The UN-Committee for the Rights of the Child and the “close link”

The UN-Committee for the Rights of the Child and the “close link”

In October 2005, TRIAL sent a written submission to the UN-Committee for the Rights of the Child, the treaty monitoring body for the UN Convention on the Rights of the Child.

In its submission, TRIAL argues that Switzerland does not comply with its obligations under the Optional Protocol on the involvment of children in armed conflict (OP-CRC-AC).

The recruitment or use of children in armec conflicts, prohibited by the protocol, in certain cases also constitues a war crime. The qualfication as a war crime is not required by the protocol as such, but has been expressly welcomed by the Committe for the Rights of the Child (see e.g. the conluding observations on the State report submitted by Finland, UNO Doc. CRC/C/OPAC/CO/3, §3).

The 1949 Geneva Conventions provide for a duty to either prosecute or extradite the presumed perpetrators of war crimes, irregardless of where, by whom or against whom they have been committed. As a result of the restrictive legal situation, war criminal who have recruited foreign children abroad can only be prosecuted in Switzerland if they have a “close link” with Switzerland.

TRIAL is of the opinion that this state of the law is not only contrary to the Geneva Conventions, but also to the OP-CRC-AC. Under the protocol, Switzerland is obliged, inter alia, to prevent the recruitment of children by non-state armed groups, and particularly to apply criminal-law measures to this end. However, in the vast majority of cases, the prosecution of child recruiters would be rendered impossible by the “close link”-requirement.

In November 2005 the Committee for the Rights of the Child published the so-called “list of issues“, by means of which it informed Switzerland of the topics which were to be taken up in more detail at the upcoming dialogue in January 2006. The Committee listed the issue of the “close link”, thus clearly indicating that the exercise of universal jurisdiction under the OP-CRC-AC is a question of interest to it.

On 9 January 2006, the actual dialogue between the Committee and Switzerland took place at the Palais Wilson in Geneva. At this occasion, the Swiss delegation posed the question to the committee, whether the exercise of universal jurisdiction was a measure to be adopted under the CRC-OP-AC. TRIAL immediately filed a further written submission to the Committee arguing that this question has to be answered with a clear “yes”.

On 27 January 2006, the Committee adopted its conluding observations on the report submitted by Switzerland. The Committee firmly criticises the “close link”-requirement, as it restricted Switzerland’s jurisdiction for war crimes committed abroad. The Committee recommends that Switzerland “review the recent amendment of article 9 of the Military Penal Code with a view to restoring its full jurisdiction over war crimes”.

Relevant documents :

• TRIAL’s submission to the CRC of October 2005. [pdf]
• The list of issues of the Committee for the Rights of the child. [pdf]
• The official press release on the dialogue of 9 January 2006. [html]
• TRIAL’s submission of after the dialogue. [pdf]
• The Concluding Obervations of the Committee for the Rights of the child. [pdf]