Toolkit on Diversion and Alternatives to Detention

Government

 
 

National Security

• Introduction
• 1. What is the relevance of justice in general to national security?
• 2. What is the relevance specifically of diversion and alternatives to national security?
• Summary
 
Introduction
This section is in two parts: Part 1 touches on why, given the current global political climate, national security is such an important area for consideration in the justice context and vice versa; Part 2 looks specifically at the role of diversion and alternatives in improving national security.
 
1. What is the relevance of justice in general to national security?
The links between human rights, justice and peace have long been recognised. The very first clause in the preamble of the 1948 Universal Declaration of Human Rights reads as follows: "recognition of the inherent dignity and of equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world" [emphasis added]. This is a sentiment so powerful that it has been repeated, word for word, in the preambles of the International Covenant on Civil and Political Rights, the International Covenant on Economic and Social Rights, the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment and, of course, the Convention on the Rights of the Child. Almost sixty years later the UN Secretary-General reiterated the links between human rights, security and development: “Today, development, security and human rights go hand in hand; no one of them can advance very far without the other two. Indeed, anyone who speaks forcefully for human rights but does nothing about human security and human development – or vice versa – undermines both his credibility and his cause. So let us speak with one voice on all three issues, and let us work to ensure that freedom from want, freedom from fear and freedom to live in dignity carry real meaning, for those most in need.”[1]

Given that nearly 50% of the world’s population is under the age of 18, and given that human rights, justice, peace, security and development are so intertwined, it would appear that there cannot be peace and security at the national or global level without taking half of the world's citizens into account and preventing and tackling violations of their rights.
Abuse of children by the state fosters disrespect for the state, reducing its perceived legitimacy. "The way children are treated by national legal, social welfare, justice systems and security institutions is integral to the achievement of rule of law and its related aims."[2] Implementing a justice system which ‘recognise[s] the inherent dignity and equal and inalienable rights of all members of the human family,’ including children in conflict with the law, would appear to be a legitmate strategy for strengthening national security, especially given the need to avoid further alienating young people who are already marginalised in society.

Advocating child rights-based justice systems for children in conflict with the law is particularly relevant in the current international political climate which is witnessing a tendency by governments to adopt increasingly repressive policies under the guise of 'national security agendas', even though “[a]ny security policy that is built at the expense of the observance of human rights is doomed to failure.”[3]

“Juvenile justice is not ‘compassionate’ justice because it concerns children. Being a child does not preclude one’s entitlement to benefit from the rule of law and the safeguards it provides […]”[4] “The concept underpinning why under-18s need special protection when they come into conflict with the law does not become invalid merely because they are members of the armed forces or because additional or exceptional legal powers apply. The reasons why children and juveniles are recognised as needing and deserving different treatment remain applicable – so should the requisite standards.”[5]

Child rights-based justice systems for children in conflict with the law which conform to the aims and standards set out in CRC Articles 37 and 40 (and other instruments) make up an important part of the human rights framework which is the “foundation of freedom, justice and peace in the world.” 
 
2. What is the relevance specifically of diversion and alternatives to national security?
Detention can serve to further alienate individuals and groups who are already marginalised by reinforcing social exclusion and breeding disaffection with government authority.
Apart from the fact that they are explicitly required by international standards, the key strength of diversion and alternatives in contributing positively to the national security agenda lies in the focus on reintegration and the avoidance, where possible, of detention (see the toolkit section on child development and psychology for more details). “Good governance, with a view to securing democratic progress, implies that the state, which is at once the source and the guarantor of human rights, must strive to [...] deal with children in line with international norms and standards, including using deprivation of liberty only as a measure of last resort. Any decision, or punitive measure, that compounds the child’s exclusion from the community is unlikely to succeed.”[6] Child justice systems for children in conflict with the law need to foster social reintegration rather than exclusion.

In the current geo-political context of fear of threats to national security, governments must act to include rather than exclude the most marginalised amongst their young citizens who, with every passing day, are developing into young adults and already influencing the generations following behind. Child rights-based justice systems that promote diversion, alternatives and restorative justie approaches are an ideal mechanism through which to help achieve this goal.
 
Summary
Respect for human rights must go hand in hand with the development of national security agendas. Human rights, human development and human security are inextricably intertwined. With almost half the global population under the age of 18, urgent efforts are required to ensure that marginalised children such as those in conflict with the law are reintegrated into society rather than further isolated through detention and repressive policies. Child rights-based justice systems that invest in prevention, diversion and alternatives are ideal mechanisms to contribute positively to national security agendas by working towards social inclusion rather than exclusion. Children in conflict with the law are members of the ‘human family’ too and ‘recognition of [their] inherent dignity and […] equal and inalienable rights’ makes up an important part of ‘the foundation of freedom, justice and peace in the world.’
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Footnotes:
1. UN Secretary-General during a speech marking the end of his mandate, given on the occasion of International Human Rights Day in Geneva, 10 December 2006, http://www.un.org/democracyfund/XNewsHumanRightsDay.htm (accessed October 2008), cited in ‘The Juvenile Justice System, a Key to Human Security Policy Reform’, Bernard Boëton in Seen, But Not Heard: Placing Children and Youth on the Security Governance Agenda, David Nosworthy (Ed.), Geneva Centre for the Democratic Control of Armed Forces (DCAF), 2009, pp.127-143 [Translated from the French by Intonation, Lyon and interpreted by David Nosworthy], p.127.
2. Guidance Note of the Seretary-General: UN Approach to Justice for Children, September 2008, p.3.
3. Boëton, p.143.
4. Boëton, p.134.
5. Rachel Brett, ‘Juvenile justice, counter-terrorism and children’, UN Institute for Disarmament Research, Disarmament Forum (March 2002): 29-36, 38, cited in Boëton p.141.
6. Boëton, p.133.

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