Optional Protocol on the sale of children, child prostitution and child pornography

Transcription

1 Optional Protocol on the sale of children, child prostitution and child pornography... (for full text of Optional Protocol, see Appendix 2, page 670 and for reporting guidelines, see Appendix 3, page 692) The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography defines what is meant by child sale, prostitution and pornography and requires ratifying States to take all possible measures to criminalize these offences and prosecute offenders domestically, though overseas prosecution of nationals is discretionary. It also requires that the children concerned be treated humanely, with a view to their social rehabilitation. Unlike the Optional Protocol on the involvement of children in armed conflict, the proposal for an Optional Protocol on child sexual exploitation was not supported by the Committee on the Rights of the Child or many of the NGOs working in the field. It was felt that the issues were already addressed within the Convention, that they should not be seen in isolation but holistically within the broad range of children s human rights, and that energies should rather be put into strengthening the implementation of existing rights than into the creation of new instruments. Nonetheless the desire for more detailed State responsibilities to tackle these forms of child abuse, particularly as regards the prosecution and extradition of sex tourists, ultimately ensured the Optional Protocol s adoption. Summary OPTIONAL PROTOCOL ON THE SALE OF CHILDREN, CHILD PROSTITUTION AND CHILD PORNOGRAPHY 647

2 Background Action to tackle commercial sexual exploitation of children started in the 1990s and is described in detail under article 34 (page 505). In that year, the Special Rapporteur on the sale of children, child prostitution and child pornography was appointed to review international and national developments and make detailed recommendations. In 1992, the Commission on Human Rights adopted Programmes of Action on this subject, making recommendations for greater public awareness and social support for child victims, or survivors, the term preferred by many NGOs, as well as for legislative reform. Forms of cooperation between law enforcement agencies on cross-border trafficking were encouraged together with the establishment of special intergovernmental tasks forces to promote measures in alliance with appropriate non-governmental organizations (Commission on Human Rights resolution 1992/74, 5 March 1992). In 1994 the Commission on Human Rights established an open-ended working group to prepare guidelines for a possible protocol on the sale of children and their commercial sexual exploitation. As discussed above, the proposal for an protocol on these issues did not have particularly enthusiastic support from either the Committee or many of the organizations working to prevent the sexual exploitation of children (for example, see Report on the eleventh session, January 1996, CRC/C/50). The Optional Protocol was adopted by the United Nations General Assembly resolution 54/263 on 25 May By March 2001 the Optional Protocol had been signed by 76 States and ratified by 17. It entered into force on 18 January 2002, three months after the deposit of the tenth instrument of ratification or accession (article 14). The Optional Protocol contains a number of proposals made at the 1996 First World Congress against Commercial Sexual Exploitation of Children, held in Stockholm (Sweden). This produced a detailed Declaration and Agenda for Action rooted in the Convention (see page 510) that urged States to prepare national agendas with set goals and a time frame for implementation by the year In particular, the Congress focused on the issue of sex tourism, calling for extraterritorial criminal laws. The ILO Worst Forms of Child Labour Convention (No.182) was adopted in The worst forms of child labour includes all forms of sale of children, child prostitution and child pornography (see Appendix 2, page 670 and discussion on page 479). Also developed in parallel to the Optional Protocol was the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. This was adopted by the United Nations General Assembly in 2000 (for comments, see page 523. For full text, see Appendix 4, page 746). Provisions of the Protocol Article 1 requires the prohibition of the sale of children, child prostitution and child pornography. Article 2 defines what is meant by these terms. As regards the definition of pornography, Sweden declared when it signed the Optional Protocol that the words any representation should be taken only to mean visual representation (so, for example, written descriptions of child sex would not be included). Article 3 provides further detail for example that the sale of children includes such things as transfer of children s organs, their forced labour or improperly inducing parental consent to a child s adoption and requires that all these activities are criminalized, whether committed domestically or transnationally, and supported by appropriate penalties and State measures to secure enforcement. These measures shall include ensuring that legal persons that is, legal entities, such as film or publishing companies involved in pornography are made liable if they are involved in the commission of these offences. The final paragraph requires States to take measures to ensure compliance with international adoption instruments. The main multilateral instrument is the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption, but of course this does not help in countries where the Hague Convention has not been ratified. However the definition of sale of children in article 2 should ensure that any aspect of adoption undertaken for profit is criminalized. Article 4 is concerned with the extent of jurisdiction over these criminal offences. The State must criminalize such offences that are committed within its own territory and must also prosecute if it declines to extradite a foreign national alleged to have committed such an offence. It may also extend jurisdiction to cover offences which are either committed abroad by one of its citizens (or habitual residents), or committed upon one of its citizens when abroad. 648 Implementation Handbook for the Convention on the Rights of the Child

3 Article 5 concerns extradition. The offences covered by this Protocol must be included in all extradition treaties, and in the absence of a specific treaty States may use the Protocol as the legal basis for making an extradition. If extradition is refused the ratifying State must try to get the alleged offender prosecuted in the State in which the offence was committed. Article 6 requires the maximum degree of cooperation with other States in the prosecution of offenders. Article 7 requires seizure of goods and proceeds and closure of any premises relating to the commission of these offences. Article 8 addresses the need to protect the child victims or survivors concerned. It states that their best interests must be a primary consideration of the criminal justice system (rather than the paramount consideration as it is in most civil cases relating to children) and that specialist training must be provided for those who work with child victims. Without prejudicing defendants right to a fair hearing, the criminal justice system must also help child victims by: adapting procedures which recognize their vulnerability and special needs (for example, by the use of video evidence) and providing appropriate support services; keeping them fully informed about the case and of their rights; allowing their views, needs and concerns to be considered in any proceedings which affect their personal interests (for example, by deciding not to prosecute); protecting their identity and privacy; providing any necessary protection to them and to their relatives; avoiding unnecessary delay in the execution of cases and remedies. The State must also provide necessary safeguards for people and organizations that work with child victims. Article 8 also requires that any uncertainty over the age of the child should not prevent the initiation of criminal investigations. It does not contain a provision for the decriminalization of child victims for example giving child prostitutes immunity from prosecu- tion. This is a controversial issue: proponents for non-criminalization argue that children engaged in prostitution should be treated as child abuse victims; others argue that de-criminalizing prostitution will encourage more exploitation of minors and that older children, over the legal ages of consent and criminal responsibility, should have the same liability as adults. Article 9 requires States to take preventive measures against these offences, including banning promotional advertising, and to disseminate information about the harmful effects of the offences and these preventive measures to the general public as well as to children themselves (encouraging the participation of children in this process). The article also obliges States to ensure that child victims are provided with social rehabilitation and access to compensation procedures. Under article 10, States must take all necessary steps for effective cross-national collaboration to prevent, detect and punish those who are responsible for sale of children, child pornography and prostitution, and to assist the social rehabilitation of child victims. It also mentions the need to tackle the root causes of the offences, such as poverty and underdevelopment. Article 11 is similar to article 41 of the Convention, providing that the Protocol shall not get in the way of measures more conducive to children s rights. And as with the Convention, under article 12 States must submit a full report on implementation to the Committee two years after ratification. Thereafter reporting on the Protocol can be included within States fiveyearly periodic reports on the Convention. The Committee adopted reporting guidelines for Initial Reports under the Optional Protocol in October 2001 (for text, see Appendix 3, page 692). The remaining articles describe ratification, implementation, denunciations and amendments in line with other human rights treaties; the absence of provisions for entering a reservation does not mean that a State may not adopt reservations when it ratifies. OPTIONAL PROTOCOL ON THE SALE OF CHILDREN, CHILD PROSTITUTION AND CHILD PORNOGRAPHY 649

4 Implementation Checklist General measures of implementation Have appropriate general measures of implementation been taken in relation to the Optional Protocol on the sale of children, child prostitution and child pornography, including: identification and coordination of the responsible departments and agencies at all levels of government (the Optional Protocol is relevant to departments of justice, foreign affairs, home affairs, labour, education, social welfare and health)? identification of relevant non-governmental organizations/civil society partners? a comprehensive review to ensure that all legislation, policy and practice is compatible with the article, for all children in all parts of the jurisdiction? adoption of a strategy to secure full implementation which includes where necessary the identification of goals and indicators of progress? which does not affect any provisions which are more conducive to the rights of the child? which recognizes other relevant international standards? which involves where necessary international cooperation? (Such measures may be part of an overall governmental strategy for implementing the Convention as a whole.) budgetary analysis and allocation of necessary resources? development of mechanisms for monitoring and evaluation? making the implications of the Optional Protocol widely known to adults and children? development of appropriate training and awareness-raising (in relation to the Optional Protocol likely to include the training of police, border staff, court officers, social workers, adoption agencies staff and health personnel)? Specific issues in implementing the Optional Protocol Are all forms of selling children transactions whereby a child is transferred by any person or group of person to another for remuneration criminal offences under domestic law? Is it a criminal offence to offer, deliver or accept a child for the purpose of: sexually exploiting the child? transferring the child s organs for profit? engaging the child in forced labour? Is it a criminal offence to improperly induce consent as an intermediary for the adoption of a child? 650 Implementation Handbook for the Convention on the Rights of the Child

5 ; ; ; ; ; ; ; ; ; ; How to use the checklists, see page XVII Is it a criminal offence to offer, obtain, procure or provide a child for child prostitution (using the child in sexual activities for any form of gain)? Is it a criminal offence to produce, distribute, disseminate, import, export, offer, sell or possess for any of these purposes, child pornography (any representation of the child engaged in any sexual activity or any representation of the sexual parts of children for a sexual purpose)? Do these criminal offences have appropriate penalties, reflecting their grave nature? Are there provisions for the seizure or confiscation of any goods relating to or proceeds derived from these offences? Are measures available to close premises used to commit these offences? Are all forms of advertising or promoting these offences prohibited? Are legal entities (for example companies) liable for these offences? Does domestic criminal law in relation to these offences apply to all foreign nationals who commit them within the jurisdiction? Are these offences included as extraditable offences in all treaties and agreements between the State and other countries? Does the State provide the greatest measures of assistance to all other countries in the investigation, prosecution or seizure of property relating to the commission of these offences? Are child victims kept fully informed about their rights and about the details of any criminal cases relating to their exploitation? Do all stages of the criminal justice procedures recognize vulnerability of child victims and give primary consideration to their best interests? Is special training, particularly legal and psychological, provided for those who work with child victims? Are criminal justice procedures adapted to accommodate children s special needs as witnesses? Are child victims supported throughout legal processes? Are the views, needs and concerns of child victims ascertained and considered in any proceeding affecting their personal interests? Is the privacy of child victims fully protected within the criminal justice system? Does the law prohibit any form of identification of child victims? Is appropriate provision made available where necessary to protect child victims and their families or witnesses on their behalf from intimidation or retaliation? Are appropriate measures available where necessary to protect the safety and integrity of those who are involved in helping child victims? Is unnecessary delay avoided in all cases involving child victims and in the delivery of compensation? OPTIONAL PROTOCOL ON THE SALE OF CHILDREN, CHILD PROSTITUTION AND CHILD PORNOGRAPHY 651

6 Reminder : The Optional Protocol on the sale of children, child prostitution and How to use the checklists, see page XVII Does the State disseminate information to children and the general public, through education, training and publicity, about the harmful effects of sale of children and child sexual exploitation and how to prevent these activities? Are children involved in the preparation of this information? Are adequate measures taken for the full social reintegration and recovery of child victims? Do child victims have access to procedures to seek compensation from those legally responsible? Does the State give full cooperation and support to agencies, both within the jurisdiction and internationally, which aim to prevent, detect and punish those child pornography should not be considered in isolation from the Convention on the Rights of the Child. The Convention is indivisible and its articles are interdependent. Particular regard should be paid to: The general principles of the Convention Article 2: all rights to be recognized for each child in jurisdiction without discrimination on any ground Article 3(1): the best interests of the child to be a primary consideration in all actions concerning children Article 6: right to life and maximum possible survival and development Article 12: respect for the child s views in all matters affecting the child; opportunity to be heard in any judicial or administrative proceedings affecting the child Closely related articles in the Convention Articles whose implementation is related to that of the Optional Protocol include: Article 8: preservation of child s identity Article 11: protection from illicit transfer and non-return Article 16: protection from arbitrary interference in privacy, family and home Article 20: children without families Article 21: adoption Article 32: child labour Article 33: drug abuse and trafficking Article 34: sexual exploitation Article 35: prevention of abduction, sale and trafficking Article 36: other forms of exploitation Article 39: rehabilitative care committing these offences? Does the State give full cooperation and support to agencies, within the jurisdiction and internationally, which assist child victims? Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict 652 Implementation Handbook for the Convention on the Rights of the Child