«Action for the Rights of Children (ARC) Critical Issues Abuse and Exploitation CONTENTS BRIEFING NOTES FOR FACILITATORS Page Introduction Topic 1: ...»
32.1 of the CRC, “States parties recognise the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development”. Article 32 relates to the broader issue of the economic exploitation of the child. Under Article 33, States parties shall take all appropriate measures to prevent the use of children in the illicit production and trafficking of narcotic drugs and psychotropic substances. According to Article 35, States parties shall take all appropriate measures to prevent the abduction, sale or traffic of children for any purpose or any form. And Article 36 affirms more generally that States parties shall protect the child against all other forms of exploitation prejudicial to any aspect of the child’s welfare.
The International Covenant on Economic, Social and Cultural Rights asserts the same principles stating in its article 10(3) that “Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law”.
The Universal Declaration of Human Rights and International Covenant on Civil and Political Rights include provisions prohibiting slavery (UDHR Article 4) and forced labour (ICCPR Article 8). The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and the Institutions and Practices Similar to Slavery, 1956 (article 1) covers, “any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.” In refugee law, article 24 of the 1951 Convention Relating to the Status of Refugees affirms obligations regarding child labour, stating that “the Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the…minimum age of employment, apprenticeship and training…”.
The International Labour Organisation (ILO) Forced Labour Convention of 1930 (No.29) covers such problems as exploitation of children through debt bondage and “other contemporary forms of slavery” such as child prostitution. The ILO Minimum Age Convention of 1973 (No.138), upheld by the Committee on the Rights of the Child as an appropriate standard, provides principles which apply to all sectors of economic activity. Ratifying States are to fix a minimum age for ________________________________________
Abuse and Exploitation - Revision Version 04/01 Page 27 Action for the Rights of Children (ARC) admission to employment or work, undertake to pursue a national policy designed to ensure the effective abolition of child labour, and raise progressively the minimum age for admission to employment or work to a level suitable with the fullest physical and mental development of young persons.
In November 2000, the ILO Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (No.182) entered into force. It applies to all young persons under the age of 18, and defines, among other things, forced or compulsory recruitment of children for use into armed conflict as one of the worst forms of child labour (article 3).
It is the responsibility of the government to ensure the safety of children residing within that country. The government is responsible for providing minimum age for admissions to employment, appropriate regulation of the hours and conditions of employment, and provide for appropriate penalties or other sanctions to ensure effective enforcement. Such protection is to be accorded to refugee children and national children alike (CRC, article 2.1). In practice however, many countries which have signed international conventions in respect of child labour simply do not have the structure and mechanisms for monitoring and enforcement.
LEGAL PROTECTION: SEXUAL VIOLENCE, ABUSE AND EXPLOITATION
The CRC offers general protection measures to all children, without discrimination.
Article 19 requires States to protect children from all forms of physical or mental violence and specifically mentions exploitation and sexual abuse. Sexual abuse should be understood not only as violent sexual assault but also other sexual activities, including inappropriate touching, where the child does not fully comprehend, is unable to give informed consent, or for which the child is not developmentally prepared.
Sexual exploitation and abuse are dealt with in more detail in article 34 of the CRC. Under this article, States parties undertake to protect the child from all forms of sexual exploitation and sexual abuse and particularly to take all appropriate measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity, including the exploitative use of children in prostitution and in pornographic performances and materials.
In situations of armed conflict, international humanitarian law prohibits sexual violence and protects the civilian population, including children, against sexual violence and abuse. Article 27 of the Fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War states that protected persons in time of war “shall at all times be humanely treated, and shall be protected especially against all acts of violence…. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault”.
With regard to internal armed conflicts, Article 3 common to the four Geneva Conventions of 1949 prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment”, against all persons taking no active part in hostilities. Similarly, article 4 (2) (e) of the 1977 Protocol II relating to the Protection of Victims of Non-International Armed Conflicts forbids the violation of personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.
Abuse and Exploitation - Revision Version 04/01 Page 28 Action for the Rights of Children (ARC) The Guiding Principles on Internal Displacement also offer protection against sexual violence, forced labour of children, degrading treatment and sexual exploitation (Principle 11).
The Rome Statute of the International Criminal Court adopted in 1998, defines in its article 7 (g), “crimes against humanity” as any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population: rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity.
The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949), targets procurers and exploiters of prostitutes, and declared prostitution and the traffic in persons to be “incompatible with the dignity and worth of the human person and [to] endanger the welfare of the individual, the family and the community.” The Declaration and Agenda of the World Congress against Commercial Sexual Exploitation of Children (Stockholm in 1996) stated that the commercial sexual exploitation of children constitutes a form of coercion and violence against children, and amounts to forced labour and a contemporary form of slavery (paragraph 5). It called for the promotion of stronger co-operation between States and all sectors of society to prevent children from entering the sex trade, to criminalise the commercial sexual exploitation of children, and to condemn and penalise all those offenders involved, whether local or foreign, while ensuring that the children victims of this practice are not penalised (paragraph 12).
In the ILO Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (No. 182), the term “worst forms of labour” comprises the use, procuring and offering of a child for prostitution or for the production of pornography or for pornographic performances. States parties are required to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.
With the widespread practice of sex tourism, availability of child pornography on the internet, and increasing international trafficking of children, an Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography was adopted in 2000 to extend the measures that States parties should undertake in order to guarantee the protection of the child. State parties are asked to ensure that such acts and activities are fully covered under their criminal or penal law. Such offences shall also be deemed to be included as extraditable offences in any extradition treaty existing between States parties or concluded in the future between them. It also stresses the importance of international co-operation to apply the principle of extraterritoriality, i.e. that nationals of a State party, committing a sexual offence against children in another country, can be prosecuted in their own country.
CONTEMPORARY FORMS OF SLAVERY, INCLUDING TRAFFICKING AND
SMUGGLING OF PERSONS
mutilation of female children, the use of children in armed conflicts, debt bondage, the traffic in persons and in the sale of human organs and the exploitation of prostitution. Such practices are generally clandestine. This makes it difficult to have a clear picture of the scale of contemporary slavery, as well as punish and eliminate it. The problem is compounded by the fact that the victims of slavery-like abuses are generally from the poorest and most vulnerable social groups. Fear and the need to survive do not encourage them to speak out.
UNHCR is particularly concerned by the criminal and organised smuggling of migrants that may lead to the misuse of national asylum and immigration procedures. Trafficking of children, mainly for the purpose of abuse and exploitation, is also a special concern and trafficked persons, particularly women and children, may be in need of international protection.
In 1998, the UN General Assembly established an Ad Hoc Committee open to all States, for the purpose of elaborating an international convention against transnational organised crime. The resulting United Nations Convention against Transnational Organized Crime was adopted by the General Assembly at its Millennium meeting in November 2000. Also, two optional protocols were adopted detailing measures to be taken by countries to combat smuggling of migrants and the trafficking of women and children for sexual exploitation or sweat shop labour.
The Protocol Against the Smuggling of Migrants by Land, Air and Sea aims to prevent and combat the smuggling of migrants, as well as to promote co-operation among States parties to that end. In the Protocol, smuggling of migrants means the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State party of which the person is not a national or a permanent resident. State parties shall adopt measures to make the smuggling of migrants a criminal offence. Migrants are entitled to the protection of their rights and assistance, and States parties shall take into account the special needs of women and children (article 16.4).
The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children defines trafficking in persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion…to achieve the consent of a person having control over another person, for the purpose of exploitation. The new instrument details measures on how countries can improve co-operation on such matters as extradition, mutual legal assistance, transfer of proceedings and joint investigations. Parties to the treaty would also provide technical assistance to developing countries to help them take the necessary measures and upgrade their capacities for dealing with organised crime.
UNHCR POLICY AND GUIDELINES
UNHCR EXCOM Conclusion on Refugee Protection and Sexual Violence of 1993 noted that “refugees and asylum-seekers, including children, in many instances have been subjected to rape or other forms of sexual violence during their flight or following their arrival in countries where they sought asylum, including sexual extortion in connection with the granting of basic necessities, personal documentation or refugee status” and strongly condemned “persecution through sexual violence, which not only constitutes a gross violation of human rights, as well as, when committed in the context of armed conflict, a grave breach ________________________________________
Abuse and Exploitation - Revision Version 04/01 Page 30 Action for the Rights of Children (ARC) of humanitarian law”. It recommended that victims of sexual violence and their families be provided with adequate medical and psycho-social care.
The Refugee Children Guidelines on Protection and Care (1994), state that every effort must be made to protect refugee children from abuse and to ensure that victims receive remedial assistance for their recovery. Evidence of torture, physical and sexual assault, abduction and similar violations of the safety and liberty of refugee children call for extraordinary measures. It urges those in a position of assistance to spare no effort to collect all the relevant facts, including corroborative evidence and identification of the culprits with a view to their apprehension; to retain legal counsellors, ensure that offenders are prosecuted and to take measures which may prevent further incidence of such abuse.