Gurei, Main Campus

Juba County, Central Equatoria State

Republic of South Sudan

Module Two: The legal and normative framework for Child Protection

Prepared by: Philip Malish Gali

Child Protection Practitioner /Specialist

+211921256578/+211916716908
 Module Two: The legal and normative framework for Child Protection

2.0 OVERVIEW
The normative child protection framework is composed of a series of international legal
instruments, norms, guidelines and policies. These can be broadly categorized into three
frameworks:
 The international legal and normative framework contains International Humanitarian
Law, International Human Rights Law and International Refugee Law. It includes several
conventions that are legally binding on States that have ratified them, and a series of
international norms and guidelines that are non-binding.
 The UN Security Council framework includes a series of resolutions on child protection
issues and the mandates of the various UN peacekeeping missions that include provisions
on child protection.
 The UN Department of Peacekeeping Operations / Department of Field Support
(DPKO/DFS) framework includes the new policy on Child Protection in United Nations
Peace Operations, other policies and standards of conduct for all peacekeeping personnel.

Other International human rights instruments relevant to protection of children from abuse, neglect,
exploitation and violence (Adapted from P Newell Challenging Violence Against children: A handbook
for NGOs working on follow-up to the UN Study. Save the Children 2008)

2.1 International Legal Framework

 International Humanitarian Law (IHL) regulates the methods and means of warfare and
the treatment of people in times of war, including children affected by armed conflict or
child combatants. It applies in times of armed conflict.
 International Human Rights Law (IHRL) regulates the way in which States treat people
under their jurisdiction, with several benchmarks related to children. Its provisions are
applicable in times of peace and in times of armed conflict. Both IHL and IHRL apply to
States and organized armed groups. There is a branch of international law that applies to
individuals, as we will see later in this module.
 International Refugees Law regulates the legal definition of who is to be considered a
refugee, the rights flowing from this status and the legal obligation of receiving countries.
 The rights of refugee children are clearly articulated in the international law. In contrast,
internally displaced children are covered under international human rights law.

2.2 International Humanitarian Law

The four Geneva Conventions of 1949 and the series of international conventions regulating the use of
weapons constitute what is commonly referred to as the “laws of war”. Together, they regulate how States
and armed groups should behave in times of armed conflict.

The fourth Geneva Convention regulates the treatment of civilians in times of war, which means an armed
conflict between States. The Geneva Conventions also have two additional protocols. Additional Protocol
I of 1977 affords special protection to children in times of war and sets 15 years as the age limit for
recruitment into armed forces. The Additional protocol II, also of 1977, addresses the rights of civilians
(including children) in times of non-international armed conflict, such as civil wars, insurgencies and
other forms of internal armed conflict.

Armed conflicts today mostly fall into the category of internal (intrastate) conflict. Therefore, Additional
Protocol II is especially important. Apart from the Geneva Conventions, a series of international
conventions address the laws of war (The Hague Conventions), use and trafficking of weapons, and ban
certain types of weapons, such as antipersonnel mines and cluster bombs and munitions.

Children are therefore afforded special protection under IHL and it is the duty of UN police personnel to
protect them

2.3 International Human Rights Law

In addition to conventions that protect human rights in general, there are specific conventions that
specifically target the rights of the child.

Those include:

1. The UN Convention on the Rights of the Child (CRC), 1989

The Convention outlines the fundamental rights of children, including:
 Right to be registered at birth and have a legal identity
 Freedom of expression
 Right to education and health care
 Freedom of thought and religion
 Protection against all forms of violence
  Protection of especially vulnerable children such as refugee and displaced children and
disabled children, etc.
 Protection from economic and sexual exploitation
 Protection from torture, and unlawful and arbitrary detention
 Legal rights of children in conflict with the law

The CRC is the most widely ratified human rights convention. Some of its key advancements include the
rights of the child to express his or her point of view and to be heard in decision making processes that
affect his/her life. The CRC also states that children - alongside adults - must be recognized, respected
and protected as rights holders rather than being only the passive objects of protection and care. The CRC
is based on the guiding principle of the best interests of the child, which means that any decision
impacting a child should always consider his or her best interests. This main principle includes three other
principles: survival and development, non-discrimination and participation.

 The Optional Protocol to the CRC on the Involvement of Children in Armed Conflict, 2002: The
Optional Protocol establishes the minimum age for children to take part in hostilities as 18 years
and prohibits the forced or compulsory recruitment of children under 18 years into national armed
forces. However, children between 15 and 18 years are allowed to voluntarily enroll in national
armed forces under certain circumstances, including the prohibition to take part in active combat.
The Protocol stipulates that armed groups (non-State actors) are prohibited from recruiting and
using children under the age of 18 years. States have a duty to criminalize such recruitment.
 Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography,
2002: This protocol prohibits all forms of sexual violence, exploitation, abuse and neglect,
including the sale and trafficking of children for any purpose, as well as child prostitution and
pornography in State Parties to the Convention.
 Optional Protocol to the CRC on Communication Procedures, 2011: This protocol allows
children to seek justice directly at the Committee on the Rights of the Child if the national legal
system has not been able to provide a remedy for a child rights violation.

2. African Charter on the Rights and Welfare of the Child, 1990: The Charter is an African
Union document that replicates most of the provisions of the CRC, including those providing
protection to children in armed conflict. It is legally binding on African States that have ratified
it.
3. Non-International legal framework
  The Transitional Constitution of the Republic of South Sudan, 2011 Article 17(4): For
the purposes of this Constitution, a child is any person under the age of eighteen years. It
also includes the provision to protection of Children in armed and non –armed conflict
has been drawn from the Bill of Rights.
 Child Act, 200 Article 5; “Child” means a human being under the age of eighteen years;
The purpose of this Act is to extend, promote and protect the rights of children in
Southern Sudan, in accordance with provisions of Article 21 of the Interim Constitution
of Southern Sudan, 2005, and as defined in the 1989 United Nations Convention on the
Rights of the Child and other international instruments, protocols, standards and rules
on the protection and welfare of children to which Sudan is signatory
 The penal Code, South Sudan 2008; The purpose of this Act is to provide for the
penalties which govern the criminal acts that may be adjudicated upon by the Courts of
Southern Sudan, the sentences which may be imposed upon conviction, and any other
issues related thereto.

4. International Labor Organization Convention 182 on the Prohibition and Immediate Action
for the Elimination of the Worst Forms of Child Labor, 1999: The Convention identifies
recruitment and use of anyone under the age of 18 in armed conflict as one of the worst forms of
child labor and calls on States to make it a criminal offense

In addition to the legal instruments that address children specifically, many international
instruments address human rights in general.

The International Covenant on Civil and Political Rights (ICCPR) is part of the International Bill of
Human Rights and is a multilateral treaty that commits Member States to respect the civil and political
rights of individuals, including the right to life, freedom of religion, speech, or assembly, electoral rights
and rights to due process and fair trial. Children, as any other human beings, are protected by these
instruments.

Other conventions address specific human rights, for example:

 The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment of 1984
 The Convention relating to the Status of Refugees of 1951 and its Optional Protocol of 1977
  The Convention on the Elimination of Discrimination against Women of 1979 and Optional
Protocol of 1999
 The UN Convention on the Rights of Persons with Disabilities of 2006.

While those instruments do not distinguish children’s rights specifically, they concern all human rights
and therefore also apply to children, for example to refugee children and disabled children.

5. American Convention on Human Rights:

 Anyone detained shall be brought promptly to trial and may be released pending trial,
although release may be subject to certain guarantees (Art 7.5);
 Children have the right to protection (interpreted by the Inter-American Court of Human
Rights to encompass all rights included in the CRC - including 37b, 40.1, 40.3(b) & 40.4)
(Art 19).
6. Council of Europe Convention for the Protection of Human Rights and Fundamental
Freedoms:
 Right to liberty except in certain circumstances prescribed by law (protection from arbitrary
and unlawful detention) and legal detention must be 'reasonably considered necessary'
(Art.5.1);
 Anyone detained shall be brought promptly to trial and may be released pending trial,
although release may be subject to certain guarantees (Art. 5.3).
7. Arab Charter on Human Rights
 Protection from arbitrary and illegal detention (Art. 14.1 & 14.2);
 Right to speedy adjudication and promotion of alternatives to pre-trial detention, although
release may be subject to certain guarantees (Art. 14.5);
 Right to challenge unlawful detention and to secure release if detention is deemed unlawful
by a court (Art. 14.6);
 Right to compensation in the case of unlawful arrest or detention (Art. 14.7);
 Children in conflict with the law have the right to special treatment which promotes
rehabilitation and reintegration (Art. 17);
 No detention for those who are unable to fulfil a contractual obligation (Art. 18);
 Children in conflict with the law have the right to protection, survival, development, well-
being, freedom, dignity and to have their best interests considered (Art. 33.3)

It is extremely difficult to safeguard children's rights in detention - not just protection from violence, but
a broad range of the civil, cultural, economic, political and social rights set out in the CRC.
In order to avoid negative outcomes for children and communities, care must be taken to ensure that
diversion and alternatives are child rights-based and address the underlying causes of offending behavior
in order to prevent recidivism.

The legal safeguards for diversion and alternatives (and for restorative justice, where appropriate)

- as set out in the 'definitions' section of the toolkit - must be respected. States have an obligation to
ensure that children in conflict with the law benefit from diversion and alternatives to the greatest extent
possible, in the context of international co-operation where necessary.

2.3.1 International Guidelines

In addition to international legally binding instruments, the international community has developed a
series of international guidelines to regulate the way States treat children. Those guidelines apply in times
of peace as well as in times of armed conflict and they address all aspects of the interactions of children
with a State’s justice system. As they are guidelines, they are not legally binding but rather aim at
establishing minimum standards to treat children.

2.3.2 The UN guidelines and rules are:

 UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing) 1985
 UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh) 1990
 UN Rules for the Protection of Juveniles Deprived of their Liberty (Havana) 1990
 UN Standard Minimum Rules for Non-Custodial Measures (Tokyo) 1990
 UN Guidelines for Action on Children in the Criminal Justice System (The Vienna Rules) 1997
 UN Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime 2005
 General Comment No. 10 on Children’s Rights in Juvenile Justice 2007
 Guidance Note of the Secretary General on the UN Approach to Justice for Children 2008

2.3.3 Paris Principles on CAAFAG

The “UN Principles and Guidelines on Children Associated with Armed Forces or Armed Groups” (Paris,
2007) aim at preventing the use and exploitation of children in armed conflicts and at better protecting
children in contexts of armed conflict.

The principles’ objectives are;

1. To prevent the unlawful recruitment and use of children by armed forces and armed groups
2. To facilitate the release of children associated with armed forces and armed groups
 3. To facilitate their reintegration
4. To ensure the most protective environment for all children

The guidelines are useful in the design and implementation of disarmament, demobilization and
reintegration programs (DDR) and to ensure that children’s rights are properly taken into account at all
stages. The principles also address best practices when managing cases involving refugee or displaced
children, and the specific situation and needs of girls associated with armed forces or groups.

2.3.4 International Criminal Law

While International Humanitarian Law and International Human Rights Law both apply to States and
organized groups, there is a body of international law that applies to individuals. International Criminal
Law addresses individual criminal responsibility at the international level much in the same way that
national criminal justice systems address crime at the national level.

The International Criminal Court (ICC) was created as a permanent body to investigate and prosecute
individual perpetrators of genocide, crimes against humanity and war crimes. The ICC has jurisdiction
over crimes committed in the territory of State Parties or by nationals of State Parties after 2002, when the
Statute of the Court became operational. To this date, 123 States are parties to the Rome Statute.

The Rome Statute of the ICC of 1998 specifically defines crimes against children:

 Under the crime of genocide as the forcible transfer of children from one group to another
 Under crimes against humanity as trafficking and enslavement of children
 Under war crimes as deliberate attacks on schools and conscription or enlistment of children
under 15 years by armed forces and armed groups

The Lubanga Case

Recently, the ICC has prosecuted and convicted Thomas Lubanga Dyilo for forcibly recruiting and
enlisting children under the age of 15 years. Mr. Lubanga was convicted on 10 July 2012 and sentenced
to 14 years in prison.

The establishment of the Monitoring and Reporting Mechanism related to the six grave violations against
children during armed conflict, introduced by the UN Resolution 1612, can be used in these kind of cases
as a basis to hold perpetrators accountable.

The ICC has come under heavy criticism recently for what is perceived as its deliberate targeting of
Africans for prosecution. This debate is beyond the focus of this course. One way to limit the discussion
if you have questions and comments from learners is to focus on crimes against children and the
importance of the provisions of the Rome Statute in the fight against impunity for crimes against children.

The Taylor Case

The Special Court for Sierra Leone (SCSL) operated between 2002 and 2013 to prosecute those who bear
the greatest responsibility for crimes committed in Sierra Leone’s internal conflict (from 1991 to 2002).
The Court prosecuted and convicted seven people accused of conscription and enlistment of children
under the age of 15 years into armed forces or groups and active use of children in hostilities. It was the
first international tribunal to prosecute this crime and therefore established important international
jurisprudence.

The most prominent of the accused was Charles Ghankay Taylor, former president of Liberia. The Court
found him guilty of conscripting and enlisting children under 15 years, among other crimes, on 26 April
2012. He was sentenced to 50 years in prison and both his conviction and sentence were confirmed on
appeal in 2013. It was the first time a head of state was prosecuted and found guilty of a crime against
children at the international level, and creates a precedent to combat impunity for this type of crime

UN Security Council Framework – UNSC Resolutions on Children and Armed Conflict

The changing nature of conflict in the 20th century and the growing targeting of civilians by armed forces
and groups has meant that armed conflicts have had an increasing impact on children. Recognizing this
trend, the UN Secretary General in 1996 appointed Ms. Graça Machel, an independent expert, to prepare
a report on the impact of armed conflict on children. Her report13 demonstrated the horrible impact of
armed conflict on children and called for action by the international community. Following the
publication of her report, the Office of the Special Representative for Children and Armed Conflict was
created in 1997 to serve as the global advocate for children in armed conflict.

The Machel Report also highlighted the serious gap in addressing the plight of war affected children in
peacekeeping processes and called for an emphasis on the role of peacekeeping forces in promoting and
respecting children’s rights. In 1999, the Security Council adopted its first resolution on children and
armed conflict (SCR 1261), which placed child protection on the peace and security agenda and provided
for a specific role for DKPO. The topic of children and armed conflict was the first thematic resolution to
ever be adopted by the UN Security Council. All previous resolutions had had a geographical focus. Since
1999, the situation of children in armed conflict appears regularly on the Security Council agenda, which
considers their fate as a threat to peace and security. Since then child protection provisions have been
progressively included in peacekeeping mandates through thematic and country-specific resolutions.
UN Security Council Framework – UN peace operations with child protection mandates

Since 1999, the Security Council has included child protection into the mandates of United Nations
Peacekeeping Operations and Special Political Missions. Currently the missions in Afghanistan, Iraq,
Somalia, Sudan, South Sudan, DRC, CAR, Mali and Haiti all have child protection mandates.

Un Security Council Framework

While each mission mandate is unique and tailored to the specific situation of the host State, similarities
exist in the provisions on child protection. All missions now have a mandate to protect civilians and
protect and promote human rights, and all have one or more of the following provisions specifically
related to children;

 Protection of civilians, especially women and children affected by armed conflict or criminality,
including internally displaced children and refugee children
 Child protection as a cross-cutting issue throughout the mission mandate
 Protection and promotion of human rights, especially those of vulnerable groups like children
 Monitoring, investigation and reporting on violations and abuses against children, including all
forms of sexual violence, and identification and prosecution of perpetrators
 Prevention of the recruitment and use of children by armed forces and groups
 Special attention to the needs of children in disarmament, demobilization and reintegration
programs
 Addressing juvenile justice issues such as arbitrary or prolonged pre-trial detention and prison
condition

The mission mandate gives mission components, including UN Police, their specific and direct mandate
to act on child protection issues. As UN Police, you are in a unique position to fulfil parts of this mandate,
as you work directly with the host State police and judicial system. Through your mentoring and
advocacy, you can help host States to bring their treatment of children up to international standards.

For mission that does not have a specific child protection mandate, the protection of children is
intrinsically included within the overall Protection of Civilian’s mandate.

UN DPKO/DFS Policies and Standards

The DPKO-DPA-DFS Policy on child protection outlines the responsibilities and the role of
peacekeeping missions and special political missions in the protection of children affected by armed
conflict in UN peacekeeping operations, and political missions. Share some of the highlights of the policy
as outlined below

 The policy explains the role of child protection advisers in peacekeeping and political missions;
 It stresses that child protection is not the work of the advisers alone but that it is a collective
responsibility shared across the mission by all mission components;
 Monitoring and reporting on grave violations against children is identified as an important task in
the child protection mandate;
 It calls for all peacekeepers to receive training on child protection;
 It stresses the importance of respecting and promoting children’s rights. It therefore stresses that
peacekeepers must promote and abide by the highest normative standards on child protection.
 Lastly it prohibits violations of children’s rights by peacekeepers including, the use of child labor,
sexual exploitation and abuse, and the military use of school.

The obligations related to UN Police Component are also spelt out in the Policy

UN Police must ensure that child protection is integrated into their work, including in their mentoring and
advising activities, as well as in their capacity building efforts in support of the host State Police

The Relevant issues that should be taken into account by the UN Police Component are:

 Child sensitive interviewing techniques

 Monitoring child protection concerns through community-oriented policing
 Compliance with international norms and standards, including those in relation to the
apprehension and detention of children
 Prevention and response to violations and abuses against children, including SEA

The Importance of National Laws to Child Protection Practitioners

In order to fulfil their mandate to build the capacity of Child Protection Practitioners, they need to know
the law enforcement agencies tin country and get familiar with the national laws, including those on child
protection for better protection of children against violence and abuses.

As Child Protection practitioners, you must understand the nature of the national legal system, promote
the implementation of international norms and standards according to the principle of the best interests of
the child, and get informed on child protection issues in the context of the national legal system.

We can do this by discussing with our colleagues from the law enforcement institution and child
protection system. This will help us to identify opportunities to promote a system better suited to
children’s rights. but Child protection practitioners must build awareness with their national counterparts
on international standards. Because the National legislation determine what constitutes as an offence or a
crime in the country, the extent of the powers of the law enforcement agencies and other specific legal
provisions relating to children.

These may include for example:

 The age of criminal responsibility in the country

 The minimum age of consent
 The minimum legal age for marriage
 The criminalization of certain harmful practices such as female genital mutilation, corporal
punishment in schools and detention centers, etc.
 The operational framework for diversion

Guiding Questions

1. What is International Human Rights Law (IHRL)?

2. Why does Human Rights Law matter to UN Peacekeeping?
3. What is International humanitarian law(IHL)?
4. What are the Basic Principles of IHL?
5. What does IHL do?
6. What is International Refugee Law (IRL)?

Assessment /Course work

1.0 Case Study

The director of a health care facility in your area of deployment in Bor in South Sudan
comes to visit you to report an incident with a militia commander. The director informs
you that last week a commander from a local militia came to the clinic with around 50
armed men. The commander explained that his group needed accommodation and a place
to treat their injured soldiers for a few weeks, and that he wanted to use the clinic. When
the director refused, the armed men forcibly took over the health care facility premises.
The armed group has been in the clinic since yesterday. According to the director, they
sent most of the patients that could walk home but kept ten of the older boys. The
 commander told the director that those ten boys were old enough to fight for their country
and that he would train them and integrate them into his militia.
Questions:
1.What violations against children can you see in this case?
2. If you had to provide information to report this incident and protect the rights of these
boys, what would be your main arguments? Please refer specifically to relevant
instruments to make your case stronger.

2.0 What are the differences between international humanitarian law and International human
rights law as applied in protection of affected population including Children.

Reference.
1. “Impact of Armed Conflict on Children” Report of Graça Machel, 1996,
http://www.unicef.org/graca/
2. Paris Principles and Guidelines on Children Associated with Armed Forces or Armed
Groups: http://www.google.ca/url?
sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUKEwjy_KP6p_LJAhVNpY
MKHdLD
3. African Charter on the Rights and Welfare of the Child, 1990,
http://www.unicef.org/esaro/children_youth_5930.html 7
4. ILO Convention No. 182, International Labor Organization,
 http://www.ilo.org/dyn/normlex/en/f?
p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C
5. The International Covenant on Civil and Political Rights (ICCPR), General
Assembly Resolution 2200A (XXI) of 16 December 1966, entered into force on 23
March 1976, http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf
6. These provisions are summarized from the mandates of the following UN
peacekeeping missions in which UNPOL are currently deployed: MINUSCA (Central
African Republic), MINUSMA (Mali), MINUJUSTH (Haiti), MONUSCO (DRC),
UNAMID (Darfur/Sudan), UNMIL (Liberia), and UNMISS (South Sudan)