Note: For practice concerning respect for and protection of children in general, see Rule 135.
Geneva Convention IV
Article 76, fifth paragraph, of the 1949 Geneva Convention IV provides that, in the treatment of protected persons accused of an offence, “proper regard shall be paid to the special treatment due to minors” who are detained.
Geneva Convention IV
Article 82, second and third paragraphs, of the 1949 Geneva Convention IV provides:
Throughout the duration of their internment, members of the same family, and in particular parents and children, shall be lodged together in the same place of internment, except when separation of a temporary nature is necessitated for reasons of employment or health or for the purposes of enforcement of the provisions of Chapter IX of the present Section. Internees may request that their children who are left at liberty without parental care shall be interned with them.
Wherever possible, interned members of the same family shall be housed in the same premises and given separate accommodation from other internees, together with facilities for leading a proper family life.
International Covenant on Civil and Political Rights
Article 10(2)(b) of the 1966 International Covenant on Civil and Political Rights provides: “Accused juveniles shall be separated from adults.” Article 10(3) provides: “Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.”
Additional Protocol I
Article 77(4) of the 1977 Additional Protocol I provides:
If arrested, detained or interned for reasons related to the armed conflict, children shall be held in quarters separate from the quarters of adults, except where families are accommodated as family units as provided in Article 75, paragraph 5.
Convention on the Rights of the Child
Article 37(c) of the 1989 UN Convention on the Rights of the Child provides: “Every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so.”
Standard Minimum Rules for the Treatment of Prisoners
Rule 8(d) of the 1955 Standard Minimum Rules for the Treatment of Prisoners provides: “Young prisoners shall be kept separate from adults.”
European Prison Rules
Rule 11(4) of the 1987 European Prison Rules provides: “Young prisoners shall be detained under conditions which as far as possible protect them from harmful influences and which take account of the needs peculiar to their age.”
Standard Minimum Rules for the Administration of Juvenile Justice
Rule 13.4 of the 1985 Standard Minimum Rules for the Administration of Juvenile Justice provides: “Juveniles under detention pending trial shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults.”
Rules for the Protection of Juveniles Deprived of their Liberty
Rule 29 of the 1990 Rules for the Protection of Juveniles Deprived of their Liberty provides: “In all detention facilities juveniles should be separated from adults, unless they are members of the same family.”
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 4 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that all civilians be treated in accordance with Article 77(4) of the 1977 Additional Protocol I.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.3 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that all civilians be treated in accordance with Article 77(4) of the 1977 Additional Protocol I.
Guiding Principles on Internal Displacement
Principle 17(4) of the 1998 Guiding Principles on Internal Displacement provides: “Members of internally displaced families whose personal liberty has been restricted by internment or confinement in camps shall have the right to remain together.”
UN Secretary-General’s Bulletin
Section 8(f) of the 1999 UN Secretary-General’s Bulletin provides:
In cases where children who have not attained the age of sixteen years take a direct part in hostilities and are arrested, detained or interned by the United Nations force, they shall continue to benefit from special protection. In particular, they shall be held in quarters separate from the quarters of adults, except when accommodated with their families.
Argentina’s Law of War Manual (1969) provides:
During internment, members of the same family, and in particular parents and children, shall be held in the same place of internment …
Internees can request that their children, left at liberty without the supervision of their parents, shall be interned with them.
As much as possible, interned members of the same family shall be accommodated in the same place, and shall be housed separately from the other internees. They shall be afforded the necessary facilities for leading a normal family life.
Argentina’s Law of War Manual (1989) provides that arrested children shall be lodged together with their families in the same place of internment.
The manual further provides that, in non-international armed conflict, “children shall receive assistance … in order to reunite them with their families when they are temporarily separated from them”.
Australia’s Defence Force Manual (1994) states: “In case of arrest, children should be kept in separate quarters from those of adults.”
Australia’s LOAC Manual (2006) states: “If arrested, detained or interned for reasons connected with the armed conflict, children must be kept in quarters separate from adults unless they belong to an interned family unit.”
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Cameroon’s Instructor’s Manual (1992) provides that separate accommodation shall be provided to children.
Cameroon’s Instructor’s Manual (2006) states:
Children below the age of fifteen who directly participated in hostilities, whether or not they are prisoners of war, must be detained in locations separate from adults, must be shown particular respect and must be protected from any form of attack against their honour. One must give them the care and assistance which they need because of their age or for any other reason.
The manual, under the heading “Protection of Children”, also states:
If nonetheless it happens that they participate in combat and fall into the hands of the enemy, they are entitled to the treatment set out below.
In case of internment, they must be held in special quarters separated from adults unless the internment allows for the regrouping of families.
Canada’s LOAC Manual (1999) states that, wherever possible, interned “family members must be housed in the same place and premises”.
With respect to non-international armed conflicts, the manual provides: “Family members are detained together.”
Canada’s LOAC Manual (2001), in its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Treatment of internees”, states: “Wherever possible, … family members must be housed in the same place and premises.”
Canada’s Prisoner of War Handling and Detainees Manual (2004) states with regard to prisoner-of-war accommodation: “Provision is to be made for segregation of the sexes and for juveniles to be segregated from adults.”
Canada’s Use of Force Manual (2008) states:
Chapter 4: Use of Force in International Operations
402. Types of International Operations
1. In general, there are four types of international operational relationships in which the CF [Canadian Forces] may participate with each one having unique considerations pertaining to the use of force, self-defence and rules of engagement:
a. Alliance. Alliance operations refer to operations conducted under a formal standing alliance such as the North Atlantic Treaty Organization (NATO) or Canada-United States (CANUS). In these cases, there are formal policy, command-and-control and force structure instruments which will affect ROE [rules of engagement] development and application;
b. Coalition. A coalition is a less formal alliance which is normally limited to a specific mission. Coalitions normally lack the formal status of forces' agreements and infrastructure architectures that are common to alliances such as NATO. A coalition may operate under the legal umbrella of a UN Security Council resolution, but they are not UN missions. Once a mission or operation has been completed, the coalition is normally disbanded;
c. United Nations (UN). UN missions operate under a UN Security Council resolution and fall within the UN command-and-control structure; and
d. Unilateral. An international operation where Canadian forces are operating unilaterally within a region or area.
407. Supplementary Direction
3. Detainees. In support of the operational or security objectives of an international operation, Canadian forces may be required to detain persons. Reasons to detain include, but are not limited to, persons who do the following:
4. Where the use of deadly force is authorized in a given situation, that authority also includes the authority to detain persons against whom deadly force could have been used. In all other cases, specific ROE must be authorized in order to detain persons. The standards provided in the Geneva Conventions will be the minimum standard for the treatment of all detainees whether or not the Geneva Conventions legally apply during the operation.
Chad’s Instructor’s Manual (2006) states with regard to the protection of former child soldiers: “If they are interned, they may be accommodated with their families.”
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers):
Additional Protocol I specifies that children have the right to the care and aid they require because of their age. Children who have not attained the age of 15 years must not be recruited into the armed forces, nor directly participate in hostilities. Should children nevertheless be incorporated (something which in reality happens all too often) and happen to be imprisoned, they must be treated particularly well, due to their age, and be separated from adults.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
II.2.3. Treatment of child POWs [prisoners of war]
The LOAC ensures special protection to children due to their special vulnerability. Every child deprived of liberty must be:
- separated from adults unless in the greater interest of the child it is regarded as preferable not to do so.
Djibouti’s Manual on International Humanitarian Law (2004) states that if children “are arrested, detained or interned for reasons related to armed conflict, children must be separated from adults, except when families are accommodated together”.
Germany’s Military Manual (1992) provides: “The detaining power shall ensure that members of the same family are lodged together in the same place of internment.”
Mexico’s Army and Air Force Manual (2009), in a section on the 1949 Geneva Convention IV, states: “Children who are arrested must be kept in quarters separate from those of adults, except where families are accommodated as family units.”
The Military Manual (2005) of the Netherlands provides:
1060. Children must receive the care and help that they need.
1061. This involves … not allowing them to participate in the hostilities; special protection for such children if, despite the foregoing, they have taken part in hostilities and have been taken prisoner.
Spain’s LOAC Manual (1996) provides that children under six years shall be housed with their mothers.
The manual also states, regarding the placing of prisoners in camps, that “family sections” are provided “in order to house family groups”.
Spain’s LOAC Manual (2007) states that, in prisoner-of war camps: “Arrangements must be made for children under the age of six years to stay with their mothers.”
The manual also states that, in internment camps: “Family groups are accommodated in the family section.”
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states: “The general provisions of [the 1949 Geneva Convention IV] lay down, inter alia
, … that as far as possible families must not be separated but must be given separate accommodation as family units.”
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “If arrested, detained or interned for reasons connected with the armed conflict, children must be kept in separate quarters from adults unless they belong to an interned family unit.”
United States of America
The US Field Manual (1956) reproduces Article 76 of the 1949 Geneva Convention IV.
United States of America
The US Manual on Detainee Operations (2008) states: “To the extent possible, accommodation must be made for … child detainees.”
The manual also states:
The DOD [Department of Defense] definition of the word “detainee” includes any person captured, detained, or otherwise under the control of DOD personnel (military, civilian, or contractor employee) … It does not include persons being held primarily for law enforcement purposes except where the United States is the occupying power …
a. Enemy Combatant. In general, a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” includes both “lawful enemy combatants” and “unlawful enemy combatants.”
b. Enemy Prisoner of War. Individual under the custody and/or control of the DOD according to Articles 4 and 5 of the … [1949 Geneva Convention III].
c. Retained Personnel … Personnel who fall into the following categories: official medical personnel of the armed forces exclusively engaged in the search for, or the collection, transport, or treatment of wounded or sick, or in the prevention of disease, and staff exclusively engaged in the administration of medical units and facilities; chaplains attached to enemy armed forces; staff of national Red Cross Societies and that of other volunteer aid societies duly recognized and authorized by their governments to assist medical service personnel of their own armed forces, provided they are exclusively engaged in the search for, or the collection, transport or treatment of, the wounded or sick, or in the prevention of disease, and provided that the staff of such societies are subject to military laws and regulations.
d. Civilian Internee
… A civilian who is interned during an armed conflict, occupation, or other military operation for security reasons, for protection, or because he or she has committed an offense against the detaining power.
Afghanistan’s Juvenile Code (2005) states: “Children in detention shall be kept separately from adults.”
Afghanistan’s Law on Juvenile Rehabilitation and Training Centres (2009) states regarding the detention of juveniles:
Protection of juveniles, [whether] suspected, accused [or] convicted
1. The suspected and … accused juveniles can only be kept in the Juvenile Justice Department Centres (JJDCs) until their investigation and court [proceedings are] completed.
2. The convicted juveniles will be kept in the Juvenile Justice Department Centres (JJDC) (open or closed), unless [otherwise provided by law].
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states: “Minors shall be separated from adults in custody.”
China’s Law on the Protection of Minors (1991), as amended in 2006, states: “Minors who are under custody or serving sentences shall be detained or imprisoned separately from adults.”
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
The military jurisdictions are not competent with regard to persons aged less than 18 years.
The distribution of the convicted persons in the military prisons is made according to their penal category, their age, state of health, sex and personality.
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Guinea’s Children’s Code (2008) states:
A Child under the age of 15 deprived of liberty for reasons linked to an armed conflict shall benefit from all the protection granted to him by International Humanitarian Law.
- A Child shall be held in quarters separate from those of adults, except where families are accommodated as family units.
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Articles 76 and 82 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 77(4), are punishable offences.
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009), states the following with regard to detention facilities for minors:
(a) A minor shall not be held in detention or incarcerated, except in a separate detention or prison facility for minors, or in a wing in a general detention or prison facility, on the condition that the wing is completely separate, intended for minors only, and that there is no access between it and the other wings of the detention or prison facility or those adjacent to it.
(b) Despite subsection (a), a minor may be held in a police station, on the condition that he is held separately and that there is no contact between him and suspects or detainees who are not minors.
The Order defines “minor” as follows:
“Minor” – a person who is not yet sixteen years old, and regarding a suspect and a defendant, including a person who at the time of the filing of the indictment against him has not yet reached the age of sixteen.
Nicaragua’s Constitution (1987) provides that minor offenders shall not be detained in “centres of criminal readaptation” but shall be accommodated in “centres under the responsibility of a special organism”.
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment.
Pakistan’s Prisons Act (1894) provides that separate cells shall be provided for prisoners under 21 years of age.
The Act on Child Protection (1992) of the Philippines states that any child involved in an armed conflict, whether as a spy, courier, guide or combatant, shall be entitled to separate detention facilities, free legal assistance, notice of arrest to parents and release of the child to the social services department for protective custody.
The Philippines’ Republic Act No. 9344 (2006), the Juvenile Justice and Welfare Act of 2006, provides:
Sec. 5. Rights of the Child in Conflict with the Law. – Every child in conflict with the law shall have the following rights, including but not limited to:
(d) the right to be treated with humanity and respect for the inherent dignity of the person, and in a manner which takes into account the needs of a person of his/her age. In particular, a child deprived of liberty shall be separated from adult offenders at all times. No child shall be detained together with adult offenders … A child in conflict with the law shall have the right to maintain contact with his/her family through correspondence and visits, save in exceptional circumstances;
Sec. 21. Procedure for Taking the Child into Custody. – From the moment a child is taken into custody, the law enforcement officer shall:
(k) Ensure that should detention of the child in conflict with the law be necessary, the child shall be secured in quarters separate from that of the opposite sex and adult offenders;
Sec. 46. Separate Facilities from Adults. – In all rehabilitation or training facilities, it shall be mandatory that children shall be separated from adults unless they are members of the same family. Under no other circumstance shall a child in conflict with the law be placed in the same confinement as adults.
47. Female Children.
– Female children in conflict with the law placed in an institution shall be given special attention as to their personal needs and problems. They shall be handled by female doctors, correction officers and social workers, and shall be accommodated separately from male children in conflict with the law.
The Act further provides: “The following terms as used in this Act shall be defined as follows: … (c) “Child” refers to a person under the age of eighteen (18) years.”
Rwanda’s Prison Order (1961) states that prisoners under the age of 18 are to be held separately.
Somalia’s Military Criminal Code (1963) states:
A commander who causes serious harm to lawful enemy belligerents who have fallen into his power … by not according them the treatment prescribed by law or by international agreements … shall be punished, unless the act constitutes a more serious offence, by military confinement for not less than three years.
Sri Lanka’s Prisons Ordinance (1878), as amended to 2005, states:
The requisitions of this Ordinance with respect to the separation of prisoners are as follows:-
(b) juvenile prisoners, whenever it is practicable, shall be separated from adults.
This article applies to persons deprived of their liberty under Sri Lanka’s Emergency Regulations (2005) pursuant to section 19 of these regulations.
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, which also contains a section on war crimes, states under the title “Sentences and measures”: “If the offender was convicted of an offence committed before he was 18 years of age, the measure may be implemented in an institution for minors.”
Under the title “Execution of sentences and measures, probation assistance, facilities”, the Code further states:
1 The cantons shall establish and operate institutions and institution units for prison inmates in open and secure custody as well as for prison inmates in semi-detention and in day release employment.
2 They may also provide units for special inmate groups, and in particular for:
b. prison inmates of specific age groups.
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
81. Rights of children
(1) Every child, that is to say every boy and girl under the age of eighteen years, has the right –
(i) not to be detained except as a measure of last resort and, if detained –
(i) to be detained for the shortest appropriate period;
(ii) to be kept separately from detained persons over the age of eighteen years; and
(iii) to be treated in a manner, and kept in conditions, that take account of the child’s age.
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may –
a. interfere with the accomplishment of the mission and related tasks;
b. otherwise use or threaten force against friendly forces, or the equipment and materials belonging to them, or under their protection;
c. enter an area under the control of friendly forces without prior authorization; and
d. are suspected of breaches of the law of armed conflict.
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated.
Upon ratification of the 1989 Convention on the Rights of the Child, Australia stated:
The obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the responsible authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families.
In 2007, in its third periodic report to the Human Rights Committee, Azerbaijan stated:
Children may not be held in detention together with adults, except where this is necessary in their own interest. Children sentenced to custodial punishments are held in reform institutions in the manner prescribed by the Criminal Enforcement Code of the Republic of Azerbaijan.
Bosnia and Herzegovina
In 2005, in its initial report to the Human Rights Committee, Bosnia and Herzegovina stated that “juveniles under 18 years of age cannot be placed in the same cells and sleeping-rooms together with adults and older individuals, so even younger individuals of legal age (up to 23 years of age) are separated from others”.
Upon ratification of the 1989 Convention on the Rights of the Child, Canada reserved the right “not to detain children separately from adults where this is not appropriate or feasible”.
In 2009, in its third and fourth periodic reports to the Committee on the Rights of the Child, Canada stated under the heading “Optional Protocol on the involvement of children in armed conflict”:
All persons apprehended and detained by the Canadian Forces in a theatre of hostilities are treated humanely and in a manner consistent with international legal standards. In cases where a captured person, suspected of being a juvenile, is unwilling or unable to reveal their date of birth, the person will be assumed to be a juvenile until more detailed checks can be made. Juvenile detainees are segregated from adults. They are at all times treated with due regard to their age and in accordance with Canada’s obligations under international humanitarian law.
In 1997, in its initial report to the Committee on the Rights of the Child, Chad stated: “Special quarters are provided for detained minors by decree No. 371/77/CSM/MJ of 9 November 1977 concerning the status of penal establishments.”
In 2000, during the consideration of the fourth periodic report of Chile before the Human Rights Committee, a representative of Chile stated: “A 1994 law … [provides] that minors should not be held in adult prisons, and an investment plan for the construction of centres exclusively for juvenile offenders … [has] been initiated.”
In 2004, during the consideration of the third periodic report of Chile before the Committee against Torture, a representative of Chile stated:
Since 1994, those minors who were in the adult prison system … [have] been held completely separately from adults. Thus, although 400 minors … [have] been held in adult penitentiary establishments in 2003, they … [have] not been allowed contact with adult prisoners at any time. As of 2003, minors … [are] also kept apart from adults during their transportation to court or between prisons.
In 2005, in its Seventh Human Rights Policy Report, Germany’s Federal Government reported to the Bundestag (Lower House of Parliament):
With the 1998 guidelines on the handling of crises related to internally displaced persons (“Guiding Principles on Internal Displacement”) by the then Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons, Francis Deng, the international community has a practice-oriented document, which summarizes existing standards on the protection of internally displaced persons and gives further recommendations. Although these guiding principles are not a binding instrument under international law, their acceptance by States, international organizations and NGOs has continued to grow over the past years, so that now they are virtually regarded as customary international law.
In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) entitled “Treatment of child soldiers by the German armed forces (Bundeswehr) during operations abroad”, Germany’s Federal Government wrote:
8. Which procedures are envisaged for the treatment of child soldiers injured, apprehended or detained by the Bundeswehr?
In the completed operation EUFOR RD CONGO, the following framework was adopted regarding apprehended or detained children and included in the pocket card of June 2006 for the German contingent of the operation EUFOR RD CONGO:
c) If feasible, they are to be accommodated separately from other detainees. If they are detained together with family members, they must be accommodated together with these family members.
The Federal Government also wrote:
19. In the course of ISAF [International Security Assistance Force] and OEF (Operation Enduring Freedom), was there an agreement on special procedures for dealing with child soldiers?
a) If so, which ones?
b) If not, why was this considered not to be necessary?
The Bundeswehr does not contribute forces to Operation Enduring Freedom (OEF).
Within ISAF, the ISAF rules inter alia contain the following provisions on the potential detention of minors:
To the extent possible, detained persons are to be accommodated separately, based inter alia
on age; joint accommodation of family or clan members should be made possible.
Upon ratification of the 1989 Convention on the Rights of the Child, Iceland stated:
The separation of juvenile prisoners from adult prisoners is not obligatory under Icelandic law. However, the law relating to prisons and imprisonment provides that when deciding in which penal institution imprisonment is to take place account should be taken of, inter alia
, the age of the prisoner. In light of the circumstances prevailing in Iceland it is expected that decisions on the imprisonment of juveniles will always take account of the juvenile’s best interests.
Upon ratification of the 1989 Convention on the Rights of the Child, Japan reserved the right not to apply Article 37(c) “considering the fact that in Japan as regards persons deprived of liberty, those who are below 20 years of age are to be generally separated from those who are of 20 years of age and over under its national law”.
In 2007, in its fifth periodic report to the Human Rights Committee, Japan stated:
Sentenced juvenile inmates are detained in penal institutions which have been established especially for juveniles, such as juvenile prisons or special areas which have been established within penal institutions, and thereby, are separated from adult sentenced inmates.
On the basis of a memo on accommodation in detention camps dating from 1950, the Report on the Practice of Malaysia states that during the period of the communist insurgency, women and children were detained in separate facilities.
In 2010, during the consideration of the status of the 1977 Additional Protocols by the Sixth Committee of the UN General Assembly, a statement of the delegation of Malaysia was summarized by the Committee in its records as follows:
8. [The delegate of Malaysia] said that …
10. … [t]he laws of naval warfare incorporated the fundamental principles of international humanitarian law, including necessity and proportionality …
11. [In the case of the attacks by the Israel Defense Forces on the Mavi Marmara and five accompanying vessels in May 2010] … [w]here vessels were captured, the protections provided in the Second and Fourth Geneva Conventions of 1949 and [the 1977 Additional] Protocol I continued to apply to the persons on board the vessels.
Upon ratification of the 1989 Convention on the Rights of the Child, New Zealand reserved the right not to apply Article 37(c) “in circumstances where the shortage of suitable facilities makes the mixing of juveniles and adults unavoidable” and “where mixing is considered to be of benefit to the persons concerned”.
In 1993, Peru informed the Committee on the Rights of the Child that under Peruvian law, “children tried for terrorist activities must be detained separately from adults”.
In 1993, in its initial report to the Committee on the Rights of the Child, the Philippines stated that “in any case where a child is arrested for reasons related to armed conflict, he or she shall be entitled to separate detention from adults”.
In 2007, in its report to the Committee on the Rights of the Child on the 2000 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, the Philippines stated:
The GRP [Government of the Philippines] has provided legislative and administrative measures to ensure that any child arrested, detained or interned for reasons related to the conflict enjoy the special protection provided by the OP [Optional Protocol], the UNCRC [UN Convention on the Rights of the Child], and the IHL.
In 2006, in its initial report to the Committee against Torture, Serbia stated:
143. … Juvenile detainees are separated from adult detainees.
146. Male and female juvenile delinquents serve their sentences in separate institutions.
In 2007, in its initial report to the Committee on the Rights of the Child, Serbia stated: “A juvenile is kept in detention separately from adult persons. Exceptionally, the juvenile judge may order that the juvenile be detained together with an adult person who would not have a negative influence on him/her.”
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated:
29. … [Directions Issued by the President Commander-in-Chief of the Armed Forces and Minister of Defence on 7 July 2006] ensure that ... [p]recautionary measures are also taken … to protect … children in custody …
46. Paragraph 4 of the Presidential Directions of 7 July 2006 provides that, “When a child under 18 years … is sought to be arrested or detained, a person of their choice should be allowed to accompany such child … to the place of questioning. As far as possible, any such child … so sought to be arrested or detained, should be placed in the custody of a Women’s Unit of the Armed Forces or the Police Force or in the custody of another woman military or police officer”.
[footnote in original omitted]
Sri Lanka also stated:
Legal and institutional initiatives undertaken to facilitate rehabilitation and reintegration of former child soldiers
78. New regulations have been framed under section 5 of the Public Security Ordinance by the President in order to introduce “Child Friendly” procedures and processes related to the surrender and release of children recruited as combatants.
80. … The person to whom … [a] child surrenders or by whom the child is arrested shall … ensure the custody of such child in a place which is apart from adult surrendee[s] or detainees if any.
Sri Lanka also stated:
33. The [Directions] also … [take] measures to regulate arrests:
(f) As far as possible … [a child arrested or detained] … should be placed in the custody … [of] a Women’s Unit of the Armed Forces or the Police Force or in the custody of another women military or police officer, as per the above [Directions].
[footnote in original omitted]
Syrian Arab Republic
The Report on the Practice of the Syrian Arab Republic asserts that the Syrian Arab Republic considers Article 77 of the 1977 Additional Protocol I to be part of customary international law.
United Kingdom of Great Britain and Northern Ireland
In presenting his government’s report to the Human Rights Committee in 1985, the UK representative explained that while a derogation from the provision on housing detained minors separately from adults had been necessitated by the large numbers of juveniles convicted of terrorist offences, the situation had been remedied by the construction of two new juvenile detention centres.
United Kingdom of Great Britain and Northern Ireland
Upon ratification of the 1989 Convention on the Rights of the Child, the United Kingdom reserved the right not to apply Article 37(c) “where at any time there is a lack of suitable accommodation or adequate facilities for a particular individual in any institution in which young offenders are detained, or where the mixing of adults and children is deemed to be mutually beneficial”.
United Kingdom of Great Britain and Northern Ireland
In 2004, in a written answer to a question concerning “the document issued to service personnel announcing the ban on the use of hoods for Iraqi prisoners”, the UK Secretary of State for Defence stated:
An amended Standard Operating Instruction on the Policy for Apprehending, Handling and Processing Detainees and Internees was issued on 30 September 2003. The following section of the document contains the relevant information.
a. Apprehended individuals are to be treated at all times fairly, humanely and with respect for his or her personal dignity;
i. Juveniles (under 15) are to be segregated from other apprehended individuals unless to do so would impose solitary confinement on the individual; and
j. It is a command responsibility to ensure that all apprehended individuals are treated in accordance with these principles.
United Kingdom of Great Britain and Northern Ireland
In 2004, in a written answer to a question concerning prison facilities for children in Iraq, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
There are no facilities in Iraq under the control of Coalition forces that are solely for prisoners under the age of 18. However, prisoners under the age of 18 are separated from adult prisoners, unless they are housed with family members.
United States of America
On 8 May 2006, the US Delegation to the UN Committee Against Torture responded orally to questions regarding US obligations under the 1985 Convention against Torture. On a question concerning juveniles detained at the US naval base in Guantanamo Bay, Cuba, the Legal Adviser to the US Department of Defense responded:
With respect to Madame Belmir’s question about juveniles detained at Guantanamo and the reason for their detention, there are currently no juvenile detainees at Guantanamo … Let me briefly speak about the conditions of detention we provided them while at Guantanamo. After medical tests determined their ages, they were housed in a separate detention facility, separated at a significant distance from the other detainees, and the other detainees were not permitted to have access to them. Indeed, they were housed in a communal facility, rather than cells. They underwent assessments from medical, behavioral, and educational experts to address their needs. Furthermore, we taught them mathematics, English, and reading, and provided daily physical exercise and sports programs.
It is unfortunate that al Qaeda and the Taliban use juveniles as combatants. The United States detains enemy combatants engaged in armed conflict against it and the juveniles were detained to prevent further harm to them and to our forces.
UN General Assembly
In a resolution adopted in 2003 on the rights of the child, the UN General Assembly called upon:
All States to take appropriate steps to ensure compliance with the principle that depriving children of their liberty should be used only as a measure of last resort and for the shortest appropriate period of time, in particular before trial, and to ensure that, if they are arrested, detained or imprisoned, children are provided with adequate legal assistance and are separated from adults, to the greatest extent feasible, unless it is considered in their best interest not to do so, and also to take appropriate steps to ensure that no child in detention is sentenced to forced labour or corporal punishment or deprived of access to and provision of health-care services, hygiene and environmental sanitation, education, basic instruction and vocational training, taking into consideration the special needs of children with disabilities in detention, in accordance with their obligations under the Convention.
Human Rights Committee
In its General Comment on Article 10 of the 1966 International Covenant on Civil and Political Rights (humane treatment of persons deprived of their liberty), the Human Rights Committee held:
Moreover, the Committee notes that in the reports of some States parties no information has been provided concerning the treatment accorded to accused juvenile persons and juvenile offenders. Article 10, paragraph 2 (b), provides that accused juvenile persons shall be separated from adults. The information given in reports shows that some States parties are not paying the necessary attention to the fact that this is a mandatory provision of the Covenant … Lastly, under article 10, paragraph 3, juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status in so far as conditions of detention are concerned, such as shorter working hours and contact with relatives, with the aim of furthering their reformation and rehabilitation.
Human Rights Committee
In its concluding observations on the consolidated second and third periodic reports of the Philippines in 2003, the Human Rights Committee stated:
The Committee is concerned that the measures of protection of children are inadequate and the situation of large numbers of children, particularly the most vulnerable, is deplorable. While recognizing that certain legislation has been adopted in this respect, many problems remain in practice, such as:
b) Persistent reports of ill-treatment and abuse, including sexual abuse, in situations of detention and children being detained together with adults where conditions of detention may amount to cruel, inhuman and degrading treatment (art. 7 [of the 1966 International Covenant on Civil and Political Rights]);
The State party should:
a) Expedite the adoption of legislation governing juvenile justice which complies with international standards of juvenile justice in accordance with article 10, paragraph 3, of the Covenant …
[emphasis in original]
Inter-American Commission on Human Rights
In 1979, in a report on the situation of human rights in Nicaragua, the Inter-American Commission on Human Rights censured the Nicaraguan Government for its failure to adhere to the requirements of the Nicaraguan Constitution which provides that minors should not be incarcerated with adults.
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “Children’s quarters shall be separated from adults’ quarters, except where families are accommodated as family units.”