Presentation by Mr. Taro Morinaga, UNAFEI Deputy Director on Agenda item 4: Criminal justice responses to prevent and counter terrorism in all its forms and manifestations, including the financing of terrorism, and technical assistance in support of the implementation of relevant international conventions and protocols

Mr. /Madam Chairperson,
 
It is a great privilege and pleasure for me to be given an opportunity to express my opinion before my learned fellow panelists and all the participants gathered here today to discuss the quite important topic of the criminal justice response to terrorism.

 
Criminal justice responses are inherent to counterterrorism. Terrorist activities undoubtedly constitute criminal offenses and the perpetrators are treated as criminals; they are caught, prosecuted and, if guilt is proven beyond reasonable doubt, they will be convicted and sent to prison. This is the fundamental part of criminal justice response, and it is definitely important.

 
In addition to the basic function of criminal justice, counterterrorism has demanded more from it. Efforts have been made to utilize criminal justice measures for early detection of plots of attacks as well as to prevent the financing of terrorism and the supply of weapons to terrorist groups. And recently, there has been much talk about how to cope with the “human resources” captured by, or voluntarily joining, terrorist forces. Especially, what has become a growing concern is the younger generation – kids and youngsters – being attracted and recruited by terrorist groups and becoming fatal forces. Now, the question is what criminal justice can do to solve this horrible problem.

 
UNAFEI has been continuously considering this issue, having always in mind that one of the best measures for crime prevention, especially prevention of organized crime including terrorism may be to block the supply of fresh recruits to organized crime and terrorist groups. And towards this end, it seems irrefutable that a state, irrespective of its type of fundamental legal or political system, has to establish and operate a sound and trustworthy juvenile justice system apart from its ordinary criminal justice system.

 
We believe that, unfortunately, children and adolescents who have once come into conflict with the law are much more prone to engage in further delinquency or criminal activities than those who have never undergone any criminal or juvenile justice procedure before and, because of that, need much more careful and benevolent treatment by the authorities and the society. Without such treatment, they are so vulnerable to solicitation or seduction by organized crime or terrorist group members, because, among other things, organized crime members or terrorists seem to be much more caring about them than the authorities or the society surrounding them, or even their families. The authorities are so cold and do not seem to be interested in anything other than to find them guilty. The society labels them as criminals. Family members just sigh in dismay, but the gang boss treats them well. He gives them food, clothing, places to live, and even provides them, although not always legitimate, with jobs. Most importantly, he gives them a sense that their lives are still worthwhile; a sense of being trusted – none of which are offered by the usual criminal justice approach. If the boss is a terrorist instead of a gangster, the juveniles may easily be converted into fanatic warriors.

 
The authorities have to do better than that. But for the ordinary criminal justice system, especially for an adversarial system, benevolent treatment for juvenile delinquents is usually quite difficult for many reasons, especially because of its fundamental nature which places the accused or the defendant in a position of an opponent, if not an enemy. Thus, there is definitely a need to have a separate, sophisticated system to deal with juveniles based upon different principles giving priority to protection and rehabilitation over criminal punishment.

 
Regarding this issue, a quite noteworthy effort is ongoing by the initiative of the Government of Switzerland under the framework of the Global Counterterrorism Forum (GCTF) and in cooperation with UNICRI as to which a draft “Memorandum on Good Practices for Juvenile Justice in a Counterterrorism Context” has been released. Although it seems that much more discussion is necessary, I would like to highly commend the endeavors of the experts involved; I couldn’t agree more to what is reflected in that draft Memorandum, especially the parts strongly calling for the establishment and operation of a specialized, robust juvenile justice system.

 
Now, Japan is one of the countries which has a juvenile justice system separate from its criminal justice system. The basic principle of the juvenile justice system in Japan is, in short, “avoid punishment as much as possible; juveniles should be protected, not punished.” The Japanese system was born in a turbulent time right after the defeat of the Second World War, when the streets of devastated cities were filled with orphans and child gangsters. The society thereafter experienced a drastic change along with its rapid economic development, but the basic philosophy of prioritizing protection of juveniles over the imposition of criminal punishment, which was reflected in the Juvenile Law of 1948, has not changed since then. As an apparatus for the implementation of a rather benevolent system, there are the family courts, which have exclusive jurisdiction over juvenile cases. The family courts apply an inquisitorial procedure as opposed to the adversarial procedure in criminal courts and by conducting closed sessions, they avoid unnecessary exposure of the juvenile to the public. In order to enable the judges to make decisions in the “best interest of the child”, the family court has experts with various backgrounds in fields such as psychology, pedagogy or social welfare to assist the judges, and if their support is not enough, there are separate special facilities called “juvenile classification homes” to which judges can send juveniles for a certain period for the purpose of behavioral observation. The judges also seek the professional opinion of the staff of the juvenile classification home before making the final case disposition. For post-adjudication treatment, there are juvenile training schools, and if incarceration is deemed inappropriate, probation officers and volunteer probation officers are ready for guiding and supporting the juveniles by community-based treatment. All these authorities work on the common principle of juvenile protection, providing quite intensive care and support to juveniles and guiding them toward rehabilitation. I may not be in a position to objectively evaluate the performance of the Japanese juvenile justice system, but if asked, I would say that it is working well so far. Of course I do not claim that the Japanese system is the best and fit for use in any society or under any circumstance — we all know that “one size fits all” never applies to legal systems. But when considering issues relating to juvenile justice, it may be something worth taking a look at.

 
A far as I know, there are many developing countries which are making efforts to reform or revitalize their own juvenile justice systems, or are now thinking of establishing new ones. UNAFEI will be happy to support such positive efforts by simply sharing information or, if there is a need, by providing technical assistance, especially in the Asian region, where UNAFEI has a certain amount of geographical and cultural advantages based on its past experience.