Two recent cases in Germany raise the question of how to balance the rights of juvenile defendants with the rights of victims to participate in proceedings. The Higher Regional Court in Düsseldorf, Germany, recently sentenced Sarah O. to six and a half years imprisonment for membership in a foreign terrorist organization, commission of crimes against humanity by enslavement resulting in death, and persecution amongst other charges. The sentence was, however, the only publicly available information about the trial. On the very first trial day, the defense filed a request, arguing that although the two co-defendants were adults, Sarah O. was only fifteen at the time she travelled to Syria and younger than 18 when she committed most of the charged crimes. Therefore, the public was completely excluded from the trial. The prosecutors supported the request, saying that it would be in the defendant’s best educational interest and the court eventually decided to have a non-public trial, thus depriving the public, and the broader victim community, of knowledge of the criminal acts.
Cases like this underline the importance of official communication by courts and prosecuting authorities in cases of international crimes. To ensure the highest degree of victim participation possible while at the same time protecting the rights of the Accused, official communication is the most practicable solution. Nonetheless, exclusion of the public should be reduced to a minimum and access to at least some carefully selected court sessions should be considered.
Juvenile Justice and ISIS members
International standards on juvenile justice provide guidance for domestic courts on how to proceed with youth offenders. The European Union also elaborated a concrete directive to ensure minimum standards of juvenile justice are implemented in its member states. Common to all standards, guidelines, and domestic provisions on juvenile justice is the principle that juvenile perpetrators should be prevented from stigmatization by society and justice should serve an educational purpose rather than mere punishment. While these principles and relevant domestic laws are frequently applied in regular criminal cases, their application in trials of returning ISIS members recently raised questions as to the right balance of juvenile justice on one hand and victim participation and transparency on the other.
To prevent juvenile perpetrators from stigmatization and allow for a better re-integration to society, German law for example provides that the public is excluded from criminal trials if at the time when the alleged crimes were committed, the Accused was younger than 18 years old or between 18 and 21. This law is, however, not only applied when the Accused is still younger than 21 years at the time of the trial, but whenever the Accused was under 18 or 21 at the time the crimes were committed, even if s/he is older than 21 at the time of the trial.
International Standards for Child Soldiers
The UN together with humanitarian organizations advise international and hybrid tribunals to consider children affiliated with armed forces and suspected of committing atrocity crimes, primarily as victims of war. According to the non-binding Paris Principles, these children should be addressed by truth and reconciliation mechanisms rather than criminal trials and other judicial mechanisms. However, these principles were drafted with a focus on child soldiers and children illegally recruited and enlisted in armed forces. While inscription of child soldiers is also an issue in the Syrian context, many ISIS fighters joined the conflict willingly and even travelled across international borders to do so. Consequently, qualifying them as victims of war for deliberately joining an armed group does not capture the full context. In addition, atrocity crimes committed in the Syrian conflict are currently tried in domestic courts only, particularly in European countries where many foreign ISIS members originate. Truth and reconciliation mechanisms are therefore unavailable.
Transparency and Transitional Justice
In addition to the case of Sarah O., a new German trial brings these issues to a head. The case involves a female ISIS member who travelled to Syria as a teenager. The public indictment in this case was recently filed by the German Federal Prosecutor General and the trial will commence in due time. While it is crucial to protect the rights of the Accused, particularly of juvenile perpetrators, it is questionable whether juvenile justice principles should trump the rights of victims in cases of international crimes with a large, affected community, particularly where the juvenile perpetrator is now an adult defendant.
Victim participation and visibility of judicial procedures are key to transitional justice, meaning to allow affected societies to move on from their traumatic experiences by holding all perpetrators of atrocity crimes accountable. In addition, participation of direct victims as joint plaintiffs and/or witnesses and the possibility to follow the testimonies, arguments, and general proceedings are crucial for them to overcome their collective trauma. Nonetheless, visibility of and participation in accountability processes is not given by merely announcing the start of such processes and the final outcome (particularly if both is not done in the native language of the affected community). Instead, trials of international crimes should be held publicly whenever possible, especially where perpetrators deliberately affiliated themselves with an armed group, did not commit all of the charged crimes as juveniles, and are adults at the time of the trial.
While many domestic legal frameworks currently do not provide for public trials of juvenile offenders, a reform would be in accordance with international law. UN Standard Minimum Rules on Administration of Juvenile Justice (Beijing Rules) state that name, identifying personal information, and criminal record should not be made available to third parties. Instead of entirely excluding the public from trials of juvenile offenders, trials should therefore be conducted in a more flexible manner. Sessions during which no personal information of the Accused is to be discussed, but which are important to the victims as the criminal acts are detailed, should be made accessible to the public.
Juvenile justice and returning foreign fighters is yet another aspect of international criminal law, unveiling the need for reforms of domestic criminal procedure. Trials under universal jurisdiction and trials of returning foreign fighters have shown a need in domestic legislations to adapt their criminal procedure to challenges posed by dealing with perpetrators and survivors of international crimes. There is a particular urgency to adequately address the needs of survivors and victim societies by granting them procedural rights to follow the proceedings. To balance these needs with the prevention of stigmatization and easing re-integration of perpetrators, official outreach and communication strategies need to be implemented by relevant courts and authorities. This way, correct information about the proceedings, including details about the Accused and his/her conduct, is mainly shared by official channels and consequently reduces the risk of disinformation and extensive coverage by media and public actors. In addition, exceptions for public trials should be reduced to an absolute minimum in cases of international crimes, as laid out above. Relying on de-radicalization and re-integration measures for returning foreign fighters also not only benefits the perpetrators but the victims as well, as it provides more meaningful justice to see that perpetrators are punished and that measures to prevent such crimes in the future are implemented.