INTERVIEW: Governments should think twice before putting children in detention – UN expert Manfred Nowak

17 February 2017 – Despite progress in the realization of children’s rights, as set out in the Convention on the Rights of the Child, which entered into force on 2 September 1990, too many commitments remain unfulfilled. This is particularly true for children deprived of liberty, who often remain invisible and forgotten.

To address this situation, the United Nations General Assembly, by resolution 69/157 adopted on 18 December 2014, invited the Secretary-General to commission an in-depth global study on children deprived of liberty.

In October 2016, Manfred Nowak of Austria, an independent expert, was selected to lead the study.

Mr. Nowak is professor of international law and human rights at the University of Vienna and Secretary-General of the European Inter-University Centre for Human Rights and Democratisation in Venice. He was previously the United Nations Special Rapporteur on Torture and a member of the UN Working Group on Enforced or Involuntary Disappearances.

He spoke with UN News on his new mandate. The excerpts from the interview follow.

UN News: What is the definition of children deprived of liberty?

Manfred Nowak: It concerns the right to personal liberty. Whenever I put you in a particular place, and lock the door, then I deprive you of your right to personal liberty. Most people think about prisons and jails. But in reality, there are many more places where adults and children are being detained. In the Optional Protocol to the Convention against Torture of 2002, the United Nations provided a definition. [Deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority.] This instrument created the UN Subcommittee on Prevention of Torture and national preventive mechanisms that inspect prisons, psychiatric hospitals, police lockups, and also special detention facilities for children and young persons.

UN News: Can you briefly explain the context in which your mandate was created?

Manfred Nowak: There are many children deprived of liberty, and it is a very serious problem because you destroy the lives of children if you lock them away. Unfortunately, that’s the case in too many countries. In some States, the minimum age of criminal responsibility is very low. When I was UN Special Rapporteur on Torture, I found many kids of nine, ten and eleven years old locked away in prisons. There are many unaccompanied minors, migrant and refugee children in Europe and other areas of the world who are deprived of liberty and put in migration detention centres. Other kids are held in special institutions for children with disabilities, street children, orphans, drug users, or children who are regarded as difficult to educate. In the context of armed conflicts, there are child soldiers and children involved in terrorism and other national security crimes. Then we have children, in many countries, who live with incarcerated parents in prison.

There are many different reasons why children are deprived of liberty, but we simply don’t know how many children [are locked away around the world]. We have no real estimate, but suspect that more than a million children are kept in detention, despite the fact that the Convention of the Rights of the Child says in principle, children should not be detained, and detention should be a measure of last resort.

But in reality, many children are locked away for many years. In order to shed light on the phenomenon of children deprived of liberty, we need to gather data. We request Governments, different UN agencies, non-governmental organizations and other stakeholders to provide reliable data, from all countries in the world, about how many children are actually deprived of liberty.

We also wish to identify the alternatives and best practices. There are many countries that have done quite a lot to reduce the number of children in detention. Others could learn from them.

UN News: What differentiates this study from other studies on children?

Manfred Nowak: There are two major global studies on children. First is an expert study in 1996 by Graca Machel about children in armed conflict, primarily child soldiers. That study raised awareness about the seriousness of this issue, and led to the creation of the mandate of the Secretary-General’s Special Representative on Children and Armed Conflict. Ten years later, Paulo Sérgio Pinheiro conducted a global study on violence against children. Again, this raised awareness that so many children are subjected to violence in families, schools and all kinds of circumstances. Again, this became a major issue for the UN.

My study is a third, and a follow-up to those previous two studies. In principle, locking children up amounts to structural violence against children. It should only be allowed as an exceptional measure and only for a very short period of time. I hope this global study will raise awareness of a hidden subject of serious violations of the rights of children.

UN News: What are some challenges in conducting this study?

Manfred Nowak: This study is not about naming and shaming of countries. It is not an exercise that says that’s a good country, that’s a bad country. We are trying to collect data. We hope that governments will cooperate. Of course, there are always governments that are not happy to provide data. But the real challenge is that data are not simply available. So, the process of conducting this study should raise awareness within governments that it is necessary to know how many children are deprived of liberty.

I’m working in close cooperation with UNICEF [the United Nations Children’s Fund], which has offices in some 160 countries. They will assist governments in collecting those data. Collecting data is also in the interest of Governments because they can learn from others and from best practices in order to reduce the number of children in detention. It is also more cost-effective to provide them with social care or put them in small homes with foster parents rather than institutionalizing them.

UN News: You were UN Special Rapporteur on Torture from 2004 to 2010. How does your experience as the Special Rapporteur help fulfil your new mandate?

Manfred Nowak: One of the main reasons why I was chosen is that I have six years of experience as Special Rapporteur on Torture. During those six years, I carried out 18 official fact-finding missions to countries in all different regions of the world. If you want to investigate torture, you have to go into closed institutions, police lockups, prisons, and psychiatric institutions. So I spent most of my time in closed institutions. I didn’t only look for torture and other forms of ill treatments. I also looked at the conditions of detention. In many countries, the conditions of overcrowded, dirty prisons and other detention facilities are only to be defined as “inhuman and degrading.” Children who are locked up may be traumatized for the rest of their lives. These children need social care and love. They don’t need to be incarcerated.

UN News: When do you expect to complete the study and what contributions will this study make to the protection of child rights?

Manfred Nowak: I’m very confident that as soon as I get the budget to fully start working on the study, it will really have an impact. It will create awareness that so many children who are in reality deprived of liberty should not be there. It will have preventive effects in future. I hope that in the future Governments will think twice before putting children in detention for whatever reasons. It is important to get children involved who have been detained. We want those children to speak out. We want to also show there are best practices in all regions and there are viable alternatives.

It took about two years to select the independent expert who leads the study. Developing methodologies takes much longer. So honestly speaking, I will not be able to finalize the study until the summer of 2018. It also depends how quickly governments will provide comparative data. While I intend to submit an interim report, the General Assembly will hopefully extend the two-year deadline for the final submission of the global study.

UN News: What kind of childhood did you live, and what influence if any, did that have on your becoming a lawyer?

Manfred Nowak: I had a very happy childhood with my parents and with my siblings. I grew up in different areas of Austria. My childhood experience did not lead to becoming a lawyer. My father was a chemical engineer, and my mother had studied English and German and became a teacher in high school. My father wanted me to study at a technical university, and I wanted to study filmmaking. I did different studies, including law, which was purely by incident. My interest in human rights grew toward the end of my various studies.