Submission on the draft of general comment No. 27 on children’s right to access to justice and to an effective remedy
1. Just Atonement Inc. (JAI) is a law non-profit that trains planetary defenders to address threats to human rights, a livable planet, and the international rule of law.
2. JAI commends the Committee on the Rights of the Child (the “Committee”) for producing draft general comment No. 27 (202x) on children’s right to access to justice and to an effective remedy (“Draft General Comment No. 27”).
3. JAI wishes to comment on the list of “gravest child rights violations” contained in paragraph 18(a)(iv) in Draft General Comment No. 27. For the reasons set forth below, JAI respectfully submits to the Committee that “the crime of aggression” (or simply “aggression”) and “slavery” should be included in the list of “gravest child rights violations.”
4. Paragraph 18(a)(iv) currently reads as follows:
(iv) Territorial jurisdiction: States should establish and recognize extraterritorial jurisdiction for certain child rights violations, such as article 4 of the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography. This includes access to judicial and non-judicial mechanisms to provide an effective remedy for violations of children’s rights by business enterprises, including as a result of their extraterritorial activities, and for children outside their territory affected by established or foreseeable transboundary harm resulting from States’ acts or omissions occurring within their territories, such as environmental impacts. States may recognize universal jurisdiction for the gravest child rights violations, such as war crimes, crimes against humanity and genocide;
5. JAI respectfully submits the following changes (in tracked changes, and highlighted):
(iv) Territorial jurisdiction: States should establish and recognize extraterritorial jurisdiction for certain child rights violations, such as article 4 of the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography. This includes access to judicial and non-judicial mechanisms to provide an effective remedy for violations of children’s rights by business enterprises, including as a result of their extraterritorial activities, and for children outside their territory affected by established or foreseeable transboundary harm resulting from States’ acts or omissions occurring within their territories, such as environmental impacts. States may recognize universal jurisdiction for the gravest child rights violations, such as war crimes, crimes against humanity, the crime of aggression, slavery, and genocide;
6. JAI submits that these inclusions are warranted for the reasons set forth below.
The crime of aggression
7. First, pursuant to the precedent set before the International Military Tribunal at Nuremberg, the crime of aggression is considered the “supreme” international crime.[1] The Kampala amendment to the Rome Statute, activated and effective as of 17 July 2018, further allows the International Criminal Court to exercise jurisdiction over the crime of aggression as applicable.[2]
8. In its recent conclusions related to peremptory norms of international law (jus cogens), the UN International Law Commission (ILC) lists the prohibition of aggression as holding the status of a peremptory norm of general international law (jus cogens).[3] This builds on its earlier 1966 statement that “the law of the Charter [of the United Nations] concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens.”[4]
9. The UN Human Rights Committee, in its General Comment No. 36, expressly notes that the crime of aggression is automatically a violation of the right life. “States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.”[5] The UN Human Rights Committee has also advised States of the obligation to prevent “systematic attacks on the right to life” including through “acts of aggression, international terrorism, genocide, crimes against humanity and war crimes.”[6]
10. With respect to this Committee’s Draft General Comment No. 27, JAI urges the Committee to consider the links between the crime of aggression and grave violations against children. Children are uniquely and irreparably injured in the context of unlawful inter-State aggression.
Slavery
11. Second, JAI urges the Committee to also include slavery in the list of “gravest child rights violations” in paragraph 18(a)(iv) of Draft General Comment No. 27.
12. JAI notes that the Optional Protocol on the sale of children, child prostitution, and child pornography (OPSC) expressly addresses forms of slavery, including the sale of children and forced exploitation.[7]
13. In addition, the ILC has listed the prohibition against slavery as a peremptory norm of international law (jus cogens).[8] The ILC supports this conclusion based on its earlier work in relation to the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). Commentary to articles 26 and 40 of the ARSIWA refers to the prohibition against slavery as a peremptory norm of international law (jus cogens). Similarly, the commentary to the draft articles on the law of treaties, for its part, refers to the prohibition of the trade in slaves.[9]
14. With respect to Draft General Comment No. 27, JAI urges the Committee to recognize the close link between slavery and grave violations of children’s rights. Children are particularly vulnerable to forms of slavery, including forced labor, exploitation, and sale. We therefore encourage the Committee to strengthen the prohibition against slavery by explicitly including it in the list of the gravest child rights violations.
15. Paragraph 18(a)(iv) also situates the list of gravest child rights violations within a broader recommendation that States “may recognize universal jurisdiction” for such crimes. We support this wording and additional recommendation. The push for such universal jurisdiction is also essential in the context of the crime of aggression and slavery, which in turn further supports their inclusion in the list in paragraph 18(a)(iv). Those who commit aggression or who engage in slavery—like war criminals and genocidaires—are hostis humani generis and must be held to account before a competent and neutral tribunal on a universal basis, and subject to due process of law. Where children are involved, this logic applies a fortiori.
16. Finally, the list of gravest child rights violations should be non-exhaustive, to avoid the impression that it is complete.[10] To the extent that specific grave violations are listed, the Committee should follow the example set by the ILC and include aggression and slavery within the list.
[1] Judgment of the International Military Tribunal for the Trial of German Major War Criminals (30 September–1 October 1946) (1947) 22 IMT 426, available at <https://avalon.law.yale.edu/imt/09-30-46.asp>.
[2] Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression (adopted 11 June 2010) CN.651.2010.TREATIES-8 art 8 bis.
[3] UN International Law Commission, ‘Peremptory norms of general international law (jus cogens) – with commentaries’ (2022) UN Doc A/77/10, Conclusion 23, Annex, available at <https://legal.un.org/ilc/texts/instruments/english/commentaries/1_14_2022.pdf>.
[4] ibid, Comment (7) to Conclusion 23.
[5] UN Human Rights Committee, ‘General Comment No 36: Article 6 – Right to life’ (30 October 2018) UN Doc CCPR/C/GC/36 para 70.
[6] ibid.
[7] Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (adopted 25 May 2000, entered into force 18 January 2002) UN Doc A/RES/54/263, Annex II.
[8] ILC (n 3) Conclusion 23, Annex.
[9] Ibid, Comment (12) to Conclusion 23.
[10] ibid Conclusion 23 (explicitly declaring the list “non-exhaustive”).