UN Common Approach to Justice for Children
Table of Contents
Part ONE: RATIONALE and DEFINITION OF JUSTICE FOR CHILDREN 3
The need for a common UN strategic approach to justice for children 3
Definition of justice for children 4
Some important guiding principles pertaining to justice for children 5
PART TWO: WHAT BRINGS UN ENTITIES TOGETHER AROUND JUSTICE FOR CHILDREN 6
Realizing human rights & the Millennium Development Goals (MDGs) 6
Reducing poverty 7
UN coherence agenda & aid effectiveness 7
Part THREE: JUSTICE FOR CHILDREN STRATEGIC INTERVENTIONS 7
Rule of law as the overarching frame 8
Rule of law at the international level 10
Strengthening national systems from crisis and post-crisis through long-term development 10
Legal empowerment and access to justice 12
Additional aspects to take into account in crisis and post crisis situations 13
Cross-cutting areas of cooperation on justice for children 15
Annex I: The Rule of law baskets and sectors and integration of justice for children within each basket/sector 17
Annex II: Relevant international legal instruments 18
Annex III: Mandates of concerned UN entities 19
Annex IV: Acronyms 21
Part One: RATIONALE and DEFINITION OF JUSTICE FOR CHILDREN
Justice has long been high on the international development agenda. The UN and other bilateral and multilateral development partners recognise the importance of rule of law1 and a functioning justice system in reducing poverty as well as promoting peace, security and human rights. Rule of law approaches are thus a cornerstone of UN commitment to the Millennium Declaration and the fulfilment of the Millennium Development Goals, as well as human rights for all.
The way children are treated by national justice systems is integral to the achievement of rule of law and its related aims. This recognition translated in the 1980s and 1990s into increased attention to the treatment of children as alleged offenders, and the development of international norms and standards for juvenile justice.2 More recently the situation of child victims and witnesses has also been addressed by the UN3. Transitional justice mechanisms have also included some steps to take account of the special situation of children4. In addition, the recommendations of the UN General Assembly in response to the UN Report on Violence against Children5 stress the need to ensure accountability and end impunity for crimes against children. It also recommends the establishment of comprehensive, child-centred, restorative juvenile justice systems that reflect international standards.
Despite this important progress, children are yet to be viewed as key stakeholders in rule of law initiatives. For example, work to implement child justice standards is frequently handled separately from broader justice reform. It is also often undertaken through vertical approaches, aimed at improving either the juvenile justice system or responses to child victims and witnesses, without acknowledging the frequent overlap between these categories and the professionals and institutions with responsibility towards them. Access to justice, though increasingly recognised as an important strategy for protecting the rights of vulnerable groups, and thus for fighting poverty, rarely take children into account.
Ensuring that children are integrated in broader justice reform and have access to fair, transparent and child-sensitive justice systems through which they can enforce and protect their rights would result in stronger, better justice systems overall as well as better fulfilment of human rights standards and UN commitments. The UN Secretary General’s report6 presented at the 61st session of the General Assembly in 2006 lays out a clear framework for the rule of law activities of UN Departments, Agencies Funds and Programmes. It defines three overall rule of law baskets, and notes that the strengthening of national justice systems and institutions is relevant to rule of law in conflict and post conflict and rule of law for long term development. Secretary-General’s Policy Committee Decision No. 2006/47 goes on to identify lead entities for the different components of rule of law work and to outline their responsibilities. While UNICEF is identified as the lead agency for juvenile justice, all entities have different roles to play within the overall strengthening of national systems and institutions, in both crisis/post-crisis and development contexts.
This conceptual note outlines strategies for a common UN approach towards justice for children within existing rule of law frameworks. The approach aims to ensure that relevant provisions of the UN Convention on the Rights of the Child (CRC) and other international legal instruments related to child justice are reflected in broader policy reform and implementation efforts. A common approach will help UN entities to leverage support through partners working on broader agendas around rule of law, governance, security and justice sector reform in which justice for children can easily be integrated. It is also expected to bring further cost-effectiveness and to maximize results of respective efforts.
The concept paper is presented in three parts. Part I provides the rationale for this concept paper and defines the term ‘justice for children’ and the basic elements of the approach. Part II recalls what brings UN entities together around this concept, i.e. a human rights mandate and the UN coherence agenda. Part III goes on to describe the approach in more detail, highlighting both how children can better be taken into account within existing rule of law and related development strategies and how to reinforce additional, complementary interventions in view of improving respect for children’s rights.
Definition of justice for children
The goal of the justice for children approach is to ensure that children7 are better served and protected by justice systems8. It specifically aims at ensuring full application of international norms and standards for all children who come into contact with justice systems as victims, witnesses and alleged offenders; or for other reasons where judicial intervention is needed, for example regarding their care, custody or protection9. Whatever the reasons for children being in contact with justice systems, they are usually dealt with by the same institutions and professionals.
This goal also includes ensuring children’s access to justice to seek and obtain redress in criminal and civil matters. Access to justice can be defined as the ability to obtain a just and timely remedy for violations of rights as put forth in national and international norms and standards (including the CRC). Lack of access to justice is a defining attribute of poverty and an impediment to poverty eradication and gender equality. Children’s access to justice is therefore a vital part of the UN mandate to reduce poverty and fulfil children’s rights. Proper access to justice requires legal empowerment of all children: all should be enabled to claim their rights, through legal and other services such as child rights education or advice and support from knowledgeable adults.
For the purpose of this note, a justice10 system comprises both (1) state-run justice and law enforcement institutions, including the judiciary (criminal and civil), justice and interior ministries, the police, prisons, criminal investigation and prosecution services and (2) non-state justice mechanisms, i.e. the whole range of traditional, customary, religious and informal mechanisms that deal with disputes at community levels.11 It also includes related entities and mechanisms such as professionals associations, parliaments, law reform commissions, law faculties, judicial/police training centres, academic centres, human rights commissions, ombudsmen, NGOs and legal aid volunteers. In certain cases, armed forces are also included, for example when they are entrusted with policing powers under national laws or where they are to be integrated into new or reformed law enforcement bodies. Generally, the justice system is considered as part of the security sector in its broad terms. As per the report of the Secretary-General on the role of the UN in supporting security sector reform, “security sector is a broad term used to describe the structures, institutions and personnel responsible for the management, provision and oversight of security in a country”12. In addition to the justice system as described in this paragraph, it is generally accepted that the security sector also includes defence and intelligence services, as well as other actors that play a role in managing and overseeing the design and implementation of security, such as relevant ministries, legislative bodies and civil society groups, and other non-state actors such as private security services and customary or informal authorities. Social welfare systems – including the set of social protection laws, regulations, services and social work professionals – also have an important role to play in justice for children issues, as further detailed Part III, point 3 below.
Some important guiding principles pertaining to justice for children
Upholding human rights principles and standards is at the heart of rule of law work, including justice for children. The following child rights principles, based on international legal standards and norms13, should guide all justice for children interventions, from policy development to direct work with children:
Every child has the right to have his or her best interests given primary consideration. In all actions concerning children, whether undertaken by courts of law, administrative or other authorities, including non-state, the best interests of the child must be a primary consideration. This principle is to be applied both when taking decisions regarding an individual child or for children as a group. This principle should guide the whole process (judicial, administrative or other) but also be a primary consideration in determining in the first place whether the child should participate in the process or not.
Every child has the right to be treated fairly and equally, free from all kinds of discrimination. The principle of non-discrimination underpins the development of justice for children programming and support programmes for all children’s access to justice. Special attention needs to be given to the most vulnerable groups of children including – but not limited to – children associated with armed groups, children without parental care, children with disabilities, children belonging to minority groups, migrant children, children born as a result of war-time rape and children affected by HIV/AIDS. This also means that children deprived of liberty and children involved in war time atrocities – often perceived as ‘less deserving’ – have the same rights as other children. A gender sensitive approach should be taken in all interventions. In particular, the specific vulnerability of girl soldiers due to the counter-cultural conduct that arms bearing represents and the ensuing social stigmatization should be acknowledged. Similarly, the specific needs of girls in (juvenile) justice systems, generally premised on male models, should be taken into account. Services offered should not be constrained by gender stereotypes and should provide a range of options for both boys and girls.
Every child has the right to express his or her views freely and to be heard. Children have a particular right to be heard in any judicial and administrative proceedings, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. It implies for example that the child receives adequate information about the process, the options and possible consequences of these options; and that the methodology used to question children and the context (e.g. where children are interviewed, by whom and how) be child-friendly and adapted to the particular child. In conflict and post-conflict contexts, it is also important to fully involve children in transitional justice processes. Children’s meaningful participation in state-run and non-state justice proceedings often requires a significant change in law, legal practice and attitudes. Particular obstacles faced by girls in having their voices heard, such as a lack of confidence or experience in being listened to and taken seriously, should be accommodated for.
Every child has the right to protection from abuse, exploitation and violence. Children in contact with the law should be protected from hardship while going through state-run and non-state justice proceedings, as well as after the process. Procedures have therefore to be adapted and appropriate protective measures put in place, noting that the risks faced by boys and girls will differ. Torture or other cruel, inhuman or degrading treatment or punishment (including corporal punishment14) must be prohibited. Also, capital punishment and life imprisonment without possibility of release shall not be imposed for offences committed by children.
Every child has the right to be treated with dignity and compassion. Every child has to be treated as a unique and valuable human being and as such his or her individual dignity, special needs, interests and privacy should be respected and protected.
Respect for legal guarantees and safeguards. Basic procedural safeguards as set forth in relevant national and international standards and norms shall be guaranteed at all stages of proceedings in both state-run and non-state systems, as well as in international justice. This includes for example the right to privacy, the right to legal aid and other type of assistance and the right to challenge any decision with a higher judicial authority.
Prevention of conflict with the law as a crucial element of any juvenile justice policy15. Within juvenile justice policies, emphasis should be placed on prevention strategies facilitating the successful socialisation and integration of all children, in particular through the family, the community, peer groups, schools, vocational training and the world of work. In particular, prevention programmes should focus on support for particularly vulnerable children and families.
Deprivation of liberty of children should only be used as a measure of last resort and for the shortest appropriate period of time. Provisions should therefore be made for restorative justice, diversion mechanisms and alternatives to deprivation of liberty. For the same reason, programming on justice for children needs to build on informal and traditional justice systems as long as they respect basic human rights principles and standards, such as gender equality.