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CHILDREN AND THE ADMINISTRATION OF JUSTICE
This Thursday was the biggest day of the year on children’s rights at the Human Rights Council in Geneva, as the UN body celebrated its 2012 annual full-day meeting on the rights of the child under the theme of ‘children and the administration of justice’ during its 19th session.
Identifying the problem
"Why - how many years on? - do we still struggle with having children detained as the first resort rather than the last?” asked panelist Susan Bissel from UNICEF, adding that detained children are “[n]ot only alleged offenders, but those who have been trafficked, those who have HIV/AIDS, those [crossing] a border to join their families or to get better education, those who are suffering from mental health issues. If I think of the principal issue in the area of justice for children, this is it."
The Special Representative of the UN Secretary-General on Violence against Children, Marta Santos Pais said that violence in the juvenile justice system is a "[v]ery high priority for my mandate. A juvenile justice system framed in human rights is crucial to prevent violence.”
Public security paranoia
The UN High Commissioner for Human Rights, Navi Pillay said: "one alarming concern is the public perception that juvenile delinquency is increasing. Such perceptions, not grounded on evidence but based on media reports of a few serious cases, influence political discourse and too often lead to the adoption of legislation on the treatment of young offenders that weaken children's rights."
Weighing the costs
The detention of children in some countries is often used as the first measure and not as the last resort, noted Ms Renate Winter, panellist and judge to the appeals Chamber of the Special Court for Sierra Leone. Ms Winter proceeded to make two of the most significant contributions of the day.
First, she reflected on how societies stigmatise child offenders through language: “If a child sings well, we say he or she sings well, but we don’t call them a singer. But if a child steals, we call him or her a thief, instead of saying they have committed theft.”
Second, Ms Winter provided much-needed statistics on the difference in effectiveness and cost between imprisonment and diversion measures in reducing the likelihood of recidivism. She said that 80 per cent of offending children who were detained go on to re-offend after release, while only 20 per cent of offending children who did not receive a custody sentence but instead benefited from diversion measures went on to re-offend, and in some cases the figure is as low as 14 or 12 per cent.
As regards the cost of detention and diversion, Ms Winter exposed that the cost of keeping a child in prison is equivalent to a one-night stay at a four-star hotel. If the money spent on keeping the child in prison were instead spent on a probation officer, the latter would effectively be paid the same as a head of state, she said.
Malaysia agreed that restorative justice is more effective than retributive justice, because “it gives the [possibility] of emotional and moral development of young offenders”, instead of punishing them and leaving it at that once their sentence is over. Similarly in Belgium, restorative justice has been made mandatory.
Vulnerable groups
The Consortium for Street Children spoke out against the recent trend among many States to criminalise poverty by treating street children as criminals for begging or vagrancy, which are survival activities.
The Australian delegation acknowledged that indigenous children are overrepresented in the country’s prison system, as well as noting that placing child offenders in detention far away from their families is a problem that needs to be addressed.
Both of these issues are also of concern in Canada among First Nations children, though the Canadian delegation did not speak up on the matter.
Inhuman sentencing left out
“In many countries, children are faced with various forms of inhuman sentencing, including life imprisonment, caning, flogging, stoning" said the Special Representative of the UN Secretary-General on Violence against Children, adding that "banning all forms of inhuman sentencing is an urgent priority."
There were a number of State delegations, however, that when taking the floor failed to mention that child offenders can legally be sentenced to death, life imprisonment and/or corporal punishment in their respective countries.
In Pakistan’s intervention, the delegate did not say that its domestic law allows for child offenders to be sentenced to all the above forms of inhuman sentencing. Read more about the legality of inhuman sentencing in Pakistan here.
Similarly, the Iran delegation omitted from its speech that it executed at least four teenagers last year. Read more about the legality of inhuman sentencing in Iran here.
And the Sudan delegation failed to reflect on its own inhuman sentencing laws, which in December 2011 allowed for a criminal court to uphold the death sentences of four minors for stealing a car. Read more about the legality of inhuman sentencing in Sudan here.
Differentiating between offences
The panellist Mr Jorge Cardona, member of the Committee on the Rights of the Child, stressed the need to decriminalise and dejudicialise offences committed by children – especially for minor offences. He also highlighted the need for court decisions to reflect on contemporary issues afflicting children – such as cyber bullying and intra-family violence – as possible contributing factors to the commission of an offence by a young person.
Impact of detention
The International Juvenile Justice Observatory (IJJO) called attention to the consequences of placing children in pre-trial detention, highlighting that a third of these children remain detained for months or even years before being tried. This practice, the speaker explained, has a significant impact on the children’s social and mental health, noting the high incidence of mental health problems in juveniles that come into contact with the justice system.
This came before the IJJO speaker exposed the discriminatory practice in some countries whereby adult offenders found to have a mental disability cannot be convicted of a crime, yet research shows that half to two-thirds of juveniles in detention suffer from prior mental health problems - far higher than the adult population.
There is also a high incidence of attempted and achieved suicide among children in detention, as a result of usually unmet mental and emotional development problems, as highlighted by former member of the CRC Committee, the Lithuanian Mr Dainius Puras.
Accordingly, Mr Puras suggested that the problem of violence in detention - which can aggravate or induce mental and emotional problems - should be dealt with as a public health issue, as they too become victims while in detention. But he highlighted that this proposal is challenged by the outdated notion that offending children are “mad” or “bad”, which stigmatises offending children as nothing more that criminals.
Mr Puras also highlighted that those children who end up in detention may have suffered violence at home, which could possibly be a contributing factor, and therefore dealing with violence in general should be seen as a public health issue.
In response to States' requests for examples of best practices, Mr Puras said that there were many good examples of public health approaches to ending the cycle of violence and delinquency, saying that one way is training parents at risk in non-violent ways of disciplining children.
He added that this was important for the one million children in detention, but also for the two million children also deprived of liberty in other kinds of institutions - institutions that are costly and not effective.
The European Union delegation, too, raised the issue of violence against child offenders in closed institutions, as well as spotlighting the problem of overcrowding in prisons.
Conflicting laws
The panellist and human rights professor, Ms Connie de la Vega, referred to the problem of conflicting laws within federal systems, where states each have their own legislation. This occurs in India, Nigeria, and the United States, among others. In the case of inhuman sentencing of children in India, while life imprisonment for child offenders is unlawful under federal law, it is legal in the state of Jammu and Kashmir. More on the issue here.
Meanwhile customary law also poses a challenge, highlighted Julia Sloth-Nielsen, Member of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC). She said many children, in many countries and continents are affected by customary and traditional justice systems, illustrating that in Africa "the majority of children grow up under the umbrella of customary law systems, with justice administered by elders and chiefs."
She added that despite international guidance, "the situation on the ground remains dire: there is often a large gap between the law and practice".
Ms Sloth-Nielsen also spoke about child friendly justice, including the recent Draft Guidelines on Action for Children in the Justice System in Africa.
What next?
Although the meeting did not seek to reach conclusions or aim to issue recommendations, CRIN will continue to monitor the work of the Human Rights Council on the issue of juvenile justice, as well as continuing to provide coverage of the situation of children in conflict with the law around the world.
NGO statements
The following NGOs made oral statements during the Council's annual day on child rights:
The statements above without links have not yet been posted on the OHCHR extranet.
For future reference, its page can be accessed here.
THE WEEK'S HIGHLIGHTS
CRIN has been reporting all this week live from the 19th session of the Human Rights Council in Geneva. Here is a quick reminder:
Day one: 5th March
Day two: 6th March
Day three: 7th March
Day four: 8th March
You can also read about the first week of the 19th session, which included the signing ceremony of the Optional Protocol for a complaints mechanism here.
COMING UP NEXT WEEK
12 March: Special Procedures will consider country mandates including: North Korea, Myanmar and Iran.
12 March: There will be a discussion with the commission on inquiry on Syria.
14-16 March: Seventeen States will have their Universal Periodic Review (UPR) reports adopted.
The Last Word
Wakey wakey!
The lack of daylight – and fresh air – at the Human Rights Council can make for long, tiring days. Certainly the representatives of Mauritania, Turkey and the Union of Arab Jurists were feeling the heat during the full-day discussion on child rights, when they delivered the same statements they had already read out at the Council's previous session. The delegations were promptly snapped out of their daze, as the President of the Council was forced to remind participants to pay attention to the programme of work - not once, not twice, but three times!
On an equally silly note, one State delegate seemed to be at the wrong event after making reference to the "UN Guidelines for the Prevention of Juvenile Justice"...!
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