Published in May 2019
This module is a resource for lecturers
Children alleged as having committed smuggling or trafficking offences
To this point, this Module has considered children as smuggled migrants and victims of trafficking. In some cases, children may also act as migrant smugglers and human traffickers. Where children are alleged as having committed criminal conduct, several additional, often complex, issues arise.
One important consideration is whether the participation of children in criminal activity was a result of coercion or deception. This issue may arise, in particular, in situations where children are deceived or forced into transporting or otherwise assisting smuggled migrants. Evidence from several countries and sources indicates that this phenomenon is significant in scale. Egyptian children are reportedly used to drive smuggling vessels to Italy (IOM, 2016), while children have also been used to drive vessels from Turkey to Greece (Economou, 2016). There are also numerous reports of children used to smuggle migrants from Mexico to the United States and from Indonesia to Australia. As Gallagher and David (2014, p. 569) note, "children may be specifically recruited to play certain low level roles in the smuggling process, such as crewing migrant smuggling vessels, as children are more likely to escape prosecution and simply be returned home". Children forced to engage in criminal activity by smuggling migrants may be victims of trafficking themselves. In such cases, the non-criminalization principle will be relevant (see Module 8).
Particular care should be taken to identify instances in which adults target children for these roles, in the knowledge that children (particularly children who are under the age of criminal responsibility in the relevant jurisdiction) may escape criminal sanction. In such cases, the obligations on the responding authorities are dual. Firstly, exploited children should be provided with holistic, practical and child-sensitive supports that foster their prospects for reintegration and the assumption of a productive role in society. Any such measures should be non-stigmatizing and non-criminalizing, and children should be treated in accordance with the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, as mentioned above. Secondly, resources should be directed to ensuring the effective detection and prosecution of the adult/s criminally responsible for recruiting and exploiting children to engage in crime, consistent with article 5(2)(c) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.
Children alleged as, accused of, or recognized as having committed crimes remain entitled to all the rights owed to children under the Convention on the Rights of the Child and international law more broadly. In addition, principles regarding specialized child justice will also apply in such cases. Relevant instruments include the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the 'Beijing Rules') and Resolution 1997/30 on the Administration of Juvenile Justice (United Nations Economic and Social Council 1997) and recent guidance on the prevention of violence against children in conflict with the law, elaborated in the United Nations Model Strategies and Practical Measures on the Elimination of Violence against Children in the Field of Crime Prevention and Criminal Justice (A/RES/69/194). Broadly speaking:
- In accordance with article 40(3)(b) of the Convention on the Rights of the Child, "wherever appropriate and desirable" children accused of offences should be dealt with "without resorting to judicial proceedings". The Convention on the Rights of the Child details a number of diversionary dispositions that might be applied.
- The Convention on the Rights of the Child requires that children "alleged as, accused of, or recognised as having infringed the penal law be treated in a manner that is consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child assuming a constructive role in society" (article 40). Consistent with this requirement, States parties to the Convention on the Rights of the Child are encouraged to establish specialized child justice laws, procedures and institutions.
- Any judicial proceedings should be conducted in an age-appropriate and accessible manner, ideally through specialized juvenile courts. Child-friendly information should be given to an accused child, courtroom staff should be trained to deal with children, and courtrooms should be set up in an unintimidating and non-hostile fashion (UN Committee on the Rights of the Child 2009, para 34).
- If children are convicted and sentenced, punishment must recognize children's age, developmental stage, and lesser culpability. The objectives of punishing children should focus on "rehabilitative and restorative justice" (UN Committee on the Rights of the Child 2007, p. 5). Any punishment involving deprivation of a child's liberty must be a last resort due to the serious negative consequences this has on children's well-being and development.
- Children accused of crimes should be appointed guardians to safeguard their best interests. They should also have access to free legal assistance from the moment they are detained. The provision of legal aid for children is also consistent with the authoritative guidance provided in the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, of which Principle 10 provides:
Special measures should be taken to ensure meaningful access to legal aid for women, children and groups with special needs, including, but not limited to, the elderly, minorities, persons with disabilities, persons with mental illnesses, persons living with HIV and other serious contagious diseases, drug users, indigenous and aboriginal people, stateless persons, asylum seekers, foreign citizens, migrants and migrant workers, refugees and internally displaced persons. Such measures should address the special needs of those groups, including gender‑sensitive and age-appropriate measures (2013, para 32).