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Book Review: Cipriani’s Children’s Rights and the Minimum Age of Criminal Responsibility

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

Children’s Rights and the Minimum Age of Criminal ResponsibilityIdeas 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.

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