Reports from the 7th Session of the Human Rights Council

Summary: This is a summary of the references to child rights contained within the reports of the Special Rapporteurs for the 7th Session of the Human Rights Council.

• Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
  Manfred Nowak, the Special Rapporteur, focused this year on strengthening the protection of women from torture. With this in mind, the Special Rapporteur referred to the specific needs in of women in detention which are often overlooked. They are often the sole or primary caregivers of young children and therefore frequently mention concern for their children as their biggest worry, especially at the initial stage of detention. Breastfeeding mothers are exposed to particular suffering when they are separated from their babies. Pregnant women should not be deprived of their liberty unless there are absolutely compelling reasons to do so and their particular vulnerability should be borne in mind. If they need to be detained, the quality and quantity of food and the medical care provided to pregnant women should meet their specific requirements. Measures of physical restraint should be avoided during delivery.

The Special Rapporteur also discussed Female genital mutilation (FGM). Like torture, female genital mutilation (FGM) involves the deliberate infliction of severe pain and suffering. The pain is usually exacerbated by the fact that the procedure is carried out with rudimentary tools and without anaesthetic. Many girls enter a state of shock induced by the extreme pain, psychological trauma and exhaustion from screaming. The procedure can result in death through severe bleeding leading to haemorrhagic shock, neurogenic shock as a result of pain and trauma, and overwhelming infection and septicaemia. Other immediate medical complications include ulceration of the genital region, injury to adjacent tissues and urine retention. Although the scientific research addressing the psychological consequences of FGM is limited, some studies have found an increased likelihood of fear of sexual intercourse, post-traumatic stress disorder, anxiety, depression and memory loss, and that the cultural significance of the practice might not protect against psychological complications.

The pain inflicted by FGM does not stop with the initial procedure, but often continues as ongoing torture throughout a woman’s life. Depending on the type and severity of the procedure performed, women may experience long-term consequences such as chronic infections, tumours, abscesses, cysts, infertility, excessive growth of scar tissue, increased risk of HIV/AIDS infection, hepatitis and other blood-borne diseases, damage to the urethra resulting in urinary incontinence, painful menstruation, painful sexual intercourse and other sexual dysfunctions. FGM increases the risk for both mother and child during childbirth, including higher incidences of caesarean section and post-partum haemorrhage. In addition, women who have been infibulated have to be deinfibulated upon marriage, and later again during childbirth, hence causing further pain and psychological trauma.

With regard to the element of powerlessness it must be noted that the cutting is usually carried out before a girl’s tenth birthday. In such circumstances, girls are clearly under the complete control of their parents and communities and do not have the possibility of resisting. On the other hand, adolescent girls and women very often agree to undergo FGM because they fear the non-acceptance of their communities, families and peers.

It is clear that even if a law authorizes the practice, any act of FGM would amount to torture and the existence of the law by itself would constitute consent or acquiescence by the State. The “medicalisation” of FGM, whereby girls are cut by trained personnel rather than by traditional practitioners is on the rise in some African countries. The Special Rapporteur stresses that from a human rights perspective, medicalisation does not in any way make the practice more acceptable. Even in contexts where FGM has been recognized as a criminal offence, but where public hospitals offer this “service”, it constitutes torture or ill-treatment. Also in cases where FGM is performed in private clinics and physicians carrying out the procedure are not being prosecuted, the State de facto consents to the practice and is therefore accountable.

Many special procedures have found that female genital mutilation may constitute torture and that States have the responsibility to take all the necessary measures to eradicate it. The Special Rapporteur on torture considers FGM a violation falling within his mandate, and has welcomed the adoption of legislation prohibiting female genital mutilation after his visits to Nigeria and Togo in 2007, but regretted at the same time that the practice and social acceptance of female genital mutilation persist, and that effective mechanisms to enforce prohibition are absent. The Committee against Torture has expressed concern regarding the lack of domestic legislation outlawing female genital mutilation in specific countries. Furthermore, the HumanRights Committee has stated that female genital mutilation is in breach of article 7 of the ICCPR and has raised concerns regarding its persistence.

UNHCR has stated that “FGM, which causes severe pain as well as permanent physical harm, amounts to a violation of human rights, including the rights of the child, and can be regarded as persecution. The toleration of these acts by the authorities, or the unwillingness of the authorities to provide protection against them, amounts to official acquiescence. Therefore, awoman can be considered as a refugee if she or her daughters fear being compelled to undergo FGM against their will; or, she fears persecution for refusing to undergo or to allow her daughters to undergo the practice.” In the refugee context it has also been found that FGM amounts to “continuing and permanent persecution”.

Non-refoulement
A gendered aspect of non-refoulement is the argument used with regard to the risk of women to be subjected to FGM, that there is a possibility of “internal flight”, meaning women can return and live safely in another part of the country. In particular in gender-based refugee claims, the lack of State protection in one part of the country is often an indication that the State is also not able or willing to protect the woman or girl in any other part of the country. Furthermore, if the woman or girl relocates, for example from a rural to an urban area to avoid FGM, the protection risks in the place of relocation would have to be carefully assessed.

• Report of the Working Group on Arbitrary Detention
  During the period 9 November 2006 to 30 November 2007, the Group transmitted urgent appeals concerning 1,344 individuals, including 119 boys and 4 girls, to 55 Governments.

  Groups in detention which are susceptible to sexual abuse:
  The Working Group is aware that certain vulnerable groups of detainees and prisoners are specifically susceptible to sexual violence by co-inmates and prison staff, including young women and minors. The Working Group has made observations relating to this particularly disturbing trend during some of its country missions. It has received credible information that women and minors are subjected to sexual exploitation and abuse by prison staff or by their co-inmates in detention facilities. From its experience, the Working Group can verify that when juveniles are detained together with adults they are almost systematically subject to sexual abuse. It is a serious issue of concern and a particularly contemptible form of corruption when even release from custody may depend on providing sexual favours to the police, immigration officers or prison authorities.

  In this context the Working Group reiterates the obligation of States to protect those who are held in their custody from assaults and abuses by fellow detainees. It is imperative to allocate entirely separate premises to women in institutions which receive both men and women, if it is not possible to detain women in separate institutions, and to keep young prisoners separate from adults as, for example, envisaged by paragraph 8 of the Standard Minimum Rules for the Treatment of Prisoners.

  The Working Group deplores the situation of vulnerable groups in detention susceptible to sexual abuse by co-inmates and correctional services staff. It reminds States of their duty to protect and the necessity of a functioning penitentiary system, with well-trained staff to prevent such abuses and no impunity from prosecution.

  As to vulnerable groups in detention which are susceptible to sexual abuse, the Working Group makes the following recommendations:

• States in which sexual abuse of detainees by fellow inmates or by State authorities is reported should take measures as a matter of urgency to ensure that juveniles are held separate from adults and women separate from men. Custodians of female prisoners should be women.
• States should organise their penitentiary systems in such a way as to guarantee that sexual abuses in detention do not occur. This includes appropriate training of detention facility staff.
• Victims of such abuses should enjoy access to an effective complaints procedure before an independent oversight body with decision taking powers.
• States should take the necessary steps to make sure that impunity for sexual abuse does not prevail.

• Report of the Special Rapporteur on the right to food
  The Special Rapporteur, Jean Ziegler, observed that despite real advances in different countries, such as the People’s Republic of China, India, South Africa, and several Latin American and Caribbean countries, there has been little progress overall in reducing the number of victims of hunger and malnutrition around the world. Every five seconds, a child under 10 dies from hunger and malnutrition-related diseases.

  The world already produces enough food to feed the entire global population, yet millions go to bed hungry at night. Millions of children still go without enough adequate food each day, without sufficient macro and micronutrients, condemning them to stunted physical growth and intellectual development.

  In outlining the recent developments concerning the right to food, the Special Rapporteur applauded the Philippines Supreme Court’s recent decision to lift its temporary restraining order on the Revised Implementing Rules and Regulations (RIRR) for the marketing of baby foods introduced by the Ministry of Health. Although the Court has not endorsed a total ban on the marketing of breast milk substitutes, it has reaffirmed Government’s primary role to regulate, screen and decide on the advertising and promotional materials of these products. In addition, the Court has asserted that the International Milk Code of Marketing of Breast‑milk Substitutes must also protect and promote the nourishment of children above 12 months old, contrary to the companies’ claim that its coverage is limited to children between 0 and 12 months of age.

  The Special Rapporteur continues to be deeply concerned about the food crises that currently threaten the lives of millions of people across southern Africa. The Special Rapporteur is particularly concerned that funding shortfalls are forcing WFP to scale back operations across the region. In Zambia, WFP must reduce food assistance to 500,000 vulnerable children, widows, orphans and HIV/AIDS patients. In Namibia, WFP has cut rations to 90,000 orphans and vulnerable children, jeopardizing their access to sufficient food.

  The Special Rapporteur believes that the profound internal contradictions within the international community are a key obstacle to the realization of the right to food. On the one hand, United Nations agencies such as FAO, WFP, the United Nations Development Programme (UNDP) and the United Nations Children’s Fund (UNICEF) emphasize social justice and human rights and do excellent work in promoting the right to food, for example as evidenced by the FAO’s Right to Food Guidelines. On the other hand, the Bretton Woods institutions, along with the Government of the United States of America and the World Trade Organization, refuse to recognize the mere existence of a human right to food and impose on the most vulnerable States the “Washington Consensus” emphasizing liberalization, deregulation, privatization and the compression of State domestic budgets, a model which in many cases produces greater inequalities.

  The Special Rapporteur believes that his two missions to Niger showed clearly how the market-based paradigm of development, largely imposed by IMF and the World Bank, has been harmful to food security for the most vulnerable. Cost-recovery policies in health centres, for instance, mean that many poor children are not being treated for malnutrition.

  New scientific evidence in nutrition calls for a “life-cycle” approach to nutrition which recognizes the intergenerational links in nutritional status. Underweight and malnourished mothers are more likely to give birth to underweight babies, whose mental and physical capacities may be severely stunted. Régis Debray has called these children “crucified at birth”. These children may never recover and in turn have malnourished babies, passing hunger on through the generations.

  In Guatemala, where the Government has made a major effort to change the situation, it is still clear that indigenous peoples face much higher levels of poverty and malnutrition than the rest of the population. Whereas half of all Guatemalan children under 5 are stunted, malnutrition is much higher amongst indigenous children, with 70 per cent displaying stunted growth as compared with36per cent of non-indigenous children.

• Report of the Special Rapporteur on violence against women, its causes and consequence
  The Special Rapporteur, Yakin Ertürk, remarked that in order to monitor state compliance with the Convention on the Elimination of all forms of Discrimination Against Women and to address violence against women, data from each country needs to be gathered systematically, categorised and published. However, there is a remarkable lack of information relating to women and girls, and there are no universally agreed international benchmarks or indicators for this. The Special Rapporteur has used this report to make proposals, guided by human rights standards, for indicators to measure violence against women and girls.

  An important development in research on female genital mutilation was the transnational agreement reached on a definition that in turn permitted more accurate documentation and new approaches to estimating prevalence in diasporic communities. The World Health Organization (WHO) multi-country study on intimate partner violence contains a series of questions addressing forced, child and early marriage.

  The Special Rapporteur also suggested that there was a need to move from immediate and health-based measures to cover how violence narrows women’s and girls’ enjoyment of fundamental rights and freedoms in public and private life, including with respect to social inclusion and livelihoods.

  A new sub-category was proposed by the Special Rapporteur of grave violence against women, which would include any incident of rape/serious sexual assault/sexual coercion in childhood or adulthood, female genital mutilation, child/forced marriage, trafficking and sexual exploitation.

  The Special Rapporteur recommended that, just as shelters are provided for women escaping a violent partner, so too should they exist for girls and young women escaping, for example, sexual abuse, forced marriage, female genital mutilation and sexual exploitation, and for trafficking victims across or within borders.

• Report submitted by the Special Rapporteur on the sale of children, child prostitution and child pornography
  This report of the Special Rapporteur marks the end of the reporting cycle of his mandate. As a result, this report recapitulates the different issues since 2002 in order to highlight the achievements and accomplishments of the mandate.

  The full report can be accessed here.

• Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
  The Special Rapporteur, Paul Hunt, reiterated the need for states to provide access to health that is non-discriminatory and is responsive to the particular needs of children and adolescents.

• Report of the Special Rapporteur on the human rights of migrants
  The Special Rapporteur, Jorge Bustamante, said that migrants are particularly vulnerable to detention or deprivation of liberty. This detention can often be prolonged and the detainees are often ill-treated. There has often been a lack of attention to the specific needs of children, women, asylum seekers and other vulnerable groups.

  The Special Rapporteur observed the continued abuse of irregular migrants who are involved, whether deliberately or inadvertently, in smuggling and trafficking operations. The Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, and the Protocol against the Smuggling of Migrants by Land, Sea and Air, both supplementing the United Nations Convention against Transnational Crime, contain a saving clause providing for the continued application of human rights, humanitarian law, and, where applicable, refugee law. But, while these branches of law continue to apply to irregular migrants, in practice such migrants continue to be vulnerable to exploitation and abuse due to their lack of legal status in a country. The purposes of the Smuggling Protocol are to prevent and combat the smuggling of migrants, and promote cooperation among States parties to that end, while protecting the rights of migrants. In particular, it calls for special protection of migrants in the context of the right to life, the right not to be subject to torture or other cruel, inhumane and degrading treatment, as well as draws attention to the special needs of women and children.

  The Special Rapporteur recommends that:

•  States should incorporate the applicable human rights framework into their bilateral and regional arrangements for managing migration flows and protecting national security interests. Specific attention should be paid to detainees, smuggled migrants, victims of trafficking, children, women, asylum seekers and other vulnerable groups.
• States should take measures to inform potential migrants about the risks associated with smuggling and trafficking operations, as well as the rights afforded to migrants even if in an irregular situation, particularly if detention is used. Particular attention should be paid to the gender specific stigmatization associated with irregular migration and to the exploitation of children in all forms.

• Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non‑discrimination in this context
  The Special Rapporteur, Miloon Kothari, in discussing forced evictions, emphasised how these have particularly adverse effects on children. In order to give States and the international community practical tools to prevent the violation of the right to adequate housing as a consequence of forced evictions due to development projects, the Special Rapporteur presented a set of Basic principles and guidelines on development‑based evictions and displacement to the Human Rights Council in his preceding report. The guidelines offer several new prescriptions, including, amongst others: the need for States to conduct comprehensive impact assessments in advance of evictions that take into account their differential impact on women, children and other vulnerable groups.

  The Special Rapporteur showed how the consequences of inadequate or no access to water are particularly devastating for women and children. When water is not readily available, they are the ones that have to spend a large amount of time finding and fetching it. Lack of sanitation facilities affects both men and women, but sanitation needs and demands differ with gender. Women have particular privacy, dignity and personal safety needs and concerns. The lack of sanitation facilities at home can often force women and girls to use secluded places outside, exposing them to the risk of sexual abuse.

  Children and adequate housing
  Since his first report, the Special Rapporteur has drawn the attention of the international community to the integral link between children’s housing rights and living conditions and their cognitive, physical, cultural, emotional and social development, particularly as children are disproportionately vulnerable to the negative effects of inadequate and insecure living conditions. A house must be perceived as a home, a stable point in a child’s life she/he can return to with a sense of safety and security.

  Numerous reports have documented an increase in the number of homeless children around the world and the plight of children living in distressed housing. This is reflected in the conditions and circumstances of children living in slum and squatter settlements, on streets and other perilous locations, and in shelters made of hazardous materials. The situation of children living in especially difficult circumstances requires special and urgent attention. These include: children with physical and mental disabilities; victims of natural and human‑made disasters; refugee children; street children; slum and migrant children; orphans and destitute children; children affected by HIV/AIDS (including children of parents with HIV/AIDS and AIDS orphans as well as those infected); child prostitutes; children of sex workers; children in conflict with the law; and child labourers.

  In accordance with the provisions of article 20 of the Convention on the Rights of the Child, the Special Rapporteur has recommended that States should ensure that “no child will be subjected to discrimination with regard to his or her right to adequate housing on the grounds of his or her parents’ race, colour, national or ethnic origin, sex, property or other status, and that special protection and assistance be provided to children living in the streets and those temporarily or permanently deprived of a family environment.”

  Throughout his work, the Special Rapporteur has identified a number of groups that need particular attention and protection in regard to the right to adequate housing. These groups include inter alia: persons with disabilities and/or health problems (including persons with complex needs such as those affected by HIV/AIDS or psychosocial disabilities and those critically ill); refugees and asylum‑seekers; prisoners and persons released from detention; victims of domestic abuse and violence; and orphans.

  The Special Rapporteur calls upon all States and concerned parties to address the deteriorating global state of housing and homelessness of children around the world and make it a priority concern requiring urgent action. He recommends that the Council:

• Urge the next Special Rapporteur on adequate housing to continue close collaboration with the Committee on the Rights of the Child, in particular in view of the possible preparation of a general comment which may address issues such as the link between violence and the child’s right to adequate housing, the safety of children at home, and the impact of evictions on children;
• Request the next Special Rapporteur on adequate housing to analyse the impact of inadequate housing on children and their human rights, and establish specific recommendations in this regard, including policy measures to mitigate the psychological impact of evictions and other violations of the right to adequate housing on children.

• Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967
  The Special Rapporteur, John Dugard, observed that Gaza’s children in UNRWA schools lag behind refugee children elsewhere, according to UNRWA, as a result of the Israeli blockade and military violence. Students are prevented from studying abroad. In November 670 students were denied permission to study abroad, including six Fulbright scholars.

  At present, there are some 11,000 prisoners in Israeli jails, a number which includes 376 children. To make matters worse, prisoners are subjected to humiliating and degrading treatment. The treatment of children is disturbing. According to Defence for Children International (Palestine Section), children are on average detained for between 8 to 21 days before being brought to court; denied the presence of a parent or lawyer during interrogation; cursed, threatened, beaten and kept in solitary confinement during interrogation.

• Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance
  The Special Rapporteur, Doudou Diène, expressed his continued concern about the treatment of immigrants, refugees and asylum seekers in waiting areas in airports, ports, and stations in many countries. These groups are often subject to physical violence, racist remarks, unsanitary conditions, and lack of sufficient protection for women and children.

  In discussing racial discrimination related to the caste system, the Special Rapporteur discussed the multiple discrimination faced by girls, ranging from sexual exploitation to forced prostitution. These examples of double discrimination has already been recognised by Durban Declaration and Programme of Action, which states that, "Racism, racial discrimination, xenophobia and related intolerance reveal themselves in a differentiated manner for women and girls, and can be among the factors leading to a deterioration in their living conditions, poverty, violence, multiple forms of discrimination, and the limitation or denial of their human rights." Significant legal, judicial and educational efforts, coupled with strong political will, are required to put an end to this form of discrimination.    

• Report of the Special Rapporteur on the adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights
  The Special Rapporteur, Okechukwu Ibeanu, reported that the movement of hazardous wastes and products across the globe, and particularly from developed to developing countries, has continued to flourish, often without appropriate safeguards, despite international standards and norms which prohibit dumping or illicit movements. Because of structural conditions in many developing countries, women and the young are particularly at risk from transfers of toxic and dangerous products and wastes. Women, children and the young are often among the poorest and therefore likely to work in polluting industries and scavenge dumps of waste for reusable materials. They are also most likely to have limited access to information on waste products and to health facilities in the event of contamination. The Special Rapporteur calls for greater global attention to the gender and age dimensions of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights.

  While the Special Rapporteur acknowledges that developing countries are sometimes left with little choice owing to developmental needs and situations of poverty, both developing and developed States need to find alternative solutions to the trade of toxic wastes and dangerous products. Although the income generated by such trade is very attractive, States need to take into account the future costs and long-term consequences of environmental degradation, as well as their obligation to save future generations from a multitude of health problems. The Special Rapporteur is particularly concerned about the consequences of these health problems for women and young persons and appeals to States to put in place adequate means for their protection.

• The Secretary-General’s study on the question of violence against children
  This note provides information on events and activities undertaken in 2007 as follow-up to the final report of the Secretary-General on the study on violence against children presented to the sixty-first session of the General Assembly.

  The full document can be found here.

Further Information

• Human Rights Council Session 7
• CRIN's news page on the Human Rights Council

Owner: Catherine Westonpdf: http://www.crin.org/docs/HumanRightsCouncil7update.doc