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ABSTRACT
This article discusses the protection children subjected to honour-related violence are entitled to under international human rights law. The issue is examined from the perspective of the practical and effective implementation of the right to physical and psychological integrity. In ensuring this right, relevant authorities must take the child’s right to family life into consideration, which may require specific measures to ensure a safe home environment in the long term. In cases of honour-related violence, this arguably entails addressing attitudes of family members that uphold violence, notably attitudes towards what is considered acceptable social behaviour for girls and boys and how the family can uphold its honour without resorting to violence. An obligation to support parents in such a manner can be held to exist under the Convention on the Rights of the Child, but has not yet been advanced by the European Court of Human Rights.
Notes
1 Eg UN Commission on Human Rights (UNCHR), UN Commission on Human Rights (UNCHR), Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, submitted in accordance with Commission on Human Rights resolution 2001/49: Cultural practices in the family that are violent towards women, 31 January 2002, UN Doc E/CN.4/2002/83 [6].
2 The concept of a continuum of violence coined by Liz Kelly allows us to put the varying forms and degrees of honour-related violence into the larger context of the pressure and control experienced on a daily basis by children who grow up with strict norms of honour regulating their actions. See Liz Kelly, Surviving Sexual Violence (Polity Press 1988). A child may accept some of those social norms, adjusting her or his behaviour accordingly, and reject others. While necessary from a legal perspective, it may be difficult to place separate legal labels on the violence and threats the child experiences.
3 The protection of cultural or religious practices has been analysed elsewhere, see e.g. Pier-Luc Dupont, ‘Human Rights and Substantive Equality in the Adjudication of Ethnic Practices’ (2016) 34(4) Nordic Journal of Human Rights 289.
4 ECHR (adopted 4 November 1950, entered into force 3 September 1953) ETS 5. See e.g. Opuz v Turkey (App no 33401/02) ECHR 9 June 2009 [161]; Valiulienė v Lithuania (App no 33234/07) ECHR 26 March 2013 [69].
5 Convention on the Rights of the Child (CRC), (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.
6 United Nations Children's Fund (UNICEF), Hidden in Plain Sight: A Statistical Analysis of Violence against Children (UNICEF 2014) 166. A reservation to Art 19 has been expressed by Singapore. In April 2017, 52 states had prohibited corporal punishment of children in the home. See Global Initiative to End All Corporal Punishment of Children <www.endcorporalpunishment.org> accessed 11 April 2017.
7 For a discussion of the implications of a norm constituting lex specialis, see ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission’ finalised by Martti Koskenniemi (2006) UN Doc A/CN.4/L.682 [71], [91]–[95], [102].
8 Quennerstedt questions why, in the definition of their rights, children should primarily be seen as children rather than as human beings while this is not the case for any other group: Ann Quennerstedt, ‘Children, But Not Really Humans? Critical Reflections on the Hampering Effect of the “3 P's”’ (2010) 18 International Journal of Children's Rights 619, 630–31.
9 Cantwell finds that children are still sometimes regarded as having children's rights rather than inalienable human rights: Nigel Cantwell, ‘Are Children's Rights still Human?’ in Antonella Invernizzi and Jane Williams (eds), The Human Rights of Children: From Visions to Implementation (Ashgate 2011) 41–42.
10 For a discussion of the definition of honour-related violence, see Lisa Grans, ‘The State Obligation to Prevent Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: The Case of Honour-Related Violence’ (2015) 15 Human Rights Law Review 695, 696.
11 The related issue of corporal punishment and cultural relativism is discussed in e.g. Alison Dundes Renteln, ‘Corporal Punishment and the Cultural Defense’ (2010) 73 Law and Contemporary Problems 253.
12 For a discussion of the distinction between social norms, social practice, law and legal practice, see e.g. Matthias Baier, ‘Relations between Social and Legal Norms’ in Baier Matthias (ed), Social and Legal Norms: Towards a Socio-Legal Understanding of Normativity (Routledge 2016) 60–61.
13 Similarly e.g. Lynn Welchman and Sara Hossain, ‘Introduction’ in Lynn Welchman and Sara Hossain (eds), ‘Honour’, Crimes, Paradigms, and Violence against Women (Z Books 2005) 4.
14 Nazand Begikhani, Aisha K Gill and Gill Hague, Honour-Based Violence, Experience and Counter-Strategies in Iraqi Kurdistan and the UK Kurdish Diaspora (Ashgate 2015) 4.
15 A Swedish study from 2008 found that honour-related violence resulting in care orders rarely is directed at girls below 13: Astrid Schlytter and Hanna Linell, Hedersrelaterade traditioner i en svensk kontext: En studie av omhändertagna flickor (Forsknings- och utvecklingsenheten för socialtjänstens individ- och familjeomsorg i nordvästra Stockholm 2008) 31.
16 CRC, art 14; International Covenant on Civil and Political Rights (ICCPR), (adopted 16 December 1966, in force 23 March 1976) 999 UNTS 171, art 18(4); International Covenant on Economic, Social and Cultural Right (ICESCR), (adopted 16 December 1966, in force 3 January 1976) 993 UNTS 3 art 13(3).
17 Eva Brems, ‘Human Rights as a Framework for Negotiating/Protecting Cultural Differences: An Exploration of the Case-Law of the European Court of Human Rights’ in Marie-Claire Foblets, Jean François Gaudreault-Desbiens and Alison Dundes Renteln (eds), Cultural Diversity and the Law, State Responses for Around the World, Proceedings of the Colloquium The Response of State Law to the Expression of Cultural Diversity, Brussels, September 2006, 663, 666. For a discussion of the ECHR as a tool for cultural diversity, see Brems 674.
18 See CRC, art 30.
19 Philip Alston, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’ in Philip Alston (ed), The Best Interests of the Child, Reconciling Culture and Human Rights (Clarendon 1994) 20–21.
20 CRC, ‘General Comment No 8’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) UN Doc HRI/GEN/1/Rev.9 (Vol II) [28].
21 John Tobin, ‘The International Obligation to Abolish Traditional Practices Harmful to Children's Health’ (2009) 9 Human Rights Law Review 373, 376.
22 Geraldine van Bueren, ‘The International Protection of Family Members’ Rights as the 21st Century Approaches’ (1995) 17 Human Rights Quarterly 732, 746. Similarly, Eva Brems, ‘Article 14: Right to Freedom of Thought, Conscience and Religion’; Garton Kamchedzera, ‘Article 5, The Child's Right to Appropriate Direction and Guidance’ in André Alen and others (eds), A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff 2006) 31; 38.
23 For more about the principle of the best interests of the child, see Philip Alston (ed), The Best Interests of the Child: Reconciling Culture and Human Rights (Clarendon Press 1994); Michael Freeman, A Commentary on the United Nations Convention on the Rights of the Child, Article 3: The Best Interests of the Child (Martinus Nijhoff 2007).
24 CRC, ‘General Comment No 14’ (29 May 2013) UN Doc CRC/C/GC/14 [48].
25 See CRC, arts 3(1) and 18.
26 e.g. CRC, arts 9, 20, 21, 37, 40; Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 arts 5(b) and 16(1)(d); HRC, ‘General Comment No 35’ (16 December 2014) UN Doc CCPR/C/GC/35; UNHCR Guidelines on Determining the Best Interests of the Child (UNHCR 2008).
27 Elsholz v Germany (App no 25735/94) ECHR 13 July 2000 [50].
28 This point will be further discussed in section 4.3 below.
29 See arts 3(2) and 18(2). For examples of appropriate assistance, see the CRC Committee, cited in n 95.
30 E.g. Joan Durrant and Ron Ensom, ‘Physical Punishment of Children: Lessons From 20 Years of Research’ (2012) 184 Canadian Medical Association Journal 1373.
31 CRC, ‘General Comment No 14’ (n 24) [57].
32 Tobin, ‘The International Obligation’ (n 21) 385. Tobin also notes that harm inflicted on boys is less visible than harm inflicted on girls due to the male body being typically regarded as impermeable. All forms of FGM are indeed widely held to constitute torture and the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention (adopted 11 May 2011, entered into force 1 August 2014) ETS 210) requires its criminalisation. There are certainly distinct differences between FGM and male circumcision, but both practices raise concerns about the child's right to physical integrity.
33 Compare Finnish Supreme Court R2014/211 [2016] KKO:2016:25 and R2014/116 [2016] KKO:2016:24, finding that circumcision of boys (including for cultural, not religious reasons) is not punishable when it is made in a medically correct manner and in the interests of the child, to Re L and B, [2016] EWHC 849 (Fam) [143], where the British High Court rejected the application of a father to have his sons circumcised against the will of their mother, finding that the decision on circumcision should be made by the boys themselves when old enough.
34 See n 19.
35 UNGA Convention on the Rights of Persons with Disabilities: resolution, (adopted 24 January 2007), A/RES/61/106.
36 ICCPR, (adopted 16 December 1966, in force 23 March 1976) 999 UNTS 171.
37 African Charter of Human and Peoples' Rights (adopted 27 June 1981, in force 21 October 1986) CAB/LEG/67/3 rev. 5.
38 African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, in force 29 November 1999) CAB/LEG/24.9/49.
39 American Convention on Human Rights (adopted 22 November 1969, in force 18 July 1978) OAS TS 36.
40 In the case of honour-related violence, there may be perpetrators other than the parents, but for the sake of brevity, this article only refers to parents.
41 CRC, ‘General Comment No 8’ (n 20); CRC, ‘General Comment No 13’ (18 April 2011) UN Doc CRC/C/GC/13 [17].
42 CRC, ‘General Comment No 8’ (n 20) [22].
43 ibid [34].
44 e.g. ibid [18]; CRC, ‘General Comment No 13’ (n 41) [22].
45 UNCHR, ‘Report of the Special Rapporteur on Torture’ (2002) UN Doc A/57/173 [53].
46 See e.g. European Committee of Social Rights, Association for the Protection of All Children (APPROACH) Ltd v Ireland Complaint no 93/2013 (2 December 2014) [50]; Juridical Status and Human Rights of the Child, Advisory Opinion OC-17, Inter-American Court of Human Rights Series A No 17 (28 August 2002) [87]; Report on Corporal Punishment and Human Rights of Children and Adolescents, Inter-American Commission on Human Rights OEA/Ser.L/V/II.135 Doc. 14 (5 August 2009) [3]. Also the African Committee of Experts on the Rights and Welfare of the Child and the UN Committee on Economic, Social and Cultural Rights has recommended states to abolish the practice of corporal punishment: e.g. African Committee of Experts on the rights and welfare of the child, Concluding Recommendations on the Liberia report on the status of implementation of the African Charter on the Rights and Welfare of the Child (24th Session 1–6 December 2014); Concluding observations on the combined second and third periodic reports of Armenia (16 July 2014) UN Doc E/C12/ARM/CO/2–3 [19].
47 Seven individuals v Sweden (App no 8811/79) (1982) 29 DR 104.
48 A v the United Kingdom (App no 25599/94) ECHR 23 September 1998 [21]–[22].
49 Again, under the CRC no minimum level of severity applies. The ECtHR has applied the concept of a minimum level of severity in cases concerning torture or ill-treatment, while in private life cases it rather focuses on whether the act or inaction of the state is sufficiently closely related to the private life of the applicant. In private life cases concerning violence, the requirement for a minimum level of severity is still implicit: see e.g. Sentges v the Netherlands (App no 27677/02) ECHR 8 July 2003 (admissibility decision) on failure to provide a robotic arm to a person with a disability; B v Moldova (App no 61382/09) ECHR 16 July 2013 [71].
50 Collins and Akaziebie v Sweden (App no 23944/05) ECHR 8 March 2007 (admissibility decision). Similarly, Committee against Torture, ‘General Comment No 2’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) UN Doc HRI/GEN/1/Rev.9 (Vol II) [18].
51 Tyrer v the United Kingdom (App no 5856/72) ECHR 25 April 1978 [29]; Costello-Roberts v the United Kingdom (App no 13134/87) ECHR 25 March 1993 [36].
52 e.g. TM and CM v the Republic of Moldova (App no 26608/11) ECHR 28 January 2014 [41]; M and M v Croatia (App no 10161/13) ECHR 3 September 2015 [135]. Both cases concern domestic violence.
53 Z and Others v the United Kingdom (App no 29392/95) ECHR 10 May 2001; RIP and DLP v Romania (App no 27782/10) ECHR 10 May 2012; M and M v Croatia (n 51) [135].
54 Nielsen v Denmark (App no 10929/84) ECHR 28 November 1988. The case concerned hospitalisation of a child against his will. In the end, the Court found that this was a responsible exercise by his mother of her custodial rights in the interest of the child. Similarly, Human Rights Council (HRC), ‘General Comment No 17’ in ‘Note by the Secretariat Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) UN doc HRI/GEN/1/Rev.9 (Vol I) [6].
55 e.g. Bevacqua and S v Bulgaria (App no 71127/01) ECHR 12 June 2008 [83]–[84]; Eremia v Republic of Moldova (App no 3564/11) ECHR 28 May 2013 [78]–[79]. See also CRC, ‘General Comment No 8’ (n 20) [11].
56 e.g. Eremia v Republic of Moldova (n 54) [78]–[79]. The case concerned inter alia the authorities’ failure to protect two girls against the verbal violence of their father who ill-treated their mother in front of them.
57 Costello Roberts v the United Kingdom (n 51) [36]. Today, it would at the very least be considered degrading, cf M and M v Croatia (n 51) [135].
58 Bevacqua and S v Bulgaria (n 55) [83]–[84].
59 In a UK Government report, experts criticised the focus on high-risk cases under the MARAC system, which is also in use e.g. in the Nordic countries. They held that this led to authorities neglecting prevention: see House of Commons Home Affairs Committee, ‘Domestic Violence, Forced Marriage and “Honour”-Based Violence’ Sixth Report of Session 2007–08, vol I, HC 263-I 115.
60 Vulnerability of children has been explored in e.g. Francesca Ippolito, ‘(De)Constructing Children's Vulnerability under European Law’ in Francesca Ippolito and Sara Iglesias Sánchez (eds), Protecting Vulnerable Groups: The European Framework (Bloomsbury 2015); Aleksandra Timmer, ‘A Quiet Revolution: Vulnerability in the European Court of Human Rights’ in Martha Albertson Fineman and Anna Grear (eds), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate 2013); John Tobin, ‘Understanding Children's Rights: A Vision beyond Vulnerability’ (2015) 84 Nordic Journal of International Law 155.
61 e.g. Council of Europe, Recommendation CM/Rec(2009)10 on integrated national strategies for the protection of children from violence (18 November 2009).
62 Francesca Ippolito and Sara Iglesias Sánchez, ‘Introduction’ in Ippolito and Iglesias Sánchez (n 60) 1, 6.
63 B v the Republic of Moldova (n 49) [30], referring to the report of the Special Rapporteur on violence against women on her visit to Moldova (8 May 2009) UN Doc A/HRC/11/6/Add.4.
64 So is art 22(4) of EU Directive 2012/29/29 on victims of crime, which requires special protection primarily in criminal proceedings for children who are victims of crime. The Preamble [38] clarifies that children and other persons who are vulnerable or at high risk should also be provided with other specialist support and legal protection. It suggests specific services for children.
65 HRC, ‘General Comment No 17’ (n 54) [1].
66 e.g. Z and Others v the United Kingdom (n 53) [73]; A v the United Kingdom (n 48) [22].
67 HRC, ‘General Comment No 17’ (n 54) [6].
68 In fact, the involvement of authorities as such may increase the risk of violence, as it can be seen as adding to the shame of the family and/or confirming the family's worst suspicions as to what the victim has actually done.
69 I do not argue here that other aspects of vulnerability (such as the honour context) would have an impact on the minimum level of severity, only that the young age of the victim should be taken into account. International case law does not indicate that possession of an additional characteristic leading to vulnerability would entitle children to a further lowering of the level of severity: e.g. Đorđević v Croatia (App no 41526/10) ECHR 24 July 2012, where the child's disability (around which the case largely centred) was only discussed by the ECtHR in relation to art 14, not in assessing the minimum level of severity of violence under arts 3 and 8.
70 Istanbul Convention art 18(2) expressly requires appropriate mechanisms for cooperation between relevant state agencies.
71 CAS and CS v Romania (App no 26692/05) ECHR 20 March 2012 [78].
72 ibid.
73 See cases cited in this and the previous section.
74 Benedetto Conforti, ‘Exploring the Strasbourg Case-Law: Reflections on State Responsibility for the Breach of Positive Obligations’ in Malgosia Fitzmaurice and Danesh Sarooshi (eds), Issues of State Responsibility Before International Judicial Institutions (Hart 2004) 129, 132, 134.
75 In e.g. CAS and CS v Romania (n 71) [82], the Court regretted that the minor rape victim in the case was not offered counselling. It added that the authorities’ suggestion that the family move was not an adequate measure of redress and reparation as required by the CRC. The Court found a violation of arts 3 and 8 in the case.
76 e.g. González et al v Mexico, Inter-American Court of Human Rights Series C No 205 (16 November 2009), [540]–[543].
77 Articles 12 to 14 and art 16. Cf the demand to try to change discriminatory attitudes of perpetrators in Đorđević v Croatia (n 68) [148].
78 E and Others v the United Kingdom (App no 33218/96) ECHR 26 November 2002 [99].
79 Cf E and Others v the United Kingdom (n 78) [99], [100].
80 Đorđević v Croatia (n 69) [138], [139].
81 See Bevacqua and S v Bulgaria (n 55); Eremia v Republic of Moldova (n 55).
82 A v Croatia (App No 55164/08) ECHR 14 October 2010 [55], [76].
83 CRC, ‘General Comment No 13’ (n 41) [73]. General Comment No 19 elaborates further on resourcing: see (20 July 2016) UN Doc CRC/C/GC/19.
84 UNCHR, ‘Report of the Special Rapporteur on Violence against Women’ (2006) UN Doc E/CN.4/2006/61 [35].
85 See e.g. Noora Ellonen and Tarja Poso, ‘Hesitation as a System Response to Children Exposed to Violence’ (2014) 22 International Journal of Children's Rights 730.
86 MAK and RK v the United Kingdom (App nos 45901/05 and 40146/06) ECHR 23 March 2010 [35].
87 RK and AK v the United Kingdom (App no 38000(1)/05) ECHR 30 September 2008 [36].
88 CRC, ‘General Comment No 13’ (n 41) [47(c)(vi)], referring inter alia to Olsson v Sweden (No 1) (App no 10465/83) (1988) Series A no 130 [81].
89 CRC, ‘General Comment No 8’ (n 20) [40], [41].
90 See K and T v Finland (App no 25702/94) ECHR 12 July 2001 [192]–[194] and Bevacqua (n 55) [65].
91 K and T v Finland (n 90) [173].
92 RMS v Spain (App no 28775/12) ECHR 18 June 2013 [71], [85].
93 TP and KM v the United Kingdom (App no 28945/95) ECHR 10 May 2001 [71], [72], [78], [80], [83] provides useful indications as to the considerations to be taken into account by national authorities when preparing to take a child into protective care during the time of investigation. These notably include adequate involvement of parents in the decision-making process but not automatic access to information that could place the child at risk, measures that do not last longer than necessary and an obligation to try to rehabilitate the child and parents.
94 Istanbul Convention, art 31. This is also recognised by the ECtHR: see K and T v Finland (n 90); Bevacqua (n 55).
95 CRC, ‘General Guidelines for Periodic Reports’ (1996) UN Doc CRC/C/58 [63].
96 CRC, ‘General Comment No 13’ (n 41) [44], [47(c)].
97 See van Bueren (n 22).
98 Cf Osmanoğlu et Kocabaş v Switzerland (App no 29086/12) ECHR 10 January 2017 [96]–[101], where the ECtHR held that freedom of religion does not entail that parents can prohibit their daughters from taking part in mixed swimming lessons at school. The Court notably stressed the importance of physical education to children's development and health.
99 Cf requirements in relation to corporal punishment, CRC, ‘General Comment No 8’ (n 20) [40].
100 But see CAS and CS v Romania (n 71) [82]; Đorđević v Croatia 8 (n 69) [148].