III. Forensic Age Assessments: An Inexact Measure

International law prohibits the death penalty for crimes committed by individuals under age 18.[37] The United Nations Committee on the Rights of the Child (CRC Committee) stated in its General Comment No. 10, on children’s rights in juvenile justice, that, “If there is no proof of age, the child is entitled to a reliable medical or social investigation that may establish his/her age and, in the case of conflict or inconclusive evidence, the child shall have the right to the rule of the benefit of the doubt.”[38]

Addressing age-determination proceedings in the migration and asylum context, the CRC Committee stated in General Comment No. 6 (2005), on the treatment of unaccompanied and separated children outside their country of origin, that:

The assessment must be conducted in a scientific, safe, child and gender-sensitive and fair manner, avoiding any risk of violation of the physical integrity of the child; giving due respect to human dignity; and, in the event of remaining uncertainty, should accord the individual the benefit of the doubt such that if there is a possibility that the individual is a child, she or he should be treated as such.[39]

These standards provide important guidance in juvenile death penalty cases, where a government’s failure to adequately protect children in its justice system has even more severe consequences.

In all five of the forensic age determination reports examined by Human Rights Watch for this report, Yemeni judicial authorities accepted as conclusive age assessments based on wrist x-rays, or on arm and wrist x-rays. However, according to a review of medical and scientific literature, bone-age assessments may be influenced by factors including socio-economic background and nutrition, and that the margin of error, particularly in boys between the ages of 16 and 18, is up to 2 years. [40]   Yemen presents a particularly challenging case, with exceptionally high rates of children who are stunted and underweight, making it difficult to accurately assess children’s age based on bone size, using internationally standardized charts. [41]

Age determinations based on wrist x-rays remain controversial, and subject to a wide margin of error in practice. For example, in the Netherlands, the government Committee on Age Determination has criticized age assessments conducted solely on the basis of x-rays of the hand-wrist region because “the exclusive use of the hand-wrist region means that about 90% of all girls and 50% of all boys reach the physical criterion for exclusion before they reach the age of 18, which means they may be unjustly refused treatment as minors. ” [42] Similarly, the Royal College of Pediatrics and Child Health in the United Kingdom, in the context of determining the ages of unaccompanied migrant children, states that x-ray tests or “radiological assessment is extremely imprecise and can only give an estimate within two years in either direction.” [43]

Rather than relying on the inexact conclusions of medical examinations, the Yemeni government should develop an age-determination protocol using impartial records and methodology. The government should develop its protocol based on best practice recommendations from international expert opinion, including the UN Committee on the Rights of the Child, which has called for official age verification systems focused on objective evidence such as birth and school records. Many of the alleged juvenile offenders in this report were able to produce these documents as part of their defense, though they lacked official birth certificates. The government should also recognize the assessment of the UN High Commissioner for Refugee (UNHCR) that, “The margin of appreciation inherent to all age-assessment methods needs to be applied in such a manner that, in case of uncertainty, the individual will be considered a child.”[44]