Juvenile Justice and International Law Research Paper

The catalyst for this reform is the United Nations Convention on the Rights of the Child 1989—the first global treaty protecting children’s rights (see Van Bueren 1998a). The Convention on the Rights of the Child enshrines the full range of civil, political, economic, social, and cultural rights. It stresses a holistic approach to children’s rights—all rights are indivisible and related. This has important implications for child criminal justice, as it implies that all rights must be considered for children in the criminal justice system, from the right to freedom of expression to the right to the highest attainable standard of health.

Freedom of expression, protected in Articles 12 and 13 of the Convention, envisages that children must be consulted in all decisions which affect them. This includes the planning of child criminal justice policy from prevention through detention policies and conditions. Indeed, Sri Lanka was specifically criticized by the Committee for not taking children’s views into account.

The Convention on the rights of the child focuses states’ attention on children as victims of crime, an aspect of criminal justice that, given the demonization of children in some countries, is often overlooked. Article 39 obliges all States Parties to take appropriate measures to promote ‘physical and psychological recovery and social reintegration’ for child victims of abuse, neglect, torture, cruel, inhuman and degrading treatment, and punishment. Such recovery and re- integration services ought to occur in an environment which fosters the health, self-respect, and dignity of the child.

The principle of nondiscrimination under Article 2 is also applicable to the child criminal justice system. In particular, the committee has noted discrimination against socially and economically disadvantaged children. In relation to Bolivia, the UN Committee on the Rights of the Child recommended that alternatives to institutional care for economically and socially dis-advantaged children should be created.

As a human rights treaty, the Convention removes the debate about child criminal justice from the bitter sphere of party politics and places the discussions and campaigns firmly in the arena of legal commitments, which a country is required to implement. In the 191 countries bound by the Convention, the provisions of child criminal justice are removed from party politics but are used by campaigners to help shape the political debate, particularly when drafting bills of rights and children’s statutes.

In addition, there are three sets of rules adopted by the global community which provide greater detail on the daily operation of child criminal justice. These rules are the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (Beijing Rules), United National Rules for the Protection of Juveniles Deprived of their Liberty 1990, and United National Guidelines for the Prevention of Juvenile Delinquency 1990 (Riyadh Guidelines). These, together with the United Nations Guidelines for Action on Children in the Criminal Justice System 1997, and the United Nations Declaration of Basic Principles of Justice for victims of Crime and Abuse of Power 1985, provide a comprehensive framework of child criminal justice. The texts are reproduced in van Bueren (1988b).

The provisions in the Convention on the Rights of the Child, together with the provisions in the international instruments, have resulted from experience-gathering and reflection over several decades on the best ways to protect children’s rights.

States from different regions are also bound by regional treaties, which include principles on child criminal justice. These embrace the European Convention on Human Rights 1950, the American Convention on Human Rights 1969, and the African Charter on the Rights and Welfare of the Child 1990.

1. Children, Not Juveniles

We have begun to shift away from using the term ‘juvenile.’ The United Nations Programme of Action does not concern ‘juvenile justice’ but rather ‘children in the criminal justice system.’ If, as Rorty and others argue, experience is shaped by language ( Truth and Progress 1988), then the adoption and use of the term ‘juvenile justice’ by an number of English-speaking jurisdictions also has to be queried.

Because of international legal developments, the time has come to question the rationale behind describing a young person in conflict with the law as a juvenile offender, while a person under 18 in need of state protection is described in terms of child welfare. The only acceptable justification for retaining the distinction between juveniles and children is that juvenility sometimes includes those over the age of 18, and some states wish to extend additional levels of protection to this age group. However, this can be done without retaining two separate terminologies for those under 18.

The use of an inappropriate judgmental layer makes it harder to argue against the more punitive suggestions being made in the American Counter Reformation. Distinguishing between adult and under-18-year-old offenders resulted from differences in approach between the civil and the criminal legal systems in relation to children. However, as the international laws on children make clear, all of the special protections apply to children under the age of 18 in the justice system, regardless of whether the field is civil or criminal. In international law, the special protections attach because of childhood, and childhood is defined solely with regard to age.

2. The Benefits Of Using A Human Rights Approach

The international laws on child criminal justice also act as powerful but peaceful catalysts for change. The Convention on the Rights of the Child takes the argument beyond questioning who should have priority—children or society. The international law is clear—the best interests of the child dictate that children have priority; by prioritizing children, society benefits. According to Riyadh Guideline 1.4, child criminal justice ‘should be conceived as an integral part of the national development process of each country.’ It is no longer permissible under international law to place child criminal justice at ‘the bottom of the pile’ of resource allocation. States are under an immediate legal duty to ensure that children’s civil, economic, social, and cultural rights in child criminal justice are fully protected. This can only be done if sufficient resources are allocated for all stages of the justice system, not just in courts but also in prevention and detention. A well-resourced child criminal justice system operating in accordance with international law should not be regarded as a drain on national resources. Indeed, it should reduce the risk of reoffending.

The Convention calls for the establishment of a child-oriented system which recognizes the child as the holder of rights and freedoms. The Convention stresses the need for all actions in child criminal justice to be guided by Article 5, which provides that the best interests of the child should be the primary consideration. Indeed, the United Nations Committee on the Rights of the Child, the body entrusted with implementing the Convention, criticized Mongolia because Mongolian legislation ranked the recovery and reintegration of children as only the third goal behind the protection of society and the punishment of the child.

One of the attractions of the international law on child criminal justice is that it requires a psychological shift for society. International law now merges what were once the punishment and rehabilitation functions of juvenile justice with the service provision and protections of child welfare. The trend implies that much of child criminal justice should be governed by the same principles as child protection. The unified child rights approach is the same for the civil and the criminal justice fields. Some states, such as Uganda, have one children’s statute governing both areas of justice. It is also reflected in the return, albeit with modification, of indigenous values and approaches, for example, Family Group Conferencing, developed from Maori traditions in New Zealand, places child criminal justice within the family unit. This is a very different approach from punitive penalties for parenting.

The international laws on child criminal justice have also been used by states when drafting their constitutions. The 1996 South African Constitution has adopted verbatim provisions from the Convention on the Rights of the Child in relation to detention. Hence, the international laws on child criminal justice have helped to inspire legislative reform and innovative and creative thinking. Those campaigning for legislative reform have not only been adults. In June 1985, the National Street Children’s Movement was established and held its first Street Children’s Congress in Brasilia, with over 500 street and working children taking part (see Rizzini et al. 1993). It attracted much media attention and the children were articulate in denouncing the State Foundation for the Welfare of Minors (FUNABEM), and institutional and police violence against them in the criminal justice system. They demanded urgent reforms.

The Movement began to give the children a more positive public image. Two constitutional amendments, inspired by the Convention on the Rights of the Child, were proposed, and supported by petitions signed by 1,300,000 children and 200,000 voters. These proposals became the Brazilian Constitution’s Chapter on the Rights of Children and Adolescents 1988. Children were also consulted on the provisions in what became the Children and Adolescent Act, Hence the mobilization of different sections of society is seen as indispensable to raising public awareness and participation about child criminal justice issues.

Change has not only occurred through popular participation. In some countries, the courts have reacted to campaigns for improving child criminal justice. In India, a case was brought to the Supreme Court by a social worker and freelance journalist, to remedy the appalling conditions in which children were held in jail (Sheela Barse . Union of India). The Supreme Court of India directed that every district and session judge should visit the district jail at least once every two months and, in the course of the visit, consider the conditions of children in prison and draw the attention of their High Court and the administration to penal conditions. The Court also directed the State Legal Aid Boards to make legal advice available to children detained in prison awaiting trial on criminal charges (Rizzini et al. 1993, p. 599).

The Court referred to an order made on 12 July 1986 relating to children with disabilities, and destitute and abandoned children. It directed the Director General of All India Radio to give publicity seeking the cooperation of nongovernmental organizations and social services in the reintegration and recovery of these children. The Court remonstrated that these children should not be in jail, but should be given adequate medical treatment and receive training.

The Court also suggested that, rather than each state having its own Children’s Act, it would be desirable to have national parliamentary legislation. Just as the Inter-American Commission on Human Rights was concerned about the different standards prevailing in child criminal justice in American states, so the Indian Supreme Court was concerned about the different standards found in Indian states.

The court also ruled that the petitioner could visit jails, borstals and all child criminal justice accommodation institutions in all parts of India. The Supreme Court proclaimed, ‘[t]he petitioner need not be looked upon as an adversary. She had in fact volunteered to do what the State should have done’ (Rizzini et al 1993 p. 600). The Court saw the petitioner as helping it fulfil its goal in protecting children’s rights.

Similarly, the South African Constitutional Court in Hugo upheld President Mandela’s decree that all mothers in prison on 10 May 1994 with children under the age of 12 years should benefit from a remission of sentences. In other words, rather than have children in prison with their mothers, or children left abandoned outside prison without their mothers, the best interests of the child dictated that mothers should be released. The Constitutional Court, in upholding Mandela’s decree, took into account that the release of mothers would help prevent abandonment and poverty of children whose mothers were incarcerated.

The President also decreed the release of two other groups: prisoners with disabilities, and young people.

There is still a very long way to go, but the Convention on the Rights of the Child has operated as a very effective catalyst in protecting the rights of children in the justice system.

Bibliography:

1. Rizzini, Rizzini, Munhoz, Galeano 1993 Childhood and Urban Poverty in Brazil: Street and Working Children and Their Families. UNICEF
2. 1998 Truth and progress. Philosophical Papers 3
3. Van Bueren G 1998a The International Law on the Rights of the Child. Kluwer
4. Van Bueren G 1998b International Documents on Children, 2nd edn. Kluwer, Amsterdam