The United Nations Human Rights Treaty System



The United Nations Human Rights Treaty System

Part 4: The United States and UN Special Procedures

In addition to international human rights treaty monitoring bodies and human rights courts, the UN system also has “Special Procedures”, independent human rights experts who are mandated to report to, and advise, UN Member States on human rights from a thematic or country-specific perspective. The Special Procedures include individuals — Special Rapporteurs — and Working Groups that comprise several experts. As of 1 October 2014, there were 39 thematic and 14 country-focused Special Procedures.

On 5 March 2015, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, reported to the UN Human Rights Council on children around the world who are deprived of their liberty. Specifically, he examined how the international legal framework and standards are supposed to protect detained children against torture, ill-treatment and developmentally harmful and torturous conditions of confinement, as well as shortcomings in the practical implementation of such legal standards.

Méndez’s report noted that life imprisonment sentences without the possibility of release are expressly prohibited by international law for children, including the Convention on the Rights of the Child, General Comment No. 10 of the Committee on the Rights of the Child and General Comment No. 21 of the Human Rights Committee. Almost all UN Member States have taken this international human rights requirement into account except for the United States of America. It is currently the only State in the world that still sentences children to life imprisonment without the opportunity for parole for the crime of homicide.

The Rapporteur on torture explained that: “The particular vulnerability of children imposes a heightened obligation of due diligence on States to take additional measures to ensure their human rights to life, health, dignity and physical and mental integrity. However, the response to address the key issues and causes is often insufficient.”

The ACLU has noted that 60,000 children who have come into conflict with the law are currently detained in US juvenile jails and prisons, with almost two-thirds held for non-violent offenses, including skipping school. Thousands more are being held in adult jails and prisons, with children of color being especially over-represented among young people who are serving extreme sentences. The US government would therefore do well to implement recommendations made by Méndez, including:

  • ensuring that deprivation of liberty is used only as a measure of last resort. only in exceptional circumstances and only if it is in the best interests of the child
  • ensuring that child-appropriate age determination procedures are in place, and that the person is presumed to be under 18 years of age unless and until proven otherwise
  • ensuring that children in conflict with the law are charged, tried and sentenced within a State’s juvenile justice system, never within the adult criminal justice system
  • establishing the minimum age of criminal responsibility to no lower than 12 years, and to consider progressively raising it
  • prohibiting laws, policies and practices that allow children to be subjected to adult sentences and punishments, and prohibiting the death penalty and life imprisonment in all its forms.

In addition, more than 67,000 unaccompanied children are being held in US immigrant detention centers, about which the UN Committee against Torture has said: “many children continue to be held in group homes and secure facilities, which closely resemble juvenile correctional facilities. While acknowledging the steps taken by the State party to reform the immigration detention system, the Committee remains concerned by reports of substandard conditions of detention in immigration facilities and the use of solitary confinement. It is also concerned about reports of sexual violence by staff and other detainees.”

The Committee recommended that the United States: “Develop and expand community-based alternatives to immigration detention, expand the use of foster care for unaccompanied children, and halt the expansion of family detention, with a view to progressively eliminating it completely.” Méndez recommended that:

  • ensuring that immigration detention is never used as a penalty or to punish migrant children, including for irregular entry or presence, and providing alternative measures to detention that promote the care and well-being of the child
  • prohibiting the use of immigration detention as a method of control or deterrence for migrant children
  • ensuring that unaccompanied migrant children are immediately provided with guardianship arrangements
  • taking into consideration any trauma or exposure to torture or other forms of ill-treatment that child migrants have experienced prior to being detained.

Information provided by Maria de Bruyn, 14 March 2015