United Nations -- Suggest Legal Framework (Child Sex and Child Labor)
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THE INTERNATIONAL LEGAL FRAMEWORK
and
CURRENT NATIONAL LEGISLATIVE AND ENFORCEMENT RESPONSES
TABLE OF CONTENTS EXECUTIVE SUMMARY
PART I: THE INTERNATIONAL LEGAL FRAMEWORK
Introduction
I. UNITED NATIONS TREATIES IN FORCE
1.1. I 923 Convention for the Suppression of the Circulation of. and Traffic in. Obscene Publications
1.2 I 949 Convention for the Suppression of Traffic in Persons and the Exploitation of the Prostitution of Others
I .3 1 9~6 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery
1.4 1979 Convention on tile Elimination of ~l Forms of Discrimination against Women
1.5 1989 Convention on the Rights of the Child
2. ILO INSTRUMENTS
2.1. ILO Couventions 29 (Forced Labour. 1930) and 105 (Abolition of Forced Labour, 1957)
____ I LO Convention 138 ( Minimum Age. 1973) and Recommendation 146 ( Minimum Age, 1973)
3 RFF~;GFF LAW
3 I. I 95 I Convention and the 1 967 Protocol relating to the Status of Refugees
3 2. Executive Committee of the Iligh Commissioner's Programme: Conclusion No 47 (XXXVIII) of
1 987 on Refugee Children
4.1 INTERNATIONAL HUMANITARIAN LAW
4 I. Regulations Respecting the Laws and Customs of War on Land Annexed to the 1 907 Hague Convention IV
4 2. 1949 Genieva Convention III Relative to the Treatment of Prisoners of War
4.3. 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War
4.4. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of lnternational Armed Conflicts (Protocol I)
4 5. Article 3 common to the four Geneva Conventions of 1949
4.6. Protocol Additional to the Geneva Conventions of 12 August 1949. and Relating to the Protection of Victims of Non- International A~ed Conflicts (Protocol II)
5. INTERNATIONAL INSTRUMENTS IN PREPARATION
5.1. Revised 1961 (Hague) Convention on the Protection of Children
5.2. Proposed Optional Protocol to the Convention on the Rights of the Child
6. REGIONAL TREATIES
6.1. 1981 African Charter on Human and Peoples' Rights
6.2. 1990 African Charter on the Rights and Welfare of the Child
~ 1969 American Convention on Human Rights
6.4. 1994 Inter-American Convention on International Traffic iti Mitiors
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6.5. 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms
6.6. 1961 European Social Charter
6.7. 1991 Recommendation No. R(91)1 1 of the Comtnittee of Ministers to Member States of the Council of Europe
7. COMMENTS BY THE COMMITTEE ON THE RIGHTS OF THE CHILD
8. COMMENTARY
PART II: NATIONAL LEGISLATION AND ENFORCEMENT RESPONSES
Introduction
1. NATIONAL LEGISLATIVE AND PROCEDURAL PROVISIONS
1.1. Offences involving children
1.2. Pornography
1.3. Reporting
1.4. Extraterritorial legislation
1.5. Sex tourism legislation
1.6. Trafficking or sale of children
1.7. Procedures and the child witness
1.8. Rights of the accused
2. ENFORCEMENT AND PREVENTION ON TIlE NATIONAL LEVEL
2.1. Central Authority
2.2. Special Child Care Units in the Police Force
2.3. Status, training and resources of police authorities
2.4. Missing children registries
2.5. Customs surveillance
2.6. Telephone help lines
2.7. Interdisciplinary approach to law enforcement
3. PUNISHMENT AND DETERRENCE
4. ENFORCEMENT AND PREVENTION THROUGH INTERNATIONAL COOPERATION
4.1. Inforation sharing via INTERPOL and bilateral contacts
4.2. Mutual assistance treaties
4.3. Extradition
4.4. Police Liaison Officers
4.5. Development aid
5. CONCLUSION
I. INTERPOL STANDING WORKING PARTY ON OFFENCES AGAINST MINORS. RECOMMENDATIONS ON LAW ENFORCEMENT
2. RATIFICATION TABLE FOR SELECTED INTERNATIONAL INSTRUMENTS 1996 WORLD CONGRESS ON COMMERCIAL SEXUAL EXPLOITATION OF CHlLDREN
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THE INTERNATIONAL LEGAL FRAMEWORK
and
CURRENT NATIONAL LEGISLATIVE AND ENFORCEMENT RESPONSES
EXECUTIVE SUMARY
In adoptine a succession of treaties through out the XXth Centuiy the international community has demonstrated long-standing concern about sexual exploitation and cotinected issues such as trafficking and certain aspects of slavery in general or with specific reference to children. These instruments have been drafted (LII) in various contexts - human rghts humanitarian, refugees labour standards etc. - and have also instigated the development of a number of regional treaties tackling the issues involved.
Functionality of this body of interniational law shows that it has concentrated more especially on protection than on exploitation in prostitution as opposed to exploitative use In pornography a field in which clear definitions - and hence a clear basis for consensus and cooperation - are lacking.
ilic degree of a(1heience to these international treaties ranges widelv. Ho~ever, the most si~nificant instuiment for efforts in this sphere - the Convention on the Rights of the Child -has lcllievt (1 ~lnio4 unl\~ersal ratification. Furthennore. 110 State Party has notified a resen~'ition on artIcle 34. tile m~in provision concerned. Implementation ofthis Convention Is facilitated b~ tile ~\ISteI)ce ofthe other instruments v~hich indicate the scope covered aud. III addition. often oj\ e guidance as to the interpretation oftile relevant provisions.
illcse texts ha\~ \ anously generated and been inspired bv measures taken at national le~eI. ~viiether of a IeoI~atI\ C. administrative or other nature. Ill botil ilIdustlialised and developing coLilItries. 1)1 ~o~~tIpation over the growin 0 incidence of sexual exploitation of children and thc lllcreasulgl\ inteniational character of several of its manifestations has triggered a spate ofne~~ le~islatioII during tile Nineties in particular. This paper discusses national measures taken in tile areas of child prostitution. trafficking, pornography. sex tourisni. extratenitorial legislation and problems relating to child witnesses and the rights oftile accused.
w'iilst gaps in legislation still exist, 1a~ enforcement no~v poses the major challen~e. Tilis and the prevention aspect. including forms of punishment and detelTence. are addressed in the paper. as are the goals of international cooperation in this regard.
It is recommended, inter alia, that governments and non-governmental organizations (NCiOs) 115C the Convention on the Rights of the Child as the basis for reviewing and mollitoring legislative provisions and la~v enforcement. The paper also suggests the establishment of an intersectoral task-force and a monitoring system (e.g. Ombudsperson) in e\~ery cow~try as necessary elements of a coherent effort to combat the commercial sexual cxii loitation of children.
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PART I: THE INTERNATIONAL LEGAL FRAMEWORK
Ilitroduction
~ternational concern over phenomena more or less closely associated with sexual exploitation - slavery, forced labour, trafficking, financial gains from tiie prostitution of others, obscene publications, etc. - has been reflected in a relatively large number of treaties drawn up since the beginning of this century, within the framework of the global development of international human ri~ts law.
The following were the main treaties adopted prior to the founding of the United Nations (excluding ~ternational Labour Organisation (WO) Conventions - see 2 below):
1 904 lntefl)ational Agreement for the Suppression of the White Slave Traffic (aine~~ded by Protocol of 3 December 1948)
1 910 International Convention for the Suppression of the White Slave Traffic (amended by Protocol of 3 December 1948)
1919 Convention ofSaint-Gennain-en-Laye (to secure the complete suppression of slavery in all its forms and of the slave trade by land and sea)
1921 International Convention for the Suppression ofthe Traffic in Women and Children (amended by Protocol of 20 October 1947)
1923 Convention for the Suppression ofthe Circulation of and Traffic in Obscene Publications (amended by Protocol of 12 November 1947)
1926 Slavery Convention (amended by Protocol of 23 October 1953)
1933 International Convention for the Suppression of the Traffic in Women of Full Age (amended by Protocol of2O October1947)
Those amended by protocols were taken on board by the United Nations the 1919 convention has lapsed.
The following sections focus more especially on binding texts, but also cover selected components of "soft law" dealing explicitly or implicitly with the subject. These sections are:
(I) United Nations texts that are currently in force or valid, (2) ILO instruments, (3) refugee law (4) humanitarian law. (5) international texts in preparation (6) regional treaties ~~1iicli contain provisions relevant to the protection of children from commercial sexual exploitation, and (7) extracts from comments by the Committee on the Rights of the Child. Section 8 is a short commentary.
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1. UNIT[D NATIONS TREAT[LS IN FORCE
1.1. 1923 Convention for the Suppression of ~he Circulation of, and Traffic in, Obscene Publications (amended by Protocol of 12 November 1947)
~is Convention as amended had beeii ratified by 53 countries as at 3 1 December 1994. ~e ratification rate ill recent years has, however, been extremely lo~: the most recent ratification apart from the succession ofthe Czech Republic and Slovakia in 1 993 dates back to 1983 (Cuba). Glily one other country (Solomon Islands, 1981) ratified during the Figl)ties and only three cowitries ratified during the Seventies (Fiji in 197] Zambia in I 974 and Lesotho in 1975).
Interestingly, two countries that had been States Parties since i 949 subsequently notified denunciation: Denmark in 1967 (no motive recorded) and the Netherlands in 1985 ',4iich motn'ated the decision by sa~ing that the provisions oftlie Dutch Criminal Code had been amended to concen~ only 1)roduction, possession or trade relating to "the portrayal of- or
anv - ivoking persons under the age
medium of info~ation which portrays sexual activitv ii
of 16 (i.e. child po~ography)" or the sending of any po~ographic materials "unsolicited through the mail or to supply. offer or show them to children".
Hie treat, indeed covers all fo~s of poniography. notably making it a punishable offbnce in States Parties "[flor pu~~,oses ofor by way oftrade or for distribution or public exhibitioii to make or produce or have ii) posseSSion obscene ~~1itings, dra~~ings, prints, paintings,
printed matter. pictures. posters. emblems, photographs. cinematograph films or any other obscene objects". Also punishable are export. import. conveyance. advertising and takin2 part in a busmess conceiiied ~~ith any such "obscene matters or thin o~s".
()fi~nders are in principle to be brought to trial in the State Party "in whose tenitories the olfeuce. or ai~v ofthe constituti\e elements oftlie offence. was committed" but, when the
s oftuc counti',' so pe~it. they may alteniatively (not additionally) be prosecuted in the State Party of whi cli they are iiationals "if they are foutid in its tenitofles. even if the con stit utive elements of the off~nce were committed outside such tenitories".
1.2. 1949 Convention for the Suppression of the Traffic in Persons and the [xploitation of the Prostitution of Others
~is Cunvention had been ratified by 70 countries as at 3 1 December 1994. It was desio~ed to consolidate the above-mentioned treaties of 1904, 1910. 192 1 and 1933 ~iich were in force at the time it was adopted and which thereby became obsolete. Essentially. it obliges States Parties to punish any person who. "to grati~' the passions of another, [pirocures. entices or leads away another person for pu~oses of prostitution" or "exploits the
prostitution of an other person", eveii ~vith the latter's consent. Also punishable is the '.unnin~ ofa brothel and rentin~ accommodation for the p~wpose oftlie prostitution of others. Under the treaty. such offences are to be regarded as extraditable or. in States where extradition is not pe~itted, nationals who have retunied to their OWil State after the commission
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abroad ofany such offence are to be prosecuted in and punished by the courts of their own State. The Convention then sets out procedures for combating international traffic in persons (especially women and children) for the purpose of prostitution.
1.3. 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices SimiJar to Slavery
This Convention had been ratified by 114 countries as of 31 December 1994. It was designed to cornplement, not to replace, the 1926 Slavery Convention. For the purposes of this paper, the most pertinent provision of this treaty is Article 1, which obliges States Parties to "take aU practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of', ijifer aha, "[ajny institution or practice whereby a child or young person under the age of 1 8 years, is delivered by either or both of his natural parents or by his guardian to another person. whether for reward or not, with a view to the exploitation of the child or young person or of his labour".
1.4. 1979 Convention on the Elimination of All Forms of I)iscrimination against Women
~is Conveiflion, in force since 1981, had been ratified by 13 I countries as of 30 June 1994. Article 6 directs States Parties to "take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women."
1.5. 1989 Convention on the Rights of the Child
TIlis Convention (CRC) had been ratified by 187 countries as of 15 April 1996. It defines a child as "every human being below the age of eighteen years unless, under the law applicable to tile child, majority is attained earlier". It contains several provisions relevant to the issues under consideration.
Article 19 stipulates that "States Parties shall take aU appropriate legislative, administrative. social and educational measures to protect the child from [...ji maltreatment or exl)loitation, including sexual abuse, while in tile care of parent(s), legal guardian(s) or any other person who has the care of the child".
Under Article 32 "States Parties recogilise the riglit of the child to be protected fiom [...J performing any work that is likely to be hazardous or [...~ to be harmtul to the child's health or physical, mental, spiritual, moral or social development". A minimum age or ages for employment are to be set (cf ILO Convention 138 , under 2.2. below) and States are bound to "~]rovide for appropriate penalties or other sanctions to ensure the effective enforcement ofthe present article."
Article 34 provides that "States Parties undertake to protect the child from all fo~s of sexual exploitation and sexual abuse" and to "take all appropriate national, bilateral and multilateral measures to prevent: (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or any other
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unla~l sexual practices; (c) the exploitative use of children in pornographic performances and materials." It is worth noting that this, the key provision in the Convention relating to commercial sexual exploitation, has not been the subject of a reservation by any of the States Parties.
Similarly, Article 35 obliges States Parties to take "all appropriate national, bilateral and multilateral measures to prevent the abduction of the sale of or traffic in children for any purpose or in any fo~i."
Finally, Article 39 requires States Parties to "take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of.. ally forni of... exploitation... in an environment which fosters the health, self-respect and dignity of the child".
2. ILO INSTRUMENTS
The conclusions of the ~!,iited AYitioiis Iiiieri~a1ioi~a/ Seniij,ar 0,1 die yv~s aud n~ea~s of achi~'iiig die ehtiiiiiahoii of die e.vp/oitatioil of child labour iii all parts of die '4'orld (28 October- 8 November 1985) include the following reference: "the exploitation of child labour takes many forms, and certain types of exploitation. for example child prostitution [...J, are particularly abhorrent". Thus, the interpretation is clearly that child prostitution at least is considered. at the international level. to be a form of exploitative child labour. whilst ILO treaties were not drawn Ul) with the phenomenon of sextial exploitation in mind - 110 more than they were drafted as a means of combating the participation of children in armed conflict - certain ILO standards can nonetheless be deemed of relevance in these regards.
2.1. ILO Conventions 29 (Forced labour, 1930) and 105 (Abolition of Forced Labour, 1957)
11~O Conventions 29 and 105 were explicitly referred to in an amendment proposed by Ni2eria to the chapter on "implementation of existing instruments" ofthe revised French
proposal for an optional protocol on the subject at hand (see [.2. below). whilst they do not seem to be of significant direct value as a legal tool for combating commercial sexual exploitation of children on the threshold of the third millennium. Convention 29 (ratified by 136 countries as at I June 1995) at least lends weight to the thesis that any form offorced or compulsory labour undertaken by children has long been the target ofproliibition. TIus Con~~ention sets out a n~ber of conditions tinder wiuch forced or compulsory labour may be exacted - such as conipulsory mihtary sex\ice. normal civic obligations. as a con sequence of conviction in a court of law. emergency situations, etc. - but in so doing it anvway restricts such labour to "able-bodied males who are of an apparent age of not less than 18 and not more than 45 years..." (Art. 11).
2.2. ILO Convention 138 (Minimum Age, 1973) and Recommendation 146 (Minimum Age, 1973)
ILO Convention 138. currently the flagship treaty on child labour, is reflected. and implicitly referred to, in CRC Article 32 (see 1.5. above). However, it suffers from a relatively poor
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ratification record: just 46 countries as at 1 June 1995. The thrust of the Convention is the regulation of admission to employment in "branches of econornic activity or... undertakings" listed in its Art. 5, para. 3. Not unnaturally, these are all sectors of formal and recognised enterprise, and the treaty deals with neither seli~ernployment or "non-lucrative" work. As a result, it has no direct application in the field of commercial sexual exploitation. It does serve, however, as a lurther indication of the international community"s attitude towards activities that jeopardise the health and development of children. Mso, presuming that applicants for admission to employment take that step of their own free will, the fact that the treaty requires that a 16-year-old be denied access to employment reserved for those over 18 is a flirther demonstration of the irrelevance of consent as a factor in detenmiung exploitation.
The Minimum Age Recommendation of 1973 supplements Convention 138 by giving more precise policy guidelines for optimal implementation of the treaty at national level.
3. REFUGEELAW
3.1. 1951 Convention and the 1967 Protocol Relating to the Status of Refugees
The number of States Parties to one or both instruments was 130 as at 20 October 1995. whilst the instruments contain no special provision on protection from sexual exploitation. Article 24 of the 1951 Convention is potentially relevant to the present paper in that it reaffirms obligations regarding child labour, stating that "[tjhe Contracting States shall accord to refligees lawfiilly staying in their territory the same treatment as is accorded to nationals in respect of (.~.) minimum age of employment (.~.) and the work of young persons..
The United Nations High Commissioner for Refligees (IJNHCR) has a general supervisory fiinction under Art. 35 of the 1951 Convention in addition to its mandate to provide international protection to refligees contained in the Statute of the Office.
3.2. Executive Committee of the High Commissioner's Programme: Conclusion No.
47 (XXXVIII) of 1987 on Refugee Children
Although not, of course, binding law, this Conclusion is of interest in that it specifies UNHCR's concern about sexual exploitation of children, conderrining "the exposure of retugee children to physical violence and other violations of their basic rights, iii cluding through sexual abuse, trade in children [...]" and calling for "national and international action to prevent such violations and assist the victims".
4. INTERNATIONAL HUMANITARIAN LAW
Humanitarian law determines what acts are lawtuI in the course of an armed conflict. The applicable rules depend on whether the conflict is considered international (e.g. an inter-State conflict) or non-international (e.g. a civil war).
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International armed conflicts
4.1. Regulations Respecting the Laws and Customs of War on Land Annexed to the
1907 Hague Convention lv ("The Hague Regulations")
All prisoners of war, including children, "must be humanely treated" (article 2). Rape or sexual abuse of the inhabitants of a territory under occupatiol) is prohibited under Article 46: "Familv honor and riglits [...] must be respected." As affirmed in the judgement of the Iliternational Military Tribunal at Nuremberg, the Hague Regulations represent customary inteniational law and as such are binding on all States whether or not they have adhered to tile Convention itself
4.2. 1949 Geneva Convention III Relative to the Treatment of Prisoners of ~ar ("The 1 949 POW Convention")
The 1949 POW Convention developed protection afforded by the 1929 Geneva Conventioii 011 POWs based on the experiences ofthe Second World War. A POW includes all members of the armed forces, the civilians accompanying those forces, and civilians spontaneously taking up arms to resist an invader. Article 14 ofthe Convention provides that "Prisoners of war are entitled in all circ~stances to respect for their persons and their honour. Women shall be treated with all the regard due to their sex...". Under Article 52, except for volunteers, 110 prisoner of war may be employed in labour which is of an unhealthy or dan o~erous nature. The Convention had been ratified by 1 86 countries as at 24 April 1996.
4.3. 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War
The 1949 Geneva Convention IV w~s the first international agreement addressing exclusively the treatment of ck4lians in armed conflict. although there had been certain provisions to protect civilians included in the Hague Regulations of 1907. It is mainly confined to the protection of civilians in occupied tenitory or in internment and its provisions have been extensively supplemented by Additional Protocol I of 1977. Article 27 of Geneva Convention IV states: "Protected persons are entitled, in all circumstances, to respect for their persons. their honour, their family rights... Women shall be especially protected against any attack on their honour, in particular against rape. enforced prostitution. or anv form ofindecent assault."
Furthermore. under Article 5 1, an Occup~g Power may not compel protected persons to work unless they are over 18 years of age. Children are considered protected persons if thev are civilians in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Nationals of a State not bound by the Convention are not protected persons nor are nationals of a neutral state or co-belligerent State as long as normal diplomatic representation exists in the State in whose hands they are.
The Convention had been ratified by 186 countries as at 24 April 1996, and many ofits provisions represent customary mternational law.
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4.4. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1)
Under article 75, all children who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions of the Protocol shall be treated humanely in all circumstances. Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault are prohibited. Article 77 provides that "[c]hildren shall be the object of special respect and shall be protected against any form of indecent assault."
This Protocol had been ratified by 143 countries as at 24 April 1996 and many of its provisions represent customary international law.
U Non-international armed conflicts
4.5. Article 3 Common to the Four Geneva Conventions of 1949 ("Common Article
3")
fn an internal armed conflict, each party to the conflict is obliged to treat humanely all persons taking no active part in hostilities. Outrages upon their personal dignity, in particular humiliating and degrading treatment are prohibited as are violence to life and person. Tlie tnternational Court of Justice affirmed in the Nicaragua case that Common Article 3 represents customary international law.
4.6. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)
Under the fluidamental guarantees in Article 4, all persons not taking a direct part in hostilities or who have ceased to take part in hostilities are entitled to respect for their person and honour and must be protected from "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault" and "slavery and the slave trade in all their forms". The threshold for applicability of Protocol II is often deemed to be higher than for Common Article 3. TIus Protocol had been ratified by 135 countries as at 24 April 1996.
Enforcement
In i~~ternatioizal armed conflicts rape and sexual abuse of protected persons as far as they mvoive "wiIfiiIly causing great suffering or serious injury to body or health" constitute grave breaches of the 1949 Geneva Conventions. States Parties are obliged to prosecute, 01. extradite for prosecution, anyone suspected of committing grave breaches. In relation to all other breaches of the Conventions and Protocols including in ii~ier~iai armed conflicts, governments are obliged to "take measures necessary for the suppression" of these breaches.
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5. INTERNATIONAL INSTRUMENTS IN PREPARATION
5.1. Revised 1961 (Hague) Convention on the Protection of Children
The second reading of the draft revised text of this private international law treaty was effected in September 1995. The final revision should be ready for approval at the Diplomatic Conference scheduled for October 1996. This instrument will deal with the attribution ofjurisdiction, the detennination of applicable law, and the establishment of a system of international cooperation to provide protection for children who are not in their country of habitual resid~ce". In particular, and in somewhat simplified form, it will mean that a child in need of protective measures while outside that country - such as in the case of a child taken abroad for the purposes of commercial sexual exploitation - may benefit from appropriate measures at the initiative of the authorities of the country where he or she is present whether or not the authorities of the country of habitual residence request this and whether or not he or she is a national of either country concerned.
5.2. Proposed Optional Protocol to the Convention on the Rights of the Child
By its resolution of 8 March 1995, the Commission on Human Rights decided that "the open-ended inter-sessional working group of the Commission ~...] for the elaboration of guidelines on a possible optional protocol on the sale of children, child prostitution and child po~ography, shall elaborate [...J a draft optional protocol" on these issues. Proposed drafts already exist, but it is currently difficult to estimate the likely timescale for the formulation and approval of a final text. The protocol will almost certainly deal only with national obligations ~ithin the framework of inteniational cooperation to implement relevant rights in the Convention it will not comprise substantive standard-setting.
6. REGIONAL TREATIES
6.1. 1981 African Charter on iluman and Peoples' Rights
The treaty entered into force in 1986, and as of 1 January 1996, had been ratified by 50 States. Aiiicle 5 prohibitS "all forms of exploitation and degradation", including in particular slavery and the slave trade.
In addition, Article 18.2 obliges States Parties to ensure the elimination of every discrimination against women and... the protection of the rights of the woman and the child as stipulated in international declarations and conventions." The implication here is that States that are also parties to the Convention on the Rights of the Child would be obliged to implement the provisions of CRC Article 34 as part of their obligations under the Charter.
6.2. 1990 African Charter on the Rights and Welfare of the Child
The Charter, having been ratified to date by only six Member States of the OAU, has not yet entered into force (15 ratifications are required for this). It contains provisions on exploitation of child labour, sex'ual exploitation and sale and traflicking. They are essentially similar in effect to their counteiparts in the CRC, but contain a number of additional facets.
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The Charter's Article XV (Child labour) specifies that the provision 11covers both the formal and informal sectors of employment" and makes explicit rather than implicit reference to "the International Labour orga:nisation's instruments relating to children" as a consideration in establisliing "rninimum ages for admission to every employment" (our italics).
Article XXVII of the Charter, in addition to requiring States Parties to "protect the child from all forms of sexual exploitation and sexual abuse", obliges them to "take measures to prevent: (a) the inducement, coercion or encouragement of a child to engage in any sexual activity; (b) the use of children in prostitution or other sexual practices; (c) the use of children in pornographic activities, performances and materials". In comparison with the counterpart provision in the Convention on the Rights of the Child, therefore, the Charter adds "encouragement" under sub-paragraph (a), removes the qualification of "unlawfiil" sexual activv:y or practices in sub-paragraphs (a) and (b), adds pornographic "activities" in sub-paragraph (c), and removes the word "exploitative" before "use" in sub-paragraphs (b) and (c), presurning that any "use" of the child wiU iii itself be exploitative. In principle, therefore, and subject to interpretation, the Charter provides for protection from a somewhat wider range of acts than does the Convention.
Finally, Article XXIX specifies that States are to combat sale and trafficking "by any person including parents or legal guardians of the child".
6.3. 1969 American Convention on Human Rights
~iis Convention entered into force in 1978, and as at ] January 1996 had been ratified by 25 States. Article 5 stipulates that "[e]very person has the right to have his physical, mental arid moral integrity respected." Article 6 specifies that "[n]o one shall be subject to slavery or to involuntary servitude, which are prohibited in all their forms, as are the slave trade arid traffic in women." The Convention flirther provides (Article 19) that "every minor child has the right to the measures of protection required by his condition as a minor, on the part of his family, society and the state."
In the 1988 Protocol to this Convention (not in force by January 1996), all work which "jeopardizes health, safety or morals" is prohibited for persons under 18 years of age.
6.4. 1994 inter-American Convention on International Traffic in Minors
This treaty was adopted at the Fifth Inter-American Specialised Conference on Private International Law convened by the Organization of American States (OAS). It is desi~ed to regulate civil and penal aspects ofthe international traffic in minors tlirough international cooperation. It covers "any human being below the age of eighteen" who is the victim of "abduction, removal or retention, or attempted abduction, removal or retention [...J for unlawftil purposes or by unlawfiil means". The term "unlawfiil purposes" is then defined to include "prostitution, sexual exploitation, servitude...". It is as yet too early to foresee the impact of this treaty whose ratification will necessarily be limited to OAS members.
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6.5. 1950 European Convention for the Protection of Human Rights and Eundamental Freedoms
This Convention was the first regional agreement on human rights to be adopted after the Universal Declaration of Human Rights, and has been in force since 1953. It had been ratified by 3 1 countries as at 1 January 1996. Its main relevant provision is Article 4 which declares that "[nb-one shall be held in slave~' or servitude" and "no-one shall be required to perform forced or compulsory labour".
6.6. 1961 European Social Charter
The Charter, covering the development and protection of social and economic rights is a
complementary instrument to the European Convention on Human Rights. It came into
force in 1965, and had been ratified by 20 countries as at 24 April 1996.
States Parties to the Charter accept as the aim oftheir policies the attainment of conditions in which certain rights and principles may be effectively realised. These include (Part I, 7):
"Children and young persons have the right to special protection against the physical and moral hazards to which they are exposed." States flirther undertake to be bound by certain obligations, including (Part II. Art. 7[l0J): "To ensure special protection against physical and moral dan~ers to which children and young persons are exposed, and particularly against those resulting... from their work."
6.7. 1991 Recommendation No. R(91)11 of the Committee of Ministers to Member States of the Council of Europe
This Recommendation. made under Article 15(b) ofthe Statute of the Council of Europe. is ~vo'ih highlighting because it emanates from an organ oftl]e Council which specifically addresses "Sexual Exploitation. Pornography and Prostitution O{ and Trafficking in. Children and Young Adults". It urges Member States to review legislation and practice with a view to implementing a comprehensive programme of measures to combat the sexual exploitation of children.
7. COMMENTS BN' THE COMMITTEE ON THE RIGHTS OF THE CHILD
As its contribution to the Open-ended Working Group of the 52nd Session of the
Commission on Htiinaii Rights concerning the question of the drafting of an Optional
Protocol to the Convention on the Rights of the Child (cf 5.2. above), the Committee on
the Rights ofthe Child submitted a paper from which the following elements are extracted:
"[Tihe importance of [the issues of child prostitution and child pornography and the sale of children for these purposesj as well as the need to draw urgent attention and encourage concerted action to prevent and combat them, are illustrated by the attention paid to them in the course of the dialogue held with States parties on the implementation of the Convention, as well as the decision ofthe Commirtee to devote, in 1993, its second thematic debate to the topic 'economic exploitation of children'.
11
"But it is important to stress that the Convention has not only identified such situations in an autonomous manner, it has flirther set up a holistic approach for the consideration of the human rights of children. In the light of such an approach, all rights are recognised as inherent to the human dignity of the child, and the implementation of one right will only be effective when taking into consideration the implementation of; and respect for, all the other rights ofthe child. In a word, the Convention reaftmms tile indivisibility and interdependence of human rights.
"The protection of the child from all forms of exploitation, including from sale, prostitution or pornography should therefore not be seen simply in isolation but in the broader context of the realisation of children's rights and taking in due consideration the international obligations arising from the Convention.
"These [obligations] show the decisive importance attached by the Convention, as a human rights instrument, to the national process of implementation of children's rights. It turther stresses the special responsibility of States in this regard. These realities were in fact also emphasised by the final document ofthe World Conference on Human Rights, which called on States to integrate the Convention on the Rights of the Child into their national action plans.
"[T]he reporting system established by the Convention is an essential tool for States parties to ensure a periodic assessment and evaluation of progress achieved in its implementation. It further allows for the improvement of the situation of children and the prevention of violation of their flindamental rights. At the same time, tile dialogue held between States and the Committee on the Rights of the Child plays an important catalytic role in this regard, allowing for the formulation of specific suggestions and recommendations to States parties, identif~ing priority areas for action and encouraging programmes of technical assistance or advice in cooperation ~vith United Nations and other competent bodies.
"[T]hrough the activities of the Sub-Commission on Prevention of Discrimination and Protection of Minorities and of its Working Group on Contemporary Forms of Slavery important and comprehensive strategies have been envisaged to ensure the implementation of the different existing legal instruments and to give guidance in relation to specific areas where action should be undertaken, such as legal reform, information, education, social assistance, reintegration and international cooperation. Special reference should be made in this regard to the two progran~es of action adopted by the Commission on Human Rights for the Prevention of tile Sale of Children, Child Prostitution and Child Pornography and for the Elimination of Child Labour. Presently under preparation is a new Prograinme of Action on the Prevention of Traflic in Persons and the Exploitation of the Prostitution of Others.
'~e progress achieved in the implementation of these programmes of action is periodically evaluated both by the Sub-C ommission on Prevention of Discrimination and Protection of Minorities and the Commission on Human Rights. The Commission flirther considers the important actMties oftilematic Rapporteurs, as the Special Rapporteur on Violence against Women or the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography who has adopted important recoinmendations on ways to address the areas covered by her mandate.
"It is also interesting to note that the issues of saJe and traflicking in children, child prostitution and child pornography deserve a special attention within the United Nations system-wide action. Mention could be made in this regard to ILO [...] or to the activities developed by UNlCEF i'i the framework of the implementation of the Declaration and Plan of Action adopted by the World Summit for Children.
"At tile same time, in the area of crime prevention and criminal justice, important steps Ii ave also been taken. Iii fact, the Ninth Congress on Crime Prevention and Criminal Justice, held last year [1995] in Cairo, called on States to adopt necessary measures aiming at the prevention, protection and rehabilitation of children victims of any form of violence, including sexual violence and sexual exploitation. It further invited the Commission on Crime Prevention and Criminal Justice to consider drafting an international convention on the illicit traffic in children which may embody the necessary elements to effectively combat this form oftransnational organised crime.
"The Commission soon ensured a follow-up to this invitation and at its fourth session requested the Secretary-General to initiate the process of requesting views of Member States on the elaboration of such an inteniational convention [...]. An important standardsetting activity is therefore already wider way within the United Nations system in this area.
"It is lilteresting to note that the Commission further decided to request the Secretar'~'General to organise a meeting of an expert group on the prevention of the sexual exploitation of children for commercial purposes within the context of international travel (sex touflsm)."
8. CO.~IMENTAR~
review oftlie main international instruments covering commercial sexual exploitation of children reveals that, whilst State obligations to combat the phenomenon are relativelv clear. it may be useftil to make a certain nuinber of comments and clarifications.
a) Article 34 ofthe Convention on the Rights ofthe Child, the provision central to the present discussion, firstly provides for protection from '1unla~l" sexual activity; in so doing, it deliberately leaves each State to enact legislation determining what kinds of activity are to be outlawed and, where appropriate. until what age. The absence of the word "exploitation" in sub-paragraph (a) ofthis article reflects the fact that the focus in this case is more especially "abuse", and in this context the age of con sent is clearly of major sigiuficance. It would mean that, in a country where age of consent is 1 6 years. a girl of 1 7 wiio is induced (though presumably not "coerced", to the extent that this invokes obtaining consent by force or manipulation) into sexual intercourse ~~ll not be the subject of protection under this article, wbereas a girl of 1 5 will be. In other words, this provision derogates, by implication, from the overall definition of a "child" for the purposes of this Convention. Sub-paragraphs (b) and (c), on the other hand, are dealing explicitly with "exploitative use". If we recall the 1949 Convention which provides for protection against expIoiiatio~z through prostitution regardless of whether or P~ot coiiseiit has heei~ give1~, and the 1956 Supplementai~' Convention which sets a flat age of 18 years, it seems clear that in the cases of these
13
two sub-paragraphs, the general definition of the child hoJds and the question of consent is ofno relevance in determining whether or not exploitation has taken place and whether or not the child concerned is covered by these provisions.
b) International law provides no definition of the term "pornography" (the same applies to "prostitution" but the meaning of this term is more generally accepted and is more amenable to the application of objective and factuaJ criteria and verification).
c) Pornography has not received the level of attention that international legislators have
accorded to protection from prostitution. The amended 1923 Convention covers all
obscene or pornographic materials but has been virtually dormant for the past two
decades at least. Current national legislation, practice and attitudes towards adult
pornography in rnany countries mean that it is unlikely to receive significant additional
support in the foreseeable future. It is in fact surprising that more countries have not
followed the example of the Netherlands and denounced it. The explanation perhaps
lies in the defacto lack of reference that is made to obligations under the treaty and/or
the development of a more restrictive view of what constitutes "obscenity" and could
therefore be deemed to be covered by the treaty. Thus, the international legal
framework provides only a crude basis for taking initiatives to combat the distribution
of child pornography, whether in the form ofpublications or via new technology.
14
PART II: NATIONAL LEGISLATIVE AND ENFORCEMENT
RESPONSES
Introduction
The i'ite~ational norms which emerge from the Conventions and other intemational instmments described in Part I of this paper establish the obligations under international law on States parties in relation to the protection of children from commercial sexual ex~loitation. These obligations then have to be translated into national legislation and into the enforcement mechanisms in each country. Article 34 of the Convention on the Ri~ts of the Child (~the CRC~) for example as has been pointed out in Part I provides for protection from "unlawial" sexual activity leaving it to each State to enact legislation determining what kinds of activity are to be outlawed.
Part II of this paper examines specific national legislative and procedural provisions bv wiuch some countries have sought to protect children. Such provisions do not exist in a vacuum, but depend for their efficacy on the capacity and will of the executive and of the law euforcement persounel in each jurisdiction to implement them. This Part will therefore ~lso point to problems of enforcement and some solutions. Finally, commercial sexual e\1)loitation of children is part of a complex web of factors. A major part takes place on the national scene. Increasingly it is flourishing in the context of tourism and trans-border activities. It calls for multidisciplinary solutions and cooperation between agencies at the national and international levels. The nature and effectiveness of such cooperation is. therefore, an important issue of concern and discussion in this paper and for follow-up on the national level ofthe work at the World Congress.
1. NATIONAL L[GISLATIV[ ANI) PROC~I)U}RAL PROVISIONS
Domestic legislation protective of children may be found ii) a wide vali&ty of instniments, such as provisions for health care, social welfare. housing. obscenity laws, guardianship and ctistodv. The CRC now provides, for the first time, a comprehensive set of international legal norms for the protection and well-being of children. Ratif,4ng States may have to initiate new legislation or revise existing legislation to achieve these norms and comply with their oblio~ations. It would appear that the Convention has encouraged States to examine their protective provisions in a more compr.hensnie manner than before, but their responses towards enforcemeiit of its provisions will inevitably depend on the maturity of their existing domestic provisions vis-a-vis child care, their own stage of economic development, and the cultural and econoinic criteria wiuch inform their approach to the care of the nation's children.
1.1. Offences Involving Children
In the Philippines, Republic Act 7610, which came into force in 1992, specifically addresses the "Special Protection of Children against Claild Abuse, Exploitation and Discrimination" including Child Prostitution a'id other Sexual Abuse (Art.III), Child Trafficking (Art.IV) and Obscene Publications and Indecent Shows (Art.V) The Act also requires the fo~ulation,
15
by the Departments of Justice and of Social Welfare and Development, of a comprehensive programme to protect children against commercial sexual exploitation. Regulations under the Act provide for the reporting and investigation of child abuse cases, and for measures to prevent the trafficking of children. What is highly significant about this legislation is that it was originaHy prepared by a non-gover'nmental group consisting of child protection experts and activists. Through their grass-roots experience, they were able to address the specific problems of Filipino children in the overall context of the governinelit's obligations under the CRC. The Philippine goveflirnent, having requested non-governmental assistance, and having enacted the legislation, achieved as a result concrete legislative provisions and a national policy for the protection of children against commercial sexual exploitation.
~ die other hand, Brazil's Law No.8069 of 13 July 1990 entitled "Statute oftl)e Child and Adolescent", which is intended to provide for the "flill protection of the child and adolescent", has no specific provisions for addressing the commercial sexual exploitation of children. Rather the Act is like a Charter for children, outlinrng fluidamental rights and duties, with policies for enforcement and guidelines for their implementation. It is a matter for the individual State gover'nnents to translate the charter into regulations at local State level.
In Sri Lanka, ratification of the CRC engendered the formulation of a policy document hi 1992 on the rights of children, intended to lead to comprehensive legislation protective of children. A Technical Committee, appointed to consider legislation directed at child abuse, identified certain areas for reform. However, rather than suggesting a separate Act dealing with sexual offences against children, the Committee recommended amendments to the existing Penal Code and to the Code of Criminal Procedure. Thus, the age of consent was raised from 12 to 16 years, new' offences of sexual exploitation of children and oftrafiickiil2 as well as new offences relating to tile use of children in pornography were created. Significantly, here again, the Technical Committee had iii cluded non-goveill mental representatives who had been actively engaged hi combatting the sexual exploitation of children in Sri Lainka. Through the amendments to the Penal Code, their concerns Ii ave been legislatively addressed in a pragmatic and comprehensive manner.
In Thailand, the approach to protective legislation has also involved amendments to the Penal Code. There has been a firm governmental commitment since 1993 to elilninate child sexual exploitation. Amendments to the Code at that time provided serious penalties for those who engaged ill the sexual abuse of children and updated the laws on pornography. New amendments this year (1996) ~vil1 mean that while pro stitution per se will 110 longer be a crime in Thailand, soliciting and publicising for the pu~~oses of prostitution will be punishable. Engaging in prostitution with a person under the age of I 8 will be punishable if the act takes place "in a place of prostitution". However, if the act takes place elsewhere. the age of consent is 15. Boy children continue to lack adequate protection in that rape and unlawful sexual intercourse camiot be committed against male children, by virtue of a judicial interpretation of the provisions of the Code.
16
1.2. Pornography
The relevance of pornography to the protection of children against commercial sexual exploitaton is not always recognised in legislation despite the specific injunction of Act.34(c)
of the CRC that States must take measures to prevent the exploitative use of children in pornographic performances and materials. New technologies being used for the production and transmission of pornography have been so rapid in development, and sometimes so difficult to penetrate, that the law has not been able to keep up with them. The experience of police officers in this area has led the Standing Working Party on Offences Against Minors of INTERPOL (~the SWP') to recommend (1995/96) that member countries enact legislation which would make it an offence to produce distribute or possess child pornography in its present and potential future forms. lii January 1995 the Netherlands government passed legislation, amending the Penal Code (Ai~.240b), and making it an offence to distribute, make, import or possess pornographic material depicting children manifestly under the age of 16; transfer or possession of such material on a data canier is included in the offence. In July 1994 the Austrian parliament passed an amendment (section 207a) to the Penal Code to outlaw the trade in child pornography and sanction even the possession of such material. Possession of child pornography is also an offence in Canada, in Germany and Ill the United States. In 1 994 the US Penal Code was amended to allow federal authorities to prosecute persons involved in the production overseas of child pornogi~aphy, ifthat pornography is intended for importation into the United States. In many countries, however, the penalties for offences relating to child pornography are not severe and do not reflect the fact that such pornography is a manifestation of the sexual exploitation of a minor.
1.3. Reporting
An issue for national legislatures concerned with ~ild sexual abuse, ~~ether commercial or othei~se. is that of reporting. The Philippine Regulations wider Republic Act 76 10 encourage the reporting of cases of sexual abuse and impose mandatory reporting
provisions on hospitals, doctors nurses, teachers and law enforcement officials. In some countries there is a reluctance to impose mandatory reportmg duties; experience in the United States showed that a high percentage of cases reported on foot of an imposed duty were unfounded. The SWP, however, has urged the implementation of legislation which would require individuals and specifically professionals and others having the care, custody or control of children to report suspected abuse to the relevant investigative authorities
1.4. Extraterritorial Legislation
While domestic legislation on child commercial sexual exploitation is normally directed to the protection ofthe State's own cl'iidren against abuse by nationals, this type of abuse has international aspects. Sexual exploitation resulting from tourism and forei~ visitors, trafficking of young people across borders to supply brothels in other countries, abductions from one country to another, abuses of intercountry adoption, and even the transfer of pornography via computer networks or simply across borders are all issues which involve other jurisdictions. Responses within national legislatures are varied, depending on how the specific problems affect each jurisdiction. Several countries from which large numbers of
17
tourists are believed to travel to exploit children abroad have responded by introducing legislation to give their domestic courts extraterritorial jurisdiction in respect of offences committed against children abroad. In New Zealand, the Crimes Amendment Act which came into force in Aprll 1995 makes it an offence for a New Zealand citizen or permanent resident to engage in conduct outside of New Zealand with a child under the age of 16 if such conduct would be an offence in New Zealand. Australia's Crimes (Child Sex Tourism) Amendment Act of 1994 specifies (in section SOBA) that "a person must not, while outside Australia, engage in sexual intercourse with a person who is under 16". In March 1996 an Australian was convicted under the new legislation of offences committed against children in the Philippines. Extraterritorialjurisdiction for offences committed against children abroad became law in Belgium (April 1995), in France (Febmary 1994) and in Germany (September 1993), all by amendments to each country's Penal Code. The Australian Act and the French and German amendments enable prosecutions to be taken against nationals of those countries even if the crime alleged is not a crime in the jurisdiction in which it was committed; thus, there is no double criminality requirement - the national legislative provisions will protect foreign children.
The Penal Codes in the Scandinavian countries akeady enabled citizens of those countries to be prosecuted at home for crimes committed abroad without speci~ng the crimes ii] detail. Under such provisions, three men were convicted in August 1990 in Norway for sexual abuse of boys in the Philippines and in Thailand, and a Swedish national was convicted hi Stockholm in June 1995 for offences committed in Thailand.
The Penal Code in Japan has extraterritorial effect in relation to certain crimes including sexual crimes with violence against children under the age of 13 or persons unable to resist such an attack.
I 5. Sex lourisni Legislation
Tourism for the purposes of sex with minors has been dealt with by legislative changes in several countries. In the United States, the 1994 Violent Crime Control and Law Enforcement Act crirninalises domestic or foreign travel with intent to engage in sexual acts with a juvenile. The 1994 Australian legislation creates the offence of benefitting from or encouraging such travel; the 1995 New Zealand legislation makes similar provisions.
A different approach is offered in the United Kingdom where a Sexual Offences (Conspiracy and Incitement) Bill was refen~ed in February 1996 by Parliament to a St an ding Committee for consideration. The proposed legislation would make it an offence to conspire with or to incite a person to commit certain sexual offences abroad.
1.6. Trafficking or Sale of Children
The issue of child trafficking has been addressed in the Philippines in Republic Act 76 10 (Art. IV) by provisions which control foreign travel by children and the adoption of children in return for a consideration, as well as any acts of trading and dealing with children for money. In Thailand, proposed amendments to the Penal Code will penalise guardians who sell children in their care. Selling, buying, transporting ofpersons under the age of 18 years
18
for the purposes of unlawfiil sexual gratification will be criminalised by an update to an Act of 1928 (the Trafficking of Women and Girls Act), even if the young person has consented. A feature of the new provisions is that the trafficked person is recognised as a victim and not as an offender. In Sri Lanka, recent amendments to the Penal Code create the offence of "trafficking" in section 360c in terms very similar to those of the Philippine legislation.
In the industrialised countries, the issue of trafficking is addressed ofien in the context of Immigration. Intercountry adoptions, intercountry marriages, entry of foreign workers, all may involve trafficking. The Council of Europe has suggested' that the activities of artistic, marriage and adoption agencies be supervised, that travel abroad by children be the subject ofsurveillance by iminigration authorities and that young victims of trafficking be assisted and protected. In recent changes to Belgium's Penal Code (April 1995), the traffic in human beings was criminalised. The European Union has responded to the problem of trafficking by expanding the mandate of its Drug Unit (March 1995) to enable that unit to monitor traffic in human beings. The SWP has made several relevant recommendations designed to protect children from being trafficked. These include a recommendation that member countries impose greater supervision and control on intercountry adoptions, and that a data base be established with records of persons and organisations who have been found to be involved in the traffic of children. Reflecting the Council of Europe Recommendation, the SWP also recommends increased surveillance by immigration authorities and assistance to the victims ofiraflicking.
1.7. Procedures and the Child Witness
It is generally accepted that there is considerable difficulty in prosecuting cases with an lilt ern ati on al dimension. Differences in language, legal systems, procedural requirements, and the expense ofbringing witilesses from abroad are some ofthe problems. In the context of legislating to protect children against sexual exploitation by nationals abroad. these difficulties have been relied upon by the British government in refusing to accept a Bill which would give UK courts extraterritorial jurisdiction for offences committed against children abroad. ~ the other hand, certain governments have adopted creative responses to the difficulties. such as the Australian government. The Australian courts are empowered under the Crimes (Child Sex Tourism) Amendment Act 1994 to take evidence by video link. and can even administer oaths and affirmations by video link.
l~ocedural difficulties are endemic in any case involving sexual exploitation of a child, and not only those with an international dimension. The Children in Trouble; Expert Group Meeting2 in November 1994 in Vienna addressed some of the issues, and particular]', in Paii V of its report, dealing with the Exploitation of Children, urged that sanctions for sexual exploitation of children be applied against the adults rather than the child victims, and thai ~exually exploited children be given access to the mechanisms ofjustice, such as legal aid. safe housing and support services. In Canada, reforms in the criminal law have recognised that children can be just as credible and reliable witnesses as adults; the special needs of child victim~wi~esses have also been accommodated in the criminal justice system. Delays
Recon~endation R(9~ )1 1 of the Committee of Ministers
Under the auspices of tile UN Crime Prevention and Criniinaj Justice BrancJi
19
in getting a case to trial, the lack of family or institutional support, the age of the child and his or her lack of education rnay all conspire to undermine the quality of a child's evidence. The provision of a guardian ad litem for a child witness could ease the burden on the child and protect his or her interests. In the Philippines, under the Rules and Regulations on the Reporting and Investigation of Child Abuse cases, a guardian ad i/tern must be appointed by the court as soon as a complaint of child abuse has been filed.
Some interesting changes are envisaged in the Thai Criminal Procedure Code which would ease the burden on the child of giving evidence. The proposed changes include the videotaping of a child's statement to police officers and the use of that video as evidence in court. Cross-examination of the child on the contents of the video will oniy be allowed through a psychiatrist. Provision is also proposed for pre-trial depositions by victims who may be vulnerable to de~ys in the proceedings, such as street children. Oiice the deposition has been taken, and the alleged offender has had an opportunity to confront the witness. the deposition can be used in court. The problems of undue influence on the child and of detaining the child until the trial may thus be avoided.
The Evidence Act in New Zealand was amended in 1989 to provide some flexibility to judges in the taking of evidence in child sex abuse cases. The judge can take the advice of relevant qualified persons as to the effect on the child of giving evidence, and can direct the admission of video-tape evidence, or the giving of evidence by closed-circuit television. Other jurisdictions have similar provisions; it appears to be generally accepted that child witnesses need to be protected from the trauma of court proceedings and of confronting their abuser. Where the abused child is a street child or a trafficked child, the proof of his or her age can be a problem. The Australian Crimes (Child Sex Tourism) Act 1994 makes provision for alternative methods of proving the age of a person under the age of 16, such as by appearance or from medical opinion.
1.8. Rights of the Accused
There are difficulties in reconciling the rights of the accused witi] the rights of the child to protection. 'Ii relation to bail, for example, it has been seen that child exploiters arrested in a foreign jurisdiction are very likely tojump bail; yet to refuse them bail would be to inflinge their basic right to be presumed innocent until proved guilty. Either the offence has to be categorised as serious enough to automatically deprive the accused of bail, or the prosecution has to oppose bail on the grounds that the accused is foreign and therefore very likely to leave thejurisdiction. In relation to proof of an offence, and given the difficulty of actually finding a criminal in the very act of abusing a child, there appears to be merit in shifting the burden ofproof when the protection of a child is at issue, and in so framing the laws that the onus is on the accused tojustif~ his being in the company of a child who is not a relative. Thus in the Philippines, under the provisions of Republic Act 7610, merely to be found alone with a child who is not a relative inside a hotel or vehicle or other place constitutes an attempt to commit prostitution, and an offence under Article III, section 6. Under section 5(a), the mere verbal offer of a child for the purposes of prostitution constitutes the offence of sexual abuse.
20
2. ENFORCEMENT AND PREVENTION ON TilE NATIONAL LEVEL
Legislation and procedural measures are not enough in themselves to protect children from commercial sexual exploitation. The laws must be enforced. The principal agencies for their enforcement will be the police and immigration officials, and the prosecution and judicial authorities. How effectively these authorities flinction will depend not ouly on the resources made available to them, but also on the extent to which the society in which they carry out their duties regards the protection of ch~dren as important. ~y is it, for example, that many child exploiters will travel to another co~try and feel themselves immune from
prosecution for acts which they would be afraid to commit in their o~vri jurisdictions? ~y is it that in some societies there is a high level of tolerance of adults securing sexual gratification from children? Why is it that in some countries the police seem not even to luiow. that there are laws against sexual exploitation of cluIdren. or do not know ~~at those laws say? In some countries, children are available to be exploited by forei~ers because they are already abused on a massive scale by their o~ nationals. If society does not place a high value on the iiation's children and demand that the law is enforced in their interests then public officials will not be effective.
There f~)llow a number of suggestions arising from the experiences in various countries of enforcing the law to protect childreii from sexual exploitation wiuch point to ways in ~ich enforcement could be improved.
2.1. Central Authoritv
In the Pl)ilil)l)ines there is an inter-agency Task Force against Child Abuse under the i)ep ailment of Justice with re51)onsibility for the prosecution of child abuse cases. As a result. there have been a number of successfiil prosecutions. and this has in tuTu increased
public confidence in the office and has increased tile level of reporting. In Thailand, a Child Rigl~ts Piotection [)i~ision has been established within the office of the Attorney General to monitor child sexual abuse cases.
2.2. ~pecial Child Care ~nits in the Police Force
In the United Kingdom, a special Paedophile Unit at New Scotland Yard tracks do~~ii offbnders agailist children. It has a mandate to be proactive for the protection of children. and therefore has a considerable amount of flexibility in finding ways to prevent abuse. rather than only reacting to actual con)plaints. UnfoliLmately it is the only unit for the entire coLlntI~.
In this context it can be noted that the Beijing Rules3 recommeud specialisation within national police forces of police officers who frequently or exclusively deal with juveniles, and that the Economic and Social Comicil requested the Secretai~ General of the United Nations (Res. 1989/66) in May 1989 to "ensure effective programme interhnkages within the United Nations system between juvenile justice, within the framework of the Beijing Rules,
UN Standard Min~um RLIIeS for the Adni~istration of Juvenile JtLstice. General Assembly Resoltition 40/33 of '9 November 1985.
21
and situations of 'social risk', especially child abuse, child sale and trafficking, child prostitution and street children."
2.3. Status, Training and Resources of Police Authorities
In many co~tries the laws ca~ot be effectively enforced because the police forces are corrupt. The reasons for this may be partly to do with a society which places a low value on respect for the law, but they are also to do witb poor pay, poor working conditions and
promotional structures which are not based on merit or ability. In Sri Lanka, the emphasis by the government on economic development through tourism is said to have made the
police reluctant to implement the laws against child abusers in case this would have a negative iflipact on the country's economy and thus weaken their chances of promotion. In the Philippines, child abusers have "escaped" from police custody in circumstances which indicate that bribery of police officials had occurred. There are many such reports about many countries. Sexual offences against children must be treated as serious crimes, and police officers must be recogtiised and rewarded for detection of such crimes in the same manner as they would be for the detection of any other serious crimes.
Adequate training of police and prosecuting officers is essential for the handlin~ of child sexual abuse cases. Some industrialised countries such as the United Kingdom, Sweden, Australia and New Zealand have given overseas aid to developing countries in the forni of training for police officers.
~inally. the police must be adequately resourced in ternis of manpower. equipment and back-up sei~ices to enable them to do their job properly. They will not be encouraged to rescue children from brothels ifthey have nowhere to bring them or 110 means to return them to their families; they cannot track down exploiters unless they have adequate means of tran sport and communication.
2.4. ~Iissing Children Registries
Missing children may not always be identified as the possible victims of sexual exploitation. The role of the police forces has been to find such children and restore them to their families. However, it is now being recogiused that such children may have been running away from abuse or exploitation, and that they should not be returned without some investigation of the reasons for their disappearance. The SWP has recommended the establishmetit of speciahsed c~tres in every country where such children may be de-briefed and cared for before the question of return to their families is settled. The SWP has also recommended that children missing for more than 6 months should be made the subject of international Missing Persons Notices at INTERPOL headquarters.
2.5. Customs Surveillance
The valuable role wlijch the Customs Se~ces can provide in detecting and preventing child exploitation is gaining reco~ition. In cases in which the customs services have worked ~ith the police in follovving Ul) on a seizure of illegally imported pornographic material, important tinds have been made, even leading to the cracking of whole paedophile networks. In New
22
Zealand, a Customs Child Pornography Project was established in 1992. The work of the Project involves the interception of child pornography or other child exploiter-related intelligence in the process of nornial customs' surveillance, and then foliowng up on those interceptions in cooperation with the police. The US Customs Service has a Child Pornography and Protection Unit which has been operating effectively for many years. The Paedophile Unit in the UK police force works in close coperation with the customs authorities.
2.6. Telephone Help Lines
Telephone Help Lines for children are increasingly recognised as a valuable way in which children can seek help against sexual abuse and exploitation. The SWP has recommended that all member countries institute such Help Lines.
2.7. Interdisciplinary Approach to Law Enforcement
It is not wiusual for several government agencies to become involved with an exploited or abused child. Police. social welfare, education and health authorities may all have a re9)onsibility, and liaison between diem would occur. k Britain, liaison between such bodies is mandator,'. w'iat is not the no~, however, is cooperation between official bodies and NGOs. Thailand is experimenting with such cooperation through its Child Rights Division in the Atto~ey General's office, which has developed a network that includes nongovernmental representat~es. In Canada, provincial/territorial governments, police and nongovernmental organisatiolis have been working on improving the sharing of info~ation between the authorities and NGOs in relation to child sexual abuse. (This was particularly aimed at enabling NGOs. and other employers who hire people to care for children, to screen out kii own sex offenders.)
Experience has sho~ii that state authorities have neither the resources nor the time to monitor situations in ~ich there may be sex'ual exploitation of children. ~ile they should in no way replace the national law enforcement authorities. child-care NGOs are uniquely capable not only of caring for abused children, but also of detecting abuse and of gathering evidence on ~ich an offence may be successfiilly prosecuted. Several successflil
prosecutions iii the Philippines and in Thailand have been based on evidence gathered or detected by NGOs. Unfoitwiately. in most cases, the financial resources of NGOs caring for sexually abused and exploited children are woeflilly inadequate.
The UN Expert Group Meeting developed a series of recommendations to combat the use of children for criminal activities and the exploitation of children which went beyond law enforcement. Among these recommendations are suggestions for engaging the mass media in awareness-raising activities, the development of educational programnies and multidisciplinary training programmes, the development of "community watch" programmes, and the engagement of the tourist industry and the business sector in protecting the rights of children. In Australia and New Zealand, the tourist industry has participated in the distribution of information leaflets which warn travellers that sexual exploitation of children abroad is a serious offence.
23
3. PUNISHMENT AND DETERRENCE
The penalties for child sexual abuse and exploitation are quite severe in most countries. Iii cases invo~ing extraterritorial jurisdiction there is a question of whether the crimes should be classified as minor, thereby making them more susceptible to being successflill~ prosecuted, or as serious, thereby making them more susceptible to the imposition of a hea\~ penalty. In France, in February 1994, extraterritorial jurisdiction was extended to tile offence of enga~g in sexual conduct with a person under the age of 15 by an amendment to the French Penal Code;, it is die only offence which can be tried as a misdeineanour ~der France's extraterritorial jurisdiction. As a misdemeanour, successlul prosecution is likely to be easier than for an act classified as a serious offence.
rn the other hand, there is a risk that offences against foreign children will be seen as less serious than the same offences committed against nationals if the penalties are less severe for a crime committed abroad. In Norway, three men convicted in 1990 of offences committed against foreign children received custodial sentences; the Supreme Court of Norway rejected a defence argument that the punishment should be less severe than it would be for crimes against Norwegian children. In Sweden in 1995, a man received a custodial sentence of3 months and had to pay compensation to the foreign child lie had abused; it has been suggested in relation to that case that the penalty would have been greater if the abused child had been Swedish. In the same year, in Thailand, a British Guyana citizen was sentenced to a total of 50 years in prison for offences committed against 5 Thai boys.
The degree of injury to the child would normally be a consideration for any court which prepares to sentence a convicted offender. But does a court have to be actually presented with evidence of physical or psycliological injury - a requirement with which it would be difficult to comply ifthe child is a foreigner? Should there iii stead be a judicial presuniption that all sexual exploitation of a child is damaging to the child? If the abuse has resulted in a child being infected with the HIV or AIDS virus, should this be an additional aggravating circumstance justif~ng increased penalties? The payment of financial compensation to a child victim has the l)osit~e advantage of permitting the child a fresh start in life, particularly if the child has been driven by poverty into prostitution.
~ere is a serious problem of recidivism particularly in relation to offenders wiio could be classified as paedophiles (i.e. persons for whom children are the prefened sexual partner). When discussing penalties for such offenders, the question arises as to w~ether penalties on them should continue after the seiyice of their sentence and/or the payment of their fines. The SWP has recommended that countries consider whether persons who have been convicted of sexual offences against minors should be subjected to registration and restriction oftheir activities ifthe latter place them in contact with children. It is a iliatter of concern that paedophile abusers will often insert themselves in employment or social situations which allow them to have access to children. Iii Canada, amendments to the Criminal Code (section 161) iii August 1993 enable a court to il'npose a prohibition order on a convicted sex offender which will prohibit him from attending places where children congregate, or from seeking employment which involves being in a position of trust or authority towards children.
24
Indeed, paedophiles have even been known to establish their own '~child care" organisations as a front for their unlawfiil activities It is therefore important that institutions which care for children should themselves require to be registered and supervised by a competent authority. Furthermore, it has been suggested that persons applying for positions of eniployment in institutions which are responsible for the care of children should be required to produce a clean police record as part of their job application. Volunteers for work with child-care agencies in developing countries should be required to produce references which can be checked with domestic agencies in their countries of origin.
4. ENF'ORCEMENT AND PREVENTION THROUGH INTERNATIONAL COOPERATION
Given the international dimensions of sexual exploitation of children in today's world, cooperation between governmental law enforcement agencies and cooperation through the inter-governmental police agency INTERPOL, is vitally important. Such cooperation should develop simplified procedures so that the problems of language and differing legal systems can be minimised.
4.1. Information Sharing via INTERPOL and Bilateral Contacts
INTERPOL already maintains a database of criminals, and die SWP has recornmended nicreased and improved sharing of i'iformation for the database in respect of individuals and organisations involved in the traffic of children, child pornography and die sexual exploitation of children.
The extent to which extraterritorial legislation is being extended to cover sexual offences against children committed in anotlier country has been detailed above. Its effective application requires cooperation between prosecuting authorities in relation to the gatliering and presentation ofevidence.
Bilateral contacts between police forces and customs authorities have already proved eilbctive in identi~in g paedophile networks witli worldwide comiections.
4.2. Ni utual Assistance Treaties
Mutual assistance treaties are a vehicle for more formal methods of cominunlcation. Bv reducing into the form of a ~vritten agreement the rules whicli will be observed for sud) things as die taking of statements from witnesses, the provision of records and other evidence, die se~ice of documents etc.. the evidential quality of the material is assured. and the delays inherent in diplomatic channels of communication are avoided. ~e UN Crime Prevention and Criminal Justice Branch has drafted a Model Treaty on Mutual Assistance which w~s adopted by the General Asembly in December 1 990~ and is available as a resource to all states. National laws can also provide unilaterally for the conditions under which mutual assistance will be extended to other states iii criminal matters. Thai Law
GA 45/1 17
25
BF2535 entitled 'The Act on Mutual Assistance in Crirninal Matters' sets out the conditions under which assistance may be extended to requesting states, even without a treaty.
4.3. Extradition
Extradition is anotlier vehicle for international cooperation in criminal matters. Some countries would prefer to extradite a child exploiter back to the country in which the offence was committed. It is generally believed that a treaty is necessary betwen two countries before a national of one can be extradited to the other. However, this is not the case for many European states which have national laws determimng the conditions under which nationals will be extradited to face charges in another State. A Model Treaty on Extradition, again drafted by die UN Crime Prevention and Criminal Justice Branch and also adopted by the General Assembly in December I 990~, is available as a resource to all States. In Germany, extradition to States with which there is no bilateral extradition treaty is streamlined by the use of " agreements" which require only a fraction of the ml) Lit necessal',' in the negotiation of a treaty. For each individual case it is then only necessary to refer to the terms of the agreed arrangements.
4.4. Police Liaison Officers
A cooperative method of preventing or assisting in the detection of crimes of sexual exploitation of children is the placement by States of Police Liaison Officers 'ii countries to which their nationals travel in large numbers. Liaison officers have been used in the fight against drug trafficking for some time, and there is a strong demand from the nongovernmental sector that such officers be placed for the purposes of coinbatting child sexual exploitation. There is a view that officers placed to combat child sexual exploitation must be specialised for that field of enquiry, and should not be also combatting the drugs trade or other serious crime. The UK National Crime Intelligence Service (NCIS) has suggested that "Crime" Liaison Officers be placed in certain countries, available for all criminal investigations. The SWP has, however, recommended the posting of specialised officers.
4.5. Developnient Aid
International cooperation via development aid to promote child protection has also already been mentioned. Such assistance, if used for training, can have long-term effects on the capacity and understanding of law enforcement officials in combatting sexual crimes against children.
5. CONCLUSION
It must be realised that the legal environment reflects the political environment, and that unless a State and its society give priority to the protection of children, the laws will not protect them. The will to protect children must first be there.
GA 45/116
26
This Paper has attempted to identity the legal norms which have set the standards to be observed, and to look in a general way at the responses from national legislatures, also taking into account the enforcement and implementation mechanisms which are available.
It is hoped that States, in formulating their own national plans, will be able to draw on the experiences outlined in this paper and find solutions in the interests of their own and die world's children.
In order to foster the most effective implementation of the CRC in this sphere, the following proposals are made:
It is suggested that the reporting obligations in Article 44 of the CRC be used by States, not just to fulfill their legal obligations under the Convention, but as an opportunity for a thorough analysis and review of their national legislative provisions for the protection of children. This work should be done with the active participation of non-governmental organisations who are involved in the care of children, as well as with those departments of state which have responsibilities affecting children, and those that ensure compliance with inteniational treaty obligations. Through such an interdisciplinary review, legislative gaps in child protection could be identified. A national plan could then be prepared to address in a comprehensive way, through legislation, the needs of children Ill each State.
Secondly it is suggested that a Task Group, again including NGOs as well as law enforcement personliel and child care authorities, be established in each State to identify or
propose effectk~e mechanisms within the jurisdiction to monitor and combat sexual exi,loitation of children. Monitoring of children at risk, care of abused children, evidence~athering against child abusers. protection of child witnesses all these are tasks for w~ich mechanisms must be devised to respond to local problems and local needs.
Flually. it
5 suggested that in each State. an Ombudsman for children, or an institution or body flilfilling similar ti~nctions, be appointed with responsibility not only to receive and deal with complaints from children. but also to advise the goveniment on problems affecting children in general with in the jurisdiction and to recommend solutions.
These are some ways by which a practical start could be made in securing better iniplementation ofthe provisions ofthe Convention on the Rights ofthe Child.
27
ANNEX 1
IN'rxRPO]~ STANDING WORKiNG PARIY ON
OFFFNCES AGAINST MINORS
Recommendations on i~w enforcement.
Jntroductio,z:
Ills agreed that a statement of rccommcndations is to be prepared for submission to the World Congress A&ainst Commercial S~xual cxploitatlon of Children which is to be held in Stockholm (Swcdcn) ill August 1996.11 will be appended to the background paper entitled ~ International l~gal Framework and the Currcnt National Legis1~tive ~nd Enforc::menl Responses relating to die Commercial Sexual Exploitation of Children>), This statement will also be submitted to the nexi Interpol General Assembly which will bc held in Anialya (Turkey) in October 1996 for formal approval and adoption.
These recommendations update and expand those detailed in the Interpol resolution adopted by the 61st Gener3l Assernb]y in D~~ar in 1992.
Recommendatiovt~ Dfl Jaw e'iforc~'nent measuzes:
A - C~i1d ~rno',,,,,~aDhv
Child porriography is created as a conscqUenc~ of the sexual exploitation or abu~e of a child. It can be dc:~ned as any means of depic~ng or promoting the scxual exploitation of a child, inc~:uding written or audio material, which focus~s on the child's sexual behaviour or ge,~iia1 S.
Countries which have not yet done so should enact legislation making the produc~ion~ importation, possession and di.~tribution of pornography showin~ children, a criminal offence.
~ le"~islaiion should td'X'e account of the types of support currently used for such material, but also leave room for deve:oorne~t of rurure forins of support such as computers, data c~rriers and other virtual representat'.ons in order to climinate lc"b31 loopholc.~ from which criminals could benefiL
B ~rAe-"~~a~ional ado~tion
In the context of Tne IIag'~e International Convention on P-~ otect ion of Children and Coot'~e.~tion in Respect of lnt~r~unUy Adoption of 29 May 1993, adopted by lnte~~l in the for:~~ of Rasolution AG\~'I6z'R:sA during the 62nd General Ass~mbly in Aruba, i~ is recommended that lnte~ol men'~oer' countries ta,~e ncces~ary rr.eas'~es to set up greater
supervision and control of intercountry adoption, in order to protect children thus adopted from all forms of exploitation and abuse.
- Sex lourism and child Drostitution
]nie~pol should ur~ member countries to introduce meanin~~l national and extra~erritorial ]egi~lations relating to the sexual exploitation of children in addition 10 the enhaiie~ent of extradition procedures and arrangements.
~~hey should also study the possibility of establishing bilateral agre~ents between countries in order to facilitatc legal proc~edings and the gathering of evidence. Thereby making it easier to detect tourism centred on the sexual exploitation ~d prostitution of eh~ldren so that measures to put an end to such practices can be taken.
Member countries should notiry the diplomatic representatives concerned of any offencess committcd by their nationals abroad in a foreign country, so as to allow 1e~al proceedings 10 be commenced in the cont~xt of extra-~~toriai legislation.
In particular, member countries should consider the possibility of posting liaison Off1C~eA~~ or identifying such an o~cer in situ, in countries particularly exposed to this kind of criminality wi~h Ihe aim of ensuring the effective usc of territorial ]c&islation or of new extra-territorial legislation. The network of existing Interpol Specialist Liaison orneers should not be overlooked.
Interpol should ur~e member countries which have not yet done so, to adopt legislations prohibiting child prostitution arid/or effec'Jvely implement them.
D - Iniernational co-o~~ration
It is recommended that Interpol member countncs increase and improve tl~e sharin& of info~nation via ~e (~enera1 Secretaria~ by a better use of the Interpol dat~ base. Thi~ will enable a record to be created wich will assist to identify ~d proscc'~e individuals or orgai~isations involved in tra~c of cA~i1dren, child pornography and ~exual exploitation of children.
B - I~!eDhone Hel~ 1inc~
It is r~c~mmended that member countries which have not yet done so, institute a loll free telephone number for the reporting of criminal o~e~ees comrnitL~d against minors allowing callers to remain anonymous if they wish.
F - Lez';slation and cnforc~rnent
All Irterpol rn~ber countries are urged to review, and where necessary, improve or irnpl~:~ent guidelines that assist all individuals~ sp~~i]cal!y all professioni~als, arid otlier pc~sons who have care~ eus~ody or control of children, to forward inforn,ation about any suspec'~ed abuse of~ aiid/or erimiiial offene~~ against, children to an oppropriate identuted agency.
Within the fundamental principics of Human Rights and national and intcrnational law, u~d wit]i a view to protecting childre,£ from scxual cxploitation and the prcv~ntion of recurring offences1 it is r~commended that member countries should cxaminc the fcasibiliiy of introducing legislation requirin~ the registration of, and the restriction in the activities1 of persons convicted of sex o~Tences against or m'volving children. The requirement for regist~~tion involves notitication to the local police of the home address of the convicted person and movements thereaf~cr. ~ restriction in activities is aimed at preventing a convicted person from involveme,~t with children in cmploycment or in social or voluntary capacities. To ensure the e~ectiveness of such legislation and in the wider context of protection of children generally, sysi~ms should be developed which enable ai~ reasonnabl~ person or authority (in considering the suitability of a person who it is proposed will have unsupervised access to children), to obtain details of any relevant previous convictions, or indeed any other relevant information concerning that individual.
G Missing children
It is recommended to all member countries that all international cases of missing children and all cases of children reported missing for more than six month, which have not been previously reported under other criteria, should be reportetl to the General Secretariat ~nd that they could then be the subject of international missing person notices.
The General Secretariat is asked to co-operate with the United Nations and other competent bodies in determining measures for dealing with eases involving missing children.
T]icy should consider the settin~ up of specialised IJnits to deal with cases of missin~ children and re~uest assis~nce from centres which already exist in order to use them as examples. Multi-disc;plinary c~operation has to be ~couraged for the be~erit of such new units.
- Traffickin~ in Chi~dr~n
Within the concept of the United ~ations Convention on the Rights of the Child, which states that the best interest of the child should prevail above all other considerations, Inte~pol member countries ar: urged to increase survci~Iancc by immigration autliorities and law enforcement in order to ensure that travel abroad by children, cspecially those not accompanied by their parent or guardian. is riot related to tra~cking in ]~um~ 13cings aiid 10 pr~~ent the possibility that they will be led into prostitution or other forms of sexual abuse.
When it is determined that ille~ai child tr~cking is takin~ plaec, meAlber countries should establish fae~lities or support those that exist, in order to protect and assist the victims of tr~ eking. Such support would include the sympathetic handling of the chi~d, commensurate with the individual c;.rcumstanees of each case.
April 1996.