Introduction
As painful and inconvenient as justice may be, we have seen that the alternative - allowing accountability to fall by the wayside - is worse.
-Archbishop Desmond Tutu[1]
Lofty international proclamations about the importance of protecting education during times of conflict tend to seem vacuous in a world where schools are bombed, teachers are shot in their classrooms, and children are forcibly recruited from playgrounds to fight the wars of adults. The role of accountability is to bring substance to the noble sentiments of international humanitarian and human rights' law so as to bring genuine protection for students, schools, and teachers prior to attacks and, where such protections have failed, to offer appropriate redress for the victims.
At times, the term ‘accountability' is used in a manner that makes it seems synonymous with a rigid penal response. Yet at other times, the very same term is used to implore almost any response to an ignored atrocity; but as such, the term becomes amorphous, intangible, and entirely incapable of being acted upon.
The reality is that there is no one formula for ‘accountability' that is suitable to all attacks on education, all conflicts, all cultures, all countries. At different times and in different settings, the same act of planting a bomb beneath a school desk might amount to a crime of arson under domestic law, a war crime under international law, and a violation of children's rights to education.
In its ideal aspiration, ‘accountability' is the attempt to shift the burden and harm from a victim to the perpetrator while at the same time seeking to deter any repeat occurrence of a similar crime by any future perpetrator.[2] At its most basic, ‘accountability' simply means consequences for abuses.
Accountability can be attempted in a variety of effective ways, and this paper tries to identify some concrete examples of past efforts to hold violators to account for attacks on education, as well as current gaps and areas for possible expansion of accountability mechanisms. This paper particularly stresses the role of nongovernmental and intergovernmental organizations and therefore draws heavily upon Human Rights Watch's own experiences advocating for an end to impunity for attacks on education, the use of child soldiers, and other related war crimes.[3]
Accountability mechanisms
Important first questions when arguing for accountability for an attack on education are to consider who is to be held accountable and where. The table above helps illustrate the range of accountability mechanisms depending upon the answer to these questions. The first column shows mechanisms that focus on alleged individual perpetrators of violations while the second column refers to state or non-state group perpetrators. Sometimes one might seek to hold accountable the individual who physically carried out the attack but their identity may be unknown. At other times it might be more strategic to pursue individuals who ordered the attack,[4] or the military commander who knew, or should have known, about the attack, and who failed to try to stop it.[5] Similarly, one might choose to pursue the government official who knew his subordinates were illegally targeting schools but failed to submit the matter to proper authorities for investigation. Indeed, holding high-level commanders accountable can send a particularly clear message against impunity that no one is above the law.
Higher up the chain of command it might also be strategic to hold the state responsible; or, when it is not a state that is responsible for attacks, to hold the non-state actor - for example the guerrilla, separatist, revolutionary, or insurgent group - accountable.
The mechanisms shown in the upper row are based at national level, while international mechanisms are placed in the lower row of the matrix.
As this table demonstrates, there are a number of accountability mechanisms available, and the list is not exhaustive. Moreover, it is important to note that many mechanisms are not criminal. The whole variety of possible mechanisms should be considered, because the alternatives need not be mutually exclusive, and to ignore some is to miss some potentially effective mechanisms. The mechanisms for each box of the table are considered below.
Accountability for attacks by individuals
Accountability in domestic fora for attacks by individual perpetrators
Criminal trials and military tribunals at home
The most preferred forum for accountability is within the country where the atrocities took place; generally it is where the evidence is, the victims have greater access to proceedings, and justice is faster and cheaper.
Many countries have separate laws to regulate the conduct of members of their armed forces. Some countries use the regular civilian judicial systems for trials against members of the armed forces, while others use special judicial or quasi-judicial arrangements to enforce those laws.
However, the first step in seeking criminal prosecutions of individuals in domestic courts is that the underlying offences have to actually be criminalized. Many acts that constitute attacks on education will at least amount to a common crime under states' domestic laws. For example, the bombing of schools by Maoist insurgents in India may constitute ‘mischief' under the Indian Penal Code,[6] and the killing of teachers in southern Thailand may constitute ‘murder' under the Thai Penal Code.[7]
Domestic law will often criminalize violations of humanitarian law as crimes, and states have an obligation to prosecute individuals responsible for serious international crimes, such as war crimes.[8] However, since the war crimes legislation in many countries has not been updated to reflect developments in international law such as the Rome Statute and the statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), attacks on schools often have to be subsumed into broader crimes such as attacks on civilian objects or other catch-all war crime categories.
For example, in April 2008, the State Court of Bosnia-Herzegovina found Pasko Ljubicic guilty of war crimes against civilians and sentenced him to 10 years imprisonment, following the acceptance of a plea agreement. Ljubicic, a former senior officer of the military police of the Croatian Defence Council in central Bosnia during the Bosnian war, was responsible for, among many other things, deploying a military police battalion to attack a Bosnian-Muslim village during which a Muslim primary school was burned.
Ljubicic had been originally indicted by the ICTY on ten counts, including destruction and wilful damage to institutions dedicated to religion or education.[9] Although Ljubicic surrendered to the tribunal, in July 2005 the Chief Prosecutor requested his trial be transferred to Bosnia-Herzegovina. Under the Bosnian indictment, however, there was no separate charge for Ljubicic's attacks on educational institutions, and this crime appeared to have been subsumed within war crimes charges for attacks on civilian objects and the destruction and looting of property.[10]
Another individual indicted by the ICTY for crimes related to educational institutions only to have his case transferred to domestic courts - this time in Serbia - is Vladimir Kovacevic. He was charged for his role as commander of the third battalion of the Yugoslav People's Army in the shelling of Dubrovnik on December 6, 1991, including a specific charge for destruction or wilful damage to institutions for education for damage to a university graduate centre, a kindergarten, two schools, and a music education centre.[11] Again, because it was not a stand-alone crime in the Serbian criminal code, once the case was in domestic court, the specific charges for damage to educational facilities had to disappear, and although the indictment from the Serbian war crimes prosecutor explicitly referred to damage caused to educational institutions, Kovacevic was charged more broadly for a ‘war crime against civilian population' in line with the domestic criminal statute.[12]
While this encompassing of charges for attacks on education within broader war crimes charges may lead to similar punishment for the perpetrators of these crimes, it is nonetheless less clear than the specific delineation of the prohibition against attacks on schools and other education institutions under the Rome Statue or the statute of the ICTY. Such lack of clarity can be unhelpful to prosecutors, to victims, and to the cause of deterrence for these types of attacks.
Similarly, when countries fail to introduce definitions of international crimes into domestic law, efforts to prosecute such crimes can be hampered, even though prosecutors may be able to frame international crimes, such as war crimes, in terms of domestic equivalents. Using domestic criminal law offences in this way is possible, but may fail to fully capture the nature and gravity of the offence. More significantly, using domestic law criminal charges may mean that the crimes will be subject to statutes of limitation under national law, while under international law, crimes against humanity and war crimes are not subject to statutes on limitations.[13]
Both NGOs and UN agencies can play a role in advocating for individual states to criminalize attacks on educational institutions and to prosecute offenders accordingly for war crimes.[14] NGOs advocating for states to adopt national implementing legislation for the ICC's Rome Statute, could ensure that such domestic legislation includes the crimes related to attacks on educational facilities.
Similarly, accountability before military tribunals for attacks on education will be assisted by the updating of military codes to bring them more into line with recent developments in international law. The United Kingdom's Manual of the Law of Armed Conflict, for example, has recently been updated following the adoption of implementing domestic legislation for the ICC. The updated manual includes specific references to the protection of education buildings.[15] In addition to clearly stating that attacks on school are unlawful unless being used for military purposes,[16] the manual also expounds clear rules that commanders can follow in other situations. The manual even determines that the ‘use of a privileged building for an improper purpose' is a ‘war crime traditionally recognized by the customary law of armed conflict' and provides as an illustration the use of a school as a sniper's post.[17] The manual also lists the land and buildings of institutions dedicated to education as property which, even if they belong to the state, should be treated as private property, and that the seizure, destruction, or damage of them is forbidden.[18]
In the Democratic Republic of Congo (DRC), Ives Kahwa Panga Mandro (‘Chief Kahwa'), founder of the Party for Unity and Safeguarding of the Integrity of Congo, was convicted by an Ituri Military Tribunal in August 2006 on six charges, including the war crime of intentionally directing attacks against a primary school, a church, and a medical centre burned in a village in Bedu-Ezekere in October 2002. Citing the DRC constitution's provision allowing courts and military tribunals to apply international treaties, the tribunal directly applied the Rome Statute's criminalization of intentionally directing attacks against institutions of education. Kahwa received a 20 year sentence.[19] (However, in a decision light on both legal and factual reasoning, the Eastern Province Military Court later acquitted Kahwa on two offences which it held to fall within applicable amnesty provisions, and in respect to the other charges - including that for the destruction of the school - the appeal chamber cancelled the lower court's verdict citing procedural violations.[20] At the time of writing, the case was in a legal limbo.)
A second obstacle with domestic trials is that governments are frequently averse to prosecuting their own officials and soldiers. UN agencies and NGOs can play an important role in documenting and publicizing attacks to make it difficult for governments to justify their failures to investigate and prosecute these attacks and to pressure the governments to take action. For example, in the Philippines, Human Rights Watch has documented the killing of three members of the left-wing League of Filipino Students (LFS).[21] Although the motives behind the killings are uncertain, LFS members have long been targeted by the security forces for alleged links to the New People's Army. Human Rights Watch, Amnesty International, and many domestic NGOs have criticized the Philippine government's complete failure to carry out credible investigations and prosecutions in a spate of similar extrajudicial executions in the Philippines spanning many years, which has contributed to rampant impunity.
In many conflict-affected countries, justice systems often have limited capacity to hold perpetrators of violations against children accountable. In such situations UN agencies and NGOs can provide capacity building assistance, technical training, and share best practices from other systems around the world.
Public or private pressure by other governments and international organizations can play a role in changing behaviour. Sometimes this may require UN agencies to stand up for their child protection mandates even if that means taking a position on a conflict that is at odds with that of their host government.
Civilian trials in other national jurisdictions
‘Universal jurisdiction' is the power of a national court to try international crimes such as war crimes, crimes against humanity, genocide, or torture-even if neither the suspect nor the victim are nationals of the country where the court is located, and the crime took place outside that country. The exercise of universal jurisdiction is required by certain international conventions and allowed by international customary law with regards to crimes such as genocide or crimes against humanity.[22] The underlying justification is that some crimes are so offensive and inexcusable they should be tried regardless of political geography, and all states have a responsibility, on behalf of the international community, to make sure that their perpetrators do not enjoy impunity.
On paper, many countries around the world appear to recognize that they can exercise universal jurisdiction over war crimes,[23] but practice has generally lagged far behind laws on the books. In a number of countries in western Europe, however, prosecutors have started using the concept of universal jurisdiction to pursue suspected foreign war criminals in domestic courts. In the United States, the first case in relation to torture committed abroad was adjudicated in 2008 for crimes committed in Liberia.[24] Furthermore, the new Child Soldiers Accountability Act of 2008, makes it a crime to recruit or use soldiers under the age of 15 and permits courts to prosecute any individual on American soil for the offense, even if the children were recruited or served as soldiers outside the United States.[25]
Although opponents of universal jurisdiction claim that it is a dangerous political tool, research by Human Rights Watch shows that universal jurisdiction is first and foremost an effective road to justice for victims who have nowhere else to go.[26] Recognizing that the cases are more complex and resource intensive than most ordinary criminal cases, experiences examined by Human Rights Watch nonetheless show that the fair and effective exercise of universal jurisdiction is achievable where there is the right combination of appropriate laws, adequate resources, and institutional and political commitments.[27]
NGOs can play an important role in ensuring the effective use of universal jurisdiction. For example, most cases that have proceeded to trial under universal jurisdiction laws in Belgium, the Netherlands, Denmark, and the United Kingdom have involved perpetrators who entered those countries as asylum applicants. So in Denmark, the Danish Red Cross works with immigration authorities to distribute pamphlets among asylum seekers explaining where and with whom they can file a complaint if they are the victim of an international crime or know of a perpetrator in Denmark.
NGOs also have a crucial role to play in lodging complaints. Many landmark universal jurisdiction cases have been initiated by private parties.[28] These cases have arisen in civil law jurisdictions with a legal practice whereby private petitioners can submit criminal complaints against an alleged perpetrator directly to an investigating judge or prosecutor. But in the United Kingdom, where private-initiated criminal procedure is difficult and rare, the media, victims' lawyers, and NGOs have nonetheless generally been responsible for notifying the police of the presence or anticipated arrival of perpetrators.
Victims and NGOs are frequently the principal sources of evidence or of witnesses that could establish responsibility for the alleged crime. Some governments, including Britain, Denmark, Norway, and the Netherlands, have created special war crimes units to conduct investigations across the globe, but initial information about an alleged criminal incident can be gleaned from open sources such as the reports of NGOs and intergovernmental organizations.[29]
Despite the numerous positive developments in national practice detailed so far, significant limitations remain which hinder the exercise of universal jurisdiction. They include the continuing absence of implementing legislation in some states, restrictive threshold requirements for opening investigations, overly broad conferrals of immunity, and a lack of transparency in the exercise of universal jurisdiction. NGOs also have an important role therefore in sharing positive examples from around the world and advocating for solutions to these issues.[30]
Other domestic mechanisms against individual perpetrators
Other accountability mechanisms that exist at the domestic level which could be considered and used for responding to attacks on education may include traditional justice and reconciliation mechanisms, bringing civil cases in courts at home or abroad,[31] travel bans,[32] financial freezes, or the use of hybrid tribunals.[33]
Accountability in international fora for individual perpetrators
When a state fails to exercise its obligation to investigate allegations of serious wrongdoing by its forces, international investigation and prosecution is an alternative.
International Criminal Court (ICC)
The ICC, based in The Hague in the Netherlands, is the first permanent international criminal tribunal intended to end impunity for the perpetrators of the most serious international crimes, including genocide, crimes against humanity, and war crimes.[34] The jurisdiction of the ICC is ‘complementary' to national courts, meaning that the ICC can only act when the relevant individual countries are either unwilling or unable to investigate and prosecute.
Cases before the ICC may be initiated by a state party to the Rome Statute, the Court's Prosecutor, or the United Nations Security Council,[35] but the Prosecutor decides whether there is a ‘reasonable basis to proceed' with starting an investigation.[36] If the Prosecutor initiates an investigation, the pre-trial chamber reviews his decision. The Prosecutor accepts ‘communications' from individuals and NGOs about alleged crimes[37] and can ‘seek additional information from ... intergovernmental, non-government organizations or other reliable sources.'[38]
The Rome Statute explicitly makes intentionally directing attacks against buildings dedicated to education a war crime in both international and internal armed conflicts, provided they are not military objectives.[39] As of October 2009, nobody has been charged under this provision, although the issues of attacks on schools and the effect that recruitment of children as soldiers can have on education, have been touched upon in a handful of cases already on the Court's docket.
In the case against Thomas Lubanga, charged with conscripting children under the age of 15 and using them in hostilities, a total of 99 victims are participating and are represented through seven lawyers. The victims' lawyers are present in the courtroom and are able to question witnesses and convey their clients' views to the Court. One of these victims is a school principal who is considered a victim both in his own personal right (and as an indirect victim as he was beaten when trying to intervene in the recruitment of children as soldiers from his school), but also as the representative of his school itself which was destroyed, and, as of January 2009 had not been rebuilt.[40] This is the first time that victims have been able to present their concerns before an international tribunal outside of the role as witness. The victims' lawyers have even requested to the judges to initiate the procedure that would allow the Court to consider reclassifying the charges based on evidence already given in court. Although the final outcome of this manoeuvre is still pending appeal,[41] and requires careful consideration of its impact on the fair trial rights of the defendant, it is nevertheless a powerful reminder that many victims care whether indictments reflect the reality of their personal experiences, and demonstrates the important role that victims can play at the new Court.
On March 4, 2009, the pre-trial chamber of the ICC issued an arrest warrant for President Omar Al Bashir of Sudan. The Prosecutor's application for the warrant pointed to a ‘pattern of attacks' that included the burning of schools. As part of the Prosecutor's claim that Al Bashir's conduct constituted genocide, he cited the bombing of a school in South Darfur where villagers of the Fur ethnic group had fled. The application also cited particular examples of the bombing of a school in North Darfur as part of the Prosecutor's allegations of crimes against humanity. The application also referenced the rape by Janjaweed militia of schoolgirls at a boarding school, and the murder of a school head in Sirba.[42] Ultimately, the pre-trial chamber issued a warrant of arrest for Al Bashir listing five counts of crimes against humanity and two counts of war crimes; the crime of genocide is not included in the warrant.[43]
In crime scenes that include attacks on educational facilities, such as Darfur, NGOs can call this to the Prosecutor's attention and press for its inclusion as a charge when appropriate. There is also a clear role for NGOs, both international and national, to advocate for states to sign-on to the Court.
International Criminal Court for the Former Yugoslavia (ICTY)
The ICTY is an ad hoc international tribunal that was established by the UN Security Council in 1993 to prosecute serious crimes committed during the wars in the former Yugoslavia since 1991.[44] The ICTY statute provided for the tribunal to have jurisdiction to try individuals for the destruction or wilful damage to institutions dedicated to education, among other crimes.[45] Although at least eighteen individuals have been charged in an indictment for such destruction or wilful damage, as of August 2009, only three individuals appear to have been convicted by the ICTY for attacks on schools.[46] Another fourteen cases referenced the use of schools as detention centres or as sites of beatings, torture, executions, or rape.[47]
Other international mechanisms against individual perpetrators
Just as individual states can impose sanctions such as travel bans, so too can the UN Security Council and the European Union call for freezing of assets and travel restrictions.
Accountability for attacks by states and non-state groups
Holding individuals criminally responsible does not affect the responsibility that states might additionally and separately owe for any internationally wrongful act.[48] Because countries cannot be punished in any criminal manner, accountability for states must include increasing the costs of their international diplomacy by causing stigmatization through public exposure of violations, and, where appropriate, through punitive sanctions.
Non-state actors - such as insurgent, secessionist, or guerrilla groups - should also be held accountable for breaches of international humanitarian law. Although it is easier to influence states, some groups do care about their international reputation, and the failure of non-state actors to abide by international standards impairs their ability to claim international legitimacy. As many rebel groups fight because they want to become the government, they yearn for international legitimacy and not to be seen as human rights abusers.[49]
In 2008, Human Rights Watch released a report on the conflict between Maoist guerrillas, government security forces, and a state-supported anti-Maoist vigilante group in India's Chhattisgarh state.[50] Among many abuses perpetrated by all sides in that conflict, the report documented attacks by the Maoists on school buildings, and occupation of schools by security forces. The public critique spurred the Maoists to respond with a spirited seven-and-a-half page defence in their publication the CPI (Maoist) Bulletin. [51]
Other groups, however, are not as susceptible to ‘naming and shaming,' especially if they are fighting for reasons such as maximizing personal resources. In such circumstance it is important to consider questions such as where these groups receive support, and considering whether it is possible to influence the supplier of their money or weapons, for example though travel bans, asset freezes, or other sanctions.
Accountability in domestic fora for the responsibility of states and non-state groups
Truth commissions
A ‘truth commission' is a commission of inquiry established - usually by new governments following a transition to democracy or peace[52] - to document and expose past human rights violations by governments or non-state actors.
Sometimes, a truth commission will assign responsibility to the state or previous government regime, or to non-state groups, as a whole. Sometimes, they will also single out certain individuals for responsibility for certain acts as well. However, any labelling of individuals as perpetrators should be supported by credible and specific evidence sufficient to be passed on to prosecutorial authorities.
In 1983 in Argentina, President Raul Alfonsin established the Comisión Nacional sobre la Desaparición de Personas (CONADEP) to investigate forced disappearances and other human rights violations that occurred during Argentina's military dictatorship between 1976 and 1983. Included in the report were details of the ‘Night of the Pencils' when a number of high school students who had taken part in a campaign for school subsidies were seized from their homes by security forces. The report pointed to the Buenos Aires Provincial Police as carrying out the abuses at the behest of the Armed Forces who considered the students' activities to be ‘subversion in the schoolroom.'[53] Although three of the students were eventually freed, the Commission named seven students who it believed had been ‘killed after undergoing the most horrible tortures in different secret detention centres,' and the report listed these locations.
The findings of the commission spurred trials for the dictatorship's junta (until new amnesty laws brought an end to such trials). In addition to naming the groups responsible for the students' disappearances - and therefore also implicitly naming the individuals responsible - the Commission also recommended the establishment of a reparations programme for the families of the disappeared and continued investigations and prosecutions in cases where persons remained disappeared.
Perhaps the most famous commission was the Truth and Reconciliation Commission (TRC) established in South Africa following the transition from apartheid. Because the TRC offered a complete amnesty to individuals who came forward to give full disclosure and demonstrated a political motive for their actions, no matter what their crimes, Human Rights Watch considers that the TRC's model would likely be seen as a step backwards today as far as accountability is concerned, although at the time it was an advance over previous models of truth commissions.[54]
The TRC's final report reflected how schools in South Africa had been bombed, burned, and occupied; and how teachers and students had been assaulted and killed. With remarkable neutrality, the report documented attacks on schools and students carried out by a variety of state and non-state actors.[55] The names of individual perpetrators or responsible groups were frequently cited, and many individual perpetrators came before the Commission to confess to their own involvement in attacks against schools, students, and teachers. Despite such even-handedness in considering abuses by all sides, the TRC's fundamental condemnation was appropriately directed at the apartheid system and state.[56]
Accountability in international fora for the responsibility of states and non-state groups
Committee on the Rights of the Child
There is no international forum more focused on children's rights than the Committee on the Rights of the Child, the treaty body established under the Convention on the Rights of the Child.[57] States that are party to the Convention are required to submit reports to the Committee every five years, assessing their own compliance with their obligations under the treaty.[58] Each state's report is then subjected to review and questioning by the ten members of the Committee who are all experts in the area of children's rights.[59] The Committee then makes concluding observations assessing the country's compliance with their obligations, and recommending further action that should be taken to enhance protections for children.
The Committee has used the occasion of these concluding observations to comment on the effect that conflicts and attacks on schools have on children's education with regards to the situation in at least four countries: Burundi, Ethiopia, Israel, and Moldova.[60]
The Committee's review process is extremely receptive to participation by non-governmental organizations and UN agencies, and such groups are welcome to submit their own shadow reports to the Committee.[61] The procedures of the Committee include ‘pre-sessional working group meetings' when NGOs that have submitted reports can meet in private with Committee members to comment upon the government's report. UN agencies are also able to participate. The Committee uses these meetings and the shadow reports as a source of information for questions to send to states to reply to in advance of their appearance before the Committee, and to answer during the interactive part of the review, as well as to formulate their observations and recommendations. Submissions from NGOs and UN agencies allow the Committee to be better informed in its critique, and may help steer the Committee to consider new topics.
The Committee is also responsible for formulating ‘General Comments' - statements that expand upon and clarify provisions within the Convention.[62] These General Comments constitute useful persuasive interpretive aids to how states can ensure compliance with the Convention. Although the Committee recently held a day of discussion regarding the issue of education in emergency situations,[63] they have not, as of October 2009, turned the information collected on that subject into a General Comment. Such a new set of guidelines, however, could provide great assistance for both advising states on how to protect education during times of emergencies, as well as giving the Committee and other international and domestic bodies a set of standards by which to judge government action.
Unfortunately, the Convention on the Rights of the Child, unlike many other human rights treaties, lacks a provision by which individuals who believe their rights under the treaty have been contravened can petition directly to the Committee for relief if they cannot find it in their national court systems.[64] The process for creating an individual complaints procedure is however progressing slowly, although there is not as of yet any firm commitment to establish such a mechanism. Based upon a resolution of the Human Rights Council, a working group is being created to look into the feasibility of such a complaints mechanism, address concerns, and develop potential elements for an optional protocol.[65] NGOs can play a crucial role in assuaging fears and advocating with potential critics.
An individual complaints procedure would present an unprecedented opportunity for quasi-judicial accountability at an international level for a variety of violations associated with attacks on education that are not currently actionable. For example, various types of government action or inaction - such as failure to provide adequate education alternatives during an emergency, failure to quickly rebuild damaged schools, or the use of school buildings by security forces without establishing adequate education alternatives for students - might rise to violations of a government's duty to provide primary education, and thus be actionable in this new forum.
Human Rights Council
The Human Rights Council is a Geneva-based inter-governmental body established in 2006 within the UN system. It has a number of mechanisms that potentially offer some form of accountability for states, and in limited cases for armed groups.
First, there is a ‘Complaint Procedure' intended to address consistent patterns of gross and reliably attested human rights violations by which complaints can be received from individuals or NGOs and, if determined to deserve investigation, will be presented to the Council for response.[66]
Second, the ‘Universal Periodic Review' (UPR) procedure evaluates the human rights records of all UN Member States once every four years.[67] The reviews - conducted by a working group consisting of the Council's 47 members - are based on national reports provided by the state under review; information contained in the reports of the Special Procedures (see below), human rights treaty bodies (such as the Committee on the Rights of the Child), and other UN agencies; as well as information submitted by NGOs and national human rights institutions. NGOs can attend the UPR Working Group sessions and can also make statements when the results of the state reviews are considered at the regular session of the Human Rights Council. Accountability by states for complying with their obligations is encouraged by having states report in each subsequent review on what progress they have made to implement recommendations from the prior review.
Third, there are ‘Special Procedures,' a series of mechanisms established to address either specific country situations or thematic issues. Special procedures are either an individual (frequently called a ‘Special Rapporteur') or a ‘working group' usually composed of five members.[68] These independent experts are mandated to monitor, advise and report on their designated human rights issue. They can conduct studies, carry out in-country investigations, send letters or urgent appeals to governments, provide technical advice, and engage in general awareness-raising. Importantly for accountability, special procedures can issue public reports containing their findings and recommendations.
The most relevant Special Rapporteur for responding to attacks on education is the Special Rapporteur on the Right to Education.[69] In 2008, his annual report focused on education in emergencies and called for ‘More action [to] be taken to put an end to impunity for persons and armed groups, including regular armies, which attack schools, students and teachers.'[70] In August 2008, he also made a statement urging accountability in response to a Taliban attack that killed four aid workers supporting education in Afghanistan.[71]
In April 2009, the Human Rights Council established an investigation into the military operations conducted in Gaza during December 2008 and January 2009.[72] In late March, Justice Richard Goldstone agreed to head up the investigation after re-negotiating its mandate to include serious violations by Palestinians as well as the Israelis. The fact-finding mission concluded that there was evidence of war crimes by both Israeli and Palestinian armed groups, as well as possibly crimes against humanity.
The investigation's report included sections dedicated to the impact on education both in Gaza and Israel. It stated that 280 schools and kindergartens as well as some university buildings were destroyed in Gaza, noting that such destruction occurred ‘in a situation in which already restrictions on the importation of construction material meant that many school buildings were in serious need of repair.'[73] It also noted that rocket and mortar attacks by Palestinian armed groups damaged schools and kindergartens in Israel.[74]
The report recommended that the UN Security Council require both Israel and the Gaza authorities to report within six months on investigations and prosecutions carried out with regards to the violations identified by the mission. It also recommended that the Security Council set up a body of independent experts to report on the progress of such investigations and prosecutions. If there are no good faith efforts within six months, the Security Council is advised to refer the situation to the ICC.
The mission took into account in both its fact-finding and analysis the investigations and reports of domestic and international NGOs and UN agencies, and during its own inquiry met with many representatives of NGOs and UN agencies.[75]
UN Security Council
Over the last decade the UN Security Council has issued a series of seven resolutions on the topic of abuses experienced by children in armed conflict,[76] leading to the creation of a specialized Working Group and the initiation of a monitoring and reporting mechanism on violations against children in armed conflict. By October 2009, the working group had been functioning for three years, issuing 23 sets of conclusions on 13 country situations.[77] The monitoring and reporting mechanism is now active in 13 countries.[78] The Special Representative to the Secretary-General (SRSG) on children and armed conflict has followed up on the Working Group's conclusions by making regular field visits to engage with parties to armed conflict responsible for violations against children. So far, these efforts have yielded some significant successes with regards to the use of child soldiers.[79]
Although the Security Council has identified six grave violations against children in armed conflict including attacks on schools,[80] to date it has focused primarily on the recruitment and use of child soldiers. Very few of the Secretary-General's country reports on children and armed conflict, or the Working Group's conclusions on individual situations include recommendations related to attacks on education. In the Secretary-General's report on Afghanistan he urged the Taliban and other anti-government elements to ‘immediately cease attacks against civilians, especially children, and civilian objectives.'[81] He also called on the United Nations country team in Afghanistan to ‘engage with the Afghan Government on means to advocate the cessation of such attacks.'[82] Finally, he urged all parties to comply with their obligations under international law and ‘to recognize and maintain the neutrality and safety of school...including their personnel... and to publicly declare an end to such practices.'[83]
The Security Council has stated that it will consider the imposition of targeted measures against parties that do not show progress in ending the use of child soldiers, including arms embargoes.[84] The Secretary-General has recommended a broader range of targeted measures against parties responsible for the recruitment and use of child soldiers, including arms embargoes, travel bans, asset freezes, and the exclusion of individuals from governance structures. The Security Council should consider a broad range of targeted measures against parties responsible for other grave violations against children. Such measures should respect the due process rights of alleged offenders. The Working Group should routinely bring parties responsible for persistent violations against children, including attacks on education, to the attention of relevant sanctions committees, and recommend the application of targeted measures against parties and individuals responsible for violations.[85] As of October 2009, the working group has referred violations against children to the relevant committees on DRC and Côte d'Ivoire. In addition, the working group should transmit information on attacks on schools that constitute war crimes to the ICC for consideration.
In its conclusions, the Working Group has routinely called on parties to armed conflict to end their recruitment and use of child soldiers. However, it only rarely makes similar direct calls in regards to other violations. The conclusions on Somalia (December 2008) specifically called on Ethiopian forces to refrain from attacks against civilian objects, including schools.[86] While the conclusions on Nepal stated that the government should: ‘Take all steps necessary to put an end to impunity by ensuring the effective accountability for violations and abuses committed by all parties during and after the conflict, in particular by investigating all allegations of...attacks on schools...and prosecuting the perpetrators of such actions.'[87]
The Working Group can help deter violations against children by requesting that the Secretary-General include in his reports the names of individual commanders who have been implicated through credible evidence in attacks on education for possible referral to relevant sanctions committees or for investigation by the ICC. This requires investigations not only of individual cases, but of patterns within a particular chain of command that can establish accountability for such violations among senior commanders or officials.[88]
Military sanctions
An accountability tactic that has recently been bolstered for dealing with violators of the protection against the use of child soldiers is military sanctions. New legislation passed in the United States in 2008, the Child Soldiers Accountability Act, restricts the provision of US International Military Education and Training, foreign military financing, and other defence-related assistance to countries identified in the State Department's annual human rights country reports as recruiting or using child soldiers in government armed forces or government-supported paramilitaries or militias. Countries taking active steps to end their use of child soldiers are eligible for limited assistance to professionalize their armed forces until the problem is remedied. This legislation creates a powerful incentive for governments to end this practice.[89]
Conclusion
It would be easy to become disillusioned by the fact that so many attacks on schools, students, and teachers go by unaccounted for and unanswered. However, this paper has attempted to demonstrate that at least in a few instances there have already been some small efforts to bring about accountability and justice to perpetrators of attacks on education. There are nonetheless a number of areas where existing accountability mechanisms could be strengthened: for example, the explicit criminalization within domestic law and military codes of impermissible attacks on schools and other education institutions; the creation of a relevant ‘General Comment' by the Committee on the Rights of the Child; the addition of an individual complaints procedure to the Committee on the Rights of the Child; and a better understanding under international law that military occupation of schools and other education institutions can cause a violation of the right to education. However, it is also important to note that there is already a variety of existing mechanisms for accountability that NGOs and UN agencies could be supporting, using, and using better.
[1] Desmond Tutu, "Will Africa Let Sudan Off the Hook?" New York Times, March 2, 2009.
[2] No law has ever successfully deterred all further violations. However, the ability of any legal prohibitions to actually deter future attacks on education depends on the degree to which the perpetrators believe they will be held accountable for their transgressions. Despite the still nascent development of international criminal justice, Human Rights Watch has seen increased awareness of what constitutes criminal behaviour as a result of international prosecutions. For example, in the Central African Republic, a rebel commander demobilized his child soldiers after learning about the International Criminal Court's prosecution of Congolese rebel leader Thomas Lubanga on charges of recruitment of child soldiers, claiming he had not known using child soldiers was a crime. In the Democratic Republic of Congo, observers have also noted the educational impact of the Lubanga case. For other examples of deterrence caused by accountability see Human Rights Watch (HRW), Selling Justice Short: Why Accountability Matters for Peace (New York: HRW, 2009), 123-127, https://www.hrw.org/en/reports/2009/07/07/selling-justice-short.
[3] In particular, this paper draws upon the research, findings, and recommendations of the following Human Rights Watch reports: HRW, Scared Silent: Impunity for Extrajudicial Killings in the Philippines, vol. 19, no.9(C) (New York: HRW, 2007), https://www.hrw.org/en/reports/2007/0
6/27/scared-silent; HRW, Selling Justice Short; HRW, Dangerous Duty: Children and the Chhattisgarh Conflict (New York: HRW, 2008), https://www.hrw.org/en/reports/2008/09/05/d
angerous-duty-0; HRW, "Being Neutral is Our Biggest Crime": Government, Vigilante, and Naxalite Abuses in India's Chhattisgarh State (New York: HRW, 2008), https://www.hrw.org/en/re
ports/2008/07/14/being-neutral-our-biggest-crime-0; HRW, Lessons in Terror: Attacks on Education in Afghanistan, vol. 8. No. 6(C) (New York: HRW, 2006), https://www.hrw.org/en/report
s/2006/07/10/lessons-terror; HRW, No One is Safe: Insurgent Violence Against Civilians in Thailand's Southern Border Province (New York: HRW, 2007), https://www.hrw.org/en/reports/20
07/08/27/no-one-safe; HRW, Universal Jurisdiction in Europe: The State of the Art, vol. 18, no. 5(D) (New York: HRW, 2006), https://www.hrw.org/sites/default/files/reports/ij0606web.pdf; HRW, Genocide, War Crimes and Crimes Against Humanity: A Topical Digest of the Case Law of the International Criminal Tribunal for the Former Yugoslavia (New York: HRW, 2006), http://www.hr
w.org/sites/default/files/reports/ICTYweb_0.pdf; and HRW, Sabotaged Schooling: Naxalite Attacks and Police Occupation of Schools in India's Bihar and Jharkhand States (New York: HRW, https://www.hrw.org/sites/default/files/reports/india1209web_0.pdf).
[4] Individuals can be held accountable not only for directly committing a crime, but also under a variety of legal complicity theories such as ordering, soliciting, or inducing a crime. For example, under the Rome Statute of the International Criminal Court for ‘ordering, soliciting, or inducing' a crime (United Nations General Assembly (UNGA), Rome Statute of the International Criminal Court, A/CONF.183/9 (July 17, 1998), art. 25 (‘Individual criminal responsibility'). Similarly, under the statutes of the International Criminal Tribunal for the Former Yugoslavia or the International Tribunal for Rwanda for having ‘planned, instigated, ordered' a crime (United Nations Security Council (UNSC), Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), Resolution 827, S/RES/827 (1993), art. 7(1); and UNSC, Statute of the International Criminal Tribunal for Rwanda (ICTR), Resolution 955, S/RES/955 (1994), art. 6(1)). There are also many domestic jurisdictions that impose criminal liability for ‘aiding and abetting' or ‘soliciting' a crime. In some jurisdictions these may be considered separate crimes, while in others they are considered merely theories of individual complicity and responsibility.
[5] See for example, UNGA, Rome Statute, art. 28 (‘Responsibility of Commanders and Other Superiors').
[6] Indian Penal Code (IPC), sec. 435 (‘Mischief by fire or explosive substance with intent to cause damage to amount of one hundred...rupees'); and IPC, sec. 436 (‘Mischief by fire or explosive substance with intent to destroy house, etc'). For more on Naxalite attacks on schools see HRW, Dangerous Duty; and HRW, Sabotaged Schooling.
[7] Penal Code of Thailand, sec. 288 (‘Murder'). For more on killing of teachers in southern Thailand see HRW, No One is Safe.
[8] See, for example, International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Times of War (Fourth Geneva Convention), 75 UNTS 287 (August 12, 1949), art. 146. ‘The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article' (ibid.). The obligation to ‘extradite or prosecute' can be found in approximately 70 international criminal law conventions. See Michael J. Kelly, "Cheating Justice by Cheating Death: The Doctrinal Collision for Prosecuting Foreign Terrorists - Passage of Aut Dedere Aut Judicare into Customary Law & Refusal to Extradite Based on the Death Penalty," Arizona Journal of International and Comparative Law 20 (2003), 497.
[9] International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Pasko Ljubicic, Indictment (The Hague, September 26, 2000).
[10] Pursuant to art. 173(a) and (f) of the Bosnian Criminal Code. In his elocution as part of his guilty plea, however, Ljubicic stated that soldiers under his command had attacked a religious school (Court of Bosnia and Herzegovina, Prosecutor v. Pasko Ljubicic, X-KR-06/241, First Instance Decision (Sarajevo, May 28, 2008)).
[11] ICTY, Prosecutor v. Pavle Strugar, Milodrag Jokic, and Vladimir Kovacevic, IT-01-42-PT, Amended Indictment (March 31, 2003), Schedule IV.
[12] District Court of Belgrade-War Crimes Chamber, Indictment Against Vladimir Kovacevic (July 26, 2007). Kovacevic was charged under the Criminal Act of the Federal Republic of Yugoslavia (FRY), art.142 (‘War Crime Against Civilian Population'). Kovacevic, however, is yet to stand trial, as he is currently being treated for a mental disorder.
[13] See UNGA, Convention Against the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, Resolution 2391 (XXIII), 754 UNTS 73 (November 11, 1970). See also UNGA, Rome Statute, art. 29.
[14] For example, in a July 2006 report, HRW, Lessons in Terror, Human Rights Watch documented how in late 2005 and the first half of 2006, attacks on schools, teachers, and students rose significantly in Afghanistan. The report recommended that the government of Afghanistan, as part of its efforts to prevent attacks on schools, should enact legislation implementing the Rome Statute to render war crimes, including attacks intentionally directed against buildings dedicated to education, violations of Afghan law.
[15] UK Ministry of Defence (UK MoD), Manual of the Law of Armed Conflict (Oxford: Oxford University Press, 2004).
[16] Ibid.,16.16.1.
[17] Ibid., 16.29(c), pp. 428-9 and p. 429, n. 122.
[18] The Hague, Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land (October 18,1907), art. 56, as cited in UK MoD, Manual of the Law of War, 11.87 - 11.87-1.
[19] Tribunal Militaire de Garnison de l'Ituri, Jugement Contre Kahwa Panga Mandro, RPA No. 039/2006, RMP No. 227/ PEN/2006 (August 2, 2006).
[20] Cour Militaire de la Province Orientale, Arrêt Contre Kahwa Panga Mandro, RPA No. 023/2007, RMP 227/PEN/2006 (July 28, 2007).
[21] Cris Hugo, the regional coordinator for LFS and a journalism student at Bicol University, was shot and killed by an unidentified gunman on the evening of March 16, 2006, while walking along the streets of Legazpi City with one of his professors. Rei Mon Guran, the LFS provincial spokesperson and a student at Aquinas University, was shot and killed in the morning of July 31, 2006, on a crowded bus in his hometown of Bulan, in Sorsogon Province (Philippines). Farly Alcantara II, a former LFS provincial spokesperson, and a business administration student at Camarines Norte State College, was shot and killed in the late evening of February 16, 2007, while riding home on his motorcycle with one of his professors. See HRW, Scared Silent.
[22] The Grave Breaches provisions of the Geneva Conventions, for example, mandate the exercise of universal jurisdiction. See ICRC, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 75 UNTS 31 (August 12, 1949), art. 49; ICRC, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 75 UNTS 85 (August 12, 1949), art. 49; ICRC, Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 75 UNTS 135 (August 12, 1949), art. 129; and ICRC, Fourth Geneva Convention, art. 146.
[23] See Amnesty International's survey of domestic laws: Amnesty International (AI), Universal Jurisdiction - The Duty of States to Enact and Enforce Legislation, AI Index: IOR 53/002/2001 (September 2001), http://web.amnesty.org/pages/legal_memorandum (accessed September 16, 2009).
[24] United States District Court, United States v. Roy Belfast, Jr. (a/k/a Charles ‘Chuckie' Taylor, Jr.), 1:06-cr-20758-CMA (S.D. Fla., 2008). The US federal extraterritorial torture statute, 18 USC, sec. 2340A, makes it a crime for US citizens or anyone present in the United States, to commit torture abroad, or to attempt or conspire to commit torture abroad. The law applies regardless of the nationality of the victim.
[25] Child Soldiers Accountability Act of 2008, 18 U.S.C. sec. 2442 (2008).
[26] HRW, Selling Justice Short.
[27] Ibid. And HRW, Universal Jurisdiction in Europe.
[28] For example, the case against Chile's Augusto Pinochet in Spain and the request for his extradition from the United Kingdom, and the Belgian court's indictment and extradition request for former Chadian dictator Hissène Habré.
[29]HRW, Universal Jurisdiction in Europe.
[30] Further recommendations for action that countries can take to improve the use of universal jurisdiction to end impunity can be found in Human Rights Watch's report Universal Jurisdiction in Europe. In April 2009, for example, Germany's Ministry of Justice created three dedicated positions in the prosecutor's office to investigate cases that fall under Germany's universal jurisdiction law, and the Federal Criminal Police decided to establish a specialized international war crimes unit with seven investigators. Germany has had one of the most advanced universal jurisdiction laws on the books since 2002, but those laws have so far led to few investigations and no prosecutions. Human Rights Watch has pressed the German government to put its law into practice, by for example, testifying in favour of increasing the investigation capacity at a parliamentary hearing held at Human Rights Watch's request.
[31]In many countries there is the possibility for aggrieved parties to bring civil cases against perpetrators to claim compensation for their losses. Because attacks on education under certain circumstances can rise to the level of an international crime, perpetrators might also expose themselves to civil suits under the Alien Tort Statute (ATS; also called the Alien Tort Claims Act) in the United States. ATS, 28 U.S.C. sec. 1350 states: ‘The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.' See also United States Court of Appeals, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) and United States Supreme Court, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). In the United States, ATS claimants are typically assisted by NGOs, non-profit legal advocacy organizations such as the Center for Constitutional Rights, or pro bono lawyers, who finance all costs related to bringing such cases.
[32] For example, the United States' Child Soldiers Accountability Act of 2008, 18 U.S.C.S. sec. 2442, allows the United States to deport or deny entry to individuals who have knowingly recruited children as soldiers.
[33] A ‘hybrid tribunal' is a mechanism that shares judicial criminal accountability between the state in which it functions and the United Nations, thus aiming to combine the strengths of international tribunals with the advantages of domestic prosecutions. The first hybrid tribunals were the Special Panels for Serious Crimes established in the Dili District Court and the Dili Court of Appeals in East Timor in June 2000, which had exclusive jurisdiction over war crimes, crimes against humanity, torture, genocide, murder, and sexual offences committed between January 1 and October 25, 1999, with each panel consisting of two international judges and one East Timorese judge. The most notable example today is the Special Court for Sierra Leone, established to ‘try those who bear greatest responsibility' for the war crimes and crimes against humanity committed during the Sierra Leone Civil War. So far, seven defendants before the Special Court have been found guilty for the recruitment or use of child soldiers under the age of 15.
[34] The Court was established by the UNGA, Rome Statute treaty, which entered into force on July 1, 2002. In International Criminal Court (ICC), The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/07, the pre-trial chamber noted that: ‘The retributory effect of the acts of the Court must be subordinate to the higher purpose of prevention' (para. 49). The Court will also exercise jurisdiction over the crime of aggression once a provision is adopted defining this crime and the conditions under which the Court may exercise its jurisdiction.
[35] As of September 2009, there have been three ‘state referrals' from the governments of the Democratic Republic of Congo, Uganda, and the Central African Republic, and one referral, regarding the situation in Darfur, from the United Nations Security Council.
[36] UNGA, Rome Statute, art. 15.
[37] Ibid. Submissions regarding alleged crimes can be sent to: International Criminal Court, Office of the Prosecutor, Communications, Post Office Box 19519, 2500 CM The Hague, The Netherlands; or sent by email to: otp.informationdesk@icc-cpi.int.
[38] Ibid.
[39] Ibid., arts. 8(2)(b)(ix) and 8(2)(c)(iv).
[40] ICC, Prosecutor v. Thomas Lubango Dyilo, ICC-01/04-01/05, Decision on the Applications by Victims to Participate in the Proceedings (December 15, 2008), paras. 105-111. See also ICC, Prosecutor v. Thomas Lubango Dyilo, ICC-01/04-01/06-T-107-ENG ET WT, Procedural Matters (Open Session) (January 26, 2009), pp. 44-45. Under the ICC, Rules of Procedure and Evidence, ICC-ASP/1/3 (2002), victims may include both natural persons and ‘organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.'
[41] A majority of the trial judges ruled on July 14, 2009 that it may be possible to reclassify charges, and invited the parties to put forward submissions to that they could make an informed determination. Both the prosecution and defence asked for leave to appeal against the decision.
[42] ICC Office of the Prosecutor, Public Redacted Version of the Prosecutor's Application Under Article 58, ICC-02/05-157-AnxA (July 14, 2008), paras. 14, 112, 140, 232, and 234.
[43] Al Bashir was charged with murder, extermination, forcible transfer, torture, and rape as crimes against humanity, and with intentionally directing attacks against a civilian population or against individual civilians, and pillaging as war crimes. See ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Warrant for the Arrest of Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber 1 (March 4, 2009).
[44] UNSC, Statute of the ICTY.
[45] Ibid., art. 3(d).
[46](1) Dario Kordic in ICTY, Prosecutor v. Dario Kordic and Cerkez (‘Lasva Valley'), IT-95-14/2 was convicted at trial among other charges. (2) In ICTY, Prosecutor v. Miodrag Jokic (‘Dubrovnik'), IT-01-42/1, Jokic pleaded guilty for his involvement on the attack on Dubrovnik, and was sentenced to seven years' imprisonment, including for destruction of education buildings among other charges. (3) In ICTY, Prosecutor v. Pavle Strugar (‘Dubrovnik') IT-01-42, Strugar was convicted among other charges for destruction or wilful damage done to institutions dedicated to education during the attack on Dubrovnik and sentenced to 7.5 years imprisonment. (4) In ICTY, Prosecutor v. Milan Martic (‘RSK'), IT-95-11, Martic was charged with destruction of buildings dedicated to religion and education and although he was convicted on this count it was due to attacks on religious buildings not schools as the Court found there was insufficient evidence that the school at the church of the Assumption of the Virgin in Skabrnja was not being used for military purposes in November 1991. (5) In ICTY, Prosecutor v. Tihomir Blaskic (‘Lasva Valley') IT-95-14, Blaskic was originally convicted by the trial chamber of, amongst other crimes, destruction or wilful damage to institutions of education and religion, however, that portion of his conviction was overturned on appeal. (6) In ICTY, Prosecutor v. Milan Babic, (‘RSK'), IT-03-72, Babic was originally indicted for destruction or wilful damage done to institutions dedicated to education or religion, however that accusation was withdrawn as part of a plea agreement. (7)-(12) The six defendants on trial in ICTY, Prosecutor v. Jadranko Prlic et al., IT-04-74 are all charged with destruction or wilful damage to institutions dedicated to religion or education, but that trial is still currently underway; the case also includes allegations that a number of elementary and high schools were used as detention centres. (13) The case ICTY, Prosecutor v. Slobodan Milosevic (‘Kosovo, Croatia and Bosnia'), IT-02-54, included charges of destruction and wilful damage to institutions dedicated to education, but those proceedings were terminated following Milosevic's death. (14) Mehmed Alagic (ICTY, Prosecutor v. Enver Hadzihasanovic and Amir Kubura, IT-01-47) was indicted on these grounds but died and the proceedings were terminated. (15) In ICTY, Prosecutor v. Goran Hadzic, IT-04-75, Hadzic has also been indicted for the destruction or wilful damage to institutions dedicated to religion or education, but remains at large. (16) ICTY, Prosecutor v. Vojislav Seselj, IT-03-67 originally indicted Seselj on these grounds, although that charge was dropped from the third amended indictment, and the trial is now adjourned until further notice due to alleged threats to a number of the Prosecutor's witnesses. As discussed above, the cases against (17) Pasko Ljubicic and (18) Vladimir Kovacevic have been referred to domestic courts in Bosnia and Serbia, respectively.
[47] See ICTY, Prosecutor v. Vujadin Popovic et al. (‘Srebrenica') IT-05-88 (currently on trial); ICTY, Prosecutor v. Milan Simic (‘Bosanski Samac') IT-95-9/2 (pleaded guilty); ICTY, Prosecutor v. Zdravko Tolimir (‘Srebrenica') IT-05-88/2 (currently on trial); ICTY, Prosecutor v. Dragan Zelenovic (‘Foca') IT-96-23/3 (pleaded guilty); ICTY, Prosecutor v. Stevan Todorovic (‘Bosanski Samac') IT-95-9/1 (pleaded guilty); ICTY, Prosecutor v. Milorad Trbic (‘Srebrenica') IT-05-88/1 (case transferred to Bosnia courts); ICTY, Prosecutor v. Dragan Obrenovic (‘Srebrenica') IT-02-60/2 (pleaded guilty); ICTY, Prosecutor v. Stevan Janovic and Dragan Stankovic (‘Foca') IT-96-23/2 (case transferred to Bosnia and convicted); ICTY, Prosecutor v. Vidoje Blagojevic and Dagan Jokic, IT-02-60 (convicted); ICTY, Prosecutor v. Radoslav Brdanin (‘Krajina') IT-99-36 (convicted); ICTY, Prosecutor v. Hadzihasanovic and Kubura, IT-01-47 (Enver Hadzihasanovic convicted for cruel treatment at a Zenica music school, Amir Kubura convicted on other grounds, Mehmed Alagic deceased); ICTY, Prosecutor v. Ivica Rajic (‘Stupni do') IT-95-12 (pleaded guilty); ICTY, Prosecutor v. Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic (‘Foca') IT96-23 and 23/1 (all three defendants convicted); and ICTY, Prosecutor v. Milan Simic et al. (‘Bosanski Samac') IT-95-9.
[48] See for example, UNGA, Rome Statute, art. 25(4): ‘No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.'
[49] Moreover, as a matter of international law, the conduct of an insurrectional movement which becomes the new government of a state, or which succeeds in establishing a new State in part of the territory of a pre-existing State, will be considered - even retro-actively - an act of State. See International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Supplement No. 10 (A/56/10), chp.IV.E.1 (November 2001), art. 10,http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf (accessed October 13, 2009).
[50] HRW, "Being Neutral is Our Biggest Crime".
[51] Communist Party of India (CPI), "A Review of the Report of Human Rights Watch on Human Rights Violations in Dantewara and Bijapur," CPI (Maoist) Information Bulletin-5 (November 5, 2008), available at www.bannedthought.net/India/CPIMIB/MIB-05.doc (accessed August 13, 2009). The defence nonetheless reiterated many of the key recommendations made by Human Rights Watch not only to the government and vigilante groups, but also the Maoists themselves.
[52] For example, the Comisión Nacional de Verdad y Reconciliación was established by Chile's first president after its return to democratic rule to detail extrajudicial executions and disappearances during the years of military rule under Augusto Pinochet from 1973 to 1990; Sierra Leone's Truth and Reconciliation Commission was established as a condition of the Lomé Peace Accord; and the Liberian Truth and Reconciliation Commission was a parliament-enacted organization created in May 2005 to investigate and report on gross human rights violations that occurred in Liberia between January 1979 and October 14, 2003.
[53] Conadep (National Commission on the Disappearance of Persons), Nunca Más (Never Again): Report of National Commission on the Disappearance of Persons (Conadep, 1984).
[54] HRW, Selling Justice Short, pp. 7-8. Indeed, Liberia's Truth and Reconciliation Commission concluded its own investigations with a recommendation that the government of Liberia establish an ‘Extraordinary Criminal Tribunal' to prosecute alleged serious human rights and humanitarian law violations (Truth and Reconciliation Commission of Liberia, Final Report of the Truth and Reconciliation Commission of Liberia (July 1, 2009), 76).
[55] Including: police occupation of schools; the high school pupils arrested and tortured by the South African police and Security Branch police members; the six schoolchildren killed and seven others injured when African National Congress (ANC) supporters ambushed a bus on March 2, 1993; the school children who were boycotting classes in protest over Steve Biko's death targeted in 1977 by vigilantes used by the Ciskei homeland government; the arson attacks on government schools by supporters of the mass opposition movement; the arson of schools by a member of the Azanian Students' Movement; an attack on a school by Zulu nationalists; and a series of bomb attacks by radical right-wing groups. See Truth and Reconciliation Commission of South Africa, Report of the Truth and Reconciliation Commission of South Africa (1998), Volume I p. 34; Volume II pp. 154, 150, 380, 387, 431, 436, and 661-662; Volume III pp. 59-60, 236, 311, 370, 408, and 617; Volume IV p. 266; and Volume V p. 255.
[56] For example, see ibid, Volume V, p. 355: ‘The state identified and targeted schools as centres of resistance. Schools were occupied, and students and teachers intimidated and arrested. This created a climate within which unnecessary violence occurred. As a result, education was severely disrupted. Many children were unable to complete their schooling and/or advance to tertiary education.'
[57] UNGA, Convention on the Rights of the Child (CRC), 1577 UNTS 3, A/44/49 (November 20, 1989), arts. 43-45. The Committee is also responsible for overseeing the UNGA, Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, A/54/49 (May 25, 2000), vol. III, art. 8.
[58] UNGA, CRC, art. 44.
[59] Individual members of the Committee have also spoken out publicly to advocate for accountability for attacks on education. For example, Lothar Krappmann has recently stated: ‘A zero-tolerance policy should not only be exercised with regard to the recruitment of and use of child soldiers, but should be strictly extended to attacks on schools, teachers and children. It is a deep concern of the Committee that these crimes apparently rarely or never are brought to justice. Thus, increased efforts are required to prevent these crimes and bring the perpetrators to justice' Lothar Krappmann, "Statement by Mr. Lothar Krappmann, Member of the Committee on the Rights of the Child," (presentation, Interactive Thematic Dialogue of the United Nations General Assembly on Access to Education in Emergency, Post-Crisis and Transition Situations-Caused by Man-Made Conflicts or Natural Disasters (United Nations Trusteeship Council Chamber, New York, 63rd session, March 18, 2009),http://www.un.org/ga/president/63/interactive/education/lo
tharkrappmann_presentation.pdf (accessed October 13, 2009).
[60] United Nations Committee on the Rights of the Child (CRC), UN Committee on the Rights of the Child: Concluding Observations, Burundi, CRC/C/15/Add.133 (October 16, 2000), paras. 64-65; CRC, UN Committee on the Rights of the Child: Concluding Observations, Ethiopia, CRC/C/ETH/CO/3 (November 1, 2006), paras. 27-28; CRC, UN Committee on the Rights of the Child: Concluding Observations, Israel, CRC/C/15/Add.195 (October 9, 2002), para. 52; CRC, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention: Convention on the Rights of the Child: 2nd and 3rd Periodic Reports of States Parties Due in 2005: Republic of Moldova, CRC/C/MDA/3 (July 10, 2008), paras. 423 and 435.
[61] UNGA, CRC, art. 45: ‘In order to foster the effective implementation of the Convention and to encourage international co-operation in the field covered by the Convention: (a) The specialized agencies, the United Nations Children's Fund, and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the specialized agencies, the United Nations Children's Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialized agencies, the United Nations Children's Fund, and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities ...'
[62] The twelve general comments previously released by the CRC include: General Comment No. 1: The Aims of Education, CRC/GC/2001/1 (April 17, 2001); General Comment No. 2: The Role of Independent Human Rights Institutions in the Promotion and Protection of the Rights of the Child, CRC/GC/2002/2 (November 15, 2002); General Comment No. 3: HIV/AIDS and the Rights of the Child, CRC/GC/2003/3 (March 17, 2003); General Comment No. 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child, CRC/GC/2003/4 (July 1, 2003); General Comment No. 5: General Measures of Implementation for the Convention on the Rights of the Child, CRC/GC/2003/5 (November 27, 2003); General Comment No. 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, CRC/GC/2005/6 (September 1, 2005); General Comment No. 7: Implementing Child Rights in Early Childhood, CRC/C/GC/7/Rev.1 (September 20, 2006); General Comment No. 8: The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment, CRC/C/GC/8 (March 2, 2007); General Comment No. 9: The Rights of Children with Disabilities, CRC/C/GC/9 (February 27, 2006); General Comment No. 10: Children's Rights in Juvenile Justice, CRC/C/GC/10 (April 25, 2007); General Comment No. 11: Indigenous Children and their Rights under the Convention, CRC/C/GC/11 (February 15, 2009); and General Comment No. 12: The Right of the Child to be Heard, CRC/C/GC/12 (July 20, 2009).
[63] CRC, "‘Day of General Discussion on the Right of the Child to Education in Emergency Situations': Recommendations," (CRC, 49th Session, October 3, 2008).
[64] Five of the human rights treaty bodies can currently consider individual complaints or communications from individuals, under certain circumstances: the Human Rights Committee may consider individual communications relating to States parties to the UNGA, Optional Protocol to the International Covenant on Civil and Political Rights, 999 UNTS 302 (1966); the Committee on the Elimination of Discrimination Against Women may consider individual communications relating to States parties to the UNGA, Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, A/RES/54/4, 2131 UNTS 83 (October 6, 1999); the Committee Against Torture may consider individual communications relating to States parties who have made the necessary declaration under art. 22 of the UNGA, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85 (December 10, 1984); the Committee for the Elimination of Racial Discrimination may consider individual communications relating to States parties who have made the necessary declaration under art. 14 of the UNGA, Convention on the Elimination of All Forms of Racial Discrimination, Resolution 2106 (XX), 660 UNTS 195 (December 21, 1965); and the Committee on the Rights of Persons with Disabilities may consider individual communications relating to States parties to the UNGA, Optional Protocol to the Convention on the Rights of Persons with Disabilities, A/RES/61/106 (December 16, 2006). The UNGA, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, A/RES/45/158 (December 18, 1990) also contains provision for allowing individual communications to be considered by the Committee on Migrant Workers; these provisions will become operative when 10 states parties have made the necessary declaration under art. 77.
[65] The first meeting of the working group should be held in December 2009. United Nations Human Rights Council (UNHRC), The Rights of the Child, Resolution 7/29 (2008).
[66] Two working groups make up the Complaint Procedure: the Working Group on Communications (WGC) and the Working Group on Situations (WGS). The WGC receives complaints directly from individuals and NGOs, and its five independent experts determine whether a complaint deserves investigation. If it does, the WGC passes the complaint to the WGS who reports to the Council on complaints received and can make recommendations about how the Council should respond (UNHRC, Resolution 5/1 (June 18, 2007).
[67] UNGA, Resolution 60/251 (March 15, 2006), art. 5(e).
[68] There were, as of September 2009, 30 thematic and eight country mandates.
[69] Currently, the Special Rapporteur on Education is Vernor Muñoz. Other relevant thematic Special Rapporteurs may include those on Freedom of Opinion and Expression; Minority Issues; Physical and Mental Health; Protecting Human Rights while Countering Terrorism; Racism, Racial Discrimination, Xenophobia and Related Intolerance; Human Rights of Indigenous People; and Human Rights of Internally Displaced Persons.
[70] Vernor Muñoz, Right to Education in Emergency Situations: Report of the Special Rapporteur on the Right to Education, A/HRC/8/10 (2008), para. 145, http://daccessdds.un.org/doc/UN
DOC/GEN/G08/135/33/PDF/G0813533.pdf?OpenElement (accessed October 13, 2009).
[71] United Nations News Service, "UN Expert Calls for End to Impunity for Attacks on Educators after Afghan Ambush," August 15, 2008.
[72] UNHRC, The Grave Violations of Human Rights in the Occupied Palestinian Territory, Particularly Due to the Recent Israeli Military Attacks Against the Occupied Gaza Strip, Resolution S-9/1, A/HRC/S-9/L.1/Rev.2 (2009). On April 3, 2009, pursuant to this resolution the President of the Human Rights Council established the United Nations Fact Finding Mission on the Gaza Conflict with the mandate ‘to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after' UNHRC, Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission of the Gaza Conflict, A/HRC/12/48 (September 25, 2009), http://www2.ohchr.org/english/bodies/hrcouncil/d
ocs/12session/A-HRC-12-48.pdf (accessed October 13, 2009).
[73] UNHRC, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, paras. 70,1267, and 1269.
[74] Ibid., paras. 106, 1692, and 1695.
[75] Ibid., paras. 134 and 137.
[76] UNSC, Resolution 1261, S/RES/1261 (1999); UNSC, Resolution 1314, S/RES/1314 (2000); UNSC, Resolution 1379, S/RES/1379 (2001); UNSC, Resolution 1460, S/RES/1460 (2003); UNSC, Resolution 1539, S/RES/1539 (2004); UNSC, Resolution 1612, S/RES/1612 (2005); and UNSC, Resolution 1882, S/RES/1882 (2009).
[77] The working group has issued conclusions on Afghanistan, Burundi, Central African Republic, Chad, Côte d'Ivoire, Democratic Republic of the Congo, Myanmar, Nepal, Philippines, Sri Lanka, Somalia, Sudan, Uganda (Office of the Special Representative of the Secretary-General for Children and Armed Conflict, "Security Council Working Group," http://www.un.org/ch
ildren/conflict/english/securitycouncilwgroupdoc.html (accessed October 13, 2009)).
[78] Afghanistan, Burundi, Central African Republic, Democratic Republic of the Congo, Myanmar, Nepal, Somalia, Sudan, Chad, Colombia, Philippines, Sri Lanka and Uganda (Office of the Special Representative of the Secretary-General for Children and Armed Conflict, "Monitoring and Reporting," http://www.un.org/children/conflict/english/monitoringreporting.html (accessed October 13, 2009).
[79] Five parties to the armed conflict in Côte d'Ivoire ended their use of child soldiers after agreeing to action plans to end the practice; the government of Uganda has been ‘de-listed' from the Secretary-General's list of violators after removing children from the Uganda People's Defense Forces and local defence units associated with the government; several non-state armed groups in Burma (Myanmar) have signed voluntary ‘deeds of commitment,' committing to ending their use of child soldiers, and submitting to independent verification; as follow-up to the Security Council working group conclusions, the SRSG on Children and Armed Conflict has secured commitments from parties to armed conflict in the Central African Republic, Chad, Nepal, Philippines and elsewhere to end the recruitment and use of child soldiers and/or to release children from their forces. See HRW, "Taking the Next Step: Strengthening the Security Council's Response to Sexual Violence and Attacks on Education in Armed Conflict," April 20, 2009, https://www.hrw.org/fr/news/2009/04/20/taking-next-step (accessed October 13, 2009).
[80] The grave violations included not only the recruitment and use of children but also the killing and maiming of children, rape and other grave sexual violence, abductions, attacks against schools or hospitals and denial of humanitarian access to children (UNGA, Report of UN Secretary-General, Children and Armed Conflict, A/62/609-S/2007/757 (December 21, 2007), para. 160, http://unispal.un.org/UNISPAL.NSF/0/0819721E7BD2E5F4852573E5005058C9).
[81] UNSC, Report of the Secretary-General on Children and Armed Conflict in Afghanistan, S/2008/695 (November 10, 2008), para. 67.
[82] Ibid.
[83] Ibid.
[84] UNSC, Resolution 1539; UNSC, Resolution 1612; and UNSC, Resolution 1882.
[85] As of October 2009, there are four sanctions committees that correspond to parties or situations that have been listed in the Secretary-General's annexes: DRC, Somalia, Sudan, and Al-Qaida and the Taliban. Côte d'Ivoire has been ‘de-listed'.
[86] United Nations Security Council Working Group on Children and Armed Conflict, Conclusions on Parties to the Situation of Armed Conflict in Somalia, S/AC.51/2008/14 (December 5, 2008).
[87] United Nations Security Council Working Group on Children and Armed Conflict, Conclusions on Children and Armed Conflict in Nepal, S/AC.51/2008/12 (December 5, 2008).
[88] Other specific recommendations that Human Rights Watch has made regarding the Security Council and its working group include: mandating UN country teams expand the scope of dialogue with parties to armed conflict to achieve concrete, measurable action plans; targeted measures against parties responsible for other grave violations against children, including individual measures (travel bans, asset freezes, exclusion from governance structures); extending the monitoring and reporting mechanism to other situations where grave violations against children in armed conflict occur, regardless of whether or not the recruitment and use of child soldiers is taking place. See HRW, "Taking the Next Step".
[89] Child Soldiers Accountability Act of 2008, 18 U.S.C. sec. 2442 (2008); HRW, "United States: Bush Signs Law on Child Soldiers," October 3, 2008, https://www.hrw.org/legacy/english/do
cs/2008/10/03/usint19912.htm.
