This guest post is by Sonia Messaoudi who is a trainee-lawyer at Paris Bar School with an LLM in international law and human rights. She has interned at Amnesty International and the United Nations Assistance to the Khmer Rouge Trials
Two Somali youth accused of piracy returned home to their parents on 13 August 2012 after a Seychelles court determined they were too young to sentence after an eight-month detention. [Hassan Muse Hussein/Sabahi]
In August 2012, two Somali youth
who had been accused of piracy returned home after a Seychelles court determined that they were too young to be sentenced. The children were brought to Garowe on a private plane paid for by the United Nations Office on Drugs and Crime. This is the modern and dark version of piracy books for children. Indeed, this is not an isolated case off the Horn of Africa as about one-third
of Somali pirates are children. While eliminating piracy became a worldwide issue, it has to be approached without forgetting the protection of children who are involved in such criminal activities. As noted on the 23 November 2010 for the first time in a piracy resolution, the Security Council
expressed concern about the involvement of children off the coast of Somalia.
According to international law, children should not be prosecuted by the same means as adults. The United Nations Convention on the Rights of Child states a child (i.e. anyone under 18 years old) should be handled differently than adults when charged with serious crimes, and “be treated in a manner consistent with the promotion of the child’s sense of dignity and worth.” However, many Somali youth linked to piracy are held in foreign jails, causing great worry for their parents.
As the use of child soldiers is denounced, there is an increasing international mobilization against the use of children for criminal purposes. When dealing with child pirates, there are two possibilities: arrest them in accordance with a juvenile crime, or release them which means they must be put back into one of the worst forms of child labour.
In some countries, children are prosecuted, while in others children are protected. In the countries where children are prosecuted, the State must ensure it does so in accordance with international juvenile justice standards. Over the last twenty-five years, child-specific instruments, such as the UNCRC and general human rights treaties, have played a crucial role in setting out states’ obligations towards young offenders. The UNCRC has four general principles – (i) the right to life, survival and development, (ii) the right not to be discriminated against, (iii) the requirement that the best interests of the child be a primary consideration in all actions concerning children and finally (iv) the right of the child to be heard in all decisions that affect him/her. It requires a dedicated juvenile justice system, a minimum age of criminal responsibility and the adoption of measures to deal with children without resorting to judicial proceedings, provided that human rights and legal safeguards are fully respected. The UNCRC prohibits the imposition of the death penalty and life imprisonment on children, and requires that imprisonment be imposed only as a last resort and for the shortest appropriate period of time. It also prohibits arbitrary deprivation of liberty and provides for the right to prompt legal assistance and the right to challenge the legality of the detention.
As Radhika Coomaraswamy, the Special Representative of the Secretary-General for Children and Armed Conflict stated, if an international criminal tribunal is convened to deal with the perpetrators of acts of piracy, no child should be tried in the same court as adults but rehabilitated and integrated back into their communities. However, if a prosecuting state decides not to prosecute them, the concrete consequence is to put children back into a situation where they may be forced to perpetrate further acts of piracy. Therefore, solutions should be found in order to reintegrate them into the society as required by Article 7 of The 1999 ILO Convention on the Elimination of the Worst Forms of Child Labour, and article 40 the Convention of the Rights of the Child.
Potential solutions may be drawn from the situation of child soldiers. Roméo Dallaire has noted there is no major difference between a child soldier and a child pirate: “they are children being used by adults for criminal or political purposes, and they are extremely vulnerable, and there are a lot of them.” As for child soldiers, a program called “Prevention, Demobilization and Reintegration” created in 1990’s for helping child soldiers helped more than 100 000 since 1998. Prevention consists essentially in advocacy and supporting civil society by raising awareness of child rights through a variety of media, and using local and international human rights reporting mechanisms. Centers have been created in this purpose, assisted by local or international non-governmental organizations, UNICEF, and UN. Furthermore since piracy business is currently costing and estimated $12 billion to the world economy, prevention seems to be a good investment while finding a solution for child pirates and in order to prevent them from engaging in such criminal activities.
However, prevention and reintegration of children is not enough to eradicate piracy. We must attack the roots. Indeed, the employment of children in criminal activities such as piracy is forbidden by the Labour Organization Convention. The UNCRC states the State parties recognizing the right to child to be protected from exploitation shall provide for appropriate penalties or other sanctions to ensure an effective enforcement. In countries where
pirates originate, such as Somalia, governments often do not respect international standards of human rights. However in order to prosecute pirates who are using or recruiting children, some recommendations were made. Indeed, encouraging government to enforce national legislation to ensure there is no impunity against those accused of perpetrating these violations against children, and increasing pressure on persistent perpetrators through greater interaction between the Council and the Secretariat of UN, national courts and the ICC are one of them, as Resolution 1918 requested it off the coast of Somalia. In case of armed conflicts, some resolutions recommend sanctions, such as arms embargos. We could think about these kinds of solutions for piracy too.
However, the issue is now to know whether or not the use or recruitment of children for criminal activities such as piracy can be prosecuted. In some domestic law, as France and in some states in United States of America for instance, there are specific statutes criminalizing encouraging, using or recruiting children for criminal activities. However, where such is not criminalized especially for recruiting children, it may be possible to prosecute for causing, encouraging, soliciting, or recruiting criminal gang members. Furthermore, Article 101(c) on UNCLOS provides another way to prosecute them stating the recruitment can be as an act of incitement.
At the international level, convictions by International Courts of Thomas Lubanga Dyilo and Charles Taylor have helped raised awareness of the criminal nature of the recruitment and use of children in armed conflict. Furthermore, the International Criminal Court disallows the recruitment or conscription of child soldier (under the age of 15 years) into military which is defined as war crimes.
In order to draw a parallel between child soldiers and child pirates, the question is whether child pirates may be considered to be child soldiers. According to the international definition, a child soldier is any child under 18 years of age, who is part of any kind of regular or irregular armed force or armed group in any capacity including but not limited to: cooks, porters, messengers, and anyone accompanying such a group other than family members. Therefore, the question is whether or not pirates who are using or recruiting children are regular or irregular armed force or armed group. An International armed conflict exist whenever there is resort to armed force between two or more States, while Non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the Geneva Conventions]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization. There are two options then. First, it is an non-international armed conflict and we have to determine if the pirates groups can be seen as armed group or irregular armed force, and secondly, it is an international armed conflict and the question is whether or not piracy as international conflict. But pirates group are not well identified. Both of the two options are not legally convincing. So it seems in most of the case, international humanitarian law cannot apply to child pirates in Somalia, as it applies for child soldiers.
Therefore, in order to impede children piracy and respecting children’s human rights, we should deal with child pirates but also with persons using or recruiting children for such a criminal activities. Where the first ones should not be prosecuted but reintegrated into the civil society, the second ones should be.
What is sure is that we have all, from the local communities to the States and international institutions, the responsibility to make sure the only pirate children should know is Captain HooK.