A/HRC/34/44
principles of the Optional Protocol. In recent years, handover agreements have been signed
by the Governments of Chad, Mali, Somalia and Uganda, and together with UNICEF and
other United Nations entities the Special Representative has continued advocacy with
Member States and provided technical support for the development of new procedures
during the reporting period.
17.
When a child who has been recruited and used is alleged to have committed clearly
defined crimes under international or domestic law, the specific circumstances and best
interests of the child must be taken into account. However, it is more commonplace that
children are sent before courts and are accorded few safeguards or none. In this regard, the
use of military or special courts is an acute concern for the Special Representative, as they
frequently fail to apply fair trial standards or basic juvenile justice safeguards. In particular,
instances of death sentences being handed down by these mechanisms have been
documented in situations of armed conflict, notwithstanding the prohibition of capital
punishment for offences committed by persons below 18 years of age, under the
Convention on the Rights of the Child. The Special Representative urges Member States to
ensure that the best interests of the child are a primary consideration in the administration
of juvenile justice and that military or special courts are avoided in all circumstances.
Moreover, additional special considerations for children should also be in place in regular
justice systems. For example, in conflict and post-conflict settings, justice systems are often
stretched to their limits: the processing of cases involving children should always take
priority.
18.
An ongoing concern in some contexts is the very definition of a child. While it is
almost universally accepted at the international level that a child means every human being
below the age of 18, in line with the provisions of the Convention on the Rights of the
Child, practice between and even within States is sometimes contradictory. Member States
should take measures to close legal lacunae and ensure that the definition of a child is set at
18 years, in line with the international normative framework. Member States should also
make additional efforts to ensure that the international obligations regarding the definition
of a child are widely known and are adhered to by all national, regional and local
authorities. A connected concern is the process for determining the age of a person who is
allegedly associated with a party to a conflict. In many conflict settings, birth registration
systems are lacking, and age assessment mechanisms are frequently inadequate and
children are often presumed to be adults. In this regard, it is important for Member States to
ensure adherence to the principle that if there is any doubt, the individual should be
considered a child and protected as such.
19.
Long-standing and well-established principles of detention are also being sidelined
and overlooked in the context of armed conflict. For example, in many situations children
are being held together with adults, and boys are also being held together with girls.
Detaining children in this way exposes them to a range of risks to their physical integrity
and can have harmful consequences for their psychological development. The nomenclature
regarding detention is also a serious concern, as in some instances, the use of terminology
such as a “reintegration”, “rehabilitation” or “deradicalization” centre has been used to
circumvent the applicability of safeguards and to deny the rights of those deprived of their
liberty. In this regard, the Special Representative reminds concerned Member States of the
importance of adhering to the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (Beijing Rules) in all instances of the deprivation of
liberty of children. In all situations, priority must also be given to maintaining family ties
for children in detention, and children should also have access to educational programmes,
medical care and psychological support. These provisions will aid a child’s reintegration
into society once he or she is released.
7
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