SELF ASSESSMENT EXERCISE
1. AIDS/HIV treatment is a children's rights issue. Discuss
N45/49 (1990). These guidelines stress the importance of integrating young adults into society: 'By engaging in lawful, socially useful activities and adopting a humanistic orientation towards society and outlook on life, young persons can develop non-criminogenic attitudes'.
Thus, the response of any criminal justice system should be to understand the reasons for deviance. Punishment may be necessary, but the emphasis is on understanding why an offence has taken place, and re-orientating individuals to less anti-social attitudes.
Breaches of these standards can be found across the spectrum of law enforcement and in all countries of the world, but we will consider some examples drawn from Latin America and the United States. Abuses begin once children are under the control of the police. One particularly extreme example, as reported by the United Nations special rapporteur on extrajudicial executions, was evidence that, since 1998, up to 800 children had been murdered by the Police in Honduras. Also in Latin America, the Inter- American Court of Human Rights made an order against Guatemala relating to the murder of street children by the Police.
In Paraguay, a Human Rights group also reported that children were being held with adults in overcrowded prisons and were victims of ill- treatment, including punishment by solitary confinement.
The record of the United States is also not particularly good in this area.
Although there is a juvenile justice system in the US, concern has been drawn to the fact that the US criminal justice system tries children as adults in a number of cases where special juvenile processes would be more suitable. It is a general principle of children's rights that there should be a minimum age for criminal responsibility. An Amnesty International report shows that more than half of all US states have crimes for which any child can be prosecuted in an adult court; there are also inconsistencies between different states as to the age at which a child can be tried in a juvenile court. For instance, in North Carolina the minimum age is six; in Maryland, Massachusetts and New York, the minimum age is seven. The Report goes on to state that:
..Between 1986 and 1995, the number of children confined in custody before their cases were heard or following conviction grew by more than 30 per cent. h1 many jurisdictions, the increase in the number of children who are held in custody has outstripped the increase in resources that are available to house the children and provide services for them. The most recent survey found that 40 per cent of facilities around the USA housed more children than they were designed to accommodate.
(Betraying the Young: Children in the US Criminal Justice System
Breaches of international standards thus concern the excessive use of incarceration, both before formal conviction, and as a means of punishment after conviction; and the incarceration of children in facilities that are not equipped with resources that are suitable to juveniles, or to those with mental health problems. However, special censure was due to the fact that the US imposes death sentences on those convicted of crimes committed when they were children:
When it ratified the ICCPR, the US government reserved the right to impose the death penalty for crimes committed by those under 18. In 1995 the UN Human Rights Committee, the body of experts set up to monitor compliance with the ICCPR, said that the US reservation was incompatible with the object and purpose of the ICCPR and should be withdrawn. However, since ratification, US state authorities have executed six prisoners for crimes committed when they were under 18, including two in 1998. In June 1998, there were 70 such prisoners awaiting this fate on US death rows.
In 1998, twenty-four US states permit the use of the death penalty against those under 18 at the time of the crime. Fourteen states have legislation enforcing 18 as the minimum age. (ibid)
Amnesty International goes on to point out that the federal government has specified 18 as the minimum age of criminal responsibility, and thus should be obliged to ensure each state complies with this rule. The federal government is responsible for making sure that state governments abide by their international obligations. Although the US has not ratified the Convention, which sets 18 as the age of criminal responsibility, the fact that the majority of nations in the world have, suggests that there is more or less universal consensus on the age of criminal responsibility. The Supreme Court has also shown that it is not willing to accept this consensus, holding that 16 should be the relevant age; it has also held that the execution of juveniles aged 16 or 17 at the time of the offence does not violate the constitution.
SELF ASSESSMENT EXERCISE
1. Why is there resistance to children’s rights standards in the US criminal justice system?
2. Although the Convention on children’s rights is described as the most ratified of international human rights instruments, abuses of children's rights are still widespread. How can this situation be accounted for? Discuss.
Advice on answering the question
Any answer to this question would do well to agree with all parts of this statement. It is indeed accurate to describe the Convention in this way.
That it has been so widely accepted does suggest a general level of acceptance of the principles that it contains, and a couple of paragraphs of the essay should outline the key principles of the Treaty, and outline the functions of the Committee. The key to the Committee's role is its commitment to constructive dialogue with state parties. This approach may also encourage a broad engagement with the principles of the Treaty at a-national level. The second part of the quotation is also accurate. The essay should outline the degree of abuse and violation of children's rights, perhaps choosing to focus on one of the areas outlined above. The third part of the statement is possibly the most difficult part of the question. The reasons why children's rights continue to be abused are complex. However, it might be possible to suggest that the main problems relate to the breakdown of civil institutions that could protect rights in instances of armed conflict, the broader context of endemic poverty, and the persistence of cultural and economic patterns that will take a long time to change; if they change at all.
Activity 7.1 (a) The Convention is built on four general principles that are articulated in articles 2, 3, 6 and 12. Article 2 provides a prohibition on discrimination against children, a positive statement of equal opportunity. Article 3 concerns the 'best interests of the child'. If a public authority acts in relation to a child, that authority must abide by this test. Article 6 states that right to life, survival and development. It is expressed somewhat differently from the Declaration because this right applies specifically to children; development must be understood in a broad sense to include emotional, physical, mental and cultural development. Article 12 specifies that children should be allowed to have opinions, and that these opinions must be considered in matters that concern the child. This would of course include judicial and quasi-judicial hearings.
(b) The Convention is a statement of general principles and provides a reference point for human rights standards as far as they relate to children. Once a government has become a signatory to the Convention, it must make sure that it honours the principles contained with the Convention, to the extent that it legislates or provides programmes of action to achieve the goals of the Treaty. Governments must submit periodic reports to the Committee, which can then make recommendations to the General Assembly. These recommendations might request that the Secretary-General undertakes studies on specific issues relevant to children's rights. The Committee can also make
received in the periodic reports, and also call for assistance from other specialist international organisations.
(c) As mentioned above, the Convention on the rights of the child is the most widely ratified of international human rights instruments. Two nations have not ratified the Convention: Somalia and the USA. The former has not been able to ratify the Convention, because its government is not internationally recognised. The USA has signed the Convention, but has not yet ratified it. There are several reasons for non-ratification: it has been the practice of the US government to concentrate on ratifying one treaty at a time; and currently this is the Convention on the Elimination of All Forms of Discrimination against Women. The reason given for this is that it is necessary to make sure national and federal law is coherent with the Treaty's obligations. However, there may also be a degree of political reluctance to ratify. As we will see below, there are many important areas where state law in the USA remains contrary to the Convention.
Activity 7.2 This quotation is an accurate description of the persistence of bonded labour in India. The country’s government has committed itself to international human rights standards, and domestic law is, for the most part in line with these standards. The government has also shown itself, at a policy level, to be committed to the struggle against the economic exploitation of children. However, the persistence of bonded labour can explained by the failure to put either law or policy into effect at a grass roots level. The reasons for this failure are complex, but can be mentioned in