Children in Court CRINMAIL 10:
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News
CRC Complaints Mechanism open for signature
The Optional Protocol to the Convention on the Rights of the Child (CRC) creating a communications procedure for children was signed by over 20 States at a ceremony on Tuesday at the Palais des Nations in Geneva. The new mechanism will allow children and their representatives to bring complaints to the UN Committee on the Rights of the Child, and will finally give children full access to an international system of accountability for violations of their rights under the Convention and its two substantive Optional Protocols. Read more about the new complaints mechanism here.
Call for child-friendly justice in Africa
Following the Global Conference on Child Justice held in Kampala this past November, Defence for Children International (DCI) and the African Child Policy Forum (ACPF) have published a final version of the Munyonyo Declaration on Justice for Children in Africa. The Declaration calls for increased respect for children's rights in all aspects of the legal system and makes specific recommendations for national, regional and international actors. New drafts of other conference documents including the Guidelines on Action for Children in the Justice System in Africa and its accompanying study “Towards Child-Friendly Justice in Africa” have also been published.
Business and children's rights work under way
In January, the UN Working Group on business & human rights invited stakeholders to “share their thoughts to help establish its work programme” in anticipation of its first session. Among many other civil society participants, both Amnesty International and the International Commission of Jurists highlighted the need for enhanced access to justice for victims of corporate human rights violations, in particular for children and members of other vulnerable groups.
Also drawing attention to the issue, the UN Secretary-General this week issued a call for input on “how the UN system as a whole can contribute to advancement of the business and human rights agenda, and to dissemination and implementation of the Guiding Principles [on Business and Human Rights].” The deadline for submissions is 26 March.
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Case Updates
Corporate human rights abuses up in the air
This week, the Supreme Court of the United States heard oral arguments in a case that will likely determine whether businesses can be sued for violations of international human rights in U.S. courts, which have for many years been a venue for victims of these violations to seek redress under the country's Alien Tort Statute (ATS). Over the past 15 years, the ATS has been used in a fairly wide variety of lawsuits from claims relating to apartheid in South Africa and slave labour in World War II Germany to an ongoing case against a technology company accused of helping the Government of China to persecute religious minorities.
The case now at issue challenges the applicability of the ATS to corporations, with oil company Shell arguing that it should not be held accountable in the U.S. for alleged human rights abuses including extrajudicial killing, torture and rape committed in the 1990s in the Niger Delta region of Nigeria. The Office of the High Commissioner for Human Rights has issued a statement on the matter, citing High Commissioner Navi Pillay's concerns about corporations, accountability and access to justice for victims of rights violations. Ms. Pillay argues that “holding corporations liable for human rights violations is fully consistent with international law.”
The U.S. Government has also come out in support of the Nigerian plaintiffs, while the Governments of Germany, the Netherlands and the United Kingdom have sided with the corporate defendants. Click here to read a transcript of the oral arguments and the court filings to date, including arguments from both sides and friend-of-the-court briefs submitted by the Governments above, UNHCR, academics, non-governmental organisations, companies and business associations.
Meanwhile, a court in Canada has declined to hear allegations of facilitating serious human rights abuses by a Canadian mining company in the Democratic Republic of Congo. The Quebec Court of Appeal reversed an earlier decision that would have allowed the case to proceed, and had raised hopes that survivors of the so-called “Kilwa Massacre” in 2004 at the hands of the Congolese Army would finally have their day in court.
Big Oil vs. Planet Earth
In the latest in a long line of legal battles, an appeals court in Ecuador has upheld an $18 billion judgment against oil company Chevron for the pollution of a large tract of land in the Amazon river basin. This ruling clears the way for the Ecuadorian plaintiffs to initiate proceedings around the world to seize Chevron's assets and enforce the judgment, which appears to be final after Chevron failed to post the required bond to delay the court's decision from coming into effect during the appeals process.
Chevron, however, insists that the Ecuadorian plaintiffs have committed fraud, and is “prepared to resist any enforcement action.” The company now has the support of a panel of judges from the Hague's Permanent Court of Arbitration, which reaffirmed an order calling on Ecuadorian authorities to suspend enforcement of the award. Chevron immediately asked the Ecuadorian appeals court to comply with this order, but the court has refused on the grounds that respecting the arbitration award “would not only run counter to the rights guaranteed by our Constitution, but would also violate the most important international obligations assumed by Ecuador in matters of human rights."
Fellow oil giant Shell has also been dogged by allegations that it has failed to assess and mitigate the health, environmental and human rights impacts of its activities, with International NGOs Amnesty International and Friends of the Earth International lodging a complaint against the company with the UK and Dutch National Contact Points under the Specific Instance Procedure of the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises.
And in other news, a court in the Netherlands has ruled that the French co-founder of oil trading company Trafigura can be prosecuted in the country for the illegal export of toxic waste. Under the company's direction, a ship carrying hazardous material was directed to C ote d'Ivoire, where it was dumped in public waste sites around the capital city of Abidjan. According to Ivorian judges, this improper disposal caused 17 deaths and thousands more cases of poisoning. Although Trafigura continues to deny wrongdoing, the company has already paid more than 180 million euros to settle legal proceedings in the United Kingdom and Cot e d'Ivoire.
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Global Case Roundup
Trials on trial
Following on CRIN's report on children and the pharmaceutical industry, activists in India are outraged that doctors involved in secret drug trials on children and other patients with learning disabilities have been fined less than $100 each. The doctors, two of whom continue to deny any wrongdoing, are alleged to have been paid by drug companies to test drugs for sexual dysfunction and other problems on over 200 patients. The state government of Madhya Pradesh, where the trials took place, has confirmed that the tests were not authorised by health authorities and noted that participating doctors now refuse to provide further details on the grounds of doctor-patient confidentiality. Nonetheless, many fear that the government-issued fines are nominal and will do little to deter further illegal testing, with India's low costs, weak laws, inadequate law enforcement, and minimal penalties doing little to assuage worries.
Adding to legal and ethical concerns about drug testing on children in lower-cost countries, British drug giant GlaxoSmithKline has also recently been fined $230,000 by a court in Argentina after 14 babies died during a vaccine drug trial. The company has been criticised for its handling of the tests and choice to locate the trial in a largely impoverished community, with many parents alleging that they were not informed of their children's participation in a drug trial until after the vaccine had been administered.
Concerns about medicine and children's rights are not limited just to recent memory, with a class action lawsuit filed by children born with birth defects and their mothers in Australia now being allowed to proceed against a German pharmaceutical company and a drug distributor. The company manufactured the morning sickness drug thalidomide, which was administered to pregnant women primarily in the 1950s and taken off the market in 1961 when it was linked to birth defects and discovered to have led to deformities in thousands of babies around the world. About a hundred people have expressed interest in joining the suit so far, which claims that the drug company should have known about thalidomide's link to birth defects when it was on the market.
Victories in Africa for children's rights, but a looming threat to advocacy
The Kenyan High Court has issued a ground-breaking decision in favour of more than 1,000 individuals from six communities, including children, who were forcibly evicted from their homes. Although on public land, the communities had been in existence since the 1940s, and were neither consulted nor notified prior to their eviction. Among other breaches of human rights, the Court found violations of the rights to life, adequate housing, sanitation, physical and mental health, clean and safe water, freedom from hunger, education, information, and fair administrative decisions, and ordered the government to return the land and rebuild demolished homes and buildings. The case was supported by a number of national and international human rights organisations, working together through the International Network for Economic, Social & Cultural Rights (ESCR-Net).
In another case concerning children's economic, social and cultural rights, a High Court judge in Zimbabwe has ordered a school to admit a four-year-old boy who had initially been barred from attending for wearing dreadlocks, a sign of his Rastafarian faith. The boy's parents had paid the required school fees and purchased uniforms and books in preparation for his enrolment, and made an urgent application to the Court demanding his admission. Siding with the parents, the judge saw no lawful basis for the school to now refuse to enrol the child based solely on his hairstyle and expression of his religious beliefs. In so finding, the judge issued a permanent injunction ordering the school not to “interfere in any way with the child's access to education” on those grounds.
On a more unnerving note, the Supreme Court of Ethiopia heard a request from the Human Rights Council (HRCO) – the country's oldest human rights organisation – that promises to have wide-reaching ramifications for the ability of human rights defenders to operate lawfully within the country. HRCO's bank accounts were frozen in the wake of Ethiopia's repressive Charities and Societies Proclamation, which prohibits human rights organisations from receiving more than ten per cent of their funding from overseas. After initially licensing HRCO as a national charity, the newly created Charities and Societies Agency ordered banks to freeze all of the organisation's assets. The move is legally dubious, however, and HRCO has mounted a challenge given that the Agency did not obtain a warrant to freeze its assets, the Proclamation does not directly provide the Agency with the power to block bank accounts, and funds collected before the new law entered into effect should be unaffected.
Wrongful detention
In the United Kingdom, 40 asylum-seeking children who were detained in adult detention centres were collectively awarded £1 million in compensation from the Government. The compensation – plus an additional £1 million in costs – was paid in 2009 and 2010 in response to claims filed in 2005, but the settlement has not been made public until now. The Government has also revised the policy that resulted in the children's detention in the first place, now requiring that an independent age assessment conclude that an asylum seeker is over 18 before he or she can be detained. On a similar front, four Kurdish asylum-seeking children who spent 13 months in detention in Scotland have reached a six-figure settlement with the UK Government. The family now resides in Germany, and, although they still suffer lingering effects from their time in confinement, is happy that their lawsuit has forced the Government to take some measure of responsibility for its harsh treatment of asylum-seeking children.
Across the Atlantic, a real estate developer involved in the “kids for cash” scandal in the United States has accepted liability for more than $17 million in damages as part of a settlement deal with as many as 2,400 children who were locked up in detention centres built by the company. U.S. federal prosecutors allege that two judges accepted illegal payments from the Pennsylvania-based developer after asking the company's owner to construct the for-profit centres, which has since resulted in the state's Supreme Court overturning thousands of juvenile convictions. The company's owner now awaits sentencing on criminal charges, and the children's case continues against the accused judges, the detention centres, and a number of other defendants.
The Catholic Church in Belgium has said that priests and clergy who have abused children will be required to pay damages, even where victims' cases would otherwise be barred by the statute of limitations. The church encouraged victims – over five hundred of whom have come forward during the past two years - to first bring their claims to civil authorities, but also expressed a willingness to impose penalties ranging from apologies to financial compensation where this would be unavailable through the court system. Meanwhile, in another case involving allegations of sexual abuse against the Catholic Church, a court in the United Kingdom has found that a bishop may be held liable for the actions committed by a priest within his diocese. Read the full case here.
Child protection in the spotlight
A child welfare case in Norway has garnered international attention after Norwegian child protection authorities removed two Indian children from their home. The authorities have failed to disclose the precise reasons behind the removal, but the children's parents allege it was because of cultural misunderstandings over the acceptability of feeding children by hand and children sharing a bed with their parents. A local family court has upheld the removal, and the parents have launched an appeal; follow the case in the media here.
Looking at a similar issue, the Constitutional Court of South Africa has struck down a law that permitted the removal of children from family care without providing for automatic judicial review of these decisions. Notably, the Court cited the Convention on the Rights of the Child to highlight children's rights to preservation of identity and to know, live with, and be raised by their parents.
Refugee rights push forward
A judge in Ireland has ruled that a Roma child should be allowed to stay in the country as a refugee given that he would likely be denied a basic education were he returned to his parents' home country of Serbia. Many Roma children in Serbia do not attend school at all, and those who do are often enrolled in special schools for children with learning difficulties. Looking to international standards on the fundamental nature of the right to education, the judge found that if the child “[were] denied the right to even a basic education he [would] effectively be excluded from any meaningful participation in Serbian society.”
In another high profile case, the Inter-American Commission on Human Rights has filed a petition against Bolivia with the Inter-American Court of Human Rights. The case relates to the 2001 expulsion of a family of five to Peru following what appears to have been an immediate and unconsidered rejection of their application for refugee status. The Commission alleges that Bolivia violated the family's right to mental integrity, to seek and be granted asylum, and the right to judicial guarantees and judicial protection. The case will be the Court's first chance to address the process for recognising refugee status, and will also be analysed in light of the special obligations for the protection of children and the best interests of the child.
Unsettling news for families in Israel
The Israeli Supreme Court has upheld the constitutionality of revisions to its laws on citizenship and immigration that prevent Palestinians in the occupied Palestinian territories (OPT) from joining their Israeli spouses in the country and deny Palestinian spouses the right to acquire Israeli citizenship through marriage. The Government has largely banned this sort of family reunification in Israel since 2002, citing national security concerns. The Israeli NGO challenging the law – Adalah – and international NGOs Open Society and Human Rights Watch, however, have accused the Israeli Government of racism and discrimination against Israeli Arabs, many of whom will be directly affected by the expanded ban on reunification.
Advances in gay rights under the gun in India
The Supreme Court of India is now considering more than a dozen petitions asking the Court to overturn a landmark ruling from the 2009 Delhi High Court decriminalising same-sex relations between consenting adults. CRIN has published an editorial on the issue, noting how laws that criminalise homosexual relations affect not only LGBT children, but also children of LGBT parents who suffer from the discrimination faced by their parents and may even be directly targeted in retaliation.
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New Legal Resources
Publications
The Supreme Court of Justice of Mexico has recently released Guidelines for justice professionals involved in cases affecting children and adolescents (in Spanish). The Guidelines seek to guarantee minimum standards for all children coming into contact with the law whether as victims, witnesses or offenders. Among other rights, they emphasise the best interests of the child, non-discrimination, the right to be treated with respect and sensitivity, the right to protection from intimidation, the right to privacy, and the right to not participate in legal proceedings in certain contexts.
Penal Reform International (PRI) has published a Ten-Point Plan for Fair and Effective Criminal Justice for Children. The Plan sets out how law and policy makers and criminal justice practitioners can and should respond to children in conflict with the law, emphasising prevention, diversion, rehabilitation, and alternatives to imprisonment. Broadly, PRI advocates for a justice system that promotes the well-being and best interests of children, with the eventual goal of reintegration into society.
The Rights of the Child UK coalition has published Why incorporate? Making rights a reality for every child, which makes the case for enshrining the rights of children into the national law of the United Kingdom. The report presents many arguments in favour of incorporation, including the prospects of a binding commitment on public agencies to protect children's rights and direct application of these rights in national courts.
International women's rights organisation MADRE and the TrustLaw pro bono legal service have published the report “Achieving Justice for Victims of Rape and Advancing Women's Rights: A Comparative Study of Legal Reform”. The report reviews rape legislation and procedures in six countries and supplies concrete examples of laws and policies that implement women's human rights, all with the aim of supporting the reform of rape legislation in Haiti, which has experienced a dramatic increase in sexual violence since its January 2010 earthquake.
AdvocAid has released a user-friendly Handbook to the Bangkok Rules on the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders. The Rules make specific provision for prisoners with children, and the handbook is designed to assist prison officials, prisoners and civil society in fostering enforcement of human rights standards for girls, women and their children in the criminal justice system.
Human Rights Watch has published a report on Uganda's International Crimes Division, a section of the High Court responsible for, among other things, trying cases related to genocide, war crimes and crimes against humanity. The paper analyses the Division's work to date in the context of international criminal accountability for grave violations of human rights, hoping to offer guidance to other countries wishing to pursue these cases before national courts.
CRIN's Toolkit on Child-Friendly Justice and Children's Rights is now available in Russian. The Toolkit describes and gives examples of child-friendly justice practices in many of the contexts in which children come into contact with the legal system, citing international and regional standards throughout.
Litigation funding opportunity
The Institute for Human Rights and Development in Africa (IHRDA) is operating a fund for litigation before the African Commission for Human and Peoples’ Rights. The fund covers travel, accommodation and other related expenses, as is available to nationals of or organisations located in an ECOWAS state, Cameroon, Chad or Mauritania.
Legal databases and other resources
UNICEF and UNODC have launched a free online Training Package on Child Victims and Witnesses of Crime. The Package aims to increase awareness and understanding of the rights of child victims and witnesses of crime, and is designed to assist professionals who work with child victims and witnesses of crime in their daily practice and to encourage the development of a fair, effective and child-sensitive justice system that safeguards the rights of child victims and child witnesses at all stages of the justice process.
A newly upgraded Universal Human Rights Index database has been launched with new content on the UPR, additional languages, improved accessibility, and links to follow-up information. The database allows users to search through individual recommendations and full documents from UN treaty bodies, special procedures, and the Universal Periodic Review process.
A new website has been launched to serve as an information hub on the Optional Protocol to CEDAW. The website lists communications and inquiries by country, decision type, subject matter and year, and also offers status updates for recently initiated procedures and links to decisions, summaries, submissions, amicus briefs and case commentaries.
The International Committee of the Red Cross has recently debuted a database of national implementation measures for humanitarian law, which provides the text of relevant legislation and jurisprudence from countries around the world and forms part of a larger legal database on international humanitarian law.
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