Critical issue module 1 Abuse and exploitation Topic 2 The law and child rights Handout 2 Legal tools to protect children The CRC accords all children, regardless of their legal status, the right to be protected from abuse, neglect and exploitation. In a rights based approach, children are encouraged and empowered to claim their rights, which means that they are not seen as objects of charity but rather as people who are claiming their legal entitlements. Legal provisions exist to protect children from harm as civilians during times of unrest and conflict. Legal provisions exist to protect children and adolescents from employment that is likely to be hazardous, to interfere with their education, or to be harmful to their development. Legal provisions exist to protect children from sexual exploitation and abuse, as well as against trafficking, sale and abduction. Sexual violence is a gross violation of fundamental human rights as well as, when committed in the context of armed conflict, a grave breach of humanitarian law. Each layer of government has the duty to protect children s rights. Even where assistance from higher levels of government is lacking, local authorities maintain the legal responsibility to respond as best they can to the situation of children under their jurisdiction. Thus, best practice is to programme in such a manner as to assist governments in fulfilling this responsibility. http://www.arc online.org Page 1 of 8
Violation Legal Instrument What it says Physical violence UN convention on the rights of the child (CRC) Declaration on the elimination of violence against women (1993) Article 19 explicitly accords the child the right to be protected from abuse and neglect, without discrimination. Article 37 explains that States are required to ensure that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. The Human Rights Committee stated that this should include physical and mental pain, and extends to corporal punishment. Regarding corporal punishment in schools, Article 28.2 states that all appropriate measures shall be taken to ensure that school discipline is administered in a manner consistent with the child s human dignity and in conformity with the Convention. This includes Article 19 and the broader protection of the child from physical and mental violence. Article 24.3 calls on governments to take all effective and appropriate measures to abolish traditional practices that endanger the health of children. In all cases of abuse, neglect and exploitation, Article 39 notes that the government has an obligation to ensure that child victims (of armed conflicts, torture, neglect, maltreatment or exploitation) receive appropriate treatment for their physical and psychological recovery and social reintegration in an environment that fosters the health, self respect and dignity of the child victim. Where children are taken into police custody, Article 37 clearly lays out the conditions in which they may be held and how their legal proceedings must be handled (Article 40). Detention must be a measure of last resort and for the shortest appropriate period of time. Children must be treated with dignity and held separate from adults unless it is considered in the child's best interest not to do so. The declaration notes that violence against women includes female genital mutilation and other traditional practices harmful to women It stipulates that States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination. http://www.arc online.org Page 2 of 8
UN convention on the rights of persons with disabilities (2006) Article 16 calls for people with disabilities to be protected from exploitation, violence and abuse both within the home and outside it. Article 27 commits States to ensure non discrimination and protection from exploitation in labour practices. Article 11 explicitly notes that States must ensure the safety of people with disabilities in times of conflict and natural disaster. Children s labour UN Security Council resolution 1539: Children affected by armed conflict (2004) CRC International covenant on economic, social and cultural rights The International Labour Organisation (ILO) forced labour convention of 1930 Members condemned the killing and maiming of children, rape and other sexual violence mostly committed against girls, abduction and forced displacement, denial of humanitarian access to children, attacks against schools and hospitals as well as trafficking, forced labour and all forms of slavery and all other violations and abuses committed against children affected by armed conflict and called for renewed efforts to protect children and monitor violations of their rights. Article 32.1 Governments recognise the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child s education, or to be harmful to the child s health or physical, mental, spiritual, moral or social development. Article 32 relates to the broader issue of the economic exploitation of the child. Under Article 33, governments shall take all appropriate measures to prevent the use of children in the illicit production and trafficking of narcotic drugs and psychotropic substances. Under Article 35, governments shall take all appropriate measures to prevent the abduction, sale or traffic of children for any purpose or any form. Article 36 affirms more generally that governments shall protect the child against all other forms of exploitation prejudicial to any aspect of the child s welfare. Asserts the same principles stating in its Article 10(3) that Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law. Article 29 covers such problems as exploitation of children through debt bondage and other contemporary forms of slavery such as child prostitution. http://www.arc online.org Page 3 of 8
The ILO minimum age convention of 1973 Universal declaration of human rights (UDHR) and International covenant on civil and political rights (ICCPR) Supplementary convention on the abolition of slavery, the slave trade, and the institutions and practices similar to slavery, 1956 Convention relating to the status of refugees ILO convention concerning the prohibition and immediate action for the elimination of the worst forms of child labour (No.182) Ratifying States are to fix a minimum age for admission to employment or work, undertake to pursue a national policy designed to ensure the effective abolition of child labour, and raise progressively the minimum age for admission to employment or work to a level suitable with the fullest physical and mental development of young persons. Include provisions prohibiting slavery (UDHR Article 4) and forced labour (ICCPR Article 8). Article 1 covers, any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour. Article 24 affirms obligations regarding child labour, stating that the Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the minimum age of employment, apprenticeship and training It applies to all young persons under the age of 18, and defines, among other things, forced or compulsory recruitment of children for use into armed conflict as one of the worst forms of child labour (Article 3). It is the responsibility of the government to ensure the safety of children residing within that country. The government is responsible for providing minimum age for admissions to employment, appropriate regulation of the hours and conditions of employment, and provide for appropriate penalties or other sanctions to ensure effective enforcement. Such protection is to be accorded to refugee children and national children alike (CRC, Article 2.1). Sexual abuse and exploitation Guiding principles on internal displacement CRC Internally displaced persons, whether or not their liberty has been restricted, shall be protected in particular against Slavery or any contemporary form of slavery, such as forced labour of children. (Principle 11) Article 19 explicitly accords the child the right to be protected from abuse and neglect, without discrimination. http://www.arc online.org Page 4 of 8
Under Article 34, governments undertake to protect the child from all forms of sexual exploitation and sexual abuse and particularly to take all appropriate measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity, including the exploitative use of children in prostitution and in pornographic performances and materials. Optional protocol to the Convention on the rights of the child on the sale of children, child prostitution and child pornography ILO convention concerning the prohibition and immediate action for the elimination of the worst forms of child labour (No. 182) Governments are asked to ensure that child pornography, prostitution, etc. are fully covered under their criminal or penal law. If a person commits such an offence, then he or she can be extradited if such an agreement exists between the two countries. It also stresses the importance of the principle of extraterritoriality, ie. that nationals of a State party, committing a sexual offence against children in another country, can be prosecuted in their own country. The term worst forms of labour comprises the use, procuring and offering of a child for prostitution or for the production of pornography or for pornographic performances. Governments are required to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. Convention for the suppression of the traffic in persons and of the exploitation of the prostitution of others (1949) Declaration and agenda of the World Congress against Commercial Sexual Exploitation of Children (Stockholm 1996) Fourth Geneva convention of 1949 relative to the protection of civilian persons in time of war Targets procurers and exploiters of prostitutes, and declared prostitution and the traffic in persons to be incompatible with the dignity and worth of the human person and [to] endanger the welfare of the individual, the family and the community. Stated that the commercial sexual exploitation of children constitutes a form of coercion and violence against children, and amounts to forced labour and a contemporary form of slavery (Paragraph 5). It called for the promotion of stronger co operation between States and all sectors of society to prevent children from entering the sex trade, to criminalise the commercial sexual exploitation of children, and to condemn and penalise all those offenders involved, whether local or foreign, while ensuring that the children victims of this practice are not penalised (Paragraph 12). Article 27 states that protected persons in time of war shall at all times be humanely treated, and shall be protected especially against all acts of violence... Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. http://www.arc online.org Page 5 of 8
Geneva conventions of 1949 With regard to internal armed conflicts, Article 3 common to the four conventions prohibits outrages upon personal dignity, in particular humiliating and degrading treatment, against all persons taking no active part in hostilities. Contemporary forms of slavery, including trafficking & smuggling of persons Protocol 2 relating to the protection of victims of noninternational armed conflicts (1977) Guiding principles on internal displacement Rome statute of the International Criminal Court (1998) UN Security Council resolution 1325 (2000) UN Secretary General Bulletin on special measures for protection from sexual exploitation and sexual abuse (2003) UN convention against transnational organized crime optional protocol against the smuggling of migrants by land, air and sea Article 4 (2) (e) forbids the violation of personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault. Principle 11 protects against sexual violence, forced labour of children, degrading treatment and sexual exploitation. Article 7 (g) defines crimes against humanity as any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population: rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity. This resolution calls on all parties to armed conflict to take special measures to protect women and girls from gender based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict and for all parties to armed conflict to respect the civilian and humanitarian character of refugee camps and settlements, and to take into account the particular needs of women and girls, including in their design. UNSG reiterated the zero tolerance policy for acts of sexual exploitation or sexual abuse by people employed by or affiliated with the UN. Aims to prevent and combat the smuggling of migrants, as well as to promote co operation among States parties to that end. In the protocol, smuggling of migrants means the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State party of which the person is not a national or a permanent resident. State parties shall adopt measures to make the smuggling of migrants a criminal offence. Migrants are entitled to the protection of their rights and assistance, and States parties shall take into account the special needs of women and children (Article 16.4). http://www.arc online.org Page 6 of 8
Children on or of the streets If working with children who have been detained Protocol to prevent, suppress and punish trafficking in persons, especially women and children CRC UN General Assembly Resolution 41/126 on the Plight of Street Children. 1 UN Standard minimum rules for the administration of juvenile justice (Beijing Rules); 2 UN rules for the protection of juveniles deprived of their liberty; 3 Convention against torture and other cruel, inhuman or degrading treatment or punishment; 4 UN Guidelines for the prevention of juvenile delinquency (Riyadh Guidelines); 5 UN Committee on the CRC s General comment No.10. Defines trafficking in persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion to achieve the consent of a person having control over another person, for the purpose of exploitation. Article 2.1 rejects discrimination based on any status ; Article 15 allows for children to gather peacefully amongst themselves; Articles 24 and 28 call for free access to health services and education; Article 33 which seeks to protect children from the harm of illicit drugs. Called on Governments to continue actively to seek comprehensive solutions to tackle the problems of street children and to take measures to restore their full participation in society and to provide, inter alia, adequate nutrition, shelter, health care and education, as well as to respect fundamental human rights, particularly the right to life, and to take urgent measures to prevent the killing of street children and to combat violence and torture against street children. Interagency policies and guidelines There are a number of common guidelines to be used; these include but are not limited to: IASC s Guidelines for gender based violence interventions in humanitarian settings and the Inter agency guiding principles on unaccompanied and separated children. http://www.arc online.org Page 7 of 8
Particularly useful examples of agency specific guidelines Guidelines on formal determination of best interest of the child, UNHCR, 2006 Refugee children: guidelines on protection and care, UNHCR, 1994 The revised guidelines on prevention and response to sexual and gender based violence against refugees, returnees and internally displaced persons, UNHCR, 2003 IOM/FOM 83/97 on Harmful Traditional Practices, UNHCR Core Commitments for children in emergencies, UNICEF, 2005 Emergency field handbook: a guide for UNICEF staff, UNICEF, 2005 Guidelines on children & armed conflict, European Union Child protection in emergencies: Priorities, principles and practices, International Save the Children Alliance, 2008 http://www.arc online.org Page 8 of 8