JUVENILE JUSTICE: The 'minimum age' debate - separating 'responsibility' from 'criminalisation'

Speech given by Paulo Sérgio Pinheiro, Independent Expert who led the UN Secretary General’s Study on Violence against Children; Chairperson of the Independent International Commission of Inquiry on Syria, on the occasion of the World Congress on Juvenile Justice – Geneva, 28 January 2015


Warm congratulations to the Government of Switzerland and Terre des Hommes Foundation for developing this landmark World Congress, and to my dear friends at CRIN for organising this event.

The World Congress aims to be a milestone in the implementation of international norms – a very welcome and urgent goal. In many too many States, the treatment of children in conflict with the law is in gross violation of the international legal norms of children’s rights. Too often, juvenile justice systems are not providing justice at all; they are simply re-named penal systems, subjecting children to direct and indirect punitive violence that can do nothing to rehabilitate and re-integrate them.

Of course this is not in the best interests of children. And nor is it in the interests of human societies. Its impact is likely to quite literally make children criminals, and very often to make them more violent criminals.

I know that many of you, many of those attending the Congress, are working for reform, for example to develop models of restorative justice, to divert children from negative punishment and retribution to more positive and less stigmatising programmes.

This is all very welcome, but don’t we need to place these various reforms in a context of clear rights-based goals? Can’t we agree that we should not be criminalising children at all, that there is no place whatsoever for retribution in rights-based justice systems for children? Can’t we agree – as the World Report on Violence against Children recommended eight years ago, that children should only have their liberty restricted when detention is assessed as necessary because they pose a serious risk to public safety and security - and in those cases, the detention should not be in penal systems at all. We should not be locking up children as punishment or retribution at all.

CRIN’s discussion paper “Making children criminals” sets out in some detail the case for separating the concept of children’s “responsibility” from criminalisation. “Responsibility” is not a negative concept and it has to be investigated and acknowledged.

CRIN is not alone in advocating the adoption of this – inevitably long-term – goal. Back in 2003, the European Network of Children’s Ombudspersons – ENOC – issued a position statement. These children’s rights advocates were, I quote,  “concerned at the tone of political and media debate and the direction of public policy and legal changes concerning juvenile offenders in many of our countries”. And of course that could have been written today. 

ENOC went on to state – I quote: “We believe that the concepts of ‘responsibility’ and of ‘criminalisation’ need to be separated. The Convention on the Rights of the Child (CRC) proposes a separate, distinct system of juvenile justice; it requires that this must be focused on respect for all the rights of the child and on the aims of rehabilitation and reintegration. This focus and these aims are not compatible with ‘criminalising’ child offenders.

“We do believe that children should be held ‘responsible’ for their actions in line with the concept of evolving capacities and our strong advocacy for respect for children’s views in all aspects of their lives. It is essential to establish responsibility for crimes. Where responsibility is disputed, there has to be a formal process to determine responsibility in a manner which respects the rights of the alleged offender. But this process does not have to lead to criminalising children.”

My good friend Thomas Hammarberg, when he was Commissioner for Human Rights in the Council of Europe, promoted this policy goal in a paper in 2009: “It is in all our interests to stop making children criminals”. Thomas noted that the UN Guidelines for the Prevention of Juvenile Delinquency, adopted 19 years previously, still provide the right benchmark. I quote: “Labelling a young person as ‘deviant’ or ‘delinquent’ or ‘pre-delinquent’ often contributes to the development of a consistent pattern of undesirable behaviour by young people…”. And Thomas urged us “to move the debate on from fixing an arbitrary age for criminal responsibility. Governments should now look for a holistic solution to juvenile offending which does not criminalise children for their conduct.”

I took up this cause in my 2011 report of the Inter-American Commission on Human Rights, on “Juvenile Justice and Human Rights in the Americas”, when I was the Commission’s Special Rapporteur for the Rights of the Child.

Too many current policy statements and debates seek to raise minimum ages by a year or two, or “reduce” sentences of detention, without challenging either the criminalization of children, or the locking up of children as a punishment.

As we all experience, it is easy for politicians and elements in the media to scapegoat disenfranchised children, to build on the still persisting belief in original sin. But it is surely inexcusable that children’s rights advocates should be tempted into compromise, into allowing criminalisation and degrees of, if not total, retribution at 10, or 12, or 14, or 16: it is easy, but clearly wrong, to be intimidated from pursuing children’s human rights by the heat and tone of the anti-child debate.

As CRIN’s paper concludes: “Surely the children’s rights community now owes children strong and uncompromising advocacy to end their criminalisation? Of course this is not going to be achieved easily or quickly, but there is a need for a principled and fully rights-compliant target.”

Peter will expand on the arguments in a moment, but first I want to “launch” another publication being distributed at the Congress, which draws attention to one of the persisting and extreme barbarities of too many existing juvenile justice systems.

This report from the Global Initiative to End All Corporal Punishment, “Cruel, inhuman and degrading – ending corporal punishment in penal systems for children” tells us that there are still 38 States where juvenile offenders can be sentenced to be whipped, flogged or caned.

In another 67 States, children detained in penal institutions can lawfully be subjected to corporal punishment. This is so shocking – such gross violations of children’s rights actually authorized by these States’ laws.

The report also notes that the goal of universal prohibition of all corporal punishment of children, including in the home, is now in sight: 44 States with a complete ban – and I am glad my home country, Brazil, became the first very large state to adopt a ban last June. And another 45 States have made a clear commitment to this reform.

If we can achieve this rapidly accelerating progress in prohibiting violent punishment of children including in the private setting of the family, surely we can and must with renewed passion argue for an end, not simply to the direct violence of corporal punishment in penal systems, but the violence of criminalisation and of unnecessary, punitive locking up of children too?



    Please note that these reports are hosted by CRIN as a resource for Child Rights campaigners, researchers and other interested parties. Unless otherwise stated, they are not the work of CRIN and their inclusion in our database does not necessarily signify endorsement or agreement with their content by CRIN.