IX. INTERNATIONAL LEGAL STANDARDS
The genocide violated Rwandan children's rights on an unthinkable scale. It also set the stage for a whole host of long-term systemic rights violations for children. Hundreds of thousands of children who were left without parental care are victims of abuse and exploitation on an ongoing basis. Thousands more children who migrated to city streets suffer violence at the hands of law enforcement agents. Thousands more, no longer children, languish in prison without trial for crimes of genocide they allegedly committed while they were children.
Rwanda is a party to the Convention on the Rights of the Child and to the African Charter on the Rights and Welfare of the Child. It is the responsibility of the Rwandan government to protect the rights of all these children and young people. It is not enough to entrust their rights to the traditional social safety net, which has already been stretched beyond its limits. Nor can their plight be put off as an inevitable consequence of poverty. The Rwandan government must put their best interests at the heart of its efforts towards reconstruction and reconciliation, and must use these efforts to enshrine measures that will protect children's rights in the future.3
Children accused of crimes have a right not to be detained arbitrarily or unlawfully.5 Imprisonment of a child should be a last resort and for the minimum period possible.6 The primary objective in placing juveniles in an institution should be to provide them "care, protection, education, and vocational skills," that will enable them to "assume socially constructive and productive roles in society."7 Yet hundreds of children who were younger than fourteen during the genocide, too young to be held criminally responsible were incarcerated for periods of years instead of benefiting from assistance for rehabilitation and reintegration into society. Thousands more who were between the ages of fourteen and eighteen in 1994 have been held in prolonged pretrial detention, often on unsubstantiated genocide charges. In addition, street children have repeatedly been arrested arbitrarily without any process.
International standards also recognize that children in conflict with the law, a particularly vulnerable group, are entitled to special due process protections. States are strongly encouraged to develop specialized courts and procedures for juveniles.8 Rwanda has established special Minors' Benches in law, but has let them lapse in practice. Juvenile defendants effectively receive no special protections in the justice system as the only benefit to which they are entitled is a reduction in penalties.
Whether or not they have established separate juvenile justice systems, states are obligated to afford children the basic guarantees of a fair trial, including the right to be presumed innocent until proven guilty, to be informed promptly and directly of the charges against them, to have prompt access to legal and other appropriate assistance, and to have their cases heard without delay.9 None of these has been consistently respected for juveniles accused of genocide-or common crimes.
The U.N. Rules for the Protection of Juveniles Deprived of their Liberty, as well as the U.N. Standard Minimum Rules for the Treatment of Prisoners, set forth detailed specifications of the conditions under which children may be confined.10 They entitle children to basic standards of health, sanitation, and nutrition. In addition, they require states to provide children in detention with access to education and vocational training. International law also mandates the separation of children from adults in detention.11 Conditions in Rwandan prisons and lockups and at Gitagata Reeducation Center for Children fall well below these recognized international standards, which are meant to represent only a minimum. At times, treatment has been so inhumane as to violate the prohibition against torture or other mistreatment.12
Freedom from Abuse and Exploitation
Children without their parents, like all children, have a right to be free from abuse and exploitation.13 Article 19 of the Convention on the Rights of the Child holds states responsible to protect all children from violence, neglect, mistreatment, abuse, or exploitation at the hands of their parent, legal guardian, or anyone else responsible for their care.14 The Rwandan government has failed to protect these children's rights to be free of exploitation of their labor, to have access to education, and to inherit property.
Under the convention's article 19, Rwanda has an obligation to take legislative, administrative, and other measures to enforce the rights of children. Despite repeated pronouncements since 1995, the Rwandan government has failed to draft legal standards for the protection of children in foster care. Local government officials-on whom the burden falls to protect vulnerable children in their jurisdictions-lack necessary resources and the political will to fulfill this responsibility.
Exploitative forms of child domestic labor are prohibited under the Convention on the Rights of the Child and international labor law. Though not explicitly mentioned, domestic labor can fall squarely within the definition of a hazardous form of work for children in some cases.15 Children in Rwanda, as in other countries, are frequently required to toil in homes from early morning until late at night, or even to be on call twenty-four hours a day. While they perform chores that might not normally be hazardous, the long hours exacerbate the negative impact the labor has on the child's well being. Girls face a high risk of physical and sexual abuse from their employers. Child domestics rarely receive fair compensation for their labor. In addition, working as a domestic servant can hamper a child's long-term development. The subservient attitudes often required by employers or, as is often the case in Rwanda, foster families, can lead to low self-esteem-particularly when other children in the household are treated differently, for example, being permitted to eat more and go to school. In addition, child domestic servants are invisible-they are in homes across the country, yet difficult to identify and monitor and more difficult still to protect.
All children have a right to education, including free primary education without discrimination.16 This right is progressive, meaning that governments must strive to implement it according to the means available, but poverty is not the sole cause of denial of the right to education. The Government of Rwanda has not taken sufficient steps to ensure children not living with both parents have access to schooling. A national law makes primary education obligatory and free in theory only.17 Costs associated with primary school can be prohibitively expensive for many Rwandan children, especially orphans.
International law requires states to take extra measures to protect children from sexual abuse and exploitation.18 This engenders responsibility to protect girls living with foster parents, girl heads of households who trade sex for school fees or other basic needs, and street girls who are subject to sexual violence.
3 Graça Machel, Impact of Armed Conflict on Children, GA Doc. A/51/306, August 26, 1996, Section IV, "Reconstruction and Reconciliation." Article 39 of the Convention on the Rights of the Child requires states to take measures to promote recovery and reintegration of child victims of armed conflict.
4 See, for example, Machel, Impact of Armed Conflict on Children, para. 251.
5 Convention on the Rights of the Child, art. 37(b); International Covenant on Civil and Political Rights, art. 9.
6 Convention on the Rights of the Child art. 37(b). See also the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules"), G.A. Res. 40/33, annex, 40 U.N., 44 U.N. G.A.O.R. Supp. no. 53, U.N. Doc. A/40/53, art. 19.1. (1985).
8 Convention on the Rights of the Child, art. 40(3); Beijing Rules, art. 1.4.
9 Convention on the Rights of the Child art. 40(2)(b); International Covenant on Civil and Political Rights, art. 14(5).
10 U.N. Rules for the Protection of Juveniles Deprived of their Liberty, G.A. Res. 45/113, annex, 45 U.N. GAOR Supp. (no. 49A) at 205, U.N. Doc. A/45/49 (1990); Standard Minimum Rules for the Treatment of Prisoners, U.N. ECOSOC Res. 663C (XXIV), U.N. Doc. E/3048 (1957), amended by ECOSOC Res. 2076, U.N. Doc. E/5988 (1977). These standards, although non-binding, have been recognized in the international community by adoption as General Assembly resolutions. They provide an authoritative statement of the international community's agreement on minimum acceptable standards.
11 Convention on the Rights of the Child art. 37(c); International Covenant on Civil and Political Rights art. 10 (2)(b); Additional Protocol I to the Geneva Conventions of 1949, art. 77; Additional Protocol II to the Geneva Conventions of 1949, art. 6; Fourth Geneva Convention of 1949, art. 68.
12 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, U.N. G.A. Res. 39/46, 1984. Rwanda has signed but not ratified the convention. However, the prohibition on torture as codified by the convention is widely considered to be binding customary international law. Torture is also prohibited in Convention on the Rights of the Child art. 37(a) and International Covenant on Civil and Political Rights art. 10(a), which Rwanda has ratified.
13 Convention on the Rights of the Child, arts. 19, 32, and 34. International Covenant on Economic, Social, and Cultural Rights, art. 10(3).
14 See also Arts. 32, 34, and 36.
15 Convention on the Rights of the Child art. 32; ILO Convention No. 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, 1999. (Ratified by Rwanda, May 23, 2000.) Article 3(d) defines the worst forms of child labor as comprising "work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety, or morals of children." For ILO further elaboration of this definition, see ILO Recommendation No.190: Recommendation Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor.
16 Art. 28, Convention on the Rights of the Child; art. 11, African Charter; art. 13, IESCR.
17 Law Relating to Rights and Protection of the Child against Violence, art. 10 (English version.)
18 Arts. 19 and 34 Convention on the Rights of the Child, art. 27, African Charter. Anti-discrimination provisions also require states to protect girls from gender-specific forms of exploitation and abuse. Art. 2, Convention on the Rights of the Child; art. 3, African Charter; Art. 2, International Covenant on Civil and Political Rights; Convention on the Elimination of Discrimination Against Women.