NGO BRIEFING: Statement from OMCT

Summary: Integrating the Rights of the Child in the work of the Special Procedures

Some examples of practices

HRC 7th SESSION – BRIEFING (11/03/2008)
CHILD PROTECTION CHALLENGES AND THE SPECIAL PROCEDURES SYSTEM

Cécile Trochu

I thank you very much Mr. Petit for organising this event and the discussion and for inviting me. The integration of the rights of the child in the Special Procedures not directly related to children is a very important issue for OMCT. In this regard, on behalf of my organisation, I am very happy to share views and thus contribute to improve child protection in the Special Procedures.

The thematic Special Procedures include a number of child-specific procedures, i.e. having the rights of the child in their mandates (Sale of children, SR on the impact of armed conflict on children). Many other procedures (both thematic and country) address other specific human rights issues and make reference to children’s rights in the context of their mandates.

Following are some examples of how the Special Procedures integrate the rights of the child in their mandate (Special Rapporteur on Torture and other CIDTP, Special Rapporteur on Violence against Women, its causes and consequences and the Independent Expert on the situation of HR in the DRC).

1) Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment

Annual reports: welcome but limited integration

At the beginning of the Procedure, the Special Rapporteur’s annual reports addressed questions related to the notion of torture as defined in article 1 of the UN Convention Against Torture and his reports focused mainly on state responsibility arising from sufferings inflicted by or with the consent of public officials. For instance, in 1988, the Rapporteur addressed the issue of children in detention together with adults. This vertical dimension of the definition left private acts of torture out of the Special Rapporteur’s mandate. As an exception, the authorities’ passive attitude (consent or acquiescence) regarding customs accepted in a number of countries like sexual mutilations and other traditional practices, was included within the State’s responsibility.

Because of the particular political period at that time (cold war, many dictatorships with harsh repression), one may say that the limited focus of the Special Rapporteur on Torture’s mandate prevented him from developing a special analysis related to children.

Since the 1990’s the growing awareness of the peculiar vulnerability of the child and developments of international law (notably the key concept of due diligence) led to stressing State’s obligations vis-à-vis the prohibition of torture. This crucial evolution engaged States’ responsibility even in cases where the violation was perpetrated by private persons, on condition that the State failed to take all appropriate measures to protect the child.

Thanks to these developments, while responding to a request by the Commission on Human Rights, the Special Rapporteur on Torture explained how the status of the child may affect the nature and consequences of the ill-treatments he or she suffers from. Indeed, in his 1996 annual report, the Rapporteur started with two important states of fact: 1) the fact that “children are generally subjected to particular forms of torture or ill-treatment applied uniquely to them in their status as children” and 2) the particular vulnerability of children “because they are in the critical stages of their physical and psychological development” and thus “may suffer graver consequences than similarly ill-treated adults”. Therefore, the Special Rapporteur included a separate comment on torture of children in that report.

Consequently, several times but not every year and to various extents, in his annual reports the Special Rapporteur on Torture has examined the causes and consequences of those situations in which children might be particularly exposed to torture. The analysis of the torture of children by the Special Rapoporteur has focused particularly on:
- Treatment of children in detention: as for the Special Rapporteur, all the places where children may be deprived of their liberty are included in his analysis and he has also expressly underlined that his freedom of inquiry implies unconditioned access to juvenile places of detention. Furthermore, the Special Rapporteur rightly identifies special needs of children deprived of their liberty, especially special judicial safeguards and special treatment and attention compared with adults.
- Corporal punishment of children: the Special Rapporteur includes all forms of corporal punishment that may occur in all environments including the private sphere. To him, when considering whether corporal punishment could amount to torture, one should not only take into account the serious physical and psychological injury but also the fateful impact on the development of the child.
- Conflict situations
The comment of the Special Rapporteur in his 1996 annual report is very important because he explained the specificity of child torture and why it should be treated carefully in his work. However, many issues related to child torture or other cruel, inhuman or degrading treatment or punishment remain unaddressed in his annual reports.

Fortunately, country visits and individual cases are further means of action through which children’s rights have been considered.

Summary of information and country visits

One should continue by stressing that children are addressed in different degrees in reports on country visits and summary of information.

The reports of the Special Rapporteur on individual cases regularly address child victims’ sufferings. For instance, in his last report to the HRC, the Special Rapporteur denounces cases where children are concerned in 13 countries. Children are mentioned whenever they are direct victims of torture or other CIDTP or indirect victims like children in detention with their mothers and children whom parents have been tortured, when they witness violations, etc. The Special Rapporteur also stresses children when they are part of a mass violation (ex: mass arrest of Tamils in Sri Lanka). This broad approach should be underlined, welcome and strengthened, also through further NGOs’ information.

The Special Rapporteur addresses children in his country visits’ reports to different extents. Looking at some reports since 2001, children’s rights varied from no reference to several specific parts dedicated to torture and other cruel, inhuman or degrading treatment of children in one report. Here, the consideration of children is much linked with the ability of national and local NGOs to inform the Special Rapporteur on occurrences of torture and ill-treatment of children in the visited country; showing how NGOs interface with the Special Procedures.

2) Special Rapporteur on Violence Against Women, its causes and consequences

The Special Rapporteur on Violence Against Women clearly includes the girl child in her mandate in all her reports, sometimes also mentioning particular violations to the girl child (as an example she regularly addressed violence against girls within the family, including incest, sex-selective abortions and female infanticide, early marriage, son preference, female genital mutilation). However, she has never provided an in-depth analysis of the causes and consequences of violence especially targeted against girls not only because of their gender but also due to their young age, in comparison with adult women. I believe it would be very helpful to have such an analysis in the future, maybe through collaboration with the SRSG on Violence against Children that should be appointed soon.

3) Independent expert on the situation of human rights in the Democratic Republic of Congo

Since he started his mandate in 2004, the Independent expert regularly addressed serious violations of child rights in DRC. His reports even include a separate part on the situation of children. In this regard, in his 2006 report, Mr. Pacéré stated that “the situation of children is a cause of major concern” and further acknowledged “there would seem to be no end to the tragic situation of children in the Democratic Republic of the Congo, which needs to be looked at from several angles, since children may be used in armed conflicts, abandoned on the streets, massacred, or accused of sorcery and of bringing their family bad luck”. The Independent Expert especially and repeatedly deals with sexual violence including rapes of girls either by state officials or in the private sphere (including the consequences borne by the victims), the continuing use of children in the conflict (including forced recruitment, training and reintegration of child soldiers) and massacres and other various severe abuses towards children by armed groups. Other issues have also been addressed like juvenile justice (including overuse of deprivation of liberty), forced marriage of young girls and consequences on their right to education. In his first report he even recommended to strengthen the child protection section of the MONUC. The Independent Expert rightly reaffirms that children are among those most affected by the widespread violence in the country.

Conclusion

In conclusion, the efforts of the Special Procedures integrating child rights’ particularity in their mandate are welcome. However, in order to improve child protection, I would suggest to evaluate systematically the “age” dimension in the causes and consequences of the violations and, especially to the Special Procedures which mandate do not expressly contain the rights of the child, to collaborate more closely with the so called “child rights procedures”. I also strongly believe that NGOs have an impulsive role to play: all NGOs and especially national and local child rights NGOs should strengthen their inputs to all Special Procedures.