Universal Jurisdiction, New Hope for children?
Fr Shay Cullen
There are several issues to be considered.
Will fighting poverty through development projects, relief or fair
trade, micro loan projects, or encouraging older children to work and study,
make a difference in the reducing the numbers
of exploited and abused children?
Alternatively, is such a long-term strategy, too long?
What children need is immediate action now.
Should not
resources be put to their protection from violations of their human rights?
These are the questions that this conference will bring to our
attention.
The strategies suggested above, among others that will emerge at this
conference, are proposed so that we can have a strategy that will work
against the root causes of child labor, poverty being one of them, this in
my opinion is not only is feasible and practical, however difficult and
challenging also very necessary if there is ever to be any relief from the
un-mitigating poverty that causes such child exploitation.
However, the other more difficult and seemingly intractable problem is
how to deal with the various causes of poverty itself.
It is well known that political corruption, national laws favoring the
rich, failure of land reform, economic globalization polices, the predatory
maximize profits polices of multinationals, (chocolate manufactories) are
behind the driving wheel of global poverty and exclusion of the e poor from
a life of dignity and prosperity are at the heart of the increasing poverty
of the poor and befit the ruling political and economic elite.
How do we confront these manifest "axels of evil" in the global
society?
The title of the conference is a question, will any measure of fighting
poverty actually reduce the number of violations against children especially
those exploited in child labor camps, plantations, factories, executed by
death squads for working as street children, or prostitutes in the sex
industry?
In the long term the answer from my point of view is YES Poverty
alleviation is essential in dealing with the abuse of Children, alternative
industries that employ parents and help the children get educated is a very
worthy strategy and has been demonstrated in some fair Trade sponsored
projects. Football making by
Gepa.
Tea farmers in India helped by DWP.
The Fair Trading and micro lending as we practice at the Preda
foundation.
Preda has an extensive Fair Trade project with handicrafts and dried
fruit, dried mango sales gives Preda buying power in the market and this
bring pressure on the price fixing cartel thus helping prices to rise and
benefiting thousands of poor farmers and their families.
Micro lending likewise gives directly to the poor; the people without
material property to use as collateral get access to small loans to help
themselves. Lobbying by Fair Trade organizations in the political arena
opposing policies that punish the poor and benefit the rich and proposing
positive measures to make a more just society are to be continued and
supported.
In the short term the answer is NO.
The answer to the question:
will economic prevention of poverty and alleviation measures
stop the violation of Children's rights in the short term?<
The answer is NO.
Other measures have to be developed and implemented to augment and support
the prevention and alleviation of poverty strategies.
While poverty may be a cause of much of the child exploitation and
child abuse, we must consider also the CAUSES OF POVERTY and child
exploitation. As long as the
corrupt politicians and law enforcers, that are behind the exploitation of
children can protect and promote the evil industries and the businesspeople
that exploit child labor then there will an everlasting mill grinding out
everlasting poverty.
It is power-welding elites who allow this poverty to continue and grow
because they plunder the public purse at will.
They are devoid of moral principle and act only in their self-interest.
They prevent child friendly development policies from benefiting the
poor and while they welcome with a smile international aid they set about
slicing off huge portions of it and steering the benefits to themselves or
their family and political allies.
They promote the exploitation of child labor by blocking child development
programs and by giving out permits and licenses to brothels, child
exploiters and traffickers.
Power elites are behind child slavery and exploitation.
Sometimes these powerful elites of the community are the owners of
plantations, brothels, sweatshops & carpet factories.
They provide the
finances and the protection behind the
businesses that exploit child labor by their relatives, friends and
cronies. When the power elite of any community is immune from prosecution,
and controls the reins of law enforcement then they are beyond the reach of
the law. They are the people
responsible for graft and corruption and blocking the implementation of
democratic process, human development and the alleviation of poverty
projects and policies. They sometimes monopolize the sources of production
and create cartels that dominate the market and block the emergence of a
just social order.
I can tell you from personal experience that there power over local
communities and towns, provincial cities and regional areas is usually
unchallenged and when they work together a regime of absolute power
dominates, masquerading as a democratic society.
This we have seen recently in the Philippines where an entire region ruled
by a powerful governor was in cahoots with the President of the Republic in
perpetuating fraud and economic plunder for which the president is now
presently standing trial.
They flout the law, manipulate it to their advantage to overcome their enemies, silence their critics and crush human rights workers and all who would assert their rights and the rights of the abused and the tortured. Human rights workers protecting children and trying to free them from slavery are powerless and in grave danger themselves.
No effective rule of law.
These local tyrants are masters of mockery, the rule of law has no meaning
for them or holds over them, they are political or economic "warlords" in
their own right and terrorize to all who would question or oppose them. They
are equally guilty as the small time exploiter and abuser who are usual the
front manager of syndicates and a notorious sex mafia and paedophile
protection racket controlled by the political boss. Under international
pressure regimes will quickly have a show trial of some small criminal but
the elites behind the trafficking or exploitation are untouched.
THE NEED FOR UNIVERSAL AND EXTRA-TERRITORIAL JURISDICTION FOR CRIMES AGAINST
CHILDREN.
Our task should be to
remedy this and bring the real culprits and criminals to justice.
Since this is not possible in their own national jurisdiction, we need
to find a way to bring these crimes under Universal Jurisdiction or
extra-territorial jurisdiction.
Such jurisdiction exists for genocide, war crimes, crimes against humanity,
international crimes, and torture.
We have to make the case for prosecuting crimes against children and the
violations of their human rights under these principles well recognized and
more frequently used in international law. It is now the accepted principle
in International law that states have the right and the duty to bring to
international justice persons responsible for abhorred crimes. These are
genocide, crimes against humanity, torture, and possibly for crimes
committed in internal conflict. This has been successfully applied in
Rwanda, and Belgium but other countries have new laws where
extra-territorial jurisdiction reaches out across international borders to
bring criminals to justice.
Belgium Law and Universal Jurisdiction.
National laws also
permit prosecutors to introduce universal jurisdiction for certain
international crimes. A law
enacted in 1993 detailed the relevant crimes committed in armed conflict,
which could be tried in Belgium .The Belgium court has jurisdiction over
these offenses no matter where they are committed.
In 1999, the Belgium parliament passed a law that added genocide,
crimes against humanity to the international crimes over which Belgium has
universal jurisdiction.
The new law defines
genocide and crimes against humanity in line with the Statutes for the
International Criminal Court (ICC) adopted in Rome in July 1988, making
Belgium the first state to bring its laws into line with t the international
statute of Rome. Belgium also insisted that it would continue to prosecute
such crimes even after the Permanent International Criminal Court is
established. The Belgium courts
have since confirmed that prosecution of offenses criminalized by customary
international law is possible, even where the 1999 law does not apply.
The 1999 law includes
torture in it's definition of crimes against humanity and extends this to
acts committed in time of peace as well as in times of war. We need to lobby
to extent that for horrific organized crimes against children, such as
trafficking, sexual enslavement, child labor camps and plantations, the
beating, brutalizing, shooting and mutilation of children.
Even heads of state
are not immune from prosecution for torture as upheld by the House of Lords
in the UK in the case of former head of state Senator Pinochet.
Germany, Austria,
Denmark and Switzerland have already applied laws based on universal
jurisdiction to individual's accused of crimes arising of the former
Yugoslavia and Rwanda.
Other nations
parliaments are considering national laws to bring their legislation into
line with the Statue of Rome.
When 60 states that have signed the treaty of Rome have ratified it, then it
will become a reality. That is
expected to happen in 2002.
Extra-territorial jurisdiction.
The introduction of
extra-territorial laws by several nations applies the principle of Universal
Jurisdiction where a state prosecutes a person regardless of where the crime
was committed or by whom, it is in fact an example of extra territorial
jurisdiction .The state can reach out to any place to bring a suspect to
trial and this is becoming increasingly common, the laws apply to crimes
such as terrorism, hijacking, and hostage taking and also for crimes of
pedophiles against children. In
one experience of PREDA, a suspect abused a young child 11 year old in the
Philippines, was arrested but fled to Germany.
PREDA helped the victim and brought a criminal charge against the
suspect under the extra-territorial law, which was heard by a German Court.
The suspect was found guilty and sentenced.
This was one of the first applications of this extra-territorial law.
Although the criminal was a German national never the less
universal jurisdiction was invoked under a national law. This could be
expanded to individuals of other nationalities.
Prosecuting suspect under the principle of Passive Personality.
This is a principle
that allows a state to prosecute a suspect for committing a crime against
its own nationals even if the crime was committed abroad. This recognizes
that while the primary duty is on states to prosecute criminals where the
crime is committed in their own jurisdictions
they must end impunity to prosecution.
However, when they do not do so then other states can do so by bringing
the suspect to trial in their national jurisdiction, extradition may be
required for this. The recent approval of the international arrest warrant
within the European union is a major step forward in bring about the
globalized justice. Our task is make this apply to crimes against children.
International concern
for the widespread violation of human rights has given impetus to the
international community to demand accountability and this has established a
trend towards the establishment of the international criminal Court.
This is the time for
movements protecting children to demand similar application of universal
jurisdiction and extra-territorial jurisdiction for crimes against children.
This is the time for us to act to protect the human rights of children, not
only by promoting poverty alleviation programs but also by demanding that
national government amend their legislation to include universal
jurisdiction to apply to crimes against children.
The exploited children need the protection of universal jurisdiction.
Children, who are so
vulnerable, defenseless and horrifically scarred by physical and sexual
abuse, are bought and sold as commodities, trafficked like animals,
humiliated, abducted, imprisoned, enslaved and threatened, punished and
beaten as child workers. Some
are enduring forced labor conditions under subhuman conditions and
psychologically tortured.
All of the above if applied to adult prisoners of war would be a
violation of the Geneva conventions and the protocols and would qualify for
a hearing before a war tribunal and their abusers and tortures brought to
trial.
The same standard should apply to children reduced to slaves.
They should have the right, through representatives and the defenders
of their human rights to make complaints and ask for justice before an extra
territorial court or an international court when justice is denied them in
their own country.
A
Powerful way to benefit children.
Now we are more or
less powerless to bring successful legal remedies against criminals of the
highest order who abuse children.
Our challenge is to use existing laws and recognized principles of
international law to apply universal jurisdiction to child exploitation
cases and lobby of the expansion of national laws to cover these crimes.
If we go after the power elites using principles of Universal
Jurisdiction and extra territorial Jurisdiction and study the actual
practice and implementation of these principles today and in recent history,
I believe that we could find a way to bring a few of the
most notorious child exploiters to justice.
THE
INTERNATIONAL COMMITTEE FOR THE PROSECUTION OF CRIMES AGAINST CHILDREN AND
THEIR DEFENDERS
We can move in this
direction by establishing The International Committee for Prosecution of
Crimes Against Children and their Defenders.
This will initiate fact-finding missions to gather evidence once a
report has been made to the committee.
It will double-check the authenticity and reliability of the fact-finding
mission, possibly drawn from Parliamentary human Rights committees and based
on this they will produce a report. Steps will be taken to test the weight
of evidence with prosecutors where such a case might best be filed to test
it's chances of being accepted and the suspect being indicted to appear in
court.
It is essential to
include the defenders of children rights in this as a deterrent, because
they will be the main source of evidence and research into the crimes
against children and they will receive the most threats and will be
endangered.
The mandate for the
committee to bring formal complaints against a suspect because a crime
committed against a defender of human rights would be a strong protection
for the defenders of children as well as for the children who's rights have
been violated.
The Committee will be a strong deterrent
The very existence of
such a committee that makes it known that they are opening a fact-finding
project can be a powerful deterrent in itself.
My own experience has been to witness
the killing of street children by a death squad in a certain Philippine
city that seemed to have official sanction and backing of a powerful
politician, himself a lawyer.
Without making any allegation, I wrote an open letter calling on supporters
to protest and I said that whoever was behind the death squad should be
subject to an international investigation and a formal charge under
universal Jurisdiction.
The killing of
street children stopped the very day that the suspect high government
official received my letter of warning and protest and hundreds of others
followed from supporters. The
letter warned this all-powerful official about the possible complaint that
could be made against any official that tolerated crimes against children.
The charge would be made
before an International tribunal.
He knew that such a complaint would expose him and could mean a grave
restriction on his travel or investments or that of his family outside the
Philippines. Fear of such action alone was an effective deterrent and many
lives of street children were surely saved.
The massive libel charge that he brought against PREDA with the help of his
connections in the department of justice and the judiciary, and the hiring
of more secretarial staff to answer at length, the letters from supporters,
shows that the threat of an international complaint under Universal
Jurisdiction indicates the power of deterrent to
such suspects.
We NGOs have the resources, the opportunities, the skills and ability
to do this for the children.
History will judge us harshly if we fail to explore every possibility to
come to their defense. END
PREDA Children rights
center
Olongapo, Philippines.
Website: www.preda.org
e-mail: preda@svisp.com
Ph.+63 47 2239629, +63 47 223 9630,
fax.+63 47 223 9628
