After the UN Study what next? A discussion paper on possible outcomes of the UN Study on Violence against Children

Transcription

1 After the UN Study what next? A discussion paper on possible outcomes of the UN Study on Violence against Children

2 Save the Children fights for children s rights. We deliver immediate and lasting improvements to children s lives worldwide. Save the Children works for: a world which respects and values each child a world which listens to children and learns a world where all children have hope and opportunity 2004 Save the Children Code no: 3059 Author: Jennifer Philpot-Nissen Project coordinator: Helena Gezelius, Eva Åhlén Production management: Anna-Carin Carlsson Graphic: Ulla Ståhl Save the Children Sweden Stockholm Sweden Phone: Fax: info@rb.se

3 Contents Introduction 5 1. A new UN Special Mechanism to Address Violence against Children 6 a) The case for and against a new mechanism 6 b) How such a mechanism could operate 9 c) The potential impact of a new mechanism 11 d) Lessons from existing mechanisms Potential Developments in International Law to Protect 18 Children from Violence a) Protection from violence under the Convention on the 18 Rights of the Child b) A new General Comment of the Committee on the 18 Rights of the Child c) A third Optional Protocol to the Convention on the 19 Rights of the Child 3. The Mainstreaming of Children s Concerns through Existing 21 Human Rights Mechanisms and Bodies 4. Attention to the Issue of Violence against Children by a Broader 23 Range of International Bodies 5. Practical Outcomes from the Study 25 a) Training materials for those working with children 25 b) Improved data collection Achieving a Global Perspective on the Issue of 27 Violence against Children Summary of recommendations to NGOs Discussion Points 28 Notes 30

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5 Introduction On 12 February 2003, United Nations Secretary-General Kofi Annan appointed Paulo Sergio Pinheiro of Brazil as the Independent Expert to lead the UN study on Violence against Children. The purpose of the Study is to provide an in-depth picture of the prevalence, nature and causes of violence against children. It will put forward recommendations for consideration by Member States, the UN system and civil society for appropriate action, including effective remedies and preventive and rehabilitative measures at the national and international levels. This paper will consider a number of possible outcomes to the Study at the international level, reviewing calls made by NGOs for a new special mechanism, and will review the effect and impact of the UN s treatment of other related thematic human rights issues. This paper is intended to serve as a background document to initiate a discussion on possible outcomes early in the process of the Study, as was suggested by NGOs participating in the Machel study on the impact of armed conflict upon children. Certain outcomes such as those connected with budgetary requirements, and issues such as the need to ensure child participation have not been considered in this paper, but ideally would need to be addressed from the outset. 5

6 1. A new UN Special Mechanism to Address Violence against Children a) The case for and against a new mechanism Since 1967, special mechanisms have been created by the UN to examine specific themes or country situations from a human rights perspective. Experts are mandated to these mechanisms, usually appointed by the UN Commission on Human Rights (CHR). These experts now constitute what are now known as the UN human rights special procedures mechanisms, and are referred to as Special Rapporteurs, Independent Experts, and if involving more than one individual, they are a Working group. Similarly, there are also Special Representatives, the difference being that these individuals are appointed by the Secretary-General of the UN. These human rights experts seek to bring the attention of the international community to particular issues of concern. Most experts research and study issues of concern, carry out country visits, receive and consider complaints from victims of human rights violations, and intervene with governments on their behalf. In some cases the experts also recommend programmes of technical cooperation. 1 A number of NGOs, led by the OMCT (the World Organisation against Torture) have called for the creation, either by the CHR or the General Assembly (GA), of a new special procedures mechanism to address violence against children in an ongoing manner. In 2001 the OMCT held an international conference in Tampere, Finland, on Children, Torture and other forms of Violence 2. This paper will revisit some of the proposals made at that time, which culminated in the Tampere Declaration, and acknowledges the work done by the OMCT in this regard. The main arguments in favour of a new mechanism relate to the limitations of the Committee on the Rights of the Child as a monitoring body, and the boundaries of existing special mechanisms. Limitations of the Committee on the Rights of the Child The mandate of the Committee is limited to examining States Parties reports on the implementation of the Convention and its two Optional Protocols. The Committee currently does not have a mandate to carry out in-depth investigations into specific situations or to examine individual complaints. 6

7 Boundaries of other thematic mandates Relevant special procedures mechanisms with a mandate to carry out investigations and potentially address individual complaints do exist. Two of these mechanisms were created specifically to address children s concerns the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography (Special Rapporteur on the Sale of children), and the Special Representative of the Secretary-General (SRSG) for Children and Armed Conflict. Violence against girls is an important concern of the Special Rapporteur on Violence against Women, including its Causes and Consequences. Other mechanisms regularly focus upon children s concerns. The Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions (Special Rapporteur on Executions) systematically appeals to governments when she is informed of scheduled executions of individuals for crimes committed when they were children. However, certain forms of violence suffered by children do not appear to fall squarely within the boundaries of existing mandates, for example bullying, neglect, some types of corporal punishment and certain instances of violence against boys, and accordingly violations of this nature are rarely addressed to them. Certain holders of existing mandates have interpreted their mandates broadly which has had the effect of filling some of the gaps, for example the Special Rapporteur on the Sale of children, who since 2001 has acted upon information alleging non-commercial sexual abuse. The Special Rapporteur on Torture has declared that extreme forms of abuse and neglect in institutions could fall within his mandate. However, the workload already generated by a classical interpretation of their given mandates does not really allow the mandate holders to go far beyond the core elements. The establishment of a new special mechanism on violence against children is an important proposal, but certain concerns and constraints must also be considered. Appointed experts are usually volunteers The individuals appointed to these mandates do not normally become staff members of the UN, and as such do not receive salaries or any other remuneration from the UN. There are exceptions, and certain Special Representatives and Independent Experts may be remunerated for their work depending on the terms which are negotiated at the time of their appointment. 3 Experts may be academics, lawyers or from other professions, often already working in full time demanding jobs with very limited time to dedicate to the mandate. 7

8 Appointments can be very political Although governments and NGOs are invited to propose candidates to these posts, the ultimate decision as to the nomination is made by the chairman of the CHR (for Special Rapporteurs) or by the Secretary-General (for Special Representatives and some Independent Experts). Accordingly, and particularly where the decision is made by the chair of the CHR, the appointment of a certain individual to a mandate can be more related to his or her nationality than particular expertise in the given area. There is no guarantee that the individual nominated to a post of Special Rapporteur on Violence against Children would actually have an in-depth knowledge on the issues at stake. Experts have very limited and often sporadic assistance The experts are normally assisted by the UN Office of the High Commissioner for Human Rights (OHCHR), which in turn relies upon voluntary contributions to implement approximately two-thirds of the activities and programmes required of it. Accordingly, the OHCHR normally has the resources to enable the mandate holder to carry out two or three country visits each year, and supply an average of one full time junior level staff member to assist the mandate holder. Certain mandates may get more assistance, particularly those which receive many individual cases and send many urgent appeals, for example the Special Rapporteurs on Executions and on Torture. Some experts also receive the assistance of academic institutions, including research institutes and similar bodies, which provide support to particular targeted thematic mandates, for example the US-based Brookings Institute, which supports the Special Representative on Internally Displaced Persons. Such support often involves organising workshops and conferences around a particular issue of concern, with the institution usually doing the logistical preparations and often financing much of the travel costs. Occasionally, such institutions also provide personnel resources to particular mandates. The mandate holder solicits such support and the institution then offers to recruit and finance a junior level person to work on the mandate for a period of between 6 months and one year. The support provided by academic and research institutions is extremely valuable, however mandate holders are often reluctant to accept too much assistance from these sources to avoid perceptions of a lack of independence. However, the extent of support given to any particular mandate may also have political constraints. Certain governments might provide a Junior Professional Officer (JPO) to work in the OHCHR, with a particular stipulation as to which mandate that person works on. 4 In some cases, extra support might be provided one year to the fashionable issue in human rights at that time, but this support might be channeled elsewhere the following year when another issue gains more international attention. The very sporadic nature of this kind of support makes long term planning of activities very difficult. 8

9 Existing mandates are not being used to their full potential The heavy workload given to a thematic mandate holder who is expected to consider his given concern in a global context has been referred to, but it must also be noted that existing mandates are not being fully utilized to address children s concerns. Most categories of violations against children could in fact legitimately be addressed to existing mechanisms. However, very few organizations regularly submit cases involving children to the relevant mandates, even where certain mandate holders have highlighted the effect on children of the violation of their mandate. The Special Rapporteur on Torture included a study on torture and children in report to the General Assembly (GA) in , and participated in the Committee on the Rights of the Child s Day of General Discussion on State Violence against Children, also in However, the OMCT is the only organisation to regularly submit cases to the Special Rapporteur involving torture of children. Similarly, the Special Rapporteur on Summary, Arbitrary and Extra-judicial Executions has made children a particular focus of her work, carrying out visits to Honduras in 2001 to investigate allegations of extrajudicial executions of a large number of street children 6 but only regularly receives allegations involving street children from Casa Alianza. The creation of a mandate is an important, but still only small part of the solution When a new special mandate is created, there is sometimes the sense that at the international level, the solution to the issue has been found and that attention can now be focused upon other issues. Some governments appear to consider that by supporting a resolution to create such a mechanism, their responsibilities are now fulfilled. On the other hand, some organisations and individuals, unaware of the very limited conditions under which the mandate will operate, may initially have very high expectations and potentially overload the expert with information and requests. When the constraints of the mandate become apparent, the mechanism is then at risk of being almost completely discounted and considered unable to contribute to global efforts in any manner. b) How such a mechanism could operate Requirements of the creating resolution New mandates are established by resolutions, normally of the CHR or the GA, which may use either very general language as to how the mandate will be interpreted, or may be quite specific as to the required activities of the mandate holder. 7 A mandate for a Special Rapporteur on violence against children could be created with a specific 9

10 instruction that he or she examine individual complaints. 8 However, even if the language of the creating resolution does not specify such activities, the mandate holder is not normally precluded from using such methods. Most mandates are in fact created broadly and it is to the discretion of the mandate holder as to how these should be interpreted and what issues should be addressed. The essential element of NGO input As previously noted, a mandate holder who is prepared to address individual complaints can only succeed in this endeavour if NGOs and other organizations, including UN agencies, are prepared to submit information about individual cases to him or her. In 2001, the new Special Rapporteur on the Sale of children, Juan Miguel Petit announced his intention that he was prepared to receive and act upon individual complaints. An information form was annexed to his first report to the CHR, to facilitate the submission of cases. 9 However, 3 years later, only one child rights organization, Casa Alianza, has regularly sent him information concerning relevant violations of children s rights. Individuals, often who have learnt about the Special Rapporteur following a country visit, are usually prepared to submit information about their own situations, but without the assistance of an NGO to explain how the mechanism works and what information is necessary, the information submitted is often of little use to the Special Rapporteur, sometimes resulting in a long-running exchange of communication in order to establish the basic facts. Many individuals then follow up the submission of their details with frequent phone calls to the mandate holder or assistant to enquire how the case is progressing. In some instances the contact between the Special Rapporteur s assistant and a concerned individual has become so time-consuming as to affect the daily running of the mandate. However, it seems that few organizations are prepared to submit cases on a systematic basis, often for very understandable reasons. Many of them work in highly sensitive and politically dangerous environments, providing aid and relief to communities which would otherwise have no access to any humanitarian assistance. For such organizations to then begin sending reports of human rights abuses to international mechanisms could jeopardize their very presence, if not the lives of their staff in the affected area. In other cases, organizations do not report to the international human rights mechanisms because they are either unaware of their existence, their methods of work, or of the potential assistance that an intervention by a mechanism could have. 10

11 OHCHR and individual complaints Despite the limited assistance available to the special procedures mandates holders, their capacity to deal with individual complaints has been vastly enhanced by developments in the OHCHR. A thematic database has been created to facilitate the creation of urgent appeals and letters of allegation. Provided that the allegations received are coherent, within the mechanism s mandate, and received from a reliable source, a summary of the details can be entered into the database and a full letter can be quickly generated and dispatched to the relevant government the same day. When the allegations are received from an unfamiliar source, efforts are usually made to contact the source directly before action is taken. c) The potential impact of a new mechanism Depending on the instructions given in the creating resolution, the mandate holder dealing with violence against children would report annually to the CHR and perhaps also to the GA. In these reports, situations of particular concern would be highlighted, particular violations suffered by named individuals might also be included and recommendations would be made for the amelioration of the situations described. Careful consideration, especially regarding the nature of abuse suffered, would need to be given to the naming of child victims in a public document. The particular impact of the mandate holder s work would however ultimately depend on how governments, civil society and the international community react to the mandate holder s findings and recommendations. Unlike complaints to the four treaty monitoring committees which have competence to receive such complaints, the mandate holder would not necessarily need to wait until all domestic remedies have been exhausted before making an intervention, when the protection of a child from violence is at stake. The activities and impact of three special mechanisms which are particularly relevant to the issue of violence against children and which have been in operation for several years are outlined below. d) Lessons from existing mechanisms The Special Rapporteur on Violence against women, including its causes and consequences (currently Ms. Yakin Ertürk (Turkey) ) The mandate of the Special Rapporteur on Violence against women was created in 1994 by the CHR following more than a decade of activism by women s groups to 11

12 impress upon the international community that violence against women was a universal harm that required international standard-setting and scrutiny. When the post of Special Rapporteur was created in 1994, violence against women was widespread and unchallenged. International women s groups lobbied Governments to place violence against women during armed conflict and by the State; in the family, such as domestic violence and cultural practices; and in the community, such as rape, sexual harassment, religious extremism and trafficking, on the international agenda. All these concerns became part of the Special Rapporteur s mandate. 10 Developments since the creation of the mandate Developments concerning violence against women since the creation of the mandate were reported to the Commission on Human Rights at its 59 th session in , when the first Special Rapporteur, Radhika Coomaraswamy ended nine years as mandate holder. At the international level, these developments included the Fourth World Conference on Women held in Beijing in 1995, which had made violence against women the centrepiece of its Platform for Action. The Optional Protocol to the Convention on the Elimination of Discrimination against Women had entered into force in 2000, entitling the Committee on the Elimination of Discrimination against Women to consider petitions from individual women or groups of women who have exhausted national remedies. It also entitles the Committee to conduct inquiries into grave or systematic violations of the Convention. At the regional level, declarations and conventions advancing women s rights were signed and adopted, and regional Special Rapporteurs on women s rights were established. The report also outlines a number of developments with regard to the specific thematic areas of the mandate, namely violence against women in armed conflict, violence in the family, sexual violence and rape, sexual harassment, trafficking, religious extremism and harmful traditional practices. In conclusion, the report states that a survey of international, regional and national developments shows that regions and countries have undertaken law reform and initiated measures to promote and protect women s rights. There had been great advances in standard-setting, and at the regional level, consensus on the need to recognize the gravity of the problem and to take steps to eradicate it had been demonstrated. Numerous declarations, resolutions, guidelines and principles now exist at the international and regional levels. However, the report also went on to state that despite the successes in awareness-raising and standard-setting, very little has changed in the lives of most women. A few women have benefited from these changes, but for the vast majority violence against women remains a taboo issue, invisible in society and a shameful fact of life. Statistics continue to show high rates of violence and abuse. Most cases of violence against women result in impunity for the perpetrators, which fuels the perpetuation of this grave violation. More must be done to provide equal access to effective judicial protection and guarantees

13 The impact of the work of the Special Rapporteur It is difficult to measure the particular impact that the Special Rapporteur had in contributing to the international and regional developments outlined above, but the value of her consistent calls for the highest possible standards in the protection of women from violence, through her annual reports, participation in international conferences and workshops, and guidance as to interpretation of international standards within regional and national standard setting processes must be recognised as a major driving force contributing to these developments. It is perhaps easier to measure the impact of the Special Rapporteur s contribution to developments in particular countries following a visit. Each of the mandate holders normally carry out two or three such visits each year, and report on their findings to the following session of the CHR. During such visits, the Special Rapporteurs meet with relevant Government bodies, NGOs, UN agencies, academics, victims and any others with information about relevant concerns in the country. The Special Rapporteur visited Indonesia from 20 November to 4 December 1998 to study the issue of violence against women as perpetrated or condoned by the State. In her report to the CHR in , she reported that the Indonesian National Commission on Violence against Women had advised her that her visit had increased the visibility of women s efforts to eliminate violence against women and strengthened women s organizations networking. Following her recommendations, women s crisis centres were established. In 2000, an Integrated Crisis Centre was created in the main national teaching hospital in Jakarta. The Department of Health, in cooperation with the World Health Organization, provides capacity building programmes to enhance the capacity of local health centres to deal with women who are victims of violence. By 2002, the police stations of 19 provinces established 163 police women s desks. The Department of Social Affairs has created a special directorate to help victims of violence and migrant workers. The State Ministry on Women s Empowerment referred to the recommendations made by the Special Rapporteur in her report to Commission in 1999 in formulating and launching its zero tolerance policy on violence against women. 14 The Special Rapporteur visited Colombia in November 2001 to investigate, assess and report on the impact of the conflict on the human rights of women. 15 Following her visit, the UN country team decided to address violence against women as a priority for its work. The Special Rapporteur on the Sale of children, child prostitution and child pornography (currently Mr Juan Miguel Petit (Uruguay) ) The mandate of this Special Rapporteur was created by CHR resolution 68 of 1990, a few months after the GA adopted the Convention on the Rights of the Child. The creation of this mandate was a result of a growth in international awareness of child rights generally, but more specifically in awareness about commercial sexual 13

14 exploitation of children. The creating resolution did not specify details as to how the mandate holder should carry out his or her work, and accordingly the three Special Rapporteurs to date have taken different approaches. Evolution of the mandate Professor Vitit Muntarbhorn ( ) examined the nature of the concerns of the mandate and sought to create awareness about subjects which were still very taboo in many countries. Ms. Ofelia Calcetas-Santos ( ) addressed certain catalysts in society which could both serve to protect children or be agents for their abuse, i.e, media and education. She sought to develop definitions as to the elements of her mandate, and by regularly attending the annual meetings of the Working Group to develop an Optional Protocol to the Convention on the Rights of the Child on the Sale of children, child prostitution and child pornography, she was able to assist the participating States in developing the definitions which were finally adopted with the Optional Protocol in Ms. Calcetas-Santos occasionally addressed particular concerns to the countries involved. For example, in 1999, she appealed to the Government of Japan concerning the extent of child pornography available through Japanese internet service providers, and one year later was advised that new legislation had been enacted in this regard. Mr. Juan Miguel Petit was appointed to the mandate in 2001 and announced that he intended to intervene whenever possible to help individual victims of the concerns of his mandate. Some of the difficulties he has faced are outlined above (paragraphs 18-21), but a measurable impact of his interventions has been demonstrated in connection to his country visit to France in November One particular concern which was brought to his attention involved the situation of medical professionals who are at risk of disciplinary or criminal sanctions for making false allegations where they have issued medical certificates confirming a diagnosis of sexual abuse of a child. The Special Rapporteur addressed his concerns to the Government of France as well as the French Medical Board, and in December 2003, legislation was amended in order to ensure that medical professionals are immune from such proceedings. The Special Representative of the Secretary-General for Children and Armed Conflict (currently Mr Olara Otunnu, (Cote D ivoire)) The mandate of the Special Representative of the Secretary-General (SRSG) on the Impact of Armed Conflict on Children was created by the GA 17 following the recommendation of Ms. Graça Machel, the expert appointed by the Secretary- General to conduct the international study on this issue. 18 The creating resolution recommended that the SRSG (a) Assess progress achieved, steps taken and difficulties encountered in strengthening the protection of children in situations of armed conflict; (b) Raise awareness and promote the collection of information about the plight of children affected by armed conflict and encourage the development of networking; (c) Work closely with the Committee on the Rights of the Child, relevant 14

15 United Nations bodies, the specialized agencies and other competent bodies, as well as non-governmental organizations; and (d) Foster international cooperation to ensure respect for children's rights in these situations and contribute to the coordination of efforts by Governments, relevant United Nations bodies The SRSG was requested to report annually to the General Assembly and the Commission on Human Rights. Development and impact of the mandate Mr. Olara Otunnu was appointed as SRSG in 1997, and has developed his mandate as an advocate and catalyst, to build awareness of the needs of war-affected children and propose ideas and approaches to enhance their protection. Over the past six years, the SRSG has developed various activities under the mandate, but a particularly important development has the placing of the issue on the international peace and security agenda. Since 2000, the Security Council has been seized of the issue of children and armed conflict, and has requested the Secretary-General to submit a report to the Council each year. Furthermore, in its resolution 1379 (2001), the Security Council requested that this report contain a list of parties to armed conflict that recruit or use children in violation of relevant international obligations, in situations of which the Council is seized. As the SRSG had decided against dealing with individual complaints under his mandate, this development has been important in that violations by certain parties to armed conflict are now exposed. However, the limitation that the Security Council only consider such violations in situations of which (it) is seized has meant that other violating parties have not come under the Security Council s scrutiny. The achievement of placing this issue on the international peace and security agenda has perhaps detracted from the human rights focus of this concern. An analysis of language used in UN reports on children and armed conflict categorises binding international human rights laws as norms and standards, suggesting that the provisions contained therein are subject to negotiation in the light of local practice. The rights of children are usually categorized as being something separate from their welfare and protection. The importance of the issue of children and armed conflict to the CHR as well as the opportunities for collaboration and sharing of information with Committee on the Rights of the Child, have not been explored to their full potential. Other Special Procedures Mechanisms Other special procedures mandate holders have focused upon children s concerns. The following three very different mandates provide useful ideas as to how a mandate holder on violence against children could develop the mandate, as well how the many other thematic mandate holders may consider incorporating children s concerns into their work. 15

16 Special Rapporteur on the Right to Education (currently Ms. Katarina Tomasevski (Croatia)) Children are naturally the primary concern of this mandate, and the Special Rapporteur has focused attention on how governments allocate budgetary resources for their education. She argues that the key human rights contribution lies in converting education from a discretionary to an obligatory budgetary allocation, and has engaged the World Bank in a dialogue as to how to solve the problem of charging fees for primary school. This Special Rapporteur receives and will intervene on individual cases. Where governments do not respond to her interventions, or provide an inadequate response, she has on occasion written to all the donor governments providing support to the countries concerned, alerting them to the particular violations under examination. Independent Expert on Human Rights and Extreme Poverty (currently Anne-Marie Lizin (Belgium)) The mandate of this Independent Expert was created by CHR resolution 1998/25 which specified particular criteria for the fulfilment of the mandate, including, inter alia, that the Expert (a) evaluate the relationship between the promotion and protection of human rights and extreme poverty, including through the evaluation of measures taken at the national and international levels to promote the full enjoyment of human rights by persons living in extreme poverty; and (b) Take into account in particular the obstacles encountered and progress made by women living in extreme poverty as regards the enjoyment of their fundamental rights; Some of the most serious violations of children s rights have been highlighted by this Independent Expert, who illustrates how certain policies of governments and international organisations in reaction to poverty can compound rather than relieve children s suffering. In her report to the CHR in , she addresses, inter alia, the problem of poverty in the Democratic Republic of Congo and how it has led to children suffering very serious diseases, having no access to public health care and education, living on the streets and entering prostitution, and how the practice of selling children to be adopted abroad has become a reality. The Independent Expert reports that even in Europe, courts have been obliged to place children in foster homes because the mother is too poor to provide proper support. Special Rapporteur on the Human Rights of Migrants (currently Ms. Gabriela Rodríguez Pizarro (Costa Rica)) This Special Rapporteur has given particular attention to the situation of migrant women and unaccompanied minors in the trafficking and smuggling of human beings. She has expressed her concerns that victims of trafficking and smuggling are criminalized, detained and deported for infractions or offences committed as inevitable consequences of the violations they have suffered. She has focussed 16

17 attention on the lack of specific provisions regarding the detention of children in certain countries, which results in their being detained in conditions that often violate their basic human rights and are detrimental to their physical and mental health. The Special Rapporteur sends urgent appeals whenever she receives information alleging that a migrant is facing an imminent or continuing human rights violation, and transmits allegation letters regarding migrants whose rights have been violated in the past. As with other special mechanisms, the Special Rapporteur may issue a press release in connection with a country visit, or to alert the attention of the media to particularly sensitive situations. 17

18 2. Potential Developments in International Law to Protect Children from Violence a) Protection from violence under the Convention on the Rights of the Child The two Optional Protocols to the Convention on the Rights of the Child (CRC), on the Sale of Children, Child Prostitution and Child Pornography, and on the Involvement of Children in Armed Conflict, were adopted in 2000 and were drafted as a result of calls to strengthen the existing but inadequate provisions on these issues in the Convention. 20 However, the language of the CRC with respect to the protection of children from violence is generally considered to be strong, explicitly requiring protection from all forms of physical or mental violence, in its article 19, which provides that; States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. Other provisions in the Convention require protection for children from particular forms of violence related to exploitation 21. The prohibition of torture against children is addressed in article 37. b) A new General Comment of the Committee on the Rights of the Child Further explanatory detail, to assist States Parties interprete the extent of their obligations to protect children from violence, could be added by way of a General Comment. The Committee on the Rights of the Child has drafted five General Comments on different aspects of rights contained in the CRC, and calls have been made for the Committee to add further detail to the provisions against violence. The Tampere Declaration called upon the Committee on the Rights of the Child to produce General Comments on the provisions relating to children and violence in the Convention, in particular article 19 and 37, taking into account the special vulnerability of children to torture and other forms of violence, and that violence may affect different children in diverse ways, depending on factors including age, sex, and 18

19 disability, and underlining states parties obligations to prevent and remedy such violations. c) A third Optional Protocol to the Convention on the Rights of the Child A third Optional Protocol could be adopted which would enable the Committee to consider individual complaints of violations of the CRC. There are currently four monitoring committees which have the competence to receive complaints from individuals - the Human Rights Committee 22, the Committee against Torture 23, the Committee on the Elimination of Racial Discrimination 24, and the Committee on the Elimination of Discrimination against Women 25. The right to file an individual complaint to the Human Rights Committee was made possible by the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), which entered into force in 1976, and which allows the Committee to receive and consider communications from individuals alleging violations of any of the rights set forth in the covenant. If an optional protocol to the CRC giving the Committee competence to examine individual complaints were to be adopted, it would be likely to adopt the same criteria for admissibility as the 4 other committees. These criteria are: * The state against which an action is brought has explicitly accepted the competence of the committee to receive individual communications. Ratification of the treaty alone is not sufficient. It is a separate treaty, requiring separate ratification, and is optional in that parties to the Covenant may decide not to ratify this protocol. * It is made by or on behalf of the person or group of persons who live under the jurisdiction of a state party, and who allege(s) to be the victim(s) of a violation of their rights. * It is used as a last resort, and after all domestic remedies have been exhausted. In this regard, you have to show that you used the courts and administrative procedures available in your country, in order to seek redress from the alleged human rights violation. Or, alternatively, you have to demonstrate that you were unable to do that, because the relevant remedies available were ineffective. Examples of ineffective remedies include: there being no legal process to protect the rights in question; access to remedies has been denied; there has been an unreasonable delay; there is no prospect of meaningful remedy, i.e. in the case of a consistent pattern of gross violations of human rights. Although in practice many governments are willing to take the action recommended by the four Committees, their decisions are not legally binding. 19

20 Becoming competent to receive individual complaints would certainly strengthen the mandate of the Committee on the Rights of the Child, but it is necessary to note that despite the membership of the Committee recently being raised to 18, and meeting three times a year to examine reports, the workload of the Committee is enormous. All but two countries have now ratified the CRC, a remarkable achievement but one which has generated a huge backload of reports. Since September 2003, the Committee has also started to examine reports submitted under the two Optional Protocols to the Convention. It is also important to note that despite the fact that there is no age requirement for filing a complaint to the Human Rights Committee concerning violations of the ICCPR which would cover most if not all cases relating to violence against children, to date these procedures have been used very little for children. Accordingly, it would be important to analyze why this is the case, and examine how the complaints mechanism of the ICCPR could be better utilized for children before efforts are made calling for the creation of a new optional protocol to the CRC. 20

21 3. The Mainstreaming of Children s Concerns through Existing Human Rights Mechanisms and Bodies In 2002, the CHR requested the Office of the United Nations High Commissioner for Human Rights, United Nations mechanisms, all relevant organs of the United Nations system, in particular special representatives, special rapporteurs and working groups, regularly and systematically to include a child rights perspective in the fulfilment of their mandates, and calls upon States to cooperate closely with them. 26 Other resolutions of the CHR and GA have made similar requests. As has been considered, several special procedures mechanisms have addressed children s concerns, but this has usually been where the mandate holder concerned has a particular interest and awareness about children s rights, or where specific issues of concern involving children have been brought to his or her attention in certain country situations. As yet, the request that a child rights perspective be regularly and systematically included has not been implemented by most mechanisms. However, one only needs to look to the issue of violence against women for encouragement that such mainstreaming can be developed. The first Special Rapporteur on Violence against women, Ms. Radhika Coomaraswamy interacted with human rights treaty monitoring bodies, and by the time she ended her term as mandate holder, she was able to report that they were starting to integrate a gender perspective into their work in their examination of reports submitted by States parties and also regularly adopt concluding observations relating to violence against women. 27 In conjunction with the mandate of the Special Rapporteur, staff at the OHCHR working on all manner of human rights concerns received training on how to mainstream gender throughout their work. One example of a mechanism which should be encouraged to study the particular situation of children within its concern is the Working Group on Arbitrary Detention. In its annual reports to the CHR, the Working Group provides information concerning opinions on individual cases, which have been adopted in the recent sessions of the Working Group. This information conveys the name of the country concerned, government responses, the name of the individual(s) detained, and the decision of the Working Group as to whether their detention was arbitrary. No information is provided as to the age or sex of the individual. A further desegregation of data to this effect would greatly assist efforts to examine the extent to which children are regularly being held in detention in particular countries, which in turn would assist efforts to ensure that the conditions under which children are being detained meet international minimal standards. It should be noted that the Committee on the Rights of the Child at its 28 th session recommended that the OHCHR organize a special workshop for existing UN 21

22 mechanisms to find ways to more effectively address violence against children within their work. NGOs could remind OHCHR of this recommendation and provide assistance in the organization of such a workshop. Such an event would be useful as an introduction for certain UN mechanisms to current developments regarding violence against children. However, in order for the mainstreaming of children s concerns to become an ongoing reality in their work, it would be important for child rights experts, within the UN system and from NGOs, to regularly brief mandate holders and members of treaty monitoring bodies, in order to alert them to the particular concerns involving children in their mandates. 22

23 4. Attention to the Issue of Violence against Children by a Broader Range of International Bodies The attention given to the impact of armed conflict on children as a result of the Machel study and the advocacy of the SRSG has brought and maintained the issue on the agenda of three UN bodies - the CHR, GA and the Security Council. Other human rights concerns have received the attention of certain international bodies. The Special Rapporteur on violence against women was invited to brief the Security Council following her visit to Sierra Leone in 2001, the former High Commissioner Mary Robinson regularly attended the World Economic Forum in Davos to raise human rights concerns, and several experts dealing with economic, social and cultural rights are increasingly working with the World Bank and the International Monetary Fund. It is imperative that human rights concerns continue to be brought to such bodies where there is often little understanding about human rights both the extent to which violations are being suffered and the array of international instruments which have been developed to protect people. The sensitizing of the participants of such bodies to certain issues can have a powerful effect to improve a situation, especially when a government can see that its political or financial support might be at stake. When the issue concerned involves violations against children, the representatives of such bodies are usually particularly receptive. NGOs with access to such bodies have an important role to play to encourage them to place children s concerns upon their agendas. Conversely, in 2000, the GA ended its annual requests to the Special Rapporteur on the Sale of children that she report to them as well as to the CHR. As a result, the international concerns and findings of this Special Rapporteur are now only brought to the attention of the Geneva-based representatives of governments and international organizations who attend the meetings of the CHR. Those representatives involved with the international peace and security organs of the UN in New York (where the GA meets) no longer have the possibility to formally consider the mandate s information and recommendations. There is currently much attention being given to the forthcoming UN Study by child rights NGOs and the three UN agencies which will be involved in the study the OHCHR, the World Health Organisation and UNICEF. However, few governments have as yet expressed much interest in the issue beyond supporting the resolution which called for the study to be carried out. NGOs should use the time whilst the Study is being carried out to make governments, international bodies, and the media aware of the Study and its importance for every country. The profile of the issue could be sufficiently raised to provide a better chance that the publication of the 23

24 study would result in a meaningful dialogue coupled with concrete actions at the national and international levels. 24

25 5. Practical Outcomes from the Study a) Training materials for those working with children A very practical outcome which resulted from recommendations made in the Machel study was the development of materials aimed at providing training and capacity building activities for the staff of international organizations working with refugee and displaced children. The Action for the Rights of Children (ARC) project was initiated in 1997 by Save the Children and UNHCR, and later joined by UNICEF and the OHCHR. Topics covered by the ARC project include issues such as child soldiers, separated children, and abuse and exploitation. ARC addresses concerns faced by a particular group of children, namely those affected by armed conflict. However, the category of children affected by violence potentially includes children from every race and culture, from nations at war and at peace, and from both rich and poor backgrounds. It might be prudent to explore, in the light of the findings of the UN Study, whether a set of training materials, along similar lines as the ARC project, are needed and could be drafted to assist all manner of education, health and social professionals, including youth workers, religious leaders, community leaders parents, or anyone who has regular contact with children, to understand the nature of violence against children, recognize when it is being perpetrated, and understand what they should and are obliged by law to do about it. In this connection and at the national level, one useful outcome of the Study might be to reveal the extent to which health, education and social care professionals in different countries are currently encouraged or obligated to report suspicions of violence or abuse against children with whom they have contact. As the Special Rapporteur on the Sale of children has learnt, in recent years, and involving several countries, there have been reports of such professionals being threatened, intimidated or suffering disciplinary or even criminal sanctions as a result of reporting their suspicions. It is to be hoped that the results of the UN study will encouraged governments to consider making amendments where their legislation does not provide immunity for such professionals. b) Improved data collection It is extremely likely that the UN Study will allude to the difficulties in fully analyzing the extent of violence against children because of the lack of adequate data and indicators. In the submissions received from governments by the Special Rapporteur on the Sale of children in response to his annual requests for information about particular aspects of his mandate, a common theme is the difficulty in providing detailed information due to a lack of available data, particularly with respect to taboo subjects such as sexual abuse of children. 25

26 A fuller understanding of the extent of particular types of violence against children, which can realistically only be achieved through an analysis of credible data, is particularly crucial to enable policy makers to react with appropriate measures. In 2003, the Committee on the Rights of the Child produced its 5 th General Comment, entitled General measures of implementation for the Convention on the Rights of the Child. In this General Comment the Committee reminded States Parties that the collection of sufficient and reliable data on children, disaggregated to enable identification of discrimination and/or disparities in the realization of rights, is an essential part of implementation (of the CRC). 28 The Committee went on to recommend that States collaborate with appropriate research institutes and aim to build up a complete picture of progress towards implementation, with qualitative as well as quantitative studies. It is to be hoped that the process of drafting the study and its eventual publication will galvanise Governments into providing sufficient resources to enable organizations to improve the collection of data relating to violence against children around the world. 26