This installment in our ongoing series of book reviews looks at Children’s Rights and the Minimum Age of Criminal Responsibility by Don Cipriani. Michael Gigante’s review takes a critical eye towards the arguments Cipriani advances in favor of requiring all nations to establish a minimum age of criminal responsibility.
By Michael V. Gigante
Ideas about the proper role of criminal responsibility in juvenile justice tend to fall along a welfare-justice continuum. The welfare approach, prominent at the birth of the modern notion of a juvenile justice system, essentially dismissed the notions of competence and criminal responsibility for children. State authorities intervened to make benevolent decisions on behalf of children, who were portrayed as objects without liberty rights. On the other end of the continuum, the justice approach—towards which clear shifts have occurred in recent decades—places criminal responsibility and children’s alleged competence at the center of juvenile justice. Accountability, due process, and punishment are the foundations of this approach. In Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective, Don Cipriani points out the flaws of both these approaches and describes the merits of a children’s rights approach as a way to mediate between the tensions of the welfare and justice approaches.
Along with related instruments, the 1989 Convention on the Rights of the Child (CRC), the cornerstone international human rights treaty for children’s rights, addresses the flaws in the welfare and justice approaches. The international juvenile justice standards in the CRC “help mediate but not resolve conflicts along the welfare-justice continuum,” including the minimum age of criminal responsibility (MACR). One key theme in this mediation is the rights of children younger than MACRs. According to Cipriani, the welfare approach “tends to arrogate critical decisions about young children’s lives and to impose state authority upon children and their families.” For example, in discussing the origins of juvenile justice, Cipriani mentions that “[t]he state could directly assume parental control when parents” were unable to provide acceptable care. By contrast, in the “context of protection-oriented responses to children younger than MACRs,” children’s rights are advantageous because “[c]hildren’s best interests drive policy and practice, respect for the role of parents and guardians is stressed, and responses consist almost exclusively of assistance to families, communities, and schools.”
Another key theme in the mediation of conflicts along the welfare-justice continuum is “[c]hildren’s rights to respect for their views and to effective participation at trial.” Cipriani states that if children cannot participate effectively at trial, “they are due greater assistance and modifications to procedures and settings.” Further, if these measures are insufficient, “cases must generally be removed from the juvenile justice context and referred to welfare oriented actions used to address the behavior of children free from criminal responsibility.” These are just a few of several key themes involving children’s rights’ mediation of conflicts along the welfare-justice continuum.
Cipriani conceives of the MACR as a general principle of international law. General principles or rules of international law “can be derived from the general principles common to the world’s major legal systems”; “they are deemed to have been accepted by countries as rules of international law because they are derived directly from legal systems around the world.” Cipriani states that general principles of international law are binding; that is, they give “rise to international legal obligations that are independent from treaty law.” Cipriani notes that nearly every country has established an MACR. One broad legal reason for establishing MACRs is that “children below some specified, fixed age limit should never be held criminally responsible for their actions.” According to Cipriani, “[t]he nearly universal acceptance of this general criminal law principle would seem to raise it to the status of a general principle of international law.” Only eight countries either do not claim to have an MACR or effectively acknowledge not having one: Cambodia (in the process of establishing an MACR when the book went to press), Democratic Republic of the Congo, France, Mauritius, Nauru, Poland, Somalia, and the United States of America.
Cipriani’s analysis of the MACR as a general principle of international law merits critical reflection. Two initial points should be made for the sake of clarity. First, there are several sources of international law: treaties, customary international law, general principles of law (the focus here), judicial decisions and the teachings of scholars, law-making by international organizations, and non-legally-binding norms (soft law). Second, the category of “general principles of law” has been used in several different ways: as “principles that exist in the national laws of states worldwide,” as “general principles of law derived from the specific nature of the international community,” as “principles intrinsic to the idea of law,” and as general principles of law arising “from notions of natural law or natural justice” (i.e., “law understood by humanity through rational reasoning”). It is not entirely clear which of these concepts Cipriani invokes when he advocates the MACR as a general principle of international law. He uses the phrase “fundamental principle of justice” in his argument, perhaps indicating that he is using notions of natural law or natural justice. However, most of his argument seems to focus on the first category of general principles of international law, as principles that exist in the national laws of states worldwide. Quoting M. Cherif Bassiouni, he states that general principles “are, above all else, ‘expressions of national legal systems’ that can be derived from the general principles common to the world’s major legal systems.” If Cipriani indeed intends to advocate the MACR as a binding legal obligation on all states regardless of their treaty obligations merely because the MACR exists in the national laws of many but not all states worldwide, this would be quite problematic given notions of state sovereignty. Perhaps, instead, he intends to advocate the MACR as a general principle of international law by using a combination of both the concepts of general principles as principles of law arising from notions of natural law or natural justice, and as principles that exist in the national laws of states worldwide. In any event, Cipriani’s argument leaves the reader confused. Given the enormous consequences that result from the recognition or confirmation of a general principle of international law (binding on all states, according to Cipriani), he could have spent more time clarifying and strengthening this argument, perhaps by incorporating the presentation of “the various moral and legal mandates for creating MACRs,” which he describes in previous chapters but mentions only curtly in the discussion on general principles. While most of his book is clear and informative, this particular portion is murky and ultimately unconvincing.
Cipriani’s argument for the MACR as a general principle of international law that is thus binding on all states regardless of their treaty commitments has another major flaw: he oversimplifies the binding quality of general principles. In making his argument for the MACR as a general principle of international law, Cipriani cites Bassiouni’s 1990 article, A Functional Approach to “General Principles of International Law.” In a section of this article entitled “The binding nature of ‘General Principles,’” Bassiouni notes that some do not accept the binding nature of general principles, viewing them as a subsidiary rather than primary source of international law, with the two primary sources of international law being treaties and customary international law. These critics argue that treaties and customary international law are “a more direct emanation of the will of States and are also often more specifically related to the subject matter envisaged by treaty provisions and customary rules than are ‘General Principles.’” If such critics view general principles as merely having the function of “explaining inadequacies in the positive normative law” and filling gaps in the two primary sources of international law, they may not view general principles as a source of international law that binds and gives rise to legal obligations independent from treaty law, a primary source. The implication would be that states that do not have treaty obligations to implement an MACR may reject the notion of the MACR as binding and thus refuse to implement an MACR, feeling no legal obligation to do so. In making his argument for the MACR as a general principle of international law and thus as a binding obligation, Cipriani fails to address this potent counterargument.
Despite these significant flaws, Cipriani provides a wellresearched work on the important subjects of children’s rights and the criminal responsibility of children. The book is superbly organized and clearly written, making most of the more difficult topics it discusses readily understandable and engaging. Discussions on topics such as children’s rights’ mediation of welfare-justice tensions, modern trends of MACRs worldwide, and practical implications and challenges of MACR implementation are both informative and interesting.