Juvenile justice is a significant global issue and civil
society has played a pivotal role in responding to it, both historically and in
contemporary times. It has been estimated that around the world, there are
currently over one million children who are deprived of their liberty (DCI
2010). Many of those children are subjected to “ineffective systems” and
“deplorable institutions” which deny them of their basic rights to procedural
protections at “every stage of the criminal justice process” (Kline 2005: 45).
They are subjected to prisons that are overcrowded, violent and demoralizing,
removed them from their family and community networks, and prevented from
pursuing educational or vocational objectives, thus rendering any hope of their
rehabilitation next to impossible. (PRI 2010) Several of these children are
incarcerated with adults, despite studies that have shown that children housed
with adults in penitentiaries are five times more likely to be sexually
assaulted, twice as likely to be beaten, and fifty percent more likely to be
attacked with a weapon than children housed in juvenile facilities. (DCI 2007)
Many of those incarcerated are subjected to lengthy pre-trial detention, and
are often detained for minor non-violent offenses such as begging and
loitering; activities not even considered offenses when committed by adults.
(DCI 2010) Clearly, juvenile offenders must be accorded rights so as to ensure
that they not become so scarred that any attempts at rehabilitating them would
be futile.
Over the past twenty-five years, we have
seen the global community respond in unprecedented ways in an effort to develop
international standards on juvenile crime. In addition to adopting several
non-binding guidelines on juvenile justice, the vast majority of governments
have ratified the binding Convention on the Rights of the Child, or CRC, which
includes a number of provisions related to the protection of juveniles. Key to
the shaping, implementing, monitoring and enforcing of these international
standards has been global civil society. This paper examines the transnational
issue of juvenile crime and the treatment of juvenile offenders, the effect of
civil society organizations upon the shaping of international law and standards
on the issue, and the impact of these organizations on advancing the cause of
juvenile justice reform today. It is without question that the contributions of
global civil society to the issue of juvenile justice have and will continue to
have a significant impact on the lives of millions of children around the world
in a way that no single government or intergovernmental organization would have
been capable of accomplishing on its own.
A juvenile offender refers to an
individual who is “criminally responsible but has not reached criminal
majority” (Junger-Tas 2006: 505). From its early roots in the sixteenth and
seventeenth centuries, the belief in community responsibility for juvenile
offenders gradually emerged into a separate system of juvenile justice, which
generally sought to empower juvenile judges with vast discretionary power,
emphasize treatment over punishment, and provide for the maintenance of
confidentially in court proceedings in light of the belief that the offending
juvenile is a “victim of circumstances and his environment” and is amenable to
rehabilitation (Junger-Tas 2006: 509). It should be noted that in modern times,
governments vary with respect to the maximum age an offender will be treated as
a juvenile before being subject to adult penalties. (Junger-Tas 2006: 505)
However, a plethora of international legal texts, including a convention, as
well as several General Assembly resolutions and other commentary on the
subject recognize default provisions which set the age at which a person ceases
being a juvenile to be eighteen. For instance, the protections afforded by the
CRC apply to “every human being below the age of eighteen years unless, under
the law applicable to the child, majority is attained earlier” (Kline 2005:
45). Although the convention provides an exception for national law that varies
from this standard, the language used in the convention indicates the
presumption that the protections afforded to juveniles continue until their
eighteenth birthday. Additionally, a series of non-binding guidelines as well
as commentary on the subject by UN bodies and NGOs have made reference to the
protections of the CRC as applying to all persons under the age of eighteen
regardless of the exception clause. For instance, the 1990 United Nations Rules
for the Protection of Juveniles Deprived of their Liberty defines a juvenile as
“every person under the age of 18” (LNF 1990: 1). Additionally, a 2008 guidance
note issued by the Secretary-General made mention of the CRC as applying to
“all persons under the age of eighteen” (UNSG 2008: 1). It should also be noted
that the CRC mandates that parties seek the “establishment of a minimum age
below which children shall be presumed not to have the capacity to infringe the
penal law,” which ranges from age six to sixteen depending on the country
(UNICEF 2004: 1). Several
non-governmental organizations, including Penal Reform International (PRI)
advocate for the minimum age of criminal responsibility to be as high as
possible and for eighteen years of age to be the threshold below which a child
is treated as a juvenile. (PRI 2000)
Non-governmental organizations have played
a significant role in bringing issues of juvenile delinquency to the forefront
and have been central to the response of global civil society to the issue.
There is perhaps no greater evidence of this than their role in helping in the
design of a comprehensive set of juvenile justice standards and lobbying
policymakers for their inclusion into the CRC. In fact, the very idea of a
convention seeking to protect children’s rights sourced back to the efforts of
Save the Child International Union (SCIU), a non-governmental organization
first established after World War I by Eglantyne Jebb, who founded the
organization in response to her desire to protect children ravished by the war.
(Cohen B 1990) Through the efforts of its founder, SCIU drafted its own
“Declaration of Geneva,” which was a declaration on the rights of the child and
which was later incorporated into the League of Nations (Cohen B 1990: 138).
This declaration became the precursor to the CRC and paved the way for the
emergence of a rights-based approach to children’s issues. (Cohen B 1990;
Kumari 2004)
Civil society played a significant role both
in the formation of the first draft of the convention, as well as in the review
process that was undertaken during the proposed convention’s second reading.
(Cohen A 1990) Whereas the immediate proposal for a convention protecting
children’s rights came about as the result of a 1979 Polish initiative and was
initially drafted by a “Working Group” of states through the Commission of
Human Rights, proposals and recommendations by the NGO community had a significant
influence, and were embodied in a series of reports submitted by the so-called
“NGO Ad Hoc Group on the Drafting of the Convention on the Rights of the
Child,” or “NGO Group” (Cohen A 1990: 4-5; Cohen B 1990: 139). While in the
initial stages of the drafting process, NGOs were largely operating
independently of one another, it wasn’t until the early 1980s that NGOs began
to work together to promote their common cause. (Cohen B 1990) In 1982, NGOs
submitted a jointly-drafted position paper recommending certain changes to the
Polish proposal. (Cohen B 1990) A year later, they decided to forge an alliance
so as to “systematically monito[r] progress in the drafting of the Convention”
(Cohen B 1990: 139). The “NGO Group”
that formed was comprised of approximately thirty NGOs with ECOSOC Consultative
Status, which met twice per year to make proposals to state delegations
regarding the Convention (Cohen A 1990: 5). The recommendations they made with
respect to juvenile justice included provisions calling for the prohibition of
the life imprisonment of a juvenile without the possibility of parole,
discouraging incarceration as a method of punishing a juvenile, and the right
of the juvenile to maintain parental contact. (Cohen A 1990) Although many of
their proposals were “virtual replications” of those of governments, the NGO
Group helped to push governments to make accommodations for stronger language
prohibiting certain practices (Cohen A 1990: 5). One of the NGO Group’s most
significant achievements was its successful advocacy for a replacement of the
initially-proposed single-article calling for juvenile justice standards with
two separate articles; the first dealing with broad procedural rights and the
second dealing more directly with substantive criminal justice concerns. (Cohen
B 1990)
NGOs had an even greater impact during the
“second reading” and review process that ensued (Cohen A 1990: 1-2). While
initially the Working Group had proposed that the Secretary-General conduct a
“technical review” of the proposed Convention and make recommendations for any
alterations it deemed appropriate; the NGO community was concerned that such a
review would omit and overlook a number of its concerns, and as a result, it
took the initiative and compiled the Independent Commentary: United Nations
Convention on the Rights of the Child which was a collection of essays on a
variety of issues on the subject, and distributed it to all government
delegations (Cohen A 1990: 2). Published by Defence for Children International,
the Independent Commentary advocated for protections for juveniles
against ex-post facto laws, a
juvenile’s right to cross-examine witnesses and their right to consult with an
interpreter. (Cohen A 1990) Ultimately, it was the alliance between NGOs formed
by the creation of the NGO Group that served to transform their image as
perceived by government delegations from “a cluster of individual
organizations, each with its own particular ax to grind,” to a coordinated body
of organizations just as “anxious,” capable of and interested in “creat[ing] an
effective, comprehensive treaty in the shortest time possible” (Cohen B 1990:
145). In the end, the alterations that were made to the initial draft during
the second reading and review process indicated that the Independent
Commentary had significant influence over government delegations based on
its ability to illuminate the weaknesses of the first draft and elucidate the
need for a number of textual changes. (Cohen A 1990) As a result, the NGO
community played a significant role in the design of the CRC and the juvenile
justice provisions embodied within it while at the same time working
side-by-side governments to develop language to which they could commit. Based
in large part on the efforts of civil society, the CRC stands among the most
widely-ratified and “universally accepted human rights instrument[s]” in the
world today; as of 2004, only two UN member states had refused to adopt it
(Kumari 2004: 23).
In addition to the CRC, NGOs have been
substantial players in the drafting and implementation of a number of
non-binding resolutions and guidelines, many of of which have served to advance
juvenile justice protections. For instance, Defence for Children International
(DCI) was actively “involved in the debates” leading to the formation of the UN
Standard Minimum Rules for the Administration of Juvenile Justice (the 1985
Beijing Rules), the UN Guidelines on the Prevention of Juvenile Delinquency
(the 1990 Riyadh Guidelines), and the UN Rules for Protection of Juveniles
Deprived of their Liberty (the 1990 Havana Rules) (Vila 2005: 160). During the
formation and implementation process of each of these guidelines, DCI played a
significant role in advancing core principles of juvenile justice, including
the notion that juvenile justice should function “in the best interest of the
child,” should focus on “re-integration” and should, insofar as possible,
involve the use of “alternatives to prison” (Vila 2005: 162). If incarceration
is necessary “as a last resort,” it should be imposed “for the shortest time as
possible” and should not subject an incarcerated juvenile to any form of
“torture, cruel, inhumane and humiliating treatment,” inter alia (Vila 2005: 162). As a result of NGO efforts such as
this, the General Assembly “note[d] with extreme appreciation” the “valuable
work” of Defence for Children International, Amnesty International, and the
Swedish Save the Children foundation by mentioning their contributions to the
drafting of the Havana Rules within the text of the resolution adopting the
guidelines. (LNF 1990: 1) Accordingly, NGOs have played a significant role not
only with respect to the drafting and implementation of the CRC, but have also
been key players in the design and execution of U.N. guidelines and resolutions
calling for standards on juvenile justice.
Additionally, the text of the resolution
adopting the Beijing Rules called upon “non-governmental organizations to
collaborate with the Secretariat, and to take the necessary measures to ensure
a concerted and sustained effort… to implement the principles contained in the
Beijing Rules” (UNGA 1985: 3). Additionally, the Riyadh Guidelines called for
“mechanisms for the appropriate co-ordination of prevention efforts between
governmental and non-governmental agencies” (OHCHR 2007: 2). The language used in these guidelines
emphasizing cooperation between the UN and the NGO community recognize the
extensive role accorded to civil society in promoting juvenile justice reform
and indicate an increasing willingness on the part of the UN to work with civil
society to achieve its objectives.
In recent years, international NGOs
focusing on juvenile justice issues have sought to monitor and coordinate the
enforcement of the provisions of the CRC as well as the other non-binding
guidelines and resolutions. Some of the most influential organizations have
been Defence for Children International (DCI), Penal Reform International (PRI)
and the International Juvenile Justice Observatory (IJJO). Additionally, the
1997 formation of the Interagency Panel on Juvenile Justice represents an
effort to bring UN agencies and NGOs together to engage in dialogue, debate and
discussion on juvenile justice issues and to be a forum for them to coordinate
their efforts. (IJJP 2010: 1) Similarly, the NGO Group for the CRC and
existence of IJJO ‘Consultative Status’ as a method by which NGOs can affiliate
with IJJO represent forums bringing NGOs together to coordinate their efforts
at achieving juvenile justice reform. (CRIN 2010; IJJO 2010)
Defense for Children International (DCI)
is one organization that has been particularly prominent in dealing with issues
of juvenile justice. In addition to its significant role in the drafting of the
CRC, DCI has been active in lobbying governments to support it. (DCI 2010)
DCI’s primary mission is to “protect, defend and advocate for the rights of
children and young people in conflict with the law,” and it pursues its
objectives through a variety of mechanisms (DCI 2010: 1). These include its
running of “socio-legal defence centres” which provide juveniles accused of
criminal activity with legal representation, with a special focus on juveniles
detained on faulty procedural grounds (DCI 2010: 1). Furthermore, DCI maintains
a significant “advocacy and lobby[ing]” effort aimed at advocating for the
establishment of both international and national policies which best promote
the interests of the child and lobbying governments to induce compliance with
their obligations under international law. (DCI 2010: 1). Additionally, through
its several “national sections” spread across the world, DCI works on the
ground with local law enforcement officials including judges, prosecutors and
the police to build capacity through the providing of training in strategies
for “promoting children’s human rights”
(DCI 2010: 1, DCI 2007: 5). Sixty-five percent of DCI’s “national
sections” are committed to working in the field of juvenile justice (DCI 2007:
7).
DCI maintains a “research and monitoring”
component which aims to determine if international standards are being upheld,
and hold governments accountable for violations by calling upon the Human
Rights Council and others to “take action” against them (DCI 2010: 1). To this
end, in 2007 DCI released a report entitled From
Legislation to Action: Trends In Juvenile Justice Across 15 Countries, in
which it examined the progress made to date by several countries in adhering to
the international standards to which they have agreed. (DCI 2007) The report
came to the conclusion that since the adoption of the CRC, the actual
implementation of the juvenile justice provisions embedded within it has been
“uneven” (DCI 2007: 4). It attributed the gap between commitment and
implementation to a “lack of trained professionals,” “lack of government resources
and political will,” “lack of education on the rights of the child,” and
“public fears resulting in pressure to institute punitive measures” against
juvenile offenders (DCI 2007: 21).
DCI found that in a number of the
countries surveyed, juveniles can be detained for periods of time so great that
it appears “detention is not used as a measure of last resort” as required by
the CRC (DCI 2007: 38). For instance, in
Costa Rica, a juvenile between the ages of twelve and fifteen can be sentenced
to up to ten years imprisonment, and in France and Argentina, judges are in
several circumstances free to sentence juveniles to the same penalties as they
would adults (DCI 2007) Regarding compliance with obligations under the CRC
that member states provide for humane conditions of detention, DCI found a gap
between north and south, noting that juveniles in the developing world were
often held in overcrowded prisons, combined with adults, and given insufficient
health care and nutrition. With respect to efforts in place to prevent juvenile
delinquency from occurring in the first place, DCI noted that regions differed
in their establishment of a “comprehensive prevention strategy” aimed at
addressing “broader social and economic injustices such as poverty and discrimination”
(DCI 2007: 27). Whereas the European countries surveyed had the most programs
directly aimed at preventing juvenile crime, Latin America’s programs were part
of broader efforts aimed at reducing street violence, and in Africa, few
programs were found that were directly relevant to delinquency prevention, and
attributed the differences to growing concerns in Europe about the need to
address the juvenile crime, widespread concern in Latin America over violence
and insecurity, and a lack of resources in Africa. (DCI 2007)
Armed with findings such as these, DCI
advocates change and promotes accountability. For instance, DCI recently led a
coalition of NGOs reporting to UN Committee Against Torture regarding the
torture of Palestinian children detained by Israeli authorities. (DCI 2009) DCI
therefore recognizes there are often significant gaps between a country’s
commitment to a particular legal obligation and the actual execution of that
obligation on the ground, and even decades after the adoption of the CRC, it continues to play a significant role in
monitoring and enforcing juvenile justice standards on a global scale.
Another influential non-governmental
organization has been Penal Reform International (PRI). In its 10 Point Plan for Juvenile Justice, PRI
advocates for alternatives to incarceration, youth courts, detention only as a
measure of last resort and for limited amounts of time, and calls for
inspections of detention facilities. (PRI 2010) In addition to its work on
lobbying for legal reform on juvenile justice issues at an international and
national level, PRI sets its task on working to implement programs in specific
communities that promote the well-being of children in conflict with the law.
(PRI 2010) Among its programs have been efforts in the Middle East and North
Africa to build capacity and train law enforcement on children’s rights issues,
work in Romania and Bulgaria to ensure the equal treatment of Roma juvenile
offenders and to develop alternatives to detention specifically with respect to
juvenile offenders accused of drug offenses, an effort in Russia and Ukraine to
improve juvenile prison conditions, and work in the South Caucasus region to
provide vocational skills and training to young probationers. (PRI 2010) All of
these efforts aim at protecting children and bringing states into compliance
with their obligations under international law.
A third NGO playing a particularly
significant role on juvenile justice issues is the International Juvenile
Justice Observatory (IJJO). The IJJO sets its main objective on “the
development of minors and young people so they can acquire the skills they need
to become free citizens outside the circuits of exclusion and imprisonment”
(IJJO 2010: 1). In order to achieve that objective, IJJO focuses on developing
a “permanent, international forum of analysis, knowledge and mutual reflection
on legislation and models of intervention,” to “contribution to improvement of
intervention” and to “promote the creation of an international network of juvenile justice observers” (IJJO 2010: 1).
Among IJJO’s core activities are efforts
to create a “space” to serve as a “meeting point” among interested parties, to
aid in the “diffusion of minimum standards” and to provide for the “promotion,
production and dissemination of research” (IJJO 2010: 1). To that end, IJJO
maintains a comprehensive database on its website which provides for the
instantaneous download of over 25,000 entries of documents, news clippings,
events, organizations and links related to juvenile justice, and provides for
an interactive online community that enables collaboration between interested
parties. (IJJO 2010: 1) IJJO also maintains an “International School for
Juvenile Justice,” which serves as a mechanism of generating and disseminating
knowledge and offers online coursework to professionals in the socio-legal
community focusing on practical intervention methods (ISJJ 2010: 1).
One important focus of IJJO’s is on a
series of campaigns which seek to advance particular components of its mission.
For instance, in its campaign for “Legal Assistance for Children in Conflict
with the Law,” it sets its primary objectives on “raising public awareness” of
juvenile rights, and in “creating a global database” on legislation, in proving
“the non-compliance of some states” and to “motivate states to update their
national legislation” to comport with the CRC (IJJO 2010: 1). On the campaign’s
website, participants can access country-by-country profiles, indicating
progress made and challenges that remain in reforming juvenile justice. A
second campaign launched by the IJJO is entitled “Two decades of Juvenile
Justice: Improvements Since the Adaptation of the Rights of the Child,” which
represents an effort by IJJO to “take stock, analyze and assess” the
contributions of the CRC to the lives of children on the ground at its
twenty-year milestone (IJJO 2010: 1). Therefore, global civil society has
continued to play a significant role in shaping, implementing, monitoring and
enforcing juvenile justice reform even decades after the passage of the CRC.
In addition to the contributions of
individual non-governmental organizations, three networks of actors have also
contributed significantly to advancing the cause of juvenile justice reform.
The first is the Interagency Panel on Juvenile Justice (IPJJ). Established by
ECOSOC Resolution 1997/30, the IPJJ focuses its efforts on providing “technical
advice and assistance in juvenile justice” so as to promote international
standards and norms on the topic (IPJJ 2010: 1). The IPJJ brings together
several UN agencies including UNICEF and UNDP, as well as NGOs including DCI,
PRI and IJJO. The IPJJ serves as a hub of data and statistics on juvenile
justice from various countries, and offers several events, conferences and
training programs aimed at the development of “common tools” and “common
positions” among its members (IPJJ 2010: 1).
A second network focusing on juvenile
justice reform is the NGO Group for the CRC. (CRIN 2010: 1) The NGO Group for
the CRC is the continuation of the original “NGO Group” which played a
significant role in drafting and implementing the CRC in the 1980s (CRIN 2010:
1). Its primary objectives are to “promote and facilitate… the full
implementation of the Convention,” to “contribute to the monitoring work of the
Committee on the Rights of the Child” and to “facilitate a flow of information”
between the United Nations and the NGO community (CRIN 2010: 1). The NGO
Group’s Liaison Unit is responsible for coordinating the involvement of the NGO
community in the working group meetings of the Committee on the Rights of the
Child, distributing information to the NGO community on recent developments in
juvenile justice, and provides training and tools to NGOs to enhance their
monitoring and networking abilities. (CRIN 2010: 1).
Finally, as part of its effort to
contribute to a “global juvenile justice without borders,” the International
Juvenile Justice Observatory (IJJO) has itself set up a system whereby
organizations ranging from other NGOs to
universities and public administrations can apply for and receive “IJJO
Consultative Status” if their core values comport with those of the IJJO (IJJO
2010: 1). In addition to active involvement in the field of juvenile justice,
NGOs seeking IJJO Consultative Status must be officially registered with the
government in which its headquarters are located, must have been in existence
for three years or more, must have a board of directors and a democratic and
transparent decision-making system, and public administrations must function
primarily to carry out juvenile justice tasks. (IJJO 2010: 1) By offering a
method by which other interested parties can affiliate with the organization,
IJJO creates an “international space” by which it can enhance its impact on the
global community. (IJJO 2010: 1). Therefore, civil society organizations
focusing on juvenile justice reforms have not only tackled the issue on their
own, but have joined forces with other non-governmental organizations,
intergovernmental organizations and governments to advance the cause of reform.
Since the adoption of the CRC and the
related General Assembly Resolutions which deal with juvenile justice, the
trajectories of innumerous children’s lives have been improved. As a result of
these efforts, a number of governments have set out to revise their domestic
law so as to comport with the new international standards and norms. For
instance, Peru as of 1993, Italy as of 1994, Malawi as of 1995, Kazakhstan and
Poland as of 1997, Morocco as of 1999, Kenya as of 2001, and Mali as of 2002
each abolished provisions in their domestic law allowing judges to sentence
juveniles to life imprisonment without parole. (IJJO 2009) Furthermore, both
Yemen as of 1994 and Mali as of 2002 have set the age of criminal responsibility
to eighteen. (IJJO 2009) Additionally, efforts have been undertaken in recent
years aimed at processing juvenile offenders more quickly and ensuring that
they be considered for alternative sentences to imprisonment, such as in
Germany, England and Wales, and in a number of East Asian countries. (IJJO
2009) Based on these findings, it is clear that the efforts of civil society in
contributing to the drafting and implementation of international legal texts on
juvenile delinquency have been borne out by actual policy change, and have
improved children’s lives for the better.
In sum, efforts at achieving global
juvenile justice reform indicate the growing scope of influence and
responsibility accorded to civil society over the past several decades. Based on an unbridled belief that children
are vulnerable to harm through the the justice system and in need of
protection, NGOs found themselves capable of calling upon transnational
advocacy networks to affect change. In adopting a child-rights framework, the
NGO community paved the way for the emergence of several comprehensive
international legal texts which seek to protect the rights of children in the
criminal justice system. Among the most prominent is the Convention on the
Rights of the Child. In addition to introducing the initial idea for a
convention aimed at protecting children’s rights, NGOs were vital to the
promulgation of the CRC and its underlying policy of offering protection to
juvenile offenders, and they ultimately contributed to its design from its
primary objectives to its specific textual organization, working with
governments to secure its implementation. Since its adoption, civil society has
focused its efforts on closing the gap between commitment and execution, and
NGOs such as DCI, PRI and IJJO have played significant roles in monitoring
compliance, spreading information about its mandates and encouraging national
reforms. Additionally, we have seen NGOs come together in unprecedented ways to
affect change through such alliances as the Interagency Panel on Juvenile
Justice, the NGO Group for the CRC, and through the network of NGOs bearing
IJJO Consultative Status. In the end, the successes of the juvenile justice
campaign can best be measured by the series of national legal reforms made
aiming to protect juveniles and bring states into compliance with changing
international standards and norms. Although significant challenges lie ahead if
universal compliance with legal mandates is to be achieved, it cannot be
doubted that without the contributions of global civil society, the depth and
scope of the progress we see today in actual juvenile justice policy as well as
in the establishment of norms and standards would not have been possible. The
global juvenile justice campaign truly demonstrates the extent to which global
civil society is “setting agendas, negotiating outcomes, conferring legitimacy,
and implementing solutions” on issues of worldwide concern in unprecedented
ways (Simmons 1998: 1).
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