and is pleading with the court to investigate war crimes in Gaza, but it’s a very tricky situation.

The problem is the legal issue. The Rome Statute says “a state” can recognize your jurisdiction, but is Palestine a state? OK, that’s an issue that’s now being debated. Before we clarify if Palestine is a state, we can do nothing. I’m a prosecutor; I’m not an activist. I must appreciate the legal limits.

Your term is over in nine months. What do you really wish to accomplish during the rest of your time at the ICC?

We’ll finish two trials, and I hope we can move the Côte d’Ivoire case forward and arrest some of the fugitives. To me, the most important thing is that we build an institution. When I arrived eight years ago, I had two employees, six empty floors, nothing. Now I have 300 people working around the world, and I can pass this institution to the next prosecutor. We’re building an institution to do justice for the worst crimes in the world.

Is it a lonely job?

It’s very difficult and full of problems. I love stress. No, I’m kidding. I’m Argentinian and I’m trained on cows. In Argentina, I was a prosecutor against the military juntas and corruption, and it’s a country in which you have to be firm to establish the law, and in the international world, you have to be firm to establish the law. But you feel it’s very rewarding, knowing that you’re doing something for victims around the world.

What measures would you take to make the ICC more effective?

It has been effective. The power of the ICC is the power and the commitment of the state parties. It’s not just about what the judges are doing. We have to do a good legal job, but the commitment is also in the states enforcing these decisions. There are some problems with Bashir, a head of state, and Joseph Kony [head of Uganda’s Lord’s Resistance Army], who is a militia leader, so it’s complicated to arrest him. We can do better, but it’s working.

What’s next for you after the ICC? Golf?

I have another nine months! Let me finish, and then we’ll talk.

Read original article here.

JOHANNESBURG, 6 October 2011 (IRIN) - International human rights law meanders between the vague and the hazy when it comes to its stance on the age of criminal responsibility and what, if any, punishments should be imposed on child soldiers guilty of war crimes.

The godfather of human rights laws, the Geneva Conventions, oblige all member states to act on grave breaches of human rights, but does not stipulate the age of criminal responsibility.

Robert Young, deputy permanent observer and legal adviser to the International Committee of the Red Cross (ICRC) based in New York, told IRIN international humanitarian law (IHL) remains “silent” on the age of responsibility for perpetrators of grave human rights abuses, such as wilful killing, torture and inhumane treatment.

International Criminal Court (ICC) Article 26 prevents the court from prosecuting anyone under the age of 18, but not because it believes children should be exempt from prosecution for international crimes, “but rather that the decision on whether to prosecute should be left to States,” says the Office of the Special Representative of the Secretary-General (SRSG) for children and armed conflict (Working Paper Number 3: Children and Justice During and in the Aftermath of Armed Conflict, September 2011). “[The] exclusion of children from the ICC jurisdiction avoided an argument between States on the minimum age for international crimes,” it noted.

The age of criminal responsibility varies from country to country, from 7-16, but the bar is most commonly set at 14.

Although IHL does not set a minimum age for criminal responsibility for international crimes, it is argued that a yardstick has been laid down for some form of indemnity through IHL’s recognition that recruitment of child soldiers under 15 was a war crime.

The Children and Justice During and in the Aftermath of Armed Conflict report says: “If a child under the age of 15 is considered too young to fight, then he or she must also be considered too young to be held criminally responsible for serious violations of IHL while associated with armed forces or armed groups.”

“Children are often desired as recruits because they can be easily intimidated and indoctrinated. They lack the mental maturity and judgment to express consent or to fully understand the implications of their actions… and are pushed by their adult commanders into perpetrating atrocities,” the report said.

That children should be held accountable for their crimes during conflicts was acknowledged by the report, but “more effective and appropriate methods, other than detention and prosecution are encouraged, enabling children to come to terms with their past and the acts they committed.”

The report said child soldiers should not be prosecuted “simply for association with an armed group or for having participated in hostilities… There are instances where children are accused of crimes under national or international law and are prosecuted before a criminal court. Prosecution of a child should always be regarded as a measure of last resort and the purpose of any sentence should be to rehabilitate and reintegrate the child into society.”

Victims and perpetrators

The International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) did not cite a minimum age for criminal responsibility, but no one under 18 appeared before the tribunals. The Statute of the Special Court for Sierra Leone (SCSL) provided the court with jurisdiction over any person above 15, but the court’s prosecutor decided against indicting children for war crimes because of their dual status as both victims and perpetrators.

It may appear a grey area easily resolved by providing indemnity for crimes committed by child soldiers under the age of 15, but Radhika Coomaraswamy, SRSG for children and armed conflict, noted - in a 2010 article for the International Journal of Children’s Rights: The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict - Towards Universal Ratification - that such a provision could be perversely used.

“If minor children who have committed serious war crimes are not prosecuted, this could be an incentive for their commanders to delegate to them the dirtiest orders, aiming at impunity. For this reason the ICC and SCSL focus strongly on those persons most responsible for human rights and IHL violations and apply the concept of command responsibility to political and military leaders,” Coomaraswamy said.

Command responsibility does not necessarily remove individual culpability for serious human rights violations by lower ranks or subordinates, but “rather it traces liability back up the chain of command,” said legal adviser to the ICRC Young.

When child soldiers become adults

Dominic Ongwen was about 10 when he became a soldier with the Lord’s Resistance Army in the 1980s.

The ICC issued an arrest warrant for him in October 2005 for crimes against humanity, including enslavement of children. However, jurisdiction by the court does not extend to crimes committed by people under 18, and before 2002 when the Rome Statute entered into force. The crimes cited are for when Ongwen was an adult.

“Ongwen is the first known person to be charged with the same war crimes of which he is also a victim,” the Justice and Reconciliation Project, a Ugandan NGO concerned with transitional justice, said in a 2008 field note entitled Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen.

“[Ongwen and other child soldiers] represent precisely the kind of complex political victims who, if excluded from justice pursuits, could give birth to the next generation of perpetrators in Uganda; generations marginalized by the judicial sector and who have nothing to gain from citizenship and nothing to lose from war,” the field note observed.

The Lubanga case

Tomaso Falchetta, Child Soldiers International (CSI) legal and policy adviser, told IRIN child soldiers should be viewed as victims and the NGO opposed their prosecution, as emphasis should be on the criminal responsibility of the adult recruiters. CSI “does not advocate for a cut-off point [for the prosecution of child soldiers], as it is a difficult issue.”

The first person to stand trial at the ICC for enlisting children under 15 was former Democratic Republic of Congo (DRC) warlord Thomas Lubanga. His trial at The Hague is nearing completion after he allegedly recruited underage children into the Patriotic Forces for the Liberation of the Congo (FPLC) during the conflict in Ituri, a district in the eastern DRC, between 2002 and 2003.

An international humanitarian law expert, who declined to be identified, told IRIN Lubanga’s case was “tremendously important” as “it will make others pause and think… Every rebel leader must be aware of this case.”

Falchetta said it was “difficult to provide an empirical judgement on that [Lubanga’s ICC prosecution being a deterrent]”, and rather that accountability needed to be enforced at the national state level to discourage the continued use of child soldiers.

The former DRC president, Laurent Kabila, said in 2000 the armed forces would demobilize all child soldiers but a year after he made the commitment, four DRC child soldiers aged 14-16 were granted clemency, after death sentences imposed by a military tribunal led to international condemnation from human rights organizations. A 14-year-old child soldier was reportedly executed the previous year.

Capital punishment for persons under 18 violates the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. The DRC is party to both international human rights treaties.

“The DRC laws may be there [the use of child soldiers is illegal], but when it comes to implementation, investigation and prosecution [of adult recruiters], we’ve seen little of that,” Falcetta said.

The CSI said in an April 2011 report (entitled Report to the Committee on the Rights of the Child in Advance of the DRC initial report on the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict) that “hundreds of children remain in the ranks of the national armed forces (Forces Armées de la Republique Démocratique du Congo) despite legal and policy obligations to release them and government pledges to do so.”

Laws of war

Matthew Happold of Hull University in the UK said in 2005 paper entitled The Age of Criminal Responsibility in International Criminal Law there were “good reasons” for regulating criminal responsibility of international crimes through international law as they were “often distinguished from crimes under national law because they transcend national boundaries and are of concern to the international community.”

He said, in the paper presented at the Hague Academic Coalition’s conference on international criminal responsibility, that from the perspective of a defendant, “it would seem wrong for an individual’s liability under international law to depend upon the place of prosecution…. States are obliged to prosecute and punish offenders. Permitting States to decide their own age of criminal responsibility would allow them to determine the scope of their international obligations.”

Child soldiers, like any other combatants are subjected to the Nuremburg principle that holds: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

ICC’s Article 33 determines that acting on orders from superiors was not a defence of criminal responsibility but there are mitigating circumstances, and among them, is that a person may be relieved from prosecution if they did not know the order was unlawful.

However, the commission of “manifestly unlawful” crimes, such as genocide or crimes against humanity cannot be mitigated.

Young said the “so-called `defence of superior orders’... the [Nuremberg] principle that `I was just following orders’ can no longer relieve any of us of criminal (and moral) responsibility for unconscionable acts we commit at the behest of others.”

However, Rule 155 of Customary IHL, provided leeway, where “coercion and duress may provide exceptions… and one can quickly imagine how this principle might mitigate the responsibility of a child soldier who was forcibly recruited and forced, under threat of harm, to commit war crimes,” ICRC adviser Young said.