Why does UNICEF promote diversion and alternatives?
• 1. UNICEF as the lead UN agency for children in conflict with the law
• 2. UNICEF’s role in the Interagency Panel on Juvenile Justice
• 3. Why should UNICEF refrain as much as possible from engaging in isolated initiatives to improve conditions in establishments where children are deprived of their liberty?
This section is in three parts: Part 1 clarifies UNICEF's position as lead UN agency for children in conflict with the law; Part 2 highlights UNICEF's role in the Interagency Panel on Juvenile Justice; Part 3 gives specific reasons why, as much as possible, UNICEF should not be involved in isolated initiatives to improve physical conditions in establishments where children are deprived of their liberty, listing alternative measures which can help to address this problem instead.
1. UNICEF as the lead UN agency for children in conflict with the law
UNICEF has a general mandate to support governments and civil society in implementing the CRC (including provisions relating to children in conflict with the law). Furthermore, as outlined previously in this toolkit, "The Secretary-General’s Rule of Law Reports and related decisions identify UNICEF as lead agency for juvenile justice, enabling the organization to convene a process with other agencies to develop a United Nations-wide approach to justice for children." (UNICEF Child Protection Strategy, para. 61). Diversion and alternatives to deprivation of liberty were identified as areas for scaling up in the UN Common Approach to Justice for Children endorsed by the principals’ of UN entities in the Rule of Law Coordination and Resource Group. [See the toolkit section on 'Other UN and regional initiatives' for more details and link to the Group's website].
2. UNICEF’s role in the Interagency Panel on Juvenile Justice
UNICEF is also a key member of the Interagency Panel on Juvenile Justice, established by Economic and Social Council (ECOSOC) Resolution 1997/30 to act as a "coordination panel on technical advice and assistance in juvenile justice." The objective of the Panel is to facilitate and enhance country and global level coordination in juvenile justice. [See the toolkit section on 'Other UN and regional initiatives' for more details and link to the Panel's website].
3. Why should UNICEF refrain as much as possible from engaging in isolated initiatives to improve conditions in establishments where children are deprived of their liberty?
UNICEF is committed to comprehensive reform of justice for children in conflict with the law (as set out in General Comment No. 10) in order to bring them in line with international standards. UNICEF is also committed to a systems-building approach and the UN Common Approach to Justice for Children as a strategy to achieve this. This comprehensive approach includes addressing conditions in detention, especially given that detention in some form will always be a component of justice systems for a minority of children. However, given the over-use and mis-use of detention globally and the rights violations which this entails, when comprehensive reform is not possible (e.g. due to limited resources or political will) measures which promote the least possible use of deprivation of liberty (such as prevention, diversion and alternatives) provide a strategic and pragmatic entry point, rather than focusing mainly or exclusively on isolated initiatives to improve conditions in detention without addressing the broader context. The systemic approach encourages broad partnerships where responsibilities are shared in line with comparative advantages. Within this framework, it may well be that other partners are able to focus on conditions in detention whilst UNICEF focuses on leading comprehensive reform and scaling up diversion and alternatives.
Improving the physical conditions under which children may be deprived of their liberty may contribute, unintentionally, to the opposite: more children spending a longer time in closed institutions.
‘Model’ institutions may even attract children who are not in conflict with the law. Education, basic health services and leisure facilities may be offered to children ‘behind bars’ while not for children and their families in the community. In other cases, these forms of ‘positive discrimination’ may provoke further negative feelings of the population against children in conflict with the law and/or encourage families of children in conflict with the law that detention is the best place for them.
The promotion of longer and stricter measures of deprivation of liberty, or the improvement of the living conditions and the provision of more opportunities for children within the institutions, are not the best possible responses to this observation.
In a context where overall justice reform is not practicable, UNICEF should therefore limit as much as possible direct assistance in the improvement of physical conditions in closed institutions, and refrain from contributing to the building of new ones.
UNICEF can still address the issue of living conditions, and particularly the serious violations of protection rights which occur in detention, in several other ways:
• by promoting and supporting the use of diversion and alternatives to detention: by preventing as many children as possible from being placed in detention, re-integrating them instead into the community, the number of children in closed facilities should drop and conditions for those remaining will improve;
• by promoting the early release of children in detention in line with CRC Article 37(b) which calls for detention 'for the shortest appropriate period of time';
• by promoting preparation for release and support upon release;
• by building the capacity of staff to reduce physical, sexual and emotional violence and inhuman and degrading treatment and punishment of children whilst in detention and to promote rehabilitation of children who are detained - with a view to encouraging early release;
• by documenting the living conditions of children deprived of their liberty and addressing the issue with the responsible political authorities and decision-making bodies. UNICEF will in particular take position on ‘conditions’ such as inadequate family visits, violence, degrading punishment and non-separation from adults. Political authorities should be invited, bearing in mind the CRC, to guarantee decent living conditions. Decision-makers such as judges are not always aware of the conditions in which children deprived of their liberty are living. Documenting cases can help in raising awareness and discourage them from too frequent recourse to such measures.
UNICEF has a mandate to support government and civil society implementation of the CRC (including provisions relating to children in conflict with the law) and it also has a mandate to take the UN lead in juvenile justice. Whilst promoting comprehensive reform of justice systems, given the over-use and mis-use of detention globally and the rights violations which this entails, when comprehensive reform is not possible, reduction of numbers of children in detention can nonetheless provide a strategic entry point. Diversion and alternatives, in addition to prevention earlier down the line, are the interventions best suited to achieving this goal. UNICEF should refrain as much as possible from improving physical conditions in establishments where children are deprived of their liberty, avoid contributing to the building of new institutions, and concentrate instead on supporting efforts to reduce use of this measure in the first place. This will reduce pressure on the resources available for detention and thereby improve conditions. Other measures that can be taken to improve conditions in detention include: promoting early release from detention; promoting preparation for release and support upon release; building the capacity of staff to reduce violence against children in detention; and documenting conditions in detention for advocacy purposes.
1. Adapted from UNICEF’s Child Protection Approach in the sphere of Juvenile Justice: A proposed outline, Cantwell, N. and Cappelaere, G., 2001, pp.18-20 [Internal document, not for circulation].