I. The Status of Children and their Protection under International Law and Juvenile Justice Standards
Good Practice 1
Address children alleged to be involved in terrorism-related activities in accordance with international law and in line with international juvenile justice standards.
The treatment of children allegedly associated with terrorist groups and involved in terrorism-related acts should be based on the respect, protection and fulfillment of their rights as defined by the applicable international legal framework. That legal framework includes international human rights law, in particular the Convention on the Rights of the Child (CRC)4 and the International Covenant on Civil and Political Rights (ICCPR)5, international humanitarian law, international criminal law, and in line with international juvenile justice standards.6
International instruments, standards and norms should apply equally to children alleged to be involved in terrorism-related activity as they are applied in relation to any other criminal activity.
According to the Convention on the Rights of the Child, states are required to promote the establishment of laws, procedures, authorities, and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law7. A juvenile justice system serves the dual purpose of preserving public safety whilst upholding the rights of the children.
A specialized juvenile justice system should have the primary and preferred jurisdiction also over children investigated and/or charged with terrorism-related offences. Within this framework, particular attention should be given to alternatives to prosecution that take the best interest of the child as a primary consideration.8 Any justice action undertaken concerning the child should aim at his/her reintegration into society.
4. The CRC, supra note 2, complemented by the United Nations Optional Protocol on the Involvement of Children in Armed Conflict, A/RES/54/263 (25 May 2000); United Nations Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, A/RES/54/263 (25 May 2000); and the United Nations Optional Protocol on a Communications Procedure, A/RES/66/138 (19 December 2011). General Comment No. 10 of the Committee on the Rights of the Child on Children’s Rights in Juvenile Justice, CRC/C/GC/10 (25 April 2007), provides guidance on the interpretation of Art. 37-40 of the CRC.
5. General Assembly Resolution 2200 A (XXI), annex (16 December 1966).
6. Children in contact with the justice system are further protected by a range of international human rights and juvenile justice standards:
- United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), General Assembly Resolution A/RES/40/33 (29 November 1985).
- United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), General Assembly Resolution A/RES/43/173 (9 December 1988).
- United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), General Assembly Resolution A/RES/45/112 (14 December 1990).
- United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules), General Assembly Resolution A/RES/45/113 (14 December 1990).
- United Nations Standard Minimum Rules for Non-Custodial Measures (the Tokyo Rules), General Assembly Resolution A/RES/ 45/110 (14 December 1990).
- UN Children's Fund (UNICEF), Principles and Guidelines on Children Associated With Armed Forces or Armed Groups (the Paris Principles) (February 2007).
- United Nations Rules for the Treatment of Female Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules), General Assembly Resolution A/RES/65/229 (21 December 2010).
- Child Protection Working Group (CPWG), Minimum Standards for Child Protection in Humanitarian Action (2012).
- United Nations Model Strategies and Practical Measures on the Elimination of Violence against Children in the Field of Crime Prevention and Criminal Justice, General Assembly Resolution A/RES/69/194 (26 January 2015).
- United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), General Assembly Resolution A/RES/70/175 (17 December 2015).
7. Supra note 2.
8. Art. 3 (1) of the CRC, supra note 2. See also the GCTF’s Life Cycle Initiative, specifically the GCTF’s Recommendations on the Effective Use of Appropriate Alternative Measures for Terrorism-Related Offenses.
Good Practice 2
Assess and address the situation of children in a terrorism-related context from a child rights and child development perspective.
States’ juvenile justice systems, as well as their counterterrorism policies and measures, should be based on the actual knowledge of child development, gender9 , and respect the rights of the child in conformity with the norms and principles of international law. Special attention should be paid to the rights and needs of the girl child in the juvenile justice system, as well as the potential status of the child as a victim of violations of international law.
Children’s involvement in terrorism-related activities needs to be assessed from the standpoint that, inter alia, children’s reasoning and cognitive abilities are still developing, their individual level of maturity and development, and consideration should be given to both their vulnerabilities as well as to their particular capacities, which differ from those of adults.10
9. Committee on the Elimination of Discrimination Against Women, General Recommendation on Women’s Access to Justice, No. 33, CEDAW/C/GC/33 (23 July 2015).
10. The development of a child has various stages. A person’s decision-making capacity, planning, judgement, expression of emotions and impulse control are under development up until his/her mid-twenties. Common child behavior linked to adolescent brain development includes mood swings, impulsive behavior, risk-taking behavior, failure to fully evaluate longer-term consequences or risks of actions, and difficulty handling change. For example, a child may not fully appreciate the reach and consequences of his/her activities on social media and the internet. Furthermore, while developing their identities, children often go through a period of trying out different personas, which do not have the permanence of adult personalities. Children are often still in the process of developing viewpoints relating to basic moral and humanistic questions and may thus be easier to indoctrinate and less likely to resist persuasive and manipulative propaganda.