Adolescent Criminal Justice: The need for a General Comment on the rights of adolescents
Although the Committee on the Rights of the Child, the body that monitors the Convention on the Rights of the Child, issued a General Comment on adolescent health in 2003, there is no comprehensive General Comment on the rights of adolescents to complement the earlier General Comment on Implementing Child Rights in Early Childhood. Such an initiative would not dilute the concept of childhood and children’s rights but rather would emphasize the evolving capacities of older children to implement their rights.
A General Comment would be particularly important for adolescents’ rights in criminal justice. Even the English-language title of the existing General Comment on child criminal justice, Children’s Rights in Juvenile Justice, risks a stigmatizing effect. Adolescents only become juveniles in criminal justice systems. No such similar distinctions are made in relation to adults. Adults remain adults regardless of whether they are facing criminal trial. In part this is because the predominant image of the relationship between adolescence and criminal justice is that of establishing guilt or innocence. Overlooked by many, but not by the Committee on the Rights of the Child, is that adolescents can be victims of crimes and also witnesses to criminal activities.
In order to properly address adolescents – both as possible lawbreakers and as victims and witnesses – we must reconceptualize the image and goals of adolescent criminal justice. Such an effort is critical, because it will assist in reducing the demonization and fear of adolescents. It will also help build a shared adult-adolescent community united in the interest of preventing a recurrence of crime. Hence, ironically, by focusing resources on the need to protect adolescent victims and adolescent witnesses, it may be easier and more popular to call for greater protection of adolescents’ rights in the criminal justice system as a whole.
The principles of child criminal justice are particularly important for the world’s adolescents. As adolescents grow older they encounter resistance to assuming their binding legal entitlements, which focus on their rights to dignity, to diversionary procedures and to recovery and reintegration in the community. These rights are as equally binding for early childhood as for late adolescence.
This resistance is highlighted by the extraordinary range of minimum ages States around the world have set for establishing criminal liability, from age 7 in early childhood to age 18 in late adolescence. No other area of global human rights attracts such a wide variety of legally set minimum ages, and such a variation ought to prompt questions about arbitrariness and irrationality.
Adolescents are citizens of the world. They are entitled to harbour a legitimate expectation that they will be treated with the same seriousness as adults and offered appropriate victim and witness support and protection. However, States’ responsibilities to recognize adolescents’ entitlements as victims and as witnesses are scattered in a range of optional treaties called protocols. These also focus more on a narrow range of specific crimes, such as sexual exploitation. Although, importantly, they require adolescent-sensitive procedures, the very specificity of the treaties makes it difficult to create a much-needed universal culture of adolescent-focused victim and witness support and policies for all crimes.
As specific as their protection is, even these additional protocols still have not attracted as many States parties as has the Convention on the Rights of the Child. Over 50 States that are party to the Convention on the Rights of the Child have not ratified the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography or the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which supplements the United Nations Convention against Transnational Organized Crime.
This does not mean that we need to create a new binding treaty for adolescents, but it does create an enormous challenge for civil society and States to call governments to account for failing to implement fully the UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (2005). By referring to them, a General Comment on adolescence would help raise the Guidelines’ profile with governments.
These Guidelines, which UNICEF and the United Nations Office on Drugs and Crime have made available in a child-friendly version, aim at assisting and supporting those caring for adolescents in dealing sensitively with adolescent victims and witnesses of crime. They are gender-sensitive, recognizing that girls are particularly vulnerable and may face discrimination at all stages of the justice system. They are also of universal application, as they are equally applicable to informal and customary justice, including restorative justice.
The Child Victims and Witnesses of Crime Guidelines have at their heart the best interests of adolescents and of society, because if adolescents are able to seek justice and to testify without fear or trauma this is beneficial for society as a whole.
While participation by adolescents in national and international policy-making has increased – even extending to the right to vote in national elections in a growing number of countries ndash; adolescents are rarely asked to contribute to national debates about the minimum age of criminal responsibility or on adolescent criminal justice in general. In drafting a General Comment on the rights of adolescents, the Committee on the Rights of the Child would have to consult in innovative ways and adopt a serious, organized and strategic approach together with adolescents globally. Such a widespread input would be to the benefit of States and the global community.
Geraldine Van Bueren, one of the original drafters of the Convention on the Rights of the Child, is Professor of International Human Rights Law at Queen Mary, University of London and a Visiting Fellow of Kellogg College, Oxford. She is also a Commissioner on the Equality and Human Rights Commission of Great Britain.