OVERVIEW
Objectives
/ By the end of the session, participants should be able to:- Identify the fundamental principles of international criminal law and the core set of international crimes and how these crimes relate to children;
- Understand the relevance of international criminal law for UNICEF’s work;
- Identify alternative mechanisms of accountability, including truth commissions, national prosecutions, and traditional methods.
Time
/ 1 hour 30 minutesKey Messages
/- Justice/accountability: draws attention to violations of children’s rights, can help break the cycle of violence, and restore confidence in democracy and the rule of law.
- Children are often the victims of three core international crimes: genocide; crimes against humanity; and war crimes.
- Children can be involved in judicial and non-judicial mechanisms for promoting accountability as victims, witnesses and perpetrators.
CONTENTS
/ ActivitiesPowerPoint Presentation
Participant Manual
Trainer Resources
Session Plan
/Activities
/Methodology
/Duration
Introduction / 2 minutesActivity 1: Brainstorming on the Core Crimes in International Criminal Law / Small group discussion / 15 minutes
Activity 2: Fundamental Principles of International Criminal Law / Presentation
Q&A/discussion / 35 minutes
Activity 3: Core Crimes of International Criminal Law
/Quiz game
/35 minutes
Review of Key Messages for Session 7
/3 minutes
Total time
/1 hour 30 minutes
Materials
/Item
/Ready
PowerPoint Overhead Projector and ScreenPower Point slides: Session 7
Flip charts and markers
4 large cards
Participant Manual
7.1 Core Crimes in International Criminal LawTrainer Resources
International Criminal Justice and Children, UNICEF Innocenti Research Centre & No Peace Without Justice (September 2002). Recommend reading the Executive Summary, pp. 12-27. (EMOPS publication)
Children Affected by Armed Conflict: UNICEF Actions (May 2002). Recommend reading pp. 107-122. (EMOPS publication)UNICEF: See specifically the Report on Children and the Truth and Reconciliation Commission for Sierra Leone
KEY TO ICONs
/ These icons will help guide you through the session./
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Activities
Introduction
Time: 2 minutes/
Presentation of Session Objectives
Present session objectives, explaining that the intent is for participants to obtain a basic knowledge of international criminal law, the forums in which it is applied, and how it can protect children. It is also important for participants to be aware of the limitations of criminal prosecutions, and how alternative non-judicial mechanisms can be relied upon.Activity 1: brainstorming on the core crimes in international criminal law
Time: 15 minutes /Materials
Flipcharts and markersPurpose
To stimulate thought among participants as to what constitutes the core crimes in international criminal law, and how each core crime is defined.Instructions
- In plenary, ask participants to call out what they think constitutes the core crimes in international criminal law. Continue brainstorming until they come up with the three correct answers: genocide, crimes against humanity, and war crimes. Spend 5 minutes on this (you may have to provide hints).
- Once participants have correctly identified the core crimes, divide participants into three groups. Assign one core crime to each group.
- For their assigned core crime, each group must come up with a definition and a real-life example. They have 5 minutes to do this. Emphasise that they do not need to develop an overly legal definition – they simply need to identify what characterizes or defines a war crime, act of genocide, and crime against humanity. Groups should put their definition and example on a flip chart.
- Request each group to present its definition and example to the plenary. Do this in 5 minutes – do not dwell on whether the responses are correct or not. Make note of any issues that seem particularly confusing to the group. Do not provide the correct answers – inform participants that you will cover this in the presentation which follows. They will have an opportunity to return to their work if they wish during and after the presentation for any questions that remain.
ACTIVITY 2: fundamental principles of international criminal law
Time: 35 minutes /Purpose
This activity is intended to provide participants with a basic understanding of the principles of international criminal law and the three core international crimes. This information provides the basis for the question and answer team challenge in Activity 3.It is important to note that the below materials provide greater detail than you will have time to cover during your presentation. They are intended to assist you in becoming familiar with the subject matter and in learning how best to structure your presentation.
Make sure that you leave at least 10 minutes at the end of the presentation for questions. Ask participants if or how their understanding of ICL has changed following the presentation.
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Slide 3: Core Crimes in International Criminal Law
Refer participants to 7.1 Core Crimes in International Criminal Law so that they may follow along.There are three core crimes in international criminal law, which affect or have the potential to affect international peace and security:
1)Genocide;
2)Crimes Against Humanity
3) War Crimes
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Slide 4: Genocide
1) Genocide‘Genocide’ is defined in Article 2 of the Genocide Convention of 1948 as follows:
“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a)Killing members of the group;
b)Causing serious bodily or mental harm to members of the group;
c)Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d)Imposing measures intended to prevent births within the group;
e) Forcibly transferring children of the group to another group.”
Crimes of genocide thus involve three fundamental elements:
i) the identification of a group based on nationality, race, ethnicity or religion;
ii) the intention to partially or totally destroy the group (mental element); and
iii) the commission of any of the acts mentioned in the definition (active element).
If any of these three elements is missing, then the act – while possibly amounting to a war crime or crime against humanity – will not constitute the crime of genocide.
Ask participants what event in history they think gave rise to the definition of genocide.
- Answer: The extermination of millions of Jewish people by the Nazis on the basis of their religious identity during World War II.
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Slide 5: Crimes Against Humanity
2) Crimes against HumanityPrior to the Rome Statute establishing the International Criminal Court, there was no single document defining crimes against humanity and their legal elements; rather, the various definitions were spread across 11 international legal instruments.
Article 7 of the Rome Statute defines ‘crimes against humanity’:
“…any of the following acts when committed as part of a widespread or systematic attack directed against any civilian populations with knowledge of the attack…”
Accordingly, in order for an act to constitute a crime against humanity, the following general elements must be fulfilled:
- The act is committed as part of a widespread or systematic attack directed against a civilian population;
- The act is committed pursuant to or in furtherance of a State or organizational policy to commit such attack, which is understood to mean that the State or organization actively promotes or encourages such an attack against a civilian population.
It is important to note that crimes against humanity can occur both in times of peace and during an armed conflict.
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Slide 6: War Crimes
3) War CrimesWar crimes are violations of the laws of war that attract individual criminal responsibility. They have two fundamental elements:
- The acts committed must occur in the context of and in the association with an armed conflict; and
- The acts committed must have been carried out against persons protected under one or more of the Geneva Conventions of 1949. These protected persons include non-combatants such as civilians and medical or religious personnel who are not taking an active part in hostilities; combatants who are no longer taking a direct part in combat, including sick, wounded or shipwrecked combatants on land or at sea; and prisoners of war.
War crimes also include intentional acts against civilians, humanitarian personnel or protected buildings such as schools.
Other acts, such as the use of certain types of weapons or means and methods of warfare that cause unnecessary suffering may constitute war crimes depending on whether they were committed in the course of an international or non-international armed conflict.
Slide 7: Why is Justice/Accountability Important for Children?
Why is justice and accountability important for children? Children relate to justice and accountability mechanisms in three ways: as victims, witnesses and perpetrators.Accountability fulfils a number of important functions for children who were victims of international crimes. It contributes to the process of healing and helps children understand that they are not to blame for what has happened to them and their society. It calls attention to violations of children’s rights, records violations committed against children, and helps reveal overarching criminal policies, which is vital to understanding the broader context of what happened to children. Accountability can also help break the cycle of violence, restore confidence in democracy and the rule of law, increase the chances of success of the peace process and strengthen the legitimacy and authority of the new government.
For child witnesses, accountability mechanisms are important in that they allow these children to tell the stories of what they witnessed and in so doing, to feel as if they are helping promote justice and rebuild their societies. Special protections are necessary for these children to protect their identities and ensure that they are not subject to retribution by those who committed crimes.
In some cases, children are also recruited and used to be active parties to international crimes (e.g. DRC, Liberia, Rwanda, and
Sierra Leone). Forcing children to commit atrocities during an armed conflict is itself a war crime, resulting in severe psychological harm, and is a violation of their rights. Child perpetrators should thus be considered victims of criminal policies for which adults are primarily responsible. International judicial mechanisms should focus on prosecuting the political and military leaders who are responsible for planning and ordering the commission of egregious crimes.
However, in order to restore respect for the rule of law in post-conflict societies, children who may have participated in serious crimes should undergo an appropriate form of accountability, conducted in a way that respects the rights of the child and takes into consideration his/her age. For example, alternative measures of accountability could be employed, such as the participation of the child in a truth and reconciliation commission, and/or traditional healing and reconciliation processes. According to the Convention on the Rights of the Child, the key principle concerning child perpetrators is to promote their reintegration and return to a constructive role in society.
Write on a flipchart: Domestic criminal law
Inty’l Humanitarian law
Int’l Human Rights law
International Criminal Law is a relatively new discipline composed of legal regulations that derive from international law and domestic criminal law. It is the branch of law that gives force to the prosecution of violations of international law, in particular international human rights and humanitarian law. These three branches of law are interconnected and mutually reinforce one another.
International criminal law draws its force from the following sources: international conventions, customary law, general principles, the jurisprudence of international tribunals, and documents classifying crimes and delineating the elements of crimes and the means of enforcement.
(Write on the flipchart underneath the 1st statement: Principle of universal jurisdiction)
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Slide 8: Principle of Universal Jurisdiction
Historically, crimes have been the responsibility of States, since States have the duty to prosecute the accused in criminal courts for acts punishable under national law. However, there is a group of crimes whose seriousness and impact have generated such concern in the international community that any court in any State has been given competence to prosecute those accused of such crimes. This is known as the principle of universal jurisdiction.(Write on the flipchart underneath the 2nd statement: Rome Statute of the International Criminal Court).
The majority of crimes are the product of conflicts that have shocked the human conscience, and today form part of international
humanitarian law and human rights law. Defining these crimes has been a process of diversified codification by various treaties or by international customary law. Most recently, the Rome Statute of the International Criminal Court has contributed to this process by gathering together advances in codification in international custom, systematizing them and defining the core crimes in a single document.
Finally, write ‘How?’
There are three ways that cases can be brought to the ICC.
1)A state that has adhered to the treaty can refer a situation to the court for investigation.
2)The Security Council can refer a situation to the court.
3)The ICC prosecutor can start an investigation against a person who is a national of a state-party to the Rome Statute based on information that she or he receives from victims, NGOs, or any other reliable source.
Slide 9: Rome Statute for the ICC
International Criminal CourtThe Rome Statute, which is the constitutive agreement for the permanent International Criminal Court, was adopted in 1998 in Rome by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. By 31 December 2000, the last day on which the Rome Statute was open for signature, 139 countries from every part of the world had signed. On 11 April 2002, the 60th ratification instrument was deposited with the United Nations, allowing the Statute to enter into force on 1 July 2002. As of 1 December 2004, 97 countries are States Parties to the Rome Statute.
The International Criminal Court (ICC) is a permanent court, seated in The Hague in the Netherlands. The judicial functions of the Court will be carried out by 18 judges. The ICC will deal with the “most serious crimes of international concern”, namely genocide, crimes against humanity and war crimes. As mentioned above, the Rome Statute provides definitions of these core crimes and enumerates the acts that constitute them. The ICC operates on the "complementarity principle" which means that it will only accept cases if States are unwilling or unable to prosecute offenders
themselves via national justice mechanisms.
The ICC has jurisdiction over persons over the age of 18 and may exercise that jurisdiction irrespective of an individual’s official capacity, such as Head of State or member of government. Accordingly, the ICC has no jurisdiction over children who were under the age 18 at the time of the alleged crime.
Individual criminal responsibility will apply in cases where an individual commits the crime, orders that the crime be committed, aids or abets the commission of the crime, or, in respect of genocide, directly or publicly incites the commission of the crime. Commanders can be held criminally responsible for crimes committed by forces under their effective control if the commanders failed either to prevent the crime or to punish its commission. Individual criminal responsibility, including command responsibility, applies irrespective of whether the individual concerned is a civilian, a political leader, or is serving in regular armed forces or in other forces, such as paramilitaries or irregular armed forces.
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Slide 10: Other Accountability Mechanisms
It should be noted that, aside from the ICC, a variety of judicial and non-judicial mechanisms exist for promoting accountability and enforcing justice, including national prosecutions (e.g. Rwanda), ad hoc Tribunals (e.g. International Criminal Tribunals for the former Yugoslavia (ICTY) & Rwanda (ICTR)), Special Courts (e.g. Sierra Leone), Truth Commissions (e.g. South Africa, East Timor, Sierra Leone), and Traditional Methods (e.g. Rwandan gacaca[1]). Each mechanism must incorporate procedures to protect child victims, witnesses and perpetrators./
Slide 11: Child-specific Crimes Under the ICC