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Statement by Mr. Dennis McNamara, Director, Division of International Protection, UNHCR: A Human Rights Approach to the Protection of Refugee Children (London School of Economics, 14 November 1998)

Speeches and statements

Statement by Mr. Dennis McNamara, Director, Division of International Protection, UNHCR: A Human Rights Approach to the Protection of Refugee Children (London School of Economics, 14 November 1998)

14 November 1998

I would like to thank the London School of Economics for inviting me here today for what I am sure will be a very interesting discussion on the applicability of human rights law to the protection of refugee children. I am particularly pleased to be able to take part in the first Refugee Week to be held in the UK in this special year of the 50th Anniversary of the Universal Declaration of Human Rights, and to have a chance to return to the LSE.

Approximately half of the world's refugees today are children. Figures from some of our current operations around the world illustrate this: 130,000 of the 240,000 Somali refugees in Ethiopia are below the age of 18, as are around 30,000 of the 57,000 Sudanese refugees in Ethiopia. In our operation in Guinea-Conakry, 140,000 of the 240,000 Liberian refugees there are below 18 years of age; while out of the estimated 1.2 million Afghan refugees in Pakistan, nearly half a million are children. In Rwanda, there are more than 300,000 unaccompanied or separated children who have been displaced, which the government recently asked UNHCR and UNICEF to assist.

International recognition of the need for special care and protection for children has long existed. It was first set out in the 1924 League of Nations Declaration on the Rights of the Child. In 1959, the UN General Assembly adopted the Declaration of the Rights of the Child. Regrettably, it took 30 more years for the rights of children to be formulated in a binding international agreement, with the adoption of the UN Convention on the Rights of the Child (the CRC) - now the most widely ratified treaty of its type worldwide (with two notable exceptions).

When we speak of a "human rights approach" to the protection of children - including refugee children - this Convention is the primary human rights instrument and the necessary starting point. All of its articles are equally applicable to refugee children, while the current refugee Conventions do not have specific provisions for children (1). The CRC specifically states that State parties are to respect and ensure the rights set forth in the Convention to each child within their jurisdiction, without discrimination of any kind, a reminder that refugee children are first and foremost children, a fact which sometimes risks being ignored in the midst of the chaos and upheaval of mass forced migration. As international human rights advocates, our task is to ensure recognition that human rights law is equally applicable in the protection of uprooted children, and that a rights-based approach is in fact the essential basis on which to extend protection to refugee children.

The root causes of refugee displacement are invariably linked to conflict, persecution and the denial of human rights. Refugee children, like their adult counterparts, flee to escape war, persecution and man-made upheaval. Children have always been the easiest victims of human rights abuses, but are increasingly targeted, especially in ethnically-based, intra-State conflicts. The 1996 Graça Machel study for the United Nations on the effects of armed conflict on children confirmed that children are no longer just innocent bystanders caught in the crossfire of armed conflict, but are subject to calculated genocide, forced military recruitment, gender-related violence, torture, and exploitation on a systematic and massive scale. [I will never forget the chilling interview with a Serb sniper during the seige of Sarajevo (published, I believe, in The Guardian), in which he said his preferred targets were children and pregnant women, because shooting them got better press coverage!]

Mr. Olara Otunnu, in his capacity as the Special Representative to the Secretary General on children and armed conflict, has followed-up on the Machel report especially by documenting such abuses through field visits to Sri Lanka, the Sudan, and Sierra Leone. His recent reports indicate that some 9 million children worldwide have been killed, injured, orphaned or separated from their parents by conflicts in the past decade. Mr. Otunnu also has recently visited Kosovo, and has been able to bring a higher profile to the plight of some 300,000 people, over 60 percent of whom are children, displaced by the fighting there.

From the Congo, Sierra Leone, and northern Uganda, to Sri Lanka, Afghanistan, Colombia, and the Thai/Myanmar border, military and armed groups actively recruit children, either to take direct part in active hostilities, or to carry out different forced activities, such as acting as military porters. Europe also has its share of involvement of children in armed conflict. In Kosovo, reports from the field indicate that teenage children as young as 15 are involved in carrying food, arms and ammunition for the rebel groups back in Kosovo. The recruitment of the girl child into armed conflict, as suicide bombers in Sri Lanka, as human shields in northern Uganda, or as mine-clearers in Iraq, is equally disturbing.

Human rights violations against children may take place amongst refugee populations, or may constitute persecution in the home country, as defined in the refugee definition. Their identification therefore becomes important not only in the context of preventive measures in refugee camps of asylum countries, but also in countries where refugee status determination takes place. Analysing the types of human rights violations targeting children consequently has a dual role to play in refugee protection. Recognising such violations as persecution is of paramount importance when interviews of minor asylum-seekers are undertaken.

Refugee children suffer a form of double jeopardy. A denial of their human rights made them refugees in the first place; and as child refugees they are also frequently abused, as the most vulnerable category of an already vulnerable population. When they cross a border to flee persecution or conflict, refugee children often lose whatever social or familial protection they enjoyed at home. Established support systems, such as schools, break down and traditional family structures often collapse with flight. Tragically, the risk of human rights violations against refugee children therefore does not end at the crossing of international borders, even where they may have left behind them a series of traumatic experiences. One very recent example comes from among the Sierra Leonean refugees crossing into Guinea, where we are urgently trying to find a resettlement third country for a 5 year old boy, badly in need of professional psychological support, who had been rescued from amongst the dead bodies of all his family members. Many others crossing into Guinea, including a number of children, are equally traumatised from having limbs amputated as a form of grotesque torture by rebel forces. Identifying the needs of such a population for a proper response is essential in order to minimise the risk of further harm, whether psychological or physical. Again, this response needs to be rights-based, in conformity with Article 24 of the CRC - every child has a right to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health.

Many States have responded to the plight of refugee children through a range of governmental and non-governmental activities. Some have developed guidelines on how to deal with unaccompanied children seeking asylum in their territory, taking into account their special needs and vulnerability. Others have established special procedures for UAMs to ensure that their special needs are met while their cases for asylum are examined. Non-governmental organizations (some of whom are represented here) have played - and continue to play - a crucial lead role in this area. Numerous NGOs have contributed to make sure that refugee children receive proper care and assistance upon arrival in the country of asylum. UNHCR constantly encourages governments to take new initiatives in this area, as was taken recently by the Canadian government with its Guidelines on Child Refugee Claimants. There is increasing recognition that refugee children have special needs and, in particular, that all CRC rights and protections should be available for children seeking asylum from the moment they enter the asylum country. But as in all human rights areas, the law (and the rhetoric) continues to outpace implementation.

During repatriation - the return phase of the refugee life cycle - human rights programming and approaches are equally essential. The reintegration of refugee children into their home communities often has its own set of complications. The Liberian Children Initiative in the Liberia repatriation operation is an exceptional collaboration between UNHCR, UNICEF and NGOs, and provides one example of a rights-based approach to programming. Seven years of war and instability in Liberia have had a devastating impact upon Liberia's children and youth, too many of whom were directly involved in the actual conflict. Of Liberia's estimated population of 2.9 million, over 1 million are living outside of their communities of origin, including nearly half a million refugees. Over half of them are children below the age of 18. Military recruitment, harmful child labour, prostitution and life in the streets are among the inhumanities to which these children have been exposed, in some cases for many years.

One of the key projects under this initiative is the re-establishment of the education system in Liberia. Many refugee families were reluctant to repatriate due to the lack of any education possibilities for their children. Education for these families is not simply a fundamental right - and necessity - but also serves as a deterrent to possible future child recruitment. There was an understandable fear expressed by refugees that ex-child combatants would be at risk of re-arming themselves as a result of lack of alternatives. The project therefore aims at strengthening the Ministry of Education, rebuilding the formal education system, establishing a rapid education programme for children who have been out of the school system for many years, and providing economic support and informal vocational training for returnee adolescents.

The Liberian Children Initiative is an example of an extremely well-coordinated rights-based project which aims to address specific protection issues, such as child recruitment of refugee minors. Other examples also exist, such as educational and awareness building programmes to combat harmful traditional practices, including, importantly, female genital mutilation affecting children (which may also fall within the persecution definition).

In Europe there is also rights-based programming for children. The Separated Children in Europe Programme (which is later on your agenda), a joint UNHCR/International Save the Children Alliance project, has in fact been created to address the rights of refugee children in Europe. For example, addressing the issue of "lost" children places the focus on the need to establish procedures which properly identify separated children before they are forced underground, unable to benefit from entitlements. Any separated child or adolescent who remains unidentified is clearly not benefiting from special State protection and assistance, as required by the CRC.

Detention of minor asylum-seekers is also a key and pressing concern to UNHCR in a number of developed countries. In the UK, the detention facilities are not adapted to meet the needs of detained minors, who are often kept in prison-like environments with no access to education. We have constantly urged here - as elsewhere - that such detention should be used only as an absolutely last resort measure, in accordance with long-established guidelines we have issued.

Family reunification is also an area of contention, as it was at the recent meeting of UNHCR's Executive Committee in Geneva. Respect for the family unit - recognized in the UDHR - may be violated when family reunification is not facilitated by States, often the case when some members of a refugee family (either the parents or indeed even minor children) have been granted a humanitarian right to remain, rather than recognition as refugees.

Against this background, one of the major challenges I believe we currently face is a general trend by some States to attempt to move away from a law- or rights-based approach to refugee protection, including protection of refugee children. There is a symbiotic link between the international legal frameworks for the protection of human rights and that for the protection of refugees. Refugee protection is premised on the basis of individual rights and duties and state responsibilities, derived from the same philosophical base as the international law of human rights. Human rights law is the source of existing refugee protection principles and structures, while it also complements them. The 1951 Convention Relating to the Status of Refugees declares its direct descendence from the UN Charter and the Universal Declaration in its first preambular paragraph. The principle of equality and non-discrimination - whose violation creates refugees - forms the core of the human rights vision of the UN Charter, which states that human rights and fundamental freedom should be available to all human beings without discrimination.

A human rights approach to the protection of refugee children speaks in broad terms about the fundamental entitlement of all human beings to live in dignity, and in conditions of social justice. This approach justifies legitimate claims, not because the realisation of rights is a means to another end, but because the realisation of their rights is an important goal in itself. The conceptualisation of a claim as a human right immediately involves the recognition of State and international responsibility if that claim is denied or violated. Concerns, including those of refugees, when conceived of as claims of human rights, are elevated from the realm of State and international good faith, to a level of legal entitlement requiring a specific national and international response.

By contrast, while humanitarianism is clearly part of this underlying philosophy, some States prefer to act on the basis of an undefined humanitarian response to such problems, which in the absence of an international law framework is susceptible to political discretions, both positive and negative.

I would like to end by reiterating one of the main underlying themes of the CRC, which should underscore all human rights approaches to the protection of children, including refugee children. This is the principle of the best interests of the child. For example, in the context of protection of separated children, this principle arises in reference to individual cases, such as whether a particular minor should be repatriated and reunited with the parents or should continue to live with a foster family in a country of asylum. Similarly, discussion around the best interests of the child in the context of protection of separated children arises in regard to groups of minors, such as when a decision is made to repatriate a specific group of unaccompanied children and adolescents to less than secure circumstances in light of insecure asylum. This dilemma arose recently with the "evacuation" of the unaccompanied minors from dangerous Eastern Zaire to unstable Rwanda. The best interest of the child principle must remain at the forefront of all such discussions and decisions - and any effective approach must remain clearly rights-based.

I am looking forward to the discussion today on these and related issues, and to learning how UNHCR, together with other committed colleagues here, might best move forward in addressing the crucial issue of the protection of refugee children within a human rights approach. We have a unique package in our hands, with the Refugee Convention, the Convention on the Rights of the Child (with its record ratifications), and the monitoring mechanisms established under the various human rights instruments, especially the Committee on the Rights of the Child. We need to take full advantage of this for the protection of one of the most vulnerable - and deserving - of all uprooted populations.

Thank you.

1 The refugee definition of the International Refugee Organization specifically included unaccompanied minors outside their country. The 1951 Convention does refer to the right of refugees to receive elementary education.