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.
Good Practice 3
Address children’s vulnerability to recruitment and/or radicalization to violence through preventive measures.11
In view of the increasing number of incidents, their brutality, and the complexity of the global terrorist threat, the international community has recognized the need to prevent violent extremism.12 Efforts and resources should be invested in understanding the conditions conducive to and effectively addressing the recruitment of children, and their potential radicalization to violence.
Many factors lead to the vulnerability of children and their potential recruitment and radicalization to violence for terrorism purposes. Potential factors identified in children who have been recruited and/or radicalized for terrorism purposes include: exclusion and discrimination; lack of access to education; domestic violence; lack of social relations; poor economic background and unemployment; prior petty offending; time in juvenile custody; and the appeal of money offered by terrorist groups. In addition to such factors, the cognitive and emotional vulnerabilities of children may be exploited for recruitment and radicalization to violence. Furthermore, current turmoil in States experiencing conflict has resulted in many children being displaced and exposed to greater risk. Their conditions as migrants/refugees may be protracted, causing repeated and prolonged deprivation and growing feelings of exclusion and discrimination. Moreover, there are cases of well-educated children with apparently stable family and socio-economic backgrounds who also have become radicalized.
Key indicators of a child’s path towards radicalization to violence may include shifts in a person’s social relations, behavior, and ideology. Some of these changes may include: withdrawing from existing social activities and friends; disputes with family and friends based on extreme behavior or ideas; attempts to coerce those around them to follow an extreme ideology; possession of extremist material; statements of moral superiority over, or hatred towards, other groups; statements promoting the use of violence to advance a cause or change of policy; and assaults and hate crimes on those seen as different. The internet and online social media networking are key catalysts for radicalization to violence or recruitment for terrorist purposes.
Certain children are radicalized quickly, even within weeks, while for others it is a process of months or even years. It is important to identify radicalization at an early stage. Assessment methods that are fine-tuned to identify behaviors suggesting an individual’s progression towards involvement in violent extremism should be developed, and are part of effective prevention strategies.
On the recruitment process, lessons can be learned from other crimes such as gang-related violence and sexual abuse, especially with regards to online exploitation. For instance, child grooming (either in-person or through social media) is a manipulative recruitment process that establishes a relationship with the child, fulfilling his/her emotional unmet needs and isolating him/her from family and friends.
Regardless of the type of process involved, the recruitment and use of children in hostilities is prohibited under international law.13 States should criminalize the recruitment and use of children by non-state armed groups, and consider recruitment and use of children for terrorism-related offenses as an aggravating circumstance in punishment
In order to be effective, a comprehensive prevention strategy should be grounded in international law, in particular international human rights law, and should be based on sound indicators and empirical experience, but must pay particular attention to not stigmatize people or entire communities.
11 See also the GCTF’s Abu Dhabi Memorandum on Good Practices for Education and Countering Violent Extremism and Ankara Memorandum on Good Practices for a Multi-Sectoral Approach to Countering Violent Extremism.
12 See also the Report of the United Nations Secretary-General, Plan of Action to Prevent Violent Extremism, A/70/674 (24 December 2015).
13. Art. 38 (3), CRC, supra note 2; Art. 4, Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, supra note 6; Art. 8 (2) (b) (xxvi) and Art. 8 (2) (e) (vii), Rome Statute of the International Criminal Court, A/CONF.183/9 (17 July 1998). See also Art. 3, International Labour Organization Convention No. 182, C182 (17 June 1999) on the worst forms of child labour, and Art. 3, Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, Supplementing the UN Convention against Transnational Organised Crime, General Assembly Resolution A/RES/55/25 (15 November 2000). When the child is involved in a situation of armed conflict, the relevant legal instruments of international humanitarian law are applicable, namely the Four Geneva Conventions (12 August 1949) and Two Additional Protocols (8 June 1977). In any situation where a child has been recruited by an armed group he or she should be treated first and foremost as a victim of a violation of international law, and health and social support interventions should be explored.
Good Practice 4
Develop targeted prevention strategies with a strong focus on the creation of networks to support children at risk.
A prevention strategy targeting children vulnerable to recruitment for terrorism purposes and/or radicalization to violence should address key structural and social factors at the community level as well as in the social media. The aim of such strategies should be to reduce vulnerabilities and to address the conditions that are conducive to radicalization to violence and recruitment for terrorism purposes. In particular, prevention strategies should avoid and seek to prevent the stigmatization of any religion, culture, ethnic group, nationality, or race. This could in turn foster divisiveness and fuel distrust between communities and law enforcement authorities and could even be used as basis for propaganda by violent extremist groups.14
Generally, participation in preventive programs should be voluntary. States should consider whether national or specific preventive policies and programs should be developed tailored to the particular needs of areas identified by countries where children are more vulnerable to radicalization to violence. Preventive programs generally have a stronger chance of succeeding when developed, coordinated, and implemented in collaboration with community members. Public authorities, community police, juvenile detention officials, psychologists, social workers, schools, families, and religious leaders should engage in a collaborative process to provide the necessary support to the child and his/her family, as appropriate, including developing a cultural of lawfulness. At the same time, a clear coordination mechanism and a specific allocation of responsibilities among the different actors promote accountability and contribute to the overall effectiveness of the prevention strategy.
The legal system’s ability to intervene through the child welfare system can play an important role in prevention. A court’s authority over the child can provide an opportunity to involve additional resources such as mental health professionals or schools, as appropriate.
14. See Good Practice 5 of the GCTF’s The Hague-Marrakech Memorandum on Good Practices for a More Effective Response to the FTF Phenomenon.
III. Justice for Children
Good Practice 5
Address children prosecuted for terrorism-related offenses primarily through the juvenile justice system.
The aim of the juvenile justice system should be the child’s rehabilitation and reintegration into society while ensuring accountability for his or her acts. The rights in the CRC and international standards and norms of juvenile justice apply equally to children allegedly involved in terrorism-related offenses. States should ensure that their legislation provides for appropriate child-specific procedures for cases involving children, and training should be available for law enforcement, prosecutors, judges, corrections officers, probation officers, defense counsel, and other actors handling cases involving children by making appropriate stakeholders aware of relevant standards and norms on crime prevention and criminal justice focusing on juvenile justice.
In situations where a criminal case includes children as possible suspects of terrorism, procedures should reflect appropriate recognition of the age and other relevant individual characteristics of the suspect. Thus, surveillance, searches, media communications, and procedures for arrest, detention, and interview should take into account the suspect’s child status and the officials carrying out such activities need to be trained accordingly.
One such procedure includes the protection of the identity and privacy of a child to prevent stigmatization. The rehabilitation process may be permanently undermined if a child is identified by name in the media or on the internet. Children should also be afforded protection such as parental notification of an arrest, the right to counsel, the right to be informed about the charges, the right to confront and cross-examine witnesses, the privilege against self-incrimination, the right to an interpreter, the right to have charges proven beyond a reasonable doubt, and the right to judicial review.15
Legal representatives are entitled to be involved in the judicial proceeding. A child has a right to legal counsel. After his/her arrest, the child has the right to have his/her parents or legal guardians promptly notified and a legal representative present at any questioning. The child has the right to remain silent and not to self-incriminate. In addition, the child has the right to be informed of his/her procedural rights, including the right to legal assistance, in a way that is clearly understandable to him/her.
15. See Art. 40 (2), CRC, supra note 2.
Good Practice 6
Apply the appropriate international juvenile justice standards to terrorism cases involving children even in cases that are tried in adult courts.
In the exceptional cases where children are tried in adult courts, the juvenile justice standards necessary to protect children should be applied such as incarceration separate from adults and opportunities for rehabilitation during incarceration.16 When prosecutors and courts consider whether a child should be tried in an adult court, they should take into account the negative impact on the child.
Judges, prosecutors, and defense attorneys should be trained on the specificities of the juvenile justice system and its procedural guarantees that apply in the court room.
16. See also the GCTF’s The Hague Memorandum on Good Practices for the Judiciary in Adjudicating Terrorism Offenses.
Good Practice 7
Consider and design diversion mechanisms for children charged with terrorism-related offenses.
Bearing in mind the consequences of submitting children to criminal proceedings, which may raise the level of their vulnerabilities, States should look at other ways of addressing offending behavior by children. Diversion seeks conditional channelling of children in conflict with the law outside the judicial proceedings towards a different way of addressing the issue that enables many children’s cases to be resolved by non-judicial bodies, thereby avoiding the negative effects of formal judicial proceedings and a criminal record.17 Children who may be diverted into a program should be given the opportunity to be heard before a final decision is made.18
States are encouraged to implement and promote laws that contain specific provisions for the application of diversion mechanisms, whenever appropriate and desirable. Such diversion proceedings may be carried out at different stages of the process, including before the initiation of criminal proceeding, during criminal proceedings, and as an alternative to incarceration. Guidelines should be developed allowing law enforcement officials, prosecutors, and judges to exercise their discretion to divert children into diversion programs at different stages of the process.
The child will be assessed before entering a diversion program. Diversion programs for children involved in terrorism-related activities need to be carefully tailored to the characteristics of the child and the offense committed. Diversion programs that intend to target children radicalized to violence or recruited for terrorism-related offenses should include disengagement and de-radicalization components as well as educational elements, vocational training, and psychological support, all aimed at supporting reintegration.
The successful completion of the diversion program by the child should result in a definite and final closure of the case, and no criminal or other forms of public records should be kept.
17. Art. 40(3)(b), CRC, supra note 2. The Committee on the Rights of the Child has elaborated by stating that diversion “should be a well-established practice that can and should be used in most cases” (CRC, General Comment 10, § 24).
18. Art. 12(2), CRC, supra note 2.
Good Practice 8
Consider, and apply where appropriate, alternatives to arrest, detention, and imprisonment, including during the pre-trial stage and always give preference to the least restrictive means to achieve the aim of the judicial process.
A child subject to detention is likely to suffer immediate stigmatization, disruption of education and social development, and further severance from their community, thus jeopardizing the possibility of effective reintegration and rehabilitation.
In accordance with international legal instruments, and in line with international juvenile justice standards, measures that do not involve detention should be considered for children who are being processed through the criminal justice system.19 Prosecutors and judges play a key role in deciding about protective, supportive, educational and security measures for children facing terrorism-related charges. Consistent with the laws in their countries, judges should be given a variety of possible alternatives to institutional care and detention. Alternatives in the shape of community-based options for the supervision of children can be appropriate alternatives to detention. Such community-led intervention programs should include a de-radicalization component where appropriate.
19. Article 37 (b) of the CRC provides, "[t]he arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time", supra note 2.
Good Practice 9
Apply the principle of individualization and proportionality of justice interventions in sentencing.
When sentencing, the court should consider the situation and needs of the child as well as the severity of the offense to be sanctioned, respectively the crime to be punished, in accordance with the national criminal procedure. In order to help achieve this goal, it is recommended that psychologists and other experts examine the background and situation of the child and make individualized recommendations to the courts for sentencing options that would assist in that child’s rehabilitation and reintegration.
A juvenile justice system should have a rehabilitative goal while still respecting the proportionality between the individual circumstances of the child and the gravity of the offense. Recognizing that mitigating factors may render alternatives to incarceration appropriate, children should be considered for sentences not involving imprisonment measures even for terrorism-related offenses. States should also consider implementing sentences that include a variety of rehabilitation measures, including educational and vocational components, with the aim of assisting the child in his/her development, rehabilitation, and reintegration.
Good Practice 10
Hold children deprived of their liberty in appropriate facilities; support, protect, and prepare them for reintegration.
Every child in pre-trial detention or sentenced to prison for terrorism should be held separate from adults and, where possible, in specialized juvenile detention facilities. Children should not be held in solitary confinement. Detention conditions need to ensure that the child can physically and mentally develop in a healthy way taking into account the fact that children in detention may be particularly vulnerable to violence, persecution, and manipulation. Psychological support and frequent contact with families is important. The education process should continue to help children build essential educational and vocational skills, as well as to develop critical reasoning and social awareness.
IV. Rehabilitation and Reintegration
Good Practice 11
Develop rehabilitation and reintegration programs for children involved in terrorism-related activities to aid their successful return to society.
Rehabilitation and reintegration programs for children should seek to safeguard the interests of both society and children. The successful rehabilitation and reintegration of children will also safeguard the interests of society at large.
There are very few juvenile support organizations that specialize in preventing and countering violent extremism. There is a need to develop more specialized and individualized support programs that take into account the individual characteristics of the child, including gender, preparing children to return to their families and communities after having been detained or imprisoned for their involvement in terrorism-related activity.
Rehabilitation and reintegration programs should be available to children involved in terrorism-related activity that have been diverted from the judicial process (see Good Practice 7 of this Memorandum), or are completing or have completed custodial sentences.20
Rehabilitation and reintegration programs, whether delivered in the community or through court orders or in detention, should take a multi-sector approach involving actors such as psychologists, mental health workers, social workers, law enforcement, community leaders, school teachers, and families, and should continuously assess the child.
Programs should strive to restore links between children and their families, peers, community, and society, where appropriate. Programs may be tailored to the cultural and religious background of the targeted child. Programs that also address the families of the child should constitute a significant element of the rehabilitation and reintegration process. Post-release support to facilitate the reintegration process is also necessary to facilitate continuing education, secure employment, and to counter stigmatization that often accompanies children that have been alleged to be involved in terrorism.
Rehabilitation and reintegration processes and policies benefit from open communication, and coordination and collaboration between judicial and prison authorities, juvenile support organizations, and social service organizations that work with children after their release from specialized juvenile institutions, as appropriate.
20. See guidance provided in the Paris Principles, supra note 7.
V. Capacity Development, Monitoring and Evaluation
Good Practice 12
Design and implement specialized programs for terrorism cases to enhance the capacity of all the professionals involved in the juvenile justice system.
In line with the numerous relevant international standards, capacity development and specialized training of law enforcement officials, prosecutors, judges, corrections officers, defense counsels and other actors dealing with children involved in terrorism-related activities is needed - taking into consideration the applicable legal system - to help ensure the appropriate application of juvenile justice standards regardless of the charges. Technical assistance should thus be targeted to both policy-makers and practitioners. It is likewise important to ensure that those involved in juvenile justice benefit from specialized training to handle terrorism-related cases.
States are encouraged to conduct training needs assessments to develop national training programs for all those actors involved in addressing terrorism cases involving children accordingly.
Good Practice 13
Design and implement monitoring and evaluation programs to ensure the effective implementation of international juvenile justice standards.
The respect of international standards regarding children in conflict with the law within national systems should be assessed not only based on the existence of relevant legislation, but also on effective implementation.
Juvenile justice-related programs should be monitored to assess their efficiency and effectiveness in relation to the best interest of the child and the community. As such, community-based responses, diversion mechanisms, and alternative measures that aim at prevention of re-offending, reintegration, rehabilitation, the child’s constructive role in society, and/or restoration should be developed with clear baselines and targets.
To this end, collecting disaggregated data on pre-trial and post-trial detention, alternatives to pre-trial and post-trial detention, and diversion and restorative justice approaches is necessary in order to develop effective programs for children.