Council of Europe Convention on preventing and combating violence against women and domestic violence (2011), especially Articles 25, support to victims of sexual violence, 36, sexual violence, and 37, forced marriage.

#### Attributes

#### Attribute One: Legislative Protection from Sexual Exploitation and Abuse

The obligation to protect children from all forms of sexual exploitation and abuse requires adequate national legal frameworks to address unlawful sexual activity and practices. Both the Convention and subsequent legal and policy documents emphasise law reform in the criminal and penal law contexts to protect children from sexual abuse and exploitation. Effective protection requires that the measures introduced by States Parties address the following three broad areas.

First, while there is discretion as to the particular legislative framework States Parties can adopt, they must introduce comprehensive provisions to criminalise all sexual abuse and exploitation of children (UN Committee on the Rights of the Child, 2013a, para. 30 (a), 2015a, para. 34 (a)), including the potential to penalise those committing offences domestically and transnationally, and by individuals or groups (UN Committee on the Rights of the Child, 2019, Article 3). Bilateral and multilateral measures are essential given the extent to which sexual abuse and exploitation is increasingly transnational. Such legislation must take account of the increasing potential for the sexual abuse and exploitation of children in the digital environment (Buquicchio-de Boer, 2014, para. 87 (a)). It needs to address a commitment to international cooperation involving information sharing, learning from good practice, joint prevention networks and harmonisation of legislation (Maalla M'jid, 2013, para. 109). The necessary legislation measures are elaborated in the Optional Protocol and other international instruments (noted above).

However, it is important that children who are survivors of such exploitation are not subjected to criminal procedures or sanctions for offences related to their situation.2 In addition, the Committee has expressed concern that many legal frameworks fail to provide protection for boys and has therefore stressed that frameworks must be gender neutral (2014a, para. 32, 2014b, para. 33).

Secondly, States Parties must ensure that legislation is adequately enforced and that sufficient investment is made to ensure effective investigations, prosecution, and punishment of offenders (UN Committee on the Rights of the Child, 2013b, paras. 52–53, 2014c, paras. 43–44). In this regard, the Committee has stressed the importance of measures such as mandatory reporting and civil remedies for children who have been victims of sexual abuse and exploitation (2001a, para. 52, 2015b, para. 35 (a)). The Committee and other agencies also emphasise the importance of confidential, safe, and accessible complaints mechanisms for children to report cases of abuse and exploitation, and for the criminal justice system at all stages to respond to any complaints in a child and gender sensitive and timely manner (Council of Europe, 2012; UN Committee on the Rights of the Child, 2019, Article 8.1 (a)).3 Children must be provided with appropriate support services, protection, and privacy throughout the legal process (UN Committee on the Rights of the Child, 2019, Article 8.1).

Finally, States Parties must introduce measures to address the physical, psychological and social recovery, rehabilitation and reintegration of survivors of sexual abuse and exploitation, including compensation for damage suffered, livelihood, housing, counselling and information, and education (Council of Europe, 2012, Article 14; UN Committee on the Rights of the Child, 2019, Article 8.5, 9.3; World Congress Against Commercial Sexual Exploitation, 1996).

2 See, for example, Concluding Observations: India (2000, para. 75) and CRC Guidelines regarding the implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (UN Committee on the Rights of the Child, 2019, para. 18).

3 See also Concluding Observations: Czech Republic (2003, para. 62 (b)).

#### Attribute Two: All Other Measures to Prevent Sexual Abuse and Exploitation

Article 34 also requires that administrative, economic, social and educational measures are introduced to prevent sexual abuse and exploitation of children, consistent with Article 4 of the Convention, General Comment no. 5 on the General Measures of Implementation, and the Stockholm Declaration and Agenda for Action. Such measures include national strategies for gender-sensitive national social and economic policies and programmes to assist vulnerable children (Hodgkin et al., 2007, p. 525), together with coordination and monitoring mechanisms, which must all be accompanied by the necessary budgetary and human resources (Council of Europe, 2012, Articles 10.2 (a) and 45.1; World Congress Against Commercial Sexual Exploitation, 1996).

Education is consistently identified as a vital dimension of prevention. States Parties must invest in programmes of public awareness raising (UN Committee on the Rights of the Child, 2001b, para. 73, 2015c, para. 34 (d)), and training for all professionals working with children (UN Committee on the Rights of the Child, 2002, para. 67 (c), 2014d, para. 47 (a)). Education and information must be provided for children themselves, not only on their rights under the Convention but also, for example, on identifying abuse, negotiating skills, self-confidence, resisting peer pressure, and navigating the digital environment safely (Council of Europe, 2012, Articles 5, 6, 8, 9; UN Committee on the Rights of the Child, 2019, Article 9.2; World Congress Against Commercial Sexual Exploitation, 1996).

The root causes of sexual abuse and exploitation of children are complex. While poverty can be a key factor, multiple other factors serve to facilitate the abuse, including gender bias, racial and social discrimination, lack of education, migration, harmful traditional practices and armed conflict (World Congress Against Commercial Sexual Exploitation, 1996, para. 6). A broad range of measures in response to all these factors is required if States Parties are to successfully prevent sexual abuse and exploitation (World Congress Against Commercial Sexual Exploitation, 1996, para. 3 (a)-(l)). In addition, States Parties must engage and regulate the private sector, including the media, the travel and tourism industry, and online technology businesses in order to fulfil their obligations under Article 34.4

#### References

Buquicchio-de Boer, M. (2014). Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Maud de Boer-Buquicchio, A/HRC/28/56. UN.

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# Chapter 35 Article 36: The Right to Protection from Other Forms of Exploitation

Adem Arkadas-Thibert

States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare.

#### What Did Children Say?

'There should be awareness raising and campaigns through different mediums such as radio, TV, newspapers, forums and blogging on trafficking, abductions, child labour, child marriage and all forms of violation and discrimination against children and youths.' (Africa).

Governments should have a public campaign on child rights and ways persons often harm children. (Latin America/Caribbean).

Children learn where to make reports or seek refuge when these things happen. (Africa).

Government should create a forum where children especially girls and women have a voice to stand strong and say 'No' to violence and abuses against their rights. (Africa).

A. Arkadas-Thibert (\*) Marseille, France

Z. Vaghri et al. (eds.), Monitoring State Compliance with the UN Convention on the Rights of the Child, Children's Well-Being: Indicators and Research 25, https://doi.org/10.1007/978-3-030-84647-3\_35

#### Overview

Children should be protected from any activity that takes advantage of them or could harm their welfare and development. Article 36 of the Convention provides for all encompassing fail-safe preventive and protective safeguards against all forms of exploitation and slavery-like conditions everywhere that are not covered by other articles of the Convention.

Initially designed as part of one article combining commercial sexual exploitation of children (Article 34), and abduction of, sale of, and traffic in children (Article 35), to cover sexual and other related forms of exploitation (Office of the United Nations High Commissioner for Human Rights and Rädda barnen (Society: Sweden), 2007, pp. 723–737), drafters of the Convention designed a wider and a fail-safe protection for children. Article 36 was introduced to ensure that the 'social' exploitation of children was recognised, along with their sexual and economic exploitation, though examples of social exploitation were not provided (Hodgkin et al., 2007, p. 543). It integrates the other articles of the Convention concerned with the exploitation of children taking place in specific context, namely:

With increasingly globalised criminal activities and introductions of new technologies, new forms of exploitation are emerging, in addition to traditional forms of trafficking (within and between countries) and sale of children for sexual purposes and forced marriage. Children are exposed to forms of exploitation which are 'not accompanied by physical force or restraint but which are nonetheless psychologically intrusive, exploitive and traumatic' (UN Committee on the Rights of the Child, 2011, para. 25). As Tobin clarifies, those 'new' forms of exploitation of children will be generally dealt by the above-mentioned provisions of the Convention focused on exploitative practices in combination with Articles 3 and 6 of the Convention, respectively meant to ensure the respect of the best interests principle and the right to survival and development of the child (2019, p. 1403).

However, as a safety net, Article 36 is designed to fill any eventual gap of the Convention in relation to the exploitation of children and, as a consequence, it extends the protection over a variety of forms of exploitations such as exploiting gifted children, media exploitation, commercial and advertising exploitation, medical experimentation, and research activities concerning children in different capacities. For example, as discussed in relation to Articles 16 and 17, children can be exploited by the media by identifying child victims or child offenders, or by securing performances by children without their informed consent, which are potentially harmful to their development (Hodgkin et al., 2007). Children with talents in competitive sports, games, performing arts, and other fields may have these talents developed by families, the media, businesses, and state authorities at the expense of their overall physical and mental development. With reference to the medical research and experimentation, even though Article 7 of the International Covenant on Civil and Political Rights expressly prohibits medical or scientific experimentation without free consent, children can be exposed to breaches of their privacy, or be required to undertake tasks that breach their rights or are disrespectful of their human dignity (Hodgkin et al., 2007).

At the same time, the wording 'shall protect' in Article 36 constitutes a mandatory obligation on States Parties. It demands that they adopt measures to protect children from all other forms of exploitation by setting in place 'all the appropriate measures to respect, protect and fulfil the right of all children to be protected against exploitation' including among them preventive measures (Tobin, 2019, pp. 1404–1408).

#### General Principles

Article 2 Every child is entitled to protection from all forms of exploitation, but certain groups of children are more at risk of exploitation than adults and other children (UN Committee on the Rights of the Child, 2011, para. 72 (g)). States Parties must introduce measures to identify, prevent and protect such children from exploitation.

Article 3 The child's safety is one of the fundamental tenets of the child's best interests. Effective preventive and protective measures for children must be taken to guarantee the best interest of the child.

Article 6 All forms of exploitation of children are a threat to the fulfilment of their right to life, survival, and development (UN Committee on the Rights of the Child, 2011, para. 15).

Article 12 Children have rights to access information, including life skills and knowledge to protect themselves from exploitation, and to seek assistance and justice whenever needed.

#### Articles Related or Linked to Article 36

Article 17 provides that States should encourage and support the provision of information to children from the mass media, and to encourage the development of guidelines to provide children from harmful information that might be exploitative or lead to potential exploitation.

Article 24(3) which requires measures to effectively abolish traditional practices, such as child marriage, which are detrimental to the rights and well-being of children.

Article 26 ensures the child's right to available, accessible, and quality social security in accordance with their circumstances and their care providers' resources, so that the child is less at risk of exploitation (van Bueren, 1998, p. 268).

Article 27 provides for adequate living conditions for the child's physical, mental, spiritual, moral, and social development, as a preventive and protective measure from all forms of exploitation.

Article 32 protects children against trafficking forced labour and slavery-like working conditions.

Article 33 protects from use of children in crimes of illicit substance trafficking.

Article 34 protects children from their use in the sex trade, including prostitution or the production pornography, or through forced marriages.

Article 35 protects against the abduction, sale, and trafficking of children.

Article 39 requires that States Parties provide the child who is exposed to any form of exploitation with physical and psychological recovery and social reintegration.

Optional Protocol on the involvement of children in armed conflict, Article 4, provides that non-state armed forced are barred from using children in armed conflict which extends to exploitation of children for any purposes.

Optional Protocol on the sale of children, child prostitution, and child pornography. The protocol is 'meant to achieve the purposes of the CRC and the implementation of its provisions' including Article 36 (Greijer et al., 2019, p. 21).

#### Relevant Instruments

UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000).

Hague Convention on the Civil Aspects of International Child Abduction (1980).

Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993).

ILO Convention 182, Worst Forms of Child Labour (1999).

African Charter on the Rights and Welfare of the Child (1990), Articles 27, 28 and 29.

Inter-American Convention on International Traffic in Minors (1994).

#### Attributes

#### Attribute One: Monitoring and Identification of All Other Forms of Exploitation Prejudicial to Any Aspects of the Child's Welfare

In fulfilling their preventive role and to develop consistent evidence-based policies, Articles 36 requires that States Parties must actively monitor and identify existing, new, and unknown forms of exploitation of children as a preventive and protective measure. This requires regularly reviewing children's well-being in general, children at risk as defined in General Comment no. 13 on violence against children (Office of the United Nations High Commissioner for Human Rights and Rädda barnen (Society: Sweden), 2007) in particular, and also survivors and victims who are exposed to exploitation. These reviews should provide data or support research on new and emerging forms of exploitation. States Parties must work with children, respecting their right to be heard, and undertake monitoring of their well-being and forms of exploitation with children (UN Committee on the Rights of the Child, 2009, paras. 118–122).

#### Attribute Two: Protection from All Other Forms of Exploitation Prejudicial to Any Aspects of the Child's Welfare

Article 36 asserts that States Parties shall introduce protection measures for children against all other forms of exploitation already identified and addressed. It is a failsafe protective net for children to eradicate all known forms of exploitation of children and to proactively address unknown forms of exploitation of children. This should include introduction of strict regulatory environments for businesses, including media and other local, national, and international commercial enterprises. In accordance with Article 19 and General Comment no. 13, violence against children, protection measures shall include 'all appropriate legislative, administrative, social and educational measures' (2011, paras. 38–44).

#### References

Greijer, S., Doek, J., & Interagency Working Group. (2019). Explanatory report to the guidelines regarding the implementation of the optional protocol to the convention on the rights of the child on the sale of children, child prostitution and child pornography. Bangkok: ECPAT International. Retrieved from https://www.ecpat.org/wp-content/uploads/2019/09/OPSC-Guide lines-Explanatory-Report-ECPAT-International-2019.pdf

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# Part VIII Protection Measures for Children in Vulnerable Situations

#### Articles 22, 35, 38 and 40

#### Introduction

Children can encounter a range of challenging situations that expose them to particular risk of rights violations and which, accordingly, demand additional forms of protection. This part addresses the rights relating to four of those situations: children who are refugees or asylum seekers; children who are abducted, trafficked, or sold; children in situations of armed conflict as civilians or combatants; and children in conflict with the law. In each case, the provisions in the Convention on the Rights of the Child (the Convention) build on multiple international instruments that have been developed, since the middle of the twentieth century, to strengthen the commitment to appropriate protection for children caught in these circumstances.

Each article in this part affirms that the situation in which a child is placed does not, and cannot be used to, undermine or minimise States Parties' obligations to uphold all the rights of that child. On the contrary, their vulnerability entitles them to additional protections to guarantee their rights. Furthermore, each of these rights must be implemented within the broader context of the Convention as a whole, with particular reference to the four General Principles.

Article 22 affirms a longstanding recognition in international law that refugee children are entitled to special care and protection, building on the 1949 Geneva Conventions and Refugee Convention but providing a new, explicit human rights focus on refugee children. It captures the broad international consensus, comprising four key dimensions including protection and assistance, respect for rights, co-operation and family reunification.

Article 35, initially drafted as a generic provision to address exploitation of children, was subsequently refined to focus specifically on abduction, trafficking, and sale of children. Other forms of exploitation are addressed in Articles 34 and 36 (see Part VII). Article 35 builds on a series of previous instruments, including the 1949 Convention on the Suppression of Traffic in Persons and the Exploitation of the Prostitution of Others as well as the Convention on the Elimination of all Forms of Discrimination against Women, and has been strengthened through the Optional Protocol on Sexual Exploitation, and the 2000 Trafficking Protocol. These elaborations of the necessary protections reflect the significant increase in the scale and nature of abduction, trafficking, and sale of children since the Convention was first drafted, aided primarily by the digital environment and rapid globalisation. Article 35 introduces obligations to adopt all possible political, social, economic, and cultural measures to prevent such exploitation, as well as legislative and policy measures to criminalise, investigate, and prosecute all perpetrators of crimes of exploitation against children, nationally, regionally, and internationally.

Children and armed conflict are addressed in Article 38, which integrates both human rights and international humanitarian law. It was the provision that, during the drafting stage, generated the greatest challenge in finding a consensus. The final text reflects a compromise that afforded lower levels of protection than many members of the Working Group were seeking, particularly in its commitment only to prohibit recruitment of children into the armed forces below the age of 15 years. Overall, Article 38 requires of States Parties that they ensure compliance with international humanitarian law, protect children under the age of 15 from direct participation in hostilities, refrain from recruiting children under 15 into armed forces, and take measures to protect civilian children affected by armed conflict. The Optional Protocol on children and armed conflict, adopted in 2000, strengthens these provisions and, furthermore, the Committee consistently argues that States Parties should extend the age of protection for all children, including those recruited or used as combatants, to 18 years, as elaborated below.

Article 40 introduces a child rights-based approach to youth justice policy, grounded in respect for dignity, best interests, due process, minimum ages of criminal responsibility, diversion from the criminal justice system, and reintegration. It requires that States Parties establish specialised youth justice systems with a focus on rehabilitation and restorative justice rather than retribution and repression.

# Chapter 36 Article 22: The Right to Protection for Refugee and Asylum-Seeking Children

Christian Whalen

© The Author(s) 2022

C. Whalen (\*)

Office of the Child, Youth and Seniors Advocate, Fredericton, NB, Canada e-mail<EMAIL_ADDRESS>
Z. Vaghri et al. (eds.), Monitoring State Compliance with the UN Convention on the Rights of the Child, Children's Well-Being: Indicators and Research 25, https://doi.org/10.1007/978-3-030-84647-3\_36

#### What Did Children Say?

'Provide good nutrition for refugees especially children to ensure their growth.' (Africa).

'Government should provide shelters or housing for refugees' and 'Equal education, health care, etc., for refugees as for other children.' (Latin America/ Caribbean).

Give assistance to refugees' parents so that they can improve their financial situation to take care of their children. (Africa).

'Government should have support for children and their families affected by displacement or during migration as refugees, to provide them all necessaries as required by the UN Code of conduct.' Africa).

#### Overview

Article 22 came about in the drafting of the Convention at a time when international law started to distinguish between refugee children and adult refugees (UNHCR, Notification to Executive Committee on Refugee Children, cited in Vučković-Šahović et al., 2012, pp. 231–232). Consensus on the text of Article 22 was found relatively rapidly following Denmark's initial proposal in 1981, and the provision was reworked into its final form in the 1989 Working Group (Detrick et al. 1992, pp. 319–329). The provision captures the broad international consensus that:

Article 22 therefore guarantees the substantive application of all Convention rights to the particular situation of asylum seeking and refugee children, and also guarantees them protection and assistance in advancing their immigration and residency status claims and in overcoming the hurdles posed by international migration channels, including guarantees of due process (Ceriani Cerandas, 2015, p. 342). The particular concern for unaccompanied migrants and tracing and reuniting them with their parents is reinforced by Articles 9 and 10, and other provisions of the Convention and its protocols, including Articles 38 and 39 and the Optional Protocol on children and armed conflict.

Further to General Comment no. 6, on the Treatment of Unaccompanied and Separated Children Outside their Country of Origin, the Committee on the Rights of the Child (the Committee) revisited this topic in a Day of General Discussion in 2012, which informed two joint General Comments with the Committee of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. General Comment no. 22 deals with the General Principles regarding the human rights of children in the context of international migration (UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child, 2017a) and General Comment no. 23 deals with States Parties obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return (UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child, 2017b). These new statements of the law reinforce how all the rights of the child must be upheld for migrant children at every stage of the migration journeys and that all decisions affecting them must be informed by the child's voice and determined in accordance with their best interests.

Article 22's focus on appropriate protection and humanitarian assistance to refugee children and children seeking refugee status is inherently tied to respect for children's rights both in the country of origin and in the country of refuge. It is often a violation of the core principles of child rights that may force children and their parents to flee persecution and it is all too often the denial of these same rights in the country of refuge that inform child rights claims in relation to Article 22 (Ceriani Cerandas, 2015, p. 338).

While the framing of Article 22 limits its application to the context of international migration by asylum seeking and refugee children (UNICEF, 2007, p. 311), the Committee has urged States Parties to provide assistance and protection to internally displaced children (2000, paras. 57, 68, 2006a, paras. 78, 79), consistent with the particular needs of these children as outlined by the UN in its Guiding Principles on Internal Displacement (Deng et al., 2004). Similarly, the Committee has expressed concern regarding States Parties' failures to take account of the particular needs of children as economic migrants (2006b, paras. 68, 69), even though they may have no particular claim to protection as refugees fleeing persecution within the meaning of the 1951 Refugee Convention or Article 22.

#### General Principles

Article 2 Refugee children or their parents are often forced into migration by patterns of discrimination, for example on the basis of ethnic or religious affiliation, language, or sexual orientation. All asylum seeking and refugee children are already at a disadvantage in relation to their peers and that very status attracts the protection of Article 2's non-discrimination principle (UN Committee on the Rights of the Child, 2005a, para. 18). Certain classes of marginalised children are at particular risk in migration contexts, for example disabled children, children of minorities, indigenous children, LBGTQ youth, and current and former child soldiers. States Parties must take positive measures to ensure de facto equality of migrant children in host societies as well as in the case of children returned to their country of origin (UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child, 2017a, paras. 21–26).

Article 3 The overarching consideration in implementation of child refugee claims under Article 22 will always be the best interests of the individual child or children in the case (Ceriani Cerandas, 2015, p. 339; Vučković-Šahović et al., 2012, p. 332). This basic principle must be respected during all stages of the displacement cycle, and decisions at any of these stages must be appropriately documented through a formal and rigorous best interests determination (UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child, 2017a, paras. 27–33; UN Committee on the Rights of the Child, 2005a, paras. 19–22). The Committee has emphasised in particular that 'the best interests of the child should be ensured explicitly through individual procedures as an integral part of any administrative or judicial decision concerning the entry, residence or return of a child, placement or care of a child, or the detention or expulsion of a parent associated with their own migration status' (UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child, 2017a, paras. 27–33; UN Committee on the Rights of the Child, 2005a, paras. 19–22).

Article 6 The protection of child rights in many states is at its weakest in immigration contexts (Harris et al., 2009; van Bueren, 2007, p. 123; Vučković-Šahović et al., 2012, pp. 165–170), and it is often the denial of the child's right to maximum survival and development that is the major root cause of migration (legal and illegal) of children, adolescents, and their parents (Ceriani Cerandas, 2015, p. 338) This underscores the importance of appropriate safeguarding of Article 6 rights in addressing the root causes of mass migrations of children and families the world over. At the same time, children in transit engage in threatening and extremely dangerous migration journeys and States Parties have obligations to take special measures to protect and assist children. Immigration policies should focus on facilitating and regulating mobility rights rather than on repressive detention and deportation practices, so as to advance Article 6 rights and not violate them (UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child, 2017a, paras. 40–44). The child's right to optimum development also must inform Article 22 rights in relation to immigration policy affecting the deportation or detention of a child's parent (UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child, 2017a, para. 44).

Article 12 Children in migration contexts are vulnerable in relation to their participation rights. They are regularly denied standing and treated as mere dependents of adult asylum seekers. The Committee, in its Joint General Comment no. 22, strongly reinforces the States Parties' obligation to ensure child participation in immigration matters affecting both children and their parents, as their best interests will be in play in both instances and children often have 'their own migration projects and migration-driving factors' (UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child, 2017a, paras. 34–39).

#### Articles Related or Linked to Article 22

Article 7 proclaims the child's right to a name and nationality and to be cared for by his or her parents, both aspects of which come into play in every child migration journey.

Article 8 protects children's right to preserve their name, nationality, identity, and family relations and to be reconnected with family if these relations are disrupted, as may happen during migration.

Article 9 establishes the right to not be separated from one's parents unless it is necessary in one's best interests as determined by competent authorities and therefore intersects with the family reunification principle in Article 22.

Article 10 establishes the child's right to family reunification, to be dealt with in a positive, humane, and expeditious manner, a right which will almost invariably be read jointly with Article 22.

Article 11 establishes the child's right to be protected from international abduction, another situation which will attract scrutiny in relation to Article 22.

Article 16 affirms the child's right to privacy and the inviolability of his or her family life, rights which are often jeopardised during child migration journeys.

Article 20 establishes the child's right to alternative care if deprived of his or her family, as may happen as a result of immigration detention practices.

Article 21 elaborates the child's rights in relation to adoption, rights which are not diminished by a child's migrant status.

Article 35 establishes the child's right to be protected from abduction, sale, or trafficking which may intersect with Article 22 rights in relation to international trafficking.

Article 37 establishes protection of children from deprivation of liberty, except as a measure of last resort, including in relation to immigration processes where detention of children should be strictly avoided.

Article 38 asserts the child's right to protection from early enlistment, and these rights may intersect with Article 22 rights of children whose migration journeys cross conflict zones.

Article 39 establishes the right to recovery and reintegration for child victims of neglect, exploitation, abuse, torture, cruel treatment, or armed conflict, and migrant children may be at higher risk of abuse and their rights to recovery and rehabilitation should not be overlooked.

Optional Protocol on the involvement of children in armed conflict.

Optional Protocol on the sale of children, child prostitution and child pornography.

#### Relevant Instruments

UN Convention Relating to the Status of Refugees (1951).

UN Convention relating to the Status of Stateless Persons (1954).

UN Convention on the Reduction of Statelessness (1961).

International Covenant on Civil and Political Rights (1966), Articles 12 and 13. UN Protocol Relating to the Status of Refugees (1967).

UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).

UNHCR Refugee Children: Guidelines on Protection and Care (1994).

UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000).

UNHCR Inter-agency Guiding Principles on Unaccompanied and Separated Children (2004).

UNHCR Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (2009).

The Geneva convention for the amelioration of the condition of the wounded and sick in armed forces in the field (1949), and their Protocols I and II.

Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993).

European Convention on Human Rights (1950), Protocols 4 and 7 on non-expulsion of nationals and foreigners.

American Convention on Human Rights 'Pact of San Jose, Costa Rica' (B-32) (1978), Article 22, Freedom of Movement and Residence.

African Charter on Human and Peoples' Rights (1981), Article 12, Freedom of Movement and Residence.

African Charter on the Rights and Welfare of the Child (1990), Article 23, appropriate protection and humanitarian assistance for Refugee Children.

#### Attributes

### Attribute One: Appropriate Protection and Humanitarian Assistance

The first attribute guarantees to asylum seeking and refugee children the same substantive rights as are guaranteed to all children. This is the meaning of 'appropriate protection' as opposed to 'special protection' as first proposed in the Travaux Préparatoires (UNICEF, 2007, p. 306). Refugee children are not granted a special status under the Convention, but they are not given any lesser status. They are to be treated as children first and foremost and not as migrants per se (Ceriani Cerandas, 2015, p. 339), in the sense that national immigration policy cannot trump child rights. The basic rights to education, health, and child welfare of these children needs to be protected to the same extent, and as much as possible, as children who are nationals of the host country (Ceriani Cerandas, 2015, p. 339). The criterion of humanitarian assistance amplifies the concept of appropriate protection. For example, in addition to mainstreaming refugee children in regular school classrooms, they may need therapy to assist with their recovery from traumatic journeys and successful integration into a new host culture (UNICEF, 2007, p. 306; UN Committee on the Rights of the Child, 2005b, para. 42). Humanitarian assistance should avoid discriminatory consequences as between categories of entrants in family reunification cases (UN Committee on the Rights of the Child, 2005c, paras. 63, 64); it should avoid detention of children for immigration purposes (UN Committee on the Rights of the Child, 2005a, paras. 61–63) and possibly also of their parents (Ceriani Cerandas, 2015, pp. 347–348); it should help defend the principle of non-deportation of children (Ceriani Cerandas, 2015, pp. 342–343); and reinforce the child's right to preserve his or her family life (Ceriani Cerandas, 2015, pp. 348–349; UN Committee on the Rights of the Child, 2005a, paras. 82, 83).

### Attribute Two: Preservation of Rights

The second attribute preserves the rights of refugee children not only under the Convention but under all other international human right treaties and humanitarian instruments binding on the relevant States Party. These may include, for many governments, the 1951 Refugee Convention, the Convention on the Reduction of Statelessness, the Geneva Conventions and the Hague Convention for the Protection of Minors, 1961, among others. Careful consideration must be given in interpreting and determining claims in relation to Article 22 to the many other public and private international law provisions that may bear on the child's status.

The United Nations High Commissioner for Refugees has published guidelines in relation to child asylum claims that adapt the fear of persecution standard under the 1951 Refugee Convention and/or its 1967 Protocol to:

mutilation, forced or underage marriage, hazardous child labour, forced prostitution, family and domestic violence, and child pornography (UN High Commissioner for Refugees, 2009, paras. 13–18).1

With respect to unaccompanied and separated children, the Inter-agency Guiding Principles on Unaccompanied and Separated Children are especially helpful in clarifying priority focus areas for intervening effectively with these vulnerable youth, but they should not be interpreted as minimum standards or used to read down any of the rights of unaccompanied minors under the Convention. More recently, the Office of the High Commissioner for Human Rights developed The Principles and practical guidance on the protection of the human rights of migrants in vulnerable situations. It provides specific child protection measures for unaccompanied and separated children who do not qualify for international protection as refugees and who may need assistance, regardless of their status, and giving primary consideration at all times to the best interests of the child (UN High Commissioner for Human Rights and Global Migration Group, 2018).

### Attribute Three: Duty to Protect and Assist at National and International Level

The obligation to protect and assist contains a clear duty to provide children with appropriate due process rights throughout the several stages of their asylum and refugee claims procedures. These would include the child's right to be heard and participate in all the processes determining the child's residence or immigration status, including border admission, deportation, repatriation, detention, alternative measures, or placement, including best interest determination processes. It would also include the child's right to an interpreter, a legal representative, and to a guardian. Interviews and hearings should be conducted in a child-friendly manner and should include similarly child-friendly appeal mechanisms (Vučković-Šahović et al., 2012, p. 233). Legal aid should be provided freely to child asylum seekers by lawyers trained in child rights and accustomed to working in culturally sensitive multidisciplinary teams involving psychologists, social workers and traumainformed care providers (Ceriani Cerandas, 2015, p. 347).

States Parties' also have obligations to protect and assist asylum seeking and refugee children in cooperation with UN agencies and other international organisations. From the outset, the framers of the Convention recognised the pivotal role played in this field by the High Commissioner for Refugees, as well as by the several organisations involved in the development of the Inter-agency Guiding Principles, such as the Red Cross, Save the Children, UNICEF, and World Vision. This

1 With reference to the relationship between the Convention and the larger system of provisions on refugee protection, see also 'Article 22: Refugee Children' (Pobjoy, 2019, pp. 822–824).

cooperation, including with the International Organization for Migration, is particularly important in tracing family members, promoting family reunification, and monitoring child migration patterns.

### Attribute Four: Best Interests and Family Reunification Principles

Finally, two basic principles should guide each activity with the refugee child: the best interests of the child and the principle of family unity (Vučković-Šahović et al., 2012, p. 232). After extensive field testing, the Commissioner for Refugees adopted, in May 2008, its Guidelines on Determining the Best Interests of the Child (United Nations High Commissioner for Refugees, 2008). While they are only one reference tool in the practitioners' toolkit, they have helped standardise and provide practical guidance in operationalising the best interests principle in child refugee determination processes in many states (Ceriani Cerandas, 2015, p. 342). Best interests procedures require a holistic child rights-based approach child refugee determination processes that factors in human and budget resources, training in children's rights and inter-institutional coordination, drawing upon the cooperation and evidence available from countries of origin, transit, and destination (Ceriani Cerandas, 2015, p. 342).

Family reunification has to comply with the principle of non-refoulement: a child cannot be returned to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child, either in the country to which removal is to be effected or in any country to which the child may subsequently be removed (UN Committee on the Rights of the Child, 2005a, para. 27). Family reunification should be based on a robust assessment of upholding the child's best interests as a primary consideration and should not be delayed because of a best interests procedure, considering family reunification as one aspect, not the sole aspect, and with a sustainable reintegration plan and after guaranteeing the child's right to participate in the process (UN Committee on the Rights of the Child, 2005a, paras. 79–83).

#### References

Ceriani Cerandas, P. (2015). The human rights of children in the context of international migration. In Routledge international handbook of Children's rights studies (pp. 331–356). Routledge.

Deng, F. M., UN Representative of the Secretary-General on Internally Displaced Persons, & UN Office for the Coordination of Humanitarian Affairs (OCHA). (2004). Guiding Principles on Internal Displacement, [ST/]OCHA/IDP/2004/1 (E/CN.4/1998/53/Add.2). UN, OCHA. Retrieved November 29, 2020, from https://www.unhcr.org/protection/idps/43ce1cff2/guid ing-principles-internal-displacement.html

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

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## Chapter 37 Article 35: Prevention of Abduction, Sale, and Trafficking

Adem Arkadas-Thibert and Gerison Lansdown

States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.

#### What Did Children Say?

'There should be strong laws against child abduction and trafficking made by the government to protect the interest of children.' (Africa).

For every child crossing the border, the state must create an administrative document for the consent of the child and his or her parents and caregivers. (Africa).

Governments should train special formidable force in executing duties in rescuing and rehabilitation of victims and prosecuting perpetrator. (Africa).

'Is government encouraging children to speak up about issues?' (Latin America/Caribbean).

A. Arkadas-Thibert (\*) Marseille, France

G. Lansdown Carleton University, Ottawa, ON, Canada

© The Author(s) 2022 Z. Vaghri et al. (eds.), Monitoring State Compliance with the UN Convention on the Rights of the Child, Children's Well-Being: Indicators and Research 25, https://doi.org/10.1007/978-3-030-84647-3\_37

369

#### Overview

Protection from many forms of exploitation of children, such as intercountry parental abduction, adoption for profit, forced labour, sexual exploitation, and military recruitment, are covered under the Convention. Article 35 adds an extra layer of protection, reinforcing States Parties' obligation to have preventive measures against acts of abduction, traffic, or sale of children, not only across borders but also within their jurisdiction. It recognises that States Parties have wide-ranging national, bilateral, and multilateral obligations of prevention of all acts that render the child into some form of commodity. Therefore, it serves as a supplementary layer of protection for children from commercial exploitation.

Since the Convention was drafted, awareness of all forms of trafficking has become much better understood, while the emergence of the digital environment has exposed children to significantly greater risks in this regard.  In recognition of the need to strengthen protection of children, in 2000, the Committee published the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, and in 2019, developed guidelines to enable more effective implementation (2019).

The Travaux Préparatoires of the Convention reveal that it was first suggested to have one composite article combining Articles 34 (commercial sexual exploitation of children), 35, and 36 (all other forms of exploitation) to cover sexual and other related forms of exploitation. However, drafting delegates opted for separate articles to provide a wider and fail-safe protection for children as the sale or traffic of children was wider in scope than that of sexual exploitation (Office of the United Nations High Commissioner for Human Rights and Rädda barnen (Society: Sweden), 2007, pp. 723–737). Neither the Travaux Préparatoires nor Article 35 provide definitions for abduction of, sale of, or trafficking in children. It has, however, been addressed in multiple subsequent international instruments and it is to these other instruments that one can turn for more specific definitions.

Abduction means the removal or the retention of a child in breach of rights of custody internationally and within the borders of the States Party.1 In the context of Article 35, this means any non-familial abductions, as abductions between family members would fall under Article 11 (Gallagher, 2019, p. 1362).

Sale of children means 'any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration.' This definition, from the Optional Protocol on the sale of children, child

1 See the full definition in the Convention on the Civil Aspects of International Child Abduction, Article 3.

prostitution and child pornography, Article 2, clearly interprets sale of children as being a form of exploitation. The Committee has recognised that the sale of children can be not only for sexual exploitation, but also, for example, for the purposes of transfer of organs, engagement in forced labour, and situations in which adoption constitutes the sale of children (UN Committee on the Rights of the Child, 2019, para. 14).

Trafficking in persons means the recruitment, transportation, transfer, harbouring, or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. 'Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.' This definition, from the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, Article 3, has been recognised by the Committee and it has acknowledged a number of practices as falling within the scope of Article 35, including sexual exploitation, forced and exploitative labour, begging, forced and temporary marriage, and domestic servitude. Three aspects (action, means, and purpose) must be involved to constitute trafficking (Gallagher, 2019, p. 1364).

In addition, the United Nations Working Group on Contemporary Forms of Slavery has recognised forced marriage as a form of contemporary slavery, trafficking, and sexual exploitation (UN Working Group on Contemporary Forms of Slavery, 2003). The African Charter on the Rights and Welfare of the Child includes the use of children in all forms of begging in Article 29(b). This is a form of exploitation not mentioned in other human rights treaties.

The Committee has noted that abduction, trafficking, and sale of children are linked yet distinct phenomena, but States Parties largely concentrate on trafficking in children to deal with these three different forms of commercial exploitation. This creates a gap in collection of data and subsequent knowledge for States Parties to introduce relevant and targeted measures of prevention (Giammarinaro et al., 2017, para. 16).

#### General Principles

Article 2 Every child has the right to be protected from abduction, trafficking, or sale. Certain groups of children are more at risk than adults and/or other children, for example, children of minority gender or sex identities and orientations, children with disabilities, children in institutions, migrant children, children in street situations, and children in other vulnerable or marginalised situations (UN Committee on the Rights of the Child, 2019, para. 13). The Committee has highlighted the gender dimension of such offences against children and noted that although most victims are girls, boys are also vulnerable. Despite this, very few support structures for boys are in place (2019, para. 4). States Parties must introduce measures to identify, prevent and protect all such children from abduction, sale, or trafficking.

Article 3 Children's current and future safety is one of the fundamental tenets of the child's best interests (UN Committee on the Rights of the Child, 2013). Effective preventive and protective measures for children must be taken to guarantee the best interest of the child. In particular, in criminal justice systems, the best interests of the child who is a victim of crimes of abduction, sale, or trafficking must be the primary consideration (UN General Assembly, 2001, Article 8, para. 3). This includes decriminalisation of children involved as victims or used as instruments in such crimes.

Article 6 All forms of exploitation of children constitute a threat to the fulfilment of their right to life, survival, and development (UN Committee on the Rights of the Child, 2011, para. 15).

Article 12 Children, including 'child victims of physical or psychological violence, sexual abuse or other crimes,' have the right to be heard in any judicial proceedings, as victims or subjects, and administrative proceedings, as agents to shape policies and actions (UN Committee on the Rights of the Child, 2009, paras. 32, 118–121). Children have rights to access information, including life skills and the knowledge to protect themselves from exploitation, and seek assistance and justice whenever needed. States Parties should seek to include children in the processes of both drafting and implementing legislative and policy measures. Consultations with children must be carried out in an age-appropriate and gender-sensitive manner by adults with the necessary training and resources (UN Committee on the Rights of the Child, 2019, para. 12).

#### Articles Related or Linked to Article 35

Article 11 addresses measures to deal with international abductions between family members.

Article 21 protects children from sale in the form of international adoption for the purposes of financial gain.

Article 24(3) requires States Parties to take measures to effectively abolish traditional practices, such as child marriage, as a form of sale of or traffic in children, which are detrimental to the rights and well-being of children.

Article 26 requires States Parties to provide children with available, accessible, and quality social security in accordance with their circumstances and their care providers' resources, and in so doing reduces the child's risk of being in a position of exploitation.

Article 27 requires States Parties to provide the child with adequate living conditions for their physical, mental, spiritual, moral, and social development. This serves as a preventive and protective measure from abduction, sale, or traffic in children.

Article 32 protects children against trafficking, forced labour, and slavery-like working conditions.

Article 33 protects from the use of children in crimes of illicit substance trafficking.

Article 34 protects from children's use in the sex trade, in prostitution, in the production of pornography, or through forced marriages.

Article 36 protects from all other forms of exploitation, including those involving information and communication technologies.

Article 38 protects children in conditions of war, where children can be forced to become soldiers or servants to armed forces.

Article 39 requires States Parties to provide the child who is exposed to abduction, sale, or trafficking with physical and psychological recovery and social reintegration.

Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, esp. Article 3 (2000).

Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (2000).

#### Relevant Instruments

UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000).

Hague Convention on the Civil Aspects of International Child Abduction (1980).

Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993), especially Article 1.

ILO Convention 182, Worst Forms of Child Labour (1999), especially Article 3.

American Convention on Human Rights 'Pact of San Jose, Costa Rica' (B-32) (1978), Articles 6 and 19.

African Charter on Human and Peoples' Rights (1981), especially Article 5. African Charter on the Rights and Welfare of the Child (1990), Article 29. Inter-American Convention on International Traffic in Minors (1994).

#### Attributes

#### Attribute One: National, Bilateral, and Multilateral Measures to Prevent Abduction, Traffic, and Sale of Children

Article 35 provides that States Parties must set up preventive measures to remove risk factors of abduction, traffic, and sale of children, including through national, bilateral, and multilateral level agreements, in order to address the phenomenon both within and beyond the states' borders. Such agreements should involve state agencies, law enforcement actors, judicial authorities, and other relevant stakeholders.

The obligation to prevent abduction, traffic, and sale of children requires that measures are undertaken to identify those groups of children likely to be vulnerable, as well as addressing the political, social, economic, and cultural root causes of that vulnerability. States Parties should provide information and awareness raising of the risks for parents, teachers, and other professionals, mandatory education in schools on how children can keep safe and protect themselves, including online, and effective measures for safe reporting and effective and prompt responses to any reports of such harm (UN Committee on the Rights of the Child, 2019, paras. 37–40).

Access to legal documentation such as birth certificates, to equality education, and strategies to address the particular vulnerabilities of some groups can also serve to protect children. States Parties must adopt measures to address both employer and consumer demand for cheap labour and goods (Gallagher, 2019, p. 1394). Finally, they must undertake regular monitoring and sharing of information about the state of children who are exposed to abduction, sale, or trafficking locally, nationally, and regionally, together with provision of data or supporting research on the issues concerned, and introduce international and national strategies and plans of action to eradicate them.

#### Attribute Two: Establishing a Protective Legal and Policy Framework

Article 35 requires States Parties to introduce deterrent, preventive, and reactive legislation and policies, including criminalising trafficking and related offences, together with appropriate sanctions, as well as establishing effective mechanisms of investigation and prosecution for the abduction, traffic, or sale of children. The Committee has emphasised the importance of appropriately trained law enforcement officials for dealing with trafficking in children (2012a, para. 82, 2012b, para. 64). The rules for criminal jurisdiction must ensure that perpetrators can be punished wherever the offences take place, as required in the Optional Protocol on the sale of children, child prostitution and child pornography (UN Committee on the Rights of the Child, 2019, pp. 80–89).

Prevention efforts, including legislation, must recognise that children exposed to abduction, sale, and trafficking are victims, not criminals. The Committee, for example, has emphasised that victims of trafficking must not be criminalised solely for reasons of their illegal entry or presence in the country' (2005, para. 62, 2010, para. 75, 2016, para. 64 (c)). Where children who are victims of trafficking are subsequently detained for the purposes of safeguarding and protection of their rights, the conditions under which they are cared for must be governed by their best interests and take account of their vulnerability to abuse, victimisation, and further violation of their rights (Gallagher, 2019, p. 1383).

In any criminal proceedings, child victims must be provided with legal representation and counselling, interviews must be held without delay and in a child-friendly environment, and the child's privacy and safety must be protected at all times. Any decision concerning repatriation should take account of the child's safety, availability of care, the child's views, duration of absence from the home country, and the child's right to preservation of identity (UN Committee on the Rights of the Child, 2005, para. 84).

#### Attribute Three: Protection of Survivors/Victims of Abduction, Sale and Trafficking

The priority in respect of Article 35 must be to protect children's human dignity and their rights. As enshrined in Article 39 of the Convention, States Parties must take all appropriate measures to promote the recovery and social reintegration of child victims (Hodgkin et al., 2007, p. 538). Article 35 also implies that States Parties must ensure that survivors or victims of the abduction, traffic, or sale are identified, protected, and supported. A comprehensive range of measures are recommended in Article 8 of the Optional Protocol on the sale of children, child prostitution and child pornography, as well as Articles 6 through 8 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and further elaborated in the Committee Guidelines to the Optional Protocol. The articles include measures to ensure privacy and confidentiality, physical safety and protection from further harm, access to information, access to justice, being heard effectively, support for recovery, medical, physical and psychological assistance, compensation, and opportunities for repatriation where appropriate.

#### References

Gallagher, A. (2019). Article 35: Protection against the abduction, traffic and Sale of children. In J. Tobin (Ed.), The UN convention on the rights of the child: A commentary (pp. 1356–1401). Oxford University Press.

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# Chapter 38 Article 38: The Right to Protection from Armed Conflict

Gerison Lansdown

#### What Did Children Say?

'Children have to be educated on the dangers of armed conflict. A law has to be there that would protect children from participating in armed conflict.' (Africa).

(continued)

G. Lansdown (\*) Carleton University, Ottawa, ON, Canada

© The Author(s) 2022 Z. Vaghri et al. (eds.), Monitoring State Compliance with the UN Convention on the Rights of the Child, Children's Well-Being: Indicators and Research 25, https://doi.org/10.1007/978-3-030-84647-3\_38

379

Children should never be forced to fight in the armed or militia forces, go to war or engaged in any conflict. (Africa).

Useful activities to engage children with rather than having free time to engage in those military parties. (Asia-Pacific).

Awareness workshops for children against recruitment to the armed conflicts and to be a child soldier. (Asia-Pacific).

#### Overview

Article 38 introduces a framework for the protection of children in situations of armed conflict, both as civilians and as combatants or recruits to state armed forces or non-state armed groups. When drafted, it was unique in introducing international humanitarian law into a human rights treaty, thus affording it universal application, rather than being applicable only in times of armed conflict (Ang, 2005, p. 10). During the drafting process, Article 38 was probably the most contentious of all the Convention provisions, with strongly divided opinions on the proposed minimum age of recruitment into armed forces, differentiation between recruitment into state and non-state forces, age and level of protection from participation in conflicts, and the extent of measures demanded of States Parties in providing protection (Office of the United Nations High Commissioner for Human Rights and Rädda barnen (Society: Sweden), 2007, pp. 775–799). Disagreement arose as to whether the Working Group charged with drafting the text of the Convention had the mandate to review existing standards for protection in international humanitarian law, while fears were also expressed that the text might undermine or weaken those existing standards (Office of the United Nations High Commissioner for Human Rights and Rädda barnen (Society: Sweden), 2007, p. 794). Faced with the risk of no provision at all, the result was a compromise text affording much lower levels of protection than many members of the Working Group were seeking. In response, the Optional Protocol on children in armed conflict was later developed to strengthen the standards, although it, too, falls short of the protections sought by many working in this field. In response, the Paris Principles, published by UNICEF in 2007, affirm that most child protection actors will continue to press for the raising of the age of recruitment or use of children to 18 years in all cases (UNICEF, 2007).

In summary, Article 38 requires of States Parties that they ensure compliance with international humanitarian law, protect children under the age of 15 from direct participation in hostilities, refrain from recruiting children under 15 into armed forces, and take measures to protect civilian children affected by armed conflict. The Optional Protocol on armed conflict strengthens these provisions by raising the voluntary recruitment age to 16 years, and encouraging further raising of that age, prohibiting compulsory recruitment under 18 years, as well as any recruitment under 18 years by armed groups, and imposing obligations on States Parties to ensure that children under 18 do not directly participate in hostilities (UN General Assembly, 2001, paras. 1–4). It is important to note that the Committee highlights the complexity of addressing children's rights in situations of conflict and insists that States Parties have obligations to take measures to secure all the rights of children within their jurisdiction during such times, with no differentiation between child civilians or combatants, thus affirming the human rights principle of universality (Ang, 2005, p. 29; UN Committee on the Rights of the Child, 1992, para. 62 (d)).1 Furthermore, the Convention is not subject to derogation in time of public emergency (Ang, 2005, p. 59; Hodgkin et al., 2007, p. 573; UN Committee on the Rights of the Child, 1992, para. 67).

#### General Principles

Article 2 All children suffer from exposure to armed conflict, but the Committee has highlighted the vulnerability of girls to systemic and serious sexual violence and sexual slavery in this context and urges States Parties to take measures to address the specific needs of formerly recruited girls in programmes of recovery and reintegration.2 In this regard, no differentiation must be made between children who have been recruited or used and those who have not (UNICEF, 2007, para. 3.3). Discrimination and exclusion also result in children with disabilities being disproportionately vulnerable to violence, exploitation, and sexual abuse (UN High Commissioner for Refugees, 2003). The severity of the problems faced by children with disabilities led to the development of guidelines by the UNHCR to highlight the risks, strengthen protection and encourage States Parties to provide appropriate support (UN Executive Committee of the UNHCR Programme, 2010, Chap. III A).

Article 3 All measures to protect children from participation in or exposure to the consequences of armed conflict are premised on the recognition that so doing is in their best interests and must be determined by those best interests (UNICEF, 2007, para. 3.4).

Article 6 Children's exposure to armed conflict either as a civilian or combatant intensifies risk to optimum development, as well as loss of life. It potentially places at risk the realisation of all rights. Article 38 and the OPAC are drafted, although arguably inadequately, to seek to provide the maximum possible protection to enable children to live and thrive even in situations of armed conflict. Programmes and policies intended to benefit children associated with armed forces or armed groups should be informed by a child development perspective. Furthermore, in accordance with Article 37, capital punishment or imprisonment for life without possibility of release shall never be used against any person who is proved to have committed an

1 See also, for example, Concluding observations: Cambodia (2000a, para. 48).

2 See, for example, concluding observations for Colombia, (2015, para. 65) and Democratic Republic of Congo (2017a, para. 48).

offence against international or domestic criminal law while under 18 years of age (UNICEF, 2007, para. 3.9, 3.10).

Article 12 The Committee has consistently recommended that children must be involved in the development of all legislation, policies, and programmes that affect them (2009, para. 27, 2016a, para. 23). It has stressed the imperative to involve children in peace movements, programmes of non-violent conflict resolution, resilience building, and peace processes (2015, para. 65, 2016a, para. 82).

#### Articles Related or Linked to Article 38

Article 7, as children who are not registered at birth or subsequently are more vulnerable to underage recruitment into state armed forces or armed groups.

Article 8, as children caught up in armed conflict are at risk of loss of identity through loss of relevant papers.

Article 10 provides for the right to reunification in context of separation from families during or following armed conflict.

Article 11, as armed conflict can increase the risk of illicit transfer of children.

Article 13, since rights to freedom of expression may be curtailed in situations of armed conflict.

Article 15, as the right to peaceful of assembly may be curtailed in situations of armed conflict.

Article 19, as children affected and/or involved in armed conflicts are more at risk of experiencing neglect, violence, and abuse.

Article 22 applies as children may need to seek refugee status in situations of conflict.

Article 23, since armed conflict both places children at risk of experiencing disabling injuries and those who have a disability are at greater risk.

Article 24, as the right to health is potentially jeopardised in situations of conflict.

Article 28, since protecting the right to education needs to be prioritised in situations of armed conflict.

Article 29, since preparation for life in spirit of peace takes on added significance in both mitigating risk of conflict and promoting peace post-conflict.

Article 31, as exercising the right to play and leisure affords children opportunities to escape and heal in the context of the traumatic experiences of armed conflict.

Article 32, as forcible recruitment into armed forces or groups constitutes a prohibited form of worst child labour.

Article 34, since children, especially girls, can be exposed to sexual violence and exploitation in situations of armed conflict, both as civilians and as conscripts into armed forces or groups.

Article 35, since, in armed conflict, children are more at risk to be abducted, trafficked, or sold for various purposes including recruitment into armed groups.

Article 36, as armed conflict renders children vulnerable to all forms of exploitation.

Article 37, as children can be subjected to torture, and other forms of cruel, inhuman and degrading treatment in situations of conflict, both as civilians and as conscripts into armed forces or groups.

Article 39, as children must be provided with opportunities to achieve physical and psychological recovery and reintegration, both after release from recruitment into armed forces and direct experience of conflict as a civilian.

Article 40, since there is no consensus at the international level as to the appropriate minimum age for prosecution of child soldiers.

Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OPAC), 2000

#### Relevant Instruments

A significant number of instruments contribute to the body of international and regional humanitarian and human rights law, and impact on the rights of children in the context of armed conflict. The following are the most relevant.

UN Declaration of the Rights of the Child (1959) Principle 8.

International Covenant on Civil and Political Rights (1966), Article 24.

UN Declaration on the Protection of Women and Children in Emergency and Armed Conflict (1974).

UN Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Ottawa Convention or the Anti-Personnel Mine Ban Treaty) (1997).

UNICEF Principles and guidelines on children associated with armed forces or armed groups (Paris principles) (2007).

The Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field (1949), the Fourth Convention, the later (1977) Additional Protocol One to Geneva Conventions, dealing with international conflicts and in particular Article 77 and 78 that introduce specific protection to children, and the later (1977) Additional Protocol Two to the Geneva convention, dealing with non-international conflicts, and in particular Article 4 on special measures for children.

ILO Convention 182, Worst Forms of Child Labour (1999), forced recruitment of children is defined as a worst form of child labour.

African Charter on the Rights and Welfare of the Child (1990), Article 22 establishes age 18 as minimum for all compulsory recruitment and participation in hostilities.

Rome Statute of International Criminal Court (1998) establishes as war crimes: enlistment and use of persons under age 15 a war crime, attacks on schools and hospitals, rape and other forms of violence against children.

#### Attributes

#### Attribute One: Respect for International Humanitarian Law Applicable to the Child

It is important to note that humanitarian law, which comprises Hague law, dealing broadly with use of weapons, and Geneva law that serves to protect those affected by conflict, only applies during the period of an armed conflict.3 Furthermore, the Geneva Conventions and protocols only extend protection to those who do not take part in hostilities and therefore provide no protection for children recruited or used as combatants. It therefore contrasts, and is, to some extent, in tension with Article 38, paragraph 1 (and indeed, the Convention in its entirety), which applies to all children under 18 years, consistent with Article 1, whether civilian or combatants. This is a complex arena of law, but the Committee has sought to address it, by arguing that Article 41 of the Convention asserts that States Parties must always apply the norms most conducive to the rights of the child, whether in applicable international law or national legislation (1992, para. 75 (e)).4

Article 38 applies to both internal and external conflicts. It requires States Parties to both respect and ensure respect for international humanitarian law applicable to children and provides the framework for effective monitoring of compliance with Article 38, together with relevant provisions of international humanitarian law. Paragraph 1 imposes an obligation on States Parties to respect the law, including in contexts where other parties to a conflict are not signatories to it (Kupreškić et al. (IT-95-16), 2000), and the obligation to ensure respect includes the regulation of behaviour of non-state actors such as armed groups, or rebel forces (de Detrick, 1999, p. 651). The Committee has also argued that the obligation extends to paramilitary groups and private companies (2001a, para. 6, 2004a, para. 71 (d)). Together they have been interpreted to require establishment of minimum ages for recruitment, dissemination of information on humanitarian law, provision of training programmes on the rights of the child, and implementation of penal obligations under international humanitarian law for breaches of the Geneva Conventions (1998, para. 14, 2017b, para. 67). The Committee has given a high priority to challenging impunity, recommending establishment of judicial mechanisms to deal with gross violations, and making sanctions widely known (2000b, para. 45). It has also called for States Parties to amend their penal law in order to provide for the exercise of extraterritorial jurisdiction for the offences committed by or against a citizen of the States Party (2010, para. 26). In its guidelines for OPAC, the Committee seeks detailed information on sanctions in force, their scope and the extent of their

3 See 'The Geneva Conventions of 1949 and their Additional Protocols' (International Committee of the Red Cross, 2010).

4 See also 'The Rights of Children in Armed Conflict' (Tobin & Drumbl, 2019, pp. 1511–1514) for a fuller discussion of the relationship between international humanitarian law and human rights law.

application and implementation (2007a, paras. 20–26). It also calls for states to become parties to all relevant instruments (2007a, para. 22).

#### Attribute Two: Age Limits on Participation in Hostilities

Article 38 must be applied with regard to international humanitarian law, as well as the provisions of OPAC. However, the protected age for participation in hostilities and the nature and scope of protection varies significantly in the different instruments.

Article 38 paragraph 2 introduces 15 years as the minimum age for direct participation in hostilities. This is amended by OPAC which demands 'all feasible measures' to ensure that children under age 18 in the armed forces do not take a direct part in hostilities but provides stronger protection in respect of armed groups which are prohibited from allowing any participation of children under 18 years. 'All feasible measures' is a weak requirement that does not appear elsewhere in international human rights language and there is no clear definition of its meaning. However, despite the limitations of Article 38 and OPAC, the Committee has consistently pressed States Parties to employ 18 years as the minimum age for any participation in hostilities (2017a, para. 48). Their focus is on determining outcomes (whether any actual participation has taken place) rather than processes (what feasible measures have been adopted to preclude participation of persons under age 18).

Further complexities arise in respect of defining direct participation in hostilities. There is consistency in the interpretation of the concept of hostilities, which are commonly understood to describe acts of war intended to hit personnel and facilities of an opposing armed force, including preparations for and return from combat (International Committee of the Red Cross, 1987). In addition, a consensus exists that any participation is understood to be judged objectively and not in relation to the will or choice of the child in question (Ang, 2005, p. 36). However, the definition of 'direct participation' in hostilities is less clear. A higher standard applies in the Additional Protocols, which prohibit any participation by children in hostilities. The associated commentaries make clear that the intention was to keep all children away from all hostilities in every way (Ang, 2005, p. 38). The International Criminal Court appears to limit the definition to actual fighting, which narrows the scope and thereby allows for a far wider range of permitted activities on the part of children. Many types of indirect participation can expose children to significant risk, for example, engagement as messengers, spies, or porters. Again, the position of the Committee has been unambiguous, as it presses States Parties to ensure neither direct or indirect participation of any children under 18 years, and welcomes commitments from States Parties to adopt such policies (2004b, paras. 81–82, 2005a, paras. 69–70, 2005b, para. 82, 2005c, paras. 65–66).

#### Attribute Three: Age of Recruitment

As noted above, different standards prevail in different relevant instruments regarding age of recruitment. Article 38 prohibits recruitment of children under the age of 15 years and this prohibition applies to compulsory, forced, and voluntary recruitment (Ang, 2005, p. 50). Under International Labour Organization 182 and OPAC, compulsory or forced recruitment under age 18 is prohibited, and OPAC requires States Parties to raise the minimum age for voluntary recruitment to 16 years, and further urges States Parties to raise it to 18 years, taking into account that the Convention affords special protection for all children (UN General Assembly, 2001, Annex I, Article 3, para 1). It also prohibits any recruitment of persons under 18 by armed groups.

In respect of recruiting children aged between 15 and 18 years, Article 38 requires States Parties to endeavour to give priority to those who are oldest. This relatively weak formulation imposes an obligation merely of conduct, not of result. However, the commentaries to the Additional Protocols argue that the concept of 'endeavour' points to a duty, which can be extended by implication to the implementation of Article 38, to establish a system guaranteeing the obligation to apply the priority rule (Ang, 2005, p. 57). In any case, the Committee has made clear that it seeks an end to all recruitment of persons under 18 years old in all contexts, and consistently presses States Parties to take measures to achieve that objective (1992, para. 61 et seq, 2016b, para. 85, 2017a, para. 48, 2017c, para. 9). It also presses States Parties to take measures to de-mobilise children already recruited and to facilitate their recovery and reintegration (2017d, para. 38).

#### Attribute Four: All Feasible Measures of Care and Protection

Article 38, paragraph 4, requires States Parties to take all feasible measures to ensure protection and care for civilian children in accordance with obligations under international humanitarian law. Notably child combatants are excluded. General protection measures elaborated in international humanitarian law, such as the Geneva Conventions and their Additional Protocols, require humane treatment, including respect for life and physical and moral integrity, and they forbid coercion, corporal punishments, torture, collective penalties, and reprisals. Additional specific protections are afforded to children including, for example, the right to care and aid, family unity, special care for orphans or separated children, education, special treatment for children deprived of their liberty, and a prohibition on the death penalty. These provisions represent a considerable overlap with rights embodied in the Convention and the approach of the Committee is to identify violations in terms of all the applicable Convention articles, including the right to education. In relation to Article 38 paragraph 4, the Committee asserts education to be a core obligation in situations of emergency in light of its significance as a measure of physical, psychological, and cognitive protection (2008, para. 29), and also regularly raises States Parties' compliance with the Ottawa Convention on Landmines, urging action on de-mining, prevention, and rehabilitation for victims, as well as advocating ratification (2006, para. 69, 2007b, paras. 23, 78).

The formulation of 'all feasible measures' represents a considerable weakening of the provisions in the Geneva Conventions and Additional Protocols, which employ unambiguous language such as 'shall take all necessary steps' (Ang, 2005, p. 62). The Committee has taken a clear position on this, consistently employing stronger terms with which to press States Parties into action and demanding more than the strict letter of Article 38, paragraph 4, would indicate. For example, a formulation has been used stating that States Parties should 'at all times ensure respect for human rights and humanitarian law aimed at the protection and care of children in armed conflict' (UN Committee on the Rights of the Child, 2000c, para. 49, 2000d, para. 64, 2001b, para. 57 (a)).

With regards to the rights of children who are alleged to have committed offences, Articles 37 and 40, taken together with the United Nations rules and guidelines on juvenile justice and the Committee's General Comments no. 6 and no. 10, make clear that, although such children may be held accountable for crimes, any hearings to determine responsibility must be fair and entirely separate from the adult justice system and that the subsequent treatment of the child must be focused on achieving their rehabilitation, with deprivation of liberty used only as a last resort for the shortest appropriate time.

#### References

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# Chapter 39 Article 40: The Rights in the Juvenile Justice Setting

Roberta Ruggiero

	- (a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;
	- (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
		- (i) To be presumed innocent until proven guilty according to law;
		- (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;

(continued)

R. Ruggiero (\*)

© The Author(s) 2022

Centre for Children's Rights Studies, University of Geneva, Geneva, Switzerland e-mail<EMAIL_ADDRESS>
Z. Vaghri et al. (eds.), Monitoring State Compliance with the UN Convention on the Rights of the Child, Children's Well-Being: Indicators and Research 25, https://doi.org/10.1007/978-3-030-84647-3\_39

	- (a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;
	- (b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.

#### What Did Children Say?

'There should be visits in cells, do activities to know the rights because the children there are already stressed. A real human that walks around the cells.' (Western Europe/Other).

Government to build a training camp where child who may be convicted, sentenced for short time will do their time in prison and by the end of their jail term, and they will come out as a changed person. They need government to provide them with trained and qualify lawyers that will be looking into the case of juvenile. (Africa).

#### Overview

Article 40 imposes a child rights-based approach to juvenile criminal justice, with the objective of setting up a comprehensive and autonomous juvenile justice policy. Based on the General Comment no. 24, this policy should establish the minimum age of criminal responsibility and include measures to prevent children's offending behaviour. It should also focus upon the rehabilitation and reintegration of children in conflict with the law into society (UN Committee on the Rights of the Child, 2007a, paras. 2, 3, 10, 2019, paras. 17, 22,28; van Bueren, 2005, pp. 1–3). With the adoption of Article 40, the concept of the child's well-being and best interests become aspects of basic concern in the administration of juvenile justice. The specific physical, psychological, development, and educational needs of the child justify this requirement for a specialised juvenile justice system and the replacement of the traditional objectives of criminal justice repression and retribution, with 'rehabilitation and restorative justice objectives' (UN Committee on the Rights of the Child, 2007a, paras. 2–3, 10, 2019, paras. 22, 28).

Article 40 concerns the rights of all children alleged as, accused of, or recognised as having infringed the penal law, from the moment a complaint is made, through the investigation phase, the arrest, and the accusation, to the pre-trial period, the trial, and the sentence (Hodgkin et al., 2007, p. 601). Based on its experience in reviewing the States Parties' performance, the Committee has indicated that even though detailed attention is paid to the rights of children and many efforts are undertaken to establish juvenile justice systems in compliance with the Convention, there is still a long way to go. Progress is needed in relation to:

Article 40 provides a list of minimum guarantees for the child and identifies a series of States Parties' obligations meant to ensure the fulfilment of these guarantees. Even though the Convention is a holistic treaty, there are two other Articles dedicated to children in contact with the criminal justice system: Article 37 and Article 39, which extend the protection enshrined by Article 40. Article 37 bans the death penalty and life imprisonment 'without the possibility of release' and requires that any deprivation of liberty must be used as a last resort and for the shortest appropriate time. Article 39 requires States Parties to adopt 'measures to promote physical and psychological recovery and reintegration of child victims' (Hodgkin et al., 2007, p. 601).

The final version of Article 40 codifies the core elements of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules). The initial draft of the article was less ambitious and merely reproduced the texts of the pre-existing international standards dealing with the administration of justice. However, the drafters of the Convention realised they had the opportunity of strengthening the attention on children's rights in justice administration and of raising the status of The Beijing Rules (soft-law provisions) (van Bueren, 2005, p. 5).1

In comparison with related international human rights treaties, many of the provisions contained in Article 40 are de novo. In other words, they mirror the content of other treaties, but with a stronger child rights approach. This is particularly evident for the following issues as main principles of the juvenile justice system. (van Bueren, 2005, p. 7):

#### General Principles

Article 2 Based on the General Comment no. 10, States Parties must 'take all appropriate measures to ensure that all children in conflict with the law are treated equally' and special attention should be dedicated to vulnerable groups. Therefore, States Parties are requested to establish rules, regulations, and protocols to enhance equal treatment of child offenders and provide redress, remedies, and compensation.

Many children in conflict with the law are also victims of discrimination. Further discriminatory victimisation can affect former child offenders, trying to get education or work. States should intervene in order to prevent such discrimination and

1 The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) were adopted by the General Assembly in 1985, while the Convention on the Rights of the Child was being drafted. The Beijing Rules provide relevant standards for the implementation of the Convention.

provide former child offenders with appropriate support and assistance in their reintegration process into society, as required by Article 40 (1) (UN Committee on the Rights of the Child, 2007a, paras. 6–9). Moreover, criminal codes often contain provisions criminalising behavioural problems of children such as vagrancy, truancy, runaways, and other acts, which often are the outcome of psychological or socio-economic problems. These acts, 'also known as Status Offences, are not considered to be such if committed by adults' (UN Committee on the Rights of the Child, 2007a, para. 8). This is a form of discrimination that negatively impacts on children, particularly those belonging to vulnerable groups and poor households.2

Article 3 The principle of the best interests of the child is the basic concern of the juvenile justice system and it receives primary consideration in all decisions in this field. Furthermore, the specific physical, psychological, developmental, and educational needs of the child justify the necessity for a specialised juvenile justice system and a lesser culpability approach in the administration of justice for those in conflict with the law. Therefore, the protection of the best interests of the child implies the replacement of the traditional objectives of criminal justice, repression, and retribution, with the objectives of rehabilitation and restorative justice (UN Committee on the Rights of the Child, 2007a, para. 10, 2013, para. 28).

Article 6 Because of the negative impact of delinquency on child's development, States Parties should develop national programmes and undertake preventive measures meant to ensure the right to life, survival, and development of all children. Furthermore, this basic right should result in the state's policy responding to juvenile delinquency in ways from supporting the child's development to prohibiting the death penalty and a life sentence without parole (Article 37), and in which the deprivation of liberty, including arrest and detention, is used only as a measure of last resort and for the shortest appropriate period of time needed, as per Article 37 (b)) (UN Committee on the Rights of the Child, 2007a, para. 11).

Article 12 Throughout the juvenile justice process, the child must have the opportunity to express their views freely, and to those views should be given due weight in accordance with the age and maturity of the child (Article 12 (1)). 'He/she can be heard directly and not only through a representative or an appropriate body if it is in her/his best interests.' This applies to all stages of the process, such as the pre-trial 'when the child has the right to remain silent, as well as the right to be heard by the police, the prosecutor and the investigating judge', and also to the phases of adjudication, implementation of the sentence and imposition of measures (UN Committee on the Rights of the Child, 2007a, paras. 12, 43–45). For a comprehensive juvenile justice policy, based on the 'Riyadh Guidelines,' child participation should be furthered in governmental and non-governmental delinquency prevention programmes (paragraphs 3 and 9(h)) (Hodgkin et al., 2007, p. 609; UN Committee on the Rights of the Child, 2009, paras. 57–61).

2 See Article 56 of the Riyadh Guidelines.

#### Articles Related or Linked to Article 40

Article 13, since in order to fully participate during the different phases of the proceedings the child must be informed not only of the charges, 'but also of the juvenile justice process as such and of the possible measures' (UN Committee on the Rights of the Child, 2007a, paras. 47–48).

Article 16, right to privacy in connection with Article 40(2)(vii) (see below).

Articles 19, 32 and 34, as protection from all forms of violence and from economic or sexual exploitation during all the judicial and non-judicial process and the undertaking of the related measures.

Article 18 and Article 27, with reference to the importance of setting up a holistic policy on juvenile justice meant to

Both these articles refer to the importance of the educational role of parents from prevention on to the reintegration, in line with the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines).3 General Comment no. 10 reiterates the importance of the responsibility of parents for the upbringing of their children, but at the same time, it asks States Parties to provide the necessary assistance to parents (or other caretakers) in the performance of their parental responsibilities and confirm the States Parties' duty to promote the social potential of parents also for the prevention of juvenile delinquency (2007a, paras. 15–20).

Article 20 and Article 25, in relation to alternative care measures and the periodic review of placement or treatment. The principles of these provisions apply to all forms of placement of the child outside the family context. This implies the undertaking of constant monitoring of children placement for the purpose of care, protection, or treatment, to assess the quality of the child's life and their harmonious and full development. In particular, in relation to Article 25, the Committee underlines that it applies to all sentences imposed upon children, for which 'the possibility of release should be realistic and regularly considered' (UN Committee on the Rights of the Child, 2007a, para. 77).

3 United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) states: 'Measures should be taken and programmes developed to provide families with the opportunity to learn about parental roles and obligations as regards child development and childcare, promoting positive parent-child relationships, sensitizing parents to the problems of children and young persons and encouraging their involvement in family and community-based activities.' (UN General Assembly, 1991a, para. 16).

Article 24, with reference to the access to health care and the highest attainable standards, in particular in relation to all the forms of institutional placement and the deprivation of the liberty of the child.

Article 28, with reference to the fact that often penal sanctions interrupt education, proper juvenile justice systems should avoid this by following the standard set by Article 40 (UN Committee on the Rights of the Child, 2007a, paras. 18, 23, 89).

Article 29, in relation to the most important goal of the administration of juvenile justice: the promotion of the full and harmonious development 'of the child's personality, talents and mental and physical abilities.' As also indicated in the Preamble and in Article 6 of the Convention, the child should be prepared to live a responsible life, assuming a 'constructive role with respect for human rights and fundamental freedoms' of others (UN Committee on the Rights of the Child, 2007a, para. 16).

Article 37 bans the death penalty and life imprisonment 'without possibility of release' and requires that any restriction of liberty must be used as a last resort and for the shortest appropriate period. It integrates, together with Article 39, the protection enshrined in Article 40.

Article 39 requires States Parties to adopt 'measures to promote physical and psychological recovery and reintegration of child victims', particularly important also in the reintegration of the child perpetrator of a crime. It also integrates, together with Article 37, the protection enshrined in Article 40.

#### Relevant Instruments

International Covenant on Civil and Political Rights (1966):

	- to be informed promptly and in detail about the nature and cause of the charges
	- to have adequate time and facilities for the preparation of his defence
	- to be tried without undue delay
	- defence through legal assistance of his own choosing or if needed to have legal assistance assigned, and without payment in any such case where sufficient means are missing
	- to have the free assistance of an interpreter if he cannot understand or speak the language used in court
	- not to be compelled to testify against himself or to confess guilt.

UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (1985).

UN Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) (1990), are relevant to the implementation of Article 40(3)(b) and provide minimum safeguards for persons subject to alternatives to imprisonment.

UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines) (1990).

UN Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules) (1990).

American Convention on Human Rights 'Pact of San Jose, Costa Rica' (B-32) (1978), Article 5(5), states: 'Minors while subject to criminal proceedings shall be separated from adults and brought before specialised tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors'. This Article imposes a stricter States Parties' obligation to bring accused children before of a specialised tribunal, whereas Article 40(3) asks States Parties 'to seek to promote the establishment of laws, procedures, authorities, and institutions specifically applicable to children' (van Bueren, 2005, p. 8).

African Charter on Human and Peoples' Rights (1981), Articles 17 and 30, do not incorporate the States Parties' obligation to set up specialised juvenile justice institutions.

Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice (2010).

#### Attributes

#### Attribute One: Specialised Juvenile Justice System and the Related Comprehensive Policy (Article 40(1) and (3))

Article 40 (1) introduces the main innovative aspect of this article as the 'principle of children's rights approach to the administration of juvenile justice.' It sets the fundamental principles guiding the treatment of children in conflict with the law and, as explained in General Comment no. 24, suggests that the treatment is consistent with the age of the child and with the child's sense of dignity and worth. Furthermore, it should have an educative aim, meant to reinforce 'the child's respect for the human rights and fundamental freedoms of others' and to facilitate 'the child's reintegration and the child's assuming a constructive role in society' (UN General Assembly, 1991b), which is consistent with Article 29 of the Convention (UN Committee on the Rights of the Child, 2019, para. 15).

Article 40(3) requires States Parties to promote the setting up of a specialised juvenile justice policy and systems to be applied to children alleged as, accused of, or recognised as having infringed the penal law. This requires the establishment of dedicated laws, procedures, authorities and institutions such as specialised police units, judiciary, courts system, prosecutors' office and the provision of specialised defenders or other representatives for children and specialised services such as probation, counselling or supervision along specialised facilities, for example day treatment centres, facilities for residential care and treatment of child offenders (Hodgkin et al., 2007, p. 616; UN Committee on the Rights of the Child, 2007a, paras. 30–31, 90–95).4

#### Attribute Two: Fair Trial Principles for Children (Article 40 (2))

Article 40(2) identifies the main States Parties' obligations to ensure to the child the benefit of the principle of non-retroactivity of the penal law. This principle is as also mentioned in Article 15(1) of the International Covenant on Civil and Political Rights and from which no derogation is permitted (van Bueren, 2005, pp. 13–14).

Article 40(2)(a)) lists the legal rights of children alleged or accused of having committed a crime. Those include the following:

	- The right to see their case determined by a competent 'independent and impartial authority or judicial body', including administrative bodies. The broad formulation is meant to reflect the diversity of juvenile proceeding available throughout the world.
	- The right to 'have the matter determined without delay, in a fair hearing according to the law.' This is also emphasised in Article 10(2)(b) of the International Covenant on Civil and Political Rights.
	- The right to benefit from the presence of legal or other appropriate assistance 'unless it is not considered to be in the interest of the child', through a

4 See also Beijing Rules, Rule 2 (3) and A Commentary on the United Nations Convention on the Rights of the Child, Article 40: Child Criminal Justice (van Bueren, 2005, pp. 25–26).

well-trained, informed, and independent body whom the child can rely on and feel confident with.5 This should allow the child to participate directly or indirectly in the procedure, in the full exercise of Article 12(2) of the Convention on the Rights of the Child and Article 14(2)(b) of the International Covenant on Civil and Political Rights (van Bueren, 2005, pp. 15–20).

5 The qualification of the child's representative as legal or non-legal is meant to underline that the juvenile's representative ought to be a well-trained, informed, and independent professional.

### Attribute Three: The Establishment of the Minimum Age of Criminal Responsibility (Article 40(3)(a))

Article 40(3)(a) asks States Parties to establish a minimum age of criminal responsibility (MACR). Based on the interpretation provided in its General Comment no. 24, the Committee has clarified that:

#### Attribute Four: The Diversion Process and Alternatives Measures to Institutionalisation (Article 40(3)(b) and (4))

Article 40(3)(b) incorporates the principle of diverting children away from formal trial procedure whenever appropriate and desirable, 'providing that human rights and legal safeguards are fully respected.' The Committee's General Comment no. 24 clarifies that (2019) 7 :

6 See also the Beijing Rules Rule 4 and its interpretation, General Comment no. 7 (2006, para. 36 (i)) and the Implementation Handbook (Hodgkin et al., 2007, pp. 616–617).

7 See also the Beijing Rules Rule 4 and its interpretation, General Comment no. 7 (2006, para. 36 (i)) and the Implementation Handbook (Hodgkin et al., 2007, pp. 616–617).

8 This acknowledgement must not be used against the child in any subsequent legal proceedings.

9 The Beijing Rules expand on the use of diversion from judicial proceedings in rules 11, 14(1). See their official commentary (Hodgkin et al., 2007, p. 618).

The United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) are relevant to the implementation of Article 40(3)(b). The rules provide minimum safeguards for all persons subject to alternatives to imprisonment. They do not include any specific reference to children, but state that they should be applied with no discrimination based on age. Article 40(3)(b) also provides a connection with Article 37(b) and the provisions of alternatives to arrest, detention, and imprisonment (van Bueren, 2005, p. 28).

Article 40(4) identifies the duty of States Parties to provide a variegated range of measures as alternatives to institutional care, in order to not give the impression that diversion is a cheap solution or that States Parties follow a one size fits all solution. Based on the Convention, the diversion procedures need to suit the personal needs of each child and they should be proportionate to the child's circumstances and the offence committed (van Bueren, 2005, pp. 22–23, 30–31). Article 37 completes the protection enshrined in Article 40(4) and emphasises that depriving children of liberty must only be used as a last resort and for the shortest appropriate period' and it also bans capital punishment, life imprisonment without possibility of release, and any cruel, inhuman or degrading treatment or punishment' (Pinheiro, 2006, pp. 216, 217).

#### References

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# Part IX General Measures of Implementation

#### Articles 1, 4, 42 and 44(6)

#### Introduction

The articles covered in this part, unlike the articles in the previous parts, do not introduce rights. Rather, they provide the architecture within which and through which all the rights in the Convention on the Rights of the Child (the Convention) must be understood. They provide guidance to States Parties on the measures States Parties must adopt to support the implementation of children's rights.

Article 1 provides the definition as to who is a child under the terms of the Convention. This part elaborates how, after much debate, and a failure to reach a consensus by the original Working Group charged with drafting the Convention, the text avoids any prescription as to whether childhood commences at conception or birth. States Parties make that determination for themselves. However, it does affirm that all the rights it embodies apply to every child up to their eighteenth birthday.

Article 4 builds on earlier iterations of general implementation measures developed in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). It provides a comprehensive and overarching framework of all the measures that States Parties must undertake to give effect to the Convention rights and must be read and understood alongside each of those individual rights. Thus, while many articles in the Convention outline specific measures needed to ensure compliance, States Parties must also consider their implementation in accordance with the provisions of Article 4, as elaborated in the Committee's General Comment no. 5. This includes reconsideration of any reservations and ratification of relevant treaties, comprehensive reviews of legislation, and remedies for violations. It involves a broad range of administrative measures including national strategies, crossdepartmental coordination, transparency of budgets, the nature of engagement with the private sector and civil society, training and capacity building, monitoring, data collection, and establishment of national human rights institutions.

Article 4 also affirms that, again in accordance with the ICESCR and the ICCPR, implementation of economic, social and cultural rights in the Convention is subject to progressive realisation, in recognition of their significant resource implications. However, this accommodation does not provide an excuse for States Parties to avoid the responsibilities they undertook on ratification. On the contrary, States Parties are obliged to 'move as expeditiously and effectively as possible towards full realisation of economic, social and cultural rights' (Committee on Economic, Social and Cultural Rights (CESCR) 1990, para. 9). The Committee on the Rights of the Child (the Committee) has stressed that 'States Parties are expected to demonstrate that they have made every effort to mobilize, allocate and spend budget resources to fulfil the economic, social and cultural rights of all children' (2016, para. 30).

Finally, this part considers Articles 42 and 44(6), which impose obligations, respectively, to make the provisions of the Convention widely known to children and adults alike and to disseminate their reports to the Committee on the Rights of the Child to the public. These articles testify to the importance afforded to knowledge and awareness of what rights children have, understanding of how to exercise them, and information on the measures States Parties have undertaken to translate them into reality.

Overall, these articles provide the mechanisms to guide States Parties' implementation of the Convention and enable children and their families and advocates to hold those States Parties to account in meeting the obligations they have committed to respect, protect, and fulfil.

### References

### Chapter 40 Article 1: Definition of a Child

Gerison Lansdown and Ziba Vaghri

1. For the purposes of the present Convention, a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier.

#### Overview

While all international human rights treaties apply to children, only the Convention explicitly elaborates who is defined as a child. Article 1 defines the child as a human being who is below the age of 18 years.1 Majority is set at age 18 unless, under domestic law, it is attained earlier. During the negotiations of the text of the Convention, there was significant debate regarding definitions of both the commencement and the ending of childhood. The initial text, proposed by the Polish Government, drawing on Principle 1 of the UN Declaration of the Rights of the Child, 1959, provided no definition of childhood at all (Office of the United Nations High Commissioner for Human Rights and Rädda barnen (Society: Sweden), 2007,

G. Lansdown (\*) Carleton University, Ottawa, ON, Canada

Z. Vaghri University of New Brunswick, Saint John, Canada e-mail<EMAIL_ADDRESS>
© The Author(s) 2022 Z. Vaghri et al. (eds.), Monitoring State Compliance with the UN Convention on the Rights of the Child, Children's Well-Being: Indicators and Research 25, https://doi.org/10.1007/978-3-030-84647-3\_40

407

1 Article 1 is 'the first definition of the child in international law' (de Detrick, 1999, p. 52; Vučković-Šahović et al., 2012, p. 85).

p. 301). However, government delegates on the Working Group immediately highlighted the need for clarification. The first revision of the text therefore proposed that a child is a human being from birth to the age of 18 years unless majority is attained earlier. However, with regard to the beginning of childhood, the Working Group were unable to come to a consensus. An unresolvable division persisted on whether childhood, in respect of the Convention, commenced from the point of conception, or from birth (Office of the United Nations High Commissioner for Human Rights and Rädda barnen (Society: Sweden), 2007, pp. 301–313). The conflict was ultimately resolved by removing any reference to the start of childhood.

On the termination of childhood, an upper age had to be defined. Because childhood is a social construct, there is no shared legal definition (Vučković-Šahović et al., 2012, pp. 1–18). Account needs to be taken of the cultural differences in definitions of childhood, with majority being obtained much earlier in some states, the increasingly early development of children, the heterogeneity of children, and the potentially excessive burden for developing states in providing the protections afforded by the Convention to everyone under the age of 18 years. After some debate by the Working Group, a consensus was forged over a definition that a human being is a child until the age of 18 years. However, the opportunity for attaining majority earlier was retained in the text of Article 1, and in this way, the text seeks to accommodate existing cultural and religious diversities reflected in national age limits (Van Bueren, 1998, p. 37). The Convention therefore is prescriptive, but not inflexible in defining childhood.

In summary, Article 1 establishes the framework of childhood within which to apply the Convention in its entirety. Every person under the age of 18 years, as a consequence of their greater vulnerability, will always be entitled to the overarching special protections foreseen in the Convention (Vučković-Šahović et al., 2012, pp. 85–87). However, Article 1 does not preclude the introduction by States Parties of lower age limits in respect of the exercise of certain rights, in recognition of the evolving capacities of the child.

#### General Principles

Article 2 Every human being under the age of 18 years must be recognised as a child, without discrimination based on any attribute of the child or parent. Importantly, the definition of childhood must extend equally to all genders without discrimination.

Article 3 The best interests principle must be applied to every child up to the age of 18 years.

Article 6 The right to life, survival, and development must be recognised for every child under the age of 18 years.

Article 12 Childhood status as defined under Article 1 does not preclude recognition of the right of the child to express views and have them given due weight in accordance with age and maturity.

#### Articles Related or Linked to Article 1

Article 1 is relevant and has application to every article in the Convention, and the Optional Protocols.

#### Relevant Instruments

All human rights treaties apply to children but, at the international level, only the Convention defines the child. An exception at the regional level is provided by Article 2 of the African Charter on the Rights and Welfare of the Child (1990) which states that for its purposes, 'a child means every human being below the age of 18 years.'

#### Attributes

### Attribute One: Ages of Majority

Article 1 explicitly sets a benchmark of 18 years as the end of childhood. This age limit needs to be applied by States Parties as both a rule and a reference point, for the establishment of any other age for any specific purpose or activity (Pais, 1997, p. 414). The Convention, therefore, needs to be respected, protected, and fulfilled for every child under that age. States Parties are required to review all relevant legislation to achieve that goal in all spheres of the child's life. The Committee has emphasised, for example, that the definition of a child under customary law must be consistent with Article 1 (2002, paras. 23, 24). The only explicit exception in the Convention arises in Article 38, which provides that the minimum age for participation in hostilities is 15 years.

States Parties can aim for a higher standard of protection by raising the ages defined in the Convention, in accordance with Article 41 which clarifies that nothing in the Convention precludes the retention or introduction by any state of provisions that are more conducive to the rights of the child. Thus, many States Parties have determined that the age of 15 years is too low for participation in hostilities and have raised the age accordingly (Pais, 1997, p. 414). The Optional Protocol on children in armed conflict was drafted to seek to strengthen the provisions in Article 38, by raising the age limits for protection, although it does still contain significant weaknesses, as discussed in Part 8.

Article 1 does allow for the age of majority to be attained earlier than 18 years. This provision should not be interpreted as a general escape clause from the obligations under the Convention, nor to allow for ages to be established which are inconsistent with its principles and provisions (Pais, 1997, pp. 414–415). The Committee has stressed that where the age of majority is below the age of eighteen years, States Parties are expected to indicate how all children benefit from protection and enjoy their rights under the Convention up to the age of 18 years. The Committee has demanded justification of any diminution in protection of children and urged States Parties to reconsider in order to ensure that all children up to 18 years continue to receive the full protections of the Convention (2009, para. 27, 2010, para. 27, 2012, para. 26). The Human Rights Committee has also emphasised that States Parties cannot absolve themselves from obligations to children under 18 years even where they have reached the age of majority under domestic law (UN Office of the High Commissioner for Human Rights (OHCHR), 1989, para. 4).

### Attribute Two: Accommodation of Differential Ages

It is not possible to establish a uniform age for all aspects of the lives of children applicable in every country in the world. The Committee seeks to promote recognition that all children are subjects of the rights under the Convention until the age of 18, and thereby entitled to special protection measures, while simultaneously acknowledging their right to progressively exercise their rights in accordance with their evolving capacities (2003, para. 1). Article 1 therefore does also allow for flexibility in setting up minimum ages for certain purposes.

Some articles specifically recognise the need for States Parties to provide a minimum age, for example, in relation to admission to employment, Article 32, and the establishment of an age of criminal responsibility, Article 40, paragraph 3(a). In other cases, the Convention leaves it open to States Parties to determine, for example, the age for the end of compulsory education, Article 28, and access to medical and legal counselling without parental consent, Article 24. However, the Committee does require that States Parties address these areas of legislation, and that in so doing must have regard to the entire Convention and in particular, the General Principles (Hodgkin et al., 2007, p. 5). The Human Rights Committee has also emphasised that in setting ages below 18 years, such ages must not be set too low (UN Office of the High Commissioner for Human Rights (OHCHR), 1989, para. 4).

In the Committee's periodic guidelines, States Parties are asked to provide relevant and up-to-date information with respect to Article 1 of the Convention concerning the definition of the child in its domestic laws and regulations (2015, para. 2). The only specific requirement demanded by the Committee is for States Parties to indicate the minimum age for marriage for girls and boys in its legislation. The Committee has strongly argued that this should be 18 years for both girls and boys (2016, para. 40).

#### References

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### Chapter 41 Article 4: States Parties' Obligations

Roberta Ruggiero

States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation.

#### Overview