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Violence against children and UN mechanisms:

A new procedure to address children’s rights?

OMCT Study on the need for a UN Special Rapporteur on Violence against Children

November 2001

A working document for OMCT Conference on
“Children, torture and other forms of violence”
27 November – 2 December 2001, Tampere, Finland

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Violence against children and UN mechanisms:
A new procedure to address children’s rights?

I.OMCT study on child concerns within existing
UN Special Mechanisms......

1.Introduction to and scope of the study

2.Results

II.The Need for a UN Special Rapporteur on Violence
against Children

1.Introduction

2.The need for new ways of implementing the rights of the child

3.The need for integrating the implementation
of the rights of the child

4.The need for addressing all forms of violence

5.The need for a holistic approach to violence against children

III.Proposal for a UN Special Rapporteur on Violence
against Children......

1.Scope of activities

2.Mandate

Annex......

A.Addressing the rights of the child within the existing Special Mechanisms of the UN Commission on Human Rights:
OMCT Study on the 57th Session of the Commission

B.Mandates of the UN Special Mechanisms

C.Statistics on responses of Special Mechanisms to
OMCT Urgent Appeals in cases of Violence against Children

C 1.Overall statistics

C 2.Statistics by violation......

C 3.Statistics by mechanism......

D.OMCT 2000 Urgent Appeals in cases of Violence against
Children: Responses of UN Special Mechanisms......

E.OMCT 1999 Urgent Appeals in cases of Violence against
Children: Responses of UN Special Mechanisms

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I. OMCT study on child concerns within existingUN Special Mechanisms

1.Introduction to and scope of the study

Regularly, OMCT receives and acts upon information that tells of the significant and unbearable abuses against children. Having discovered some ten years ago the unsuspected and unprecedented scale of atrocities, OMCT created a specific programme to address the issues. Towards that end, OMCT’s programme of action includes urgent appeals, targeted towards institutions and organisations, both national and international, that are capable of acting to stop and redress the violence. The appeals also aim at encouraging the rapid circulation of information to NGOs as well as intergovernmental and regional organisations liable to take action and to put pressure on national authorities responsible for those violations.

OMCT's mandate covers the following human rights violations: torture, summary executions, disappearances, arbitrary detentions, psychiatric internment for political reasons, and all other cruel, inhuman or degrading treatment or punishment. In principle, the violations of children's rights reported in the urgent appeals fall under the existing special mechanisms of the Commission on Human Rights. In order to establish which mandate eventually covers a specific case, much depends on the definition of the violation in question. This is particularly true when it comes to defining torture in cases of violence against children.

A more general perspective of the problem of violence against children reveals that various forms of extreme violence constitute a part of a systematic phenomenon rather than isolated cases. As it has become apparent through OMCT’s monitoring of government reports on the implementation of the Convention on the Rights of the Child, children suffer systematically from extreme forms of violence on different levels, including family, work place, street, private and public institutions, etc.

As the High Commissioner for Human Rights, Mrs Mary Robinson, noted at the 28th session of the Committee on the Rights of the Child in September 2001, "the human rights of children are violated not only when violence is exerted by agents of the State, but also when States fail to live up to their obligation to protect children from violence suffered at the hands of others".[1] Bearing in mind that children are full-fledged subjects of rights, they must be treated accordingly and receive effective protection within the various mechanisms designed to safeguard those rights. Any relative deprivation with regard to procedural mechanisms needs to be eradicated. Therefore, integrated ways of fighting all forms of violence against children must be established, all the same while continuing to promote a child rights perspective within the existing mechanisms.

In light of this, OMCT has undertaken a study into the working of UN Human Rights mechanisms, which consists of two parts:

  • An analysis on how and to what extent the existing special mechanisms have addressed violations of children's rights within their mandates, at both a theoretical (definition of the relevant mandate) and a practical (outcome as described in the 2001 reports) level.
  • An analysis of OMCT Urgent Appeals in 1999 and 2000[2] covering a total number of roughly 400 child victims of torture or other cruel, inhuman or degrading treatment or punishment. The analysis aimed at finding out whether the appeal cases provoked any response by existing mechanisms and how effective the different mechanisms worked with regard to OMCT urgent appeals concerning children.

2.Results

The following main conclusions can be drawn from the first part of the study on existing special mechanisms:

 The Special Rapporteur on the question of torture takes up individual cases of torture or other cruel, inhuman or degrading treatment or punishment of children. He has also declared that extreme forms of abuse and neglect in institutions could possibly fall under his mandate. He also takes up cases of arbitrary detention of children, where the risk of torture is very high.

In 2000, approximately 7,5 % of cases covered by the SR on torture concerned children.[3]

 The Special Rapporteur on violence against women possibly covers violence against girls in the family, in the community and by the state. One must ask why boys, when victims of the same form of violence, do not have access to similar mechanism.

 The Special Rapporteur on extrajudicial, summary or arbitrary executions includes under her mandate all life threats to children, including death sentences. She also considers crimes committed in the name of “honour”.

In 2000, cases involving children constituted 6-10 % of her work.[4]

 The Working Group on Arbitrary Detention did not consider any case concerning children in 2000.[5] This is disturbing considering the high frequency of cases involving deprivation of liberty to children and the long periods spent by children awaiting trial.

It has to be stated that low percentages of cases involving children within certain procedures might also result from a scarcity of information produced for them.

While the data sample used for the study on OMCT Urgent Appeals is somewhat limited (e.g. only UN reports of 2000 and 2001 covered), it does reveal certain trends:

 As one discovers from the comprehensive statistics of urgent appeals and their outcome, the ratio of cases taken up by UN mechanisms is generally higher (about twice as high) than the proportion of the victims concerned.[6] This shows that single cases are more likely to be taken up by a procedure than the ones covering a group of victims.

This phenomenon can be seen with all forms of violations, with the exceptions of extrajudicial, summary or arbitrary executions and violence against female children, which seem to attract more attention by UN mechanisms when several victims are involved.[7]

 Looking at the most usual violations, cases of extrajudicial, summary or arbitrary executions are most often acted upon (65 % of 1999/00 urgent appeals), followed by torture (44 %) and last cases of arbitrary arrest and detention (37 %).[8]

 Comparing the statistics by violation with the ones by mechanism, it becomes obvious that the considerable proportion of response to arbitrary arrest and detention[9] does not correspond with the ratio of cases taken up by the Working Group on Arbitrary Detention[10] (only 10 % of 1999/00 appeals considered, covering merely 3 % of victims concerned in these cases). The 2001 report of the Working Group reconfirms this finding with no single reported case of detention of children.[11] This means that other mechanisms (like the SR on torture) have filled this gap.

II. The Need for a UN Special Rapporteur on Violence against Children

1.Introduction

Because of their particular vulnerability, children need special protection against torture and other forms of violence under international law. This means that specific children’s rights standards must be applied to them when general human rights are not adequate. This is the main reason why the Convention on the Rights of the Child (the Convention) was adopted in 1989 (see para. 9 of the Preamble). This Convention not only enshrines a set of substantive provisions, but also creates a specific monitoring mechanism, the Committee on the Rights of the Child (the Committee).

However, despite the existence of this Committee, the need for other international mechanisms of implementation still remains. More particularly, there are various reasons which require the nomination of a UN Special Rapporteur on violence against children.

2.The need for new ways of implementing the rights of the child

The mandate of the Committee is far too limited, since it only covers the examination of reports on the implementation of the Convention that States Parties must submit within two years of the entry into force of the Convention, and then every five years.[12] Contrary to other UN Committees[13], the Committee is not allowed to receive individual complaints. Moreover, it has no mandate either to lead in-depth investigations on determined situations.

The establishment of a Special Rapporteur on violence against children would partly fill this gap. His/her mandate would include, among others, the right to seek and receive credible and reliable information on a permanent basis, to resort to urgent action procedure on individual cases or to make on-site visits to investigate allegations of violence against children.

The example of the international fight against torture shows that the mandates of the UN Committee against torture and of the UN Special Rapporteur on torture are complementary. Both mechanisms propose different ways of fighting the same phenomenon. If this is true in the case of torture, it would be contradictory to deny it in the case of violence against children. Such consideration is particularly important if we consider that the Convention against Torture defines torture in a way which is not sensitive to the special status of children.

3.The need for integrating the implementation of the rights of the child

The current way of dealing with children’s rights within the UN system is far too decentralized. The monitoring of these rights is distributed between various mechanisms whose main mandates focus on different human rights. As a result, there is no clear allocation of responsibility and, consequently, accountability is lost and leadership is lacking.

OMCT’s study on child concerns within existing UN Special Mechanisms (particularly regarding the 57th session of the UN Commission on Human Rights) has shown that these mechanisms still do not sufficiently integrate children’s rights within their activities. Most of them either do not examine the situation of children or propose inconsistent or ad hoc analysis.[14]

The mainstreaming of children’s rights among the UN Commission on Human Rights mechanisms would be insufficient, since it would still ignore the need for an integrated approach. Moreover, without anyone to specifically ensure that their interests are mainstreamed, children will undoubtedly fall through the system yet again. Therefore, the implementation of the rights protecting children against violence require the creation of a single and accountable person or group able to propose unified, systematic and coordinated responses.

Finally, nominating a Special Rapporteur would keep the problem of violence against children on the international agenda and consequently assure more visibility to it. The Special Rapporteur would keep informing public opinion and maintain pressure on governments.

4.The need for addressing all forms of violence

The creation of a Special Rapporteur would set up the first international mechanism entitled to address all forms of violence against children.

There already exist many thematic mechanisms that should, according to their mandates, respond to instances of violence against children, such as torture, extrajudicial, summary or arbitrary executions, arbitrary detention, forced disappearances, sale of children, child prostitution and pornography or racism.

However, there are many other forms of violence against children, such as violence in schools, orphanages and other institutions, in the home, in the workplace or on the streets, that still must be addressed. These forms of violence include abuses perpetrated both by state and non-state actors.

Some of these forms of violence are already taken into account by the UN Special Rapporteur on violence against women, whose mandate include, among others, violence within the family and in the community. However, this mandate, with regard to children, is limited to violence against girls. Boys, i.e. half of the child population, cannot be protected under this mechanism.

Therefore, the current way of addressing violence against children at the international level is partial. Some provisions of the Convention on the Rights of the Child, such as article 19, which are aimed at ending this phenomenon, are not taken into account by the UN Commission implementation system. This may give the feeling that these provisions are less important than others. The nomination of a Special Rapporteur would ensure an equal implementation of the rights prohibiting all forms of violence against children.

5.The need for a holistic approach to violence against children

Violence perpetrated against children may be very complex, including both socio-economic and civil and political factors. In its Thematic Discussion Day on “Violence Against Children, Within the Family and in Schools”, the Committee on the Rights of the Child urged “agencies and bodies of the UN system to adopt a more integrated multisectoral approach to the prevention of violence against children, including inter alia through public health and epidemiological approaches, consideration of poverty and socio-economic marginalization, and the impact of multiple forms of discrimination”.[15] Such an approach may only be adopted by a mechanism able to globally examine violence against children and to propose responses integrating all the factors contributing to it.

This necessity has also been pointed out by the Special Rapporteur on extrajudicial, summary or arbitrary executions herself in a particular case, when she noted that violence against street children deserves "special attention". In para. 67 of her 2001 report,[16] she emphasized that "these killings are symptoms of deeply rooted and complex social, economic and political problems..." and that "[street children] need special attention for survival".

The Special Rapporteur also noted that "policies and action are required to identify and address the underlying causes of this problem, which include a wide range of social and economic issues" (para 68). That is, the Special Rapporteur believes that a holistic approach to violence against street children is needed. Obviously, the same conclusion may be applied to violence affecting other children than street children, such as violence in the family or in institutions.

III. Proposal for a UN Special Rapporteur on Violence against Children

1.Scope of activities

The Special Rapporteur on violence against children should, among others, examine torture and other forms of violence committed by State agents or with their acquiescence. He/she should also focus on State violence resulting from negligence on the part of State agents and from failure to exercise due diligence to prevent, investigate, prosecute or punish those responsible for violations of the rights of the child.

One of the most difficult tasks in creating a Special Rapporteur on Violence against Children would be to establish the scope of his/her activities. The notion of violence against children is not clearly defined and thus is open to different interpretations. As a result, it would be very difficult to make a list of forms of violence that the Special Rapporteur should address. If this list is too restrictive, it may exclude forms of violence which affect a wide number of children and unduly prioritize certain forms of violence to the detriment of others. Conversely, if it is too broad, the Special Rapporteur will not have the resources and time to do more than a superficial survey of the issue.

Moreover, in order to avoid overlapping activities, the Special Rapporteur’s scope of activities should be established taking into account the work of other related UN thematic mechanisms, such as, in particular, the Special Rapporteur on Torture, the Special Rapporteur on the sale of children, child prostitution and child pornography, the Special Representative of the Secretary-General for children and armed conflicts and the Special Rapporteur on violence against women.

Bearing in mind these preliminary remarks, the scope of the Special Rapporteur’s activities could extend, inter alia, to:

  • Physical and psychological violence in police custody and other places of detention
  • Physical and psychological violence in schools, orphanages or other institutions
  • Physical and psychological violence in the family
  • Physical and psychological violence in the workplace
  • Physical and psychological violence on the streets
  • Extrajudicial, summary or arbitrary executions and threat or use of capital punishment for offences committed below the age of 18
  • Enforced or involuntary disappearances
  • Judicial guarantees before and during the trial
  • Criminal sanctions (including life imprisonment)
  • Reparation, including compensation, rehabilitation and reintegration

In order to fulfill this task, the Special Rapporteur would develop her/his activities in the light of the Convention on the Rights of Child, other international instruments and other relevant international standards, such as the UN Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), the UN Guidelines for the Prevention of Juvenile Delinquency (“The Riyadh Guidelines”) and the UN Rules for the Protection of Juvenile Deprived of their Liberty.

2.Mandate

The responsibilities of the Special Rapporteur could be fulfilled by:

  • seeking and receiving credible and reliable information from governments, UN bodies, specialized agencies, regional intergovernmental organizations and NGOs, as well as medical, forensic and other experts;
  • receiving individual communications;
  • resort to urgent action procedure when a serious violation of children’s human rights is about to be committed;
  • making on-site visits and/or appointing regional representatives to investigate allegations of violence and abuse and making reports and recommendations to the government involved;
  • monitoring the implementation of existing standards, including States’ obligation to prevent, to stop, to investigate and to punish acts of violence perpetrated against children, as well as to provide adequate compensation and to promote recovery and reintegration of the victim;
  • facilitating, through its good offices, the restoration of an attitude of respect for the Convention on the Rights of the Child and for other instruments aimed at protecting children against violence;
  • educating and advising states on bringing their law, policy and practice into conformity with the Convention on the Rights of the Child and other relevant standards;
  • making annual reports to the UN Commission on Human Rights, detailing findings, as well as conclusions and recommendations on ways and means to better protect children from violence;
  • drawing particularly serious cases to the attention of the High Commissioner for Human Rights;
  • cooperating closely with the UN Committee on the Rights of the Child and with other relevant UN bodies and specialized agencies, as well as regional organizations and NGOs;
  • compiling and analysing existing rules and norms, root causes of the problem, prevention and long-term solutions, taking into account specific situations.

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